Cy Pres Settlements Upstream

Adap Liptak of the NYTimes has a piece When Lawyers Cut Their Clients Out of the Deal about a cy pres settlement with Facebook.  In this settlement (approved by the 9th Circuit) the lawyers got $2.3 million and the clients got a cy pres contribution, apparently $6.5 million to a foundation over which Facebook has some control according to the article.  The cy pres recipient is something called the Digital Trust Foundation.  A quick google search came up with a bunch of references to the Facebook settlement but no website for this foundation. 

The Ninth Circuit affirmed the settlement and denied rehearing en banc, with a dissent on rehearing en banc, making this a possible Supeme Court cert grant.  (A cert petition was filed on June 26, 2013). 

There is a lot of scholarship on the topic of how much lawyers should be paid relative to class members as well as articles critizing cy pres settlements.  Some links to this work are below. The problem is this.  We regulate entities like Facebook largely by litigation.  In the absence of the class action, there would be little or no enforcement of the consumer protection laws.  But the class action litigation needs to be funded, and it is funded out of lawyers percentage of the total fund, usually the total fund from a settlement because class actions are almost never litigated.  Its very hard to certify a class action, so class actions are often certified for settlement only.  The incentive of the lawyers, fearing no class certification or realistic possibility of actually litigating, is to settle.  The incentives for defendants, wanting to get the litigation off their books, is to settle cheap.  The answer to this problem in my view is to allow classes to be litigated, not to tighten the certification standards further.

If the settlement will deter future misconduct, even if the money doesn't go directly to the class members, there is still a lot of societal value there.  But is $8.8 million enough to deter Facebook? Does it have any relationship to the potential value of this lawsuit?  That is, what is the value of the claims multiplied by the probability of success? 

In my own work, I've suggested that cy pres settlements are not necessarily bad, but that certainly doesn't mean they are always good.  Class members should just be polled in determining where cy pres settlements should go.  The argument that class members will not appreciate the putative $1 (I think I saw it was $1.12) they would get in a settlement like this one is reasonable.  But that doesn't make a settlement like this one okay.  Especially in a settlement involving facebook users, who presumably are all connected via facebook, there is no reason why absent class members cannot be polled. Do they "like" this foundation?  what would they prefer?   Might I suggest Public Citizen as a recipient?   

This case might be a fine vehicle for the Supreme Court to consider cy pres settlements. Given how few cases the Court decides, how few class actions actually are filed and litigated (less than 1% of the federal docket) its not clear to me that this is the best use of its time.  That said, if the Court does grant cert, it would be wise to consider both the overall benefits and costs of cy pres to consumers and society more generally, not merely the fact that the lawyers got a lot of money here.  This is a story of more money than sense. 

ADL

Some links:

Cert Petition

Center for Class Action Fairness

Lahav, Two Views of the Class Action (advocating polling)

Gilles & Friedman, Exploding the Class Action Agency Costs Myth (SSRN)

Fitzpatrick, Do Class Action Lawyers Make Too Little? (SSRN) 

Redish et. al., Cy Pres Relief and the Pathologies of the Modern Class Action (SSRN)