Here is Donald J. Trump talking to reporters yesterday about his lawsuit against the Treasury: “I’m supposed to work out a settlement with myself … We could make it a substantial amount, nobody would care, because it’s gonna go to numerous, very good charities.”
Not quite cy pres and its abuse in class action litigation, but close. One difference, of course, is that this not a class action; the settlement here would short-change not absent, diffusely injured class members, but the taxpayers and the public fisc. Another is that the donations in a cy-pres settlement are part of the agreement, and we do not know whether this casual remark indicates any plan for such a settlement agreement or just an an unreliable pledge by the plaintiff that he will give his winnings to “numerous, very good charities.” The collusive aspect is way, way present, however. And so is the worry about the actual nature of the “very good charities” and the possibility that the donations would just flow directly to the plaintiff.