PRECEDENTIAL
UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT________________
No. 17-1480________________IN RE: GOOGLE INC. COOKIE PLACEMENTCONSUMER PRIVACY
LITIGATIONTheodore H. Frank,
Appellant________________
Appeal from the United States District Court
for the District of Delaware(D.C. Civil Action No. 1-12-md-02358)
District Judge: Honorable Sue L. Robinson________________
Argued November 14, 2017
Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges(Opinion filed: August 6, 2019)
Theodore H. Frank (Argued)
Adam E. SchulmanCompetitive Enterprise InstituteCenter for Class Action Fairness
1310 L Street, N.W., 7th Floor
Washington, DC 20005
Counsel for Appellant
James P. Frickleton
Bartimus Frickleton Robertson & Gorny
11150 Overbrook Road, Suite 250
Leawood, KS 66211
Stephen G. Grygiel
Silverman Thompson Slutkin & White
201 North Charles Street, Suite 2600
Baltimore, MD 21201
Brian R. Strange (Argued)
Strange & Butler
12100 Wilshire Boulevard, Suite 1900
Los Angeles, CA 90025
Counsel for Appellees:Jose M. Bermudez;
Nicholas Todd Heinrich;
Lynne Krause.
Anthony J. Weibell (Argued)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Michael H. Rubin
Wilson Sonsini Goodrich & Rosati

2One Market Street
Spear Tower, Suite 3300
San Francisco, CA 94105
Counsel for Appellee,
Google Inc.
M. Duncan Grant
Pepper Hamilton
1313 Market Street
Hercules Plaza, Suite 5100
P.O. Box 1709
Wilmington, DE 19899
Joseph A. Sullivan
Pepper Hamilton
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Amicus Curiae:
Association of Pro Bono Counsel;
Community Legal Aid Society Inc.;
Community Legal Services;
Legal Services of New Jersey;
National Legal Aid & Defender Association;
Pennsylvania Legal Aid Network;
Philadelphia Bar Foundation.
Oramel H. Skinner, III (Argued)
Office of Attorney General of Arizona
1275 West Washington Street
Phoenix, AZ 85007

3

Counsel for Amicus Appellant:
Attorneys General for the States of Alaska,
Arizona, Arkansas, Kansas, Louisiana,
Mississippi, Missouri, Nevada, North Dakota,
Oklahoma, Rhode Island, Tennessee, Wisconsin.
________________OPINION OF THE COURT________________AMBRO, Circuit Judge
Cases with many plaintiffs, few to none of whom will
sue solely for themselves because the costs far outweigh thebenefits, frequently result in class actions under Federal Ruleof Civil Procedure 23. Prerequisites are having (1) so many
class members that joinder is impractical, (2) questions of law
or fact that are common to the class, (3) one or more
representatives whose claims or defenses are typical of thosein the class, and (4) representatives who will fairly andadequately protect the interests of the class. Fed. R. Civ. P.
23(a). Besides these prerequisites, a class action must satisfy
one of the subsections (1) through (3) in Rule 23(b). As
pertinent here, Rule 23(b)(2) provides that a class action may
be maintained if the requirements of Rule 23(a) are met and“the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief isappropriate respecting the class as a whole.”
For the first time we review an order approving thesettlement of a class action certified under Rule 23(b)(2) where
the only benefit received by the class was the defendant’s

4payment of a cy pres award to organizations the defendant
approved.1
The defendant, Google Inc., created a web browser“cookie” that tracks an internet user’s data (think following thetrail of cookie crumbs). For some Safari or Internet Explorer
browser users, the cookie may have operated even if the user
configured privacy settings to prevent it from tracking data.
The class plaintiffs claim Google invaded users’ privacy under
the California constitution and the state tort of intrusion uponseclusion (meaning the intrusion into a private place,
conversation, or matter in a highly offensive manner). In a
disputed Rule 23(b)(2) class settlement, Google has agreed tostop using the cookies for Safari browsers and to pay $5.5
million to cover class counsel’s fees and costs, incentive
awards for the named class representatives, and cy presdistributions, without directly compensating any classmembers. The six cy pres recipients are primarily data privacy
organizations, and all must agree to use the funds to researchand promote browser privacy. In addition, Google would
obtain, among other things, a class-wide release of all class1“The term ‘cy pres’ is derived from the Norman French
expression cy pres comme possible, which means ‘as near as
possible.’” In re Baby Prods. Antitrust Litig., 708 F.3d 163,
168 n.1 (3d Cir. 2013) (quoting Democratic Cent. Comm. v.
Washington Metro. Area Transit Comm’n, 84 F.3d 451, 455(D.C. Cir. 1996)). The doctrine “originated in trusts-andestates law as a rule of construction used to preserve
testamentary charitable gifts that otherwise would fail.” Id. at
168 n.2. “When it becomes impossible to carry out thecharitable gift as the testator intended, the doctrine allows thenext best use of the funds to satisfy the testator’s intent as nearas possible.” Id. (quotation omitted).

