On June 11, Ted Frank, Director of the Hamilton Lincoln Law Institute, argued before the Ninth Circuit in In re Google Location History Litigation. The appeal concerns approval of a $62 million settlement which provides $19 million to attorneys, $42 million to advocacy groups (many of them avowedly left-wing), and nothing to the consumers allegedly harmed by Google continuing to track users who had their location history turned off.
This is the latest in a series of Google settlements that divert all funds to third-party groups under a misapplied doctrine called cy pres. Previous examples include Frank v. Goas, which Ted Frank argued before the U.S. Supreme Court (and where the parties agreed to pay class members on remand, resulting in over $16 million recovery to the class), and Google Street View, where the Ninth Circuit affirmed approval of such a settlement.
At the oral argument, class counsel’s advocate, Prof. Samuel Issacharoff, argued that the poor Street View appeal should control. But the Ninth Circuit panel was skeptical, observing that Street View was an unusual case because class members could not verify they were part of the class and therefore could not not fairly file claims to the settlement fund. No such problem exists in this case, and HLLI is optimistic that the panel opinion will confine cy pres to cases where distributing money to injured class members is actually infeasible.
See the oral argument below:
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