About a year ago, I reported that the U.S. Supreme Court had granted cert. in Frank v. Gaos, No. 17-961, and would be reviewing Ninth Circuit's opinion in In re Google Referrer Header Privacy Litigation, 869 F.3d 767 (2017). As discussed in this blog post, in Google Referrer, the Ninth Circuit affirmed the district court's order approving distribution of class action settlement proceeds to cy pres recipients only. The objectors probably hoped the Supreme Court would invalidate all such cy pres settlements. But on March 20, 2019, the U.S. Supreme Court disposed of the matter without reaching the cy pres question.
In a per curiam opinion, the Court remanded the case back to the Ninth Circuit for it (or for the district court) to address the question of the named plaintiffs' standing under Spokeo. Frank v. Gaos, ___ U.S. ___ (Mar. 20, 2019) (citing Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)). The plaintiffs sought statutory remedies under the Stored Communications Act, which prohibits disclosures of certain types of electronic communications. According to the plaintiffs, Google's use of "referrer headers," which inform website owners of the search terms used to navigate to their sites, violated the Act. Id. (slip op. at 1-2). Spokeo, handed down while the appeal in Google Referrer was pending, "held that 'Article III standing requires a concrete injury even in the context of a statutory violation.'" Id. (slip op. at 4). Because the standing question "raise[d] a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument," the Court chose to remand these issues back to the lower courts to determine in the first instance. Id.
In a dissenting opinion, Justice Thomas said he would reverse on the merits, and expressed the view that "cy pres payments are not a form of relief to the absent class members and should not be treated as such ...." Id. (Thomas, J., dissenting) (slip op. at 2).
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