The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: GOOGLE LOCATION No. 24-3387
HISTORY LITIGATION,
D.C. No.
------------------------------
5:18-cv-05062-
EJD
NAPOLEON PATACSIL,
individually, and on behalf of other
persons similarly situated; OPINION
MICHAEL CHILDS; NOE
GAMBOA,
Plaintiffs - Appellees,
GEORGE JACK; MARK CARSON;
NAJAT OSHANA; RICHARD
DIXON; AICHI ALI; DOMENIC
LOMBARDO; RONNIE
KAUFMAN; LESLIE LEE; STACY
SMEDLEY,
Plaintiffs,
JOHN ANDREN; MATTHEW
LILLEY; JOSEPH S. ST. JOHN,
Objectors - Appellants,
v.
2 PATACSIL V. GOOGLE LLC
GOOGLE LLC; XXVI HOLDINGS
INC; ALPHABET INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted June 11, 2025
Pasadena, California
Filed August 26, 2026
Before: Richard R. Clifton, Jay S. Bybee, and Danielle J.
Forrest, Circuit Judges. *
Opinion by Judge Clifton;
Dissent by Judge Forrest
*
Judge Clifton was randomly drawn to replace Judge Sandra Ikuta on
the panel after she passed away. He has reviewed the parties’ briefs, the
record in this case, and the recording of the oral argument.
PATACSIL V. GOOGLE LLC 3
SUMMARY **
Class Settlement
The panel affirmed the district court’s order denying
appellants’ objections and granting final approval of a
settlement agreement reached between plaintiff class
representatives and defendants Google LLC and its related
entities.
Plaintiffs alleged, on behalf of a class of an estimated
247.7 million persons residing in the United States, that
Google violated its users’ privacy rights by continuously
tracking their location and storing that data even after users
had switched off the “Location History” feature on their
devices. The parties submitted a preliminary settlement
agreement that provided for injunctive relief and a settlement
fund to be distributed to cy pres recipients approved by the
district court. Objectors argued that the cy pres provision
was improper. The district court held a Fed. R. Civ. P.
23(e)(2) fairness hearing, overruled the objections, and
granted final settlement approval. The district court
concluded that distribution of settlement funds under the cy
pres doctrine was appropriate because a claims process
would be too costly and each class members’ pro rata share
of the settlement would be de minimis.
The panel rejected Objectors’ challenges to the district
court’s approval of the settlement agreement. First, the
panel rejected Objectors’ contention that the district court
failed to apply Fed. R. Civ. P. 23(e)(2)(C)(ii)—requiring the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PATACSIL V. GOOGLE LLC
court to consider the “effectiveness of any proposed method
of distributing relief to the class”—in its determination of
whether the proposed settlement was fair, reasonable, and
adequate. The panel held the district court appropriately
considered the enumerated factors under revised Rule
23(e)(2), as amended in 2018. Second, the panel held that
the district court satisfied the requirements of Rule 23(e),
and did not improperly apply a broad presumption of
settlement validity. Third, noting that this court has
repeatedly approved cy pres-only distributions, the panel
rejected Objectors’ contention contend that the “plain
language” of Rule 23(e)(2)(C)(ii) always requires rejection
of a cy pres-only settlement because it does not result in any
direct distribution to the class. Fourth, the panel affirmed
the district court’s holding that a direct distribution to all
class members was infeasible. Fifth, the panel held that the
district court correctly applied the substantial nexus test to
determine that the cy pres recipient awards were appropriate
as part of a settlement that was fair, adequate, and
reasonable.
Finally, the panel declined to consider Objectors’
argument that the settlement and approval order exceeded
the district court’s Article III authority because Objectors
failed to raise the argument to the district court.
Dissenting, Judge Forrest would reverse because she
would hold that the district court failed to adhere to
important limitations on cy pres disbursement. Its use is
appropriate only when settlement funds are truly non-
distributable to the absent class members, and that has not
been shown in this case.
PATACSIL V. GOOGLE LLC 5
COUNSEL
Samuel Issacharoff (argued), Samuel Issacharoff, New
York, New York; Michael W. Sobol, Jallé H. Dafa, Michael
Levin-Gesundheit, Michael K. Sheen, John D. Maher, and
Melissa Gardner, Lieff Cabraser Heimann & Bernstein LLP,
San Francisco, California; Nicholas Diamand, Lieff
Cabraser Heimann & Bernstein LLP, New York, New York;
Tina Wolfson, Theodore W. Maya, Bradley K. King and
Henry J. Kelston, Ahdoot & Wolfson PC, Burbank,
California; for Plaintiffs-Appellees.
Theodore H. Frank (argued) and Anna W. St. John,
Hamilton Lincoln Law Institute, Washington, D.C., for
Objectors-Appellants.
Benjamin W. Berkowitz (argued), Ian A. Kanig, Nicholas D.
Marais, and Thomas E. Gorman, Keker Van Nest & Peters
LLP, San Francisco, California; for Defendants-Appellees.
Eric H. Wessan, Solicitor General; Brenna Bird, Iowa
Attorney General; Office of the Iowa Attorney General, Des
Moines, Iowa; Steve Marshall, Alabama Attorney General,
Office of the Alabama Attorney General, Montgomery,
Alabama; Chris Carr, Georgia Attorney General, Office of
the Georgia Attorney General, Atlanta, Georgia; Treg
Taylor, Alaska Attorney General, Office of the Alaska
Attorney General, Anchorage, Alaska; Raúl R. Labrador,
Idaho Attorney General, Office of the Idaho Attorney
General, Boise, Idaho; Tim Griffin, Arkansas Attorney
General, Office of the Arkansas Attorney General, Little
Rock, Arkansas; Theodore E. Rokita, Indiana Attorney
General, Office of the Indiana Attorney General,
Indianapolis, Indiana; Ashley Moody, Florida Attorney
General, Office of the Florida Attorney General,
6 PATACSIL V. GOOGLE LLC
Tallahassee, Florida; Liz Murrill, Louisiana Attorney
General, Office of the Louisiana Attorney General, Baton
Rouge, Louisiana; Austin Knudsen, Montana Attorney
General, Office of the Montana Attorney General, Helena,
Montana; Alan Wilson, South Carolina Attorney General,
Office of the South Carolina Attorney General, Columbia,
South Carolina; Michael T. Hilgers, Nebraska Attorney
General, Office of the Nebraska Attorney General, Lincoln,
Nebraska; Marty Jackley, South Dakota Attorney General,
Office of the South Dakota Attorney General, Pierre, South
Dakota; Drew Wrigley, North Dakota Attorney General,
Office of the North Dakota Attorney General, Bismarck,
North Dakota; Jonathan Skrmetti, Tennessee Attorney
General, Office of the Tennessee Attorney General,
Nashville, Tennessee; Dave Yost, Ohio Attorney General,
Office of the Ohio Attorney General, Columbus, Ohio; Sean
D. Reyes, Utah Attorney General, Office of the Utah
Attorney General, Salt Lake City, Utah; Gentner
Drummond, Oklahoma Attorney General, Office of the
Oklahoma Attorney General, Oklahoma City, Oklahoma;
Jason S. Miyares, Virginia Attorney General, Office of the
Virginia Attorney General, Richmond, Virginia; Patrick
Morrisey, West Virginia Attorney General, Office of the
West Virginia Attorney General, Charleston, West Virginia;
for Amici Curiae Iowa, Alabama, Alaska, Arkansas, Florida,
Georgia, Idaho, Indiana, Louisiana, Montana, Nebraska,
North Dakota, Ohio, Oklahoma, South Carolina, South
Dakota, Tennessee, Utah, Virginia, and West Virginia
Attorneys General.
