Theodore H. Frank filed an objection to the settlement, saying it provided members of the class with “no money, no alteration of the defendant’s allegedly injurious conduct, not even coupons.”
Mr. Frank argued his own case on Wednesday, a rarity in the Supreme Court, and he exhibited comprehensive knowledge of the law and an only occasionally halting style.
Much of the argument concerned whether paying the plaintiffs was practicable. A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the settlement, with all three judges agreeing that trying to pay compensation to the class would be inefficient, as the individual payouts would be about 4 cents.
Mr. Frank said few people submit claims in class-action settlements. Using typical response rates, he said, members of the class could have received $5 to $10 each.
Even a lottery, Mr. Frank said, would have been a better way to compensate the class.
Justice Kavanaugh seemed to agree. “Imperfect or strange as that may be,” he said, “it seems to me potentially less strange, or why isn’t it less strange than giving it to people who weren’t injured at all, who have affiliations with the counsel and who in many cases don’t need the money?”
Jeffrey A. Lamken, a lawyer for the plaintiffs in the case, Frank v. Gaos, No. 17-961, said the payments to charities were sensible and proper.
“It is not at all even remotely the case that this is not benefiting the class,” he said. The programs supported by the grants, he said, were “targeted precisely to the type of injury and precisely the type of problem, privacy invasion, that that class is subjected to.”
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