well your argument first this morning k seventeen nine sixty one frank versus gauss individually and on behalf of all others similarly situated mr frank thank you mr chief justice and may it please the court instructs that courts should interpret rule twenty three with the interests of absent class members in close view the best way to interpret rule twenty three is text requiring settlements be fair and reasonable is to class councils interests with those of the absent class members in deposit guarantee versus roper at page three thirty nine this court called an abuse when class members were not the primary beneficiaries of  thoroughly the cost associated with first identifying the class second preparing the mailing third executing the mailing and then processing the claims that came up with a figure of sixty seven cents now putting aside that there may be a question about whether the trial court adequately determined feasibility but assuming it did why would it have been an abuse of discretion for the court to believe that processing sixty seven cents didn't make sense because the costs would outweigh what they would pay well the district court applied the wrong legal standard but no no i know your standard right right ability is can we give ten percent of the class something even if nobody else gets anything meaning what you would like to do is select ten percent of the class and pay them a little and do nothing for everybody else well you know we would like to give everybody in the class the opportunity to make a claim and in practice a very small minority of the class would not be in different to  opportunity and everybody else would receive not even a direct benefit no they would receive the opportunity to make a claim they always have that opportunity they don't have that opportunity here as a class member class members were deprived of that opportunity they could opt out they could opt out and amp them also but that didn't make the settlement fair but i go back to my point which is are you disputing the finding of fact that under the normal application of feasibility where the cost outweighs the payment or cost far exceeds whatever could be given out is that are you disputing that the court never made that finding the court applied the ninth circuit's to minimise test underline versus facebook which required it to divide by the entire denominator of the entire class in reality settlements settle all the time for well under a dollar per class member and then first of all in practice i just want to let the court know that ten percent is an extraordinarily high claim rate the claims rate is typically below one percent but then in ninety eight i break in absolutely in the typical settlement it's a pro rata distribution you have a fund of a few million dollars that's tens of millions of class members have the opportunity to make a claim if very small percentage make the claim and the fund is distributed pro rata to them that's what happens in fraley where the number of class members making claims was so small they still had money left over even after giving every claiming class member fifteen dollars even though we were talking nine million dollars for one hundred fifty million class members that's six cents per class member what do they do do they wait until a reasonable period and most of the claims are in and then divided up or the settlement procedures will  days or sixty days or one hundred twenty days to make a claim the claims come in either electronically or through paper depending on how the claims process is set up and sometimes there's an audit for to make sure there aren't fraudulent claims that's what happens in carrier i q we're again even though we're talking pennies per class member it only cost them six hundred thousand dollars to distribute a few million dollars to thirty million class members and still audit the claims and reject thirty percent of the claims so i think talking this is a full site award meaning there's no direct benefit to the class what about the residual cypre i thought in many instances if a fund is created and the claim that it's are all paid off there's some money left over the residual cypre and that's given indirectly often circuits differ on that the seventh rejects that proposal because they recognize that the settling parties have the ability to adjust the claims rate by depending on how difficult they make the claims process so in a seventh circuit case there is a one point one million dollar residual and twelve million class members though that was eight cents per class member the court rejected the idea that that was a benefit to the class and said you've made the claims process too hard and required them to redo the settlement on remand millions more dollars went to the class because they changed the claims process and made it easier for class members to make claims so if you have a residual and you incentivize the attorneys to prefer the residual to the actual claims what will happen is you'll have a very difficult claims process there was a third circuit case a thirty five million dollars f d and but you had to fill out a five page claim form to claim your five dollars and so very few class members did that they were only going to distribute three million dollars with over fifteen million to cypre and the third circuit rejected that that the district court failed to prioritize direct benefits to the class and it assuming all of that let's assume a very efficient claim process let's assume a careful feasibility study by the district court are you still you're still taking the position that if there's a residual for any reason that's legit and that there's been an easy claims process there's been a simple  distribution whatever you're still saying that in direct benefit a partial cypre is not ok i'm saying that you can't reward class council for it you read the third circuit opinion that talks about this and says there's a lot to balance in this issue and are the courts