SJ Dupont Plaza Fire, et al v. MDL-721, et al

Filing 19524

ORDER NO. 749 In the Matter of Final Disposition of Unclaimed Funds. Signed by Judge Raymond L. Acosta on 12/31/09. (Attachments: # 1 Exhibit Animal Legal Defense Letter)(ans)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IN RE:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

MASTER FILE MDL-721 Civil No. 87-0006 (RLA)

SAN JUAN DUPONT PLAZA HOTEL FIRE LITIGATION

ORDER NO. 749 IN THE MATTER OF FINAL DISPOSITION OF UNCLAIMED FUNDS After twenty years since the final distribution was effected in these proceedings, the time has come for the Court to dispose of the settlement funds that have gone unclaimed in this litigation. These

funds are derived from several prior settlement fund distributions carried out by the Court during the past 18 years,1 which have remained unclaimed despite numerous efforts by the Court and counsel to identify corresponding plaintiff recipients.2

See, e.g., Order No. 346, In the Matter of the First Distribution of the Settlement Award (docket No. 17022); Order No. 348, In the Matter of Clarification of Order No. 346 (docket No. 17046); Order No. 364, Approving Distribution Reports and Ordering Distribution of Plaintiffs' Awards... (docket No. 17178); Order No. 685, Approving PSC Report of Reserve Accounts and Order for Final Distribution (docket No. 19414). See Order No. 743 Authorizing Publication of Notice Regarding Unclaimed Funds (docket No. 19512). See also, Order No. 680, In the Matter of Missing Plaintiffs (docket No. 19409); Order No. 671, In the Matter of Newspaper Ads to Locate Missing Plaintiffs (docket No. 19388), Order No. 647 In the Matter of Settlement Distribution Confirmation Forms (docket No. 19323).
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It is not uncommon at the conclusion of a mass tort litigation 3 action to have funds leftover, which, for a number of reasons, cannot 4 be 5 plaintiffs 6 instances, the responsibility falls on the Court to direct the 7 disposition of these funds. 8 In ordering distribution of unclaimed funds, the courts rely on 9 their general equity power or on what is commonly referred to as the 10 cy pres doctrine. 11 "The cy pres doctrine originated in the common law as a method 12 of fairly distributing a trust fund, the original purpose of which 13 failed in some respect. The term cy pres derived from the Norman 14 French 15 possible.' 16 purpose fails, the fund is to be distributed to the `next best' use." 17 Kevin M. Forde, What Can a Court Do With Leftover Class Action Funds? 18 Almost Anything! 35 No. 3 Judges' J.19 (1996) (internal citations 19 omitted). 20 Courts have claimed broad discretion in determining how to 21 satisfy the "next best" use criteria. Id. Indeed, federal and state 22 courts have distributed unclaimed funds to educational institutions 23 or 24 25 26 charities, legal assistance foundations, law schools, law Under the cy pres doctrine, once a trust fund's original term `cy pres comme possible' which means `as near as or their heirs simply cannot be located. In such distributed to the parties entitled to them because these

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MDL-721 libraries, as well as

ORDER NO. 749 public awareness and

Page 3 environmental law

3 programs.3 4 Although 5 possibility 6 government as unclaimed property, some courts, faced with analogous 7 situations, have found escheat laws inapposite, and concluded that 8 courts of equity may dispose of funds in a fair manner without being 9 compelled to utilize the federal statutes. 10 Boeing Co., 739 F.2d 730, 735 (2d Cir. 1984). 11 explained: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A comprehensive list of the various and mixed disposition of unclaimed trust funds can be found in Forde, supra at 21 to 23.
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the

prospect these

of

undistributed should

funds to

raises the

the

that

monies

"escheat"

federal

See, e.g.

Van Gemert v.

