September 24, 2013 Articles

Conference Session Recap: Mass Torts Settlement

By Bonnie Mayfield

During the Litigation Section's Annual Conference, a select panel presented "Disaster Averted, Mass Tort Resolved—Settling Mass Tort Disaster Cases." The panel covered many key mass torts issues, including cy pres. This doctrine, evoked when literal compliance is impossible, derives its name from English law and was originally a borrowing from the Norman-French "cy près comme possible," as close as possible.

Cy Pres Awards in Mass Tort Settlement

As the panel noted, the distribution of unclaimed settlement funds under the cy pres doctrine is important in the mass tort context. Panelist Adam Levitt of Grant & Eisenhofer called the group's attention to the Third Circuit's recent limit on cy pres distributions in In re Baby Products Antitrust Litigation, 708 F.3d 163, 174 (3rd Cir. 2013). The court noted that "[b]arring sufficient justification," cy pres distributions "should generally represent a small percentage of total settlement funds." Levitt believes that a problem with cy pres distributions has been that "cy pres, which should be viewed, when possible, as a secondary, rather than a primary option, has too often become the proposed relief of first resort. Coupling that with courts' increasing demand to link proposed cy pres recipients to the interests of the settlement class members presents several traps to plaintiffs' lawyers trying to get settlements approved."

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