Petition for Writ of Certiorari — David Lowery, Petitioner v. Benjamin Joffe, et al.

Supreme Court briefJun 3, 2022

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No. 21-____

In the Supreme Court of the United States

___________

DAVID LOWERY,

Petitioner,

BENJAMIN JOFFE, et al.,

___________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________

PETITION FOR WRIT OF CERTIORARI

___________

Theodore H. Frank

Counsel of Record

Anna St. John

Adam E. Schulman

HAMILTON LINCOLN LAW INSTITUTE

CENTER FOR CLASS ACTION FAIRNESS

1629 K Street N.W., Suite 300

Washington, D.C. 20006

(703) 203-3848

ted.frank@hlli.org

Counsel for Petitioner

QUESTIONS PRESENTED

In Frank v. Gaos, 586 U.S. __, 139 S. Ct. 1041 (2019),

the Court granted review of In re Google Referrer Header

Privacy Litigation, 869 F.3d 737 (9th Cir. 2017), where

the Ninth Circuit affirmed Rule 23(e)(2) approval of a

class-action settlement with Google that paid no money to

the class, but millions of dollars to class counsel and socalled cy pres—third-party charities that in that case had

relationships with class counsel or the defendant. Gaos ultimately did not reach the merits, but vacated the Ninth

Circuit opinion for a determination of Article III standing. 139 S. Ct. at 1046.

This case presents a functionally identical all-cy pres

class-action settlement with Google, where class attorneys will receive $3.75 million while class members will

receive no pecuniary benefit from the $13 million settlement fund. Instead, class counsel directed settlement

money to, among others, a former client and a former cocounsel. The district court held cy pres appropriate because $13 million could not be divided across 60 million

class members (though class settlements make similar divisions regularly) and because it accepted the settling

parties’ position that it would be too difficult to identify

individual class members. It nevertheless certified a class

the parties told it was unascertainable. The Ninth Circuit

reaffirmed its decision in Google Referrer and affirmed

the class certification, settlement approval, and fee

award.

Furthermore, Petitioner and class member David Lowery, a musician and activist on creators’ intellectual prop-

erty rights, objected below that several of the cy pres recipients take Google’s side against him on controversial

issues relating to copyright. The Ninth Circuit rejected

Lowery’s argument that the cy pres violated his First

Amendment rights not to be compelled to subsidize

speech he disagrees with, holding that he could opt out of

the proposed settlement.

The first question presented here is identical to the one

that the Court granted in Gaos but left unresolved; the

second is an important issue that arises in class actions

generally.

1. Whether, or in what circumstances, a cy pres

award that provides no direct relief or benefit

to class members comports with the Rule 23(e)

requirement that a settlement binding class

members must be “fair, reasonable, and adequate.”

2. Whether Rule 23(b)(3) permits certification of

a class where the district court has found that

class members cannot be ascertained or even

self-identify without an individualized “difficult

and expensive” inquiry.

iii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner David Lowery is a member of the plaintiff

class and was an objector in the district court proceedings

and the appellant in the court of appeals proceedings.

Respondents Benjamin Joffe; Lilla Marigza; Rick Benitti; Bertha Davis; Jason Taylor; Eric Myhre; John 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; and Jennifer Locsin were the named

plaintiffs in the district court proceedings and appellees

in the court of appeals proceedings.

Respondent Google Inc. was the defendant in the district court proceedings and appellee in the court of appeals proceedings.

Because Lowery is not a corporation, a corporate disclosure statement is not required under Supreme Court

Rule 29.6.

STATEMENT OF RELATED PROCEEDINGS

In re Google Inc. Street View Elec. Comm. Litig.,

No. 20-15616 (9th Cir.) (opinion issued Dec. 27, 2021; order denying rehearing and rehearing en banc entered

Feb. 3, 2022).

In re Google LLC Street View Elec. Comm. Litig.,

No. 3:10-md-02184-CRB (N.D. Cal.) (order granting in

part and denying in part motion to dismiss issued Jun. 29,

2011; order granting final approval of class-action settlement and awarding fees and costs and entering final judgment issued March 18, 2020, and modified March 27,

2020).

Google, Inc. v. Joffe, et al., No. 13-1181 (U.S.) (order

denying certiorari issued Jun. 30, 2014).

Joffe v. Google, Inc., No. 11-17483 (9th Cir.) (opinion on

interlocutory appeal issued Sept. 10, 2013; order granting

rehearing and amending opinion and denying rehearing

en banc issued Dec. 27, 2013).

A different class action against Google raised the same

question presented as this case:

Frank v. Gaos, No. 17-961 (U.S.) (order granting certiorari issued March 30, 2018; per curiam opinion vacating

and remanding judgment issued March 20, 2019).

In re Google Referrer Header Privacy Litig., No. 1515858 (9th Cir.) (opinion issued Aug. 22, 2017; order denying rehearing and rehearing en banc entered Oct. 5, 2017;

order vacating judgment and remanding to district court

issued May 13, 2019).

In re Google Referrer Header Privacy Litig., No. 5:10cv-04809-EJD (N.D. Cal.) (opinion granting final approval of settlement Mar. 31, 2015; final judgment issued

Apr. 2, 2015; notice of settlement in principle filed Oct. 6,

2021, but motion for preliminary approval of settlement

not yet filed).

There are no other proceedings in any court that are

directly related to this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................ i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT ........................................... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

TABLE OF CONTENTS ................................................. vi

TABLE OF AUTHORITIES ........................................... x

PETITION FOR WRIT OF CERTIORARI .................. 1

OPINIONS BELOW ......................................................... 4

JURISDICTION ................................................................ 4

RULES INVOLVED ......................................................... 4

STATEMENT OF THE CASE ........................................ 5

A. Plaintiffs and attorneys general sue Google

over privacy violations, and Google settles. ............ 5

B. Lowery objects. .......................................................... 8

C. The district court rejects Lowery’s objections

and approves the settlement. .................................. 10

D. The Ninth Circuit affirms, endorsing Google

Referrer. .................................................................... 12

E. Judge Bade issues a concurring opinion to the

panel opinion she authored, calling for a reconsideration of the cy pres doctrine. .......................... 14

REASONS FOR GRANTING THE PETITION ........ 15

The circuits are in conflict. ...................................... 14

vii

The Ninth Circuit stands alone on cy pres......... 17

Courts split on ascertainability and on certification where no relief is available to the class. .. 21

II.

The questions presented are important and

recurring, and will only grow as parties

forum-shop settlements to the Ninth Circuit. ... 23

Application of cy pres to class-action settlements is a poor fit for the doctrine. .................... 23

Cy pres creates improper incentives for class

counsel.................................................................... 26

Cy pres creates the appearance of impropriety for district court judges ................................. 28

Cy pres raises First Amendment concerns

that the Ninth Circuit improperly minimized. .. 29

Class members benefit when courts restrict

cy pres abuse. ........................................................ 31

Critical certification decisions now turn on

venue. ..................................................................... 33

The circuit split encourages forum shopping. ... 33

CONCLUSION................................................................. 37

APPENDIX

Appendix A

Opinion, In re Google Inc. Street View Electronics

Communications Litigation, No. 20-15616

(9th Cir. Dec. 27, 2021) ...................................... App. 1a

viii

Appendix B

Order Granting Final Approval of Class Action Settlement, Granting Attorneys’ Fees, and Entering Final Judgment, In re Google LLC Street View Electronics Communications Litigation, No. 3:10-MD02184-CRB (N.D. Cal Mar. 18, 2020) ............. App. 43a

Appendix C

Order Granting Plaintiffs’ Motion for Leave to Pay

Settlement Administration Expenses, In re Google

LLC Street View Electronics Communications Litigation, No. 3:10-MD-02184-CRB (N.D. Cal.

Mar. 27, 2020) ................................................... App. 85a

Appendix D

Order Denying Denying Rehearing, In re Google

Inc. Street View Electronics Communications Litigation, No. 20-15616 (9th Cir. Feb. 3, 2022) . App. 87a

Appendix E

Settlement Agreement, In re Google LLC Street

View Electronics Communications Litigation, No.

3:10-MD-02184-CRB (N.D. Cal.

Jul. 19, 2019) ..................................................... App. 88a

Appendix F

Objection of David Lowery, In re Google LLC Street

View Electronics Communications Litigation,

No. 3:10-MD-02184-CRB (N.D. Cal.

Jan. 20, 2020) .................................................. App. 111a

Appendix G

Excerpts of Fed. R. Civ. P. 23 ...................... App. 154a

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. USAA Casualty Ins. Co.,

863 F.3d 1069 (8th Cir. 2017) ................................

Adashunas v. Negley,

626 F.2d 600 (7th Cir. 1980) ...................................

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) ..................................................

In re Aqua Dots Prod. Liab. Litig.,

654 F.3d 748 (7th Cir. 2013) ...................................

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ..................................................

In re Baby Products Antitrust Litigation,

708 F.3d 163 (3d Cir. 2013)..................................... 21, 31

In re BankAmerica Corp. Securities Litig.,

775 F.3d 1060 (8th Cir. 2015) ................................. 19, 29

In re Bayer Corp. Litig.,

No. 09-md-2023, (E.D.N.Y. Nov. 8, 2013) .............

Beaver v. Tarsadia Hotels,

2020 WL 1139662, 2020 U.S. Dist. LEXIS

40415 (S.D. Cal. Mar. 9, 2020) ................................

Briseno v. Conagra Foods, Inc.,

844 F.3d 1121 (9th Cir. 2017) .................................

TABLE OF AUTHORITIES—Continued

Page(s)

Carrera v. Bayer Corp.,

727 F.3d 300 (3d Cir. 2013)..................................... 21, 22

Cherry v. Dometic Corp.,

986 F.3d 1296 (11th Cir. 2021) ...............................

In re Compact Disc Minimum Advertised Price

Antitrust Litig.,

236 F.R.D. 48 (D. Me. 2006) ...................................

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) ..................................................

In re EasySaver Rewards Litig.,

906 F.3d 747 (9th Cir. 2018) .............................. 17, 28, 34

Eubank v. Pella Corp.,

753 F.3d 718 (7th Cir. 2014) ...................................

Frank v. Gaos,

586 U.S. __, 139 S. Ct. 1041 (2019) ..................... passim

Fraley v. Facebook, Inc.,

966 F. Supp. 2d 939 (N.D. Cal. 2013) ....................

In re Google Buzz Privacy Litig.,

2011 WL 7460099 (N.D. Cal. Jun. 2, 2011) ...........

In re Google Inc. Cookie Placement Consumer

Priv. Litig.,

934 F.3d 316 (3d Cir. 2019)..................................... 21, 22

xii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Google Plus Profile Litig.,

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

Cal. Jan. 25, 2021) ...................................................

