# Opposition Brief — Frank v. Gaos, 138 S. Ct. 1697 (2018) (No. 17-961) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0805%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2018 ## Text No. 17-961 In the Supreme Court of the Anited States THEODORE H. FRANK and MELISSA ANN HOLYOAK, Petitioners, Vv. PALOMA GAOS, on behalf of herself and all others similarly situated, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF IN OPPOSITION OF RESPONDENT GOOGLE LLC RANDALL W. EDWARDS DONALD M. FALK O'Melveny & Myers LLP Counsel of Record Two Embarcadero EDWARD D. JOHNSON Center, 28th Floor Mayer Brown LLP San Francisco, CA Two Palo Alto Square 94111 3000 El Camino Real (415) 984-8716 Palo Alto, CA 94306 redwards@omm.com (650) 331-2000 dfalk@ma rown.com DANIEL E. JONES Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000 Counsel for Respondent Google LLC QUESTION PRESENTED Whether this Court should review the determi- nation of the two courts below that it was infeasible to distribute $5.3 million in settlement funds to 129 million class members who had been unable to plead any concrete injury resulting from the challenged feature of Internet searches, so that the district court acted within its discretion in approving the settle- ment’s cy pres awards to six organizations with es- tablished Internet privacy programs. ‘i RULE 29.6 STATEMENT Respondent Google LLC is a wholly owned sub- sidiary of XXVI Holdings Inc., which is a wholly owned subsidiary of Alphabet Inc., a publicly traded company. No publicly held corporation owns more than 10% of Alphabet Inc.’s stock. ill TABLE OF CONTENTS Page QUESTION PRESENTED......................00-0eeceeeeeeeeeeeees i RULE 29.6 STATEMENT .......................2cccceeeeeeeeeeees ii , gE iv ERE ab SS EE eer eae oe OTE 4 A. Referrer headers and web history. ............... 4 B. The Gaos and Priyev actions. ........................ 5 C. Settlement and approval proceedings. ......... 8 D. The Ninth Circuit affirms. .......................... 11 REASONS FOR DENYING THE PETITION......... 14 A. The Purported Conflict Does Not RSENS RE eA eS A 15 B. The Purported Issue Lacks Recurrent Importance Because Cy Pres-Only Settlements Are Sharply Declining And Reserved For Exceptional Cases. ........ 21 C. This Case Is An Exceedingly Poor Vehicle To Consider Unprecedented Limitations On Cy Pres Settlements. ......... 23 1. Class members were unharmed and unlikely to receive anything from further litigation........................... 23 2. This case implicates none of the cy pres abuses that petitioners decry........ 24 D. The Decision Below Is Correct. ................... 28 SUEY cinncisinicunntennictsitognatstedanctinntecbininnemiionahiones 32 iv TABLE OF AUTHORITIES Page(s) CASES In re Agent Orange Prod. Liab. Litig., GES BG BVO GG Ge, BID ccccccencccccccccccccecccovcesees 25 Amchem Prods., Inc. vy. Windsor, ccna 27 Atl. Marine Constr. Co. v. Dist. Ct. for the Western Dist. of Texas, EE a 28 In re Baby Products Antitrust Litig., 708 F.3d 163 (3d Cir. 2013) ............... 16, 17, 20, 25 In re BankAmerica Corp. Securities Litig., 775 F.3d 1060 (8th Cir. 2015).............................. 19 Blackman v. Gascho, No. 16-364, cert. denied 137 S. Ct. EE SERENE aR 3 Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).............................. 27 Edwards v. First American Corp., 610 F.3d 514 (9th Cir. 2010)........................ 6, 7, 23 Fraley v. Batman, 638 F. App’x 594 (9th Cir. 2016).......................... 30 Fraley v. Facebook, Inc., 966 F. Supp. 3d 939 (N.D. Cal. 2013).................. 30 Frank v. Poertner, No. 15-765, cert. denied 136 S. C°. ERG SESE SRR ee eee amr 3 v TABLE OF AUTHORITIES—continued Page(s) Hanlon v. Chrysler Corp., 150 F.3d 1011 (Oth Cir. 1988).............................- 26 K.D. y. Facebook, Inc., ee eee 30 Klier v. Elf Autochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011).................... 16, 19, 20 Koby v. ARS Nat Servs., Inc., 846 F.3d 1071 (9th Cir. 2017)..........................---. 25 Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012).............. 10, 11, 20, 22 Marek v. Lane, I ae 14 Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir. 2007) ..................... 16, 20, 21 Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004).......................... 16, 19 Mirfasihi v. Fleet Mortg. Corp., 551 F.3d 682 (7th Cir. 2008)................................ 19 Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011).................. 10, 19, 25 In re Netflix Privacy Litig., 2013 WL 1120801 (N.D. Cal. Mar. IRE ORES Se ee 30 New York v. Reebok Int'l Ltd., re I HII sctiiscenccccnicsnnnnenscnmmssenntets 16 vi TABLE OF AUTHORITIES—continued Page(s) Pearson v. NBTY, Inc., Be re BN vcccecncecccescccsscerecovesses 18 Powell vy. Georgia-Pacific Corp., 119 F.3d 703 (8th Cir. 1997).................... 16, 17, 25 Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990)............ 17, 20, 21, 25 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).......................... 2, 14, 22, 23 Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc., 136 S. Ct. 3507 (BO16)................2.2..00000000002 1, 17, 29 In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014).................... 5, 11, 23 STATUTES, RULES AND REGULATIONS ETT 6, 19, 23 ER EL a ne Oe I 24 GE 8 oan 27, 28 § ef 8 nee en 24 bE 12 4 8 8 15 OTHER AUTHORITIES Natalie Rodriguez, Era of Mammoth Cases Tests Remedy of Last Resort, Law 360 wii TABLE OF AUTHORITIES—continued Page(s) Principles of the Law of Aggregate Litigation § 3.07 cmt. b (Am. Law Inst. 2010) ............... 13, 31 BRIEF IN OPPOSITION OF RESPONDENT GOOGLE LLC Petitioners (and professional objectors) Ted Frank and Melissa Holyoak seek this Court's review based on a phony circuit split along with broad policy objections to aspects of cy pres settlements not pre- sent here. Petitioners describe a conflict that does not exist. The courts of appeals agree on the legal standards governing review of cy pres settlements. They agree that, as the court below acknowledged, cy pres set- tlements are “the exception, not the rule.” Pet. App. 8. And they agree on the narrow circumstance that justifies the exception: when direct distribution to class members is infeasible At bottom, then, the petition presents a case- specific disagreement with the findings below that distribution was infeasible in this case, with its class estimated at 129 million members. Although this Court “dofes] not overturn a finding of fact accepted by two lower courts,” Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2544 (2015), petitioners’ assert- ed conflict rests on their insistence that it is feasible to distribute a little over $5 million—an amount that petitioners concede is adequate to resolve the low- value claims in this case—to this enormous class. And while they ask this Court to depart from its es- tablished practice in order to overturn both lower courts’ finding of infeasibility in this case, petitioners cannot offer even a speculative example of a case where distribution of a settlement fund would be in- feasible under the legal standard uniformly prevail- ing in the courts of appeals. 