The class as a whole, however, will benefit significantly in other ways. . . . [A]bout one quarter of the settlement fund, or some $45 million, will be turned over to a class assistance foundation. The foundation will fund services on behalf of the class as a whole, including aid to children of veterans and their families in coping with birth defects. The foundation’s work will provide useful and meaningful benefits to those class
members not eligible for direct individual awards.” Id. at 1410.33Id. at 1411.34Id.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 9the plaintiffs’ injuries, the relative strength of different categories of claims must be considered:“[I]f one set of claims had a greater likelihood of ultimate success than another set of claims, it isappropriate to weigh ‘distribution of the settlement . . . in favor of plaintiffs whose claimscomprise the set’ that was more likely to succeed.”35Third, the plan benefits the most needy bytargeting for benefits those veterans who have suffered the most severe injuries. Finally, limitingthe program to specific categories of claims (death or total disability) without requiring proof ofa specific disease or causation would (1) simplify the claims procedure;36(2) minimizetransaction costs “which would almost certainly be overwhelming if any of the other individualaward proposals submitted to the court were implemented;”37(3) thereby increase the overallrecovery to the class;38and (4) avert the factual and legal hurdles the plaintiffs otherwise faced.3935Id. at 1411 (quoting In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 220 (5thCir.1981), cert. denied, 456 U.S. 998, 102 S.Ct. 2283 (1982), and citing In re Equity Funding Corp. of America Securities Litigation, 603 F.2d 1353, 1364-66 (9thCir. 1979); In re Investors Funding Corp.of New York Securities Litigation, 9 B.R. 962, 964 (S.D.N.Y. 1981); Dunn v. H.K. Porter Co., Inc.,
78 F.R.D. 50, 53-54 (E.D. Pa. 1978); cf. Holmes v. Continental Can Co., 706 F.2d 1144, 1148 (11thCir. 1983) (“there is no rule that settlements benefit all class members equally” and “higher
allocations to certain parties [may be] rationally based on legitimate considerations.”)).36Id. The district court outlined a simple, two-part test to determine whether claimants qualified for
individual settlement distributions as totally disabled veterans who were exposed to Agent Orange or
survivors of exposed veterans who had died. First, total disability was determined using the Social
Security Act’s definition of “long term total disability.” Survivors would need to “establish the
deceased’s status as a class member veteran and confirm the existence of at least one eligible
survivor,” a process the district court characterized as straightforward, most often involving
documentary evidence such as death and birth certificates. Id. at 1413-14. Second, claimants would
need to demonstrate exposure to Agent Orange during military service in Vietnam by filing out a
questionnaire which would then be evaluated by objective criteria. Id. at 1416.37Id. at 1411.38In the end, the district court noted that “[c]reation of a costly new claims-processing bureaucracy,
which would devour money that should go to class members, thus is avoided. ‘The proposed method
of distribution will maximize the value of the recovery actually received by the class.’” Id. (quoting
Ohio Public Interest Campaign v. Fisher Foods, Inc., 546 F. Supp. 1, 11 (N.D. Ohio 1982)). Based
on the statistical information available at the time, the actual payments to individual death or total
disability claimants were projected to be relatively modest. The district court estimated that the
maximum award for total disability would be about $12,800 per individual claimant paid over a ten-
year period. Id. at 1418. The maximum death benefit was estimated at $3,400 per claimant, payable
in a lump sum. Id. at 1420.39As the district court noted, “this plan ‘obviate[s] the necessity for particularized proof’ and is ‘a fair(footnote continued on next page)In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 10In conclusion, Judge Weinstein highlighted the need to strike a balance betweencompassion and pragmatism in developing a plan for individual payments:In distributing the settlement fund, every possible effort should be
undertaken to alleviate the suffering of men, women and children
in the class. But compassion, though heartfelt, must be tempered
with a down-to-earth sense of what can and what cannot be done.
