Hibnick v. Google Inc.

Filing 129

Amended ORDER re 128 Order on Motion to Approve Consent Judgment, Order on Motion for Attorney Fees. Signed by Judge James Ware on June 2, 2011. (jwlc3, COURT STAFF) (Filed on 6/2/2011)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION
NO. C 10-00672 JW

In re Google Buzz Privacy Litigation

11
For the Northern District of California

United States District Court

10

AMENDED ORDER GRANTING FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT; APPROVAL OF CY PRES
AWARDS; AND AWARDING ATTORNEY
FEES

12
13
14
15

/
Presently before the Court are the parties’ Motion for Final Approval of Class Settlement1

16

and Plaintiffs’ Motion for Attorney Fees.2 Pursuant to the Order Preliminarily Approving Class

17

Action Settlement issued by the Court on October 7, 2010, Class Notice, including notice of the

18

Final Fairness Hearing, was sent to the Class. On February 7, 2011, the Court conducted a hearing

19

on Final Approval of Class Settlement and Application for Attorney Fees and Costs. Counsel for the

20

parties were present.

21

On February 16, 2011, following review of the papers regarding final approval and in

22

response to objections at the Hearing, the Court issued an Order Re. Nomination Process For Cy

23

Pres Recipients requiring modification of the cy pres nomination process to allow for additional

24

Court oversight. (See Docket Item No. 117.) The February 16 Order included the reservation that

25
1

26
27

(See 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, Docket Item No. 61.)
2

28

(See Class Counsel’s Application for Attorneys’ Fees and Reimbursement of Expenses,
Docket Item No. 65.)

1

the Court may designate cy pres recipients and dispersal amounts on its own motion. (Id. at 2.) On

2

March 25, 2011, pursuant to the Court’s February 16 Order, Plaintiffs’ counsel submitted a list of cy

3

pres organizations and distribution amounts for Court approval. (See Docket Item No. 119.)

4

Certain organizations who had applied for a cy pres nomination and were not included on the

5

final list filed Objections regarding the proposed list of nominations and distribution amounts. (See

6

Docket Item Nos. 121, 122, 125.) In one of the Objections, the Electronic Privacy Information

7

Center (“EPIC”), on behalf of itself and a number of other organizations, contends that the objecting

8

organizations timely filed applications for consideration of a cy pres award, but were excluded from

9

the final list based on Class Counsel’s bias towards distribution of cy pres funds to “organizations
that are currently paid by [Defendant] to lobby for or to consult for the company.” (hereafter, “EPIC

11
For the Northern District of California

United States District Court

10

Objection,” Docket Item No. 121 at 2.) EPIC further contends that Class Counsel’s bias toward

12

organizations favorable to Defendant has resulted in a proposed list of organizations that fails to

13

distribute the funds in accord with the legitimate objectives underlying the lawsuit, the interests of

14

class members and the interests of those similarly situated. (EPIC Objection at 3.)

15

Upon review, the Court finds that aside from a few necessary modifications, Class Counsel’s

16

proposed nomination list adequately represents the interests of the Class and provides an effective

17

range of projects serving a large swath of populations and interests. Thus, the Court adopts Class

18

Counsel’s nominated list with two modifications. First, the Court does not find good cause to

19

exclude EPIC from the list of recipients of the cy pres funds. EPIC has demonstrated that it is a

20

well-established and respected organization within the field of internet privacy and that it has

21

sufficiently outlined how the cy pres funding will be used to further the interests of the class.

22

Second, the Court also nominates the Markkula Center for Applied Ethics at Santa Clara University.

23

The Markkula Center is dedicated to research and dialogue on issues of practical ethics. The Center

24

has included internet privacy issues as one of the subjects it addresses, and is committed to

25

expanding this program using the cy pres funds.

26
27
28

Accordingly, based on the papers submitted to date and oral argument, the Court finds and
orders as follows:
2

1

(1)

This Order incorporates by reference the definitions in the Settlement Agreement,

2

and all terms as used in this Order shall have the meaning as set forth in the

3

Settlement Agreement.

