ok when your ready made please the court my name is scott michelman of public citizen and i'm representing the shakhtar objectors today if i could lay out the brief yes please plan who is going to talk and for how long yes your honor i'll talk for five minutes about the illegality of the settlement under state minors privacy laws including any copy or first amendment of responses that come up to that then bob thelma thought of the professor about some of the children's advocacy institute will discuss the california family code california constitution cypre and attorney's fees issues and finally aaron ziegler of corning tillery whom you just heard from will discuss the conflict of interest point between the minor sub class and the remainder of the class will each do that for five minutes and we'd like to reserve five minutes for a bottle ok and keep track here time thank you your honor i'm going to address a different problem than the california family code you just heard about  no one disputes you can't approve a district court can approve a settlement that authorizes clearly illegal conduct this is such a settlement on its face because it file its the laws of seven states including california using miner's likeness without parental consent is illegal in the states of california florida new york oklahoma tennessee virginia and wisconsin are the terms of the settlement the relationship between facebook and the children or among the children and the parents is no different so please talk to me or talk to us about what's going on under the settlement in terms of the involvement of the parents as distinct from what happened before the settlement so yes we're talking a facebook facebook's terms now include will include that minors represent that their parents consent to the use of their likeness and it's not that their parents did consent not their parents acted to beyond their necessarily just that the  child represents by using by signing up for facebook then there are a couple of provisions for certain safeguards but those safeguards are are in the nature of an opt out and the safeguards first facebook will not use a miner's images in ads if the miner affirmatively takes the step to indicate his or her parents are not on facebook so again the minor must affirmatively do that for the for the minor  to be out of the ads and then otherwise there's a complicated process in which the parent and the minor must be on facebook they must each confirm their relationship with each other and only then made the made the parent by a mr levin say there's no way for the kids to get entirely out of this without the affirmative actions taken by the kids or by the parents and the kids so the only safeguard there truly relying on in is the child's representation of parental consent and that's just not the same thing as actual parental it's ok the provisions that you're a lying on is making this quote illegal what do they do they basically say that there can be liability if you do  right that right and in some cases i mean a lot of you know if you do and you know it is criminal in three of the states around in new york oklahoma in tennessee it's a misdemeanor to use the child's likeness for advertising without her parents consent so well with so is this provision going to vitiate that it will your honor because now facebook is going to use on a going forward basis minors images for advertisement somebody and if somebody in maryland or where ver one wants to prosecute them the prosecution well i think that's that's problematic for a couple reasons first of all there's a provision in the settlement that constitutes a complete defense that's  to the world i mean you can't buy maryland or i don't know his face where whatever strange they are well well yes your honor but that that brings us back to the rationale for why you can't approve settlements that authorize unlawful conduct imagine new york one of the one of the states  there's a prosecution one of our clients from new york margaret becker meg backers daughter her images are used in this manner she goes to a local prosecutor her local prosecutor says yes i'm going to i'm going after this i'm going to force new york law then anybody to anything with regard to the future i don't understand the problem and the problem is that it creates a conflict between between what what might happen in another court with these with these other laws and the enforcement of those laws and the decree of a federal court in forcing this said all the federal court did was say if you want to settle the law so that way go ahead i'm sorry all the federal court did was say if you want to know so i settled this lawsuit this way go ahead and say it was future conduct and but only an illegal an injunction i point out that it we're citing cases going back as far as one nine hundred eighty for this proposition actually in the one nine hundred seventy s for this proposition and we don't we don't see a problem that lawsuits are not the class actions aren't being settled but this is a longstanding rule i guess you are terribly nervous singing about your co counsel back there who want to talk don't worry we're not going to penalize them for us asking you questions but here's a question  that you're not a settlement here instructs french book to do certain things that bring it more closely into compliance than it previously had been so i don't know how this cuts with respect to authorizing illegal conduct it requires certain conduct that reading it your way brings it closer into compliance and apparently is in compliance now with the laws the criminal laws of every state in the union but three but i don't see the injunction as insulating facebook from criminal prosecution in most things it just says he has some things you better do and instead of saying here's some things you better do that are going to violate the law everything that you do is in the direction of complying so how do you respond to that i think the key response around her lies in the federal court stamp of approval i think that that's going to carry a lot of weight and  what you have to do at a minimum in order to comply with this injunction it doesn't say and you will be protected from criminal lawsuits in states where this is illegal but but what it what it says is that what they were doing before you know the legality of that