Republican attorneys general from 20 states have joined the effort to pull the plug on a $62 million deal to settle a privacy class action against Google, as they and others assert the settlement amounts to a scheme to pay lawyers and transfer millions of dollars from the tech giant to left-wing groups to further their political and social agendas.
On Sept. 18, the attorneys general filed a brief in the San Francisco-based U.S. Ninth Circuit Court of Appeals in support of an appeal seeking to strike down a lower court judge's approval of the settlement in the class action lawsuit over Google's location tracking practices.
The settlement, the attorneys general say, is little more than an "excuse for attorneys to pick their favorite organizations and to divert damages from consumers and class members to those organizations."
"Identified on the docket are dozens of organizations receiving tens of millions of dollars - many of which have conflicts of interest with the attorneys or have missions totally separate from the harms alleged here," the attorneys general wrote in their brief.
"Many of those organizations take partisan and controversial views on issues relating to promoting racial discrimination, abortion, or transgenderism that have little to do with the underlying location harms. There can be no justification for diverting so much money that should be returned to consumers here."
The brief, drafted by Eric Wessan, solicitor general of the state of Iowa, on behalf of Iowa Attorney General Brenna Bird, was joined by the attorneys general of the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia and West Virginia.
The brief comes in support of the appeal filed by prominent class action objector attorney Theodore "Ted" Frank and his colleague Anna St. John, of the Hamilton Lincoln Law Center, of Washington, D.C. That appeal was brough on behalf of a group of individuals objecting to the Google class action settlement.
That settlement secured preliminary approval from U.S. District Judge Edward J. Davila in San Jose federal court earlier this spring. Davila was appointed to the federal bench in 2011 by former President Barack Obama.
The settlement is intended to resolve a lawsuit accusing Google of misleading users into believing that had the ability to adjust settings on their devices to block Google from tracking them geographically. However, the lawsuit asserted Google continued to track their devices without their knowledge, even after seeming to deny Google the ability to do so.
The lawsuit was filed 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.
The lawsuit remained pending in the California Northern District federal court for years, until the settlement was announced in March.
Under the deal, Google agreed to make changes to its location history and user tracking practices and policies, allegedly to satisfy the concerns raised in the lawsuit. The company also agreed to pay $62 million.
However, unlike other privacy class action settlements, none of the money shelled out by Google would be paid to Google users who allegedly were harmed by the practices. Rather, all of the money would either go to the lawyers who filed the lawsuits or to a group of about two dozen non-profit organizations who the lawyers said would help consumers enforce the portions of the settlement addressing privacy rights.
Such an arrangement is known in the courts as "cy pres," which is Latin for "as near as possible." It has typically been employed when courts find it is impossible to make a defednant reimburse the people who allegedly were actually harmed by a defendant's practices, and instead redirects the money to charities or non-profit organizations, whose mission and actions could help address the alleged harm.
Such arrangements, however, have come under increased scrutiny in recent years, drawing objections from those who say such cy pres arrangements are 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 directly to class members.
Under the Google location tracking privacy deal, the plaintiffs' lawyers are slated to receive $18.6 million in fees, or about one-third of the total settlement.
Under the cy pres arrangement, Google would pay the bulk of the settlement funds to left-wing organizations, including the American Civil Liberties Union; online civil liberties and "justice" organization, the Electronic Frontier Foundation; and environmental justice organization, the Rose Foundation.
Those three groups would be the biggest individual beneficiaries from the settlement, after trial lawyers. The ACLU and EFF would each get 14% of the settlement funds, while the Rose Foundation would receive 13%.
All of the objectors say they would be included as members of the class supposedly represented by the Ahdoot & Wolfson and Lieff Cabraser.
Both before Judge Davila and in a brief filed before the Ninth Circuit court, they argued the settlement should be rejected because it serves only to enrich lawyers and to fund social and political activities they and many other class members do not support.
They argued the plaintiffs' lawyers and Google should have tried harder to identify a way to distribute the bulk of the funds to Google users allegedly harmed by the company's location tracking practices.
They argued the settlement would "short-circuit" the rules used by courts to evaluate the fairness of class action settlements, which typically balances attorney fee requests or other payments to non-parties against the benefits delivered by the settlement to those actually harmed.
In rejecting the objection to the settlement, Davila said he agreed with plaintiffs that all class members would benefit indirectly from the deal, even if they never saw a penny from the settlement fund.
"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," Davila wrote in approving the settlement.
In their opening appeal brief filed Sept. 13, the objectors asserted allowing the Google location tracking settlement to stand would create an "absurd" result that would make the class action evaluation rules and protections "a nullity," which plaintiffs' lawyers could "evade... simply by allocating funds to the preferred nonprofits of defendants and class counsel and calling it cy pres."
In their filing, the objectors, like the state attorneys general, asserted the payments to the left-wing groups was improper, as it would amount to taking money from the class members and giving it to causes with which they disagree.
The objectors' brief noted proposals submitted by the organizations and posted on the settlement website "revealed that many of the organizations engage in highly controversial work, including work to support abortion access and 'DEI' (Diversity, Equity, and Inclusion) endeavors."
They noted the ACLU of Northern California said it intends to use the funds to further "privacy law work to include 'new and creative ways to utilize constitutional privacy law' to counter 'attacks on reproductive and LGBTQ rights' and 'build greater connection with racial justice, economic justice, and other issues.'"
They further noted a proposal from Georgetown University's Center on Privacy and Technology would use the funds to support two projects to boost efforts to unionize grocery store workers and to 'hold corporations accountable for discrimination in algorithmic decision making systems.'"
And another proposal from a group known as "Free Press" "has selectively focused on the deletion of location data for those visiting abortion clinics and declared its intent to 'advance racial justice' and 'empower grassroots groups led by people of color to set the agenda' ... before Congress and the Federal Trade Commission on controversial topics such as net neutraility and 'discriminatory algorithms.'"
They noted the Free Press group had run a campaign demanding that "Facebook censor legitimate criticism of violence associated with the Black Lives Matter protests."
The objectors further asserted the settlement represents a conflict of interest for the plaintiffs' attorneys and for Google, who would steer millions of Google's money to the colleges and universities from which the attorneys and many Google employees graduated, while also supporting the left-wing organizations that have received support, including pro bono legal services, from the plaintiffs' attorneys.
"... Plaintiffs' counsel was considered a 'potential collaboration' with the ACLU to again jointly pursue other litigation," the objectors wrote. "Indeed, one of the attorneys who appeared for the class acknowledged that he expected to join the board for one of the ACLU recipients."
In supporting the objectors' appeal, the state attorneys general agreed the deal represented merely a windfall for the plaintiffs' lawyers and for the left-wing groups.
If the appeals court agrees that it is "infeasible" for the parties and courts to decipher a way to pay Google users for the alleged violation of their privacy rights, then the attorneys general said the Ninth Circuit should power down the class action altogether and not simply approve a settlement to ensure lawyers get paid, while letting Google escape the litigation "at a discount."
"As repeat players in the class action process, Attorneys General can spot arrangements that reward attorneys for settlements that provide little or no meaningful value to class members," the attorneys general wrote. "And then those Attorneys General are well placed to register their objections. Such settlements harm consumers and undermine their faith in class action's ability to provide meaningful recovery."
Neither the plaintiffs' lawyers nor attorneys for the cy pres recipients have yet filed a response to the briefs from the objectors and the attorneys general.