Hibnick v. Google Inc.
Filing
153
Transcript of Proceedings held on 02-07-11, before Judge James Ware. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/1/2011. (las, ) (Filed on 8/3/2011)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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IN RE GOOGLE BUZZ USER
PRIVACY LITIGATION,
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C-10-00672 JW
SAN JOSE, CALIFORNIA
FEBRUARY 7, 2011
PAGES 1-48
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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES WARE
UNITED STATES DISTRICT JUDGE
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A P P E A R A N C E S:
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FOR THE PLAINTIFFS: MASON LLP
BY: GARY E. MASON
1625 MASSACHUSETTS AVENUE, NW
SUITE 605
WASHINGTON, D.C. 20036
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RAM & OLSON
BY: MICHAEL F. RAM
555 MONTGOMERY STREET, SUITE 820
SAN FRANCISCO, CALIFORNIA 94111
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HARVARD LAW SCHOOL
BY: WILLIAM B. RUBENSTEIN
1545 MASSACHUSETTS AVENUE
CAMBRIDGE, MASSACHUSETTS 02138
APPEARANCES CONTINUED ON NEXT PAGE
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OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595
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APPEARANCES (CONTINUED)
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FOR OBJECTOR
ZIMMERMAN:
JOSHUA R. FURMAN LAW CORP.
BY: JOSHUA R. FURMAN
9663 SANTA MONICA BOULEVARD
SUITE 721
BEVERLY HILLS, CALIFORNIA 90210
FOR OBJECTORS
COPE AND MAREK:
LAW OFFICES OF DARRELL PALMER
BY: DARRELL PALMER
603 NORTH HIGHWAY 101, SUITE A
SOLANA BEACH, CALIFORNIA 92075
FOR OBJECTOR
JACKSON:
STATMAN, HARRIS & EYRICH, LLC
BY: JEFFREY P. HARRIS AND
ALAN J. STATMAN
3700 CAREW TOWER
441 VINE STREET
CINCINNATI, OHIO 45202
FOR OBJECTOR
RUDGAYZER:
OSBORN LAW, P.C.
BY: DANIEL A. OSBORN
295 MADISON AVENUE
39TH FLOOR
NEW YORK, NEW YORK 10017
FOR OBJECTOR
GACHOT:
NATALIE GACHOT
IN PRO PER
FOR THE DEFENDANT:
PERKINS COIE
BY: SUSAN FAHRINGER
1201 THIRD AVENUE, SUITE 4800
SEATTLE, WASHINGTON 98101
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SAN JOSE, CALIFORNIA
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P R O C E E D I N G S
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FEBRUARY 7, 2011
(WHEREUPON, COURT CONVENED AND THE
FOLLOWING PROCEEDINGS WERE HELD:)
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THE CLERK:
CALLING CASE NUMBER IN RE
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GOOGLE BUZZ PRIVACY LITIGATION, ON FOR MOTION FOR
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FINAL APPROVAL OF CLASS SETTLEMENT AND ATTORNEYS'
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FEES.
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FIVE MINUTES EACH SIDE AS TO BOTH
MOTIONS.
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COUNSEL, PLEASE COME FORWARD AND STATE
YOUR APPEARANCES.
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MR. MASON:
GARY MASON, CLASS COUNSEL FOR PLAINTIFFS.
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MR. RAM:
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GOOD MORNING, YOUR HONOR.
MICHAEL RAM FOR THE PLAINTIFF CLASS.
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GOOD MORNING, YOUR HONOR.
MR. RUBENSTEIN:
HONOR.
GOOD MORNING, YOUR
WILLIAM RUBENSTEIN FOR THE PLAINTIFF CLASS.
MS. FAHRINGER:
SUSAN FAHRINGER
REPRESENTING GOOGLE.
MR. FURMAN:
GOOD MORNING, YOUR HONOR.
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JOSHUA FURMAN FOR PLAINTIFF OBJECTOR
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JOHN ZIMMERMAN.
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MR. PALMER:
GOOD MORNING, YOUR HONOR.
DARRELL PALMER ON BEHALF OF OBJECTOR STEVEN COPE,
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AND SPECIALLY APPEARING FOR MEGAN MAREK.
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MR. HARRIS:
GOOD MORNING, YOUR HONOR.
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JEFFREY P. HARRIS FOR OBJECTOR ALISON JACKSON, AND
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ALSO MY PARTNER, ALAN STATMAN.
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MR. OSBORN:
GOOD MORNING, YOUR HONOR.
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DANIEL OSBORN ON BEHALF OF OBJECTOR
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TANYA RUDGAYZER.
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MS. GACHOT:
GOOD MORNING, YOUR HONOR.
NATALIE GACHOT, OBJECTOR APPEARING IN PRO PER.
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THE COURT:
IT'S UNUSUAL TO HAVE THE
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OBJECTORS OUTNUMBER THE PARTIES IN THIS KIND OF
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CASE.
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OBJECTORS FIRST, BUT LET'S HEAR FROM YOU,
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MR. MASON, IS IT?
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I ALMOST FEEL LIKE I SHOULD HEAR FROM THE
MR. MASON:
IT'S MASON, THANK YOU, YOUR
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HONOR.
WE ARE GOING TO KEEP OUR COMMENTS BRIEF AND
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TRY TO RESERVE TIME FOR REPLY TO THE OBJECTIONS.
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I'M SPLITTING THE ARGUMENT THIS MORNING
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WITH MY CO-COUNSEL, PROFESSOR RUBENSTEIN, AND I'M
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GOING TO LET PROFESSOR RUBENSTEIN ARGUE FIRST ON
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BEHALF OF THE SETTLEMENT ITSELF, AND I'M PREPARED
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TO TALK ABOUT ATTORNEYS' FEES.
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MR. RUBENSTEIN:
GOOD MORNING, YOUR
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HONOR.
I'LL BE BRIEF AND WOULD ASK THAT WE RESERVE
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TIME TO RESPOND TO THE OBJECTORS.
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JUST TO MAKE SEVERAL POINTS TO PRESENT
THE SETTLEMENT TO YOU.
THE CASE WAS ORIGINALLY BROUGHT AGAINST
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GOOGLE HAVING TO DO WITH THE LAUNCH OF THEIR SOCIAL
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NETWORKING PROGRAM, THE BUZZ PROGRAM.
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THE CONCERN WAS THAT BUZZ WAS ATTACHED TO
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GOOGLE'S E-MAIL PROGRAM, GMAIL, AND IT USED THE
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CONTACTS IN YOUR GMAIL CONTACT LIST AS THE BASIS OF
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THE SOCIAL NETWORKING PROGRAM.