The needs of the class must be weighed against the realities of
what can be accomplished given the amount of money available,
the danger that administrative, medical and legal costs will
bankrupt the fund, and the premise that if anyone was injured by
Agent Orange it was the veterans who were directly exposed.403.Cy Pres RemedyAlthough the plan adopted by the district court ensured direct distribution ofsettlement funds to some individuals (exposed veterans who were totally disabled and thesurvivors of exposed veterans who had died), Judge Weinstein understood that the majority ofplaintiffs, many of whom had health problems or other needs but who were not totally disabled,would not receive individual cash compensation.41At the same time, the district courtrecognized that “[d]istribution of thousands of small individual payments would trivialize thebeneficial impact of the settlement fund on the needs of the class.”42To resolve this problem, theresponse to the particular difficulties that this class would have in gathering and presenting evidence
of damages.’” Id. (quoting In re Chicken Antitrust Litigation American Poultry, 669 F.2d 228, 240
and n.20 (5thCir. 1982)) (citations omitted).40Id. at 1412.41Id. at 1431.42Id. In a later opinion, Judge Weinstein developed this observation, noting that “[t]he class includes
all Vietnam veterans who may have been exposed to ‘Agent Orange’ and related phenoxy herbicides
in Vietnam, and the family members of such veterans. The class is therefore significantly larger than
the group of people who have filed claims as part of the [Individual] Payment Program. The
Payment Program and the Foundation were designed in tandem to maximize the benefit to the class
of a multimillion dollar fund that might otherwise degenerate into some quarter of a million small
awards incapable of providing any real aid to any class member (amounting to only about $80 each).
Through the funding of services, the Foundation would have offered ‘some benefit from the
settlement’ to the majority of claimants who will not meet the eligibility requirements for cash(footnote continued on next page)In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 11district court employed a cy pres remedy – a class-wide benefit program in lieu of individualcompensation – concluding that “[t]he most practicable and equitable method of distributingbenefits to this segment of the class is through funding of services,” by means of “a classassistance foundation.”43Referring back to his earlier opinion approving the settlement, Judge Weinsteinrecalled that a class assistance program would “provide Vietnam veterans and their families withcompensation under the Payment Program.” In re Agent Orange, 689 F. Supp. 1250, 1259
(E.D.N.Y. 1988).43In re Agent Orange, 611 F. Supp. 1396, 1431-32 (E.D.N.Y. 1985). The equitable doctrine of cy pres,
or “next best use,” has its origins in the law of charitable trusts, where it was developed to deal with
circumstances in which “compliance with the literal terms of a charitable trust became impossible.”
State of California v. Levi Strauss & Co., 715 P.2d 564 (Cal. 1986). In such an instance, “the funds
would be put to the ‘next best use,’ in accord with the dominant charitable purposes of the donor.”
Id. at 570 (citing Estate of Tarrant, 237 P.2d 505 (Cal. 1951)). Cy pres remedies (also called “fluid
recovery” in class action settlements) have been adopted in the class action context pursuant to the
equitable powers of the court and are the basis for programs which serve to distribute settlement
funds to benefit the class as a whole – the “next best use”. See generally, 2 Herbert B. Newberg and
Alba Conte, Newberg on Class Actions § 11.20 (3d ed. 1992). It is well settled not only in the
Second Circuit but in other courts that cy pres relief is appropriate where it is difficult or impractical
to compensate directly individual class members. See, e.g., In re Agent Orange, 818 F.2d 179, 185
(2d Cir. 1987) (affirming plan to fund program to provide class-wide services where district court
found it would be difficult and uneconomical to make direct individual payments to all class
members); In re Matzo Food Products Litigation, 156 F.R.D. 600, 605 (D.N.J. 1994) (“Typically, the
court employs cy pres where class members cannot be located or where individual recoveries would
be so small as to make distribution economically impossible”); Democratic Central Committee v.
