PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-1480

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IN RE: GOOGLE INC. COOKIE PLACEMENT 

CONSUMER PRIVACY 

LITIGATION

Theodore H. Frank,

Appellant

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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

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Argued November 14, 2017

Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges

(Opinion filed: August 6, 2019)

Theodore H. Frank (Argued)

Adam E. Schulman
2

Competitive Enterprise Institute

Center 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
3

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
4

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.

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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 the 

benefits, frequently result in class actions under Federal Rule 

of 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 those 

in the class, and (4) representatives who will fairly and 

adequately 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 is 

appropriate respecting the class as a whole.” 

For the first time we review an order approving the 

settlement of a class action certified under Rule 23(b)(2) where 

the only benefit received by the class was the defendant’s 
5

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 the 

trail 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 upon 

seclusion (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 to 

stop 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 pres

distributions, without directly compensating any class 

members. The six cy pres recipients are primarily data privacy 

organizations, and all must agree to use the funds to research 

and promote browser privacy. In addition, Google would 

obtain, among other things, a class-wide release of all class-

 

1

“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 the 

charitable gift as the testator intended, the doctrine allows the 

next best use of the funds to satisfy the testator’s intent as near 

as possible.” Id. (quotation omitted).
6

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 the 

District Court’s certification of a settlement class and the terms 

of the approved settlement. He argues that the cy pres money 

properly belongs to the class as compensation. He asks us to

vacate the settlement as unfair and require direct distributions 

to class members before resorting to cy pres awards. In the 

alternative, 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 cy 

pres recipients because of their pre-existing relationships with 

Google and class counsel.

We believe that, in some Rule 23(b)(2) class actions, a 

cy 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 class 

and approving the settlement. The settlement agreement’s 

broad release of claims for money damages and its designation 

of cy pres recipients are particularly concerning. We thus 

vacate the order approving the settlement and remand for 

further 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 
7

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 that 

were later consolidated into a putative class action. The class 

complaint alleged violations of federal privacy and fraud 

statutes, California unfair competition and privacy statutes, the 

California 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 then 

sought to avoid further litigation and began mediation before a

former federal judge. With the help of the mediator, the parties 

agreed to a settlement (the “Settlement Agreement”) and 

simultaneously moved for certification of a Federal Rule of 

Civil Procedure 23(b)(2) class and approval of the settlement

under Federal Rule of Civil Procedure 23(e). The latter states 

that “claims, issues, or defenses of a certified class . . . may be 

settled, voluntarily dismissed, or compromised only with the 

court’s approval.” Fed. R. Civ. P. 23(e). It also lays out the 

procedures 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, the 
8

settlement would release all class member claims, including for 

damages, 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 the 

settlement administrator, class counsel, the named class 

representatives, and cy pres recipients. Settlement Agreement 

§ 5.2 (“Settlement Fund”).

The Settlement Agreement requires both parties to 

agree to the cy pres recipients. The class must propose up to 

ten options, and Google may strike any for a non-arbitrary 

reason and request a replacement. Settlement Agreement § 5.3

(“Cy Pres Recipients”). The chosen recipients must agree “to 

devote 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) the 

Center 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 were 

privy to the selection process.

C. Class Action Settlements

The settlement of a putative class action requires the 

approval of a district court, both for certifying the class and for 

determining whether the settlement is “fair, reasonable and 
9

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 class 

action settlements, most notably the Girsh factors2and the

Prudential factors.3 Where, as here, the parties seek 

 

2 The Girsh factors, which a court must apply, are: “(1) the 

complexity, expense and likely duration of the litigation; (2) 

the reaction of the class to the settlement; (3) the stage of the 

proceedings and the amount of discovery completed; (4) the 

risks of establishing liability; (5) the risks of establishing 

damages; (6) the risks of maintaining the class action through 

trial; (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 range 

of 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 the 

ability to assess the probable outcome of a trial on the merits 

of liability and individual damages”; (2) the “existence and 

probable outcome of claims by other classes and subclasses”; 

(3) “the comparison between the results achieved by the 

settlement for individual class or subclass members and the 

results achieved—or likely to be achieved—for other 

claimants”; (4) “whether class or subclass members are 

accorded the right to opt out of the settlement”; (5) “whether 

any provisions for attorneys’ fees are reasonable”; and (6) 
10

simultaneous class certification and settlement approval, courts 

should be “even more scrupulous than usual when they 

examine 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 sending 

of 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 class 

actions,

4

a court “must direct to class members the best notice 

that is practicable under the circumstances, including 

individual notice to all members who can be identified through 

reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). For class 

actions certified under Rule 23(b)(1), which is often used to 

pursue 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 finds 

that 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 the 

controversy.” 