the appropriate one or is congress the appropriate one well or is the individual  discretion appropriate until the congress looks at this and decides i think rule twenty three even means something and this court has previously called disproportionate benefits and abuse and it's determine whether every absent class member or even most of the absent class members were guard the beneficiaries of the cypre award as entities to which they would like to make a contribution it's very possible to establish a claims process where somebody checks a box and instead of sending me a check for six dollars send it to the american cancer society nobody does that or at least we haven't seen settlements that do that and the reality is if class members want to send their money to charity they can do it without the  class council so who decides who these beneficiaries are going to be it varies from settlement to settlement in this case class council and google negotiated and agree to a set of six beneficiaries that process was opaque and we don't understand which beneficiaries didn't make the cut and why they didn't make the cut but they they chose these particular beneficiaries so the parties than the lawyers get together and they choose beneficiaries that they personally would like to subsidize that's how it works that's usually how it works we've had since i've seen settlements where the judge says i don't like these beneficiaries to these beneficiaries where the judges designated the beneficiaries they are settlement structured where the judge designates the beneficiaries and in another google settlement that we discussed in our opening brief the parties designated a beneficiary and the court re if you would to address the standing issue in this case to talk about what you think the harm was and whether any court has addressed your theories about the harm are you alleges a statutory violation that corresponds to the common law tort of public disclosure of private facts and the lower courts are unanimous in holding that that kind of statutory claim satisfies spokeo even on remand and spokeo the ninth circuit found standing and this court denied cert the second time so i don't think there's a real standing issue unless the court is inclined to reason that the plaintiff had to show a particular arised or a concrete injury that is certainly the wrong standard for the district court to have fly with later supreme court jurisprudence indicating that but we can determine from the face of the complaint that anthony italiano made an allegation of concrete injury within the ambit of what justice thomas concurrence and spokeo indicated was acceptable on what lower courts have unanimously indicated that it was was acceptable i was curious where you were going to come down before you filed your brief because obviously if there's no standing the whole class action strong right that would be correct that would anticipated exactly where i wanted to go but you say there's an allegation with respect to mr tell ya know that he was injured but do we know that he was injured is there any evidence that his personal information for example wasn't already available through the white pages and otherwise published so that there is no entry in fact well the fact goes to the merits if i allege that my friends here punched me in the  head and owes me over seventy five thousand dollars and were citizens of different states i have a claim for standing even if that claim is completely fictional well fair enough a twelve b six stage but here we're entering a final judgment and should we at least the lower court to make a decision as to whether there is actually standing as opposed to mere allocation of standing i don't think that's the case i think the allegation of concrete injury establishes the standing and then the merits questions are always different than the jurisdictional question what is the private i mean would i have here is that the search that mr tell ya know engaged was his name that's certainly public his home address i magine that name in bankruptcy his name in foreclosure proceedings his name in short sale proceedings his name in facebook and his name in the name of his then soon to be ex wife and the word forensic accounting how go the if that those are all the things that he looked up how are the what concrete injury was there because somebody might discover through google that he made those searches i mean i don't quite see how this is some kind of secret or private or information and i don't see alleged anywhere how those things were heard so i had a hard time distinguishing this from spokeo well the ninth circuit and the statute and the judge by the way didn't even try i just said that the very fact that the or has a chance of doing something differently here than maybe the a prop appropriate decision is to remain and let them consider that and while the case for mr italian on his injury may be weak which suggest the settled for such an infinitesimal amount of the statutory damages that does not change that the allegation was made and that the allegation is made but where is an allegation of some kind of injury that would actually concretely and particularly hurt him again by somebody looking up on the google and discovering he made those searches even under the common law the public disclosure of private and which are the private the private facts regarding the dissolution of his marriage and things of that nature again though i think this it gets we're we're stuck in the same place i think which is you have to assume that that information isn't otherwise available at least on the floor and you don't want to prove it an allegation of it there's no allegation that that information wasn't otherwise available and we do about that i think that's the part that we're struggling with here if the complaint is not strong enough to establish the concrete injury under what a majority of the court indicated would be sufficient under spokeo and what the lower