PATACSIL V. GOOGLE LLC 7
OPINION
CLIFTON, Circuit Judge:
Appellants John Andren, Matthew Lilley, and Joseph St.
John (collectively, “Objectors”) appeal the district court’s
order granting final approval of a settlement agreement
reached between plaintiff class representatives (“Plaintiffs”)
and defendants Google LLC and its related entities
(“Google”). Plaintiffs alleged, on behalf of a class of an
estimated 247.7 million persons residing in the United
States, that Google violated its users’ privacy rights by
continuously tracking their location and storing that data
even after users had switched off the “Location History”
feature on their devices.
After years of motion practice, the parties submitted a
preliminary settlement agreement that provided for
injunctive relief and a $62 million settlement fund to be
distributed to cy pres recipients approved by the district
court. “[C]ourts have used cy pres to distribute class-action-
settlement funds not amenable to individual claims or to a
meaningful pro rata distribution to a nonprofit charitable
organization whose work indirectly benefits the class
members and advances the public interest.” Cy pres, Black’s
Law Dictionary (12th ed. 2024). Objectors argued, among
other things, that the cy pres provision was improper because
it was feasible to directly distribute the $62 million
settlement fund to class members through a claims process.
The district court overruled the objections and granted final
settlement approval based on its determination that the
settlement agreement was fair, adequate, and reasonable. We
affirm.
8 PATACSIL V. GOOGLE LLC
I. Background
Plaintiffs alleged that Google falsely misrepresented to
users that by turning off the “Location History” setting on
their devices, they could prevent Google from creating and
storing a record of their movements.
Initially, the named Plaintiffs individually sued Google.
These suits were consolidated into a putative class action
asserting a violation of users’ privacy rights. Following
mediation, the parties reached a settlement, and the district
court preliminarily certified the class for settlement purposes
only. The settlement class included “[a]ll natural persons
residing in the United States who used [Apple and Android]
mobile devices and whose location information was stored
by Google while ‘Location History’ was disabled.” The class
definition captures approximately 247.7 million persons—
roughly three-quarters of the United States’ population. 1
The settlement provided two forms of relief for the class.
First, without admitting any liability, Google agreed to
rectify its allegedly wrongful conduct and refrain from
similar conduct in the future. Second, Google agreed to pay
$62 million into a settlement fund. The fund would pay
Plaintiffs’ attorneys’ fees and expenses, service awards to
the named class representatives, and other administrative
costs associated with the settlement. The remainder of the
settlement fund would be distributed to charitable
organizations “with a track record of addressing privacy
concerns on the Internet.” Before the final approval hearing,
the parties proposed 21 cy pres recipients with a
1
The class definition excludes the district judge, his family, and his staff,
as well as any appellate judge “to which this matter is ever assigned, and
[their] immediate family and staff.”
PATACSIL V. GOOGLE LLC 9
recommended funding amount for each one and provided the
district court with the intended recipients’ project proposals
for how they would use the settlement funds.
Objectors challenged the proposed settlement. Among
other things, they asserted that dispersing funds under the cy
pres doctrine before making any attempt to pay class
members through a claims process was improper. They also
asserted that the proposed cy pres recipients would not serve
class interests.
The district court held a Rule 23(e)(2) fairness hearing,
and approved the settlement. It concluded that distribution
of settlement funds under the cy pres doctrine was
appropriate because a claims process would be too costly
and each class members’ pro rata share of the settlement
would be de minimis. Ultimately, the district court awarded
$18.6 million in attorneys’ fees, $151,756.23 in litigation
expenses, and $5,000 to each of the named class
representatives in service awards. The remaining $42.64
million was divided in varying amounts between 21 cy pres
recipients. Objectors appealed.
II. Discussion
“We review a district court’s approval of a proposed
class action settlement, including a proposed cy pres
settlement distribution, for abuse of discretion.” Nachshin v.
AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011). Such
review is “extremely limited,” and we “will affirm if the
district court judge applies the proper legal standard and his
findings of fact are not clearly erroneous.” In re Mego Fin.
Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
10 PATACSIL V. GOOGLE LLC
A. 2018 Amendments to Rule 23
Objectors contend that the district court failed to apply
Rule 23(e)(2)(C)(ii)—requiring the court to consider “the
effectiveness of any proposed method of distributing relief
to the class”—in its determination of whether the proposed
settlement was fair, reasonable, and adequate. Fed. R. Civ.
P. 23(e)(2)(C)(ii). We disagree.
Rule 23 establishes the procedure for class action
settlements. See Fed. R. Civ. P. 23(e). Prior to 2018, the Rule
provided that a “court may approve [a proposed settlement]
only after a hearing and on finding that it is fair, reasonable,
and adequate.” Fed. R. Civ. P. 23(e)(2) (2017). Courts,
including our court, identified factors to be considered by a
district court in making this determination. See, e.g., Staton
v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003). In 2018,
Rule 23 was amended to provide specific factors that a court
must consider in determining whether a proposed settlement
met the fair, reasonable, and adequate standard. Fed. R. Civ.
P. 23(e)(2) (2018).
The advisory committee’s notes to the 2018 amendment
caution that the amendment was not intended to “displace”
any previously identified factor, but “rather to focus the
court and the lawyers on the core concerns of procedure and
substance that should guide the decision whether to approve
the proposal.” Fed. R. Civ. P. 23(e)(2) advisory committee’s
note to 2018 amendment. We subsequently clarified that it is
not an abuse of discretion for a district court to continue to
consider the factors we had previously identified. “[I]t is still
appropriate for district courts to consider these factors in [a]
holistic assessment of settlement fairness.” McKinney-
Drobnis v. Oreshack, 16 F.4th 594, 609 n.4 (9th Cir. 2021);
see also Briseño v. Henderson, 998 F.3d 1014, 1026 (9th Cir.
PATACSIL V. GOOGLE LLC 11
2021). However, because “Congress provided district courts
with new instructions . . . that require them to go beyond our
precedent,” it is legal error for a district court to omit from
its analysis any of the factors provided for in the amended
Rule 23. Briseño, 998 F.3d at 1026.
