On Nov. 4, Chief Justice John Roberts attached a "statement" to the Court's long list of orders in which it mainly denied review with respect to dozens and dozens of cases.
The statement related to something the Court hasn't addressed before — a challenge to a class action settlement that featured "cy pres" relief.
Cy pres — French for "as near as" – provides money or other benefits to persons other than members of the class in the class action. The Chief Justice concluded:
I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.
Marek v. Lane, No. 13-136 (U.S. Nov. 4, 2013), on cert. pet. from Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012).
Will we see a cy pres case on the Court's docket soon?
The Court has shown a Great Deal of interest in class action issues over the last several years. The Chief Justice's statement shows that he, at least, hasn't tired of the subject.
Blawgletter guesses yes.