The Florida Bar Foundation has received a $21,406 cy pres award from a settlement in a case involving fees charged by payday loan companies.
Two cases were consolidated for the settlement that resulted in the cy pres award. The cases arose from the class representatives’ firm belief many years ago that the fees charged by payday loan companies, entities that would hold a customer’s check for a short period of time – usually two weeks – in exchange for a fee, were actually usurious interest charges.
Class counsel began working with the class representatives in 1998 and the final hearing before Judge Cymonie Rowe of the 15th Judicial Circuit approving the cy pres award occurred more than 20 years later in July 2019. The two cases were before the Florida Supreme Court six times and the Fourth District Court of Appeal nine times. Other Florida payday loan cases prosecuted by class counsel were also the subject of several appeals, one of which was heard by the United States Supreme Court.
Ultimately, the settlement class members who filed claims were reimbursed approximately 2.7 times the amount of fees they were charged, with amounts ranging from hundreds to thousands of dollars. Class counsel and their staff, particularly paralegal Julie Boyd of the Richard Fisher Law Office, made every effort to locate and distribute money to class members using two-decades-old information.
“We hope this cy pres helps those in similar financial situations as our class members to gain access to the legal representation they deserve, but often cannot afford,” Clay Yates said. “We are pleased the unclaimed funds will go to assist the good work of The Florida Bar Foundation and its grantees.”
Class counsel for the case were E. Clayton Yates of Fee, Yates & Fee, PLLC, in Ft. Pierce; Diana Martin and Theodore J. Leopold of Cohen Milstein Sellers & Toll, PLLC, in Palm Beach Gardens; Sean Estes of Hoyer Law Group, PLLC, in Tampa; F. Paul Bland Jr. of Public Justice in Washington, D.C.; and Richard A. Fisher of Richard Fisher Law Office in Tennessee.
The term cy pres comes from the French, “cy près comme possible,” meaning “as near as possible.” The doctrine often is applied in class action cases where full restitution to all injured parties is impossible or infeasible because of the passage of time and inability to locate or hear from all class members. The doctrine is also used frequently in probate matters when gifts fail.
Under cy pres, courts can approve a charitable donation out of unclaimed class action funds or a direct grant in lieu of damages to an organization that could vindicate class member rights in the future. Cy pres awards prevent a windfall for the defendant while serving to deter future violations.
The Florida Bar Foundation encourages class action counsel and litigants to address and make provisions for possible cy pres awards during the settlement phase of litigation rather than afterward. This allows the parties more control over the possibility of unclaimed funds and lessens the burden on the Court.
“We are tremendously thankful that lawyers and judges continue to recognize the positive and significant impact that cy pres awards can have for Floridians when the funds are used by The Florida Bar Foundation,” Florida Bar Foundation President Hala A. Sandridge said.