Legal Case Summary

We'll hear argument first this morning in case 17961 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 Amcam instructs that courts should interpret rule 23 with the interests of absent class members and close view The best way to interpret rule 23's text requiring settlements be fair and reasonable Is to allowing class councils interests with those of the absent class members In deposit guarantee versus roper at page 339 This court called it an abuse when class members were not the primary beneficiaries of a class action How can it be fair and reasonable for a court to endorse such an abuse? Why isn't it abuse because practically the class members would get nothing nothing at all and here At least they get an indirect benefit Well, the indirect benefit is even less than nothing The it was feasible To distribute money to class members and instead class council chose to Agree to a settlement that directed that money elsewhere. How much would it have come to For each class member each claiming class member probably could have gotten between five and ten dollars with Typical claims rates if for example in the frailey versus Facebook settlement the Courts rejected an all-sided pray settlement. Sorry. There's an amicus brief That talked who laid out pretty 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 67 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 67 cents didn't make sense because the cost would outweigh what they would pay Well, the district court applied the wrong legal standard but no, no, I know you're a standard right right ability is Can we give 10% of the class something even if nobody else gets anything? Meaning what you would like to do is Is select 10% of the class and pay them alone and do nothing for everybody else? Well, no, 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 indifferent to the opportunity and Everybody else would receive not even an indirect benefit. No, they would receive the opportunity to make a claim. They always have that opportunity. They don't have that opportunity here. I as a class member, class members were deprived of that opportunity. They could opt out. They could opt out an AMKM also, but that didn't make the settlement fair. But I go back to my point which is Are you disputing the finding a fact that under the normal application of feasibility whether 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 circuits to minimalist test under Lane versus Facebook Which required it to divide by the entire denominator of the entire class in reality Settlement settle all the time for well under a dollar per class member and then successfully distribute that money to the class because Most class members are just simply indifferent to the opportunity for these small sums And then is it all right to have some kind of a secret doctrine operate? But with with with all the class members who built Minkin and Kling? I Don't understand the question just as I apologize I Supposed The class members are notified and only 10% of them make a claim What happens to the rest of the amount that was agreed upon as a settlement? First of all in practice, I just want to let the court know that 10% is an extraordinarily high claim rate that claims rate is typically below 1% But 99% 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 a very small percentage make the claim and The fund is distributed pro-rata to them. That's what happens in frailay where the number of class members making claims was so small They still had money left over even after giving every claiming class member $15 Even though we were talking $9 million for a hundred and fifty million class members. That's six cents per class member What what do they do to they wait until a reasonable period and figure out most of the claims are in and then divided up or The settlement procedures will establish 90 days or 60 days or 120 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 IQ where again, even though we were talking pennies per class member It only cost them $600,000 to distribute a few million dollars to 30 million class members and still audit the claims and reject 30% of the claims Sorry, I'm talking This is a full site prey award meaning there's no direct benefit to the class What about the residual side prey? I thought in many instances if a fund is created and The claimants are all paid off. There's some money left over the residual side prey and that's given indirectly often uh Circuits differ on that the seventh rejects that proposal because they recognize that the settling parties have the ability to Adjust the claims right by depending on how difficult they make the claims process so in a seventh circuit case there is a 1.1 million dollar residual and 12 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 Reduce settlement on remand millions more dollars went to the class Because they changed the the 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 35 million dollar fund uh 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. There were only going to distribute three million dollars with over 15 million to Cypry and the third circuit rejected that That the district court failed to prioritize direct benefit to the class and it's assuming all of that Let's assume a very efficient claim process. Let's assume a a 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 legitimate There's been an easy claims process. There's been a simple uh distribution Whatever You're still saying that an indirect benefit a partial Cypry is not okay? I'm saying that uh, you can't reward class counsel for it You have to incentivize them to prioritize the direct benefits of the process. So your position is that Cypry is okay But we should write legislation in our opinion saying that we can't pay Class counsel for that. Have 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 district court's discretion appropriate until the Congress looks at this and decides? I think