In re Google Referrer Header Privacy Litig.,

869 F.3d 737 (9th Cir. 2017) ................................ passim

Harris v. Quinn,

573 U.S. 616 (2014) ..................................................

Ira Holtzman, CPA & Assoc. Ltd. v. Turza,

728 F.3d 682 (7th Cir. 2013) ...................................

Janus v. Am. Fed’n of State, Cty., and Mun.

Emps., Council 31,

138 S. Ct. 2448 (2018) .............................................. 3, 30

Joffe v. Google, Inc.,

746 F.3d 920 (9th Cir. 2013) ...................................

Keepseagle v. Perdue,

856 F.3d 1039 (D.C. Cir. 2017) ...............................

Klier v. Elf Atochem North America, Inc.,

658 F.3d 468, 475 (5th Cir. 2011) ........................... 19, 29

Knell v. FIA Card Servs, N.A.,

No. 12-cv-00426, 2020 U.S. Dist. LEXIS 217452

(S.D. Cal. Nov. 19, 2020) .........................................

Knox v. SEIU,

567 U.S. 298 (2012) ..................................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Krueger v. Wyeth, Inc.,

2020 U.S. Dist. LEXIS 211235, 2020 WL

6688838 (S.D. Cal. Nov. 12, 2020) ..........................

Lane v. Facebook, Inc.,

696 F.3d 811 (9th Cir. 2012) ............................... passim

Marcus v. BMW of North America, LLC,

687 F.3d 583 (3d Cir. 2012).....................................

Marek v. Lane,

571 U.S. 1003 (2013) .............................................. passim

McDonough v. Toys “R” Us, Inc.,

80 F. Supp. 3d 626 (E.D. Pa. 2015) ........................

Mirfasihi v. Fleet Mortg. Corp.,

356 F.3d 781 (7th Cir. 2004) ...................................

Mullins v. Direct Digital, LLC,

795 F.3d 654 (7th Cir. 2015) .............................. 22, 26, 33

Norcia v. Samsung Telcoms. Am., LLC,

2021 WL 3053018, 2021 U.S. Dist. LEXIS

135256 (N.D. Cal. Jul. 20, 2021) .............................

Pearson v. NBTY, Inc.,

772 F.3d 778 (7th Cir. 2014) ........................ 18, 19, 24, 31

Pecover v. Electronic Arts, Inc.,

No. 08-cv-2820, 2013 WL 12121865

(N.D. Cal. May 30, 2013) ........................................

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Perryman v. Romero,

No. 18-1074, 139 S. Ct. 2744 (2019) .......................

In re Pet Food Prods. Liab. Litig.,

629 F.3d 333 (3d Cir. 2010).....................................

Poblano v. Russell Cellular Inc.,

543 F. Supp. 3d 1293 (M.D. Fla. 2021) ..................

SEC v. Bear, Stearns & Co.,

626 F. Supp. 2d 402 (S.D.N.Y. 2009) .....................

Shady Grove Orthopedic Assocs., P.A., v. Allstate

Ins. Co.,

559 U.S. 393 (2010) ..................................................

In re Volkswagen “Clean Diesel” Litig.,

No. 3:15-md-02672-CRB (N.D. Cal.).....................

Ward v. Flagship Credit Acceptance LLC,

No. 17-cv-2069, 2020 U.S. Dist. LEXIS 25612

(E.D. Pa. Feb. 13, 2020)..........................................

RULES AND STATUTES

Fed. R. Civ. P. 23 ............................................. 16, 23, 25, 31

Fed. R. Civ. P. 23(a)(4) ...............................................

Fed. R. Civ. P. 23(b)(3) .......................................... ii, 4, 9, 15

TABLE OF AUTHORITIES—Continued

Page(s)

Fed. R. Civ. P. 23(b)(3)(D) .........................................

Fed. R. Civ. P. 23(e) ....................................................

Fed. R. Civ. P. 23(e)(2) ............................................... i, 4, 15

Fed. R. Civ. P. 23(e)(2)(C)(ii) ................................ 12, 25, 34

Fed. R. Civ. P. 23(g)(4) ...............................................

Fed. R. Civ. P. 23(h)....................................................

U.S. Const., amend. 1 .................................. 9, 12, 16, 29, 31

U.S. Const., Art. III .................................................. i, 10, 16

OTHER AUTHORITIES

Chasin, Chris J., Modernizing Class Action Cy

Pres Through Democratic Inputs, 163 U.

PENN. L. REV. 1463 (2015) .....................................

Editorial Board, The Anthem Class-Action Con,

WALL ST. J. (Feb. 11, 2018) ...................................

Frankel, Alison, By Restricting Charity Deals,

Appeals Courts Improve Class Actions, REUTERS (Jan. 12, 2015) ................................................

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Kidd, Jeremy & Chas Whitehead, Saving Class

Members from Counsel, 58 SAN DIEGO L. REV.

579 (2021) ........................................................ 1, 27, 28, 36

Liptak, Adam, Doling Out Other People’s Money,

N.Y. TIMES (Nov. 26, 2007) ....................................

MacLean, Pamela A., Competing for Leftovers,

CALIFORNIA LAWYER (Sep. 2, 2011) .....................

Redish, Martin H., et al., Cy Pres Relief and the

Pathologies of the Modern Class Action: A

Normative and Empirical Analysis, 62 FLA.

L. REV. 617 (2010) ................................................... 27, 28

Rodriguez, Natalie, Era of Mammoth Cases Test

Remedy of Last Resort, LAW360 (May 2, 2017) ..

Smith, D. Brooks, Class Action and Aggregate

Litigation: A Comparative International

Analysis, 124 PENN ST. L. REV. 303 (2020) ......... 3, 36

Vascellaro, Jessica E., Google Says It Mistakenly

Collected Data on Web Usage, WALL ST. J.

(May 14, 2010) .........................................................

PETITION FOR WRIT OF CERTIORARI

A $13 million class-action settlement that awards absent class members no relief at all in exchange for their

claims—no money, not even coupons—is not fair, reasonable, and adequate by any measure. Frank v. Gaos, 139 S.

Ct. 1041, 1047–48 (2019) (Thomas, J., dissenting). Yet the

Ninth Circuit upheld such a settlement because class

counsel and the defendant agreed to donate, on behalf of

the class, about $8.5 million to third parties, including

class counsel’s former client and former co-counsel and

several nonprofits already funded by the defendant.

(Most of the remainder of the settlement proceeds, of

course, went to class counsel as fees and expenses.) It

didn’t matter that class members would receive the same

relief whether they remained in the settlement and released their claims or opted out. App.40a. And it didn’t

matter whether some or all of a portion of settlement

funds are “distributable”; a district court may approve a

“cy pres-only settlement” that gives class members nothing in exchange for their claims. App.16a.

For good reason, every other court of appeals to consider the issue has disagreed with the Ninth Circuit’s permissive approach. See generally Jeremy Kidd & Chas

Whitehead, Saving Class Members from Counsel, 58 SAN

DIEGO L. REV. 579 (2021) (“Kidd”) (noting circuit split).

Those courts’ decisions have recognized that cy pres

awards require special scrutiny because they can facilitate tacit or explicit collusion between defendants, who

are eager to settle at the lowest price and with a minimum

of fuss, and class counsel, who are seeking to maximize

their fees and may be willing to accommodate defendants’

interests in exchange for illusory relief. They recognize

that, in this way, cy pres awards present a heightened risk

of conflict between class counsel and their putative clients, the members of the class. They recognize that cy

pres awards may provide little or no benefit to class members. And above all else, they recognize that cy pres

awards to third parties are not appropriate when any reasonable opportunity exists to compensate class members

directly for their injuries—always the first-best use of

settlement funds that, after all, are the property of the

class.

By contrast, the Ninth Circuit’s opinion here paves the

way to divert that class property to third parties in just

about every instance. In the Ninth Circuit’s view, so long

as the district court determines that it would be “burdensome” to make payments that require individualized conclusive proof of class membership or would be too small

once divided across the entire class, it has not abused its

discretion to sign off on cy pres. App.16a–20a. A court

therefore need not consider alternatives to a cy pres-only

settlement, such as funding a claims process where class

members self-identify or requiring some sort of direct

distribution, nor second-guess the propriety of class certification. Id. Thus, by defining a plaintiff class broadly

enough, class counsel can grease the skids for a quick and

easy cy pres deal with defendants that sells class members “down the river.” Mirfasihi v. Fleet Mortg. Corp.,

356 F.3d 781, 785 (7th Cir. 2004). No other federal appellate circuit to consider cy pres questions in the face of

class-member objections has endorsed a settlement that

substitutes cy pres relief wholesale for class recovery,

leaving class members empty handed in the process. Indeed, the former Chief Judge of the Third Circuit classified past Ninth Circuit all-cy pres settlement approvals as

“egregious” examples of “cy pres gone wrong.” D. Brooks

Smith, Class Action and Aggregate Litigation: A Comparative International Analysis, 124 PENN ST. L. REV.

303, 337 (2020) (“Smith”).

Politicized recipients exacerbate the inherent problems

of cy pres by “direct[ing] money to groups whose interests are purportedly aligned with the class members, but

whom they have likely never heard of or may even oppose.” App.40a. This implicates the First Amendment because of the lack of affirmative consent for class counsel

to divert each class member’s money to a third party. Janus v. Am. Fed’n of State, Cty., and Mun. Emps., Council

31, 138 S. Ct. 2448, 2486 (2018). Regrettably, the Ninth

Circuit nullified that requirement, and the resulting cy

pres makes petitioner Lowery worse off by funding

groups—including programs at universities with billions

of dollars in endowments—that work against his causes.

In this way, the decision below deepened a circuit split

that already created an enormous incentive for forumshopping by plaintiffs’ attorneys seeking to bring and settle nationwide class actions like this one. Bringing suit

within the Ninth Circuit’s footprint guarantees that minor things like compensating class members for their injuries and holding defendants liable to the extent the law

allows will not discourage reaching a quick settlement to

the mutual benefit of defendants and class counsel, at the

expense of class counsel’s putative clients. Judging by the

explosion in consumer class-action settlements featuring

cy pres awards within the Ninth Circuit, this has not gone

unnoticed among the plaintiffs’ bar.

OPINIONS BELOW

The Ninth Circuit’s decision is reported at 21 F.4th

1102, and is reproduced at App.1a. The district court’s decision approving the class-action settlement under Rule

23(e) is reported at 2020 U.S. Dist. LEXIS 47928, and is

reproduced at App.43a.