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AND THIS RAISED PRIVACY CONCERNS BECAUSE
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THERE'S A DIFFERENCE BETWEEN PEOPLE WHO YOU HAVE IN
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YOUR E-MAIL CONTACT LIST AND PEOPLE WHO YOU MIGHT
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WANT TO BE IN A SOCIAL NETWORKING PROGRAM WITH.
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HAVING SAID THAT, THE BROADEST
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ALLEGATIONS ABOUT THE PROGRAM THAT WERE MADE AT THE
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OUTSET WERE ESSENTIALLY THAT JUST BY LAUNCHING
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BUZZ, EVERYONE'S GMAIL CONTACT LIST SUDDENLY BECAME
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PUBLIC TO THE WORLD, AND AFTER INVESTIGATION OF
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THOSE ALLEGATIONS, THEY TURNED OUT NOT TO BE TRUE,
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YOUR HONOR.
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SEVERAL THINGS WE LEARNED WERE THAT -TWO IMPORTANT FACTS.
FIRST, FOR ANY INFORMATION TO BECOME
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PUBLIC, A USER HAD TO ACTIVATE BUZZ, WHICH REQUIRED
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STEPPING THROUGH SEVERAL SCREENS AND GOING THROUGH
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AN ACTIVATION PROCESS.
AND, SECOND, THE RELEASE OF INFORMATION
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WASN'T TO THE WHOLE WORLD.
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ON THE WEB IF YOU HAD A GOOGLE PROFILE AND HAD DONE
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THAT; OR, SECOND, IT WAS ONLY WITHIN THE NETWORK OF
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PEOPLE WHO YOU WERE WITHIN.
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IT WAS ONLY BROADCAST
SO WHERE WE STARTED WITH VERY BROAD
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ALLEGATIONS IN THIS CASE, ONE OF THE THINGS WE
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FOUND WAS THAT, IN FACT, THE BUZZ PROGRAM,
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PARTICULARLY AFTER IT WAS MODIFIED THROUGHOUT THE
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COURSE OF THIS LITIGATION, DIDN'T HAVE AS WIDE
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DISSEMINATION OF THE PRIVATE INFORMATION AS WE
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THOUGHT IT DID, AND THE ONLY INFORMATION WE'RE EVER
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TALKING ABOUT WERE THE E-MAIL ADDRESSES OF YOUR
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CONTACTS IN YOUR E-MAIL LIST.
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SO THE PROGRAM -- THE CASE REALLY BECAME
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ONE OF HAVING TO DEAL WITH GOOGLE'S PROGRAMS THAT
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ENABLED USERS TO UNDERSTAND WHAT WAS BEING DONE
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WITH THEIR INFORMATION AND WHETHER THAT WAS
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SUFFICIENTLY DETAILED SO THAT USERS OF THE PROGRAM
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KNEW HOW TO CONTROL THE PRIVACY OF THEIR
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INFORMATION.
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AFTER WE LEARNED MORE ABOUT THE PROGRAM
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AND INVESTIGATED IT IN DEPTH, WE ENTERED INTO
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SETTLEMENT NEGOTIATIONS.
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WE HAD A FULL DAY MEDIATION IN FRONT OF
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THE HONORABLE FERN SMITH, A RETIRED FEDERAL COURT
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DISTRICT JUDGE, THAT YIELDED THE PRESENT SETTLEMENT
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THAT WE PRESENTED TO THE COURT.
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THE SETTLEMENT HAS THREE COMPONENTS OF
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RELIEF FOR THE CLASS, YOUR HONOR:
FIRST, IT
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ACKNOWLEDGES THE CHANGES THAT HAVE BEEN MADE TO THE
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PROGRAM TO BE MORE PRIVACY SENSITIVE TO USERS;
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SECOND, GOOGLE'S AGREED TO DO A PUBLIC EDUCATION
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CAMPAIGN ABOUT THE PRIVACY ASPECTS OF BUZZ SO
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PEOPLE UNDERSTAND THAT MORE; AND, THIRD, WE'VE
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CREATED AN $8.5 MILLION SETTLEMENT FUND.
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BECAUSE THERE ARE 37 MILLION CLASS
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MEMBERS, YOUR HONOR, THE SETTLEMENT FUND WILL BE
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DISTRIBUTED CY PRES TO GROUPS THAT ARE WORKING ON
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INTERNET PRIVACY AND PUBLIC POLICY EDUCATION ABOUT
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INTERNET PRIVACY.
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WE THINK ALL OF THESE BENEFITS ARE VERY
STRONGLY SIGNIFICANT FOR THE CLASS.
IT IS TRUE CLASS MEMBERS WON'T BE GETTING
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INDIVIDUAL DAMAGES.
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DIDN'T FIND ANY INDIVIDUALS WITH ACTUAL
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OUT-OF-POCKET DAMAGES.
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IN OUR INVESTIGATIONS, WE
HOWEVER, WE ASK THAT THIS CLASS BE
CERTIFIED AS A (B)(3) CLASS .
YOU'LL REMEMBER WE
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TALKED ABOUT THAT AT THE PRELIMINARY APPROVAL
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HEARING, AND THAT GAVE INDIVIDUALS THE OPPORTUNITY
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TO OPT OUT IF ANYONE HAD INDIVIDUAL DAMAGES THEY
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WANTED TO PURSUE.
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THEY WANTED TO OPT OUT.
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THEY HAD THAT OPPORTUNITY IF
570 PEOPLE OPTED OUT OF THE SETTLEMENT,
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YOUR HONOR.
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OUT-OF-POCKET DAMAGES.
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NO ONE HAS COME FORWARD WITH ANY EVIDENCE OF THAT.
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SO UNDER THE CIRCUMSTANCES, WE THINK THE
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WE DON'T KNOW IF ANY OF THEM HAVE
NONE OF THE OBJECTORS AND
SETTLEMENT IS FAIR AND REASONABLE.
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AGAIN, THE PROCESS BY WHICH IT WAS
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NEGOTIATED WAS AT ARM'S LENGTH IN FRONT OF A
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FEDERAL JUDGE, RETIRED FEDERAL JUDGE.
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ARE VERY FAVORABLE.
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THE TERMS
WE FACED SIGNIFICANT RISKS OF LITIGATING
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IT FURTHER.
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MAIN CLAIM WAS UNDER THE STORED COMMUNICATIONS ACT.
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I'LL MENTION TWO VERY QUICKLY.
OUR
THE STORED COMMUNICATIONS ACT ALLOWS THE
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RELEASE OF RECORD INFORMATION, BUT NOT CONTENT
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INFORMATION.
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GOOGLE'S POSITION WAS THAT THE E-MAIL
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ADDRESSES, EVEN IF THEY WERE RELEASED WITHOUT USER
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CONSENT, WERE JUST RECORD INFORMATION AND NOT
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CONTENT INFORMATION.
