Benjamin Joffe v. Google, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE GOOGLE INC. STREET VIEW No. 20-15616
ELECTRONIC COMMUNICATIONS
LITIGATION, D.C. No.
3:10-md-02184-
CRB
BENJAMIN JOFFE; LILLA MARIGZA;
RICK BENITTI; BERTHA DAVIS;
JASON TAYLOR; ERIC MYHRE; JOHN OPINION
E. REDSTONE; MATTHEW BERLAGE;
PATRICK KEYES; KARL H. SCHULZ;
JAMES FAIRBANKS; AARON LINSKY;
DEAN M. BASTILLA; VICKI VAN
VALIN; JEFFREY COLMAN; RUSSELL
CARTER; STEPHANIE CARTER;
JENNIFER LOCSIN,
Plaintiffs-Appellees,
DAVID LOWERY,
Objector-Appellant,
v.
GOOGLE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
2 IN RE GOOGLE INC. STREET VIEW LITIG.
Argued and Submitted February 11, 2021
San Francisco, California
Filed December 27, 2021
Before: Marsha S. Berzon, Morgan Christen, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Bade;
Concurrence by Judge Bade
SUMMARY *
Class Actions
The panel affirmed the district court’s order certifying a
class, approving a settlement agreement, and awarding
attorneys’ fees, in a consolidated class action lawsuit in
which plaintiffs alleged, on behalf of an estimated sixty
million people, that Google illegally collected their Wi-Fi
data through its Street View program.
After a decade of litigation, including a complex, three-
year forensic investigation to confirm the standing of the
eighteen named plaintiffs, the parties reached a settlement
agreement that provided for injunctive relief, cy pres
payments to nine Internet privacy advocacy groups, fees for
the attorneys, and service awards to class representatives—
but no payments to absent class members. The district court
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE GOOGLE INC. STREET VIEW LITIG. 3
approved the proposed settlement, finding that it was not
feasible to distribute funds directly to class members given
the class size and the technical challenges to verifying class
members’ claims. David Lowery, one of two objectors to the
settlement proposal, appealed the district court’s approval of
the settlement and grant of attorneys’ fees.
Federal courts have widely recognized the cy pres
doctrine as a tool for distributing unclaimed or non-
distributable portions of a class action settlement fund to the
“next best” class of beneficiaries.
The panel rejected the suggestion that a district court
may not approve a class-action settlement that provides
monetary relief only in the form of cy pres payments to third
parties.
Lowery argued that, even if permissible in some
circumstances, cy pres relief was inappropriate here because
it was feasible to distribute settlement funds directly to class
members. Because self-identification would be pure
speculation, and any meaningful forensic verification of
claims would be prohibitively costly and time-consuming,
the panel affirmed the district court’s finding that it was not
feasible to verify class members’ claims as would be
necessary to distribute funds directly to class members.
Further, as proof of individual claims would be burdensome
and distribution of damages costly, the panel held that the
district court did not abuse its discretion by approving the
use of cy pres payments in the settlement.
The panel rejected Lowery’s argument that if it was
impossible to distribute settlement funds to class members,
then class certification was an error of law because the class
device was not superior to other available methods for fairly
4 IN RE GOOGLE INC. STREET VIEW LITIG.
and efficiently adjudicating the controversy, as Fed. R. Civ.
P. 23(b)(3) requires. Noting that this court, in upholding the
validity of cy pres arrangements, has repeatedly recognized
that class members do benefit—albeit indirectly—from a
defendant’s payment of funds to an appropriate third party,
the panel held that the infeasibility of distributing settlement
funds to class members does not preclude class certification.
Considering the unique challenges plaintiffs would have
faced in proving their claims, the panel held that the district
court did not err by concluding that the injunctive relief—
which required Google to destroy all acquired payload data,
refrain from collecting or storing additional payload data
through Street View without notice and consent, and comply
with other provisions in an assurance of voluntary
compliance entered into with the attorneys general of thirty-
eight states and the District of Columbia—together with the
indirect benefits conferred by the cy pres provisions, was
“fair, reasonable, and adequate” compensation to the class
members under Fed. R. Civ. P. 23(e)(2).
Lowery argued that the settlement violates the First
Amendment’s prohibition on compelled speech by
distributing class settlement funds to organizations “that take
lobby positions adverse to” his own interests and beliefs.
The panel did not decide whether, or under what
circumstances, a district court’s approval of a class action
settlement agreement is “state action” for purposes of the
First Amendment. Instead, the panel held that the settlement
agreement does not compel class members to subsidize
third-party speech because any class member who does not
wish to subsidize speech by a third party that he or she does
not wish to support, can simply opt out of the class.
IN RE GOOGLE INC. STREET VIEW LITIG. 5
Lowery argued that the district court abused its
discretion by approving cy pres recipients who had a
“significant prior affiliation” with defense counsel and class
counsel. The panel noted that this court has never held that
merely having previously received cy pres funds from a
defendant, let alone other defendants in unrelated cases,
disqualifies a proposed recipient for all future cases; and that
this court has affirmed cy pres provisions involving much
closer relationships between recipients and parties than
anything Lowery alleges here. The panel concluded that the
district court’s approval of the cy pres recipients comported
with the applicable standards, and found no abuse of
discretion.
Lowery argued that the district court abused its
discretion by “blindly applying” a 25% benchmark for
attorneys’ fees without regard for the actual benefit the
settlement conferred on the class. The panel wrote that the
district court’s reasoning makes clear that this was not a
“blind” application of a benchmark to the circumstances of
the case. The panel also explained that there is no uniform
rule that district courts must discount the value of any cy pres
relief, regardless of the feasibility of distribution to class
members or other relevant circumstances. Affirming the fee
award, the panel wrote that the district court properly
considered all relevant circumstances, including the value to
class members.
Because the panel affirmed the district court’s finding
that the settlement provides adequate value to the class, and
because there is no indication that counsel accepted
attorneys’ fees or favored third parties over class members,
the panel rejected Lowery’s argument that class counsel and
their class representatives breached their fiduciary duties by
entering the settlement.
6 IN RE GOOGLE INC. STREET VIEW LITIG.
Concurring, Judge Bade wrote separately to express
some general concerns about cy pres awards. She wrote that
she is not convinced that cy pres awards to uninjured third
parties should qualify as an indirect benefit to injured class
members, and that she is concerned that the cy pres remedy
is purely punitive, with defendants paying millions of dollars
in what are essentially civil fines to class counsel and third
parties while providing no compensation to injured class
members. She further questioned whether cy pres awards
are inherently unfair when the class receives no meaningful
relief in exchange for their claims, and whether such awards
can be justified given the serious ethical, procedural, and
constitutional problems that others have identified.
COUNSEL
Adam E. Schulman (argued) and Theodore H. Frank,
Hamilton Lincoln Law Center, Center for Class Action
Fairness, Washington, D.C., for Objector-Appellant.
Daniel A. Small (argued) and Robert W. Cobbs, Cohen
Milstein Sellers & Toll PLLC, Washington, D.C.; Elizabeth
L. Cabraser, Michael W. Sobol, and Melissa Gardner, Leiff
Cabraser Heimann & Bernstein LLP, San Francisco,
California; Jeffrey L. Kodroff, John A. Macoretta, and Mary
Ann Geppert, Spector Roseman & Kodroff P.C.,
Philadelphia, Pennsylvania; for Plaintiffs-Appellees.
Brian M. Willen (argued) and Eli B. Richlin, Wilson Sonsini
Goodrich & Rosati, New York, New York; David H.
Kramer, Wilson Sonsini Goodrich & Rosati, Palo Alto,
California; Paul N. Harold, Wilson Sonsini Goodrich &
Rosati, Washington, D.C.; for Defendant-Appellee.
IN RE GOOGLE INC. STREET VIEW LITIG. 7
Kate B. Sawyer (argued), Assistant Solicitor General; Keena
Patel, Assistant Attorney General; Oramel H. Skinner,
Solicitor General; Mark Brnovich, Attorney General; Office
of the Attorney General, Phoenix, Arizona; Steve Marshall,
Attorney General, State of Alabama; Kevin G. Clarkson,
Attorney General, State of Alaska; Leslie Rutledge,
Attorney General, State of Arkansas; Lawrence G. Wasden,
Attorney General, State of Idaho; Curtis T. Hill Jr., Attorney
General, State of Indiana; Derek Schmidt, Attorney General,
State of Kansas; Jeff Landry, Attorney General, State of
Louisiana; Eric Schmitt, Attorney General, State of
Missouri; Aaron D. Ford, Attorney General, State of
Nevada; Wayne Stenehjem, Attorney General, State of
North Dakota; Dave Yost, Attorney General, State of Ohio;
Mike Hunter, Attorney General, State of Oklahoma; for
Amici Curiae Thirteen Attorneys General for the States of
Arizona, Alabama, Alaska, Arkansas, Idaho, Indiana,
Kansas, Louisiana, Missouri, Nevada, North Dakota, Ohio,
and Oklahoma.