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 or 

varying adjudications with respect to individual class members 

that would establish incompatible standards of conduct for the 

party opposing the class,” or (2) “adjudications with respect to 
11

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, the 

procedures for class action settlement—including the notice 

procedures—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 for 

settlement under Rule 23(b)(2). Following a notice period, the 

Court received fifty exclusion requests and one timely 

objection. Frank, the sole objector, asserted that either the 

settlement was unfair because it improperly preferred cy pres

over direct compensation to class members, or, in the 

alternative, the class could not be certified if direct 

compensation was impossible. He further argued that the cy 

pres recipients raised a conflict-of-interest concern because 

class counsel was on one recipient’s board and Google was a 

regular donor to four others. Finally, Frank challenged the 

attorneys’ fees—an issue he does not raise on appeal. 

To determine whether the settlement class could be 

certified, the District Court conducted a hearing as required by 

Fed. R. Civ. P. 23(e)(2) and heard arguments from the parties 

and Frank. Following the hearing, it issued a short opinion and 

 

individual class members that, as a practical matter, would be 

dispositive of the interests of the other members not parties to 

the individual adjudications or would substantially impair or 

impede their ability to protect their interests.” 
12

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 Rule 

23(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 Rule 

23(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, and 

adequate.” Fed. R. Civ. P. 23(e)(2). The Court here noted that 

a presumption of fairness applies to class settlements that meet 

certain criteria established in our case law, but it did not make 

factual findings relating to those factors or hold whether the 

presumption 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

 

6

 Baby Products instructed courts to consider further “the 

degree of direct benefit provided to the class” from the 

settlement, potentially including “the number of individual 

awards compared to both the number of claims and the 

estimated number of class members, the size of the individual 

awards compared to claimants’ estimated damages, and the 
13

Ultimately, the Court rejected Frank’s arguments and

approved 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 the 

millions of potential class members[7]and then of translating 

their alleged loss of privacy into individual cash amounts.” It 

further found that “payments to absent class members would 

be logistically burdensome, impractical, and economically 

infeasible, resulting (at best) with direct compensation of a de 

minim[i]s amount.” Because the cy pres money would be used 

by “preeminent institutions for researching and advocating for 

online privacy” to promote Internet browser privacy, it held 

that the cy pres awards “bear a direct and substantial nexus to 

the interests of absent class members.” In one sentence, the 

Court 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 selected 

cy 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 to 

determine who is a class member. Google Br. at 19. At the 

fairness hearing, Judge Robinson also stated she “believe[d] 

this has always been a case in which the facts preclude direct 

individual compensation.” 
14

II. Discussion

A. Article III Standing

After oral argument, we held this appeal in abeyance 

pending 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 the 

class 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-viewing 

of children who visited Nick.com but then did so anyway. Id.

at 269. We held the website operator’s intrusion on the 

children’s personal browsing and viewing activities was 

sufficiently injurious for purposes of Article III standing. Id.

at 273–74. The allegations of standing here are 

indistinguishable from those in Nickelodeon: in both cases, the 

plaintiffs 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 distinguished 
15

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 without 

authorization. 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 to 

remedy intrusions on the private sphere trace back to England, 

where a property owner needed only to show that another 

person placed a foot on his property to establish a traditional 

case 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 when 

millions of Americans conduct their affairs increasingly 

through electronic devices, the assertion Google makes—that 

federal courts are powerless to provide a remedy when an 

internet company surreptitiously collects private data—is 

untenable. 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 a 

settlement 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 conclusion 
16

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 for 

abuse 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 monetary

component is a cy pres award, provides no marginal benefit to 

the class and therefore cannot satisfy that Rule. Indeed, he 

asserts a cy pres award is always inappropriate if some 

individual class members could be compensated through a 

claims or lottery process. Second, Frank challenges the 

selection 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-only 

class certification and approval of the settlement. First, we 

favor 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 was 

sufficient discovery; (3) the proponents of the settlement are 

experienced in similar litigation; and (4) only a small fraction 
17

of the class objected.”8 NFL Concussion Litig., 821 F.3d at 

436. 

