A federal court in California approved a $62 million settlement recently in a class action alleging that Google violated the privacy rights of hundreds of millions of users by tracking their location and storing that information even though users had disabled the relevant account setting. As a Google user, you might be asking how to receive your portion of that fund.
The answer is that you won’t see a cent of it. The settlement instead will pay the entire fund (after the lawyers’ fees and costs are paid) to groups engaged in extreme left-wing advocacy work or work that is not targeted to benefit the class of Google users.
Courts have allowed this practice, known as cy pres, to proliferate despite ever easier and more inexpensive ways of paying small amounts to individual class members. This is one of the many ways that our legal system funds the Left, but it is even more insidious because it takes money that belongs to individual people, without their consent, and directs it to organizations and causes that are contrary to their values and interests.
In the Google case, for example, the parties asked the court to award the highest dollar amounts, totaling over $17.5 million, to the American Civil Liberties Union; the Electronic Frontier Foundation, whose proposal emphasized its work supporting abortion access; and the Rose Foundation, whose proposal highlighted its work on “equity and social justice” and stated its “preference” for benefiting “underserved and BIPOC communities.” It won’t surprise you that the lawyers and executives involved in the case have a number of conflicts with the recipients, including long-standing co-counsel and pro bono relationships, alumni connections, board seats, and more.
The Supreme Court has expressed concern with the practice of cy pres, and it appeared ready to rule on the issue in 2019 before ultimately sending the relevant case back to the lower courts on standing grounds. Since then, the Supreme Court has declined to hear cases involving the practice.
The result is that the U.S. Court of Appeals for the 9th Circuit’s legal standard, which generally allows such settlements despite acknowledged concerns, has emboldened liberal plaintiffs’ lawyers to turn increasingly to cy pres and direct the funds to ideologically extreme recipients — even when it’s feasible to pay individual class members through a claims process.
In many cases, class members never learn about the settlement, and if they do, they might not know they can ask the court to reject it. Here, three class members, represented pro bono by Hamilton Lincoln Law Institute, filed an objection with the court. The objection argued that the proposed settlement does not meet the relevant legal standards and is unconstitutional, and it highlights how the proposed recipients are not tailored to help the class but instead engage in extremely controversial work that a large portion of the nationwide class of Google users does not support.
When courts reject cy pres settlements, the parties often find a way to distribute the money directly to individual class members through a claims process, sending funds cheaply and easily through Venmo, PayPal, and other electronic payment methods.
The Google settlement is so extreme that one might hope the 9th Circuit will reject it if there is an appeal. But what the legal system really needs is for the Supreme Court to impose stricter protections against the use of cy pres so that class members are not forced to support organizations at odds with their values and interests. Until then, left-wing plaintiffs’ lawyers, aided by the acquiescence of left-leaning tech company defendants and their lawyers, will continue to have free rein spending the damages funds that rightfully belong to injured consumers.