4

(2)

5
6

over the parties, including all Class Members.
(3)

7
8

(4)

All Gmail users in the United States presented with the opportunity to use Google
Buzz through the Notice Date. Excluded from the Class are: (1) Google, or any
entity in which Google has a controlling interest, and its respective legal
representatives, officers, directors, employees, assigns and successors; (2) the judge
to whom this case is assigned and any member of the judge’s staff and immediate
family; and (3) any person who, in accordance with the terms of this Agreement,
properly executes and submits a timely request for exclusion from the Class.

11
For the Northern District of California

Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3), the proposed Class is hereby certified
for settlement purposes only. The Settlement Class is defined as follows:

10

United States District Court

The Settlement Agreement previously provided by the Court is adopted by the Court
and made part of this Order as if set out in full herein.

9

12
13
14

For purposes of this litigation, the Court has subject matter and personal jurisdiction

(5)

Pursuant to Fed. R. Civ. P. 23, and for purposes of settlement only, the Court makes

15

the following findings of fact and conclusions of law:

16

(a)

The Settlement Class is sufficiently definite;

17

(b)

The Settlement Class is so numerous that joinder of all members of the

18

Settlement Class is impracticable;

19

(c)

There are questions of law and/or fact common within the Settlement Class;

20

(d)

Plaintiffs’ claims are typical of the claims of the members of the Settlement

21
22

Class;
(e)

23
24
25

Plaintiffs and their counsel have and will fairly and adequately represent and
protect the interests of the Settlement Class;

(f)

Plaintiffs’ interests do not conflict with the interests of the Settlement Class in
the maintenance of this action;

26
27
28

3

1

(g)

The questions of law and/or fact common to the Settlement Class predominate

2

over the questions affecting only individual members of the Settlement Class;

3

and

4

(h)

5
6

Certification of the Settlement Class is superior to other available methods for
the fair and efficient adjudication of this controversy.

(6)

7

The Settlement Agreement and the terms contained therein are hereby approved as
fair, reasonable, and adequate, and in the best interests of the Class as a whole.

(7)

Gary E. Mason, Mason LLP, is hereby confirmed as Lead Class Counsel.

9

(8)

Michael F. Ram, Ram & Olson LLP, is hereby confirmed as Liaison Counsel.

10

(9)

William B. Rubenstein, Peter N. Wasylyk, Andrew S. Kierstead, Peter W. Thomas,

11
For the Northern District of California

United States District Court

8

Thomas Genshaft, P.C.; Michael D. Braun, Braun Law Group, P.C.; Donald

12

Amamgbo, Amamgbo & Associates; Reginald Terrell, the Terrell Law Group;

13

Jonathan Shub, Shub Law LLC; Christopher A. Seeger, Seeger Weiss LLP; Lawrence

14

Feldman, Lawrence E. Feldman & Associates; Eric Freed, Freed & Weiss LLC; and

15

Howard G. Silverman, Kane & Silverman P.C., are hereby confirmed as Class

16

Counsel.

17

(10)

The parties have provided notice in a manner consistent with the Order granting the

18

parties’ Motion for Preliminary Approval of Class Action Settlement and as set forth

19

in the Settlement Agreement. The notice, as implemented, met the requirements of

20

due process and was the best notice practicable under the circumstances. The notice

21

was reasonably calculated, under the circumstances, to apprise members of the

22

Settlement Class of the pendency of the action, the terms of the Settlement, and their

23

right to appear, object to, or exclude themselves from the Settlement. Further, the

24

notice was reasonable and constituted due, adequate and sufficient notice to all

25

persons entitled to receive notice. The Defendant notified the appropriate federal and

26

state officials pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28

27

U.S.C. § 1715.

