Benjamin Joffe v. Google, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE GOOGLE INC. STREET VIEW No. 20-15616

ELECTRONIC COMMUNICATIONS

LITIGATION, D.C. No.

3:10-md-02184-

CRB

BENJAMIN JOFFE; LILLA MARIGZA;

RICK BENITTI; BERTHA DAVIS;

JASON TAYLOR; ERIC MYHRE; JOHN OPINION

E. REDSTONE; MATTHEW BERLAGE;

PATRICK KEYES; KARL H. SCHULZ;

JAMES FAIRBANKS; AARON LINSKY;

DEAN M. BASTILLA; VICKI VAN

VALIN; JEFFREY COLMAN; RUSSELL

CARTER; STEPHANIE CARTER;

JENNIFER LOCSIN,

Plaintiffs-Appellees,

DAVID LOWERY,

Objector-Appellant,

v.

GOOGLE, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

2 IN RE GOOGLE INC. STREET VIEW LITIG.

Argued and Submitted February 11, 2021

San Francisco, California

Filed December 27, 2021

Before: Marsha S. Berzon, Morgan Christen, and

Bridget S. Bade, Circuit Judges.

Opinion by Judge Bade;

Concurrence by Judge Bade

SUMMARY *

Class Actions

The panel affirmed the district court’s order certifying a

class, approving a settlement agreement, and awarding

attorneys’ fees, in a consolidated class action lawsuit in

which plaintiffs alleged, on behalf of an estimated sixty

million people, that Google illegally collected their Wi-Fi

data through its Street View program.

After a decade of litigation, including a complex, three-

year forensic investigation to confirm the standing of the

eighteen named plaintiffs, the parties reached a settlement

agreement that provided for injunctive relief, cy pres

payments to nine Internet privacy advocacy groups, fees for

the attorneys, and service awards to class representatives—

but no payments to absent class members. The district court

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

IN RE GOOGLE INC. STREET VIEW LITIG. 3

approved the proposed settlement, finding that it was not

feasible to distribute funds directly to class members given

the class size and the technical challenges to verifying class

members’ claims. David Lowery, one of two objectors to the

settlement proposal, appealed the district court’s approval of

the settlement and grant of attorneys’ fees.

Federal courts have widely recognized the cy pres

doctrine as a tool for distributing unclaimed or non-

distributable portions of a class action settlement fund to the

“next best” class of beneficiaries.

The panel rejected 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.

Lowery argued that, even if permissible in some

circumstances, cy pres relief was inappropriate here because

it was feasible to distribute settlement funds directly to class

members. Because self-identification would be pure

speculation, and any meaningful forensic verification of

claims would be prohibitively costly and time-consuming,

the panel affirmed the district court’s finding that it was not

feasible to verify class members’ claims as would be

necessary to distribute funds directly to class members.

Further, as proof of individual claims would be burdensome

and distribution of damages costly, the panel held that the

district court did not abuse its discretion by approving the

use of cy pres payments in the settlement.

The panel rejected Lowery’s argument that if it was

impossible to distribute settlement funds to class members,

then class certification was an error of law because the class

device was not superior to other available methods for fairly

4 IN RE GOOGLE INC. STREET VIEW LITIG.

and efficiently adjudicating the controversy, as Fed. R. Civ.

P. 23(b)(3) requires. Noting that this court, in upholding the

validity of cy pres arrangements, has repeatedly recognized

that class members do benefit—albeit indirectly—from a

defendant’s payment of funds to an appropriate third party,

the panel held that the infeasibility of distributing settlement

funds to class members does not preclude class certification.

Considering the unique challenges plaintiffs would have

faced in proving their claims, the panel held that the district

court did not err by concluding that the injunctive relief—

which required Google to destroy all acquired payload data,

refrain from collecting or storing additional payload data

through Street View without notice and consent, and comply

with other provisions in an assurance of voluntary

compliance entered into with the attorneys general of thirty-

eight states and the District of Columbia—together with the

indirect benefits conferred by the cy pres provisions, was

“fair, reasonable, and adequate” compensation to the class

members under Fed. R. Civ. P. 23(e)(2).

Lowery argued that the settlement violates the First

Amendment’s prohibition on compelled speech by

distributing class settlement funds to organizations “that take

lobby positions adverse to” his own interests and beliefs.

The panel did not decide whether, or under what

circumstances, a district court’s approval of a class action

settlement agreement is “state action” for purposes of the

First Amendment. Instead, the panel held that the settlement

agreement does not compel class members to subsidize

third-party speech because any class member who does not

wish to subsidize speech by a third party that he or she does

not wish to support, can simply opt out of the class.

IN RE GOOGLE INC. STREET VIEW LITIG. 5

Lowery argued that the district court abused its

discretion by approving cy pres recipients who had a

“significant prior affiliation” with defense counsel and class

counsel. The panel noted that this court has never held that

merely having previously received cy pres funds from a

defendant, let alone other defendants in unrelated cases,

disqualifies a proposed recipient for all future cases; and that

this court has affirmed cy pres provisions involving much

closer relationships between recipients and parties than

anything Lowery alleges here. The panel concluded that the

district court’s approval of the cy pres recipients comported

with the applicable standards, and found no abuse of

discretion.

Lowery argued that the district court abused its

discretion by “blindly applying” a 25% benchmark for

attorneys’ fees without regard for the actual benefit the

settlement conferred on the class. The panel wrote that the

district court’s reasoning makes clear that this was not a

“blind” application of a benchmark to the circumstances of

the case. The panel also explained that there is no uniform

rule that district courts must discount the value of any cy pres

relief, regardless of the feasibility of distribution to class

members or other relevant circumstances. Affirming the fee

award, the panel wrote that the district court properly

considered all relevant circumstances, including the value to

class members.

Because the panel affirmed the district court’s finding

that the settlement provides adequate value to the class, and

because there is no indication that counsel accepted

attorneys’ fees or favored third parties over class members,

the panel rejected Lowery’s argument that class counsel and

their class representatives breached their fiduciary duties by

entering the settlement.

6 IN RE GOOGLE INC. STREET VIEW LITIG.

Concurring, Judge Bade wrote separately to express

some general concerns about cy pres awards. She wrote that

she is not convinced that cy pres awards to uninjured third

parties should qualify as an indirect benefit to injured class

members, and that she is concerned that the cy pres remedy

is purely punitive, with defendants paying millions of dollars

in what are essentially civil fines to class counsel and third

parties while providing no compensation to injured class

members. She further questioned whether cy pres awards

are inherently unfair when the class receives no meaningful

relief in exchange for their claims, and whether such awards

can be justified given the serious ethical, procedural, and

constitutional problems that others have identified.

COUNSEL

Adam E. Schulman (argued) and Theodore H. Frank,

Hamilton Lincoln Law Center, Center for Class Action

Fairness, Washington, D.C., for Objector-Appellant.

Daniel A. Small (argued) and Robert W. Cobbs, Cohen

Milstein Sellers & Toll PLLC, Washington, D.C.; Elizabeth

L. Cabraser, Michael W. Sobol, and Melissa Gardner, Leiff

Cabraser Heimann & Bernstein LLP, San Francisco,

California; Jeffrey L. Kodroff, John A. Macoretta, and Mary

Ann Geppert, Spector Roseman & Kodroff P.C.,

Philadelphia, Pennsylvania; for Plaintiffs-Appellees.

Brian M. Willen (argued) and Eli B. Richlin, Wilson Sonsini

Goodrich & Rosati, New York, New York; David H.

Kramer, Wilson Sonsini Goodrich & Rosati, Palo Alto,

California; Paul N. Harold, Wilson Sonsini Goodrich &

Rosati, Washington, D.C.; for Defendant-Appellee.

IN RE GOOGLE INC. STREET VIEW LITIG. 7

Kate B. Sawyer (argued), Assistant Solicitor General; Keena

Patel, Assistant Attorney General; Oramel H. Skinner,

Solicitor General; Mark Brnovich, Attorney General; Office

of the Attorney General, Phoenix, Arizona; Steve Marshall,

Attorney General, State of Alabama; Kevin G. Clarkson,

Attorney General, State of Alaska; Leslie Rutledge,

Attorney General, State of Arkansas; Lawrence G. Wasden,

Attorney General, State of Idaho; Curtis T. Hill Jr., Attorney

General, State of Indiana; Derek Schmidt, Attorney General,

State of Kansas; Jeff Landry, Attorney General, State of

Louisiana; Eric Schmitt, Attorney General, State of

Missouri; Aaron D. Ford, Attorney General, State of

Nevada; Wayne Stenehjem, Attorney General, State of

North Dakota; Dave Yost, Attorney General, State of Ohio;

Mike Hunter, Attorney General, State of Oklahoma; for

Amici Curiae Thirteen Attorneys General for the States of

Arizona, Alabama, Alaska, Arkansas, Idaho, Indiana,

Kansas, Louisiana, Missouri, Nevada, North Dakota, Ohio,

and Oklahoma.