courts have repeatedly found with respect to spoke claims the disclosures go to any searches that somebody engages in correct that's correct ok show it may be that they have the wrong name plaintiff if the disclosure would be sufficient but it has to be one of the named plaintiff it does have to be in ames p class members have a common injury the ninth circuit standard creates perverse incentives for class counsel to divert money away from their clients and to third parties when courts have insisted that attorneys don't get paid unless their clients get paid the attorneys find ways to improve the claims process and make money get to the client i i i i understand your fear but as i look at the full cypr awards there rear the list that i've looked at is what five in how many years it's not as if it's occurring routinely number one number two you do point to some potentially abusive situations but in all those situations it's the cases where the circuit court rejected a cypress praise award it seems like the system is working not not working well the system will cease to work if the ninth circuit standard is affirmed by this court and otherwise class counsel will direct settlements to the ninth circuit there are two all pretty settlements with just google alone that are pending waiting for a resolution of this decision and the ninth circuit standard permits even hundred million dollar settlements how is the ninth circuit  it said all that's needed is that the money is de minimus per class member and that's up page eight of the petition appendix and we see that in our supplemental grief where we point out that in a case with one point three million class members where every class member is identifiable in three to nine million dollars left over of the court said that's to minimus and it's ok to send all of that to a local university where the defendant can name a chair after it so is this appeal all about feasibility alone no the it's about settlement fairness under rule twenty three i'd like to reserve the rest of my time for about thank you counsel general walker mr chief justice and may please the court two points first when the district court here resolved petitioners objections proved the settlement agreement and entered it as a binding judgment that appears at pages sixty two to sixty six of the petition appendix it was exercising article three jurisdiction which means the plaintiffs had to have standing and the court's ordered cypre relief had to redress plaintiff's injuries under laidlaw neither of those is likely true here second the other limitations of feasibility and fee proportionality should not be paper tigers lower courts need to conduct rigorous numerical analyses of feasibility and determine fees based on actual relief to the class not as here and based on an inflated percentage or multiplier meaningful limits are necessary to align incentives and deter abuse of the class action device i don't i don't understand your argument on the feet i mean i think you either decide the cypress award provides relief were doesn't provide relief if it doesn't provide relief you don't get a fee for it but it does provide relief and i don't know why the fee should be cut back just because it's not money well but i still think you have to look at what relief it provides to the class if the court agrees with us that the lower courts are not being very rigorous with respect to redress ability and feasibility and it tightens the inquiry i still think it's possible to say mr chief justice that tailored cypre provides some benefit to the class but not benefit that should be treated dollar for dollar like money in the pocket of the class members but i mean i'd certainly agree that not much of a discount would be warranted if you got really tailored cypre the problem here is that of the six proposals only one even argued the world privacy forums proposal even arguably deals with referral headers and the subject of this suit one of them the a a r p s proposal deals with online fraud and this wasn't a fraud case all the fraud claims were dismissed and the other four just deal with internet privacy in general and i think if if the inquiry is if cypre is going to be so far divorced despite i think what i think are serious reversibility concerns from the claimed injuries then i don't think we can treat it anywhere near dollar for dollar i think the discount has to be more substantial is there any reason why we should not decide the standing question it's a question of law at the twelve b six stage it's the plaintiff's obligation to allege standing if it wasn't alleged properly sufficiently then then we should then then there isn't any standing like why does why is a reminder necessary i think the court could decide it justice alito i think it could and we would urge the court to do either of those rather than dig you know why re manned well because i think justice course was getting at this a little bit it isn't clear that the common law tort that everybody keeps pointing to require public disclosure private facts about you here we know that somebody search mr tele on his name but from the fact that somebody searches my name it doesn't mean it was me so they've developed this re identification theory saying oh well the web site you click through to will glean other information about you off of the internet and they'll be able then to reverse engineer and figure out that you were the one that did the search that seems pretty speculative i think for spokeo purposes and there isn't a record on it though i don't know that the court needs one and then even beyond that even if you could identify that these people were the ones doing the searches if they're searching information that's already public and they're not pointing to any other additional harm is that harm under spokeo i think that latter part of it is a legal increase that i agree i think the court as well position is a lower class to use and every time we get a case where there's