Supreme Court hears arguments in class action, sovereign immunity cases
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Supreme Court hears arguments in class action, sovereign immunity cases

The Supreme Court heard oral arguments Wednesday in two cases—one a question of class action payments to charities and the second whether sovereign immunity of foreign governments extends to international organizations.

In the first, Frank v. Gaos, petitioners contend that the application of a cy pres award, or the distribution of money from a class action settlement to a charitable organization, violates Rule 23 of Federal Rules of Civil Procedure governing class actions. The award in question is an $8.5 million Google agreed to pay in 2013 to settle allegations they violated users’ privacy rights. The circuit courts are divided on the issue, with the Third, Fifth, Seventh and Eighth Circuits disallowing the practice and the Ninth Circuit allowing it.

On Wednesday, counsel for the petitioners argued that “the best way to interpret Rule 23’s text requiring settlements be fair and reasonable is to align class counsel’s interests with those of the absent class members.” The petitioners argued that even though the class payments would total out between five and $10 a person, class members deserve a chance to opt in before monies are instead paid to a charity.

In the second case, Jam v. International Finance Corporation, the court will decide whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 USC § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 USC §§ 1602-11.

“The plain text of this provision, coupled with the structure of the IOIA and the drafting history, make clear that the same immunity provision gives international organizations the same immunity that foreign governments are entitled to under the Foreign Sovereign Immunity Act,” said counsel for the petitioners.

Newest Justice Brett Kavanaugh did not participate in the Jam arguments, likely because he worked on the case as a DC Circuit judge.