          Supreme Court of Florida
                                   ____________

                                  No. SC18-1176
                                  ____________


  IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE
                          1.220.

                                   May 16, 2019

PER CURIAM.

      The Court has for consideration a joint out-of-cycle report 1 filed by The

Florida Bar’s Civil Procedure Rules Committee (Rules Committee) and Pro Bono

Legal Services Committee (Pro Bono Committee) proposing an amendment to

Florida Rule of Civil Procedure 1.220 (Class Actions). The Court has jurisdiction2

and declines to adopt the Committees’ proposal.

      The Committees propose new rule 1.220(f) (Distribution), which would

allow a court to direct the defendant to distribute any unpaid residual funds

awarded in a class action to recipients agreed to by the parties, “including one or




      1. See Fla. R. Jud. Admin. 2.140(e)(2).

      2. See art. V, § 2(a), Fla. Const.
more nonprofit, tax-exempt organizations that provides civil legal services to the

poor, including the Florida Bar Foundation.” This proposal follows the Rules

Committee’s October 2016 report to the Court,3 in which that Committee declined

to propose the mandatory class action cy pres 4 rule that was considered by the

Florida Commission on Access to Civil Justice (Access Commission) as an

additional funding source for nonprofit organizations that provide civil legal

services or promote access to the civil justice system for low-income Floridians. 5

The mandatory rule considered by the Access Commission would have required

residual class action funds to be distributed to the Florida Bar Foundation or a

nonprofit legal services organization.6 At the suggestion of the Pro Bono


       3. See Letter from R. J. Haughey, Chair of the Florida Rules of Civil
Procedure Committee, to John A. Tomasino, Clerk of the Florida Supreme Court
(Oct. 31, 2016) (on file with the Clerk of Court).

       4. The term cy pres comes from the Norman French expression “cy pres
comme possible,” which means “as near as possible.” See 4 William B.
Rubenstein, Newberg on Class Actions §12:32 (5th ed. 2014). Cy pres is an
equitable doctrine originally used in trusts and estate law to effectuate a charitable
intent that could not be fulfilled. Id. Under the doctrine, the court reforms the
written instrument with a gift to charity that serves a purpose as close to the
donor’s original charitable purpose as possible. Id.; Cy Pres, Black’s Law
Dictionary (10th ed. 2014). The Florida Legislature has codified the cy pres
doctrine, as that doctrine applies in the trust law context, in section 736.0413,
Florida Statutes (2018), of the Florida Trust Code.

      5. See Florida Commission on Access to Civil Justice, Interim Report, at
18-19, & 23, exhibs. at 105 (2015).

      6. Id.


                                         -2-
Committee, the Rules Committee ultimately approved, by vote of 19-5, the

permissive cy pres rule proposed here. The Florida Bar Board of Governors

approved the proposed rule.

      Both the Rules Committee and the Court published the proposed rule for

comment. The Committee did not receive any comments. The Court received one

comment opposing the proposed rule as drafted. The Committees filed a joint

response to the comment. At the Court’s request, the Rules Committee also filed a

supplemental report addressing the Court’s authority to adopt the proposed rule.

      The Court thanks the Bar’s Rules Committee and Pro Bono Committee for

their efforts. The Court also takes this opportunity to thank the Access

Commission for its efforts in identifying possible funding sources for nonprofit

legal aid organizations and commends the Commission for its continued work to

address the civil legal needs of low-income and moderate income Floridians.

However, after thoroughly considering the Committees’ joint report, the Rules

Committee’s majority and minority positions on the proposed cy pres rule, and the

comment filed, and having heard oral argument, the Court declines to adopt the

proposed rule.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ.,
concur.
LABARGA, J., recused.


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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

Original Proceeding – Florida Rules of Civil Procedure

Scott Michael Dimond, Chair, Civil Procedure Rules Committee,
Miami, Florida; Honorable Vance Edwin Salter, Co-Chair, Pro Bono Legal
Services Committee, Miami, Florida; Kathleen Schin McLeroy, Co-Chair, Pro
Bono Legal Services Committee, Tampa, Florida; Dominic C. MacKenzie, Pro
Bono Legal Services – The Florida Bar Foundation, Maitland, Florida; and Joshua
E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The
Florida Bar, Tallahassee, Florida,

      for Petitioner


Leza S. Tellam, Winter Park, Florida;

      Responding with Comments




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