Frank v. Gaos, 586 U.S. ___ (2019)

Justia Opinion Summary and Annotations

Plaintiffs brought class action claims against Google, claiming violations of the Stored Communications Act; they alleged that when an Internet user conducted a Google search and clicked on a hyperlink listed on the search results, Google transmitted information (referrer header) including the terms of the search to the server that hosted the selected webpage. The Act prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service” and creates a private right of action. The district court denied a motion to dismiss, citing a Ninth Circuit holding (Edwards) that an Article III injury exists whenever a statute gives an individual a statutory cause of action and the plaintiff claims that the defendant violated the statute.

The parties negotiated a classwide settlement that allowed the continued transmission of referrer headers but required Google to include disclosures on three of its webpages and to pay $8.5 million. None of those funds would be distributed to absent class members; most of the money would be distributed to cy pres recipients. In a class action, cy pres refers to distributing settlement funds not amenable to individual claims or meaningful pro rata distribution to nonprofit organizations whose work indirectly benefits class members. The balance would be used for administrative costs, given to the named plaintiffs, and awarded as attorney’s fees. In the meantime, the Supreme Court (Spokeo) held that “Article III standing requires a concrete injury even in the context of a statutory violation,” rejecting the "Edwards" premise. The Ninth Circuit affirmed approval of the settlement without addressing Spokeo.

The Supreme Court vacated. Although the Court granted certiorari to decide whether a class action settlement that provides a cy pres award but no direct relief to class members is “fair, reasonable, and adequate,” Fed. Rule Civ. Proc. 23(e)(2), the Court concluded that there is a substantial open question about whether any named plaintiff had standing. A court cannot approve a proposed class settlement if it lacks jurisdiction over the dispute, and federal courts lack jurisdiction if no named plaintiff has standing. When the district court ruled on the motion to dismiss, it relied on precedent that was subsequently abrogated in Spokeo.

Annotation

Primary Holding
Ninth Circuit's approval of a class action settlement in a case against Google is vacated and remanded for consideration of whether any of the named plaintiffs have standing, considering a 2016 Supreme Court holding: “Article III standing requires a concrete injury even in the context of a statutory violation.”

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

_________________

No. 17–961

_________________

THEODORE H. FRANK, et al., PETITIONERS v. PALOMA GAOS, individually and on behalf of all others similarly situated, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2019]

Per Curiam.

Three named plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act. The parties negotiated a settlement agreement that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. We granted certiorari to review whether such cy pres settlements satisfy the requirement that class settlements be “fair, reasonable, and adequate.” Fed. Rule Civ. Proc. 23(e)(2). Because there remain substantial questions about whether any of the named plaintiffs has standing to sue in light of our decision in Spokeo, Inc. v. Robins, 578 U. S. ___ (2016), we vacate the judgment of the Ninth Circuit and remand for further proceedings.

Google operates an Internet search engine. The search engine allows users to search for a word or phrase by typing a query into the Google website. Google returns a list of webpages that are relevant to the indicated term or phrase. The complaints alleged that when an Internet user conducted a Google search and clicked on a hyperlink to open one of the webpages listed on the search results page, Google transmitted information including the terms of the search to the server that hosted the selected webpage. This so-called referrer header told the server that the user arrived at the webpage by searching for particular terms on Google’s website.

Paloma Gaos challenged Google’s use of referrer headers. She filed a complaint in Federal District Court on behalf of herself and a putative class of people who conducted a Google search and clicked on any of the resulting links within a certain time period. Gaos alleged that Google’s transmission of users’ search terms in referrer headers violated the Stored Communications Act, 18 U. S. C. §2701 et seq. The SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” §2702(a)(1). The Act also creates a private right of action that entitles any “person aggrieved by any violation” to “recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.” §2707(a). Gaos also asserted several state law claims.

Google moved to dismiss for lack of standing three times. Its first attempt was successful. The District Court reasoned that although “a plaintiff may establish standing through allegations of violation of a statutory right,” Gaos had “failed to plead facts sufficient to support a claim for violation of her statutory rights.” Gaos v. Google, Inc., 2011 WL 7295480, *3 (ND Cal., Apr. 7, 2011). In particular, the court faulted Gaos for failing to plead “that she clicked on a link from the Google search page.” Ibid.

After Gaos filed an amended complaint, Google again moved to dismiss. That second attempt was partially successful. The District Court dismissed Gaos’ state law claims, but denied the motion as to her SCA claims. The court reasoned that because the SCA created a right to be free from the unlawful disclosure of certain communications, and because Gaos alleged a violation of the SCA that was specific to her (i.e., based on a search she conducted), Gaos alleged a concrete and particularized injury. Gaos v. Google Inc., 2012 WL 1094646, *4 (ND Cal., Mar. 29, 2012). The court rested that conclusion on Edwards v. First American Corp., 610 F.3d 514 (2010)—a Ninth Circuit decision reasoning that an Article III injury exists whenever a statute gives an individual a statutory cause of action and the plaintiff claims that the defendant violated the statute. 2012 WL 1094646, *3.

