Amicus Curiae Brief — Frank v. Gaos, 138 S. Ct. 1697 (2018) (No. 17-961)

No. 17-961

In the

Supreme Court of the Anited States

THEODORE H. FRANK, et ai.,

Petitioners,

Vv.

PALOMA GAOS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C, EASTMAN

Counsel of Record

ANTHONY T. CASO

Center for Constitutional

Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae for

Center for Constitutional Jurisprudence

ST

i

QUESTIONS PRESENTED

The petition for writ of certiorari asks whether the

requirement of Federal Rule of Civil Procedure

23(e)(2) that a binding class action settlement be “fair,

reasonable, and adequate” can be interpreted in such

a way as to permit a settlement that provides no relief

to unnamed class members but only provides cy pres

awards to third parties not involved in the litigation

or in any way harmed by the conduct of the defendant

as alleged in the complaint. Amicus believes that the

answer to that question of statutory interpretation

should be informed by this Court’s constitutional

avoidance doctrines, because such an interpretation

would raise significant constitutional issues, includ-

ing:

1. Whether a binding class action settlement that

redirects remedial compensation away from class

members to unharmed third parties because of the

causes they represent amounts to compelled speech

in violation of the First Amendment?

2. Whether allowing class counsel and the judge

presiding over the class action case to determine

which third party organizations will receive cy pres

awards redirected from class members creates an ir-

reconcilable conflict between class counsel and class

members, and deprives class members of an unbiased

judge, in violation of core Due Process concerns?

3. Whether a class action settlement that provides

compensation only to uninjured third parties, and

none to the class members injured by the conduct al-

leged in the case, exceeds the case or controversy lim-

its on the Article III jurisdiction of the federal courts?

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................--...-0eccceeeeeees i

TABLE OF AUTHORITIEG........................c.-s00eccceeee0 iii

INTEREST OF AMICUS CURIAE........0000................. l

I ispptentitiinniemnnnienmennadnenmanen 1

SUMMARY OF ARGUMENT... cece 4

SERED ceintnncaccnctnmnanentennssnnretenpesnantonenenenenetnsicanen 5

|. Interpreting Rule 23(e)(2) to Permit a Binding

Settlement that Redirects Class Action

Settlement Funds From Class Members to Third

Parties (Often Advocacy Groups) Would Raise

Serious First Amendment Concerns. .................... 5

Il. Allowing Class Counsel and the District Court to

Redirect Class Members’ Remedial Settlement

Funds to Non-Parties Favored by Them Raises

Serious Due Process Concerns. ............................. 7

L1.The Ninth Circuit's Interpretation of Rule 23(e)(2)

Also Raises Significant Article III Case or

ER 10

NEED Srestpnscensensemecnsdinscsensensmsesipmensenuinndennts 13

TABLE OF AUTHORITIES

Cases

Abood v Detroit Board of Education,

I a maceetiiedicial 6

Allen v. Wright,

EE ES ae eeeenoeee 10

Baker v. Carr,

EE er 10

Caperton v. A.T. Massey Coal Co.,

ia sseteesienlasinssinnstilabesiod 9

Chicago Teachers Union v. Hudson,

EE TS 6

Diamond Chemical Co. v. Akzo Nobel Chemical. B.V.,

517 F.Supp.2d 212 (D.D.C 2007)..............0.0.00....... 11

Everson v. Board of Education,

EE eS 6

Friedrichs v. California Teachers Association,

ST Eee l

Harris v. Quinn,

EE eee l

In re Baby Prods. Antitrust Litig.,

708 F.36 168 Ged Cir. 3019), .............................222.. 2

In re BankAmerica Corp. Securities Litig.,

775 F.3d 1060 (8th Cir. 2015) ....................-.c22c00000-- 3

In re Lupron Marketing and Sales Practices Litig.,

295 F Supp.2d 148 (D. Mass. 2003) ........................ 2

In re Murchison,

Ny See I entiicinnsnnennnipisineddcnvasenectanimsstensiol 8,9

iv

In re Pharm. Indus. Average Wholesale Price Litig.,

230 F.R.D. 61 (D. Mass. 2005)................... 2

Janus v. Am. Fed'n,

138 S. Ct. 54 (cert. granted Sept. 28, 2017)... 6

Keller v. State Bar,

EEA Ths a ee Se 6

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

658 F.3d 468 (5th Cir. 2011)... 2,12

Knox v. Service Emp. Internat'l Union Local 1000,

ea I

Lane v. Facebook, Inc.,

696 F.3d 811 (9th Cir.2012) 2

Miller v. Steinbach,

268 F Supp. 255 (S.D.N.Y 1974) 0 1

Pearson v. NBTY, Inc.,

ee nee 3

Radcliffe v. Hernandez,

818 F.3d 537 (9th Cir. 2016)... 7

Sierra Club v. Morton,

I 11

United States ex rel. Houck v Folding Carton Admin.

