In Re Quantcast Advertising Cookie Litigation

Filing 77

DECLARATION of Jeffrey S. Jacobson in Support of MOTION for Attorney Fees and Final Approval of Class Action Settlement #76 with exhibits filed by Defendants American Broadcasting Companies, Inc., ESPN, Inc., Hulu, LLC, JIBJAB Media, Inc., MTV Networks, Inc., MySpace, Inc., NBC Universal, Inc., Scribd, Inc.. (Jacobson, Jeffrey)

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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IN RE CLEARSPRING FLASH COOKIE LITIG.,
: No. 2:10-cv-05948-GW
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IN RE QUANTCAST ADVERTISING COOKIE LITIG. : No. 2:10-cv-05484-GW
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DECLARATION OF JEFFREY S. JACOBSON, ESQ.
IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL
OF THE PROPOSED CLASS ACTION SETTLEMENT
1.

I am a member of the firm Debevoise & Plimpton LLP, counsel to defendants

American Broadcasting Companies, Inc.; ESPN, Inc.; Fox Entertainment Group, Inc.; Hulu,
LLC; JibJab Media, Inc.; MTV Networks, a division of Viacom International Inc.; MySpace,
Inc.; NBC Universal, Inc.; Scribd, Inc.; Soapnet, LLC; and Walt Disney Internet Group in the
above-captioned matters. With the consent of all defendants, I submit this declaration in support
of Plaintiffs’ agreed motion for final approval of the parties’ proposed settlement.
2.

Plaintiffs filed the parties’ Settlement Agreement and, pursuant to Federal Rule of

Civil Procedure 23(e), sought this Court’s preliminary approval of it, on December 3, 2010.
3.

On December 9, 2010 — well within the 10-day period specified by 28 U.S.C.

§ 1715, I notified the Attorney General of the United States and the Attorneys General of all 50
states and the District of Columbia of the proposed settlement. A true and correct copy of the
cover letter sent to each official, to which all defendants had consented in advance, is attached
hereto as Exhibit A. (Exhibit A is a copy of the letter sent to the Attorney General of the United
23415851v1

States; the letters sent to each state official were identical except for the addressee information.)
Each letter, with its attachments, was sent by Federal Express, and my firm obtained tracking
information showing that all letters were delivered.
4.

After the parties’ initial briefing, but before the Court granted preliminary

approval to the settlement on March 3, 2011, the Court requested, and the parties submitted,
supplemental briefing containing a more detailed description of the technologies at issue in the
settlement. Also, the Court suggested several changes to the parties’ proposed forms of notice to
the class, and plaintiffs’ counsel submitted a proposed plan for distributing the settlement funds
to worthy nonprofit organizations. In light of these developments, the parties believed that
federal and state authorities might appreciate receiving an updated notice containing this new
information and the associated materials.
5.

For that reason, on March 7, 2011, with all parties’ encouragement and consent, I

dispatched the second letter attached hereto as Exhibit B. (Again, Exhibit B is a copy of the
letter sent to the Attorney General of the United States; the letters sent to each state official were
identical except for the addressee information.) Each letter, with its attachments, was sent by
Federal Express, and my firm has tracking information showing that all letters were delivered.
6.

Section 4.20.1 of the Settlement Agreement further required the “Undertaking

Parties,” as that term is defined in the Settlement Agreement, to send a request to the Interactive
Advertising Bureau (“IAB”) seeking changes to the IAB’s “Self Regulatory Principles for Online
Behavioral Advertising.” The Settlement Agreement required the Undertaking Parties to send
this letter no later than 30 days after the Court granted preliminary approval to the proposed
settlement. Attached hereto as Exhibit C is the letter I sent to the IAB, with all Undertaking
Parties’ consent and on their behalf, on March 30, 2011.

23415851v1

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7.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New York
April 22, 2011
__ /s/ Jeffrey S. Jacobson_______
Jeffrey S. Jacobson

23415851v1

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Exhibit A

December 9, 2010
BY FEDERAL EXPRESS
Eric Holder
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
In re Quantcast Advertising Cookie Litig., No. 2:10-cv-5484-GW-JCG (C.D. Cal.);
In re Clearspring Flash Cookie Litig., No. 2:10-cv-5948-GW-JCG (C.D. Cal.)
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Dear Attorney General Holder:
In compliance with the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.
§ 1715, Quantcast Corporation (“Quantcast”); Clearspring Technologies, Inc.
(“Clearspring”); American Broadcasting Companies, Inc.; Demand Media, Inc.; ESPN,
Inc.; Fox Entertainment Group; Hulu, LLC; JibJab Media, Inc.; MTV Networks, a division
of Viacom International Inc.; MySpace, Inc.; NBC Universal, Inc; Scribd, Inc.; Soapnet,
LLC; Walt Disney Internet Group; and Warner Bros. Records Inc. (collectively, the
“Defendants”),1 hereby advise you of a proposed settlement that they have reached in the
matters of In Re Quantcast Advertising Cookie Litig., No. 2:10-cv-05484-GW-JCG and In
Re Clearspring Flash Cookie Litig., No. 2:10-cv-05948-GW-JCG (together, the
“Actions”), both cases pending in the United States District Court for the Central District
of California before the Honorable George Wu, who has deemed them related.
The Actions concern Quantcast’s and Clearspring’s alleged use of local shared
objects stored in Adobe Flash Media local storage (“LSOs”) to regenerate certain
information stored in internet users’ HTTP browser “cookies” after users deleted those
cookies. Plaintiffs allege that Quantcast and Clearspring used these methods on many web
pages, including those operated by the other Defendants in this matter. All Defendants
deny any and all wrongdoing.

