Antitrust and Unfair Competition Law

Competition: Spring 2019, Vol 29, No. 1


By Bethany Caracuzzo1


This term, the Supreme Court heard argument in Frank v. Gaos.2 The case involves an objector appeal to a class settlement reached in multi-district litigation against Google, in which plaintiffs allege the internet search engine violated users’ privacy by collecting and disclosing their internet search terms to owners of third-party websites. The lead objector and petitioner, Theodore Frank, founder of the Competitive Institute’s Center for Class Action Fairness (CCAF), and a frequent opponent of class action settlements, obtained certiorari to a challenge of the settlement, which took the form of an "all cy pres3 settlement" providing for $5.3 million in charitable contributions to several non-profits, including the law schools of lead plaintiff’s counsel, in lieu of any monetary or other compensation to an estimated 129 million unnamed class members.4

As everyone braced for what the high court had in store for cy pres settlements,5 a funny thing happened. At oral argument on October 31, 2018, the justices devoted much of their questioning6 to the issue of whether plaintiffs had suffered an "injury-in-fact" sufficient to confer Article III standing as required by the Supreme Court’s 2016 ruling in Spokeo, Inc. v. Robins.7 Justices Gorsuch and Kavanaugh, who joined the Court after Spokeo was decided, were active in the hearing debate on this issue.8 Indeed, the standing question, which had not been formally briefed previously, was of such significance that the Supreme Court ordered the parties to provide post-argument supplemental briefing directed solely to that issue.9 That briefing concluded in late December 2018.

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Given the question presented on appeal, the Supreme Court’s decision in Frank v. Gaos had the potential to significantly impact privacy class actions in two ways. It could have prohibited, or placed further restrictions on, class action settlements that provide only cy pres relief. Also, with two new justices on the Court, the decision could have altered the Article III standing requirements articulated in Spokeo. Instead, the Court punted on both issues: it vacated the judgment issued by the Ninth Circuit, remanded in a per curiam decision issued March 20, 2019, and directed that the Ninth Circuit or the District Court undertake a Spokeo analysis in the first instance.10

Although the Supreme Court did not reach the merits of the issues presented, the history of briefing and arguments before the Court provide an important glimpse of the justices’ views on Article III standing in the privacy context, and the continued viability of cy pres only settlements in class action cases generally. This article summarizes the parties’ briefing and argument on these core questions, as well as the justices’ questions on these issues. The article concludes with this author’s view of some of the important takeaways from the proceedings.


A. Pre-Settlement Briefing in the District Court

This case arises from class action claims that Google violated users’ privacy by disclosing their Internet search terms to owners of third-party websites.

In October 2010, plaintiff Paloma Gaos filed a class action lawsuit against Google in the U.S. District Court for the Northern District of California. The claimed privacy violations involve browser architecture. When a user submits search terms to Google, it returns a list of websites on a "search results page." When a user then visits a website on the list by clicking on the provided link, that website is privy to the search terms the user originally submitted to Google, as part of the referrer header information collected by Google in the search process.11 Those search terms, plaintiffs contend, can reveal users’ highly sensitive or personally identifying information such as real names, street addresses, confidential medical information, racial or ethnic origins, political or religious beliefs or sexuality, and can also disclose a user’s IP address, pinpointing the user’s exact computer.12 Plaintiff complained that this application of the search protocol, coupled with Google’s "Web History" service, which tracks and stores account holders’ browsing activity on Google’s servers, was contrary to representations in Google’s Terms of Service, and violated users’ privacy and other state and federal laws.13 Plaintiff also alleged that, with the use of "reidentification" or "deanonymizing of data" processes, a third party may be able to reverse-engineer information divulged in the referrer header to learn the user’s identity.14

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The district court granted Google’s first motion to dismiss with leave to amend because Plaintiff Gaos had failed to allege an "injury in fact" sufficient to establish Article III standing.15 Gaos amended her complaint, and Google again challenged her standing under Article III on the same grounds.16 The district court agreed with Google as to plaintiff’s six common law claims and dismissed them with leave to amend.17 As to her first cause of action for violation of the federal Stored Communications Act (the "SCA")18, the district court denied the motion, stating "[t]he injury required by Article III [] can exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’" The court found that the SCA "creates a right to be free from the unlawful disclosure of communications as prohibited by the statute" and that Ms. Gaos had "alleged a concrete and particularized injury in fact as a result of the alleged violation of her rights under the SCA."19 Plaintiff amended a second time, also adding Anthony Italiano as another representative plaintiff.

A third motion to dismiss again challenging plaintiffs’ Article III standing, was filed, briefed, and taken under submission without oral argument. While it was pending, the Supreme Court denied as improvidently granted ("DIG") the appeal in First Financial Corp. v. Edwards20, which questioned whether a statutory violation could support standing. When Edwards was DIG’d, Google withdrew its standing challenge to the SCA cause of action in Gaos, the parties stipulated to the filing of an amended consolidated class action complaint ("CCAC")21, the third motion to dismiss was terminated as moot, and the standing issue was never addressed.22 The CACC asserts causes of action for violation of the SCA, as well as common law claims of breach of contract, breach of the covenant of good faith and fair dealing, breach of contract implied in law, unjust enrichment (in the alternative), and declaratory judgment and corresponding injunctive relief, on behalf of an admittedly colossal class of "[a]ll persons in the United States who submitted a search query to Google at any time between October 25, 2006 and the date of notice to the class of certification."23

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B. The Proposed Cy Pres Only Settlement

The parties then proceeded to mediation and reached a settlement, which they submitted to the district court for preliminary approval in July 2013. The settlement did not require Google to stop providing users’ search information via the referrer header to third parties, but instead mandated that Google provide updated information in the FAQ portion of Google’s Website informing users what it was doing, and providing users an opportunity to opt out.24 As settlement consideration, the settlement provided that Google would pay a total of $8.5 million in exchange for a release of the claims of the approximately 129 million people who used Google Search in the United States between October 25, 2006 and April 25, 2014 (the date the class was given notice of the settlement).25 Of the $8.5 million to be paid by Google, $2.125 million was to be allocated to attorneys’ fees and costs; $15,000 in incentive awards to be paid, in total, to the three named plaintiffs; and approximately $1 million in costs to administer the settlement.26 The settlement proposed that the remaining $5.3 million be distributed entirely to six cy pres recipients, each of which would receive between 15 and 21 percent of the net cy pres money.27

The doctrine of cy pres has a long, historical background, with legal concepts surrounding cy pres potentially dating back to the Roman Empire,28 which is far beyond the scope of this article. The term is derived from the Norman French phrase, "cy pres comme possible," or "as near as possible."29 In the U.S., state courts for some time have utilized cy pres to enforce charitable trusts where it is impossible or impractical to honor the original gift but there is a desire to preserve the general charitable intention of the testator.30

Federal courts use the cy pres doctrine as a remedy in the class action context in two ways.

First, cy pres can be used to distribute unclaimed or non-distributable portions of a class action settlement to the "next best" class of beneficiaries.31 This is preferable to having unclaimed class action settlement funds simply revert back to the defendants— thwarting the deterrent impact of civil litigation on defendants’ activities—or having funds escheat to the state.