Comm..,

881 F.2d 494 (7th Cir. 1989) 0. 2

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc.,

Warth v. Seldin,

| _ 10

Wood v. Georgia,

| ARC TOE aS DN 7

Other Authorities

Am. L. Inst., Principles of the Law of Aggregate

Litigation $3.07) GROIGE)..........ccccccoccccccccccccssescseseeee 5

Boies, Wilber H., and Keither, Latonia Haney, Class

Action Settlement Residue and Cy Pres Awards:

Emerging Problems and Practical Solutions,

21 Va. J. Soc. Pol'y & L. 267 (2014) ........000.00000000.... 1

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

N.Y. TIMES (Nov. 26, 2007)........................ 9, 10, 11

Redish, Martin H. et al., Cy Pres & the Pathologies

of the Modern Class Action: A Normative and

Empirical Analysis, 62 Fla. L.Rev., 617 (2010)....12

Shiel, Cecily C., A New Generation of Class Action Cy

Pres Remedies: Lessons from Washington State,

90 Wash. L. Rev. 943, 951 (2015)... 5

Ted Frank, Cy Pres Settlements, Center for Class

Action Fairness LLC, (D-15) ...................ccccecceeeeeeeee 9

Thomas Jefferson, A Bill for Establishing Religious

SSS SES irra cnanr whe Weer 6

Rules

ff ETE eee SA passim

I ne 1

RE SI ERS eer 1

]

INTEREST OF AMICUS CURIAE!

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the funda-

mental separation of powers principles implicated by

this case. The Center has previously appeared before

this Court as amicus curiae in several cases address-

ing compelled speech issues similar to those at issue

here, including Friedrichs v. California Teachers As-

sociation, 136 S. Ct. 1038 (2016); Harris v. Quinn, 134

S. Ct. 2618 (2014); and Knox v. Service Employees In-

ternational Union Local 1000, 567, U.S. 298 (2012).

INTRODUCTION

The cy pres doctrine originated in estate law and

trusts, but in 1974, the U.S. District Court for the

Southern District of New York applied the cy pres doc-

trine in a class action settlement setting. Wilber H.

Boies and Latonia Haney Keither, Class Action Settle-

ment Residue and Cy Pres Awards: Emerging Prob-

lems and Practical Solutions, 21 Va. J. Soc. Pol'y & L.

267, 270 (2014). In Miller v. Steinbach, the district

court noted that, in implementing a settlement agree-

ment between the parties, it “applifed] a variant of the

cy pres doctrine at common law.” Miller v. Steinbach,

268 F.Supp. 255 at 3-4 (S.D.N.Y 1974). Since then, cy

' Pursuant to Rule 37.2(a), all partier were noti‘ied of and have

consented to the filing of this brief. [n accordance with Rule 37.6,

counsel affirms that no counsel for any party authored this bref

in whole or in part and that no person or entity other than amici

made a monetary contribution to fund the preparation and sub-

mussion of this brief.

2

pres awards have been used as a form of remedy in

class actions. See Lane v. Facebook, Inc., 696 F.3d 811

(9th Cir. 2012); In re Lupron Marketing and Sales

Practices Litig., 295 ¥F Supp.2d 148 (D. Mass. 2003).