Washington Metro. Area Transit Commission, 84 F.3d 451, 455 (D.C. Cir. 1996) (upholding a cy
pres remedy where the cost of notifying and distributing twenty-five-year-old fund to overcharged
passengers was prohibitive); New York ex rel. Koppell v. Keds Corp., No. 93 CIV. 6708, 1994 WL
97201, at *3 (S.D.N.Y. Mar. 21, 1994) (ordering plaintiff states to select charities to receive their
share of settlement proceeds where it would be difficult if not impossible to trace 5 million
unidentified class members and cost of locating and notifying class members would wipe out any
economic benefit of settlement). Cy pres distributions are also made when there is a close
correlation between the proposed use of the funds and the class benefited. See, e.g., In re
Montgomery County Real Estate Antitrust Litigation, 83 F.R.D. 305 (D. Md. 1979) (issuing more
than $1.4 million in negotiable certificates for future use of class members who were sold homes
through defendant real estate brokers). The use of a cy pres remedy also has been found appropriate
where it promotes and furthers the goals of the class action litigation. See, e.g., In re Three Mile
Island Litigation, 557 F. Supp. 96, 97 (M.D. Pa. 1982) (setting aside $5 million of $25 million
settlement for a public health fund to finance studies of the long-term health effects of Three Mile
Island nuclear accident and to further future evacuation planning).In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 12‘a visible, central source of legal and political power.”44The district court summarized the goalsof the Class Assistance Foundation as follows:Maintaining a large part of the fund for a class assistance
foundation will serve many purposes. The foundation can serve as
a national focus for Vietnam veterans who are class members to
mobilize themselves and others to deal with their medical and
related problems. Because the foundation will direct the spending
of a large pool of money to fund services, it will have a greater
impact on the problems of the class than if thousands of small,
individual payments were made. In addition, the foundation will
provide class members with leverage in seeking to make public
and private institutions more responsive to the medical problems of
the class.45The district court emphasized that that the services offered by the foundation should be narrowlytailored to benefit only the class of persons covered by the settlement, although the courtrecognized that some worthwhile programs may incidentally benefit individuals who are notmembers of the class:Projects funded by the foundation should be designed to benefit the
class of persons whose claims are covered by this settlement.
Funding should be directed to projects that focus on this class
rather than on society as a whole or on the general veteran
population, even though indirect benefits may flow to this broader
group of veterans and family members from the foundation’s
activities. Some worthwhile projects may not be able to deliver
services exclusively to members of the class, but efforts should be
made to inform and encourage class members to participate in
foundation-funded projects. In addition, the claimants – those
class members who have filed or will file a claim to participate in
the settlement – should be the initial focus of projects that provide
intensive services to individuals.4644In re Agent Orange, 611 F. Supp. 1396, 1431 (E.D.N.Y. 1985) (quoting In re Agent Orange, 597 F.
Supp. 740, 859 (E.D.N.Y. 1984)).45Id. at 1432.46Id. at 1433 (internal citations omitted).In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 13Funds also should be distributed by the foundation in such a manner as to“minimize administrative costs so that the settlement fund is conserved and the benefit to theclass is maximized.”47The court noted that “[t]here should be no elaborate bureaucracy. Qualityvolunteer assistance should be sought in all aspects of administration. Settlement funds shouldnot be used to duplicate existing services.”48At the same time, the foundation would have thebroadest discretion in distributing funds to address the needs of the class.49Indeed, the Class Assistance Foundation was designed to function independentlyfrom the court as a self-governing and self-perpetuating body.50The foundation’s board wouldhave broad powers, determining “such matters as investment and budget decisions, specificfunding priorities, a detailed grant application process, the actual grant awards, evaluationmechanisms, and fundraising strategies.”51The district court expected that it would oversee thefoundation primarily by receiving financial reports from the board and by generally retaining theauthority to “exercise control as necessary to protect the interests of the class.”52However,Judge Weinstein contemplated that the district court would have a “comparatively modestsupervisory role in the operation of the class assistance foundation” which would allow “the47Id. at 1432-33.48Id. at 1433. In fact, the district court urged the use of existing service organizations, when possible:
“Numerous existing organizations, some with general mandates and others dedicated to veterans
only, are currently helping to meet the medical and related service needs of the class. Many provide
high quality services but lack the resources to meet class demands. The foundation cannot afford to
duplicate already existing services nor should it create a new bureaucracy to fill service gaps. Rather
than provide services itself, the foundation should fund the expansion of existing projects and
encourage the creation of new projects to help meet class needs. The foundation thus will take
advantage of groups that have already developed expertise and will explore new ways to benefit the
class.” Id.49“The foundation may fund projects that directly benefit individual claimants as well as projects that
