Family Medicine Pharmacy, LLC v. Lifescan, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION FAMILY MEDICINE ) PHARMACY, LLC, ) ) Plaintiff, ) v. ) Civil Action No. 20-cv-00534-KD ) LIFESCAN, INC., ) ) Defendant. ) ORDER This action is before the Court on the Motion to Authorize Distribution of Cy Pres Award filed by Plaintiff Family Medicine Pharmacy, LLC (doc. 42). Upon consideration, and for the reasons set forth herein, the Cy Pres recipient is approved, and the motion is GRANTED. The Claims Administrator is directed to distribute the sum of $5,330.00 to the Pharmacy General Scholarship Account (30012058) of the Auburn University Foundation for Auburn University. Plaintiff states that the Settlement Agreement provides for issuance of funds remaining from class members’ uncashed checks to a Cy Pres recipient. In accord therewith, Plaintiff proposes a distribution to the Pharmacy General Scholarship Account (30012058) of the Auburn University Foundation for Auburn University in the amount of $5,330.00. Plaintiff reports that Defendant Lifescan, Inc. does not oppose this recipient. Pursuant to the Class Action Settlement and Release “[any] Claim Settlement Payments remaining solely as a result of uncashed checks shall be sent to a Cy Pres the parties agree on subject to Court approval …” (Doc 26-1, p. 18). “In class actions, ‘cy pres refers to the practice of distributing settlement funds not amenable to individual claims or meaningful pro rata distribution to nonprofit organizations whose work is determined to indirectly benefit class members.’” Johnson v. NPAS Sols., LLC, 43 F.4th 1138, 1147, n. 14 (11th Cir. 2022) (quoting Frank v. Gaos, ––– U.S. ––––, 139 S. Ct. 1041, 1045 , 203 L.Ed.2d 404 (2019)). In this circuit, a “cy pres distribution” has been recognized as “a permissible method to distribute unclaimed settlement funds.” Poertner v. Gillette Co., 618 Fed. Appx. 624, 629 (11th Cir. 2015); Nelson v. Mead Johnson & Johnson, Co., 484 Fed. Appx. 429, 435 (11th Cir. 2012) (same). The parties propose a distribution to the pharmacy scholarship account of a foundation1 for a well-known university with a college of pharmacy.2 The Plaintiff/Class Representative is a pharmacy. Plaintiff alleged that Defendant sent unsolicited facsimile advertisements for Defendant’s brand of glucose monitoring system to the pharmacy. The class members were defined as recipients of the facsimiles. Therefore, the Cy Pres recipient falls within the scope of a non-profit organization whose work indirectly benefits the class members. Accordingly, the recipient is approved. DONE and ORDERED this the 9th day of January 2023. s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE 1 Auburn University Foundation. www.https://auburngiving.org/financials/ 2 Harrison College of Pharmacy. www.https://pharmacy.auburn.edu/