Ellen Bronchetti and Ron Holland, McDermott Will &

Emery LLP; San Francisco, California; Wilber H. Boies and

Timothy M. Kennedy, McDermott Will & Emery LLP,

Chicago, Illinois; for Amici Curiae Legal Aid Organizations.

Stuart T. Rossman, National Consumer Law Center, Boston,

Massachusetts; Michael Landis, Center for Public Interest

Research, Denver, Colorado; for Amici Curiae United States

Public Interest Research Group Education Fund and

National Consumer Law Center.

8 IN RE GOOGLE INC. STREET VIEW LITIG.

OPINION

BADE, Circuit Judge:

In this consolidated class action lawsuit, plaintiffs

alleged, on behalf of an estimated sixty million people, that

Google illegally collected their Wi-Fi data through its Street

View program. After a decade of litigation, including a

complex, three-year forensic investigation to confirm the

standing of the eighteen named plaintiffs, the parties reached

a settlement agreement that provided for injunctive relief, cy

pres payments to nine Internet privacy advocacy groups,

fees for the attorneys, and service awards to class

representatives—but no payments to absent class members.

The district court approved the proposed settlement, finding

that it was not feasible to distribute funds directly to class

members given the class size and the technical challenges to

verifying class members’ claims.

David Lowery, one of two objectors to the settlement

proposal, appeals the district court’s approval of the

settlement and grant of attorneys’ fees. He argues that the

district court should not have approved the settlement

because it was feasible to distribute funds to class members,

and that if it truly was not feasible to do so, then the district

court should not have certified the class. He also asserts that

the settlement violated the First Amendment’s prohibition

on compelled speech, that the cy pres recipients had

improper relationships with the parties and class counsel,

that the district court awarded excessive attorneys’ fees, and

that class counsel and the class representatives breached

their fiduciary duties. We conclude that the district court did

not abuse its discretion in approving the settlement,

certifying the class, or in its award of attorneys’ fees, and

that it did not commit legal error by rejecting Lowery’s First

Amendment argument. We affirm.

IN RE GOOGLE INC. STREET VIEW LITIG. 9

I

In 2007, Google launched Street View, a web-based

technology that would eventually provide users with

panoramic street-level images from numerous points along

roads throughout the world. To obtain the images for Street

View, Google deployed a fleet of specially adapted cars

(“Street View Vehicles”). As it turned out, however, these

vehicles did not simply take photographs; they were also

equipped with Wi-Fi antennas and software designed to

collect, decode, and analyze various kinds of data commonly

transmitted over Wi-Fi networks. The Street View Vehicles

collected basic identifying information—such as signal

strength, broadcasting channel, data transmission rate, media

access control (“MAC”) address, and Service Set Identifier

(“SSID”)—from Wi-Fi networks along the roads they

travelled, apparently for the purpose of providing enhanced,

“location-aware” services to Street View users. 1

In May 2010, Google revealed that its Street View

Vehicles had been collecting not just network identifying

information, but also payload data—that is, substantive

information such as emails, usernames, passwords, videos,

photographs, and documents—that Internet users

transmitted over unencrypted Wi-Fi networks when the

Street View Vehicles were nearby. See Joffe v. Google, Inc.,

729 F.3d 1262, 1264 (9th Cir.), amended and superseded on

reh’g by 746 F.3d 920 (9th Cir. 2013). In total, the Street

View Vehicles apparently collected around three billion

1

As Google explains it, this identifying information for Wi-Fi

networks would allow Street View to utilize these networks as “unique

geographical landmark[s]” for users to pinpoint their location when

satellite-based GPS is unavailable.

10 IN RE GOOGLE INC. STREET VIEW LITIG.

frames of raw data from wireless networks, including

approximately 300 million frames containing payload data.

Google publicly apologized for collecting payload data,

suspended operation of the Street View Vehicles, and stated

that it had segregated the data and rendered it inaccessible.

It insisted (as it still maintains) that it never intended to

collect payload data. Nevertheless, the revelations led to

state and federal investigations, including a joint

investigation by the attorneys general of thirty-eight states

and the District of Columbia. In March 2013, Google

entered an Assurance of Voluntary Compliance (“AVC”)

with these attorneys general regarding its collection of Wi-

Fi data from Street View Vehicles. Among other provisions,

the AVC stated that Google would destroy all payload data

it had acquired, refrain from collecting or storing any

additional payload data through Street View without notice

and consent, maintain a “privacy program” as described in

the AVC, and undertake a public service and education

campaign. 2 The AVC also required Google to pay a total of

$7 million to the attorneys general.

But Google’s legal troubles related to the Street View

Vehicles did not end with the AVC. Shortly after Google’s

May 2010 admission, at least thirteen putative class action

lawsuits were brought based on the Street View Vehicles’

collection of payload data. In August 2010, the Judicial

2

The public service campaign was required to include several

components, including “[d]evelop[ing] and promot[ing] a video on

YouTube that explains how users can encrypt their wireless networks,”

keeping the video on YouTube for at least two years, writing “a blog post

. . . explaining the value of encrypting a wireless network,” and running

“at least one half-page educational newspaper ad in a newspaper of

national circulation and at least one half-page educational ad in the

newspaper with the greatest circulation rate in each State.”

IN RE GOOGLE INC. STREET VIEW LITIG. 11

Panel on Multidistrict Litigation consolidated eight of these

cases and transferred them to the Northern District of

California.

In November 2010, Plaintiffs filed a Consolidated Class

Action Complaint asserting various state and federal claims,

including violations of the Wiretap Act, see 18 U.S.C.

§ 2511, and seeking statutory and punitive damages as well

as injunctive relief. Google moved to dismiss the complaint,

and the district court dismissed the state law claims on pre-

emption and standing grounds but held that Plaintiffs had

adequately alleged violations of the Wiretap Act. See In re

Google Inc. St. View Elec. Commc’ns Litig., 794 F. Supp. 2d

1067, 1073–87 (N.D. Cal. 2011). We affirmed in an

interlocutory appeal. Joffe, 746 F.3d 920.

On remand, Google disputed the named plaintiffs’

standing, and the district court appointed a special master to

determine “whether any communications from [named]

Plaintiffs’ unencrypted Wi-Fi networks were actually

acquired by Google.” This investigation first required the

eighteen named plaintiffs to provide “personal information

and forensic evidence of their wireless network equipment,”

including MAC addresses, email addresses, and SSIDs, to

the special master. Then, as the district court described it,

the special master organized the massive troves of Street

View data “into a searchable database,” developed custom

software to process the data, and “conducted complex

technical searches” to identify whether the data contained

any transmissions intercepted from the named plaintiffs.

This process took three years and culminated in a report,

filed under seal with the district court in 2017, which was

apparently still not entirely conclusive on whether Google

had intercepted payload data from the named plaintiffs.

12 IN RE GOOGLE INC. STREET VIEW LITIG.

In June 2018, the parties reached a settlement agreement

for a class consisting of “all persons who used a wireless

network device from which Acquired Payload Data was

obtained” from January 1, 2007 through May 15, 2010.

Class counsel estimated that this class included

approximately sixty million members. The settlement

agreement provided that Google would establish a

$13 million settlement fund. The agreement did not provide

for any direct payments to absent class members. Instead,

after attorneys’ fees, litigation expenses, service awards for

the class representatives, notice and claims administration

costs, and escrow account charges and taxes, the remainder

of the fund was to be divided equally among “one or more

Proposed Cy Pres Recipient(s).” Plaintiffs would select the

proposed recipients and, after disclosing the list to Google

and consulting “in good faith regarding any concerns Google

may have,” would recommend them to the district court for

approval. Each cy pres recipient would have to “commit to

use the funds to promote the protection of Internet privacy.”

Plaintiffs proposed eight cy pres recipients without

objection from Google: the Center on Privacy & Technology

at Georgetown Law, the Center for Digital Democracy,

Massachusetts Institute of Technology’s Internet Policy

Research Initiative, World Privacy Forum, Public

Knowledge, the Rose Foundation for Communities and the

Environment, the American Civil Liberties Union

Foundation (ACLU), and Consumer Reports. The

Electronic Privacy Information Center (EPIC) also

successfully petitioned the district court to be included as a

cy pres recipient without objection from Google or

Plaintiffs.

