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Apr 13, 2021 By Gary Blankenship Senior Editor

Eskamani Rep. Anna Eskamani

A bill to adopt a civil cy pres doctrine in Florida statutes has passed its second House committee after a spirited debate over its necessity.

The House Public Integrity and Elections Subcommittee approved HB 409, by Rep. Anna Eskamani, D-Orlando, 13-2 on April 9.

“My concern with the bill is that we’re creating a perverse incentive for attorneys to create a larger class of plaintiffs [in a class action suit] knowing in advance they won’t be able to find them just so the attorney can get a bigger settlement and the attorney can get more money,” said Rep. Spencer Roach, R-North Ft. Myers.

“There is actually no evidence that the cy pres doctrine in common law has led to accretion of more class action lawsuits,” Eskamani replied.

She said the bill would put the cy pres doctrine, which already exists in the probate code and common law, in the civil law that would allow unclaimed funds to be distributed to legal aid agencies providing services related to the subject of the suit.

Eskamani, Florida Bar Foundation President Donny MacKenzie, and William Large, of the Florida Justice Reform Institute and who opposed the bill, agreed the bill would almost exclusively apply to class action suits where class members cannot be located to participate in an award.

Plaintiff and defense attorneys and the judge would have to agree on how the unclaimed funds could be used, Eskamani said, noting about 25 other states have a similar civil cy pres doctrine.

Large argued that knowing unclaimed funds would go to charitable uses — and even potentially the judge’s law school — could unconsciously affect judges’ decisions on granting class action status and in handling the case. He conceded, though, he has not found any evidence that is a problem.

“Intuitively, I believe that’s the case and I believe that is what happened,” Large said.

He also said in many cases plaintiff attorneys are only interested in getting as large a class as possible and are ready to settle when they get a sufficient fee, regardless of whether the award can be effectively distributed to class members.

Large said the purpose of litigation is for an injured plaintiff to be made whole while the civil cy pres doctrine brings in a third party that could benefit from the suit.

“That’s not fair. The folks that deserve to be compensated are the members of the class,” he said. “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. It shouldn’t be going to the state, it shouldn’t be going to a charity.”

MacKenzie said the doctrine of cy pres has been around for 800 years and some judges already use it in Florida cases. But putting it in law would make more judges and lawyers aware of it and willing to use it in cases.

He also said distributions have to be accepted by both parties and the judge, and an early distribution agreement can avoid problems and potentially more litigation over residual awards at the end of the case.

“We are simply telling lawyers and judges in Florida this is a tool in your toolbox,” MacKenzie said. “And it’s better to agree on the front end than fight at the back end….

“That doesn’t violate the Constitution, that doesn’t violate the rules of procedure, and it has nothing to do with the merits of the lawsuit.”

“This provides an option and an opportunity to provide funding to support civil legal services to the poor without those funds having to come from state coffers,” said Rep. Geraldine Thompson, D-Orlando, whose husband, retired Fifth District Court of Appeal Judge Emerson Thompson, is a former Foundation president.

“Our motivation about this bill was very much grounded in working closely with legal aid organizations over this past year and realizing the lack of support for civil legal aid, realizing how overworked and underfunded they are,” Eskamani said. “This is not only common law, this is common practice in courts around America and states across this great country.”

HB 409 next goes to Judiciary Committee. SB 1270, by Sen. Shevrin Jones, D-Miami Gardens, the upper chamber’s counterpart, has not been heard in committee, making it unlikely any bill will pass the Legislature this year. But success in House committees or the entire House could improve chances for passage next year.