There are three categories of class action settle-

ments in which cy pres awards might be applied. First

is the situation, at issue in Miller, in which all of the

plaintiffs who have submitted claims have been fully

compensated for their injuries, but excess funds re-

main because the size of the settlement fund (or, more

precisely, the number of people who would file claims

against the fund) was overestimated. The Third Cir-

cuit has held that a federal district court “does not

abuse its discretion by approving a class action settle-

ment agreement that includes a cy pres component di-

recting the distribution of excess settlement funds to a

third party to be used for a purpose related to the class

injury.” In re Baby Prods. Antitrust Litig., 708 F.3d

163, 172 (3rd Cir. 2013) (emphasis added); see also In

re Pharm. Indus. Average Wholesale Price Litig., 230

F_R.D. 61 (D. Mass. 2005); United States ex rel. Houck

v. Folding Carton Admin. Comm., 881 F.2d 494, 502

(7th Cir. 1989) (recognizing that the court has broad

discretion in identifying appropriate uses of cy pres

distribution of residual settlement funds); but see

Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 482

(5th Cir. 2011) Wones, J., concurring). Faced with ex-

cess funds, the courts in this situation have utilized

the cy pres award as an alternative to providing a

windfall to the already-compensated class plaintiffs or

a refund to the tortfeasor defendant that could under-

mine the deterrent effect of the settlement.

3

The second situation arises when the settlement

did not fully compensate class plaintiffs for their inju-

ries, and because of a lower-than-expected rate of

claims against the fund, there is an excess. As in cat-

egory one, refunding the excess to the tortfeasing de-

fendant could undermine the deterrent effect of the

settlement. But the question remains: Should the ex-

cess funds at least first be distributed to the class

plaintiffs who had filed claims up to the point where

they are fully compensated, with any remaining ex-

cess distributed via a cy pres award, or should all of

the excess funds be distributed via a cy pres award?

Problems of proof (i.e., is “full compensation” what is

alleged in the complaint, or something else?) and ben-

efit of the bargain concerns (i.e., the claim-submitting

class plaintiffs already got what they agreed to by way

of the settlement) regarding what constitutes full

compensation might tilt the balance toward the latter,

but either way, the cy pres award is only made once

class plaintiffs have received some measure of com-

pensation for their injuries. See Pearson v. NBTY,

Inc., 772 F.3d 778 (7th Cir. 2014); In re BankAmerica

Corp. Securities Litig., 775 F.3d 1060 (8th Cir. 2015).

The third situation, at issue here, is where the cy

pres award is made in lieu of compensation to the class

plaintiffs. This third category fails to provide plain-

tiffs with any relief, much less adequate relief, and in-

stead rewards nonparties who admittedly suffered no

harm from defendant’s conduct, raising serious consti-

tutional concerns. The settlement here was $8.5 mil-

lion, but of that, only a few thousand dollars was pro-

vided to the named plaintiffs as “incentive awards.”

$2.125 million was awarded to class counsel (more

than double its lodestar), and the bulk of the settle-

ment, $5.3 million—was provided to nonparties via a

4

cy pres award. No compensation whatsoever—not

damages, or nominal damages, or even coupons, and

not even a change in practices by the defendant—-was

provided to any of the estimated 129 million unnamed

members of the class.

SUMMARY OF ARGUMENT

The Ninth Circuit's ruling raises serious constitu-

tional issues that should inform this Court's determi-

nation of whether Rule 23(e)(2) can be interpreted to

permit such a settlement. First, by directing the set-

tlement funds away from unnamed members of the in-

jured plaintiff class to advocacy groups such as AARP,

Inc. and the World Privacy Forum, the ruling effec-

tively forces those plaintiffs to provide financial sup-

port to organizations with which they may not agree,

in violation of the First Amendment's prohibition on

compelled speech. Second, by allowing class counse!

and, worse, the judge, to determine which causes will

be supported by the cy pres award, the Ninth Circuit's

ruling exacerbates the potential conflict of interest be-

tween class counsel and unnamed members of the

class, and undermines the judge’s role as an unbiased

adjudicator, all in violation of core Due Process prin-

ciples. And finally, by redirecting compensatory relief

away from those who were injured to those who ad-

mittedly suffered no injury by defendant’s actions, the

Ninth Circuit’s ruling raises serious questions about

whether there remained a viable case or controversy

necessary for Article [II jurisdiction. Quite simply,

the cy pres award recipients have no standing because

they have not suffered any injury, and those who do

have standing—the unnamed members of the class

who suffered injury—not only receive no remedy but

are forever foreclosed from obtaining relief.

