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Cy Près Awards
Cy Près: Advancing Legal Services to the Poor
The term cy près derives from the French term “cy près comme possible,” meaning “as near as possible.” The concept, rooted in trust and estate law, allows for the distribution of residual damage awards in class action lawsuits where it is not possible to determine each class member’s actual damages or a class member does not claim the portion of an award otherwise due them. Under the cy près doctrine, courts may order residual funds to be put to the “next best compensation use, for the aggregate, indirect, prospective benefit of the class.” H.B. Newberg & A. Conte, Newberg on Class Actions § 10.17 (3d ed. 1992).
In many cases, cy près awards are made pursuant to the recommendation or agreement of counsel for both parties. Decisions about residual funds can be made by the court during the class action settlement approval process, or when the case is decided and the fund is established, or when the residual funds actually become available.
Courts in Connecticut and across the country have found legal services programs and non-profit organizations, such as the Connecticut Bar Foundation, to be appropriate recipients of cy près awards. See, e.g., Sokoloski v. Stewart Title Guar. Co., No. 3:08-cv-236, Dkt. #61 (D. Conn. Oct. 18, 2010); In re UCAR Int’l, Inc. Secs. Litig., No. 3:98-cv-600, Dkt. #103 (D. Conn. Dec. 7, 2009); In re Publication Paper Antitrust Litigation, No. 3:04 MD 1631, Dkt. #498 (D. Conn. Nov. 16, 2009); In re Polychloroprene Antitrust Litigation, No. 3:05 MD 1642, Dkt. #370 (D. Conn. Aug. 24, 2009).
Also, the Connecticut Bar Association has adopted the following resolution regarding the distribution of residual funds from class action settlements to the Connecticut Bar Foundation:
Resolution re: Residue of Class Action Settlements
WHEREAS, the Connecticut Bar Association has been and remains a strong supporter of those organizations that provide legal services to the poor, and has championed their cause wherever appropriate;
WHEREAS, the Connecticut Bar Association has been and remains a strong supporter of the Connecticut Bar Foundation and its efforts to fund those organizations that provide legal services to the poor;
NOW THEREFORE, the Connecticut Bar Association respectfully requests that Connecticut’s state and federal courts direct any residue remaining in class action settlements to the Connecticut Bar Foundation for the purpose of providing legal services to the poor.
CBA Resolution re: Residue of Class Action Settlements (approved by CBA Board of Governors December 2010).
Consider the Connecticut Bar Foundation
Especially during a time when legal services organizations are in desperate need of funding, a cy près award can make an enormous difference in our state’s legal services organizations’ ability to advocate on behalf of Connecticut’s vulnerable and low-income residents.
Should you have the opportunity, please consider directing or recommending a cy près award to the Connecticut Bar Foundation. If you would like to discuss that possibility, please call Don Philips, Executive Director of the Foundation, at 860-722-2494 or email ctbf [at] cbf-1 [dot] org. We can also provide you with sample settlement language in support of designating a cy près award to the Connecticut Bar Foundation or other assistance you may need to support such an award.