Second, cy pres may be included as part of the settlement consideration itself, as was proposed in Gaos, by directing that a portion of the settlement money go to designated charities. This latter form of cy pres has been held by the Ninth Circuit to be "fundamentally fair" and satisfying the requirements of Rule 23(e) where plaintiffs have shown that it is infeasible to provide monetary payments to absent class members and there is a sufficient nexus between the chosen charitable organization(s) and the harm that the plaintiffs suffered.32

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C. The District Court Approved the Cy Pres-Only Settlement

The Gaos settlement came before the district court for preliminary settlement approval on August 27, 2013. The court granted preliminary approval on March 26, 2014.33

Addressing the proposed cy pres remedy, the court noted in its preliminary approval order that it was "mindful of the Ninth Circuit’s recent direction" in Lane v. Facebook that a pure "cy pres [settlement] distribution must be the ‘next best’ remedy to direct payments to the class either because proof of individual claims would be burdensome or distribution of damages too costly."34 "In this case," the court held, "a settlement providing for cy pres payments rather than direct payments to class members is the ‘next best’ remedy for both reasons identified in Lane. "Since the amount of potential class members exceeds one hundred million individuals, requiring proofs of claim from this many people would impose a significant burden to distribute, review and then verify. Similarly, the cost of sending out what would likely be very small payments to millions of class members would exceed the total monetary benefit obtained by the class."35

The district court further held that plaintiffs "have demonstrated how distributing settlement funds to the proposed cy pres recipients accounts for the nature of this suit, meets the objectives of the SCA claim, and furthers the interests of class members."36 And, while the court found "the proposed cy pres recipients certainly have the capabilities to carry out Plaintiffs’ goals,"37 at the preliminary approval hearing, the court asked class counsel to provide more detail in the final approval briefing on the cy pres recipient selection process and the recipients’ proposals for their intended use of the funds.38

There were five objections to the settlement and proposed fee award, but only Mr. Frank appeared at the hearing. In both his filings and at the final approval hearing, Frank argued strenuously against the use of a cy pres settlement remedy. He asserted that distribution of a settlement fund to injured consumers was feasible in Gaos, given that only a small portion of class members realistically apply for such funds and they would typically be distributed pro rata, or, the Objectors contended, in the alternative, funds could be distributed via a "sampling lottery method"39—that is, Objectors proposed, the court could randomly select class members to receive settlement payments, which would allow selected lottery "winners" to receive a greater distribution than if the entire class were to be paid pro rata.40In objecting to the payment of attorneys’ fees, Frank argued that the attorneys for the class should not benefit by getting a fee when consumers receive nothing. Finally, Frank asserted, the attorneys had disqualifying conflicts of interest, because the proposed cy pres recipients were alma mater institutions of the counsel involved and because many entities had also previously received charitable donations from defendant Google.41

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Almost a year to-the-day of the hearing on preliminary approval, on August 29, 2014, the district court heard arguments on final approval. At the hearing, the court and counsel discussed the process by which the cy pres recipients were selected, with plaintiffs’ counsel representing that 40 potential recipients were narrowed down to six.42 The court noted its disappointment that, despite counsel’s representations at the hearing on the motion for preliminary approval that plaintiffs would be "setting the bar higher" in terms of the identification and selection of the cy pres recipients, it appeared "that the usual suspects [recipients] are still usual."43 The court also expressed that the lack of transparency in the cy pres selection process, which plaintiffs’ counsel claimed was non-disclosable because it was subject to the mediation privilege, "raised a red flag", caused the court concern, and "doesn’t pass the smell test."44 The court ended the hearing reiterating its concerns, indicating that its initial thought was to not approve settlement and to issue an order informing the parties "what I think needs fixing."45

Despite its noted concerns, and without requesting further submissions from the parties, the district court granted final settlement approval on March 31, 2015.46 The court held that "a class action settlement does not need to embody the best possible result to be approved," and that the proposed cy pres-only remedy "is the ‘next best’ result here."47The district court also approved the requested attorney fee award of $2.125 million, which was equal to 25% of the settlement fund.48 Incentive awards in the amount of $5,000 to each of the three named plaintiffs (for a total of $15,000 as requested) also were approved.49 Final Judgment was entered on April 2, 2015.

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D. The Ninth Circuit Affirmed

Two of the original five objectors, Mr. Frank and Melissa Ann Holyoak, appealed to the Ninth Circuit, raising the same arguments they had made to the district court. The Spokeo decision came down after briefing, but before the Ninth Circuit issued its decision; but because Google had withdrawn its standing challenge to the SCA, standing was not discussed. The Ninth Circuit affirmed the approval of the settlement, finding that: (1) a cy pres-only settlement was appropriate, (2) the choice of cy pres recipients ("the crux of th[e] appeal")50 was within the discretion of the district court in approving the settlement, and (3) the lower court did not abuse its discretion in awarding class counsel their attorneys’ fees.51 Reviewing the cy pres remedy for abuse of discretion, the Ninth Circuit found that, while cy pres-only settlements are considered the exception and not the rule, they are appropriate when the settlement fund is "non-distributable" because the proof of individual claims would be burdensome or distribution of damages costly."52 Looking to its 2012 decision in Lane v. Facebook, Inc.53, another privacy class action in which a cy pres-only settlement had been approved because direct monetary payments would have been infeasible because each class member’s individual recovery would have been de minimis, the Ninth Circuit found the "gap between the fund and a miniscule award [to class members] is even more dramatic here," resulting in a "paltry 4 cents in recovery," not including the cost of notice and mailing: "a de minimis amount if ever there was one."54

The Ninth Circuit rejected the Objectors’ proposed lottery system and noted that its review of the settlement was predicated not on whether there are other possible alternatives, but whether it was "fair, adequate, and free from collusion."55 Google’s earlier donations to some of the cy pres recipients were held not to undermine the selection process or impugn the settlement, "without something more, such as fraud or collusion" which "is missing here."56 The court disagreed that the link between some recipients and class counsel’s alma maters raised questions about whether the selections were merit-based, noting that the selected institutions are large law schools who "graduate thousands of students each year", and finding that the district court appropriately considered the claim of potential conflicts: counsel swore they had no ongoing affiliations with the research centers at their alma maters that were to receive the funds, and the recipients were all well-recognized research centers focusing on the Internet and data privacy.57 Lastly, the Ninth Circuit affirmed the attorneys’ fees award, dismissing out of hand the Objectors’ view that the fees should have been calculated lower because it was a cy pres-only settlement.58 Objectors’ petitions for panel rehearing and for rehearing en banc were denied.59

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A. Standing Was Raised for the First Time After the Grant of Certiorari

Certiorari was granted April 30, 2018 on the Objectors’ limited question of, "whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’"60 The Objectors put the availability of pure cy pres settlement relief in the class action context squarely at issue. Objectors argued that the cy pres settlement, itself, is not fair or reasonable as required by Rule 23 because it provides no direct compensation to the class, and that the Ninth Circuit, in its affirmance of the settlement, created a perverse incentive for class counsel to not compensate the class while compensating themselves.61

No party or amici explicitly raised plaintiffs’ alleged lack of Article III standing before the Ninth Circuit or in briefing to the Supreme Court prior to its grant of certiorari. Google, while not challenging standing, nevertheless flagged the issue in its opposition to the petition for certiorari by citing to Spokeo and noting that the plaintiffs’ "lack of injury" was a reason for supporting the settlement.62 While suggesting that plaintiffs’ "hypertechnical claims and lack of injury" made the case "unusually well-suited to a cy pres remedy," Google emphasized in its opposition to certiorari that it was not, in fact, arguing that plaintiffs’ lacked Article III standing.63