5member claims, including for money damages that did or could
stem from the subject matter of the litigation.
The lone objector, Theodore H. Frank, challenges theDistrict Court’s certification of a settlement class and the termsof the approved settlement. He argues that the cy pres money
properly belongs to the class as compensation. He asks us tovacate the settlement as unfair and require direct distributions
to class members before resorting to cy pres awards. In thealternative, if direct distributions are truly infeasible, he asserts
the class should not have been certified due to inadequate
representation. Frank also challenges the parties’ choice of cypres recipients because of their pre-existing relationships with
Google and class counsel.
We believe that, in some Rule 23(b)(2) class actions, acy pres-only settlement may properly be approved. But here
the District Court’s cursory certification and fairness analysis
were insufficient for us to review its order certifying the classand approving the settlement. The settlement agreement’s
broad release of claims for money damages and its designationof cy pres recipients are particularly concerning. We thus
vacate the order approving the settlement and remand forfurther proceedings consistent with this opinion.
I. Background
A. Prior Litigation
We outlined the facts underlying the class’s claims in In
re Google Inc. Cookie Placement Consumer Privacy
Litigation, 806 F.3d 125, 130–34 (3d Cir. 2015). In brief, news
broke in early 2012 that a Stanford graduate student had
discovered Google’s Doubleclick.net cookies were bypassing
Safari and Internet Explorer privacy settings and tracking
internet-user information. Google settled the resulting Federal

6Trade Commission and state attorneys general lawsuits,agreeing to cease the practice and to pay a combined $39.5
million in fines, though admitting no past acts or wrongdoing.
Plaintiff internet users also filed claims against Google thatwere later consolidated into a putative class action. The classcomplaint alleged violations of federal privacy and fraud
statutes, California unfair competition and privacy statutes, theCalifornia constitution’s right to privacy, and that state’s
privacy tort law. It sought injunctive and monetary relief.
Google moved to dismiss, and the District Court granted the
motion in full. On appeal we affirmed the dismissal of all but
the California constitutional and tort claims. See id. at 153.
B. Proposed Settlement
On remand, the parties began discovery. They thensought to avoid further litigation and began mediation before aformer federal judge. With the help of the mediator, the parties
agreed to a settlement (the “Settlement Agreement”) andsimultaneously moved for certification of a Federal Rule ofCivil Procedure 23(b)(2) class and approval of the settlement
under Federal Rule of Civil Procedure 23(e). The latter statesthat “claims, issues, or defenses of a certified class . . . may besettled, voluntarily dismissed, or compromised only with thecourt’s approval.” Fed. R. Civ. P. 23(e). It also lays out theprocedures that apply to any such settlement, dismissal, or
compromise. Id.
The proposed settlement defines the class as all persons
in America who used Safari or Internet Explorer web browsers
and “who visited a website from which Doubleclick.net . . .
cookies were placed by the means alleged in the Complaint,”
excluding individuals who had already obtained relief from
Google or submitted “a valid and timely Request for
Exclusion.” Settlement Agreement §§ 2.3, 2.5 (defining“Class” and “Class Member”). In sweeping language, the7settlement would release all class member claims, including fordamages, that did or could stem from, or relate to, the subject
matter of the litigation. Settlement Agreement § 2.25(“Released Claims”).
In exchange, Google would be required to assure it had“implemented systems configured to” abate or delete all thirdparty Google cookies that exist in Safari browsers. Settlement
Agreement § 5.1 (“Assurance of Remediation”). And as noted,
it would also pay $5.5 million, to be divided among thesettlement administrator, class counsel, the named classrepresentatives, and cy pres recipients. Settlement Agreement§ 5.2 (“Settlement Fund”).
The Settlement Agreement requires both parties toagree to the cy pres recipients. The class must propose up toten options, and Google may strike any for a non-arbitraryreason and request a replacement. Settlement Agreement § 5.3(“Cy Pres Recipients”). The chosen recipients must agree “todevote the funds to promote public awareness and education,
and/or to support research, development, and initiatives,
related to the security and/or privacy of Internet browsers.” Id.
The parties ultimately agreed on six recipients: (1) the
Berkeley Center for Law & Technology; (2) the Berkman
Center for Internet & Society at Harvard University; (3) theCenter for Democracy & Technology (Privacy & Data
Project); (4) Public Counsel; (5) the Privacy Rights
Clearinghouse; and (6) the Center for Internet & Society at
Stanford University. Neither Frank nor the District Court wereprivy to the selection process.
C. Class Action Settlements
The settlement of a putative class action requires theapproval of a district court, both for certifying the class and for
determining whether the settlement is “fair, reasonable and8adequate.” Halley v. Honeywell Int’l, Inc., 861 F.3d 481, 488(3d Cir. 2017). We have provided guidance on the factors a
court should consider in deciding whether to approve classaction settlements, most notably the Girsh factors2 and thePrudential factors.3 Where, as here, the parties seek
2

