The US Court of Appeals for the Ninth Circuit affirmed a lower court decision Monday approving a class settlement between Google and 18 named plaintiffs involving its “Street View” technology.
In a class-action lawsuit on behalf of around 60 million others, the plaintiffs alleged that Google illegally collected personal data, including passwords, videos and photographs, over WiFi networks from nearby Street View vehicles between 2007 and 2010. The plaintiffs settled for five-year injunctive relief where Google had to, among other actions, destroy all such data and establish a $13 million fund.
Since the class size and difficulties in claim verification meant it was infeasible to directly pay all class members, the settlement fund would be used for cy pres (“as near as possible”) payments to nine internet privacy advocacy organizations as the “next best” class of beneficiaries, apart from the named plaintiffs and attorneys. This settlement was approved by the District Court for the Northern District of California in 2020.
This decision, however, was appealed by purported class member David Lowery. He argued that a cy pres-only remedy was inappropriate since absent class members were awarded no damages.
The appeals court affirmed the district court’s findings of infeasibility, noting that verifying the claims of just 18 plaintiffs took three years. It emphasized cy pres is appropriate where the remedy bears a “direct and substantial nexus” to class members’ interests, such as at present, where the organizations had to commit to using the funds for furthering internet privacy protection. From this and the injunctive relief, absent class members received “fair, reasonable and adequate compensation,” albeit indirectly.
Lowery also argued the settlement violated the First Amendment prohibition on compelled speech since it distributed settlement funds to organizations whose positions class members, like himself, did not agree with. However, the court rejected this stating class members could “opt-out” of the settlement while still retaining their legal claims.
Lowery’s final point—that class counsel and representatives breached their fiduciary duties by not “adequately protecting the interests of the class”—also failed. However, Justice Bridget Bade opined separately there was a need to rethink cy pres awards, especially given class members do not receive unique compensation or meaningful relief in many instances.