help the class in general. Foundation funds need not be limited to existing organizations.” Id.50Id. at 1435.51Id.52Id. at 1436.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 14board of directors to make all procedural and substantive decisions necessary to run thefoundation, including investment in the endowment, establishment of funding priorities and theactual awarding of grants.”53IV.Review by the U.S. Court of Appeals for the Second CircuitOn appeal by plaintiffs,54the Second Circuit reviewed the district court’s plan fordistributing the Agent Orange settlement. The appeals court affirmed the plan to the extent itprovided for payments to individual class members. And, although the Second Circuit reversedand remanded the decision with respect to the Class Assistance Foundation on the basis that ithad too much independence and its mandate was overly broad, the appeals court generallyconfirmed the propriety of cy pres remedies in the distribution of class action settlements.A.Initial ObservationsThe appeals court began its analysis by observing that “[d]istrict courts enjoy‘broad supervisory powers over the administration of class-action settlements to allocate theproceeds among the claiming class members . . . equitably’”55and that the district court’sdistribution plan would be overturned only upon a showing of abuse of discretion.56The SecondCircuit also remarked on the size and diversity of the claimant pool, noting that plaintiffs “are as53Id.54Plaintiffs contended, among other grounds for appeal, that the district court abused its discretion by
allowing compensation without requiring a particularized showing of individual causation and
injuries and that the use of a cy pres remedy was contrary to precedent. In re Agent Orange, 818
F.2d 179 at 183-84.55Id. at 181 (quoting Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir. 1978)). Other United States courts
also affirm the judicial obligation to ensure an equitable division of settlement proceeds. See, e.g., In
re Folding Carton Antitrust Litigation, 557 F. Supp. 1091, 1105 (N.D. Ill. 1983) (“The Seventh
Circuit . . . adverted to the pivotal role of equitable principles in apportioning class action settlement
funds”); In re Equity Funding Corp. of America Securities Litigation, 603 F.2d 1353, 1365 (9thCir.1979) (emphasizing the district court’s “duty to insure the equitable distribution of settlement
proceeds”).56Id.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 15sharply divided over the distribution of the settlement fund as they are over its adequacy.”57However, the appeals court observed that “‘the allocation of an inadequate fund amongcompeting complainants is a traditional equitable function, using ‘equity’ to denote not aparticular type of remedy, procedure, or jurisdiction but a mode of judgment based on broadethical principles rather than narrow rules.’”58B.Affirmation of Individual Payment PlanThe Second Circuit affirmed the district court’s system of individual payments fordeath or total disability claimants. Specifically, the appeals court confirmed Judge Weinstein’ssimplification of the claims process, consideration of the relative strength or weakness of thevarious asserted claims, and effort to minimize administrative costs:[The district court] could also consider the substantial difficulty of
proving that any particular plaintiff was injured by Agent Orange
in making an equitable allocation of the limited settlement fund.
See Curtiss Wright Corp., 697 F.2d at 174-75 (equitable allocation
of a class action settlement fund may be accomplished over party’s
objection without ‘resolv[ing] trial-type issues of liability’ based
on district court’s independent ‘weigh[ing of] the relative
deservedness’ of claimants). Moreover, he was correct in seeking
a distribution scheme governed by criteria that are relatively easy
and inexpensive to apply.5957Id. at 182.58Id. (quoting Curtiss-Wright Corp. v. Helfand, 687 F.2d 171, 174 (7thCir. 1982)) (citation omitted).59Id. at 183. These principles are widely affirmed. See, e.g., Women in City Government United v.
City of New York, No. 75 Civ. 2868, 1989 WL 153059 at *4 (S.D.N.Y. Dec. 13, 1989) (“[A]
formula for allocating the settlement fund in proportion to the precise harm suffered by each plaintiff
would entail substantial costs as well as delays in the ultimate distribution of the settlement award.
Both the expense and the ease with which settlement distribution schemes operate are relevant
factors in the settlement’s approval”).In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 16The Second Circuit concluded its analysis of the district court’s individual payment plan byemphasizing that “the district court is free to alter the distribution plan in the future to simplify iteven more or to clarify standards as concrete issues arise.”60C.Reversal and Remand of Specific Cy Pres RemedyThe appeals court also generally affirmed the use of cy pres or “fluid recovery”remedies in the context of class action settlements. Referring to two of its earlier decisions, theSecond Circuit noted that “we have previously recognized that some ‘fluidity’ is permissible inthe distribution of settlement proceeds.”61The appeals court concluded that “a district courtmay, in order to maximize ‘the beneficial impact of the settlement fund on the needs of the class’. . . set aside a portion of the settlement proceeds for programs designed to assist the class.”62However, the Second Circuit rejected the particular means by which the districtcourt had employed a cy pres remedy – the Class Assistance Foundation – on the grounds thatthe district court had delegated to the Class Assistance Foundation too much independence andhad provided it with too vague a mandate. Where a cy pres remedy is used, the appeals courtheld, “the district court must in such circumstances designate and supervise, perhaps through a60In re Agent Orange, 818 F.2d 179, 184 (2d Cir. 1987).61Id. at 185 (citing Beecher v. Able, 575 F.2d 1010, 1016 n.3 (2d Cir. 1978) and West Virginia v.