JURISDICTION

The judgment below was entered December 27, 2021.

The Ninth Circuit denied rehearing en banc on February

3, 2022. On March 18, 2022, Justice Kagan extended the

time for this petition to June 3, 2022. See No. 21A519. This

Court has jurisdiction under 28 U.S.C. §1254(1).

RULES INVOLVED

Rules 23(a)(4), (b)(3), and (e)(2) are reproduced at

App.154a.

STATEMENT OF THE CASE

Plaintiffs and attorneys general sue Google

over privacy violations, and Google settles.

In 2010, Google admitted that roving vehicles used to

create its Street View mapping service also collected 600

gigabytes of private information from unencrypted wireless networks (“Wi-Fi”) in thirty countries. Joffe v.

Google, Inc., 746 F.3d 920, 923 (9th Cir. 2013); Jessica E.

Vascellaro, Google Says It Mistakenly Collected Data on

Web Usage, WALL ST. J. (May 14, 2010). In response to

this press coverage, Plaintiffs brought several putative

class actions, consolidated under an MDL in the Northern

District of California. Plaintiffs claimed Google’s actions

violated various federal and state law rights and demanded billions of dollars in statutory and punitive damages and an injunction.

Google disputed that the named plaintiffs had standing,

and the parties engaged a special master to conduct discovery on the issue. The special master conducted complex technical searches on data collected by Google to determine whether Google acquired any plaintiff’s communications. App.46a. It took the special master three years

to conduct the inquiry, much of it organizing a database

of Google’s acquired “Payload Data” and deciding what

searches to conduct of the database on eighteen of the

named plaintiffs. Id. The special master issued a sealed

report in 2017. Id. The district court found standing based

on the allegations of the complaint without reference to

the sealed report. App.51a.

While the underlying litigation was pending, Google entered into an agreement in March 2013 with attorneys

general from 39 states—the “Assurance of Voluntary

Compliance”—over the same Google practices. Dkt. 186

at 77. The Assurance included a “Privacy Program” that

required Google, among other things, to (1) delete or destroy the “Payload Data” it had collected; (2) not collect

and store “Payload Data” for use in any product or service without notice and consent; (3) maintain a privacy

program as set forth in the Assurance; and (4) implement

a public-service and educational campaign.

In June 2018, Google and plaintiffs reached a settlement for a class comprised of “all persons who used a

wireless network device from which Acquired Payload

Data was obtained.” App.92a. “Acquired Payload Data”

was data that Google’s Street View vehicles acquired

from unencrypted wireless networks from January 1,

2007 through May 15, 2020. App.91a. The class size was

about 60 million members. App.52a & n.3.

Google would establish a $13 million fund, but none of

that money would go to class members. App.96a. Rather,

after attorneys’ fees and costs, incentive awards to named

plaintiffs, and administration costs, the remainder of the

fund would be divided among cy pres recipients who

would agree to use the funds to promote the protection of

Internet privacy. App.97a–98a. The Settlement did not

identify the cy pres recipients but merely required plaintiffs to recommend recipients to the district court for approval, working with “good faith regarding any concerns

Google might have.” Id. Google’s only other obligation

was to continue to comply with terms already in the Assurance of Voluntary Compliance and to maintain “educational webpages” repeating widely available public information on configuring secure encrypted wireless networks. App.8a, 98a–99a, 130a; Dkt. 189-1 at 8–11.

Class counsel requested $4 million in fees and expenses,

uncontested by Google. Dkt. 185 at 7, 26. The fee request

was based solely on a percentage of the $13 million settlement fund; class counsel made no claim that the injunction entitled them to fees. Dkt. 185 at 7, 13.

At preliminary approval, plaintiffs proposed eight cy

pres recipients: The Center on Privacy & Technology at

Georgetown Law, Center for Digital Democracy, Massachusetts Institute of Technology’s Internet Policy Research Initiative, World Privacy Forum, Public

Knowledge, Rose Foundation for Communities and the

Environment, American Civil Liberties Union Foundation, Inc. (“ACLU”), and Consumer Reports, Inc.

Dkt. 166 at 15.

The Electronic Privacy Information Center (“EPIC”),

which had filed amicus in support of petitioner in Frank

v. Gaos, also petitioned the district court for cy pres

money. Dkt. 169.

At least four of the nine cy pres recipients—Public

Knowledge, World Privacy Forum, ACLU, and EPIC—

previously received Google cy pres money. App.137a–

138a. Many recipients had received cy pres funds from

other class actions involving big tech firms. Id. Cy pres

recipient ACLU also had a pre-existing relationship with

class counsel firms as their co-counsel or client. App.136a.

Lowery objects.

Class member David Lowery, represented by the nonprofit Center for Class Action Fairness, timely objected

to the settlement approval, cy pres recipients, class certification, and fee request. App.111a. Lowery is a professional recording and performing artist and academic who,

among other things, founded the successful musical

groups Cracker and Camper Van Beethoven. He is a

“zealous advocate for artists, writers, musicians, and performers” and their intellectual property rights, and has

long complained about Google’s use of cy pres to fund organizations that support Google’s narrower views of copyright against his interests. Lowery self-identified with

specificity as a member of the class, and the parties submitted no evidence rebutting his declaration. Dkt. 188-1.

Lowery argued that cy pres was inappropriate at all:

the $13 million fund was sufficient to provide either a

claims process or a lottery distribution to class members

who self-identified, and thus the Settlement improperly

favored the third-party beneficiaries over the class members to whom class counsel owed a fiduciary obligation.

App.122a–130a. The undisputed evidence was that claims

rates were almost always less than one percent.

App.123a–124a. In particular, the settlement for a similarly large class of over 100 million members in Fraley v.

Facebook, Inc. could have a claims process after the district court rejected the possibility of a cy pres-only settlement, and could distribute $15 per class member because

so few class members made claims. Id. (citing 966 F.

Supp. 2d 939 (N.D. Cal. 2013)).

Lowery submitted evidence that numerous cases successfully distributed small sums to large classes with relatively low administrative costs, even though the settlement fund provided less than a dollar or two per class

member. Dkt. 188-2. A typical class-action settlement has

a claims rate less than 1%, but even assuming an unusually high claims rate of 2,000,000 out of 60,000,000, the $13

million fund would pay claiming class members about $4–

$5 each even after attorneys’ fees. If distribution was possible, Lowery argued, then the settlement violated Rules

23(a)(4) and (e)(2)(C)(ii) when plaintiffs prioritized third

parties over the class.

If, on the other hand, it really was not feasible to distribute any money to class members because of putative

difficulties in identifying class members, then Lowery objected that class certification was inappropriate because

the class was not ascertainable. App.145a–147a. Moreover, the class would not satisfy Rule 23(b)(3)’s requirement of superiority to other forms of adjudication: the release benefited only Google and the class was no better

off than if there was no litigation at all. App.142a–144a.

But Lowery argued that class members could self-identify as he did, and as several courts of appeals said was

possible. App.125a, 146a.

Lowery objected that without the affirmative consent

of the class members, the cy pres awards constituted compelled speech in contravention of the First Amendment.

App.131a–134a. Lowery argued that the violation was

particularly noxious because the cy pres recipients included advocacy groups promoting policy positions with

which Lowery disagreed. App.132a–134a; Dkt. 188-1.

Lowery also argued that the cy pres awards were improper because the pre-existing relationships between

the cy pres recipients and class counsel presented insurmountable conflicts of interest. App.136a–137a. And the

pre-existing relationship between the cy pres recipients

and Google undermined any purported value of the settlement relief as nothing prevented Google from offsetting future contributions that Google would have otherwise made to the cy pres recipients. App.137a–139a.

Finally, Lowery objected to the proposed Rule 23(h) request. App.147a–152a. The request was based on a percentage of the fund, but that presupposed that a $13 million fund earmarked to third parties with nothing to the

class was equal in value to $13 million paid to the class.

App.147a. Lowery argued that because the class received

no real marginal benefit over non-class members, any fee

award would be impermissibly disproportionate. Id.

Lowery and a group of state attorneys general argued

that the injunctive relief was illusory because it merely

duplicated preexisting obligations in the 2013 consent decree. App.130a; Dkt. 189-1. Lowery also noted that the injunctive relief, like the cy pres, applied equally to class

members and non-class members alike, and could not be

consideration for the release of monetary claims.

App.130a.

The district court rejects Lowery’s objections

and approves the settlement.

After satisfying itself that there was Article III standing under Gaos, App.45a–51a, the district court rejected

Lowery’s objection. First, the court held that Rules

23(a)(4) and (g)(4) were satisfied, finding that the cy pres

award indirectly benefits the class and therefore the attorneys’ fee award was not a windfall. App.53a–54a.

The district court found that the “modest” injunctive

relief was “adequate” though “not the main benefit to the

class” because of changes in the website, though it did not

address Lowery’s argument that the injunctive relief was

not targeted to class members. App.61a, 76a–78a. (The

district court noted that retroactive relief to the class was

impossible. App.77a.) The district court rejected Lowery’s Rule 23(b)(3) superiority argument based on Ninth

Circuit precedent. App.56a–58a.

The court rejected Lowery’s argument that it was feasible to distribute the $13 million settlement fund to class

members because while a claims process could yield $15

per class member, the court need “not calculate feasibility

based on whether some money can be paid to some small

fraction of the class, but whether it is feasible to distribute

the fund to the class as a whole.” App.70a–71a (citing

Google Referrer, 869 F.3d at 742). The court agreed with

the settling parties’ contention that a claims process was

infeasible because class members would be unable to selfidentify. App.71a–72a. The district court did not reconcile

this conclusion with its holding that there was standing

based on the allegations of the complaint, or its $500 incentive award to named plaintiffs who never subjected

themselves to discovery on their standing. App.51a, 65a.

The district court, following Ninth Circuit precedent, also

held that even if a claims process were practical, delivering relief to cy pres recipients was superior to delivering

relief to 1% of class members. App.72a–73a.

The court rejected Lowery’s class certification and

First Amendment arguments. App.57a–58a, 76a n.10.

The district court reallocated the shares of the cy pres

among the different recipients from what class counsel

proposed, and included EPIC as a recipient. App.79a–80a

& n.12. It held that Lowery’s arguments about conflicts

of interest did not implicate settlement fairness under circuit precedent, and did not apply the “significant prior affiliation” test Lowery requested. App.79a & n.11.

The court awarded $3.75 million in fees and costs, using

a percentage of the total settlement fund net of settlement administration costs, rejecting Lowery’s argument

for discounting the value of the fund. App.61a n.6, 64a–

65a, 85a–86a.

