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Class Actions and the Problem of Unclaimed Funds: Defeating Objections and Avoiding Multiple Rounds of Administration

Anticipating Undistributed Residual Funds and Avoiding Complications and Objections at Fairness Hearings and on Appeal

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, April 27, 2023

Recorded event now available

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This CLE webinar will guide both class counsel and defense counsel through the problem of dealing with undistributed settlement funds after payments to class members. The panel will discuss issues including (1) how the problem arises and the reasons for undistributed residue, (2) three options for dealing with the issue, (4) cy pres awards as recommended in Section 3.07 of the American Law Institute's Principles of Law on Aggregate Litigation, (5) the importance of making all feasible distribution efforts as part of settlement administration, (6) the state court rules governing residual funds in state class action settlements, (7) appropriate language about cy pres proposals for motions, orders, and class notices, (8) making a record about distribution efforts and cy pres recipients at fairness hearings, and (9) how to anticipate complications and objections at the fairness hearing and on appeal.


The focus of this program is on anticipating and avoiding problems with undistributed funds in class action settlements. Judges faced with unexpected undistributed funds may require the parties to go through a further distribution process just when the parties thought the case was concluded. And failing to provide for unclaimed funds or proposing disfavored, ambiguous, impractical, or incomplete methods of distribution are red flags to judges and can create lingering problems for counsel.

The three options for dealing with undistributed funds present different issues: reversion may be appealing to defendants but is generally disfavored by judges; escheat is impractical and a bad fit. Making cy pres awards is preferred, but courts evaluate proposed cy pres awards in light of the ALI principles, and counsel will need to make an adequate record to support their proposals. When a proposed settlement agreement includes a provision for cy pres awards, judges will still want to be satisfied that class members will receive whatever can readily be distributed to them. And recommending appropriate cy pres recipients can be complicated and contentious.

Listen as this experienced panel of class action attorneys and settlement administrators offers guidance to both plaintiff and defense counsel about how to address undistributed settlement funds after payment to class members and how to avoid missteps that can send the parties back to the drawing board or off to an appeal.



  1. How the problem of undistributed funds arises
  2. Options for dealing with undistributed funds
  3. Mistakes in dealing with undistributed funds
  4. Criteria for approval of settlement with provision for cy pres awards
  5. Selecting cy pres recipients
  6. Anticipating and resolving objections


The panel will review these and other key questions:

  • Why are some settlement funds unclaimed or undistributed?
  • Why are cy pres awards favored and other options disfavored?
  • What language should be included in settlement agreements to deal with undistributed settlement funds?
  • What steps should you take to anticipate and address concerns from the court and possible objections by class members?


Boies, Wilber
Bill Boies

Senior Counsel
McDermott Will & Emery

Mr. Boies focuses his practice on business dispute counseling and business litigation throughout the country.

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DeWitte, Robert
Robert (Rob) DeWitte

Senior Director

Mr. DeWitte has more than a decade of experience in the administration of domestic and international complex class...  |  Read More

Wicklund, P. Renée
P. Renée Wicklund

Richman Law & Policy

Ms. Wicklund works of counsel to Richman Law & Policy. Her work focuses on the domestic food supply, including...  |  Read More

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