Opposition Brief — Anna St. John, Petitioner v. Lisa Jones, et al.

Supreme Court briefFeb 16, 2023

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No. 22-554

In the Supreme Court of the United States

__________

ANNA ST. JOHN, PETITIONER

LISA JONES, ET AL., RESPONDENTS

__________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

__________

MONSANTO COMPANY’S BRIEF IN

OPPOSITION TO CERTIORARI

__________

JOHN J. ROSENTHAL

Counsel of Record

WINSTON & STRAWN LLP

1901 L Street, N.W.

Washington, DC 20036

(202) 282-5000

jrosenthal@winston.com

JEFF WILKERSON

WINSTON & STRAWN LLP

300 S. Tryon Street

Charlotte, NC 28202

(704) 350-7700

Counsel for Respondent Monsanto Company

QUESTION PRESENTED

This case does not implicate any circuit split. The

District Court approved the settlement (and the

Eighth Circuit affirmed) only after making factual

findings that would have warranted settlement approval in any federal court. Those findings were supported by the record, and Petitioner does not meaningfully challenge them. There is no reason for this Court

to intervene.

The question presented is whether the Eighth Circuit erred in holding that the District Court did not

abuse its discretion by approving the settlement, including the dispersal of unclaimed funds to three

third-party organizations, after finding that (1) the robust notice program and simple claims process complied with Rule 23’s requirements, (2) further distributions to claimants would constitute a windfall, (3) further distributions to non-claiming class members were

not feasible, and (4) the cy pres recipients met the

Eighth Circuit’s well-established requirement for the

“next best use for indirect class benefit and for uses

consistent with the nature of the underlying action

and the judicial function.”

CORPORATE DISCLOSURE STATEMENT

Respondent Monsanto Company is an indirect,

wholly owned subsidiary of Bayer AG, a publicly held

corporation. No other publicly held corporation owns

10% or more of Monsanto’s stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

CORPORATE DISCLOSURE STATEMENT ............. ii

TABLE OF AUTHORITIES ........................................ v

INTRODUCTION ........................................................ 1

STATEMENT............................................................... 4

A. Monsanto settled after years of litigation

in several related actions. ................................. 5

B. The District Court preliminarily approved

the settlement and the parties proceeded

with extensive class notice and a claims

process. .............................................................. 7

C. Plaintiffs moved for final approval and

Petitioner was the sole objector. ....................... 9

D. The District Court rejected Petitioner’s

arguments and approved the settlement. ...... 10

E. The Eighth Circuit unanimously

affirmed. .......................................................... 13

REASONS TO DENY THE PETITION .................... 15

I. Petitioner’s “circuit split” is illusory. ................... 15

A. There is no circuit split on whether class

members have a property interest in the

settlement funds. ............................................ 17

B. There is no circuit split on what

constitutes “feasibility.” .................................. 19

C. There is no circuit split on what would be

a windfall. ........................................................ 22

D. This case does not implicate any circuit

split on conflicts of interest............................. 24

E. Neither the District Court nor the Eighth

Circuit “ignored” Rule 23(e)(2), and this

Court need not review this case to

address that putative error. ........................... 25

II. The questions presented are fact-bound

and unworthy of review under Rule 10,

and Petitioner’s broad objections to cy pres

were not raised below and, in many cases,

are not implicated by this case. ........................... 26

A. The per se permissibility of cy pres

awards is not at issue in this case. ................. 27

B. Whether cy pres in the class-action

context is analogous to the trust context

is irrelevant. .................................................... 28

C. This case does not raise Petitioner’s

concerns about misplaced incentives. ............ 28

D. Courts have uniformly rejected

Petitioner’s First Amendment arguments. .... 29

E. Other cases in which courts have rejected

premature cy pres distributions show only

that this Court need not intervene. ................ 31

F. Petitioner’s claims of forum-shopping are

unfounded. ....................................................... 33

CONCLUSION .......................................................... 33

TABLE OF AUTHORITIES

Page(s)

Cases

In re Baby Prods. Antitrust Litig.,

708 F.3d 163 (3d Cir. 2013) ...................... 15, 19, 31

In re BankAmerica Corp. Secs. Litig.,

775 F.3d 1060

(8th Cir. 2015)............. 1, 3, 9, 12, 13, 14, 16, 17, 23

In re Bayer Corp.,

No. 09-md-2023, Dkt. 218 (E.D.N.Y.

Mar. 1, 2013) ......................................................... 32

Blair v. Monsanto Co.,

No. 3:17-cv-50123 (N.D. Ill. filed

Apr. 24, 2017) ......................................................... 5

Blitz v. Monsanto Co.,

2019 WL 95440 (W.D. Wis.

Jan. 2, 2019) ........................................................... 5

Blitz v. Monsanto Co.,

No. 3:17-cv-00473 (W.D. Wis. filed

June 20, 2017) ........................................................ 5

Blum v. Yaretsky,

457 U.S. 991 (1982) .............................................. 30

Bristol-Myers Squibb v. Superior Court,

137 S. Ct. 1773 (2017) ............................................ 5

Frank v. Gaos,

203 L. Ed. 2d 404, 139 S. Ct. 1041

(2019) .............................................................. 15, 21

In re Google Inc. Cookie Placement,

934 F.3d 316 (3rd Cir. 2019) .......................... 19, 24

In re Google Inc. Street View Elec.

Commc’ns Litig.,

21 F.4th 1102 (9th Cir. 2021), cert.

denied sub nom. Lowery v. Joffe, 214

L. Ed. 2d 25,

143 S. Ct. 107 (2022) ................ 2, 15, 22, 25, 29, 30

In re Google Referrer Header Privacy

Litig.,

869 F.3d 737 (9th Cir. 2017) .......................... 21, 23

Hyland v. Navient,

48 F.4th 110

(2d Cir. 2022) .......................... 18, 19, 23, 25, 29, 30

Ira Holtzman, CPA v. Turza,

728 F.3d 682 (7th Cir. 2013) .......................... 15, 16

Jones v. Monsanto Co.,

2019 WL 9656365 (W.D. Mo.

June 13, 2019) ........................................................ 6

Keil v. Lopez,

862 F.3d 685 (8th Cir. 2017) ................................ 26

Klier v. Elf Atochem N. Am. Inc.,

658 F.3d 468

(5th Cir. 2011)............... 1, 14, 15, 16, 17, 18, 22, 23

Lane v. Facebook,

696 F.3d 811 (9th Cir. 2012) ................................ 21

In re Lupron Mktg. & Sales Pracs. Litig.,

677 F.3d 21 (1st Cir. 2012) ............................. 15, 19

vii

Marek v. Lane,

571 U.S. 1003 (2013) ...................................... 27, 28

Masters v. Wilhelmina Model Agency,

Inc.,

473 F.3d 423 (2007) .............................................. 16

In re Motor Fuel Temp. Sales Pracs.

