Keepseagle v. Vilsack, 102 F. Supp. 3d 306

Settlement Agreement in 2011 created a $680,000,000 fund for the Native American farmers class.
Approximately $380,000,000 remained after the non-Judicial Claims Process concluded in 2013, triggering cy pres provisions.
Class Counsel sought modification to allocate or reorganize the remaining funds (cy pres or direct class payments).
Court documents show substantial dispute among Class Counsel, the Department of Agriculture, and amici;Keepseagle I & II describe the ongoing controversy.
The Court held Rule 23(e) does not apply to the modification, but ordered notice to the class and a hearing to solicit comments on June 29, 2015.
The settlement’s leftover funds were always intended for cy pres distribution, per the 2011 Agreement, with mechanisms to designate cy pres beneficiaries.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Rule 23(e) apply to Class Counsel’s modification request?	Class Counsel argues Rule 23(e) does not apply.	Government contends Rule 23(e) may apply if modification affects class rights.	Rule 23(e) does not apply; however, notice and a hearing are allowed.
May the court require notice to the class and permit comment despite no Rule 23(e) hearing?	Court has authority to direct notice under Rule 23(d)(1)(B) and the Settlement Agreement.	Same understanding; court may proceed with notice and hearing.	Court may order notice and hold a hearing or accept written comments.

Diamond Chem. Co. v. Akzo Nobel Chems. B.V., 517 F.Supp.2d 212 (D.D.C. 2007) (neither class nor settling defendants have a right to unclaimed funds; cy pres considerations)
Powell v. Georgia-Pacific Corp., 843 F.Supp. 495 (W.D. Ark. 1994) (unclaimed funds not a class member’s property interest)
Wilson v. Southwest Airlines, 880 F.2d 807 (5th Cir. 1989) (no legal right to balance of fund; unclaimed funds not class property)
In re Diet Drugs Prods. Liability Litig., 262 F.3d 1089 (10th Cir. 2001) (modification rights and notice considerations when altering settlements)