We can't stand "cy pres" distributions of class
action settlement funds to non-litigants. We've blogged
about this benighted doctrine
many times. We fought against cy pres at in the ALI, and
we've been fighting against it through Lawyers for Civil
Justice in the context of federal rules amendments.
Sure, cy pres can be useful in resolving this or that class
action once our clients are unfortunate enough to have become
embroiled. But we firmly believe in the "build it and
they will come" theory – that making class actions
easier to settle make them easier to bring, because 99% of all
class actions (at least those seeking $$$) are brought as strike
suits to settle, rather than to litigate. A cy pres award is
a sure-fire indicator of litigation that should never have been
brought – because even after settlement, without any
opposition from the defendant(s), a cy pres request is an admission
that the plaintiffs still can't prove damages and causation
with respect
