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New York Times; August 12, 2013

WASHINGTON — “We always knew this settlement would get a tremendous amount of attention,” Scott A. Kamber told the federal appeals court in San Francisco a couple of years ago.

He was defending a novel bargain he had struck with Facebook on behalf of millions of users whose privacy he said the company had violated. The settlement’s central innovation was to cut Mr. Kamber’s clients out of the deal.

The class members would get nothing. The plaintiffs’ lawyers would get about $2.3 million. Facebook would make a roughly $6.5 million payment — to a new foundation it would partly control.

The appeals court upheld the settlement last year by a 2-to-1 vote, with the majority saying it was “fair, adequate and free from collusion.” Last month, critics of the settlement asked the Supreme Court to hear the case.

The Facebook settlement certainly explores new frontiers in class-action creativity. For starters, consider the plaintiffs.

“They do not get one cent,” Judge Andrew J. Kleinfeld wrote in dissent. “They do not even get an injunction against Facebook doing exactly the same thing to them again.”

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