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Access to a Just Result: Revisiting Settlement Standards and Cy Pres Distributions

The Canadian Class Action Review, Vol. 6, No. 1, April 2010

37 Pages Posted: 26 Jun 2010 Last revised: 18 Jan 2011

Jasminka Kalajdzic

University of Windsor - Faculty of Law

Date Written: April 1, 2010

Abstract

Increased access to justice is a key objective of class proceedings. Yet there is no consensus on what the term means in the class action context. This paper engages the access to justice paradigm by exploring the settlement approval phase of a class action. In Part A, the author offers a robust definition of access to justice that includes considerations of substantive justice. In Part B, the prevailing approach to the assessment of the fairness of a settlement is critiqued. Two common criteria in the fairness analysis, the presumption of fairness and a lack of objectors, are argued to be unreliable determinants of a just result. In Part C, the author evaluates a particular form of settlement - a cy pres distribution of settlement proceeds to charities. Such settlements, the author concludes, illustrate why current standards for settlement approval must be revisited in order to promote more meaningful access to justice.

Keywords: class actions, access to justice, settlements

JEL Classification: K10, K41

Suggested Citation

Kalajdzic, Jasminka, Access to a Just Result: Revisiting Settlement Standards and Cy Pres Distributions (April 1, 2010). The Canadian Class Action Review, Vol. 6, No. 1, April 2010. Available at SSRN: https://ssrn.com/abstract=1630513 or http://dx.doi.org/10.2139/ssrn.1630513

Jasminka Kalajdzic (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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