UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SARA HAWES and AMY HILL, individually, and 

on behalf of all others similarly situated,

PLAINTIFFS,

v.

MACY’S RETAIL HOLDINGS, INC. and 

MACY’S WEST STORES, INC.,

DEFENDANTS.

Case No.: 1:17-cv-00754

CLASS ACTION

Hon. Douglas R. Cole

CASSANDRA CHIARALUCE and JONATHAN 

FONTAINE, individually, and on behalf of all 

others similarly situated,

PLAINTIFFS,

v.

MACY’S INC, MACY’S RETAIL HOLDINGS, 

INC., MACY’S WEST STORES, INC. and 

MACYS.COM,

DEFENDANTS.

Case No.: 2:20-cv-00081

CLASS ACTION

Hon. Douglas R. Cole

AMENDED BRIEF OF AMICUS CURIAE HAMILTON LINCOLN LAW 

INSTITUTE IN OPPOSITION TO THE CLASS SETTLEMENT

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Under the guise of delivering relief to those who purchased allegedly mislabeled 

and defective chief value cotton (“CVC”) sheets from Macy’s, the parties submitted a 

settlement proposal to the Court that will leave the class with barely a sheet to its name.

The Settlement’s miniscule claim caps and limited secondary distribution make any 

direct relief an effective façade. Instead, most of the money will wind up via cy pres with 

the Public Interest Research Group (“PIRG”)—a third party nonprofit with no 

relevance to this case that publicly engages in left-leaning political advocacy. The 

Settlement and its cy pres component in particular is unlawful, running counter to Rule 

23, this circuit’s sparse caselaw, scholarly and judicial warnings about cy pres, and the 

First Amendment. See Poblano v. Russell Cellular Inc., 543 F. Supp. 3d 1293, 1296 (M.D. 

Fla. 2021) (refusing to approve cy pres settlement “[g]iven the abiding debate”). 

Therefore, this Court should reject the Settlement in accordance with its independent 

obligation to the unnamed class members.

INTEREST

HLLI’s participation in this case arises out of concern with the Settlement, which 

is structured to funnel relief meant for the class to PIRG—an organization not affiliated 

with the class that engages in politicized advocacy. Settlement, ECF No. 143-2.

HLLI is a public interest organization dedicated to protecting free markets, free 

speech, limited government, and separation of powers against regulatory abuse and 

rent-seeking. Its subunit, the Center for Class Action Fairness (“CCAF”), represents 

class members pro bono in class actions when class counsel employ unfair class action 

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procedures to benefit themselves at the expense of the class. CCAF’s primary mission 

is to act as a check on abusive and collusive class-action settlements. See, e.g., Briseño v. 

Henderson, 998 F.3d 1014 (9th Cir. 2021) (sustaining CCAF’s objection to improper class 

settlement approval); Ark. Tchr. Ret. Sys. v. State St. Corp., 25 F.4th 55 (1st Cir. 2022)

(appearing as amicus at request of the court to defend district court’s decision imposing 

sanctions on plaintiffs’ counsel for misconduct). Since 2009, CCAF has returned more 

than $200 million to class members, through improved settlements and reduced fees.

HLLI’s specific interest in this case is three-fold. First, HLLI has significant 

concerns about the Settlement’s ability to deliver relief to the class, and its ongoing 

work representing class members nationwide is well-served by saving this class from 

this Settlement. HLLI is an experienced amicus curiae that has assisted courts before 

when important legal issues go unopposed, and asks to do so here as well. See, e.g., Ark.

Tchr. Ret. Sys., 25 F.4th 55 (affirming the district court’s order reducing fees in an 

otherwise ex parte appeal and describing HLLI’s work at the district court). Second, 

HLLI is—if not the most active—then amongst the most active and experienced law 

firms litigating cy pres’s application in class settlements. See, e.g., Frank v. Gaos, 139 S. Ct. 

