SAN JOSE - A federal judge has signed off on a $62 million deal to end a class action lawsuit over Google's practices of tracking users' locations, even though objectors have claimed the deal would only result in the bulk of the money going to left-wing political organizations and the lawyers who brought the suit, and none to be paid to the people who allegedly were harmed by Google.
The lawsuit accused Google of misleading users into believing they had the ability to use the settings on their devices to turn off the ability of Google to track them geographically. However, the lawsuit, which was based on journalistic investigations, asserted Google continued to track their devices without their knowledge.
U.S. District Judge Edward J. Davila
| cand.uscourts.gov
The lawsuit was lodged on behalf of named plaintiffs Napoleon Patacsil, Michael Childs and Noe Gamboa by attorneys from the firms of Ahdoot & Wolfson PC, of Burbank; and Lieff Cabraser Heimann & Bernstein, of San Francisco and New York.
After years of proceedings before Judge Davila, Google and the plaintiffs announced they had reached a settlement to end the litigation in March.
Judge Davila granted the deal preliminary approval a few weeks later.
Under the deal, Google agreed to make changes to its location history and user tracking practices and policies, allegedly to satisfy the concerns spelled out in the lawsuit. The company further agreed to pay $62 million into a so-called non-reversionary fund, meaning none of the money could revert back to Google.
However, unlike other privacy class action settlements, none of the money would be paid to Google users who allegedly were harmed by the practices. Rather, all of the money would go to either pay lawyers, cover the costs of the settlement or to help a series of about two dozen non-profit entities allegedly help consumers enforce the portions of the settlement addressing privacy rights.
Such an arrangement, known legally as "cy pres" - Latin for, "as near as possible" - typically steers money to charities or non-profit organizations, in the name of those harmed.
Such arrangements, however, have also come under increased scrutiny in recent years, and have become the target of objectors, challenging such settlements as little more than backscratching deals designed to give trial lawyers a result to present to judges to justify multi-million dollar fee requests, when they supposedly can't secure significant money to be paid to class members directly.
Under the deal, attorneys are slated to receive $18.6 million in attorney fees, or one-third of the settlement.
Frank has built a reputation for decades, objecting to class action settlements, most of which greatly benefit trial lawyers, while providing little relative relief for class members. According to his bio, his work has generated "tens of millions of dollars for consumers and other plaintiffs." The American Lawyer Litigation Daily has called Frank “the indefatigable scourge of underwhelming class action settlements.”
In this instance, Frank filed the objections on behalf of named objectors John Andren, Matthew Lilley and Joseph S. St. John.
The objectors asserted the reliance on cy pres awards could not be justified. They noted the non-profit organizations to which the funds were scheduled to be paid under the deal are little more than left-wing political policy organizations, whose primary objectives are to push for left-wing political causes, such as "racial justice" or promoting abortions.
They noted three such left-wing organizations, in particular - the American Civil Liberties Union; online civil liberties and "justice" organization, the Electronic Frontier Foundation; and environmental justice organization, the Rose Foundation - are slated to collectively receive more than $19.3 million under the settlement.
The objectors assert millions of likely class members whose locations were allegedly tracked by Google would be "shocked" to learn that money supposedly obtained in their name would now be turned over to political activist organizations advocating on behalf of causes with which they may strongly disagree, with the blessing of the court.
"Plaintiffs attempt to gloss over the impropriety of many of the proposed cy pres recipients by claiming that they merely 'publicly espouse an interest in promoting racial, social, and environmental justice,' when, in fact, several of the proposals would use the funds to unfairly discriminate against Asian and Caucasian individuals on the basis of their race; would support organizations with deep and well-documented anti-Semitism; and would support increasing the number of abortions," the objectors wrote.
"... Plaintiffs' claim that the proposed cy pres will benefit the class overlooks not only the deeply troubling nature of the organizations but also that many of the proposals for using the cy pres money are not targeted to benefit the class of Google users."
While plaintiffs claimed the cy pres was necessary to ensure class members could benefit indirectly from the settlement, Frank and the objectors said the money should instead be divided up among Google users through a class action claims process.
Since the settlement does not provide any direct relief for class members, Frank and the objectors asserted the lawyers who secured the deal also should receive nothing from it, either.
Judge Davila, however, disagreed.
The judge said he believed requiring the plaintiffs and settlement administrators to create a claims system and process potentially millions of individual claims would be less beneficial than turning the money over to the non-profit organizations identified in the settlement.
He asserted the class likely included 247 million potential class members, meaning they would receive about 25 cents each from the $62 million fund.
The judge further said he believed the non-profits receiving the money would "use their portion of the Settlement Fund solely to fund their efforts to advocate for the protection of data privacy, as well as enhancing public knowledge of internet data privacy issues."
"The Court finds that cy pres recipients will appropriately use the Settlement Fund to further their advocacy for data privacy nationwide such that the Settlement Class will ultimately enjoy greater data privacy protections as a result."
The judge further approved the plaintiffs' lawyers' request for $18.6 million in fees.
In statements posted to X.com, formerly known as Twitter, Frank vowed to appeal.
"Attorneys get $19M. Class gets zero. Variety of largely left-leaning nonprofits (and no right-leaning nonprofits) get $42M: ACLU gets $7M to promote abortion. Rose Foundation gets a $6M slush fund to give grants prioritizing 'BIPOC' communities. Millions to lawyers' alma maters (who already had billions of dollars of endowments,)" Frank said on X.
"... We had a settlement before this judge involving Google and cy pres that we successfully took to the Supreme Court. Class ended up with $23M instead of zero. Guess we're going back to SCOTUS if (the U.S. Ninth Circuit Court of Appeals) doesn't fix its idiosyncratic precedent approving of this abuse."