rule 23e means something and this court has previously called disproportionate benefits and abuse and It's very clear that rule 20th not not it's not the case that everything goes under rule 23e so long as a district court rubber stamps it in the case such as this uh is any effort made and would it even be possible to determine whether every absent class member or even most of the absent class members were guard the beneficiaries of the Cypry award as entities To which they would like to make a contribution Uh, it's very possible to establish a claims process where Somebody's checks a box and said instead of sending me a check for six dollars Sended to the American Cancer Society Uh, nobody does that Uh, 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 intermediary of 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 agreed 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 uh They chose these particular beneficiaries. So the parties and 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 I've seen settlements where the judge says I don't like these beneficiaries pick these beneficiaries Where the judge has designated the beneficiaries? Uh There are settlement structured where the judge Designates the beneficiaries Uh, and in another google settlement that we discuss in our opening grief Uh, the parties designated a beneficiary and and the court reads designated the beneficiary Uh, different we No, please go ahead. No Justice Kagan. I was going to change the subject So is I jurisdiction yes go for it Uh, may I ask you mr. Frank to you um to address the the standing issue in this case to to talk about What you think the harm was and whether any court has addressed Uh your theories about the harm uh? Are you talking my harm or the harm of the plaintiffs? The harm of the plaintiffs the harm of the plaintiffs We discussed that at pages 25 and 26 of our reply brief and one of the names plaintiffs Anthony Italiano Uh, alleges a statutory violation That corresponds to the common law toward public disclosure of private facts and The lower courts are unanimous in holding that that kind of statutory claim Satisfies Spokyo Even on remand in Spokyo the ninth circuit Found standing and this court denied cert the second time up So I don't think there's a real standing issue unless the court is inclined to expand Spokyo Uh, I had thought mr. Frank that the uh lower court Thought that there would be they would they would stand in just a cause it was a statutory claim and that there was no reason That the plaint have had to show a particularized or a concrete injury That is certainly the wrong standard for the district courts who have applied 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's concurrence in Spokyo indicated was acceptable and what lower courts have unanimously indicated that it was was acceptable I was curious where you were going to come down but before he filed your brief because obviously if there's no standing the whole Class actions thrown out right Uh, that would be correct That would be the right thing to do the under Arizonaans for proper English or official English That's exactly what the court did the court found that the lower courts did not have jurisdiction and vacated everything You say um to follow up with Justice Kagan who anticipated exactly where I wanted to go You say there's an allegation with respect to mr Italiano 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 Um through the white pages and otherwise published so that there is no injury in fact Well that goes to the merits uh if I alleged that uh My friends here punched me in the head and and owes me over $75,000 and were citizens of different states I had a claim for standing even if that claim is completely fictional Well fair enough at a 12-by-six stage but here we're entering a final judgment and should we at least remand To to a lower court to make a decision as to whether there is actually standing as opposed to your allegation of standing um I Don't think that's the case. I think the the the allegation of concrete injury Establishes the standing and then the merits questions always different than the jurisdictional question What is the private? I mean would I have here my locker read up is that the search that Mr Italiano engaged in was his name That's certainly public his home address. I imagine that's public name and bankruptcy His name and foreclosure proceedings His name and short sale proceedings His name and Facebook and his name and the name of his then soon to be ex-wife and the words forensic accounting Now how go look if that if all through 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 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 Spokyo 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 statute forbids it is enough which I think is one thing Spokyo says that's wrong I agree that the judge did not apply the Spokyo standard and If you think the ninth circuit would do something differently here than it would in Spokyo or has a chance of doing something differently here Then maybe the appropriate decision is to remand and let them consider that and while the case For Mr. Italiano's injury may be weak Which Suggest why to settle for such an infinitesimal amount of the statutory damages That does not change that the allegation was made and that uh the allegation is made But where is an allegation of some kind of injury that would actually concretely and particularly heard him by somebody looking up On the uh at Google and discovering he made those searches Even under the common law the public disclosure of private facts and we share the private facts The private facts but regarding the dissolution of his marriage and and uh things of that nature Again though, I think this gets more we're stuck in the same place I think which is That you have to assume that that information isn't otherwise available at least in it fine You don't want to prove it an allegation of it

