Ted Frank to argue cy pres at the Supreme Court

Congratulations to Ted Frank, profiled Oct. 15 by Adam Liptak at the New York Times for arguing his own case (Frank v. Gaos, on class action settlements) before the U.S. Supreme Court. The article does not mention one of Ted’s most salient public roles, namely co-blogging for years as my most inspired recruit at Overlawyered and at Point of Law.

Frank v. Gaos is a challenge to the cy pres elements of a privacy class action against Google [Federalist Society podcast with Ted, NLJ via CEI]. Ilya Shapiro at Cato (which has filed an amicus brief) describes some of the factual background:

Attorneys’ fees of $2.125 million were awarded out of the settlement fund, amounting to 25 percent of the fund and more than double the amount estimated based on class counsel’s actual hours worked.

But no class members other than the named plaintiffs received any money! Instead, the remainder of the settlement fund was awarded to six organizations that “promote public awareness and education, and/or…support research, development, and initiatives, related to protecting privacy on the Internet.” Three of the recipients were alma maters of class counsel.

This diversion of settlement money from the victims to causes chosen by the lawyers is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

James Beck at Drug and Device Law writes that the settlement in question “features just about everything we don’t like about cy pres.” Quoting:

  • Excessive counsel fees – class counsel stands to walk away with fully 38% of the settlement as fees. 869 F.3d at 747.
  • Lack of classwide recovery – the court declared the entire settlement “non-distributable” because, even without opposition, neither the class members nor their damages could be determined. Id. at 742.
  • Excessive cy pres – nothing is more excessive than 100% ? six uninjured charities took 100% of what class counsel left behind, and the 129 million supposedly injured class members took nothing. Id. at 743.
  • Rampant conflict of interest? Three of the charities were law schools – and they all had ties to counsel in the case.
    Litigation industry self-perpetuation – cy pres recipients were expected solicit more lawsuits by “educat[ing]” the public and “publiciz[ing]” privacy issues. Id. at 746-47.

Oral argument before the Court will be held Oct. 31.

Great case, if only she’d been in the smashed-up car

“The defense said the case, which involved substantial medical damages and a plaintiff who miscarried after the collision, would have been a great plaintiff’s case — if she had actually been in the car she claimed was wrecked.” Instead, after “defense testimony showed that she swapped out the scarcely damaged car before police arrived with another that had been wrecked years earlier” she “walked out of a DeKalb County courtroom with nothing.” [Atlanta; Greg Land, Daily Report Online]

October 17 roundup

  • Antitrust legislation once targeted the unstoppable rise of chain stores A&P and Sears, both now bankrupt [my new Cato post, quoting Joe Nocera, Bloomberg (“The next time you hear somebody say that the dominance of Walmart or Amazon or Facebook can never end, think about Sears. It can — and it probably will.”)]
  • When you wish upon a suit: visitor grabs Disney cast member and screams at her after she asks him to move out of parade route, later pleads no contest to disorderly conduct, now wants $15,000 [Gabrielle Russon, Orlando Sentinel]
  • Tomorrow (Thurs.) at noon Eastern, watch a Cato panel on “Coercive Plea Bargaining” with Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the NACDL, and Somil Trivedi of the ACLU, moderated by Cato’s Clark Neily. Could you resist taking a plea bargain if faced with a false accusation? [Marc John Randazza, ABA Journal]
  • “I am a Democrat. But this may be the dumbest thing I have seen…. the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote.” [Howard Wasserman on suit by Sen. Jeff Merkley (D-Ore.) asking court to, among other things, order delay of Senate vote on Kavanaugh nomination]
  • An ideological screen for CLE? Following demands from tribal attorneys, Minnesota bar authorities order shelving of continuing legal education class on Indian Child Welfare Act developments taught by attorney Mark Fiddler, who often handles ICWA cases on side adverse to tribes [Timothy Sandefur]
  • Left-leaning Florida Supreme Court nixes plan to let incumbent Gov. Rick Scott fill vacancies, entrenching its leftward lean for a while at least depending on outcome of governor’s race [Spectrum News 9]