In addition to the provisions regarding the $13 million

settlement fund, Google agreed to the following injunctive

IN RE GOOGLE INC. STREET VIEW LITIG. 13

relief for a period of five years after final approval of the

settlement agreement:

• To “destroy all Acquired Payload Data . . . within

forty-five (45) days of Final Approval” of the

settlement agreement;

• Not to “collect and store for use in any product or

service Payload Data via Street View vehicles,

except with notice and consent”;

• To “comply with all aspects of the Privacy Program

described in . . . the [AVC] and with the prohibitive

and affirmative conduct described in [the AVC],”

and to “confirm to Plaintiffs in writing on an annual

basis that it remains in compliance”; and

• To “host and maintain educational webpages that

instruct users on the configuration of wireless

security modes and the value of encrypting a wireless

network.”

After the district court granted preliminary approval of

the settlement agreement, two putative class members—

David Lowery and David Franco—objected, and a group of

state attorneys general, led by the Arizona Attorney General,

filed an amicus brief objecting to the settlement agreement.

At a fairness hearing in February 2020, Lowery’s attorney

and a representative from the Arizona Attorney General’s

Office both argued that cy pres relief was inappropriate and

that the $13 million fund should instead be distributed to

class members through either a claims process or a lottery

distribution to class members who self-identified.

Alternatively, Lowery argued that if it truly was not feasible

to distribute the funds to class members, then class

14 IN RE GOOGLE INC. STREET VIEW LITIG.

certification was inappropriate based on Federal Rule of

Civil Procedure 23(b)(3)’s requirement that the class device

be superior to other forms of adjudication. Lowery also

argued that distribution of settlement funds to cy pres

recipients constituted compelled speech in violation of the

First Amendment, that the proposed recipients had improper

pre-existing relationships with counsel and the parties, and

that the requested 25% fee was excessive.

In March 2020, the district court certified the class for

settlement purposes under Rule 23(b)(3), granted attorneys’

fees of 25% of the net settlement fund, and approved the

settlement after considering the fairness factors of Rule

23(e)(2) and the reaction of the class members. The district

court rejected Lowery’s arguments about the feasibility of

distribution and concluded that the inability to distribute

funds did not preclude class certification. It also rejected

Lowery’s First Amendment argument, his objections to the

cy pres recipients, and his objection to the fee award.

Lowery timely appealed.

II

“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). “[W]e

will affirm if the district judge applies the proper legal

standard and his findings of fact are not clearly erroneous.”

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,

940 (9th Cir. 2011) (internal quotation marks and citation

omitted). We also “review a district court’s class

certification decision for abuse of discretion.” Sali v.

Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018).

We review a First Amendment challenge to the district

court’s approval of a settlement agreement de novo. See

IN RE GOOGLE INC. STREET VIEW LITIG. 15

Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d

1062, 1067 n.3 (9th Cir. 2020). “We also review for abuse

of discretion a district court’s award of fees and costs to class

counsel, as well as its method of calculation.” Bluetooth

Headset, 654 F.3d at 940. “Findings of fact underlying an

award of fees are reviewed for clear error.” Id.

III

Before turning to Lowery’s specific objections to the

settlement, we first review the development of cy pres

provisions as a tool to address unclaimed or non-

distributable funds from class action settlements, and our

precedent addressing such provisions. As one court has

explained, “[w]hen modern, large-scale class actions are

resolved via settlement, money often remains in the

settlement fund even after initial distributions to class

members have been made because some class members

either cannot be located or decline to file a claim.” Klier v.

Elf Atochem N. Am., Inc., 658 F.3d 468, 473 (5th Cir. 2011);

see Six (6) Mexican Workers v. Ariz. Citrus Growers,

904 F.2d 1301, 1307 (9th Cir. 1990). Courts have

recognized a few possible solutions to the problem of

unclaimed settlement funds. One option is to permit such

funds to escheat to the government. Hodgson v. YB

Quezada, 498 F.2d 5, 6 (9th Cir. 1974); see 28 U.S.C. § 2042

(providing that funds “unclaimed by the person entitled

thereto” for five years revert to the federal treasury). In other

cases, courts have permitted additional pro rata distributions

to those class members who did claim funds. See, e.g., Klier,

658 F.3d at 475. “[I]n exceptional circumstances,” courts

have even recognized that “it may be proper to permit

unclaimed sums to revert to the [defendant].” YB Quezada,

498 F.2d at 6; see also, e.g., Van Gemert v. Boeing Co.,

739 F.2d 730, 736–37 (2d Cir. 1984).

16 IN RE GOOGLE INC. STREET VIEW LITIG.

Beginning in the 1970s, some federal courts began to

recognize another option for disbursing unclaimed

settlement funds. In Miller v. Steinbach, the district court

for the Southern District of New York considered “a

somewhat unorthodox settlement” in a stockholders’

derivative suit. No. 66 Civ. 356, 1974 WL 350, at *1

(S.D.N.Y. Jan. 3, 1974). “In view of the very modest size of

the settlement fund” in that case “and the vast number of

shares among which it would have to be divided,” the parties

agreed to, and the district court approved, an arrangement by

which settlement funds would be paid to an employee

retirement plan rather than class members. Id. The district

court described this arrangement as “a variant of the cy pres

doctrine at common law.” Id. That doctrine, which “takes

its name from the Norman French expression cy pres comme

possible (or ‘as near as possible’), is an equitable doctrine

that originated in trusts and estates law as a way to effectuate

the testator’s intent in making charitable gifts.” In re Google

Referrer Header Priv. Litig., 869 F.3d 737, 741 (9th Cir.

2017), vacated and remanded, Frank v. Gaos, 139 S. Ct.

1041 (2019).

In the years since Miller, federal courts have widely

recognized the cy pres doctrine as a tool for “distribut[ing]

unclaimed or non-distributable portions of a class action

settlement fund to the ‘next best’ class of beneficiaries.”

Nachshin, 663 F.3d at 1036 (citation omitted). It is well

established in this circuit that district courts may approve

settlements with cy pres provisions that affect only a portion

of the total settlement fund. See, e.g., Molski v. Gleich,

318 F.3d 937, 954 (9th Cir. 2003), overruled on other

grounds by Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571

(9th Cir. 2010) (en banc). Moreover, although no binding

Ninth Circuit precedent specifically addresses the propriety

of settlements where, as here, the only monetary relief comes

IN RE GOOGLE INC. STREET VIEW LITIG. 17

in the form of cy pres payments to third parties, we upheld

such a settlement in Lane v. Facebook, Inc., 696 F.3d 811,

820–21 (9th Cir. 2012), and have repeatedly indicated that

such settlements are permissible under appropriate

circumstances.

For example, in Nachshin v. AOL, LLC, we reversed

approval of a settlement that included cy pres payments “on

behalf of a nationwide plaintiff class” to “four charities of

the class representatives’ choice” and three other agreed-

upon charities, including the Boys and Girls Club of

America, the New Roads School of Santa Monica,

Oklahoma Indian Legal Services, the Federal Judicial Center

Foundation, and the Friars Foundation. 663 F.3d at 1036–

37. The district court approved cy pres payments to these

charities, whose work had little to do with the plaintiffs’

claims (unjust enrichment based on AOL’s wrongful

insertion of promotional messages into subscribers’ emails),

after the parties concluded that monetary damages “were

small and difficult to ascertain,” and “they could not identify

any charitable organization that would benefit the class or be

specifically germane to the issues in the case.” Id. at 1037.

We reversed, not because the monetary relief went only

to cy pres recipients instead of class members, but because

the chosen recipients were unsuitable given the composition

and injuries of the plaintiff class. The diverse assortment of

cy pres recipients, we held, “fail[ed] to meet any of the

guiding standards” for such settlements, id. at 1040, which

require that cy pres disbursements “account for the nature of

the plaintiffs’ lawsuit, the objectives of the underlying

statutes, and the interests of the silent class members,

including their geographic diversity,” id. at 1036. We

explained:

18 IN RE GOOGLE INC. STREET VIEW LITIG.

We are also not persuaded by the parties’

claims that the size and geographic diversity

of the plaintiff class make it “impossible” to

select an adequate charity. It is clear that all

members of the class share two things in

common: (1) they use the internet, and

(2) their claims against AOL arise from a

purportedly unlawful advertising campaign

that exploited users’ outgoing e-mail

messages. The parties should not have

trouble selecting beneficiaries from any

number of non-profit organizations that work

to protect internet users from fraud,

predation, and other forms of online

malfeasance. If a suitable cy pres beneficiary

cannot be located, the district court should

consider escheating the funds to the United

States Treasury.

Id. at 1040–41.

We again considered a settlement that provided no

monetary relief directly to absent class members in Lane,

where a district court approved a settlement agreement in

which Facebook would pay $9.5 million in exchange for a

release of all the plaintiffs’ class claims. 696 F.3d at 816.