We conclude that the district court appropriately
considered the enumerated factors under the revised
Rule 23(e)(2). The district court assessed the “amount
offered” in the settlement and concluded that “the monetary
and injunctive relief is fair, adequate, and reasonable.” It
further concluded that a “cy pres distribution [is] appropriate
in this case” because the settlement fund is “non-
distributable” under our precedents, where the “pro rata
recovery per [c]lass [m]ember could be no more than
twenty-five cents, assuming the [district court] awards no
attorneys’ fees, service awards, or administration costs.” It
gave a detailed and reasoned response to Objectors’
contentions regarding the availability of other methods of
relief and found that distribution of the settlement funds
through alternative methods would be infeasible.
The district court did not abuse its discretion by
considering these factors under the framework provided in
Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 575
(9th Cir. 2004), prior to the 2018 amendments to Rule 23.
As noted above, the district court “explored
comprehensively all [Rule 23(e)(2)] factors” and “g[ave] a
reasoned response to all non-frivolous objections.” In re
Apple Inc. Device Performance Litig., 50 F.4th 769, 782 (9th
Cir. 2022) (first alteration in original) (citation omitted).
Because we conclude that the district court would conduct
the same analysis and reach the same result were we to
remand, we affirm. See Agarwal v. Arthur G. McKee & Co.,
644 F.2d 803, 807 n.3 (9th Cir. 1981).
12 PATACSIL V. GOOGLE LLC
B. Presumption of Settlement Validity
Objectors argue that the district court erred in applying a
presumption of fairness in determining whether the
settlement was valid. “Rule 23(e)(2) assumes that a class
action settlement is invalid.” Briseño, 998 F.3d at 1030. “It
also instructs that ‘[i]f the proposal would bind class
members, the court may approve it only after a hearing and
only on finding that it is fair, reasonable, and adequate.’” Id.
(alteration in original) (quoting Fed. R. Civ. P. 23(e)(2)).
The district court satisfied the requirements of
Rule 23(e). The district court held a fairness hearing,
weighed the objections, and considered the relevant
Rule 23(e) factors in making its determination. The district
court did not improperly apply a broad presumption of
settlement validity to the entirety of its analysis.
C. Cy Pres-only Distributions
Objectors contend that the “plain language” of
Rule 23(e)(2)(C)(ii) always requires rejection of a cy pres-
only settlement 2 because it does not result in any direct
distribution to the class.
We have expressly “reject[ed] the suggestion that a
district court may not approve a class-action settlement that
provides monetary relief only in the form of cy
pres payments to third parties.” In re Google Inc. St. View
Elec. Commc’ns Litig., 21 F.4th 1102, 1113 (9th Cir. 2021)
(footnote omitted) (“Google Street View”). Our court has
2
We do not accept Objectors’ descriptions of the settlement as “all-cy
pres” and “cy pres-only.” The settlement involved both cy pres payments
to third party organizations and injunctive relief. We use the term “cy
pres-only distributions” to refer to the fact that all monetary relief was
ordered to be distributed to cy pres recipients.
PATACSIL V. GOOGLE LLC 13
repeatedly approved cy pres-only distributions, and in doing
so, we have evaluated whether cy pres is appropriate and
whether the cy pres recipients will serve the interests of the
class. E.g., id.; Lane v. Facebook, Inc., 696 F.3d 811 (9th
Cir. 2012).
While the dissent does not go so far as to mount a
categorical challenge to the use of cy pres-only distributions,
it comes close, at 34–35. Contrary to the dissent’s suggestion
that it may not be for the courts “to decide that they know
better how to serve the class’s interests,” that is precisely
what Rule 23 and caselaw provides for courts to do. The
district court considered the interests of all class members,
not just the tiny number who filed objections and not just the
tiny fraction of the class that might be expected to file
financial claims. It was correct in doing so. The dissent’s
alternative approach would elevate the noisy few over the
interests of all class members. 3
D. Cy Pres Requirements
Objectors do not address whether the cy pres
requirements are met in this case. The district court held that
a cy pres-only distribution was appropriate given that the
$62 million settlement fund divided by 247.7 million class
members would result in a de minimis recovery for each
class member, further diminished by attorneys’ fees,
expenses, administrative costs, and service awards.
3
The dissent cites observations by two justices and two circuit judges
from other circuits in support of the concerns that the dissent identifies,
but all are from separate opinions. None are from majority opinions that
serve as precedent and none support disregard of the precedent that
controls this case.
14 PATACSIL V. GOOGLE LLC
The district court’s holding accords with our precedents
deeming a settlement fund non-distributable where “each
class member’s recovery under a direct distribution would
be de minimis.” Lane, 696 F.3d at 825 (holding a direct
distribution infeasible where $6.5 million was to be divided
among 3.6 million class members) 4; see also Google Street
View, 21 F.4th at 1114 (holding a direct distribution
infeasible where $13 million was to be divided among 60
million class members). Because the pro rata distribution
here would be similarly miniscule, the district court did not
abuse its discretion in approving the parties’ proposed
settlement.
Objectors argue that the interests of the class are better
served by distributing tiny amounts of money to a tiny
fraction of the class rather than directing the money to
initiatives protecting privacy interests more generally.
Although dividing the settlement funds among all class
members would leave less than 25 cents for each class
member, Objectors contend that only a very small
percentage of the class would actually seek recovery.
Specifically, Objectors suggest that only 1.5% of the class
members would submit claims, leaving less than $17 to each
4
The dissent attempts to undermine the precedential value of Lane by
observing, at 33, that the Lane court did not establish a clear “standard
for courts to apply in assessing” feasibility as informed by individual
class member recovery. We need not, however, opine on the
comprehensiveness of the discussion in Lane, where the dissent fails to
address how the district court abused its discretion in approving a
settlement that accords with the individual recovery amounts provided
in Lane and Google Street View. It is the ordinary role of courts to rule
on particular cases, not to write codes that might apply to other cases.
Sometimes a court may speak more broadly, but it was not an abuse of
discretion for the district court to focus on the facts of this case, and that
is the standard for our review.
PATACSIL V. GOOGLE LLC 15
claimant, without considering administrative expenses,
attorneys’ fees, or any other costs, all of which would reduce
the funds available for distribution to individual claimants.
But that leaves out 98.5% of class members.
This argument—that dispersing funds to a fraction of the
class is preferable to payments to third parties through cy
pres—rests upon the false premise that cy pres distributions
do not benefit the class. We do not share that view. Google
Street View, 21 F.4th at 1116 (“In upholding the validity of
cy pres arrangements, we have repeatedly recognized that
class members do benefit—albeit indirectly—from a
defendant’s payment of funds to an appropriate third
party.”).
In addition, the dissent fails to acknowledge that there is
no benefit whatsoever to class members from significantly
larger administrative costs inherent in the approach the
dissent prefers. To the contrary, increased administrative
expenditures subtract from the benefits to class members.
The dissent reasons, at 32, that “[b]ecause there will always
be costs associated with processing and distributing a class
settlement,” undisputed administrative costs of up to $8.2
million should not weigh against a direct distribution. But it
does not explain how that diversion of $8.2 million to
administrative expenses—and the reduction of funds
available for cy pres distributions—is more beneficial to the
class as a whole than the improved privacy benefits that are
the goal of programs funded by the cy pres distributions. The
added administrative spending would benefit professional
administrators and other vendors, but not the class members.