The United States government appeared to pick up the mantle on the standing issue in its friend of the court brief. Supporting neither party, the Solicitor General, as amicus, argued that there is "considerable doubt whether the Court has Article III jurisdiction"64 and urged the Court to remand the case to enable the lower court to address the standing issue in the first instance. The government questioned whether plaintiffs had alleged an injury in fact that is both "concrete" and "particularized" as required by Spokeo, given that the district court had determined that the common law claims, asserted only by plaintiff Gaos at the time, did not allege injury sufficient for Article III standing, and that the SCA claim survived, in the district court’s view, because it arose from a statute, "even without additional injury."65

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The procedural timing of Gaos creates confusion regarding its compliance with Spokeo. Spokeo was decided in May of 2016, a year after the district court’s March 2015 grant of final approval of the settlement in Gaos, while the Ninth Circuit decision was pending. Article III standing requires that a plaintiff has (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.66 As articulated in Spokeo, to establish an injury in fact, a plaintiff must show that he or she suffered "an invasion of a legally protected interest" that is "concrete and particularized."67 Concrete and particularized are separate factors, the Supreme Court emphasized, and, while "concrete" does not always mean "tangible," Spokeo held that a plaintiff does not automatically satisfy the injury-in-fact requirement simply by virtue of a defendant’s statutory violation that provides plaintiff with authority to sue.68

Citing Spokeo, the government questioned whether the Gaos plaintiffs had identified any injury-in-fact as a result of Google’s use of referrer headers, noting that neither the district court nor the Ninth Circuit had addressed whether such allegations amount to a "concrete" injury.69 The government urged that the Court vacate and remand to address Article III standing, but that, should the Court reach the issue and favorably decide the standing question on the merits, it should nonetheless still remand the case to allow the lower courts to engage in a "more rigorous scrutiny" of the cy pres relief in the settlement, of which the government was quite critical.70

In response to the newly-raised standing argument, Class Respondents urged on Reply that the existence of a previously unaddressed jurisdictional issue warranted dismissing the writ as improvidently granted—i.e., that the Court should not have accepted the case—rather than remand.71

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Google, for its part, initially avoided weighing in on the standing question. It responded that, while under the current law, post-Spokeo, plaintiffs’ standing is "doubtful at best," at the time it entered into the settlement, Spokeo had not yet been decided. Google further stated its "obligation to support the settlement constrain[ed] [its] ability to discuss this matter further."72

Clearly highlighting a desire that the Court squarely address the cy pres issue, and likely hoping to avoid a per curium DIG order as Class Respondents had urged, Petitioners (the objectors), on Reply, argued in support of plaintiffs’ standing. Petitioners asserted that Article III jurisdiction exists because, as Spokeo holds, plaintiffs’ injuries need not be "tangible" to be "concrete" so long as the alleged intangible harm is "closely related to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts."73 Petitioners referred to common law tort protections of private disclosures of personal matters for support of intangible, yet concrete, injuries that support standing here under Spokeo.74

B. The Amici Were Divided on Cy Pres Settlements

Twenty-six amici, including the United States Government, weighed in, with eleven challenging cy pres-only settlements. Of those eleven: four opined that cy pres-only settlements are never acceptable75; three, including the government, called for close scrutiny of such settlements and that such approval only be granted in "rare" circumstances76; one argued that cy pres-only settlements should be available only where substantive law expressly provides for it77; and one sought to outlaw cy pres-only settlements to the extent they confer no direct benefit to the class.78 Five of the eleven, including the government, objected specifically to the use of cy pres in this instance because it provided no direct benefit to the class, provided no meaningful business practice change, and the parties did not appropriately select the cy pres award recipients, including by providing funds to advocacy groups whose causes or views class members may disagree with or who are "allied with" defendant Google.79

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State Attorneys General came out on both sides of the cy pres question. The Attorneys General of nineteen states criticized the Ninth Circuit for what they deemed as its "blessing" of the "free use" of cy pres. These state Attorneys General called for the Court to completely "bar cy pres-only deals" as "per se invalid under Rule 23(b)(3)" asserting that such deals "release class claims, yet block consumers from receiving any direct benefit." 80

Thirteen other state Attorneys General, including California, Hawaii, Oregon, and Washington, took the opposite position. These state Attorneys General supported the use of cy pres-only settlements in general, and further lent their support to the specific use of cy pres as a class remedy in this case.81

In total, fourteen amici briefs were filed in support of cy pres settlements, with thirteen of those underscoring the importance of cy pres as a class remedy in general, and five arguing that the cy pres distribution was appropriate in this case.

The twenty-six amici offered varying reasons for their support, and just a few examples are included here.

The American Bar Association (ABA), while taking no position on the precise question before the Court, discussed the importance of cy pres awards in funding legal services to low-income and indigent litigants to provide them with access to the judicial system and alerted the Court to the potential impact on state statutes and rules providing for cy pres awards. The ABA urged the Court to not make any broad pronouncements about the constitutionality of cy pres remedies in class action settlements.82

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The Center for Workplace Compliance (CWC), an employer association focused on workplace compliance requirements, stressed that parties to a class action are broadly free to structure a class settlement as they wish, provided that it is "fair, reasonable, and adequate." CWC noted the availability of cy pres relief as an important tool for dispute resolution, especially in cases against large employers.83

Professor William B. Rubenstein, a long-standing class action academic, mirrored some of the other arguments in support of Class Respondents. He joined Respondents in pressing the Court for a DIG order; alternatively, he suggested the Court issue a very narrow ruling focused on the exceptional nature of the case.84 Professor Rubenstein’s amicus brief is notable for its examination of eighteen cy pres only settlements that had been granted final approved by federal courts across the country.85

The Civil Justice Research Institute ("CJRI"), a think tank chaired by Erwin Chemerinsky, Dean of Berkeley Law School and Founding Dean of the UC Irvine School of Law, was the only amicus to suggest that the Court provide guiding principles for courts to apply in evaluating whether to approve the distribution of cy pres. While CJRI opined that the rules as they currently exist are sufficient if courts diligently review cy pres proposals, it suggested that, should the Court intend to provide further direction, the questions ChiefJustice Roberts raised when the Supreme Court denied certiorari in Marek v. Lane86 may provide guidance. Specifically, CJRI proposed the Court consider the following factors in determining the propriety of cy pres only relief in class settlements: (1) what the lawsuit is about and the interests of the absent class members; (2) when it is alleged that a statute is violated, the objectives of the statute; (3) the loss suffered by the class members; and (4) the geographic breadth of the class.87 In addition, CJRI urged, defendants should not, as a rule, select cy pres recipients and if the defendant has given money to the recipient in the past, the award should be "looked at closely by the reviewing court," and the Court should not have any role in the initial selection of cy pres recipients; that is the role of the class representative and class counsel.88

"Professional recording and performing artists" David Lowrey, Raymond J. Pepperrell89, Blake Morgan, and Guy Forsyth, added an interesting amicus perspective. Rather than raise a wholesale challenge to all cy pres settlement distributions, the four amici argued that the cy pres award in this case, and in other similar cases against Google and Facebook, harm rather than benefit class members, because some of the chosen cy pres recipients have lobbied with or supported Google against the copyright interests of class members who are in the artist community (the specific recipient(s) alleged to have supported Google in this way are not identified in the recording artists’ brief, however).90

