Litigator of the Week:
Michael Rhodes
of Cooley
By Jan Wolfe
March 20, 2014
Data-mining class actions against Silicon Valley's tech
heavyweights will rage for years. But plaintiffs lawyers
looking for a big payday are facing major obstacles, thanks
in no small part to Cooley partner Michael Rhodes, a go-to
litigator for Google Inc. and Facebook Inc.
Rhodes scored a major victory on Wednesday, when
U.S. District Judge Lucy Koh in San Jose effectively
blocked claims that Google's approach to data privacy
violates wiretap laws. In a 41-page ruling, Koh refused
to certify a proposed class action on behalf of various
categories of Google customers, including Gmail users,
alleging that their communications were improperly
intercepted by Google for the purpose of formulating
targeted advertisements.
Adopting arguments made by Rhodes during oral argument
in February, Koh ruled that a crucial question in the case—did
users explicitly or implicitly consent to the data mining?—
would "lead to numerous individualized inquiries that will
overwhelm any common questions."
This was a big case for a few reasons. For one, Google's
damages were theoretically astronomical—potentially in the
trillions—because each class member could claim statutory
damages of $100 per day for the alleged violations. (Granted,
we doubt even the plaintiffs lawyer spearheading the case,
Sean Rommel of Texarkana, Texas-based Wyly-Rommel,
believes the case is really worth that much.)
The Gmail litigation, which dates back to 2010, is also
something of a bellwether. Plaintiffs lawyers brought copycat
Michael Rhodes
cases against LinkedIn Corporation and Yahoo Inc. in 2012,
after Koh denied a Google motion to dismiss. Those cases
are also pending before Koh, who can expect to see the
defendants try to capitalize on Wednesday's ruling.
The fight isn't over though. Rommel will surely appeal,
and he may be emboldened by a passage of Koh's opinion in
which she called some of Google's disclosures of its practices
"vague at best and misleading at worst." And Rhodes still
needs to knock out two similar class actions in state court
raising other causes of action.
Rhodes is a generalist, but he's developing a specialty
defending Silicon Valley giants in privacy class actions. Back
in 2010, he guided Facebook to a $9.5 million settlement
in a class action over its now-discontinued Beacon feature,
which tracked what members bought online and shared
the information with their Facebook friends. In 2012, he
helped Facebook work out a $20 million settlement of class
claims over its sponsored stories advertising program, which
allowed the social network site to advertise that users liked a
particular product.
"As a defense lawyer in these cases, you want to defend the
rights of companies to put these amazing services in people's
hands," Rhodes told us. "Look at Gmail. Four hundred
million people use it for free."
The plaintiffs say they're all for innovative technology as
long as tech giants stay within the limits of privacy laws. On
Wednesday, Rhodes won an important round in the debate
over where those limits are drawn.
Reprinted with permission from the AMLAW LITIGATION DAILY featured on March 20, 2014 © 2014 ALM Media Properties, LLC. All rights reserved.
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