3rd Circ. Asked To Nix Approval of $5.5M Google Privacy Deal

Law360 discusses CCAF’s objection to the $5.5 million Google settlement with Ted Frank.

The Center for Class Action Fairness’ director urged the Third Circuit to revoke approval of a $5.5 million deal that would see Google make donations to several entities to resolve consumer privacy claims, blasting the settlement for providing millions to class counsel and groups the company favors, but nothing to class members.

Theodore H. Frank challenged the settlement in a Wednesday brief, telling the appeals court that the deal constitutes a breach of class counsel’s obligation to prioritize recovery for those affected by Google Inc.’s alleged practice of bypassing browser users’ privacy settings to track their information.

U.S. District Judge Sue L. Robinson gave the deal her final blessing in early February over Frank’s objection, agreeing that it would be challenging to identify the millions of potential class members and to value their alleged losses. Instead, she held, it was reasonable to make cy pres payments to internet technology and privacy rights organizations like the Privacy Rights Clearinghouse and the Berkeley Center for Law & Technology.

But Frank said this was the wrong move, contending that Third Circuit case law has emphasized the importance of prioritizing class payments over cy pres distributions and that similar cases with similar ratios of settlement fund to class size have successfully led to claims processes that distributed fair amounts to class members.

Not only did class counsel make no effort to distribute any money to the class here, but there are obvious conflicts of interest associated with the cy pres recipients, Frank asserted, noting that Google is a regular donor to four of the entities and co-lead class counsel Brian Strange is board chairman of another, Public Counsel.

“This isn’t a new benefit to the class, but an illusory change in accounting entries, and the district court failed to conduct any inquiry into the extent of that donation history,” Frank said. “This court should reverse, and give guidance to lower courts that the fact that some cy pres settlements may hypothetically pass muster does not mean that anything goes.”

Read the full article at Law360.