Cullinane v. Uber Technologies, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RACHEL CULLINANE, JACQUELINE NUNUZ, )

ELIZABETH SCHAUL and ROSS MCDONAGH, )

on behalf of themselves and others ) CIVIL ACTION

similarly situated, ) NO. 14-14750-DPW

)

Plaintiffs, )

v. )

)

UBER TECHNOLOGIES, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

REGARDING

CY PRES DISTRIBUTION

Upon the completion of Second Phase Settlement Distribution

Payments, pursuant to this Court’s Order [ECF #170], the

Settlement Administrator filed her Final Report on Distribution

[ECF #172] on August 17, 2023, stating a total amount of

$46,283.87 remained in the Settlement Fund as unclaimed. At

this point, it does not appear appropriate to undertake yet

another phase of distribution payments.

After hearing further from the parties and the Settlement

Administrator on February 7, 2023, at which time the Second

Phase Settlement Distribution was authorized, and thereafter

upon review of the Settlement Administrator’s resultant Final

Report, I am satisfied that further distributions would not be

sufficiently large to make them economically viable, that a

meaningful further distribution phase would be all but

impossible as a practical matter and that accordingly its

execution would be unfair.

I have considered the parties’ proposal, developed over

extended consideration of the distribution process for this

case. They offer two alternative recipients of a cy pres award:

“the U.S. Department of the Treasury or the RIDE Program of the

Massachusetts Bay Transportation Authority”. I conclude that

between them only the General Treasury of the United States can

properly be approved as a recipient of the remaining funds in

Settlement Account. In making this determination I have, of

course, been guided by the principles enunciated by the First

Circuit in In re Lupron Mktg & Sales Practices Litig., 677 F.3d

21 (1st Cir. 2012). But there has not been proposed and I am

not aware of any potential recipient that has a closer fit with

financing implementation of class action procedures after

reasonable efforts to deliver appropriate relief to class

members have as a meaningful and practical matter been

exhausted. Cf. In re Pet Food Prod. Liab. Litig., 629 F.3d 333,

363 (3d Cir. 2010) (Weis, J, concurring and dissenting).

I am not prepared to embrace the more fundamental critique

of cy pres distributions found in certain case law and

commentary. See, e.g. In re Thornburg Mortg., Inc. Sec. Litig.,

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885 F. Supp 2d. 1097 (D.N.M. 2012); Martin H. Redish et al., Cy

Pres Relief and the Pathologies of the Modern Class Action: A

Normative and Empirical Analysis, 62 Fla. L Rev. 617, 642

(2010). Nevertheless, Judge Hornsby’s statement of reservations

about the judicial role in making charitable donations seems

useful cautionary advice.

Federal judges are not generally equipped to be

charitable foundations: we are not accountable to boards

or members for funding decisions we make; we are not

accustomed to deciding whether certain nonprofit

entities are more “deserving” of limited funds than

others; and we do not have the institutional resources

and competencies to monitor that “grantees” abide by the

conditions we or the settlement agreements set.

In re Compact Disc Minimum Advertised Price Antitrust

Litig., 236 F.R.D. 48, 63 (D. Me. 2006).

Of course, if the approved government recipient were

designated specifically to provide support only for the federal

court accounts in the General Treasury, there might be some real

or perceived perverse incentives in recipient choice by federal

judges. But remitting unclaimed settlement monies to the

General Treasury that through Congressional direction allocates

funds more broadly for a variety of federal operations beyond

judicial operations generally and the class action process in

particular does not present that problem.

By contrast payment to an agency of a separate sovereign

such as the Massachusetts Bay Transportation Authority raises

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separate questions, not least of which is the propriety and

likely unfairness of having a federal judge make a

disproportionate award to an entity which already has the

presumptive right to participate as a class member, should it

have standing. Otherwise, the separate sovereign would simply

be the recipient of a windfall to a government that had not

otherwise chosen to allocate monies equal to the windfall to one

of the programs it had designed.

Consequently, it is hereby ORDERED that no further

distribution be made to class members;

IT IS FURTHER ORDERED that any remaining funds in the

Settlement Fund shall be remitted (in the nature of cy pres)

forthwith to the U.S. Department of the Treasury; and,

IT IS FURTHER ORDERED that that the Settlement

Administrator shall provide an affidavit or declaration stating

the funds have been remitted to the U.S. Department of Treasury

and shall promptly file a copy of a receipt therefor from the

U.S. Department of Treasury.

DATED: September 19, 2023 /s/ Douglas P. Woodlock

DOUGLAS P. WOODLOCK

United States District Judge

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