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Only four amici, including the government, both opposed the Gaos cy pres-only settlement and addressed the standing issue. The Center for Constitutional Jurisprudence ("CCJ"), the public interest law arm of the Claremont Institute, and Atlantic Legal Foundation challenged plaintiffs’ standing based not on the "concrete" injury factor discussed in Spokeo, but on the third factor required for Article III standing: i.e. that the plaintiff must show that a favorable ruling by the court will actually redress the injury. Since Google was not required to stop engaging in the conduct at issue, and plaintiffs did not receive any monetary recovery, the district court’s ruling and Ninth Circuit’s affirmance, they argued, did not redress the injury alleged in the litigation, and therefore plaintiffs lacked standing.91

Former Professor Roy A. Katriel, the only amici who did not address cy pres at all, took the standing question in an entirely different direction. Mr. Katriel, in his friend of the court brief, changed the question presented to: "Whether a class member who voluntarily joins a Rule 23(b)(3) class action settlement has Article III standing to appeal a district court’s approval of the settlement."92 He posited that the Petitioners (objectors) lacked standing to appeal a judgment "entered under a settlement they voluntarily joined" by not opting out. He urged that the writ of certiorari be dismissed and the judgment of the Ninth Circuit also be vacated for lack of jurisdiction.93


Oral argument was held on October 31, 2018. The argument and questions from the bench focused largely on three topics: (1) whether a cy pres-only settlement of a class action is generally appropriate; (2) whether the cy pres relief approved in Gaos was a "fair", "adequate", and "reasonable" class remedy in that instance; and (3) whether plaintiffs had pleaded injury sufficient to satisfy Article III standing.

A. Questions Regarding Cy Pres as a Remedy Generally

Right out of the gate, Justices Ginsburg and Sotomayor questioned why it was unfair and unreasonable for the Court to endorse a cy pres-only class settlement. They asked whether, at minimum, it is not within the individual district court’s discretion to make that decision, unless and until Congress looks at the issue and decides differently.94

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Justice Breyer then posited whether a higher scrutiny standard should be crafted to apply to cy pres-only settlements: "[W]hile we wouldn’t say never, what’s happening in reality is the lawyers are getting paid and they’re making sometimes quite a lot of money for really transferring money from defendant to people who have nothing to do with it . . ."95

Justice Alito’s comments reflected a high degree of skepticism for cy pres-only class settlements: "And at the end of the day, what happens?" he asked. "The attorneys get money, and a lot of it. The class members get no money whatsoever. And money is given to organizations that they may or may not like or may not ever do anything that is of even an indirect benefit to them. So how can such a system be regarded as a sensible system?"96

Justice Roberts’ comments at hearing offered little insight in to his thoughts on cy pres-only settlements as a general rule. He did, however, express that, if a cy pres-only settlement provides any relief to class members, it is appropriate to award attorneys’ fees to class counsel, regardless of the fact that no money was paid to class members.97 Echoing the suggestion of Petitioners, Justice Kavanaugh wondered whether a lottery system that would put settlement money into the hands of at least some class members, as Objector Frank had argued, wasn’t a better system, calling it "strange" that the award money would instead end up in the hands of "people who weren’t injured at all."98

B. Questions Regarding Cy Pres as the Proposed Remedy in Gaos

Many of the justices expressed serious doubts about the propriety of the selected cy pres recipients in the Gaos settlement. ChiefJustice Roberts thought it "fishy" that cy pres money was to be paid to an organization that Google contributed to in the past,99 noting the likely existence of other organizations to which Google hadn’t donated.100 Justice Kavanaugh was similarly skeptical and, referring back to the district court’s order, noted what he considered favoritism in the alma mater institutions of counsel as the chosen cy pres recipients.101

C. Questions Regarding Article III Standing

Justices Gorsuch and Kagan were eager to get to the jurisdiction issue.102 Indeed, many of the justices appeared to struggle with both the question of whether plaintiffs were actually harmed and what to do about it if they hadn’t suffered a sufficiently concrete, if intangible, harm.103

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Justices Gorsuch and Breyer seemed particularly dubious about whether plaintiff Italiano, the named plaintiff the justices focused on, was actually injured—a merits question—and whether the data revealed about him in the referrer headers related to his divorce was merely just public information.104 Justice Breyer appeared to be very focused on Spokeo: he criticized the district court for not trying to find a harm beyond the violation of a statute, which is what "Spokeo says is wrong"; Justice Breyer, perhaps foreshadowing his opinion, admitted he a "hard time distinguishing this from Spokeo."105

Justice Kavanaugh, on the other hand, seemed to say that Spokeo‘s mandates had been satisfied. "Isn’t that an injury, disclosure of what you searched?" he asked. ". . . I don’t think anyone would want the disclosure of everything they searched for disclosed to other people. That seems a harm."106 Justice Kavanaugh also asked whether determining if any person’s identity can be revealed through reverse-engineering their searches, e.g. the "reidentification" theory, was a merits question.107 He further intimated that the issue of whether this was an injury or not sufficient for standing would be a better question for the Rules Committee in Congress, and not an issue the Supreme Court should decide.108When the justices returned to the issue of whether plaintiffs suffered a harm later in the hearing with questions by Justices Sotomayor, Kagan, Alito, and Chief Justice Roberts about how the referrer header process works, Justice Kavanaugh again posited whether analyzing what process took place for plaintiff Italiano is a merits question, noting "you don’t have a mini-trial on whether the harm, sufficient for standing, is proved."109

There also appeared to be varying opinions on what action to take on the standing question. Justice Gorsuch debated whether the case shouldn’t be remanded to direct the court to make the decision whether there is "actually" standing, as opposed to the mere "allegation" of standing, because "here we’re entering a final judgment."110 Justice Ginsburg seemed to agree that remand would be appropriate.111 Justice Alito, the author of the Spokeo majority opinion, suggested the Supreme Court could decide the standing issue as a matter of law.112

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With the standing issue taking on a more prominent role at hearing, a week after oral argument, the Court ordered the parties and the government to submit supplemental briefing addressing "whether any named plaintiff has standing such that the federal courts have Article III jurisdiction over this dispute."113 The supplemental and reply supplemental briefing added significantly more case law, and verbiage, to the standing argument. For brevity, only the highlights and new arguments are summarized here.

1. Petitioners (Objectors) Argued the Complaint Satisfied Both the Spokeo Majority and Concurring Opinions.

Petitioners (objectors), obviously wanting the Court to get to the cy pres question, argued in their supplemental briefs that there was no reason for the Court to get to the standing issue. Where standing is not factually controverted in the lower courts, Petitioners argued, there is no need to demand evidence of beyond what is alleged in the complaint, construing the complaint in favor of the complaining party.114 If an objector makes a plausible factual challenge to a class representatives’ standing, or a court suspects collusion by the parties to create jurisdiction, only then would some evidentiary showing and factual finding be required, Petitioners asserted.115

Objectors then argued that plaintiffs’ allegations of intangible harm satisfy the Spokeo "concrete injury" factors. First, they argued, plaintiffs’ harm has a close relationship to an injury to privacy that has historically been regarded as providing a basis for a lawsuit in English or American Courts.116 Numerous American cases protect the confidentiality of private letters and Internet search queries, and search terms themselves reflect users’ communications of intimate thoughts and sentiments, and can reveal the identity of the searcher, Petitioners argued.117 Objectors argued that the second Spokeo factor, Congress’s judgment in identifying and elevating intangible harms results in an analysis of whether the statute at issue creates a procedural or substantive right, was also met because the SCA creates a substantive and not merely procedural right.118 Petitioners likened this case to Eichenberger v. ESPN, Inc., where the Ninth Circuit distinguished the merely "procedural obligations that sometimes protect individual interests" of the Fair Credit Reporting Act at issue in Spokeo, from the Video Privacy Protection Act ("VPPA") at issue in Eichenberger v. ESPN, Inc., which identifies a "substantive right to privacy that a user suffers any time information is disclosed without consent."119 Here, Petitioners argued, in passing the Electronic Communications Privacy Act ("ECPA")120, of which the SCA is a part, Congress sought to ensure privacy protections for electronic communications comparable to those already in existence for physical records.121

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Lastly, Petitioners argued, plaintiffs’ alleged harm also satisfies Justice Thomas’ Spokeo concurrence requirements. Plaintiffs’ claims under the SCA and under the common law, Petitioners argued, seek to vindicate a private right, and, therefore, need not demonstrate additional injury beyond infringement of that right.122

2. To Show That Spokeo Has Been Satisfied, the Class Respondents (Plaintiffs) Directed the Court to Precedent Protecting Private Communications and to Google’s Privacy Policy Protections.

