FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRY DENNIS; JON KOZ, on behalf 

of themselves and all others

similarly situated,

Plaintiffs-Appellees, No. 11-55674

STEPHANIE BERG, D.C. No.

Objector-Appellant, 

3:09-cv-01786-

v. IEG-WMC

KELLOGG COMPANY, a Delaware

corporation,

Defendant-Appellee. 

HARRY DENNIS; JON KOZ, on behalf 

of themselves and all others

similarly situated, No. 11-55706

Plaintiffs-Appellees, D.C. No.

OMAR RIVERO, 3:09-cv-01786-

Objector-Appellant,  IEG-WMC

v. ORDER AND

KELLOGG COMPANY, a Delaware OPINION

corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

June 7, 2012—Pasadena, California

10527
Filed September 4, 2012

Before: Stephen S. Trott and Sidney R. Thomas,

Circuit Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge Trott

*The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation. 

10528 DENNIS v. KELLOGG COMPANY
COUNSEL

Joseph Darrell Palmer and Janine R. Menhennet, Law Offices

of Darrell Palmer PC, Solana Beach, California, and Christopher A. Bandas, Bandas Law Firm, P.C., Corpus Christi,

Texas, for the objectors-appellants.

Timothy G. Blood, Blood Hurst & O’Reardon LLP, San

Diego, California, for the plaintiffs-appellees.

Kenneth K. Lee, Jenner & Block LLP, Los Angeles, California, and Richard P. Steinken, Jenner & Block LLP, Chicago,

Illinois, for the defendant-appellee. 

ORDER

The Opinion filed July 13, 2012, slip op. 8109, and appearing at 2012 WL 2870128 (9th Cir. 2012), is withdrawn. It

may not be cited as precedent by or to this court or any district court of the Ninth Circuit. 

With the Opinion withdrawn, the Plaintiffs-Appellees’ petition for rehearing and petition for rehearing en banc are moot.

The parties may file a petition for rehearing or a petition for

rehearing en banc regarding the Opinion filed concurrently

with this Order. 

OPINION

TROTT, Circuit Judge:

Most cases in our judicial system never make it to trial. Litigants often find it advantageous to secure a resolution more

quickly by settling the case and negotiating a result the parties

can tolerate, even though neither side can call it a total win.

10530 DENNIS v. KELLOGG COMPANY
Normally, that is the end of the story, and the parties walk

away — not entirely happy, but not entirely unhappy either.

In a class action, however, any settlement must be

approved by the court to ensure that class counsel and the

named plaintiffs do not place their own interests above those

of the absent class members. In this false advertising case, we

confront a class action settlement, negotiated prior to class

certification, that includes cy pres distributions of money and

food to unidentified charities. It also includes $2 million in

attorneys’ fees while offering class members a sum of (at

most) $15. 

After carefully reviewing the class settlement, we conclude

that it must be set aside. The district court did not apply the

correct legal standards governing cy pres distributions and

thus abused its discretion in approving the settlement. The settlement neither identifies the ultimate recipients of the product

and cash cy pres awards nor sets forth any limiting restriction

on those recipients, other than characterizing them as charities

that feed the indigent. To the extent that we can meaningfully

review such distributions where the parties fail to identify the

recipients, we hold that both cy pres portions of the settlement

are not sufficiently related to the plaintiff class or to the

class’s underlying false advertising claims. Moreover, the

$5.5 million valuation the parties attach to the product cy pres

distribution is, at best, questionable. We therefore reverse the

district court’s approval of the settlement, vacate the judgment and the award of attorneys’ fees, and remand for further

proceedings consistent with this opinion.

I

BACKGROUND

In January 2008, Kellogg Co., the maker of Frosted MiniWheats cereal, began a marketing campaign that claimed the

cereal was scientifically proven to improve children’s cogniDENNIS v. KELLOGG COMPANY 10531
tive functions for several hours after breakfast. Obviously

aimed at parents of school-age children, Kellogg’s advertisements allegedly included the following statements:

• “Does your child need to pay more attention in

school? . . . A recent clinical study showed that

a whole grain and fiber-filled breakfast of Frosted

Mini-Wheats® helps improve children’s attentiveness by nearly 20%.”