Ellen Bronchetti and Ron Holland, McDermott Will &
Emery LLP; San Francisco, California; Wilber H. Boies and
Timothy M. Kennedy, McDermott Will & Emery LLP,
Chicago, Illinois; for Amici Curiae Legal Aid Organizations.
Stuart T. Rossman, National Consumer Law Center, Boston,
Massachusetts; Michael Landis, Center for Public Interest
Research, Denver, Colorado; for Amici Curiae United States
Public Interest Research Group Education Fund and
National Consumer Law Center.
8 IN RE GOOGLE INC. STREET VIEW LITIG.
OPINION
BADE, Circuit Judge:
In this consolidated class action lawsuit, plaintiffs
alleged, on behalf of an estimated sixty million people, that
Google illegally collected their Wi-Fi data through its Street
View program. After a decade of litigation, including a
complex, three-year forensic investigation to confirm the
standing of the eighteen named plaintiffs, the parties reached
a settlement agreement that provided for injunctive relief, cy
pres payments to nine Internet privacy advocacy groups,
fees for the attorneys, and service awards to class
representatives—but no payments to absent class members.
The district court approved the proposed settlement, finding
that it was not feasible to distribute funds directly to class
members given the class size and the technical challenges to
verifying class members’ claims.
David Lowery, one of two objectors to the settlement
proposal, appeals the district court’s approval of the
settlement and grant of attorneys’ fees. He argues that the
district court should not have approved the settlement
because it was feasible to distribute funds to class members,
and that if it truly was not feasible to do so, then the district
court should not have certified the class. He also asserts that
the settlement violated the First Amendment’s prohibition
on compelled speech, that the cy pres recipients had
improper relationships with the parties and class counsel,
that the district court awarded excessive attorneys’ fees, and
that class counsel and the class representatives breached
their fiduciary duties. We conclude that the district court did
not abuse its discretion in approving the settlement,
certifying the class, or in its award of attorneys’ fees, and
that it did not commit legal error by rejecting Lowery’s First
Amendment argument. We affirm.
IN RE GOOGLE INC. STREET VIEW LITIG. 9
I
In 2007, Google launched Street View, a web-based
technology that would eventually provide users with
panoramic street-level images from numerous points along
roads throughout the world. To obtain the images for Street
View, Google deployed a fleet of specially adapted cars
(“Street View Vehicles”). As it turned out, however, these
vehicles did not simply take photographs; they were also
equipped with Wi-Fi antennas and software designed to
collect, decode, and analyze various kinds of data commonly
transmitted over Wi-Fi networks. The Street View Vehicles
collected basic identifying information—such as signal
strength, broadcasting channel, data transmission rate, media
access control (“MAC”) address, and Service Set Identifier
(“SSID”)—from Wi-Fi networks along the roads they
travelled, apparently for the purpose of providing enhanced,
“location-aware” services to Street View users. 1
In May 2010, Google revealed that its Street View
Vehicles had been collecting not just network identifying
information, but also payload data—that is, substantive
information such as emails, usernames, passwords, videos,
photographs, and documents—that Internet users
transmitted over unencrypted Wi-Fi networks when the
Street View Vehicles were nearby. See Joffe v. Google, Inc.,
729 F.3d 1262, 1264 (9th Cir.), amended and superseded on
reh’g by 746 F.3d 920 (9th Cir. 2013). In total, the Street
View Vehicles apparently collected around three billion
1
As Google explains it, this identifying information for Wi-Fi
networks would allow Street View to utilize these networks as “unique
geographical landmark[s]” for users to pinpoint their location when
satellite-based GPS is unavailable.
10 IN RE GOOGLE INC. STREET VIEW LITIG.
frames of raw data from wireless networks, including
approximately 300 million frames containing payload data.
Google publicly apologized for collecting payload data,
suspended operation of the Street View Vehicles, and stated
that it had segregated the data and rendered it inaccessible.
It insisted (as it still maintains) that it never intended to
collect payload data. Nevertheless, the revelations led to
state and federal investigations, including a joint
investigation by the attorneys general of thirty-eight states
and the District of Columbia. In March 2013, Google
entered an Assurance of Voluntary Compliance (“AVC”)
with these attorneys general regarding its collection of Wi-
Fi data from Street View Vehicles. Among other provisions,
the AVC stated that Google would destroy all payload data
it had acquired, refrain from collecting or storing any
additional payload data through Street View without notice
and consent, maintain a “privacy program” as described in
the AVC, and undertake a public service and education
campaign. 2 The AVC also required Google to pay a total of
$7 million to the attorneys general.
But Google’s legal troubles related to the Street View
Vehicles did not end with the AVC. Shortly after Google’s
May 2010 admission, at least thirteen putative class action
lawsuits were brought based on the Street View Vehicles’
collection of payload data. In August 2010, the Judicial
2
The public service campaign was required to include several
components, including “[d]evelop[ing] and promot[ing] a video on
YouTube that explains how users can encrypt their wireless networks,”
keeping the video on YouTube for at least two years, writing “a blog post
. . . explaining the value of encrypting a wireless network,” and running
“at least one half-page educational newspaper ad in a newspaper of
national circulation and at least one half-page educational ad in the
newspaper with the greatest circulation rate in each State.”
IN RE GOOGLE INC. STREET VIEW LITIG. 11
Panel on Multidistrict Litigation consolidated eight of these
cases and transferred them to the Northern District of
California.
In November 2010, Plaintiffs filed a Consolidated Class
Action Complaint asserting various state and federal claims,
including violations of the Wiretap Act, see 18 U.S.C.
§ 2511, and seeking statutory and punitive damages as well
as injunctive relief. Google moved to dismiss the complaint,
and the district court dismissed the state law claims on pre-
emption and standing grounds but held that Plaintiffs had
adequately alleged violations of the Wiretap Act. See In re
Google Inc. St. View Elec. Commc’ns Litig., 794 F. Supp. 2d
1067, 1073–87 (N.D. Cal. 2011). We affirmed in an
interlocutory appeal. Joffe, 746 F.3d 920.
On remand, Google disputed the named plaintiffs’
standing, and the district court appointed a special master to
determine “whether any communications from [named]
Plaintiffs’ unencrypted Wi-Fi networks were actually
acquired by Google.” This investigation first required the
eighteen named plaintiffs to provide “personal information
and forensic evidence of their wireless network equipment,”
including MAC addresses, email addresses, and SSIDs, to
the special master. Then, as the district court described it,
the special master organized the massive troves of Street
View data “into a searchable database,” developed custom
software to process the data, and “conducted complex
technical searches” to identify whether the data contained
any transmissions intercepted from the named plaintiffs.
This process took three years and culminated in a report,
filed under seal with the district court in 2017, which was
apparently still not entirely conclusive on whether Google
had intercepted payload data from the named plaintiffs.
12 IN RE GOOGLE INC. STREET VIEW LITIG.
In June 2018, the parties reached a settlement agreement
for a class consisting of “all persons who used a wireless
network device from which Acquired Payload Data was
obtained” from January 1, 2007 through May 15, 2010.
Class counsel estimated that this class included
approximately sixty million members. The settlement
agreement provided that Google would establish a
$13 million settlement fund. The agreement did not provide
for any direct payments to absent class members. Instead,
after attorneys’ fees, litigation expenses, service awards for
the class representatives, notice and claims administration
costs, and escrow account charges and taxes, the remainder
of the fund was to be divided equally among “one or more
Proposed Cy Pres Recipient(s).” Plaintiffs would select the
proposed recipients and, after disclosing the list to Google
and consulting “in good faith regarding any concerns Google
may have,” would recommend them to the district court for
approval. Each cy pres recipient would have to “commit to
use the funds to promote the protection of Internet privacy.”
Plaintiffs proposed eight cy pres recipients without
objection from Google: the Center on Privacy & Technology
at Georgetown Law, the Center for Digital Democracy,
Massachusetts Institute of Technology’s Internet Policy
Research Initiative, World Privacy Forum, Public
Knowledge, the Rose Foundation for Communities and the
Environment, the American Civil Liberties Union
Foundation (ACLU), and Consumer Reports. The
Electronic Privacy Information Center (EPIC) also
successfully petitioned the district court to be included as a
cy pres recipient without objection from Google or
Plaintiffs.