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SECOND, GOOGLE'S POSITION IS THAT USERS
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CONSENTED BY GOING THROUGH THE STEPS OF THE BUZZ
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PROGRAM TO SET UP THEIR ACTIVATION, AND WE WOULD
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HAVE FACED SIGNIFICANT RISK OF PROVING THERE WAS NO
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USER CONSENT IN THESE CIRCUMSTANCES.
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YOUR HONOR, WE BELIEVE THE SETTLEMENT
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COMPARES FAVORABLY TO OTHER SETTLEMENTS OF THIS
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TYPE.
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PRIVACY FUND THAT WILL EVER BE SET UP TO FUND
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WE THINK THIS IS ONE OF, IF NOT THE LARGEST
INTERNET PRIVACY.
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WE'VE PRESENTED IN OUR MOTION PAPERS A
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LOT OF SETTLEMENTS THAT HAVE NO MONETARY RELIEF,
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SOME SETTLEMENTS WITH LESS MONETARY RELIEF, AND WE
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ONLY KNOW OF ONE SETTLEMENT WITH MORE, A LARGER
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FUND, AND THAT'S THE FACEBOOK SETTLEMENT WHICH IS
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NOW ON APPEAL IN THE NINTH CIRCUIT.
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SECOND, YOUR HONOR NOTED THAT THERE ARE A
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SIGNIFICANT NUMBER OF OBJECTORS IN THE COURTROOM
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AND WE WILL ALLOW YOU TO HEAR THEM AND HEAR WHAT
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THEY HAVE TO SAY.
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I WANT TO NOTE SEVERAL THINGS FOR THE
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RECORD.
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SETTLEMENT UNDER CAFA.
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ATTORNEY GENERALS.
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NO GOVERNMENT'S OBJECTED TO THIS
WE SERVED ALL THE STATE
THE UNITED STATES -- THE FTC IS
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OVERSEEING A COMPLAINT ABOUT THIS SAME PROGRAM AND
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THEY DID NOT OBJECT TO THIS SETTLEMENT.
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NO INDEPENDENT CONSUMER GROUPS OBJECTED
TO THE SETTLEMENT.
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THE TOTAL NUMBER OF OBJECTORS IS ABOUT
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ONE IN A MILLION AS THERE ARE 37 MILLION CLASS
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MEMBERS.
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I NOTED, YOUR HONOR, IN YOUR FIRST
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FAIRNESS HEARING THIS MORNING, THERE WAS ONE
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OBJECTOR AND THE CLASS SIZE WAS 300,000.
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TRANSLATES INTO ABOUT 100 OBJECTORS, TWICE AS MANY
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AS WE HAVE HERE.
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THAT
AND IN THE SECOND FAIRNESS HEARING YOU
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HAD THIS MORNING, THERE WERE 25 OBJECTORS IN A
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CLASS OF 200,000.
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OBJECTORS.
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THAT TRANSLATED INTO ABOUT 3700
WE HAVE A TOTAL OF 47 OBJECTORS TO THIS
SETTLEMENT.
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SO WE THINK THE SETTLEMENT HAS NOT
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RECEIVED A SIGNIFICANT AMOUNT OR SIGNIFICANT
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QUALITY OF OBJECTION.
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WE'D RESERVE THE RIGHT TO RESPOND TO WHAT
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THE OBJECTORS HAVE TO SAY AND WE THANK YOU FOR
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CONSIDERING THIS.
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THE COURT:
JUST ONE QUESTION.
I HAD
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UNDERSTOOD THAT THERE HAD BEEN A SIGNIFICANT
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CHANGE, NOT JUST IN THE PROCEDURE OF BUZZ, BUT THE
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BUZZ PROGRAM ITSELF HAD BEEN MODIFIED IN SOME WAY.
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AM I CORRECT OR INCORRECT?
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MR. RUBENSTEIN:
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WHEN YOU SAY NOT JUST IN
THE PROCEDURES, BUT -THE COURT:
IN OTHER WORDS, THE -- AS I
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UNDERSTAND THE WAY THE PROGRAM WAS SET UP, YOU HAD
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TO STEP THROUGH A NUMBER OF SCREENS, AND AT THE END
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OF THAT, YOU WERE IN A POSITION OF BEING A MEMBER
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OF THIS SOCIAL NETWORK AND YOUR E-MAIL ADDRESSES OF
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THOSE TO WHOM YOU USE GMAIL, I GUESS, WERE THEN
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PART OF THE NON-PRIVATE INFORMATION.
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IS THAT STILL THE CASE?
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MR. RUBENSTEIN:
IT IS STILL THE CASE
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THAT IF YOU USE BUZZ, TO SET IT UP, YOU STEP
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THROUGH A SERIES OF SCREENS.
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THE THREE STEPS THAT YOU GO THROUGH HAVE
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EACH CHANGED SINCE THE INCEPTION OF BUZZ, AND THE
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CHANGES THAT HAVE BEEN MADE IN EACH OF THEM -- AND
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I'M HAPPY TO WALK YOUR HONOR THROUGH WHAT THEY
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ARE -- THE CHANGES THAT HAVE BEEN MADE IN EACH OF
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THE THREE STEPS HAVE MADE EACH STEP MORE PRIVACY
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SENSITIVE AND HAVE GIVEN USERS MORE CONTROL OVER
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WHO IS IDENTIFIED AS BEING IN THEIR SOCIAL NETWORK
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AND OVER WHETHER THE USER WANTS THAT INFORMATION TO
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BE MADE PUBLIC OR TO BE KEPT PRIVATE.
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IF, AT THE END OF THOSE THREE STEPS, THE
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USER'S CHOICES ARE TO REVEAL WHO'S IN THEIR SOCIAL
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NETWORK, THEN THAT INFORMATION WILL BE PUBLIC.
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IF THE USER SELECTS THE OPTIONS THAT
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GOOGLE -- I'M SORRY, I SHOULD BACK UP.
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THAT INFORMATION WILL BE SHARED AMONG THE
PEOPLE IN THE SOCIAL NETWORK.
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IF THAT PERSON HAS A GOOGLE PROFILE, IT
COULD BE ON THE WEB AS WELL.
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IF THE PERSON, IN SETTING UP BUZZ,
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SELECTS THE OPTIONS TO KEEP THE INFORMATION PRIVATE
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AND NOT POST AMONG THE SOCIAL NETWORK OR ON THE
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WEB, THEN THAT INFORMATION WILL NOT BE MADE PUBLIC,
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YOUR HONOR.
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KEPT PRIVATE TOTALLY.
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IN THAT SENSE.
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IT'S KEPT WITHIN THE SOCIAL NETWORK OR
THE USER HAS CONTROL OVER IT
I DON'T KNOW IF THAT ADDRESSED YOUR
QUESTION.
