In 2010, plaintiff Paloma Gaos sued Google in a classaction lawsuit, alleging that Google violated users’ privacy by transmitting information about their searches to third parties—a violation of the Stored Communications Act—because when a user clicked on a search result, Google sent information about the search terms to the host of that website.
The parties negotiated a settlement that required Google to disclose information on its website about this practice and to pay $8.5 million. No money, however, would go to the 129 million class members (Google users) whose privacy had been violated. Because each member would only have been entitled to 4 cents, distributing the money to them was not practical. Instead, the district court approved a cy-près award that sent the funds to a set of institutions studying internet privacy.
“Cy près” is a legal term derived from a French phrase that means “as near as possible.” In class-action lawsuits where individual compensation is not possible, the legal remedy permits funds to go to charities related to the plaintiffs’ injuries instead. One question raised in such cases is: How tightly must a particular charity’s objectives relate to the injuries at issue in order to qualify for cy-près money? In the case of the Google privacy lawsuit, class members objected to the cy-près settlement, arguing that it was not “fair, reasonable, and adequate.” The district court approved the settlement, however, finding that the recipients of the funds were sufficiently connected to and capable of furthering the interests of the class. The U.S. Supreme Court agreed to review the case in 2018, but it ultimately declined to resolve the substantive questions about the appropriateness of the cy-près award (Frank v. Gaos, 2019).
The questions raised by cy-près awards could be informed by social scientific work that has explored the range of interests that motivate plaintiffs in civil litigation. These motivating interests include financial compensation, but also such considerations as obtaining information, telling their story, confirmation by the court of a relevant rule and its violation, and behavioral or institutional change that will prevent future harm.
In considering whether cy-près relief is appropriate, then, one might consider how the proposed cy-près remedy fulfills one or more of these goals. It is possible that a cy-près remedy could satisfy at least some plaintiffs’ needs and provide an approximate remedy for their harm, even in the absence of direct compensation. For example, if plaintiffs desire reform, then a cy-près recipient that works for harm prevention or supports institutional change might further plaintiffs’ need to turn a bad outcome into an opportunity for improvement. At the same time, financial compensation is important to plaintiffs as well. Courts, therefore, must be careful about turning too quickly to cy-près remedies, particularly to the exclusion of individual compensation.
Similarly, reparation is often a process that happens over time. Cy-près remedies, therefore, that comprise ongoing efforts at amends-making or that create enduring solutions to the underlying problems are more likely to be satisfying than one-time acts or events. Parties may also value having a role in the determination of the appropriate remedy. This might mean that mechanisms to allow plaintiffs to voice their interests and preferences about potential cy-près recipients could be a useful part of the negotiation process.
