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Theodore H. Frank, et al. v. Paloma Gaos, Individually and on Behalf of All Others Similarly Situated, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 15-15858 · judgment August 22, 2017

Decided · March 20, 2019
Pre-decision estimate: 6% cert probability (95% interval 4%–8%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Question presented

Federal Rule of Civil Procedure 23(b)(3) permits representatives to maintain a class action where so doing "is superior to other available methods for fairly and efficiently adjudicating the controversy," and Rule 23(e)(2) requires that a settlement that binds class members must be "fair, reasonable, and adequate." In this case, the Ninth Circuit upheld approval of an $8.5 million settlement that disposed of absent class members' claims while providing them zero monetary relief. Breaking with decisions of the Third Circuit, Fifth Circuit, Seventh Circuit, and Eighth Circuit that require compensating class members before putting class action proceeds to other uses, the Ninth Circuit held that the settlement's award of all net proceeds to third-party organizations selected by the defendant and class counsel was a fair and adequate remedy under the trust-law doctrine of cy pres. The question presented is: Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be "fair, reasonable, and adequate." ORDER OF NOVEMBER 6, 2018 SUPPLEMENTAL BRIEFING: ADDRESSING WHETHER ANY NAMED PLAINTIFF HAS STANDING SUCH THAT THE FEDERAL COURTS HAVE ARTICLE III JURISDICTION OVER THIS DISPUTE.

Counsel of record

For petitioner
Theodore Harold Frank
Hamilton Lincoln Law Institute

For respondent
Donald Manwell Falk
Schaerr Jaffe LLP

Case

Conference history
Distributed for 3 conferences

Amicus briefs
4 cert-stage · 26 merits
(13 supporting pet./neither, 13 respondent)

Argument & decision

Argued October 31, 2018 — Theodore H. Frank · Jeffrey B. Wall · Andrew J. Pincus. Audio and transcript

Decided March 20, 2019. Opinion by Per Curiam.

