In some class actions for damages, it is impossible to get the money recovered from the defendant to some or all of the class members. They can’t be identified or found, they may be dead, or the cost of getting it to them — say, $1 each to 5 million class members — may be prohibitive. For 40 years, the courts have held that, in these circumstances, the money can be given to appropriate others as cy pres awards to benefit those class members indirectly and advance the goals of the case. The name comes from the French term “cy pres comme possible,” meaning “as near as possible.”
In recent years, however, improper cy pres awards have raised questions about this practice. Class action critics and defendants who want the money back have even claimed that cy pres awards are inherently illegal or unconstitutional. One particularly egregious award prompted Chief Justice John Roberts to write, joining the U.S. Supreme Court’s decision not to review the class action against Facebook Inc. in Marek v. Lane, “This court may need to clarify the limits on the use of such remedies.”
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