a spouse and district court excepted would open the floodgates to cypre and thus drowned out meaningful classroom it would allow parties to substitute sign pray for class recovery whenever class distributions would be quote unquote burdensome or quote unquote costly and whenever the fun could not be easily divided per capita amongst every class a number of other circuits that rejected that approach in this courtroom to neither the settle it neither sibling parties nor a district court have the discretion to conclude that maximizing class relief is not necessarily desirable as the court did below as judge jones observed in her concurrence in effect circuits claire decision is inherently dubious to apply a doctrine associated with  the defendant was involved in the organisation being established so that sort of a conflict of interest point and whether the total sum of ninety nine dollars or so one million dollars in that case was adequate it  conceded that it was non distributable class members which we reserve here now google refer decided that issue but of course that's been vacated by frank b dowse so return to the situation and this panel is free to decide the issue contrary to how it decided in google refer and i think there's good reasons for that i think who referred didn't have the benefit of justice thomas opinion  it was not infeasible to distribute that's where our evidence on your one hundred and forty three to one hundred and forty five the list of cases where it's been a click but where plaintiffs have been able to distribute this amount of money over relatively context of standing and also there was a three year process with the special master that was enormously expensive provided the additional evidence to substantiate that they were actually class members so i'm not sure how demonstrating that they had standing to consummate the settlement or in demonstrating that class in the name claims were in fact bona fide class members such as that they would be entitled to their incentive awards of between five hundred and five thousand dollars i don't think at the settlement stage that it makes sense to have two different standards we noted out a little bit in our reply brief but i do have a nd response to this whole self identification issue which is in the context of privacy settlements it's not unusual at all for to have a class definition it's for example two cases the fraley case which rely on class definition and fraley was class members whose names likenesses and images appeared  sponsored story which was facebook had this program by which if you click a like on a certain product like coke it would create a story on your friend's timeline that you liked koch well there was no way for those class members to know that they were featured in sponsored stories because they only appeared on their friends timelines but the client there was a claims process in that case and it only required an acid test station in the class members may that may have upon information and believe may have been in a sponsored story essentially the same exact same exact procedure that the name claims were allowed to use here through the complaint to verify their status  what we propose which is just one proposal is to allow all sixty million class members the opportunity to file a can it's correct at that proposals only feasible because one to five percent of that number which is between  six hundred twenty three one million that's not a small number of class members will take them up on that offer but that doesn't mean that that isn't preferable to a situation where zero class numbers obtain a benefit which is what the parties of five or ten dollars or nothing but they're not going to prefer they're not going to bother writing an objection to the district court for that five or ten dollars round i thought well well the opt out that the opt out doesn't so i guess i would just say that although the law may allow for a limited birth of st i pray as a method of tidying up residual psalms after a comprehensive class recovery process twenty three can't be interpreted to accept class settlements  certifications proposed to pre term it that process prioritise non class benefit ahead of class benefit all the while while waving millions of class members significant statutory damages claims and i'd be happy to not extended at all there was no sunset or no expiration on those provisions the provisions that are extended for for a period of time are for example the privacy program which was negotiated in the eighty's settlement back in twenty issue there would be that they would be just be updated about privacy concerns that they would continue to my former employees of the issues so that is extended for a few years i would point you however that this was back in tw expense difficulty of the litigation there's very little that they're giving up in potential recovery why doesn't the camel case resolve that issue for us sure i would say that  members are not receiving any benefit from that and then to our nd point which we point out in our brief is that without any value without any substantial or meaningful bill you in that injunctive relief th monetary award is the only a word and class members are not getting benefit from that we would the position that when there is thirteen million dollars available in class members are not receiving or given the option to receive that then th you're if you're trying to get ahead of the class as a home there is no way to do it is that accurate and your honor i would agree with mr sheldon's points on that then that given that the claims rates are typically very low one percent is not uncommon putting fifteen hands but then you are valuing your valuing giving the giving one percent of the class ten dollars already and saying that that's for some reason per se better than  much but we do or agree that any claims process in this case would result in the claims rate under one percent that means undeniably it over ninety one percent of the cla or even all potential claimants cannot be identified quote the notion that in the inability to identify all class members precludes class certification and not be reconciled with our disqualifying affiliation or conflict with the and expensive to identify class members in this case that's what he's got and lowery was really does not argue otherwise so under established principles whether that's this court's decision is lane or even the alternative standards that other court point is the judge where did not commit clear error by finding that the settlement agreement secured meaningful injunctive relief for the class no destroyer said there was quote nothing new in the agreement and that's just not accurate so in addition it rises or falls on the proposition that it's impossible here to identify individual class members in connection with claims process so it's a little let me just talk a little bit more than that if i could so everyone agree impossible so so mr lowry his sort of come up with this alternative which is this all certification idea and the problem with that is that essentially creates a sham process eat is a process that asks people who they remember that they bought the salad dressing whether you know the whatever it was all salad oil at because a very small item but in this case it seems to me the correct it is we know people can't know would not be able to tell whether they're that is exactly right that in all of the cases that have involved some kind of some sort of education or the basic facts that go to class membership or in the possession of the class member or essential class members now maybe they're lying or maybe they're wrong but at least they relied on or really any other case it's come before this court and so i think you know without getting into the interesting and complicated questions of the outer limits of cypre recovery this is a straightforward case in which it was wasn't good enough for standing there was a very elaborate very expensive very time consuming process to figure out whether they were right suspecting that right well it was both both selling parties agreed at the end of the day and it was good enough for standing because they they did not make public the findings of that three year process at all and they did not rely on them if you look at their motion for final approval they rely only on the grounds of the complaint i'm aware that so going forward you suggest that it would be what anybody wh expected of the name plaintiffs and what is expected of absent class members ok the and in addition to the fraley case that i mentioned the google plus case involving the same defendant the definition in google plus w class numbers that had they'd had their nonpublic profile information exposed as a result of software bugs and for that to happen you can look at the complaint that for that bug to occur people within their friends circle within their google plus circle had to have authorized an app so those class class members wouldn't know necessarily that there are people in there they would know who is in their friends or go but they wouldn't know that they authorize an app if they opened up  some other planes well i don't think they disputed that the that ethics ethics standards apply in federal court of the state on which the court sitting  not traditional is going oh well yes correct not directly but for purposes of determine what's a conflict of interest i would think that it does apply and  well the only court to decide whether that was a disabling conflict in the northern district of california judge or in a nap decision and he concluded that it was a disabling conflict  and the finding below that it didn't undermine the fairness that was a conclusory finding it in a footnote relied on lane but lane is a qualitatively different case because that involved a conflict with the defendant and the rationale by which this court sanctioned that conflict permitted it rather was that there's so many of the offspring of compromise so of course the defendant interest should get taken into consideration settlement  by the they they do you mean that the district court had the ultimate decision because class council proposed it and it was not altered other than to add in one more recipient would apply and they think they nominated and of course selected right mr will and referred to to our proposal of self identification as it were be a sham process but in fact google wants to take the benefit of having all of these class members they want sixty but they want to have resident caught of having sixteen million dollars individuals with a their claims though by their lights they wouldn't none of those individuals would be even able to tell that they were members of the class so how could they meaningfully exercise their right