. There's no allegation that that information wasn't otherwise available Uh, what do 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 uh what a majority Of the court indicate it would be uh sufficient under Spokyo and what the lower courts have repeatedly found With respect to Spokyo then the appropriate decision is to have a limited remand and take it back up If assuming that the court finds jurisdiction It is putting aside the question whether it's pertinent to the standing analysis just so may I understand the claims the Disclosures Go to any searches that somebody engages in correct That's correct. Okay So it may be that they have the wrong name plaintiff if the disclosures are not private Uh If if both gous and italiana don't qualify then they might have the wrong name plaintiff If one of the name plaintiffs Satisfies it though under runs velled versus fair That would be sufficient, but it has to be one of the name plaintiff. It does have to be a names plaintiff Uh But you're all the minutes passed in standing you're not challenging that We're not challenging standing. We're not challenging the courts finding nobody is challenging the courts finding under Rule 23a that all the class members have a common injury The ninth circuit standard Creates perverse incentives for class council to divert money away from their clients and to third parties uh When courts have insisted that attorneys don't get paid unless their clients get paid The attorneys find way to improve the claims process and make money get to the clients I I understand your fear But as I look at the full-side press awards they're rare The list that I've looked at is what five in how many years It's not as if it's occurring routinely um Number one number two you do point to some potentially abusive situations But in all those situations is the cases where the circuit court rejected A side-priot 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 affirms by this court and otherwise uh class council will Direct settlements to the ninth circuit there are two all-price settlements with just Google alone that are pending Waiting for resolution of of this decision and the ninth circuit standard permits even 100 million dollar settlements. How is the ninth circuit standard Different than all the other standards. I thought the circuits had basically coalesced Around the ALI Three factor test The ninth circuit rejected that it said All that's needed is that the money is diminimous per class member and that's at page eight of the petition appendix And we see that in our supplemental grief where we point out that In a case with 1.3 million class members where every class member was identifiable and three to nine million dollars left over The court said that's diminimous and It's okay to send all of that to A local university where the defendant can name a chair after itself. So is this Appeal all about feasibility alone? No, the it's about settlement fairness under rule 23e. I'd like to reserve the rest of my time for rebuttal. Thank you council General wall Mr. Chief Justice and may please the court two points First when the district court here resolved petitioners objections approved the settlement agreement and entered it as a binding judgment That appears at pages 62 to 66 of the petition appendix It was exercising article three jurisdiction Which means the plaintiffs had to have standing and the courts ordered Cyprah relief had to redress plaintiffs injuries under laid law 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 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 fee. I mean, I think you either decide the Cyprah Award provides relief or it doesn't provide relief if it doesn't provide relief you don't get a fee for it But if it does provide relief and I don't know why the fee should be cut back just because it's not money Well, 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 redressability and feasibility and it tightens the inquiry I still think it's possible to say Mr. Chief Justice that tailored Cyprah 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've got really tailored Cyprah The problem here is that of the six proposals only one even argue the world privacy forums proposal Even arguably deals with referral headers and the subject of this suit That one of them the aARP's proposal deals with online fraud and this wasn't even 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 Cyprah is going to be so far divorced Despite I think what I think are serious redressability concerns from the cleaned 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 Uh, at the 12b6 stage. It's the plaintiff's obligation to a ledge Standing if it wasn't alleged properly sufficiently then uh, then We should then then there isn't any standing why why does why is a remand necessary? I think the court could decide it Justice Lido I think it could decide it or remand we would urge the court to do either of those rather than dig Yeah, but why remand well because I think uh and Justice Gorsuch 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 searched Mr. Italian 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 websites you clicked 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 Spokyo 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. It's already public and they're not pointing to any other additional harm Is that harm under Spokyo? I think that latter part of it is a legal inquiry that I agree I think the court is as well position as a lower cause of the Every time we get a case where there's been a dismissal at the pleading stage and a question of standing arises We should remand it 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 alleged all the elements of whatever claim is being pressed Just so you know, I think the court could decide it if the court thinks that on the basis of these allegations It's got enough to decide the standing question. I think it could do that here We know this on that very point We have in the complaint quote There was one search that was his name Ataliano and then quote the name of his then soon-to-be ex-wife and quote All right now was the search The words It couldn't have been the unnamed it there 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 But 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 a part I don't think it's the I don't think that what they're pointing the harm is the disclosure of the information itself I think the harm that they're claiming is the disclosure that they performed that search I am known then to have searched for my name plus the following terms and for the reasons I the two reasons I gave Justice that is on tree. I'm sorry. Isn't that an 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 on a may or may or may not be at cause of action, but it's a harm Just having on I'm not so sure at the common law it was at least uncertain as of the secondary statement and the 19 But it doesn't have to be exactly at common law according to the language in Spokyo. It doesn't say that No, I it's just an analog. I look I will agree with you that on a particular Just as a common sense matter. Well, I'll just go to plain common sense. Oh on a search for if that's disclosed other people Yes, I think on a particularized basis 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 Spokyo purposes? If it's not true it is to another person I again, I'm not sure that it is a sufficient harm under Spokyo I will say though that the predicate problem that the reason I think you don't even get there is this re-identification Theory is itself so speculative I don't think it's at all clear that the internet sites you clicked through to could isn't that a marriage question? I don't think so. I think it's a question whether they've plausibly alleged a 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 re-examined this post Spokyo 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 Cypriot General, what's the government's position on Justice Thomas' theory in Spokyo that standing can be proven by violation of a legal right granted by Congress, even if it wouldn't be otherwise recognized at Calabria? We have not taken a position on that here Justice Gorsuch. So what do you recommend the Court do about that? The government's got nothing to offer us? Just, we would be happy to supplementally 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 wants- Is that reason why we should not decide it in the first instance? Justice Ginsburg, for the reasons I gave earlier, I think the Court could on this record or it could remand. As long as the Court doesn't dig, both because it would leave standing a judgment that I think the Court had no 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 Justice Sotomayor's question earlier, why shouldn't that be a question for the Rules Committee in Congress to address in the first instance? Well, so I look- guidance from Congress would be helpful but in this absence I still think we have to say what the fair reason when adequate standard means in a Rule 23. The Rules Committee has essentially punted to the courts by saying the courts are actively looking at this issue, we're not going to address it