is not at issue what's at issue is that the the federal court has now said this settlement is fair reasonable adequate and essentially legal and so i'm not sure it said that and i'm very sure that it does not bind a new york prosecutor well i think a new york court addressing this problem would would look to this settlement and facebook would certainly say well we were just doing what the court said we in a civil case or or in a in a criminal case they would look to this court and they would say this you know this court seemed to think this was ok and facebook will say well we're just relying on what the court told us we could do i'm speaking not for of my fellow panel members but i will say and you can quote me if you like or whoever you want as i want to when we get the criminal prosecution going forward i don't regard this as prevent a new york from entering into a criminal prosecution  and and it it binds even people who are not members of facebook in this way because if i'm a parent and my child uses face and and i'm not on facebook but my child is and my child uses facebook and my child represents that i consent because she didn't see the disclosure or whatever and then then facebook uses her images in ads i can't sue because my child is bound by the settlement and therefore my rights are obstructed even though i never agreed to the settlement i wasn't part of this class i wasn't on facebook but my child is on facebook and and she is bound by the release in this settlement and the provision that  in seven point one six that this agreement constitutes a complete defense of facebook would have a defense to my suit if i'm a virginia parent saying saying you're using my child's images in advertisements and that's unlawful facebook would waive this settlement class council says they won't but facebook didn't say that facebook would waive the settlement and says and say this gets us off the hook even as to to me a non facebook user a non class member that's the sort of suit or other proceeding may be instituted prosecuted or attempted in breach of or contrary to this settled so the settlement itself says at forty eight i'm trying to understand whether this settlement  of future where you say future claims on the future claims with respect to future siberians well if it yes because the settlement is about what facebook will do going forward facebook you know consistently with a settlement facebook is going to continue to use kids in ads we've used this representation of parental consent and the settlement itself provides that it is a complete defense to that future civil suit so so for that reason it was inappropriate for the district court to have to approve the settlement it will gum up the enforcement of these statutes civilly at least in the future and and i'll let my i will now protect you from your co thank you your honor i just want to mention off off my script that in terms of six seven zero one c are talking about i'm sorry robert feldman the children's advocacy institute on behalf of the depo family in the interests of ten million children your honors just as an aside six seven zero one c discussed is it is it agency is it is a delegation you're not talking about alienating a bicycle to someone who then will it sell to a third party you're talking about an ongoing relationship where they will come back to you and your assets and take them and reshuffle them and sell them to third party and then to another third party and into another third party the fact that it's a greedy agent is taking almost all the money doesn't mean it's not an agency i just this just off off script i'm apologize that's not part of my territory i would ask the courts indulgence to give me three minutes because i have things to say that create a whole greater than some of the parts just need three minutes well i thought you flags which demarked this blanket waiver as the most profound child privacy incursion in my twenty five years of child advocacy and these six red flags fly beyond the other issues that have been raised one you have in this case an extraordinary reverse attorney provision leading facebook council to openly warn class reps at deposition that it has the right to fees if the case is not settled and they lose a risk of millions and rather profound personal consequences to the leak last rep fraley withdrew and has protested as has a major cypre recipient is suing hundreds of thousands of protesting this blanket waiver three the trial court and teen subclass council openly question any difference if you a seventeen year old and a twenty five year old for there has been basic contentions by facebook with sympathetic sentiments from the court below at the cop the federal law pertaining to children zero to twelve supersedes and eliminates all state and common law privacy protections for teens over that age now with amicus briefs to the contrary from the california attorney general and the fell trade commission which administers the statute five there are micus briefs signed by some twenty respected public interest including the american academy of pediatrics sex the case raises privacy implications visa or the internet a posting of your thoughts photos whatever on facebook may be copied and pasted by any recipient into the internet and the audience getting it cannot  be tracked to rebut or apologize and it stays accessible through search engines for decades it is a unique publisher the domain now i think you're getting wrong what facebook is doing here facebook is not modifying anything facebook is not making things better at all nothing would be better we have a new blanket waiver is it fair adequate and reasonable it consists of four sentences to be added to the five page and he says legal terms and conditions already checked off in its previous version by over ten million teens the first three provided facebook may take any information posted by a child rearranged for money received only by facebook launched into this public domain now there are three illusory figleaves and that's what you're looking at that parents are not subscribers which would remove them or three that the parents can affirmatively act to remove the children from this intervention but few teens and fewer parents you have to understand will know of any of this none will see or know in advance about you arguing this that this