ANALYSIS: Justice Thomas Charts Path for Consumer Privacy Cases

In his dissenting opinion in Frank v. Gaos, Justice Thomas set out two key guidelines for future consumer privacy litigation. First, Justice Thomas said that consumer privacy cases could go forward when a "private right" is violated, such as when a violation of a federal privacy law is alleged. The Supreme Court adopted a somewhat more narrow standard in the Spokeo v. Robbins case. Second, Justice Thomas made clear that class action settlements must provide a "meaningful" benefit to class members, which could include monetary relief or a change in business practices. Justice Thomas opposed the settlement in Gaos, explaining "because the class members here received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims…." Justice Thomas did not rule out cy pres remainder settlements for "disposing of unclaimed or undistributable class funds" or cy pres-only settlements that provide some actual benefit to class members. EPIC set out very similar views in an amicus brief for the Supreme Court in the Gaos case, in related amicus briefs on standing and in court filings on class action fairness, as well as an academic article calling for reform of cy pres settlements.