• “Kellogg recently commissioned research to

measure the effect on kids of eating a breakfast

of Frosted Mini-Wheats® cereal. An independent

research group conducted a series of standardized, cognitive tests on children ages 8 to 12 who

ate either a breakfast of Frosted Mini-Wheats®

cereal or water. The result? The children who ate

a breakfast of Frosted Mini-Wheats® cereal had

a nearly 20% improvement in attentiveness.”

• “Based upon independent clinical research, kids

who ate Kellogg’s® Frosted Mini-Wheats®

cereal for breakfast had up to 18% better attentiveness three hours after breakfast than kids who

ate no breakfast.”

According to a declaration submitted by lead counsel for

the plaintiff class, counsel began investigating these marketing claims and, in April and May 2009, drafted a class action

complaint on behalf of Ohio resident Jon Koz, alleging violations of Ohio consumer protection laws. Around the same

time, another law firm was investigating the same marketing

claims on behalf of California resident Harry Dennis.

Although Mr. Koz never filed his Ohio complaint, Mr. Dennis

filed suit in August 2009 against Kellogg in the United States

District Court for the Southern District of California, alleging

violations of that state’s Unfair Competition Law (UCL) and

asserting a claim of unjust enrichment.

10532 DENNIS v. KELLOGG COMPANY
Sometime prior to January 2010, counsel for Koz and counsel for Dennis discovered they were involved in similar activities and decided to join forces. Because informal settlement

attempts were unsuccessful, counsel for the consumers and

for Kellogg participated in a day-long mediation session with

Martin Quinn of JAMS, a well-established alternative dispute

resolution firm. As a result of this mediation session and

numerous other settlement discussions, the parties agreed, in

principle, to settle the case. 

Meanwhile, the Dennis lawsuit had been gathering dust. On

June 22, 2010, the district court notified the parties of its

intent to dismiss the case for lack of prosecution. Koz and

Dennis immediately filed a joint amended class action complaint. 

In their amended complaint, the named plaintiffs

(“Plaintiffs”) asserted that Kellogg’s marketing claims regarding the effect of Frosted Mini-Wheats on children’s attentiveness were false, that the study upon which these results were

based did not support the company’s claims, and that the

study was not scientifically valid. The Plaintiffs asserted

unjust enrichment, claims under the UCL and California’s

Consumer Legal Remedies Act (CLRA), and claims under

“similar laws of other states.” 

Over the next three months, the parties continued to work

out the details of their settlement. Ultimately, they agreed to

settle the case on the following terms:

• Kellogg agreed to establish a $2.75 million settlement fund for distribution to class members on a

claims-made basis. Class members submitting

claims would receive $5 per box of cereal purchased, up to a maximum of $15. Any remaining

funds would not revert to Kellogg, but would

instead be donated to unidentified “charities chosen by the parties and approved by the Court purDENNIS v. KELLOGG COMPANY 10533
suant to the cy pres doctrine. . . . If the total

amount of eligible claims exceeds the Settlement

Fund, then each claim’s award shall be proportionately reduced.”

• Kellogg agreed to distribute, also pursuant to the

cy pres doctrine, $5.5 million “worth” of specific

Kellogg food items to charities that feed the indigent. The settlement does not specify the recipient charities, nor does it indicate how this $5.5

million in food will be valued — at cost, wholesale, retail, or by some other measure. 

• Kellogg agreed that for three years, it would “refrain from using in its advertising and on its

labeling for the Product any assertion to the

effect that ‘eating a bowl of Kellogg’s® Frosted

Mini-Wheats cereal for breakfast is clinically

shown to improve attentiveness by nearly

20%.’ ” Kellogg would still be allowed to claim

that “[c]linical studies have shown that kids who

eat a filling breakfast like Frosted Mini-Wheats

have an 11% better attentiveness in school than

kids who skip breakfast.” 

• Kellogg agreed to pay class counsel’s attorneys’

fees and costs “not to exceed a total of $2 million.” Class counsel eventually requested the full

$2 million in fees and costs.1

• The Plaintiffs agreed to release all claims arising

out of the challenged advertising.

Together with notice and administrative costs approximated at

1Although the district court’s order listed the attorneys’ fees as $2.4 million, all parties agree that the correct figure is $2 million. 

10534 DENNIS v. KELLOGG COMPANY
$391,500, the parties value the settlement, or the constructive

common fund, at $10,641,500.

The claims period has now closed. Although there is nothing in the record to indicate how many class members submitted claims, class counsel represented at oral argument that the

claims submitted total approximately $800,000.