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The undersigned does not represent all Defendants but is sending this letter on behalf
of and with the express consent of all Defendants.

Enclosed, as required by CAFA, please find the following materials relating to this
proposed settlement:
1.

The class action complaints on file in Valdez, et al. v. Quantcast
Corporation, et al., Case No. 2:10-cv-05484-GW (C.D. Cal.);
Aguirre v. Quantcast Corporation, et al., Case No. 2:10-cv-05716GW (C.D. Cal.); White, et al. v. Clearspring Technologies, Inc., et
al., Case No. 2:10-cv-05948-GW (C.D. Cal.); Intzekostas v. Fox
Entertainment Group, et al., Case No. 2:10-cv-06586-GW (C.D.
Cal.); Godoy v. Quantcast Corporation, Case No. 2:10-cv-07662GW (C.D. Cal.); and Rona v. Clearspring Technologies Inc., Case
No. 2:10-cv-7786-GW (JCGx) (C.D. Cal.) — stored as PDF files
on enclosed CD-ROM.

2.

Amended Complaints filed on December 3, 2010, in In re Quantcast
Advertising Cookie Litig., No. 2:10-cv-5484-GW (C.D. Cal.) and In
re Clearspring Flash Cookie Litig., No. 2:10-cv-5948-GW (C.D.
Cal.) — the captions given to these cases by the District Court after
consolidating them — stored as PDF files on enclosed CD-ROM.

3.

The Motion and Memorandum of Law in Support of Plaintiffs’
Application for Preliminary Approval of the Class Action
Settlement, as well as the supporting declaration of David Stampley,
filed on December 3, 2010 — attached in hard copy.

The Settlement Agreement is Exhibit A to the enclosed Stampley Declaration. The
proposed summary and full forms of notice to class members of the proposed settlement
are, respectively, Exhibits A.2 and A.3 to the Settlement Agreement. Instructions to class
members as to how they may request exclusion from the settlement class appear on pages
7-9 of the full notice (Exhibit A.3), and an outline of class members’ options appear in the
summary notice (Exhibit A.2). The District Court has not yet set a deadline for class
members to exercise these options; when it does so, we will insert this date into the notices
before publication.
CAFA requires Defendants to provide “a reasonable estimate of the number of
class members residing in each State and the estimated proportionate share of the claims of
such members to the entire settlement.” 28 U.S.C. § 1715(b)(7)(B). In this case, however,
Quantcast and Clearspring technologies are used on tens of millions of web pages, the
other Defendants collectively operate thousands of websites, and these sites are visited by
millions of United States residents who do not specifically identify themselves to
Defendants. As shown in Exhibits A.2 and A.3, notices to Class Members will include
information that (i) cookies deposited by Clearspring during the Class Period can be
identified by an origin domain of “clearspring.com”; LSOs deposited by Clearspring

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during the Class Period can be identified by an origin domain of “clearspring.com” and a
filename of “clearspring.sol”; (ii) cookies and LSOs deposited by Quantcast during the
Class Period can be identified either by a filename including the string “__qca” or the
string “Quantserve”; and (iii) given the number of web pages that used Clearspring or
Quantcast technology, the Class, accordingly, is comprised of substantially all internet
users in the United States. Although Defendants cannot state this with certainty, they
believe that the percentage of members of the class is roughly proportionate to the state’s
share of the overall national population.
The settlement will not pay cash benefits to members of the Settlement Class. The
settlement would create a $2.4 million fund, paid by Quantcast and Clearspring, which,
after payment of administrative expenses and such fee to Plaintiffs’ counsel as the District
Court may award (which Plaintiffs’ counsel have agreed will not exceed 25% of the
settlement fund), and any incentive payments to the named plaintiffs as the District Court
may award, will be directed to charitable organizations selected by Plaintiffs’ counsel and
approved by the District Court. Additionally, all Defendants agree as part of the settlement
to adopt certain changes to their business practices, as explained in Section IV of the
Settlement Agreement.
The District Court has scheduled a hearing on December 16, 2010 at 8:30 AM to
determine whether to give preliminary approval to the settlement. The District Court has
not yet scheduled a Fairness Hearing.
*

*

*

If you have any questions about this notice, please do not hesitate to contact me by
phone at [phone] or by email at [e-mail].
Respectfully submitted,

Jeffrey S. Jacobson
cc:

Plaintiffs’ counsel
Enclosures

3

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