THE COURT:
IT -- WELL, AT LEAST IT SAID
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WORDS THAT CLARIFIED THAT THERE IS A PROCEDURE
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STILL NOW WHERE IF YOU GO THROUGH THESE SCREENS AND
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YOU AREN'T -- YOU DON'T SELECT THEM IN A CERTAIN
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WAY, YOU COULD UNWITTINGLY END UP AT A CIRCUMSTANCE
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WHERE YOUR MAIL RECIPIENTS BECOME PART OF THE
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SOCIAL NETWORK THAT YOU'VE REVEALED TO THE PUBLIC.
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MR. RUBENSTEIN:
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HERE.
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UNWITTINGLY IS THE HITCH
THE QUESTION IS HOW MUCH CONTROL A USER HAS
AND WHAT THEIR OPTIONS ARE.
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LET ME GIVE YOU ONE EXAMPLE.
WHEN THE
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PROGRAM STARTED, THE SECOND STEP OF THE PROGRAM
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SAID "THESE ARE THE PEOPLE YOU'RE ALREADY
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FOLLOWING," AND IT HAD A LIST OF PEOPLE WHO WERE
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YOUR E-MAIL CONTACTS WITH WHOM YOU COMMUNICATED
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MOST FREQUENTLY.
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NOW WHEN YOU GO THROUGH THAT STEP, NEXT
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TO EACH OF THOSE PERSON'S NAME AND E-MAIL ADDRESS,
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THERE'S A CHECKMARK AND IT'S CLEAR THAT YOU CAN
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CHECK OR UNCHECK EACH OF THE PEOPLE WHOM YOU WANT
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TO SELECT TO HAVE IN YOUR NETWORK.
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SO THE PROGRAM MAKES IT EASIER TO TAKE
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OUT PEOPLE WHOM YOU DON'T WANT TO COMMUNICATE --
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YOU DON'T WANT TO BE IDENTIFIED --
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THE COURT:
BUT THE DEFAULT IS THAT
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THEY'RE INCLUDED AND YOU HAVE TO ACTUALLY GO
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THROUGH THE STEP OF DESELECTING THEM?
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MR. RUBENSTEIN:
CORRECT.
THAT IS
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CORRECT, YOUR HONOR, AND THAT'S ONE THING WE TALKED
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ABOUT QUITE A BIT IN THE MEDIATION.
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BUT HAVING SAID THAT, THAT CURRENT SET UP
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WHERE YOU CAN EASILY UNCLICK IS BETTER THAN IT WAS
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WHEN THE PROGRAM STARTED.
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AND I SHOULD SAY, WHEN THE PROGRAM
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STARTED -- PART OF THE CONFUSION ABOUT THIS IS
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GOOGLE'S ADVERTISEMENTS OF THIS PROGRAM SAID
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THERE'S NO SET UP NEEDED, YOU'RE AUTOMATICALLY
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FOLLOWING ALL OF THESE PEOPLE.
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WHAT BUZZ NOW SAYS IS "WE SUGGEST THAT
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YOU FOLLOW THE FOLLOWING PEOPLE," AND IT HAS THE
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CHECKMARKS AND YOU CAN TAKE THEM OUT.
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THERE'S ALSO, IN THE THIRD STEP OF THE
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PROGRAM, AN OPPORTUNITY TO DESELECT AGAIN THE LEVEL
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OF PRIVACY THAT YOU WANT -- TO SELECT THE LEVEL OF
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PRIVACY THAT YOU WANT WITH REGARD TO THE PEOPLE WHO
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ARE IN YOUR SOCIAL NETWORK.
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AND, YOUR HONOR, I'M SURE --
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THE COURT:
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WANT TO ADD TO THIS.
I'M SURE MS. FAHRINGER WOULD
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GO AHEAD, MA'AM.
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MS. FAHRINGER:
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JUST ONE POINT OF
CLARIFICATION.
YOU HAD ASKED ABOUT E-MAIL ADDRESSES, AND
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JUST TO BE CLEAR, AT NO POINT WERE ACTUAL E-MAIL
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ADDRESSES PUBLICLY DISCLOSED.
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WHAT WAS DISCLOSED, ONCE ALL OF THE
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SCREENS HAD BEEN SHOWN, ONCE ALL OF THE TRIGGERS
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HAD BEEN APPROVED BY THE USER, WAS THE PROFILE NAME
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OF YOUR FOLLOWERS, AND FOR THOSE, IT WAS ONLY THOSE
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PEOPLE WHO HAD ALSO CREATED A PUBLIC PROFILE.
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SO THE DISCLOSURE WAS NOT ONLY TO A
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SMALLER GROUP THAN ORIGINALLY ALLEGED IN THE
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COMPLAINT, AND ALWAYS HAS BEEN, BUT IT WAS ONLY OF
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THOSE PEOPLE WHO HAD THEMSELVES GONE THROUGH A
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PROCESS TO CREATE AND APPROVE THEIR OWN PUBLIC
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PROFILE.
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SO IT ACTUALLY IS JUST A FAR NARROWER
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GROUP AND DOES NOT INCLUDING E-MAIL ADDRESSES THAT
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ULTIMATELY ARE PARTICIPATING IN THE BUZZ PROGRAM.
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THE COURT:
WELL, LET'S HEAR FROM THE
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OBJECTORS AND THEN WE'LL COME BACK.
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MR. RUBENSTEIN:
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THE COURT:
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THANK YOU VERY MUCH.
ANY OBJECTOR WISH TO SPEAK TO
THE COURT?
MR. HARRIS:
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MORNING, YOUR HONOR.
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HARRIS & EYRICH.
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JEFFREY HARRIS.
GOOD
ALISON JACKSON.
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JEFFREY HARRIS FROM STATMAN,
WE REPRESENT OBJECTOR
AFTER DISCUSSIONS WITH ALISON JACKSON,
AND AFTER REVIEWING THE NOTICE AND THE SETTLEMENT
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AGREEMENT, WE BECAME CONCERNED THAT THERE REALLY IS
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SOME SERIOUS TECHNICAL PROBLEMS IN THIS SETTLEMENT,
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AND ALSO SOME SUBSTANTIVE ISSUES THAT NEED TO BE
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ADDRESSED.
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AS IN EVERY SETTLEMENT, THE REMEDY NEEDS
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TO FIT THE PROBLEM, AND WE DON'T THINK THAT'S
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HAPPENING HERE.
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WE'RE NOT IN THE BUSINESS OF OBJECTING.
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WE'VE NEVER OBJECTED BEFORE IN A CLASS ACTION CASE,
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ALTHOUGH WE'VE BEEN INVOLVED IN CLASS ACTION CASES.