At the same time, a district court has an obligation as a 

fiduciary 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 settlement 

class’s certification to ensure absent class members were 

adequately represented). In settlement negotiations, the 

interests of class representatives or class counsel do not always 

align with the interests of absent class members, and prior to 

certification class members may not know their claims are in 

litigation 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 to 

ensure 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 the 

class similarly suggested, but did not expressly hold, that the 

presumption applies. Frank does not challenge the application 

or misapplication of the fairness presumption, however. Given 

the case’s facts and procedural posture, we assume the 

presumption applies.
18

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 cy 

pres-only settlements are unfair per se under Rule 23(e)(2). In 

some cases a cy pres-only settlement may be proper. But we 

are troubled by the District Court’s cursory certification and 

fairness 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 pres

recipients. In the usual cy pres case, money from a class 

settlement fund remains after distributions to class members, 

perhaps because “class members cannot be located, decline to 

file claims, have died, or the parties have overestimated the 

amount 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 their 

next 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 to 

the 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, and 

even the Chief Justice of the United States view cy pres awards 

with skepticism.9 Among other things, they “present a 

 

9 Chief Justice Roberts has voiced concerns regarding cy pres, 

particularly where it constitutes a class’s only monetary relief. 
19

potential conflict of interest between class counsel and their 

clients” because they “may increase a settlement fund, and 

with 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, class 

representatives, and cy pres recipients, as in this case, presents

the risk of a still greater misalignment of interests: the 

settlement 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 a 

class action settlement agreement that includes a cy pres

component directing distribution of excess settlement funds to 

a 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 where 

some 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).
20

the District Court abused its discretion in approving this 

particular settlement as fair, reasonable, and adequate.

Frank’s central argument on appeal is that cy pres

awards should never be preferred over direct distributions to 

class 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 the 

settlement fund against the size of the entire class because 

“[e]ven in billion-dollar securities settlements where class 

members have suffered substantial losses, the parties do not 

know who each and every class member is and must rely upon 

class 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 to 

approve only settlements that provide for direct class 

distributions on these facts. Indeed, Baby Products suggested

the opposite. We reasoned that “cy pres distributions are most 

appropriate where further individual distributions are 

economically infeasible” and declined to prohibit cy pres

distributions 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 approval 

should 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 the 

fairest possible resolution . . . [, but rather to] determine 

whether the compromises reflected in the settlement . . . are 

fair, reasonable, and adequate when considered from the 

perspective of the class as a whole.” Id.
21

Google further argues that this settlement fund was 

never 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 to

prevent similar potential privacy invasions from occurring in 

the future. The class representatives similarly point out that a 

claims-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 Rule 

23(b)(2) class structure. The Supreme Court has described this 

as a more “traditional” collective action because it assumes a 

single, “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 the 

opportunity to opt out. See Dukes, 564 U.S. at 362. To certify 

a (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 or 

corresponding declaratory relief is appropriate respecting the 

class as a whole.” Fed. R. Civ. P. 23(b)(2). In other words, the 

class must be “cohesive” such that the members “have strong 

 

10

 In fact, a non-settlement (b)(2) class cannot be certified if it 

brings claims for monetary relief that are more than 

“incidental.” Dukes, 564 U.S. at 360.
22

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” to 

the class as a whole, and not to individual class members as 

monetary 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 to 

allow a cy pres-only settlement rather than random 

compensation, and possibly even overcompensation through a 

lottery, of some (b)(2) class members to the exclusion of 

others.

2. Review of the District Court’s Settlement 

Approval 

This brings us to the Settlement Agreement. District 

courts are to assess the fairness, reasonableness, and adequacy 

of a cy pres award under Rule 23(e)(2) using “the same 

framework developed for assessing other aspects of class 

action 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 estimated 

number 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, the

District Court ran through the Girsh factors and held that all 
23

nine were satisfied, but in a more perfunctory fashion than we 

are accustomed to reviewing on appeal. It also acknowledged 

the additional factors we suggested district courts consider in 

Prudential, 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, and 

adequacy of the settlement. In particular, two features of the 

settlement present concerns that were not adequately 

considered by it: the broad class-wide release of claims for 

money damages, and selection of the specific cy pres 

recipients. 

a. Class-wide Release 

The Settlement Agreement purports to release all class 

member 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 for 

statutory 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, in 

turn, shaped the structure of both class certification and class 

notice: the parties sought to certify an injunction class under 

Rule 23(b)(2), not a damages class under Rule 23(b)(3), see 

District Court Docket, ECF No. 163, and thus avoided the 

heightened certification and notice requirements that apply to 

the 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 the 

circumstances” for 23(b)(3) settlements). 

