In Re Quantcast Advertising Cookie Litigation

Filing 45

NOTICE OF MOTION AND MOTION to Certify Class (Preliminary Approval of Class action Settlement) filed by plaintiffs Alan Bonebrake, Byron Griffith, Mary Huebner, Jose Marquez, Austin Muhs, Brittany Sanchez, Edward Valdez, Gerardo Valdez, Kayla Valdez. Motion set for hearing on 12/16/2010 at 08:30 AM before Judge George H Wu. (Attachments: #1 Declaration of David A. Stampley, #2 Exhibit A (Settlement Agreement), #3 Exhibit B (Firm Resume))(Parisi, David)

Edward Valdez et al v. Quantcast Corporation et al

Doc. 45 Att. 1

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1 SCOTT A. KAMBER (admitted pro hac vice) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

[e-mail] DAVID A.STAMPLEY (admitted pro hac vice) [e-mail] KAMBERLAW, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] Interim Class Counsel DAVID C. PARISI (SBN 162248) [e-mail] SUZANNE HAVENS BECKMAN (SBN 188814) [e-mail] PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA No. 2:10-cv-05484-GW-JCG

In Re QUANTCAST 17 ADVERTISING COOKIE LITIGATION and 18 In Re CLEARSPRING FLASH COOKIE LITIGATION
19 20 21 22 23 24 25 26 27 28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -1-

No. 2:10-cv-05948-GW-JCG [Assigned to the Hon. George H. Wu] DECLARATION OF DAVID A. STAMPLEY IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT Date: Location: December 16, 2010 Courtroom 10 312 N. Spring Street Los Angeles, CA 90012 8:30 a.m.
Case Nos. 2:10-cv-05484 and -05948
Dockets.Justia.com

Time:

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1 2 3

DECLARATION OF DAVID A. STAMPLEY I, David A. Stampley, declare as follows: 1. I am one of plaintiffs' counsel in the above-captioned litigation. I make

4 this declaration in support of plaintiffs' motion for final approval of the settlement 5 and for approval of their application for fees and expenses. I have actively partici6 pated in all aspects of this litigation, including negotiation of the settlement, and am 7 fully familiar with the proceedings in the matter in which resolution is sought by the 8 parties. If called upon, I am competent to testify that the following facts are true and 9 correct to the best of my knowledge, information, and belief. 10

2.

I represent that the disclosures contained herein relating to mediation

11 and negotiation between the parties are with the consent of Michael Rhodes of Coo12 ley LLP, Michael Page of Durie Tangri LLP, Jeffrey Jacobson of Debevoise & 13 Plimpton LLP, and Ian Ballon of Greenberg Traurig LLP and are not violative of any 14 settlement or mediation privilege. 15

3.

For over nine months prior to the filing of the complaint in this matter,

16 I and my co-counsel worked closely with co-counsel Joseph H. Malley and certain 17 class representatives, investigating facts and developing legal theories contained in 18 the complaint. This pre-complaint effort occupied hundreds of hours of attorney and 19 client time as well as consultations with certain nonlegal experts. This case impacted 20 millions of class members and dealt with highly technical processes by which in21 formation obtained by tracking class members on the web was shared among web22 site owners and their online service-providers. These processes required significant 23 business and legal research and technical expert investigation to understand the 24 mechanisms by which Defendants acquired, correlated, and shared class members' 25 information and the mechanisms and policies by which Defendants provided, or 26 could have provided, disclosures of their practices to affected class members. I be27 lieve that this understanding allowed us to plead this case with the detail and accura28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -2Case Nos. 2:10-cv-05484 and -05948

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1 cy that motivated rather early settlement negotiations between the parties. Based on 2 my experience, I believe that the promptness of relief is an absolutely critical feature 3 in addressing resolution of Internet usage issues that involve injunctive relief. Our 4 research, confirmed through the settlement process, is that there are millions of class 5 members and that numerosity is satisfied. 6

4.

Beginning on July 23, 2010, the plaintiffs in these matters began filing

7 complaints on their own behalf and on behalf of a purported class of all persons who 8 used any browsing program on any device to access one or more Internet sites con9 trolled, operated or sponsored by Defendants employing Clearspring or Quantcast's 10 technologies involving the use of HTTP "cookies" or local shared objects stored in 11 Adobe Flash Media local storage (LSOs). Plaintiffs alleged that the defendants 12 failed to provide them proper and adequate notice regarding transmissions of infor13 mation about them, failed to obtain their consent for such transmissions, and en14 gaged in actions that violated the Electronic Communications Privacy Act 15 ("ECPA"), the Video Privacy Protection Act ("VPPA"), the Computer Fraud and 16 Abuse Act ("CFAA"), the California Consumer Legal Remedies Act ("CLRA"), and 17 the California Computer Crime Law ("CCCL"), California's Invasion of Privacy 18 Act, the California Unfair Competition Law, the California Uniform Trade Secrets 19 Act and Unjust Enrichment. 20

5.