. Now, they did amend the Rule in various ways that I think support our approach. By saying you should consider fees at the 23 E stage, you can delay to see what the claims rate is, the Court 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 deferred to the courts. And so what we would say is, for essentially the reasons that the petitioners give, there are these three important limitations that the courts should 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 analysis of addressability and $950,000 in fees were bumped up to 2.1 million through a 2.2 multiplier that's essentially sort of plucked out of the air. It's just a reverse justification for taking 2 million in fees off of an $8 million settlement that didn't actually deliver any relief to the class on its specific claim here, which is that there's a referer header 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, that it tighten them up so that we don't have Cypriot that's completely untethered from the injury of the class and the relief that's actually being delivered. There are no further questions. Thank you. Thank you, Council. Mr

. Pinkett. Thank you, Mr. Chief Justice, and may it please the court. To the extent that the petitioners are arguing for a per se rule invalidating settlements, aware of the monetary payments, only go to third parties. Nothing in the Rules Enabling Act or Rule 23 authorizes a flat prohibition. And as just a so-to-my-or indicated, and Professor Rubenstein's Amicus brief submits, these are very, very rare settlements. But Rule 23E's requirement that settlements be fair, reasonable, inadequate does impose significant constraints, which is why I think these settlements are rare. Maybe I'll just say something about standing because someone's probably going to ask about it. We'll 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 improvatively granted, there should be remittor, the court should decide the question. I think the question is complicated, under Spokyo. Mr. Italiano is the only plaintiff whose claims weren't addressed by the district court. In order for him to have a succession allegation of injury, we think it depends on this re-identification theory as General Wall indicated. And the complaint in Paragraphs 8895 doesn't allege for re-identification 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

. Italiano for his search has clicked on the same website and therefore there's really no way that the re-identification What does Google admit it discloses to third parties? I don't know. All of us have 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. So what do you admit that you disclose? Well, the issue here is there are lots of cookies and other things that generate the serving up of ads to your particular computer. The question here is the referer header which is that the search turns 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 isn't a harm? I don't think that the mere disclosure of a search without more your men's shoes search is not a harm because there's no disclosure that you're making the search. There's a disclosure that somebody searched for men's shoes. Based on what Justice Alito typed in, right? Someone searched for men's shoes. Well, yes, but not the Justice Alito search. But my eyes are nervous. I'm not sure how not. I'm not sure how not. The reverse engineering is self-evident because 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. It seems there are lots of ways that information is disclosed that don't have to do with the referer header. Again, we're talking about the referer header here. There are lots of other ways that you may be certain ads based on your searches

. That's not the claim in this case, the claim in this case. But do you think that problem is going to be meaningfully redressed by giving money to ARP? Well, I think the question is, I think it is because only a problem for elderly people. No, but ARP is not the only recipient and elderly people are particularly. Well, I'm not changing the question because ARP is one of the recipients. It is. And I think one of the questions that a district court has to ask is the fit between the recipients and the carm alleged in the complaint and the plaintiff class. Here the plaintiff class was everyone who used Google in a very long period, 129 million people, basically everyone on 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 for that group, we think meets that fifth. Including a group that 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 ARP, like the other recipients, had to submit a proposal and the money was specifically for that proposal. May I go back, Mr. Pinkist? 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 rebreathing here or a remand is necessary. But what would have to be alleged would be that enough referer 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 652H seems to indicate that actual imminent damages are required for privacy violations. In other words, the mere revelation of facts at common law in the 1960s was not enough let alone

. That's a merit question. 1787. I don't think so, Your Honor. I think that's a fact. This is why you have to harm, and you don't have a mini-trial on whether the harm sufficient for standing is proved. I think that that standing, there are two ways that standing can be contested by a defendant. One is based on the allegations of the complaint, whether they're 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 filed a motion to dismiss Mr. Taliano's claim when the final consolidated complaint was filed that the district court didn't act on that motion. But I think the question whether the Spokyo question, whether there's concrete harm, has two components. One is the kind of harm that's generally recognized. And then if it's not, the question is, is it an intangible harm that because of its recognition at the common law or because of what Congress may have elevated, makes it a harm that's actionable? 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 that two circuits have said requires proof of actual damages to recover. And so I think there's a very significant question about whether that act could be said by to, that in that act Congress could have been said to elevate that harm. Would you following make sense if you get to the merits? Professor Rudenstein's brief, I'm referring to that, it's interesting. Could we say something like this? Where the actual plaintiffs receive something significant, so there were, then quite often, there is money left over a little bit, some or sometimes more

. But where, and in those circumstances, you apply the ALI for a step thing and just do it and be sure it's done. But where they get nothing. And do 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 the defendant to people who 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. I mean, I was trying to make up everything. Yes, 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 side-pray payment. That's a very different case because you don't have the question of the costs 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 and 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 party's activity. I think that's a tough test. The district court needs discretion because there are two unknowns. What will the administrative costs actually be of distributing the money? And two, how many class members will claim? But that's the question the district court should ask. 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 redressability issue here

