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.
We have often reported on controversies over cy pres class action settlements, in which part or all of a settlement fund goes to charities, universities, advocacy groups, or other unrelated institutions as opposed to actual victims of the sued-over conduct. Most appeals courts have agreed that cy pres raises distinctive issues that call for judicial oversight, yet the various federal circuits have marched off in different directions as to the appropriate nature and extent of such oversight, leading to inconsistency at least, and perhaps also to forum-shopping by lawyers seeking lenient standards.
Now figures well known to many of our readers — Ted Frank of the Center for Class Action Fairness, and David Rifkin and Andrew Grossman of Baker & Hostetler — have petitioned the Supreme Court for certiorari in a case arising from a privacy suit against Facebook over its Beacon program that eventuated in a cy pres settlement. “More than $6 million of [the] money was directed to the establishment of a new Internet privacy foundation with an advisory board that includes a Facebook representative and a plaintiffs’ lawyer from the case.” [Alison Frankel; Ted Frank/PoL; CCAF] Related: the “real problem with cy pres has never been that it is too costly. The real problem is that it creates an incentive for class counsel to act against the interests of the class.” [Andrew Trask]
Cy pres, public-sector style? “A veteran Manitoba Crown attorney has been fired after he dropped charges against a Winnipeg company involved in a workplace accident — only to have the company make a substantial financial donation to a charity he oversees.” The prosecutor has defended his actions on the grounds that he did not direct the donation and that “the company made its own decision to choose the charity he was connected to”; he is not alleged to have benefited from the charity. [Winnipeg Free Press]
The judge found fault with a cy pres diversion of funds to charity. Ted Frank had criticized the settlement as leaving consumers in arguably a worse position than if the lawyers hadn’t sued. [Point of Law, earlier]
Consumer Action, the San Francisco-based nonprofit advocacy and education group, takes issue with our August 1 post on its receipt of cy pres awards from class action settlements. You can read the letter from Linda Sherry, its DC office director, here, along with the original post, which we have edited in response to the objections.
A San Francisco nonprofit named Consumer Action is in the habit of pocketing cy pres moneys — leftover funds that are supposed to go “as nearly as possible” to class relief — from class actions against credit card companies and other mass marketers. Does Consumer Action have any connections to lawyers who file class action suits, and if so, are those connections significant? [Ted Frank, Point of Law] (Bad link fixed now; text edited August 5 per discussion below.)
[A Consumer Action executive has been in touch to take issue with this post, pointing out, among other things, that the two personages mentioned in the Point of Law post are no longer married to each other, and arguing that the group's work is independent of class action lawyers. I have reworded the post to reflect these concerns.]
August 6 update: Letter from Consumer Action’s Linda Sherry follows, continued after jump:
Dear Mr. Olson,
I am writing to you to clarify certain points made in your recent blog post, “Consumer Action, chez Sturdevant” (http://overlawyered.com/2012/08/consumer-action-chez-sturdevant/) based on a post by PointofLaw.com (http://www.pointoflaw.com/archives/2012/07/damned-if-you-do-files-chase-bank-credit-card-class-action.php).
Patricia Sturdevant, currently the president of Consumer Action’s Board of Directors, is employed as Deputy Commissioner for Policy and Planning at California Department of Insurance. She has been divorced from attorney James Sturdevant since 1996. Mr. Sturdevant’s firm has no formal connection to Consumer Action, however we admire of Mr. Sturdevant’s track record as a consumer attorney and consider him one of many valued supporters. These supporters also include corporations, foundations, public interest groups and individuals.
[click to continue…]
A three-judge panel of the Ninth Circuit led by Judge Stephen Trott has rejected a settlement between class action lawyers and Kellogg over allegedly misleading promotion of its Frosted Mini-Wheats cereal. The settlement involved a smallish refund offer for the class of consumers, an unrelated food giveaway (so-called cy pres relief, given to beneficiaries other than the class initially wronged), and $2 million to the plaintiff’s lawyers, or roughly $2,100 an hour. [Hans von Spakowsky/PJ Media, Ted Frank/PoL, ABA Journal]
Martin Redish (Northwestern) and John Beisner (Skadden Arps) were among the panelists at the June 1 hearing, and cy pres slush funds were a particular focus of interest [John O'Brien/Legal NewsLine, Ted Frank/PoL]
Further on stories we’ve noted in the past:
- Objectors including CCAF and CEI challenge Cobell Indian trust settlement [Legal Times, PoL, earlier]
- Post-mortems continue on Ohio S.B. 5 labor measure [Daniel DiSalvo, Christian Schneider, earlier]
- More on divorced man’s dogged pursuit of case against wedding photographer [Above the Law, earlier]
- Arkansas AG McDaniel: I’ll stop steering cy pres funds to charities [Arkansas Project, PoL, earlier]
- Rochester: “Police Union Punishes DA’s Office for Not Illegally Charging Woman Who Recorded Cops” [Radley Balko, earlier]
- “Men at Work lose appeal over Kookaburra riff” [Guardian via Legal Blog Watch, earlier here, etc.]
- Wash. Supreme Court overturns woman’s horn-honking conviction [Seattle Times, opinion PDF, earlier here, here]