After attorneys’ fees, administrative costs, and class

representative payments, “Facebook would use the

remaining $6.5 million or so in settlement funds to set up a

new charity organization” “to educate users, regulators[,]

and enterprises regarding critical issues relating to protection

of identity and personal information online.” Id. at 817

(alteration in original).

IN RE GOOGLE INC. STREET VIEW LITIG. 19

On appeal, objectors argued that the settlement was

unfair because its cy pres provision gave Facebook too much

control over the charity and because the settlement amount

was too small. Id. at 820, 822. We affirmed the district

court’s approval of the settlement, reasoning that “[t]he cy

pres remedy the settling parties here have devised bears a

direct and substantial nexus to the interests of absent class

members and thus properly provides for the ‘next best

distribution’ to the class.” Id. at 821. While we did not

explicitly analyze the propriety of so-called “cy pres-only”

settlements as a general matter, 3 we indicated that such

arrangements can be appropriate provided they have “the

requisite nexus between the cy pres remedy and the

interests” of the class members. Id. at 822.

In In re Google Referrer Header Privacy Litigation, we

reviewed a district court’s approval of a settlement involving

“a cy pres-only distribution of the [amount] that remain[ed]

in the settlement fund after attorneys’ fees, administration

costs, and incentive awards for the named plaintiffs.”

869 F.3d at 741. “As an initial matter, we quickly dispose[d]

of the argument that the district court erred by approving a

cy pres-only settlement.” Id. While recognizing that such

“settlements are considered the exception, not the rule,” we

3

The term “cy pres-only settlement” is a misnomer. As in Nachshin,

Lane, and Google Referrer, the settlement here does not only provide cy

pres payments to third parties; it also includes injunctive relief. While

“cy pres only” may be a convenient shorthand for settlements that

provide for monetary payments to third parties but not to absent class

members, we apply the same standards when reviewing these settlements

that we would for any class action settlement, asking whether the total

relief afforded by the settlement—whether in the form of injunctive

relief, cy pres payments, or direct monetary payments—adequately

compensates class members for relinquishing their claims. See Koby v.

ARS Nat’l Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017).

20 IN RE GOOGLE INC. STREET VIEW LITIG.

held that “they are appropriate where the settlement fund is

‘non-distributable’ because ‘the proof of individual claims

would be burdensome or distribution of damages costly.’”

Id. (quoting Lane, 696 F.3d at 819).

The Supreme Court granted certiorari in Google Referrer

on the issue of “whether a class action settlement that

provides a cy pres award but no direct relief to class

members satisfies the requirement that a settlement binding

class members be ‘fair, reasonable, and adequate.’” Frank

v. Gaos, 139 S. Ct. 1041, 1045 (2019) (quoting Fed. R. Civ.

P. 23(e)(2)). Ultimately, however, the Supreme Court did

not reach this question; instead, it vacated and remanded on

standing grounds. Id. at 1046. Our analysis of the cy pres

issue in Google Referrer, while no longer binding, is still

persuasive authority. See Rosenbloom v. Pyott, 765 F.3d

1137, 1154 n.14 (9th Cir. 2014).

IV

Turning to Lowery’s arguments, we reiterate at the

outset that strictly speaking, the settlement here is not, as

Lowery describes it, a “cy pres-only settlement.” Instead, it

involves cy pres payments to third-party organizations and

injunctive relief. Nonetheless, in evaluating whether the

settlement was “fair, reasonable, and adequate” under Rule

23(e)(2), we first consider the district court’s finding that it

was not feasible to distribute funds directly to class

members. Second, we consider Lowery’s argument that if it

was infeasible to distribute funds directly to class members,

the district court should not have certified the class. Third,

we ask whether the total value of the settlement to the absent

class members—that is, the value they indirectly receive

through the cy pres provisions plus the value of the

injunctive relief—is enough to justify the district court’s

approval of the settlement agreement. Finally, we turn to

IN RE GOOGLE INC. STREET VIEW LITIG. 21

Lowery’s argument that class counsel and the class

representatives breached their fiduciary duties, his First

Amendment challenge to the cy pres provisions, and his

argument against the district court’s award of attorneys’

fees.

A

As a threshold issue, we reject 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. 4 We have repeatedly approved

such settlements, see Google Referrer, 869 F.3d at 741–42;

Lane, 696 F.3d at 822, and therefore adopting a blanket rule

against these arrangements, as Lowery advocates, would be

incompatible with our precedents in which we have

recognized that cy pres awards are an acceptable solution

when settlement funds are not distributable. Our reasoning

has not turned on what portion of the settlement funds—

some or all—is not distributable. Instead, we ask whether

the cy pres disbursements “account for the nature of the

plaintiffs’ lawsuit, the objectives of the underlying statutes,

and the interests of the silent class members.” Lane,

696 F.3d at 821 (quoting Nachshin, 663 F.3d at 1036). In

declining to “impose[] a categorical ban on a settlement that

does not include direct payments to class members,” Google

Referrer, 869 F.3d at 742, we note that other circuits have

generally taken a similar approach to ours, approving cy pres

settlements when they satisfy the appropriate standards for

4

Lowery does not directly assert that all such settlements are

inappropriate. However, the dilemma he poses—either the funds were

distributable, and thus cy pres relief was inappropriate, or the funds were

not distributable, and thus class certification was inappropriate—is

logically equivalent to arguing such settlements are never appropriate

and requires us to consider whether Rule 23(e)(2) ever allows them.

22 IN RE GOOGLE INC. STREET VIEW LITIG.

fairness. See In re Google Inc. Cookie Placement Consumer

Priv. Litig., 934 F.3d 316, 326 (3d Cir. 2019) (rejecting the

argument that “cy pres-only settlements are unfair per se

under Rule 23(e)(2)” and recognizing that “[i]n some cases

a cy pres-only settlement may be proper”); see also, e.g., In

re Lupron Mktg. & Sales Pracs. Litig., 677 F.3d 21, 31–34

(1st Cir. 2012); Powell v. Ga.-Pac. Corp., 119 F.3d 703,

706–07 (8th Cir. 1997).

B

Lowery argues that, even if permissible in some

circumstances, cy pres relief was inappropriate here because

it was feasible to distribute settlement funds directly to class

members. The district court found otherwise “[g]iven the

60 million person class size and the $13 million Settlement

Fund,” and because “it is unusually difficult and expensive

to identify class members in this case.” Lowery argues that

the district court applied the wrong standard for determining

feasibility by asking “whether it is feasible to hand-deliver

checks to every single class member” instead of focusing on

“the ability of some class members to make a claim.” We

disagree. Lowery cites no authority indicating that a district

court must consider only whether settlement funds are

distributable to “some” of a class, nor does he explain what

proportion of a class would satisfy his proposed “some class

members” test.

More fundamentally, even assuming that the subset of

class members who claim payments would be small enough

that the settlement fund could provide meaningful value to

every claimant, Lowery does not identify a viable way for a

claims administrator to verify any claimant’s entitlement to

IN RE GOOGLE INC. STREET VIEW LITIG. 23

settlement funds. 5 Google asserts that verifying that a

person has a valid claim would require making three

determinations: “(1) the [claimant] had maintained an

unencrypted Wi-Fi network in the relevant period; (2) a

Street View vehicle passed within range of that network; and

(3) substantive communications (and not just technical

network data) were transmitted within the precise fraction of

a second when the Street View vehicle passed by and

acquired payload data from the network.” Lowery does not

dispute that a claims administrator would have to verify

these three facts to determine whether a claim is valid, nor

does he suggest any means of third-party claims verification

besides the method the special master used—a process that

took three years of intensive investigation and analysis to

verify the claims of eighteen named plaintiffs. Instead,

5

Lowery argues that district courts have insisted on direct payments

to class members in analogous cases involving very large classes. As an

initial matter, presenting conflicting decisions from other district courts,

without more, does not establish that the district court here abused its

discretion. See Grant v. City of Long Beach, 315 F.3d 1081, 1091 (9th

Cir. 2002) (“The abuse of discretion standard requires us to uphold a

district court determination that falls within a broad range of permissible

conclusions in the absence of an erroneous application of law.”). In any

event, none of the examples Lowery cites involved the sort of technical

challenges to identifying class members present here. See Fraley v.

Facebook, Inc., 966 F. Supp. 2d 939, 940–49 (N.D. Cal. 2013)

(involving no dispute that claims were readily verifiable); In re Carrier

IQ, Inc. Consumer Priv. Litig., No. 12-md-02330-EMC, 2016 WL

4474366, at *3–4 (N.D. Cal. Aug. 25, 2016) (involving claims that were

verifiable by reference to telephone numbers); In re Google Plus Profile

Litig., No. 5:18-cv-06164-EJD, 2021 WL 242887 (N.D. Cal. Jan. 25,

2021) (involving claims that the defendant could easily verify by

compiling a “class list”), appeal docketed, No. 21-15365 (9th Cir.