. This is a settlement. Settlements between individual parties are not limited to things that would be awardable under the statute. But for the test 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. The lower courts here actually address that test. We don't think the fact that the happenstance that the defendant may have given contributions in the past to the organizations should rule them out. But the court should make sure that this isn't a displacement of money that the defendant would otherwise give. And the organization will 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 approve? I totally agree, Your Honor. I think this, a settlement is an agreement between the parties. The district court's role here is to apply rule 23e and tell the parties that because one of these three tests is not met, we would submit that the settlement is not approved. And then if that, if that, then it's up to the parties to go back and come up with different recipients or a different process that meets the test. Why is it? 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 by someone who's speeding, that doesn't mean you automatically think that highway safety is affected and the speed limits should be changed. Well, I just want money 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 essentially nothing so that this indirect benefit is better. I don't think that's, I think, I think Justice Cavendor. I'm sorry. Isn't it always better to at least have a lottery system then that one of the plaintiffs, one of the injured parties gets it rather than someone who's not injured. Why isn't that always more reasonable? 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 seems that it would be a real. 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 an answer to the Chief Justice question, the actual application of a side prey like doctrine here is that the class representatives and their lawyers are essentially fiduciaries 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 is essentially going to be a dollar. Thank you, Council. Mr. Lamkin. Thank you, Mr. Chief Justice. May it 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 this side prey doctrine come from? Was that created by Congress? No, Your Honor. The side prey doctrine comes out of, and it's inapply 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 current, if the existing purpose isn't used feasible. So for example, we recite the Beastie Boy examples. 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 in this case is, there are anything in Rule 23E that says that classes, that class representatives where it's fair, reasonable and adequate cannot do exactly what the Beastie boys or any other private party can't. And Rule 23E doesn't answer that question by saying, never. It answers that question by providing a standard of fairness, reasonfulness, and adequacy

. Why isn't that always more reasonable? 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 seems that it would be a real. 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 an answer to the Chief Justice question, the actual application of a side prey like doctrine here is that the class representatives and their lawyers are essentially fiduciaries 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 is essentially going to be a dollar. Thank you, Council. Mr. Lamkin. Thank you, Mr. Chief Justice. May it 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 this side prey doctrine come from? Was that created by Congress? No, Your Honor. The side prey doctrine comes out of, and it's inapply 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 current, if the existing purpose isn't used feasible. So for example, we recite the Beastie Boy examples. 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 in this case is, there are anything in Rule 23E that says that classes, that class representatives where it's fair, reasonable and adequate cannot do exactly what the Beastie boys or any other private party can't. And Rule 23E doesn't answer that question by saying, never. It answers that question by providing a standard of fairness, reasonfulness, and adequacy. The question is what reasonfulness means. I think that's right. And the question is, and the answer to that I think is, when the alternative, when you have the possibility of getting millions of dollars of indirect relief, it is better. It is fair, reason, and adequate to get that when the alternative is likely nothing, or the nominal equivalent of nothing. And that's the fundamental decision that AI made. If it's infeasible, if it's not possible to give this money out to people without it becoming practically zero, or there's a great risk of that happening, then you can take the money and give it to institutions for particular uses that serve the interests of the individual class members. And that was 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, and frankly, this is an issue that's not before the Court, because petitioner didn't challenge the requisite nexus between the recipients and the interests of the 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, that underlies both the cause of action and the actual complaint. But also the specific- But there was the appearance, as the district court said, in hearing the appearance of favoritism and alma materers of counsel. I think in this case, the district court acknowledged that there was a potential conflict. We did what a district court should do. He took evidence. He heard 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 proposals, which carefully calibrated the money to the specific harms, the impact of search terms and disclosures and third-party data flows. And the district court found, quote, no indication that counsel's indicates allegiance to alma materers factored into selection. Well, don't you think it's just a little bit fishy that the money goes to a charity or 501c3 organization that Google had contributed to in the past? So you want to remember, because we're in the high-tech area and we're in an emerging area, there's only so many organizations that are going to have track records of this. And so it's not it also causing- I bet there are other organizations active in the area that Google had not contributed to in the past

. The question is what reasonfulness means. I think that's right. And the question is, and the answer to that I think is, when the alternative, when you have the possibility of getting millions of dollars of indirect relief, it is better. It is fair, reason, and adequate to get that when the alternative is likely nothing, or the nominal equivalent of nothing. And that's the fundamental decision that AI made. If it's infeasible, if it's not possible to give this money out to people without it becoming practically zero, or there's a great risk of that happening, then you can take the money and give it to institutions for particular uses that serve the interests of the individual class members. And that was 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, and frankly, this is an issue that's not before the Court, because petitioner didn't challenge the requisite nexus between the recipients and the interests of the 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, that underlies both the cause of action and the actual complaint. But also the specific- But there was the appearance, as the district court said, in hearing the appearance of favoritism and alma materers of counsel. I think in this case, the district court acknowledged that there was a potential conflict. We did what a district court should do. He took evidence. He heard 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 proposals, which carefully calibrated the money to the specific harms, the impact of search terms and disclosures and third-party data flows. And the district court found, quote, no indication that counsel's indicates allegiance to alma materers factored into selection. Well, don't you think it's just a little bit fishy that the money goes to a charity or 501c3 organization that Google had contributed to in the past? So you want to remember, because we're in the high-tech area and we're in an emerging area, there's only so many organizations that are going to have track records of this. And so it's not it also causing- I bet 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, and this is at the page 40 of the Joint Appendix, it was involved in identifying potential recipients, it counsel for class, the class, not Google, vetted the actual proposals. Class Council. Well, I know that the allegation is- Not Google, but the allegation. Which recipient? I mean, the allegation is that counsel for the class and the defendant are working together because no money is going to anybody else, it's just going to counsel for the class, and that Google for its part 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 potential recipients. It had no role in identifying 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 at Joint Appendix 135. Google's own counsel explained to the court that if you look at the detail of these programs and the lack of Google's involvement and the development of the programs, it rebutts that. That's Joint Appendix 155. If you look at the actual recipients, these are not necessarily flattering recipients for Google. There's two of them that refer to Google to the FTC resulting in a $17 million fine. One of them is dedicating its money to, among other things, auditing from outside the Google Ecosphere, Google's compliance with privacy policies. And each of them, which is where I was going just a moment ago, is specifically directed to not just privacy on the internet, but what happens when you do searches, for example, the Berkman Senate. 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 at all, who have affiliations with the Council, and two, in many cases, don't need the money. You're on a, in terms of what the standard is. Yes, absolutely, the priority is to give the individual class numbers money

