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Marvin Dworken '59 and his brother, David M. Dworken ’56

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Alumnus’ Firm Leading Efforts to Donate Unclaimed Class-Action Rewards

January 7, 2010 | Alumni

Marvin Dworken’s Cleveland-based law firm, Dworken & Bernstein, has made innumerable decisions since the firm was founded in the late 1950s. But one decision in particular has benefited dozens of organizations and seemingly countless individuals around the country.

Dworken & Bernstein discovered and started using cy pres, which means “as nearly as possible,” to disperse unclaimed settlement money in class-action lawsuits to charities around Ohio and the country. To help spread the idea, the firm created an initiative, dubbed Ohio Lawyers Give Back, which has awarded more than $20 million to nearly 50 charities.

The decision, Dworken ’59 said, was simply the right thing to do.

The firm tripped upon the issue in the mid-1990s when it concluded dispersing money in a settled class-action suit. Money remained unclaimed – a normal occurrence in large, class-action settlements – from claimants who had moved, could not be located, or did not take the necessary action to receive their reward. Because nothing was written into the settlement agreement, the money was supposed to be returned to the defendant. In that particular case, both parties agreed to send half the money to the defendant and give the other half to local charities.

“It was something that kind of bothered us generally,” Dworken said. “Why should the wrongdoer benefit from the fact that someone in the class didn’t complete the forms? It was just wrong to think that this money would go back to the defendant. And cy pres was a way for us to right that wrong. That was how the firm decided to go this route. The thought of giving the defendant something they were not entitled to rubbed us the wrong way.” “When you get up in the morning you have to look at yourself in the mirror,” he said. “You have to ask yourself: ‘Am I representing these people to the best of my ability, and am I changing the behavior of these defendants?’ And I can honestly say that we are. This is working.”

Since that initial case, Dworken & Bernstein has worked to include cy pres clauses in each of its class action suits. A few years ago, as many of the slow-moving cases were settled, money began to be available for disbursement to charities.

More than $20 million has been donated thus far to a wide array of charities. They include everything from Cleveland-area shelters, children’s hospitals, and speech and hearings centers, to national groups like Big Brothers/Big Sisters, the Cystic Fibrosis Foundation, and others.

“As an attorney, you are not getting an additional fee for including cy pres, and you’re spending a lot more time on these cases,” Dworken said. “It’s more about what you get on the inside.”

Settlements are oftentimes drawn out in such cases because defendants know they will be forced to pay the agreed upon amount. “Without cy pres, they may say they are going to pay $5 million, but they know they will likely get plenty of that back,” said Patrick Perotti, a partner at Dworken and Bernstein who heads the Ohio Lawyers Give Back initiative.

Dworken & Bernstein is a northeast Ohio general practice firm with 25 attorneys, specializing in everything from business and litigation work to a personal injury and workers’ compensation practice. The firm has helped promote a bill in the Ohio Senate that would require judges to mandate cy pres clauses in all class action settlements. Meanwhile, Dworken said, the firm has encouraged other firms to begin taking similar action on class action suits.

Dworken’s brother, David M. Dworken ’56, helped co-found the firm Dworken & Bernstein Co. LPA in Cleveland in 1959. Subsequently, Marvin Dworken joined the firm as partner. David Dworken retired from the firm in 1995 and splits time between northeast Ohio and Florida.

Marvin Dworken – who has primarily focused his practice in workers’ compensation – said that he keeps breaking his scheduled retirement dates because he enjoys his job too much. “I’m a people person,” he said, “and I just love the type of work that I do. People come to me with these workers’ compensation cases with broken bodies and broken minds, and I am able to help them. When you get done, it is a very satisfying practice.”

Marvin Dworken’s Class of 1959 was one of the first to experience Ohio State law school in the then-new Drinko Hall. “They had a few wrinkles that needed to be worked out,” Marvin Dworken remembered.

In the first year Drinko Hall was opened, an electrical glitch caused all the lights within the building to go out, Marvin Dworken said. To boot, the battery-operated emergency lights did not work either.

“You heard people yell every kind of four-letter word that you could think of,” he said, with a laugh. “People were falling over chairs. It was just pitch black. It was pretty funny.”

Marvin Dworken said he enjoys returning along with his wife, Roberta, who he met at Ohio State, to watch Ohio State football games whenever he can. The Dworkens have three children and two of their eight grandchildren enrolled at Ohio State.

More information about Ohio Lawyers Give Back is available here.