Opposition Brief — Eric Alan Isaacson, Petitioner v. Meta Platforms, Inc., fka Facebook, Inc.

No. 24-259

In the

Supreme Court of the United States

ERIC ALAN ISAACSON,

Petitioner,

v.

META PLATFORMS, INC., FKA

FACEBOOK, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

PERRIN DAVIS, BRIAN LENTZ, CYNTHIA

QUINN, MATTHEW VICKERY, RYAN UNG,

CHI CHENG AND ALICE ROSEN TO

PETITION FOR A WRIT OF CERTIORARI

David A. Straite

Counsel of Record

DiCello Levitt LLP

485 Lexington Avenue,

Suite 1000

New York, NY 10017

dstraite@dicellolevitt.com

(646) 933-1000

A dam J. Levitt

A my E. Keller

A dam Prom

DiCello Levitt LLP

Ten North Dearborn Street,

Sixth Floor

Chicago, IL 60602

334530

Stephen G. Grygiel

Grygiel Law LLC

127 Coventry Place

Clinton, New York 13323

Jason “Jay” Barnes

Eric Johnson

Simmons Hanly

Conroy LLP

112 Madison Avenue,

Seventh Floor

New York, NY 10016

Counsel for Respondents

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

On November 10, 2022, after eleven years of litigation,

the United States District Court for the Northern District

of California approved an historic privacy class action

settlement resolving multiple claims under California state

law, and one federal law. The settlement provided a firstof-its-kind nationwide injunction requiring Respondent

Meta Platforms, Inc. to delete data that plaintiffs contend

was unlawfully collected, an injunction that the District

Court hoped would be a “game changer” for the industry.

The settlement also provided for a $90 million common

fund for distribution to the class, which plaintiffs’ damages

expert calculated to be full disgorgement of the unjust

enrichment plaintiffs could have proven at trial under

California law. At the time, this common fund was the

seventh-largest data privacy class action settlement in

history. The settlement of the federal action also resolved

a parallel state court action.

The District Court then awarded a percentage of the

common fund to counsel and approved service awards

for the seven lead plaintiffs (the individual respondents

here) ranging from $3,000 to $5,000, for their eleven years

of service to the class. Following an objector appeal, a

unanimous panel of the United States Court of Appeals

for the Ninth Circuit affirmed the District Court, and the

full Ninth Circuit denied en banc review.

The questions presented by Objector-Petitioner are:

1. In a data privacy class action settlement resolving

pr imar ily California state law claims and

establishing a $90 million common fund, did the

ii

District Court impermissibly approve service

awards to the lead plaintiffs for their eleven years

of service to the class?

2. In a data privacy class action settlement resolving

pr imar ily California state law claims and

establishing a $90 million common fund, did the

District Court impermissibly calculate counsel

fees based on a percentage of the common fund?

iii

PARTIES TO THE PROCEEDING

Eric Alan Isaacson, Esq., the Petitioner, was an

objector to the class action settlement.

Individual Respondents Perrin Davis, Brian Lentz,

Cynthia Quinn, Matthew Vickery were the lead plaintiffs

in the federal action, In re Facebook Internet Tracking

Litigation, 5:12-md-02314-EJD (N.D. Cal.).

Individual Respondents Ryan Ung, Chi Cheng and

Alice Rosen were the lead plaintiffs in the parallel state

court action, Ung, et al. v. Facebook, Inc., No. 112-cv217244 (Santa Clara Superior Court).

Respondent Meta Platforms, Inc. (f/k/a Facebook,

Inc.) was the sole defendant in the federal and state court

actions.

Respondents Sarah Feldman and Hondo Jan were

objectors in the District Court and filed appeals in the

Ninth Circuit. Neither joined Isaacson as Petitioners here.

iv

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

I.

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . 1

II. T H E PA R T I E S E X T E N S I V E LY

MEDIATED WITH A RESPECTED

NEUTRAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. THE SETTLEMENT, THE CLAIMS

PRO CE S S , A N D T H E DIST RIC T

COURT’S APPROVAL . . . . . . . . . . . . . . . . . . . . . 3

IV. THE COURT OF APPEALS FOR THE

NINTH CIRCUIT A FFIRMS THE

SETTLEMENT AND OVERRULES

THE OBJECTORS’, INCLUDING THE

PETITIONER’S, CONTENTIONS . . . . . . . . . . 6

REASONS TO DENY THE PETITION . . . . . . . . . . . . 7

v

Table of Contents

Page

I.

THIS CA SE IS NOT A SUITA BLE

VEHICLETORULEONTHEPROPRIETY

OF SERVICE AWARDS TO PLAINTIFFS

IN CLASS ACTION SETTLEMENTS . . . . . . . 7

A. PETITIONER’S ASSERTION OF

A LOPSIDED CIRCUIT SPLIT

I S L I K E L Y T O R E S O LV E

ITSELF WITHOUT SUPREME

COURT INTERVENTION . . . . . . . . . . . . . 8

B. PETITIONER IS SEEKING AN

A DVISORY OPINION M A KING

THIS CASE A N UNSUITA BLE

VEHICLE FOR THIS COURT TO

ADDRESS SERVICE AWARDS . . . . . . . 10

C. JOHNSON IS AN OUTLIER AND

THIS COURT SHOULD ABSTAIN

AT LEAST UNTIL THE LAW IS

MORE FULLY DEVELOPED . . . . . . . . . 13

D. THE 11TH CIRCUIT SHOULD

RECONCILE JOHNSON’ S

P R O H I BI T I O N W I T H E R I E

DOCTRINE PRINCIPLES BEFORE

THIS COURT STEPS IN . . . . . . . . . . . . . 17

vi

Table of Contents

Page

E. SERVICE AWARDS SHOULD BE

FIRST ADDRESSED BY THE RULES

COMMITTEE OR CONGRESS . . . . . . . . 19

II. PETITIONER’S REQUEST FOR AN

ADVISORY OPINION REGARDING

C OU NSEL F EE S SHOU L D BE

REJECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

vii

TABLE OF CITED AUTHORITIES

Page

Cases

American Axle & Mfg., Inc. v. Neapco Holdings, LLC,

977 F.3d 1379 (Fed. Cir. 2020) . . . . . . . . . . . . . . . . . . . 7

Arnold v. State Farm Fire and Cas. Co.,

2023 WL 7308098 (S.D. Ala. Nov. 6, 2023) . . . . . . . 17

Bell Atl. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Berry v. Schulman,

807 F.3d 600 (4th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 11

Boeing Co. v. Van Gemert,

444 U.S. 472 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Broughton v. Payroll Made Easy, Inc.,

2021 WL 3169135 (M.D. Fla. July 27, 2021) . . . . . . . 16

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 8

Cellphone Termination Fee Cases,

186 Cal. App. 4th 1380 (2010) . . . . . . . . . . . . . . . . . . . 18

Central Railroad & Banking Co. v. Pettus,

113 U.S. 116 (1885) . . . . . . . . . . . 9, 10, 12, 14, 15, 17, 18

viii

Cited Authorities

Page

Chafin v. Chafin,

568 U.S. 165 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chicago v. Morales,

527 U.S. 41 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

China Agritech, Inc. v. Resh,

584 U.S. 732 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cook v. Niedert,

142 F.3d 1004 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 14

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Denning v. Mankin Law Grp., P.A.,

