Justices Revisit Spokeo Standing At Oral Arguments Over Cy Pres Settlements

Reuters cited CEI’s Senior Attorney Ted Frank on Supreme Court case Frank v. Gaos.

(Reuters) – A funny thing happened on the way to a U.S. Supreme Court determination of the propriety of paying charities instead of class members in so-called cy pres class action settlements. At oral arguments on Wednesday in Frank v. Gaos – in which the Supreme Court granted review to decide whether cy pres settlements are fair and reasonable under the federal rules governing class actions – at least three justices suggested the court can’t reach the cy pres issue because plaintiffs in the underlying class action hadn’t established their constitutional right to sue in federal court under the Supreme Court’s 2016 ruling in Spokeo v. Robins.


They weren’t the only justices to chime in on standing, either. Chief Justice John Roberts asked both Google counsel Andrew Pincus of Mayer Brown and objectors’ counsel Ted Frank of the Competitive Enterprise Institute to address the implications if the court were to conclude class plaintiffs hadn’t established standing. “Obviously, if there’s no standing, the whole class action is thrown out, right?” Roberts asked Frank, who agreed and suggested the solution might be to remand the case to the lower courts to decide if the class action meets post-Spokeo standing requirements. (Frank said it does.)


It was the Justice Department that first raised jurisdictional concerns in an amicus brief filed in July, after the justices agree to hear the case. The parties responded to DOJ in subsequent briefs. Google agreed with the government that the class action would likely not have survived under the Spokeo standard but said defendants “should be able to compromise standing disputes when the answer is not clear under governing law at the time of the settlement.” The class seized on the government’s standing argument to urge the Supreme Court to drop its grant of review. Ted Frank said in his reply brief that the named plaintiffs had standing under the Spokeo test. If there was any doubt, Frank said, the Supreme Court should remand rather than dismiss as improvidently granted.

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