On the Plaintiffs’ motion, the district court certified the

class — defined as “[a]ll persons or entities in the United

States who purchased the Product” during the settlement class

period — granted preliminary approval of the settlement, and

approved the proposed class notice. Because Kellogg sells its

products to wholesalers, not directly to consumers, there was

no way to identify each member of the class. Therefore, the

class notice was published in Parents magazine and other

“targeted sources based on market research about consumers

who purchased the products,” including 375 websites. 

Two class members objected to the settlement: Stephanie

Berg and Omar Rivero (Objectors). As relevant to this appeal,

the Objectors argued that the settlement’s use of cy pres relief

was improper because “the only relationship between this

lawsuit and feeding the indigent is that they both involve food

in some way.” They argued also that the cy pres distributions

would benefit class counsel and Kellogg, but not the class

members, because class members “have no idea how their

funds might be used or in whose hands their monies will end

up.” Finally, the Objectors argued that the attorneys’ fees —

which represented approximately 19% of a common fund

allegedly worth over $10.64 million — were excessive. The

district court approved the class settlement and dismissed the

case with prejudice. In doing so, however, the court did not

address the Objectors’ argument that the cy pres distributions

were too remote from the class members and were not sufficiently related to their UCL and CLRA claims. The court also

approved the requested attorneys’ fees, stating that the fees

were

DENNIS v. KELLOGG COMPANY 10535
fair and reasonable in light of the results achieved,

the risks of litigation, the skill required and the quality of work, the contingent nature of the fee, the burdens carried by class counsel, and the awards made

in similar cases. See Vizcaino v. Microsoft Corp.,

290 F.3d 1043, 1048-50 (9th Cir. 2002). Accordingly, the objections are overruled. 

The Objectors timely appealed.

II

STANDARD OF REVIEW

The settlement of a class action must be fair, adequate, and

reasonable. Fed. R. Civ. P. 23(e)(2). “We review a district

court’s approval of a proposed class action settlement, including a proposed cy pres settlement distribution, for abuse of

discretion. A court abuses its discretion when it fails to apply

the correct legal standard or bases its decision on unreasonable findings of fact.” Nachshin v. AOL, LLC, 663 F.3d 1034,

1038 (9th Cir. 2011) (internal citations omitted). 

Appellate review of a settlement agreement is generally

“extremely limited.” Hanlon v. Chrysler Corp., 150 F.3d

1011, 1026 (9th Cir. 1998). But where, as here, class counsel

negotiates a settlement agreement before the class is even certified, courts “must be particularly vigilant not only for

explicit collusion, but also for more subtle signs that class

counsel have allowed pursuit of their own self-interests and

that of certain class members to infect the negotiations.” In re

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th

Cir. 2011). In such a case, settlement approval “requires a

higher standard of fairness” and “a more probing inquiry than

may normally be required under Rule 23(e).” Hanlon, 150

F.3d at 1026. “To survive appellate review, the district court

must show it has explored comprehensively all factors,” id.,

and must give “a reasoned response” to all non-frivolous

10536 DENNIS v. KELLOGG COMPANY
objections, Officers for Justice v. Civil Serv. Comm’n, 688

F.2d 615, 624 (9th Cir. 1982).

III

DISCUSSION

The Cy Pres Distributions of Food and Unclaimed Funds

A.

As a preliminary matter, Plaintiffs argue that we must

refrain from addressing the validity of the cy pres doctrine

with respect to the cash settlement fund. They assert that this

issue will not be ripe until it is determined that available cash

remains in that fund after the claims process has concluded.

They rely on Rodriguez v. West Publishing Corp., 563 F.3d

948, 966 (9th Cir. 2009), where we declined for this reason

to take on this issue. However, Rodriguez is distinguishable

for two reasons.

First, the deadline here for the submission of claims was

June 3, 2011, a date long since past. The Declaration dated

October 10, 2011 of Lance P. Blair, the claims administrator,

advised the district court that money “will remain in the settlement fund for a cy pres distribution after the payment of all

claims.”

Second, as noted earlier, Plaintiffs’ counsel represented

during oral argument that the claims submitted totaled

roughly $800,000, leaving almost $2 million in the settlement

fund for cy pres distribution, plus any accumulated interest.

Accordingly, we deem this issue ripe for determination.

B.

[1] Cy pres is shorthand for the old equitable doctrine “cy

près comme possible” — French for “as near as possible.”