The district court also properly considered the fact that
even if it were feasible to distribute such a minimal amount
to each claimant, there was no way to verify whether
16 PATACSIL V. GOOGLE LLC
claimants fit the class definition. The district court relied on
evidence submitted by Google that its “data-collection
practices and systems make it infeasible to identify the
individuals who fit this class definition.” On appeal,
Objectors conclusorily assert that class members could self-
identify and opt-in to the class. Critically absent from
Objectors’ briefs is any proposed methodology to verify each
claimant’s entitlement to settlement funds once they self-
identify. Self-identification would thus be “pure
speculation,” and Objectors have not offered a way to verify
the claims “with any degree of probability.” Google Street
View, 21 F.4th at 1115.
The dissent concedes, at 29–30, that Objectors have
failed to offer any proposed methodology for reliably
verifying their claims. Instead, the dissent surmises, at 29,
that the submission of a declaration or affidavit by each
claimant “might suffice” to verify their claims. This
proposal, however, creates a scenario where an individual
who might not be an actual class member is able to submit a
claim and affidavit, which cannot be independently verified
by scientifically sound methods. Payment to such an
individual would be of no benefit to the class.
In the alternative, the dissent offers, at 29–30, that
“ordinary methods of verification” used in consumer class
action settlements, see, e.g., Briseno v. ConAgra Foods, Inc.,
844 F.3d 1121, 1131 (9th Cir. 2017), are “sufficient” to
protect Google’s rights. The dissent, however, has not
explained how methods verifying the purchase of physical
retail products (i.e., cooking oil in Briseno) would translate
to claims involving location tracking on mobile devices,
where Google has already submitted evidence that such
verification is not possible. Nor does the dissent account for
the further erosion of funds available to benefit class
PATACSIL V. GOOGLE LLC 17
members by the cost of whatever verification methods might
be proposed and employed.
Accordingly, we affirm the district court’s holding that a
direct distribution is infeasible.
E. Cy Pres Recipients
Objectors argue that the district court abused its
discretion by approving cy pres recipients who (1) were “too
remote” from the plaintiff class and the underlying data
privacy issues; and (2) engaged in ideological work at odds
with a material portion of the class. Objectors specifically
take issue with nine of the twenty-one total cy pres
recipients. 5 We conclude that the district court correctly
applied our substantial nexus test to determine that the cy
pres recipient awards were appropriate as part of a
settlement that was fair, adequate, and reasonable. See Lane,
696 F.3d at 821.
The substantial nexus test contemplates whether the
proposed award: (1) addresses the objectives of the
underlying action; (2) targets the plaintiff class; and
(3) provides “reasonable certainty that any member will be
benefitted.” Nachshin, 663 F.3d at 1040. We agree with the
district court that the cy pres recipients had documented their
commitment to advocate for the protection of data privacy,
establishing a substantial nexus to the underlying interests of
the class.
5
The nine organizations are: MIT Internet Policy Research Initiative;
Fordham University Center on Law and Information Policy; Electronic
Frontier Foundation; the Center for Democracy and Technology; Rose
Foundation; Electronic Privacy Information Center; Internet Archive;
ACLU of Northern California Technology & Civil Liberties Program;
and Yale Law School’s Information Society Project.
18 PATACSIL V. GOOGLE LLC
Objectors also mount geographic challenges as to three
of the proposed organizations. Objectors assert that Fordham
University Center on Law and Information Policy’s proposal
concerning “local communities and populations in the
Global South” failed to benefit the plaintiff class residing
exclusively in the United States. We disagree. Fordham did
not propose to conduct research targeting the Global South;
it proposed to host scholars from the Global South to engage
in internet privacy research, which is consistent with the
underlying interests of the class. In addition, Objectors argue
that the proposed projects of the Internet Archive and
Electronic Frontier Foundation are “too remote” because
they target a global audience. However, they do not explain
how class members residing in the United States would not
also benefit from global initiatives. As such, Objectors’
geographic challenges fail.
Finally, Objectors argue that the district court abused its
discretion by approving cy pres recipients that engaged in
ideological work at odds with a substantial portion of the
class. As a preliminary matter, Objectors’ attempt to
introduce an additional factor under the substantial nexus
test is not supported by our precedents. See Nachshin, 663
F.3d at 1040 (describing the three factors).
Objectors’ argument separately fails because a standard
mandating universal approval would be unworkable in
practice. Seeing that the class here is estimated to include
247.7 million people, or most residents of the United States,
that some number might disagree seems unremarkable. This
is consistent with our guidance in Lane, where we held
district courts are not required to “select a cy pres recipient
that the court or class members would find ideal” because
“such an intrusion into the private parties’ negotiations
would be improper and disruptive to the settlement process.”
PATACSIL V. GOOGLE LLC 19
696 F.3d at 821. As such, we will not disturb the district
court’s approval of the settlement where Objectors have not
otherwise established that the recipients lack a substantial
nexus to the class.
F. Article III
Objectors further argue that the settlement and approval
order exceeded the district court’s Article III authority
because it permits the district court to designate recipients,
allocate funds, and monitor the cy pres distribution for
several years after the funds are to be distributed. We decline
to consider this challenge on appeal because Objectors failed
to raise this argument to the district court. See United States
v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983). 6 The issues
raised in this challenge are complex, and Objectors’
arguments, if accepted, would significantly disrupt accepted
legal doctrine and practice. In these circumstances, it is
prudent to await a more fulsome presentation before opining
on the merits of Objectors’ constitutional challenge. See
Camreta v. Greene, 563 U.S. 692, 705 (2011).
AFFIRMED.
6
While some aspects of Article III, like standing, are jurisdictional and
not subject to forfeiture, not all Article III challenges avoid forfeiture
principles. E.g., In re Bellingham Ins. Agency, Inc., 702 F.3d 553, 567
(9th Cir. 2012) (“[A]s a personal right, Article III’s guarantee of an
impartial and independent federal adjudication is subject to waiver.”
(quoting Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,
848 (1986))). Objectors have not argued that Plaintiffs and the class lack
standing such that the district court lacks jurisdiction to act in this case:
only that the district court exceeded the scope of its power. Therefore,
forfeiture principles apply. See Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 160–61 (2010).
20 PATACSIL V. GOOGLE LLC
FORREST, Circuit Judge, dissenting:
Cy pres derives from Norman French and refers to doing
something “as near as” possible. Cy Pres, Black’s Law
Dictionary (12th ed. 2024); see Rhonda Wasserman, Cy Pres
in Class Action Settlements, 88 S. Cal. L. Rev. 97, 114
(2014) (explaining the cy pres comes “from the Norman
French expression, cy près comme possible, which means ‘as
near as possible’”). In the class action context, cy pres refers
to “the practice of distributing settlement funds not amenable
to individual claims or meaningful pro rata distribution to
nonprofit organizations whose work is determined to
indirectly benefit class members.” Frank v. Gaos, 586 U.S.
