Hibnick v. Google Inc.

Filing 124

REPLY (re 61 MOTION to Approve Consent Judgment Notice of Motion and Memorandum in Support of Motion for Order Granting Final Approval of Class Settlement, Certifying Settlement Class, and Appointing Class Representatives and Class Counsel ) filed byJohn Case, Eva Hibnick, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner. (Attachments: # 1 Exhibit A Cy Pres Awards)(Mason, Gary) (Filed on 4/4/2011)

Hibnick v. Google Inc.

Doc. 124

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Gary E. Mason (pro hac vice) [e-mail] Donna F. Solen (pro hac vice) [e-mail] MASON LLP 1625 Massachusetts Ave., NW Washington, DC 20036 Telephone: [phone] Facsimile: [phone] Michael F. Ram (SBN 104805) [e-mail] RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] William B. Rubenstein (SBN 235312) [e-mail] 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Proposed Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE GOOGLE BUZZ USER PRIVACY LITIGATION Case No. 5:10-CV-00672-JW CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

This Pleading Relates To:

ALL CASES

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

Dockets.Justia.com

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On February 16, 2011 this Court entered an Order in the above-captioned matter directing the parties to solicit nominations for cy pres organizations and ordering Class Counsel to consolidate the list and to submit the organization and distribution amount nominations to this Court, with specific information about each, by March 28, 2011. See Order Re Nomination Process for Cy Pres Recipients ("Order"), Dkt. 117, February 16, 2011. The parties carried out each of the directives contained in the Order. With the assistance of the Rose Foundation, the parties solicited and collectively received 77 applications for cy pres funding seeking a total of more than $35 million. Pursuant to the Settlement Agreement, counsel for the parties negotiated a list of final nominations and amounts. Class Counsel then consolidated the list and submitted the organization and distribution amount nominations to the Court for approval on March 25, 2011, attaching all of the requisite information ordered by the Court. See Class Counsel's Submission of Cy Pres Organizations and Distribution Amounts for Court Approval ("Counsel's Submission"), Dkt. 119, March 25, 2011, and Exhibits A & B.

15 16 17 18 19 20 21 22 agreed to by the parties, see Settlement Agreement, ¶ 3.4; and (3) the requirements of law, as the 23 24 25 26 27 28 nominees are all organizations that conduct Internet privacy research and education, and each therefore pursues goals closely aligned with the interests of the class. See Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1303, 1308 (9th Cir. 1990). As set forth in Class Counsel's March 25, 2011 filing, Class Counsel have submitted to this Court a list of nominees that is fair, reasonable, and adequate, and funding Class Counsel's nominations would promote the interests
Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

The parties received requests for much more funding than there is money available under the settlement. Many deserving organizations applied, and the parties necessarily made some difficult decisions to determine the slate of cy pres nominations Class Counsel would submit to the Court. In submitting the proposed nomination list to the Court, the parties complied with (1) all aspects of this Court's Order of February 16; (2) the terms of the Settlement Agreement, as each nominee is an existing organization focusing on Internet privacy policy or privacy education

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of the class. Among the 65 groups that the parties did not recommend for funding, 8 have filed a pleading objecting to Class Counsel's nominations. See Cy Pres Applicants' Objection to Class Counsel's Proposed Cy Pres Distribution ("Applicants' Objection"), Dkt. 121, March 30, 2011. Additionally, three class members who previously objected to the Settlement have filed an additional objection to the cy pres nominations. Objections to Proposed Order and Final

Judgment Granting Final Approval of Class Action Settlement and Awarding Attorneys' Fees ("Class Member Objection"), Dkt. 122, March 30, 2011. Both objections contend that Class Counsel should have nominated a different set of organizations for cy pres funding; the 8 disappointed applicants propose that 100% of the available funds should be distributed to their 8 groups alone and none should go to any of the 12 groups nominated by Class Counsel or to any other group. See Applicants' Objection, Appendix 1. The objectors argue (1) that the nominated groups suffer two harms: that they are too closely aligned with Google because some of them

15 16 17 18 19 20 21 22 23 24 25 26 27 28 See, e.g., Applicants' Objection, at 9 ("Six of the twelve groups designated by Class Counsel were funded by Google last year"); Class Member Objection, at 3 ("many of these groups, or the institutions with which they are affiliated, receive funding from Defendant or have other entanglements that were not reported to the Court."). Applicants' Objection at 9 ("Virtually none of the organizations receiving funds in the proposed cy pres settlement showed any interest in the circumstances of Class members prior to the announcement of the cy pres settlement in this matter,"); id. at 9-10 (stating that the nominated groups "stand by quietly while others do the actual work of safeguarding Internet privacy").
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received funding from Google in 20101 and that they are ineffectual in addressing internet privacy;2 (2) that awards to the nominated groups would violate some legal norm; and (3) that their alternative slate (in the case of the Applicant Objectors) is a better set of nominees. Each of these arguments is meritless and thus objectors do not come close to meeting their burden of proving any assertions they make in arguing against the reasonableness of settlement.3