The Girsh factors, which a court must apply, are: “(1) thecomplexity, expense and likely duration of the litigation; (2)the reaction of the class to the settlement; (3) the stage of theproceedings and the amount of discovery completed; (4) therisks of establishing liability; (5) the risks of establishingdamages; (6) the risks of maintaining the class action throughtrial; (7) the ability of the defendants to withstand a greater
judgment; (8) the range of reasonableness of the settlement
fund in light of the best possible recovery; [and] (9) the rangeof reasonableness of the settlement fund to a possible recovery
in light of all the attendant risks of litigation.” Girsh v. Jepson,
521 F.2d 153, 157 (3d Cir.1975) (quoting City of Detroit v.
Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974)) (internal
ellipses omitted).
3

The Prudential factors, which a court may apply if relevant,are: (1) “the maturity of the underlying substantive issues . . .
the development of scientific knowledge, the extent of
discovery on the merits, and other factors that bear on theability to assess the probable outcome of a trial on the meritsof liability and individual damages”; (2) the “existence andprobable outcome of claims by other classes and subclasses”;(3) “the comparison between the results achieved by thesettlement for individual class or subclass members and theresults achieved—or likely to be achieved—for otherclaimants”; (4) “whether class or subclass members areaccorded the right to opt out of the settlement”; (5) “whether
any provisions for attorneys’ fees are reasonable”; and (6)9simultaneous class certification and settlement approval, courts
should be “even more scrupulous than usual when theyexamine the fairness of the proposed settlement.” Prudential,
148 F.3d at 317 (quotation omitted). This heightened standard
is designed to protect the interests of all class members. Id.
Some class action settlements also require the sendingof notice to members of the putative class. Before approving
the settlement of a class action certified under Rule 23(b)(3),
which is primarily used to pursue money-damages classactions,4 a court “must direct to class members the best noticethat is practicable under the circumstances, including
individual notice to all members who can be identified throughreasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). For classactions certified under Rule 23(b)(1), which is often used topursue class actions involving a common fund for injured
stakeholders,5 or Rule 23(b)(2), which is used to pursue“whether the procedure for processing individual claims under
the settlement is fair and reasonable.” In re Prudential Ins. Co.
Am. Sales Practice Litig., 148 F.3d 283, 323 (3d Cir. 1998).
4

Rule 23(b)(3) provides that a class action may be maintained
if the requirements of Rule 23(a) are met and “the court findsthat the questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating thecontroversy.”
5

Rule 23(b)(1) provides that a class action may be maintained
if the requirements of Rule 23(a) are met and prosecuting
separate actions would create a risk of (1) “inconsistent orvarying adjudications with respect to individual class membersthat would establish incompatible standards of conduct for theparty opposing the class,” or (2) “adjudications with respect to10

injunctions in class actions, the Rules do not impose the same
mandate of notice; rather, they state the court “may direct
appropriate notice to the class.” Fed. R. Civ. P. 23(c)(2)(A);
see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363(2011). Of course, regardless what these rules say, theprocedures for class action settlement—including the noticeprocedures—must also comply with due process requirements.
See In re Nat’l Football League Players Concussion Injury
Litig., 821 F.3d 410, 435 (3d Cir. 2016); see also Dukes, 564
U.S. at 362.
C. District Court Proceedings
The District Court preliminarily certified the class forsettlement under Rule 23(b)(2). Following a notice period, theCourt received fifty exclusion requests and one timely
objection. Frank, the sole objector, asserted that either thesettlement was unfair because it improperly preferred cy presover direct compensation to class members, or, in thealternative, the class could not be certified if directcompensation was impossible. He further argued that the cypres recipients raised a conflict-of-interest concern because
class counsel was on one recipient’s board and Google was aregular donor to four others. Finally, Frank challenged theattorneys’ fees—an issue he does not raise on appeal.
To determine whether the settlement class could becertified, the District Court conducted a hearing as required byFed. R. Civ. P. 23(e)(2) and heard arguments from the parties
and Frank. Following the hearing, it issued a short opinion andindividual class members that, as a practical matter, would be
dispositive of the interests of the other members not parties tothe individual adjudications or would substantially impair or
impede their ability to protect their interests.”

11

final order approving class certification and the settlement. In
its opinion the Court correctly noted it could certify a class only
if the requirements of Rule 23(a) and one of the prongs of Rule23(b) were satisfied. It stated that “no objections had been
filed” challenging class certification, then in three sentences
explained why all the requisite factors were met—without
stating what type of Rule 23(b) class was certified.
The Court then reviewed the proposed settlement for
fairness, reasonableness, and adequacy, as required by Rule23(e)(2). That Rule provides that if a class action settlement“would bind class members, the court may approve it only after
a hearing and only on finding that it is fair, reasonable, andadequate.” Fed. R. Civ. P. 23(e)(2). The Court here noted thata presumption of fairness applies to class settlements that meetcertain criteria established in our case law, but it did not makefactual findings relating to those factors or hold whether thepresumption applied in this case. It then applied the Girsh
factors in determining whether the settlement was fair,reasonable, and adequate. Though it spent only four sentences
analyzing the entirety of Girsh’s nine factors, the Court
concluded that “the record adequately establishes” they had
been satisfied. It acknowledged additional factors to consider
under Prudential, 148 F.3d at 323, and In re Baby Prods.
Antitrust Litig., 708 F.3d 163 (3d Cir. 2013), but did not
expressly apply them.6

