High Court Blocks Google Settlement on Standing Issue

This photo shows signage outside the offices of Google in San Francisco with the San Francisco-Oakland Bay Bridge in the background on Oct. 31, 2018. (AP Photo/Michael Liedtke)

WASHINGTON (CN) – A privacy class action that Google settled for $8.5 million faced a Supreme Court clamp-down Wednesday, with the justices ruling 8-1 that there are too many questions about standing to move forward. 

Google established the fund in 2015 to resolve claims that it allowed third-party websites to access users’ search terms without permission.

Search terms are included in referrer headers, which identify the page containing the link that the user clicked on to request the webpage, and lead plaintiff Paloma Gaos said such information can identify users.

Initially the Supreme Court took up the case to resolve the fairness of a class action tool known as the cy pres settlement: an arrangement where entities deemed to benefit class indirectly take home most of the award.

The U.S. solicitor intervened in this case, however, to advise that the lower courts revisit whether Gaos and the other plaintiffs properly demonstrated standing.

Finding that supplemental briefing “raise[d] a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument,” the Supreme Court agreed to vacate the underlying judgment.

Justice Clarence Thomas dissented, saying the court should have instead ordered a full reversal.

“In short, because the class members here received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims, I would hold that the class action should not have been certified, and the settlement should not have been approved,” Thomas wrote.

Google opted to pay a cy pres settlement since the millions of users implicated by the privacy class action would receive only negligible return on any relief. Class members Theodore Frank and Melissa Ann Holyoak objected, however, on the basis that four of the six entities selected to receive more than $5 million had a conflict of interest.

The six entities were the Chicago-Kent College of Law Center for Information, Society, and Policy; the Stanford Law School Center for Internet and Society; the Berkman Center for Internet & Society at Harvard; the AARP Foundation; Carnegie-Mellon University and the World Privacy Forum.

Class attorney Michael Aschenbrener attended Chicago-Kent, and class attorney Kassra Nassiri attended Stanford and Harvard. Google donates to the Berkman Center, the Stanford Center, AARP and Chicago-Kent.

Frank and Holyoak’s challenge went to the Supreme Court after the Ninth Circuit rejected their objections in 2017, crediting the insistence by class counsel that they had no affiliation with the research centers.

Frank and Holyoak were represented by the Competitive Enterprise Institute, and Google was represented by Mayer Brown. The law firms Nassiri & Jung and MoloLamken represented Gaos and the other lead plaintiffs.

“Given how the case and supplemental briefing developed in the SCOTUS, I am not surprised by today’s ruling,” attorney Nassiri said in an email. “Of course we believe that the plaintiffs have standing and look forward to establishing that on remand. “

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