Yet having sidestepped these requirements, Google and 

class counsel nonetheless obtained—for themselves anyway—
24

the precise benefits that a Rule 23(b)(3) class gives to the 

defendant and class counsel: namely, a broad class-wide 

release of claims for money damages for the defendant, and a 

percentage-of-fund calculation of attorneys’ fees for class 

counsel. The District Court’s failure to scrutinize this 

troubling 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 and 

application of the law must be clear enough to provide basis 

for review). We also question, and leave to the District Court 

on 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 a 

heightened 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) settlement 

with broad release); Koby v. ARS Nat’l Servs., 846 F.3d 1071, 

1079 (9th Cir. 2017) (same). 

b. Cy Pres Recipients

The District Court held that “the proposed cy pres

distributions are appropriately tailored and focused.” It found 

the 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 for 

internet browser privacy initiatives. Id. Because “this case is 

about Google’s alleged circumvention of Internet browser 

privacy settings,” it concluded, the proposed cy pres

distributions thus “bear a direct and substantial nexus to the 

interests of absent class members.” The Court made no finding 

that the class’s nationwide nature was reflected in the 

geographical scope of cy pres recipients’ work. See, e.g., 
25

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 the 

case.”). However, the record shows they overlap; the 

promotion of better online privacy inherently has nationwide 

effects.

In sum, on the District Court’s review of the record, the 

proposed 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 proposed 

cy pres awards were fair, reasonable, and adequate when 

viewed “from the perspective of the Settlement Class as a 

whole.” 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 specific 

cy 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 regular 

donor 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 also 

a board member of Public Counsel.

We have not previously addressed when a prior 

relationship 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 or 
26

an evidentiary hearing, to determine the nature of the 

relationships between the cy pres recipients and Google or 

class counsel. In its opinion, the Court misstated the nature of 

Frank’s objections, stating he “takes the position that any 

relationship between a party (and its counsel) and a proposed 

cy pres recipient automatically disqualifies the proposed cy 

pres recipient.” It then dismissed the issue in a single sentence

with 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 a 

fiduciary 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 to 

determine whether they have a significant prior affiliation with 

any party, counsel, or the court. A settlement should not be 

approved if such a prior affiliation “would raise substantial 

questions . . . whether the selection of the recipient was made 

on 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 cy 

pres selection was fair, which may include describing the 

nature of any prior affiliations; what role, if any, each

affiliation played in the cy pres selection process; whether 

other recipients were sincerely considered; and why these

recipients are the proper choice. As always, “[w]here a court 

fears counsel is conflicted, it should subject the settlement to 

increased 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 the 

selection 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 a 
27

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 a 

meaningful benefit to absent class members, he argues it must

fail to satisfy Rule 23(a)(4) and (g)(4). Those Rules provide 

that a class’s representative plaintiffs and counsel, 

respectively, must “fairly and adequately” represent the 

interests of the class. Frank contends that a cy pres-only 

settlement in these circumstances confers no benefit on the 

class, which inherently shows that the class representative and 

counsel failed to represent the class fairly and adequately. For 

this reason, he claims a cy pres-only settlement class cannot be 

certified due to inadequate representation.

Frank’s class certification challenge is not really an 

alternative 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’s 

contentions concerning the propriety of class certification in 

light 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 did 

so anyway to profit from the data. Through the proposed classaction settlement, the purported wrongdoer promises to pay a 

couple million dollars to class counsel and make a cy pres
28

contribution to organizations it was already donating to 

otherwise (at least one of which has an affiliation with class 

counsel). By seeking certification under Rule 23(b)(2), the 

defendant 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 a 

nationwide 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 this 

context, 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, and 

adequacy of the settlement. We thus vacate and remand for 

further proceedings in accord with this opinion.