In an anti-trust case, a cy pres distribution was made on unclaimed funds. The Second Circuit reversed the District Court’s fee award, which was limited to a percentage of the funds actually distributed to the class. “In this case, the District Court calculated the percentage of the Fund on the basis of the claims made against the Fund, rather than on the entire Fund created by the efforts of counsel. We hold that this was error…. The entire Fund, and not some portion thereof, is created through the efforts of counsel at the instigation of the entire class. An allocation of fees by percentage should therefore be awarded on the basis of the total funds made available, whether claimed or not.” The court, in this regard, rejected application of the PSLRA, which only applies to securities class actions. Further, the court noted that, even if the PSLRA were to apply, “the statute speaks in terms of a percentage of damages ‘actually paid to the class.’ But the entire fund created by the efforts of counsel presumably is ‘paid to the class,’ even if some of the funds are distributed under the Cy Pres Doctrine.” Finally, the court rejected application of the fee restrictions contained in CAFA, which are limited fee awards in “coupon settlement cases.” Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir. 2007).
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