. And many were included here, but one of the critical things is, while Google was involved, and this is at the page 40 of the Joint Appendix, it was involved in identifying potential recipients, it counsel for class, the class, not Google, vetted the actual proposals. Class Council. Well, I know that the allegation is- Not Google, but the allegation. Which recipient? I mean, the allegation is that counsel for the class and the defendant are working together because no money is going to anybody else, it's just going to counsel for the class, and that Google for its part 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 potential recipients. It had no role in identifying 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 at Joint Appendix 135. Google's own counsel explained to the court that if you look at the detail of these programs and the lack of Google's involvement and the development of the programs, it rebutts that. That's Joint Appendix 155. If you look at the actual recipients, these are not necessarily flattering recipients for Google. There's two of them that refer to Google to the FTC resulting in a $17 million fine. One of them is dedicating its money to, among other things, auditing from outside the Google Ecosphere, Google's compliance with privacy policies. And each of them, which is where I was going just a moment ago, is specifically directed to not just privacy on the internet, but what happens when you do searches, for example, the Berkman Senate. 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 at all, who have affiliations with the Council, and two, in many cases, don't need the money. You're on a, in terms of what the standard is. Yes, absolutely, the priority is to give the individual class numbers money. That's the number on priority. And only when it proves and feasible to do that, can you go to a side-pray result? And in this case, and I'm trying to court to pat up 47a, the district court actually found, he looked and said, their costs to do claims processing, cost to do claims forms, cost to do distribution, and said, it's clearly infeasible when you look at those facts. How about a lottery versus this? So the lottery doesn't really help much for two reasons. First, you have to go and identify the class members in order to determine who do you give your lottery tickets to. So you have to go out and find the names of 129 million people, or however many are going to submit and ask. You have to process and determine, are these valid requests for lottery tickets? Or is this person not a Google user? But at least to someone who, quote, to use your analogy, paid for the lottery ticket, as opposed to giving the billion dollar award to someone who didn't buy the lottery ticket. Well, I think, I mean, that's the, that's the, that's the, the use your analogy. It's a little passing strange to start, to use all of the money, virtually all the money, to actually set up this lottery process, to accept all these claims, administer that process, and then exclude the vast majority of the class and say, and we're going to take some people who were injured and entitled to money, and we're not going to give them their money, we're going to give that money to somebody else because they won the lottery. It's just a little unseemly, in addition to being grossly inefficient because the only thing it reduces, it doesn't reduce claims administration costs in terms of accepting claims. It doesn't reduce claims administration costs in terms of vetting the claims. The only thing it reduces is the end mailing costs. That's the only thing it does. It reduces to pick up on the Chief Justice's comments, the appearance of favoritism and collusion, which is right in these cases, at least that's been the allegation. There have been lots of courts that have said that. And the district court here, as you know, in the transcript, was very concerned about that. Well, 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 concerned, the standard everyone agrees is, if there's even doubt, if there's substantial doubt about whether the recipients were selected on the merits, that doubt is called against the settlement. It's called in favor of trying something different