2022 WL 16956527 (M.D. Fla. Nov. 15, 2022) . . . . . 18

Dozier v. DBI Services, LLC,

2021 WL 6061742 (M.D. Fla. Dec. 22, 2021) . . . . . . 16

Flast v. Cohen,

392 U.S. 83 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fikes Wholesale, Inc. v. HSBC Bank USA, N.A.,

62 F.4th 704 (2d Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 13

Fresno County Employees’ Ret. Ass’n v.

Isaacson/Weaver Fam. Tr.,

925 F.3d 63 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . 22

ix

Cited Authorities

Page

Green v. FCA US LLC,

2022 WL 3153777 (E.D. Mich. Aug. 8, 2022) . . . . . . . 4

Guyton v. Abrahamsen Gindin LLC,

2023 WL 1824652 (M.D. Fla. Jan. 10, 2023) . . . . . . 18

Halcom v. Genworth Life Ins. Co.,

2022 WL 2317435 (E.D. Va. June 28, 2022) . . . . . . . 10

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 6

Hawes v. Macy’s Inc.,

2023 WL 8811499 (S.D. Ohio Dec. 20, 2023) . . . . . . 14

Holbein v. TAW Enters., Inc.,

983 F.3d 1049 (8th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 8

Houston Specialty Ins. Co. v. Vaughn,

749 Fed. App’x 800 (11th Cir. 2018) . . . . . . . . . . . . . . 23

Hunter v. CC Gaming, LLC,

2020 WL 13444208 (D. Colo. Dec. 16, 2020) . . . . . . 18

In re Apple Inc. Device Performance Litig.,

50 F.4th 769 (9th Cir. 2022) . . . . . . . . . . . . . . . . . 13, 14

In Re: Checking Account Overdraft Litig.,

2022 WL 472057 (11th Cir. Feb. 16, 2022) . . . . . 15, 16

x

Cited Authorities

Page

In re Deepwater Horizon,

739 F.3d 790 (5th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 8

In re Equifax Inc. Customer Data Sec. Breach

Litig.,

999 F.3d 1247 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . 13

In re Facebook, Inc. Internet Tracking Litig.,

956 F.3d 589 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . 1, 18

In re Rodriguez,

695 F.3d 360 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 8

Johnson v. Bottling Grp., LLC,

2024 WL 889260 (11th Cir. 2024) . . . . . . . . . . . . . . . 16

Johnson v. NPAS Sols., LLC,

975 F.3d 1244 (11th Cir. 2020),

reh’g en banc denied, 43 F. 4th 1138

(11th Cir. 2022), cert denied sub nom.

Johnson v. Dickenson, 143 S. Ct. 1745 (2023),

and sub nom. Dickenson v. Johnson,

143 S. Ct. 1746

(2023) . . . 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21

Junior v. Infinity Ins. Co.,

2022 U.S. Dist. LEXIS 154082

(M.D. Fla. Aug. 26, 2022) . . . . . . . . . . . . . . . . . . . . . . 17

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

xi

Cited Authorities

Page

Mannino v. McKee Auto Ctr., Inc.,

2024 WL 4884440 (S.D. Iowa Sept. 5, 2024) . . . . . . . 8

Marbury v. Madison,

1 Cranch 137, 5 U.S. 137, 21 L.Ed. 60 (1803) . . . . . . 21

Marek v. Chesney,

473 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Melito v. Experian Mktg. Sols., Inc.,

923 F.3d 85 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . 13

Microsoft Corp. v. Baker,

582 U.S. 23 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Middleton v. Halliburton Energy Servs., Inc.,

2024 WL 1930691 (E.D. Cal. May 2, 2024) . . . . . . . 14

Mongue v. Wheatleigh Corp.,

2024 WL 1659724 (D. Mass. Apr. 16, 2024) . . . . . . . 19

Monrosa v. Carbon Black Export, Inc.,

359 U.S. 180 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Moody v. NetChoice, LLC,

U.S.

,

144 S. Ct. 2383 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Moses v. The New York Times Co.,

79 F. 4th 235 (2d Cir. 2023) . . . . . . . . . . . . . . . . . 13, 19

xii

Cited Authorities

Page

Moyle v. United States,

603 U.S.

, 144 S. Ct. 2015, 2023 (Mem.) (2024) . . . . . 10

Mullen v. Treasure Chest Casino, LLC,

186 F.3d 620 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 8

Muransky v. Godiva Chocolatier, Inc.,

922 F.3d 1175 (11th Cir. 2019), rev’d on different

grounds, 979 F.3d 917 (11th Cir. 2020) . . . . . . . . . . . 15

Murray v. Grocery Delivery E-Services USA, Inc.,

55 F.4th 340 (1st Cir. 2022) . . . . . . . . . . . . . . . . . . 13, 19

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Rogers v. Grewal,

140 S. Ct. 1865 (Mem.) (2020) . . . . . . . . . . . . . . . . . . . 7

Roth v. Geico Gen. Ins. Co.,

2020 WL 10818393 (S.D. Fla. Oct. 8, 2020) . . . . . . . 17

Schiavone v. Fortune,

477 U.S. 21 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

xiii

Cited Authorities

Page

Scott v. Dart,

108 F.4th 931 (7th Cir. 2024) . . . . . . . . . . . . . 12, 13, 19

Sinkfield v. Persolve Recoveries, LLC,

2023 WL 511195 (S.D. Fla. Jan. 26, 2023) . . . . . . . . 16

Smith v. Progressive Select Ins. Co.,

2023 U.S. Dist. LEXXIS 58227

(S.D. Fla. Mar. 31, 2023) . . . . . . . . . . . . . . . . . . . . . . . 17

Tims v. LGE Cmty. Credit Union,

2023 WL 11915734 (N.D. Ga. Nov. 29, 2023) . . . . . . 17

Transunion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Trustees v. Greenough,