The Class Respondents, like Petitioners, asserted in their supplemental briefing that under a long, established history of U.S. common law, the unauthorized disclosure of private communications inflicts an actionable injury, thereby satisfying the first Spokeo factor.123 Additionally, the Class Respondents reminded the Court that, here, there was an express promise by Google in its Terms of Service to not disclose users’ searches.124 Whether some search terms communicated to Google would not result in embarrassment is not the issue, they argued. The unauthorized interception and disclosure of a communication’s contents "would still violate the writer’s right to control her communications, no matter how pedestrian the content."125

The Class Respondents argued the second Spokeo factor also is met in this context by Congress’s enactment of the SCA itself, which prohibits electronic communication service providers from "knowingly divulging" the "contents of a communication" they carry or store, except to "intended recipient(s)" or with "lawful consent," authorizes relief without actual damages, and authorizes any "subscriber or other person aggrieved by a violation" to sue.126 The complaint, in providing example searches that plaintiff Italiano undertook related to his divorce, revealing both his intent to divorce and that he was looking for a forensic accountant to advise him, is sufficient to show that plaintiffs’ searches created "sufficient risk of real harm" as contemplated by Spokeo, Class Respondents argued. The reidentification, (reverse-engineering) threat, too, is real, Class Respondents urged, noting that Google itself cites such privacy risks when refusing to turn over even anonymized search terms in response to government subpoenas.127 Lastly, they argued, the named plaintiffs also have standing to assert the four other breach-of-contract and quasi-contract causes of action because their allegations satisfy traditional pleading requirements for those claims.128 Class Respondents urged the Court to find standing had been sufficiently pleaded, rather than dismissing or remanding.129

[Page 154]

3. Google Challenged the Plausibility of Plaintiffs’ Theories of Harm.

Prior to the hearing, Google, noting its obligation to support the settlement, did not challenge plaintiffs’ harm or resulting Article III standing.130 In its supplemental briefing, however, Google reversed course. In a bit of surprise, Google turned on plaintiffs and the settlement the parties had negotiated, stating in its post-argument brief that "[n]one of the three named plaintiffs has Article III standing" as required by Spokeo.131 Google challenged the complaint’s allegation of actual harm as conclusory and failing to satisfy Iqbal and Twombly, arguing that Class Respondents’ alleged reidentification theory is not plausible because plaintiffs have not alleged that someone can or has linked their searches to their identity; plaintiffs merely speculatively allege, Google argues, that reidentification is a possibility.132 Much of Google’s supplemental briefing focused on the merits, and specifically, the "science" of the reidentification theory and whether it can be proven to show an articulable harm.133 Google argued that search terms embedded in a URL are "nothing like the contents of a private letter" or any of the other examples of communications deemed private by historical case law cited by both Petitioners and Class Respondents.134 Lastly, even assuming the complaint’s allegations were found to be sufficient, Google now contended it should be entitled to an evidentiary hearing to disprove the Class Respondents’ standing allegations.135 Google concluded its supplemental brief by asking the Court to vacate the Ninth Circuit judgment and to remand with direction to dismiss for lack of Article III standing.136

[Page 155]

4. The United States Government Also Factually Challenged Plaintiffs’ Harm.

Noting that the Court in Spokeo "explained that the ‘risk of real harm’ can in some circumstances ‘satisfy the requirement of concreteness’" and that "plaintiffs asserting certain statutory violations can establish a concrete injury without alleging ‘any additional harm’", the Solicitor General reiterated in its supplemental brief that plaintiffs, here, had not satisfied Spokeo because they continued to rely solely on the allegation of a statutory SCA violation.137 Like Google, the Solicitor General delved into the facts, arguing that the disclosure of search queries does not provide any identifying information about the user, are not considered contents of a "communication"138 that would identify plaintiffs, and that any injuries resulting from someone learning that plaintiffs conducted the searches would not be regarded as "highly offensive to a reasonable person,"139 don’t involve the "publicity" of private information, and do not concern plaintiffs’ private life.140 Also, like Google, the government argued in its post-argument brief that the "science of reidentification" is too speculative to create Article III standing.141 The Solicitor General, like Google, asked the Court to vacate the judgment below and remand with directions to dismiss for lack of jurisdiction.142


In another surprise turn, despite having the benefit of supplemental briefing, the Supreme Court in the end punted on both issues. In an unsigned per curiam order, the high court held that a review of the supplemental briefing it had ordered "raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We ‘are a court of review, not of first view.’"143 Vacating the Ninth Circuit’s judgment and remanding, the Court held that "[r]esolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance."144 The Court expressly resolved to give no hints on how it would have resolved the standing issue had it reached it: "[n]othing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question."145

[Page 156]

Justice Thomas (despite asking no questions at oral argument) dissented, indicating he would reach the merits and reverse the order approving the cy pres settlement—the core issue on which certiorari was originally granted. Justice Thomas opined that Article III standing had been met by plaintiffs, in accordance with Spokeo, "[b]y alleging the violation of ‘private dut[ies] owed personally’ to them ‘as individuals.’"146 Justice Thomas stated he would reverse, however, as to the cy pres-only settlement because, in his view, the settlement failed to satisfy several elements of Fed. R. Civ. P. 23, asserting: (1) the interests of the class were not adequately represented because the named plaintiffs were willing to settle without obtaining any relief for the class, (2) the lack of any benefit for the class rendered the settlement unfair and unreasonable; and (3) it is questionable whether a class action is superior when it "serves only as a vehicle through which to extinguish absent class members’ claims without providing them any relief."147 "Whatever role cy pres may permissibly play in disposing of unclaimed or undistributable class funds," Justice Thomas concluded, "cy pres payments are not a form of relief to the absent class members and should not be treated as such (including when calculating attorneys’ fees)."148


Given the Court’s side-stepping of both the Article III standing and cy pres issues, what are practitioners to absorb from Frank v. Gaos? Here are some takeaways:

Article III standing has relevance beyond the pleading stage. Orders for class certification, even for settlement purposes, may need the support of an evidentiary record on Article III justiciability to survive appellate review.

While the decision in Gaos did not prohibit cy pres-only awards altogether, it can be anticipated that cy pres-only settlements will be subjected to stricter scrutiny in the courts. In recent years, in a number of cases, the conservative majority on the Supreme Court has expressed hostility to class action suits. The justices’ colloquy with counsel during oral argument in Gaos reveals that the hostility remains. Justice Thomas, we now know, believes cy pres is not a proper remedy in class action suits, at least in so far as the settlement requires a release of absent class member claims.