been a dismissal at the pleading stage and a question of standing or wise as we should we mandate to the lower court to see whether the plaintiff might be able to come up with some additional allegations or should we decide whether the plaintiff has sufficiently alleged standing as the plaintiff must sufficiently allege all the elements of whatever claim is being pressed just so i think the court could decide if the court thinks that on the basis of these allegations it's got enough to decide t and then quote the name of his then soon to be ex wife and quote right now was the search the words they couldn't have been the name they must have been a different actual search do we know what it was and were the words in the search soon to be ex wife because those words would seem private probably and that maybe those words weren't there maybe all that was there was his name and his wife's name which i don't think is private but but so do we know so in fairness their theory just i don't think it's the i don't think that what they're pointing the harm is the disclosure of the information injury disclosure of what you search i don't think i don't think anyone would want the disclosure of everything they searched for disclosed to other people that seems a harm i think i may not it may or may not be a cause of action but it's harm just haven't i'm not so sure that the common law it was at least uncertain as of the second restatement in the negative doesn't have to be exactly a common law according to the language in spokeo it doesn't say that you could conduct searches the disclosure of which would embarrass or harm you but if all he searched was his own name is that a sufficient harm for spokeo purposes if it's not true that it is to another person i guess i'm not sure that it is a sufficient i will say though that the predicate problem then of the reason i think you don't even get there is this real identification theory is itself so speculative i don't think it's at all clear that the internet sites you click through to could isn't out of ignorance question i don't think so i think it's a question of whether they've plausibly alleged the harm if the harm that they're pointing to couldn't occur because nobody could reverse engineer they don't have a sufficient injury and what is the record with respect to that question about whether anybody can identify the person who did the search as far as we can tell there is no record because the district court never reexamined this post spokeo and no one raised it either because they were bound not to attack the settlement agreement or because they wanted a ruling on the merits of cypre general what's that what's the government's position of justice thomas theory and spoke the court do about that the government's not nothing to offer us just we would be happy to supplement only brief the standing question we flagged it for the court and then none of the parties has really delved into it on the merits and so i think if the court justice ginsburg for the reasons i gave earlier i think the court could on this record or it could remain and as long as the court doesn't dig both because it would leave standing a judgment that i think the court of new jurisdiction to enter and i think it would encourage parties not to flag jurisdictional issues at the search stage as the parties here should have and just to say one word about the merits i do think if the court reaches the merits the government's primary submission is the lower courts have just not been very rigorous why to pick up on just the sort of my worst question earlier why should that be a question for the rules committee and congress to address in the first instance well so look guidance from congress would be helpful but in his absence i still think we have to say what the fair reason one adequate standard means and a rule twenty three the rules committee has essentially punted to the courts by saying the courts are actively looking at this issue we're not going to dress it now they did amend the rule in various ways that i think support our approach by saying you should consider fees at the twenty three d stage you can delay to see what the claims are it is the courts should be looking at the claims rate i mean a number of the things that they've done in the amended rule i think are designed to tighten up the inquiry they're consistent with what we're saying here but they didn't directly tackle the question they in effect for the courts and so what we would say is first sensually the reasons that petitioners give there are these three important limitations that the courts articulate and they should have real teeth i think the way that respondents talk about them as applied here they don't have real teeth because there wasn't a real analysis of feasibility here there wasn't a real it now sense of addressability and nine hundred fifty thousand dollars in fees were bumped up to two point one million through a two point two multiplier that's essentially sort of plucked out of the air just to reverse justification for taking two million in fees off of an eight million dollars settlement that didn't actually deliver any relief to the class on its specific claim here which is that there's or further that turns over my information and all three of those seem like serious problems and i think that it's important that if the court reach the merits tighten them up so that we don't have cypre that's completely untethered from the injury of the class and the relief that's actually being delivered are no further questions thank you thank you counsel you mr chief justice and may it please the court to the extent petitioners are arguing for a per se rule invalidating settlements where the monetary payments only go to third parties nothing in the rules enabling act or rule twenty three authorizes a flat does impose significant strict constraints which is why i think these settlements are rare maybe i'll just say they are about standing because someone's