Ginger McCall v. Facebook, Inc.

Order; Dissent to Order by Judge MILAN D. SMITH, JR.

ORDER

Judges Hug and W. Fletcher have voted to deny appellants’ petitions for rehearing. Judge Kleinfeld has voted to grant the petitions for rehearing. Judge W. Fletcher has voted to deny the petitions for rehearing en banc and Judge Hug has so recommended. Judge Kleinfeld would grant the petitions for rehearing en banc.

The full court was advised of the petitions for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of the votes of the nonrecused *793 active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and the petitions for rehearing en banc are DENIED. Judge M. Smith’s dissent from the denial of en banc rehearing is filed concurrently herewith.

dissenting from the denial of rehearing en banc:

Class action litigants are increasingly likely to employ the doctrine of cy pres to settle complex class actions. 1 Until recently, courts in our circuit were well-positioned to address the issues associated with this trend because our cy pres jurisprudence was clear. Under a line of cases beginning with Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.1990), we required that a cy pres award (1) be reasonably certain to benefit the class, and (2) advance the objectives of the statutes relied upon in bringing suit. See also Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir.2011); Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir.2012). By approving a settlement that fails both criteria, however, the majority in this case creates a significant loophole in our case law that will confuse litigants and judges, while endorsing cy pres settlements that in no way benefit class members. I therefore respectfully dissent from our unfortunate failure to rehear this case en banc.

I.

We require district judges to be reasonably certain that class members will benefit before approving a cy pres settlement. Six (6) Mexican Workers,…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN LANE; MOHANNAED No. 10-16380

SHEIKHA ; SEAN MARTIN ; ALI

SAMMOUR ; MOHAMMAED ZIDAN ; D.C. No. SARA KARROW ; COLBY HENSON ; 5:08-cv-03845-RS DENTON HUNKER; FIRAS SHEIKHA ; Northern District HASSEN SHEIKHA ; LINDA STEWART ; of California, San TINA TRAN ; MATTHEW SMITH ; Jose

ERICA PARNELL; JOHN CONWAY ;

PHILLIP HUERTA ; ALICIA HUNKER;

MEGAN LYNN HANCOCK , a minor, by and through her parent Rebecca Holey; AUSTIN MUHS; CATHERINE

HARRIS; MARIO HERRERA ;

MARYAM HOSSEINY , individually and on behalf of themselves and all others similarly situated, Plaintiffs-Appellees,

v.

FACEBOOK, INC., a Delaware corporation; BLOCKBUSTER , INC., a Delaware corporation; FANDANGO , INC., a Delaware corporation; HOTWIRE , INC., a Delaware corporation; STA TRAVEL, INC., a Delaware corporation; OVERSTOCK.COM , INC., a Delaware corporation; ZAPPOS.COM , INC., a MCCALL V . FACEBOOK, INC.

Delaware corporation; GAMEFLY , INC., a Delaware corporation, Defendants-Appellees,

GINGER MCCALL, Class Member,…