Similarly, Chief Justice Roberts, in his statement from the bench when the Court denied certiorari in Lane, expressed his frustration at the lack of judicial guideposts in this area. Among the subjects Justice Roberts hoped the Supreme Court would examine "when a . . . suitable cases presents itself" is "how to . . . assess fairness [of cy pres] as a general matter," how to choose entities to receive the cy pres award, whether new entities could be formed as part of the relief, how to delineate responsibility between the judge and parties in forming the cy pres remedy, and "how closely the goals of any enlisted organization must correspond to the interests of the class."149 Justice Roberts’ stated concern at oral argument in Gaos—that it seemed "fishy" that cy pres money was set aside for organizations to which Google had donated, despite the likely existence of other organizations that had not previously received such support150—suggests a desire by the ChiefJustice that federal courts have rules in place to guide them when evaluating the fairness or adequacy of cy pres class action settlements. While Gaos did not end up being the vehicle by which the Supreme Court set forth new cy pres guideposts, a future class case providing only cy pres relief may afford the conservative justices the opportunity to limit cy pres-only settlements.

[Page 157]

Cy pres has an established and important history in class action litigation.151 A finding by a future Supreme Court that cy pres-only settlements can never be certified would be a windfall for defendants and, in this author’s view, undermine the historical and chief function of class action lawsuits to enforce the law and deter wrong-doing. Conversely, perhaps Gaos’ cautionary tale will provide an impetus both to settling defendants, to offer a monetary award, and, to settling plaintiffs and fund administrators, to propose creative means for distribution even where the settling class is large, if all parties want to get their settlement approved.

Class action practitioners should be guided by the developed record that Gaos provides. At a minimum, litigators representing plaintiffs and defendants in class actions in which they believe cy pres may be an appropriate class remedy should ensure that there is an articulated basis for Article III jurisdiction at the time of class certification and settlement approval. If cy pres is the only practical settlement vehicle, practitioners also should take care to select as proposed cy pres settlement recipients organizations that are independent of any participant in the litigation and who possess nonprofit goals that have a close nexus to the claims at issue in the case and aren’t the "usual suspects" that the District Court identified.

[Page 158]



1. Bethany Caracuzzo is Special Counsel at Pritzker Levine, LLP, an Oakland, California-based law firm that represents plaintiffs in antitrust, consumer protection, and privacy matters, including class actions.

2. In re Google Referrer Header Privacy Litigation, No. 17-961 ("Frank v. Gaos").

3. In modern litigation, the term "cy pres" refers to the act of designating unclaimed class funds to public interest organizations whose work furthers the interests of the class. The history and usage of cy pres remedies in class action jurisprudence is discussed, briefly, in Section II.B. of this article.

4. In re. Google Referrer Header Privacy Litigation ("Gaos"), 87 F.Supp.3d, 1122, 1129-1130 (N.D. Cal. Mar. 31, 2015).

5. ChiefJustice Roberts foreshadowed his of cy pres-only settlements in his statement from the bench when the Supreme Court denied certiorari in Marek v. Lane. At that time, Chief Roberts specifically was interested in examining "how to . . . assess fairness [of cy pres] as a general matter," how to choose entities to receive the cy pres award, whether new entities could be formed as part of the relief, how to delineate responsibility between the judge and parties in forming the cy pres remedy, and "how closely the goals of any enlisted organization must correspond to the interests of the class." Marek v. Lane, 134 S.Ct. 8, 9 (2013).

6. Transcript of Oral Argument, Frank v. Gaos, No. 17-961 (Oct. 31, 2018).

7. ___ U.S.___, 136 S. Ct. 1540 (2016) ("Spokeo").

8. Transcript of Oral Argument, supra, note 5.

9. See Orders in Pending Cases, Frank v. Gaos, No. 17-961 (Nov. 6, 2018).

10. Frank v. Gaos, No. 17-961, 586 U.S. ___(March 20, 2019)(slip op.).

11. The "referrer header" mechanism is not unique to Google. All major web browsers (including Internet Explorer, Firefox, Chrome, and Safari) by default reports the URL of the last webpage that the user viewed before clicking on the link to the current page as part of "referrer header" information. See In re Zynga Privacy Litig., 750 F.3d 1098, 1102 (9th Cir. 2014) (explaining how "referrer headers" operate).

12. Complaint at 2-4, Gaos, No. 5:10-cv-04809-EJD, (Oct. 25, 2010), ECF No. 1.

13. In re. Google Referrer Header Privacy Litigation ("Gaos"), 2014 WL 1266091 (N.D. Cal. Mar. 26, 2014), at *1; Complaint at 18-23, supra note 11.

14. Complaint at 2-4, 31-33, supra note 11.

15. Order Granting Motion to Dismiss, Gaos, No. 5:10-cv-04809-EJD, (Apr. 7, 2011), ECF No. 24.

16. First Amended Complaint, Gaos, No. 5:10-cv-04809-EJD, (May 2, 2011), ECF No. 26; Motion to Dismiss First Amended Complaint, (May 16, 2011), ECF No. 29.

17. Order Granting-in-part and Denying-In Part Motion to Dismiss, Gaos, No. 5:10-cv-04809-EJD, (March 9, 2012), ECF No. 38

18. 18 U.S.C.A. § 2702.

19. Order on Motion to Dismiss, supra note 16, at 5. It should be noted that the district court’s analysis pre-dates the Supreme Court’s 2016 decision in Spokeo.

20. 567 U.S. 756 (June 28, 2012); see also Frank v. Gaos, slip op. at 3, 5, supra note 9.

21. Consolidated Class Action Complaint ("CACC"), Gaos, No. 5:10-cv-04809-EJD, (April 26, 2013), ECF No. 50. The CACC also added in named plaintiff Gabriel Priyev, who had originally filed suit in the Northern District of Illinois.

22. Order as Modified by the Court Granting Stipulation of Class Actions, Gaos, 5:10-cv-04809-EJD, (Apr. 30, 2013), ECF No. 51; see also Frank v. Gaos, slip op. at 3, 5, supra note 9.

23. CACC at ¶ 119, supra note 19.

24. 2014 WL 1266091 at *5.

25. Motion for Settlement (Preliminary Approval), Gaos, No. 5:10-cv-04809, (July 19, 2013), ECF Nos. 52, 55, 57.

26. Gaos, 2014 WL 1266091 (N.D. Cal. Mar. 26, 2014), at *4-*5; see also In re. Google Referrer Header Privacy Litigation ("Gaos") 869 F.3d 737, 741 (9th Cir. 2017).

27. Gaos, 869 F.3d 727, 740 (9th Cir. 2017).

28. Edith L. Fisch, The Cy Pres Doctrine in the United States § 1.00, at 1 (1950).

29. Gaos, 869 F.3d 373, 741 (9th Cir. 2017).

30. Fisch, supra note 27, § 5.00 at 128.

31. Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012) (internal citation omitted).

32. Id. at 821. The Supreme Court denied certiorari in Lane but, even so, ChiefJustice Roberts took the unusual step of issuing a statement from the bench, stating that when a more suitable case presents itself, the Court should consider "when, if ever, [cy pres] relief should be considered" and should "clarify the limits on the use of such remedies." Marek v. Lane, 134 S.Ct. 8, 9 (2013).