DENNIS v. KELLOGG COMPANY 10537
Although the doctrine originated in the area of wills as a way

to effectuate the testator’s intent in making charitable gifts,

federal courts now frequently apply it in the settlement of

class actions “ ‘where the proof of individual claims would be

burdensome or distribution of damages costly.’ ” Nachshin,

663 F.3d at 1038 (quoting Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1305 (9th Cir. 1990)). Used in

lieu of direct distribution of damages to silent class members,

this alternative allows for “aggregate calculation of damages,

the use of summary claim procedures, and distribution of

unclaimed funds to indirectly benefit the entire class.” Six

Mexican Workers, 904 F.2d at 1305. To ensure that the settlement retains some connection to the plaintiff class and the

underlying claims, however, a cy pres award must qualify as

“the next best distribution” to giving the funds directly to

class members. Id. at 1308 (internal quotation marks omitted).

[2] Not just any worthy recipient can qualify as an appropriate cy pres beneficiary. To avoid the “many nascent dangers to the fairness of the distribution process,” we require

that there be “a driving nexus between the plaintiff class and

the cy pres beneficiaries.” Nachshin, 663 F.3d at 1038. A cy

pres award must be “guided by (1) the objectives of the

underlying statute(s) and (2) the interests of the silent class

members,” id. at 1039, and must not benefit a group “too

remote from the plaintiff class,” Six Mexican Workers, 904

F.2d at 1308. Thus, in addition to asking “whether the class

settlement, taken as a whole, is fair, reasonable, and adequate

to all concerned,” we must also determine “whether the distribution of the approved class settlement complies with our

standards governing cy pres awards.” Nachshin, 663 F.3d at

1040 (internal quotation marks omitted).

A review of our relevant precedent reveals that the settlement here fails to satisfy those standards. In Six Mexican

Workers v. Arizona Citrus Growers, a class of undocumented

Mexican farm workers sued various companies for violations

of the Farm Labor Contractor Registration Act. 904 F.2d at

10538 DENNIS v. KELLOGG COMPANY
1303. After a bench trial, the district court found the defendants liable for over $1.8 million, which we later reduced to

$850,000, in statutory damages. Id. at 1303-04, 1310. The district court identified the Inter-American Fund, which provided

humanitarian aid in Mexico, as the cy pres recipient of any

unclaimed funds. Id. at 1304. 

We held that the cy pres distribution was an abuse of discretion because there was “no reasonable certainty” that any

class member would benefit from it, even though the money

would go “to areas where the class members may live.” Id. at

1308. The choice of charity and its relation to the class members and class claims — or lack thereof — figured heavily in

our analysis. The purpose of the statute was to compensate

victims of unscrupulous employers and to deter future violations, but the Inter-American Fund was “not an organization

with a substantial record of service nor [was] it limited in its

choice of projects,” and any distribution would therefore have

required court supervision “to ensure that the funds [were]

distributed in accordance with the goals of the remedy.” Id. at

1309. Because “the district court’s application [of the cy pres

doctrine] was inadequate to serve the goals of the statute and

protect the interests of the silent class members,” we reversed

the cy pres distribution. Id. at 1312. 

We recently came to a similar conclusion in Nachshin v.

AOL, LLC. In that case, AOL was accused of violating a number of statutes, including the UCL and the CLRA, by wrongfully inserting commercial footers into the plaintiffs’ outgoing

emails. 663 F.3d at 1036. Because damages would be small

and distribution to the class prohibitively expensive, AOL

agreed, as part of a class settlement, to make substantial donations to three charities: the Legal Aid Foundation of Los

Angeles, the Federal Judicial Center Foundation, and the Los

Angeles and Santa Monica chapters of the Boys and Girls

Club of America. Id. at 1037. 

We held that the cy pres distribution “fail[ed] to target the

plaintiff class, because it d[id] not account for the broad geoDENNIS v. KELLOGG COMPANY 10539
graphic distribution of the class.” Id. at 1040. The class

included over 66 million AOL users across the country, but

two-thirds of the donations were slated for Los Angeles charities. Further, although the donation to the Federal Judicial

Center Foundation “at least conceivably benefit[ed] a national

organization,” the Foundation “ha[d] no apparent relation to

the objectives of the underlying statutes, and it [wa]s not clear

how this organization would benefit the plaintiff class.” Id.