Mar. 2, 2021).

24 IN RE GOOGLE INC. STREET VIEW LITIG.

Lowery asserts that the district court erred by refusing to

allow claimants to “self-identify” as class members. 6

But his observation that “proof beyond a reasonable

doubt is not required to ascertain a class member in a claims

process” is misplaced. As the district court found, “[t]he

only evidence” of class membership “is the intercepted data,

and that evidence is not in the class member’s possession”

or readily accessible to the claims administrator. Lowery

offers no alternative way for claimants to determine with any

degree of probability whether they are class members.

Because self-identification would be pure speculation,

and any meaningful forensic verification of claims would be

prohibitively costly and time-consuming, we affirm the

district court’s finding that it was not feasible to verify class

members’ claims as would be necessary to distribute funds

directly to class members. Further, as “proof of individual

claims would be burdensome [and] distribution of damages

costly,” Lowery has not shown that the district court abused

6

Lowery observes that the district court permitted the named

plaintiffs to proceed based on self-identification, and that it recognized

Lowery’s own standing based on self-identification. He argues that by

allowing some class members to self-identify but not others, the district

court violated Rule 23’s requirement that settlements “treat[] class

members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D).

However, the district court permitted self-identification only at the

pleading stage and when evaluating standing. It approved the

settlement’s provision for service awards to the named plaintiffs, but

service awards are compensation “for work done on behalf of the class”

throughout litigation, not damages awarded for substantive claims. See

Rodriguez v. W. Pub. Corp., 563 F.3d 948, 958 (9th Cir. 2009).

Moreover, by the time the district court approved the service awards, the

named plaintiffs’ claims were supported not just by their self-

identification, but also by the special master’s extensive forensic

analysis.

IN RE GOOGLE INC. STREET VIEW LITIG. 25

its discretion by approving the use of cy pres payments in the

settlement. Lane, 696 F.3d at 819.

C

Alternatively, Lowery argues that if it was impossible to

distribute settlement funds to class members, then class

certification was an error of law because the class device was

not superior to other available methods for fairly and

efficiently adjudicating the controversy, as Rule 23(b)(3)

requires. But cy pres provisions are tools for “distribut[ing]

unclaimed or non-distributable portions of a class action

settlement fund to the ‘next best’ class of beneficiaries.”

Nachshin, 663 F.3d at 1036 (citation omitted). If it were

feasible to distribute the settlement fund to the class

members, a cy pres settlement would not be employed.

Thus, in the guise of a Rule 23(b)(3) “superiority” argument,

Lowery essentially repackages his argument that cy pres

provisions, which by definition are used when settlement

funds cannot be distributed to class members, are always

improper. We have already rejected this argument,

explaining that a blanket prohibition on so-called “cy pres-

only” settlements, as Lowery advocates, would conflict with

our precedent.

We addressed a similar argument in Briseno v. ConAgra

Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), a class action

lawsuit against a cooking oil manufacturer for false

labelling, in which the defendant opposed class certification,

arguing that plaintiffs “did not propose any way to identify

class members and cannot prove that an administratively

feasible method exists because consumers do not generally

save grocery receipts and are unlikely to remember details

about individual purchases of a low-cost product like

cooking oil,” so they could not verify their status as

claimants. Id. at 1125. We rejected that argument, reasoning

26 IN RE GOOGLE INC. STREET VIEW LITIG.

that Rule 23 never “mention[s] ‘administrative feasibility’”

and that recognizing a standalone “feasibility” requirement

for class certification could render other Rule 23 provisions,

such as “the likely difficulties in managing a class action,”

Fed. R. Civ. P. 23(b)(3)(D), superfluous. Briseno, 844 F.3d

at 1125–26.

Lowery maintains that he is not making “a stand-alone

ascertainability argument of the sort repudiated by Briseno.”

Instead, his argument, he says, is that “the superiority

requirement of Rule 23(b)(3) demands the possibility of

class benefit at the time of certification,” and that if it is

practically impossible to identify absent class members at

the time of certification, then a class action “cannot be a

superior method of adjudicating th[e] controversy” because

there is no possibility of providing meaningful relief. To be

sure, if there were no possibility of providing meaningful

relief via a class action settlement, Lowery’s point might be

persuasive. But in making his argument, Lowery assumes a

critical premise: that it is impossible to provide meaningful

relief to a class when there is no feasible way of identifying

class members.

This premise is not supported by our case law. 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. See Lane, 696 F.3d at 819

(describing cy pres remedy as “a settlement structure

wherein class members receive an indirect benefit (usually

through defendant donations to a third party) rather than a

direct monetary payment”); Nachshin, 663 F.3d at 1038 (“In

the context of class action settlements, a court may employ

the cy pres doctrine to put the unclaimed fund to its next best

compensation use, e.g., for the aggregate, indirect,

IN RE GOOGLE INC. STREET VIEW LITIG. 27

prospective benefit of the class.” (internal quotation marks

and citation omitted)).

Indeed, the factors that guide judicial oversight of cy pres

settlement provisions—whether the distributions “account

for the nature of the plaintiffs’ lawsuit, the objectives of the

underlying statutes, and the interests of the silent class

members”—are designed to ensure that cy pres payments

particularly “benefit the plaintiff class.” Id. at 1036, 1040.

If a cy pres award has a “direct and substantial nexus to the

interests of absent class members,” Lane, 696 F.3d at 821, as

it must under our precedents, then it necessarily prioritizes

class members’ interests, even if it also provides a diffuse

benefit to society at large. 7 Thus, the infeasibility of

distributing settlement funds directly to class members does

not preclude class certification.

D

Accordingly, we next consider whether the settlement

agreement provides sufficient value to the class, in the form

of both cy pres relief and injunctive relief, to be “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). We

hold that the district court did not err by concluding that it

does.

7

Lowery cites In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir.

1974), to support his argument that “[w]hen a ‘great variety’ of

individualized determinations preclude class benefit, class certification

should be denied.” But In re Hotel Telephone Charges is inapposite: it

simply held that a class action involving “over six hundred defendants,”

“millions of plaintiffs,” and “a great variety of individual questions” did

not satisfy the requirements of predominance and manageability, not that

an inability to identify class members precludes certification. Id. at 90–

92.

28 IN RE GOOGLE INC. STREET VIEW LITIG.

The injunctive relief in the settlement agreement, which

required Google to “destroy all Acquired Payload Data,”

refrain from collecting or storing additional payload data

through Street View without notice and consent, and comply

with other AVC provisions specifically referenced in the

settlement agreement, largely duplicated Google’s

obligations under the AVC. However, the injunctive relief

extends beyond Google’s AVC obligations. It requires

Google to maintain its compliance until five years from final

settlement approval—that is, at least two years longer than

the AVC required. Moreover, the injunctive relief in the

settlement requires Google to post additional educational

material online that the AVC did not require. The district

court found that this injunctive relief offered “adequate, if

not the main benefit to the class.” Considering the unique

challenges plaintiffs would have faced in proving their

claims, we hold that the district court did not err by

concluding this injunctive relief, together with the indirect

benefits conferred by the cy pres provisions, was fair,

reasonable, and adequate compensation to the class

members.

In Campbell v. Facebook, Inc., we considered a

settlement agreement that included injunctive relief

requiring “Facebook [to] make a plain English disclosure on

its Help Center page” for one year, informing users about its

“message monitoring practices.” 951 F.3d 1106, 1123 (9th

Cir. 2020). We affirmed the district court’s finding that this

relief “had value to absent class members,” reasoning that it

“ma[de] it less likely that users will unwittingly divulge

private information to Facebook or third parties in the course

of using Facebook’s messaging platform.” Id. We

explained that “the relief provided to the class cannot be

assessed in a vacuum” and that “the class did not need to

receive much for the settlement to be fair because the class

IN RE GOOGLE INC. STREET VIEW LITIG. 29

gave up very little.” Id. We emphasized that the “class

members’ claims were weak enough that the class was fairly

likely to end up receiving nothing at all had this litigation

proceeded further,” and that the injunctive relief provided a

benefit that, while very small, was more than “nothing.” Id.

We also affirmed the district court’s finding that this relief

was not “duplicative” of a “change Facebook had already

made,” because it required the disclosure “to stay on display

for a year” and required an explanation written “in plain

English.” Id. at 1123 n.12.

Similarly, although the injunctive relief here requires

relatively little of Google, it does extend Google’s

obligations beyond those in the AVC. Moreover, it does so

in exchange for class members’ relinquishment of legal

claims that might have been quite difficult to prove and

would likely have yielded very little per class member in

damages. As the district court observed, the context of this

settlement was “a case in which a vast but nonetheless

difficult-to-identify class of people suffered intangible

injury, and minimal damages.”