See U.S. v. State of Or., 913 F.2d 576, 581 (9th Cir. 1990) ("[W]e have usually imposed

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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I. THE NOMINATED GROUPS ARE WELL-SITUATED TO PURSUE THE CLASS'S INTERESTS Objectors' contentions that the nominated groups are too close to Google or ineffectual are both unsupported and unsupportable. The cy pres organizations nominated by Class Counsel are not unusually connected to Google. Six of the 12 nominated organizations received no funding from Google in 2010; of the other 6 that did receive funding, four received a negligible amount of their annual funding from Google (Berkman Center, 5.6% of its annual budget; Brookings Institution, less than two-tenths of one percent of its annual budget; Center for Democracy & Technology, 9% of its annual budget; Electronic Frontier Foundation ("EFF"), less

11 12 13 14 15 16 17 18 Objectors not only incorrectly describe the extent of the nominated groups' Google funds, 19 20 21 22 23 24 25 26 27 28 the burden on the party objecting to a class action settlement"); Geier v. Alexander, 801 F.2d 799, 809 (6th Cir. 1986) ("To allow the objectors to disrupt the settlement on the basis of nothing more than their unsupported suppositions would completely thwart the settlement process.").
Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

than one tenth of one percent of its annual budget). Only two recipients (Carnegie Mellon and Stanford) received what appears to be a significant budgetary amount from Google, but of course that is only if the Google contribution for 2010 is judged in terms of the unit receiving the grant and not in terms of the university's budget; obviously, Google funds but a minute fraction of these major universities' expenses and has little, indeed no, ability to control what these universities do or say.

they also inaccurately report what those funds are used for, stating that the six groups that received 2010 funds from Google "are currently paid by Google to lobby for or to consult for the company." Applicants' Objection at 2; id. at 9. Objectors do not offer any support for this statement, and they cannot: there is no basis whatsoever to draw this conclusion. None of these organizations is paid to lobby or consult with Google.

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Indeed, Class Counsel's nominees have repeatedly demonstrated their independence, not least by publishing materials and taking advocacy positions adverse to Google when they believed doing so would support the privacy interests of Internet users and consumers. Both the ACLU and EFF specifically criticized Google's launch of Buzz.4 And the nominated groups' criticism of Google's launch of Buzz are not isolated examples. The ACLU, EFF, and

Samuelson Law Clinic at Berkeley ­ which together account for nearly 50% of Class Counsel's proposed distribution ­ have done the following: EFF, ACLU, and the Samuelson Law, Technology & Public Policy Clinic jointly filed and argued an objection to a class settlement concerning Google's book scanning project, arguing in part that the settlement did not do enough to protect user privacy because Google may collect information on users' reading habits. See Privacy Authors and Publishers' Objection to Proposed Settlement, Authors Guild, Inc. v. Google Inc., No. 5-cv-8136-DC (S. D. N.Y. Sep. 8, 2009). The federal district court recently rejected this settlement and cited the privacy concerns raised by EFF, ACLU, and Samuelson in its order denying settlement approval. Opinion, 05-cv-8136 (DC), at 39-40 (S. D. N.Y. Mar. 22, 2011) (Dkt. 971). ACLU urged citizens to send letters to Google asking the company not to enter into a planned information-sharing agreement with the National Security Agency. http://www.aclu.org/blog/national-security-technology-and-liberty/tell-google-not-enteragreement-nsa EFF published a warning and how-to guide for Gmail users seeking to disable the link between Google web searches and web advertising in their Gmail accounts. See https://www.eff.org/deeplinks/2004/04/gmail-rough-guide-protecting-your-privacy EFF published numerous blog posts critical of Google's privacy practices. See, e.g. www.eff.org/deeplinks/2010/05/time-google-grow-make-open-wi-fi-privacy-mistake (criticizing Google's accidental collection of wireless internet data while building street
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See Chris Conley, Google's CEO Doesn't Get It (Feb. 18, 2010) (ACLU post stating that Google "needs to take [the] lesson [of Buzz's launch] to heart. Instead of giving in to the temptation to leverage information that it already has about users of Google products, Google needs to recognize that it holds that information in trust for its users and respect their right to control how or whether that information is used for any other purposes" and urging readers to "keep up the pressure" by contacting Google to complain), available at: http://www.aclunc.org/issues/technology/blog/google's_ceo_doesn't_get_it.shtml; Kurt Opsahl, Google Buzz Privacy Update (Feb. 16, 2010) (EFF post stating that "Google leveraged information gathered in a popular service (Gmail) with a new service (Buzz), and set a default to sharing your email contacts to maximize uptake of the service. In the process, the privacy of Google users was overlooked and ultimately compromised."), available at: https://www.eff.org/deeplinks/2010/02/google-buzz-privacy-update.
Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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view); https://www.eff.org/deeplinks/2008/02/google-gets-healthy (warning consumers that Google's beta project to collect personal health records might present privacy risks). The Applicant Objectors are inaccurate in characterizing the nominated groups as ones that are inordinately connected to Google.

