Era of Mammoth Cases Tests Remedy of Last Resort

Law 360 discusses a Google class action settlement and cy pres class actions with Center for Class Action Fairness Founder Ted Frank.

If you typed a query into Google anytime between Oct. 26, 2006, and April 25, 2014, chances are you’re entitled to a cut of a multimillion-dollar class action settlement in California. Under the deal, however, you’ll get nothing. Instead, a research lab at Carnegie-Mellon University and five other charities will get about $5 million on your behalf. 

Is this fair? 

That’s the question facing the Ninth Circuit as it considers an appeal of the 2014 deal in privacy litigation accusing Google of selling user search terms containing personally identifiable information to advertisers. 

… 

For objector Ted Frank, who has been hunting questionable cy pres class actions since 2008, the answer is an emphatic “no.”

In March 13 oral arguments on the matter, Frank railed against the attorneys’ decision not to even try distributing money to the class through some form of claims process. Allowing class counsel to invoke cy pres – the doctrine allowing settlement funds to be paid to charities rather than class members – just because of the massive size of the potential class would set a dangerous precedent in the age of mega-class actions, he said.

“The standard they are asking for would effectively turn every class action in the circuit into an all-cy pres settlement,” Frank told the three-judge appellate panel.

Underlying Frank’s objections is the question of whether cases resolved with cy pres distributions like the one in the Google case should really be class actions in the first place if class members don’t receive any direct benefits.

It’s a question courts across the country are wrangling with as larger-than-ever class actions – particularly in the technology space – pose novel questions about when cy pres can be used, experts say.

Read the full article at Law 360.