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Shari Claire Lewis Shari Claire Lewis

Several weeks ago, in Frank v. Gaos, No. 17-961 (U.S. March 20, 2019), the U.S. Supreme Court vacated a decision by the U.S. Court of Appeals for the Ninth Circuit that upheld a settlement of class action claims against Google for alleged violations of the Stored Communications Act (SCA). The Supreme Court initially had agreed to hear the case to address the question of whether the proposed settlement, which provided for cy press payments but no individual recovery to absent class members, was “fair, reasonable, and adequate” as required for court approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e)(2). However, after oral argument, the Supreme Court turned its attention to an entirely different issue—whether the plaintiffs had standing to pursue recovery under the SCA in the first instance—and remanded for further proceedings on that issue. In doing so, the Supreme Court applied its recent ruling in Spokeo v. Robins, 578 U. S. ___, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) to Internet and technology claims. It concluded that, to have standing, plaintiffs must demonstrate actual and concrete harm that is not established by mere violation of a statutory right, such as under the SCA or other privacy statutes.

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