1041 (2019). Because the Sixth Circuit has not previously addressed the substantive 

issue of cy pres directly, this Court’s judgment regarding the Settlement will be an 

important and novel decision. Given its mission and experience, HLLI has an interest 

in ensuring the judgment best serves Rule 23 and the class members as it is likely to 

guide future decisions in the circuit in this area of the law. Finally, HLLI—which also 

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maintains a robust First Amendment practice—has grave concerns about the 

constitutionality of cy pres settlements which route class funds to organizations engaged 

in political advocacy as the proposed Settlement does here.

ARGUMENT

I. The Settlement is structured so that most of the funds allocated to the 

class will instead be paid to PIRG via cy pres.

While the Settlement obligates Macy’s to pay $10,500,000 for selling allegedly 

mislabeled and defective CVC sheets, Settlement, ECF No. 143-2 at PageID 4104, its

burdensome and unrewarding claims process will minimize direct relief to the class and 

instead reroute it to PIRG via cy pres. The Settlement requires Macy’s to deliver relief 

directly to purchasers for whom it has records, but the parties “acknowledge that Macy’s 

does not have complete information about the identity” of most class members. 

Settlement, ECF No. 143-2 at PageID 4107. Knowing this, the parties negotiated a 

settlement which put the burden on the class members to seek out what amounts to 

very little individual relief—making it a foregone conclusion that PIRG, not class 

members, will get the bulk of the Settlement Amount. 

In the primary distribution, the Settlement requires class members to take the 

time to “submit a completed and signed Claim Form and all supporting documentation 

and information,” at which point they are eligible to receive a mere $7.50 per purchase 

of CVC sheets provided they can demonstrate proof of purchase. Settlement, ECF No. 143-2 at 

PageID 4108, 4111, 4114. But history demonstrates that a negligible number of 

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claimants will submit proof of purchase. See McCrary v. Elations Co., 2016 WL 769703

(C.D. Cal. Feb. 25, 2016) (only 2 of 3,405 claimants submitting proof of purchase); 

Supplemental Declaration of Jeanne C. Finegan, APR, Kumar v. Salov N. Am. Corp., No. 

14-cv-02411, Dkt. 164 ¶ 4 (N.D. Cal. May 26, 2017) (attesting that only 33 of more than 

53,000 valid claims were submitted with proof of purchase); Holt v. Foodstate, Inc., No. 

17-cv-00637, 2020 U.S. Dist. LEXIS 7265 (D.N.H. Jan. 16, 2020) (99.5% of claimants 

submitted claims without proof of purchase); Kukorinis v. Walmart, No. 19-cv-20592, 

Dkt. 97 at 16 n.9 (S.D. Fla. Sept. 20, 2021) (0.0012% of claims made were made with 

proof of purchase). 

Class members who do not submit proof of purchase receive only $2.50—total,

regardless of the number of sheets purchased—and must submit the same claim form 

and swear to the purchase(s) under penalty of perjury. Settlement, ECF No. 143-2 at 

Page ID 4108. Whatever remains of the Settlement Amount after the first distribution 

gets rerouted, on a pro rata basis, to class members who either (a) Macy’s has a record 

of purchasing sheets (not many) or (b) are able to provide proof of purchase. 

Settlement, ECF No. 143-2 at PageID 4108. However, the secondary distribution also 

caps relief so that no class member can recoup, in total, more than 50% of the amount 

paid for CVC sheets. Settlement, ECF No. 143-2 at Page ID 4109. 

Claim rates are “notoriously low” in “small-ticket item[]” consumer product class 

settlements. Briseño v. Henderson, 998 F.3d 1014, 1020, 1026 (9th Cir. 2021) (discussing a 

claim rate of “barely more than one-half of one percent”). Because of imperfect notice 

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and economic (dis)incentives, “class actions with little or no direct mail notice to 

consumers” like this one “have a median [claim] response rate of 0.023%.” Daniel 

Fisher, Odds Of A Payoff In Consumer Class Action? Less Than A Straight Flush, FORBES

(May 8, 2014) https://tinyurl.com/54k77wc3 (citing the analysis of Kurtzman Carson 

Consultants, which has administered hundreds of consumer class-action settlements). 

Few class members will take the time to file a claim form to get back $7.50 for each 

CVC sheet, provided they even know about the Settlement and can provide proof of 

purchase. Even fewer will do so for capped relief of $2.50 without proof of purchase.

