Cite as: 571 U. S. ____ (2013) 1 

Statement of ROBERTS, C. J. 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

MEGAN MAREK v. SEAN LANE, INDIVIDUALLY AND ON 

BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 

No. 13–136. Decided [November 4, 2013]
 

The petition for a writ of certiorari is denied. 

 Statement of CHIEF JUSTICE ROBERTS respecting the 

denial of certiorari. 

In November 2007, respondent Facebook, Inc., released 

a program called “Beacon.” It worked like this: Whenever someone visited the Web site of a participating company and performed a “trigger” activity, such as posting a

comment or buying a product, the program would automatically report the activity and the user’s personally 

identifiable information to Facebook—regardless of whether 

the user was a Facebook member. If the user was a Facebook member, Facebook would publish the activity on 

his member profile and broadcast it to everyone in his 

“friends” network. So rent a movie from Blockbuster.com, 

and all your friends would know the title. Or plan a vacation on Hotwire.com, and all your friends would know the

destination. To prevent Facebook from posting a particular trigger activity, a member had to affirmatively opt out

by clicking an icon in a pop-up window that appeared for 

about ten seconds after he performed the activity.

Beacon resulted in the dissemination of large amounts 

of information Facebook members allegedly did not intend

to share, provoking a public outcry against Beacon and 

Facebook. Facebook responded about a month after Bea-
 

2 MAREK v. LANE 

Statement of ROBERTS, C. J. 

con’s launch by changing the program’s default setting 

from opt out to opt in, so that any given trigger activity

would not appear on a member’s profile unless the member explicitly consented. Facebook also allowed its members to disable Beacon altogether. 

In August 2008, 19 individuals brought a putative class

action lawsuit in the U. S. District Court for the Northern 

District of California against Facebook and the companies

that had participated in Beacon, alleging violations of 

various federal and state privacy laws. The putative class

comprised only those individuals whose personal information had been obtained and disclosed by Beacon during 

the approximately one-month period in which the program’s default setting was opt out rather than opt in. The 

complaint sought damages and various forms of equitable 

relief, including an injunction barring the defendants from

continuing the program. 

In the end, the vast majority of Beacon’s victims got

neither remedy. The named plaintiffs reached a settlement agreement with the defendants before class certification. Although Facebook promised to discontinue the

“Beacon” program itself, plaintiffs’ counsel conceded at

the fairness hearing in the District Court that nothing in the 

settlement would preclude Facebook from reinstituting the 

same program with a new name. See Tr. 18 (Feb. 26, 

2010) (counsel for named plaintiffs) (“At the end of the day, 

we could not reach agreement with defendants regarding

limiting their future actions as a corporation”). 

And while Facebook also agreed to pay $9.5 million, the 

parties allocated that fund in an unusual way. Plaintiffs’ 

counsel were awarded nearly a quarter of the fund in fees 

and costs, while the named plaintiffs received modest incentive payments. The unnamed class members, by contrast, received no damages from the remaining $6.5 

million. Instead, the parties earmarked that sum for a “cy 

pres” remedy—an “as near as” form of relief—because 
 

Cite as: 571 U. S. ____ (2013) 3 

Statement of ROBERTS, C. J. 

distributing the $6.5 million among the large number of 

class members would result in too small an award per 

person to bother. The cy pres remedy agreed to by the 

parties entailed the establishment of a new charitable

foundation that would help fund organizations dedicated 

to educating the public about online privacy. A Facebook 

representative would be one of the three members of the

new foundation’s board. 

To top it off, the parties agreed to expand the settlement 

class barred from future litigation to include not just those 

individuals injured by Beacon during the brief period in

which it was an opt-out program—the class proposed in 

the original complaint—but also those injured after Facebook had changed the program’s default setting to opt in. 

Facebook thus insulated itself from all class claims arising

from the Beacon episode by paying plaintiffs’ counsel and 

the named plaintiffs some $3 million and spending $6.5 

million to set up a foundation in which it would play a 

major role. The District Court approved the settlement 

as “fair, reasonable, and adequate.” Fed. Rule Civ. Proc. 

23(e)(2); see Lane v. Facebook, Inc., Civ. No. C 08–3845, 

2010 WL 9013059 (ND Cal., Mar. 17, 2010). 

Petitioner Megan Marek was one of four unnamed class 

members who objected to the settlement. Her challenge

focused on a number of disconcerting features of the new 

Foundation: the facts that a senior Facebook employee

would serve on its board, that the board would enjoy nearly

unfettered discretion in selecting fund recipients, and 

that the Foundation—as a new entity—necessarily lacked 

a proven track record of promoting the objectives behind 

the lawsuit. She also criticized the overall settlement 

amount as too low. The District Court rebuffed these 

objections, as did a divided panel of the Ninth Circuit on 

appeal. Lane v. Facebook, Inc., 696 F. 3d 811 (2012). A 

petition for rehearing en banc was denied, over the dissent 

of six judges. Lane v. Facebook, Inc., 709 F. 3d 791 (2013). 
 

4 MAREK v. LANE 

Statement of ROBERTS, C. J. 

I agree with this Court’s decision to deny the petition for 

certiorari. Marek’s challenge is focused on the particular

features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court

an opportunity to address more fundamental concerns

surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter;

whether new entities may be established as part of such 

relief; if not, how existing entities should be selected; what 

the respective roles of the judge and parties are in shaping 

a cy pres remedy; how closely the goals of any enlisted 

organization must correspond to the interests of the class;

and so on. This Court has not previously addressed any

of these issues. Cy pres remedies, however, are a growing 

feature of class action settlements. See Redish, Julian, & 

Zyontz, Cy Pres Relief and the Pathologies of the Modern 

Class Action: A Normative and Empirical Analysis, 62 Fla. 

L. Rev. 617, 653–656 (2010). In a suitable case, this Court 

may need to clarify the limits on the use of such remedies.