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BUT IN THIS PARTICULAR CASE, WE THINK
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THAT WE NEED TO ASSIST THIS CLASS TO -- AND TO --
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AND OUR CLIENT TO GET A REMEDY THAT MORE FITS THE
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PROBLEM.
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AND WE'RE NOT HERE TO DERAIL THIS
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SETTLEMENT, BUT WE BELIEVE THAT IT CAN BE
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RESTRUCTURED TO ADDRESS THE CONCERNS OF THE CLASS,
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AND POSSIBLY ALSO IT NEEDS TO BE RESTRUCTURED
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BECAUSE IF IT GOES THROUGH THIS WAY, WE FEEL
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THERE'S A VERY STRONG LIKELIHOOD THAT THIS CASE
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WILL BE OVERTURNED ON APPEAL.
22
WE RAISED FIVE SPECIFIC OBJECTIONS.
23
THREE OF THOSE OBJECTIONS WERE NOT DEALT WITH IN
24
THE REPLY, AND TWO OF THEM WERE PARTIALLY
25
ADDRESSED, BUT REALLY THE WAY IT WAS ADDRESSED
16
1
ACTUALLY SUPPORTS THE OBJECTION.
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THE FIRST, WHICH IS A VERY SPECIFIC
3
OBJECTION, IS THAT EVERYTHING THAT'S BEEN FILED IN
4
THIS CASE SHOWS THAT WHAT THEY DID TO REMEDY THE
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PROBLEM ALL OCCURRED BEFORE FEBRUARY 17TH WHEN THE
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FIRST CASE WAS FILED.
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THERE WAS ONE THING THAT HAPPENED AFTER,
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ON APRIL 5, WHEN THERE WAS A CONFIRMATION NOTICE
9
SENT OUT.
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SO WE HAVE A SITUATION WHERE THE
11
PLAINTIFF -- AND AS FAR AS I CAN SEE, GOOGLE IS
12
SAYING THE PROBLEM'S REMEDIED ON APRIL 5.
13
14
WE HAVE A CLASS PERIOD, THOUGH, THAT RUNS
TO THE DATE OF THE NOTICE.
15
THIS MEANS THAT THIS CLASS IS OVERBROAD.
16
PEOPLE FROM APRIL 5 WHO JOINED GMAIL THROUGH THE
17
NOTICE DATE HAVE NO DAMAGE AND, AS IN EVERY CLASS
18
ACTION, YOU START WHEN THE PROBLEM HAPPENED, AND
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YOU STOP THE CLASS PERIOD WHEN THE PROBLEM'S
20
RESOLVED.
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WE TRIED TO DISCUSS THIS WITH PLAINTIFFS'
COUNSEL.
WE TRIED TO DEAL WITH THIS ISSUE.
23
BUT THERE'S BEEN NO AVAIL.
24
BUT I THINK THAT JUST BECAUSE GOOGLE
25
WANTS THE BROADEST RELIEF POSSIBLE AS FAR AS A
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1
RELEASE GOES BY INCLUDING ALL THESE PEOPLE, THEY
2
GET THE RELEASE FOR THEM, IT DOESN'T JUSTIFY
3
INCLUDING PEOPLE WHO ARE AFTER -- WHO JOINED AFTER
4
THE DATE THE PROBLEM'S REMEDIED.
5
SECONDLY, THE WAY THE SETTLEMENT IS
6
STRUCTURED, AND IF YOU READ THE SETTLEMENT
7
AGREEMENT CAREFULLY, THE RELEASE FOR THE ENTIRE
8
CLASS HAPPENS AT THE TIME THIS FINAL ORDER GETS
9
FILED.
10
HOWEVER, THE DISTRIBUTION OF THE CY PRES
11
FUND DOESN'T HAPPEN UNLESS THE FINAL ORDER GETS
12
ENTERED AND IT BECOMES NON-APPEALABLE.
13
SO YOU HAVE PEOPLE GIVING UP THEIR CLAIMS
14
BEFORE THE CY PRES FUND IS OBLIGATED TO BE
15
DISTRIBUTED.
16
WE BELIEVE THAT THESE THINGS SHOULD
17
COTERMINOUS.
18
IT SHOULD BE AT THE TIME THE FINAL ORDER IS
19
NON-APPEALABLE, JUST LIKE AT THE SAME TIME THE
20
BENEFIT IS TO BE GIVEN TO THE CLASS.
21
IF PEOPLE ARE GIVING UP THEIR CLAIMS,
THE THIRD THING IS THEY'RE CLAIMING THAT
22
THERE'S A BENEFIT FROM SOME KIND OF EDUCATION
23
PROGRAM, AND ALSO A BENEFIT FROM THE CASE BEING
24
FILED.
25
THE FACT OF THE MATTER IS THIS CASE WAS
18
1
FILED ON FEBRUARY 17TH.
2
ACTIONS OF CHANGING THE PROGRAM HAPPENED BEFORE THE
3
CASE WAS FILED.
4
ALL OF THE AFFIRMATIVE
AND THE EDUCATION EFFORTS ARE NOT
5
DESIGNATED AND THEY'RE TOTALLY IN GOOGLE'S
6
DISCRETION.
7
IF THERE'S EDUCATION EFFORTS, THIS
8
COURT -- AND IT'S PART OF ITS FIDUCIARY DUTY TO THE
9
CLASS -- SHOULD HAVE THE OPPORTUNITY TO KNOW WHAT
10
THOSE EDUCATIONAL EFFORTS ARE AND TO MAKE SURE THAT
11
THEY'RE SPECIFICALLY ADDRESSING THE PROBLEM.
12
THE FOURTH ISSUE, WHICH I THINK IS JUST A
13
FATAL FLAW, IS THEY HAVE A CY PRES FUND, BUT THEY
14
DON'T DESIGNATE THE CY PRES RECIPIENT.
15
NOW, THAT'S OKAY, AND IT ACTUALLY CAME UP
16
IN THE CASE THAT WAS BEFORE US, AND I APOLOGIZE, I
17
FORGET THE NAME.
18
IN THAT CASE, THEY SAID "WE'RE GOING TO
19
HAVE A CY PRES FUND THAT, YOU KNOW, BENEFITS THE
20
CLASS, AND WHEN WE DETERMINE IT, WE'RE GOING TO
21
COME BACK TO THIS COURT SO THE COURT CAN EXERCISE
22
ITS FIDUCIARY DUTY AND TELL THE COURT WHO THE FUND
23
IS AND LET THE COURT KNOW TO SEE IF IT'S AN
24
APPROPRIATE FUND."
25
THEY DON'T DO THAT IN THIS SETTLEMENT,
19
1
AND THEIR OWN CASES -- WELL, FIRST OF ALL, WE CITED
2
PROBABLY THE CASE MOST ON POINT, SIX MEXICAN
3
WORKERS.