We noted, however, that it would not be difficult for the parties to come up with an appropriate charity if they wished to

do so:

It is clear that all members of the class share two

things in common: (1) they use the internet, and (2)

their claims against AOL arise from a purportedly

unlawful advertising campaign that exploited users’

outgoing e-mail messages. The parties should not

have trouble selecting beneficiaries from any number

of non-profit organizations that work to protect internet users from fraud, predation, and other forms of

online malfeasance.

Id. at 1041. In approving the cy pres distribution to charities

that had no relation to the class or to the underlying claims,

the district court “applied the incorrect legal standard” and

abused its discretion. Id. at 1040.

[3] The cy pres awards in the settlement here are likewise

divorced from the concerns embodied in consumer protection

laws such as the UCL and the CLRA. As California courts

have stated, “[t]he UCL is designed to preserve fair competition among business competitors and protect the public from

nefarious and unscrupulous business practices,” Wells v.

One2One Learning Found., 10 Cal. Rptr. 3d 456, 463-64 (Ct.

App. 2004), rev’d in part on other grounds, 141 P.3d 225

(Cal. 2006), and the purpose of the CLRA is similarly “to protect consumers against unfair and deceptive business practices,” Cal. Civ. Code § 1760. Although there is no way to

10540 DENNIS v. KELLOGG COMPANY
identify either the product or the cash cy pres beneficiaries

from this record, we do know that according to the settlement,

any charity to receive a portion of the cy pres distributions

will be one that feeds the indigent. This noble goal, however,

has “little or nothing to do with the purposes of the underlying

lawsuit or the class of plaintiffs involved.” Nachshin, 663

F.3d at 1039. 

[4] At oral argument, Kellogg’s counsel frequently

asserted that donating food to charities who feed the indigent

relates to the underlying class claims because this case is

about “the nutritional value of food.” With respect, that is

simply not true, and saying it repeatedly does not make it so.

The complaint nowhere alleged that the cereal was unhealthy

or lacked nutritional value. And no law allows a consumer to

sue a company for selling cereal that does not improve attentiveness. The gravamen of this lawsuit is that Kellogg advertised that its cereal did improve attentiveness. Those alleged

misrepresentations are what provided the Plaintiffs with a

cause of action under the UCL and the CLRA, not the nutritional value of Frosted Mini-Wheats. Thus, appropriate cy

pres recipients are not charities that feed the needy, but organizations dedicated to protecting consumers from, or redressing injuries caused by, false advertising. On the face of the

settlement’s language, “charities that provide food for the

indigent” may not serve a single person within the plaintiff

class of purchasers of Frosted Mini-Wheats.

Our concerns are not placated by the settlement provision

that the charities will be identified at a later date and approved

by the court — a decision from which the Objectors might

again appeal. Our standards of review governing precertification settlement agreements require that we carefully

review the entire settlement, paying special attention to

“terms of the agreement contain[ing] convincing indications

that the incentives favoring pursuit of self-interest rather than

the class’s interests in fact influenced the outcome of the

negotiations.” Staton v. Boeing Co., 327 F.3d 938, 960 (9th

DENNIS v. KELLOGG COMPANY 10541
Cir. 2003). Cy pres distributions present a particular danger in

this regard. “When selection of cy pres beneficiaries is not

tethered to the nature of the lawsuit and the interests of the

silent class members, the selection process may answer to the

whims and self interests of the parties, their counsel, or the

court.” Nachshin, 663 F.3d at 1039. This record leaves open

the distinct possibility that the asserted $5.5 million value of

the product cy pres award and the remaining cash cy pres

award will only be of serendipitous value to the class purportedly protected by the settlement. The difficulty here is that, by

failing to identify the cy pres recipients, the parties have

restricted our ability to undertake the searching inquiry that

our precedent requires. The cy pres problem presented in this

case is of the parties’ own making, and encouraging multiple

costly appeals by punting down the line our review of the settlement agreement is no solution.

C.

[5] On remand, the parties are free to negotiate a new settlement or proceed with litigation. If they again decide to settle, they must correct the additional serious deficiencies we

find in this settlement agreement. Not only does the settlement fail to identify the cy pres recipients of the unclaimed

money and food, but it is unacceptably vague and possibly

misleading in other areas as well. 