probably going to ask about it well go ahead  we agree with the government that there's a serious question about whether this action was ever properly in federal court and that the standing issue has to be addressed before the court could determine the questions presented so that means either the case should be dismissed as improvidently granted there should him to have a sufficient allegation of injury we think it depends on this re identification theory as as general wall indicated and the complaint in paragraphs eighty eight ninety five doesn't alleged  to happen a website operator has to get more than one search because the whole idea is you put the searches together to figure out who's making them there's no allegation here that mr italian no for his clerk searches clicked on the same website and therefore there's really no does google admit it discloses third parties i don't know all of us and probably done searches if i do a search and search for men's shoes i will immediately get all sorts of advertisements for men's shoes or whatever other product i am searching for what do you admit that you disclose well the issue here is is is there a fair or there are lots of cookies and other things that  generate the serving up of ads to your particular computer the question here is the referrer header which is that the search terms when you when you conduct a search you get a list of websites when you click on one of those sites that site gets your search that's the issue here and that's not a harm that is a harm i don't think was i don't think that the mere disclosure of a search without more your he is receiving the men's shoes advertising so somehow something he's doing is identifying his website and given that i went into a store not long ago and without giving them anything except my credit card they came back with my website i see almost that there are there are lots of ways  information is disclosed but don't have to do with the referred header again we're talking about the referred header here there are lots of other oh i see you know cookies in your browser and other other ways that you may be certain ads based on your search as that's not the between the recipients and the karma ledged in the complaint and the plaintiff class here the plaintiff class was everyone who used google in an in a very long period under twenty one million people basically everyone in the internet in america it is a fact that elderly people are less knowledgeable about privacy and their vulnerability on the internet than other people and so having part of the award be designated to for that group we think meets that fit especially learning a group as it ages in engages in political activity having nothing to do with the inability of elderly people to well this grant had nothing to do with political activity that they are people like the other recipients had to submit a proposal and the money was specifically for that pinkus you talked about the re identification theory and i'm not quite sure i understand it so could you tell me the technology that i need to know to understand it and what plaintiffs would have to show to prove their own theory of harm well i think this is one of the reasons why more information either rebirthing here or a rematch is necessary but what would have to be alleged would be that enough refer headers went to a single website operator that that website operator could combine them and say aha i can now figure out that this is the person who made the search and tie the search terms to that person i'm not sure that would be enough the restatement section six fifty two eight seems to indicate that a defendant one is based on the allegations of the complaint whether they are sufficient and the second is whether the allegations of the complaint are in fact backed up by real facts both of those are preliminary inquiries at the standing stage in this case google components one is is that is the kind of harm that's generally recognized and then if it's not the question is is it intangible harm that because of its recognition of the common law or because of what congress may have elevated it makes it a harm that's action and i think under the stored communications act there's a real question it's an act that both requires that a plaintiff be aggrieved and it's an act the two circuits have said requires proof of actual damages to recover and so there i think there's a very significant question about whether that act could be said by two that in that act congress could have been said to elevate that harm without balling makes sense if you get to the merits professor rubenstein's brief for him to that interesting could we say something like this where the actual plane use received something significant so there were then quite often there is money left over a little bit s sometimes more but where and in those circumstances you apply the a life or step thing and just do it and be sure but where they get nothing in those circumstances while we wouldn't say never what's happening in reality is the lawyers are getting paid and they're making sometimes quite a lot of money for really transferring money from a defendant to people have nothing to do with it and under those circumstances scrutinize very carefully to see that the four standards are met i think there should be careful scrutiny of it i mean you heard i was trying to  think i think there's a great difference between most of the cases that mr frank relies on which are cases where claimants have been identified and there is nonetheless a separate multi million dollar cypre payment that's a very different case because you don't have the question of the cost of identifying the plaintiffs in this kind of case where the question at the outset is is it worth the candle to try and identify the claimants because you have a very large class and a very small settlement there should be close scrutiny a three part test one is feasibility is the amount that the class members are likely