6Baby Products instructed courts to consider further “thedegree of direct benefit provided to the class” from thesettlement, potentially including “the number of individualawards compared to both the number of claims and theestimated number of class members, the size of the individualawards compared to claimants’ estimated damages, and the12Ultimately, the Court rejected Frank’s arguments andapproved the settlement. It found that “the nature of the likely
compensation to the class members has always been
complicated by the substantial problems of identifying themillions of potential class members[7] and then of translating
their alleged loss of privacy into individual cash amounts.” Itfurther found that “payments to absent class members would
be logistically burdensome, impractical, and economicallyinfeasible, resulting (at best) with direct compensation of a deminim[i]s amount.” Because the cy pres money would be usedby “preeminent institutions for researching and advocating for
online privacy” to promote Internet browser privacy, it heldthat the cy pres awards “bear a direct and substantial nexus to
the interests of absent class members.” In one sentence, theCourt noted Frank’s objections to the pre-existing relationships
between Google, class counsel, and the cy pres recipients, but
held “no conflict of interest” had “undermine[d] the selectedcy pres recipients.”
Frank timely appealed.

claims process used to determine individual awards.” 708 F.3d
at 174.
7

In its brief, Google asserts that because many people
download Doubleclick.net cookies while browsing the internet
and there is no meaningful way to distinguish cookies
downloaded “by the means alleged in the Complaint” rather
than by other, unobjectionable means, it would be
exceptionally difficult, and perhaps impossible, for anyone todetermine who is a class member. Google Br. at 19. At thefairness hearing, Judge Robinson also stated she “believe[d]this has always been a case in which the facts preclude direct
individual compensation.”13

II. Discussion
A. Article III Standing
After oral argument, we held this appeal in abeyancepending the Supreme Court’s resolution of Frank v. Gaos,
which also involved a cy pres-only class action settlement
involving alleged privacy violations by Google. 139 S. Ct.
1041, 1043–44 (2019). But the Gaos Court did not review theclass action settlement in that case. Instead, in a per curiam
opinion it vacated the settlement and remanded under its
decision in Spokeo, Inc v. Robins, in which it clarified the“concreteness” requirement of the injury-in-fact prong of
Article III standing, holding that a “bare procedural violation”
of the Fair Credit Reporting Act was not sufficiently“concrete” to establish standing. 136 S. Ct. 1540, 1549–50(2016); Frank, 139 S. Ct. at 1046.
After Gaos was issued, we requested supplemental
briefing from the parties on whether plaintiffs adequately
alleged a “concrete injury” for purposes of Article III standing.
They here adequately did so, following our decision in In re
Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 273–
74 (3d Cir. 2016). There, in the wake of Spokeo, we considered
whether a concrete injury occurred when a website operator
stated it would not track the browser history and video-viewingof children who visited Nick.com but then did so anyway. Id.
at 269. We held the website operator’s intrusion on thechildren’s personal browsing and viewing activities was
sufficiently injurious for purposes of Article III standing. Id.
at 273–74.
The allegations of standing here areindistinguishable from those in Nickelodeon: in both cases, theplaintiffs alleged that a third party (Viacom there, Google here)
tracked their personal internet browsing information in
violation of the third party’s own promises not to do so. Id.
The Nickelodeon decision, which considered and distinguished14the Supreme Court’s analysis in Spokeo, dictates that we
recognize standing here.
More than precedent supports our conclusion. History
and tradition reinforce that a concrete injury for Article III
standing purposes occurs when Google, or any other third
party, tracks a person’s internet browser activity withoutauthorization. Privacy torts have become “well-ensconced in
the fabric of American law.” In re Horizon Healthcare Servs.
Inc. Data Breach Litig., 846 F.3d 625, 638 (3d Cir. 2017).
Indeed, as Justice Thomas has explained, private actions toremedy intrusions on the private sphere trace back to England,
where a property owner needed only to show that anotherperson placed a foot on his property to establish a traditionalcase or controversy. See Spokeo, 136 S. Ct. at 1551 (Thomas,J., concurring) (citing Entick v. Carrington, 2 Wils. K.B. 275,
291 (1765)). Likewise, “Congress has long provided plaintiffs
with the right to seek redress for unauthorized disclosures of
information that, in Congress’s judgment, ought to remain
private.” Nickelodeon, 827 F.3d at 274. In an era whenmillions of Americans conduct their affairs increasingly
through electronic devices, the assertion Google makes—that
federal courts are powerless to provide a remedy when aninternet company surreptitiously collects private data—isuntenable. Nothing in Spokeo or any other Supreme Court
decision suggests otherwise.
B. Jurisdiction and Standards of Review
The District Court had jurisdiction under 28 U.S.C.
§ 1332(d), and we have appellate jurisdiction under 28 U.S.C.
§ 1291. We review a district court’s decision to approve asettlement and to certify a class for abuse of discretion. See
Baby Prods., 708 F.3d at 175. “An appellate court may find an
abuse of discretion where the district court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion15

