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July 13, 1999


The opinion of the court was delivered by: Motley, District Judge.


Having completed distribution to claimants from a securities fraud class action settlement fund, class counsel now move for an order authorizing a charitable donation of the unclaimed class funds to The Legal Aid Society Civil Division. For the reasons given below, the court grants the motion and authorizes the proposed donation.

I. Background: Creation and Distribution of Settlement Fund

This case began as a class action on behalf of 17,198 shareholders of Almaden Vineyards, Inc., a subsidiary of National Distillers. The case was certified to proceed as a class action by a consent order of this court dated January 6, 1978. On December 7, 1979, the parties reached a stipulation of settlement, which this court approved by a final order and judgment dated February 19, 1980. The settlement created a fund to be divided among all eligible claimants. On June 12, 1980, this court ordered approval of the administrative determinations of Laventhol & Horwath, a certified public accounting firm retained to process, approve, and reject submitted claims.

The settlement fund was distributed to qualified claimants, after payments from the fund to class counsel and to Laventhol & Horwath. Bauer Aff. ¶ 2. A number of the checks mailed to qualified claimants were returned undeliverable or were simply never deposited. Id. ¶ 3. Class counsel report that they and Laventhol & Horwath undertook efforts to locate missing class members and to encourage claimants to cash their checks. Id. ¶ 3. Although they "did locate a number of those persons," there remains roughly $18,400.80 in the settlement fund for which no claimant could be located. Id. ¶ 3. They assert that "[t]here is nothing further that can be done, on an economical basis, to either locate the claimants or encourage them to cash their checks." Pl.'s Mem. at 2

Class counsel propose a charitable donation of the remaining $18,400.80 in class funds to The Legal Aid Society Civil Division. Bauer Aff. ¶ 4. The Legal Aid Society describes itself as a "private non-profit law firm[] dedicated to eliminating injustice by extending equal protection of the law and providing free, quality legal services to those who cannot afford an attorney." Id., Ex. at 10. Both a full-time staff and pro bono volunteers provide their legal services. Id., Ex. at 3-4. The Civil Division, the Society's oldest component, includes units such as "Civil Appeals and Law Reform, Homeless Rights, Immigration, Family Law and Consumer Law." Id., Ex. at 4. It provides "comprehensive legal services" to clients who include "victims of domestic violence, unemployed workers, disabled persons, senior citizens, homeless children and their families, families and individuals facing eviction, indigent immigrants and persons with AIDS." Id., Ex. at 3-4. Only those with incomes below specified limits, based on family size, may be clients. Id., Ex. at 10.

II. Distribution of Unclaimed Class Funds

The problem of distributing a common fund among class members, some of whom cannot be found, is typical. "Despite best efforts[,] . . . it remains virtually certain — especially when large classes are involved — that not all class members will share in an aggregate class recovery. This situation may or may not result in a residue remaining after individual claim distribution." Newberg on Class Actions § 10.14, at 10-36 (3d ed. 1992). While class counsel and class fund administrators have a duty to try to find missing class members, they need not continue searching forever for those who have "followed Judge Crater into the mists of the unknown." In re Fairbanks, 135 B.R. 717, 718 (Bankr. D.N.H. 1991).*fn1 After 20 years' wait for class members who could not be found, "the court will have to make a determination about the distribution of the surplus," applying traditional principles to the case context. Newberg on Class Actions § 10.15, at 10-38.

A. Cy Pres or Fluid Recovery Distributions Outside the Class

With 17,198 class members, the postage and administrative costs of distributing $18,400.80 to all qualified claimants would be prohibitive and the amount per recipient would be negligible. Where distribution of class funds to class members is infeasible, courts often use cy pres principles to determine an appropriate use for the funds.

  The cy pres approach . . . puts the unclaimed fund to
  its next best compensation use, e.g., for the
  aggregate, indirect, prospective benefit of the class
  (aggregate cy pres distribution). In such an event,
  the funds are usually paid to a third party . . . for
  designated purposes. Alternatively, . . .
  undistributed class funds may be used for the
  prospective benefit of individual class members and
  others similarly situated, e.g., future class
  members who engage in future transactions of the
  type involved in the class litigation (price
  reduction or market distribution).

Id. § 10.17, at 10-41 - 10-42. The Second Circuit has cautioned, however, against a "fluid recovery" scheme that creates a class fund but deviates too much from principled individual damage calculations and pro rata distributions to class members. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), rejected an anticipated distribution to a small fraction of the class and to various non-class recipients because "the amounts payable to individual claimants would be so low as to be negligible." Id. at 1017.

The Second Circuit has noted, however, that Eisen does not forbid all fluid recoveries based on cy pres principles; it only cautions against going to excess in creating class funds that do not meaningfully benefit the class as a whole. See In re "Agent Orange" Product Liability Litigation, 818 F.2d 179, 185 (2d Cir. 1987) (so distinguishing Eisen and approving class settlement distributing significant funds outside the class). Distributing class funds outside the class is permissible where the funds "primarily" benefit class members, id., especially where the non-class distribution is not an initial purpose of the fund, but only an eventual way to dispose of the unclaimed portion, see, e.g., Nelson v. Greater Gadsden Hous. Auth., 802 F.2d 405 (11th Cir. 1986) (allowing, in tenant class action, use of unclaimed damages for various improvements to building). More broadly, Agent Orange noted that in supervising class funds, "a district court may `provide[] broader relief [in an action that is resolved before trial] than the court could have awarded after a trial.' Indeed, we have previously recognized that some `fluidity' is permissible in the distribution of settlement proceeds." 818 F.2d at 185 (alteration in original) (citations omitted).

Here, the distribution is only of the residue of a fund that was used primarily for a pro rata distribution to all qualified claimants. Distribution of that fund residue outside the class thus is entirely proper, so long as the choice of recipient is appropriate under the circumstances. See, e.g., West Va. v. Chas. Pfizer & Co., 314 F. Supp. 710 (S.D.N Y 1970), aff'd, 440 F.2d 1079 (2d Cir. 1971) (approving, in antitrust action against pharmaceutical ...

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