485, 490–91 (2019) (per curiam) (citing Cy Pres, Black’s
Law Dictionary (10th ed. 2014)). The theory is that a
charitable distribution “for the aggregate, indirect,
prospective benefit of the class” may be the “next best”
alternative when a direct distribution to the class members
cannot be accomplished. Nachshin v. AOL, LLC, 663 F.3d
1034, 1038 (9th Cir. 2011) (citations omitted).
Cy pres certainly helps solve the problem of what to do
with undistributed and undistributable class settlement
funds. But courts disbursing settlement funds to actors
different than those for whose benefit the funds were
obtained in the first place also raises serious questions
related to due process and the proper role of the civil justice
system. In recognition of this fact, the law places limits on
when this distribution tool can be used and instructs courts
to select cy pres recipients who in some way represent and
will serve the class members’ interests. Id. at 1039. As we
have explained, “[w]hen selection of cy pres beneficiaries is
not tethered to the nature of the lawsuit and the interests of
the silent class members, the selection process may answer
PATACSIL V. GOOGLE LLC 21
to the whims and self interests of the parties, their counsel,
or the court.” Id. But the limitations are not always followed
in practice.
For example, courts have dispersed settlement funds
collected on behalf of purchasers of price-fixed NASCAR
race souvenirs to charities like the Make-a-Wish Foundation,
In re Motorsports Merchandise Antitrust Litigation, 160 F.
Supp. 2d 1392, 1395–99 (N.D. Ga. 2001)), settlement funds
collected in antitrust litigation to art museums, Superior
Beverage Co., Inc. v. Owens-Illinois, Inc., 827 F. Supp. 477,
485–86 (N.D. Ill. 1993), and settlement funds arising out of
a wage dispute in the modeling industry to women’s
organizations when men made up nearly half the class, Fears
v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911 (HB),
2007 WL 1944343, at *10–11 (S.D.N.Y. July 5, 2007),
vacated on other grounds, 315 Fed. App’x 333 (2d Cir.
2009). See Wasserman, supra, at 119. And sometimes the
defendants who pay the settlement have held vested interests
in the recipient organizations, all but giving settlement funds
back to their source—a practice we have condoned only in
limited circumstances. See id. at 121 (discussing Lane v.
Facebook, Inc., 696 F.3d 811, 820–21 (9th Cir. 2012), where
an all-cy pres distribution set up a charity to be run in part
by a one of the defendant’s executives).
In this case, the district court failed to adhere to
important limitations on cy pres disbursement. It extended
our reasoning in In re Google Inc. Street View Electronic
Communications Litigation, 21 F.4th 1102 (9th Cir. 2021),
and approved the distribution of over $40 million to various
charitable organizations without attempting any distribution
to the absent class members where, unlike in Google Street
View, it is possible to identify the class members and verify
their claims. Relaxing the cy pres standard in this manner
22 PATACSIL V. GOOGLE LLC
undermines its function as an equitable doctrine, Dennis v.
Kellogg Co., 697 F.3d 858, 865 (9th Cir. 2012), which are
meant “to secure justice where it would not be secured by
the ordinary and existing processes of law,” Trump v. CASA,
Inc., 606 U.S. 831, 842 (2025) (citation omitted). Cy pres is
not properly employed merely because the members of a
class may be difficult to identify or are likely to receive only
a small sum. Its use is appropriate only when settlement
funds are truly “non-distributable” to the absent class
members. E.g., Lane, 696 F.3d at 819; Google Street View,
21 F.4th at 1115. Because that has not been shown to be the
case here, I respectfully dissent.
BACKGROUND
A. Class-Settlement Principles
Settlements in “class actions present unique due process
concerns for absent class members.’” In re Bluetooth
Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir.
2011) (citation omitted). Because class members are not
present to advance their own interests, there is an “inherent
risk that class counsel may collude with the defendants,
tacitly reducing the overall settlement in return for a higher
attorney’s fee.” Id. (citation omitted). For this reason,
Federal Rule of Civil Procedure 23(e) imposes specific
procedural requirements for these settlements. See id.
Namely, the district court must approve all class settlements,
and it may do so only “after a hearing and only on finding
that [the settlement] is fair, reasonable, and adequate.” Fed.
R. Civ. P. 23(e)(2).
Class settlements also present unique administrability
problems, including what to do with unclaimed settlement
funds and funds that cannot feasibly be distributed to the
class members. One option is to issue “additional pro rata
PATACSIL V. GOOGLE LLC 23
distributions to those class members who did claim funds.”
Google Street View, 21 F.4th at 1110–11. A second “option
is to permit such funds to escheat to the government.” Id. at
1110 (citing Hodgson v. YB Quezada, 498 F.2d 5, 6 (9th Cir.
1974); 28 U.S.C. § 2042); see Six (6) Mexican Workers v.
Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990).
Third, “in exceptional circumstances it may be proper to
permit unclaimed sums to revert to the [defendant].”
Hodgson, 498 F.2d at 6; see Six (6) Mexican Workers, 904
F.2d at 1307. And finally, a district court may use the cy pres
doctrine to distribute settlement funds to charitable
organizations that serve the interests of the class. See Google
Street View, 21 F.4th at 1111; Six (6) Mexican Workers, 904
F.2d at 1307.
Rather than granting the government or the defendant a
windfall, cy pres is intended to serve the class’s interests by
funding organizations that will work to redress the class’s
injury or its causes. See Google Street View, 21 F.4th at
1111.; Six (6) Mexican Workers, 904 F.2d at 1308–09. But
this “next best” theory only holds true where the charitable
recipients have a connection to the class’s interests such that
the funds will be used in a manner that serves those interests.
Nachshin, 663 F.3d at 1038–39. As we have cautioned, “the
cy pres doctrine—unbridled by a driving nexus between the
plaintiff class and the cy pres beneficiaries—poses many
nascent dangers to the fairness of the distribution process.”
Id. at 1038.
B. The Parties’ Settlement
The named Plaintiffs in this class action independently
sued Google, LLC, and its corporate relatives, alleging that
Google tracked mobile-device users’ locations and stored
that data even after users switched off the “location history”
24 PATACSIL V. GOOGLE LLC
setting on their devices. These suits were consolidated into a
putative class action asserting violation of users’ privacy
rights. Eventually, the parties agreed on a settlement, and the
district court preliminarily certified the class for settlement
purposes only.
The settlement class included “[a]ll natural persons
residing in the United States who used one or more mobile
devices and whose Location Information was stored by
Google while ‘Location History’ was disabled at any time
during the Class Period.” This class definition captures
approximately 247.7 million Americans—roughly three-
quarters of the United States’ population. 1
Settlement provided two kinds of relief for the class.
First, Google agreed to rectify its allegedly wrongful
conduct and refrain from similar conduct in the future.
Second, Google agreed to pay $62 million into a settlement
fund. The fund would pay Plaintiffs’ attorneys’ fees and
expenses, service awards to the named class representatives,
and other administrative costs associated with the
settlement. The entire remainder of the settlement fund
would be distributed to charitable organizations. There was
no provision for direct payment to class members to
compensate for their asserted injury.