2 Petitioners’ restrictive approach would unduly constrain district courts and settling parties while providing no corresponding benefit to absent class members. The exacting standards applied by the courts of appeals to cy pres relief already protect against the abuses petitioners inveigh against, while appropriately permitting district courts to evaluate case by case whether generalized relief inuring to the entire class serves class interests more effectively than token payments to a tiny self-selected minority of class members. Here, the cy pres payments will benefit the class as a whole by funding closely targeted projects that are directly connected to the Internet privacy issues raised by plaintiffs’ claims. And because the recipient institutions are of the highest quality and specialize in Internet consumer issues, petitioners’ quibbles with the district court’s exercise of discretion in ap- proving the recipients do not warrant this Court’s at- tention. No more does petitioners’ preference to pro- vide nominal sums to a vanishingly small percentage of class members who were never harmed. The circumstances of this case make it an espe- cially inappropriate vehicle for changing the law to impose petitioners’ vision. This case is unusually well-suited to a cy pres remedy because no class member appears to have been actually harmed by the challenged practices—as two district judges con- cluded in dismissing most of plaintiffs’ claims. The case would have gone forward, if at all, based on the remote (and now-obsolete) prospect of obtaining a statutory damages award despite the absence of con- crete injury. When this case settled, Ninth Circuit law permitted uninjured plaintiffs to pursue statuto- ry damages, but this Court’s decision in Spokeo, Inc. 3 v. Robins, 136 S. Ct. 1540 (2016), has since eliminat- ed that risk. It is telling that neither petitioners, nor the usual suspects joining them as amici, engage with the obscure and hypertechnical claims, and lack of injury, in this case.' As the standards of the courts of appeals reflect, parties should have the flexibility to compromise cases like this one that limp past the pleadings stage yet still pose a risk of huge liability based on uncer- tain substantive law at the time of settlement. The effectively black-and-white rule that petitioners ask this Court to consider would make these cases im- possible to settle when the relatively low settlement value of the claims would yield a de minimis pay- ment per class member. Instead, petitioners would impose on the parties and the judicial system the burden of continued litigation and continued risk. A perfect and friction-free system of class certification, liability determination, and award distribution might obviate the need for cy pres settlements, but the uncertainty of our own, entirely human legal sys- tem does not permit that rigid result. ' For example, amicus Cato Institute submitted nearly identi- cal arguments in Frank v. Poertner, No. 15-765, cert. denied 136 S. Ct. 1453 (2016). The same amicus joined a coalition of state attorneys general led by the Arizona Attorney General in sup- port of the unsuccessful petition in Blackman v. Gascho, No. 16- 364, cert. denied 137 S. Ct. 1065 (2017). Although they received notice of the settlement as the Class Action Fairness Act re- quires, none of the state attorneys’ general now supporting the petition objected to the fairness of the settlement in either court below. See Pet. App. 51. 4 STATEMENT Petitioners and their amici have almost nothing to say about this case—including the multiple dis- missals of plaintiffs’ complaints. Petitioners’ two paragraphs (Pet. 8-9) omit the context of the settle- ment. Yet that context illuminates many of the defi- ciencies in the petition.” A. Referrer headers and web history. Respondent Google LLC operates a free Internet search engine, with over one billion user-generated search requests every day. SER 747, 749-750. When users submit search terms on Google Search, within a fraction of a second Google returns to the user a list of relevant websites in a new web page, “the search results page.” SER 749-750, 761-762. To generate each search results page, Google's servers first generate a unique Uniform Resource Locator, or URL, that includes information about the user's search query used to generate that page. SER 761-762. Users can then click one of the links provid- ed on the search results page, which will redirect the user to the desired site. SER 749-750. In the normal course of operation, the user’s web browser (e.g., Internet Explorer, Firefox, Safari) transmits to that website what is known as “referrer header” information. See SER 760-762. The referrer header communicates the URL of the web page that 2 In light of the posture of the case at settlement, these facts are drawn largely from the allegations in plaintiffs’ pleadings. Google does not admit the accuracy of these allegations. ’ “ER _” refers to petitioners’ Excerpts of Record in the court of appeals, and “SER _” refers to respondents’ Supplemental Excerpts of Record. 5 the user last visited and by doing so informs the re- quested website how the user got to the page. SER 760-761; see also generally In re Zynga Privacy Litig., 750 F.3d 1098, 1102 (9th Cir. 2014) (explain- ing how referrer headers work). So if a user clicks on a website from Google’s search results page, the re- ferrer header generated by the user's web browser will communicate the URL of the search results page, which, according to plaintiffs, includes the us- er’s search terms. SER 760-761. Plaintiffs have also raised allegations about Google’s “Web History” service, which Google pro- vides for its authenticated account holders. SER 712, 717-718. The “Web History” service tracks and stores account holders’ web browsing activity on Google servers. Ibid. This service allows account holders to search the full content of pages they have viewed in the past, and also allows those who so desire to per- sonalize their web browsing experience by creating recommendations tailored to their individual user preferences. /bid. Unlike referrer headers, which are transmitted to third-party website operators as a standard and default web browser function, only the account holder has access to his or her Web History. Ibid. B. The Gaos and Priyev actions. The plaintiffs alleged that Google violated their privacy rights when referrer headers were disclosed to the owners of third-party websites on which a user clicked from a Google search results page. The pur- ported privacy violation resulted from the alleged in- clusion of search terms in the URL of the search re- sults page. 6 1. In 2010, respondent Paloma Gaos filed a puta- tive class action complaint against Google in the Northern District of California. See 5:10-cv-04809- EJD (N.D. Cal.), Dkt. No. 1. Gaos asserted violations of the Stored Communications Act of 1986 (“SCA”), 18 U.S.C. §§ 2701 et seq.)), as well as several Califor- nia state-law claims. /bid. Judge Ware granted Google’s motion to dismiss the initial complaint be- cause Gaos had “failed to plead facts sufficient to es- tablish Article III standing” for any of her claims. SER 799-800. Gaos’s First Amended Complaint raised largely the same claims. Google again moved to dismiss, and Judge Davila (to whom the case had been reas- signed) dismissed all but Gaos’s SCA claim, which al- leged only that the