of law or an improper application of law to fact.” Id. (citing
Prudential, 148 F.3d at 299). However, a district court must
“make its reasoning and application of the [law] clear, so that
we, as a reviewing court, have a sufficient basis to review forabuse of discretion.” Gunter v. Ridgewood Energy Corp., 223
F.3d 190, 196 (3d Cir. 2000); see also In re Cendant Corp.
PRIDES Litig., 234 F.3d 166, 168 (3d Cir. 2000).
C. Class Settlement Fairness
Frank raises two challenges to the proposed settlement’s
fairness, reasonableness, and adequacy under Rule 23(e)(2).
First, he argues the settlement, whose main monetarycomponent is a cy pres award, provides no marginal benefit to
the class and therefore cannot satisfy that Rule. Indeed, heasserts a cy pres award is always inappropriate if someindividual class members could be compensated through a
claims or lottery process. Second, Frank challenges theselection of the cy pres recipients due to their pre-existing
associations with either class counsel or Google.
We have identified two opposing interests a district
court must weigh when reviewing motions for settlement-onlyclass certification and approval of the settlement. First, wefavor the parties reaching an amicable agreement and avoiding
protracted litigation. See, e.g., In re Warfarin Sodium Antitrust
Litig., 391 F.3d 516, 535 (3d Cir. 2004). We do not wish to
intrude overly on the parties’ hard-fought bargain. See
Ehrheart v. Verizon Wireless, 609 F.3d 590, 593–95 (3d Cir.
2010). A district court thus is to presume a settlement is fair if“(1) the negotiations occurred at arms length; (2) there wassufficient discovery; (3) the proponents of the settlement areexperienced in similar litigation; and (4) only a small fraction

16

of the class objected.”8 NFL Concussion Litig., 821 F.3d at
436.
At the same time, a district court has an obligation as afiduciary for absent class members to examine the proposed
settlement with care. See, e.g., Warfarin Sodium, 391 F.3d at
535. This duty is heightened in settlement-only class cases:“[W]here settlement negotiations precede class certification,
and approval for settlement and certification are sought
simultaneously, we require district courts to be even ‘more
scrupulous than usual’ when examining the fairness of the
proposed settlement.” Id.; see also Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 619–20 (1997) (viewing as “altogether
proper” the Third Circuit’s careful review of a settlementclass’s certification to ensure absent class members wereadequately represented). In settlement negotiations, theinterests of class representatives or class counsel do not alwaysalign with the interests of absent class members, and prior tocertification class members may not know their claims are inlitigation or that settlement negotiations are taking place. See
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.
Litig., 55 F.3d 768, 788 (3d Cir. 1995). Thus a district court’s“scrupulous” review of the settlement terms is “designed toensure that class counsel has demonstrated ‘sustained
advocacy’ throughout the course of the proceedings and has
8

In its opinion the District Court recognized the fairness
presumption’s existence in the case law, but did not tie any
factual findings to the test’s factors or expressly hold whether
the presumption applied. Its preliminary order certifying theclass similarly suggested, but did not expressly hold, that thepresumption applies. Frank does not challenge the application
or misapplication of the fairness presumption, however. Given
the case’s facts and procedural posture, we assume thepresumption applies.

17

protected the interests of all class members.” Prudential, 148
F.3d at 317 (quoting GM Trucks, 55 F.3d at 805–06).
These principles, combined with the legal analyses
further described below, lead us to disagree with Frank that cypres-only settlements are unfair per se under Rule 23(e)(2). In
some cases a cy pres-only settlement may be proper. But weare troubled by the District Court’s cursory certification andfairness analysis in this case, and two features of the settlement,
discussed below, compel us to vacate and remand.
1. Cy Pres-Only Class Settlements
We have never addressed whether a class action
settlement’s monetary award may be given solely to cy presrecipients. In the usual cy pres case, money from a classsettlement fund remains after distributions to class members,
perhaps because “class members cannot be located, decline tofile claims, have died, or the parties have overestimated theamount projected for distribution.” Baby Prods., 708 F.3d at
169. In those cases, parties may seek to “distribute to a
nonparty (or nonparties) the excess settlement funds for theirnext best use—a charitable purpose reasonably approximating
the interests pursued by the class.” Id. Cy pres is generally
preferable to escheating funds to the state or reverting them tothe defendant because it “preserve[s] the [class action’s]
deterrent effect . . . [and] (at least theoretically) more closely
tailor[s] the distribution to the interests of class members.” Id.
at 172.
Still, many federal courts, the media, academia, andeven the Chief Justice of the United States view cy pres awards
with skepticism.9 Among other things, they “present a9

Chief Justice Roberts has voiced concerns regarding cy pres,particularly where it constitutes a class’s only monetary relief.