105 U.S. 527 (1882) . . . . . . . . . . . 9, 10, 12, 14, 15, 17, 18

United States v. Campbell,

26 F. 4th 860 (11th Cir.) (en banc), cert denied,

143 S. Ct. 95 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 12, 21

Venerus v. Avis Budget Car Rental, LLC,

2023 WL 4673481 (M.D. Fla. May 23, 2023),

report and recommendation adopted,

2023 WL 4673481 (M.D. Fla. May 25, 2023) . . . . . . 17

xiv

Cited Authorities

Page

Wickens v. Thyssenkrupp Crankshaft Co., LLC,

2021 WL 267852 (N.D. Ill. Jan. 26, 2021) . . . . . . . . . . 9

Wood v. Saroj & Manju Invs. Phila. LLC,

2020 WL 7711409 (E.D. Pa. Dec. 28, 2020) . . . . . . . 10

Statutes, Rules and Other Authorities

Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . 6, 7, 9, 19, 20, 21

Fed. R. Civ. P. 23(b)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fed. R. Civ. P. 23(c)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fed. R. Civ. P. 23(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(e)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . 19

Fed. R. Civ. P. 23(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fed. R. Civ. P. 23(g)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(g)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(g)(1)(D) . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(g)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

xv

Cited Authorities

Page

Fed. R. Civ. P. 23(g)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Civ. P. 23(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

P. Bronte, et al., “‘Car ving at the Joints’:

The P recise Function of Rule 2 3(c)(4),

62 DePaul L. Rev. 745 (2013) . . . . . . . . . . . . . . . . . . . . 8

uscourts.gov/rules-policites/about-rulemakingprocess/committee-membership-selection

(last visited Dec. 9, 2024) . . . . . . . . . . . . . . . . . . . . . . 20

1

STATEMENT OF THE CASE

I.

FACTUAL BACKGROUND

A decade in the making, the path to final approval

of this historic settlement began in 2012 with an MDL

Transfer Order and consolidation of 24 separate actions.

Pet.App.7a-8a. Plaintiffs alleged that Facebook (now

known as Meta) tracked class members’ internet use

through “cookies” associated with web browsing activity

while they were logged out of the Facebook accounts,

despite Facebook’s representation that it would not receive

user-identifying information of logged out users. Id. at 8a.

The District Court dismissed the case on standing

and other grounds, and Plaintiffs filed, briefed, and

argued an appeal to the United States Court of Appeals

for the Ninth Circuit. That appeal resulted in a ruling

of first impression in the Ninth Circuit that “Facebook

is not exempt from liability as a matter of law under the

Wiretap Act or CIPA as a party to the communication.”

In re Facebook, Inc. Internet Tracking Litig., 956 F.3d

589, 608 (9th Cir. 2020). Further, that ruling found that

Plaintiffs had sufficiently alleged economic harm related

to the alleged violation of California state law in the form

of a right to disgorgement of unjust profits. Id. Defendant

filed a petition for a writ of certiorari to the United States

Supreme Court on the Wiretap Act issue, which Plaintiffs

opposed, and the Court denied. Pet.App.8a. The case was

then remanded with seven California state law claims and

one federal claim remaining for litigation.

2

II. THE PARTIES EXTENSIVELY MEDIATED

WITH A RESPECTED NEUTRAL

Following substantial discovery, Plaintiffs and

Defendant agreed to mediate the case before Randy Wulff,

a highly respected mediator. Pet.App.9a. The Plaintiff

mediation team included lead counsel in the MDL; a

representative of counsel for the parallel California state

court action; and the former Hawai’i Attorney General.

In light of the Ninth Circuit’s ruling on disgorgement and

other monetary remedies under California law, Plaintiffs

engaged an economic consultant to perform economic

analyses of several alternative damages models, including

net profits attributable to the information Plaintiffs

contend Defendant improperly collected; royalty value of

a license to monitor Internet browsing; and restitution

models.

Having briefed their positions for Mr. Wulff, the

parties engaged in mediation over the course of multiple

sessions in the Spring and Summer of 2021. Mr. Wulff

helped guide substantial additional document discovery

in aid of mediation. The Parties then agreed to accept a

Mediator’s proposal and reached a settlement agreement

in principle. The parties then spent approximately

six months negotiating the contours of the injunctive

relief, vetted claims administrators, and evaluated and

confirmed the class member data set to transfer for claims

processing. Pet.App.15a.

3

III. THE SETTLEMENT, THE CLAIMS PROCESS,

AND THE DISTRICT COURT’S APPROVAL

The settlement provides the following key terms:

(1) Monetary Consideration—$90 million in a nonreversionary settlement fund, Pet.App.9a;

(2) Injunctive Relief—Defendant has sequestered and

is required to expunge the data Plaintiffs alleged was

impermissibly gathered, subject only to preservation of

that data in a restricted-access location for this litigation

pending final judgment and dismissal of all appeals and

pledged not to use that data for any other purposes, Pet.

App.9a-11a;

(3) Notice—class counsel employed a “belt and

suspenders” approach that included publication notice and

direct email notice, PetApp.12a-13a, 16a-17a;

(4) Settlement Class Definition—all persons who,

between April 22, 2010 and September 26, 2011, inclusive,

were Facebook Users in the United States that visited

non-Facebook websites that displayed the Facebook Like

button, with no attestation requirement that settlement

class members with active accounts affirmatively state

that they visited non-Facebook pages containing the

Facebook Like button, Pet.App.9a;

(5) Service Awards—the named plaintiffs in the

federal court action and in the state court action could

receive service awards upon class counsel’s application to

the court (amount of the request may not exceed $5,000

per named plaintiff), Pet.App.10a;

4

(6) Arms-Length Settlement—the settlement was

not conditioned on the court’s award of attorneys’ fees or

expenses or any service awards, Pet.App.15a.

On March 31, 2022, following briefing and a hearing,

the District Court granted preliminary approval of the

settlement and authorized dissemination of class notice,

finding that the settlement satisfied the requirements

under Fed. R. Civ. 23. Pet.App.17a-18a. Comprehensive

and understandable, the notices were jointly drafted by

the parties and carefully reviewed by the District Court.

The District Court found the proposed notice procedures

provided the best notice practicable and were reasonably

calculated to apprise Class Members of the Settlement and

their rights to object or exclude themselves. Pet.App.17a.

Besides finding the notice program not just appropriate

but impressive, at the final approval hearing, the District

Court heard extensive argument for nearly three hours

from Plaintiffs, Defendant, and objectors (including the

Petitioner here). The District Court then made some

observations on the record, including:

• “The $90 million is a lot of money. . . . And I cannot

untether that with the injunctive relief. . . . I’ve

never seen a case that had that injunctive relief

where the party was, according to the settlement,

they have agreed that we will delete, we’ll destroy

that data. That’s significant. . . . That in and of itself

is hopefully a game changer for the industry, and

to inform the public, much like the Ninth Circuit

informed the legal community about one of the

issues in this case.” (emphasis added). District Court

Dkt. No. 290, Tr. 106:11-107:9.