content of search queries, not linked back to Gaos in any way, was disclosed in re- ferrer headers. Judge Davila reasoned, much as Judge Ware had, that “Gaos does not identify what injury result- ed” from the alleged dissemination of search queries in referrer headers, and thus had failed to “allege[] injury sufficient for Article III standing with respect to her non-statutory causes of action.” SER 791-792. Judge Davila concluded that Gaos nonetheless had standing to pursue her SCA claim based on then-current Ninth Circuit law holding that assert- ing the bare violation of a statute was sufficient to establish Article III standing “without additional in- jury.” SER 792-793 (citing Edwards v. First Ameri- can Corp., 610 F.3d 514 (9th Cir. 2010), cert. grant- ed, 131 S. Ct. 3022 (2011), cert. dismissed, 132 S. Ct. 2536 (2012)). Judge Davi'a further cautioned that “although Gaos ha[d] a.i-ged sufficient injury for standing based on a viola :on of the SCA” in light of 7 Edwards, “this finding does not mean Gaos has properly stated a claim for relief under the SCA.” SER 794. Gaos, joined by additional plaintiff Anthony Italiano, filed a second amended complaint (SER 746-788) in an attempt to cure the defects identified by Judge Davila. That complaint speculated that a website operator or other unidentified third party could identify someone based on their search terms because Google’s users, including plaintiffs, some- times conduct “vanity searches”—i.e., searches for their own name. SER 776. They further speculated that, although referrer headers do not specify a us- ers name, a hypothetical “adversary” could use the “Science of Reidentification” to “combine anonymized data” from Referrer Headers “with outside infor- mation to pry out obscured identities.” SER 770-773. Google again moved to dismiss, arguing that the plaintiffs still had failed to allege facts supporting Article III standing for any of their claims or for re- lief under them, and that the SCA preempted plain- tiffs’ state-law claims (which were in Italiano’s name only). That motion had been fully briefed at the time of settlement, but was never decided. 2. In February 2012, respondent Gabriel Priyev filed a similar action in the Northern District of Illi- nois. See 12-CV-01467 (N.D. IIl.), Dkt. No. 1 (Feb. 29, 2012). Google moved to dismiss that complaint as well, contending, as in Gaos, that Priyev lacked Arti- cle III standing and failed to state a claim on which relief could be granted. Rather than defend the original complaint, Priyev twice amended it. In the second amended complaint, Priyev, again like the plaintiffs in Gaos, 8 alleged that Google violated the SCA and asserted additional state-law claims. SER 708-745. He simi- larly speculated that unidentified third parties might be able to identify him from referrer headers because he “regularly engaged in vanity searches.” SER 723. Priyev further alleged that, by including search terms in referrer headers, Google had disclosed ac- count holders’ Web Histories to third parties one search at a time, allegedly in violation of its privacy policies. SER 712, 717-718. Before Google responded to the second amended complaint, the Priyev action was transferred to the Northern District of California and consolidated with Gaos. All of the plaintiffs then filed a consolidated class action complaint (SER 660-707), seeking to rep- resent “[ajll persons in the United States who sub- mitted a search query to Google at any time between October 25, 2006 and the date of notice to the class of certification.” SER 697 (emphasis omitted). C. Settlement and approval proceedings. After an all-day mediation session, the parties entered into a settlement agree. -nt and release in March 2013. Pet. App. 69-111. The settlement class tracks the class definition in the consolidated com- plaint and is estimated to include approximately 129 million members. Pet. App. 5. Google agreed to pay $8.5 million, which was to be put into a settlement fund. After covering notice and administration costs, $5,000 incentive awards for each of the three named plaintiffs, and whatever amount of reasonable attor- neys’ fees and costs the district court awarded, the remainder (approximately $5.3 million) would be dis- tributed proportionally among six cy pres recipients to fund projects specifically devoted to Internet pri- vacy issues: Carnegie-Mellon University; World Pri- 9 vacy Forum; Chicago Kent College of Law Center for Information, Society, and Policy; Stanford Law School Center for Internet and Society; Berkman Center for Internet & Society at Harvard University; and AARP Foundation. Pet. App. 5. Plaintiffs linked to each of the recipients’ de- tailed proposals for the use of the cy pres distribution on the website created for class notice. SER 3, 56-58; see also SER 257-381. (A seventh proposed recipient, the MacArthur Foundation, withdrew from consider- ation during the settlement process. ER 142 n.3.) Upon reviewing the proposals, the district court compared them “to an application for a grant.” ER 4A. Google also agreed to make additional disclo- sures on its website to better inform its users how re- ferrer headers operate and to direct them to Google’s privacy policies for more information on how Google handles search queries generally. Pet. App. 40, 82. The district court granted preliminary approval of the settlement. ER 135-148. The court observed that “[t]his case is somewhat unique in that the size and nature of the class renders it nearly impossible to determine exactly who may qualify as a class member.” ER 146. “In fact,” it noted, “due to the pop- ularity of Defendant's search engine and its rather ubiquitous position in American culture, this class potentially covers all internet users in the United States.” Ibid. Under this circumstance, the court found, “the cost of sending out what would likely be very small payments to millions of class members would exceed the total monetary benefit obtained by the class.” ER 145. 10 Recognizing that direct notice to the settlement class was not feasible, the district court approved the parties’ proposed notice campaign—-which petitioners did not challenge below. The notice campaign con- sisted of (1) Internet-based notice using banner ads in both English and Spanish; (2) articles in the press; (3) a website dedicated solely to the settlement, with both English and Spanish versions; and (4) a toll-free telephone number where class members can obtain additional information and request a written class notice. Pet. App. 6, 39; see also SER 146-161 (decla- ration of the claims administrator explaining the de- sign of the notice campaign and its implementation). Despite this extensive campaign, only 13 of the 129 million putative class members—about one in ten million, or 0.00001%—opted out of the class, and only five class members (including the two petition- ers) entered written objections. ER 17, 98-134. After an extensive fairness hearing (ER 29-97), the district court granted final approval of the set- tlement (Pet. App. 31-61), holding that petitioners and the other objectors had not met their burden of demonstrating that the settlement is not fair, ade- quate, and reasonable. In particular, the court re- jected, as inconsistent with Ninth Circuit precedent, petitioners’ argument that a cy pres-only settlement class should never be certified. Pet. App. 37-38 (cit- ing Lane v. Facebook, Inc., 696 F.3d 811, 826 (9th Cir. 2012); Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011)). The district court additionally noted that petitioners and the other objectors failed to overcome class counsel’s showing that the “cost of distributing [the] settlement fund to the class mem- bers would be prohibitive” in light of the size of the 11 class and the administrative expense of direct distri- bution. Pet. App. 58. The district court also recognized “the very real risk of never obtaining or losing class status in the absence of settlement.” Pet. App. 45. And the court characterized the settlement amount as more than adequate in light of the “significant and potentially case-ending weakness in the SCA claim brought about by the Ninth Circuit’s decision in Zynga Priva- cy Litigation.” Pet. App. 58-59. Finally, the court rejected the objectors’ conten- tion that the cy pres recipients were inappropriate due to alleged conflicts of interest. Having reviewed the recipients’ proposals (Pet. App. 48; see also ER 44), the court observed that the recipients “have a record of promoting privacy protection on the Inter- net, reach and target interests of all demographics across the country, were willing to provide detailed proposals, and are capable of using the funds to edu- cate the class about online privacy risks.” Pet. App. 47-48. D. The Ninth Circuit affirms. The Ninth Circuit affirmed. Pet. App. 1-23. The court first rejected petitioners’ argument that cy pres-only settlements are categorically improper. It recognized that “cy pres-only settlements are consid- ered the exception, not the rule.” Pet. App. 8. That exception is appropriate “where the settlement fund is ‘non-distributable’ because ‘the proof of individual claims would be burdensome or distribution of dam- ages costly.” /bid. (quoting Lane, 696 F.3d at 819). The Ninth Circuit upheld the district court's finding that the settlement fund was not distributa- ble. The court observed that the fund amount to be 12 distributed ($5.3 million) to the class of 129 million individuals left a “paltry” sum of four cents per class member. Pet. App. 9. In addition, the court approved the district court’s finding that trying to compensate even a nontrivial percentage of class members would consume the settlement fund: “sending out very small payments to millions of class members would exceed the total monetary benefit obtained by the class.” Ibid. (quoting the district court). The court of appeals further rejected petitioners’ argument that the only permissible form of settle- ment is one that instead compensates a “miniscule portion of the class”—either through a “random lot- tery distribution” or by offering “$5 or $10 per claimant’ on the assumption that few class members will make claims.” Pet. App. 9. The court recognized that this would amount to a categoricai ban on cy pres-only settlements that would be inconsistent with its prior precedents. Pet. App. 10. And it noted that, although an alternative settlement of that kind may be technically “possible,” it was not required so long as the actual settlement is fair, reasonable, and adequate under Rule 23(e) and the existing stand- ards courts have adopted to scrutinize class-action settlements. Pet. App. 9-10. The court then turned to the selection of the six cy pres recipients. It chastised petitioners for their “unfair and untrue” assertion that the district court “rubber-stamped the settlement.” Pet. App. 12. In- stead, the court of appeals held, the district court correctly found that the six cy pres recipients satisfy the ““nexus’ requirement by being tethered to the ob- jectives of the underlying statute and the interests of the silent class members.” Pet. App. 12-13. The court noted the rigorous “selection process employed to vet 13 the cy pres recipients in this litigation,” and the dis- trict court’s “careful review” of the “detailed pro- posals” submitted by the recipients. Pet. App. 16. And because the recipients met the exacting stand- ards mandated by the court’s precedents, Google’s previous donations to some of the recipients and the fact that some of the recipients “are organizations housed at class counsel’s alma maters” were not the “absolute disqualifier[s]” urged by petitioners. Pet. App. 12-16. In other words, as the court put it in terms of pe- titioners’ own proposed rule, petitioners had failed to “raise substantial questions about whether the se- lection of the recipient[s] was made on the merits.” Pet. App. 14 (quoting Principles of the Law of Aggre- gate Litigation § 3.07 cmt. b (Am. Law Inst. 2010)). The court observed, for instance, that “some of the recipient organizations have challenged Google’s In- ternet privacy policies in the past,” and that “[eJach recipient's cy pres proposal identified the scope of Google’s previous contributions to that organization, and * * * explained how the cy pres funds were dis- tinct from Google’s general donations.” Pet. App. 16- 17 & n.7. Likewise, the court concluded that because “(t]he recipients are well-recognized centers focused ou the Internet and data privacy,” petitioners’ argu- ment that the settlement should be invalidated based on the mere fact that class counsel have de- grees from some of the institutions that house the re- cipients “can’t be entertained with a straight face.” Pet. App. 19. Judge Wallace concurred in part and dissented in part. Pet. App. 23-30. He “agree[d]” with the majority “that a cy pres-only settlement was appropriate in this case,” Pet. App. 23, and “express{[ed] no opinion 14 on the definitive fairness” of the settlement, Pet. App. 30. Instead, he would have remanded to the dis- trict court for further fact-finding about the selection of the specific cy pres recipients. Pet. App. 24, 30. The Ninth Circuit denied rehearing. Pet. App. 67. REASONS FOR DENYING THE PETITION The petition seeks review of a case-specific exer- cise of discretion applying settled legal standards to unique facts and circumstances. Further review is unwarranted for several reasons. First, there is no circuit conflict. All circuits agree with the Ninth Circuit that a cy pres-only set- tlement is appropriate in the rare circumstance where direct distribution to class members is infea- sible, and all insist on a close nexus between the cy pres remedy and the interests of settling class mem- bers. Both the district court and the Ninth Circuit followed these established standards in carefully scrutinizing the settlement here. Second, petitioners and their amici are also flat wrong that cy pres-only settlements are on the rise; their own source confirms that, since Chief Justice Roberts’ statement respecting the denial of certiorari in Marek v. Lane, 134 S. Ct. 8 (2013), the number of cy pres-only settlements has dropped dramatically. That trend is all the more likely to continue in light of this Court’s decision in Spokeo, which requires courts to weed out at the pleadings stage the kind of no-injury claims most likely to lead to proposed cy pres-only settlements. Third, this case is a poor vehicle for considera- tion of the new and rigid limits on cy pres settle- 15 ments urged by petitioners. This