28

4

1

(11)

Class Counsel retained The Garden City Group, Inc. to assist in disseminating Notice

2

in accordance with the terms of the Settlement Agreement and the Court’s Order

3

granting the parties’ Motion for Preliminary Approval of Class Action Settlement. It

4

is apparent from the Affidavit of Jennifer M. Keough in Support of Plaintiffs’ Motion

5

for Final Approval of Class Action Settlement, the Declaration of Susan Fahringer

6

and the Declaration of Brian Stoler that the Notice was properly implemented and

7

effective.

8

(12)

The Court has determined that full opportunity has been given to the members of the

Class Counsel’s request for attorney fees and expenses, and otherwise participate in

11
For the Northern District of California

Settlement Class to opt out of the Settlement, object to the terms of the Settlement or

10

United States District Court

9

the Final Approval Hearing on February 7, 2011. The Court has considered all

12

submissions and arguments provided by Class Members objecting to the Settlement,

13

as well as Class Counsel’s response to those Objections, and has determined that

14

none of the Objections warrants disapproval of the Settlement Agreement and/or

15

Plaintiffs’ request for attorney fees and expenses.

16

(13)

Following the February 7, 2011 Final Approval Hearing, the Court issued an Order

17

on February 16, 2011 directing the parties to solicit nominations from organizations

18

interested in receiving awards from the cy pres fund established by this Settlement

19

and ordering Class Counsel to consolidate the list and submit cy pres organization

20

and distribution amount nominations to this Court before March 28, 2011. On March

21

25, 2011, Class Counsel reported to the Court that the parties had received a total of

22

77 applications seeking more than $35 million altogether. Pursuant to section 3.4 of

23

the Settlement Agreement, counsel met and agreed to nominate a total of 12 groups

24

for $6,065,000 of funding. In accordance with the Court’s February 16, 2011 Order,

25

Class Counsel submitted these organization and distribution amount nominations to

26

the Court on March 25, 2011. Having reviewed Class Counsel’s submission and the

27

Objections filed in response to the submission, the Court hereby approves the

28

5

1

following list of nominated organizations and amounts as submitted by Class

2

Counsel:

3
4

(a)
(b)
(c)

5

(d)

6

(e)
(f)

7
(g)
(h)
(I)

8
9

11

(j)
(k)
(l)
(m)

12

(n)

For the Northern District of California

United States District Court

10

13

(14)

American Civil Liberties Union
Berkeley Center for Law & Technology
Berkeley Law School, Samuelson Law,
Technology & Public Policy Clinic
Berkman Center for Internet &
Society at Harvard University
Brookings Institution
Carnegie Mellon, Cylab
Usability, Privacy & Security Lab
Center for Democracy & Technology
Electronic Frontier Foundation
Indiana University, Center for
Applied Cybersecurity Research
Stanford, Center for Internet & Society
YMCA of Greater Long Beach
The Electronic Privacy Information Center
The Markkula Center for Applied Ethics
Santa Clara University
Youth Radio

$700,000
$500,000
$200,000
$500,000
$165,000
$350,000
$500,000
$1,000,000
$300,000
$500,000
$300,000
$500,000
$500,000
$50,000

The Court has carefully considered all the materials and arguments before it and has

14

made its independent judgment that: (1) Plaintiffs and Class Members face significant

15

risks if this litigation were to proceed; (2) the possibility of a greater ultimate

16

recovery would only occur after considerable delay; (3) the terms of the Settlement

17

provide substantial and meaningful benefits to the Settlement Class; (4) the cy pres

18

recipient organizations will use the funds in a way that provides an indirect benefit to

19

the Class Members consistent with the Class Members’ claims herein; (5) the

20

Settlement is the product of meaningful investigation in to the facts and

21

circumstances of the launch of Google Buzz; (6) the settlement negotiations were

22

extensive, arms-length, under the direction of the Hon. Fern Smith, and without any

23

collusion; (7) the reaction by the Settlement Class has been in favor of the

24

Settlement; and (8) Class Counsel support the Settlement. Accordingly, having

25

considered the foregoing as well as the small number of opt-outs and objections, the

26

costs and risks and delays of continued litigation versus the benefits provided by the

27

Settlement, and based on this Court’s knowledge of this action, the Court finds and

28

6

1

concludes that the Settlement is in the best interests of the Class and is fair,

2

reasonable and adequate to all Class Members. The Court therefore enters Judgment

3

in accordance with the Settlement Agreement.

