Memorandum of Law in Support of Plaintiffs’ Motion Page | 1 

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS

IN RE CONVEX COMPUTER CORP. 

SECURITIES LITIGATION CIVIL ACTION 

NO. 3:91-cv-01563-X 

THIS DOCUMENT RELATES TO: 

ALL ACTIONS 

MEMORANDUM OF LAW IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR AN ORDER DIRECTING 

A CY PRES DISTRIBUTION OF RESIDUAL SETTLEMENT FUNDS 

Plaintiffs submit this memorandum of law in support of their motion requesting that the 

Court authorize a cy pres distribution from the remaining settlement funds in the abovecaptioned class action, to be divided evenly among the following charitable organizations: (i) the 

Community Service Fund of the Dallas Bar Association (“CSF”); and (ii) Community Legal 

Services of Philadelphia (“CLS”). 

I. BACKGROUND 

The Court appointed Heffler, Radetich & Saitta LLP (“Heffler”) as the claims 

administrator responsible for implementing the distribution of the settlement proceeds. See

Exhibit A: Declaration of Edward J. Sincavage (“Sincavage Decl.”) at ¶ 2. During the first 

distribution, Heffler distributed a fund of $2,601,993.42 to 709 class members. Id. at ¶ 3. As set 

forth in the Sincavage Decl., there is approximately $54,007.21 remaining in accounts held for 

the benefit of the class. Id. at ¶ 5. 

II. PROPOSED CY PRES DISTRIBUTION 

Plaintiffs’ class counsel in this shareholder class action lawsuit request that the Court 

authorize a cy pres distribution of remaining settlement funds to one or more non-profit 

organization(s) whose activities reasonably approximate the interests of the class. Plaintiffs’ 

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class counsel respectfully recommend that any residual funds be distributed evenly at 50% each 

to (i) the Community Service Fund of the Dallas Bar Association (“CSF”); and (ii) Community 

Legal Services of Philadelphia (“CLS”), each of which benefit the public by representing lowincome individuals who have been affected by fraudulent practices. 

A cy pres distribution is appropriate “when it is not feasible to make further distributions 

to class members.” Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 475 (5th Cir. 2011) (quoting 

Principles of the Law of Aggregate Litigation § 3.07 cmt. b (2010)); see also 4 NEWBERG ON 

CLASS ACTIONS § 12:32 (5th ed. 2019) (“Courts in every circuit, and appellate courts in most, 

have approved the use of cy pres for unclaimed class action awards.”). It is “infeasible to make 

further distributes when (1) remaining class members cannot be identified or chose not to 

participate, (2) the claim amounts are too small to make individual distributions economically 

viable, and/or (3) the class members’ damages claims are fully satisfied by the initial 

distribution.” Duncan v. JPMorgan Chase Bank, N.A., No. 14-912, 2016 WL 4419472, at *17 

(W.D. Tex. May 24, 2016) (citing Klier, 658 F.3d at 475 & n.15). Heffler represents that the cost 

of a further distribution would not be administratively feasible. See Sincavage Decl. ¶ 5. 

A cy pres distribution should be “distributed for a purpose as near as possible to the 

legitimate objectives underlying the lawsuit, the interests of class members, and the interests of 

those similarly situated.” Klier, 658 F.3d at 474 (quoting In re Airline Ticket Comm’n Antitrust 

Litig., 307 F.3d 679, 682 (8th Cir. 2002)); see also In re Heartland Payment Sys., Inc. Customer 

Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1077 (S.D. Tex. 2012) (approving cy pres

distributions where the recipient organizations “reasonably approximate the interests pursued by 

the class”). That is, “a cy pres distribution is designed to be a way for a court to put any 

unclaimed settlement funds to their ‘next best compensation use, e.g., for the aggregate, indirect, 

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prospective benefit of the class.’” Klier, 658 F.3d at 474 (quoting Masters v. Wilhelmina Model 

Agency, Inc., 473 F.3d 423, 436 (2d Cir. 2007)). 