is not a fair and reasonable settlement that it's a legal settlement i'm getting to it i'm getting to that and usually appreciate people just reading off ok i understand that my bigger dose read one sentence of the change and then i'll tell you why it's illegal the sentence is quote if you're under the age of eighteen or under any other affably age of authority you represent that at least one of your parents are legal guardians has also agreed to the terms of the suction section one of the california constitution creating an inalienable right of privacy that right applies not only to state actors it applies to private actors as well it's an unusual provision it's been so interpreted it also applies to te there are fifty citations i can give you unfortunately i only put two in the in the brief but this is a whole area of the law that was not considered below it was not looked at how can you not look at it state law applies the constitutional provision that guarantees privacy to teens that has fifty sixty seventy precedents not mentioned anywhere someone's got to look at that i'm finished interest between the subclass of the minors and the a don't and as a result it doesn't satisfy rule twenty three is requirement for adequacy that's our objection the supreme court in ortiz looked at a settlement there that had two groups of of claims that were worth different values and the supreme court held that in such a situation the class needed separate him it was future virt current versus future current in or t s the difference was between whether or not you had claimants who are covered by insurance they claim it's who are not covered by insurance so there you had a difference of  value of the claim not extent of the claim if that makes sense here it's much the same you have adult claims who who say we didn't consent to these terms and conditions because they came after we join the or before and you have children who have different claims under section thirty three forty four which is what the first case is prosecuted under it requires parental consent form use of a min likeness so those miners have this special defense which is to say you didn't get parental consent you might have got my consent but you didn't get my parents consent then makes their claims substantively different than the claims of the adults cause great value to society but yet were troubled by the lack of adequate representation and when you look at the concurrences in the distance you see that the justices struggled with that but yet still found that rule twenty three a hom if you were to apply that test here and be fairly straightforward the heart of the matter in the heart of the fairly case is consent minors have stronger claims on consent than adults do they go straight to the heart and different  say that the money went to one class it was going to be taken away from or not given to the other we don't have that here even though we have to take your point that we have different can you help me with this expired the we do have that issue here there was it is a cap fund of twenty million dollars ten million dollars was made available to the to the courthouse there were one hundred twenty three million members ten million of those were minors to the extent there was a fight for that money for that ten million dollars how much of it was going to go to the minors how much of it was going to the adult to the  on that level it's a very different kind of case because the money it's peanuts no matter who's going to get it and it's not money for actual connected to the actual injury let's put it that way i mean in the cases cases like the ones in the supreme court you had injured people who are going to get a substantial amount of money and the therefore a competing for the funds matter i mean here you know if they're if they're not competing they'll get three so this people get you know two dollars you have the adults in the minors both getting ten dollars here that's the exact same amount when they had different claims that sonorities problem prejudice a child it doesn't your honor the then you guys are a conflict between their different different qualifications for for the defense consent or parents defense and extent that there were one hundred million adults to the extent that they made it made a claim it exhausted the fun which means less money available for the miners and to the extent that if more than two percent made a claim there was no money available for  anyone that was a problem that was looked at in the literary works case in the question the court there asked was look we've got two claims here that are different about you we know they're of different value we can't tell you how much this one's worth because they didn't ha of money it is the deficiency or alleged deficiency in the injunctive really so how does how is there a conflict between the parents and the children with respect to the injunctive relief that your side is alleging is insufficient sufficiently antagonistic to the child class with respect to injunction and that we should have some classes the point is that they were looking for different things the adults were only concerned with money due to their weaker clintons and the minors who are also concerned with my money but yeah but but in order to have a subclass required here as distinct from sort of optional you've got to have something going on here so that there's the potential for the presence of the adults getting more money is really going to have much to do with the effectiveness of the injunctive relief can you help me with that more questions for me well we're flexible on our side after litigating issues through a motion to dismiss extensive discovery how do you respond to the arguments that this settlement with respect of the future so is the children down the river we the obviously the major issue in this case in the claims brought on behalf of the miners or by the miners was that their name and likeness were used without their parents consent and that was that i mean this agreement doesn't do mean and your answer may be there's no other way to do but in terms of this if you take literally the notion that they're not supposed to do this without their parents consent i gather all they have to do is check a box saying i have my parents consent is that right that's consent provisioned in two point