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Get Ready for a Frank Oral Argument

Citations

The National Law Journal cited director of litigation and the director of the Center for Class Action Fairness at the Competitive Enterprise Institute, Ted Frank, in its Supreme Court Brief on law.com for his upcoming Frank v. Gaos oral argument before the Supreme Court.

Theodore Frank has been firing shots at so-called “cy pres” settlements—an especially controversial component of some class actions—for more than a decade. On October 31, he will take his crusade all the way to the U.S. Supreme Court, lock, stock and barrel.

That is because Frank, director of the Center for Class Action Fairness at the Competitive Enterprise Institute, isn’t just the named petitioner in the case Frank v. Gaos. He will also argue for his first time before the high court, on his own behalf.

It’s an exceedingly rare happening at the Supreme Court, where detached, dispassionate advocacy is prized. Frank’s decision inevitably evokes the hoary, male-predominant axiom that “he who represents himself has a fool for a client.”

“I’m well aware of the famous aphorism,” Frank said in an interview Monday as he awaited the next round of briefing in the case, which could produce one of the most important class action rulings in years. “And I made sure I wasn't suffering from Dunning-Kruger syndrome.” That’s the phenomenon whereby low-ability people think they have much greater ability than they really do.

But as he thought about the case, he decided, “I should hire the person who has won the most cy pres cases in the appellate courts. That’s me.”

In this case, Frank objected to a class action against Google involving the privacy of users’ search queries. It settled for $8.5 million, but because of the huge number of Google users and more than $3 million in attorney fees, it was impractical to distribute the minimal awards. That’s where the cy pres settlement came in, distributing the remaining $5 million or so to institutions that work toward protection of privacy on the Internet.

“Cy pres” is a shortened Old French expression that means, roughly, “as near as possible,” signifying a settlement that approximates what the class action was about, even though class members don’t receive anything directly.

Read the full piece here