33. 2014 WL 1266091 (N.D. Cal. Mar. 26, 2014); see also Transcript of Aug. 27, 2013 Hearing, Gaos, No. 5:10-cv-04809, ECF No. 57.

34. Id. at *6 (N.D. Cal., 2014)

35. Id.

36. Id. (footnote omitted).

37. Id.

38. Transcript of Aug. 27, 2013 Hearing, supra note 31, at 6:20-8:15; 11:5-17; 40:11-41:6; 45:15-24; 47:3-8; 48:12-19.

39. Objection by Frank and Holyoak (August 8, 2014) at 14, Gaos, No. 5:10-cv-04809-ELD, ECF No. 70, citing to Shay Lavie, Reverse Sampling: Holding Lotteries to Allocate the Proceeds of Small-Claims Class Actions, 79 Geo.Wash. L.Rev. 1065 (2011).

40. Lavie, supra note 39, at 1070-1071 (Lavie provides an example of distributing funds to only 5% of a settlement class, thereby decreasing administrative costs by 95% and leaving more money that can be paid to the winning beneficiaries).

41. Transcript of Aug. 29, 2014 Hearing, Gaos, No. 5:10-cv-04809; ECF No. 82, at 5-13; Objection by Frank and Holyoak, supra note 38.

42. Transcript of Aug. 29, 2014 Hearing, supra note 41, at 18:2- 26:17.

43. Id. at 23:7-8.

44. Id. at 26:23-27:17; 31:14-32:6; 47:17-48:2; 64:25-65:7.

45. Id. at 64:22-65:6.

46. Gaos, 87 F.Supp.3d 1122 (N.D. Cal. Mar. 31, 2015).

47. 87 F.Supp.3d at 1132, 1133; see also nt. 1 of the opinion, where the district court again referred to the final list of cy pres recipients as being the "usual suspects," despite plaintiffs’ counsel’s prior promise to the court to "raise the bar" by treating the cy pres allocation selection like a grant application process.

48. Id. at 1135-36.

49. Id. at 1137.

50. 869 F.3d 743 (9th Cir. Aug. 22, 2017). The panel consisted of circuit judges J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee. The opinion was by Judge McKeown, with a partial concurrence and partial dissent by Judge Wallace.

51. Id. at 737 (9th Cir. Aug. 22, 2017).

52. Id. at 741-742.

53. 696 F.3d 811, 819 (9th Cir. 2012).

54. 869 F.3d at 742.

55. Id. at 742.

56. Id. at 745-46.

57. Id. at 746-47. Attorneys for the class attended Chicago-Kent College of the Law, Stanford, and Harvard, which were designated to receive 16%, 16% and 15% of the cy pres fund, respectively. Id. at 749.

58. Id. at 747-48. Circuit Judge Wallace concurred in part, and dissented in part. While he agreed that a cy pres-only settlement was appropriate and did not think the fee award was an abuse of discretion, he was concerned about the preexisting relationships between class counsel and some cy pres recipients, and dubious that the district court had conducted a "careful review" of the relationships given the "terse . . . boilerplate . . . one-line" declarations counsel submitted. Id. at 750. Judge Wallace recommended vacating and remanding with instructions to hold an evidentiary hearing, examine class counsel under oath on the record, and to determine whether "prior affiliation[s] played any role in the selection [of the] beneficiaries. Id., at 748 (emphasis in original).

59. Oct. 5, 2017 Order, USCA Case No. 15-15858.

60. Petitioners’ Brief for Writ of Certiorari, Frank v. Gaos, No. 17-961 (July 9, 2018).

61. Id. at 40, 49.

62. Brief of Respondent Google, Inc. in Opposition to Petition for Writ of Certiorari at 2-3, 22, Frank v. Gaos, No. 17-961 (March 9, 2018).

63. Id. at 3.

64. Brief for the United States as Amicus Curiae Supporting Neither Party at 10-11, Frank v. Gaos, No. 17-961 (July 16, 2018)("although no party raised a jurisdictional objection in the court of appeals or at the certiorari stage, this Court has an obligation to satisfy itself of its own jurisdiction even though the parties are prepared to concede it.") The government later pressed the Court to remand, not to more fully address standing and scrutinize the cy pres relief, but instead with direction to dismiss. See also Supplemental Brief for the United States as Amicus Curiae, infra note 133.

65. Id. at 13.

66. Spokeo, 136 S.Ct. 1547.

67. Id. at 1548.

68. Id. at 1549.

69. Brief for the United States, supra note 64, at 14-15. Unlike the District Court, the Ninth Circuit had the benefit of Spokeo before it issued its affirmance. No party raised the issue in its appellate briefing, however.

70. Id. at 11, 14-15.

71. Brief for Class Respondents at 54-55, Frank v. Gaos, No. 17-961 (Aug. 29, 2018).

72. Brief for Respondent Google LLC at 46, Frank v. Gaos, No. 17-961 (Aug. 29, 2018).

73. Reply Brief for Petitioners at 25-26, Frank v. Gaos, No. 17-961 (September 28, 2018), citing to Spokeo, 126 S. Ct. at 1549-50.

74. Id.

75. Brief of the Cato Institute and American’s for Prosperity as Amici Curiae in Support of Petitioners at 3, 6, 8-19, Frank v. Gaos, No. 17-961 (July 12, 2018) (collectively referred to as "Cato Institute"); Brief of Amicus Curiae Lawyers for Civil Justice in Support of Petitioners at 14-15, 18, Frank v. Gaos, No. 17-961 (July 13, 2018); Brief of the Center for Individual Rights as Amicus Curiae in Support of Petitioners at 1, Frank v. Gaos, No. 17-961 (July 16, 2018); Brief of the Attorneys General of Arizona, Alabama, Alaska, Arkansas, Colorado, Georgia, Idaho, Indiana, Louisiana, Michigan, Missouri, Nevada, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, and Wyoming as Amici Curiae in Support of Petitioners at 3, 13, Frank v. Gaos, No. 17-961 (July 16, 2018).

76. Brief of Amicus Curiae Electronic Privacy Information Center (EPIC) in Support of Petitioner at 5 (July 16, 2018)(criticizing that the selection of cy pres recipients here fails to provide funding for consumer privacy organizations and also insulates Google from related claims calling for close judicial oversight of all cy pres-only awards); Brief of the United States Chamber of Commerce as Amicus Curiae in Support of Neither Party at 15-16, (July 16, 2018) (calling for close scrutiny of such settlements and for courts to "enforce the requirements of Rule 23 at the front end—and thus [] relieve the pressure for opportunistic cy pres settlements at the back end."); Brief of the United States Government Supporting Neither Party, supra note 64, at 15-16.

77. Brief of the Manhattan Institute for Policy Research as Amicus Curiae Supporting Petitioners at 21, Frank v. Gaos, No. 17-961 (July 16, 2018).

78. Brief of the New Jersey Civil Justice Institute as Amicus Curiae in Support of Petitioners at 9, Frank v. Gaos, No. 17-961 (July 16, 2018) ("NJCJI") (because unnamed class plaintiffs will not receive a direct benefit under the settlement, the class device is not superior and Rule 23 has not been met).

79. Brief of Amici Curiae Center for Constitutional Jurisprudence and Atlantic Legal Foundation in Support of Petitioners, Frank v. Gaos, No. 17-961 (July 13, 2018) (collectively referred to as "CCJ"); Brief of EPIC, supra note 76; Brief of NJCJI, supra note 77; Brief of Amici Curiae David Lowrey, et al., in Support of Petitioners at 12-13, Frank v. Gaos, No. 17-961.

