In re Pet Food Products Liability Litigation, 629 F.3d 333 (3d Cir. 2010). This lengthy opinion affirms the certification of a settlement class but reverses the approval of the settlement in one relatively limited respect. [Disclosure: My firm, Lite DePalma Greenberg, LLC, is among the counsel for the plaintiffs].
A concurring opinion by Judge Weis, however, questions a different provision of the settlement. That provision directs that if there are any unclaimed settlement funds at the end of the claims process, those funds are to be donated to animal welfare groups in the United States and Canada. Noting that cy pres is derived from the doctrine in estate law of attempting to match as closely as possible the testator’s intent if monies could not be distributed precisely in compliance with the testator’s wishes, Judge Weis observed that neither class members nor class counsel had any charitable intent in the lawsuit. Judge Weis urged that any unclaimed funds either be distributed to class members or, if that were infeasible, escheat to the government.
The issue of cy pres distributions in class actions has begun to be discussed with increasing frequency. The views of Judge Weis did not command a majority. But his opinion is sure to lead to more scrutiny of cy pres distributions in class action cases.