Proceedings

  1. Apr 22 2019
    JUDGMENT ISSUED.
  2. Mar 20 2019
    Judgment VACATED and case REMANDED. Opinion per curiam. Thomas, J., filed a dissenting opinion.
  3. Dec 21 2018
    Supplemental reply brief of petitioners filed. (Distributed)
  4. Dec 21 2018
    Supplemental reply brief of respondents Paloma Gaos, et al. filed. (Distributed)
  5. Dec 21 2018
    Supplemental reply brief of respondent Google LLC filed. (Distributed)
  6. Dec 21 2018
    Supplemental reply brief of United States as amicus curiae supporting neither party filed. (Distributed)
  7. Nov 30 2018
    Supplemental brief of respondent Google LLC filed. (Distributed)
  8. Nov 30 2018
    Supplemental brief of respondents Paloma Gaos, et al. filed. (Distributed)
  9. Nov 30 2018
    Supplemental brief of United States as amicus curiae in support of neither party filed. (Distributed)
  10. Nov 29 2018
    Supplemental brief of petitioners filed. (Distributed)
  11. Nov 20 2018
    Motion to extend the time to file the supplemental briefs and replies denied
  12. Nov 19 2018
    Motion for an extension of time to file the supplemental briefs and replies filed.
  13. Nov 06 2018
    The parties and the Solicitor General are directed to file supplemental briefs addressing whether any named plaintiff has standing such that the federal courts have Article III jurisdiction over this dispute. The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 3,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.
  14. Oct 31 2018
    Argued. For petitioners: Theodore H. Frank, Washington, D. C. For United States, as amicus curiae: Jeffrey B. Wall, Principal Deputy Solicitor General, Department of Justice, Washington, D. C. For respondent Google LLC: Andrew J. Pincus, Washington, D. C. For respondents Gaos, et al.; Jeffrey A. Lamken, Washington, D. C.
  15. Oct 29 2018
    Supplemental brief of respondents Paloma Gaos, et al. filed. (Distributed)
  16. Oct 23 2018
    Supplemental brief of petitioners Theodore H. Frank, et al. filed. (Distributed)
  17. Oct 01 2018
    Joint motion for divided argument filed by respondents GRANTED.
  18. Oct 01 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  19. Oct 01 2018
    Motion for leave to participate in oral argument as amicus curiae and for divided argument filed by Former Professor Roy A. Katriel DENIED.
  20. Sep 28 2018
    Reply of petitioners Theodore H. Frank, et al. filed. (Distributed)
  21. Sep 12 2018
    CIRCULATED
  22. Sep 11 2018
    Application (18A242) to file a reply brief on the merits in excess of the word limit granted in part by The Chief Justice. Petitioners' reply brief on the merits may not exceed 7,000 words.
  23. Sep 10 2018
    Record requested from the U.S.C.A. 9th Circuit.
  24. Sep 07 2018
    Opposition of petitioners to motion of Former Professor Roy A. Katriel for enlargement of time for oral argument, for leave to participate in oral argument as amicus curiae and for divided argument filed.
  25. Sep 07 2018
    Application (18A242) to file a reply brief on the merits in excess of the word limit, submitted to The Chief Justice.
  26. Sep 05 2018
    Amicus brief of Professor William B. Rubenstein not accepted for filing. (Resubmitted with all required documentation - September 05, 2018)
  27. Sep 05 2018
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  28. Sep 05 2018
    Brief amicus curiae of Center for Workplace Compliance filed.
  29. Sep 05 2018
    Brief amici curiae of States of Oregon, et al. filed.
  30. Sep 05 2018
    Brief amici curiae of The Center for Democracy and Technology, et al. filed.
  31. Sep 05 2018
    Brief amicus curiae of American Association for Justice filed.
  32. Sep 05 2018
    Brief amicus curiae of Professor William B. Rubenstein filed.
  33. Sep 05 2018
    Brief amici curiae of Computer & Communications Industry Association and TechNet filed.
  34. Sep 05 2018
    Brief amici curiae of Legal Aid Organizations filed.
  35. Sep 05 2018
    Brief amici curiae of Law Professors filed.
  36. Sep 05 2018
    Brief amicus curiae of Civil Justice Research Initiative filed.
  37. Sep 05 2018
    Brief amicus curiae of Spectrum Settlement Recovery, LLC filed.
  38. Sep 05 2018
    Brief amici curiae of The New York Bar Foundation and The New York State Bar Association filed.
  39. Sep 05 2018
    Brief amici curiae of Public Citizen, Inc. and Public Citizen Foundation filed.
  40. Sep 05 2018
    Amicus brief of National Consumer Law Center, et al. not accepted for filing. (Corrected brief to be resubmitted - September 10, 2018)
  41. Sep 05 2018
    Joint motion for divided argument filed by respondents.
  42. Sep 05 2018
    Brief amici curiae of National Consumer Law Center, et al. filed. (Distributed)
  43. Sep 04 2018
    Motion for enlargement of time for oral argument, for leave to participate in oral argument as amicus curiae and for divided argument filed by Former Professor Roy A. Katriel.
  44. Aug 29 2018
    Brief of respondents Paloma Gaos, et al. filed.
  45. Aug 29 2018
    Brief of respondent Google LLC filed.
  46. Aug 20 2018
    SET FOR ARGUMENT on Wednesday, October 31, 2018
  47. Jul 16 2018
    Amicus brief of American Bar Association not accepted for filing. (July 17, 2018 - Brief does not comply with Rules 33 & 34. To be reprinted.)
  48. Jul 16 2018
    Brief amicus curiae of Electronic Privacy Information Center filed.
  49. Jul 16 2018
    Brief amicus curiae of American Bar Association in support of neither party filed.
  50. Jul 16 2018
    Brief amicus curiae of United States in support of neither party filed.
  51. Jul 16 2018
    Brief amici curiae of Attorneys General of Arizona, et al. filed.
  52. Jul 16 2018
    Brief amici curiae of David Lowrey, et al. filed.
  53. Jul 16 2018
    Brief amicus curiae of New Jersey Civil Justice Institute filed.
  54. Jul 16 2018
    Brief amicus curiae of Manhattan Institute for Policy Research filed.
  55. Jul 16 2018
    Brief amicus curiae of Chamber of Commerce of the United States of America in support of neither party filed.
  56. Jul 16 2018
    Brief amicus curiae of Center for Individual Rights filed.
  57. Jul 13 2018
    Brief amici curiae of Center for Constitutional Jurisprudence and Atlantic Legal Foundation filed.
  58. Jul 13 2018
    Brief amicus curiae of Former Professor Roy A. Katriel in support of neither party filed.
  59. Jul 13 2018
    Brief amicus curiae of Lawyers for Civil Justice filed.
  60. Jul 12 2018
    Amicus brief of Cato Institute not accepted for filing. (July 12, 2018)
  61. Jul 12 2018
    Brief amici curiae of Cato Institute and Americans for Prosperity filed.
  62. Jul 09 2018
    Brief of petitioners Theodore H. Frank, et al. filed.
  63. Jul 02 2018
    Joint appendix filed. (Statement of costs filed)
  64. May 15 2018
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including July 9, 2018. The time to file respondents' briefs on the merits is extended to and including August 29, 2018.
  65. May 03 2018
    Motion for an extension of time filed.
  66. Apr 30 2018
    Petition GRANTED.
  67. Apr 23 2018
    DISTRIBUTED for Conference of 4/27/2018.
  68. Apr 16 2018
    DISTRIBUTED for Conference of 4/20/2018.
  69. Mar 28 2018
    DISTRIBUTED for Conference of 4/13/2018.
  70. Mar 22 2018
    Reply of petitioners Theodore H. Frank, et al. filed.
  71. Mar 09 2018
    Brief of respondent Google LLC in opposition filed.
  72. Mar 09 2018
    Brief of respondents Paloma Gaos, et al. in opposition filed.
  73. Feb 07 2018
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  74. Feb 07 2018
    Brief amicus curiae of Cato Institute filed.
  75. Feb 07 2018
    Brief amicus curiae of Center for Individual Rights filed.
  76. Feb 07 2018
    Brief amici curiae of Attorney General of Arizona, et al. filed.
  77. Jan 24 2018
    Motion to extend the time to file a response is granted and the time is extended to and including March 9, 2018, for all respondents.
  78. Jan 23 2018
    Motion to extend the time to file a response from February 7, 2018 to March 9, 2018, submitted to The Clerk.
  79. Jan 03 2018
    Petition for a writ of certiorari filed. (Response due February 7, 2018)