4
CY PRES RECIPIENT IS ACCEPTABLE AND BENEFITS THE
5
CLASS IS ON THE DEFENDANT AND THAT THERE NEEDS TO
6
BE A RECORD.
7
8
IT CLEARLY SAYS THE BURDEN OF PROVING THE
HOW CAN THERE BE A RECORD IF YOU DON'T
EVEN KNOW WHO THE CY PRES RECIPIENT IS?
9
AND SECONDLY, IT CLEARLY SAYS THAT THE
10
COURT, AS PART OF ITS FIDUCIARY DUTY, NEEDS TO
11
REVIEW THAT.
12
THE CASES THAT THEY CITE -- EVERY CASE
13
THAT THEY CITE IN THEIR REPLY, EXCEPT FOR ONE WHICH
14
DIDN'T ADDRESS THE ISSUE, ALL WERE CASES IN WHICH
15
THE CY PRES RECIPIENT WASN'T DESIGNATED AT THE TIME
16
OF THE HEARING, BUT THERE WAS LANGUAGE IN THE
17
SETTLEMENT AGREEMENT THAT REQUIRED THEM TO COME
18
BACK TO COURT AND HAVE THE COURT LOOK AT IT AND
19
APPROVE IT.
20
THE LAST POINT, WHICH I'M NOW GETTING
21
LONG AND I APOLOGIZE, BUT IT'S AN IMPORTANT POINT,
22
IS THAT EVERYONE KEEPS TALKING ABOUT NO DAMAGE, NO
23
HARM.
24
25
THERE IS ONE PERSON WHO FILED AN
OBJECTION THAT CLAIMED HARM OF IDENTITY THEFT.
20
1
2
I DID GO THROUGH THIS WITH A COLLEAGUE OF
MINE --
3
THE COURT:
4
MR. HARRIS:
5
6
7
WAS THAT MS. JACKSON?
NO.
THAT WAS -- EXCUSE ME.
THAT WAS CLAIM NUMBER 86, KAREN SUE -THE COURT:
I JUST WANTED TO KNOW IF IT
WAS YOUR CLIENT.
8
MR. HARRIS:
KAREN SUE LLANO.
9
BUT IN PREPARING FOR THIS HEARING, I WENT
10
WITH A COLLEAGUE IN MY OFFICE, AN ATTORNEY, AND
11
WENT BACK TO HER GOOGLE BUZZ ACCOUNT AND WE LOOKED
12
AT HER GOOGLE BUZZ ACCOUNT.
13
14
15
16
17
SHE HAD NEVER SEEN IT BEFORE.
SHE DIDN'T
KNOW IT EXISTED.
SHE WAS NOT FOLLOWING ANY PEOPLE.
THERE
WAS ONE PERSON THAT WAS FOLLOWING HER.
AND I KNEW SHE HAD BEEN MARRIED, SO I
18
JOKINGLY SAID, "HEY," I'M NOT GOING TO SAY HER
19
NAME, "BUT HEY, IT'S PROBABLY YOUR EX-HUSBAND."
20
GUESS WHAT?
IT WAS HER EX-HUSBAND.
21
AND GUESS WHAT ELSE?
SHE HAD A
22
RESTRAINING ORDER AGAINST HIM THAT HAD JUST COME UP
23
30 DAYS AGO.
24
25
NOW, THE POINT TO THAT STORY IS, WHAT
HAPPENS IF THIS GUY, BECAUSE OF INFORMATION HE GOT
21
1
FROM THE RELEASE ON FEBRUARY 9TH, THREE WEEKS FROM
2
NOW DOES SOMETHING, MAIMS HER, HARMS HER, DISABLES
3
HER?
4
THE WAY THIS IS STRUCTURED RIGHT NOW, HER
5
CLAIM WOULD BE RELEASED BECAUSE WHAT THEY NEED TO
6
DO IS THEY NEED TO CARVE OUT THAT THIS DOES NOT
7
APPLY TO ANYBODY THAT HAS A PERSONAL INJURY AS A
8
RESULT OF THE RELEASE OF INFORMATION.
9
THE COURT:
THANK YOU, MR. HARRIS.
10
OTHERS WHO HAVE OBJECTIONS WANT TO SPEAK?
11
MR. FURMAN:
12
YOUR HONOR, JOSHUA FURMAN
FOR JOHN ZIMMERMAN, OBJECTOR.
13
YOUR HONOR, FIRST OF ALL, I APOLOGIZE TO
14
THE COURT.
15
WE STATED TO THE COURT THAT THERE WERE SO-CALLED
16
CONFIRMATORY DISCOVERY OR NEGOTIATIONS THAT TOOK
17
PLACE AT THE DEFENDANT'S OFFICE.
18
19
20
THERE WAS A MISSTATEMENT IN OUR BRIEF.
IT WAS PLAINTIFFS' COUNSEL'S OFFICE, SO I
APOLOGIZE TO THE COURT FOR THAT.
THERE'S BEEN A LOT MADE IN THE REPLY
21
BRIEF ABOUT THIS CONTEXT VERSUS RECORD DICHOTOMY
22
AND THAT THERE MIGHT BE A DIFFICULTY TRYING TO GET
23
THESE LAWS TO APPLY TO A PRIVACY DISCLOSURE IN THE
24
SOCIAL MEDIA CONTEXT.
25
THERE REALLY IS VERY LITTLE ABOUT WHAT
22
1
THE CASES SAY ABOUT THAT DICHOTOMY, YOUR HONOR, IN
2
TERMS OF THE CONTENT VERSUS RECORD.
3
THERE ARE TWO DISCRETE CATEGORIES THAT
4
ARE CONSIDERED RECORD AND EXEMPTED, AND ONE THEM IS
5
NOT PHOTOS OF THE INDIVIDUALS.
6
I BELIEVE THAT UNDER THIS, UNDER THE
7
GOOGLE BUZZ PROGRAM, NOT ONLY DO YOU GET THE ACTUAL
8
NAMES, BUT IF IT'S PART OF THEIR PROFILE, YOU GET
9
PHOTOS ALSO OF THESE INDIVIDUALS.
10
SO THAT'S PART OF THE ISSUE THERE.
11
AND THERE'S CERTAINLY NO CASE HOLDING
12
THAT IN A CIVIL CONTEXT THAT THIS INFORMATION IS
13
EXEMPTED FROM THE PROTECTIONS OF THE STORED
14
COMMUNICATIONS ACT.
15
THERE'S ALSO A REALLY FUNDAMENTAL PROBLEM
16
WITH THE CHARACTER OF THE DAMAGES AND THE WAY THAT
17
THE STATUTORY SCHEME ADDRESSES THEM.