Litig.,

872 F.3d 1094 (10th Cir. 2017), cert.

denied, 138 S. Ct. 1299 (2018) ................... 2, 13, 29

Nachshin v. AOL, LLC,

663 F.3d 1034 (9th Cir. 2011) .............................. 16

Pearson v. NBTY, Inc.,

772 F.3d 778 (7th Cir. 2014) ................................ 32

Pecover v. Electronic Arts,

2013 WL 12121865 (N.D. Cal.

May 30, 2013) ................................................. 32, 33

Perkins v. Linkedin Corp.,

2016 WL 613255 (N.D. Cal. Feb. 16,

2016)...................................................................... 30

In re Pharm. Ind. AWP Litig.,

588 F.3d 24 (1st Cir. 2009) ................................... 16

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ........................................ 30, 31

In re Polyurethane Foam Antitrust

Litig.,

178 F. Supp. 3d 621 (N.D. Ohio

Apr. 13, 2016) ....................................................... 29

viii

Six (6) Mexican Workers v. Arizona

Citrus Growers,

904 F.2d 1301 (9th Cir. 1990) .............................. 25

Travelers Cas. & Sur. Co. v. Pac. Gas &

Elec.,

549 U.S. 443 (2007) .......................................... 3, 27

Washington v. Monsanto Co.,

No. 2:17-cv-02216 (E.D.N.Y. filed

Apr. 12, 2017) ......................................................... 5

Other Authorities

Nicholas A. Bergara, Nipping it in the

Bud: Fixing the Principal-Agent

Problem in Class Actions by Looking

to Qui Tam Litigation NYU L. Rev.

275, 278 (2022) ..................................................... 29

INTRODUCTION

Petitioner Anna St. John, represented by a serial

objector to class-action settlements, argues that the

Eighth Circuit’s opinion below implicates a circuit

split on the application of cy pres to class-action settlements. But there is no split—courts evaluating settlements of this type apply the same legal standard. The

circuit courts agree that cy pres distributions of unclaimed funds to organizations aligned with a lawsuit’s purpose are permitted if further distributions to

class members (1) are infeasible or (2) would effect a

windfall. The District Court found that both were true

here. Pet. App. 22a. And the Eighth Circuit affirmed,

finding no abuse of discretion. Pet. App. 9a. The decision below did not depart from the legal standard employed by other circuits (or prior Eighth Circuit precedent). To the contrary, it relied on the same cases that

Petitioner claims are on the “other side” of the supposed circuit split. Pet. App. 8a (citing Klier v. Elf

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

(Klier)); In re BankAmerica Corp. Secs. Litig., 775 F.3d

1060 (8th Cir. 2015) (BankAmerica)). The courts of appeals simply do not recognize the split that Petitioner

attempts to gin up.

Seeking to mask this consensus on the standard for

approving cy pres distribution of residual funds, Petitioner distorts both the factual record and the Eighth

Circuit’s holdings. She claims, for example, that the

courts below relied simply on “magic words” from the

parties about the feasibility of further distributions to

class members. Pet. 3. But in fact, the District Court

considered a well-developed record showing that

(1) the parties completed an extensive notice program

across more than a dozen different media, with class

members exposed to notice hundreds of millions of

times; (2) the claim form was easy to complete, readily

available, and did not require proof of purchase; and

(3) before any cy pres distributions, all claimants will

receive payments amounting to more than three times

Plaintiffs’ estimate of the best-case result at trial. It

was the District Court’s application of accepted legal

standards to this factual record that led to settlement

approval. Petitioner’s disagreement with those factual

findings does not justify this Court’s intervention.

Petitioner also argues that the use of cy pres violates class members’ First Amendment rights. Petitioner and her counsel have presented this same argument repeatedly in courts around the country. Those

courts have uniformly rejected it, holding that

(1) where the cy pres provisions are included in the settlement agreement, as they were here, the implementation of the settlement is not state action subject to

the First Amendment; and (2) in any event, cy pres distributions do not compel speech because Rule 23(b)(3)

class actions, by their nature, provide class members

with the ability to opt out. See, e.g., In re Motor Fuel

Temp. Sales Pracs. Litig., 872 F.3d 1094, 1113-14

(10th Cir. 2017), cert. denied, 138 S. Ct. 1299 (2018)

(Motor Fuel); In re Google Inc. Street View Elec.

Commc’ns Litig., 21 F.4th 1102, 1118-19 (9th Cir.

2021), cert. denied sub nom. Lowery v. Joffe, 214 L. Ed.

2d 25, 143 S. Ct. 107 (2022) (Google Street View). The

Court should not grant certiorari on this issue, considering that it has recently and repeatedly denied review

of this question in other cases, and every lower court

to consider Petitioner’s First Amendment argument

has rejected it.

Petitioner’s other arguments largely focus on purported risks that cy pres could skew class counsel’s and

district courts’ incentives to protect absent class members. But those issues are not presented here for two

reasons.

First, Petitioner did not argue below that cy pres is

inappropriate in all cases. Because broad questions

about the permissibility of cy pres were not addressed

below, they are not ripe for this Court’s review. Travelers Cas. & Sur. Co. v. Pac. Gas & Elec., 549 U.S. 443,

455 (2007) (“[W]e ordinarily do not consider claims

that were neither raised nor addressed below.”) (Travelers). Rather, the primary focus of both the parties’

briefing and the Eighth Circuit’s opinion was the interpretation of a single Eighth Circuit case,

BankAmerica.

Second, despite positing that cy pres could theoretically create skewed incentives or conflicts of interest,

Petitioner does not and cannot point to any evidence of

malfeasance by class or defense counsel or the District

Court in this case. To the contrary, the record shows

that class counsel made repeated efforts to increase

claims rates.

Moreover, the circuits have already uniformly recognized and addressed the potential for unfair or

premature cy pres distributions of unclaimed funds.

Indeed, the legal standard the Eighth Circuit applied

in this case—requiring a preference for feasible and

fair distributions to class members—is expressly designed to ensure that class counsel are vigorously representing class members’ interests and to combat unwise or unfair cy pres distributions. Petitioner’s argument that some circuit courts have rejected cy pres distributions in other cases only reinforces that this legal

standard has teeth, not that there is a split regarding

what the standard is or should be. And other appellate

decisions she points to for the purported “fracture” address different legal questions, and therefore do not

represent a “fracture” at all.

The District Court made dispositive factual findings based on a thorough review of the record, applying

a legal standard that is uniform among the circuits.

The Eighth Circuit affirmed, applying that same legal

standard. Petitioner did not even argue below that

this legal standard was incorrect or should be revisited, nor that the standard applied by other circuits

conflicted with Eighth Circuit law—issues it now asks

this Court to address in the first instance. This is a

court of final, not first, review. Certiorari should be

denied.

STATEMENT

The District Court found that the settlement was

fair, reasonable, and adequate to protect class members’ interests. Its rejection of Petitioner’s challenge

to the settlement’s cy pres provision, in particular,

turned on two important findings: (1) “further efforts

to identify class members or increase the claims rate

[were] not feasible”; and (2) the amount paid to claimants “constituted at least full (if not more) compensation for the class members’ damages.” Pet. App. 23a,

26a. The Eighth Circuit, in turn, relied on these two

findings to affirm the District Court’s approval. Pet.

App. 7a-9a.

These findings were justified based on the nature

of Plaintiff’s claims, the course of the proceedings, and

the record. Settlement approval based on those findings conforms with the law of every circuit to have addressed the issue. There is no reason for this Court to

intervene.