5

• “$39, in today’s world, $39 is—that’s significant. . . .

and that recovery I do think provides additional

faith in Rule 23 for the affected class members and

the public. . .”. Tr. 108:21-109:6.

On November 10, 2022, the District Court issued its

order granting the motion for final settlement approval,

granting the motion for attorneys’ fees, expenses, and

service awards, and overruling the objectors’ (including

the Petitioner’s) objections and arguments. Pet.App.6a. As

to the motion for fees, expenses, and service awards, the

District Court (1) awarded as fees 29% of the settlement

fund, after considering whether a modest upward

adjustment from the 25% benchmark was appropriate,

particularly where Plaintiffs achieved a change in the

law, and analyzing the request through a lodestar crosscheck; (2) awarded reasonable out- of-pocket costs to class

counsel, after noting that none of the objectors opposed the

costs; and (3) awarded seven service awards to the named

plaintiffs ($5,000 to some of the plaintiffs and $3,000 to

others, totaling $29,000 (i.e., a fraction of a fraction of 1%

of the settlement fund)), after noting that they represented

the data privacy interests of more than 124 million others

“for over a ten year period with very little personally to

gain.” Pet.App.35a.

Three objectors, including Petitioner, subsequently

appealed the District Court’s final approval of the

settlement to the Court of Appeals for the Ninth Circuit.

6

IV. THE COURT OF APPEALS FOR THE NINTH

CIRCUIT AFFIRMS THE SETTLEMENT AND

OVERRULES THE OBJECTORS’, INCLUDING

THE PETITIONER’S, CONTENTIONS

Following briefing and oral argument, the Ninth

Circuit on February 21, 2024 issued an opinion affirming

in full the District Court’s approval of the settlement.

Pet.App.1a. In doing so, the Ninth Circuit reached the

following conclusions: (1) the district court applied the

correct legal standard under Fed. R. Civ. P. 23 and

the factors set forth in Hanlon v. Chrysler Corp., 150

F.3d 1011 (9th Cir. 1998) for whether a class-action

settlement is “fair, reasonable, and adequate”; (2) the

district court did not abuse its discretion by determining

that the $90-million settlement—in conjunction with

injunctive relief benefitting the entire class—was fair and

reasonable; (3) the district court did not impermissibly

apply a “presumption of fairness” to the settlement; (4)

the district court did not abuse its discretion in finding

the proposed attorneys’ fees reasonable and “well within

the permissible bounds of this Circuit’s decisions”; (5)

“awarding modest service awards of $3,000 to $5,000

each to seven named Plaintiffs was also not an abuse of

discretion”; and (6) class notice of settlement comported

with Rule 23 and constitutional due process. Pet.App.3a5a.

7

REASONS TO DENY THE PETITION

I.

THIS CASE IS NOT A SUITABLE VEHICLE

TO RULE ON THE PROPRIETY OF SERVICE

AWARDS TO PLAINTIFFS IN CLASS ACTION

SETTLEMENTS

The instant case is an unsuitable vehicle for this

Court to address the propriety of service awards to class

representatives under Fed. R. Civ. P. 23. This Court “often

grants certiorari to resolve circuit splits that render the

state of the law inconsistent and chaotic.” American Axle

& Mfg., Inc. v. Neapco Holdings, LLC, 977 F. 3d 1379, 1382

(Fed. Cir. 2020) (citing cases). Here, the only jurisdiction in

which the law is “inconsistent” is a single outlier, the 11th

Circuit, in which the law of service awards is still unsettled

and developing; the case Petitioner frames for decision

bears no relationship to the actual facts, rendering any

opinion this Court would render purely advisory; and

any ruling by the Court on the service awards at issue

would have no effect on the overall settlement. Petitioner

presents the wrong case, at the wrong time, for this Court

to take up the service awards issue.

Decisional evolution within the 11th Circuit, and

the robust rejection of Johnson by other Circuits and

district courts, counsels this Court’s abstention until the

asserted “Circuit conflict” runs its course, resolves itself

or becomes much more squarely presented. Cf. Rogers

v. Grewal, 140 S. Ct. 1865 (Mem.) (2020) (Thomas, J.

dissenting from denial of certiorari) (canvassing seriously

inconsistent state of Second Amendment law in context of

directly applicable Supreme Court precedents). The 11th

Circuit is the only Circuit in which the state of the law

8

concerning service awards is inconsistent—and one of

recent vintage and may resolve itself,1 and no good reason

merits this Court’s involvement now.

A.

PETITION ER’ S A S SERTION OF A

LOPSIDED CIRCUIT SPLIT IS LIKELY TO

RESOLVE ITSELF WITHOUT SUPREME

COURT INTERVENTION

Relying on Johnson v. NPAS Sols., LLC, 975 F.3d 1244

(11th Cir. 2020), reh’g en banc denied, 43 F. 4th 1138 (11th

Cir. 2022), cert denied sub nom. Johnson v. Dickenson, 143

S. Ct. 1745 (2023), and sub nom. Dickenson v. Johnson,

143 S. Ct. 1746 (2023), Petitioner asserts “the circuits

1. The question of “issue class certification” under Fed. R. Civ.

P. 23(c)(4) is another example of the wisdom of letting a disparity

in legal rules work itself out through the lower courts. The Fifth

Circuit’s initial rejection of “issue class certification” in Castano

v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996), was followed by

Circuit court opinions elsewhere disagreeing with Castano. The

Fifth Circuit subsequently backed away from Castano (see, e.g.,

In re Rodriguez, 695 F.3d 360 (5th Cir. 2012), Mullen v. Treasure

Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999)), and finally

appeared to abandon Castano. See In re Deepwater Horizon,

739 F.3d 790 (5th Cir. 2014). The post-Castano cases led one

commentator to say that the circuit split Castano had created

“has all but vanished.” P. Bronte, et al., “‘Carving at the Joints’:

The Precise Function of Rule 23(c)(4), 62 DePaul L. Rev. 745,

745-46 (2013)). Another example of a circuit split resolving itself

is the “forum-defendant rule.” See Mannino v. McKee Auto Ctr.,

Inc., 2024 WL 4884440, at *1, n.1 (S.D. Iowa Sep. 5, 2024) (citing

Holbein v. TAW Enters., Inc., 983 F.3d 1049, 1053 (8th Cir. 2020),

as “eliminating a ‘lopsided circuit split’ by holding that the forumdefendant rule is waivable, aligning with every other Circuit on

the issue”).

9

are now in clear conflict” (Pet.15) concerning whether

the 142-year-old Trustees v. Greenough, 105 U.S. 527

(1882), and the 139-year-old Central Railroad & Banking

Co. v. Pettus, 113 U.S. 116 (1885) govern the question of

whether Courts may approve “payments from commonfund recoveries to compensate litigants for their service

as representative plaintiffs, and to encourage others to

file even more class actions.” Pet.15.

