Page:Theodore H. Frank, et al. v. Paloma Gaos, individually and on behalf of all others similarly situated, et al..pdf/9

2 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. 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