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Circuits have approved agreements that provide for cy pres funds, particularly those negotiated at arm's-length by the parties. See A. Conte & H.B. Newberg, 4 Newberg on Class Action § 11:20, at 28-31 (4th ed. 2002). Some courts and commentators have used the terms 'cy pres' and 'fluid recovery' interchangeably. E.g., Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781, 784 (7th Cir.2004); Molski v. Gleich, 318 F.3d 937, 954 (9th Cir. 2003); Democratic Cent. Comm. of D.C. v. Washington Metro. Area Transit Comm'n, 84 F.3d 451, 455 (D.C.Cir.1996); 4 Conte & Newberg, supra, § 11:20, at 28. These terms may be different. See 3 Conte & Newberg, supra, § 10:17, at 517 & n. 7.
A cy pres distribution results from application of a legal doctrine that courts have imported into class actions from trusts and estates law. In trusts and estates law, cy pres, taken from the Norman French expression cy pres comme possible ('as near as possible'), 'save[s] testamentary gifts that otherwise would fail' because their intended use is no longer possible. In re Airline Ticket Comm'n, 307 F.3d at 682. Courts permit the gift to be used for another purpose as close ...
