A Florida bill allowing unclaimed class-action settlement funds to go to legal aid groups and other nonprofits sailed through a House panel earlier this month but likely won’t be passed in the current legislative session.
The author of HB 409, Rep. Anna Eskamani (D-Orlando), said she is hopeful the legislation would pass next year, since Friday is the last day of the state’s current session. On April 9, the House Public Integrity and Elections Subcommittee passed the bill on a 13-2 vote.
The bill would apply the common law doctrine of cy pres to civil litigation. Cy pres allows for the redistribution of unclaimed legal settlement funds to go to the next best recipient, according to the legislature’s legal analysis of the bill. Florida law currently specifies the use of the cy pres doctrine only in cases involving trusts and wills.
Critics of the bill, however, have expressed concern that having the doctrine in place for class actions could encourage trial attorneys to create a larger class to obtain a larger share of the settlement or cause judges to be less impartial in such civil actions.
William Large, president of the Florida Justice Reform Institute, has argued against the bill, saying that judges could potentially be unconsciously influenced by unclaimed funds going toward a favorable cause, such as the judge's law school, according to reporting by the Florida Bar.
He also said that litigation is supposed to make an injured party whole, while cy pres awards unfairly bring in third parties that stand to benefit from the litigation
“The whole point of our civil justice system is there is a case in controversy and the plaintiff should be made whole, that’s who the party dollars should be going to," the report quoted Large as saying. "It shouldn’t be going to the state, it shouldn’t be going to a charity.”
Eskamani said the cy pres doctrine is one of the "oldest doctrines in common law."
“And the Florida Bar Foundation has been actively searching for opportunities to fund themselves and other nonprofits in the private sector because the legislature hasn't allocated a dedicated source of funding for legal aid," she told the Florida Record.
Efforts by legal aid groups to provide attorney representation to lower-income citizens in civil actions, such as evictions and domestic violence cases, have become more visible during the coronavirus pandemic, she said.
“"Civil legal aid really became an essential resource for us and our constituents,” Eskamani said, adding that Florida’s legal aid organizations have been overworked and underpaid.
The legislature took up the issue in the wake of the state Supreme Court in 2019 opting not to put in place a rule allowing cy pres in civil litigation.
Eskamani rejects the arguments that have been made against HB 409, arguing that no evidence has been presented that the reform would lead to an expansion of class-action litigation. More than 20 states have codified the cy pres doctrine in civil litigation, she said.
“Florida judges are becoming much more conservative,” Eskamani said, noting that some of them will not opt to apply cy pres in class actions unless it’s written into state law.