The Arizona Attorney General argues that “the privacy

landscape for technology companies has fundamentally

changed” since 2013 and that companies like Google have

“been forced to focus on user-privacy questions” for reasons

independent of the Street View litigation. Given these

changes, he asserts that “there can be no doubt that Google

will be independently maintaining privacy training, privacy-

related advertising, and management-level attention to

questions of user privacy and unauthorized collection or

disclosure of user information.” To that point, we have

recognized that injunctive relief in a class action settlement

is illusory if it “does not obligate [a defendant] to do

anything it was not already doing,” or if it merely requires a

30 IN RE GOOGLE INC. STREET VIEW LITIG.

defendant to “continue” practices “it voluntarily adopted”

before the settlement. Koby v. ARS Nat’l Servs., Inc.,

846 F.3d 1071, 1080 (9th Cir. 2017). Here, however, the

district court specifically noted that the injunctive relief

required Google to make “changes . . . it would not have

made without the settlement,” which would provide “some

value to the class.” On clear error review, we will not

second-guess the district court’s factual findings based on

speculation about what Google might hypothetically have

done absent the settlement agreement. Campbell, 951 F.3d

at 1123.

Viewing the modest injunctive relief together with the

indirect benefits the class members enjoy through the cy pres

provision, we affirm the district court’s finding that the

settlement was “fair, reasonable, and adequate.” Fed. R.

Civ. P. 23(e)(2).

E

Lowery argues that the settlement violates the First

Amendment’s prohibition on compelled speech by

distributing class settlement funds to organizations “that take

lobbying positions adverse to” his own interests and beliefs.

The district court found no First Amendment violation,

reasoning that “[t]he settlement agreement between the

parties is not state action, . . . and class members ha[ve] the

opportunity to exclude themselves from the settlement.”

As a threshold matter, the parties dispute whether a

district court’s approval of a settlement agreement

constitutes state action such that it implicates First

Amendment protections. See IMDb.com Inc. v. Becerra,

962 F.3d 1111, 1120 (9th Cir. 2020) (“Private parties may

freely bargain with each other to restrict their own speech,

and those agreements may be enforced, without implicating

IN RE GOOGLE INC. STREET VIEW LITIG. 31

the First Amendment.”). We do not decide today whether,

or under what circumstances, a district court’s approval of a

class action settlement agreement is “state action” for

purposes of the First Amendment. Instead, we hold that the

settlement agreement does not compel class members to

subsidize third-party speech because any class member who

does not wish to “subsidize speech by a third party that he or

she does not wish to support,” Harris v. Quinn, 573 U.S.

616, 656 (2014), can simply opt out of the class. 8

Lowery cites Janus v. American Federation of State,

County, and Municipal Employees, Council 31, 138 S. Ct.

2448, 2459–60 (2018), and Knox v. Service Employees

International Union, Local 1000, 567 U.S. 298, 321–22

(2012), to argue that “silence is not consent and a waiver of

First Amendment rights cannot be presumed.” It is not

entirely clear what connection Lowery intends to draw

between these decisions and his First Amendment

arguments, but Janus and Knox are inapposite. The Supreme

Court held in Janus that states cannot require paycheck

deductions for public employees to subsidize unions that

engage in advocacy those employees find objectionable. It

explained, “[n]either an agency fee nor any other payment to

the union may be deducted from a nonmember’s wages, nor

may any other attempt be made to collect such a payment,

unless the employee affirmatively consents to pay.” 138

S. Ct. at 2486. But Janus involved mandatory deductions

from an employee’s paycheck, while the settlement here

8

The district court found that the parties’ notice to the class

members, as approved and directed by the court, complied with Rule

23(c), (e), and (h) and the Due Process Clause, and provided notice of

the lawsuit, the settlement, and the class members’ rights, including their

right to object to, or opt out of, the settlement. Lowery does not

challenge this finding.

32 IN RE GOOGLE INC. STREET VIEW LITIG.

involves funds that, regardless of the cy pres provisions,

could not feasibly be paid to class members. See id. (“Unless

employees clearly and affirmatively consent before any

money is taken from them, this standard cannot be met.”).

Knox is similarly inapposite because it dealt with whether a

union must provide fresh notice and seek affirmative consent

before exacting funds from nonmembers through paycheck

deductions. 567 U.S. at 321–22.

Lowery observes that class members’ decisions to opt

out “wouldn’t reduce the contribution in the class members’

name[s].” But opting out does not entitle a class member to

his pro rata portion of a settlement. On the contrary, it

entitles him to retain his legal claim by not participating in

the settlement. See Eisen v. Carlisle & Jacquelin, 417 U.S.

156, 176 (1974). If Lowery opts out, he will have

disassociated himself from the subsidization of the cy pres

recipients’ speech. He will also have disclaimed any interest

he might have had in the settlement funds as a class member.

Thus, he would have no further interest in the terms of the

settlement agreement.

F

Lowery also argues that the district court abused its

discretion by approving cy pres recipients who had a

“significant prior affiliation” with defense counsel and class

counsel. In particular, he argues that one of the recipients,

EPIC, “supported plaintiffs in an earlier appeal in this case,”

that four other cy pres recipients “previously received

Google cy pres money” in unrelated cases, that “[m]any of

the recipients had received cy pres funds from other class

actions involving big tech firms,” and that the ACLU “had a

pre-existing relationship with class counsel.” These

arguments are unconvincing. We have never held that

merely having previously received cy pres funds from a

IN RE GOOGLE INC. STREET VIEW LITIG. 33

defendant, let alone other defendants in unrelated cases,

disqualifies a proposed recipient for all future cases.

Moreover, we have affirmed cy pres provisions involving

much closer relationships between recipients and parties

than anything Lowery alleges here.

In Lane, the district court approved a settlement

agreement that included a cy pres payment of approximately

$6.5 million to “a new entity whose sole purpose was to

designate fund recipients consistent with [the] mission to

promote the interests of online privacy and security.”

696 F.3d at 817. This entity “would be run by a three-

member board of directors,” one of whom was Facebook’s

own Director of Public Policy, as well as a “Board of Legal

Advisors,” which “consist[ed] of counsel for both the

plaintiff class and Facebook.” Id. at 817–18. Several

objectors challenged the settlement agreement, arguing that

the presence of a high-level Facebook employee on the

foundation’s board of directors “creates an unacceptable

conflict of interest” and that “the settling parties’ decision to

disburse settlement funds through an organization with such

structural conflicts does not provide the ‘next best

distribution’ of those funds and thus is categorically an

improper use of the cy pres remedy.” Id. at 820. We

disagreed, explaining:

We do not require as part of [the cy pres]

doctrine that settling parties select a cy pres

recipient that the court or class members

would find ideal. On the contrary, such an

intrusion into the private parties’ negotiations

would be improper and disruptive to the

settlement process. The statement . . . in our

case law that a cy pres remedy must be the

“next best distribution” of settlement funds

34 IN RE GOOGLE INC. STREET VIEW LITIG.

means only that a district court should not

approve a cy pres distribution unless it bears

a substantial nexus to the interests of the class

members . . . .

Id. at 820–21.

Lowery argues that Lane only dealt with conflicts

between defendants and cy pres recipients, and that it “has

no bearing on a distribution that raises conflicts between

class counsel and the recipient.” This assertion is incorrect,

as the cy pres arrangement in Lane also provided for class

counsel to sit on the recipient’s board of legal advisors. Id.

at 817–18.

Citing the American Law Institute’s Principles of the

Law of Aggregate Litigation and out-of-circuit authority,

Lowery argues that “[t]he correct legal standard” for

approving a proposed cy pres recipient is whether “any party

has any significant prior affiliation with the intended

recipient that would raise substantial questions about

whether the award was made on the merits.” But we have

never adopted Lowery’s expansive proposed test, and

Lowery cites no binding authority that would have precluded

the district court from approving the cy pres recipients here.

Lowery cites Radcliffe v. Experian Information

Solutions Inc., 715 F.3d 1157 (9th Cir. 2013), to argue that

there existed a “potential conflict of interest of class counsel

in favoring a former client and co-counsel” (apparently EPIC

and the ACLU) over class members. But Radcliffe is

entirely inapposite. We held in that case, relying on

California law governing attorney ethics, that “conditional

incentive awards” to class representatives “caused the

interests of the class representatives to diverge from the

interests of the class because the settlement agreement told

IN RE GOOGLE INC. STREET VIEW LITIG. 35

class representatives that they would not receive incentive

awards unless they supported the settlement.” Id. at 1161.

Lowery points to no such improper incentives here.