II. Cy pres relief and this Settlement specifically run counter to Rule 23(e)’s 

express distribution requirements.

At most, cy pres should be a mechanism of last and limited resort. See BankAmerica, 

775 F.3d at 1064; Pearson, 772 F.3d at 784; American Law Institute, PRINCIPLES OF THE 

LAW OF AGGREGATE LITIGATION § 3.07 (2010). This rule follows from the precept that 

“[t]he settlement-fund proceeds, having been generated by the value of the class 

members’ claims, belong solely to the class members.” Klier v. Elf Atochem N. Am., Inc., 

658 F.3d 468, 474 (5th Cir. 2011) (citing ALI Principles §3.07 cmt. (b)). The 2018 

Amendments to Rule 23 reinforced this rule by requiring the Court to assess “the 

effectiveness of any proposed method of distributing relief to the class...” Fed. R. Civ. 

P. 23(e)(2)(C)(ii). A settlement’s distribution of relief to the class is not effective if it 

distributes the funds to a third party rather than the class members.

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“Barring sufficient justification, cy pres awards should generally represent a small 

percentage of total settlement funds.” In re Baby Prods. Antitrust Litig., 708 F.3d 163, 174

(3d Cir. 2013). If cy pres is an excessive share of the total relative to direct class recovery, 

as it will be under this Settlement, a district court should “urge the parties to implement 

a settlement structure that attempts to maintain an appropriate balance between payments 

to the class and cy pres awards.” Id. (emphasis added). Here, there is no sufficient 

justification for resorting to cy pres ahead of any secondary distribution to claimants 

without proof of purchase, and ahead of a full secondary distribution to claimants with 

proof of purchase. There is no “windfall” to a greater award; after all, the operative 

complaint seeks “restitution of all monies paid to Defendant.” Third Amended 

Complaint, ECF No. 64 at PageID 866. And to the extent that the parties have concerns

about fraud then “other means” should be “explored” that do not arbitrarily give the 

class’s money to non-class members. Baby Prods., 708 F.3d at 175.

This Settlement does not satisfy Rule 23(e) because it prematurely reroutes 

significant settlement funds via cy pres to PIRG. ECF No. 143-2 at PageID 4109.

III. Cy pres is not appropriate relief for federal class action lawsuits, and the

inclusion of PIRG as a beneficiary here does not advance the interests of 

the class.

Cy pres—which is the gifting of “settlement funds to a charity,” Gascho v. Global 

Fitness Holdings, LLC, 822 F.3d 269, 278 n.3 (6th Cir. 2016)—was never intended to be 

a form of relief in class settlements. Gaos, 139 S. Ct. at 1047 (Thomas, J., dissenting).

There is no “charitable” objective in a Rule 23 class action. In re Pet Food Prods. Liab. 

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Litig., 629 F.3d 333, 363 (3d Cir. 2010) (Weis, J., concurring and dissenting in part). 

Rather, a class action is a procedural device to aggregate private claims for

compensation to class members—a “species” of “joinder”—not a charitable trust. 

Shady Grove Orthopedic Assocs., P.A., v. Allstate Ins. Co., 559 U.S. 393, 408 (2010). Under 

the Rules Enabling Act, procedural rules like Rule 23 cannot amend the substantive law. 

No class action complaint seeks cy pres as a substantive remedy; indeed, none could do 

so consistent with Article III. It follows that “cy pres payments are not a form of relief 

to the absent class members and should not be treated as such.” Frank, 139 S. Ct. at 

1047 (Thomas, J., dissenting).

Thus, there is good reason to strictly limit if not entirely prohibit cy pres relief in 

class actions: For one, cy pres shifts the interests (or appearance thereof) away from 

delivering relief to the class. And in this Circuit, class compensation is what matters, 

not “whether [the settlement] provides relief to other people.” Dry Max Pampers, 724 

F.3d at 720 (reversing settlement that included cy pres component but no real relief for 

class members). The relief must be real, not “fictive,” for “[c]ases are better decided on 

reality than on fiction.” Id. at 721 (internal quotes omitted).