18
WE HAVE THE CY PRES ONLY DISTRIBUTION,
19
AND WHEN I SAY "CY PRES ONLY," IT'S NOT JUST THE
20
MONETARY RELIEF THAT'S GOING TO THE CY PRES FUND,
21
IT'S THE ONLY RELIEF.
22
THERE'S -- IN EVERY SINGLE CASE THAT WAS
23
DISCUSSED IN THE BRIEFS THAT CLASS COUNSEL PUT
24
FORWARD, THERE IS SOME DIRECT RELIEF THAT'S GOING
25
TO THE CLASS MEMBERS.
23
1
IN THE PERRY CASE, THEY HAD AN IN KIND
2
DIRECT BENEFIT IN TERMS OF THEY GOT CREDIT
3
REPORTING DIRECT TO THE CLASS MEMBERS.
4
5
6
IN THE INTUIT CASE, THERE WAS SIGNIFICANT
INJUNCTIVE RELIEF.
AND THE OTHER CASES HAVE ALREADY BEEN
7
ADDRESSED, LANE VERSUS FACEBOOK, DOUBLECLICK, THERE
8
WAS SIGNIFICANT INJUNCTIVE RELIEF, AS WELL AS IN
9
THE DELISE CASE.
10
11
12
AND IN THE KEDS CASE, THERE WAS A VERY
STRONG CONSENT DECREE.
ALL THESE THINGS LIMITED WHAT THE
13
DEFENDANT COULD DO FOLLOWING THE ENTRY OF THE
14
SETTLEMENT OR THE CONSENT DECREE.
15
WE DON'T HAVE THAT HERE.
WE'VE GOT THESE
16
CHANGES THAT WERE ALLEGEDLY MADE AND,
17
HYPOTHETICALLY SPEAKING, ONLY HYPOTHETICALLY
18
SPEAKING, THEY COULD LITERALLY SIGN OFF ON
19
RELEASING ALL THESE CLAIMS AND TOMORROW CHANGE THE
20
PROCEDURES BACK TO SOME OTHER WAY.
21
THERE'S NOTHING THAT'S PREVENTING THEM
22
FROM DOING THAT UNDER THIS, UNDER THIS AGREEMENT,
23
SO THAT INJUNCTIVE RELIEF IS COMPLETELY ILLUSORY.
24
25
THE ONLY OTHER THINGS THAT WERE
CONSIDERED INJUNCTIVE RELIEF UNDER THE SETTLEMENT
24
1
AGREEMENT WERE THESE QUASI DISCOVERY ACTS THAT WERE
2
DONE, AND WHICH THEY ARE REQUIRED TO DO ANYWAY IF
3
YOU ACTUALLY SERVE DISCOVERY, AND THIS P.R. PROGRAM
4
THAT I THINK MR. HARRIS -- I BELIEVE THAT WAS HIS
5
NAME -- ADDRESSED THAT THE EDUCATION PROGRAM HAS NO
6
SUPERVISION FROM THE COURT, THERE'S NO WAY FOR THIS
7
COURT TO DETERMINE THAT THAT RELIEF IS ADEQUATE OR
8
THAT IT EVEN TARGETS THE CLASS IN ANY WAY AND IN
9
THAT CY PRES ONLY RELIEF UNDER THESE STATUTES,
10
THESE PRIVACY STATUTES, IS CONTRARY TO THE
11
STATUTORY SCHEME.
12
THE ONLY CASES THAT ARE OUT THERE THAT
13
ADDRESS THIS ISSUE SAY THAT WHEN YOU'VE GOT THESE
14
KIND OF STATUTORY DAMAGES, A CY PRES ONLY SOLUTION
15
IS NOT ACCEPTABLE.
16
THERE'S SOME CRITICISM IN THE RELY BRIEF
17
OF THE SIMER CASE SAYING THAT IT WASN'T WELL CITED.
18
THE SIMER CASE LAYS OUT THESE ISSUES VERY
19
CLEARLY.
20
TIMES BY THE NINTH CIRCUIT, SO I THINK THAT
21
CRITICISM RINGS HOLLOW.
22
IT'S BEEN CITED OVER 200 TIMES, AND FIVE
AND IF CLASS COUNSEL IS CONCERNED THAT
23
THESE -- THAT THERE'S GOING TO BE A HARD TIME
24
APPLYING THESE PRIVACY CASES, THESE PRIVACY LAWS TO
25
THIS KIND OF SITUATION, THEY SHOULD BE EQUALLY
25
1
CONCERNED ABOUT HAVING CY PRES ONLY DISTRIBUTION
2
BECAUSE IT'S NOT BEEN DONE BEFORE.
3
THERE'S SIMPLY NOTHING THAT I WAS ABLE TO
4
FIND, AND NOTHING THAT CLASS COUNSEL CITED, THAT
5
SAYS WE HAVE EVER HAD A CY PRES ONLY DISTRIBUTION
6
WHEN NO RELIEF WHATSOEVER GOES TO THE ACTUAL CLASS
7
MEMBERS.
8
THE COURT:
9
MR. FURMAN:
THANK YOU MR. FURMAN.
AND AGAIN, YOUR HONOR, I
10
WOULD JUST ALSO ECHO THE ISSUE THAT THESE ARE
11
MYSTERY CY PRES RECIPIENTS.
12
ARE AND WE CAN'T DO THE SIX MEXICAN WORKERS
13
ANALYSIS WITHOUT THAT INFORMATION.
WE DON'T KNOW WHO THEY
14
THANK YOU, YOUR HONOR.
15
THE COURT:
16
MR. OSBORN:
17
OTHER OBJECTORS?
DANIEL OSBORN ON BEHALF OF
OBJECTOR RUDGAYZER.
18
GOOD MORNING, YOUR HONOR.
19
THE COURT OBVIOUSLY HAS A LOT OF
20
EXPERIENCE IN CLASS ACTIONS AND IS FULLY --
21
THE COURT:
22
MR. OSBORN:
23
24
25
THIS MORNING ALONE.
I WAS SURPRISED TO SEE THAT
ON THE CALENDAR, FRANKLY.
OBVIOUSLY YOU'RE FAMILIAR WITH THE PHRASE
FAIR, REASONABLE AND ADEQUATE AS THE HALLMARK AND
26
1
2
BENCHMARK FOR APPROVING CLASS ACTION SETTLEMENTS.
I THINK WHAT WE HAVE HERE UNFORTUNATELY,
3
AND MAYBE WHAT THIS HAS EVOLVED TO, IS A BEST WE
4
COULD DO SETTLEMENT.
5
I MEAN NO DISRESPECT TO CLASS COUNSEL.
I
6
DO CLASS ACTIONS FOR A LIVING FOR THE MOST PART.
7
I'VE ONLY OBJECTED ON THREE OR FOUR OTHER OCCASIONS
8
IN MY 22 YEARS, SO I DON'T MAKE A PRACTICE OF THIS.