4 5 6 7 8 9 10 11 A partial list of these overlapping activities is attached as Exhibit A and that partial list alone 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 among the "and others" in this effort were the nominated groups, EFF and the ACLU. See Letter to Eric Schmidt, CEO of Google Inc., dated June 3, 2008, available at contains more than 150 entries of overlapping activities among the groups. Applicant Objectors are fully aware that the nominated groups are not by-standers. Worse than their failure to acknowledge to the Court the work of the nominated groups with which they are very familiar, the Applicant Objectors purposefully conceal this knowledge in their submission. For example, the Applicant Objectors write that: The organizations excluded from the Submission of Class Counsel have frequently cooperated to protect privacy rights of Internet users. For example, in June 2008, EPIC, WPF, PRC, and others sent a letter to Google demanding that the company comply with California law and place a prominent link to its privacy policy on its homepage. EPIC, WPF, and PRC were successful in this effort, and, within weeks, a "privacy" link appeared on Google's homepage. Applicants' Objection at 7-8. What the Applicant Objectors fail to inform the Court is that Applicant Objectors' other swipe at the nominated slate is that it consists of groups that "stand by quietly while others do the actual work of safeguarding Internet privacy." Id. at 9-10. This characterization is disingenuous in light of the fact that these objectors work cooperatively with many of the nominated groups on a regular basis, conducting activities such as jointly filing amicus briefs, distributing joint press releases, participating in workshops sponsored by the nominated groups, co-authoring research, and co-signing letters to corporations and lawmakers.

http://www.worldprivacyforum.org/pdf/Google_Letter_June032008fs.pdf. The Applicant Objectors' attacks on the work of the nominated groups as being either Google-connected or ineffectual are therefore both misleading and simply wrong.
Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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II. OBJECTORS PROVIDE NO LEGAL SUPPORT FOR THEIR CONCERNS Beyond misrepresenting the nominated groups' links to Google, Objectors contend that the nominated groups are legally soiled because Google was involved in their selection5 and/or because they previously received funds from Google.6 Objectors have articulated no legal

principle ­ and there is none ­ under which cy pres funds from a class settlement may not be distributed with the involvement of the defendant7 or to organizations that have previously received charitable contributions from the defendant.8 Last year, Google made over $150 million

Class Member Objection, at 4-5 (asserting that the defendant should not have been involved in the selection of cy pres recipients). In fact, neither objection explains why prior receipt of funds from Google should make a group ineligible to receive cy pres funds. See Class Member Objection, at 3-4 (listing without argument nominated groups that have received charitable funding or support from Google); Applicants' Objection, at 9 (stating without argument that some nominated groups have previously received funding from Google). Courts commonly approve settlements that identify cy pres recipients in this manner. See, e.g. In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 30 (1st Cir. 2009) (affirming approval of settlement in which up to $10 million went to "`mutually acceptable charitable organizations funding cancer research or patient care' that the court would approve in the future") (quoting settlement agreement); Cervantez v. Celestica Corp., No. EDCV 07-729VAP (OPx), 2010 WL 2712267 (C.D. Cal. July 6, 2010) (stating that unclaimed funds would be "donated to a charity mutually agreed-upon by the parties, subject to Court approval") (final approval granted Nov. 1, 2010, Dkt. No. 202); Bellows v. NCO Fin. Sys., Inc., No. 3:07-cv01413-W-AJB, 2008 WL 5458986, at *5 (S.D. Cal. Dec. 10, 2008) (granting final approval to settlement providing for a "cy pres award totaling $197,970 to one or more mutually agreed-upon organizations") and Bellows v. NCO Fin. Sys., Inc., 2009 WL 35466 (S. D. Cal. Jan 5, 2009) (approving and adopting the parties' recommendations regarding cy pres recipients). Indeed, courts in this circuit routinely approve cy pres distribution plans in which some funds go to organizations that have previously received charitable contributions from the defendant. See, e.g., Nickel v. Bank of Am. Nat. Trust and Savings Ass'n, No. 94-2716 (SBA), 2009 WL 1270473 (N. D. Cal. May 6, 2009) (approving plan of cy pres distribution in which at least two of the designated charities had previously received charitable donations from Bank of America); compare Declaration of Daniel Rosenthal re: Sources and Uses of the Nickel v. Bank of America Settlement Funds, No. 94-2716, Dkt. 972 (N. D. Cal. filed Apr. 30, 2009), Exhibit B (including University of San Diego and Senior Community Centers in list of cy pres beneficiaries), with "Bank of America 2003 Grants and Sponsors in San Diego", available at http://www.prnewswire.com/news-releases/bank-of-america-2003-grants-and-sponsorships-insan-diego-total-18-million-company-provides-support-to-more-than-190-local-organizationsCase No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES 8 7 6

