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Ninth Circuit Denies Rehearing in Facebook Settlement Case


Science & Tech  (tags: society, abuse, americans, culture, ethics, government, law, technology, NewTechnology, internet )

JL
- 655 days ago - pubcit.typepad.com
The U.S. Court of Appeals for the Ninth Circuit today refused to reconsider its opinion last fall upholding the settlement of a class action asserting claims based on Facebook's "Beacon" program, under which Facebook posted information about purchases &



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JL A. (276)
Saturday March 2, 2013, 9:07 pm
Tuesday, February 26, 2013
Ninth Circuit Denies Rehearing in Facebook Settlement Case

The U.S. Court of Appeals for the Ninth Circuit today refused to reconsider its opinion last fall upholding the settlement of a class action asserting claims based on Facebook's "Beacon" program, under which Facebook posted information about purchases and video rentals Facebook users made from companies that participated in the program. The settlement provides for no payments to members of the class other than “incentive” payments to the class representatives. Instead, it provides for a so-called "cy pres" payment of several million dollars to a newly created foundation that supposedly will be dedicated to educating internet users about protecting their privacy. The court of appeals upheld the settlement in an opinion issued last September, rejecting objecting class members' claims that the cy pres payment to the new foundation would not benefit them.

Today's decision denies a request that the court rehear the case "en banc"—that is, with the participation of many more of the court’s judges than the three-judge panel that originally decided the case by a 2-1 vote. Six active judges of the court filed a dissent from the denial of rehearing; Senior Judge Andrew Kleinfeld, the dissenter on the original panel, also supported granting rehearing. However, because there are 28 active judges on the Ninth Circuit, 15 votes are normally needed to obtain rehearing.

The dissent from the denial of rehearing was written by Judge Milan Smith and joined by the court’s Chief Judge, Alex Kozinski, as well as Judges O’Scannlain, Bybee, Bea, and Ikuta. Although short, it is punchy and to the point. It observes that the decision to uphold the settlement is inconsistent with previous decisions of the court requiring that organizations receiving cy pres distributions have a track record of service supporting interests of the class. The newly formed foundation in this case, by contrast, “has no record of service,” but is “simply a bespoke creation of this settlement” with an extremely vague mission statement that “says absolutely nothing” about whether class members will truly benefit from this settlement; it simply promises that [the foundation] will do some ‘stuff’ regarding some more ‘critical stuff.’”

The dissent also points out that the foundation’s claimed mission is unrelated to the purposes of the laws on which the claims in the case were based. The lawsuit claimed that Facebook had violated its users’ privacy rights by providing unauthorized access to information about them, but the foundation’s stated purpose is to provide education about how privacy can be protected through “user control.” As the dissent points out, the claims in the case “have nothing to do with users’ lack of ‘education’ or ‘control,’” but “relate to misconduct by Internet companies that wrongfully exposes private information in ways that even educated users cannot anticipate, prevent, or direct.”

The court’s denial of rehearing reflects a significant retreat from the Ninth Circuit’s commitment to protecting class members against cy pres settlements that fail to offer them meaningful relief. The judges who would have rejected the settlement come exclusively from relatively conservative Republican appointees on a court that now has a majority of Democratic appointees. That lineup suggests that protection of class members has become something of a partisan issue on the court—ironically, one where protection of consumers is of more concern to the right than to the left.
Perhaps there is a perception that to oppose these settlements is to oppose class actions—which would be an unfortunate idea, to say the least.

Posted by Scott Nelson on Tuesday, February 26, 2013 at 02:35 PM
 

Jason S. (57)
Saturday March 2, 2013, 9:26 pm
Good posting, thanks
 

Past Member (0)
Sunday March 3, 2013, 3:36 am
noted
 

JL A. (276)
Sunday March 3, 2013, 7:46 am
You are welcome Jason
 

Gloria picchetti (300)
Sunday March 3, 2013, 8:46 am
Very interesting. I guess FB won't get to be the Big Brother it wants to be.
 

Marlene Dinkins (245)
Sunday March 3, 2013, 8:50 am
notato grazie J.L. very intersting grazie per il article!!!!!
 

Suheyla C. (226)
Sunday March 3, 2013, 10:40 am
noted Thanks
 

Kit B. (276)
Sunday March 3, 2013, 10:55 am

Interesting - I was sent a note saying that my name had been included in this law suit. I guess I should have completed the paper work. Who ever expects today's courts to stand up for the people and against any corporate entity? Not me.
 

JL A. (276)
Sunday March 3, 2013, 11:32 am
You are welcome Marlene and Suheyla.
You cannot currently send a star to Gloria because you have done so within the last day.
You cannot currently send a star to Kit because you have done so within the last day.
 

Birgit W. (152)
Sunday March 3, 2013, 2:47 pm
Noted. Thanks
 

John B. (122)
Sunday March 3, 2013, 3:27 pm
Thanks J.L. for the post. The denial descent was a to "the point"! Kudo to the judges for putting the denila in such plain language. Read and noted.
 

JL A. (276)
Sunday March 3, 2013, 4:02 pm
You are welcome Birgit and John. You cannot currently send a star to John because you have done so within the last day.
 

Winn Adams (203)
Sunday March 3, 2013, 5:28 pm
Thanks
 

JL A. (276)
Sunday March 3, 2013, 6:05 pm
You are welcome Winn
 

Lloyd H. (46)
Monday March 4, 2013, 7:53 am
Perhaps it is just me, as I do not Faceplant am not a Twitt, and am really tired of the Children of the Phone being loud, ignorant and manner-less in public. Some of the conversations I have been forced to hear on the bus pretty much indicate no regard for personal privacy. This ruling sounds like 'no you can not profit from your own stupiity and failure to read the contract or having common sense' than anything else. If you do not want ot feed the Corporations perhaps you should stop feeding the Corporations. How many of you feed the Corproations by liking them? There is no reason, if You do not use the highest security and privacy settings possible, to consider FaceBook anything other than standing on a soap box in public and yelling. And unless you can absolutely guarentee that no one you tweet will re-tweet without your permission Twitter is the same thing. Like all technology just because you can do something does not mean you should.
 

Carla van der Meer (506)
Monday March 4, 2013, 12:34 pm
Noted.
 
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