In addition to the provisions regarding the $13 million
settlement fund, Google agreed to the following injunctive
IN RE GOOGLE INC. STREET VIEW LITIG. 13
relief for a period of five years after final approval of the
settlement agreement:
• To “destroy all Acquired Payload Data . . . within
forty-five (45) days of Final Approval” of the
settlement agreement;
• Not to “collect and store for use in any product or
service Payload Data via Street View vehicles,
except with notice and consent”;
• To “comply with all aspects of the Privacy Program
described in . . . the [AVC] and with the prohibitive
and affirmative conduct described in [the AVC],”
and to “confirm to Plaintiffs in writing on an annual
basis that it remains in compliance”; and
• To “host and maintain educational webpages that
instruct users on the configuration of wireless
security modes and the value of encrypting a wireless
network.”
After the district court granted preliminary approval of
the settlement agreement, two putative class members—
David Lowery and David Franco—objected, and a group of
state attorneys general, led by the Arizona Attorney General,
filed an amicus brief objecting to the settlement agreement.
At a fairness hearing in February 2020, Lowery’s attorney
and a representative from the Arizona Attorney General’s
Office both argued that cy pres relief was inappropriate and
that the $13 million fund should instead be distributed to
class members through either a claims process or a lottery
distribution to class members who self-identified.
Alternatively, Lowery argued that if it truly was not feasible
to distribute the funds to class members, then class
14 IN RE GOOGLE INC. STREET VIEW LITIG.
certification was inappropriate based on Federal Rule of
Civil Procedure 23(b)(3)’s requirement that the class device
be superior to other forms of adjudication. Lowery also
argued that distribution of settlement funds to cy pres
recipients constituted compelled speech in violation of the
First Amendment, that the proposed recipients had improper
pre-existing relationships with counsel and the parties, and
that the requested 25% fee was excessive.
In March 2020, the district court certified the class for
settlement purposes under Rule 23(b)(3), granted attorneys’
fees of 25% of the net settlement fund, and approved the
settlement after considering the fairness factors of Rule
23(e)(2) and the reaction of the class members. The district
court rejected Lowery’s arguments about the feasibility of
distribution and concluded that the inability to distribute
funds did not preclude class certification. It also rejected
Lowery’s First Amendment argument, his objections to the
cy pres recipients, and his objection to the fee award.
Lowery timely appealed.
II
“We review a district court’s approval of a proposed
class action settlement, including a proposed cy pres
settlement distribution, for abuse of discretion.” Nachshin
v. AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011). “[W]e
will affirm if the district judge applies the proper legal
standard and his findings of fact are not clearly erroneous.”
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,
940 (9th Cir. 2011) (internal quotation marks and citation
omitted). We also “review a district court’s class
certification decision for abuse of discretion.” Sali v.
Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018).
We review a First Amendment challenge to the district
court’s approval of a settlement agreement de novo. See
IN RE GOOGLE INC. STREET VIEW LITIG. 15
Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d
1062, 1067 n.3 (9th Cir. 2020). “We also review for abuse
of discretion a district court’s award of fees and costs to class
counsel, as well as its method of calculation.” Bluetooth
Headset, 654 F.3d at 940. “Findings of fact underlying an
award of fees are reviewed for clear error.” Id.III
Before turning to Lowery’s specific objections to the
settlement, we first review the development of cy pres
provisions as a tool to address unclaimed or non-
distributable funds from class action settlements, and our
precedent addressing such provisions. As one court has
explained, “[w]hen modern, large-scale class actions are
resolved via settlement, money often remains in the
settlement fund even after initial distributions to class
members have been made because some class members
either cannot be located or decline to file a claim.” Klier v.
Elf Atochem N. Am., Inc., 658 F.3d 468, 473 (5th Cir. 2011);
see Six (6) Mexican Workers v. Ariz. Citrus Growers,
904 F.2d 1301, 1307 (9th Cir. 1990). Courts have
recognized a few possible solutions to the problem of
unclaimed settlement funds. One option is to permit such
funds to escheat to the government. Hodgson v. YB
Quezada, 498 F.2d 5, 6 (9th Cir. 1974); see 28 U.S.C. § 2042(providing that funds “unclaimed by the person entitled
thereto” for five years revert to the federal treasury). In other
cases, courts have permitted additional pro rata distributions
to those class members who did claim funds. See, e.g., Klier,
658 F.3d at 475. “[I]n exceptional circumstances,” courts
have even recognized that “it may be proper to permit
unclaimed sums to revert to the [defendant].” YB Quezada,
498 F.2d at 6; see also, e.g., Van Gemert v. Boeing Co.,
739 F.2d 730, 736–37 (2d Cir. 1984).
16 IN RE GOOGLE INC. STREET VIEW LITIG.
Beginning in the 1970s, some federal courts began to
recognize another option for disbursing unclaimed
settlement funds. In Miller v. Steinbach, the district court
for the Southern District of New York considered “a
somewhat unorthodox settlement” in a stockholders’
derivative suit. No. 66 Civ. 356, 1974 WL 350, at *1
(S.D.N.Y. Jan. 3, 1974). “In view of the very modest size of
the settlement fund” in that case “and the vast number of
shares among which it would have to be divided,” the parties
agreed to, and the district court approved, an arrangement by
which settlement funds would be paid to an employee
retirement plan rather than class members. Id. The district
court described this arrangement as “a variant of the cy pres
doctrine at common law.” Id. That doctrine, which “takes
its name from the Norman French expression cy pres comme
possible (or ‘as near as possible’), is an equitable doctrine
that originated in trusts and estates law as a way to effectuate
the testator’s intent in making charitable gifts.” In re Google
Referrer Header Priv. Litig., 869 F.3d 737, 741 (9th Cir.
2017), vacated and remanded, Frank v. Gaos, 139 S. Ct.
1041 (2019).
In the years since Miller, federal courts have widely
recognized the cy pres doctrine as a tool for “distribut[ing]
unclaimed or non-distributable portions of a class action
settlement fund to the ‘next best’ class of beneficiaries.”
Nachshin, 663 F.3d at 1036 (citation omitted). It is well
established in this circuit that district courts may approve
settlements with cy pres provisions that affect only a portion
of the total settlement fund. See, e.g., Molski v. Gleich,
318 F.3d 937, 954 (9th Cir. 2003), overruled on other
grounds by Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571(9th Cir. 2010) (en banc). Moreover, although no binding
Ninth Circuit precedent specifically addresses the propriety
of settlements where, as here, the only monetary relief comes
IN RE GOOGLE INC. STREET VIEW LITIG. 17
in the form of cy pres payments to third parties, we upheld
such a settlement in Lane v. Facebook, Inc., 696 F.3d 811,
820–21 (9th Cir. 2012), and have repeatedly indicated that
such settlements are permissible under appropriate
circumstances.
For example, in Nachshin v. AOL, LLC, we reversed
approval of a settlement that included cy pres payments “on
behalf of a nationwide plaintiff class” to “four charities of
the class representatives’ choice” and three other agreed-
upon charities, including the Boys and Girls Club of
America, the New Roads School of Santa Monica,
Oklahoma Indian Legal Services, the Federal Judicial Center
Foundation, and the Friars Foundation. 663 F.3d at 1036–
37. The district court approved cy pres payments to these
charities, whose work had little to do with the plaintiffs’
claims (unjust enrichment based on AOL’s wrongful
insertion of promotional messages into subscribers’ emails),
after the parties concluded that monetary damages “were
small and difficult to ascertain,” and “they could not identify
any charitable organization that would benefit the class or be
specifically germane to the issues in the case.” Id. at 1037.
We reversed, not because the monetary relief went only
to cy pres recipients instead of class members, but because
the chosen recipients were unsuitable given the composition
and injuries of the plaintiff class. The diverse assortment of
cy pres recipients, we held, “fail[ed] to meet any of the
guiding standards” for such settlements, id. at 1040, which
require that cy pres disbursements “account for the nature of
the plaintiffs’ lawsuit, the objectives of the underlying
statutes, and the interests of the silent class members,
including their geographic diversity,” id. at 1036. We
explained:
18 IN RE GOOGLE INC. STREET VIEW LITIG.
We are also not persuaded by the parties’
claims that the size and geographic diversity
of the plaintiff class make it “impossible” to
select an adequate charity. It is clear that all
members of the class share two things in
common: (1) they use the internet, and
(2) their claims against AOL arise from a
purportedly unlawful advertising campaign
that exploited users’ outgoing e-mail
messages. The parties should not have
trouble selecting beneficiaries from any
number of non-profit organizations that work
to protect internet users from fraud,
predation, and other forms of online
malfeasance. If a suitable cy pres beneficiary
cannot be located, the district court should
consider escheating the funds to the United
States Treasury.
Id. at 1040–41.
We again considered a settlement that provided no
monetary relief directly to absent class members in Lane,
where a district court approved a settlement agreement in
which Facebook would pay $9.5 million in exchange for a
release of all the plaintiffs’ class claims. 696 F.3d at 816.