one of the injunctive relief provisions in the settlement and enhanced is the disclosure and consent provision which applies to all users including minors it has tools by which the parents to view and control sponsored stories content to determine what the parents will say is eligible to be used in sponsored stories houseroom in for a moment that i'm a well informed parent and i know how f book works and i know about this provision can i go on to facebook and say facebook has no permission whatsoever to engage in this practice with respect my child's likes dislikes and so on the parent can control content that let me just explain let me just go back and talk about what the practice is that's being addressed in sponsored stories and it is the minor likes a page or a piece of content that's eligible for sponsored stories that like it might be hillary clinton's campaign it might be someone else's campaign it might be coca cola the minor likes that and that gets published automatically to the to the to the user's friends so that that like is not challenge here that's the the user's ability to say i like coke and that immediately gets put to their friends and the al and facebook which no money from that that is to say they got no money from advertisers from call granted thing for that so correct facebook that gets money from advertisers to have their advertising presented on facebook in general so the fact that a like a person can like the safety the w w w dot facebook's backslides safety page that is referenced in two point one b of the settlement agreement and control what the what of the minors postings will be eligible to appear in sponsored stories that that is still a tool that's available whether the minor or whether or not the minor represents that his or her parents have consented you're not going to come back to my  can the parent if the parent knows about it and takes makes the effort to go in here and say i want to control what of my child's use goes on these sponsored stories can the parent forbidden tyrolean the use of this  sponsor stories the parent well there's not a yes or no there's no mechanism no i think the answer is no there's no mechanism where the parent can uncheck a sponsored story box that's not  i mean you're telling me it's of the parent to use affirmative steps and does everything the parent is allowed to do under the terms of the settlement agreement the parent is not allowed to for build facebook to do sponsor stories for the child and all all the sponsored stories the i believe the the closest i can answer that your honor is the tool in two point one b and could be used in that fashion point zero point one p doesn't mention children right it doesn't it doesn't directly address the relationship between the children and the adult es of their minor children from appearing in sponsored stories that is what the settlement says in any sponsored story yes ok yes because i was nodding as you gave me before but you just changed your answer well i didn't mean  i misspoke i'm sorry i didn't i wasn't quoting the language now i am but i was trying to say the same thing the parents can disable the content that can be used in sponsored stories for their child i'm not trying to say i'm absolutely not trying to say something unclear i just quote the language of the world with the sentiment of a sudden well a court that language i don't understand it fully disable the content in sponsored stories will what do you mean by the tool to enable parents to also present prevent the names and likenesses of their minor children from appearing in sponsored stories that is and i'm sorry i did not mean to be evasive i just didn't have the language in front of me  obvious real world problem anybody with kids or any kids with parents knows the following kids will not read all of fine grain they will click just as adults will and kids will often represent my mom says it's ok when mom has said no such thing we also know that parents are not necessarily going to be fairly going to be adept at using facebook they know they have this option i anticipate the likely outcome of this is that there's going to be a fairly steady continuation in a very high percentage of the prior use of these sponsors for minors so what do i do with that well let me let me go back your honor to the underlying lawsuit whether the plaintiffs could have prevailed in their underlying claims is a very open question as judge seaboard outlined there were a number of problems with whether plaintiffs could recover on the state of facts that your honor just just outlined but does that give rise to an actionable claim by the minor there were substantial issues of both implied consent and actual content through the language of the existing are there were there was evidence developed in discovering that many of the parents knew that their children were on facebook and knew exactly what sponsored stories was and nonetheless allowed their children to continue using facebook which is evidence of implied consent which there was a great deal of evidence in the record in addition there is the issue of injury which judge co made clear at the motion to dismiss stage is an element of this claim how are the children injured how are the parents injured how does that get quantified can the plaintiffs prove a right to recovery under the statute i'm not talking about the fifteen dollars i'm talking about the prospect of the injunctive relief i'm trying to figure out how much protection that gives realistically to the children's privacy interest of not having this being done without parental consent my instinct is that the involvement of most parents either knowingly or even by inference from by suspicion is going to be pretty minimal well i think i have to say i have no evidence i just i've got kids of my own and i understand how little i understand about facebook well if you have parents that actively use facebook as many of the parents  did they they understand what sponsored story is and what and what how the names were being used and there was there were parents that there was one parent whose deposition was taken who helped his child sign on to facebook and it's not even clear which of them click the button to agree to the terms and i ask you related to all this about the separate attorney question this does appear to be a situation in