Saving Charitable Settlements

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements.

This defense is particularly timely, as charitable settlements face growing attacks spurred by Chief Justice Roberts's comments in the 2014 Marek v. Lane appeal. Once unchained from the strictures of the cy pres doctrine, charitable settlements become a tool to promote the larger regulatory objectives underlying class action procedures, including access to justice and deterrence.