Chas. Pfizer & Co., Inc., 314 F. Supp. 710, 728 (S.D.N.Y. 1970), aff’d 440 F.2d 1079 (2d Cir.), cert.
denied, 404 U.S. 871, 92 S. Ct. 81 (1971)). The appeals court also distinguished two cases cited by
the plaintiffs which had rejected fluid recoveries: Eisen v. Carlisle & Jacqulin, 479 F.2d 1005 (2d
Cir. 1973), vacated and remanded on other grounds, 417 U.S. 156, 94 S. Ct. 2140 (1974) (rejecting a
cy pres remedy that would have primarily benefited future investors rather than past investors who
had suffered loss), and Van Gemert v. Boeing Co., 553 F.2d 812 (2d Cir. 1977) (rejecting a fluid
recovery proposal that would have permitted class members who had already been made whole to
receive the unclaimed portion of the settlement fund). Instead, the appeals court found that the class
that will benefit from the Class Assistance Foundation in Agent Orange is, unlike those in Eisen or
Van Gemert, “essentially equivalent” to the class that claimed injury. Id. In addition, the Agent
Orange settlement, unlike those in Eisen and Van Gemert, occurred before trial, allowing the district
court to provide broader relief than could be awarded after a trial. Id.62Id. (citations omitted).In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 17special master, the specific programs that will consume the settlement proceeds.”63Otherwise,the Second Circuit found, there is the potential for inequity and discord, with “less vocal and lessactivist members of the class” left unprotected by the district court and the danger that funds arespent “in ways that generate more controversy than benefits.”64In fact, the appeals courtperceived “no assurance that the ‘self-governing and self-perpetuating’ board of directors of theclass assistance foundation, or any other such body that might be devised by the court, willpossess the independent, disinterested judgment required to allocate limited funds to benefit theclass as a whole.”65The Second Circuit concluded that “only direct judicial supervision canassure that the settlement fund is expended for appropriate purposes.”66Furthermore, the Second Circuit criticized the Class Assistance Foundation’sbroad and ill-defined mandate and specifically disapproved of the use of settlement funds forpolitical purposes:[W]e are concerned that the broad mandate given the class
assistance foundation, which must remain an arm of the court
however loosely connected, would permit settlement proceeds to
be expended on activities inconsistent with the judicial function.
For example, “activities to ‘help class member veterans better
obtain and utilize VA services’ and to ‘increase public awareness
of the problems of the class,’” . . . might include political
advocacy. We do not believe that the proceeds of a court-
administered settlement ought to be used for such a purpose.67However, as noted above, the Second Circuit did not reject the essential concept of a cy presremedy. Rather, it concluded that a properly-supervised fluid recovery program would be an63Id.64Id. at 185-86.65Id. at 185.66Id. at 186.67Id.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 18appropriate means to distribute the Agent Orange settlement, and invited the district court toadopt such a program with the modifications required by the Second Circuit.68V.Decision by District Court on RemandOn remand, Judge Weinstein made a number of refinements to the distributionplan. For example, the district court simplified the individual claims procedure by permitting awider range of information to substantiate exposure to Agent Orange, recognizing that there werefew sources of evidentiary information to identify “exposed individuals some twenty years afterthe fact.”69Judge Weinstein also retained outside claims administrators, Aetna TechnicalServices, Inc., and Aetna Life Insurance Company, to “administer the entire claims procedure,recording claims on a computerized database, sending out questionnaires, receiving completedclaims applications, answering questions about applications, reviewing applications andawarding payments.”70Furthermore, the district court replaced the Class Assistance Foundation with anew mechanism, the “Class Assistance Program,” to fund projects and services which wouldbenefit the entire class.71Unlike the earlier foundation, the Class Assistance Program wouldoperate under strict court supervision: judicial oversight now extended to the disbursement of68“We explicitly note, however, that the district court may in the exercise of its discretion and after
consultation with veterans’ groups undertake to use portions of the fund for class assistance
programs that are consistent with the nature of the underlying action and with the judicial function.