Objectors John Andren, Matthew Lilley, and Joseph St.
John challenged the proposed settlement. Relevant here,
they argued that dispersing funds under the cy pres doctrine
before making any attempt to pay class members through a
claims process was improper. The district court held a Rule
23(e)(2) fairness hearing and approved the settlement. The
court concluded that distribution of settlement funds under
1
The class definition excludes any judicial actor presiding over the case.
PATACSIL V. GOOGLE LLC 25
the cy pres doctrine was appropriate because a claims
process would be too costly and the class members’ pro rata
share of the settlement would be de minimis. Ultimately, the
district court awarded $18.6 million in attorney fees,
$151,756.23 in litigation expenses, and $5,000 in service
awards to the named class representatives. The remaining
$42.64 million was divided in varying amounts between 21
cy pres recipients. Objectors appealed.
DISCUSSION
A. Article III
As an initial matter, I agree with the majority that
Objectors forfeited their argument that use of an all-cy pres 2
settlement exceeded the district court’s Article III authority.
Objectors are not arguing that the federal judiciary lacks
power to act in this case, only that the district court exceeded
the scope of its power. Therefore, forfeiture principles apply.
See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61
(2010) (recognizing that an argument about judicial power is
only “jurisdictional,” and therefore exempt from forfeiture,
when it “delineat[es] the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction)
implicating that authority” (citation omitted)). And while we
2
The majority correctly points out that Objectors’ reference to this being
an all-cy pres settlement is a misnomer because the settlement included
injunctive relief. This is meaningful because with that equitable relief,
the class members directly benefited to some degree from the settlement.
Cf. Gaos, 586 U.S. at 495 (Thomas, J., dissenting) (“[T]he fact that class
counsel and the named plaintiffs were willing to settle the class claims
without obtaining any relief for the class—while securing significant
benefits for themselves—strongly suggests that the interests of the class
were not adequately represented.”). But, like the majority, I refer to the
settlement as purely cy pres as shorthand for the fact that all funds from
settlement were ordered to be distributed to cy pres beneficiaries.
26 PATACSIL V. GOOGLE LLC
have discretion to ignore forfeiture, I would not here because
Objectors raised their constitutional challenge at the last
minute and devoted only a few pages of their briefing to it,
defeating the benefits of a full adjudicative process.
With that said, the concern that Objectors raise is not
trivial. See Keepseagle v. Perdue, 856 F.3d 1039, 1071 (D.C.
Cir. 2017) (Brown, J., dissenting) (asserting that “cy pres is
problematic for judicial power” in relation to justiciability
requirements); Klier v. Elf Atochem N. Am., Inc., 658 F.3d
468, 480–82 (5th Cir. 2011) (Jones, C.J., concurring)
(explaining that, while the question of “[w]hether cy pres
distributions violate the Constitution or Rules Enabling Act
has not . . . been fully litigated in any court,” the doctrine
poses “opportunities for abuse” that justify taking care to
“avoid the legal complications that assuredly arise when
judges award surplus settlement funds to charities and civic
organizations”). While it is prudent to wait before wading
into the constitutional issues that Objectors raise, they are
ones that deserve consideration when properly presented.
B. Rule 23
Federal Rule of Civil Procedure 23 mandates the
procedure for class-action settlements, including the factors
that courts should consider when determining whether a
settlement is “fair, reasonable, and adequate.” See Fed. R.
Civ. P. 23(e)(2). Among other things, these factors include
whether “the relief provided for the class is adequate, taking
into account: . . . the effectiveness of any proposed method
of distributing relief to the class, including the method of
processing class-member claims.” Fed. R. Civ. P.
23(e)(2)(C)(ii). “We review a district court’s approval of a
proposed class action settlement, including a proposed cy
PATACSIL V. GOOGLE LLC 27
pres settlement distribution, for abuse of discretion.” Google
Street View, 21 F.4th at 1110 (citation omitted).
Objectors argue that the district court erred in concluding
that the requirements for employing cy pres distribution are
met here. 3 Namely, they argue that the district court erred in
concluding that the settlement fund is “non-distributable.”
E.g., Lane, 696 F.3d at 819; Google Street View, 21 F.4th at
1115. I agree.
A fund is “‘non-distributable’ when ‘the proof of
individual claims would be burdensome or distribution of
damages costly.’” Lane, 696 F.3d at 819 (quoting Nachshin,
663 F.3d at 1038). Put another way, “[i]f it were feasible to
distribute the settlement fund to the class members, a cy pres
settlement would not be employed.” Google Street View, 21
F.4th at 1115. The district court determined that the
monetary settlement here is non-distributable because it is
not feasible to identify the class members, a claims-
administration process would be prohibitively expensive,
and the class members would receive only de minimis
recovery under a claims process. These three justifications—
3
As the majority discusses, Objectors make two additional arguments.
First, Objectors argue that the district court erred by basing its approval
of the settlement on factors established in our caselaw rather than in Rule
23(e). I agree with the majority that this challenge fails because, while
the district court erroneously purported to base its analysis on our
“judicially manufactured factors,” Briseño v. Henderson, 998 F.3d 1014,
1026 (9th Cir. 2021), its reasoning makes clear that it did consider “the
effectiveness of [the] proposed method of distributing relief to the class,”
as Rule 23(e)(2)(C)(ii) requires. Second, Objectors argue that Rule
23(e)(2)(C)(ii) forbids cy pres-only distribution because it does not result
in any distribution to the class members. This argument fails under our
existing precedent because we have approved an all-cy pres settlement
after this provision was added to Rule 23. Google Street View, 21 F.4th
at 1113.
28 PATACSIL V. GOOGLE LLC
alone or together—do not justify depriving class members
an opportunity to claim settlement funds secured on their
behalf.
1.
The district court relied on Google Street View in
concluding that a pure cy pres distribution was proper
because Google could not feasibly identify the class
members here. At issue in Google Street View was the
“specially adapted cars” that Google launched to capture
“panoramic street-level images from numerous points along
roads throughout the world.” 21 F.4th at 1107. In addition to
pictures, the cars collected information about nearby Wi-Fi
networks and “payload data” (“substantive information such
as emails, usernames, passwords, videos, photographs, and
documents” that were “transmitted over unencrypted Wi-Fi
networks” from homes and other locations that the cars
passed by). Id. at 1108. While there was no precedent
establishing that an all-cy pres distribution was proper, we
observed that some authority indicates such settlements are
“permissible under appropriate circumstances.” Id. at 1111;
see also id. at 1113 (rejecting a “blanket rule” against all-cy
pres settlements). And we held that such circumstances were
present “[b]ecause self-identification would be pure
speculation, and any meaningful forensic verification of
claims would be prohibitively costly and time-consuming.”
Id. at 1115.
Google Street View itself was an expansion of cy pres—
the wisdom of which could be questioned. See Emily
Potucek, Note, Class Action Cy Pres: A Call for Reform
Amidst Inconsistency and Criticism, 27 Lewis & Clark L.
