Learn about the state of cy pres law without having to pay for a CLE class!
Today, Washington Legal Foundation published a short and useful working paper authored by James M. Beck and Rachel B. Weil titled "Cy Pres" Awards: Is the End Near for a Legal Remedy With No Basis in Law?
The paper effectively summarizes recent litigation demonstrating courts' skepticism of such awards, wherein settlement funds are paid to third parties instead of to class members.
Beck and Weil highlight some CCAF-generated precedents, such as Chief Justice Roberts's statement in Marek v. Lane, 134 S. Ct. 8 (2013), the Third Circuit's opinion in In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d Cir. 2013), and the Seventh Circuit's opinion in Redman v. Radioshack Corp., ___ F.3d ___, 2014 U.S. App. LEXIS 18181, 2014 WL 4654477 (7th Cir. Sept. 19, 2014). (Credit is also due to Bexis, the blogging nom de guerre of Mr. Beck, whose post "Sunsetting Cy Pres" drew attention to the Redman ratio's applicability to cy pres remedies just one day after Redman v. Radioshack was decided.)
The rationale for having a defendant settle class members' claims by paying money to third parties is that it would be impossible to compensate the class members themselves. But it's a reverse Robin Hood, wherein money that belongs to the aggrieved nationwide mass of class members is taken and funneled to well-connected recipients, like the plaintiffs' lawyers' preferred local charities and alma maters. Sometimes, it isn't even true that class members can't be located!
What do you think about cy pres? How do you think it should be pronounced: see pray, or sigh pray?
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ReplyDeleteAlso, it should be pronounced "sigh pray" because that's more consistent with how the English language treats "cy." See, e.g., Cy Young. Moreover, it's how my Wills & Trusts professor pronounced it.