In 2009, the First Circuit held, as a matter of first
impression, that class action settlement agreements may, in
appropriate circumstances, include provisions for cy pres distributions. In re
Pharmaceutical Industry Average Wholesale Price Litigation,
588 F.3d 24 (2009). On April 24, 2012, the court
"address[ed] for the first time the procedural and substantive
standards for distribution of cy pres funds" and, "in
doing so, . . . express[ed its] unease with federal judges being
put in the role of distributing cy pres funds at their
discretion." In re: Lupron Marketing and Sales Practices
Litigation ("Lupron"), Nos. 10-2494 and 11-1329
(1st Cir., April 24, 2012).
Plaintiffs in Lupron included patients who alleged
fraud in being overcharged for Lupron, a medication often
prescribed by physicians for the treatment of certain forms of
cancer. The parties agreed to a settlement in the amount of
$150 million, of which $40 million was allocated to the