The Ninth Circuit affirms, endorsing Google

Referrer.

On Lowery’s appeal, the Ninth Circuit noted that

Frank v. Gaos granted review of Google Referrer, but did

not reach the cy pres question, and decided that Google

Referrer remained “persuasive authority.” App.15a. With

Google Referrer and other Ninth Circuit cy pres precedents in hand (App.10a–14a), it affirmed without mentioning the 2018 amendments creating Rule 23(e)(2)(C)(ii) or

Justice Thomas’s dissenting opinion in Gaos.

The court “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.” App.16a (citing Google Referrer and

Lane v. Facebook, Inc., 696 F.3d 811, 822 (9th Cir. 2012)).

The court reaffirmed Google Referrer’s holding that

there was no requirement to test whether it was possible

to distribute money to some of the class. App.17a–18a. It

accepted the parties’ representation that a claims process

was impossible without “verification” and that “self-identification would be pure speculation.” App.18a–20a. Class

certification was still acceptable despite this inability to

ascertain class members without an individualized “difficult and expensive” inquiry, and despite the lack of any

direct class benefit, because the “diffuse” cy pres “benefit

to society at large” permitted “meaningful relief.”

App.20a–23a.

The court found that the “modest injunctive relief,”

combined with the cy pres was a fair settlement of damages claims without addressing Lowery’s argument that

the relief applied equally to class members and non-class

members alike. App.23a–26a.

The court rejected Lowery’s First Amendment argument because of class members’ ability to opt out.

App.27a–28a. The requirement of “affirmative[] consent”

in Janus did not apply because funds “could not feasibly

be paid to class members.” App.27a–28a.

The court, relying on earlier Ninth Circuit precedent,

rejected Lowery’s argument that the significant prior affiliations precluded some beneficiaries from receiving cy

pres. App.28a–31a (citing Lane, 696 F.3d at 817–21).

Again following Google Referrer, the court rejected

Lowery’s argument for discounting the $13 million cy

pres settlement fund as of lesser value than a $13 million

fund disbursed to the class for purposes of calculating attorneys’ fees, while leaving open the possibility that some

future district court may exercise its discretion to do so.

App.31a–34a.

The court held that there was no fiduciary obligation for

class counsel to advise “absent class members of the superiority of opting out en masse.” App.34a–35a.

Judge Bade issues a concurring opinion to the

panel opinion she authored, calling for a

reconsideration of the cy pres doctrine.

Judge Bade issued a concurring opinion to the panel

opinion she authored. App.35a–42a. “Because I am constrained to follow [Ninth Circuit] precedents, I authored

and joined the majority opinion.” App.36a. But, quoting

Chief Justice Roberts’s statement in Marek v. Lane, 571

U.S. 1003 (2013), Judge Bade wrote “separately to express some general concerns about cy pres awards.”

App.36a.

Judge Bade noted that cy pres presented a practical solution for some class-action problems, but questioned

“whether we have allowed these practical advantages to

inappropriately displace other concerns implicated by cy

pres awards.” App.36a–38a (citing authorities). Contrary

to some courts’ suggestion that cy pres is an indirect benefit, there is

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.

App.40a; see App.39a–41a (citing authorities). In Rule

23(b)(3) class actions, cy pres settlements

arguably benefit opt-outs more than class members because opt-outs reap any positive externalities of the settlement provisions while retaining

the value of the claims that the settlement extinguished for class members.

App. 40a–41a & n.2. Judge Bade concluded,

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 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.

App. 41a–42a.

The Ninth Circuit denied Lowery’s petition for rehearing and rehearing en banc, with Judge Bade voting to

grant the petition for rehearing en banc. App.87a.

REASONS FOR GRANTING THE PETITION

As the Chief Justice recognized in Marek, 571 U.S. 1003

(2013), (Roberts, C.J., respecting denial of certiorari from

the Ninth Circuit’s decision in Lane), cy pres settlements

raise “fundamental concerns.” Accord App.37a–38a

(Bade, J., concurring) (compiling authorities). Thus, the

Court granted review of Google Referrer in Gaos. Here,

as in Gaos and Lane, the Ninth Circuit rejected that

courts have any heightened obligation to police conflicts

of interest involving cy pres awards. Here, as in Gaos, the

petition presents an ideal and timely opportunity for the

Court to resolve a deep circuit split over the use of cy pres

awards in class-action settlements and provide muchneeded guidance to the lower courts on a recurring issue

of substantial importance. The circuit split identified in

the Gaos petition has only deepened, and this case presents another circuit split on class-certification standards.

This petition should be granted for the same reasons

that the petition was granted in Gaos. This case presents

broad, significant, and recurring questions of law and policy that are not limited to any unique aspect of this particular case. Because of these features, and because classaction settlements are amenable to forum shopping, unless this Court intervenes, cy pres settlements will continue to find their way to the Ninth Circuit for approval

when other circuits would reject them. This case presents

an ideal vehicle for addressing cy pres. Unlike in Gaos,

the district court resolved Article III standing under the

correct standard. Lowery fully raised the Rule 23 and

First Amendment cy pres issues below and the urgency

of guidance from this Court is undiminished. As the author of the opinion below acknowledges in her concurrence, “it is time we reconsider the practice of cy pres

awards.” App.42a.

The circuits are in conflict.

The Ninth stands alone on cy pres.

In a series of four decisions, the Ninth Circuit has now

established an outlier rule that courts may deem settlement funds eligible for cy pres distribution whenever a

settlement fund cannot be spread among every member

of the class. First, in in Lane v. Facebook, Inc., 696 F.3d

811 (9th Cir. 2012), cert. denied sub nom, Marek v. Lane,

571 U.S. 1003 (2013), the Ninth Circuit affirmed approval

of a cy pres-only arrangement because it would result in

only “de minimis” payments if distributing the $9.5 million fund among 3.6 million class members. Lane, 696

F.3d at 821.

Then, in Google Referrer, the Ninth Circuit doubled

down on Lane, holding that cy pres awards are appropriate even if an objector raises possible feasible alternatives

that would direct money to some class members. In re

Google Referrer Header Privacy Litig., 869 F.3d 737, 742

(9th Cir. 2017), vacated and remanded on other grounds

sub. nom Frank v. Gaos, 141 S. Ct. 1697 (2018).

In a 2018 case, the Ninth Circuit held that even when it

is “technically feasible” to distribute funds to every class

member in a case in which every member of a nationwide

class was already getting a distribution, a court can decide that millions of dollars was “de minimis” and approve cy pres to local schools in a judge’s home district

establishing chairs in the defendant’s name. In re

EasySaver Rewards Litig., 906 F.3d 747, 761–62 (9th Cir.

2018). This Court denied certiorari after defendants obtained an automatic stay in bankruptcy. Perryman v.

Romero, No. 18-1074, 139 S. Ct. 2744 (2019).

Finally, the decision below reestablishes the rule of

Google Referrer. It again announces that the standard for

feasibility is not whether the funds can be distributed to

some portion of the class. App.17a–18a. Instead, the

Ninth Circuit looked to whether the gross fund ($13 million here) can be allocated among the entire class (60 million persons here) so that “proof of individual claims

would be burdensome or distribution of damages costly,”

even when there is evidence that a claims process of selfidentification would successfully feasibly distribute

claims to a percentage of the class. App.19a–20a (quoting

Lane, 696 F.3d at 819). In such cases, a cy pres award

need only bear “a direct and substantial nexus to the interests of absent class members.” App.22a (quoting Lane,

696 F.3d at 821).

Though the panel thought (App.17a) Lowery cited “no

authority” for a more stringent view of feasibility, he did.

Other circuits categorically reject the Ninth Circuit’s

test. In Pearson v. NBTY, Inc., for example, the settlement allocated $2 million for awards to the 12 million class

members, with $1.3 million in unclaimed funds going to a

nonprofit as a cy pres award. 772 F.3d 778, 780 (7th Cir.

2014). The Seventh Circuit held that the cy pres residual

was impermissible because the funds could have “feasibly

be[en] awarded to the intended beneficiaries” (the class

members), by providing broader notice, simplifying the

claims process, or simply mailing checks to people known

to have purchased the product at issue from the defendant. Id. at 784. Pearson rejected the premise that the

Ninth Circuit relied on here: class members need not

prove their entitlement to small-dollar claims with “elaborate documentation”; instead, excessive demands for

proof were evidence of an unfair claims process. Id. at 783.

The Eighth Circuit took the same approach in In re

BankAmerica Corp. Securities Litigation to invalidate a

cy pres distribution of the $2.5 million remaining in the

settlement fund where the class members had already

made some claims. 775 F.3d 1060, 1062 (8th Cir. 2015). As

the court explained, the “inquiry must be based primarily

on whether the amounts involved are too small to make

individual distributions economically viable.” Id. at 1064

(emphasis the court’s; quotation omitted). As in Pearson,

but contrary to the Ninth Circuit, there was no requirement that the residual be able to be distributed to every

single class member; so long as it was feasible to distribute to some class members, settlements must do that.

The Fifth Circuit’s decision in Klier v. Elf Atochem

North America, Inc., likewise conflicts with the decision

below. 658 F.3d 468, 475 (5th Cir. 2011). There, the court

rejected a cy pres award of unclaimed funds from a classaction settlement, holding that such awards are impermissible if it is “logistically feasible and economically viable to make additional pro rata distributions to class

members.” Under this test, a cy pres award may be made

“only if it is not possible to put those funds to their very

best use: benefitting the class members directly.” Id. As

the court stressed, “[t]he settlement-fund proceeds, having been generated by the value of the class members’

claims, belong solely to the class members” and “[c]y pres

comes on stage only to rescue the objectives of the settlement when the agreement fails to do so.” Id. at 475–76.

The Third Circuit has also rejected the Ninth Circuit’s

permissive approach to cy pres awards in Rule 23(b)(3)

settlements of damages claims. In In re Baby Products

Antitrust Litigation, the court vacated district court approval of a class-action settlement that, because of a low

claims rate, would have distributed the bulk of the settlement fund to cy pres recipients. 708 F.3d 163 (3d Cir.

2013). “Cy pres distributions,” the court stressed, “are inferior to direct distributions to the class because they only

imperfectly serve the purpose of the underlying causes of

action-to compensate class members.” Id. at 169. “Barring sufficient justification,” the court held, “cy pres

awards should generally represent a small percentage of

total settlement funds.” Id. By contrast, the Ninth Circuit’s Lane jurisprudence broadly sanctions “cy pres-only

settlements.” App.14a–15a; Google Referrer, 869 F.3d at

741.1

The Ninth Circuit also opens a new fissure in class-action settlement law by rejecting the Third Circuit’s standard forbidding cy pres remedies if there is “a significant

prior affiliation with any party, counsel, or the court.”