After the District Court ruled on Google’s second motion to dismiss, we granted certiorari in Edwards to address whether an alleged statutory violation alone can support standing. First American Financial Corp. v. Edwards, 564 U.S. 1018 (2011). In the meantime, Gaos and an additional named plaintiff filed a second amended complaint against Google. Google once again moved to dismiss. Google argued that the named plaintiffs did not have standing to bring their SCA claims because they had failed to allege facts establishing a cognizable injury. Google recognized that the District Court had previously relied on Edwards to find standing based on the alleged violation of a statutory right. But because this Court had agreed to review Edwards, Google explained that it would continue to challenge the District Court’s conclusion. We eventually dismissed Edwards as improvidently granted, 567 U.S. 756 (2012) (per curiam), and Google then withdrew its argument that Gaos lacked standing for the SCA claims.

Gaos’ putative class action was consolidated with a similar complaint, and the parties negotiated a classwide settlement. The terms of their agreement required Google to include certain disclosures about referrer headers on three of its webpages. Google could, however, continue its practice of transmitting users’ search terms in referrer headers. Google also agreed to pay $8.5 million. None of those funds would be distributed to absent class members. Instead, most of the money would be distributed to six cy pres recipients. In the class action context, cy pres refers to the practice of distributing settlement funds not amenable to individual claims or meaningful pro rata distribution to nonprofit organizations whose work is determined to indirectly benefit class members. Black’s Law Dictionary 470 (10th ed. 2014). In this case, the cy pres recipients were selected by class counsel and Google to “promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet.” App. to Pet. for Cert. 84. The rest of the funds would be used for administrative costs and fees, given to the named plaintiffs in the form of incentive payments, and awarded to class counsel as attorney’s fees.

The District Court granted preliminary certification of the class and preliminary approval of the settlement. Five class members, including petitioners Theodore Frank and Melissa Holyoak, objected to the settlement on several grounds. They complained that settlements providing only cy pres relief do not comply with the requirements of Rule 23(e), that cy pres relief was not justified in this case, and that conflicts of interest infected the selection of the cy pres recipients. After a hearing, the District Court granted final approval of the settlement.

Frank and Holyoak appealed. After briefing before the Ninth Circuit was complete, but prior to decision by that court, we issued our opinion in Spokeo, Inc. v. Robins, 578 U. S. ___ (2016). In Spokeo, we held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id., at ___ (slip op., at 9). We rejected the premise, relied on in the decision then under review and in Edwards, that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” 578 U. S., at ___ (slip op., at 9); see also id., at ___ (slip op., at 5). Google notified the Ninth Circuit of our opinion.

A divided panel of the Ninth Circuit affirmed, without addressing Spokeo. In re Google Referrer Header Privacy Litigation, 869 F.3d 737 (2017). We granted certiorari, 584 U. S. ___ (2018), to decide whether a class action settlement that provides a cy pres award but no direct relief to class members satisfies the requirement that a settlement binding class members be “fair, reasonable, and adequate.” Fed. Rule Civ. Proc. 23(e)(2).

In briefing on the merits before this Court, the Solicitor General filed a brief as amicus curiae supporting neither party. He urged us to vacate and remand the case for the lower courts to address standing. The Government argued that there is a substantial open question about whether any named plaintiff in the class action actually had standing in the District Court. Because Google withdrew its standing challenge after we dismissed Edwards as improvidently granted, neither the District Court nor the Ninth Circuit ever opined on whether any named plaintiff sufficiently alleged standing in the operative complaint.

“We have an obligation to assure ourselves of litigants’ standing under Article III.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180 (2000); internal quotation marks omitted). That obligation extends to court approval of proposed class action settlements. In ordinary non-class litigation, parties are free to settle their disputes on their own terms, and plaintiffs may voluntarily dismiss their claims without a court order. Fed. Rule Civ. Proc. 41(a)(1)(A). By contrast, in a class action, the “claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. Rule Civ. Proc. 23(e). A court is powerless to approve a proposed class settlement if it lacks jurisdiction over the dispute, and federal courts lack jurisdiction if no named plaintiff has standing. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n. 20 (1976).

When the District Court ruled on Google’s second motion to dismiss, it relied on Edwards to hold that Gaos had standing to assert a claim under the SCA. Our decision in Spokeo abrogated the ruling in Edwards that the violation of a statutory right automatically satisfies the injury-in-fact requirement whenever a statute authorizes a person to sue to vindicate that right. 578 U. S., at ___ (slip op., at 9); see Edwards, 610 F. 3d, at 517–518. Since that time, no court in this case has analyzed whether any named plaintiff has alleged SCA violations that are sufficiently concrete and particularized to support standing. After oral argument, we ordered supplemental briefing from the parties and Solicitor General to address that question.

