On April 30, 2018, the United States Supreme Court granted certiorari so that it could determine whether a settlement in a privacy class action against Google was “fair, reasonable, and adequate” when the roughly $5 million settlement only went to cy pres recipients rather than actual class members. Specifically, the Court is to decide:
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.”
As previously recognized, the use of cy pres settlements has been a troublesome trend in privacy class action settlements given it allows plaintiffs’ counsel to quickly file and resolve class actions before actual damages can be made readily apparent. Indeed, attorney generals have objected to cy pres settlements given the lack of redress available to victims. Given Justice Roberts prior pronouncement on the topic, it may very well be the case that cy pres funding – which previously only took place in settlements after plaintiffs were actually compensated, may very well no longer be an acceptable means of quickly ending a privacy class action.