Monsanto settled after years of litigation

in several related actions.

Plaintiffs allege that Monsanto misled consumers

by stating on labels for certain of its Roundup®-brand

herbicide products that their active ingredient, glyphosate, “targets an enzyme found in plants but not in

people or pets” (“Label Statement”). Pet. App. 14a.

The United States Environmental Protection Agency

(“EPA”) repeatedly approved the Label Statement because the enzyme in question, EPSPS, is not found in

human and animal cells. But because certain bacteria

contain EPSPS, and some of those bacteria can live in

human and animal gastrointestinal tracts, Plaintiffs

alleged the Label Statement was false and misleading.

Ibid. Plaintiffs asserted only economic loss—they did

not claim personal injury.

Plaintiffs’ counsel filed the first cases asserting this

theory in April 2017. See Washington v. Monsanto Co.,

No. 2:17-cv-02216 (E.D.N.Y. filed Apr. 12, 2017); Blair

v. Monsanto Co., No. 3:17-cv-50123 (N.D. Ill. filed Apr.

24, 2017). Those plaintiffs, combining with several

others, then filed a new action, Blitz v. Monsanto Co.,

No. 3:17-cv-00473 (W.D. Wis. filed June 20, 2017).1

Discovery proceeded in Blitz for over a year, but the

district court ultimately denied class certification, and

the Seventh Circuit then denied interlocutory appeal.

2019 WL 95440, at *5 (W.D. Wis. Jan. 2, 2019) (petition for perm. app. denied).

1 After this Court’s decision in Bristol-Myers Squibb v. Su-

perior Court, 137 S. Ct. 1773 (2017), however, five of the six

plaintiffs in the Blitz matter voluntarily dismissed their

claims, leaving only the Wisconsin claims.

Not to be deterred, in February 2019, Plaintiffs’

counsel filed this action, asserting highly similar

claims on behalf of a putative nationwide class. Monsanto moved to dismiss, but the District Court held

that the case could proceed to discovery. Jones v. Monsanto Co., 2019 WL 9656365 (W.D. Mo. June 13, 2019).

Facing the prospect of years of additional, costly litigation of claims it had already successfully litigated,

Monsanto agreed to mediate. Pet. App. 2a. In anticipation of mediation, the parties independently commissioned experts to analyze whether the removal of

the Label Statement would impact the products’ price.

Plaintiffs’ expert concluded there was a 7.9 to 15.9 percent price premium. Pet. App. 3a. Monsanto’s expert

found no statistically significant difference in the perceived value of the products with or without the Label

Statement and, at worst, a 2.5 percent potential price

premium. Ibid.

The parties ultimately reached an arms-length settlement. Ibid. The settlement created a non-reversionary common fund of $39.55 million, against which

class members could make claims for 10 percent of the

average retail price of products they bought during the

class period. Ibid. The settlement permitted cy pres

distributions of unclaimed funds only if class members’

claims, notice costs, attorney’s fees, and any other

awards did not exhaust the common fund.2 Pet. App.

73a-74a.

2 The settlement agreement also provided that Monsanto

would remove the Label Statement from the products and

replace it with an alternative statement, subject to EPA approval. Pet. App. 60a.

The District Court preliminarily approved

the settlement and the parties proceeded with

extensive class notice and a claims process.

In March 2020, Plaintiffs moved for preliminary

approval of the settlement. Pet. App. 3a. But before

the District Court ruled on that motion, the parties

slightly revised the settlement to, among other things,

(1) lengthen the proposed notice and claims periods to

“address concerns that, in light of the current publichealth situation, consumers may be less attuned to

non-pandemic-related media/publicity”; and (2) specify the recipients of any cy pres distribution that may

occur to ensure that class members would have notice

of the potential recipients. D. Ct. Doc. 52, at 3-4 (May

12, 2020). The District Court preliminarily approved

the settlement in May 2020. Pet. App. 15a.

The parties, via an experienced claims administrator and notice expert, immediately began class notice

and opened the claims process. Notice was broad and

multifaceted, including print media, online displays,

social media ads, streaming radio ads, online video

ads, search-engine ads, a national press release, a tollfree settlement hotline, and a dedicated settlement

website. Pet. App. 16a. The claims process was simple, and class members could complete the claim form

either online or on paper. Class members could submit

claims without proof of purchase and simply attest

which product(s) they bought. Pet. App. 70a-71a.

In July 2020, given the ongoing media attention on

COVID-19 and nationwide protests, the parties agreed

to further supplement their notice efforts. These supplemental notice efforts—not required by the preliminary approval order—included (1) purchasing an

email list of millions of likely class members and sending them direct email notice of the settlement; (2) disseminating new email notices via digital newsletters

catering to likely class members; and (3) purchasing

ads on two leading websites that publicize class-action

settlements. D. Ct. Doc., 58-2 ¶¶ 12-22 (October 14,

2020).

In October 2020, as the original claims period

waned, the parties agreed—again, without prompting

by the District Court—to additional notice to stimulate

more claims.3 The parties extended the claims period

an additional 120 days and provided 90 more days of

supplemental notice, including new national television

and radio advertising campaigns. See D. Ct. Doc. 58

at 4 (October 14, 2020). They also revised the settlement agreement to, among other things, increase potential recovery to 50 percent of the average retail

price of the products claimed (more than three times

Plaintiffs’ estimate of best-case damages)—a 500 percent increase. Pet. App. 61a. Updated notice materials advised class members of these changes. D. Ct.

Doc. 58-2, at 142, 146 (October 14, 2020).

Ultimately, the parties’ notice plan led to more

than 500 million notices delivered. See D. Ct. Doc. 652 (February 5, 2021). Class members filed more than

240,000 claims (net of duplicate claims) for more than

3 To be clear, the existing notice program was legally ade-

quate and had proceeded as planned, reaching more than

80 percent of the class with hundreds of millions of instances of notice. D. Ct. Doc. 58-2 ¶ 25 (October 14, 2020).

The parties agreed to further extend the notice period (and

to use additional forms of notice) only to ensure that as

many class members as possible would have the opportunity to claim payments from the common fund.

a million products, worth up to $13.35 million. Id. ¶¶

21-22. Given the size of the fund, however, and despite

the parties’ repeated efforts to stimulate claims, much

of the common fund remained unclaimed and subject

to cy pres distribution.

Plaintiffs moved for final approval and Petitioner was the sole objector.

With the notice and claims process complete, Plaintiffs moved for final approval of the settlement. D. Ct.

Doc. 64 (February 25, 2021). Petitioner—an attorney

at the same organization that represents her, the

Hamilton Lincoln Law Institute’s Center for Class Action Fairness (“CCAF”)—was the sole objector.4 Petitioner made two relevant arguments, both focused on

the settlement’s cy pres provisions.

First, Petitioner argued that the Eighth Circuit’s

decision in BankAmerica, 775 F.3d 1060, permitted cy

pres distributions as a “last resort” only if it was infeasible to make distributions to more class members and

additional distributions to existing claimants would

more than fully compensate them for liquidated damages claims. Pet. App. 100a-105a. She asserted that

further efforts to distribute funds were feasible because the parties could either “subpoena the records of

big-box retailers” to provide additional notice or make

further distributions to existing claimants. Pet. 103a105a.