At all times, all Defendants have denied and continue to deny that they

21 have engaged in any wrongdoing or committed, threatened to commit, or attempted 22 to commit any wrongdoing of any kind, including that alleged in the complaint in 23 this matter. Defendants contend that they have acted properly and therefore deny 24 that the plaintiffs and putative class are entitled to any form of damages based on the 25 conduct alleged in the Complaint. Defendants have maintained and continue to 26 maintain that they have meritorious defenses to all claims alleged in the Complaint 27 28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -3Case Nos. 2:10-cv-05484 and -05948

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1 and that Defendants were and are prepared to vigorously defend against all claims 2 asserted in this litigation. 3

6.

Beginning in October 2010, representatives of Plaintiffs and Defend-

4 ants initiated a series of settlement discussions,agreeing to private and confidential 5 mediation of the matter and engaged in substantive, arms-length negotiations. 6

a.

On October 19, 2010, a mediation was conducted by mediator

7 Rodney A. Max of Upchurch Watson White & Max Mediation Group in the offices 8 of Cooley LLP in San Francisco, California. Scott A. Kamber led the Plaintiffs' ne9 gotiating team, which included Joseph Malley of the Law Office of Joseph H. Mal10 ley, David C. Parisi of Parisi & Havens LLP, and me. Clearspring Technologies was 11 represented by Michael Rhodes of Cooley LLP, Quantcast Corporation was repre12 sented by Michael Page of Durie Tangri LLP, and the Affiliated Internet sites were 13 represented by Jeffrey Jacobson of Debevoise & Plimpton LLP. With the assistance 14 of Mr. Max, Plaintiffs' counsel met with Defendants' representatives and throughout 15 the day and participants met unilaterally with Mr. Max. After a full day of media16 tion, the parties to the mediation agreed on all substantive relief and memorialized 17 their mutual understanding in document outlining the principal terms of settlement. 18

b.

At no point prior to reaching agreement on the substantive terms

19 of settlement did the parties discuss the amount of any incentive fees or payments to 20 class counsel. This took place for the first time at the end of the mediation and im21 mediately prior to the memorialization of terms set forth above. 22

c.

In the following weeks, Mr. Kamber and I personally negotiated

23 with Mr. Rhodes of Cooley and Mr. Page of Durie Tangri to flesh out the settlement 24 framework and implementation. The parties continued to negotiate, exchange infor25 mation regarding settlement details, and examine creative approaches to potential 26 injunctive relief compatible with Defendants' business models. 27 28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -4Case Nos. 2:10-cv-05484 and -05948

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1

d. 7.

Having reached full agreement on terms and conditions of a set-

2 tlement, the parties now seek the Court's preliminary approval. 3

I have participated directly in the mediation and negotiation efforts and

4 the petition for preliminary approval of the proposed settlement now before this 5 Court. Throughout our mediation and negotiation efforts and in advising our clients 6 of the proposed settlement, plaintiffs' counsel has at all times considered the fair7 ness, reasonableness, and adequacy of the settlement for the class, taking into ac8 count: the strength of plaintiffs' case; the risk, expense, complexity, and likely dura9 tion of any further litigation; the risk of certifying a class and then maintaining class 10 action status through trial; the amount offered in settlement; the extent of discovery 11 completed and the stage of the proceedings; and the experience and views of plain12 tiffs' counsel. Against the backdrop of counsels' collective experience in prosecuting 13 complex class actions, co-counsel and I have considered the claims set forth in the 14 complaint and our continued confidence in the merit of those claims, the scope of 15 relief offered in the settlement compared to the potential relief at the conclusion of 16 litigation, and the risks and costs of continued litigation. Taking these factors into 17 account, it is my opinion that the proposed settlement is fair, reasonable, and ade18 quate, well within the range of possible approval, and therefore deserving of the 19 Court's preliminary approval. 20

8. 9.

A true and correct copy of the proposed settlement agreement entered Proposed class counsel possesses extensive experience in prosecuting

21 into by the parties in this matter is attached as Exhibit A. 22

23 class actions and other complex litigation. A copy of the firm resume of Kamber24 Law, LLC is attached as Exhibit B. 25

10.

Further, proposed class counsel have diligently investigated and prose-

26 cuted this matter, dedicating substantial resources to the investigation of the claims 27 at issue in the action, and have successfully negotiated the settlement of this matter 28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -5Case Nos. 2:10-cv-05484 and -05948

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1 to the benefit of the class. 2

11.

I declare under penalty perjury under the laws of the United States of

3 America that the foregoing is true and correct. 4 5 Executed on December 3, 2010 at New York, New York. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of D. Stampley in Support of Motion for Preliminary Approval -6Case Nos. 2:10-cv-05484 and -05948

___s/David A. Stampley David A. Stampley