Cy Pres Awards harm class they are supposed to help

["Dave Farber" <farber () gmail com>]

> Begin forwarded message:
>
> From: Brett Glass <brett () lariat net>
> Subject: For IP: Cy Pres Awards harm class they are supposed to help
> Date: July 18, 2018 at 1:41:40 AM GMT+9
> To: "dave () farber net" <dave () farber net>
>
> [Typo fixed]
>
> Dave, and everyone:
>
> This Amicus Curiae brief, recently submitted to the Supreme Court in support of a petition for certiorari, is an 
> excellent exposition of the concerns related to "cy pres" awards in class actions... in particular, concerns that the 
> awards are given to groups that serve the defendants and therefore actually further the practices for which the 
> defendants are being penalized. This is a topic that has recently come up on the IP list and is becoming increasingly 
> relevant.
>
> --Brett Glass
>
> ---
>
> On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
>
> BRIEF OF AMICI CURIAE DAVID LOWREY, RAYMOND J. PEPPERELL, BLAKE MORGAN, AND GUY FORSYTH IN SUPPORT OF PETITIONERS
>
> [Front matter omitted]
>
> Amici respectfully submit this brief to alert the Court to the fact that cy pres awards can, at times, harm rather 
> than benefit members of a class. For example, in this settlement and others involving Google and Facebook, defendants 
> and class counsel have agreed to direct cy pres awards to organizations that lobby with defendants against the 
> copyright interests of those class members who are in the artist community. Roger Parloff, Google and Facebook’s New 
> Tactic in the Tech Wars, Fortune (July 30, 2012) (noting criticism in Google Buzz case that cy pres awards were 
> steered to organizations otherwise paid by Google to lobby or consult for the company); Kenneth P. Vogel, Google 
> Critic Ousted From Think Tank Funded by the Tech Giant, N.Y. Times (Aug. 30, 2017).
>
> SUMMARY OF ARGUMENT
>
> For over thirty years, courts have been directed to conduct a “rigorous analysis” to ensure that the contours of Rule 
> 23 are satisfied when managing class action lawsuits. See, e.g., Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 
> 161 (1982). But when it comes to approving or selecting cy pres recipients, this mandate has largely fallen on deaf 
> ears. Far too often, courts rubberstamp class counsels’ and the defendant’s selection of cy pres recipients after 
> conducting nothing more than a cursory review.
>
> This lack of diligent court oversight deprives class members of the opportunity to obtain the benefit of a “next 
> best” distribution. It also results in funds being distributed to organizations with interests adverse to portions of 
> the harmed class as well as organizations that are friendly with and will advance the interests of the defendant.
>
> For the full brief, see
>
> https://www.supremecourt.gov/DocketPDF/17/17-961/54334/20180716142956091 
> _17-961%20tsac%20David%20Lowrey%20et%20al.--PDFA.pdf  
> <https://www.supremecourt.gov/DocketPDF/17/17-961/54334/20180716142956091_17-961%20tsac%20David%20Lowrey%20et%20al.--PDFA.pdf>




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