5

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in charitable donations, much of it distributed across a broad range of public interest and academic organizations engaged in technology-related research and education.9 Hundreds of organizations received Google funding. There is no legal principle that categorically bars every group who received even a dollar of charitable funding from Google from receiving cy pres funds in this settlement, without regard to the merit of the group's proposal or whether the proposed program would advance the interests of the class. The law requires that the cy pres distribution closely approximate the interests of the class, and that the settlement as a whole be fair, reasonable, and adequate. See Six Mexican Workers, 904 F.2d at1308; Fed. R. Civ. Pr. 23(e). Here, Class Counsel have nominated 12 groups, each with an established record of independent service in the public interest. In

compliance with this Court's Order and the Settlement Agreement, the nominations are all for established programs focusing on Internet privacy. Class Counsel's nominations are spread throughout the nation and represent a broad cross-section of advocacy, lobbying, education, and

15 16 17 18 19 20 21 22 23 24 25 26 27 28 71748812.html (University of San Diego and Senior Community Centers received charitable donations from Bank of America in 2003). See also Zaldivar v. T-Mobile USA, Inc., No. 07-1695 (RAJ), 2010 WL 1611981 (W. D. Wash. Mar. 16, 2010) (granting final approval to settlement where cy pres funds would go to the Mobile Giving Foundation). T-Mobile has long supported the Mobile Giving Foundation by waiving texting fees for customers who make charitable donations to the Foundation via text. See "Frequently Asked Questions About the Mobile Giving Foundation", available at http://mobilegiving.org/?page_id=24 (listing T-Mobile USA among wireless carriers that support the Mobile Giving Foundation).
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research organizations. Class's Counsel nominees approach internet privacy using a wide array of methodologies and they focus their work on disparate populations groups, including the underprivileged and the young. Class Counsel's list of nominations is fair, reasonable, and adequate, and the nominees are closely aligned with the interests of the class. III. THE OBJECTORS' PROPOSED SLATE PROVIDES NO ADVANTAGES FOR THE

See http://www.google.org/googlers.html

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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GROUP World Privacy Forum EPIC

CLASS, ONLY FOR THE OBJECTORS By contrast to Class Counsel's broad set of nominees, the Applicant Objectors propose a slate of nominees with these characteristics: Each of the 8 applicant objectors would receive funds from the settlement but no other group would. Each of the 8 applicant objectors would receive 100% of the money that their application sought. Each of the 8 applicant objectors' grants from this settlement would constitute a substantial portion of their entire annual funding ­ indeed four of the groups propose grants for themselves that are more than 150% of their entire 2010 budget, and only one grant would be for less than half (39%) of the group's entire 2011 budget:
2011 Budget 90,000 1,063,688 417,000 306,500 376,387 223,000 1,900,000 3,200,000 Grant Proposed For Self 450,000 1,750,000 643,000 450,000 265,000 153,000 1,000,000 1,250,000 Grant as % of 2011 Budget 500% 164% 154% 147% 70% 69% 53% 39%

Patient Privacy Rights Center for Digital Democracy Privacy Rights Clearinghouse Privacy Activism US PIRG Consumer Action

