CUMMINGS, Chief Judge.
These five appeals have been consolidated and grow out of antitrust litigation involving an alleged nationwide price-fixing conspiracy among manufacturers of folding cartons in violation of the Sherman Act (15 U.S.C. § 1). The appeals have been filed by two former defendants and six former class-member plaintiffs and relate chiefly to the district court’s disposition of an approximately $6,000,000 reserve fund established to pay late claims and to meet various expenses and contingencies connected with the distribution of the $200,-000,000 settlement fund. The litigation is fully described in the joint memorandum opinion of District Judges Robson and Will reported in 557 F.Supp. 1091 (N.D.Ill.1983).
On September 19, 1979, the district court entered a final judgment approving the settlement agreement providing for payment by the 25 defendants of $200,000,000 into a fund for distribution to the plaintiff class. Six days thereafter the court appointed the Folding Carton Administration Committee (“Administration Committee”) which is also involved in these appeals. The settlement agreement provided for a cut-off date of September 6, 1979, for claims but later claims were honored with judicial assent.
On March 6, 1980, the district court approved distribution of 97% of the fund, which by then had grown to approximately $206,000,000, and decided that the balance be held in reserve for potential late claims and errors in distribution. All timely claims were paid by the Administration Committee by the end of April 1980. Some late claims were subsequently paid with court approval. Others still pend.
On September 3, 1982, the Administration Committee (composed of two counsel for the plaintiff class, one who had represented a defendant and an independent fourth) recommended that the $6,000,000 in the reserve fund plus future interest be used to establish a private “Antitrust Development and Research Foundation” to promote the study of complex litigation and various substantive and procedural aspects of antitrust law. Thereafter six former [1254]*1254plaintiff class members 1 and two former defendants2 filed motions in the district court, which had retained jurisdiction of the case, seeking distribution of the remainder of the settlement fund to plaintiff class members or otherwise pro rata to the settling defendants. Two of the class members 3 also requested return to class-member plaintiffs of fees and costs that had been awarded to counsel for the Administration Committee, or in the alternative that they be audited, with excessive fees and costs returned to them, and that the expenses paid to the Administration Committee’s accounting firm be subjected to an independent accounting. We granted a temporary stay in April 1983 and granted a stay pending appeal on May 3, 1983, so that no more late claims have been paid4 nor has the suggested Foundation been organized. At the same time we postponed any action on the Administration Committee’s motion to dismiss the appeals.
We now hold that we have jurisdiction over this matter pursuant to the collateral order doctrine for the reasons given in In re General Motors Corporation Engine Interchange Litigation, 594 F.2d 1106, 1117-1121 (7th Cir.1979). Therefore the motion to dismiss is denied.
As to the district court’s February 17, 1983, distinguished opinion, we agree that neither the plaintiff class nor the settling defendants have any right to the reserve fund. We also agree that under these circumstances, it was appropriate for the district court to consider the cy pres doctrine or Fluid Class Recovery to achieve an equitable disposition of the reserve fund. We discussed the “fluid recovery” concept in Simer v. Rios, 661 F.2d 655, 675-677 (7th Cir.1981), but refused to utilize it. As in Simer, the $200,000,000 paid by these defendants surely counsels deterrence, has disgorged illegally obtained profits and has satisfied the compensatory factor of the Sherman Act, so that fluid recovery is not needed.5 Consequently it was inappropriate for the district court to utilize the reserve fund to establish a tax-exempt Foundation for research on complex antitrust litigation and on various substantive aspects of the antitrust laws, as suggested by the Administration Committee.
The district court directed that the funding of the Foundation should not commence until February 17, 1984, one year from the date of its opinion. That period was provided to the Administration Committee for the payment of additional late claims. 557 F.Supp. at 1110. Because of our temporary stay order of February 17, 1983, and our May 3, 1983, stay pending appeal, that beneficial one-year extension was of no effect. Therefore, the Administration Committee should hold the reserve fund available for one year from the date of this opinion to cover the cost of locating absent class members and making appropriate payments to them from the principal and accrued interest of the reserve fund.
