Hibnick v. Google Inc.

Filing 143

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals by Brent Clifton, Warren Sibley (Attachments: # 1 DAR, # 2 Judgment, # 3 Judgment)(tsh, COURT STAFF) (Filed on 7/6/2011)

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Case5:10-cv-00672-JW Document128 Filed05/31/11 Page1 of 9 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 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.) Case5:10-cv-00672-JW Document128 Filed05/31/11 Page2 of 9 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 Case5:10-cv-00672-JW Document128 1 (1) Filed05/31/11 Page3 of 9 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 Case5:10-cv-00672-JW Document128 1 (g) Filed05/31/11 Page4 of 9 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 Case5:10-cv-00672-JW Document128 1 (11) Filed05/31/11 Page5 of 9 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 Case5:10-cv-00672-JW Document128 Filed05/31/11 Page6 of 9 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 $7,000,000 $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 Case5:10-cv-00672-JW Document128 Filed05/31/11 Page7 of 9 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 Case5:10-cv-00672-JW Document128 Filed05/31/11 Page8 of 9 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: May 31, 2011 JAMES WARE United States District Chief Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case5:10-cv-00672-JW Document128 Filed05/31/11 Page9 of 9 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 Albert Gidari AGidari@perkinscoie.com Christopher A. Seeger cseeger@seegerweiss.com Daniel A Osborn dosborn@osbornlawpc.com David Burman dburman@perkinscoie.com Donna F Solen dsolen@masonlawdc.com Gary E. Mason gmason@masonlawdc.com James Garrett Kendrick jgk@private-ag.com Jeffrey Phillip Harris jharris@statmanharris.com John William Davis john@johnwdavis.com Jonathan Shub jshub@seegerweiss.com Jonathan P. Hayden jonathan.hayden@lh-sf.com Joseph Darrell Palmer darrell.palmer@cox.net Joshua Reuben Furman jrf@furmanlawyers.com Marina Trubitsky marina.trubitsky@lawcontact.com Mark Andrew Chavez mark@chavezgertler.com Martin Dante Murphy martin@lmslaw.com Michael D. Braun service@braunlawgroup.com Michael Francis Ram mram@ramolson.com Peter W. Thomas peter@thomasgenshaft.com Philip A. Leider pleider@chapop.com Philip Scott Friedman psf@consumerlawhelp.com Reginald Von Terrell reggiet2@aol.com Susan D. Fahringer sfahringer@perkinscoie.com 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 Dated: May 31, 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

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