Cullinane et al v. Uber Technologies, Inc.

Filing 173

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered REGARDING CY PRES DISTRIBUTION of Funds(Woodlock, Douglas)

Case 1:14-cv-14750-DPW Document 173 Filed 09/19/23 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RACHEL CULLINANE, JACQUELINE NUNUZ,
ELIZABETH SCHAUL and ROSS MCDONAGH,
on behalf of themselves and others
similarly situated,
v.

Plaintiffs,

UBER TECHNOLOGIES, INC.,
Defendant.

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CIVIL ACTION
NO. 14-14750-DPW

MEMORANDUM AND ORDER
REGARDING
CY PRES DISTRIBUTION
Upon the completion of Second Phase Settlement Distribution
Payments, pursuant to this Court’s Order [ECF #170], the
Settlement Administrator filed her Final Report on Distribution
[ECF #172] on August 17, 2023, stating a total amount of
$46,283.87 remained in the Settlement Fund as unclaimed.

At

this point, it does not appear appropriate to undertake yet
another phase of distribution payments.
After hearing further from the parties and the Settlement
Administrator on February 7, 2023, at which time the Second
Phase Settlement Distribution was authorized, and thereafter
upon review of the Settlement Administrator’s resultant Final
Report, I am satisfied that further distributions would not be
sufficiently large to make them economically viable, that a

Case 1:14-cv-14750-DPW Document 173 Filed 09/19/23 Page 2 of 4

meaningful further distribution phase would be all but
impossible as a practical matter and that accordingly its
execution would be unfair.
I have considered the parties’ proposal, developed over
extended consideration of the distribution process for this
case. They offer two alternative recipients of a cy pres award:
“the U.S. Department of the Treasury or the RIDE Program of the
Massachusetts Bay Transportation Authority”.

I conclude that

between them only the General Treasury of the United States can
properly be approved as a recipient of the remaining funds in
Settlement Account.

In making this determination I have, of

course, been guided by the principles enunciated by the First
Circuit in In re Lupron Mktg & Sales Practices Litig., 677 F.3d
21 (1st Cir. 2012).

But there has not been proposed and I am

not aware of any potential recipient that has a closer fit with
financing implementation of class action procedures after
reasonable efforts to deliver appropriate relief to class
members have as a meaningful and practical matter been
exhausted.

Cf. In re Pet Food Prod. Liab. Litig., 629 F.3d 333,

363 (3d Cir. 2010) (Weis, J, concurring and dissenting).
I am not prepared to embrace the more fundamental critique
of cy pres distributions found in certain case law and
commentary. See, e.g. In re Thornburg Mortg., Inc. Sec. Litig.,
2

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885 F. Supp 2d. 1097 (D.N.M. 2012); Martin H. Redish et al., Cy
Pres Relief and the Pathologies of the Modern Class Action: A
Normative and Empirical Analysis, 62 Fla. L Rev. 617, 642
(2010).

Nevertheless, Judge Hornsby’s statement of reservations

about the judicial role in making charitable donations seems
useful cautionary advice.
Federal judges are not generally equipped to be
charitable foundations: we are not accountable to boards
or members for funding decisions we make; we are not
accustomed to deciding whether certain nonprofit
entities are more “deserving” of limited funds than
others; and we do not have the institutional resources
and competencies to monitor that “grantees” abide by the
conditions we or the settlement agreements set.
In re Compact Disc Minimum Advertised Price Antitrust
Litig., 236 F.R.D. 48, 63 (D. Me. 2006).
Of course, if the approved government recipient were
designated specifically to provide support only for the federal
court accounts in the General Treasury, there might be some real
or perceived perverse incentives in recipient choice by federal
judges.

But remitting unclaimed settlement monies to the

General Treasury that through Congressional direction allocates
funds more broadly for a variety of federal operations beyond
judicial operations generally and the class action process in
particular does not present that problem.
By contrast payment to an agency of a separate sovereign
such as the Massachusetts Bay Transportation Authority raises
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Case 1:14-cv-14750-DPW Document 173 Filed 09/19/23 Page 4 of 4

separate questions, not least of which is the propriety and
likely unfairness of having a federal judge make a
disproportionate award to an entity which already has the
presumptive right to participate as a class member, should it
have standing.

Otherwise, the separate sovereign would simply

be the recipient of a windfall to a government that had not
otherwise chosen to allocate monies equal to the windfall to one
of the programs it had designed.
Consequently, it is hereby ORDERED that no further
distribution be made to class members;
IT IS FURTHER ORDERED that any remaining funds in the
Settlement Fund shall be remitted (in the nature of cy pres)
forthwith to the U.S. Department of the Treasury; and,
IT IS FURTHER ORDERED that that the Settlement
Administrator shall provide an affidavit or declaration stating
the funds have been remitted to the U.S. Department of Treasury
and shall promptly file a copy of a receipt therefor from the
U.S. Department of Treasury.

DATED:

September 19, 2023

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
United States District Judge

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