No Error in Routing Settlement Funds to ‘Left-Wing’ Groups

Thursday, August 27, 2026

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Ninth Circuit:

No Error in Routing Settlement Funds to ‘Left-Wing’ Groups

In Case Alleging Privacy Violations by Google, Opinion Says Approval of Proposal That Would Funnel Money to University Programs, Other Parties Rather Than Giving Class Members Small Amount Was Proper, Drawing Dissent

By Kimber Cooley, associate editor

A divided Ninth U.S. Circuit Court of Appeals has affirmed an order granting final approval of a settlement agreement, in a putative class action accusing Google of ignoring users’ privacy selections in violation of California law, that calls for the distribution of more than $40 million to non-profits, including multiple university programs, over the objection of parties who argued that the money should go to class members and not to “left-wing” groups.

The objectors asserted the judge abused his discretion by approving the cy pres award—or distribution of settlement funds to a charitable organization—because the selected recipients were “too remote” from the proposed class and engaged in “left-wing” ideological work with which a substantial portion of the members would disagree. They asserted difficulties in identifying members of the class and verify their claims were overstated.

Senior Circuit Judge Richard R. Clifton authored yesterday’s opinion, joined in by Senior Circuit Judge Jay S. Bybee, saying:

“Objectors argue that the interests of the class are better served by distributing tiny amounts of money to a tiny fraction of the class rather than directing the money to initiatives protecting privacy interests more generally. Although dividing the settlement funds among all class members would leave less than 25 cents for each class member, Objectors contend that only a very small percentage of the class would actually seek recovery….

“This argument—that dispersing funds to a fraction of the class is preferable to payments to third parties through cy pres—rests upon the false premise that cy pres distributions do not benefit the class. We do not share that view.”

Universal Approval

As to the argument that the approval would permit the funneling of funds to groups engaged in work that is objectionable to a large portion of the class, Clifton opined that “a standard mandating universal approval” is not found in governing case law and “would be unworkable.”

Circuit Judge Daneille J. Forrest dissented, arguing that case law has approved cy pres-only distribution in cases in which it is impossible to identify class members and their claims, circumstances she claimed are absent in the case before the court. She wrote:

“What is at stake is more than the distribution of what, I readily admit, is often a very small sum per individual class member. Relaxing the requirements for cy pres distribution threatens to sideline focus on the property rights of those for whose benefit the litigation was brought in the first place, which runs headlong into due-process problems. Cy pres is an extraordinary tool for extraordinary cases. 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 question arose after multiple plaintiffs, some of whom live outside of California, filed complaints against Google LLC over an alleged practice of collecting location data on users who had selected to disable tracking services on their devices. In 2020, an amended consolidated class action complaint was filed, asserting that the Silicon Valley technology giant violated the California Constitution’s protection of a right to privacy and other state laws.

Class Certification

A class was preliminarily certified for settlement purposes to include 247.7 million persons—roughly three-quarters of the U.S. population—who live in country and who “used [Apple and Android] mobile devices and whose location information was stored by Google while ‘Location History’ was disabled.”

The parties agreed to settle the matter for an agreement by Google that it would rectify its purportedly wrongful conduct and pay $62 million into a settlement fund, from which money would be distributed to charitable organizations “with a track record of addressing privacy concerns on the Internet” after $18.6 million in attorney fees and other expenses were paid out.

Would-be recipients under the settlement include MIT Internet Policy Research Initiative, Fordham University Center on Law and Information Policy, ACLU of Northern California Technology & Civil Liberties Program, and Yale Law School’s Information Society Project.

Class members John Andren, Matthew Lilley, and Joseph St. John filed timely objections to the proposed settlement. In a supplemental objection filed on April 8, 2024, they asserted:

“Plaintiffs’ proposed distribution would give tens of millions of dollars that should go to the class to organizations that engage in work that a substantial percentage of the class would not want to support (such as ‘racial justice’—a codeword for support for racial discrimination and anti-Semitic policies—and promoting abortion)….”

On May 3, 2024, District Court Judge Edward J. Davila of the Northern District of California (now on senior status) denied the objections and granted final approval of the settlement agreement.

Fairness Factors

Clifton noted that Federal Rule of Civil Procedure, rule 23 “establishes factors that a court must consider in determining whether” a proposed class settlement is fair, reasonable and adequate and concluded that Davila “considered the enumerated” considerations in concluding that cy pres distribution would be appropriate because the fund is in effect “non-distributable” due to the miniscule recovery any class member could expect to receive.

He wrote:

“The district court’s holding accords with our precedents deeming a settlement fund non-distributable where ‘each class member’s recovery under a direct distribution would be de minimis.’…Because the pro rata distribution here would be similarly miniscule, the district court did not abuse its discretion in approving the parties’ proposed settlement.”

Agreeing with Davila that there were issues with identification of class members and verifying their claims due to Google’s assertion that the fact that users utilize multiple gadgets and often share devices, he added:

“On appeal, Objectors conclusorily assert that class members could self-identify and opt-in to the class. Critically absent from Objectors’ briefs is any proposed methodology to verify each claimant’s entitlement to settlement funds once they self-identify. Self-identification would thus be ‘pure speculation,’ and Objectors have not offered a way to verify the claims ‘with any degree of probability.’

As to the objections to nine of the cy pres recipients proposed by the agreement, he pointed out that courts are to determine whether the suggested distribution would address the objectives at issue in the underlying action, target the plaintiff class, and provide reasonable certainty that any member will enjoy some benefit. Applying the standard, he remarked:

“We agree with the district court that the cy pres recipients had documented their commitment to advocate for the protection of data privacy, establishing a substantial nexus to the underlying interests of the class.”

Forrest’s View

Forrest argued:

“Cy pres is not properly employed merely because the members of a class may be difficult to identify or are likely to receive only a small sum. Its use is appropriate only when settlement funds are truly ‘non-distributable’ to the absent class members….Because that has not been shown to be the case here, I respectfully dissent.”

She continued:

“The district court determined that the monetary settlement here is non-distributable because it is not feasible to identify the class members, a claims administration process would be prohibitively expensive, and the class members would receive only de minimis recovery under a claims process. These three justifications— alone or together—do not justify depriving class members an opportunity to claim settlement funds secured on their behalf.”

As to whether a distribution to class members would be meaningless, she opined:

“The settlement fund remaining after payment of attorney fees and other administrative expenses exceeds $40 million. And the highest estimated distribution cost based on an assumed claims rate was $8.2 million. That leaves over $30 million for distribution to the individuals who suffered the injury that the settlement is supposed to remedy.”

The jurist added:

“Cy pres is justified when it is the ‘next best’ choice for distributing class funds. Courts must start with the presumption that distributing settlement funds to the class members is the first best choice. This presumption can be overcome, but, given the significant due-process and fairness concerns at play, courts must ensure that direct distribution truly is infeasible. The district court’s approval of an all-cy pres distribution of the monetary settlement secured for the class in this case is incongruent with this legal framework. Thus, I would reverse, and I do not reach whether the cy pres recipients approved by the district court were proper.”

The case is Patacsil v. Google LLC, 24-3387.