In In re Google Referrer Header Privacy Litigation, ___ F.3d ___ (9th Cir. Aug. 22, 2017), the Ninth Circuit affirmed an order granting final approval of an $8.5 million nationwide settlement of certain privacy claims against Google.
Under the settlement, approximately $3.2 million would be "set aside for attorneys' fees, administration costs, and incentive payments to the named plaintiffs," with the rest "allocated to six cy pres recipients" who would use the money "to promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet." Slip op. at 6.
The Ninth Circuit held that the district court properly found the settlement to be "non-distributable," and therefore appropriate for a cy pres distribution. Id. at 8-9 (citing Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012)).
The panel also rejected the objectors' argument that a "non-distributable" settlement, by definition, cannot meet the "superiority" element of class certification. Id. at 10-11. To the contrary:
The two concepts [i.e., cy pres and "superiority"] are not mutually exclusive, since “[w]here recovery on an individual basis would be dwarfed by the cost of litigating on an individual basis, this factor weighs in favor of class certification.” .... The district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible. This finding dovetails with the rationale for the cy pres-only settlement.
Id. at 11 (footnote omitted) (quoting Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010)).
The final sections of the opinion address the propriety of the selected cy pres recipients and of the attorneys' fees awarded to class counsel Id. at 11-21. One judge dissented from the cy pres recipients portion of the opinion, reasoning that the district court should have more closely vetted the three recipients affiliated with class counsel's alma maters. Id. at 21-27. The majority, however, found no abuse of discretion. Id. at 19.
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