Second, when courts award attorneys’ fees based on the size of the cy pres fund 

rather than the amount the class directly received, this “increase[s] the likelihood and 

absolute amount of attorneys’ fees awarded without directly, or even indirectly, 

benefiting the plaintiff.” Martin H. Redish et al., Cy Pres Relief and the Pathologies of the 

Modern Class Action: A Normative and Empirical Analysis, 62 FLA. L. REV. 617, 661 (2010). 

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That risks the “preferential treatment” for class counsel this Circuit forbids. Dry Max 

Pampers, 724 F.3d at 718, 721. Further, cy pres enables lawyers to promote their own

personal, financial, political, or charitable preferences—manifesting publicity 

photographs of attorneys handing oversized checks to their selected cy pres recipients or 

public statements of gratitude from recipients to the class attorneys. E.g., Chris J. 

Chasin, Modernizing Class Action Cy Pres Through Democratic Inputs, 163 U. PENN. L. REV.

1463, 1484 & n.114 (2015). The impartiality of judges is impinged by cy pres, too, as it 

tempts judges to play benefactor with money meant for the class and creates a “potential 

appearance of impropriety.” In re Google Inc. St. View Elec. Commc’ns. Litig., 21 F.4th 1102, 

1123 (9th Cir. 2021) (Bade, J., concurring); see also Ira Holtzman, C.P.A. & Assocs. v. 

Turza, 728 F.3d 682, 689-90 (7th Cir. 2013) (Easterbrook, J.) (noting “many courts have 

expressed skepticism”); Adam Liptak, Doling Out Other People’s Money, N.Y. TIMES (Nov. 

26, 2007). And cy pres can give the parties a quick and easy way to reach settlement that 

avoids addressing more difficult questions that are nevertheless fundamental to 

adequate, fair, and reasonable relief.

Further, cy pres settlements suffer from significant “constitutional flaws.” Redish, 

62 FLA. L. REV. at 641. Cy pres (1) “unconstitutionally transforms the judicial process 

from a bilateral private rights adjudicatory model into a trilateral process;” (2) “violates 

separation of powers ... [by] transform[ing]” a settlement “from a compensatory 

remedial structure to the equivalent of a civil fine;” and, (3) threatens “to undermine 

the due process rights of both defendants and absent class plaintiffs.” Id. Underscoring 

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these flaws in an “inherently deceptive manner,” cy pres gives the “superficial appearance 

of the resolution of a live dispute,” even though it delivers relief to a non-class member 

charity whose “legal rights have presumably been violated by no one.” Id. at 643.

Nevertheless, to amicus’s knowledge, other than in Dry Max Pampers the Sixth 

Circuit has never directly confronted a settlement deploying cy pres. (Gascho notes that 

the Sixth Circuit has addressed a question relating to fees in the context of a cy pres 

settlement. 822 F.3d at 283). While there is no Sixth Circuit test for discerning when or 

if a cy pres remedy is appropriate, scholars interpret the doctrine to at least require that

“the group is really a substitute for the injured plaintiffs.” Hon. Elaine Bucklo and 

Thomas R. Meites, What Every Judge Should Know About a Rule 23 Settlement (But Probably 

Isn't Told), 41 No. 3 LITIG. 18, 21 (2015). Even the Ninth Circuit—perhaps the most 

permissive regarding cy pres—requires demonstration of “a driving nexus between the 

plaintiff class and the cy pres beneficiaries.” Dennis v. Kellogg Co., 697 F.3d 858, 865 (9th 

Cir. 2012). 

The inclusion of PIRG in this Settlement is “especially troubling because it is a 

powerful interest group...and conducts political activity in many fields wholly unrelated 

[to consumer protection].” D. Brooks Smith, Class Action and Aggregate Litigation: A 

Comparative International Analysis, 124 PENN ST. L. REV. 303, 338 (2020); see also In re Agent 