to receive after administrative costs taking into account what the claiming rate may be so small that the benefit of that payment to a class member is outweighed by the indirect benefit from the third parties activity i think that's a tough test the district court needs discretion because there are two unknowns what will the administrative cost actually be of distributing the money and two how many class members will claim but that's the question the district court should have asked second the district court should look at the link between the harm the claimed injury and the recipients we don't agree with general wall that there's a redress ability issue here this is a settlement settlements between individual parties are not limited to things that would be awarded under the statute but for the tests to be satisfied we think the funds have to be used for a purpose that will benefit the class members and address injuries similar to those that are subject to the lawsuit and the third test is no conflicts of interest that the the lower courts here actually address that test we don't think the fact the happenstance that the defendant may have given contributions in the past to the organization should rule them out but the courts should make sure that this isn't the displacement of money that the defendant would otherwise  control the money and decide how it's going to be used and that point would you agree that the district court should never be the one suggesting possible recipients of the funds of a settlement he has to prove i totally agree your honor i think this is a settlement is an agreement between the parties the district court's role here is to apply rule twenty three and tell the parties that for because one of these three tests is not met we would submit that the settlement is not approved and then if they if they have then it's up to the parties to go back and come up with different recipients or a different process that beats the test why is why do you go why do you why do you assume that simply because someone wants money in the settlement or is entitled to that he's also opposed to what gave rise to the wrong i mean you may be in an auto accident someone who speeding doesn't mean you automatically think that highway safety is affected and the speed limit should be changed well i just want money for because of what happened to you and i think that's why i think the critical first inquiry is is the is the in the real world is the is the cost of distributing the money going to mean that people get essentially little or nothing or or essentially nothing so that this indirect benefit is better i don't is i think i think just as kavanagh i'm sorry isn't always better to at least have a lottery system then that one of the points one of the injured parties gets it rather than someone who's not injured why isn't that always more i think that we agree with the government that a lottery system would be very strange if a class member takes the time to file a claim it's it seems you're a me too well i think this is a question of what's more strange i think well if i may answer the question i think this is actually and this is partially answered the chief justice question of the actual application of cypre like doctrine here is that the class representatives and their lawyers are essentially fiduciary as to the class and they're looking at this and saying does it make sense at the end of the day to have this indirect benefit rather than a direct benefit that essentially going to be a dollar thank you coun which i am can thank you mr chief justice may please the court this case undoubtedly implicates interesting policy and empirical questions but those are the types of questions that the administrative office the judicial conference the advisory committee congress can investigate and answer where did the doctrine come from was that created by congress no your honor the cypre doctrine comes out of and it's in aptly named from the notion that what someone who gets a reward someone who gets an award can repurpose it to a different thing to a different purpose if the person if the existing purpose isn't used fusible so for example we're cite the beastie boys samples private parties regularly will get an award or a settlement but they can actually instead of having that settlement come to them go to a third party for their benefit and the question this case is there anything in rule twenty three year that says that classes the class representatives where it's fair reasonable adequate cannot do exactly what the beastie boys or any other private the alternative when you have the possibility of getting millions of dollars of indirectly it is better it is fair reason adequate to get that when the alternative is likely nothing or the nominal equivalent of nothing and that's the fundamental decision that i made if it's infeasible if it's not possible to get this money out to people without it becoming practically zero or there's a great risk about happening then you can take the money and give it to and institutions for particular uses that serve the interests of the individual class members and that is opinion do they serve the interests of the individual class members in the opinion of the individual class members well the decision is initially made by the class representatives and the lawyers and it's subject to judicial review by the court and that in this case rather than simply giving money to pay and frankly this is an issue that's not before the court because petitioner didn't challenge the part requisite nexus between the recipients and the interest of class members but turning to it anyway in this case specific proposals were provided and those proposals are actually quite closely linked to not just the injury that occurred here and that underlies both the cause of action and the actual complaint but also the specific there is the appearance as the district court  hearing the appearance of favoritism and all maters of of