Dissent warns Google privacy settlement stretches cy pres too far

A federal appeals court judge warned that courts risk turning an extraordinary class action remedy into a first resort by allowing more than $42 million from a Google privacy settlement to go to nonprofits without first attempting to compensate the people whose claims generated the money.

In a dissent from a 2-1 decision affirming the settlement, Judge Danielle J. Forrest of the 9th U.S. Circuit Court of Appeals wrote that the district court improperly concluded that direct payments to members of a massive privacy class were infeasible and therefore approved distributing the money through the cy pres doctrine.

"Cy pres is an extraordinary tool for extraordinary cases," Forrest wrote. "The record does not establish that this is such a case where there has been no attempt at distribution and there is no obvious reason to think that distribution would be ineffectual."

The decision adds another chapter to a long-running debate over cy pres settlements, particularly in privacy class actions where enormous classes can make individual payments difficult.

Chief Justice John G. Roberts Jr. raised "fundamental concerns" about the practice more than a decade ago. In a 2013 statement accompanying the U.S. Supreme Court's denial of review in Marek v. Lane, a Facebook privacy case, Roberts questioned when cy pres should be used, how courts should assess its fairness, how recipients should be selected and how closely their work must correspond to the interests of class members.

"In a suitable case, this Court may need to clarify the limits on the use of such remedies," Roberts wrote.

The Supreme Court appeared poised to do so six years later in another privacy case, Frank v. Gaos, involving an $8.5 million Google settlement that provided no money to absent class members and sent most of the fund to six cy pres recipients.

The court granted review to decide whether such a settlement could satisfy Rule 23's requirement that class action settlements be fair, reasonable and adequate. But the justices ultimately sidestepped the issue, vacating the 9th Circuit decision and remanding because of questions about whether the plaintiffs had standing.

Justice Clarence Thomas dissented, concluding the court should have reached the merits. He argued that cy pres payments did not provide relief to absent class members and that the settlement failed Rule 23 requirements.

The 9th Circuit subsequently upheld another all-cy-pres Google settlement in In re: Google Inc. Street View Electronic Communications Litigation in 2021. That agreement provided $13 million for nine cy pres recipients, but no monetary recovery for a class estimated at roughly 60 million people.

That precedent figured prominently in Wednesday's decision -- but Forrest said the new case is fundamentally different.

The dispute arose from consolidated litigation alleging Google continued tracking and storing users' locations even after they disabled the "Location History" feature on their mobile devices. The settlement class covers approximately 247.7 million people -- roughly three-quarters of the U.S. population.

Google agreed to change its practices and pay $62 million without admitting liability. The district court awarded $18.6 million in attorney fees, about $152,000 in litigation expenses and $5,000 service awards to the named plaintiffs. The remaining $42.64 million was divided among 21 nonprofit organizations involved in privacy-related work. Class members received no money.

Judge Richard R. Clifton, writing for himself and Judge Jay S. Bybee, affirmed U.S. District Judge Edward J. Davila's approval of the settlement, concluding a direct distribution was infeasible.

The majority noted that dividing the fund among all class members would produce payments of less than 25 cents each before fees and expenses. It also credited evidence that Google could not reliably determine who belonged to the class and concluded that a claims process would consume millions of dollars that otherwise could support privacy initiatives benefiting class members indirectly.

Forrest disagreed.

She distinguished the case from Street View, where identifying people whose information had been intercepted by passing Google vehicles was essentially impossible. Here, she said, users may know or be able to determine whether their Location History setting was disabled during the relevant period, and claims potentially could be verified through declarations, affidavits and fraud-detection methods commonly used in class actions.

Forrest also rejected administrative costs as sufficient justification for bypassing class members. Estimates ranged from $1.9 million for a 1% claims rate to $8.2 million if 7% of the class submitted claims. Even at the highest estimate, she noted, more than $30 million would remain available for distribution.

"Because there will always be costs associated with processing and distributing a class settlement, the cost justification for cy pres must be narrow," Forrest wrote.

Nor, she said, should the theoretical payment of less than 25 cents per class member end the inquiry. Only a fraction of the 247.7 million members likely would submit claims, meaning those who did could receive considerably more.

The larger concern, Forrest wrote, is allowing courts to decide that giving substantial sums to outside organizations better serves injured class members than giving smaller amounts directly to people who submit claims.

"Where a direct distribution is possible, why should courts get to decide that they know better how to serve the class's interests?" she wrote.

The majority rejected that reasoning, saying cy pres distributions can indirectly benefit class members and accusing the dissent's approach of elevating "the noisy few over the interests of all class members."

Forrest said cy pres should remain the "next best" alternative, used only after courts determine that compensating class members themselves truly cannot work.

"What is at stake is more than the distribution of what, I readily admit, is often a very small sum per individual class member," Forrest wrote. Relaxing the standard, she said, risks sidelining the property rights of the people "for whose benefit the litigation was brought in the first place."

Theodore H. Frank of the Hamilton Lincoln Law Institute argued for the objectors challenging the settlement. Frank also was the named petitioner challenging the Google cy pres settlement in Frank v. Gaos and was among the objectors who challenged the Street View settlement.

Frank could not be reached immediately for comment.

Samuel Issacharoff argued for the plaintiff class, and Benjamin W. Berkowitz of Keker, Van Nest & Peters LLP argued for Google. They also could not be reached immediately for comment.

The case is In re: Google Location History Litigation, 24-3387 (9th Cir., filed Aug. 26, 2026).