5

ARGUMENT

I. Interpreting Rule 23(e)(2) to Permit a Bind-

ing Settlement that Redirects Class Action

Settlement Funds From Class Members to

Third Parties (Often Advocacy Groups)

Would Raise Serious First Amendment Con-

cerns.

The cy pres settlement at issue in this case redi-

rects class action settlement funds from unnamed

class members to outside organizations, including ad-

vocacy organizations, that admittedly were not in-

jured by the defendant’s conduct. The lower courts ap-

proved the settlement by utilizing a nexus require-

ment developed in the context of cy pres awards of ex-

cess funds, namely, that there by “some connection ...

between the interests of the class members and the

proposed charitable recipient of the funds.” Cecily C.

Shiel, A New Generation of Class Action Cy Pres Rem-

edies: Lessons from Washington State, 90 Wash. L.

Rev. 943, 951 (2015). See Am. L. Inst., Principles of

the Law of Aggregate Litigation §3.07(c) (2010) (sug-

gesting that settlement funds should be awarded to

those “whose interests reasonably approximate those

being pursued by the class”). However, before any cy

pres awards are distributed, the recipients must be

approved by the court.

But in the context of a case such as this, the redi-

recting of compensatory funds (rather than just excess

funds) from class members to nonparty entities effec-

tively appropriates damages rightly due to the class

members for injuries they suffered, to advocacy organ-

izations that had no such harms and that are commit-

ted to advocating for causes that particular class

members might not approve. In effect, class members

6

are forced by the terms of the settlement to support

speech and advocacy activity chosen by class counsel

and approved by the judge, with remedial funds that

by rights should have been paid to them.

In other words, the settlement at issue here com-

pels unnamed class members to support causes advo-

cated by AARP and the World Privacy Forum—com-

pelled speech not unlike that at issue in Janus v. Am.

Fed'n, 138 S. Ct. 54 (cert. granted Sept. 28, 2017), cur-

rently pending before this Court. Interpreting Rule

23(e)(2) to allow for such a settlement therefore raises

the same kind of First Amendment concerns that are

at issue there.

Quite simply, such compelled speech is contrary to

the original understanding of the First Amendment.

The founding generation voiced its concerns through

debates over compelled financial support of churches

in Massachusetts and Virginia, the Virginia debate

being the most famous. And this Court has often

quoted Jefferson's argument that “to compel a man to

furnish contributions of money for the propagation of

opinions which he disbelieves and abhors is sinful and

tyrannical.” Thomas Jefferson, A Bill for Establishing

Religious Freedom (1779), in 5 The Founders Consti-

tution, University of Chicago Press (1987) at 77

(quoted in, e.g., Keller v. State Bar, 496 U.S. 1, 10

(1990); Chicago Teachers Union v. Hudson, 475 U.S.

292, 305, n.15 (1986); Abood v Detroit Board of Edu-

cation, 431 U.S.209, 234-35 n.31 (1977); Everson v.

Board of Education, 330 U.S. 1, 13 (1947)). Jefferson

went on to note “[t]hat even forcing him to support

this or that teacher of his own religious persuasion, is

depriving him of the comfortable liberty of giving his

contributions to the particular pastor whose morals he

7

would make his pattern.” Jefferson, Religious Free-

dom, supra at 77.

Although these statements were made in the con-

text of compelled religious assessments, these same

principles can be applied to compelled financial sup-

port of court-e:.dorsed cy pres recipients. The petition-

ers in this case objected to the recipients of the cy pres

award because the awards were given to organiza-

tions already being supported by Google. Pet. App 13.

Additionally, Petitioner argued that “[t]he AARP

takes political positions opposed by many class mem-

bers, including” Petitioner. Pet. App. 131. Requiring

the petitioner to give their settlement funds to AARP

to engage in advocacy with which Petitioners disa-

greewould violate their First Amendment rights. Ac-

complishing the same thing by way of a cy-pres-only

settlement does not obviate the First Amendment

problem.

Il. Allowing Class Counsel and the District

Court to Redirect Class Members’ Remedial!

Settlement Funds to Non-Parties Favored

by Them Raises Serious Due Process Con-

cerns.

The Ninth Circuit’s interpretation of Rule 23(e)(2)

to permit the type of cy-pres-only settlements at issue

here raises two significant Due Process concerns.