which you have two groups at least whose interests and concerns and for home the legal back the legal surrounding material are very different and the question is really you know what point what what is the standard for when there is a requirement that their piece separate presentation i mean this sounds like a rather broad diversions of interest whether it's a conflict of interest i guess is a different is the question how would you suggest we all about what standard applies here we believe the standard is that there needs to be a conflict of interest and some the adult group may have a lot more interest in settling for a lot less maybe because they arguably have less in the way of  legal background or legal war or legal risk and less lethal liability particularly as to the future so i mean let's pause is that accurate and if it's accurate why is that enough of a conflict i e they have different interests in whether to settle and now are trying to establish liability i don't think this case falls into the or framework this court in hamlin the original settlement approval case that one fifty have third ten twenty to twenty one made clear that there need to be fundamental conflict of interests and we don't i don't try to put some i don't i don't think here there's a there's any basis for concluding that the adult class had different interests than the minor class both were seeking compensation they were bringing the same claim it was exactly the same claim it was a claim under thirty three forty four because while their claim was that they didn't consent but the the adult claim they didn't consent was simply that the consent language was was fuzzy the other one was of action yes there were day had different defenses but there's no indication that there was any fundamental conflict of interest between between the two classes conflict and virgin's those are two different words and they really mean different things but to the extent that there's a to press harder for the other and i can see how the negotiations going work out differently that different lawyers representing different lawyers representing the children i just think that's a fairly self evident proposition that it might turn out differently whether  and as i look at their leave the realistic consequence of saying to the kid ok when you click this you were present mom and dad have agreed that strikes me as not providing much meaningful relief and giving the option to the adults or the parents to come you know strikes me as likely not to produce a long song it's more than was there was before inconsiderate into that the that the existing provisions were defended with substantial defenses to plaintiffs claim that there is substantially believe there's substantial relief and the district court found that the injunctive relief provided substantial relief to the miner class i don't i believe your honor that it's at one fifty f third page twenty twenty two twenty one there's a discussion of the differing interests now that was an early case and there's been a lot of case law since then including the literary got three minutes and fifty one seconds on the clock in order to preserve peace between you and your i'm not quite sure the right word in the circumstances call counsel but let's let's put seven minutes on the clock lot of special care with the minor class and one thing that is very important we did twenty one depositions in this case we have over three thousand pages of transcript in this case use me four thousand pages one thing that was very important is we did all the expert depositions in this case we basically had five expert depositions for the plaintiff there were two for the defense before the motion for class certification the case went into settlement mode forty eight hours before that motion was to be heard and in front of judge lucy company and what i want to say as a lot of the work done with the experts had to do with the miners also two of the class two of the three class reps were miners there were two parents thus of the miners well including the husband or wife or parents that were monitoring this one hundred percent now with respect to comments that have been made that this there's a release that's going to release someone that wasn't using facebook during the class period obviously the definition of the class is solely those people that were there's no release of future claims no and this is solely a really different class members right this is soley a release for sponsored stories and sponsored stories are a very small part of the facebook ever ties in regime sponsored stories are only when there's a like that's already posted on the friends pages and by the way it exists in facebook that if a facebook member wants it to go to two members wants it to go to one member or a thousand friends they can do that with respect to our injunctive when a person signs up for facebook that they state let's talk about the teenagers for a moment did your parents give consent for this type of error for all advertising using your name and likeness they have to click yes with respect to are your parents on facebook enjoyed interrupt for just a minute does any of your expert testimony go to how likely it is that when the child checks this the child will have read we they did not address that your honor they're not address that but additionally they have to check a box whether or not their box their parents are not  that's different from they have to check i mean if you're saying that they have to check a box whether or not their parents are on either way but i don't think that's true but they have to list their parent they have to list who their parent is and here's the city  are just when they're signing up and additionally for those who are already members there are are recommended that they do this so thus it to respond to judge fletcher is question i'm sure this is going to take him and i want to make sure i understand it precisely so what does the box say with respect when the when the miners signs on him and is asked to check a box precisely what is the question that the minors being asked about the parents it's not just a box for that question book then addressing judge fletcher's comment about what effect will this have eyes on you know understand exactly what happens ok so there's a question and the question asks what is your