Here, the underlying class action litigation involved claims of securities fraud under the 

Securities Exchange Act. One purpose of the Securities Exchange Act is to protect small 

individual investors, as well as the public at large, from false representations and other fraud. As 

a class action, this litigation provided relief to class members who likely did not have the ability 

or resources to bring individual claims. The proposed recipients of the cy pres distribution 

similarly protect the public from fraud and misrepresentation. 

CSF focuses on the Dallas Volunteer Attorney Program, which is a pro bono program 

dedicated to increasing and enhancing legal services to low-income clients through recruitment, 

training and support of volunteer attorneys.1 The Dallas Volunteer Attorney Program provides 

advice and representation in a variety of cases, including, but not limited to, consumer cases.2 

Accordingly, its services include representing low-income individuals who have been affected by 

fraudulent practices. This is consistent with one of the purposes of the underlying statute—the 

Securities Exchange Act—to protect small individual investors, as well as to protect the public at 

large, from false representations and other fraud on individuals who cannot protect themselves, 

and benefits such class members. 

Similarly, CLS has helped over 1 million clients who could not afford to pay for legal 

representation since its inception in 1966.3 As with the CSF, CLS protects low-income clients 

from the risk of loss affecting their income, including from fraudulent conduct.4 Accordingly, 

1

 https://dallasvolunteerattorneyprogram.org/ 

2 See id. 

3

 About Community Legal Services, Community Legal Services of Philadelphia, 

https://clsphila.org/about-community-legal-services/ 

4 See id. 

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courts have frequently designated CLS as an appropriate cy pres designee. See, e.g., In re 

Currency Conversion Fee Antitrust Litig., MDL No. 1409, Doc. No. 385 (S.D.N.Y. Dec. 21, 

2015) (designating CLS and one other entity for cy pres distribution); In re KLA-Tencor Corp. 

Secs. Litig., No. C-06-04065-CRB, Doc. No. 241 (N.D. Cal. Mar. 21, 2018) (designating CLS as 

one of three cy pres recipients); In re Hemispherix Biopharma, Inc. Litig., No. 09-cv-05262-PD, 

Doc. No. 86 (E.D. Pa. Oct. 4, 2016) (designating CLS as the cy pres recipient). 

For the foregoing reasons, Plaintiffs’ class counsel respectfully request that the Court 

authorize a cy pres distribution of any residual settlement funds, and that such residual funds be 

evenly distributed at 50% each to the CSF and CLS.5

III. CONCLUSION 

For all the reasons stated above, Plaintiffs respectfully request that this Court grant their 

motion to allow cy pres distribution of the residual settlement funds. A proposed form of Order 

is attached. 

Dated: March 9, 2020 Respectfully submitted, 

/s/ Theodore C. Anderson, III 

 Theodore C. Anderson, III 

 Texas State Bar No. 01215700 

 tca@kilgorelaw.com 

 KILGORE & KILGORE PLLC 

 3109 Carlisle Street 

Dallas, TX 75204 

Telephone: (214) 969-9099 

 

5

 One of the partners at Berger Montague, PC is on the board of CLS, where she receives no 

compensation for her participation. 

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Ruthanne Gordon 

PA 31052 

rgordon@bm.net 

David A. Langer 

PA84394 

dlanger@bm.net 

BERGER MONTAGUE PC 

1818 Market Street, Suite 3600 

Philadelphia, PA 19103 

Telephone: (215) 875-3000 

Plaintiffs’ Class Counsel 

CERTIFICATE OF SERVICE 

 I hereby certify that a true and correct copy of the above and foregoing was 

served on Counsel of record on this the 9th day of March, 2020 via the ECF system for the 

Northern District of Texas. 

 /s/ Theodore C. Anderson, III 

 Theodore C. Anderson, III 

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