Second, Petitioner argued that the proposed cy pres

distributions would compel speech in violation of the

First Amendment because she did not agree with the

4 CCAF is a serial objector to class-action settlements.

policy positions of the proposed recipients. Pet. 105a107a.5

Petitioner did not argue that cy pres distributions

of unclaimed funds are impermissible per se or that

the Eighth Circuit’s legal standard for reviewing such

awards conflicted with other circuits’ standard. Nor

did she argue that (1) payments to claimants were unfair or inadequate; (2) the parties’ notice efforts failed

to meet Rule 23(c)(2)(B)’s requirement for the “best notice practicable under the circumstances”; (3) the

method of processing class-member claims was onerous or otherwise impermissible under Rule 23; or

(4) the proposed cy pres recipients did not meet the

Eighth Circuit’s requirement of a sufficient nexus to

the action.6

The District Court rejected Petitioner’s arguments and approved the settlement.

After a final-approval hearing, the District Court

approved the settlement. Pet. App. 19a. It found that

the parties negotiated the settlement “at arms-length”

and that the “process used to identify and pay class

members and the amount paid to class members” were

“fair and reasonable for settlement purposes.” Pet.

App. 20a. It noted that there was only one objection

and “even the Objector ha[d] not suggested that the

amount of the settlement [was] inadequate or that the

5 Petitioner also objected to class counsel’s attorney’s fees,

but she does not pursue that issue in the Petition.

6 Petitioner also did not argue, and there is no evidence to

support, that the parties or their counsel had any special

relationship with the proposed cy pres recipients that would

implicate any potential conflict of interest.

notice or method of disseminating the notice was inadequate to satisfy the requirements of the Due Process

Clause or was otherwise infirm.” Ibid.

Addressing Petitioner’s objections to the cy pres

provisions, the District Court began by recognizing

that Eighth Circuit law permits cy pres distributions

of unclaimed funds only when it is infeasible to make

further distributions to class members and additional

distributions to existing claimants would effect a windfall. Pet. App. 22a. It then concluded that both were

true in this case.

As to feasibility, the District Court found “that further efforts to identify class members or increase the

claims rate [were] not feasible.” Pet. App. 23a. It

noted the evidence that the parties had engaged in extensive notice efforts and made several efforts to increase claims rates. Ibid. It found that any information obtained via Petitioner’s suggested subpoenas

to retailers would be “substantially duplicative” and

that Petitioner had not shown that her proposal

“would increase the percentage of class members

aware of the settlement or otherwise increase the

claims rate.”7 Pet. App. 23a-24a.

7 Petitioner’s claim that Monsanto stated at the final-ap-

proval hearing that “a supplemental outreach process to retailers would cost between $300,000 and $600,000” (Pet. 8)

is false. Monsanto’s counsel stated that the settlement administrator estimated it would cost $300,000 to $600,000 to

send additional direct notice assuming it already had the

contact information in hand. D. Ct. Doc. 74, at 16 (March

15, 2021). This was not an estimate of what it would cost

to obtain that information, nor an affirmation that such information was attainable or would affect the claims rate.

The District Court next concluded that additional

distributions to existing claimants would constitute a

windfall because claimants were already receiving full

compensation (likely more than full compensation).

Pet. App. 24a-30a. It reached this conclusion in two

steps.

First, the District Court rejected Petitioner’s contention that Eighth Circuit law limited the “windfall”

rule to cases with liquidated damages. Pet. App. 24a26a. BankAmerica, it held, concluded that “when damages are liquidated, full compensation is necessarily

100% of those damages.” Id. at 25a. That did not

mean that further distributions were never a windfall

in cases without liquidated damages. Ibid.

Second, the District Court found that the payments

to claimants “constituted at least full (if not more) compensation.” Ibid. Surveying relevant state laws, it

held that the “appropriate measure” of damages was

the “difference between what [class members] bargained for and what they received.” Id. at 29a. Payments to claimants were more than that using either

parties’ expert’s analysis, and Petitioner “did not profess to having any evidence on this issue.” Ibid. The

District Court thus concluded that further distributions to claimants would “constitute a windfall” and

that the use of cy pres “to distribute unclaimed funds

[was] permissible.” Id. at 30a.

Finally, the District Court considered and rejected

Petitioner’s First Amendment arguments, noting that

Quite the contrary—counsel explained that the settlement

administrator “d[id] not believe the [claims] numbers would

materially change” and was “not sure we could readily get

that [retailer] information.” Ibid.

Petitioner did not contest that that the proposed recipients met the Eighth Circuit’s requirement of a nexus

to the action. Id. at 30a-31a. It held that because the

cy pres provisions were created by the settlement

agreement itself rather than by court order, there was

no government compulsion as required to implicate

the First Amendment. Id. at 31a (citing Motor Fuel,

872 F.3d at 1113-14).

The Eighth Circuit unanimously affirmed.

Petitioner appealed to the Eighth Circuit, which affirmed. Pet. App. 2a-12a. The Eighth Circuit explained that “unclaimed funds may only be distributed

cy pres where existing class-member claimants have

been fully compensated [such that further payments to

claimants would effect a windfall] and further distribution to remaining class members is not feasible.”

Pet. App. 8a. And it concluded that the District Court’s

finding that those conditions were met was not an

abuse of discretion.

First, it held that the District Court’s finding that

further efforts to increase class notice were infeasible

was not an abuse of discretion given “the notice plan

that had already been implemented, which advertised

the settlement in a targeted way across numerous

platforms and was revised twice in an effort to reach

more consumers.” Ibid.

Second, it agreed with the District Court that

BankAmerica did not limit the use of cy pres to cases

with fully-compensated liquidated damages. Id. at 9a.

Rather, it “requires the district court to make its own

assessment of the damages ‘that would be recoverable’

by class members before approving distributions of residual funds cy pres.” Ibid. “The reversible error in

BankAmerica,” the Eighth Circuit explained, was

“that the district court had not determined the measure of class members’ damages and whether they had

been fully compensated before granting a cy pres distribution” of residual funds. The District Court, it explained, had done precisely that, and there was “no

abuse of discretion in its conclusion” that claimants

were fully compensated given the record before it.

Ibid.

Finally, the Eighth Circuit rejected Petitioner’s

First Amendment arguments, because “class members

have not been compelled to subsidize speech.” Id. at

10a. While it recognized that residual settlement

funds are the “property of the class,” it noted that they

“do not belong to any individual class member who has

received his or her portion of the settlement fund.”

Ibid. And class members who did not file claims were

not “compelled” to do anything, because they “could

have filed a claim to collect the funds themselves or

opted out of the settlement.”8 Ibid.

Petitioner sought en banc review, which the Eighth

Circuit denied.9

8 Petitioners’ assertion that the Eighth Circuit did not “rec-

oncile” this holding with Fifth Circuit’s opinion in Klier, or

the Eighth Circuit’s endorsement of Klier in BankAmerica

(Pet. 11) is pure fiction. Neither Klier nor BankAmerica addressed First Amendment issues at all. And, in any event,

the panel specifically addressed both cases. App. 10a.