“Packing the Supreme Court Is a Terrible Idea”

“Democrats paid a political cost for decades after F.D.R. tried it in the 1930s. They probably would again.” [Julian E. Zelizer, New York Times]

Some writings on the left applauding or backing the idea: Ian Samuel, Guardian; E.J. Dionne, Washington Post; Mehdi Hasan/The Intercept; Jed Shugerman; Michael Klarman, Take Care Blog. Charlie Savage at the New York Times rounds up more pro and con. And as Josh Blackman noted in April 2017, similar ideas were already floating around then; see also Mark Tushnet later last year.

Critics of the idea: Megan McArdle (recalling “Impeach Earl Warren” billboards), Charles Cooke (“fringe fantasy”), Adam White, Ilya Somin. A constitutional amendment to prevent packing? [Jim Lindgren, Ilya Somin]

Labor roundup

  • Great moments in public employee unionism, cont’d: D.C. Metro track inspector charged after derailment with falsifying records wins reinstatement and back pay in arbitration [Max Smith, WTOP, earlier here (similar after fatal smoke incident) and here] Could be permanent? “Bus drivers’ union threatens strike over driverless buses” [Jason Aubry, WCMH (Columbus, Ohio)]
  • Letting guests skip housekeeping = grievance: “Union Threatens Strike over Marriott’s Green Initiative” [Darrell VanDeusen, Kollman & Saucier]
  • Stephen Bainbridge series on what’s wrong with Sen. Elizabeth Warren’s proposals [earlier, etc.] continues with a post on labor co-determination and employee involvement in corporate governance;
  • “Public Sector Unions Win Big at the California Supreme Court: California citizens must now meet and confer with union bosses before qualifying any compensation-related initiatives for the ballot.” [Steven Greenhut, Reason]
  • My Frederick News Post letter to the editor opposing Question D (mandatory binding arbitration and collective bargaining for career firefighters). More on mandatory binding arbitration in the public sector: Ivan Osorio et al on California, for Cato (see pp. 12 et seq.); Steve Eide, Public Sector Inc., 2013.
  • “Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union’s conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That ‘makes no sense.’ The union never apologized or said it made a mistake. Its message to the workers was, ‘We can do this the easy way, or we can do this the hard way.'” [John Kenneth Ross, IJ “Short Circuit”]

U.K.: “Pizzas must shrink or lose their toppings under Government anti-obesity plan”

From the U.K. — and a Conservative government, at that. “Pizzas must shrink or lose their toppings under Government plans to cap the calories in thousands of meals sold in restaurants and supermarkets. Pies, ready meals and sandwiches will also be subject to the new proposed calorie limits…. Under the draft proposals, a standard pizza for one should contain no more than 928 calories – far less than many sold by takeaways, restaurants and shops.” For the moment the restrictions would not be mandatory, but in a parallel initiative concerning sweet foods failures to meet the targets “have prompted warnings from ministers that tougher steps may be taken.”

The best place to fight coercive paternalism is on principle, before it gets this far. [Laura Donnelly, Telegraph (U.K.)]

18,000 Facebook shares later: a tale of legal misinformation

How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:

screen capture of Facebook post
Let’s take a look at its errors, or at least the first four biggies:

1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”

2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*

3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.

4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.

And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.

Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.

* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.

Banking and finance roundup

The Fourth Amendment and food trucks

Chicago has enacted a law requiring food trucks to install GPS trackers reporting their location at all times, and the Fourth Amendment might have something to say about that [Ilya Shapiro and Aaron Barnes on Cato brief in Illinois Supreme Court case of LMP Services v. Chicago; Timothy Snowball, Pacific Legal Foundation; Foodservice Equipment Reports]

Plus: “The Fourth Amendment in the Digital Age,” conversation with Julian Sanchez, Matthew Feeney, and Caleb Brown for the Cato Daily Podcast.