Orange Prods. Liab. Litig., 818 F.2d 179, 186 (2d Cir. 1987) (refusing to allow cy pres funds 

be spent on “political advocacy” because that would be “inconsistent with the judicial 

function”). Simply, PIRG does not “advance the interests of the class” in any 

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meaningful way. Gascho, 822 F.3d at 278 n.3. Between the Settlement and the parties’ 

joint motion in support of preliminary approval, PIRG is mentioned only once, as “a 

charitable organization which has as its purpose the advancement of consumer 

protections and rights.” ECF No. 143-2 at PageID 4109. This one throwaway line does 

not demonstrate any “driving nexus” between the class and PIRG. Dennis, 697 F.3d at 

865. And it is incorrect to suggest PIRG is simply a consumer protection organization 

when its mission equally extends to “democracy and government,” “global warming,” 

and “health,” too. Our Work, Public Interest Action Group (accessed Aug. 27, 2023) 

https://tinyurl.com/mrynrjuc. This case is about allegedly mislabeled and defective bed 

sheets—even if one concedes, arguendo, that cy pres is appropriate, PIRG’s vast scope of 

unrelated issue engagement means “the group is [not] really a substitute for the injured 

plaintiffs.” Bucklo and Meites, 41 No. 3 LITIG. at 21. And because PIRG engages in 

political advocacy to deliver on its mission, infra IV.A, the organization is even further 

disconnected from the class members—all of whom are represented here because they 

bought the wrong sheets, not because they’ve got the same political interests.

IV. The Settlement’s use of cy pres is especially concerning because it violates 

the First Amendment rights of the class members by funneling significant 

funds to a political advocacy group.

Of particular concern in this Settlement is PIRG’s political advocacy, because 

the funding scheme’s redistribution of class funds to support PIRG’s agenda violates 

the First Amendment rights of the class members.

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A. PIRG’s left-wing activism.

While the parties refer to PIRG with the innocuous description of “a charitable 

organization which has as its purpose the advancement of consumer protections and 

rights,” ECF No. 143-2 at PageID 4109, the reality under the hood is that the 

organization is a political actor. PIRG engages aggressively and vocally in anti-humanist 

climate-change activism, including advocating against fossil fuel investment and nuclear 

energy. See, e.g., Tony Dutzik et al., Building fossil fuel infrastructure locks us into a higher-carbon 

future, PIRG, (Nov. 18, 2022) https://tinyurl.com/3vfvsvc5; Nuclear Power, Not Worth 

the Risk, PIRG, (Mar. 29, 2011) https://tinyurl.com/3ard2wn8. The parties’ ipse dixit 

assertion that PIRG is a consumer watchdog is contradicted, of course, by an antienergy agenda that would substantially raise the cost of living for Americans. PIRG has 

also championed more quixotic environmental causes like banning gas stoves and 

plastic bags that have nothing to do with consumer protection and that are deeply 

divisive among the general public. Matt Casale, Congress: Protect the public from gas stove 

pollution, PIRG (Sep. 13, 2022) https://tinyurl.com/5emuwejj; Statement: Canada bans 

single-use plastics, PIRG (June 22, 2022) https://tinyurl.com/dkncwxep. Unsurprisingly 

given these positions, PIRG’s advocacy extends to partisan battles on Capitol Hill, 

where it has promoted some of the Democrats’ highest priority legislative goals while 

rallying opposition to Republican proposals. Statement: Inflation Reduction Act could be a 

‘game changer’ for climate and clean energy, PIRG (July 28, 2022) 

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https://tinyurl.com/h36ybb8r; Letter Opposing HR 10, The Wrong Choice Act, PIRG (June 

8, 2017) https://tinyurl.com/2yrjecuz.

Separately, PIRG’s political activism is independently disqualifying. For example, 

PIRG actively supports the “Black Lives Matter” political network. Black Lives Matter., 

PIRG (June 8, 2020) https://tinyurl.com/42mthbm6. And it also uses its funding to 

support various socialist and racially discriminatory community organizations like 

DSNI and the Urban League of Portland, which push for “equal share of resources” 

and “collective resident leadership and control” (DSNI), and “equity in our workforce, 

education, health, housing and economic prosperity” (Urban League of Portland). Get 

Involved, Urban League of Portland (accessed Aug. 27, 2023) 

https://tinyurl.com/555k4yft; About Us, DSNI (accessed Aug. 27, 2023)

https://tinyurl.com/3jza2vs8. Another recipient of PIRG’s funding, Measure, brags 

about its “all-[b]lack female [leadership] team,” in a direct and public rebuke of Title 