case is especially well-suited to a cy pres remedy because class mem- bers have not alleged any actual harm from the chal- lenged practice—making any direct payment, how- ever modest, a windfall rather than compensation. And none of petitioners’ concerns about cy pres abus- es is actually presented here—which is not surpris- ing because the circuits now uniformly demand that district courts safeguard against abuse. Finally, the decision below was correct. Petition- ers do not dispute that the settlement amount was more than adequate, and they have no real challenge to the findings of both courts below that individual distributions of the $5 million settlement amount to a non trivial portion of the 129-million-member class would be infeasible. Petitioners also cannot deny that the district court thoroughly evaluated the de- tailed proposals submitted by the cy pres recipients and ensured that the cy pres distribution would be spent on privacy and security issues closely tied to the class claims. Given these circumstances, as well as “the shakiness of the plaintiffs’ claims” (Pet. App. 9), the district court acted well within its discretion in finding the settlement “fair, reasonable, and ade- quate,” Fed. R. Civ. P. 23(e)(2), and the Ninth Circuit was correct to affirm that exercise of discretion. A. The Purported Conflict Does Not Exist. 1. While petitioners rail against cy pres remedies, every circuit to address the issue has held that cy pres remedies may be appropriate in class action set- tlements. That’s why, in one of the cases petitioners cite the most, the Third Circuit said that it “joinjed] other courts of appeals in holding that a district court does not abuse its discretion by approving a class action settlement agreement that includes a cy 16 pres component.” In re Baby Products Antitrust Litig., 708 F.3d 163, 172 (3d Cir. 2013). In particular, the courts of appeals have allowed cy pres remedies where a cash distribution of all or part of a settlement fund would not be feasible— either because class members cannot be identified, or because the amounts at issue would produce a negli- gible payment per class member (or be entirely con- sumed by the administrative costs of distribution). In those rare circumstances, the circuits uniformly have held that the parties may direct the distribution to a charity aligned with the interests of the settlement class. See, e.g., Baby Products, 708 F.3d at 173 (not- ing general agreement that “cy pres distributions are most appropriate where further individual distribu- tions are economically infeasible”); Klier v. Elf Autochem N. Am., Inc., 658 F.3d 468, 475 & n.15 (5th Cir. 2011) (cy pres awards are appropriate “when di- rect distributions to class members are not feasible”); Mirfasihi y. Fleet Mortg. Corp., 356 F.3d 781, 784 (7th Cir. 2004) (rejecting cy pres distribution where “there would be no reason for thinking distribution to the class members infeasible”); Masters v. Wilhelmi- na Model Agency, Inc., 473 F.3d 423, 436 (2d Cir. 2007) (cy pres remedy available in “circumstances in which direct distribution to individual class members is not economically feasible”); Powell v. Georgia- Pacific Corp., 119 F.3d 703, 706 (8th Cir. 1997) (a “cy pres distribution is potentially appropriate” where “it would be extremely difficult to distribute the funds pro rata”); New York v. Reebok Int'l Lid., 96 F.3d 44, 49 (2d Cir. 1996) (approving cy pres distribution where the “impracticality of attempting to distribute the settlement proceeds among the multitude of uni- dentifiea possible claimants is obvious” and “distri- 17 bution ‘would be consumed in the costs of its own administration”). This uniformity reflects a consistent rationale. Rather than distribute negligible amounts to class members (or, as petitioners suggest, leaving almost all class members with nothing at all), the circuits reason that settlement funds are better used for pro- jects that advance the interests of the class as a whole. See Baby Products, 708 F.3d at 172-73; Pow- ell, 119 F.3d at 706; Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1305, 1307 (9th Cir. 1990). No court has joined petitioners in asking that federal class actions be turned into lottery where a tiny percentage of class members, either self-selected or selected by the court, receive payments that are not tied to any injury. Petitioners try to fracture this uniformity by at- tacking a caricature of the decision below. Petition- ers read the decision as adopting a new rule that a cy pres-only settlement is permissible whenever “it would be ‘infeasible’ to make payments to every sin- gle class member.” Pet. 2; accord id. at 17. But the Ninth Circuit said no such thing. It pointed out the “4 cents ir recovery” per class member to highlight the “dramatic” “gap” between the settlement fund and the size of the class. Pet. App. 9. And it upheld the district court’s finding “that the cost of verifying and ‘sending out very small payments to millions of class members would exceed the total monetary ben- efit obtained by the class.” /bid. Petitioners have no answer to that dispositive “finding of fact accepted by two lower courts.” Texas Dep't of Housing, 135 S. Ct. at 2544. That imbalance of costs and benefits re- mains even if the “millions of class members” receiv- 18 ing payments amount to less (even far less) than the full 129 million. 2. Sweeping away petitioners’ mischaracteriza- tion of the decision below makes clear that the sup- posed conflict reflects only the application of the same legal standards to different facts. To begin with, Judge Posner’s opinion in Pearson v. NBTY, Inc., 772 F.3d 778 (7th Cir. 2014), adopted the same legal standard used below, recognizing that a “cy pres award is supposed to be limited to money that can’t feasibly be awarded to the *** class members.” Jd. at 784. The class in Pearson had only 4.72 million members (less than 4% of the class here)—notified at a cost of about 30 cents per person. Ibid. The much larger settlement amount in Pearson allowed all members of the much smaller class to be paid directly ($3 each by the court’s calculation, less the incremental distribution expenses of processing the payments). /bid. Thus, the parties “hald] not * * * demonstrated” that it was “infeasible to provide that compensation to the victims.” /bid. Here, by contrast, both courts below found that it would be infeasible to pay directly a “unique[ly]” enormous class that “potentially covers all internet users in the United States.” ER 146; see also Pet. App. 8-9, 46-47. And, in furthur contrast with Pear- son, where there was no dispute that class members had purchased the product at issue at least poten- tially in reliance on the allegedly misleading labels, here no out-of-pocket injury is alleged. Indeed, as the 19 district court held, plaintiffs had not alleged any con- crete injury at all. See SER 791-792. There also is no inconsistency between the deci- sion below and the Eighth Circuit’s decision in /n re BankAmerica Corp. Securities Litigation, 775 F.3d 1060 (8th Cir. 2015). The Eighth Circuit expressly “agree[d] with the Ninth Circuit” that cy pres awards are permissible so long as they provide an “indirect class benefit” by going to “uses consistent with the nature of the underlying