In dicta, the Third Circuit has since suggested a cy-pres only

settlement can be acceptable for a class certified under Rule 23(b)(2),

because in that scenario the settlement funds “‘belong’ to the class as

a whole, and not to individual class members as monetary compensation.” In re Google Inc. Cookie Placement Consumer Priv. Litig., 934

F.3d 316, 328 (3d Cir. 2019). Here, of course, we deal with a (b)(3)

class.

Compare In re Google Inc. Cookie Placement Consumer

Priv. Litig., 934 F.3d 316, 331 (3d Cir. 2019) with

App.28a–30a (rejecting “significant prior affiliation” test

citing egregious conflicts in Lane). In Google Cookie, as

in Gaos and here, the cy pres beneficiaries were intertwined with Google and class counsel’s interests. 934 F.3d

at 330. Evidencing this new, additional circuit split, the

Third Circuit by contrast would not permit approval of a

cy pres remedy without investigation of “the nature of the

relationships between the cy pres recipients and Google

or class counsel.” Id. This is exactly what the Ninth Circuit signed off on here. App. 28a–30a.

In short, every circuit other than the Ninth requires

some inquiry about whether cy pres is distributable to

some class members, and the Third Circuit also requires

scrutiny of potential conflicts of interest in the selection

of cy pres beneficiaries, while the Ninth requires none.

Courts split on ascertainability and on

certification where no relief is available to the

class.

The Ninth Circuit’s class certification decision is unique

and exacerbates a separate circuit split. The Third Circuit

holds that “If class members are impossible to identify

without extensive and individualized fact-finding or ‘minitrials,’ then a class action is inappropriate.” Marcus v.

BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir.

2012); accord Carrera v. Bayer Corp., 727 F.3d 300 (3d

Cir. 2013). But here, the Ninth Circuit made exactly the

finding that individualized “difficult and expensive” inquiries were required to determine class membership

that the Third Circuit forbids.

The Seventh Circuit takes an intermediate position on

ascertainbility, holding that, while a class of plaintiffs cannot be “so difficult to identify that it is not adequately defined or nearly ascertainable,” it is permissible to certify

a class where individual class members self-identify. Mullins v. Direct Digital, LLC, 795 F.3d 654, 659, 669 (7th

Cir. 2015) (quoting Adashunas v. Negley, 626 F.2d 600,

604 (7th Cir. 1980)). But class certification is unavailable

under Rule 23(a) if no new relief is available to the class.

In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748, 751–52

(7th Cir. 2013) (Easterbrook, J.). Accord Gaos, 139 S. Ct.

at 1047–48 (Thomas, J., dissenting) (class certification inappropriate in a cy pres-only settlement).

The Eleventh Circuit takes a similar intermediate approach: “a proposed class is ascertainable if it is adequately defined such that its membership is capable of determination”; if it is administratively infeasible to identify

class members, the class may flunk Rule 23(b)(3)(D).

Cherry v. Dometic Corp., 986 F.3d 1296, 1304 (11th Cir.

2021); see generally id. at 1301–05 (discussing positions of

the various circuits, and rejecting Carrera). But only the

Ninth Circuit has held that an administratively unmanageable class where no relief to the class is possible may

still be certified because of the availability of cy pres.

This case presents an opportunity for the Court to resolve this long-running circuit split on certification while

addressing cy pres.

II.

The questions presented are important and

recurring, and will only grow as parties forumshop settlements to the Ninth Circuit.

As in Gaos, the Rule 23 questions presented here are

important and recurring. As in Gaos, all the concerns

identified by the Chief Justice in Marek are present:

“when, if ever, such relief should be considered; how to

assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how

existing entities should be selected; what the respective

roles of the judge and parties are in shaping a cy pres

remedy; how closely the goals of any enlisted organization

must correspond to the interests of the class.” Marek, 571

U.S. at 1006. All of these concerns point to the same conclusion: courts should sharply curtail if not flatly prohibit

application of the cy pres doctrine to class-action settlements. Although most circuits to consider the issue have

reached this conclusion without direction from this Court,

this precedent will have a limited impact, as most federal

consumer class actions are nationwide in scope and can be

forum-shopped to exploit the Ninth Circuit’s permissive

approach.

Application of cy pres to class-action

settlements is a poor fit for the doctrine.

The use of cy pres awards as part of a class-action settlement is, in itself, a base contortion of the original purpose of the cy pres doctrine as historically applied in equity. As explained by the Seventh Circuit, “[c]y pres

(properly cy près comme possible, an Anglo–French term

meaning ‘as near as possible’) is the name of the doctrine

that permits a benefit to be given other than to the intended beneficiary or for the intended purpose because

changed circumstances make it impossible to carry out

the benefactor’s intent.” Pearson, 772 F.3d at 784. The

doctrine originated in the area of charitable trusts and allowed, for example, the March of Dimes to shift to addressing birth defects once vaccines conquered polio. Id.

The use of cy pres to divert money to third parties has

become common in class-action settlements. A 2017 article noted the use of cy pres in settlements were at their

highest levels ever in 2015 and 2016, the most recent

years covered in a study. Natalie Rodriguez, Era of Mammoth Cases Test Remedy of Last Resort, LAW360 (May 2,

2017). See also Marek, 571 U.S. at 1006 (Roberts, C. J.,

concurring in the denial of certiorari) (noting that “[c]y

pres remedies, however, are a growing feature of classaction settlements”). But cy pres is a poor fit for class actions when courts permit settlements to be gamed to divert material amounts of money away from the class.

There are no “changed circumstances” in these class-action settlements. There is no original “benefactor” whose

wishes must accommodated “as near as possible,” once

the true beneficiary purpose ceased to exist. Even more

fundamentally, there is no “charitable” objective in a

Rule 23 class action. In re Pet Food Prods. Liab. Litig.,

629 F.3d 333, 363 (3d Cir. 2010) (Weis, J.) (concurring and

dissenting in part). A class action is a procedural device

to aggregate private claims for compensation to class

members—not to create a charitable trust. Cf. Shady

Grove Orthopedic Assocs., P.A., v. Allstate Ins. Co., 559

U.S. 393, 408 (2010). In short, application of cy pres to

Rule 23 class settlements unquestionably extends the

doctrine far beyond its original roots and rationale into an

area where the doctrine’s premises are not only utterly

absent but contrary to the purposes of Rule 23. The doctrine cannot be stretched to encompass Rule 23 class-action settlements. This Court should so hold. Keepseagle v.

Perdue, 856 F.3d 1039, 1059 (D.C. Cir. 2017) (Brown, J.,

dissenting) (“Cy pres took the judiciary to the utmost

verge of the law even before it was applied to class actions” (cleaned up)); cf. also Ira Holtzman, CPA & Assoc.

Ltd. v. Turza, 728 F.3d 682, 689–90 (7th Cir. 2013)

(Easterbrook, J.).

The Ninth Circuit rejected any requirement to consider

alternatives to cy pres and also justified its ruling with a

demand for a “verification” mini-trial to prove the legitimacy of a claim that no other circuit requires. This position ignores Rule 23(e)(2)(C)(ii)’s requirement that district courts consider “the effectiveness of any proposed

method of distributing relief to the class, including the

method of processing class-member claims.” If courts

permit settling parties to dispense with class claims entirely, it erases Rule 23(e)(2)(C)(ii) from the books by

making it automatic to clear the bar.

Furthermore, the Ninth Circuit’s desire for cy pres has

resulted in the tail wagging the dog: it certifies classes

that other circuits would reject because the parties could

resolve the resulting class action with cy pres. App.22a;

Briseno v. Conagra Foods, Inc., 844 F.3d 1121, 1129 (9th

Cir. 2017). But there is a reason no class complaint includes a request for cy pres in its prayer for relief; cy pres

is not a cognizable form of class relief. Gaos, 139 S. Ct. at

1047 (Thomas, J., dissenting).

Contrary to the Ninth Circuit’s position permitting the

parties to bypass a claims process with self-identification,

a defendant has no “due process right to a cost-effective

procedure for challenging every individual claim to class

membership.” Mullins, 795 F.3d at 669. The Ninth Circuit’s standard would permit nearly every consumer

class-action settlement to be diverted to cy pres, because

such settlements usually rely on self-identification because few customers maintain their receipts for low-value

consumer good. Cf. id. at 666 n.3 (noting problem of courts

requiring unrealistic proof for a class-action claim).

Cy pres creates improper incentives for class

counsel.

While both class counsel and a defendant have an incentive to bargain fairly over the size of a settlement, they

critically lack similar incentives to decide how to divvy it

up—including the portion allocated to counsel’s own fees.

The defendant cares only about the bottom line, and will

take any deal that drives it down. Meanwhile, class attorneys have an obvious incentive to seek the largest possible portion for themselves, and too often accept bargains

that are worse for the class if their share is sufficiently

increased. “From the selfish standpoint of class counsel

and the defendant, … the optimal settlement is one modest in overall amount but heavily tilted toward attorneys’

fees.” Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir.

2014).

While a defendant and a class counsel might happily

agree to a settlement when the defendant simply writes a

check to class counsel in exchange for the release of the

class’s claims, one rarely sees something so blatant outside of John Grisham novels. The problem, however, is

that class counsel have various tools for obscuring some

of the allocative decisions that get made between counsel

and class recovery, and can subtly trade benefits to defendants for bigger fees. These tools mainly function by

inflating the settlement’s apparent relief, which will in

turn justify outsized fee requests absent rigorous doctrinal tests designed to weed them out, accomplishing a result that is effectively economically equivalent to more obviously abusive settlements.

Cy pres is one means of creating the illusion of relief.

When courts award attorneys’ fees based on the size of

the cy pres fund rather than on the amount the class directly received, cy pres will “increase the likelihood and

absolute amount of attorneys’ fees awarded without directly, or even indirectly, benefitting the plaintiff.” 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, 661 (2010) (“Redish”). As

a result, class attorneys are financially indifferent over

whether a settlement is structured to compensate their

clients or to funnel settlement proceeds to third parties.

Because cy pres can facilitate an early settlement with a

profitable fee award and less resistance from defendants,

class attorneys are rewarded for selling their putative clients down the river. Kidd at 609–11.

Cy pres is also enticing to lawyers interested in promoting their own personal political or charitable preferences.