80. Brief of the Attorneys General of Arizona, et al., supra note 75, at 3, 13; see also Brief of the Center for Individual Rights, supra note 75, at 1, which also criticized what it called the Ninth Circuit’s "practice" of approving cy pres-only settlements.

81. Brief for the States of Oregon, California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New York, North Carolina, Vermont and Washington as Amici Curiae in Support of Respondents at 16, Frank v. Gaos, No. 17-961 (Sep. 3, 2018).

82. Brief of the American Bar Association as Amicus Curiae in Support of Neither Party at 4, 6, 9, Frank v. Gaos, No. 17-961 (July 16, 2018).

83. Brief Amicus Curiae of the Center for Workplace Compliance in Support of Respondents at 10-11, 20, Frank v. Gaos, No. 17-961 (Sep. 3, 2018).

84. Brief of Professor William B. Rubenstein as Amicus Curiae in Support of Respondents at 6-7, 16, Frank v. Gaos, No. 17-961 (Sep. 3, 2018). Professor Rubenstein is the Bruce Bromley Professor of Law at Harvard Law School and the sole author, for the past decade, of Newberg on Class Actions.

85. Id. at Appendix 1a, citing to 18 cases dating back to 1995.

86. Marek v. Lane, 134 S.Ct. 8, 9 (2013).

87. Brief of the Civil Justice Research Initiative as Amicus Curiae in Support of Respondents at 26-32, Frank v. Gaos, No. 17-961 (Sep. 3, 2018).

88. Id. at 28.

89. As just one example of their professional and creative works, Mr. Pepperell is the song-writer and guitarist for the American punk band, Dead Kennedys.

90. Brief of Amici Curiae David Lowrey, at al, supra note 79, at 3, 6.

91. Brief of CCJ, supra note 78, 4-6; see also Brief of Amicus Curiae Lawyers for Civil Justice in Support of Petitioners at 6, 15-16, Frank v. Gaos, No. 17-961 (July 13, 2018).

92. Brief of Former Professor Roy. A. Katriel as Amicus Curiae in Support of Neither party, at i, Frank v. Gaos, No. 170961 (filed July 13, 2018). Mr. Katriel is a former adjunct professor at American University’s Washington College of the Law and an attorney practicing class action litigation.

93. Id.

94. Transcript of Oral Argument, supra note 5, at 2-9, 12.

95. Id. at 46-47.

96. Id. at 63.

97. Id. at 26 ("I think you either decide the cy pres award provides relief or it doesn’t provide relief . . .if it does provide relief, then I don’t know why the fee would be cut back just because it’s not money.")

98. Id. at 48-52, 58-59.

99. Again, the Chief Justice’s skepticism was foreshadowed in his statement from the bench when the Supreme Court denied certiorari in Lane. See supra, note 5, Marek v. Lane, 134 S.Ct. at 9.

100. Transcript of Oral Argument, supra note 5, at 56.

101. Id. at 55.

102. Id. at 15.

103. See infra note 108.

104. Id. at 18-21, see also 30-21.

105. Id. at 19.

106. Id. at 30-31.

107. Id. at 32.

108. Id. at 35. Justice Kavanaugh does not elucidate in what ways he feels the Rules Committee could provide guidance other than to possibly "address it." Id.

109. Id. at 44-45.

110. Id. at 18.

111. Id. at 34.

112. Id. at 27.

113. See Orders in Pending Cases, supra note 8.

114. Supplemental Brief for Petitioners at 4, Frank v. Gaos, No. 17-961 (November 29, 2018), citing to Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), Warth v. Seldin, 422 U.S. 490 501 (1975), and Muransky v. Godiva Chocolatier, Inc., 905 F.3d 1200, 1208-12 (11th Cir. 2018).

115. Id. at 4-5.

116. Id. at 7, citing Spokeo, 136 S.Ct. at 1549.

117. Id. at 9-10 (citations omitted).

118. Id. at 11-12.

119. 876 F.3d 979, 983-84 (9th Cir. 2017) (emphasis in original).

120. 18 U.S.C. § 2510, et seq.

121. Supplemental Brief for Petitioners at 11-13, Frank v. Gaos, No. 17-961 (Nov. 29, 2018).

122. Id. at 17, citing to Spokeo, 126 S.Ct. at 1551-1552.

123. Class Respondents’ Reply to Supplemental Briefs on Article III Standing at 2-12, Frank v. Gaos, No. 17-961 (Dec. 21, 2018).

124. Class Respondents’ Supplemental Brief on Article III Standing at 12, Frank v. Gaos, No. 17-961 (Nov. 30, 2018).

125. Id. at 14.

126. Id. at 15-16, quoting 18 U.S.C. § 2702(a),(b),(c) and § 2707.

127. Id. at 18.

128. Id. at 19-22.

129. Id. at 23.

130. Brief for Respondent Google LLC, supra note 72, at 46.

131. Supplemental Brief for Respondent Google LLC at 1, 7-8, Frank v. Gaos, No. 17-961 (November 30, 2018).

132. Id. at 10-11 (citing to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)), 13-14.

133. Id. at 13. Google contended that a web server could piece together information from multiple searches to identify a user only if a plaintiff conducted different searches and each time clicked on the same site and that the operator of that site kept track of each of those queries. Google also argued that an adversary (not Google) would then need to take five affirmative steps, detailed in their brief, to be able to reverse-engineer to locate a user, which Google opined is unlikely. Google added that none of this "chain of possibilities" is alleged in plaintiffs’ complaint. Id. at 14-15.

134. Id. at 20.

135. Id. at 24.

136. Id. at 26. Google advances that, if the Court somehow finds the complaint’s allegations of harm to be "sufficient," Google would still be entitled to an evidentiary hearing to test the competency of plaintiffs’ allegations before Article III standing could be fully determined. Id. at 24-25.

137. Supplemental Brief for the United States as Amicus Curiae Supporting Neither Party at 10-11, Frank v. Gaos, No. 17-961 (November 30, 2008).

138. Id. at 1107-1108; see also In re Zynga Privacy Litigation, 750 F.3d 1098 (9th Cir. 2014). The Ninth Circuit in Zynga affirmed the Northern District of California’s dismissal for failure to state a claim of allegations that Facebook Inc. and Zynga violated the Wiretap Act and SCA by transmitting, via the referrer header, a user’s Facebook ID and address of the Facebook webpage the user was viewing before clicking on and launching a Zynga game. The Ninth Circuit determined that information transmitted in a referrer header does not constitute "contents of any communication" under the SCA.

139. The government argues that plaintiffs’ complaint only alleges that a web operator could merely determine from the referrer header data that "someone" conducted the searches they allege, which is "far less offensive than the injuries that give rise to suits for public disclosure of private facts at common law. Supplemental Brief for the United States at 17, supra note 136 (emphasis in original).

140. Id. at 12-18.

141. Id. at 20-22.

142. Id. at 22.

143. Frank v. Gaos, slip op. at 6, supra note 9 (citation omitted).

144. Id.

145. Id.

146. Id., slip op., dissent at 1, supra note 9 (citation omitted).

147. Id., at 2-3.

148. Id., at 2.

149. See supra, note 5, Marek v. Lane, 134 S.Ct. at 9.

150. Transcript of Oral Argument, supra, note 5, at 56.

151. See supra notes 27, 29, and 84.

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