parent on facebook ok and if they check you know i would look at the i want to look at the injunctive to be exactly you know so i look at it and i will take as long as we need so i think it has the same result and then as i'm looking at this the point is then it is recommended that they list as their friends and their friend categories their you know first let's get to the point of what precisely is the question and then and then we  confirm parental relationships new users upon soon or joining facebook to include in their profile information about their family including their parents and children so what they are to do is include if their parents are in facebook in that situation that's the only thing the injunction says they're supposed to provide information yes so there's nothing about box and specific question that's correct oh so all this talk about the specific question on the boxes is not right well at it says we're both a parent in march minor child our users and confirm their relationship so i don't know the exact how it's going to be laid out your honor we don't have the proof that the what that's going to be but it's an easy system for them to know whether or not their parents are on facebook they will let me meet let me make it up then when i think is consistent with what you're telling me there's a question that says is either of your parents on child says yes my parents are on facebook and names the parents then what happens then the parents get every one of the postings that can be boosted up to a sponsored story and the parent is going to see everything that happens every parent i know who has a facebook page and who has children i have adult children and grandchildren who aren't on facebook but you can see every posting that is made by them and parents want to see every posting that is made if there's a youngster who if there's a teenager who's on facebook and there is a good parent that good parents going to want to see what every post is and that's why we give and so your honor to answer that question if they don't listen to their parent is as a friend then the parents can say hey i want to see what you're posting on facebook so what happens if they say no i don't have parents on facebook when they're automatically opted out of all sponsored stories cannot be used in that type of advertising so if they say i don't have a parent on facebook that's automatic automatic opt out of sponsored stories are all sponsored stories yes and sponsored ads also sponsored  sponsor debts there's a there's different types of terminology this case dealt with sponsored stories where there were so soley the publication that occurred that was boosted up to adding a logo in the right hand page that was a sponsor story their facebook ads with social content which are a little different this is what this group did to start with and it's the because i don't really know the term sponsored ads they're going to get ads sent to them because that's not a sponsored story so is their name and likeness going to be used in any other manner not if it looks like a duck quacks like a duck and it's a sponsor story but again that is the parameters of this lawsuit was sponsored stories it was very specific and just just to make a couple other comments because we had two minor class reps and i know my time  your honor if i could just make this my last comment the a great deal of the focus of the case was with respect to the miners we knew and it was this group that had a decision in southern california judge debra weintraub that said capa totally preempted state law and the minors did not have a claim they then very smartly had that case dismissed this in the record your honor and but that was hanging out there all together now the f t c and the attorney generals as requested please don't make a decision that capa preempt state law we hope you don't your honors we hope you don't because we thought that all the way through there were many specter as of issues one that hasn't been mention the minor as we found out very often use pseudonyms they use different names jimmy smith could end up being big jim and then the profile picture is mt everest that it does matter fact they change their names all the time we faced all these issues because we did this is scary we had two hundred thousand pages of documents your honor and again when you talk about being able to see how facebook operates we can look at that anytime we want so the final comment i would like to make we are very proud of this settlement we think it accomplished a great deal we believe the injunctive relief is very robust and at any rate thank clearing up a couple of points that came up in opposing counsel's argument first there was the notion that face that facebook requires children to identify their parents that is not correct and you are thirty two to settlement section two point one c sub two what mr arens left out of his quote was that facebook will encourage new users upon or sick or soon after joining facebook to include in their profile information their on their family including their parents and children no i didn't i did not hear him say that they were the children were required ok ok i want to can actually use the word encourage but i know he said they were not required ok stories and other types of ads mr johns points out that this lawsuit was about sponsored stories what's interesting is that the safeguards all pertain to sponsored stories the fact that you can have a confirmed parental relationship and the parents can opt you out but they don't apply to all sponsored ads and as we pointed out in our brief and as that's doesn't it wasn't about that well but but the the terms of service notably are broader what's in two point one represented at least one of your parents or legal guardian guardians has also agreed to the terms of the section and the use of your name profile picture content and information so even though the safeguards pertain to sponsored stories the permission that facebook is purporting to get from the minors on behalf of their parents or representing their parents it's broader than that it applies to any sponsored at and in fact or to leave issuance of this injunction was there any protection whatsoever with respect to representation of rental agreement no your honor and that's and that's why there was a lawsuit no but