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September 1, 2008
Foundation benefits from cy pres award

By Nancy Kinnally
Special to the News

A settlement that could have meant a few pennies to nearly eight million people instead will mean a shot at justice for hundreds of Floridians who otherwise might have languished in substandard housing, abusive relationships, or unsafe working conditions.

 John Yanchunis Those are just a few of the situations legal aid attorneys confront on behalf of their clients every day in Florida, and a $295,000 cy pres award secured for The Florida Bar Foundation August 12 by Tampa attorney John Yanchunis will go 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 and Smiljanich, 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 recent cy pres award is not the first for The Florida Bar Foundation. 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.”

Miami attorney Alan Greer frequently represents the defense in class action suits. While he believes cy pres is a good concept, he cautions that attorneys have to walk a fine line to ensure that it is not attacked as a vehicle to fund something other than the members of the injured class.

“Having said that, when you have money that you don’t know what to do with, having it go to something like The Florida Bar Foundation where it can do real good is a wonderful idea, as opposed to having it go back by default into a government treasury or just sit there unclaimed.”

Greer said defendants, who are after all the ones whose money is going out, will want to have a say in where it goes.

Tampa attorney Kathleen McLeroy, president of The Florida Bar Foundation, said the foundation has some flexibility in the way it uses cy pres awards.

“The foundation is willing to explore opportunities to tailor cy pres awards to the groups, populations, or geographic areas most closely associated with a class action,” McLeroy said. “Our grantees address the needs of a wide array of Florida citizens and consumers. In addition to traditional legal aid, the foundation funds projects designed to strengthen the administration of justice for children as well as adults, which can include ensuring consumer protections.”

Nancy Kinnally is the director of communications for The Florida Bar Foundation and may be reached by calling (407) 843-0045, ext. 103 or via e-mail at [email protected]

[Revised: 11-16-2018]