He also cites Nachshin, 663 F.3d at 1039, but nothing in

that decision suggests the sort of scrutiny that Lowery argues

we should apply to the cy pres settlement here. In Nachshin,

we explained that “[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 to the whims and self interests of the parties, their

counsel, or the court.” Id.; see id. (“To remedy some of these

concerns, we held in Six Mexican Workers that cy pres

distribution must be guided by (1) the objectives of the

underlying statute(s) and (2) the interests of the silent class

members.”). The district court’s approval of the cy pres

recipients comported with those standards, and we find no

abuse of discretion.

G

Lowery argues that the district court abused its discretion

by “blindly apply[ing]” a 25% benchmark for attorneys’ fees

without regard for the actual benefit the settlement conferred

on the class. We disagree.

The district court devoted several pages of analysis to the

issue of attorneys’ fees, correctly beginning with the premise

that “in the Ninth Circuit, the ‘benchmark’ fee award is 25%,

which can be adjusted upward or downward based on the

circumstances of the case.” See Fischel v. Equitable Life

Assurance Soc’y of U.S., 307 F.3d 997, 1006 (9th Cir. 2002)

(“We have established a 25 percent ‘benchmark’ in

percentage-of-the-fund cases that can be ‘adjusted upward

or downward to account for any unusual circumstances

involved in [the] case.’” (alteration in original) (citation

36 IN RE GOOGLE INC. STREET VIEW LITIG.

omitted)). It found that “the overall result and benefit to the

class from the litigation supports the requested percentage”

of 25% because the cy pres relief “benefits the class

members by serving the goals of this litigation and the

[Electronic Communications Privacy Act].”

The district court specifically considered Lowery’s

argument that the benchmark should be reduced to reflect the

lack of direct monetary payments to class members. It

rejected this argument, reasoning that “where the settlement

fund is non-distributable, counsel should not be penalized

for fashioning a cy pres-only settlement that stands to

accomplish some good.” The district court noted several

other factors supporting a 25% benchmark: that the case

“required skill and expertise,” “involved novel issues,” took

“nearly ten years of work,” and was “risky” for counsel to

take on. The court also conducted a lodestar analysis and

determined that the benchmark-based award would be lower

than a lodestar-based award, “strongly suggest[ing] the

reasonableness of the requested fee.”

The district court’s reasoning makes clear that this was

not a “blind” application of a benchmark to the

circumstances of the case. And Lowery does not challenge

any of the district court’s specific factual findings supporting

its fee award. Instead, he urges us to hold as a general matter

that “it [is] inappropriate to value cy pres on a dollar-for-

dollar basis” equivalent to direct monetary relief to class

members. See In re Heartland Payment Sys., Inc. Customer

Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1077 (S.D.

Tex. 2012). Certainly, a district court must consider a

settlement’s benefit to the class in determining appropriate

attorneys’ fees, and thus, attorneys’ fees are not solely a

function of the size of a settlement fund. See e.g., In re HP

Inkjet Printer Litig., 716 F.3d 1173, 1182, 1185–87 (9th Cir.

IN RE GOOGLE INC. STREET VIEW LITIG. 37

2013) (“Plaintiffs attorneys don’t get paid simply for

working; they get paid for obtaining results.”); In re Baby

Prods. Antitrust Litig., 708 F.3d 163, 170 (3d Cir. 2013)

(“[W]e confirm that courts need to consider the level of

direct benefit provided to the class in calculating attorneys’

fees.”).

But there is no uniform rule that district courts must

discount the value of any cy pres relief, regardless of the

feasibility of distribution to class members or other relevant

circumstances. Indeed, we have repeatedly approved

attorneys’ fees for cy pres settlements in proportions similar

to the award here. See Google Referrer, 869 F.3d at 747–48

(affirming fee award of 25% of cy pres settlement); Lane,

696 F.3d at 818, 823–24 (affirming lodestar-based fee award

of 24.89% of total cy pres settlement); see also Campbell,

951 F.3d at 1115, 1126–27 (rejecting argument that

$3.89 million fee award was excessive when settlement

provided only injunctive relief). Other circuits have

similarly declined to adopt such a rule. See Baby Prods.,

708 F.3d at 178 (“We think it unwise to impose . . . a rule

requiring district courts to discount attorneys’ fees when a

portion of an award will be distributed cy pres.”).

Lowery argues that by failing to decrease the benchmark

given the lack of direct payments to class members, we

would permit “perverse incentives [that] will result in a

disproportionate number of cy pres-only settlements.” But

our approach does not “make[] class counsel financially

indifferent between a settlement that awards cash directly to

class members and a cy pres-only settlement,” as Lowery

warns, because it does take into account the benefit to class

members. And, “[o]f course, the percentage may be adjusted

to account for any unusual circumstances.” Williams v.

MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir.

38 IN RE GOOGLE INC. STREET VIEW LITIG.

1997). Thus, if class counsel fails “to seek an award that

adequately prioritizes direct benefit to the class,” it might be

“appropriate for the court to decrease the fee award.” Baby

Prods., 708 F.3d at 178. Doing so might also be appropriate

when “a cy pres . . . settlement . . . has a tenuous relationship

to the class allegedly damaged by the conduct in question,”

or when it appears that the settlement “serves only the ‘self-

interests’ of the attorneys and the parties, and not the class.”

Dennis v. Kellogg Co., 697 F.3d 858, 868 (9th Cir. 2012).

But here, the district court properly considered all relevant

circumstances, including the value to the class members, and

concluded that a 25% benchmark was appropriate. We

affirm the district court’s fee award.

H

Finally, Lowery argues that class certification was

inappropriate because, by deciding to settle, class counsel

and the class representatives breached their fiduciary duties.

See Fed. R. Civ. P. 23(a)(4) (conditioning class certification

on a finding that “the representative parties will fairly and

adequately protect the interests of the class”); id. 23(g)(4)

(“Class counsel must fairly and adequately represent the

interests of the class.”). Lowery asserts that under these

fiduciary duties, class counsel and representatives cannot

“agree[] to accept excessive fees and costs to the detriment

of [absent] class plaintiffs.” See Lobatz v. U.S. W. Cellular

of Cal., Inc., 222 F.3d 1142, 1147 (9th Cir. 2000).

Lowery’s fiduciary duty arguments are simply a

repackaging of his other arguments against the settlement:

he asserts that “class counsel structure[d] a settlement to

benefit third parties over any single absent class member,”

that the settlement included excessive attorneys’ fees and

lacked “any benefit for the class,” and that counsel should

have advised “absent class members of the superiority of

IN RE GOOGLE INC. STREET VIEW LITIG. 39

opting out en masse.” Because we affirm the district court’s

finding that the settlement does provide adequate value to

the class, and because there is no indication that counsel

accepted excessive attorneys’ fees or favored third parties

over class members, we hold that class counsel and class

representatives did not breach their fiduciary duties by

entering the settlement.

V

We AFFIRM the district court’s order certifying the

class, approving the settlement agreement, and awarding

attorneys’ fees.

BADE, Circuit Judge, concurring:

The district court correctly applied our circuit’s law and

did not err in certifying the class for settlement purposes or

approving the proposed settlement agreement. Indeed, in

varying contexts, we have upheld class action settlements

that provided cy pres awards to third parties in lieu of

damages for the class members. See In re Google Referrer

Header Priv. Litig., 869 F.3d 737 (9th Cir. 2017), vacated

and remanded on other grounds, Frank v. Gaos, 139 S. Ct.

1041 (2019); Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir.

2012). And we have implicitly approved the use of cy pres

awards even when rejecting settlements on other grounds.

See Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011);

Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d

1301 (9th Cir. 1990). Because I am constrained to follow

these precedents, I authored and joined the majority opinion.

But as Chief Justice Roberts has noted, “fundamental”

questions about “the use of [cy pres] remedies in class action

40 IN RE GOOGLE INC. STREET VIEW LITIG.

litigation” remain unanswered. See Marek v. Lane, 134 S.

Ct. 8, 9 (2013) (Roberts, C.J., respecting the denial of

certiorari) (explaining that, among other questions, the Court

has not yet addressed “when, if ever, such relief should be

considered” and “how to assess its fairness as a general

matter”). Therefore, I write separately to express some

general concerns about cy pres awards.

