David Lowery v. Benjamin Joffe, et al.

In Frank v. Gaos, 586 U.S. __, 139 S. Ct. 1041 (2019), the Court granted review of In re Google Referrer Header Privacy Litigation, 869 F.3d 737 (9th Cir. 2017), where the Ninth Circuit affirmed Rule 23(e)(2) approval of a class-action settlement with Google that paid no money to the class, but millions of dollars to class counsel and socalled cy pres—third-party charities that in that case had relationships with class counsel or the defendant. Gaos ultimately did not reach the merits, but vacated the Ninth Circuit opinion for a determination of Article III standing. 139 S. Ct. at 1046. This case presents a functionally identical all-cy pres class-action settlement with Google, where class attorneys will receive $3.75 million while class members will receive no pecuniary benefit from the $13 million settlement fund. Instead, class counsel directed settlement money to, among others, a former client and a former cocounsel. The district court held cy pres appropriate because $13 million could not be divided across 60 million class members (though class settlements make similar divisions regularly) and because it accepted the settling parties’ position that it would be too difficult to identify individual class members. It nevertheless certified a class the parties told it was unascertainable. The Ninth Circuit reaffirmed its decision in Google Referrer and affirmed the class certification, settlement approval, and fee award. Furthermore, Petitioner and class member David Lowery, a musician and activist on creators’ intellectual prop-