After attorneys’ fees, administrative costs, and class
representative payments, “Facebook would use the
remaining $6.5 million or so in settlement funds to set up a
new charity organization” “to educate users, regulators[,]
and enterprises regarding critical issues relating to protection
of identity and personal information online.” Id. at 817
(alteration in original).
IN RE GOOGLE INC. STREET VIEW LITIG. 19
On appeal, objectors argued that the settlement was
unfair because its cy pres provision gave Facebook too much
control over the charity and because the settlement amount
was too small. Id. at 820, 822. We affirmed the district
court’s approval of the settlement, reasoning that “[t]he cy
pres remedy the settling parties here have devised bears a
direct and substantial nexus to the interests of absent class
members and thus properly provides for the ‘next best
distribution’ to the class.” Id. at 821. While we did not
explicitly analyze the propriety of so-called “cy pres-only”
settlements as a general matter, 3 we indicated that such
arrangements can be appropriate provided they have “the
requisite nexus between the cy pres remedy and the
interests” of the class members. Id. at 822.
In In re Google Referrer Header Privacy Litigation, we
reviewed a district court’s approval of a settlement involving
“a cy pres-only distribution of the [amount] that remain[ed]
in the settlement fund after attorneys’ fees, administration
costs, and incentive awards for the named plaintiffs.”
869 F.3d at 741. “As an initial matter, we quickly dispose[d]
of the argument that the district court erred by approving a
cy pres-only settlement.” Id. While recognizing that such
“settlements are considered the exception, not the rule,” we
3
The term “cy pres-only settlement” is a misnomer. As in Nachshin,
Lane, and Google Referrer, the settlement here does not only provide cy
pres payments to third parties; it also includes injunctive relief. While
“cy pres only” may be a convenient shorthand for settlements that
provide for monetary payments to third parties but not to absent class
members, we apply the same standards when reviewing these settlements
that we would for any class action settlement, asking whether the total
relief afforded by the settlement—whether in the form of injunctive
relief, cy pres payments, or direct monetary payments—adequately
compensates class members for relinquishing their claims. See Koby v.
ARS Nat’l Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017).
20 IN RE GOOGLE INC. STREET VIEW LITIG.
held that “they are appropriate where the settlement fund is
‘non-distributable’ because ‘the proof of individual claims
would be burdensome or distribution of damages costly.’”
Id. (quoting Lane, 696 F.3d at 819).
The Supreme Court granted certiorari in Google Referrer
on the issue of “whether a class action settlement that
provides a cy pres award but no direct relief to class
members satisfies the requirement that a settlement binding
class members be ‘fair, reasonable, and adequate.’” Frank
v. Gaos, 139 S. Ct. 1041, 1045 (2019) (quoting Fed. R. Civ.
P. 23(e)(2)). Ultimately, however, the Supreme Court did
not reach this question; instead, it vacated and remanded on
standing grounds. Id. at 1046. Our analysis of the cy pres
issue in Google Referrer, while no longer binding, is still
persuasive authority. See Rosenbloom v. Pyott, 765 F.3d
1137, 1154 n.14 (9th Cir. 2014).
IV
Turning to Lowery’s arguments, we reiterate at the
outset that strictly speaking, the settlement here is not, as
Lowery describes it, a “cy pres-only settlement.” Instead, it
involves cy pres payments to third-party organizations and
injunctive relief. Nonetheless, in evaluating whether the
settlement was “fair, reasonable, and adequate” under Rule
23(e)(2), we first consider the district court’s finding that it
was not feasible to distribute funds directly to class
members. Second, we consider Lowery’s argument that if it
was infeasible to distribute funds directly to class members,
the district court should not have certified the class. Third,
we ask whether the total value of the settlement to the absent
class members—that is, the value they indirectly receive
through the cy pres provisions plus the value of the
injunctive relief—is enough to justify the district court’s
approval of the settlement agreement. Finally, we turn to
IN RE GOOGLE INC. STREET VIEW LITIG. 21
Lowery’s argument that class counsel and the class
representatives breached their fiduciary duties, his First
Amendment challenge to the cy pres provisions, and his
argument against the district court’s award of attorneys’
fees.
A
As a threshold issue, we reject the suggestion that a
district court may not approve a class-action settlement that
provides monetary relief only in the form of cy pres
payments to third parties. 4 We have repeatedly approved
such settlements, see Google Referrer, 869 F.3d at 741–42;
Lane, 696 F.3d at 822, and therefore adopting a blanket rule
against these arrangements, as Lowery advocates, would be
incompatible with our precedents in which we have
recognized that cy pres awards are an acceptable solution
when settlement funds are not distributable. Our reasoning
has not turned on what portion of the settlement funds—
some or all—is not distributable. Instead, we ask whether
the cy pres disbursements “account for the nature of the
plaintiffs’ lawsuit, the objectives of the underlying statutes,
and the interests of the silent class members.” Lane,
696 F.3d at 821 (quoting Nachshin, 663 F.3d at 1036). In
declining to “impose[] a categorical ban on a settlement that
does not include direct payments to class members,” Google
Referrer, 869 F.3d at 742, we note that other circuits have
generally taken a similar approach to ours, approving cy pres
settlements when they satisfy the appropriate standards for
4
Lowery does not directly assert that all such settlements are
inappropriate. However, the dilemma he poses—either the funds were
distributable, and thus cy pres relief was inappropriate, or the funds were
not distributable, and thus class certification was inappropriate—is
logically equivalent to arguing such settlements are never appropriate
and requires us to consider whether Rule 23(e)(2) ever allows them.
22 IN RE GOOGLE INC. STREET VIEW LITIG.
fairness. See In re Google Inc. Cookie Placement Consumer
Priv. Litig., 934 F.3d 316, 326 (3d Cir. 2019) (rejecting the
argument that “cy pres-only settlements are unfair per se
under Rule 23(e)(2)” and recognizing that “[i]n some cases
a cy pres-only settlement may be proper”); see also, e.g., In
re Lupron Mktg. & Sales Pracs. Litig., 677 F.3d 21, 31–34
(1st Cir. 2012); Powell v. Ga.-Pac. Corp., 119 F.3d 703,
706–07 (8th Cir. 1997).
B
Lowery argues that, even if permissible in some
circumstances, cy pres relief was inappropriate here because
it was feasible to distribute settlement funds directly to class
members. The district court found otherwise “[g]iven the
60 million person class size and the $13 million Settlement
Fund,” and because “it is unusually difficult and expensive
to identify class members in this case.” Lowery argues that
the district court applied the wrong standard for determining
feasibility by asking “whether it is feasible to hand-deliver
checks to every single class member” instead of focusing on
“the ability of some class members to make a claim.” We
disagree. Lowery cites no authority indicating that a district
court must consider only whether settlement funds are
distributable to “some” of a class, nor does he explain what
proportion of a class would satisfy his proposed “some class
members” test.
More fundamentally, even assuming that the subset of
class members who claim payments would be small enough
that the settlement fund could provide meaningful value to
every claimant, Lowery does not identify a viable way for a
claims administrator to verify any claimant’s entitlement to
IN RE GOOGLE INC. STREET VIEW LITIG. 23
settlement funds. 5 Google asserts that verifying that a
person has a valid claim would require making three
determinations: “(1) the [claimant] had maintained an
unencrypted Wi-Fi network in the relevant period; (2) a
Street View vehicle passed within range of that network; and
(3) substantive communications (and not just technical
network data) were transmitted within the precise fraction of
a second when the Street View vehicle passed by and
acquired payload data from the network.” Lowery does not
dispute that a claims administrator would have to verify
these three facts to determine whether a claim is valid, nor
does he suggest any means of third-party claims verification
besides the method the special master used—a process that
took three years of intensive investigation and analysis to
verify the claims of eighteen named plaintiffs. Instead,
5
Lowery argues that district courts have insisted on direct payments
to class members in analogous cases involving very large classes. As an
initial matter, presenting conflicting decisions from other district courts,
without more, does not establish that the district court here abused its
discretion. See Grant v. City of Long Beach, 315 F.3d 1081, 1091 (9th
Cir. 2002) (“The abuse of discretion standard requires us to uphold a
district court determination that falls within a broad range of permissible
conclusions in the absence of an erroneous application of law.”). In any
event, none of the examples Lowery cites involved the sort of technical
challenges to identifying class members present here. See Fraley v.
Facebook, Inc., 966 F. Supp. 2d 939, 940–49 (N.D. Cal. 2013)
(involving no dispute that claims were readily verifiable); In re Carrier
IQ, Inc. Consumer Priv. Litig., No. 12-md-02330-EMC, 2016 WL
4474366, at *3–4 (N.D. Cal. Aug. 25, 2016) (involving claims that were
verifiable by reference to telephone numbers); In re Google Plus Profile
Litig., No. 5:18-cv-06164-EJD, 2021 WL 242887 (N.D. Cal. Jan. 25,
2021) (involving claims that the defendant could easily verify by
compiling a “class list”), appeal docketed, No. 21-15365 (9th Cir.
Mar. 2, 2021).
24 IN RE GOOGLE INC. STREET VIEW LITIG.
Lowery asserts that the district court erred by refusing to
allow claimants to “self-identify” as class members. 6
But his observation that “proof beyond a reasonable
doubt is not required to ascertain a class member in a claims
process” is misplaced. As the district court found, “[t]he
only evidence” of class membership “is the intercepted data,
and that evidence is not in the class member’s possession”
or readily accessible to the claims administrator. Lowery
offers no alternative way for claimants to determine with any
degree of probability whether they are class members.
Because self-identification would be pure speculation,
and any meaningful forensic verification of claims would be
prohibitively costly and time-consuming, we affirm the
district court’s finding that it was not feasible to verify class
members’ claims as would be necessary to distribute funds
directly to class members. Further, as “proof of individual
claims would be burdensome [and] distribution of damages
costly,” Lowery has not shown that the district court abused
6
Lowery observes that the district court permitted the named
plaintiffs to proceed based on self-identification, and that it recognized
Lowery’s own standing based on self-identification. He argues that by
allowing some class members to self-identify but not others, the district
court violated Rule 23’s requirement that settlements “treat[] class
members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D).
However, the district court permitted self-identification only at the
pleading stage and when evaluating standing. It approved the
settlement’s provision for service awards to the named plaintiffs, but
service awards are compensation “for work done on behalf of the class”
throughout litigation, not damages awarded for substantive claims. See
Rodriguez v. W. Pub. Corp., 563 F.3d 948, 958 (9th Cir. 2009).
Moreover, by the time the district court approved the service awards, the
named plaintiffs’ claims were supported not just by their self-
identification, but also by the special master’s extensive forensic
analysis.
IN RE GOOGLE INC. STREET VIEW LITIG. 25
its discretion by approving the use of cy pres payments in the
settlement. Lane, 696 F.3d at 819.
C
Alternatively, Lowery argues that if it was impossible to
distribute settlement funds to class members, then class
certification was an error of law because the class device was
not superior to other available methods for fairly and
efficiently adjudicating the controversy, as Rule 23(b)(3)
requires. But cy pres provisions are tools for “distribut[ing]
unclaimed or non-distributable portions of a class action
settlement fund to the ‘next best’ class of beneficiaries.”
Nachshin, 663 F.3d at 1036 (citation omitted). If it were
feasible to distribute the settlement fund to the class
members, a cy pres settlement would not be employed.
Thus, in the guise of a Rule 23(b)(3) “superiority” argument,
Lowery essentially repackages his argument that cy pres
provisions, which by definition are used when settlement
funds cannot be distributed to class members, are always
improper. We have already rejected this argument,
explaining that a blanket prohibition on so-called “cy pres-
only” settlements, as Lowery advocates, would conflict with
our precedent.
We addressed a similar argument in Briseno v. ConAgra
Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), a class action
lawsuit against a cooking oil manufacturer for false
labelling, in which the defendant opposed class certification,
arguing that plaintiffs “did not propose any way to identify
class members and cannot prove that an administratively
feasible method exists because consumers do not generally
save grocery receipts and are unlikely to remember details
about individual purchases of a low-cost product like
cooking oil,” so they could not verify their status as
claimants. Id. at 1125. We rejected that argument, reasoning
26 IN RE GOOGLE INC. STREET VIEW LITIG.
that Rule 23 never “mention[s] ‘administrative feasibility’”
and that recognizing a standalone “feasibility” requirement
for class certification could render other Rule 23 provisions,
such as “the likely difficulties in managing a class action,”
Fed. R. Civ. P. 23(b)(3)(D), superfluous. Briseno, 844 F.3d
at 1125–26.
Lowery maintains that he is not making “a stand-alone
ascertainability argument of the sort repudiated by Briseno.”
Instead, his argument, he says, is that “the superiority
requirement of Rule 23(b)(3) demands the possibility of
class benefit at the time of certification,” and that if it is
practically impossible to identify absent class members at
the time of certification, then a class action “cannot be a
superior method of adjudicating th[e] controversy” because
there is no possibility of providing meaningful relief. To be
sure, if there were no possibility of providing meaningful
relief via a class action settlement, Lowery’s point might be
persuasive. But in making his argument, Lowery assumes a
critical premise: that it is impossible to provide meaningful
relief to a class when there is no feasible way of identifying
class members.
This premise is not supported by our case law. In
upholding the validity of cy pres arrangements, we have
repeatedly recognized that class members do benefit—albeit
indirectly—from a defendant’s payment of funds to an
appropriate third party. See Lane, 696 F.3d at 819
(describing cy pres remedy as “a settlement structure
wherein class members receive an indirect benefit (usually
through defendant donations to a third party) rather than a
direct monetary payment”); Nachshin, 663 F.3d at 1038 (“In
the context of class action settlements, a court may employ
the cy pres doctrine to put the unclaimed fund to its next best
compensation use, e.g., for the aggregate, indirect,
IN RE GOOGLE INC. STREET VIEW LITIG. 27
prospective benefit of the class.” (internal quotation marks
and citation omitted)).
Indeed, the factors that guide judicial oversight of cy pres
settlement provisions—whether the distributions “account
for the nature of the plaintiffs’ lawsuit, the objectives of the
underlying statutes, and the interests of the silent class
members”—are designed to ensure that cy pres payments
particularly “benefit the plaintiff class.” Id. at 1036, 1040.
If a cy pres award has a “direct and substantial nexus to the
interests of absent class members,” Lane, 696 F.3d at 821, as
it must under our precedents, then it necessarily prioritizes
class members’ interests, even if it also provides a diffuse
benefit to society at large. 7 Thus, the infeasibility of
distributing settlement funds directly to class members does
not preclude class certification.
D
Accordingly, we next consider whether the settlement
agreement provides sufficient value to the class, in the form
of both cy pres relief and injunctive relief, to be “fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). We
hold that the district court did not err by concluding that it
does.
7
Lowery cites In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir.
1974), to support his argument that “[w]hen a ‘great variety’ of
individualized determinations preclude class benefit, class certification
should be denied.” But In re Hotel Telephone Charges is inapposite: it
simply held that a class action involving “over six hundred defendants,”
“millions of plaintiffs,” and “a great variety of individual questions” did
not satisfy the requirements of predominance and manageability, not that
an inability to identify class members precludes certification. Id. at 90–
92.
28 IN RE GOOGLE INC. STREET VIEW LITIG.
The injunctive relief in the settlement agreement, which
required Google to “destroy all Acquired Payload Data,”
refrain from collecting or storing additional payload data
through Street View without notice and consent, and comply
with other AVC provisions specifically referenced in the
settlement agreement, largely duplicated Google’s
obligations under the AVC. However, the injunctive relief
extends beyond Google’s AVC obligations. It requires
Google to maintain its compliance until five years from final
settlement approval—that is, at least two years longer than
the AVC required. Moreover, the injunctive relief in the
settlement requires Google to post additional educational
material online that the AVC did not require. The district
court found that this injunctive relief offered “adequate, if
not the main benefit to the class.” Considering the unique
challenges plaintiffs would have faced in proving their
claims, we hold that the district court did not err by
concluding this injunctive relief, together with the indirect
benefits conferred by the cy pres provisions, was fair,
reasonable, and adequate compensation to the class
members.
In Campbell v. Facebook, Inc., we considered a
settlement agreement that included injunctive relief
requiring “Facebook [to] make a plain English disclosure on
its Help Center page” for one year, informing users about its
“message monitoring practices.” 951 F.3d 1106, 1123 (9th
Cir. 2020). We affirmed the district court’s finding that this
relief “had value to absent class members,” reasoning that it
“ma[de] it less likely that users will unwittingly divulge
private information to Facebook or third parties in the course
of using Facebook’s messaging platform.” Id. We
explained that “the relief provided to the class cannot be
assessed in a vacuum” and that “the class did not need to
receive much for the settlement to be fair because the class
IN RE GOOGLE INC. STREET VIEW LITIG. 29
gave up very little.” Id. We emphasized that the “class
members’ claims were weak enough that the class was fairly
likely to end up receiving nothing at all had this litigation
proceeded further,” and that the injunctive relief provided a
benefit that, while very small, was more than “nothing.” Id.We also affirmed the district court’s finding that this relief
was not “duplicative” of a “change Facebook had already
made,” because it required the disclosure “to stay on display
for a year” and required an explanation written “in plain
English.” Id. at 1123 n.12.
Similarly, although the injunctive relief here requires
relatively little of Google, it does extend Google’s
obligations beyond those in the AVC. Moreover, it does so
in exchange for class members’ relinquishment of legal
claims that might have been quite difficult to prove and
would likely have yielded very little per class member in
damages. As the district court observed, the context of this
settlement was “a case in which a vast but nonetheless
difficult-to-identify class of people suffered intangible
injury, and minimal damages.”
The Arizona Attorney General argues that “the privacy
landscape for technology companies has fundamentally
changed” since 2013 and that companies like Google have
“been forced to focus on user-privacy questions” for reasons
independent of the Street View litigation. Given these
changes, he asserts that “there can be no doubt that Google
will be independently maintaining privacy training, privacy-
related advertising, and management-level attention to
questions of user privacy and unauthorized collection or
disclosure of user information.” To that point, we have
recognized that injunctive relief in a class action settlement
is illusory if it “does not obligate [a defendant] to do
anything it was not already doing,” or if it merely requires a
30 IN RE GOOGLE INC. STREET VIEW LITIG.
defendant to “continue” practices “it voluntarily adopted”
before the settlement. Koby v. ARS Nat’l Servs., Inc.,
846 F.3d 1071, 1080 (9th Cir. 2017). Here, however, the
district court specifically noted that the injunctive relief
required Google to make “changes . . . it would not have
made without the settlement,” which would provide “some
value to the class.” On clear error review, we will not
second-guess the district court’s factual findings based on
speculation about what Google might hypothetically have
done absent the settlement agreement. Campbell, 951 F.3d
at 1123.
Viewing the modest injunctive relief together with the
indirect benefits the class members enjoy through the cy pres
provision, we affirm the district court’s finding that the
settlement was “fair, reasonable, and adequate.” Fed. R.
Civ. P. 23(e)(2).
E
Lowery argues that the settlement violates the First
Amendment’s prohibition on compelled speech by
distributing class settlement funds to organizations “that take
lobbying positions adverse to” his own interests and beliefs.
The district court found no First Amendment violation,
reasoning that “[t]he settlement agreement between the
parties is not state action, . . . and class members ha[ve] the
opportunity to exclude themselves from the settlement.”
As a threshold matter, the parties dispute whether a
district court’s approval of a settlement agreement
constitutes state action such that it implicates First
Amendment protections. See IMDb.com Inc. v. Becerra,
962 F.3d 1111, 1120 (9th Cir. 2020) (“Private parties may
freely bargain with each other to restrict their own speech,
and those agreements may be enforced, without implicating
IN RE GOOGLE INC. STREET VIEW LITIG. 31
the First Amendment.”). We do not decide today whether,
or under what circumstances, a district court’s approval of a
class action settlement agreement is “state action” for
purposes of the First Amendment. Instead, we hold that the
settlement agreement does not compel class members to
subsidize third-party speech because any class member who
does not wish to “subsidize speech by a third party that he or
she does not wish to support,” Harris v. Quinn, 573 U.S.
616, 656 (2014), can simply opt out of the class. 8
Lowery cites Janus v. American Federation of State,
County, and Municipal Employees, Council 31, 138 S. Ct.
2448, 2459–60 (2018), and Knox v. Service Employees
International Union, Local 1000, 567 U.S. 298, 321–22
(2012), to argue that “silence is not consent and a waiver of
First Amendment rights cannot be presumed.” It is not
entirely clear what connection Lowery intends to draw
between these decisions and his First Amendment
arguments, but Janus and Knox are inapposite. The Supreme
Court held in Janus that states cannot require paycheck
deductions for public employees to subsidize unions that
engage in advocacy those employees find objectionable. It
explained, “[n]either an agency fee nor any other payment to
the union may be deducted from a nonmember’s wages, nor
may any other attempt be made to collect such a payment,
unless the employee affirmatively consents to pay.” 138
S. Ct. at 2486. But Janus involved mandatory deductions
from an employee’s paycheck, while the settlement here
8
The district court found that the parties’ notice to the class
members, as approved and directed by the court, complied with Rule
23(c), (e), and (h) and the Due Process Clause, and provided notice of
the lawsuit, the settlement, and the class members’ rights, including their
right to object to, or opt out of, the settlement. Lowery does not
challenge this finding.
32 IN RE GOOGLE INC. STREET VIEW LITIG.
involves funds that, regardless of the cy pres provisions,
could not feasibly be paid to class members. See id. (“Unless
employees clearly and affirmatively consent before any
money is taken from them, this standard cannot be met.”).
Knox is similarly inapposite because it dealt with whether a
union must provide fresh notice and seek affirmative consent
before exacting funds from nonmembers through paycheck
deductions. 567 U.S. at 321–22.
Lowery observes that class members’ decisions to opt
out “wouldn’t reduce the contribution in the class members’
name[s].” But opting out does not entitle a class member to
his pro rata portion of a settlement. On the contrary, it
entitles him to retain his legal claim by not participating in
the settlement. See Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 176 (1974). If Lowery opts out, he will have
disassociated himself from the subsidization of the cy pres
recipients’ speech. He will also have disclaimed any interest
he might have had in the settlement funds as a class member.
Thus, he would have no further interest in the terms of the
settlement agreement.
F
Lowery also argues that the district court abused its
discretion by approving cy pres recipients who had a
“significant prior affiliation” with defense counsel and class
counsel. In particular, he argues that one of the recipients,
EPIC, “supported plaintiffs in an earlier appeal in this case,”
that four other cy pres recipients “previously received
Google cy pres money” in unrelated cases, that “[m]any of
the recipients had received cy pres funds from other class
actions involving big tech firms,” and that the ACLU “had a
pre-existing relationship with class counsel.” These
arguments are unconvincing. We have never held that
merely having previously received cy pres funds from a
IN RE GOOGLE INC. STREET VIEW LITIG. 33
defendant, let alone other defendants in unrelated cases,
disqualifies a proposed recipient for all future cases.
Moreover, we have affirmed cy pres provisions involving
much closer relationships between recipients and parties
than anything Lowery alleges here.
In Lane, the district court approved a settlement
agreement that included a cy pres payment of approximately
$6.5 million to “a new entity whose sole purpose was to
designate fund recipients consistent with [the] mission to
promote the interests of online privacy and security.”
696 F.3d at 817. This entity “would be run by a three-
member board of directors,” one of whom was Facebook’s
own Director of Public Policy, as well as a “Board of Legal
Advisors,” which “consist[ed] of counsel for both the
plaintiff class and Facebook.” Id. at 817–18. Several
objectors challenged the settlement agreement, arguing that
the presence of a high-level Facebook employee on the
foundation’s board of directors “creates an unacceptable
conflict of interest” and that “the settling parties’ decision to
disburse settlement funds through an organization with such
structural conflicts does not provide the ‘next best
distribution’ of those funds and thus is categorically an
improper use of the cy pres remedy.” Id. at 820. We
disagreed, explaining:
We do not require as part of [the cy pres]
doctrine that settling parties select a cy pres
recipient that the court or class members
would find ideal. On the contrary, such an
intrusion into the private parties’ negotiations
would be improper and disruptive to the
settlement process. The statement . . . in our
case law that a cy pres remedy must be the
“next best distribution” of settlement funds
34 IN RE GOOGLE INC. STREET VIEW LITIG.
means only that a district court should not
approve a cy pres distribution unless it bears
a substantial nexus to the interests of the class
members . . . .
Id. at 820–21.
Lowery argues that Lane only dealt with conflicts
between defendants and cy pres recipients, and that it “has
no bearing on a distribution that raises conflicts between
class counsel and the recipient.” This assertion is incorrect,
as the cy pres arrangement in Lane also provided for class
counsel to sit on the recipient’s board of legal advisors. Id.
at 817–18.
Citing the American Law Institute’s Principles of the
Law of Aggregate Litigation and out-of-circuit authority,
Lowery argues that “[t]he correct legal standard” for
approving a proposed cy pres recipient is whether “any party
has any significant prior affiliation with the intended
recipient that would raise substantial questions about
whether the award was made on the merits.” But we have
never adopted Lowery’s expansive proposed test, and
Lowery cites no binding authority that would have precluded
the district court from approving the cy pres recipients here.
Lowery cites Radcliffe v. Experian Information
Solutions Inc., 715 F.3d 1157 (9th Cir. 2013), to argue that
there existed a “potential conflict of interest of class counsel
in favoring a former client and co-counsel” (apparently EPIC
and the ACLU) over class members. But Radcliffe is
entirely inapposite. We held in that case, relying on
California law governing attorney ethics, that “conditional
incentive awards” to class representatives “caused the
interests of the class representatives to diverge from the
interests of the class because the settlement agreement told
IN RE GOOGLE INC. STREET VIEW LITIG. 35
class representatives that they would not receive incentive
awards unless they supported the settlement.” Id. at 1161.
Lowery points to no such improper incentives here.
He also cites Nachshin, 663 F.3d at 1039, but nothing in
that decision suggests the sort of scrutiny that Lowery argues
we should apply to the cy pres settlement here. In Nachshin,
we explained that “[w]hen selection of cy pres beneficiaries
is not tethered to the nature of the lawsuit and the interests
of the silent class members, the selection process may
answer to the whims and self interests of the parties, their
counsel, or the court.” Id.; see id. (“To remedy some of these
concerns, we held in Six Mexican Workers that cy pres
distribution must be guided by (1) the objectives of the
underlying statute(s) and (2) the interests of the silent class
members.”). The district court’s approval of the cy pres
recipients comported with those standards, and we find no
abuse of discretion.
G
Lowery argues that the district court abused its discretion
by “blindly apply[ing]” a 25% benchmark for attorneys’ fees
without regard for the actual benefit the settlement conferred
on the class. We disagree.
The district court devoted several pages of analysis to the
issue of attorneys’ fees, correctly beginning with the premise
that “in the Ninth Circuit, the ‘benchmark’ fee award is 25%,
which can be adjusted upward or downward based on the
circumstances of the case.” See Fischel v. Equitable Life
Assurance Soc’y of U.S., 307 F.3d 997, 1006 (9th Cir. 2002)
(“We have established a 25 percent ‘benchmark’ in
percentage-of-the-fund cases that can be ‘adjusted upward
or downward to account for any unusual circumstances
involved in [the] case.’” (alteration in original) (citation
36 IN RE GOOGLE INC. STREET VIEW LITIG.
omitted)). It found that “the overall result and benefit to the
class from the litigation supports the requested percentage”
of 25% because the cy pres relief “benefits the class
members by serving the goals of this litigation and the
[Electronic Communications Privacy Act].”
The district court specifically considered Lowery’s
argument that the benchmark should be reduced to reflect the
lack of direct monetary payments to class members. It
rejected this argument, reasoning that “where the settlement
fund is non-distributable, counsel should not be penalized
for fashioning a cy pres-only settlement that stands to
accomplish some good.” The district court noted several
other factors supporting a 25% benchmark: that the case
“required skill and expertise,” “involved novel issues,” took
“nearly ten years of work,” and was “risky” for counsel to
take on. The court also conducted a lodestar analysis and
determined that the benchmark-based award would be lower
than a lodestar-based award, “strongly suggest[ing] the
reasonableness of the requested fee.”
The district court’s reasoning makes clear that this was
not a “blind” application of a benchmark to the
circumstances of the case. And Lowery does not challenge
any of the district court’s specific factual findings supporting
its fee award. Instead, he urges us to hold as a general matter
that “it [is] inappropriate to value cy pres on a dollar-for-
dollar basis” equivalent to direct monetary relief to class
members. See In re Heartland Payment Sys., Inc. Customer
Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1077 (S.D.
Tex. 2012). Certainly, a district court must consider a
settlement’s benefit to the class in determining appropriate
attorneys’ fees, and thus, attorneys’ fees are not solely a
function of the size of a settlement fund. See e.g., In re HP
Inkjet Printer Litig., 716 F.3d 1173, 1182, 1185–87 (9th Cir.
IN RE GOOGLE INC. STREET VIEW LITIG. 37
2013) (“Plaintiffs attorneys don’t get paid simply for
working; they get paid for obtaining results.”); In re Baby
Prods. Antitrust Litig., 708 F.3d 163, 170 (3d Cir. 2013)
(“[W]e confirm that courts need to consider the level of
direct benefit provided to the class in calculating attorneys’
fees.”).
But there is no uniform rule that district courts must
discount the value of any cy pres relief, regardless of the
feasibility of distribution to class members or other relevant
circumstances. Indeed, we have repeatedly approved
attorneys’ fees for cy pres settlements in proportions similar
to the award here. See Google Referrer, 869 F.3d at 747–48
(affirming fee award of 25% of cy pres settlement); Lane,
696 F.3d at 818, 823–24 (affirming lodestar-based fee award
of 24.89% of total cy pres settlement); see also Campbell,
951 F.3d at 1115, 1126–27 (rejecting argument that
$3.89 million fee award was excessive when settlement
provided only injunctive relief). Other circuits have
similarly declined to adopt such a rule. See Baby Prods.,
708 F.3d at 178 (“We think it unwise to impose . . . a rule
requiring district courts to discount attorneys’ fees when a
portion of an award will be distributed cy pres.”).
Lowery argues that by failing to decrease the benchmark
given the lack of direct payments to class members, we
would permit “perverse incentives [that] will result in a
disproportionate number of cy pres-only settlements.” But
our approach does not “make[] class counsel financially
indifferent between a settlement that awards cash directly to
class members and a cy pres-only settlement,” as Lowery
warns, because it does take into account the benefit to class
members. And, “[o]f course, the percentage may be adjusted
to account for any unusual circumstances.” Williams v.
MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir.
38 IN RE GOOGLE INC. STREET VIEW LITIG.
1997). Thus, if class counsel fails “to seek an award that
adequately prioritizes direct benefit to the class,” it might be
“appropriate for the court to decrease the fee award.” Baby
Prods., 708 F.3d at 178. Doing so might also be appropriate
when “a cy pres . . . settlement . . . has a tenuous relationship
to the class allegedly damaged by the conduct in question,”
or when it appears that the settlement “serves only the ‘self-
interests’ of the attorneys and the parties, and not the class.”
Dennis v. Kellogg Co., 697 F.3d 858, 868 (9th Cir. 2012).
But here, the district court properly considered all relevant
circumstances, including the value to the class members, and
concluded that a 25% benchmark was appropriate. We
affirm the district court’s fee award.
H
Finally, Lowery argues that class certification was
inappropriate because, by deciding to settle, class counsel
and the class representatives breached their fiduciary duties.
See Fed. R. Civ. P. 23(a)(4) (conditioning class certification
on a finding that “the representative parties will fairly and
adequately protect the interests of the class”); id. 23(g)(4)
(“Class counsel must fairly and adequately represent the
interests of the class.”). Lowery asserts that under these
fiduciary duties, class counsel and representatives cannot
“agree[] to accept excessive fees and costs to the detriment
of [absent] class plaintiffs.” See Lobatz v. U.S. W. Cellular
of Cal., Inc., 222 F.3d 1142, 1147 (9th Cir. 2000).
Lowery’s fiduciary duty arguments are simply a
repackaging of his other arguments against the settlement:
he asserts that “class counsel structure[d] a settlement to
benefit third parties over any single absent class member,”
that the settlement included excessive attorneys’ fees and
lacked “any benefit for the class,” and that counsel should
have advised “absent class members of the superiority of
IN RE GOOGLE INC. STREET VIEW LITIG. 39
opting out en masse.” Because we affirm the district court’s
finding that the settlement does provide adequate value to
the class, and because there is no indication that counsel
accepted excessive attorneys’ fees or favored third parties
over class members, we hold that class counsel and class
representatives did not breach their fiduciary duties by
entering the settlement.
V
We AFFIRM the district court’s order certifying the
class, approving the settlement agreement, and awarding
attorneys’ fees.
BADE, Circuit Judge, concurring:
The district court correctly applied our circuit’s law and
did not err in certifying the class for settlement purposes or
approving the proposed settlement agreement. Indeed, in
varying contexts, we have upheld class action settlements
that provided cy pres awards to third parties in lieu of
damages for the class members. See In re Google Referrer
Header Priv. Litig., 869 F.3d 737 (9th Cir. 2017), vacated
and remanded on other grounds, Frank v. Gaos, 139 S. Ct.
1041 (2019); Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir.
2012). And we have implicitly approved the use of cy pres
awards even when rejecting settlements on other grounds.
See Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011);
Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d
1301 (9th Cir. 1990). Because I am constrained to follow
these precedents, I authored and joined the majority opinion.
But as Chief Justice Roberts has noted, “fundamental”
questions about “the use of [cy pres] remedies in class action
40 IN RE GOOGLE INC. STREET VIEW LITIG.
litigation” remain unanswered. See Marek v. Lane, 134 S.
Ct. 8, 9 (2013) (Roberts, C.J., respecting the denial of
certiorari) (explaining that, among other questions, the Court
has not yet addressed “when, if ever, such relief should be
considered” and “how to assess its fairness as a general
matter”). Therefore, I write separately to express some
general concerns about cy pres awards.
First, I recognize that “federal courts frequently use the
cy pres doctrine ‘in the settlement of class actions where the
proof of individual claims would be burdensome or
distribution of damages costly.’” Nachshin, 663 F.3d
at 1038 (quoting Six Mexican Workers, 904 F.2d at 1305);
see also A.L.I., Principles of the Law of Aggregate
Litigation § 3.07(c) (2010) (approving cy pres settlement
provisions “[i]f the court finds that individual distributions
are not viable”); William B. Rubenstein, 4 Newberg on Class
Actions § 12:26 (5th ed. 2011) [hereinafter Newberg]
(same). I also recognize that cy pres awards present a
practical solution for settling cases “[w]hen a class action
involves a large number of class members but only a small
individual recovery, [and] the cost of separately proving and
distributing each class member’s damages may so outweigh
the potential recovery that the class action becomes
unfeasible.” Six Mexican Workers, 904 F.2d at 1305. I
question, however, whether we have allowed these practical
advantages to inappropriately displace other concerns
implicated by cy pres awards.
Such concerns, which have been ably identified by
jurists and commentators, include: conflicts of interest
between class counsel and absent class members,
Keepseagle v. Perdue, 856 F.3d 1039, 1060 (D.C. Cir. 2017)
(Brown, J., dissenting); In re Baby Prods. Antitrust Litig.,
708 F.3d 163, 173 (3d Cir. 2013); Jay Tidmarsh, Cy Pres
IN RE GOOGLE INC. STREET VIEW LITIG. 41
and the Optimal Class Action, 82 Geo. Wash. L. Rev. 767,
772, 782 (2014); incentives for collusion between
defendants and class counsel, Lane, 696 F.3d at 829–30
(Kleinfeld, J., dissenting); the role of the court and the
parties in shaping a cy pres remedy and the potential
appearance of impropriety, S.E.C. v. Bear, Stearns & Co.,
626 F. Supp. 2d 402, 415 (S.D.N.Y. 2009); Goutam U. Jois,
The Cy Pres Problem and the Role of Damages in Tort Law,
16 Va. J. Soc. Pol’y & L. 258, 265–66 (2008); the use of
Rule 23 of the Federal Rules of Civil Procedure, “a wholly
procedural device,” to shape substantive rights, arguably in
violation of Article III, the Rules Enabling Act, 1 and the
separation of powers doctrine, Klier v. Elf Atochem N. Am.,
Inc., 658 F.3d 468, 481 (5th Cir. 2011) (Jones, J.,
concurring) (citing Martin H. Redish et al., Cy Pres Relief
and the Pathologies of the Modern Class Action: A
Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 623,
641 (2010)); “whether a cy pres award can ever be used as a
substitute for actual damages,” Molski v. Gleich, 318 F.3d
937, 954 (9th Cir. 2003), overruled on other grounds by
Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 617 (9th Cir.
2010) (en banc); the propriety of importing a doctrine
originating in trust law into the context of class action
litigation, Klier, 658 F.3d at 480 (Jones, J., concurring); In
re Pet Food Prods. Liab. Litig., 629 F.3d 333, 363 (3d Cir.
2010) (Weis, J., concurring in part and dissenting in part);
1
In Wal-Mart Stores, Inc. v. Dukes, the Court cautioned that “the
Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or
modify any substantive right.’” 564 U.S. 338, 367 (2011) (quoting
28 U.S.C. § 2072(b)); see also Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 559 U.S. 393, 408 (2010) (“A class action, no less than
traditional joinder (of which it is a species), merely enables a federal
court to adjudicate claims of multiple parties at once, instead of in
separate suits. And like traditional joinder, it leaves the parties’ legal
rights and duties intact and the rules of decision unchanged.”).
42 IN RE GOOGLE INC. STREET VIEW LITIG.
Redish, supra, at 630; and whether class action litigation is
superior to other methods of adjudication if parties must
resort to cy pres relief, Frank, 139 S. Ct. at 1047 (Thomas,
J., dissenting). I do not expand on those justified concerns
here. Instead, I focus on the predicate of cy pres settlement
provisions—the theory of indirect benefit to the class
members.
Courts have upheld cy pres awards based on the premise
that they provide an indirect benefit to the class when a direct
monetary payment is not feasible. See Lane, 696 F.3d
at 819; Nachshin, 663 F.3d at 1038; Six Mexican Workers,
904 F.2d at 1305; Klier, 658 F.3d at 475. Institutional
commentators and treatises have also embraced this theory
of indirect benefit. See A.L.I., supra, at § 3.07 cmt. b (“Cy
pres is preferable to other options available to a court when
direct distributions are not viable.”); Newberg, supra, at
§ 12:26 (“[C]y pres distributions provide indirect
compensation to the plaintiff class by funding activities that
are in the class’s interest.”).
But there is an increasing skepticism about whether cy
pres provisions actually provide an indirect benefit to class
members. See Frank, 139 S. Ct. at 1047 (Thomas, J.,
dissenting) (“[C]y pres payments are not a form of relief to
the absent class members and should not be treated as such
. . . .”); Lane, 696 F.3d at 830 (Kleinfeld, J., dissenting) (“It
is hard to imagine a real client saying to his lawyer, ‘I have
no objection to the defendant paying you a lot of money in
exchange for agreement to seek nothing for me.’”); Molski,
318 F.3d at 954 (stating that “it seems somewhat distasteful
to allow a corporation to fulfill its legal and equitable
obligations through tax-deductible donations to third
parties”); In re Baby Prods. Litig., 708 F.3d at 173
(concluding that cy pres settlements are permissible, but
IN RE GOOGLE INC. STREET VIEW LITIG. 43
noting that they substitute “an indirect benefit that is at best
attenuated and at worse illusory” for compensatory
damages); Klier, 658 F.3d at 482 (Jones, J., concurring)
(“Our adversarial system should not effectuate transfers of
funds from defendants beyond what they owe to the parties
in judgments or settlements.”); Mirfasihi v. Fleet Mortg.
Corp., 356 F.3d 781, 784 (7th Cir. 2004) (explaining that in
cy pres settlements “[t]here is no indirect benefit to the class
from the defendant’s giving the money to someone else”);
Six Mexican Workers, 904 F.2d at 1312 (Fernandez, J.,
concurring) (“[Cy pres] is a very troublesome doctrine,
which runs the risk of being a vehicle to punish defendants
in the name of social policy, without conferring any
particular benefit upon any particular wronged person.”);
Redish, supra, at 623 (“Cy pres creates the illusion of class
compensation. It is employed when—and only when—
absent its use, the class proceeding would be little more than
a mockery.”). And, despite the acceptance of the theory of
indirect benefit, there is, in my view, a compelling argument
that class members receive no benefit at all from a settlement
that extinguishes their claims without awarding them any
damages, and instead directs money to groups whose
interests are purportedly aligned with the class members, but
whom they have likely never heard of or may even oppose.
Moreover, even if we accept the premise that cy pres
awards provide value to the public at large, there is practical
appeal in the argument that such settlements provide no
unique consideration to class members because they receive
the same generalized benefits as non-class-members and
opt-outs. Indeed, cy pres settlements arguably benefit opt-
outs more than class members because opt-outs reap any
positive externalities of the settlement provisions while
44 IN RE GOOGLE INC. STREET VIEW LITIG.
retaining the value of the claims that the settlement
extinguished for class members. 2
I am therefore not convinced that cy pres awards to
uninjured third parties should qualify as an indirect benefit
to injured class members, and I am concerned that “the ‘cy
pres’ remedy . . . is purely punitive,” Mirfasihi, 356 F.3d
at 784, with defendants paying millions of dollars in what
are essentially civil fines to class counsel and third parties
while providing no compensation to injured class members.
See Klier, 658 F.3d at 481 (Jones, J., concurring) (citing
Redish, supra, at 623); see also Six Mexican Workers,
904 F.2d at 1312 (Fernandez, J., concurring) (“[Cy pres’]
use may well amount to little more than an exercise in social
engineering by a judge, who finds it offensive that
defendants have profited by some wrongdoing, but who has
no legitimate plaintiff to give the money to.”); Newberg,
supra, at § 12:26 (stating that one purpose of cy pres
distributions is to “ensure that the defendant is disgorged of
a sum certain, even if that money does not compensate class
members directly”).
I further question whether cy pres awards are inherently
unfair when the class receives no meaningful relief in
exchange for their claims, see Fed. R. Civ. P. 23(e)(2), and
whether such awards can be justified given the serious
2
In cases where a class settlement provides injunctive and cy pres
relief, but no damages for class members, the concern that non-class-
members and opt-outs fare better than class members could be mitigated
by certifying injunctive and declaratory relief classes under Rule
23(b)(2), without cy pres awards and without requiring class members to
release damages claims, rather than damages classes under Rule
23(b)(3). Cf. Campbell v. Facebook, Inc., 951 F.3d 1106, 1113–15, 1124
(9th Cir. 2020) (affirming approval of injunctive-relief-only class
settlement that did not release class members’ damages claims).
IN RE GOOGLE INC. STREET VIEW LITIG. 45
ethical, procedural, and constitutional problems that others
have identified. Therefore, I respectfully submit that it is
time we reconsider the practice of cy pres awards.