Alert

Cy Pres Class Action Settlements: Circuit Split After SCOTUS Non-Decision in Frank v. Gaos

This program has been cancelled

A live 90-minute CLE webinar with interactive Q&A


Thursday, April 16, 2020

1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will bring class action practitioners up to date regarding the cy pres doctrine, under which class action settlement funds are not distributed to absent class members, as is the usual practice, but instead are given to nonprofit entities whose purposes are consistent with the general aims of the class action. Such settlements recently have been attempted in data privacy and breach class actions, where questions have arisen regarding whether the class members are able to demonstrate they have suffered concrete harm or measurable damages.

Description

Proponents of cy pres settlements argue that they address alleged wrongful conduct while benefiting a nonprofit whose purposes are consistent with the nature of the claims. Opponents argue that settlements without payments to class members enrich only the attorneys, raise significant standing issues, require heightened class notice and scrutiny of the settlement, and invite collusion between the parties.

Last year, in a closely watched case, the Supreme Court in Frank v. Gaos sidestepped the appropriateness of a cy pres-only class action settlement by disposing of it on standing grounds, leaving the circuits without clear guidance. The Third Circuit disapproved of a Rule 23(b)(2) cy pres-only settlement in In Re Google Inc. Cookie Placement Consumer Privacy Litigation, remanding for further findings on the sufficiency of the release and potential conflicts of interest. Last summer, the Supreme Court denied certiorari in another cy pres case, Perryman v. Romero.

Cy pres resolutions present challenging issues for class action counsel and the courts. Interestingly, the opposing sides seeking settlement approval find themselves on the same team, jointly advocating settlements that may be over the objections of some class members and amicus curiae objectors.

Listen as this panel of veteran class action attorneys provides up-to-the-minute guidance on the governing law addresses varying types of strategies in implementing cy pres settlements, including ethically working with opposing counsel to confront objections to a negotiated resolution.

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Outline

  1. The cy pres doctrine
    1. Evolution of cy pres class action settlements
    2. Use of cy pres settlements vs. reverter of unclaimed funds
    3. Cy pres-only settlements under Rule 23(b)(2)
    4. Squaring cy pres settlements with Rule 23’s fairness, adequacy and reasonableness rationale
  2. Attacks on cy pres settlements
    1. Who brings the challenge?
    2. Standing issues
    3. Sufficiency of class notice
    4. Scope of the settlement
    5. Nexus between the cy pres recipient and claims
    6. Conflicts of interest and ethical considerations
  3. Working with the other side
  4. Evolving appellate jurisprudence

Benefits

The panel will review questions such as:

  • In what types of cases are cy pres settlements appropriate or ill-advised?
  • Strategies for maximizing chances of court approval.
  • What is the process for challenging and defending cy pres settlements?

Faculty

Benenson, Steven
Steven P. Benenson

Principal
Porzio Bromberg & Newman

For over 35 years, Mr. Benenson has defended public and private companies in high stakes class actions, business,...  |  Read More

Boyle, Joseph
Joseph A. Boyle

Partner
Kelley Drye & Warren

Mr. Boyle focuses his practice on class actions and commercial litigation. His experience includes various areas of...  |  Read More

Sellinger, David
David E. Sellinger

Shareholder
Greenberg Traurig

Mr. Sellinger focuses his practice on complex civil litigation matters, including class action defense, trial in...  |  Read More