After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.

*  *  *

The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–961

_________________

THEODORE H. FRANK, et al., PETITIONERS v. PALOMA GAOS, individually and on behalf of all others similarly situated, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 20, 2019]

Justice Thomas, dissenting.

Respectfully, I would reach the merits and reverse. As I have previously explained, a plaintiff seeking to vindicate a private right need only allege an invasion of that right to establish standing. Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (concurring opinion) (slip op., at 6). Here, the plaintiffs alleged violations of the Stored Communications Act, which creates a private right: It prohibits certain electronic service providers from “knowingly divulg[ing] . . . the contents of a communication” sent by a “ ‘user,’ ” “subscriber,” or “customer” of the service, except as provided in the Act. 18 U. S. C. §§2510(13), 2702(a)(1)–(2), (b); see §2707(a) (providing a cause of action to persons aggrieved by violations of the Act). They also asserted violations of private rights under state law. By alleging the violation of “private dut[ies] owed personally” to them “ ‘as individuals,’ ” Spokeo, supra, at ___, ___ (opinion of Thomas, J.) (slip op., at 7, 2), the plaintiffs established standing. Whether their allegations state a plausible claim for relief under the Act or state law is a separate question on which I express no opinion.

As to the class-certification and class-settlement orders, I would reverse. The named plaintiffs here sought to simultaneously certify and settle a class action under Federal Rules of Civil Procedure 23(b)(3) and (e). Yet the settlement agreement provided members of the class no damages and no other form of meaningful relief.[1]* Most of the settlement fund was devoted to cy pres payments to nonprofit organizations that are not parties to the litigation; the rest, to plaintiffs’ lawyers, administrative costs, and incentive payments for the named plaintiffs. Ante, at 3–4. The District Court and the Court of Appeals approved this arrangement on the view that the cy pres payments provided an “indirect” benefit to the class. In re Google Referrer Header Privacy Litigation, 87 F. Supp. 3d 1122, 1128–1129, 1137 (ND Cal. 2015); In re Google Referrer Header Privacy Litigation, 869 F.3d 737, 741 (CA9 2017).

Whatever role cy pres may permissibly play in disposing of unclaimed or undistributable class funds, see Klier v. Elf Atochem North Am., Inc., 658 F.3d 468, 474–476 (CA5 2011); id., at 480–482 (Jones, C. J., concurring), cy pres payments are not a form of relief to the absent class members and should not be treated as such (including when calculating attorney’s fees). And the settlement agreement here provided no other form of meaningful relief to the class. This cy pres-only arrangement failed several requirements of Rule 23. First, the fact that class counsel and the named plaintiffs were willing to settle the class claims without obtaining any relief for the class—while securing significant benefits for themselves—strongly suggests that the interests of the class were not adequately represented. Fed. Rules Civ. Proc. 23(a)(4), (g)(4); see Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619–620 (1997) (settlement terms can inform adequacy of representation). Second, the lack of any benefit for the class rendered the settlement unfair and unreasonable under Rule 23(e)(2). Further, I question whether a class action is “superior to other available methods for fairly and efficiently adjudicating the controversy” when it serves only as a vehicle through which to extinguish the absent class members’ claims without providing them any relief. Fed. Rule Civ. Proc. 23(b)(3); see Rule 23(b)(3)(A) (courts must consider “the class members’ interests in individually controlling the prosecution . . . of separate actions”).

In short, because the class members here received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims, I would hold that the class action should not have been certified, and the settlement should not have been approved.