VII. About, Measure (accessed Aug. 27, 2023) https://tinyurl.com/2h4cpv83. PIRG 

even promoted the COVID-19 lock-downs, “the greatest intrusions on civil liberties in 

the peacetime history of this country,” Arizona v. Mayorkas, 143 S. Ct. 1312, 1314 (2023)

(Statement by Gorsuch, J.)—and did so after the nation had already started “reopening” 

upon learning COVID-19’s death rate was severely exaggerated. Shut down, start over, do 

it right, PIRG (July 17, 2020) https://tinyurl.com/5n6kxsyd (advocating for bans on 

non-essential business and interstate travel, in addition to mandatory masking (even 

outdoors), and shaming the Trump Administration).

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B. PIRG’s political activity means the Settlement violates the First 

Amendment rights of the class members.

The parties cannot take money away from the class and give it to an advocacy 

group like PIRG without the members’ “affirmative[] consent.” Janus v. Am. Fed’n of 

State, Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448, 2486 (2018). See also Ortiz v. 

Fibreboard Corp., 527 U.S. 815, 846 (1999) (approval of class settlements implicates due 

process, and thus is state action). And this consent may not be implied or “presumed.” 

Janus, 138 S. Ct. at 2486. This principle arises out of the First Amendment, which bars 

the government from “compel[ing] the endorsement of ideas that it approves.” Harris 

v. Quinn, 573 U.S. 616, 647 (2014) (quoting Knox v. SEIU, 567 U.S. 298, 309 (2012)). 

But the Settlement, if approved, will do exactly that, by forcing class members to 

subsidize PIRG’s political advocacy. While class counsel and the parties are, of course, 

free to donate their own money to PIRG, their proximity to the Court does not enable 

them to gift the class members’ money to PIRG.

While some assert “compelled speech jurisprudence” does not apply to class 

settlements because members can opt out, this argument has been soundly rejected and 

is contradicted by existing precedent. Gerson H. Smoger, The Importance of Cy Pres in 

Modern Class Action Jurisprudence and Myths Concerning its Use, 24 LEWIS & CLARK L. REV.

595, 600-601 (2020) (making compelled speech jurisprudence argument). “Ascribing

any meaning to silence in response to publication notice is untenable.” Debra Lyn 

Bassett, Class Action Silence, 94 B.U. L. REV. 1781, 1799 (2014); accord Redman v. 

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RadioShack Corp., 768 F.3d 622, 628 (7th Cir. 2014). Justice Alito has specifically rejected 

the idea that a failure to respond to opt-out notices constitutes consent. Oxford Health 

Plans LLC v. Sutter, 569 U.S. 564, 574 (2013) (Alito J., concurring). “Courts do not 

presume acquiescence in the loss of fundamental rights” such as the First Amendment.

Knox, 567 U.S. at 312. And if there was any doubt remaining, Janus’s holding that 

consent must be “affirmative[]” and cannot be “presumed” puts to rest the idea that 

class member silence constitutes a waiver of First Amendment rights. 138 S. Ct. at 2486.

Cy pres is “especially troubling” when it goes to a “powerful interest group” that 

“conducts political activity in many fields wholly unrelated” to the facts of the litigation. 

Smith, 124 PENN ST. L. REV. at 338. This Settlement—and its inevitable contribution 

to PIRG—is a perfect example of this concern.

CONCLUSION

HLLI respectfully asks the Court to reject the Settlement for the foregoing 

reasons.

Respectfully submitted,

s/ Joseph P. Ashbrook

Joseph P. Ashbrook (0091279)

ASHBROOK BYRNE KRESGE LLC

PO Box 8248

Cincinnati, Ohio 45249

Tel: (513) 582-7424

Fax: (513) 216-9882

jpashbrook@ashbrookbk.com

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HAMILTON LINCOLN LAW INSTITUTE

Max A. Schreiber

(pro hac vice)

5868 E. 71st Street, Suite E-709

Indianapolis, IN 46220

(703) 203-3848

max.schreiber@hlli.org

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