action.” /d. at 1066-67 (em- phasis added; quotation marks omitted) (citing Nachshin, 663 F.3d at 1040). The court of appeals re- jected the cy pres award proposed in BankAmerica because the single recipient—a Missouri legal- services organization—had an insufficient nexus to the securities fraud claims asserted by the nation- wide class. See id. at 1067. No similar objections have been or could be raised against the targeted projects proposed by the cy pres recipients here, whose Internet privacy activities have nationwide scope and effects. The Fifth Circuit’s decision in Klier has nothing to do with the decision below. Indeed, the court in ‘ Petitioners also rely (Pet. 18 n.4) on the Seventh Circuit's 2004 decision in Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781 (7th Cir. 2004). But they fail to mention that the Seventh Cir- cuit ultimately affirmed a cy pres distribution in that case on a rationale similar to the lower courts’ here: that the underlying claims were of dubious value and presented significant litiga- tion risks for the plaintiffs. Mirfasihi v. Fleet Mortg. Corp., 551 F.3d 682, 686 (7th Cir. 2008). Just as the courts here ques- tioned the applicability of the Stored Communications Act to plaintiffs’ claims, see Pet. App. 58-59, the Seventh Circuit found the inapplicability of the federal Fair Credit Reporting Act to weigh in favor of the cy pres settlement. See 551 F.3d at 685-86. 20 that case explained that its decision did not “impli- cate the line of authority giving careful scrutiny to class settlement agreements in which the parties agree to a cy pres distribution.” 658 F.3d at 478 n.29 (citing, inter alia, Six Mexican Workers, 904 F.2d at 1304, 1307). Rather, the district court in Klier sua sponte ordered a cy pres distribution of unclaimed settlement funds in direct violation of the settlement agreement’s explicit direction that any leftover funds in a subclass fund “shall be distributed pro rata to all Claimants in that subclass.” Jd. at 476. That is, Klier involved a district court’s injection of cy pres in an attempt to override a settlement rather than ap- prove or enforce it. Jd. at 476-77. The decision below does not conflict with the Third Circuit’s Baby Products decision; nor are the two decisions “in tension,” as petitioners half- heartedly assert in the alternative. Pet. 19. Baby Products approvingly cited the Ninth Circuit's deci- sion in Lane in “join[ing] other courts of appeals in holding that a district court does not abuse its discre- tion by approving a class action settlement agree- ment that includes a cy pres component.” 708 F.3d at 172. Although the court noted that “cy pres distribu- tions are most appropriate where further individual distributions [to class members] are economically in- feasible,” it declined to “hold that cy pres distribu- tions are only appropriate in this context.” /d. at 173. Instead, cy pres relief is permissible when it is “fair, reasonable, and adequate” under “the same frame- work developed for assessing other aspects of class action settlements.” /d. at 174. Finally, there is no “tension” between the deci- sion below and the Second Circuit's decision in Mas- ters. Pet. 20. Masters cited with approval the Ninth 21 Circuit’s infeasibility standard from Six Mexican Workers, but faulted the district court for directing funds to charities without even considering whether a distribution to the class would be possible and when “neither side contend[ed] that * * * individual distribution [was] economically impracticable.” 473 F.3d at 435-36. As these cases illustrate, there is no conflict among the circuits over the standards for judicial re- view of cy pres settlements. Courts applying these standards properly reach different outcomes based on different facts and circumstances. These outcomes present no conflict on any important question of fed- eral law that could warrant this Court’s review. B. The Purported Issue Lacks Recurrent Importance Because Cy Pres-Only Set- tlements Are Sharply Declining And Re- served For Exceptional Cases. There is a complete mismatch between petition- ers’ assertion that “cy pres settlements are increas- ingly prevalent” and the question presented, which asks this Court to review cy pres-only settlements— i.e., ones that “provide[] no direct relief to class members.” Pet. i, 31-32. As explained in an article petitioners cite, the number of cy pres-only settlements is in fact sharply declining, with only 3 percent of all cy pres settle- ments falling into that category from 2013 through 2016—down from 29 percent from 2000 through 2012. See Natalie Rodriguez, Era of Mammoth Cases Tests Remedy of Last Resort, Law 360 (May 2, 2017), https://www.law360.com/articles/9 18296/era-of- mammoth-cases-tests-remedy-of-last-resort (cited at Pet. 32; State AG Br. 7-8). As the article explains, 22 that drop is consistent with the view that Chief Jus- tice Roberts’s statement respecting the denial of re- view in Lane in November 2013 “mark[ed] a turning point for cy pres.” /bid. Since that time, the article summarizes, class action settlements have “mostly use[d] cy pres to get rid of so-called drippings— unclaimed funds and uncashed checks sent to class members.” [bid.® Moreover, while 2016 was the most recent year covered in the analysis, the decline in the number of cy pres-only settlements is likely to continue further still in light of this Court’s 2016 decision in Spokeo. Spokeo clarifies that Article II] requires lower feder- al courts to weed out putative class actions seeking statutory damages in the absence of actual harm. These are the cases that are most likely to result in proposed cy pres-only settlements if they make it past the pleadings stage; settlements are naturally smaller when the presence of any injury is unlikely. In short, empirical data confirm the Ninth Cir- cuit’s observation below that “cy pres-only settle- ments are considered the exception, not the rule.” Pet. App. 8. Petitioners offer no compelling reason why this Court should review a perceived problem that is neither real (see pages 24-28, infra) nor wide- spread. ® The article also notes the positive development of parties and courts using a “grant-like approach” to thoroughly vet potential cy pres recipients—precisely the approach followed in this case. See page 9, supra. 23 C. This Case Is An Exceedingly Poor Vehi- cle To Consider Unprecedented Limita- tions On Cy Pres Settlements. 