And it is not uncommon to see publicity photographs of

attorneys handing oversized checks to their selected cy

pres recipients or to see recipients issue public statements of gratitude to the class attorneys. E.g., Chris J.

Chasin, Modernizing Class Action Cy Pres Through

Democratic Inputs, 163 U. PENN. L. REV. 1463, 1484 &

n.114 (2015).

“By disincentivizing class attorneys from vigorously

pursuing individualized compensation for absent class

members, cy pres threatens the due process rights of

those class members.” Redish at 650. Class attorneys are

tempted to shirk their constitutional duties to adequately

defend class members’ legal rights because their compensation is no longer tied to that advocacy. Id. When courts

treat a dollar of cy pres as equivalent to a dollar of direct

class recovery, class attorneys’ all-too-human predilection will prefer to fund their favorite charities or causes

over thousands or millions of anonymous and likely ungrateful class members.

Cy pres creates the appearance of impropriety

for district court judges.

The Ninth Circuit has affirmed cy pres awards from a

nationwide class to three local San Diego schools, creating

the appearance of conflicts of interest for the district

court judge who lives in that community. EasySaver, 906

F.3d at 761–62; cf. also Kidd at 613–14 (case of cy pres to

charity where judge’s spouse sat on board). This is wrong.

The district court here acted as a grant officer, approving

the application of a nonprofit left out of the settlement to

join the beneficiary list and reallocating the distribution.

App.79a–80a. “Federal judges are not generally equipped

to be charitable foundations.” In re Compact Disc Minimum Advertised Price Antitrust Litig., 236 F.R.D. 48, 53

(D. Me. 2006). Fundamentally, trial courts “endorse[] judicially impermissible misappropriation” when they conclude that class members are less deserving than a charity. BankAmerica Corp., 775 F.3d at 1065.

Cy pres tempts judges to play benefactor with someone

else’s money. Adam Liptak, Doling Out Other People’s

Money, N.Y. TIMES (Nov. 26, 2007). In another Google cy

pres settlement, a district court sua sponte redirected

proposed cy pres to a local university where the judge

taught as a visiting law professor. In re Google Buzz Privacy Litig., 2011 WL 7460099, at *3 (N.D. Cal. Jun. 2,

2011); Pamela A. MacLean, Competing for Leftovers,

CALIFORNIA LAWYER (Sep. 2, 2011). “District courts

should avoid the legal complications that assuredly arise

when judges award surplus settlement funds to charities

and civic organizations.” Klier, 658 F.3d at 482 (Jones,

C.J., concurring) (cleaned up); accord SEC v. Bear,

Stearns & Co., 626 F. Supp. 2d 402, 415–16 (S.D.N.Y.

2009).

Cy pres raises First Amendment concerns that

the Ninth Circuit improperly minimized.

Cy pres awards, sanctioned and enforced by the district

courts, also infringe on the First Amendment rights of

class members by requiring them to subsidize political organizations or charities, chosen by the district court, class

counsel, and defendants, but which individual class members may not support or approve. Such forced payments

require the “affirmative[] consent” of the class member

and that consent may not be implied or “presumed.” See

Janus, 138 S. Ct. at 2486 (2018).

Governmental power (in the form of a district court order binding class members) may not sanction the redirection of property (a monetary recovery belonging to class

members) to third parties to engage in expressive activity

without the affirmative consent of the persons to whom

those funds belong. As Harris v. Quinn stated, “‘[t]he

government may not prohibit the dissemination of ideas

that it disfavors, nor compel the endorsement of ideas

that it approves.’” 573 U.S. 616, 647 (2014) (quoting Knox

v. SEIU, 567 U.S. 298, 309 (2012)) (emphasis added).

Knox established that “compelled funding of the speech

of other private speakers or groups” is unconstitutional in

all but the most limited of circumstances, none of which

are present in a cy pres context. 567 U.S. at 309–11.

Class counsel did not obtain the “affirmative consent”

of each class member for these cy pres awards. Class

members received only notice and the opportunity to opt

out of the class. App.27a. Under Janus, an “opt out” opportunity is not “affirmative consent” and is thus insufficient: waiver of First Amendment rights “cannot be presumed.” 138 S. Ct. at 2486. In short, whatever doubt remained after Knox and Harris, cy pres cannot survive Janus’s holding that “affirmative consent” is required.

But the Ninth Circuit read the affirmative-consent requirement out of this Court’s precedent, restricting it to

the facts of Janus. App.27a–28a. Here, a class action

brought for the benefit of petitioner Lowery will fund organizations that work against his interests. Even beyond

the First Amendment implications, the selection of politicized beneficiaries implicates the fairness of cy pres settlements; if nothing else, canons of constitutional avoidance militate for interpreting Rule 23 in a way to limit cy

pres.

Class members benefit when courts restrict cy

pres abuse.

When courts limit the ability of class counsel to profit

from cy pres, class counsel will respond to this incentive

to “maximize the settlement benefits actually received by

the class.” Pearson, 772 F.3d at 781. That is more than

abstract theory: experience bears it out:

• While Baby Products left open the possibility of approving cy pres, it reversed a settlement approval

and ordered the district court to consider whether

class counsel had adequately prioritized direct recovery in both terms of settlement approval and the

fee award. 708 F.3d at 178. On remand, the parties

arranged for direct distribution of settlement proceeds, and paid another $14.45 million to over one

million class members—money the parties at first

directed to cy pres—leading to an “exponential increase” in class recovery. McDonough v. Toys “R”

Us, Inc., 80 F. Supp. 3d 626, 660 (E.D. Pa. 2015).

• After objection to a claims-made settlement in a

consumer class action over aspirin labeling where

nearly all funds would have gone to cy pres, the parties used subpoenaed third-party retailer data to

identify over a million class members (instead of the

18,938 who would have received $5 each in the original claims-made structure), and paid another $5.84

million to the class. Order 4, In re Bayer Corp.

Litig., No. 09-md-2023, Dkt. 254 (E.D.N.Y. Nov. 8,

2013); id. Dkt. 218-1.

• A similar successful objection to residual cy pres in

an antitrust settlement increased class recovery

from $2.2 million to $13.7 million. Pecover v. Electronic Arts, Inc., No. 08-cv-2820, 2013 WL 12121865

(N.D. Cal. May 30, 2013); id. Dkt. 466.

• After this Court decided Gaos, Google broke its

streak of four consecutive cy pres-only privacy class

settlements with a direct electronic distribution of

funds and a claims process for a class of tens of millions of members, though only $7.5 million was in

the settlement fund. In re Google Plus Profile

Litig., No. 5:18-cv-06164-EJD, 2021 WL 242887

(N.D. Cal. Jan. 25, 2021).

• On remand in Pearson, the parties renegotiated to

give class members at least $4 million more in cash.

Settlement ¶¶7–8, No. 11-cv-07972, Dkt. 213-1 (N.D.

Ill. May 14, 2015).

In short, as Pearson reasoned, if courts make lawyers

direct money to clients to get paid, that is exactly what

happens. Alison Frankel, By Restricting Charity Deals,

Appeals Courts Improve Class Actions, REUTERS

(Jan. 12, 2015).

Critical certification decisions now turn on

venue.

This Court has repeatedly recognized the game-changing significance of certification decisions. “Certification

… may so increase the defendant’s potential damages liability and litigation costs that he may find it economically

prudent to settle and to abandon a meritorious defense.”

Coopers & Lybrand v. Livesay, 437 U.S. 463, 476 (1978).

Certification magnifies the effect of “risk of error” on the

merits: “Faced with even a small chance of a devastating

loss, defendants will be pressured into settling questionable claims.” AT&T Mobility LLC v. Concepcion, 563

U.S. 333, 350 (2011).

Improper certification also jeopardizes the rights of absent class members. Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 620-21 (1997). Yet the opinion below greenlights classes composed of “legions so unselfconscious and

amorphous.” Id. at 628.

Circuit courts recognize that their divergence affects

many certification decisions. Mullins explained, for example, that other courts’ “heightened” ascertainability

requirement “has defeated certification, especially in consumer class actions.” 795 F.3d at 657. Indistinguishable

cases can lead to wildly differing results. This petition

presents an opportunity to resolve this split.

The circuit split encourages forum shopping.

The problem of the circuit split is especially acute because large class-action settlements—being both nationwide and non-adversarial—can be easily forum shopped.

Class-action settlements often feature a new complaint alleging a larger class to facilitate global settlement; little

stops settling parties from relocating such a complaint in

a more favorable jurisdiction for the breezier review. Cf.

Adams v. USAA Casualty Ins. Co., 863 F.3d 1069 (8th

Cir. 2017) (reversing district court’s sanctions of counsel

for abuse of process for dismissing federal action “for the

improper purpose of seeking a more favorable forum and

avoiding an adverse decision”).

The problem is exacerbated even more by the Ninth

Circuit’s holding that a court may disregard

Rule 23(e)(2)(C)(ii) whenever the settlement fund divided

by the total number of class members is “de minimis.” In

EasySaver, the court held a payment of about $3 to every

single class member was “de minimis”—even though it

would have been costless to augment the class benefit automatically being sent to every class member. 906 F.3d at

761. That definition of “de minimis” would permit almost

every consumer class-action settlement to completely ignore payments to class members. Nearly all consumer

and privacy class-action settlements are for less than a

dollar or two per class member. The settlement of a 2015

data breach of insurer Anthem was for a record $115 million—but after attorneys’ fees and settlement administration costs, there would be only about $0.65 per class member for the 79-million member class. Editorial Board, The

Anthem Class-Action Con, WALL ST. J. (Feb. 11, 2018).

The Ninth Circuit’s test would have permitted the parties

to divert all of that money to cy pres with no penalty to

class counsel’s fee.

Such large diversions are more than hypothetical. Just

last month, the same district court that approved the settlement here signed an order permitting class counsel to

divert $76.1 million of a Volkswagen-owner class’s settlement fund to cy pres with no penalty to their previously

awarded fee. The Ninth Circuit’s permissive approach

meant that there was no effort to provide direct distribution to the vast majority of class members (who received

direct notice but failed to jump through the hoops of making a claim); no new notice to the class of the 55 newly

identified cy pres recipients; no disclosure of potential

conflicts of interest; no press coverage; and thus no objections before the court’s rubber stamp. In re Volkswagen

“Clean Diesel” Litig., No. 3:15-md-02672-CRB, Dkt. 7961

(N.D. Cal. May 16, 2022). Another post-Google Referrer

settlement paid $142 million to cy pres and $5 million to

the class; the attorneys received $50 million. Krueger v.