After careful consideration, we conclude that the establishment of the proposed Foundation would be carrying coals to Newcastle. There has already been voluminous research with respect to multidistrict antitrust litigation and the substantive and procedural aspects of the antitrust [1255]*1255laws by judges, lawyer specialists, law schools, bar associations, Congressional committees, the Department of Justice and the Federal Trade Commission, and it is a continuing project of all those concerned. In our view, establishing an unneeded Foundation for these purposes from the reserve fund would be a miscarriage of justice and an abuse of discretion. Instead, after the passage of a year hence for making appropriate payments to absent or tardy class members and for absorbing appropriate expenses, we direct that the remainder of the reserve fund escheat to the United States. The reason given by the district court for not ordering escheat to the United States government was that the federal statutory terms established in 28 U.S.C. §§ 2041 and 2042 for escheat do not apply. However, the spirit of those statutes is certainly satisfied and indeed the technical Congressional requirements present no real obstacles.
Thus 28 U.S.C. § 2041 is now entitled “Deposit of monies in pending or adjudicated cases,” and the text applies to “All monies paid into any court of the United States or received by the officers thereof, in any case pending or adjudicated in such court * * *.” Here the $200,000,000 fund was paid into the district court or its officers, namely, the Administration Committee, thus satisfying that portion of the es-cheat statute.
Free access — add to your briefcase to read the full text and ask questions with AI
CUMMINGS, Chief Judge.
These five appeals have been consolidated and grow out of antitrust litigation involving an alleged nationwide price-fixing conspiracy among manufacturers of folding cartons in violation of the Sherman Act (15 U.S.C. § 1). The appeals have been filed by two former defendants and six former class-member plaintiffs and relate chiefly to the district court’s disposition of an approximately $6,000,000 reserve fund established to pay late claims and to meet various expenses and contingencies connected with the distribution of the $200,-000,000 settlement fund. The litigation is fully described in the joint memorandum opinion of District Judges Robson and Will reported in 557 F.Supp. 1091 (N.D.Ill.1983).
On September 19, 1979, the district court entered a final judgment approving the settlement agreement providing for payment by the 25 defendants of $200,000,000 into a fund for distribution to the plaintiff class. Six days thereafter the court appointed the Folding Carton Administration Committee (“Administration Committee”) which is also involved in these appeals. The settlement agreement provided for a cut-off date of September 6, 1979, for claims but later claims were honored with judicial assent.
On March 6, 1980, the district court approved distribution of 97% of the fund, which by then had grown to approximately $206,000,000, and decided that the balance be held in reserve for potential late claims and errors in distribution. All timely claims were paid by the Administration Committee by the end of April 1980. Some late claims were subsequently paid with court approval. Others still pend.
On September 3, 1982, the Administration Committee (composed of two counsel for the plaintiff class, one who had represented a defendant and an independent fourth) recommended that the $6,000,000 in the reserve fund plus future interest be used to establish a private “Antitrust Development and Research Foundation” to promote the study of complex litigation and various substantive and procedural aspects of antitrust law. Thereafter six former [1254]*1254plaintiff class members 1 and two former defendants2 filed motions in the district court, which had retained jurisdiction of the case, seeking distribution of the remainder of the settlement fund to plaintiff class members or otherwise pro rata to the settling defendants. Two of the class members 3 also requested return to class-member plaintiffs of fees and costs that had been awarded to counsel for the Administration Committee, or in the alternative that they be audited, with excessive fees and costs returned to them, and that the expenses paid to the Administration Committee’s accounting firm be subjected to an independent accounting. We granted a temporary stay in April 1983 and granted a stay pending appeal on May 3, 1983, so that no more late claims have been paid4 nor has the suggested Foundation been organized. At the same time we postponed any action on the Administration Committee’s motion to dismiss the appeals.
We now hold that we have jurisdiction over this matter pursuant to the collateral order doctrine for the reasons given in In re General Motors Corporation Engine Interchange Litigation, 594 F.2d 1106, 1117-1121 (7th Cir.1979). Therefore the motion to dismiss is denied.
As to the district court’s February 17, 1983, distinguished opinion, we agree that neither the plaintiff class nor the settling defendants have any right to the reserve fund. We also agree that under these circumstances, it was appropriate for the district court to consider the cy pres doctrine or Fluid Class Recovery to achieve an equitable disposition of the reserve fund. We discussed the “fluid recovery” concept in Simer v. Rios, 661 F.2d 655, 675-677 (7th Cir.1981), but refused to utilize it. As in Simer, the $200,000,000 paid by these defendants surely counsels deterrence, has disgorged illegally obtained profits and has satisfied the compensatory factor of the Sherman Act, so that fluid recovery is not needed.5 Consequently it was inappropriate for the district court to utilize the reserve fund to establish a tax-exempt Foundation for research on complex antitrust litigation and on various substantive aspects of the antitrust laws, as suggested by the Administration Committee.