. That's the number on priority. And only when it proves and feasible to do that, can you go to a side-pray result? And in this case, and I'm trying to court to pat up 47a, the district court actually found, he looked and said, their costs to do claims processing, cost to do claims forms, cost to do distribution, and said, it's clearly infeasible when you look at those facts. How about a lottery versus this? So the lottery doesn't really help much for two reasons. First, you have to go and identify the class members in order to determine who do you give your lottery tickets to. So you have to go out and find the names of 129 million people, or however many are going to submit and ask. You have to process and determine, are these valid requests for lottery tickets? Or is this person not a Google user? But at least to someone who, quote, to use your analogy, paid for the lottery ticket, as opposed to giving the billion dollar award to someone who didn't buy the lottery ticket. Well, I think, I mean, that's the, that's the, that's the, the use your analogy. It's a little passing strange to start, to use all of the money, virtually all the money, to actually set up this lottery process, to accept all these claims, administer that process, and then exclude the vast majority of the class and say, and we're going to take some people who were injured and entitled to money, and we're not going to give them their money, we're going to give that money to somebody else because they won the lottery. It's just a little unseemly, in addition to being grossly inefficient because the only thing it reduces, it doesn't reduce claims administration costs in terms of accepting claims. It doesn't reduce claims administration costs in terms of vetting the claims. The only thing it reduces is the end mailing costs. That's the only thing it does. It reduces to pick up on the Chief Justice's comments, the appearance of favoritism and collusion, which is right in these cases, at least that's been the allegation. There have been lots of courts that have said that. And the district court here, as you know, in the transcript, was very concerned about that. Well, 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 concerned, the standard everyone agrees is, if there's even doubt, if there's substantial doubt about whether the recipients were selected on the merits, that doubt is called against the settlement. It's called in favor of trying something different. But in this case, the court of appeals and the district court both applied that, that ALI standard and both determined that after looking all the evidence, after looking at the detailed 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 engaged in the type of process that brings the judiciary into this review. Now, if you step back from what happened in this case and cases like this, how can you say that it makes any sense? The purpose of asking for compensation, it's not in junk to relieve that would benefit a broad class. But the purpose benefit the public. It's compensation for the class members. And at the end of the day, what happens? 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 of even indirect benefit to them. So how can such a system be regarded as a sensible system? So two parts of that. The first is with respect to fees. And we don't, because that's real 24-H, a reasonable fee out there. We don't think that's before the Court, either. But with respect to fees, it's well established that a court can reduce attorneys fees if it believes that the Cypriot distribution is less valuable to the class than its cash equivalent. It just happened that in this case, the district court heard objectors, arguments, and said that he did not agree that the fees in the center of awards are inconsistent with the value of the class benefit, specific finding on pet app 60. Moreover, class counsel's request is not just proportionate to the class benefit. So this is the situation where district courts on the ground can value. What is the Cypriot benefit, and they make a determination, is the fee disproportionate result, and they can reduce it. And in fact, they have, in the past, the number of cases reduced fees because it's a Cypriot distribution. The second part, Justice Alito, is that somehow this distribution doesn't benefit the class

. But in this case, the court of appeals and the district court both applied that, that ALI standard and both determined that after looking all the evidence, after looking at the detailed 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 engaged in the type of process that brings the judiciary into this review. Now, if you step back from what happened in this case and cases like this, how can you say that it makes any sense? The purpose of asking for compensation, it's not in junk to relieve that would benefit a broad class. But the purpose benefit the public. It's compensation for the class members. And at the end of the day, what happens? 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 of even indirect benefit to them. So how can such a system be regarded as a sensible system? So two parts of that. The first is with respect to fees. And we don't, because that's real 24-H, a reasonable fee out there. We don't think that's before the Court, either. But with respect to fees, it's well established that a court can reduce attorneys fees if it believes that the Cypriot distribution is less valuable to the class than its cash equivalent. It just happened that in this case, the district court heard objectors, arguments, and said that he did not agree that the fees in the center of awards are inconsistent with the value of the class benefit, specific finding on pet app 60. Moreover, class counsel's request is not just proportionate to the class benefit. So this is the situation where district courts on the ground can value. What is the Cypriot benefit, and they make a determination, is the fee disproportionate result, and they can reduce it. And in fact, they have, in the past, the number of cases reduced fees because it's a Cypriot distribution. The second part, Justice Alito, is that somehow this distribution doesn't benefit the class. But this isn't the 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 nexus. The 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 are given out to third parties without their consent. And the Stored Communications Act is very clear, it's not illegal to give out that information. If there is consent, and both the prospective relief, the modifications to Google's FAQs, and all these organizations are working towards making sure that the public is properly notified that this is the consequence of entering potentially extremely personal information. What your worries, your concerns 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 the type of problem privacy invasion that that class is subjected to. So you started with what for me is a very good point, which is wise as 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 what 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 the courts are going to do it? But the court has before it is the text of a rule, and the one thing the court can't do is substitute some categorical rule that it thinks more efficient or better than the rule itself. We have to apply that. And that would courts do all the time with the word reasonable is over time, apply in, learn from experience, and then draw sometimes bright line rules. As in rule 23H where it's a reasonable fee, courts typically fill reason on this with factors and considerations. They typically don't substitute a different test, such as to say, Cypriot, is never fair reasonable and adequate. And it certainly should be fair reasonable and adequate when the alternative is nothing. Could I ask you to address standing, please? Yes