The settlement states only that Kellogg will donate “$5.5

million worth” of food. (emphasis added). But the settlement

document gives no hint as to how that $5.5 million will be

valued. Is it valued at Kellogg’s cost? At wholesale value? At

retail? The exact answer to this question has important ramifications relating to the accurate valuation of the constructive

common fund and thereby the reasonableness of attorneys’

fees. Kellogg stated at oral argument and in its briefs to the

district court that it will value the food donation at wholesale,

but the only legally-enforceable document — the settlement

— says nothing of the sort. Additionally, the settlement fails

10542 DENNIS v. KELLOGG COMPANY
to include any restrictions on how Kellogg accounts for the cy

pres distributions. Can Kellogg use the value of the distributions as tax deductions because they will go to charity? And

given that Kellogg already donates both food and money to

charities every year — which is unquestionably an admirable

act — will the cy pres distributions be in addition to that

which Kellogg has already obligated itself to donate, or can

Kellogg use previously budgeted funds or surplus production

to offset its settlement obligations? Again, the settlement is

silent, and we have only Kellogg’s statements as to its future

intentions. All of this vagueness detracts from our ability to

determine the true value of the constructive common fund.

Moreover, Plaintiffs’ counsel tells us that settlements like

this serve the purposes of “restitutionary disgorgement and

deterrence.” If the product cy pres distribution is form over

substance and not worth nearly as much to Kellogg as the settlement claims, then these goals are not served. To the contrary, the settlement is a paper tiger.

This deficiency raises in turn serious issues about the

alleged dollar value of the product cy pres award, an important number used to measure the appropriateness of attorneys’

fees. For example, if the alleged $5.5 million value of the

product cy pres distribution turns out on close examination to

be an illusion and is subtracted from the alleged $10.64 million value of the common fund, the dollar value of the settlement fund plummets to $5.14 million, and the $2 million

attorneys’ fees award becomes 38.9% of the total, which is

clearly excessive under our guidelines. This possibility gives

us an additional reason to be vigilant regarding the particulars

of this class action settlement: is it all that it appears to be?

Are the assigned numbers real, or not? This issue is particularly critical with a cy pres product settlement that has a tenuous relationship to the class allegedly damaged by the conduct

in question. The issue of the valuation of this aspect of a settlement must be examined with great care to eliminate the

possibility that it serves only the “self-interests” of the attorDENNIS v. KELLOGG COMPANY 10543
neys and the parties, and not the class, by assigning a dollar

number to the fund that is fictitious. 

Neither class counsel nor Kellogg offers any credible reason for the mysteries in the current settlement. To approve

this settlement despite its opacity would be to abdicate our

responsibility to be “particularly vigilant” of pre-certification

class action settlements. In re Bluetooth Headset Prods. Liab.

Litig., 654 F.3d at 947.

D.

[6] For the foregoing reasons, we conclude that the district

court did not apply the correct legal standards for cy pres distributions as set forth in Six Mexican Workers and Nachshin.

Therefore, the approval of the settlement was an abuse of discretion.

[7] We do not have the authority to strike down only the

cy pres portions of the settlement. “It is the settlement taken

as a whole, rather than the individual component parts, that

must be examined for overall fairness,” and we cannot “delete, modify or substitute certain provisions. The settlement

must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026

(internal quotation marks omitted). See also Jeff D. v. Andrus,

899 F.2d 753, 758 (9th Cir. 1989) (“[C]ourts are not permitted

to modify settlement terms or in any manner to rewrite agreements reached by parties.”). Thus, we reverse the district

court’s order approving the settlement and dismissing the

case, vacate the judgment and award of attorneys’ fees,2 and

remand for further proceedings.

2Our decision on the merits of the settlement renders moot the attorneys’ fees issue. Waggoner v. C&D Pipeline Co., 601 F.2d 456, 459 (9th

Cir. 1979). 

10544 DENNIS v. KELLOGG COMPANY
IV

CONCLUSION

Class counsel and Kellogg ask us for the impossible — a

verdict before the trial. They essentially say, “Just trust us.

Uphold the settlement now, and we’ll tell you what it is later.”

But that is not how appellate review works. The settlement

provides no assurance that the charities to whom the money

and food will be distributed will bear any nexus to the plaintiff class or to their false advertising claims and therefore violates our well-established standards governing cy pres awards.

Moreover, the true value of the product cy pres initiative has

yet to be determined, making it impossible to assess, and thus

evaluate, the true value of the common fund.

REVERSED, JUDGMENT VACATED, and CASE

REMANDED.

DENNIS v. KELLOGG COMPANY 10545