The Van Gemert court

We hold that [28 U.S.C.] § 2041 does not limit the discretion of the district court to control the unclaimed portion of a class action judgment fund. Whether the money has been paid into the court or whether an alternative method of administering payment is used, the money held is within this court's jurisdiction and subject to the court's order... The statutes referred to do not control when a court fashions a plan for distributing unclaimed funds. The Van Gemert factor... court is further trial noted that are "the critical broad

determining

that

courts

given

discretionary powers in shaping equitable decrees. Equitable remedies are a special blend of what is necessary, what is fair, and what is workable." Id. at 737 (Citations, quotation marks and brackets omitted). Another cy pres method of distributing excess funds calls for their disposition by judicial resolution, after application and

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suggestions to the court by interested persons or parties, allowing 3 thereby for the creation of a flexible, equitable remedy. This method 4 allows 5 administering and distributing the trust funds once it is clear that 6 the original purposes of the fund cannot be realistically achieved. 7 This is what we propose to do today. 8 It is perfectly plain to the Court that since the Dupont fire 9 took place in 1987, it would be impossible, as a practical matter, 10 to track down all the plaintiffs and attempt to make some sort of pro 11 rata distribution of the excess funds, since the costs entailed 12 would consume a substantial quantity of the monies. On the other 13 hand, 14 charitable organizations, including those devoted to improvements in 15 the administration of justice, provides a flexible, equitable remedy. 16 Thus, we conclude that, while use of funds for purposes closely 17 related to their origin might be the best application, the cy pres 18 doctrine and the courts' broad equitable powers now permit use of 19 these funds for other public interest purposes by either educational, 20 charitable, or other public service organizations, both for current 21 programs or to constitute an endowment and source of future income 22 for long-range programs. 23 of having endowment income to supplement current contributions to 24 25 26 The court is fully aware of the advantages providing disbursement of the residual monies to established the court to avoid the high costs associated with

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finance charitable operations.4 3 4 Fund.5 5

We have before us a submission and

application from such an organization, the Animal Legal Defense

Because the Court believes the monies could be used for a truly 6 worthy cause rather than continue to lie fallow, the Court hereby 7 APPROVES a cy pres distribution of the funds remaining unclaimed as 8 of date to the Animal Legal Defense Fund, a charitable organization, 9 to continue its work of protecting the lives and advancing the 10 interests of animals through the legal system by focusing on the 11 following organizational goals: 12 · 13 enforcement handling cruelty cases; 14 · 15 state, territorial and local level; 16 · 17 resources, and other outreach efforts; 18 · 19 student animal law chapters, and coordinating scholarships, 20 clerking and internship and grant opportunities for law 21 students 22 23 24 25
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providing

pro

bono

assistance

to

prosecutors

and

law

working to strengthen anti-cruelty laws at the federal,

providing public education though seminars, workshops,

promoting and encouraging the future of animal law through

and legal professionals alike;

See Superior Beverage Co. V. Owens-Illinois, Inc., 827 F.Supp. 477, 479-80 (N.D. Ill. 1993). See letter dated August 13, 2009, attached hereto as Exhibit A.

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filing groundbreaking lawsuits to stop animal abuse and expand the boundaries of animal law.

3 4 Based on the foregoing, and since the parties to this action 5 have received proper notice through Order No. 743, issued on July 28, 6 2009 (docket No. 19512), the Clerk of the Court is hereby directed 7 to issue a check in the amount of $126,977.49, corresponding to the 8 total of the unclaimed funds in this case, to the Animal Legal 9 Defense Fund and mail it to their address: 170 East Cotati Avenue, 10 Cotati, California 94931, accompanied with a copy of this Order and 11 a written acknowledgment to be signed by its Chairperson or Executive 12 Director. 13 and filed with the Court no later than February 10, 2010. Acceptance 14 of the distribution shall constitute an undertaking by the Animal 15 Legal Defense Fund to use the funds in the manner proposed to the 16 Court and summarized in this Order.6 17 IT IS SO ORDERED. 18 San Juan, Puerto Rico, this 31st day of December, 2009. 19 20 21 22 23 24 25 26 See generally, In re: Motorsports Merch. Antitrust Litig. 161 F.Supp.2d 1329 (N.D. Ga. 2000) (cy pres distribution of excess funds made to several charities, including Make-a-Wish Foundation; the Red Cross; the Lawyers' Foundation of Georgia; Kids' Chance; and the Susan G. Komen Breast Cancer Foundation, among others).
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The duly signed written acknowledgment is to be returned

S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge