In its original opinion in this case, the Ninth Circuit affirmed a class action settlement with a significant cy pres component. Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012). En banc rehearing was denied in February, with six judges strenuously dissenting. Lane v. Facebook, Inc., 709 F.3d 791 (9th Cir. 2013).
The cert. petition describes the issue presented as follows:
Federal Rule of Civil Procedure 23(e)(2) requires that a settlement that binds class members must be“fair, reasonable, and adequate.” In this case, the Ninth Circuit upheld approval of a settlement that disposed of absentee class members’ claims while providing those class members no relief at all. Breaking with decisions of the Second, Third, Fifth, Seventh, and Eighth Circuits, the Ninth Circuit held that the settlement’s award of $6.5 million to establish a new foundation controlled by the lead defendant and class counsel was a fair and adequate remedy under the trust-law doctrine of cy pres. The question presented is:
Whether, or in what circumstances, a cy pres remedy that provides no direct relief to class members comports with the requirement of Rule 23(e)(2) that a settlement that binds class members must be“fair, reasonable, and adequate.”
It will of course be very interesting to see whether this case is taken up. The other pending U.S. Supreme Court petition that I'm currently following is POM Wonderful LLC v. The Coca Cola Co., No. 12-761 (U.S.) (discussed here). This case has already been relisted once.
If you are aware of any other pending cert. petitions of interest, please drop me an email.