18

potential conflict of interest between class counsel and theirclients” because they “may increase a settlement fund, andwith it attorneys’ fees, without increasing the direct benefit to
the class.” Baby Prods., 708 F.3d at 173. A settlement whose
only monetary distributions are to class counsel, classrepresentatives, and cy pres recipients, as in this case, presents
the risk of a still greater misalignment of interests: thesettlement clearly benefits the defendant (who obtains peace at
a potentially reduced cost), class counsel (who are guaranteed
payment in the settlement), and the named representatives(who are given an incentive award in the settlement), while any
benefit to other class members is indirect and inconsequential
monetarily.
Despite cy pres’ flaws, we held in Baby Products that“a district court does not abuse its discretion by approving aclass action settlement agreement that includes a cy prescomponent directing distribution of excess settlement funds toa third party to be used for a purpose related to the class injury.”
Id. at 172. Favorably citing the American Law Institute’s(“ALI”) guidelines, we held that cy pres was appropriate wheresome class members were compensated directly and “further
individual distributions are economically infeasible.” Id. at
173 (citing ALI, Principles of the Law of Aggregate Litigation§ 3.07(b) (2010)). We left the door open for other permissible
forms of cy pres, id., and nowhere addressed it in the context
of a Rule 23(b)(2) class.
With this background, we now consider whether a cy
pres-only settlement in a Rule 23(b)(2) class can ever satisfy
the fairness requirements of Rule 23(e)(2), and, if so, whether

See Marek v. Lane, 134 S. Ct. 8, 9 (2013) (Roberts, C.J.,
statement respecting denial of certiorari).

19the District Court abused its discretion in approving thisparticular settlement as fair, reasonable, and adequate.
Frank’s central argument on appeal is that cy presawards should never be preferred over direct distributions toclass members because the settlement fund properly “belongs”
to individual class members as monetary compensation for
their injuries. He proposes that the $5.5 million settlement
fund is “sufficient to fund either a claims process or a lottery
distribution for the class,” even though he acknowledges it
would be “impossible to pay every class member.” Obj. Br.
at 9. He criticizes the District Court’s weighing of thesettlement fund against the size of the entire class because“[e]ven in billion-dollar securities settlements where classmembers have suffered substantial losses, the parties do notknow who each and every class member is and must rely uponclass members to identify themselves and the size of their loss
in a claims process.” Id. at 27–28.
We know no ruling that requires district courts toapprove only settlements that provide for direct class
distributions on these facts. Indeed, Baby Products suggested
the opposite. We reasoned that “cy pres distributions are mostappropriate where further individual distributions are
economically infeasible” and declined to prohibit cy presdistributions in other situations, including where even an initial
distribution to some class members would be infeasible. 708
F.3d at 173. We also reaffirmed that settlement approvalshould be a practical inquiry rooted in the particular case’s
facts and procedural posture—as the Girsh and Prudential
factors reflect. Id. at 173–74. Ultimately “[t]he role of a
district court is not to determine whether the settlement is thefairest possible resolution . . . [, but rather to] determine
whether the compromises reflected in the settlement . . . are
fair, reasonable, and adequate when considered from theperspective of the class as a whole.” Id.

20

Google further argues that this settlement fund wasnever intended to compensate class members monetarily.
Rather, it claims the fund enhances the settlement’s deterrent
effect by funding data privacy institutions that will work toprevent similar potential privacy invasions from occurring in
the future. The class representatives similarly point out that aclaims-made process or lottery geared toward individual
distributions would “not come close to addressing the Internet
privacy concerns of all class members in this case.” Class Br.
at 23.
This rationale accords with the purpose of the Rule23(b)(2) class structure. The Supreme Court has described thisas a more “traditional” collective action because it assumes asingle, “indivisible” injunctive or declaratory remedy against
the defendant will provide relief to all class members equally.
Dukes, 564 U.S. at 361–63. A (b)(2) class therefore does not
involve individualized determinations of liability or damages,
id.,10 or even require that individual class members be
ascertainable, Shelton v. Bledsoe, 775 F.3d 554, 563 (3d Cir.
2015). Nor does certification require the “greater procedural
protections” of (b)(3) classes, such as the opportunity for
individual class members to receive notice of the action or theopportunity to opt out. See Dukes, 564 U.S. at 362. To certifya (b)(2) class, a court must simply find that “the party opposing
the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief orcorresponding declaratory relief is appropriate respecting theclass as a whole.” Fed. R. Civ. P. 23(b)(2). In other words, theclass must be “cohesive” such that the members “have strong10

In fact, a non-settlement (b)(2) class cannot be certified if itbrings claims for monetary relief that are more than“incidental.” Dukes, 564 U.S. at 360.