4

(15)

The Settlement and the terms of the Settlement Agreement are accordingly granted

5

final approval and are confirmed as fair, reasonable and adequate and are binding

6

upon all Class Members who have not timely opted-out.

7

(16)

The parties are hereby directed to proceed with and complete implementation of the

8

Settlement, including payment to the cy pres recipients pursuant to Section 3.4 of the

9

Settlement Agreement.
(17)

The Court dismisses on the merits with prejudice all claims presently before it and

11
For the Northern District of California

United States District Court

10

orders the release of all Class Members’ claims pursuant to Section 9 of the

12

Settlement Agreement.

13

(18)

14
15

Those Class Members who requested exclusion and who are listed on Exhibit 1 to the
Affidavit of the Class Action Administrator are hereby excluded from this Settlement.

(19)

The Court, having considered the request of Class Counsel for an award of attorney

16

fees and reimbursement of expenses, hereby grants the request and awards Class

17

Counsel attorney fees in the amount of $2,125,000. This amount was reasonable

18

under both a common fund percentage analysis and a lodestar multiplier analysis.

19

The Court also grants Class Counsel’s request for expense reimbursement equal to

20

the amount of their reasonable expenses incurred in prosecuting this action and in

21

implementing this Settlement. The Court approves reimbursement of Class

22

Counsel’s expenses totaling $29,286.85, as submitted in December 2010, and orders

23

Class Counsel to submit their final costs for Court approval within 30 days of this

24

Order. The Court also approves the requested incentive award of $2,500 for each

25

Class Representative. All court-awarded fees, expenses and reimbursements shall be

26

paid out of the Common Fund. Any monies remaining in the Common Fund after the

27
28

7

1

payment of all cy pres distribution, fees and expenses shall be distributed, pro rata,

2

among the cy pres recipients.

3

(20)

4
5

All parties are bound by this Final Order and Judgment and by the Settlement
Agreement.

(21)

Without affecting the finality of the Final Order and Judgment, the Court reserves

6

continuing and exclusive jurisdiction over the parties and their counsel, including all

7

Class Members and their counsel with respect to the execution, consummation,

8

administration, implementation, effectuation and enforcement of the Settlement

9

Agreement and this Order, including the entry of any additional orders as may be

11
For the Northern District of California

United States District Court

10

necessary and appropriate relating to any and all issues including any appeals.
The Clerk shall close this file.

12
13

Dated: June 2, 2011
JAMES WARE
United States District Chief Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

1

THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

2

Albert Gidari [e-mail]
Christopher A. Seeger [e-mail]
Daniel A Osborn [e-mail]
David Burman [e-mail]
Donna F Solen [e-mail]
Gary E. Mason [e-mail]
James Garrett Kendrick [e-mail]
Jeffrey Phillip Harris [e-mail]
John William Davis [e-mail]
Jonathan Shub [e-mail]
Jonathan P. Hayden [e-mail]
Joseph Darrell Palmer [e-mail]
Joshua Reuben Furman [e-mail]
Marina Trubitsky [e-mail]
Mark Andrew Chavez [e-mail]
Martin Dante Murphy [e-mail]
Michael D. Braun [e-mail]
Michael Francis Ram [e-mail]
Peter W. Thomas [e-mail]
Philip A. Leider [e-mail]
Philip Scott Friedman [e-mail]
Reginald Von Terrell [e-mail]
Susan D. Fahringer [e-mail]

3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14

Dated: June 2, 2011

Richard W. Wieking, Clerk

15
16
17
18
19
20
21
22
23
24
25
26
27
28

By:

/s/ JW Chambers
Elizabeth Garcia
Courtroom Deputy