Michael G. Rhodes

Rhodes argued on behalf of Facebook Inc. in favor of a settlement involving so-called "Sponsored Stories" posted on the social media site in one of the largest privacy class actions ever filed, he said, with a proposed class involving about one-third of all Americans.

The lawsuit was filed against Facebook for allegedly using personal information to be mined in advertisements without users' consent. Fraley v. Facebook Inc., CV 11-1726 (N.D. Cal., filed April 8, 2011).

"We're saying there is no advertising," Rhodes said. "They are just republishing content that the user created."

In the proposed settlement, Facebook would make a variety of changes to its terms of service, Rhodes said, implementing tools that would allow users more "granular" or detailed control over the use of their names and likenesses in "Sponsored Stories," and allow adults to opt out their minor children altogether.

The settlement also called for Facebook to pay $10 million to Internet piracy organizations, while plaintiffs' attorneys would receive fees of up to $10 million.

In August, U.S. District Judge Richard G. Seeborg rejected the settlement without prejudice, raising concerns that plaintiffs would receive no monetary relief and questioning how the attorney fees were calculated.

He invited parties to resubmit the deal once his concerns had been addressed.

Currently, Rhodes is lead counsel in more than 25 active privacy and data protection cases for such clients as Facebook, Google Inc., LinkedIn Corp., Sony Corp., LivingSocial, HTC Corp. and Time Inc., among others, with many of the cases involving social media, ecommerce and Internet business models.

Among his challenges: Law is always playing catchup with technology, Rhodes observed.

"The reality is that lawmaking in the legislative arena is often a sausage-grinding process borne of compromise," he said, "using such statutory results to apply to novel and emerging technologies and business models never imagined by the legislators."

That has resulted in what Rhodes calls a "patchwork quilt" of state and federal laws, along with those in the international arena.

"Whenever technology outpaces the law, you often see the onset of litigation as the so-called rules of engagement are sorted out."

- PAT BRODERICK