Notes
1 *The settlement required that Google make additional disclosures on its website for the benefit of “future users.” App. to Pet. for Cert. 50. But no party argues that these disclosures were valuable enough on their own to independently support the settlement.
January 3, 2018 Petition for a writ of certiorari filed. (Response due February 7, 2018)
January 23, 2018 Motion to extend the time to file a response from February 7, 2018 to March 9, 2018, submitted to The Clerk.
January 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.
February 7, 2018 Brief amicus curiae of Cato Institute filed.
February 7, 2018 Brief amicus curiae of Center for Constitutional Jurisprudence filed.
February 7, 2018 Brief amicus curiae of Center for Individual Rights filed.
February 7, 2018 Brief amici curiae of Attorney General of Arizona, et al. filed.
March 9, 2018 Brief of respondents Paloma Gaos, et al. in opposition filed.
March 9, 2018 Brief of respondent Google LLC in opposition filed.
March 22, 2018 Reply of petitioners Theodore H. Frank, et al. filed.
March 28, 2018 DISTRIBUTED for Conference of 4/13/2018.
April 16, 2018 DISTRIBUTED for Conference of 4/20/2018.
April 23, 2018 DISTRIBUTED for Conference of 4/27/2018.
April 30, 2018 Petition GRANTED.
May 3, 2018 Motion for an extension of time filed.
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.
July 2, 2018 Joint appendix filed. (Statement of costs filed)
July 9, 2018 Brief of petitioners Theodore H. Frank, et al. filed.
July 12, 2018 Amicus brief of Cato Institute not accepted for filing. (July 12, 2018)
July 12, 2018 Brief amici curiae of Cato Institute and Americans for Prosperity filed.
July 13, 2018 Brief amici curiae of Center for Constitutional Jurisprudence and Atlantic Legal Foundation filed.
July 13, 2018 Brief amicus curiae of Lawyers for Civil Justice filed.
July 13, 2018 Brief amicus curiae of Former Professor Roy A. Katriel in support of neither party filed.
July 16, 2018 Brief amicus curiae of Center for Individual Rights filed.
July 16, 2018 Brief amicus curiae of Manhattan Institute for Policy Research filed.
July 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.)
July 16, 2018 Brief amicus curiae of New Jersey Civil Justice Institute filed.
July 16, 2018 Brief amici curiae of David Lowrey, et al. filed.
July 16, 2018 Brief amicus curiae of Electronic Privacy Information Center filed.
July 16, 2018 Brief amicus curiae of Chamber of Commerce of the United States of America in support of neither party filed.
July 16, 2018 Brief amicus curiae of United States in support of neither party filed.
July 16, 2018 Brief amici curiae of Attorneys General of Arizona, et al. filed.
July 16, 2018 Brief amicus curiae of American Bar Association in support of neither party filed.
August 20, 2018 SET FOR ARGUMENT on Wednesday, October 31, 2018
August 29, 2018 Brief of Paloma Gaos, et al. submitted.
August 29, 2018 Brief of Google LLC submitted.
August 29, 2018 Brief of respondents Paloma Gaos, et al. filed.
August 29, 2018 Brief of respondent Google LLC filed.
September 4, 2018 Motion of Former Professor Roy A. Katriel for leave to participate in oral argument and for divided argument submitted.
September 4, 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.
September 5, 2018 Amicus brief of Professor William B. Rubenstein not accepted for filing. (Resubmitted with all required documentation - September 05, 2018)
September 5, 2018 Amicus brief of Professor William B. Rubenstein submitted.
September 5, 2018 Amicus brief of Spectrum Settlement Recovery, LLC submitted.
September 5, 2018 Amicus brief of Center for Workplace Compliance submitted.
September 5, 2018 Amicus brief of Law Professors submitted.
September 5, 2018 Amicus brief of The Center for Democracy and Technology, The Electronic Frontier Foundation, and The National Consumers League submitted.
September 5, 2018 Amicus brief of Public Citizen, Inc. and Public Citizen Foundation submitted.
September 5, 2018 Amicus brief of State of Oregon submitted.
September 5, 2018 Amicus brief of American Association for Justice submitted.
September 5, 2018 Motion of Paloma Gaos, et al. for divided argument submitted.
September 5, 2018 Amicus brief of Legal Aid Organizations submitted.
September 5, 2018 Amicus brief of Computer & Communications Industry and Technet submitted.
September 5, 2018 Amicus brief of Civil Justice Research Institute submitted.
September 5, 2018 Motion of United States for leave to participate in oral argument and for divided argument submitted.
September 5, 2018 Amicus brief of Paloma Gaos, et al. submitted.
September 5, 2018 Amicus brief of The New York Bar Foundation and The New York State Bar Association submitted.
September 5, 2018 Brief amicus curiae of Center for Workplace Compliance filed.
September 5, 2018 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
September 5, 2018 Amicus brief of State of Oregon submitted.
Prior History
  • In re Google Referrer Header Privacy Litigation, No. 15-15858 (9th Cir. Aug. 22, 2017)
  • The Ninth Circuit affirmed the district court's order approving the cy pres-only settlement arising from class action claims that Google violated users' privacy by disclosing their Internet search terms to owners of third-party websites. The panel held that the district court did not abuse its discretion in approving a cy pres- only settlement where the settlement funds were non-distributable; the district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible; the district court did not abuse its discretion in approving the six cy pres recipients; the district court appropriately found that the cy pres distribution addressed the objectives of the Stored Communications Act and furthered the interests of the class members; a prior relationship or connection between the cy pres recipient and the parties or their counsel, without more, was not an absolute disqualifier; and the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs.

  • In re GOOGLE REFERRER HEADER PRIVACY LITIGATION, No. 5:2010cv04809 (N.D. Cal. Mar. 31, 2015)
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