9 Petitioner’s request for en banc review, like her briefs be-

fore the Eighth Circuit panel, did not argue that cy pres distributions of unclaimed funds are categorically impermissible. Like Petitioner’s brief to the panel, the en banc petition

argued that the panel had misread existing Eighth Circuit

REASONS TO DENY THE PETITION

Petitioner’s “circuit split” is illusory.

The Petition rests on the assertion that there is a

“fracture” among the circuits along “several dimensions” that this Court must intervene to address. Pet.

13. But there is no circuit split, much less a split implicated by this case. Any purported “fracture” is of

Petitioner’s own making.

“Courts in every circuit, and appellate courts in

most, have approved the use of cy pres for unclaimed

class action awards.”10 Newberg & Rubinstein on

Class Actions § 12:32. Courts likewise agree that payments to class members are preferable to cy pres distributions, and so unclaimed funds should be distributed cy pres only when further distributions to class

members are either infeasible or unfair (such as when

they would effect a windfall). See Klier, 658 F.3d at

475; In re Lupron Mktg. & Sales Pracs. Litig., 677 F.3d

21, 32, 35 (1st Cir. 2012) (Lupron); In re Baby Prods.

Antitrust Litig., 708 F.3d 163, 176 (3d Cir. 2013) (Baby

Products); Ira Holtzman, CPA v. Turza, 728 F.3d 682,

690 (7th Cir. 2013); McLaughlin on Class Actions

§ 8:15; see also Google Street View, 21 F.4th at 1115

precedent regarding the circumstances in which such distributions are permitted. Appellate Ct. Doc. 5177201 (July

13, 2022).

This case involves the use of cy pres to distribute unclaimed funds and not so-called cy pres-only settlements.

See Frank v. Gaos, 203 L. Ed. 2d 404, 139 S. Ct. 1041, 1047

(2019) (Thomas, J., dissenting) (“Whatever role cy pres may

permissibly play in disposing of unclaimed or undistributable class funds …. [t]his cy pres-only arrangement failed

several requirements of Rule 23.”).

(9th Cir. 2021) (“If it were feasible to distribute the settlement fund to class members, a cy pres settlement

would not be employed.”)

This consensus grew out of the American Law Institute’s 2010 Principles of the Law of Aggregate Litigation (“ALI Principles”), which set forth the relevant

standard succinctly:

If the settlement involves individual distributions to class members and funds remain after

distributions (because some class members

could not be identified or chose not to participate), the settlement should presumptively

provide for further distributions to participating class members unless the amounts involved are too small to make individual distributions economically viable or other specific

reasons exist that would make such further

distributions impossible or unfair.

ALI Principles 3.07(b). Since then, court after court

has adopted and cited the ALI Principles. See, e.g.,

BankAmerica, 775 F.3d at 1063-65 (reciting and adopting the ALI Principles); In re Pharm. Ind. AWP Litig.,

588 F.3d 24, 35 (1st Cir. 2009) (reciting the ALI Principles (then in draft form) and holding that the cy pres

distribution at issue complied with them); Klier, 658

F.3d at 475 & nn. 15-16 (reciting and applying ALI

Principles); Turza, 728 F.3d at 689-90 (citing ALI Principles for proposition that unclaimed funds should be

used for the class’s benefit “to the extent that is feasible”); Masters v. Wilhelmina Model Agency, Inc., 473

F.3d 423, 436 (2007) (relying on ALI Principles (then

in draft form)); Nachshin v. AOL, LLC, 663 F.3d 1034,

1039 n.2 (9th Cir. 2011) (citing ALI Principles). No

circuit has meaningfully departed from these principles, and the Eighth Circuit’s opinion here certainly

did not do so.

Each of the “dimensions” along which Petitioner

claims there is a circuit split is illusory.

There is no circuit split on whether class

members have a property interest in the settlement funds.

Petitioner’s argument that the decision below split

from the Fifth Circuit’s opinion in Klier as to whether

“class members have a property interest in the settlement proceeds” (Pet. 13) is baseless. The Eighth Circuit agreed with Klier nearly a decade ago that “settlement funds are the property of the class.” BankAmerica, 775 F.3d at 1064. And the decision below expressly

reaffirmed that principle. App. 10a (quoting Klier for

the proposition that “settlement funds ‘are the property of the class’”).

This holding was not mere “lip service” to Klier as

Petitioner suggests. Instead, it was an application of

the same legal standard to different facts. Klier held

that district courts may approve cy pres distributions

of unclaimed funds when it is not “logistically feasible

and economically viable” to make additional distributions and further payments to claimants would be a

“windfall.” See Pet. 13 (quoting Klier, 658 F.3d at 475).

That is precisely what the Eighth Circuit held here:

“[U]nclaimed funds may only be distributed cy pres

where existing class-member claimants have been

fully compensated [such that additional payments

would be a windfall] and further distributions to remaining class members is not feasible.” App. 8a. That

represents legal uniformity between the Fifth and

Eighth Circuits, not a circuit split, and certainly not a

split that any lower court recognizes. That Klier reversed the approval of a cy pres distribution does not

mean there is a circuit conflict. Different outcomes

sometimes—often—represent merely the application

of uniform law to different facts.

Nor does the decision below create a split with the

Second Circuit’s decision in Hyland v. Navient, 48

F.4th 110 (2d Cir. 2022) (Navient). That decision addressed a different legal question. Petitioner suggests

that Navient held settlement funds “never belonged”

to the class. Pet. 14. If that were true, it would mean

that Navient departed from the consensus position.

But it is not true. Navient held that, in that case, the

settlement fund did not belong “to class members as

damages.” 48 F.4th at 122 (emphasis added). That

was because, under the 23(b)(2) settlement in Navient,

class members “reserved their individual right to later

sue for money damages.” Ibid.

This case cannot represent a split from Navient because the decisions address different legal questions.

The settlement under review in Navient did not use cy

pres to distribute unclaimed funds in a 23(b)(3) class

action, but was a 23(b)(2) action that funded a nonprofit with money never available for class-member

claims. Id. at 121-22. The Second Circuit was presented with the question whether the “feasibility”

analysis used by courts (including the Eighth Circuit)

to address unclaimed funds applied in the 23(b)(2) context. Id. at 122 (concluding that objectors’ argument

that distributions to class members were feasible “misconstrue[d] the settlement fund as a damages award

that was redistributed … through the cy pres doctrine”). That question is not relevant here, where all

parties have always agreed the feasibility standard applies.

Petitioner’s suggestion that there is a split with the

Third Circuit fares no better. Petitioner first points to

In re Google Inc. Cookie Placement, 934 F.3d 316 (3rd

Cir. 2019) (Google Cookie Placement). Pet. 14. But

that decision’s discussion of whether money paid in

settlement “belongs” to the class was dicta and, more

importantly, like Navient, it was cabined to the context

of a 23(b)(2) settlement. 934 F.3d at 328 (“[W]e see no

reason why a cy pres-only (b)(2) settlement that satisfies Rule 23’s certification and fairness requirements

could not ‘belong’ to the class as a whole.”) (emphasis

added). That is not the situation here.

