CJ Roberts: Court may need to visit cy pres

The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown “Class Defense”] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.


  • He doesn’t urge legislation action, but judicial action?

  • […] I draw your attention to a statement issued by C.J. Roberts (via Overlawyered), accompanying the denial of certiorari, where he discusses his desire not to call the balls and […]

  • I find it interesting that the beneficiaries of cy pres are nearly 100 percent left wing advocacy groups. I cannot find a single case where a conservative oriented group like the NRA, Right to Work , Pacific Legal Foundation or the Heritage Foundation has benefitted.

  • […] Through a statement “respecting denial of certiorari” in a case involving a questionable cy pres award, Chief Justice Roberts signals his expectation that the issue will be before the justices again (Overlawyered) […]

  • Linda Greenhouse, in the 11/14/13 NYT, makes the same observation I first made here last week in these comments, that by asking for a suit to be brought to the Court on this subject, and identifying the subjects he had “questions” on, Roberts is taking over a legislative function:


    So much for merely being the umpire at a game.