First, I recognize that “federal courts frequently use the

cy pres doctrine ‘in the settlement of class actions where the

proof of individual claims would be burdensome or

distribution of damages costly.’” Nachshin, 663 F.3d

at 1038 (quoting Six Mexican Workers, 904 F.2d at 1305);

see also A.L.I., Principles of the Law of Aggregate

Litigation § 3.07(c) (2010) (approving cy pres settlement

provisions “[i]f the court finds that individual distributions

are not viable”); William B. Rubenstein, 4 Newberg on Class

Actions § 12:26 (5th ed. 2011) [hereinafter Newberg]

(same). I also recognize that cy pres awards present a

practical solution for settling cases “[w]hen a class action

involves a large number of class members but only a small

individual recovery, [and] the cost of separately proving and

distributing each class member’s damages may so outweigh

the potential recovery that the class action becomes

unfeasible.” Six Mexican Workers, 904 F.2d at 1305. I

question, however, whether we have allowed these practical

advantages to inappropriately displace other concerns

implicated by cy pres awards.

Such concerns, which have been ably identified by

jurists and commentators, include: conflicts of interest

between class counsel and absent class members,

Keepseagle v. Perdue, 856 F.3d 1039, 1060 (D.C. Cir. 2017)

(Brown, J., dissenting); In re Baby Prods. Antitrust Litig.,

708 F.3d 163, 173 (3d Cir. 2013); Jay Tidmarsh, Cy Pres

IN RE GOOGLE INC. STREET VIEW LITIG. 41

and the Optimal Class Action, 82 Geo. Wash. L. Rev. 767,

772, 782 (2014); incentives for collusion between

defendants and class counsel, Lane, 696 F.3d at 829–30

(Kleinfeld, J., dissenting); the role of the court and the

parties in shaping a cy pres remedy and the potential

appearance of impropriety, S.E.C. v. Bear, Stearns & Co.,

626 F. Supp. 2d 402, 415 (S.D.N.Y. 2009); Goutam U. Jois,

The Cy Pres Problem and the Role of Damages in Tort Law,

16 Va. J. Soc. Pol’y & L. 258, 265–66 (2008); the use of

Rule 23 of the Federal Rules of Civil Procedure, “a wholly

procedural device,” to shape substantive rights, arguably in

violation of Article III, the Rules Enabling Act, 1 and the

separation of powers doctrine, Klier v. Elf Atochem N. Am.,

Inc., 658 F.3d 468, 481 (5th Cir. 2011) (Jones, J.,

concurring) (citing Martin H. Redish et al., Cy Pres Relief

and the Pathologies of the Modern Class Action: A

Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 623,

641 (2010)); “whether a cy pres award can ever be used as a

substitute for actual damages,” Molski v. Gleich, 318 F.3d

937, 954 (9th Cir. 2003), overruled on other grounds by

Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (9th Cir.

2010) (en banc); the propriety of importing a doctrine

originating in trust law into the context of class action

litigation, Klier, 658 F.3d at 480 (Jones, J., concurring); In

re Pet Food Prods. Liab. Litig., 629 F.3d 333, 363 (3d Cir.

2010) (Weis, J., concurring in part and dissenting in part);

1

In Wal-Mart Stores, Inc. v. Dukes, the Court cautioned that “the

Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or

modify any substantive right.’” 564 U.S. 338, 367 (2011) (quoting

28 U.S.C. § 2072(b)); see also Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 408 (2010) (“A class action, no less than

traditional joinder (of which it is a species), merely enables a federal

court to adjudicate claims of multiple parties at once, instead of in

separate suits. And like traditional joinder, it leaves the parties’ legal

rights and duties intact and the rules of decision unchanged.”).

42 IN RE GOOGLE INC. STREET VIEW LITIG.

Redish, supra, at 630; and whether class action litigation is

superior to other methods of adjudication if parties must

resort to cy pres relief, Frank, 139 S. Ct. at 1047 (Thomas,

J., dissenting). I do not expand on those justified concerns

here. Instead, I focus on the predicate of cy pres settlement

provisions—the theory of indirect benefit to the class

members.

Courts have upheld cy pres awards based on the premise

that they provide an indirect benefit to the class when a direct

monetary payment is not feasible. See Lane, 696 F.3d

at 819; Nachshin, 663 F.3d at 1038; Six Mexican Workers,

904 F.2d at 1305; Klier, 658 F.3d at 475. Institutional

commentators and treatises have also embraced this theory

of indirect benefit. See A.L.I., supra, at § 3.07 cmt. b (“Cy

pres is preferable to other options available to a court when

direct distributions are not viable.”); Newberg, supra, at

§ 12:26 (“[C]y pres distributions provide indirect

compensation to the plaintiff class by funding activities that

are in the class’s interest.”).

But there is an increasing skepticism about whether cy

pres provisions actually provide an indirect benefit to class

members. See Frank, 139 S. Ct. at 1047 (Thomas, J.,

dissenting) (“[C]y pres payments are not a form of relief to

the absent class members and should not be treated as such

. . . .”); Lane, 696 F.3d at 830 (Kleinfeld, J., dissenting) (“It

is hard to imagine a real client saying to his lawyer, ‘I have

no objection to the defendant paying you a lot of money in

exchange for agreement to seek nothing for me.’”); Molski,

318 F.3d at 954 (stating that “it seems somewhat distasteful

to allow a corporation to fulfill its legal and equitable

obligations through tax-deductible donations to third

parties”); In re Baby Prods. Litig., 708 F.3d at 173

(concluding that cy pres settlements are permissible, but

IN RE GOOGLE INC. STREET VIEW LITIG. 43

noting that they substitute “an indirect benefit that is at best

attenuated and at worse illusory” for compensatory

damages); Klier, 658 F.3d at 482 (Jones, J., concurring)

(“Our adversarial system should not effectuate transfers of

funds from defendants beyond what they owe to the parties

in judgments or settlements.”); Mirfasihi v. Fleet Mortg.

Corp., 356 F.3d 781, 784 (7th Cir. 2004) (explaining that in

cy pres settlements “[t]here is no indirect benefit to the class

from the defendant’s giving the money to someone else”);

Six Mexican Workers, 904 F.2d at 1312 (Fernandez, J.,

concurring) (“[Cy pres] is a very troublesome doctrine,

which runs the risk of being a vehicle to punish defendants

in the name of social policy, without conferring any

particular benefit upon any particular wronged person.”);

Redish, supra, at 623 (“Cy pres creates the illusion of class

compensation. It is employed when—and only when—

absent its use, the class proceeding would be little more than

a mockery.”). And, despite the acceptance of the theory of

indirect benefit, there is, in my view, a compelling argument

that class members receive no benefit at all from a settlement

that extinguishes their claims without awarding them any

damages, and instead directs money to groups whose

interests are purportedly aligned with the class members, but

whom they have likely never heard of or may even oppose.

Moreover, even if we accept the premise that cy pres

awards provide value to the public at large, there is practical

appeal in the argument that such settlements provide no

unique consideration to class members because they receive

the same generalized benefits as non-class-members and

opt-outs. Indeed, cy pres settlements arguably benefit opt-

outs more than class members because opt-outs reap any

positive externalities of the settlement provisions while

44 IN RE GOOGLE INC. STREET VIEW LITIG.

retaining the value of the claims that the settlement

extinguished for class members. 2

I am therefore not convinced that cy pres awards to

uninjured third parties should qualify as an indirect benefit

to injured class members, and I am concerned that “the ‘cy

pres’ remedy . . . is purely punitive,” Mirfasihi, 356 F.3d

at 784, with defendants paying millions of dollars in what

are essentially civil fines to class counsel and third parties

while providing no compensation to injured class members.

See Klier, 658 F.3d at 481 (Jones, J., concurring) (citing

Redish, supra, at 623); see also Six Mexican Workers,

904 F.2d at 1312 (Fernandez, J., concurring) (“[Cy pres’]

use may well amount to little more than an exercise in social

engineering by a judge, who finds it offensive that

defendants have profited by some wrongdoing, but who has

no legitimate plaintiff to give the money to.”); Newberg,

supra, at § 12:26 (stating that one purpose of cy pres

distributions is to “ensure that the defendant is disgorged of

a sum certain, even if that money does not compensate class

members directly”).

I further question whether cy pres awards are inherently

unfair when the class receives no meaningful relief in

exchange for their claims, see Fed. R. Civ. P. 23(e)(2), and

whether such awards can be justified given the serious

2

In cases where a class settlement provides injunctive and cy pres

relief, but no damages for class members, the concern that non-class-

members and opt-outs fare better than class members could be mitigated

by certifying injunctive and declaratory relief classes under Rule

23(b)(2), without cy pres awards and without requiring class members to

release damages claims, rather than damages classes under Rule

23(b)(3). Cf. Campbell v. Facebook, Inc., 951 F.3d 1106, 1113–15, 1124

(9th Cir. 2020) (affirming approval of injunctive-relief-only class

settlement that did not release class members’ damages claims).

IN RE GOOGLE INC. STREET VIEW LITIG. 45

ethical, procedural, and constitutional problems that others

have identified. Therefore, I respectfully submit that it is

time we reconsider the practice of cy pres awards.