The Google logo at the Google Store in New York, November 17, 2021. REUTERS / Andrew Kelly

(Reuters) – There’s a lot of sound and fury in the class action bar over the suitability of so-called cy pres-only settlements, in which all settlement money goes to charity rather than to the members of the group. But according to a pair of briefs filed Monday in the U.S. Supreme Court by Google LLC and class counsel who negotiated a $13 million settlement just to resolve allegations that Google Street View vehicles swept private wireless data, there is not much controversy.

Google and class counsel offered the Supreme Court the best possible reason not to grant review of their agreement: their briefs argue that cy pres settlements are so rare that it is not worth the judges to meddle with.

And indeed, Google and class counsel told the Supreme Court, the Federal Circuits have all adopted the same basic framework for analyzing whether cy pres settlements are permitted. So, according to Monday’s submissions, there is simply no reason for the judges to take up the matter.

“The issue presented is of minimal importance because monetary distributions reserved for cy pres are extremely rare today,” said Supreme Court class counsel Daniel Small of Cohen Milstein Sellers & Toll.

The new briefs were filed against a June 3 Supreme Court decision petition of class member David Lowery, a rock musician (Cracker and Camper Van Beethoven) and client of Ted Frank at the Hamilton Lincoln Law Institute. In the underlying case, a class of as many as 60 million people claimed that Google vehicles collected snippets of private data transmitted over Wi-Fi while amassing photographs for the Street View app between 2007 and 2010. U.S. District Judge Charles Breyer of San Francisco approved the cy pres-only deal because he said it would be nearly impossible to identify class members, who would have to have access to the wireless routers qu they used years ago, and even then would have to rely on Google to determine if vehicles’ Street View was capturing data at the time their street was photographed.

Frank, a perennial critic of cy pres payments, previously persuaded the Supreme Court to take up the issue in 2018 Frank vs. Gaosjust to see the case fired to the 9th United States Court of Appeals on the basis of Article III. Frank claimed in Lowery’s petition that the 9th Circuit has recently experienced an “explosion of consumer class action settlements with cy pres awards.”

Twenty state attorneys general similarly argued in a amicus brief Lowery arguing that the 9th Circuit’s relatively permissive cy pres precedent has already prompted plaintiffs’ attorneys to file class action lawsuits that could end in cy pres agreements in federal courts in California.

But according to Google attorneys at Wilson Sonsini Goodrich & Rosati and class attorneys for Cohen Milstein, there are very few class action settlements in which the settlement fund is entirely donated to charity, with no payouts to members. of the group.

I want to emphasize an important distinction here between cy pres-only settlements and settlements that designate charities to receive residual funds left over after distributions to class members. Residual provisions of cy pres are not uncommon, as documented in studies cited by Lowery and state attorneys general. But Lowery’s petition asked for advice on cy pres-only deals – and those, as I’ll explain, are extremely rare.

The two new opposition filings cite a Amicus Brief 2018 of Frank v. Gaos from the Supreme Court, in which prominent class action scholar William Rubenstein of Harvard Law School analyzed the frequency of cy pres-only settlements. According to Rubenstein, author of the most recent edition of the “Newberg on Class Actions” treatise, federal courts had, as of 2018, approved a grand total of 18 pre-only cy-never settlements and blessed only six of these regulations after a warning on their use of Chief Justice John Roberts in 2013.

The Cy pres-only settlements, Rubenstein said in this 2018 amicus brief, are so unusual that the Supreme Court shouldn’t have bothered to take a case to contain them. Rubenstein’s amicus brief actually urged the judges to dismiss Frank v. .

Since the Gaos case, Google and class attorneys said in their new briefs, class action attorneys on both sides have become even more wary of meadows-only settlements. Class attorneys said they were only aware of two rulings approving cy pres settlements only after Rubenstein’s 2018 empirical study. Both rulings, according to the class brief, involved claims in under the Fair Debt Collection Practices Act, which limits potential damages based on the defendant’s net worth. Sometimes those damages are so low, class counsel said, that it’s not possible to apportion the recovery among individual class members. (It’s no coincidence, according to the class filing, that 11 of the 18 pres-only settlements that Rubenstein identified in his 2018 study were class action debt collection actions.)

Class attorneys cited another pending settlement of cy pres-only, a class action lawsuit alleging privacy violations against Google for installing “cookies” in certain Internet browsers. The 3rd Circuit reversed a $5.5 million cy pres-only settlement in that case in 2019, but the parties sought approval of a revised settlement that still directs all of the recovery to recovery agencies. charity. Ted Frank has objected to the revised proposed regulations.

I asked Frank by email about the opposition briefs’ argument that cy pres-only settlements are too rare to warrant Supreme Court attention. He said Google and the class attorney had “miscounted” the cases that would be affected by Lowery’s motion. Frank said in an email that his shop has opposed at least two pending cases. He also said he is planning another cy pres-only settlement in the dismissed Gaos case, which involves allegations that Google violated stored communications law, but the parties appear to be waiting to disclose that agreement until later. whether the Supreme Court decides whether or not to grant a review. in the Street View case.

Frank’s petition posed a second question about whether courts should certify classes — like the Street View class — when it’s essentially impossible to verify class membership. Monday’s opposition briefs said the circuits had reached a consensus on verifiability. But that’s a whole different story.

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