The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:
I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.
[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown "Class Defense"] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.
Careful about Facebooking during your injury suit, okay? Another costly bit of blab during the same case was to announce on the social media site that the couple hadn’t gone through with a divorce yet because of the case; the wife had won $2 million on a loss-of-consortium claim, which the judge proceeded to toss after the Facebook posts were revealed, ordering a new trial on damages. (The original damage award had been $5.4 million.) In the suit against a subsidiary of Quest Diagnostics, the husband claimed he sustained an ongoing “catastrophic,” “debilitating” injury to an arm nerve during a botched blood test. [Fulton County Daily Report, Georgia] More on litigants’ social media bloopers: Ed Gerecki and Dave Walz, Drug and Device Law (court levies sanctions after lawyer instructs client to “clean up” various embarrassing postings from Facebook including “I [heart] hot moms” t-shirt.)
“Wayne County, Mich. Judge Kathleen MacDonald slapped a Dearborn man with an injunction ordering him to take down his Facebook comments critical of a class-action settlement of a case against McDonald’s for selling non-halal meat.” [Daniel Fisher, Forbes; Paul Alan Levy, Public Citizen; Ted Frank, PoL] More: Blue Dog Thoughts.
“Facebook and Twitter have landed several Britons in court and even jail recently. Critics decry the trend as a worrisome overreaction.” [L.A. Times]
Many politically active people “like” candidates and causes to which they are in fact ardently opposed, since following the opposition’s Facebook stream can be a smart way to keep tabs on what it’s doing. But as a result Facebook keeps feeding us sponsored posts — often very misleading ones — that follow the formula “[my friend] likes [candidate/cause X]“.
By the way, if you’re on Facebook, you really should be liking Overlawyered, here. That’s true even if you can’t stand the site and just want to keep tabs on its nefarious ways.
“Paul Ceglia, who sued Facebook founder Mark Zuckerberg in 2010, claiming he was promised a 50% share in the social media company, was arrested on Friday. His alleged crime: doctoring, fabricating and destroying evidence to support his claims. The feds described his lawsuit as a multi-billion dollar scheme to defraud Facebook and Mr. Zuckerberg.” [Joe Palazzolo, WSJ Law Blog, Donna Tam, CNet]
From the summary: “Judge throws out multibillion dollar suit arising from obscure CD-and-audiotape rental law, saying there’s no evidence anyone was actually harmed by Pandora’s integration with Facebook two years ago.”
The suit [by class action firm Edelson McGuire] claimed violations of an obscure pre-Internet era Michigan law, which says a company “renting or lending” sound recordings may not disclose details about customers’ transactions without their written permission. Because it specifies $5,000 penalty per violation, the possible damages could total in the tens of billions — far more than Pandora’s actual $1.8 billion market capitalization.
The judge, however, said the law did not create a right of action on behalf of unharmed consumers, and also was unpersuaded that the music-streaming service was “renting or lending” songs. [Declan McCullagh, CNet]
…is now approaching 1,000 “likes.” Won’t you help push it over by “liking” it now, recommending it to friends, and sharing a few posts?
Jon Hyman finds the National Labor Relations Board’s policy on social media in the workplace a “bungled mess.” More: Reed Smith.