$5.5M Google Cookie Class Action Settlement Tossed by 3rd Circ.

A $5.5 million settlement resolving allegations that Google circumvented users’ privacy to secretly track their online activity has been rejected the Third Circuit Court of Appeals.

Lead plaintiffs accused Google of bypassing privacy settings on Internet Explorer and Safari browsers in a class action lawsuit filed in 2012.

The Google class action alleged that “cookies,” a way that software companies track users’ activities online, were put into place when users clicked on a certain websites. Web browsers can be set to block cookies, but Google reportedly found a way around the blockers using a program called doubleclick.net.

Several other class action lawsuits were consolidated and the litigation proceeded until 2016, when a settlement was reached between the parties.

Under the terms of the Google Cookie class action settlement, Google agreed to pay $5.5 million to nonprofit or educational institutions that push for public awareness of online security and privacy. The company also agreed to put systems into place that would notify and instruct consumers about how to expire or delete cookies.

Class Members included those who used a Safari or Internet Explorer web browser in 2011 and 2012, and who visited a website from which doubleclick.net cookies were placed even though their browser settings were set to block such cookies. Class Members, however, were not entitled to any award under the terms of the Google Cookie class action lawsuit.

One Class Member, Theodore Frank, objected to the terms of the settlement agreement. Frank argued that Class Members, rather than public interest organizations, should benefit from the monetary award provided by the settlement.

Frank took his argument to the Third Circuit Court of Appeals. The Third Circuit disagreed with certain terms of the Google Cookie class action settlement, specifically, that Class Members would give up their right to sue under the terms of the agreement.

Though it did not dispute the appropriateness of distributing funds to nonprofits and educational groups, an action called “cy pres” in the legal world, the Third Circuit said that Google should not be able to shield itself from future litigation after this action.

“We believe that, in some Rule 23(b)(2) class actions, a cy pres-only settlement may properly be approved,” noted the order remanding the Google Cookie class action settlement. “But here the district court’s cursory certification and fairness analysis were insufficient for us to review its order certifying the class and approving the settlement.”

The Google Cookie class action settlement will be remanded to the district court for additional findings on the fairness of awarding the entire monetary award to nonprofit and educational groups.

The class action settlement objector is representing himself along with Adam E. Schulman of the Hamilton Lincoln Law Institute’s Center for Class Action Fairness.

The original class action plaintiffs are represented by attorneys from Bartimus Frickleton & Robertson PC, Strange & Butler LLP and Silverman Thompson Slutkin White LLC, among others.

The Google Cookie Class Action Lawsuit is In re: Google Inc. Cookie Placement Consumer Privacy Litigation, Case No. 17-1480, in the U.S. Court of Appeals for the Third Circuit.

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