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commonality of interests.” Gates v. Rohm & Haas Co., 655
F.3d 255, 263–64 (3d Cir. 2011).
Contrary to Frank’s arguments, then, we see no reason
why a cy pres-only (b)(2) settlement that satisfies Rule 23’s
certification and fairness requirements could not “belong” tothe class as a whole, and not to individual class members asmonetary compensation.
Direct monetary distributions
typically would not accomplish the purpose of a (b)(2) class.
It is not an inherent abuse of discretion for a district court toallow a cy pres-only settlement rather than random
compensation, and possibly even overcompensation through alottery, of some (b)(2) class members to the exclusion ofothers.
2. Review of the District Court’s Settlement
ApprovalThis brings us to the Settlement Agreement. District
courts are to assess the fairness, reasonableness, and adequacyof a cy pres award under Rule 23(e)(2) using “the same
framework developed for assessing other aspects of classaction settlements”: namely, applying the Girsh factors;
applying the Prudential factors where applicable; and also
considering “the degree of direct benefit provided to the class,”
which may include “the number of individual awards
compared to both the number of claims and the estimatednumber of class members, the size of the individual awards
compared to claimants’ estimated damages, and the claims
process used to determine individual awards.” Baby Prods.,
708 F.3d at 174. “[C]y pres awards should generally represent
a small percentage of total settlement funds” unless a district
court finds “sufficient justification.” Id.
In its opinion approving the Settlement Agreement, theDistrict Court ran through the Girsh factors and held that all22

nine were satisfied, but in a more perfunctory fashion than weare accustomed to reviewing on appeal. It also acknowledged
the additional factors we suggested district courts consider inPrudential, 148 F.3d at 323, and Baby Products, 708 F.3d at
174, but did not explicitly apply them.
In this context, we are not persuaded the Court
sufficiently assessed the fairness, reasonableness, andadequacy of the settlement. In particular, two features of thesettlement present concerns that were not adequately
considered by it: the broad class-wide release of claims formoney damages, and selection of the specific cy presrecipients.
a.

Class-wide Release

The Settlement Agreement purports to release all classmember claims, including for damages, that did or could stem
from, or relate to, the subject matter of the litigation. This
raises a red flag. Before the District Court, class counsel
acknowledged that the dismissal of all claims providing forstatutory damages made class certification more difficult. See
District Court Docket, ECF No. 163 (Motion for Preliminary
Approval of Class Action Settlement) at 15. That premise, inturn, shaped the structure of both class certification and classnotice: the parties sought to certify an injunction class under
Rule 23(b)(2), not a damages class under Rule 23(b)(3), seeDistrict Court Docket, ECF No. 163, and thus avoided theheightened certification and notice requirements that apply tothe latter.
See Fed. R. Civ. P. 23(b)(3) (requiring
predominance and superiority); Fed. R. Civ. P. 23(c)(2)(B)(requiring “the best notice that is practicable under thecircumstances” for 23(b)(3) settlements).
Yet having sidestepped these requirements, Google andclass counsel nonetheless obtained—for themselves anyway—23the precise benefits that a Rule 23(b)(3) class gives to thedefendant and class counsel: namely, a broad class-wide
release of claims for money damages for the defendant, and apercentage-of-fund calculation of attorneys’ fees for classcounsel. The District Court’s failure to scrutinize thistroubling aspect of the Settlement Agreement prevents us from
reviewing its fairness, reasonableness, and adequacy. See
Gunter, 223 F.3d at 196 (district court’s reasoning andapplication of the law must be clear enough to provide basis
for review). We also question, and leave to the District Courton remand, whether a defendant can ever obtain a class-wide
release of claims for money damages in a Rule 23(b)(2)settlement, and if so, whether a release of that kind requires aheightened form of notice either under Rule 23(c)(2)(B) or due
process tenets. Cf. NFL Concussion Litig., 821 F.3d at 435(noting that class action notice must comply with due process);see also In re Payment Card Interchange Fee & Merchant
Discount Antitrust Litig., 827 F.3d 223, 236 (2d Cir. 2016)(reversing district court’s approval of Rule 23(b)(2) settlementwith broad release); Koby v. ARS Nat’l Servs., 846 F.3d 1071,
1079 (9th Cir. 2017) (same).
b.