Wyeth, Inc., 2020 U.S. Dist. LEXIS 211235, 2020 WL

6688838 (S.D. Cal. Nov. 12, 2020). Still other recent decisions in the Ninth Circuit have too readily accepted contentions that cy pres is appropriate because distributing

$28/class member is too “burdensome and inefficient” or

because $9.71 checks are “de minimis.” See respectively

Beaver v. Tarsadia Hotels, 2020 WL 1139662, 2020 U.S.

Dist. LEXIS 40415, at *7 (S.D. Cal. Mar. 9, 2020), and

Knell v. FIA Card Servs, N.A., No. 12-cv-00426, 2020 U.S.

Dist. LEXIS 217452, at *4 (S.D. Cal. Nov. 19, 2020); see

also Norcia v. Samsung Telcoms. Am., LLC, 2021 WL

3053018, 2021 U.S. Dist. LEXIS 135256, *6 (N.D. Cal. Jul.

20, 2021) ($74,680 to class; over $2 million cy pres to

Berkeley law school clinic).

By “put[ting] out the welcome mat” for cy pres settlements, the Ninth Circuit has “led to increased forum

shopping.” Kidd at 600, 604. As a result, nearly half of federal decisions involving cy pres originate in the Ninth Circuit. Id. at 603 & n.173.

Meanwhile, courts in other parts of the country have

suggested “uncertainty about the legitimacy of cy pres

distributions in class action settlements” in the wake of

Gaos. Ward v. Flagship Credit Acceptance LLC, No. 17cv-2069, 2020 U.S. Dist. LEXIS 25612, at *66 n.31 (E.D.

Pa. Feb. 13, 2020); see also Poblano v. Russell Cellular

Inc., 543 F. Supp. 3d 1293, 1296 (M.D. Fla. 2021). Simply

put, without a resolution in Gaos “[t]he U.S. class action

system has yet to fully come to grips with the misuse of

cy pres.” Smith at 339. And, in the Ninth Circuit at least,

the doctrine has unfortunately “run wild.” Id.

If the circuit split remains, class counsel will be encouraged to breach their fiduciary duties to class members

and forum-shop settlements to the Ninth Circuit for

higher attorneys’ fees and the opportunity to divert millions of dollars of their clients’ recovery to their favorite