Petitioner’s supposed split with Baby Products

(Pet. 15) is even less compelling. There, the Third Circuit “joined other courts of appeals” in holding that cy

pres could, under appropriate circumstances, be used

to distribute unclaimed funds. Baby Prods., 708 F.3d

at 172 (citing cases from the First, Fifth, Seventh, and

Ninth Circuits). The Third Circuit relied heavily on

the ALI Principles—the same principles relied on by

other circuits. Id. at 172-73. And it accepted the same

rule that cy pres distributions are “most appropriate

where further individual distributions are economically infeasible” and “where all class members submitting claims have already been fully compensated for

their damages by prior distributions.” Id. at 173, 176

(citing Lupron, 677 F.3d at 34-35). In short, the Third

Circuit adopted the same legal principles that guided

the decisions below in this case.

There is no circuit split on what constitutes “feasibility.”

Implicitly recognizing the circuit courts’ fundamental agreement that cy pres distributions of unclaimed

funds are appropriate when those funds cannot be feasibly distributed without a windfall, Petitioner next

tries to manufacture a circuit split on what constitutes

“feasibility.” Pet. 16-17. But Petitioner misrepresents

the holdings of both this case and the other cases she

cites.

Petitioner first asserts that the Eighth Circuit’s decision below held “that a court can consider [further]

distribution infeasible if it cannot be made to every

class member, rather than some class members.” Pet.

16. That is not what the decision below held.

As to non-claiming class members, the decision below held that the District Court did not clearly err by

finding that further efforts to induce claims were infeasible given the evidence showing that the parties

had already expended millions of dollars on an extensive notice program that generated hundreds of millions of notice impressions.11 Pet. App. 7a-8a (“Based

on this record, however, the district court did not

abuse its discretion by not requiring the parties to pursue this approach [retailer subpoenas] in addition to

the notice plan that had already been implemented,

which advertised the settlement in a targeted way

across numerous platforms ….”). Its analysis in no

way relied on whether it was possible to identify “every

class member.”

11 Petitioner’s assertion that the Eighth Circuit simply re-

lied on the parties’ “self-serving representations” (Pet. 16)

is belied by the record. Plaintiffs submitted two detailed

affidavits from the claims administrator describing the parties’ extensive notice efforts. D. Ct. Doc. 58-2 (October 14,

2020); D. Ct. Doc. 65-2 (February 25, 2021). Petitioner submitted no evidence that her proposal would increase the

claims rate.

As to existing claimants, the panel’s analysis did

not address “feasibility” at all. That is because the relevant question was not whether it was feasible to pay

more to claimants—it plainly was—but whether such

payments would constitute a windfall. The panel’s

analysis thus appropriately focused on whether claimants were “fully compensated.” App. 9a.

Petitioner’s description of the Ninth Circuit’s law

in this regard is not correct. She claims the Ninth Circuit holds that “courts may consider settlement funds

eligible for cy pres distribution whenever a settlement

fund cannot be spread among every member of the

class.” Pet. 16. None of the cases she cites support

that assertion.

Lane v. Facebook, 696 F.3d 811, 821 (9th Cir. 2012)

(Lane), for example, did not hold (as Petitioner claims)

that class members distributions were infeasible because not every class member would receive payment.

It did not need to address that question, because even

the objectors “concede[d] that direct monetary payment to the class of remaining settlement funds would

be infeasible ….” Id.

In re Google Referrer Header Privacy Litig., 869

F.3d 737, 742 (9th Cir. 2017) (Google Referrer), which

Petitioner says “reaffirmed” Lane’s holding, was vacated by this Court in Frank v. Gaos, so it is not even

good law. Frank v. Gaos, 203 L. Ed. 2d 404, 139 S. Ct.

1041 (2019) (Gaos). But in any event, Google Referrer

did not hold that payments to class member were infeasible, but that the average distribution would be de

minimis. Ibid. To be sure, there remained questions

about whether that justified a cy pres-only settlement—questions on which this Court granted certiorari in Gaos. But those questions are not presented

here, because this case does not involve a cy pres-only

settlement.

Petitioner’s reliance on Google Street View is also

misplaced. That case did not hold that class member

payments are feasible only when they can be made to

every class member, but that, given the facts of that

case, there was no “viable way to for a claims administrator to verify any claimant’s entitlement to settlement funds.” 21 F.4th at 1114. That was not, as Petitioner claims, because of defendant’s insistence on a

“burdensome claims process.” Pet. 17. It was because,

under the unique facts of that case, the court determined that the public could not know if they were class

members, and thus even a simple claims process would

be “pure speculation.” 21 F.4th at 1115.

There is no circuit split on what would be

a windfall.

Petitioner’s assertion that there is disagreement

between the Second, Fifth, Eighth, and Ninth Circuits

on how to determine if distribution of unclaimed funds

to existing claimants would be a windfall (Pet. 13-20)

misreads all four circuits’ decisions.

Petitioner first asserts that the Fifth Circuit held

in Klier that courts determining whether further payments would be a windfall may consider only the “face

of the complaint’s allegations.” Pet. 18. That is incorrect. In Klier, the relevant subclass—individuals that

suffered serious personal injuries—had not received

settlement payments sufficient to fully compensate

them for their physical injuries. 658 F.3d at 477-78.

The appellees did not contest that. The appellees argued that class members could be deemed “fully compensated” solely because they received the amount allocated to them in the settlement. Id. at 479. Klier

rejected that argument, explaining that the question

is whether claimants are actually fully compensated,

not just whether they received the amount contemplated by the settlement agreement. Ibid. Klier never

held, or even suggested, that when considering

whether claimants are fully compensated, courts must

focus solely on the complaint and ignore unrebutted

evidence as to the value of class members’ claims.

Nothing in the Eighth Circuit’s law—or the result

in this case, which has nothing to do with physical injury—conflicts with Klier. To the contrary, the Eighth

Circuit agreed with Klier nearly a decade ago that

claimants are not “fully compensated” just because

they receive the amounts due under a settlement

agreement. BankAmerica, 775 F.3d at 1065. The decision below did not depart from that holding. The District Court expressly noted that its “full compensation”

finding was “based on the claims and evidence presented,” not simply the amount allocated to claimants

by the settlement. App. 29a-30a. And as the Eighth

Circuit held, that finding was supported by the record.

Pet. App. 9a.

Petitioner’s suggestion that the Second Circuit’s

decision in Navient and the Ninth Circuit’s decision in

Google Referrer further evidence a split in this regard

(Pet. 19) makes even less sense. Both Navient and

Google Referrer were 23(b)(2) settlements that did not

involve the distribution of unclaimed funds. See Navient, 48 F.4th at 122; Google Referrer, 869 F.3d at 741.

They therefore did not address what standard or evidence would be used to determine whether further

payments to class members would be a windfall.

This case does not implicate any circuit

split on conflicts of interest.

Petitioner briefly suggests that there is a circuit

split on the “scrutiny required to avoid conflicts of interest in cy pres” and specifically whether courts may

approve cy pres distributions when there is a “significant prior affiliation” between a proposed recipient

and any party, counsel, or the court. Pet. 19.

Even if this could be categorized as a circuit split

(and it should not be), this case is not the proper vehicle for the Court to address it, because Petitioner

acknowledges that it is “not at issue” in this case. Pet.