First, it creates (or exacerbates) an inherent conflict

of interest between class counsel and the members of

the class they supposedly represent. See, e.g., Rad-

cliffe v. Hernandez, 818 F.3d 537, 545 (9th Cir. 2016);

cf. Wood v. Georgia, 450 U.S. 261, 271 (1981). Second,

to the extent the court itself participates in the desig-

nation of the of the cy pres award recipients, class

members are deprived of a neutral adjudicator—a

8

core requirement of due process. See, e.g., In re Mur-

chison, 349 U.S. 133, 136 (1955); see also Henry J.

Friendly, “Some Kind of Hearing,” 123 Univ. Penn '..

Rev. 1267, 1279 (1975).

Regarding the conflict of interest between class

counsel and class members, it is commonplace that

the interest of the class counsel and the mem) rs of

the class do not always coincide. Ted Frank, Cy Pres

Settlements, Center for Class Action Fairness LLC.”

In a Sears class action case, for example, the “plain-

tiffs’ attorneys received about $1 million, while the 1.5

million member class redeemed claims at under a

0.1% rate for a total of $2,402.” Jd. A similar situation

arises in this case. The few named class plaintiffs re-

ceived “incentive awards” totaling $15,000 and the

rest of the 129 million members of the class received

nothing, while the attorneys were awarded $2.125

million. Pet. App. 54-55. Furthermore, the class coun-

sel assisted in selecting the organizations that would

be the recipients of the the recipients of the cy pres

awards and chose the following: World Privacy Fo-

rum; Carnegie Mellon University; the Center for In-

formation, Society and Policy at Chicago-Kent College

of Law; the Berkman Center for Internet and Society

at Harvard University; the Stanford Center for I nter-

net and Society; and AARP. Pet. App. 5. The three

schools selected (Chicago-Kent College of Law, Har-

vard University, and Stanford) were all alma maters

of the class counsel, Pet. App. 25-26, raising a signifi-

cant appearance that class counsel had negotiated a

settlement that benefit their own charitable purposes

* Available at httpse://www.americanbar.org/con-

tent/dam/aba/administrative/litigation/materials/2016_sac/writ-

ten_materials/6_cy-pres_settlement.authcheckdam. pdf.

9

to the detriment of remedial compensation claims by

the class members they represented.

As for the concern about a non-neutral adjudicator,

“i]t is axiomatic that ‘[a] fair trial in a fair tribunal is

a basic requirement of due process.” Caperton v. A.T.

Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting /n

re Murchison, 349 U.S. 133, 136 (1955)). For there to

be a fair tribunal, the judge must be neutral, for “no

man can be a judge in his own case,’ and ‘no man is

permitted to try cases where he has an interest in the

outcome.” Caperton, 556 U.S. at 876 (quoting Murchi-

son, 349 U.S. at 136).

A news account from the New York Times about a

decade ago highlights the problem. “Judges all over

the country have gotten into the business of doling out

leftover class-action settlement money,” the Times re-

ported, “sometimes to an organization only tangen-

tially related to the subject of the lawsuit.” Adam Lip-

tak, Doling Out Other People's Money, N.Y. TIMES,

A14 (Nov. 26, 2007).° For example, there was $6 mil-

lion of unclaimed settlement funds left from an anti-

trust class action lawsuit brought by a group of models

against their modeling agencies. Jd. The federal judge

overseeing the case interviewed applicants for the ex-

cess funds and gave such funds to organizations only

“tangentially related to the subject of the lawsuit.” /d.

There has also been a case of “a newly created charity

where the judges who approved the settlement and

three of the plaintiffs attorney sat as board members,

each receiving tens of thousands of dollars for their

services.” Ted Frank, Cy Pres Settlements, Center for

5 Available at http://www.nytimes.com/2007/1 1/26/washing-

ton/26bar. html.

10

Class Action Fairness LLC, (D-15), supra n. 2. Indeed,

in what the Times described as an “unseemly” devel-

opment, various charities organizations now lobby

judges in order to get funds from class settlements.

Litpak, supra, n. 3. And as a result, there is now a

significant risk that the supposedly neutral adjudica-

tor will be tempted to approve cy-pres-only settle-

ments that benefit his or her preferred charities, to

the detriment of the interests of class members who

receive nothing from the settlement the judge ap-

proves.

These are not isolated incidents; they are becoming

more prevalent with class action settlements.