The district court directed that the funding of the Foundation should not commence until February 17, 1984, one year from the date of its opinion. That period was provided to the Administration Committee for the payment of additional late claims. 557 F.Supp. at 1110. Because of our temporary stay order of February 17, 1983, and our May 3, 1983, stay pending appeal, that beneficial one-year extension was of no effect. Therefore, the Administration Committee should hold the reserve fund available for one year from the date of this opinion to cover the cost of locating absent class members and making appropriate payments to them from the principal and accrued interest of the reserve fund.
After careful consideration, we conclude that the establishment of the proposed Foundation would be carrying coals to Newcastle. There has already been voluminous research with respect to multidistrict antitrust litigation and the substantive and procedural aspects of the antitrust [1255]*1255laws by judges, lawyer specialists, law schools, bar associations, Congressional committees, the Department of Justice and the Federal Trade Commission, and it is a continuing project of all those concerned. In our view, establishing an unneeded Foundation for these purposes from the reserve fund would be a miscarriage of justice and an abuse of discretion. Instead, after the passage of a year hence for making appropriate payments to absent or tardy class members and for absorbing appropriate expenses, we direct that the remainder of the reserve fund escheat to the United States. The reason given by the district court for not ordering escheat to the United States government was that the federal statutory terms established in 28 U.S.C. §§ 2041 and 2042 for escheat do not apply. However, the spirit of those statutes is certainly satisfied and indeed the technical Congressional requirements present no real obstacles.
Thus 28 U.S.C. § 2041 is now entitled “Deposit of monies in pending or adjudicated cases,” and the text applies to “All monies paid into any court of the United States or received by the officers thereof, in any case pending or adjudicated in such court * * *.” Here the $200,000,000 fund was paid into the district court or its officers, namely, the Administration Committee, thus satisfying that portion of the es-cheat statute. The immediately succeeding Section initially refers to “money deposited under section 2041” and provides that money so deposited and unclaimed for five years shall be deposited in the federal Treasury “in the name and to the credit of the United States.” The district court stated that it could not approve escheat to the United States because five years had not then elapsed since the deposit of the fund and the right to the money had not been adjudicated. 557 F.Supp. at 1103. But almost five years have now elapsed, and we are permitting unpaid class members to claim until a year from this opinion, which will be well beyond the unclaimed five years specified in Section 2042. Moreover, the right to the money among the parties hereto was adjudicated in the February 17, 1983, district court opinion and in 1979 when it approved the settlement agreement. In view of the generous time period afforded by the district court and us, it is doubtful that any claimants will come along thereafter. Nevertheless, the open-ended closing sentence of 28 U.S.C. § 2042 will allow “Any claimant entitled” thereto to recover from the United States after the escheat. Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3d Cir.1971). Accordingly, the statutory terms for federal escheat have been sufficiently satisfied.
As noted, 28 U.S.C. § 2042 permits an entitled claimant to recover from the United States. To that extent, the escheat is impermanent6 and also raises no unconstitutional taking. Since any legitimate claimant has been afforded an adequate remedy against the United States, there is no bar to interim governmental use of the escheated money “deposited in the Treasury and to the credit of the United States.”7 Because the settlement stemmed from defendants' alleged violations of Section 1 of the Sherman Act (15 U.S.C. § 1), it is much more appropriate to have the escheat benefit the United States rather than to adopt the labyrinthine methodology employed by the dissent to justify escheat to the states.
[1256]*1256Five amici curiae non-claimant members of plaintiff class8 favor the district court's order of February 17, 1983, insofar as it gives such persons an additional year to present claims. Our resolution grants a similar grace period but of course provides for escheat thereafter instead of for the Foundation championed by amici.
The order of February 17, 1983, and the order of March 3, 1983, approving fees and costs are affirmed except with respect to the establishment of the Foundation. As to the reserve fund, we hold that any portion (including interest) remaining a year herefrom after the payment of meritorious claims and expenses by the Administration Committee shall escheat to the United States subject to the conditions expressed in 28 U.S.C. §§ 2041 and 2042. Motion to dismiss appeals denied; costs to be borne by the respective parties.9