19. No one has ever suggested that the cy pres recipients here lack the necessary nexus to the underlying

case or were selected using improper or questionable

methods. A putative circuit split that even the Petitioner admits this case does not implicate cannot justify granting certiorari.

Even this split is illusory. While the lower courts

differ somewhat on how they articulate their standards for assessing cy pres recipients related in some

way to the parties (which, again, are not implicated by

this case), there is no circuit split. The Third Circuit

does not hold, as Petitioner suggests, that cy pres

“should not be ordered if there is ‘a significant prior

affiliation with any party, counsel, or the court.’” Pet.

19. Instead, it holds that, if there is such a prior affiliation, then the court should investigate to determine

if there are “substantial questions about whether the

recipients were chosen on the merits.” Google Cookie

Placement, 934 F.3d at 331. Such recipients thus can

still be approved so long as the court finds that they

were appropriate recipients on the merits. The Ninth

Circuit, on the other hand, does not place any special

emphasis on prior relationships with the recipients

and focuses solely on the nexus with the action—requiring a showing that the cy pres recipients align with

“the objective of the underlying statute” and “the interests of the silent class members.” Google Street

View, 21 F.4th at 1120 (quoting Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1307

(9th Cir. 1990)).12

Neither the District Court nor the Eighth

Circuit “ignored” Rule 23(e)(2), and this Court

need not review this case to address that putative error.

Lumped, for some reason, under her argument that

there is a circuit split, Petitioner argues that the decision below “ignores Rule 23(e)(2)(C)(ii)’s requirement

that district court consider ‘the effectiveness of any

proposed method of distributing relief to the class, including the method of processing class member

claims.’” Pet. 20. Such a request for error correction

does not merit this Court’s review and, in any event,

there was no error here.

The District Court specifically addressed “the provisions of Rule 23(e)(2),” including “the effectiveness of

the claims process.” App. 19a. And it found “with respect to the Rule 23(e)(2) factors,” that “the process

used to identify and pay class members and the

amount paid to class members are fair and reasonable

12 Petitioner’s suggestion that Navient is relevant to this

supposed split is incorrect. Navient did not address any relationship between the cy pres recipient and the parties or

court, but an assertion that plaintiffs’ counsel were in conflict with the class because a teacher’s union had advanced

counsel’s fees. 48 F.4th at 122-23.

for settlement purposes.” App. 20a. The Eighth Circuit affirmed, noting that the claims rate was consistent with claims rates seen in other consumer

cases.13 App. 6a; see also Keil v. Lopez, 862 F.3d 685,

687 (8th Cir. 2017) (noting that low claims rates are

“hardly unusual” in consumer class actions and do not

“suggest unfairness”) (collecting cases). Neither court

ignored Rule 23(e)(2).

II.

The questions presented are fact-bound

and unworthy of review under Rule 10, and Petitioner’s broad objections to cy pres were not

raised below and, in many cases, are not implicated by this case.

This case does not merit review on the basis of a

circuit split, because there is no circuit split. Nor do

the questions actually implicated by the decision below

merit review on their own because they are fact-bound.

Petitioner may disagree, for example, with the District

Court’s finding that further efforts to identify class

members were infeasible, but that finding was unique

to this case and the record before the District Court.

Likewise, Petitioner may believe that further payments to claimants here would not be a windfall, but

the District Court’s finding in that regard was, by its

13 Below, Petitioner largely cited Rule 23(e)(2) in arguments

that the Parties should have subpoenaed retailers to gather

more information for direct notice efforts. Pet. App. 100a.

But Petitioner did not even argue that the parties’ notice

failed to meet with Rule 23(c)(2)(B)’s notice requirements

for Rule 23(b)(3) class actions. See Pet. App. 23a (“The

Court further reiterates that the Objector is not contending

that the notice plan was inadequate or violated Due Process

….”).

terms, based on the fact-bound “claims and evidence

presented” in this case. Pet. 30a.

Recognizing this hurdle, Petitioner spends the back

half of her Petition outlining several broad questions

she claims the Court should address regarding cy pres.

But none of those questions require this Court’s review, and many are not implicated by this case.

The per se permissibility of cy pres awards

is not at issue in this case.

Petitioner first argues that this Court should use

this case as a vehicle to “sharply curtail if not flatly

prohibit application of the cy pres doctrine to class-action settlements.” Pet. 21; see also Pet. i (describing

the question presented as “whether, or in what circumstances” a court may approve cy pres distributions).

But the question whether cy pres distributions should

be permitted at all is not at issue in this case. Petitioner did not argue below that cy pres distributions

are per se impermissible (despite being represented by

the same counsel), nor whether the Eighth Circuit’s legal standard should be revisited. Instead, she disputed whether this case met with the Eighth Circuit’s

requirements for cy pres. This case is therefore not a

good vehicle to address whether the Court should

“sharply curtail” or “prohibit” the use of cy pres to distribute unclaimed funds. See Travelers, 549 U.S. at

455.

Petitioner also alludes to the Chief Justice’s statement a decade ago in Marek v. Lane, 571 U.S. 1003,

1003 (2013) (Marek) that this Court “may need to clarify the limits” on cy pres in a “suitable case.” Pet. 21.

This is not a suitable case, because it does not raise

many questions that Marek pointed to. The cy pres recipients in this case, for example, are well-established

entities, and this case would thus present no occasion

to address “whether new entities may be established

as part of such relief.” Marek, 571 U.S. at 1003. Nor

was there any challenge, by Petitioner or otherwise, to

how the parties selected the cy pres recipients, their

nexus to this case, or the District Court’s role in that

process. See ibid. (questions the Court may want to

address include “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; and so on”).

Whether cy pres in the class-action context

is analogous to the trust context is irrelevant.

Petitioner’s argument that cy pres developed in the

trust context and does not “fit” in the class-action context (Pet. 21-22) is intellectually interesting, but it presents no meaningful question for this Court’s review.

The doctrine has been used in class actions for decades. And, as the discussion above shows, there is a

well-developed body of case law about its use in that

context to guide district courts’ analysis. Any supposed mismatch between trust law and class-actions is

theoretical, at best.

This case does not raise Petitioner’s concerns about misplaced incentives.

Petitioner spends two pages arguing that cy pres

can create improper incentives for class counsel. Pet.

22-24. But, as Petitioner herself concedes, she “did not

raise issues of similar conflicts in this case.” Pet. 24.

Nor is there any evidence of a conflict here. This question, too, is not properly before the Court for review in

this case.

Regardless, Petitioner’s suggestion that cy pres

poses some unique risk of conflict between class counsel and class members is unsupported. Certainly,

there are principal-agent problems inherent in classaction cases (and, to some extent, in all cases). See

Nicholas A. Bergara, Nipping it in the Bud: Fixing the

Principal-Agent Problem in Class Actions by Looking

to Qui Tam Litigation, 97 NYU L. Rev. 275, 278 (2022)

(“[T]he very foundation of the class action system generates an inherent conflict of interest between class

counsel and class plaintiffs….”). But there is already

well-established law requiring district courts to scrutinize class-action settlements and independently determine whether they are fair, reasonable, and adequate. See, e.g., 23(e)(2); Newberg & Rubinstein on

Class Actions § 13:40 (summarizing the case law on

the court’s role in ensuring “that the class’s own

agents—its class representatives and class counsel—

have not sold out its interests in settling the case”).

