Google Cookie Class Action Settlement Half-Baked, Appellate Court Finds

(August 9, 2019) A class settlement with Google Inc. that would pay a couple million dollars to class counsel and a small contribution to privacy organizations was rejected by the Third Circuit Court of Appeals.

“The vista view of this case is not pretty,” the court said in its opinion sending the case back to the district court for further consideration and fact finding.

The class-action case stems from the disclosure in 2012 that Google’s Doubleclick.net cookies were bypassing Safari and Internet Explorer user privacy settings and tracking internet-user information. Google previously settled Federal Trade Commission and state attorneys general lawsuits by agreeing to pay $39.5 million in fines and to cease the practice.

The appellate court noted the current case involved “an internet behemoth with unprecedented tools for monitoring private conduct [who] told millions of Americans it would not track their personal browser history, and then did so anyway to profit from the data.” Under the settlement, Google promised to pay a total of $5.5 million of which a couple million dollars would go to class counsel, a small incentive payment to the named class representatives, and the remainder to organizations it was already donating to otherwise.

While making payments to data privacy organizations may be an appropriate method to award damages, the appellate court questioned how the organizations were chosen, especially in light of the pre-existing associations between the recipients and class counsel and the fact that Google regularly contributed to the organizations. At the very least, the opinion said, the parties may want “to involve class members or a neutral participant in the selection of recipients to ward off any appearance of impropriety.”

The appellate court also questioned the district court for allowing the settlement to bar class members, which could cover “tens if not hundreds of millions of Americans,” from pursuing their own claims.

In Re: Google Inc. Cookie Placement Consumer Privacy Litigation, Third Cir. No. 17-1480, issued August 6, 2019.