. But this isn't the 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 nexus. The 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 are given out to third parties without their consent. And the Stored Communications Act is very clear, it's not illegal to give out that information. If there is consent, and both the prospective relief, the modifications to Google's FAQs, and all these organizations are working towards making sure that the public is properly notified that this is the consequence of entering potentially extremely personal information. What your worries, your concerns 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 the type of problem privacy invasion that that class is subjected to. So you started with what for me is a very good point, which is wise as 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 what 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 the courts are going to do it? But the court has before it is the text of a rule, and the one thing the court can't do is substitute some categorical rule that it thinks more efficient or better than the rule itself. We have to apply that. And that would courts do all the time with the word reasonable is over time, apply in, learn from experience, and then draw sometimes bright line rules. As in rule 23H where it's a reasonable fee, courts typically fill reason on this with factors and considerations. They typically don't substitute a different test, such as to say, Cypriot, is never fair reasonable and adequate. And it certainly should be fair reasonable and adequate when the alternative is nothing. Could I ask you to address standing, please? Yes. Okay. So turning to standing very quickly. Look, neither court below addressed the Story Communication Act or the other four causes of action under the standard of Spokyo. 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 in 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 low courts. They simply didn't apply that standard. So the court has two options in our view. One is to remand the alternative is to dismisses and privately granted. If the court were inclined to think it might grant again, I think that remand would be the right answer. But this court is so, this case is so right with vehicle problems. And I think the proper answer under the circumstances is to dismisses and privately granted. But that aside, that is in the court's discretion. Turning to the merits, if the court were to be the first to address- You can take an extra minute on standing. Okay. If the court were to be the first to address these Story Communications Act under Spokyo. 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 Stories' opinion and Fulson v. Marsh for that

. Okay. So turning to standing very quickly. Look, neither court below addressed the Story Communication Act or the other four causes of action under the standard of Spokyo. 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 in 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 low courts. They simply didn't apply that standard. So the court has two options in our view. One is to remand the alternative is to dismisses and privately granted. If the court were inclined to think it might grant again, I think that remand would be the right answer. But this court is so, this case is so right with vehicle problems. And I think the proper answer under the circumstances is to dismisses and privately granted. But that aside, that is in the court's discretion. Turning to the merits, if the court were to be the first to address- You can take an extra minute on standing. Okay. If the court were to be the first to address these Story Communications Act under Spokyo. 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 Stories' opinion and Fulson v. Marsh for that. Even the recipient of a letter was not permitted to disclose that letter without the author's permission. In Barton K. V. Voppur, that issue was thoroughly briefed by the United States, among others. And the court in Dover's Chow recognized that for privacy harms, they're often actionable without specific harm, that the damage is presumed. Congress is entitled to make that same judgment. The alleged injury here, am I correct, is that a third party will know that a particular person did the search. It's not what, it's not simply the nature of the search, is that correct? I think that when it's associated with you, that's, 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 been actionable at common law. That would have been actionable before the framing. But in 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 as damages the wrongdoers' profits. There's entitled to recover the wrongdoers' profits, which again is consistent with the common law. But this is an extraordinarily complex issue. And you have to go deep into history that in the pageant pages we had, we didn't, I think, into the circumstances, the right answer for the court, given that this is a jurisdictional question, is to dismiss or, is to remand or dismisses and is probably granted. Thank you, counsel. Mr. Frank, you have three minutes remaining. Thank you, Mr

. Even the recipient of a letter was not permitted to disclose that letter without the author's permission. In Barton K. V. Voppur, that issue was thoroughly briefed by the United States, among others. And the court in Dover's Chow recognized that for privacy harms, they're often actionable without specific harm, that the damage is presumed. Congress is entitled to make that same judgment. The alleged injury here, am I correct, is that a third party will know that a particular person did the search. It's not what, it's not simply the nature of the search, is that correct? I think that when it's associated with you, that's, 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 been actionable at common law. That would have been actionable before the framing. But in 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 as damages the wrongdoers' profits. There's entitled to recover the wrongdoers' profits, which again is consistent with the common law. But this is an extraordinarily complex issue. And you have to go deep into history that in the pageant pages we had, we didn't, I think, into the circumstances, the right answer for the court, given that this is a jurisdictional question, is to dismiss or, is to remand or dismisses and is probably granted. Thank you, counsel. Mr. Frank, you have three minutes remaining. Thank you, Mr. Chief Justice. I may have pleased the court. My friend is alleging that the district court made factual findings that it simply did not reach because it believed its hands retired by the Ninth Circuit precedent. It did not look at the potential conflicts between Google and the recipients because, in the 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 minimis standard. And as we discussed at page 22 of our reply brief, what the district court found was that it would be too hard to distribute to over 100 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 returned to the example of state oil versus con where the court was interpreting restraint of trade under the Sherman Act. And not only was it interpreting that, but it already had a three-decade ill precedent all-brecht that it was being asked to reverse. And Congress had specifically considered the rule in all-brecht over those three decades and it never acted on it. Yet, in 522 US-3 state oil versus con, the court unanimously reversed all-brecht 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 reasonless and fairness inquiries. And at no point do my friends indicate that Pearson versus MBTY, the 7th Circuit decision, is wrong. Or why it's wrong or why it is not the superior rule here. And as we document in our opening brief, when courts demand that counsel is faithful to their fiduciary obligations, counsel responds to those incentives. The 9th Circuit's rule creates incentives for class counsel to argue that it's too hard to get money to the class. And in fact, the D Mininus rule would take many settlements that are settling now for less than a dollar per class member, for less than $2 per class member, that distribute tens of millions, even over $100 million to class members. It's now appropriate under the 9th Circuit's rule to take all that money and give it to the defendant's favorite charity or the plaintiff's favorite charity

. If there are no further questions, I'd ask the Court to vacate and reverse. Thank you, counsel. Case is submitted