But, until Johnson, no Circuit Court had ever applied

Greenough and Pettus categorically to prohibit service

awards. Only one Circuit, the 11th, over a vigorous and

well-reasoned dissent (Johnson, 975 F.3d at 1264-1269),

and over an equally compelling dissent from the Circuit’s

denial of rehearing en banc (Johnson, 43 F. 4th 1138 (11th

Cir. 2022), has retroactively mapped Greenough and

Pettus onto the modern Fed. R. Civ. P. 23, a Rule that

did not exist when Greenough and Pettus were decided.

Since the recent Johnson decision, every other

Circuit—the First, Second, Seventh and Ninth (see

Pet.17)—that has squarely addressed service awards for

Named Plaintiffs in class actions in light of Johnson has,

upon careful reasoning, expressly rejected Johnson’s

categorical ban on service awards (this is in addition to

this Court’s twice denying petitions to review Johnson

itself, as noted above). District courts in Circuits that

have not expressly addressed Johnson have rejected

Johnson and approved service awards under existing

Circuit precedents. 2

2. See, e.g., Wickens v. Thyssenkrupp Crankshaft Co., LLC,

2021 WL 267852, at * 2 (N.D. Ill. Jan. 26, 2021); Green v. FCA US

LLC, 2022 WL 3153777, at *2 (E.D. Mich. Aug. 8, 2022) (noting

10

B. PETITIONER IS SEEKING AN ADVISORY

O PI N I O N M A K I N G T H I S C A S E A N

UNSUITABLE VEHICLE FOR THIS COURT

TO ADDRESS SERVICE AWARDS

Petitioner pejoratively frames service awards to class

representatives as “bounties” equivalent to “salaries”

prohibited by Greenough and Pettus, as nefarious

incentives used “to recruit representative plaintiffs”

(Pet.13, 15) among other misdeeds.

But Petitioner seriously misrepresents the record

of this case, posits a case or controversy far afield from

the actual record, and invites a ruling that would give no

meaningful guidance to the lower courts, making this case

a seriously poor vehicle for the Court’s analysis of service

awards. Cf. Moyle v. United States, 603 U.S.

, 144 S. Ct.

2015, 2023 (Mem.) (2024) (Jackson, J., concurring in part

and dissenting in part) (“This Court typically dismisses

cases as improvidently granted based on ‘circumstances

. . . which were not . . . fully apprehended at the time

certiorari was granted’” (quoting the Monrosa v. Carbon

Black Export, Inc., 359 U.S. 180, 183 (1959) (cleaned up)).

Here, the case’s actual facts differ materially from those

the Petitioner presents, and the Court should deny the

petition for certiorari in the first place.

6th Circuit has not “expressly disallowed” service awards); Wood

v. Saroj & Manju Invs. Phila. LLC, 2020 WL 7711409, at *5 n.8

(E.D. Pa. Dec. 28, 2020) (noting Johnson but stating “we join our

sister court, the District of New Jersey” in finding precedent

approving service awards); Halcom v. Genworth Life Ins. Co.,

2022 WL 2317435, at *10, *13 (E.D. Va. June 28, 2022) (noting

Johnson but stating “courts in the 4th Circuit have approved

incentive payments”).

11

Petitioner is asking the Court to issue what amounts to

an advisory opinion, tethered only to Petitioner’s personal

conjurings about service awards but unmoored to the

actual facts of this case. See Chafin v. Chafin, 568 U.S.

165, 172 (2013) (“Federal courts may not…give ‘opinions

advising what the law would be upon a hypothetical state of

facts’” (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,

477 (1990) (further citation omitted)). As this Court has often

stated, a “federal court should never issue’” an advisory

opinion. Moody v. NetChoice, LLC,

U.S. , 144 S. Ct.

2383, 2415 (2024) (quoting Chicago v. Morales, 527 U.S.

41, 77 (1999) (Scalia, J., dissenting); Campbell-Ewald Co.

v. Gomez, 577 U.S. 153, 176 (Roberts, C.J., dissenting)

(“prohibition” on advisory opinions “has remained ‘the

oldest and most consistent thread in the federal law of

justiciability’” (quoting Flast v. Cohen, 392 U.S. 83, 96

(1968)).

As the uncontroverted record clearly shows, contrary

to Petitioner’s generalized ruminations about service

awards and speculative divergence of interests between

class members and the Class Representatives, none of

the class representatives in this case were informed

they might be eligible for service awards until after they

reviewed and approved the other terms of settlement.

Pet.App.36a. Nor was the settlement conditioned upon

approval of service awards, in any amount. Thus, the

service awards here assiduously avoided the hypothetical

conflict of interest concerns raised by Petitioner. See

Berry v. Schulman, 807 F.3d 600, 613-14 (4th Cir. 2015)

(no divergence of interest where “incentive awards were

not agreed upon ex ante . . . were not conditioned on the

Class Representatives’ support for the Agreement . . .

were not negotiated until after the substantive terms of

the Agreement had been established”).

12

Ignoring the concrete factual setting of the service

awards in this case, Petitioner invites the court to

adjudicate a “hypothetical or abstract dispute[ ]”

(Transunion LLC v. Ramirez, 594 U.S. 413, 423-24

(2021)) grounded in generalized principles of Petitioner’s

choosing. This Court’s precedents compel declination of

that invitation. Transunion LLC v. Ramirez, 594 U.S.

413, 423-24 (2021). See also id., 594 U.S. at 423 (“Federal

courts do not possess a roving commission to publicly

opine on every legal question.”). See generally United

States v. Rahimi, 602 U.S. 680, 775 (2024) (Thomas, J.,

dissenting) (noting “the dangers of approaches based on

generalized principles”).

Ignoring the facts of the settlement both the District

Court and a Ninth Circuit approved, Petitioner invites this

Court to take up this case and to establish an apodictic rule

based centrally on Johnson’s application of Greenough

and Pettus. But as Judge Easterbrook stated concerning

the petition for rehearing in Scott v. Dart, 108 F.4th 931,

932-33 (7th Cir. 2024), “Johnson does not present the best

argument for curtailing incentive awards.” 3 The instant

case, the actual facts of which Petitioner either ignores or

misrepresents in asking for an advisory opinion, is an even

worse vehicle for this Court’s analysis of service awards.

3. Judge Easterbrook had no difficulty finding Greenough

and Pettus, dealing with “the way multi-party litigation was

handled in the Nineteenth Century,” should not be “conclusive in

the Twenty-First when dealing with a device invented more than

halfway through the Twentieth. Scott v. Dart, 108 F.4th 931, 933

(7th Cir. 2024) (statement on petition for reh’g en banc). Nor did

Judge Easterbrook have any quarrel with the long-established

rule “that it is proper to pay representative plaintiffs for their

contributions toward making class actions work.” Id.

