Class Action Cy Près Revisited
Abstract
This symposium article revisits the use of the cy-près doctrine in class action litigation, exploring its historical origins, modern application, and economic implications. It traces cy près from its charitable trust roots to its controversial adoption in class action settlements as a solution for unclaimed award funds. The article highlights how cy-près distributions often prioritize judicial convenience over economic efficiency and fail to adequately address compensation for absent class members. By examining the doctrine’s legal and economic tradeoffs, the article critiques the use of cy près as playing a role in undermining deterrence and fairness in class action litigation. Ultimately, it advocates for an alternative: escheating unclaimed funds to the state under specific conditions to achieve deterrence, indirect compensation, and broader public benefit. This approach offers a more economically sound and equitable solution to the challenges posed by unclaimed class action awards.