1. Class members were unharmed and un- likely to receive anything from further lit- igation. The petition again and again refers to class members who have not been “compensated” for their “injuries.” E.g., Pet. 2-3, 7, 19-20, 23, 25. The under- lying premise is that a class is undercompensated unless some class members receive a direct distribu- tion—no matter how few class members would be paid or how little they would receive. But the circumstances in this case provide no op- portunity to test that premise. That is because plain- tiffs failed to allege any actual harm that they or class members suffered as a result of the challenged practices—which led both Judge Ware and Judge Davila to dismiss most of plaintiffs’ claims for lack of “injury sufficient for Article III standing.” SER 792; see also page 6, supra. Before this Court decided Spokeo, however, Ninth Circuit law permitted plaintiffs to pursue their statutory claims under the Stored Communications Act in federal court without pleading or proving any actual, concrete harm. See SER 792-793 (citing Ed- wards, 610 F.3d at 517). Accordingly, the lack of harm was not an ironclad defense to liability at the time of settlement. The district court further observed in approving the final settlement that Google would have had strong defenses to the SCA claims on the merits. Pet. App. 43 (citing Jn re Zynga Privacy Litig., 750 F.3d at 1107, issued after the settlement here and reject- 24 ing a claim under the SCA based on purported dis- closures in a referrer header). Yet given a class size of 129 million individuals and statutory damages of $1,000 (18 U.S.C. § 2707(c)), even the highly remote possibility of class-wide liability in a litigated class action at the time of settlement justified a compro- mise resolution of the case. For these reasons, any direct payment to class members would have amounted to a windfall, not compensation for injuries resulting from Google’s al- leged conduct—making this case uniquely suited to a cy pres settlement. Indeed, the absence of any harm in this case helps explain why only 13 individuals out of a class of roughly 129 million—one in ten mil- lion class members—considered it worthwhile to opt out of the class and preserve their individual claims.® Accordingly, this case does not present the issue whether and to what extent cy pres remedies are ap- propriate when class members suffer actual harm. 2. This case implicates none of the cy pres None of the “five [actually six] specific concerns” petitioners raise about cy pres awards is actually presented by this case. First, petitioners’ complaint that “cy pres awards typically fail to redress class members’ alleged inju- ries” (Pet. 23) is a red herring, because the class ® The Cato Institute complains generally about notice in class- action settlements (Cato Inst. Br. 4-6), but does not address the notice campaign in this case. Nor have petitioners challenged the district court's finding that the multi-pronged notice cam- paign here satisfied the requirements of due process and Rule 23(c)(2)(B). Pet. App. 38-39. 25 members here had no actual injuries to redress for the reasons just discussed. Second, there is no merit to petitioners’ sugges- tion that the cy pres funds will be put to uses uncon- nected with the underlying claims. Pet. 24-25 & n.6. The Ninth Circuit and other circuits all account for this concern by uniformly requiring a nexus between the proposed cy pres recipients and the interests of the class, in order to ensure that the class receives some form of benefit for their claims. See Koby v. ARS Nat’ Servs., Inc., 846 F.3d 1071, 1080 (9th Cir. 2017) (rejecting settlement with proposed cy pres dis- tribution to a San Diego veterans’ organization with “no geographic nexus” to the nationwide class or connection between the organization’s work and the underlying claims involving “unfair debt collection practices”); Baby Products, 708 F.3d at 180 n.16 (“[clourts generally require the parties to identify ‘a recipient whose interests reasonably approximate those being pursued by the class”); Nachshin, 663 F.3d at 1036 (cy pres remedy “must account for the nature of the plaintiffs’ lawsuit, the objectives of the underlying statutes, and the interests of the silent class members”); Powell, 119 F.3d at 707 (approving cy pres local scholarship remedy that served class members’ objectives and would directly benefit their descendants); Six Mexican Workers, 904 F.2d at 1308 (reversing where cy pres remedy benefited a group “far too remote from the plaintiff class”); In re Agent Orange Prod. Liab. Litig., 818 F.2d 179, 184 (2d Cir. 1987) (approving cy pres distribution that would “benefit the entire class”). This issue is a red herring for an additional rea- son. As the court below noted, petitioners actually 26 “do not dispute that the nexus requirement is satis- fied here.” Pet. App. 12 (emphasis added). Third, petitioners simply speculate that class counsel will pursue cy pres awards in lieu of compen- sating class members. Pet. 25-26. As discussed above (at 16-17), the circuits uniformly guard against that concern too, by permitting cy pres awards only when it is infeasible to distribute the fund directly to indi- vidual class members. More broadly, courts, includ- ing the Ninth Circuit, uniformly demand a “higher standard of fairness” in scrutinizing pre-certification settlements in order to guard against “collusion and other abuses.” Pet. App. 7; accord Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1988) (collecting cases). And petitioners have no genuine quarrel with the district court’s findings that the Hanlon factors were satisfied here. Pet. App. 39-55. Fourth, petitioners complain that defendants might negotiate for the selection of cy pres recipients that petitioners perceive as benefiting the defend- ants rather than the class members. But the court below specifically considered this concern and found it inapposite here, noting that “some of the recipient organizations have challenged Google’s Internet pri- vacy policies in the past”—even pressing a Federal Trade Commission complaint that resulted in a $17 million fine. Pet. App. 16 & n.7 (describing the efforts by the World Privacy Forum and the Stanford Center for Internet and Society). The Ninth Circuit also considered and rejected petitioners’ argument that the cy pres distribution reflects merely a change in accounting entries for or- ganizations to whom Google may make other dona- tions, pointing out that “there was transparency in this process,” with each proposed recipient “ex- 27 plain[ing] how the cy pres funds were distinct from Google’s general donations.” Pet. App. 17. Fifth, petitioners complain that the availability of cy pres remedies in class-action settlements makes it easier to satisfy the manageability requirement of Rule 23(b)(3). Pet. 28-29. But that is true of any set- tlement, not just one involving cy pres relief. This Court has held that manageability does not matter in a settlement class. Amchem Prods., Inc. v. Wind- sor, 521 U.S. 591 (1997). “Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, * * * for the proposal is that there be no trial.” /d. at 620. Pe- titioners also offer no alternative means by which de- fendants can settle putative class actions when indi- vidual class members cannot feasibly be identified— short of overturning decisions from the Ninth Circuit and other courts holding that Rule 23 does not re- quire an “administratively feasible way to determine who is in the class” (Pet. 29 (quoting Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1125, 1129 (9th Cir. 2017))), which goes well beyond the scope of the question presented in the petition. Finally, petitioners fret over the possibility that district judges will approve of cy pres settlements that direct funds to organizations with a connection to the judge, creating “the appearance or reality of judicial conflicts of interest.” Pet. 29-31. Yet petition- ers have not alleged that Judge Davila has such a re- lationship with any of the cy pres recipients in this 28 case—making these concerns entirely hypothetical here.” D. The Decision