The Applicant Objectors justify this self-allocation on the basis that, "Virtually none of the organizations receiving funds in the proposed cy pres settlement showed any interest in the circumstances of Class members prior to the announcement of the cy pres settlement in this matter," Applicants' Objection at 9, and that the nominated groups "stand by quietly while others do the actual work of safeguarding Internet privacy." Id. at 9-10. These characterizations by

the Applicant Objectors are confusing in that, as noted above, the Applicant Objectors are aware of the significant privacy work done by the nominated groups. Perhaps the Applicant Objectors mean simply to limit their criticism of the nominated groups to the fact that few addressed
Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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Google's launch of Buzz specifically. Again, as noted above, however, a number of the nominated groups did strongly criticize Google over the launch of Buzz. Moreover, what is odd about criticizing the nominated groups on the Buzz front is that this criticism applies as well, or perhaps even more, to 7 of the 8 Applicant Objectors, none of whom, as far as Class Counsel is aware, undertook any advocacy or public education work related to Buzz specifically. The lawyers at the eighth group, EPIC, elected to pursue the Buzz matter by filing a complaint with the Federal Trade Commission, a chosen route that appears not to enable the recovery of attorney's fees. Nothing, at the end of the day, distinguishes the 8 Applicant Objectors as a group among the 77 total applicants and 12 nominated groups such that the Court would be required to order their inclusion as cy pres recipients. CONCLUSION In sum, the parties have complied with every aspect of this Court's Order, and Class Counsel have propounded a nomination list that meets the requirements of law and promotes the interests of the class. Objectors insist, perhaps inevitably, that a different slate of applicants should have been nominated. Among the 300,000,000,000,000,000,000,000 nomination slates that could be constructed with 77 different applicants and any number of possible combinations, the Applicant Objectors propose the one slate that provides 100% of the available funds to their 8 groups. Rather than indulge such attempts to micro-manage the cy pres selection process among the 77 applicants and nearly infinite possible slates, more of which may follow on the heels of this one, the Court's role is to ensure that the parties carefully followed the procedures set forth in its Order of February 16, and the terms of the Settlement Agreement, and that Class Counsel nominated a final slate of recipients consistent with the Class's interests. The parties have carefully followed the Court's ordered approach and Class Counsel's nominations are wellknown, well-established, well-regarded privacy groups whose work is clearly in the Class's interests. The parties respectfully request that the Court, after reviewing these filings, enter the proposed Final Approval Order.

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael F. Ram (SBN 104805) RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Phone: [phone] Fax: [phone] William B. Rubenstein (SBN 235312) 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 Phone: [phone] Fax: [phone] Peter N. Wasylyk (pro hac vice) LAW OFFICES OF PETER N. WASYLK 1307 Chalkstone Avenue Providence, Rhode Island 02908 Phone: [phone] Andrew S. Kierstead (SBN 132105) LAW OFFICE OF ANDREW KIERSTEAD 1001 SW 5th Avenue, Suite 1100 Portland, Oregon 97204 Phone: [phone] Peter W. Thomas THOMAS GENSHAFT, P.C. 0039 Boomerand Rd, Ste 8130 Aspen, Colorado 81611 Phone: [phone] Michael D. Braun (SBN 167416) BRAUN LAW GROUP, P.C. 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Phone: [phone] DATED: April 4, 2011

Respectfully submitted, /s/ Gary E. Mason Gary E. Mason, Esq. (admitted pro hac vice) MASON LLP 1625 Massachusetts Ave., N.W., Suite 605 Washington, D.C. 20036 Tel. [phone] Fax. [phone]

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES

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Donald Amamgbo AMAMGBO & ASSOCIATES 7901 Oakport St., Ste 4900 Oakland, California 94261 Reginald Terrell, Esq. THE TERRELL LAW GROUP P.O. Box 13315, PMB # 149 Oakland, California 94661 Jonathan Shub (SBN 237708) SEEGER WEISS LLP 1818 Market Street, 13th Floor Philadelphia, Pennsylvania 19102 Phone: [phone] Christopher A. Seeger SEEGER WEISS LLP One William Street New York, New York Phone: [phone] Lawrence Feldman LAWRENCE E. FELDMAN & ASSOC. 423 Tulpehocken Avenue Elkins Park, Pennsylvania 19027 Phone: [phone] Eric Freed (SBN 162546) FREED & WEISS LLC 111 West Washington Street, Ste 1311 Chicago, IL 60602 Phone: [phone] Howard G. Silverman KANE & SILVERMAN, P.C. 2401 Pennsylvania Ave, Ste 1C-44 Philadelphia, PA 19130 Phone: [phone] Attorneys for Plaintiffs and the Proposed Class

Case No. 10-00672-JW ­ CLASS COUNSEL'S RESPONSE TO (1) CY PRES APPLICANTS' OBJECTION TO CLASS COUNSEL'S PROPOSED CY PRES DISTRIBUTION AND TO (2) OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS' FEES