13

A ruling by this Court on the propriety of service awards

will have no effect on the overall settlement, further

highlighting the advisory nature of the ruling Petitioner

seeks. See generally In re Equifax Inc. Customer Data

Sec. Breach Litig., 999 F.3d 1247, 1281-82 (11th Cir. 2021)

(noting that Johnson recognized that service awards were

common, “yet held that two Supreme Court cases from

the 1880s” prohibit them, grudgingly noting that “Johnson

binds us here,” but declining “invitation to vacate the

settlement as a whole” where, as here, settlement approval

was not conditioned upon grant of service awards).

C.

JOHNSON IS A N OUTLIER A ND THIS

COURT SHOULD ABSTAIN AT LEAST

U N T I L T H E L AW I S MOR E F U L LY

DEVELOPED

Every other Circuit to have expressly considered

Johnson’s prohibition on service awards has, with careful

analysis, emphatically rejected Johnson’s rule. See

Murray v. Grocery Delivery E-Services USA, Inc., 55

F.4th 340, 352-53 (1st Cir. 2022) (rejecting argument by

same Petitioner here); Moses v. The New York Times Co.,

79 F. 4th 235, 253-54 (2d Cir. 2023) (rejecting argument by

same Petitioner here);4 Scott v. Dart, 99 F. 4th 1076, 10821088 ((7th Cir. 2024); In re Apple Inc. Device Performance

Litig., 50 F. 4th 769, 785-787 (9th Cir. 2022). No reason

exists to think other Circuits will not follow suit.

4. See also Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85

(2d Cir. 2019) (rejecting same argument by same Petitioner here).

Cf. Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F. 4th 704,

720-21 (2d Cir. 2023) (decided before Moses v. The New York Times

Co., 79 F. 4th 235, 253-54 (2d Cir. 2023) addressing Johnson but

following Second Circuit precedent).

14

Not just the Circuit Courts but this Court, too, has

found service awards can be appropriate. In in China

Agritech, Inc. v. Resh, 584 U.S. 732 (2018), this Court

stated that a “class representative might receive a share

of class recovery above and beyond her individual claim.”

Id. at 747 n.7 (citing Cook v. Niedert, 142 F.3d 1004, 1006

(7th Cir. 1998), as “affirming class representative’s $25,000

incentive award”).

Petitioner tries to minimize China Agritech’s

endorsement of additional payments to class representatives

as “passing dictum” (Pet.22). 5 But Cook, on which China

Agritech’s “passing dictum” relied, squarely addressed

the propriety of the $25,000 service award in that case

and approved it. As Petitioner notes (Pet.23), courts have

cited that endorsement in approving service awards. See,

e.g., In re Apple Inc. Device Performance Litig., 50 F.4th

769, 785 (9th Cir. 2022); Middleton v. Halliburton Energy

Servs., Inc., 2024 WL 1930691, at * 8 (E.D. Cal. May 2,

2024); Hawes v. Macy’s Inc., 2023 WL 8811499, at *13 (S.D.

Ohio Dec. 20, 2023) (rejecting Johnson, and citing China

Agritech for proposition “Supreme Court has hinted at

[service awards] validity”).

It is entirely reasonable to expect that other courts

will accept China Agritech’s endorsement of the principle

that class representatives can be entitled to greater

recoveries than other class members and that this single5. Petitioner argues that China Agritech neither cited nor

discussed Greenough and Pettus. (Pet.22). That is likely because

the Court correctly understood that “those cases have nothing to

say about the lawfulness of incentive awards in settlements under

Rule 23. See Johnson v. NPAS Sols, LLC, 43 F. 4th 1138, 1147

(11th Cir. 2022) (Pryor, J., dissenting from denial of reh’g en banc).

15

Circuit conflict will resolve itself as other Courts weigh

in and reject Johnson.

Even within the 11th Circuit, the law is still evolving.

The 11th Circuit’s Johnson ruling made no meaningful

effort to explain why the Circuit’s previous approvals of

service awards were wrong. Some sixteen months before

Johnson was decided, a different 11th Circuit panel decided

Muransky v. Godiva Chocolatier, Inc., 922 F.3d 1175 (11th

Cir. 2019), rev’d on different grounds, 979 F.3d 917 (11th

Cir. 2020). Muransky rejected Petitioner’s Greenough—

and Pettus—based challenge to a $10,000 service fee

award. Id. at 1196 (“We do not view granting a monetary

award as an incentive to a named class representative as

categorically improper.”). Johnson nowhere mentioned,

let alone discussed or distinguished, Muransky.6

Illustrating the point, in In Re: Checking Account

Overdraft Litig., 2022 WL 472057 (11th Cir. Feb. 16,

2022), a different panel of the 11th Circuit panel let stand

a service award of $10,000. While noting that Johnson

“held . . . that such awards are unlawful,” the panel

nevertheless found that the objector neither objected to

the service award in the District Court nor “properly

presented any argument to us” that the award was invalid,

and “decline[d] to vacate the award” on waiver grounds.

Id. at *5, n.1. Judge Newsom, Johnson’s author, was on

the Checking Account panel.

6. Further underscoring the 11th Circuit’s own inconsistency,

the opinion reversing Muransky on standing grounds after

rehearing en banc (Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917 (11th Cir. 2020), was issued a month after Johnson, but

nowhere even mentioned Johnson.

16

Although the Checking Account objector had waived

any challenge to the service award, in light of Johnson’s

categorical prohibition on service awards it is nonetheless

at least surprising that the Checking Account panel, or at

least Judge Newsom, did not reverse the service award

as being a pure legal error under, or at least address its

incompatibility with, Johnson. See Johnson v. Bottling

Grp., LLC, 2024 WL 889260, at *1 (11th Cir. 2024) (circuit

court can consider forfeited issues that “‘involve[] a pure

question of law and refusal to consider it would result in

a miscarriage of justice . . . interest of substantial justice

is at stake…the proper resolution is beyond any doubt;

or . . . the issue presents significant issues of general

impact or of great public concern’” (quoting United States

v. Campbell, 26 F. 4th 860, 873 (11th Cir.) (en banc), cert

denied, 143 S. Ct. 95 (2022)).

District courts within the 11th Circuit have either

found Johnson’s prohibition on service awards inapplicable

in different contexts, employed workarounds to the

Johnson prohibition, reserved ruling on service awards

pending further adjudications in the 11th Circuit, or noted

the need for further 11th Circuit explication of the issue.7

7. After Johnson, some district courts in the 11th Circuit

approved service awards under the rubric that those awards were

“general release payments” further underscoring the still-evolving

landscape on this issue within the Circuit. See, e.g., Sinkfield v.