Rev. 713, 723–24 & n.62 (2023) (observing that, while
“[t]he Ninth Circuit . . . purports to use a variation of the
PATACSIL V. GOOGLE LLC 29
[same test other circuits use] to determine when cy pres
remedies are appropriate,” its willingness to approve all-cy
pres settlements in cases like Google Street View has been
highly irregular). But even accepting its reasoning, as we
must, it is distinguishable from this case.
Here, verification of class members is not impossible.
Google presented evidence that it could not reliably identify
class members because the user-account information that it
maintains is not readily correlated to specific users. For
example, one person can have more than one Google
account, and a single Google account can be used by
multiple people. But that should not be the end of the
analysis. Reliable self-identification by affected users may
be possible here where it was not in Google Street View.
While individuals could not know whether a Google car was
close to their home and downloading data as it passed by,
mobile-device users may know or be able to determine
whether their “Location History” setting was activated
during the class period. That is not to say that claim
verification would be unnecessary, e.g., TransUnion LLC v.
Ramirez, 594 U.S. 413, 431 (2021) (“Every class member
must have Article III standing in order to recover individual
damages.”), but an unrebutted declaration or affidavit might
suffice, e.g., Briseno v. ConAgra Foods, Inc., 844 F.3d 1121,
1132 (9th Cir. 2017), abrogated in part on other grounds,
TransUnion, 594 U.S. at 431.
Google insists that verification is impossible because it
lacks individualized account data, an assertion the majority
uncritically accepts. Maj. Op. at 15–16. But we generally
presume that ordinary methods of verification—“claim
administrators, various auditing processes, sampling for
fraud detection, follow-up notices to explain the claims
process, and other techniques tailored by the parties and the
30 PATACSIL V. GOOGLE LLC
court”—are sufficient to protect the rights of defendants
confronted with class-action settlements like this one. Id. at
1131 (citation omitted). Google has not explained why these
methods, which have been used effectively in other cases
and will be used effectively again, have no application here.
Accordingly, the difficulty of identifying the class members
is not a valid justification for depriving the unnamed class
members of the opportunity to submit their claims,
particularly where there has been no attempt to identify
them. See Molski v. Gleich, 318 F.3d 937, 955 (9th Cir.
2003) (observing that cy pres is inappropriate where “there
is no evidence that proof of individual claims would be
burdensome or that distribution of damages would be
costly”). We need not insist on a proposed methodology for
verification from Objectors, as the majority does, where the
usual methodology may do the job. Maj. Op. at 16–17.
2.
The district court reasoned that an all-cy pres distribution
was appropriate because processing even a low rate of
claims would consume an inordinate amount of the class
funds—$1.9 million for a 1% claims rate, $4 million for a
3% claims rate, and $8.2 million for a 7% claims rate. One
need not second guess these figures to reject this rationale.
Cy pres may be appropriate when the “distribution of
damages [is] costly,’” Lane, 696 F.3d at 819 (citation
omitted), but we have not held that this consideration allows
courts to approve settlements that forego any effort at class
distribution where it otherwise may be feasible. Much of our
early caselaw repeated the distribution-cost consideration
without applying it to the facts of the given case. See, e.g.,
Six (6) Mexican Workers, 904 F.2d at 1305, 1307; Nachshin,
663 F.3d at 1038–41; Dennis, 697 F.3d at 865–68. Only once
PATACSIL V. GOOGLE LLC 31
have we approved using cy pres solely based on the claims-
distribution cost. See In re Google Referrer Header Priv.
Litig., 869 F.3d 737, 741–43 (9th Cir. 2017), vacated on
other grounds, Frank, 586 U.S. 485. And in that case, “the
cost of verifying and ‘sending out very small payments to
millions of class members would [have] exceed[ed] the total
monetary benefit obtained by the class.’” Id. at 742.
Because Google Referrer was vacated and remanded by
the Supreme Court for further proceedings related to
standing, it is not binding and its reasoning related to cy pres
has value only to the extent that it can persuade. See, e.g.,
Roe v. Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998). I am
not persuaded. It is one thing to conclude that an all-cy pres
distribution is warranted when the class fund would be fully
exhausted by administering a claims process. Courts should
not blind themselves to reality and pursue a claims process
that literally will provide no benefit to class members. Cf.
Samuel L. Bray & Paul B. Miller, Getting into Equity, 97
Notre Dame L. Rev. 1763, 1784 (2022) (explaining that, “in
order to preserve its functionality,” equity has historically
resisted being “reduced to norms and enabling doctrines
meant to provide ex ante guidance” in all cases); Henry E.
Smith, Equity as Meta-Law, 130 Yale L.J. 1050, 1110 (2021)
(“Part of equitable analysis is making sure that equity does
not produce inequity. Equitable rules of thumb must be set
aside in a case if they produce the kind of injustice equity
aims to prevent.”). But that is not the situation here. The
settlement fund remaining after payment of attorney fees and
other administrative expenses exceeds $40 million. And the
highest estimated distribution cost based on an assumed
claims rate was $8.2 million. That leaves over $30 million
for distribution to the individuals who suffered the injury
that the settlement is supposed to remedy.
32 PATACSIL V. GOOGLE LLC
Because there will always be costs associated with
processing and distributing a class settlement, the cost
justification for cy pres must be narrow: costs must be so
high as to make effective distribution infeasible. 4 See
Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 784 (7th Cir.
2004) (Posner, J.) (“In the class action context[,] the reason
for appealing to cy pres is to prevent the defendant from
walking away from the litigation scot-free because of the
infeasibility of distributing the proceeds of the settlement . . .
to the class members.”). A standard unconnected to the
probable impact on the efficacy of class distribution risks cy
pres becoming a first choice, not a “next best” choice. E.g.,
Google Street View, 21 F.4th at 1115 (quoting Nachshin, 663
F.3d at 1036). Where the district court made no findings
regarding the efficacy of distribution relative to the likely
administrative costs, it abused its discretion in relying on this
justification for proceeding with a cy pres distribution.
3.
Finally, the district court reasoned that a pure cy pres
distribution was appropriate because the pro rata recovery
4
The majority suggests that “increased administrative expenditures
subtract from the benefits to class members” that would come from
“programs funded by the cy pres distributions.” Maj. Op. at 15. But this
reasoning assumes that every dollar that goes to a cy pres recipient is as
good as every dollar that goes directly into the pocket of a class member.
That clearly is not true. We would never say, for example, that an
individual plaintiff who prevails on a claim for damages would be
compensated just as effectively if all the damages were given to charity
rather than to the plaintiff directly. And that does not change simply
because this is a class action and the individual recovery is small.
Requiring that administrative expenses be so significant as to render
effective distribution infeasible is necessary to safeguard our legal
system’s commitment to making the individuals who suffered the legal
harm at issue whole.
PATACSIL V. GOOGLE LLC 33
for each class member would be around 25 cents before
deducting fees and costs. Again, the district court
misapprehends precedent.