counsel i think in this case the district court acknowledge that there was the potential conflict he did what a district court should do he took evidence counsel from counsel live in court including the statement i got my degree from harvard and that's simply the end of it he reviewed detailed proposal which carefully calibrated the the money to the specific harms the impact of search terms and disclosures and third party data flows and the district court found no indication that councils indicate allegiance to a modern factored into selection would only i think it's just a little bit fishy that the money goes to a charity for five one c three organization that google had contributed to in the past so you want to remember chris because we're in the high tech area and we're in merging area there's only so many organizations they're going to have track records of this and so it's not it also i think there are other organizations active in the area that google had not contributed to in the past and many were included here but one of the critical things is while google was involved in this is that the page forty of the joint appendix was involved in identifying potential recipients it counsel for class the class the class and then google for its as part of the deal i'm not suggesting that's what's going on but the allegation is as part of the deal they get to give money to their favorite charity and the district court looked at it and understood that google's role ended at selecting potentials tha finding who got how much money either and the district court heard from counsel said look it's not just an accounting court change and the court responded i appreciate that and that's a joint appendix one thirty five google's own counsel explain to the court that if you look at the detail these programs and the lack of google's involvement in the development of the programs it rebuts that that's joined appendix one fifty five if you look at the actual subpoenas these are not necessarily flattering recipients for google there's a tool that referred google to the f t c result a seventeen million dollar fine one of them is dedicating its its money to among other things auditing from outside the google google's compliance with privacy policies in each of them which is where i was going just a moment ago  to not just privacy on the internet but what happens when you do searches for example the burtons is not the appearance problem here which has happened in many cases is symptomatic of a broader question which is why is it not always reasonable more reasonable in this situation which is a difficult one to try to get the money to injured parties either through pro rata distribution or some kind of lottery system imperfect or strange as that may be it seems to me potentially less strange or why isn't it less strange than giving it to people who weren't injured and are who have affiliations with the council and to in many cases don't need the money in terms of what the standard is yes absolutely the priority is to give the individual class members money that's the number one party and only when it proves unfeasible to do that can you go to a cypre result and in this case and i'm trying to court to pound up forty seven a they just court actually found he looked and said there cost to do claims processing cost two claims forms cost to do distribution and said it's clearly unfeasible when you look at those things how about a lottery versus this is a lottery doesn't really help much for two reasons first you have to go and identify the class members in order to determine who would you give your lottery tickets to so you're knocked out go have to go out and find the names of one hundred twenty nine million people or however many are going to submit and ask you have to process and determine are these valid requests for use all of the money virtually all the money to actually set up this lottery process process to accept all these claims and minister of that process in the next to the vast majority of the class and say we're going to take some people who are injured in title money or not going to give their money  reduces is the end mailing costs that's the only thing it does it reduces to pick up on the chief justice his comments the appearance of favoritism and collusion and which is rife in these cases at least that's been the allegation in lots of courts that have said that in the district court here is you know  the transcript was very concerned about that but he wasn't concerned about the collusion because he specifically found that it did not enter into the decision and if the district court had concert the standard everyone agrees is if there's even doubt if the determine that after looking at all the evidence after looking did you tell professor proposals after hearing from counsel after doing all that there wasn't that substantial doubt and i think we can rely on our district courts to make those determinations to be careful and to not get e relief that would benefit benefit a broad class but the purpose benefit the public it's compensation for them and for the class members and at the end of the day what happens to the attorneys get money and a lot of it the class members get no money whatsoever and money is given to organizations that they may or may not like and that may or may not ever do anything that is even in direct benefit to them so how can how can such a system be regarded as a sensible system so two parts of the first is with respect to fees and we don't believe because it's rule twenty four age or reason value what is the cypre benefit and then make a determination is the few disproportionate result and they can reduce it and in fact they have in the past a number of cases reduced fees because it's a supply sider a distribution the second part justice alito is that somehow this distribution doesn't benefit the class but this isn't a case where you simply take money and give it to charity that happens to be in a space that's