Comment This section incorporates the idea of "fluid recovery", that is, use of the 96* The Business Lawyer; Vol. 32, November 1976 class recovery to benefit the class as a whole where distribution of damage awards to individual members is impracticable or a residue remains after distribution.

Occasionally the distribution has been in the form of price reductions to future customers of the defendant as long as a substantial degree of concurrence between the class and defendant's future customers is likely

—distributions to the class as a whole (by setting up a clinic or other treatment facility, for example

Federal law Federal courts have used fluid recovery to distribute nonies paid as settlements in class action suits6s and to distribute aggregate damages paid pursuant to a final judgment in a non-class action suit

—not only the merits of transit fares in the District of Columbia, but also the question of restitution of increases not shown to be reasonable, a matter discussed at text accompanying notes 213-14 infra.

—where the Commission had improperly authorized a fare increase, the amount realized could not be retained by the company, and even if it could not be directly refunded, had somehow to be "utilized for the benefit of the class who paid it."

This type of recovery has already been sanctioned by courts in cases involving fare overcharges by streetcars, buses, and taxicabs, with an aggregate damage fund established to subsidize fares or improve service for future passengers on the theory that a substantial portion of the formerly overcharged patrons would thereby be compensated

The only discussion of pertinent cases appears in the context of distinguishing three cases relied on by the lower court in support of fluid class recovery.

It is ironic that a company-wide solution to unreasonable passenger fares (resulting in the creation of a Riders' Fund on the company's books) should come years later in the courts, not in any agency; relate to local, not interstate, transportation; and be approved while private ownership of public surface transportation steadily declined throughout the country.

A rate order such as the one before us is not mooted by another one which has the effect of keeping the controversy alive.

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