Ginger McCall v. Facebook, Inc.
709 F.3d 791
9th Cir.2013Background
- The full court denied petitions for rehearing and denied rehearing en banc; some judges dissented from en banc denial.
- The dispute centers on cy pres relief in a class action settlement involving online privacy/privacy harms.
- The cy pres recipient proposed was the Digital Trust Foundation (DTF), a settlement-created charity with open-ended goals.
- Plaintiffs argued the cy pres award does not reasonably benefit the class and does not advance the underlying statutes’ objectives.
- The dissent argues the majority’s reasoning abandons established cy pres safeguards by tolerating an open-ended, poorly defined charity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the cy pres award reasonably benefit the class? | DTF lacks a record of service; funds not tied to concrete class benefits. | Settlement documents show how funds will be used to educate on privacy issues; beneficial to class. | No; not reasonably certain to benefit the class. |
| Does DTF have a sufficient record of service to justify cy pres relief? | DTF has no demonstrated history of service related to the alleged wrongs. | DTF’s mission statements suffice to show potential future impact. | No; DTF lacks a substantive record of service. |
| Does the cy pres distribution advance the objectives of the underlying statutes? | DTF’s focus on user education and control does not address prohibited access/disclosure of private information. | Education and privacy empowerment align with overarching privacy goals. | No; it does not advance the statutes’ specific objectives. |
| Should the panel have granted rehearing en banc to reconsider cy pres principles? | En Banc reconsideration is warranted to preserve cy pres safeguards. | Existing doctrine should be applied as decided by the majority. | Yes; the dissent would grant rehearing en banc. |
Key Cases Cited
- Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) (cy pres must reasonably benefit the class)
- Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011) (cy pres must advance underlying statutory objectives)
- Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012) (limits on cy pres to ensure benefit to class)
- Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) (avoid open-ended charity; ensure nexus to claims)