Petitioner offers no reason why these standards are illsuited to cy pres in particular. And, as discussed infra,

her own authorities suggest that courts do not hesitate

to step in if they feel the parties have prematurely resorted to cy pres distributions. There is no split of authority on this question, and it was not presented in

this case, so this Court should not review it here.

Courts have uniformly rejected

tioner’s First Amendment arguments.

Peti-

Petitioner and her counsel—echoed by amici—have

raised the same First Amendment argument set forth

in the Petition with courts around the country. Those

courts have uniformly rejected it. See Pet. App. 9a10a, 31a-32a, Motor Fuel, 872 F.3d at 1113-14; Google

Street View, 21 F.4th at 1118-19; Navient, 48 F.4th at

122; In re Polyurethane Foam Antitrust Litig., 178 F.

Supp. 3d 621, 624 (N.D. Ohio Apr. 13, 2016) (“CCAF’s

briefing on this novel issue is long on reasoning but

noticeably short on supporting case law.”); Perkins v.

Linkedin Corp., 2016 WL 613255, at *11 n.9 (N.D. Cal.

Feb. 16, 2016).

There are two reasons for courts’ unanimous rejection of the argument.

First, in cases like this one, there is no relevant

state action that could violate the First Amendment—

it is the parties’ settlement agreement, not the court,

that designates the recipients. See Navient, 48 F.4th

at 122 (“The settlement agreement does not involve

state action that implicates the First Amendment.”);

Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (“Mere

approval or acquiescence in the initiatives of a private

party is not sufficient to justify holding the State responsible for those initiatives ….”).

Second, even if there were state action, there is no

“compelled” speech because any class member who

wishes to avoid “subsidizing” the cy pres recipients

“can simply opt out of the class.” Google Street View,

21 F.4th at 1118.

This Court recognized more than 30 years ago that

an opt-out mechanism is enough to protect class members’ rights so long as certain “minimal due process

protection[s]” are provided, including notice, an opportunity to be heard, opt-out rights, and adequate representation. Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 811-12 (1985). When those protections are provided—as they were here—absent class members are

deemed by operation of Rule 23 to have consented to

the class representatives acting on their behalf. Id. at

812-13. There is no reason, and no basis in the case

law, that such consent would not include the designation of cy pres recipients.14 And there is no reason for

this Court to take up a First Amendment argument

that the lower courts have unanimously concluded

lacks merit.

Other cases in which courts have rejected

premature cy pres distributions show only that

this Court need not intervene.

Petitioner cites several cases in which courts held

that cy pres distributions were improper and additional funds were later distributed to class members.

Pet. 26-28. But those cases show only that courts are

effectively scrutinizing settlements to identify those

instances in which further distributions to class members are feasible and fair. Those case apply settled law

to different facts—they do not suggest any legal conflict this Court should resolve.

In Baby Products, for example, the parties did not

provide the district court with any information on the

amount of compensation distributed directly to the

class. 708 F.3d at 175. And as the Third Circuit explained, most claimants were receiving less than

10 percent of their estimated damages. Id. at 176. It

is thus no surprise that more payments were made to

class members on remand. But that is a far cry from

this case. Here, the claims administrator provided the

district court with detailed information on the number

14 In its amicus brief, the Manhattan Institute argues that

this Court should revisit Shutts and consider whether to allow opt-out class actions at all. Manhattan Institute Amicus Br. 6-9. But no party argued—either below or in the

Petition—that the opt-out class actions permitted by Rule

23(b)(3) are improper. That question simply is not presented by this case.

and amount of claims. D. Ct. Doc. 65-2 ¶ 22 (February

5, 2021). And no one disputes that claimants will receive more than three times Plaintiffs’ estimate of

best-case damages. D. Ct. Doc. 50-1 ¶¶ 7-8 (March 23,

2020).

Petitioners’ other cases likewise reflect much different facts than this case, where it was clear that further distributions to non-claiming class members were

feasible. In Pearson v. NBTY, Inc., for example, the

Seventh Circuit explained that the parties knew the

identities and contact information for millions of class

members that had not received payments, so that it

was plainly feasible to make further distributions. 772

F.3d 778, 784 (7th Cir. 2014) (the cy pres recipient was

“entitled to receive money … only if it’s infeasible to

provide that compensation to victims—which has not

been demonstrated.”). The same was true in In re

Bayer Corp., when the parties had purchase records

and contact information for 700,000 class members

and thus could feasibly distribute funds to them. No.

09-md-2023, Dkt. 218 at 1 (E.D.N.Y. Mar. 1, 2013).

And the same was true in Pecover v. Electronic Arts

(Pecover), when the parties knew names and addresses

for 141,188 class members. 2013 WL 12121865, at *2

(N.D. Cal. May 30, 2013). That is not the situation

here. Nothing in the record suggests that the parties

have names, contact information, or purchase records

for non-claiming class members that they have not

tried to contact.15

15 Despite lacking such information, and without the Dis-

trict Court’s prompting, the parties purchased a list of millions of likely class members and sent them direct email no-

These cases show that courts are already scrutinizing class-action settlements and requiring further distributions to class members when they are receiving

less than full compensation or there are feasible means

to increase the number of claimants. That does not

suggest error in this case nor any legal conflict between this decision and others.

Petitioner’s claims of forum-shopping are

unfounded.

Because Petitioner’s claimed circuit split is illusory, her argument that this circuit split will lead to

forum shopping makes little sense. She points to no

evidence, nor even anecdotal examples, of class lawyers choosing their forum based on the law around cy

pres. Her citations to a few cases in which the Ninth

Circuit approved cy pres provisions do not suggest that

plaintiffs are forum-shopping to move forward in the

Ninth Circuit or, even if they are, that it has anything

to do with the rules surrounding cy pres. In fact, her

own authority shows that courts in that circuit, like in

every circuit, have closely scrutinized allocation plans.

See Pecover, 2013 WL 12121865, at *2 (cited at Pet.

27). That Petitioner can offer no evidence of forum

shopping confirms that the supposed “fracture” among

the courts of appeals is illusory.

CONCLUSION

There is no circuit split along the dimensions argued by Petitioner, and certainly none that the courts

tices twice in an attempt to ensure they had every opportunity to make claims. D. Ct. Doc. 58-2 ¶¶ 12-16 (October

14, 2020).

of appeals have recognized. The District Court’s findings here would have warranted settlement approval

in any federal court. Every court that has considered

Petitioner’s First Amendment argument has roundly

rejected it. And Petitioner’s attacks on the theoretical

dangers of cy pres in skewing courts and parties’ incentives were not raised below and, in any event, are not

implicated by this case. The Court should deny the

Petition.

Respectfully submitted.

JOHN J. ROSENTHAL

Counsel of Record

WINSTON & STRAWN LLP

1901 L Street, N.W.

Washington, DC 20036

(202) 282-5000

jrosenthal@winston.com

JEFF WILKERSON

WINSTON & STRAWN LLP

300 S. Tryon Street

Charlotte, NC 28202

(704) 350-7700

Counsel for Respondent Monsanto Company

FEBRUARY 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.