Whether Rule 23(e)(2) can be interpreted to permit

such settlements, despite the significant Due Process

concerns raised by them, is an issue that should be

addressed by this Court.

Ill. The Ninth Circuit's Interpretation of Rule

23(e)(2) Also Raises Significant Article II!

Case or Controversy Concerns.

Article III “confines the federal courts to adjudi-

cating actual ‘cases’ and ‘controversies.” Allen v.

Wright, 468 U.S. 737, 750 (1984) (citing Valley Forge

Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 471-76

(1982)). To determine whether there is actual case or

controversy, courts look to standing doctrine to deter-

mine “whether the plaintiff has ‘alleged such a per-

sonal stake in the outcome of the controversy’ “as to

warrant his invocation of federal-court jurisdiction to

justify exercise of the court’s remedial power on his

behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975)

(Baker v. Carr, 369 U.S. 186, 204 (1962). Further-

more, standing will only be found if “[plaintiff] can

11

show that he himself has suffered or will suffer injury

whether economic or otherwise.” Sierra Club v. Mor-

ton, 405 U.S. 727, 728 (1972).

The class action settlement approved by the Ninth

Circuit below does not involve the exercise of the

court’s remedial power on “behalf” of unnamed class

members, because it provided no relief to them. Nor

did the cy pres recipients of the settlement funds have

a “personal stake in the outcome” of the litigation, be-

cause they were not even parties to it and had alleged

no injury. The Ninth Circuit’s interpretation of Rule

23(e)(2) to allow such a settlement therefore raises se-

rious questions about whether that court has ex-

ceeded its Article III authority.

The Ninth Circuit is not alone here. For example,

in a class action suit brought on behalf of purchasers

of various chemicals against a chemical company, the

District Court for the District of Columbia approved a

motion to distribute a cy pres award to the George

Washington University Law School. Diamond Chemi-

cal Co. v. Akzo Nobel Chemical. B.V., 517 F Supp.2d

212 (D.D.C 2007). Similarly, the “Illinois Institute of

Technology got $5 million from a settlement in a case

involving a diabetes drug in Illinois.” Liptak, Doling

Out Other People's Money, N.Y. TIMES at Al4, supra

n. 3. None of the entities that received the cy pres set-

tlements had any injury caused by the defendant that

would justify relief. None of them were parties in the

litigation, nor were their rights being adjudicated in

the litigation. They were awarded cy pres funds

merely because they had a loose connection with the

issues involved in the litigation, with the courts ap-

plying a nexus test developed in the entirely different

context of cy pres distribution of excess settlement

12

funds. Because the low threshold for that test falls

well beneath the legal requirements for standing, use

of it by those courts, as by the Ninth Circuit in this

case, to affirm settlement agreements under Rule

23(e)(2) raises serious enough Article III concerns as

to warrant this Court’s review.

In addition, as Judge Edith Jones has noted, be-

cause cy pres award distributions “likely violate Arti-

cle III’s standing requirements,” the courts “should be

troubled that cy pres distribution to an outsider unin-

volved in the original litigation may confer standing

to intervene in the subsequent proceedings should dis-

tribution somehow go awry.” Klier v. Elf Atochem

North America, Inc., 658 F.3d 468, 480 (5th Cir. 2011)

(Jones, J., concurring). In other words, these cy pres

award settlements violate the adversarial model of

adjudication and the requirements of Article III by

granting relief to nonparties who have suffered no in-

jury. As Northwestern University Law Professor Mar-

tin Redish has correctly observed, the distribution of

cy pres awards to nonparties transforms the “judicial

process from a bilateral private rights adjudicatory

model into a trilateral process.” Martin H. Redish, et

al., Cy Pres & the Pathologies of the Modern Class Ac-

tion: A Normative and Empirical Analysis, 62 Fla.

L.Rev., 617, 641 (2010).

This trend toward cy-pres-only awards, based on

the dubious authority of a federal rule of civil proce-

dure, thus raises serious questions about the federal

court’s constitutional authority to approve, much less

participate in, such settlements. The issue warrants

this Court’s attention now, before the trend gets even

further out of control.

13

CONCLUSION

The petition for writ of certiorari should be

granted, and the decision of the Ninth Circuit below

should be reversed.

February 2018 Respectfully submitted,