charities.

~~~

Judge Bade, the author of the opinion here, is correct

in her concurrence. Cy pres presents “serious ethical, procedural, and constitutional problems”; “it is time we reconsider the practice of cy pres awards.” App.41a–42a.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Theodore H. Frank

Counsel of Record

Anna St. John

Adam E. Schulman

HAMILTON LINCOLN

LAW INSTITUTE

CENTER FOR

CLASS ACTION FAIRNESS

1629 K Street N.W., Suite 300

Washington, D.C. 20006

(703) 203-3848

ted.frank@hlli.org

Counsel for Petitioner

June 3, 2022

APPENDIX

App. i

TABLE OF APPENDICES

Appendix A

Opinion, In re Google Inc. Street View Electronics Communications Litigation, No. 20-15616

(9th Cir. Dec. 27, 2021) ....................................... App. 1a

Appendix B

Order Granting Final Approval of Class Action Settlement, Granting Attorneys’ Fees, and Entering Final

Judgment, In re Google LLC Street View Electronics

Communications Litigation, No. 3:10-MD-02184-CRB

(N.D. Cal Mar. 18, 2020) ................................. App. 43a

Appendix C

Order Granting Plaintiffs’ Motion for Leave to Pay Settlement Administration Expenses, In re Google LLC Street

View Electronics Communications Litigation, No. 3:10MD-02184-CRB (N.D. Cal. Mar. 27, 2020) .... App. 85a

Appendix D

Order Denying Rehearing, In re Google Inc. Street View

Electronics Communications Litigation, No. 20-15616

(9th Cir. Feb. 3, 2022) ....................................... App. 87a

Appendix E

Settlement Agreement, In re Google LLC Street View

Electronics Communications Litigation, No. 3:10-MD02184-CRB (N.D. Cal. Jul. 19, 2019) .............. App. 88a

Appendix F

Objection of David Lowery, In re Google LLC Street

View Electronics Communications Litigation, No. 3:10MD-02184-CRB (N.D. Cal. Jan. 20, 2020) .... App. 111a

App. ii

Appendix G

Excerpts of Fed. R. Civ. P. 23....................... App. 154a

App. 1a

Appendix A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE GOOGLE INC. STREET

VIEW ELECTRONIC

COMMUNICATIONS

LITIGATION,

BENJAMIN JOFFE; LILLA

MARIGZA; RICK BENITTI;

BERTHA DAVIS; JASON

TAYLOR; ERIC MYHRE; JOHN

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,

GOOGLE, INC.,

Defendant-Appellee.

No. 20-15616

D.C. No.

3:10-md-02184CRB

OPINION

App. 2a

Appeal from the United States District Court for the

Northern District of California

Charles R. Breyer, District Judge, Presiding

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

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

App. 3a

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 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

App. 4a

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

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

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.

App. 5a

WiFi 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 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 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.”

App. 6a

the complaint, and the district court dismissed the state

law claims on preemption 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.

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

App. 7a

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 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;

App. 8a



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 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

App. 9a

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.

“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 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.”

App. 10a

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 nondistributable 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).

App. 11a

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

App. 12a

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

App. 13a

class members, including their geographic diversity,” id.

at 1036. We explained:

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).

App. 14a

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,

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).

App. 15a

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 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).

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

App. 16a

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 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.

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,

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.

App. 17a

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 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 presonly 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).

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

App. 18a

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 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)

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).

App. 19a

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, 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,

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.

App. 20a

“[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 its discretion by approving the

use of cy pres payments in the settlement. Lane, 696 F.3d

at 819.

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.

App. 21a

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 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 standalone 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”

App. 22a

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, 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,

App. 23a

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.

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.

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

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.

App. 24a

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 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 Face-

App. 25a

book 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 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

App. 26a

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).

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

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

App. 27a

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 involves funds that, regardless of the cy pres provisions, could not feasibly be paid to class members. See id.

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.

App. 28a

(“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.

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 defendant, let alone other defendants in unrelated

App. 29a

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 means only that a

App. 30a

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

App. 31a

interests of the class because the settlement agreement

told 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.

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

App. 32a

(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 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,

App. 33a

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. 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

App. 34a

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. 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.

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

App. 35a

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 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.

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.

App. 36a

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 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).

App. 37a

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 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

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)

App. 38a

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); 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,

(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.”).

App. 39a

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 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

App. 40a

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-classmembers 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 retaining the value of the claims that the

settlement extinguished for class members.2

In cases where a class settlement provides injunctive and cy

pres relief, but no damages for class members, the concern that nonclassmembers 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

App. 41a

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 ethical, procedural, and constitutional problems that others have identified. Therefore, I respectfully

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-reliefonly class settlement that did not release class members’ damages

claims).

App. 42a

submit that it is time we reconsider the practice of cy pres

awards.

App. 43a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA

IN RE GOOGLE LLC

STREET VIEW

ELECTRONIC

COMMUNICATIONS

LITIGATION

Case No. 10-md-02184-CRB

ORDER GRANTING

FINAL APPROVAL OF

CLASS ACTION

SETTLEMENT,

GRANTING ATTORNEYS’

FEES, AND ENTERING

FINAL JUDGMENT

The Court must now assess the settlement of a case

in which a vast but nonetheless difficult-to-identify class

of people suffered intangible injury, and minimal damages. Specifically, this suit arises under the Electronic

Communications Privacy Act of 1986 (“ECPA”), see

Transfer Order (dkt. 1), and Plaintiffs allege that between

2007 and 2010, Google used its Street View vehicles to intentionally intercept and store electronic communications

transmitted by class members over unencrypted wireless

internet connections, see CAC (dkt. 54) ¶¶ 1–4. After almost a decade of litigation, the parties reached a settlement. See generally Agreement (dkt. 166-1) Ex. A. The

settlement provides for injunctive relief and a $13 million

Settlement Fund, which (after deducting attorneys’ fees

and expenses, service awards for the named plaintiffs, and

App. 44a

notice and settlement expenses) the parties have agreed

will be used to fund Court-approved cy pres awards to organizations that address consumer privacy issues. Mot.

(dkt. 184) at 3–4. The Court preliminarily approved the

settlement in October 2019. See Order on Prelim. Approval (dkt. 178).

Class Counsel now moves for final approval of the

settlement. See generally Mot. The Court held a motion

hearing on Friday, February 28, 2020. See Motion Hearing (dkt. 204). The Court has considered the record, the

Settlement Agreement, and the briefing on this motion,

including the objections and comments it received, and the

arguments at the hearing. In adjudicating this motion, the

Court bears in mind its responsibility to absent class members. Particularly when a settlement takes place before

formal class certification, the Court must “scrutinize the

proceedings to discern whether” Class Counsel and the

named plaintiffs “have sacrificed the interests of absent

class members for their own benefit.” See In re Google

Referrer Header Privacy Litigation, 869 F.3d 737, 741

(9th Cir. 2017), vacated on other grounds by Frank v.

Gaos, 139 S. Ct. 1041 (2019);1 Lane v. Facebook, Inc., 696

F.3d 811, 819 (9th Cir. 2012). But the Court is also mindful

that its job is not to create policy about the cy pres doctrine generally, or even to fashion the settlement agreement that it might most prefer in this case. Rather, it is to

decide, given the circumstances of this case, whether the

Because Google Referrer is a recent Ninth Circuit case containing an extensive discussion of cy pres-only settlement agreements,

the Court finds it instructive as to the Ninth Circuit’s view of such

settlements; the Court recognizes, nevertheless, that the case has

been vacated.

App. 45a

settlement the parties have reached is “‘fair, adequate,

and free from collusion.’” See Lane, 696 F.3d at 819 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.

1998), overruled on other grounds by Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338 (2011)).

IT IS THEREFORE HEREBY ORDERED,

ADJUDGED, AND DECREED as follows:

DEFINED TERMS

Unless otherwise defined herein, all terms that are

capitalized herein shall have the meanings ascribed to

those terms in the Settlement Agreement.

II.

JURISDICTION

This Court has jurisdiction over the subject matter

of this Action, all parties to the Action, and all Class Members.

III.

STANDING

Courts considering class action settlements must

“assure [them]selves of litigants’ standing under Article

III.” Gaos, 139 S. Ct. at 1046 (quoting DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 340 (2006)). Moreover,

“named plaintiffs who represent a class ‘must allege and

show that they personally have been injured.’” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 (quoting Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20

(1976)). The Class Representatives’ standing here was not

a foregone conclusion.

App. 46a

Plaintiffs allege that Google willfully intercepted

and stored their private electronic communications in violation of Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, as amended by the ECPA, 18 U.S.C.

§§ 2510, et seq. (together “the Wiretap Act”). See CAC

(dkt. 54). Plaintiffs further alleged that Google’s Street

View vehicles “surreptitiously collected, decoded, and

stored data from [their] WiFi connection, including payload data,” and that they “did not know that Google collected [t]his data, nor did [they] give permission for

Google to do so.” Id. ¶¶ 18–38.

Given these allegations, the parties engaged a Special Master to conduct intensive discovery on the issue of

standing. See Case Management Conference – Further

(dkt. 108). The Special Master conducted complex technical searches on data collected by Google “to determine

whether any Plaintiff’s communications were acquired by

Google.” Order Regarding Jurisdictional Discovery (dkt.

121-1) at 2. The Special Master was provided with three

billion frames of wireless raw data, of which about 300 million contained “Payload Data”—the kind of frames that

could contain communications. See Joint Decl. (dkt. 186) ¶

19. It took a year for the Special Master to organize the

data into a searchable database, and another two years for

the Special Master to design and conduct the searches,

during which time the parties and Special Master met regularly to confer on the process. Id. Eighteen Named Plaintiffs “produced personal information and forensic

evidence of their wireless network equipment (including

MAC addresses, email addresses, and SSIDs) to the Special Master to facilitate this targeted discovery.” Id.

After the Special Master issued his report, Joint

Mot. to File Under Seal (dkt. 138), the Court stayed these

App. 47a

proceedings pending the Supreme Court’s consideration

of Gaos, see Stay Order (dkt. 155). Although the Supreme

Court in Gaos had granted certiorari to review the issue of

cy pres-only settlements, it did not reach that issue, concluding that “there remain[ed] substantial questions

about whether any of the named plaintiffs ha[d] standing”

in light of Spokeo, 136 S. Ct. 1540. The holdings of Gaos

and Spokeo guide this Court’s standing analysis.

The district court in Gaos had found that Gaos established standing by alleging that the defendant violated

the Stored Communications Act, which provides a private

right of action. See Gaos, 139 S. Ct. at 1044. While the

Ninth Circuit was considering an appeal of Gaos’s class action settlement, the Supreme Court decided Spokeo. See

Gaos, 139 S. Ct. at 1045. In Spokeo, the Court explained

that standing consists of having “(1) suffered an injury in

fact; (2) that is fairly traceable to the challenged conduct

of the defendant, and (3) that is likely to be redressed by

a favorable judicial decision.” 136 S. Ct. at 1547 (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992)). The Court explained that an injury in fact requires

“a plaintiff [to] show that he or she suffered ‘an invasion of

a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548. “Particularized” means that the

injury “‘must affect the plaintiff in a personal and individual way,’” while “concrete” means that the injury “must

actually exist.” Id. (quoting Lujan, 504 U.S. at 560 n.1).

The Court noted that “intangible injuries can be concrete,” and that “in determining whether an intangible

harm constitutes an injury in fact, both history and the

judgment of Congress play important roles.” Id. at 1549.

App. 48a

The Court found it instructive “to consider whether an alleged intangible harm has a close relationship to a harm

that has traditionally been regarded as providing a basis

for a lawsuit in English or American courts.” Id. Merely

“alleg[ing] a bare procedural violation, divorced from any

concrete harm,” does not satisfy the injury-in-fact requirement. Id. Plaintiffs must allege concrete harm, the

Court explained, “even in the context of a statutory violation.” Id. Because the Ninth Circuit had affirmed Gaos’s

class action settlement without reexamining standing, the

Supreme Court remanded the case to the Ninth Circuit to

consider Gaos’s standing in light of Spokeo. Gaos, 139 S.

Ct. at 1045–46.2

Because the Plaintiffs here have alleged an intangible injury that stems from a statutory violation, the

Court considers Congress’s judgment in “identifying and

elevating intangible harms” and the relationship between

the intangible injury and “harm that has traditionally

been regarded as providing a basis for a lawsuit.” See

Spokeo, 136 S. Ct. at 1549. In enacting the ECPA, Congress sought to protect the concrete privacy interests of

individuals in avoiding unwanted interception of their

electronic communications. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) (ECPA “was

intended to afford privacy protection to electronic communications.”). The prohibition in the statute, and its accompanying private right of action, reflect Congress’s

judgment that intentional, nonconsensual interception of

Importantly, the Ninth Circuit opinion that Gaos vacated

and remanded was Google Referrer, 869 F.3d 737, vacated on

other grounds by Gaos, 139 S. Ct. at 1044. 4

App. 49a

private communications is an invasion of an individual’s

right to privacy. See S. Rep. No. 99-541 at 5 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3559 (“[T]he law must

advance with the technology to ensure the continued vitality of the fourth amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually

erode as technology advances.”). This congressional judgment is “instructive and important” in establishing a concrete injury under Article III. See Spokeo, 136 S. Ct. at

1549. Moreover, the injury at issue here—having one’s

electronic communication intentionally intercepted—

bears a close relationship to a traditional violation of the

right to privacy.

In so holding, the Court follows the guidance of

Campbell v. Facebook, No. 17-16873, slip op. (9th Cir.

Mar. 3, 2020), which weeks ago approved the settlement of

a class action brought under the ECPA and the California

Invasion of Privacy Act. The Circuit explained that ‘Violations of the right to privacy have long been actionable at

common law.’” Id. at 17 (quoting Eichenberger v. ESPN,

Inc., 876 F.3d 979, 983–84 (9th Cir. 2017)). It explained, in

addition, that “under the privacy torts that form the backdrop for these modern statutes, ‘[t]he intrusion itself

makes the defendant subject to liability.’” Id. (quoting Restatement (Second) of Torts § 652B cmt. b). The Circuit

also held that “The reasons articulated by the legislature[]

that enacted ECPA . . . further indicate that the provisions

at issue in this case reflect statutory modernizations of the

privacy protections available at common law.” Id. at 18. It

concluded that the plaintiffs there “identified a concrete

injury by claiming that Facebook violated the ECPA . . .

when it intercepted, catalogued, and used without consent

URLs they had shared in private messages.” Id. at 20.

App. 50a

Another court in this district also recently applied

Spokeo to a Wiretap Act claim, and reached the same conclusion. In Matera v. Google, Inc., No. 15-cv-04062, 2016

WL 5339806, at *8–14 (N.D. Cal. Sept. 23, 2016), Judge

Koh concluded that a plaintiff who alleged that Google violated the Wiretap Act, “without claiming any additional

harm,” had nonetheless alleged injury sufficient to confer

standing. First, the court concluded that Wiretap Act violations resemble invasion of privacy claims at common law

“in both their substantive prohibitions and their purpose.”

Id. at *10 (citing Restatement (Second) of Torts §§ 652AI regarding right to privacy). Even though the elements

that establish a Wiretap Act violation are not identical to

those that establish a common law invasion of privacy, the

court found that the harms share a close relationship. Id.

at *11. Second, Judge Koh noted that when courts determine whether Congress intended to make an alleged statutory violation an injury in fact, they often “place[]

dispositive weight on whether a plaintiff alleges the violation of a substantive, rather than procedural, statutory

right.” Id. at *12 (citing Cour v. Life360, Inc., No. 16-cv00805-TEH, 2016 WL 4039279, at *2 (N.D. Cal. July 28,

2016)). The court found that Congress “create[d] substantive rights to privacy in one’s communications” when it enacted the Wiretap Act. Id. at *13. Judge Koh concluded,

therefore, that the relationship between Wiretap Act violations and privacy torts, as well as Congress’s judgment

that plaintiffs who allege Wiretap Act violations should

have a right to legal relief, meant that an alleged Wiretap

Act violation “constitute[s] concrete injury in fact.” Id. at

*14.

Numerous other courts have also concluded that violations of the ECPA cause concrete and particularized

App. 51a

harms that give rise to Article III standing. See, e.g., In

re Nickelodeon Consumer Privacy Litig., 827 F.3d 262,

273–74 (3d Cir. 2016); Rackemann v. LISNR, Inc., No.

1:17-cv-00624-TWP-MJD, 2017 WL 4340349, at *3–5 (S.D.

Ind. Sept. 29, 2017); Cooper v. Slice Techs., Inc., No. 17cv-7102 (JPO), 2018 WL 2727888, at *2–5 (S.D.N.Y. June

6, 2018); In re Facebook Internet Tracking Litig., 263 F.

Supp. 3d 836, 841–42, 844–45 (N.D. Cal. 2017).

The Court now finds and concludes that the Class

Representatives, who have alleged that Google intercepted the private communications transmitted in their

payload data, have standing under Article III of the

United States Constitution. The invasions of privacy involved here are concrete and particularized injuries-infact to rights defined and protected by statute, and they

fall well within the courts’ traditional sphere of authority.

See Matera, 2016 WL 5339806, at *10, 14. The alleged injuries are fairly traceable to the challenged conduct of the

defendant and are redressable by the Court. See Spokeo,

136 S. Ct. at 1547.

IV.

CERTIFICATION OF RULE 23(B)(3) CLASS

FOR SETTLEMENT PURPOSES

Plaintiffs seek to certify a single nationwide class

under Federal Rule of Civil Procedure 23(a) and Rule

23(b)(3). See Mot. at 9–13.

Rule 23(a) Requirements

Under the first Rule 23(a) factor, the class must be

“so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Some courts have held that

numerosity may be presumed when the class comprises

App. 52a

forty or more members. See Krzesniak v. Cendant Corp.,

No. C 05-05156 MEJ, 2007 WL 1795703, at *7 (N.D. Cal.

June 20, 2007). Whether joinder is impracticable depends

on the facts and circumstances of each case. See id. Here,

Class Counsel estimate that the class has approximately

60 million members. Reply Decl. (dkt. 198-1) ¶ 3. 3 Plaintiffs have therefore satisfied Rule 23(a)(1).

Under the second Rule 23(a) factor, the class must

share common questions of law or fact. Fed. R. Civ. P.

23(a)(2). Not all questions of law or fact must be common:

“[t]he existence of shared legal issues with divergent factual predicates is sufficient.” See Hanlon, 150 F.3d at

1019. Here, class members’ claims share questions of law

and fact, such as whether Google intentionally intercepted

electronic communications, in violation of the Wiretap Act.

See CAC ¶ 122. Plaintiffs have satisfied Rule 23(a)(2).

Under the third Rule 23(a) factor, a representative

party’s claims or defenses must be “typical of the claims

or defenses of the class.” Fed. R.

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