Cy Pres RecipientsThe District Court held that “the proposed cy presdistributions are appropriately tailored and focused.” It foundthe selected cy pres recipients to be “among the preeminent
institutions for researching and advocating for online privacy,”
and that they would properly be required to use the funds forinternet browser privacy initiatives. Id. Because “this case isabout Google’s alleged circumvention of Internet browser
privacy settings,” it concluded, the proposed cy presdistributions thus “bear a direct and substantial nexus to theinterests of absent class members.” The Court made no findingthat the class’s nationwide nature was reflected in thegeographical scope of cy pres recipients’ work. See, e.g.,24Schwartz v. Dallas Cowboys Football Club, Ltd., 362 F. Supp.
2d 574, 576 (E.D. Pa. 2005) (“In [reviewing cy pres awards],
the court should consider . . . the geographic scope of thecase.”). However, the record shows they overlap; thepromotion of better online privacy inherently has nationwide
effects.
In sum, on the District Court’s review of the record, theproposed cy pres awards would be used for a purpose directly
and substantially related to the class’s interests. The record
also reflects that the geographic scope of the class corresponds
to that of the cy pres recipients. The Court held the proposedcy pres awards were fair, reasonable, and adequate whenviewed “from the perspective of the Settlement Class as awhole.” Although other aspects of its analysis were unusually
brief, the Court did not abuse its discretion by approving this(b)(2) class settlement’s cy pres structure.
Yet we are troubled here by the selection of the specificcy pres recipients. Frank challenges the selection of those
recipients as unfair under Rule 23(e)(2) due to pre-existing
associations between them and class counsel or Google. He
asserts that Google has long ties to Stanford and is a regulardonor and cy pres payor to the Berkeley Center for Law &Technology, the Berkman Center for Internet & Society at
Harvard University, the Center for Internet & Society at
Stanford University, and the Center for Democracy &Technology. One of the lawyers representing the class is alsoa board member of Public Counsel.
We have not previously addressed when a priorrelationship between a cy pres recipient and one of the litigants
in a class action undermines the proposed settlement’s fairness.
Regardless of the relevant standard, however, the District
Court’s treatment of the question warrants remand. It
conducted no fact finding, either through additional filings or25

an evidentiary hearing, to determine the nature of therelationships between the cy pres recipients and Google orclass counsel. In its opinion, the Court misstated the nature ofFrank’s objections, stating he “takes the position that any
relationship between a party (and its counsel) and a proposedcy pres recipient automatically disqualifies the proposed cypres recipient.” It then dismissed the issue in a single sentencewith no analysis, holding that “no conflict of interest” had“undermine[d] the selected cy pres recipients.” This is not the“scrupulous” examination required of a court acting as afiduciary for absent class members. See Warfarin Sodium, 391
F.3d at 534; see also Gunter, 223 F.3d at 196.
We further hold that, if challenged by an objector, a
district court must review the selected cy pres recipients todetermine whether they have a significant prior affiliation withany party, counsel, or the court. A settlement should not beapproved if such a prior affiliation “would raise substantial
questions . . . whether the selection of the recipient was madeon the merits.” ALI, Principles of the Law of Aggregate
Litigation § 3.07 cmt. b. The parties seeking settlement
approval bear the burden of explaining to a court why the cypres selection was fair, which may include describing thenature of any prior affiliations; what role, if any, eachaffiliation played in the cy pres selection process; whether
other recipients were sincerely considered; and why theserecipients are the proper choice. As always, “[w]here a court
fears counsel is conflicted, it should subject the settlement toincreased scrutiny.” Baby Prods., 708 F.3d at 173.
On remand, the District Court should consider whether
these cy pres recipients have significant prior affiliations with
Google, class counsel, or the Court, and, if so, whether theselection process failed to satisfy Rule 23(e)(2) by raising
substantial questions whether the recipients were chosen on the
merits. Where, as here, the only benefit to class members is a26

cy pres award, parties may also want to involve class members
or a neutral participant in the selection of recipients to ward off
any appearance of impropriety.
D. Class Certification
Frank asserts that, even if his settlement fairness
challenge fails, reversal is still appropriate on classcertification grounds. If a settlement will not confer ameaningful benefit to absent class members, he argues it must
fail to satisfy Rule 23(a)(4) and (g)(4). Those Rules providethat a class’s representative plaintiffs and counsel,
respectively, must “fairly and adequately” represent theinterests of the class. Frank contends that a cy pres-only
settlement in these circumstances confers no benefit on theclass, which inherently shows that the class representative andcounsel failed to represent the class fairly and adequately. For
this reason, he claims a cy pres-only settlement class cannot becertified due to inadequate representation.
Frank’s class certification challenge is not really analternative ground for reversal. It is predicated on his
challenge to the settlement. In light of our decision to remand,
we leave to the District Court whether to reconsider Frank’scontentions concerning the propriety of class certification inlight of its further consideration and potential factfinding.
*

*

*

*

*

The vista view of this case is not pretty. According to
the complaint, an internet behemoth with unprecedented tools
for monitoring private conduct told millions of Americans it
would not track their personal browser history, and then it didso anyway to profit from the data. Through the proposed classaction settlement, the purported wrongdoer promises to pay acouple million dollars to class counsel and make a cy pres27

contribution to organizations it was already donating tootherwise (at least one of which has an affiliation with classcounsel). By seeking certification under Rule 23(b)(2), thedefendant and class counsel avoid the additional safeguards
that apply to Rule 23(b)(3) actions. One might think this would
leave room for class members to pursue damages individually;
yet that relief is foreclosed as well, as the settlement contains anationwide release of claims for money damages that arose or
could arise were there unauthorized snooping, presumably
covering tens if not hundreds of millions of Americans. In thiscontext, we believe the District Court’s factfinding and legal
analysis were insufficient for us to review its order certifying
the class and approving the fairness, reasonableness, andadequacy of the settlement. We thus vacate and remand forfurther proceedings in accord with this opinion.

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