Persolve Recoveries, LLC, 2023 WL 511195, at *n.2 (S.D. Fla.

Jan. 26, 2023) ($1,500 payment to class representative was neither

salary nor bounty “but in exchange for agreeing to a broader

release of claims than the release the other Class Members have

given, this payment doesn’t violated the strictures of Johnson”);

Broughton v. Payroll Made Easy, Inc., 2021 WL 3169135, at *4,

n.5 (M.D. Fla. July 27, 2021); Dozier v. DBI Servs. LLC, 2021 WL

6061742, at *9 (M.D. Fla. Dec. 22, 2021).

17

D.

THE 11TH CIRCUIT SHOULD RECONCILE

JOHNSON’S PROHIBITION WITH ERIE

DOCTRINE PRINCIPLES BEFORE THIS

COURT STEPS IN

Johnson’s prohibition on service awards also creates

numerous questions beyond the fundamental question of

whether Greenough and Pettus, decided in 1882 and 1885,

respectively, have anything to say about modern class

action practice under Rule 23. For example, whether

Johnson applies to settlements of diversity actions or

cases based on state law claims, is dubious, as opinions

from district courts in the 11th Circuit demonstrate. See,

e.g., Arnold v. State Farm Fire and Cas. Co., 2023 WL

7308098, at * 1 (S.D. Ala. Nov. 6, 2023) (affirming service

awards under Alabama law in diversity case, noting

Johnson was in the context of federal claims brought

under the Telephone Consumer Protection Act” and that

“[f]ollowing Johnson, a number of district courts in the

Eleventh Circuit have found class representative service

awards are still permitted under certain circumstances.

The Court agrees with its several sister courts in

this Circuit that Johnson…is inapplicable in diversity

jurisdiction cases where the underlying claims arise under

state law.” (citing Venerus v. Avis Budget Car Rental,

LLC, 2023 WL 4673481 (M.D. Fla. May 23, 2023), report

and recommendation adopted, 2023 WL 4673481 (M.D.

Fla. May 25, 2023); Junior v. Infinity Ins. Co., 2022 U.S.

Dist. LEXIS 154082 (M.D. Fla. Aug. 26, 2022); Roth v.

Geico Gen. Ins. Co., 2020 WL 10818393 (S.D. Fla. Oct. 8,

2020); Smith v. Progressive Select Ins. Co., 2023 U.S. Dist.

LEXXIS 58227 (S.D. Fla. Mar. 31, 2023)); see also Tims v.

LGE Cmty. Credit Union, 2023 WL 11915734, at *1 (N.D.

Ga. Nov. 29, 2023) (affirming $10,000 service award and

18

distinguishing Johnson because “state law governs the

issue of Service Awards in diversity actions”); Hunter v.

CC Gaming, LLC, 2020 WL 13444208, at *7-8, *8 n.1 (D.

Colo. Dec. 16, 2020) (finding “unclear whether and to what

extent the reasoning in Johnson, Greenough and Pettus

would extend to modern diversity cases or to supplemental

state-law claims under Erie”). The 11th Circuit has yet

to address this jurisdictionally based disparity in service

award availability. 8

Similarly, the 11th Circuit should be permitted to sort

out the arbitrariness concerning service award approval

that results in cases that present a mix of state and

federal law, as the instant case does. See, e.g., Guyton v.

Abrahamsen Gindin LLC, 2023 WL 1824652, at *2 (M.D.

Fla. Jan. 10, 2023) (FDCPA case discussing Johnson’s

uncertain applicability to cases involving statutory

damages and citing cases); Denning v. Mankin Law Grp.,

P.A., 2022 WL 16956527, at *1, n.2 (M.D. Fla. Nov. 15,

2022) (FDCPA and Florida Consumer Collection Practices

8. The settlement in this case was based on California state

law principles of disgorgement, which was the basis for the original

Ninth Circuit’s ruling that alleged unlawful data collection can be

the basis for establishing economic injury. In re Facebook, Inc.

Internet Tracking Litig., 956 F.3d at 600. California state law, in

turn, permits service awards. See Cellphone Termination Fee

Cases, 186 Cal. App. 4th 1380, 1394 (2010) (overruling objections

to $10,000 service awards to four class representatives, stating

“they should be compensated for the expense or risk they have

incurred in conferring a benefit on other members of the class” and

citing cases). Accordingly, under the rationale of the 11th Circuit

district court cases, Johnson does not apply to the instant case,

further showing its unsuitability as a vehicle for Supreme Court

review of incentive awards.

19

Act case; “the Parties shall be prepared to discuss at the

final fairness hearing the propriety of the $2,000 award

to Plaintiff in light of . . . Johnson”). This Court should

stay its hand until the 11th Circuit has allowed the issue

to percolate more fully.

E. SERVICE AWARDS SHOULD BE FIRST

ADDRESSED BY THE RULES COMMITTEE

OR CONGRESS

Much to-and-fro in the case law addressing Johnson

has concerned what Rule 23 says or does not say, implies

or does not imply, about service awards. Cf. Johnson, 975

F.3d at 1259 (Rule 23 says nothing about service awards)

with Scott v. Dart, 99 F. 4th 1076, 1086-87 (7th Cir. 2024)

(service awards are “consistent” with Rule 23(e)’s mandate

of equitable treatment of class members “because the

named plaintiffs invest in the case more heavily than their

unnamed counterparts”) (citing Moses v. New York Times

Co., 79 F. 4th 235, 253 (2d Cir. 2023); see also Mongue v.

Wheatleigh Corp., 2024 WL 1659724, at * 5 (D. Mass.

Apr. 16, 2024) (“$5,000 service award would compensate

Plaintiff for ‘bear[ing] the brunt of the litigation’ without

violating Fed. R. Civ. P. 23(e)(2)(D)’s requirement that

the settlement treats class members equitably in relation

to one another” (quoting Murray v. Grocery Delivery

E-Services USA Inc., 55 F. 4th 340, 353 (1st Cir. 2022)).

Given the important policy ramifications of the service

awards issue, analysis and determination of the fit between

service awards and Rule 23(e)(2)(D)’s requirement of

equitable treatment of all class members is best left, in

the first instance, to the Advisory Committee on the Civil

Rules, on whose determinations this Court has historically

20

relied.9 Johnson itself said “if either the Rules Committee

or Congress doesn’t like the result we’ve reached, they are

free to amend Rule 23 or to provide for incentive awards

by statute.” Johnson, 975 F.3d at 1260.