i think you're complaining that the injunction doesn't go far enough sounds a little the injunction may be somewhat ineffectual but it's the truth about that that's that's that's that has to be the concern right it's weak because they could lie it's weak because they could not read it and it's also weak because the the laws of the seven states that we've cited require affirmative parental consent many of them say in writing or prior or express and that the child the there would be a very easy way to fix this problem with respect to minors and that would be if it were an opt in regime instead of an opt out regime of just for the minors for these ads but nobody pushed for that and think sensis friend who says hey you're my parent and absent well i think that would get to it i mean it at some point i think facebook is is entitle to to rely on representations but if there's they're not even trying to get the parents permission before they do this and that goes to the conflict because if if if counsel had truly taken into account everyone's interests here the money versus the injunction they would have seen that the the adults were more interested in the money the children really need the protection of the injunction and maybe if if council had been representing the children to think about the children they would have held out for a better deal or for an opt in relationship there was a conflict that was in in the in the courts words fundamental because there were these two different parts of the settlement that were essentially in conflict that there had to be a trade off not not money as in as it and can  yes the judge actually required it to be improved on and on a number of fronts it did add the monetary relief but he also asked for the parties to address quite rightly to address the  imbalance with regard to how the different groups were treated but what the judge overlooked and what no no separate counsel was there to say he's vis settlement does not protect the interests of minors it is illegal as to them  going forward pay children and their parents will not be able to sue because of section seven sixteen that says this is going to be a complete defense even though the release doesn't go forward as as opposing counsel noted jim i somebody tell me i did because i asked that question before i'm sorry when i asked the question before of whether there was a way for a future claims with regard to post settlement instance and i was told he has now i'm told now which is right if there is there is opposing counsel is talking about now but flip four pages ahead and look to section seven point one six which states on forty eight that this settlement agreement may be played as a full and complete defense to any action suit or proceeding that standard california language and all it means is that in some whatever the settlement manes i can use it as a defense and i can bring an injunction but it doesn't add to the settlement but but what it what it does show is that if it ends with any other proceedings that may be instituted prosecuted or attempted in breach of or contrary to this settlement it is contrary to this settlement to say that for instance the child's representation of parental consent is not the same as parental consent facebook under this settlement is permitted to use the child's representation in place of the actual parent and that's not what those seven state law settlement doesn't say this is legal and says this is what we're going to tell yes but the case law says that part of being fair adequate and reasonable is also being legal and  think this court should go against the weight of authority in the appellate courts against your own decision in in sierra club versus electric controls which we cited about the related context of consent decrees and say the seventh and eighth circuits create a problem for the settlement approval in this case which might move our attorney if he claimed and that's pearson seven seventy two f thirty seven seventy eight and the bank principles and that's the argument that batman and lolly made in their briefs and that the seventh and eighth circuit seven dotted because there was no reason to use i pray here this should have been a greater distribution to the persons who make claims either that or a effort to increase the number of claims made given that there are a hundred million class members and less than one percent of the class make claims here if you want to talk about that if you don't want to talk about the fees i'll  matter if you gave all of the money in the pot to the class you still won't have enough money to reduce claims right because the number is going to be small so it seems to me what you're doing with the cypre no i don't think it does go against because they weren't facing a situation like that of extremely small amounts of money but even if they were i don't see why i'm trying to come to the right one the right moment seems to me would be providing some relief to the people who didn't make the claims for understandable reasons well i would disagree that it was any smaller here than in the southern circuit where as one point one million dollars out of a class of thirteen million and in the eighth circuit make claims and what other way already money three dollars more so why isn't that a fair balance well the problem there is that when you incentivize the attorneys to favor third parties over their own class members they're going to agree y is the problem you owe a duty to your clients which are the class members and the minute you say well it's ok if it goes to cypre because i just find it really hard to think that i would be that they were benefiting their class members more by giving a very small fraction of the class three dollars more rather than providing a reasonable amount of money to entities that are going to work on the problem and generate a lawsuit well by that argument then you should never pay the class members can't require the objectors to guess and the advance when the judge preliminary proves something you have to assume that he's going to approve the settlement that he's preliminarily approved unless you come in an object and going in you if there were nine other objectors here saying knows our objection the cause the fees cause the changes in the settlement but there's no dispute that we follow the substance of