Our earliest reference to the individual recovery amount
informing the feasibility of class settlement distribution was
in Lane. 696 F.3d at 821. But in that case the Objectors
conceded “that direct monetary payments to the class of
remaining settlement funds would be infeasible given that
each class member’s direct recovery would be de minimis.”
Id. We did not analyze feasibility as informed by the
individual class member recovery amount or establish a
standard for courts to apply in assessing that issue going
forward. See Burbank-Glendale Pasadena Airport Auth. v.
City of Burbank, 136 F.3d 1360, 1363 (9th Cir. 1998); see
also Henry Campbell Black, Handbook on the Law of
Judicial Precedents, or the Science of Case Law 3, 126–28
(1912) (recognizing that a precedent’s strength turns on the
degree of elaboration in the opinion). But see United States
v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc)
(per curiam) (suggesting that a later panel may be bound in
limited circumstances by an earlier panel’s silence).
We dealt with the de miminis-recovery issue more
directly in Google Referrer, upholding approval of a cy pres
distribution where the settlement for a 129-million-member
class was $8.5 million, noting that the resulting pro rata
recovery of a few cents was “a de minimis amount if ever
there was one.” 869 F.3d at 740, 742. But as noted, this case
is no longer binding, and its analysis is flawed. See Roe, 134
F.3d at 1404.
Google Referrer’s first misstep was reading Lane as
holding that de minimis recovery renders distribution
infeasible when Lane made no such holding. See Google
34 PATACSIL V. GOOGLE LLC
Referrer, 869 F.3d at 742. Google Referrer also provided no
standard for what constitutes “de minimis” recovery. Five
cents? Twenty-five cents? A dollar? Five dollars? As
Objectors stress, it is routine for large class actions to result
in low per capita recoveries for class members. See, e.g., In
re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-
MD-02752-LHK, 2020 WL 4601627, at *1 (N.D. Cal. Aug.
11, 2020) (involving a per capita recovery “well below”
$1.02 to $1.46 per class member); see also McCabe v. Six
Continents Hotels, Inc., No. 12-cv-04818 NC, 2015 WL
3990915, at *9 (N.D. Cal. June 30, 2015) (identifying
several class-action settlements with per capita recoveries
below $10).
The purpose of equity is to discourage opportunism and
other undesirable behaviors by filling the gaps left by law’s
default rules. Smith, supra, at 1071–81; see Bray & Miller,
supra, at 1784 (“Corrective equity consists in interventions
made against, and so adjectivally in relation to, law.”). It is
not to give judges discretion to override otherwise applicable
rules. See Smith, supra, at 1140 (explaining that, while
“discretion is important, even essential,” to equity, it is “not
unbridled”). If the de minimis nature of a distribution
matters, it must be because it makes distribution infeasible
and, therefore, contrary to equity—not because of the de
minimis amount of individual distributions in and of itself.
The majority rejects the idea “that the interests of the
class are better served by distributing tiny amounts of money
to a tiny fraction of the class rather than directing the money
to initiatives protecting privacy interests more generally.”
Maj. Op. at 14. But why is it more equitable for an uninjured
outside party that can only serve the class’s interests
indirectly to receive a significant sum rather than the directly
injured parties to receive a small sum? And perhaps more
PATACSIL V. GOOGLE LLC 35
important, where a direct distribution is possible, why should
courts get to decide that they know better how to serve the
class’s interests? 5
In both Google Referrer and this case, the harm suffered
by the class was unliquidated. Cf. 869 F.3d at 740
(describing the harm to class members as the sharing of
“users’ search terms . . . with third parties”). In that
circumstance, settlement distribution can be structured to
give the class members who submit a claim a higher pro rata
share than they would have received based on a full-class
distribution. This approach does not risk some class
members being overcompensated and it ensures that at least
some of the settlement recovery goes to the injured
population for which the class action was brought.
Where the class members’ injury is liquidated, we have
held that cy pres distribution is justified based on de minimis
direct disbursement where there has been a claims process
and further distribution of the unclaimed settlement funds
would be de minimis. In re Easysaver Rewards Litg., 906
F.3d 747, 753, 761 (9th Cir. 2018). In Easysaver, we
declined the objector’s proposal to disburse additional funds
5
The majority charges that my view “would elevate the noisy few over
the interests of all class members.” Maj. Op. at 13. But this sidesteps the
truth that class actions exist only “[f]or convenience . . . and to prevent a
failure of justice” by aggregating the individual claims of individual
plaintiffs into a single suit. Supreme Tribe of Ben Hur v. Cauble, 255
U.S. 356, 363 (1921) (quoting Smith v. Swormstedt, 57 U.S. (16 How.)
288, 303 (1853)). The people who the majority call “the noisy few” are
individual plaintiffs trying to ensure that their individual claims are
vindicated. Why, in the absence of strong evidence to the contrary,
would we assume that they are entitled to less favorable treatment than
they would have received had they proceeded alone simply because this
case is litigated as a class action?
36 PATACSIL V. GOOGLE LLC
to the class members who had already received their
liquidated share of the recovery because “the district court
was under no obligation to adopt a distribution approach that
might overcompensate claimants.” Id. at 761. And while it
might have been technically feasible to identify non-
claimant class members and distribute the remaining fund to
them, it was not an abuse of discretion for the district court
to resort to cy pres where the non-claimants would receive
the “de minimis” amount of less than $3.00. Id. (quoting
Lane, 696 F.3d at 821). But in this circumstance, cy pres is
being used as a “next best” choice. And this line of precedent
is inapplicable where class distribution has not even been
attempted.
In sum, we have not held that an all-cy pres distribution
is justified anytime class members will receive de minimis
distributions. And resorting to cy pres after a claims process
fails to fully distribute settlement funds presents fewer due-
process and fairness concerns than entirely replacing class
distribution with cy pres distribution. See Nachshin, 663
F.3d at 1039 (observing that cy pres is at its most
problematic when there is a serious risk that “the selection
process may answer to the whims and self interests of the
parties, their counsel, or the court,” rather than to “the nature
of the lawsuit and the interests of the silent class members”).
CONCLUSION
Cy pres is justified when it is the “next best” choice for
distributing class funds. Courts must start with the
presumption that distributing settlement funds to the class
members is the first best choice. This presumption can be
overcome, but, given the significant due-process and
fairness concerns at play, courts must ensure that direct
distribution truly is infeasible. The district court’s approval
PATACSIL V. GOOGLE LLC 37
of an all-cy pres distribution of the monetary settlement
secured for the class in this case is incongruent with this
legal framework. Thus, I would reverse, and I do not reach
whether the cy pres recipients approved by the district court
were proper.
What is at stake is more than the distribution of what, I
readily admit, is often a very small sum per individual class
member. Relaxing the requirements for cy pres distribution
threatens to sideline focus on the property rights of those for
whose benefit the litigation was brought in the first place,
which runs headlong into due-process problems. Cy pres is
an extraordinary tool for extraordinary cases. The record
does not establish that this is such a case where there has
been no attempt at distribution and there is no obvious reason
to think that distribution would be ineffectual.
I respectfully dissent.