Google , consumers and others involved in an $8.5 million privacy settlement continue to argue over whether the suit should be before the U.S. Supreme Court.

The class and a settlement objector, in supplemental reply briefs filed Dec. 21, argue the consumers suffered sufficient harm by Google’s practice of sharing their search terms with third parties to have standing to sue.

But Google and the federal government say the consumers can’t show they suffered a concrete injury from the disclosures.

  • Objector Ted Frank argues Google and the government confuse weakness on the merits with lack of Article III standing. Their arguments would lead to an “unprecedented shift in power from the legislature to the judiciary and from the federal government’s ability to regulate interstate commerce to the states,” he says.
  • The class argues Google and the government aren’t focused on the scope of judicial power as envisioned by the Framers of the Constitution. “Their submissions read as if injury-in-fact depends not on judicial practice from the era of muskets but on causes of action developed coincident with bell-bottom jeans and moon landings,” the class says.
  • Google says the class has no historical evidence that disclosure of search terms creates concrete harm. Instead, the class and Frank use “inapt analogies between the routine browser function at issue here and the publication of private letters” to establish standing, it says.
  • The government agrees with Google that disclosure of search terms isn’t a concrete injury. Invasion of privacy can’t be analogized with historical examples involving loss of property for standing purposes, the government says.

Standing dominated oral argument Oct. 31 in the case that was brought to the justices on the appropriateness of using cy pres in class settlements.

Cy pres is the practice of distributing settlement funds to charitable organizations in a way that indirectly benefits class members because it isn’t feasible to compensate them directly. Frank says the lower courts erred in allowing all the proceeds of the settlement to go to charity.

The request for additional briefing signals the court may find it doesn’t have jurisdiction to get to that question.

The court has three options if it decides standing prevents it from getting to the cy pres question: It can write an opinion addressing standing, remand the case for the lower court to reconsider the issue, or dismiss the case as improvidently granted.

The Competitive Enterprise Institute Center for Class Action Fairness represents the objectors.

Nassiri & Jung LLP and MoloLamken LLP represent the class. Mayer Brown LLP and O’Melveny & Myers LLP represent Google.

The case is Frank v. Gaos, U.S., No. 17-961, supplemental reply briefs filed 12/21/18.