objection that the other side focused their response to responding to our objection that no other party no other objector said wait this is this wasn't cashman who did this this was us who did it what it was there's nobody plausibly arguing that we had a duplicative objection facebook opposed the attorney's fees they didn't even make the and the two point five million augmentation that was not that was not noticed to the class and that was decided after we objected and said far too much of this is going to cypre under the baby products case  ma'am please court robert arns for the class by the way just one housekeeping item we found the paragraph with respect to the new control and it says finally facebook will add a control in the minors user's profile which enables a minor user to indicate that his her parents are not on facebook i understand that i read that and that and i understand that you mean it's only say if your parents not on facebook that's correct and  actually the money that was generated i should say by facebook for sponsored stories was between ninety four cents on a dollar forty five for people who are used in sponsor stories now we felt it important to use the  cypre your netflix decision the ninth circuit net netflix decision makes very clear that if there's a large class there in netflix there were sixty five million people in the settlement fund was nine million dollars that was one hundred percent  approved because the amount that would be paid to the class would be not a great amount of money so just in responding to cypre those two new cases that councils and are completely distinguish e in one of them the cypre the bank of america case cypre went to the legal aid society of east missouri even though it was a national class completely different circumstance in the pearson case there was a total of eight hundred sixty five thousand dollars to class members and one point nine million went to council and one point three million to cypre those cases don't apply the slightest bit with where there is insufficient funds to pay out to the whole class or the payment of the class would be so expensive as to exhaust all all the funds but here it seems very very simple the we're talking about an additional seven dollars to the persons who made claims they swung from ten to fifteen and the question was why not go to twenty two to the claimants and as requires the intuitive subjective and unexpressed content of a district judge as to what is fair it applies only when the distribution of the s are impossible or difficult to do because of the size of the class i don't see why cypre applies here at all i think it's a it's a misuse of the cypre doctrin dollars more to all the people who make claims i could respond to that as you know the claims went from ten to fifteen and would have been seven dollars more i don't know if that's accurate but in this case we totally agreed that it would be unfair that the non claimant class members may have been on claimants because they chose to let the cypre did you have an expert witness who said i am a psychologist of claimants and i can tell you that if they only get ten dollars they will make a claim but if they get twenty two they will make a claim is there any evidence of that there was not the judge you get this idea very motivated people are going to make claims and i can't imagine anybody who would make a claim that ten would have made a twenty two instead instead it seems to me the problem is that those people are not getting anything out of this settlement if it is if all the money goes to the few people who want twenty two dollars so that's what the cyprus about that's correct here are but that's not much i just prior red basically mr frank wants to change a rule that would be a serial objectors dream that takes the power out of the district court to say there was no record that allowed your one paragraph to change my mind about anything and i don't want to taking all the risk in every case funding every case never having a bank loan on any case and the objectors come in with no skin in the game and now want to have a situation where automatically the discretion of the district court is taken away and that's the rule that he wants to have developed here and all i can say is i would implore the court not to and i hope that are exactly what happened here there  s the fees originally were in the green men and then they came and the agreement in the sense that that facebook could object to them i gather facebook didn't object to this particular thing but that commonsense other than the objection which mr caswell made judge see borg was very conservative with the funds in this case for example the object the class representatives who all did seven hour depositions who were all spent a lot of time who we spoke with constantly got a fifteen hundred dollar service award that was judge c bourse decision judge seeburg was conservative was raised for really yes there was oral argument your honor and i don't remember at that subject was really brought up i know that i discussed it with his honor and you know we had a situation where our lodestar was higher than ultimately won and ended up judged as a matter of fact our lodestar was five point four we spent thousands of hours on this case as i told you  maximum amount of discovery this case was ready to go to trial actually but at any rate i know that i'm over thank you very much your honors one very quickly one reason that there are so few claims was because the claims process was structured in a way to throttle the number of claims and that said page ninety three of the record i'm a class member i couldn't make a claim in this case because i would have had to perjure myself to claim the ten dollars or fifteen dollars you had to affirm for specific things and i couldn't the formal for specific things even though i was a class member and i was found we had more than a paragraph on the net  gross it was a two or three pages in our brief and aside from the fact that you can't just go into the court and submit two or three pages you have to do that work up the entire objection prove the class membership to all the things to avoid getting your class member to pose to demonstrate that he's a class member show up at the fairness hearing to make the argument so that again if you buy the right make this argument