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Nudge, Nudge, Wink, Wink: Behavioural Modification, Cy-Pres Distributions and Class Actions

Resource type
Author/contributor
Title
Nudge, Nudge, Wink, Wink: Behavioural Modification, Cy-Pres Distributions and Class Actions
Abstract
Jurisdictions that have created class action regimes provide as one of their justifications the promotion of behavioural modification or deterrence of wrongdoers. Peculiar to some class action regimes is the phenomenon of cy-pres distributions, in which the class counsel and judge choose a form of distribution for class members. The justification for cy-pres distributions is to ensure that a defendant receives nothing back from the monetary award and is thereby required to internalize the true cost of wrongdoing, or to disgorge the profits of wrongdoing. The cy-pres remedy is seen as furthering the deterrence function of class actions. I argue that it is difficult to find empirical evidence to substantiate the claim of behavioural modification in class action litigation. However, if courts are serious about deterrence, then I suggest that reorienting the focus of cy-pres distributions to properly account for behavioural modification may provide a better chance of that outcome.
Genre
SSRN Scholarly Paper
Archive ID
1803724
Place
Rochester, NY
Date
2011-04-05
Accessed
9/29/23, 7:20 PM
Short Title
Nudge, Nudge, Wink, Wink
Language
en
Library Catalog
Social Science Research Network
Citation
Berryman, J. (2011). Nudge, Nudge, Wink, Wink: Behavioural Modification, Cy-Pres Distributions and Class Actions (SSRN Scholarly Paper 1803724). https://doi.org/10.2139/ssrn.1803724
Author / Editor