Below Is Correct. Finally, review is unwarranted because the Ninth Circuit’s decision was correct. Under the cir- cumstances of this case, the district court acted with- in its discretion in approving the settlement after careful scrutiny, and the Ninth Circuit in turn cor- rectly determined that the district court did not abuse its discretion. Petitioners have not presented any basis to un- dermine the findings of both courts below that, in light of the enormous size of the class and the com- paratively small value of the settlement fund, that fund is “non-distributable” directly to class members. Pet. App. 8, 47. Specifically, the district court found that, “[s]ince the amount of potential class members exceeds one hundred million individuals, requiring proofs of claim from this many people would undeni- ably impose a significant burden to distribute, re- ’ Some of petitioners’ amici—but not petitioners themselves— raise the additional argument that any distribution on a cy pres basis raises First Amendment concerns. E.g., Cato Br. 20-24; Center for Ind. Rights Br. 3-8; Center for Const. Juris. Br. 5-7. The argument makes no sense. Absent members of a proposed Rule 23(b)(3) settlement class are in no way “compelled” to sup- port cy pres recipients with which they disagree because they are free to opt out of the settlement instead. In any event, peti- tioners’ failure to adequately raise the First Amendment argu- ment “at any stage of this litigation” is reason alone for the Court to “not consider it.” Atl. Marine Constr. Co. v. Dist. Ct. for the Western Dist. of Texas, 134 S. Ct. 568, 580 (2013); see Pet. App. 131 (two-sentence objection to AARP as a cy pres recipient because of its “political positions,” with no mention of the First Amendment). 29 view, and then verify,” such that “the cost of sending out very small payments to millions of class mem- bers would exceed the total monetary benefit ob- tained by the class.” Pet. App. 47. Petitioners have not contended—let alone point- ed to any evidence to show—that the district court's factual finding, and the Ninth Circuit’s endorsement of it, were clearly erroneous. The two courts’ deter- mination therefore must be accepted here. See Texas Dep't of Housing, 135 S. Ct. at 2544. And both the district court’s and Ninth Circuit’s analyses complied with settled law, discussed above, holding that cy pres remedies are proper when individual distribu- tions would be infeasible. Instead, petitioners asked the Ninth Circuit to hold for the first time that, as a matter of law, a set- tlement must offer a mechanism to provide a wind- fall to a minuscule portion of class members—chosen either by lottery or by a claims process that petition- ers expect to have a claims rate of “well below 1 per- cent”—rather than providing an indirect benefit to the class as a whole through the cy pres mechanism. Pet. 11. Yet no circuit has endorsed that absolutist ap- proach, and for good reason. Petitioners cannot ex- plain why the interests of the class as a whole are invariably better served by giving a windfall to a very few and nothing to the rest. The court below rightly rejected petitioners’ proposal to adopt a rigid requirement favoring small payments to a tiny frac- tion of class members over payments to fund re- search, analysis, education, and advocacy on Internet privacy issues that will benefit a much greater pro- portion (and quite possibly all) of the class. 30 Petitioners and their amici try to extract a man- datory rule from one district court's rejection of a proposed cy pres-only settlement in favor of attempt- ing a claims process in which a handful of class members recovered $15 each, with the remainder distributed to cy pres recipients. See, e.g., Pet. 11; State AG Br. 6 (citing Fraley v. Facebook, Inc., 966 F . Supp. 3d 939 (N.D. Cal. 2013), affd sub nom. Fraley v. Batman, 638 F. App’x 594 (9th Cir. 2016), cert. de- nied sub nom. K.D. v. Facebook, Inc., 137 S. Ct. 68 (2016). But one district court’s exercise of discretion does not mean that the law has calcified so that no court could ever order cy pres-only relief instead. As the Ninth Circuit noted in rejecting this inflexible position, “the fact that there are other conceivable methods of distribution does not mean that the dis- trict court abused its discretion by declining to adopt them.” Pet. App. 10 n.2. Additional practical problems here demonstrated why the court below was right to reject petitioners’ proposal. In contrast with an employee or subscriber class, in which putative class members can be readily identified from a defendant’s records, here it would not be possible for Google to direct payment to any significant proportion of class members. Instead, members would have to identify themselves in a claims process, with notice and distribution costs that would inevitably swallow up the settlement fund, leaving little to nothing for class members. Cf. In re Netflix Privacy Litig., 2013 WL 1120801, at *7 (N.D. Cal. Mar. 18, 2013) (approving cy pres-only set- tlement for a class of over 62 million Netflix mem- bers, because the amount set aside to attempt “a di- rect class cash payout” would “likely prove to be nul- lified by distribution costs”). Petitioners’ proposal would only shift funds to class-action administrators 31 and away from the cy pres recipients and their edu- cational, technological, and policy initiatives aimed at enhancing privacy protections for Internet users. Petitioners’ objections to the selection of the cy pres recipients were equally meritless. Petitioners do not dispute that the actual uses to which the settle- ment funds will be put are closely aligned with the class allegedly affected by referrer header disclo- sures. See pages 25-26, supra. Instead, petitioners insisted below on another categorical rule: that any prior connection between a party or its counsel and a cy pres recipient, such as previous donations or an alma mater relationship, is an “absolute disqualifier.” Pet. App. 14. The Ninth Circuit rightly rejected that proposal too. While “fo}f course it makes sense that the district court should examine any claimed relationship between the cy pres recipient and the parties or their counsel,” peti- tioners’ proposal failed even under the commentary that petitioners urged the court to adopt. Pet. App. 14. That standard, drawn from a Restatement, would require invalidating a cy pres remedy only when the “significant prior affiliation with the intended recip- ient ** * would raise substantial questions about whether the selection of the recipient was made on the merits.” /bid. (quoting Principles of the Law of Aggregate Litigation, supra, § 3.07 cmt. b). 32 CONCLUSION The petition for a writ of certiorari should be de- nied. Respectfully submitted. RANDALL W. EDWARDS DONALD M. FALK O'Melveny & Myers LLP Counsel of Record Two Embarcadero EDWARD D. JOHNSON Center, 28th Floor Mayer Brown LLP San Francisco, CA Two Palo Alto Square 94111 3000 El Camino Real (415) 984-8716 Palo Alto, CA 94306 redwards@omm.com (650) 331-2000 dfalk@mayerbrown.com DANIEL E. JONES Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 (202) 263-3000 Counsel for Respondent Google LLC MARCH 2018 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0805%3A04. Public record. Not legal advice.