similar to or occupied by the underlying injuries there are specific proposals here with a very close  injury here is that search terms are given out and i'm going to come back to standing in a moment if i have enough time but the search terms of individuals if you are given out to third parties without their consent and the store communications act is very clear it's not illegal to give out that information if there is consent and both prospective relief the modifications to get google's f a q's and all these organisations are working towards making sure that the public is properly notified that this is the consequence entering exponentially extremely personal information what your worries york cern's are into that search box will do so it is not at all even remotely the case that this is not benefiting the class this is targeted precisely the type of injury and precisely of problem privacy invasion that that class was subjected to you started when you started with what for me is a very good point which is why is this for us and not for congress and the committee but on the other hand the retort to that is that the committee  thinks it's for us and it would in maybe congress does too because reasonable gives common law like power to the courts to figure out to put limits on these things so how can we rely on congress and the committee if they're thinking they over time apply in the iron from experience and then draw it sometimes bright line rules as are in rule twenty three eighty two it's a reasonable fee courts typically fill reason oneness with factors and considerations they typically don't substitute a different test turning to standing very quickly look now the court below addressed stuart communication act or the other four causes of action under this standard of spoken very few courts have there's a dearth of authority on it so this isn't a situation where the court should be going out on its own and addressing the issue without the benefit of the few points of other jurists without the benefit of the refinement that occurs when the case comes up from the lower courts they simply didn't apply that standard so the court has two dismiss as importantly granted but that aside that is in the court's discretion turning to the merits of the court were to be the first to let you take an extra minute on standing ok if the court were to be the first to address the store communications out under spoke since the framing the rule has been that this closure of another's communication without their consent is actionable and the court can look to the justice story's opinion and force and versus marsh for that even the recipient of the letter was not permitted to disclose that letter without the author's permission that issue was thoroughly briefed by the united states among others in the court and overseas chow recognized that for privacy harms there often actionable without specific harm that the damage is presumed congress is entitled to make that same judgment that is the alleged injury here am i correct is that a third party will know that a particular person did this search it's not one it's not simply the nature of the search is that correct i think that when it's associated with you that that is an injury but merely disclosing your letter even if it was an anonymous letter to a third party i think that would have an actual more common law that an actual before the framing but since congress did make the judgment in this case that even without individual actual harm that the presumed harm is insufficient because it gave as damages not just actual harm it gave his damages the wrongdoers profits there is entitled to recover the wrongdoers profits which again is consistent with the common law but this is an extraordinarily complex court my friend is alleging that the district court made factual findings that it simply did not reach because it believes its hands were tied by the ninth circuit precedent it did not look at the potential conflicts between google and the recipients because in lane versus facebook the ninth circuit approved a settlement where facebook gave to a charity created by facebook it did not look at the difficulty of distributing to some class members because the ninth circuit has a de minimus standard and as we discussed at page twenty two of our reply brief what the district court found was that it would be too hard to distribute to over one hundred million class members we don't contest that but that's not the standard under any other court so returning to the question that a number of justices raised why not leave this to congress and i return to the example of state oil versus con where the court was interpreted ng restraint of trade under the sherman act and not only was it interpreted that but it already had a three decade old precedents albrecht that it was being asked to reverse and congress had specifically considered the  the those three decades and never acted on it yet in five twenty two us three stable overseas con the court unanimously reversed albrecht and came to the economically sound conclusion about the way to interpret restraint of trade and we have courts here that are already importing a proportionality requirement into the reason listen fairness inquiries and at no point to my friends indicate counsel is faithful to their fiduciary obligations counsel response to those incentives the ninth circuit's rule creates incentives for class council to argue that it's too hard to get money to the class and in fact would take many settlements that are settling now for less than a dollar per class member for less than two dollars per class member that distributes tens of millions even over one hundred million dollars to class members it's now appropriate under the ninth circuit's rule to take all that money and give it to the defendant's favorite charity or the plaintiffs to your charity if there are no further questions i'd ask the court to vacate and rivers thank you counsel cases submitted