Litigator of the Week: Michael Rhodes of Cooley

, The Litigation Daily

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Michael Rhodes
Michael Rhodes

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 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.

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