As it has done many times before, the Advisory

Committee can determine the issue in a broader context

than the fact-bound situation a single service award

case presents. See generally Microsoft Corp. v. Baker,

582 U.S. 23, 30 (2017) (discussing Rules Committee’s

“careful calibration” of Rule 23(f) governing interlocutory

appeals); Bell Atl. v. Twombly, 550 U.S. 544, 559 (2007)

(discussing implications for pleading standards in light

of discovery burdens in antitrust cases and citing, inter

alia, Memorandum from Chair of Advisory Committee to

Chair of Committee on Rules of Practice and Procedure);

Ortiz v. Fibreboard Corp., 527 U.S. 815, 842-43 (1969)

(“Advisory Committee looked cautiously at the potential

for creativity under Rule 23(b)(1)(B)” and “crafted all

three subdivisions of the Rule in general, practical terms”

and relying on Advisory Committee’s analysis); Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 398 (1990) (relying

on Advisory Committee letter and note in analyzing a Rule

11 sanctions issue); Schiavone v. Fortune, 477 U.S. 21,

30-31 (1986) (citing Advisory Committee Note as having

eliminated “[a]ny possible doubt” about meaning of Rule

15(c) in deciding relation back limitations issue); Marek

v. Chesney, 473 U.S. 1, 41-42, 43 (Brennan, J. dissenting)

9. After all, “[t]he Chief Justice appoints” the members of

the Advisory Committee, who “rel[y] heavily on the services of

its ‘reporter,’” each of whom is a “prominent law professor” and

“leading expert” also appointed by the Chief Justice. See uscourts.

gov/rules-policites/about-rulemaking-process/committeemembership-selection (last visited Dec. 9, 2024).

21

(discussing Advisory Committee’s “close consideration

to a broad range of troubling issues that would be raised

by application of Rule 68 to attorney’s fees” and stating

“Congress and the Judicial Conference are far more

institutionally competent than the Court to resolve”

ambiguity of Rule 68’s scope).

Similarly, leaving the service awards issue, which

Petitioner argues has serious policy ramifications (Pet.28;

“corrosive effect” of service awards on “unconflicted

representation”) for legislative determination, as Johnson

itself suggested (Johnson, 975 F.3d at 1260), is fully

consistent with the separation of powers doctrine.

Leaving to Congress the question whether Rule 23’s

broad grant of discretion to district judges handling

class litigation (see Fed. R. Civ. P. 23(d)(1), 23(g)(1)(B),

(C) (D), (E), 23(g)(2),(3), 223(h)) and whether Rule 23(e)

(2)(D)’s mandate of equitable treatment for all class

member permits or prohibits service awards will avoid

“forc[ing] judges to act more like legislators who decide

what the law should be, rather than judges who ‘say what

the law is.’” United States v. Rahimi, 602 U.S. 680, 732

(2024) (Kavanaugh, J., concurring) (quoting Marbury v.

Madison, 1 Cranch 137, 177, 5 U.S. 137, 21 L.Ed. 60 (1803);

see also Oklahoma v. Castro-Huerta, 597 U.S. 629, 656

(2022) (“[T]his Court’s proper role under Article III of

the Constitution is to declare what the law is, not what

we think the law should be.”).

22

II. PETITIONER’S REQUEST FOR AN ADVISORY

OPI N ION REGA RDI NG COU NSEL FEE S

SHOULD BE REJECTED

This Court has held that when a plaintiff successfully

obtains a common fund for the benefit of an identifiable

class, counsel is “entitled to a reasonable attorney’s fee

from the fund as a whole.” Boeing Co. v. Van Gemert, 444

U.S. 472, 478 (1980). This rule contrasts with the situation

where a successful plaintiff is asking a Court to assess

fees directly against a defendant pursuant to a federal

fee-shifting statute, in which case the reasonable fee is

calculated with respect to counsel’s lodestar. Perdue v.

Kenny A. ex rel. Winn, 559 U.S. 542 (2010).

This distinction between percentage of common

funds vs. federal fee-shifting cost awards was recently

highlighted by the Second Circuit in an objector appeal

brought by Petitioner’s family trust in an unrelated

securities action. Fresno County Employees’ Ret. Ass’n

v. Isaacson/Weaver Fam. Tr., 925 F.3d 63 (2d Cir. 2019).

“In contrast to fees awarded pursuant to fee-shifting

provisions, fees awarded pursuant to the common-fund

doctrine do not extract a tax on the losing party but

instead confer a benefit on the victorious attorney for

her representation of her client and the class members.”

Fresno County Emps.’ Ret. Ass’n, 925 F.3d at 68 (citing

Boeing, 444 U.S. at 478). Thus, the Second Circuit held,

the lodestar limitations in Perdue are not relevant to the

District Court’s analysis of reasonableness; instead, the

relevant authority is Boeing.

Petitioner seeks Supreme Court review because, he

complains, “lower courts are systemically ignoring” this

Court’s guidance in Perdue when assessing fees against

a defendant pursuant to a federal fee-shifting statutes.

23

Pet.24 (citing Perdue). But as the Second Circuit clarified,

the relevant Supreme Court authority is Boeing when the

fees are assessed against a common fund, not Perdue,

which applies when assessing fees directly against

the defendant. And because the instant case is a nonreversionary common fund settlement, and not a situation

where Plaintiffs sought to recover fees directly from Meta

pursuant to a federal statute, see Pet.App.30a, Petitioner

is essentially seeking an advisory opinion inapplicable to

the facts of this case.

More importantly, Petitioner cites to no Circuit

conflict nor indeed any case, at any level, failing to

faithfully apply this Court’s Boeing/Perdue distinction.

Instead, Petitioner is seeking to change the rules—

discarding Boeing and applying Perdue when a federal

fee-shifting claim is settled on a common-fund basis.

But even if the Court were inclined to consider changing

the law, the instant case involves the settlement of a mix

of state law claims (including California privacy torts,

conversion, trespass, and various California consumer

protection statutes) and one federal statute. Pet.App.8a.

It is therefore not an appropriate vehicle for Petitioner’s

quest. See, e.g., Houston Specialty Ins. Co. v. Vaughn,

749 Fed. App’x 800, 804, n.4 (11th Cir. 2018) (Perdue only

limits lodestar multipliers when fees are taxed against

defendant pursuant to a federal statute, not state law).

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

David A. Straite

Counsel of Record

DiCello Levitt LLP

485 Lexington Avenue,

Suite 1000

New York, NY 10017

dstraite@dicellolevitt.com

(646) 933-1000

A dam J. Levitt

A my E. Keller

A dam Prom

DiCello Levitt LLP

Ten North Dearborn Street,

Sixth Floor

Chicago, IL 60602

Stephen G. Grygiel

Grygiel Law LLC

127 Coventry Place

Clinton, New York 13323

Jason “Jay” Barnes

Eric Johnson

Simmons Hanly

Conroy LLP

112 Madison Avenue,

Seventh Floor

New York, NY 10016

Counsel for Respondents