by Nancy Kinnally
Then-Florida Bar Foundation President Adele I. Stone recognized Tampa attorney John Yanchunis with the 2010 President’s Award for Excellence for his work directing cy pres awards to the Foundation and encouraging others to do the same.
Thanks to Yanchunis, a settlement that could have meant a few pennies to nearly 8 million people instead provided access to justice for hundreds of Floridians who otherwise might have languished in substandard housing, abusive relationships or unsafe working conditions.
Those are just a few of the situations legal aid attorneys confront on behalf of their clients every day in Florida, and the $295,000 cy pres award Yanchunis secured for the Foundation in August 2008 has gone a long way toward supporting the work of those who represent the state’s most vulnerable citizens.
As class counsel in a suit involving tiny overcharges applied to a large class of consumers, Yanchunis recommended The Florida Bar Foundation as the recipient of the settlement, given the impracticality of locating all the members of the class and refunding them what would have amounted to less than 4 cents each.
“Since the injury arose from a consumer class action, and The Florida Bar Foundation has as its charge the funding of legal services for people who can’t afford it, I thought it would be the closest connection to the way in which the injury to the class arose,” Yanchunis said.
Both the defense counsel and the judge presiding in the case agreed, and when all was said and done, Yanchunis, a senior partner with James, Hoyer, Newcomer, Smiljanich & Yanchunis, was the subject of a barrage of appreciative e-mails from Bar Foundation board members all over the state.
“Countless families will silently bless him for his endeavors,” wrote board member Roberto Pardo of Miami. “We are all better people for knowing him and his philanthropic heart.”
The term cy pres comes from the French, “cy pres comme possible,” meaning “as near as possible,” and the doctrine is often applied in class action cases in which full restitution to all injured parties is either impossible or infeasible, such as when the amount of damage per person is insignificant even though the aggregate damages are large. It can also be employed in probate matters when gifts fail, or in the area of charitable trusts.
Under cy pres, the 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. In practice, cy pres prevents a windfall to the defendant while serving to deter future violations.
The Florida Bar Foundation has been the recipient of other cy pres awards. Florida Bar past President Tod Aronovitz of Miami directed two cy pres awards to the Foundation. Those cases involved the overbilling of consumers and wrongful business practices.
Aronovitz believes there is an obvious connection between the members of consumer class actions and the people served by the foundation.
“In approving a final settlement, courts examine whether the cy pres award is fair and reasonable and if the recipient is appropriate for the award,” Aronovitz said. “In many consumer class action cases, the class of consumers is typical of the underprivileged Floridians who receive Florida Bar Foundation[-funded] legal assistance.
“It’s a natural marriage. There are so many attorneys in Florida who know and understand the great work of The Florida Bar Foundation. And it’s hard to find an attorney in Florida who doesn’t think that The Florida Bar Foundation is the premiere organization that funds programs and protects the rights of underprivileged Floridians who need legal services.”
Yanchunis is now helping the Foundation develop a program to raise awareness of the Foundation as a potential recipient of cy pres awards.