Accordingly, the district court on remand may designate in detail such programs and provide for
their supervision.” Id.69In re Agent Orange, 689 F. Supp. 1250, 1264 (E.D.N.Y. 1988); see also id. at 1265-66.70Id. at 1267.71Id. at 1259.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 19funds, as well as the type of activities supported by the Program.72The district court was alsocareful to note that the new fluid recovery plan would not engage in political advocacy.73Within those parameters, however, the district court considered a broad range ofprojects as suitable for funding by the Class Assistance Program. The court noted that[n]umerous strategies for assisting the class have been suggested
and investigated. Among them are an information-referral
network; aid to the children of exposed veterans, particularly to
those children suffering from birth defects; aid to homeless
veterans; genetic counseling; employment assistance; substance
abuse treatment; post-traumatic stress disorder (PTSD) treatment;
and diverse local community assistance grants.74As before, Judge Weinstein emphasized the importance of “maximiz[ing] the resources availablefor service expenditures by operating projects through existing provider organizations rather thanby creating a new organization.”7572“[T]he court will retain direct accountability authority over every project funded by the Class
Assistance Program. Grants will be made only on court order.” Id. at 1270.73“A program could be developed to assist class members in their attempts to secure benefits or
services from agencies such as the Veterans Administration. . . . This assistance would be limited to
advice and representation . . . and would not be available for lobbying activities, in order to avoid
what the court of Appeals has termed ‘activities inconsistent with the judicial function [such as]
political advocacy.” Id. at 1273-74 (citation omitted).74Id. at 1270-71. For example, the court noted that “[o]ne alternative is financing an information and
referral service or ‘hotline’ for class members to obtain information about the Agent Orange
litigation and settlement and about benefits to which they are entitled, medical and legal assistance,
placements in appropriate public and private programs, and counseling.” Id. at 1271. In addition,
the court observed that “[t]he large number of homeless Vietnam veterans, many of whom suffer
emotional traumas or mental illness, warrants serious consideration of assistance in obtaining
benefits that are already available, but unused. . . . Many members of the class have expressed
interest in assistance for veterans with addictive, mental or emotional disorders, especially post
traumatic stress disorder and substance abuse.” Id. at 1273.75Id. at 1274. The district court made a similar observation when it discussed the range of projects that
could be considered for funding by the Class Assistance Program: “Care must, of course, be taken to
ensure that there is no duplication of available private and public services and that Agent Orange
funds are not used for activities which are or should be otherwise funded.” Id. at 1271. The court
also noted that “making grants to existing service providers can help strengthen worthy projects
already in place, and can prime the pump for programs that will persist and prove useful after the
Agent Orange Settlement Fund is exhausted.” Id. at 1274.In Re HOLOCAUST VICTIM ASSETS LITIGATION (Swiss Banks)SPECIAL MASTER’S PROPOSAL, September 11, 2000 R&O-698027.1B - 20SUMMARY OF GUIDING PRINCIPLESA number of guiding principles emanate from the opinions which shaped the finalsettlement of the Agent Orange litigation, as well as from the decisions of other courts whichhave addressed the distribution of class action settlements. These principles include thefollowing:•Settlement distribution plans must be equitable;•The benefits provided by the plan must be meaningful, particularly
where the settlement fund is limited;•Courts may consider the relative strengths and weaknesses of various
categories of claims in crafting the plan;•Administrative costs must be minimized and a lengthy and
cumbersome process of determining individual eligibility must be
avoided;•Distributions under the plan should benefit the most needy class
members; and•A cy pres remedy – one that provides benefits other than individual
payments – is appropriate in certain circumstances to address the needs
of class members.It is these principles which have directed the Special Master’s efforts in developing the presentplan to distribute the $1.25 billion settlement reached by the parties and approved by the Court inthe current litigation.