Norman French Gets You Nothing

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Who the heck is Norman French? OK, that’s not a real person – although there probably are real Norman Frenches out there – but it’s not a person in the context I was considering last week. Still, I bet there are at least some people wondering who he is in light of an astonishing ruling from the U.S. Court of Appeals for the Ninth Circuit.

It came in a case supposedly involving a class of 129 million people who, in light of the ruling, won their case and received absolutely nothing. This was not a disappointment to them, however, because I’m pretty sure almost none of them knew they’d been injured or involved in litigation.

But I’m getting ahead of myself.

I discovered Norman French in a ruling called In Re Google Referrer Header Privacy Litigation, which is amazing on many levels.

A settlement was approved by the court using the cy pres doctrine – “which takes its name from the Norman French expression cy pres comme possible (or ‘as near as possible’).”

Not just regular French, but French used by guys named Norman. It’s a fascinating tidbit.

Or maybe it is a guy named Norman French. I don’t really know.

I remember cy pres from law school. The context there was in wills and trusts cases where it was impossible or really inconvenient to do what the dead guy wanted, so the court got to invent something that was what the deceased might have wanted had he been around to have some sense talked into him/her.

“Wilbur’s cat, being unable to pilot an aircraft, will instead be placed with an aviator’s family who will be compensated with the proceeds from the sale of the family Boeing.”

Stuff like that.

Maybe it’s common, but I’ve never seen cy pres used to settle a class action. Yet here was a court using the cy pres doctrine to determine that a class of 129 million people not only couldn’t possibly share in their own settlement but also would have wanted the settlement to go to someone else.

But I’m getting ahead of myself again. There are so many mind-boggling concepts here that I’m having trouble focusing. Let’s start from the beginning.

Some lawyers filed a class action against Google for collecting search term information and passing it on to third parties. In other words, a lawsuit was filed on behalf of millions of people who had no idea they were plaintiffs and had no idea anything had been done to them for which they could sue.

The case was then settled for $8.5 million.

That’s a lot of money. Or is it?

If you go on Google and Google “Google profit,” you’ll see that the last reported net income for the company was $16.35 billion.

Google executives at this moment are searching office couches for the spare change to pay for this settlement.

Of that settlement, $1.075 million is going to “costs” and incentive awards and $2.125 million is going to attorney fees. They’re getting those fees because, on page seven of the ruling, we learn that the trial court said the “fees were commensurate with the benefit to the class.”

On page nine of the ruling, we’re told that “the district court found that the amount of the (settlement) fund was appropriate given the shakiness of the plaintiffs’ claims.”

It was a lousy case, so let’s give the lawyers a couple of million for filing it.

You need to incentivize lawyers who avoid trying cases while getting nothing for their clients.

Why do I say they got nothing? Because the lawyers and the court decided that those millions of oblivious clients really wanted – in cy pres fashion – to donate the money to a half dozen groups who study and promote internet privacy protection.

Well, maybe they would have wanted this if they knew about it.

The court’s rationale is that the settlement amounts to 4 cents per plaintiff and it wouldn’t be feasible to distribute that to 129 million people.

Really?

The only explanation I can come up for this is that the judges and lawyers involved have never heard of computers and/or a large internet search company that sells stuff and can track billions of clicks. It seems like it would be pretty easy to give everyone a 4-cent discount on merchandise (right after raising prices by 4 cents).

In fairness, I have to point out that there was another benefit for the plaintiff class: Google also agreed to “provide information on its website disclosing how users’ search terms are shared with third parties.”

Yes, more stuff none of us are going to read.

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