9
BUT THIS PARTICULAR SETTLEMENT, AS I WENT
10
THROUGH IT WITH MY CLIENT AND MY CO-COUNSEL IN
11
NEW YORK, I SAID THERE'S NOT ENOUGH IN HERE TO GET
12
YOUR ARMS AROUND IN TERMS OF WHAT THEY'RE GETTING.
13
14
15
AND I ECHO IN THE COMMENTS OF MR. STATMAN
AND MR. FURMAN.
YOU LOOK AT THE RELIEF THAT WAS AFFORDED
16
OR GIVEN TO THESE CLASS MEMBERS.
17
HAVE TOLD YOU IT'S THREE PARTICULAR ELEMENTS.
18
IS THE CHANGES TO THE PROGRAM, AS MR. STATMAN, I
19
THINK SAID, HE SAID THERE WERE CHANGES THAT WERE
20
MADE, BUT MOST OF THOSE WERE MADE BEFORE THE FIRST
21
LAWSUIT WAS FILED.
22
23
24
25
CLASS COUNSEL
ONE
GOOGLE BUZZ LAUNCHED ON FEBRUARY 9TH.
ON
FEBRUARY 17TH WAS THE FIRST LAWSUIT.
WE'VE ARTICULATED IN OUR PAPERS THAT FOUR
OF THE FIVE SUPPOSED CHANGES MADE TO GOOGLE BUZZ
27
1
WERE MADE DURING THAT WEEK OF FEBRUARY 9TH TO
2
FEBRUARY 17TH, TWO CHANGES ON THE 11TH, TWO MORE ON
3
THE 13TH, AND WE'VE SET THOSE FORWARD IN OUR BRIEF.
4
THERE IS THIS APRIL 5TH CHANGE THAT IS
5
SORT OF THE PENULTIMATE, YOU KNOW, YOU CAN
6
PARTICIPATE OR NOT PARTICIPATE, BUT EVEN THAT WAS
7
ONLY THE ONE CHANGE.
8
9
10
11
12
AND WHAT'S ODD IS TWO MORE LAWSUITS WERE
FILED EVEN AFTER THAT.
BUT NO CHANGES WERE MADE TO GOOGLE BUZZ
AFTER APRIL 5TH THAT I'M AWARE OF.
THE SETTLEMENT AGREEMENT TALKS ABOUT
13
FURTHER REVISIONS AND SO FORTH, BUT NONE OF THOSE
14
HAVE BEEN IDENTIFIED.
15
THE SECOND ASPECT OF THE RELIEF IS THIS
16
PUBLIC EDUCATION.
17
AGREEMENT, IT SAYS, FOR THE MOST PART, ALL OF THAT
18
WILL BE DECIDED, AGREED UPON, AND IMPLEMENTED AFTER
19
THE SETTLEMENT IS FINALLY APPROVED.
20
21
22
WHEN YOU LOOK AT THE SETTLEMENT
AGAIN, CLASS MEMBERS ARE LEFT WITHOUT
ANYTHING TO REALLY GET THEIR ARMS AROUND.
THE THIRD ASPECT IS THE CY PRES.
YOU'VE
23
ALREADY HEARD ABOUT THE FACT THAT THE IDENTIFY OF
24
THE CY PRES RECIPIENTS IS NOT KNOWN AT THIS POINT
25
IN TIME, TO BE DECIDED UPON LATER, AMOUNTS AND
28
1
ALLOCATIONS TO ANY PARTICULAR CY PRES RECIPIENT TO
2
BE DECIDED UPON LATER.
3
YOU'RE ASKING CLASS MEMBERS TO DECIDE
4
NOW, OPT IN OR EXCLUDE YOURSELF, WHAT HAVE YOU, TO
5
A SETTLEMENT THAT IS REALLY SORT OF VAGUE IN TERMS
6
OF THE DETAILS.
7
THERE ARE OTHER ASPECTS OF THIS CASE I
8
THINK THAT SHOULD CAUSE THE COURT TO PAUSE AND
9
MAYBE SCRATCH YOUR HEAD.
10
11
MR. STATMAN MENTIONED THE CLASS AND THE
CLASS PERIOD.
12
THE LAWSUIT WAS FILED ON FEBRUARY 17TH;
13
LAST CHANGE IMPLEMENTED APRIL 5; SETTLEMENT
14
AGREEMENT, THE MEDIATION, WAS CONDUCTED AND
15
CONCLUDED ON JUNE 2ND; AND YET WE HAVE A SETTLEMENT
16
CLASS THAT RUNS ANOTHER FIVE MONTHS TO NOVEMBER.
17
THERE'S NO REASON TO INCLUDE ALL OF THOSE
18
FOLKS, AND I'M NOT SURE WHY -- I UNDERSTAND THE
19
DEFENDANTS, FROM HAVING DONE THIS WORK, DEFENDANTS
20
WANT THE BROADEST RELEASE POSSIBLE, AND THAT'S
21
FINE.
22
23
IT DOESN'T NECESSARILY MEAN, FROM THE
PLAINTIFF'S SIDE, THAT YOU AGREE TO IT.
24
ANOTHER THING I THINK THAT SHOULD CAUSE
25
THE COURT A LITTLE PAUSE IS THERE'S SOME QUESTION
29
1
AS TO THE SIZE OF THE CLASS, AND I FOUND IT
2
INTERESTING THAT WHEN YOU READ THE COMPLAINT, THE
3
BASIS FOR THE SIZE OF THE CLASS IS AN ARTICLE FROM
4
A JOURNAL THAT TALKS ABOUT POTENTIAL NUMBER OF
5
USERS OF GMAIL.
6
IT DOESN'T EVEN TALK ABOUT GMAIL ACCOUNT
7
HOLDERS.
8
THERE'S SOME 37 OR 32 MILLION FIGURE THAT'S
9
DISCLOSED IN THERE.
10
IT TALKS ABOUT PERSONS USING GMAIL, AND
THERE'S NEVER ANY DISPOSITIVE PIECE OF
11
INFORMATION THAT'S GIVEN TO CLASS MEMBERS TO
12
UNDERSTAND THE PRECISE SIZE OF THE CLASS.
13
JUST THIS ESTIMATE BASED ON A JOURNAL ARTICLE.
14
IT'S
TODAY WE'RE HEARING FOR THE FIRST TIME,
15
AND AS I SAT IN THE SECOND ROW I WAS KIND OF
16
CONCERNED, WE'RE HEARING THAT THE CLASS SIZE
17
PROBABLY ISN'T 37 MILLION.
18
PEOPLE BECAUSE NOT EVERY ACCOUNT HOLDER WAS
19
IMPACTED; AND WITHIN THAT SUBSET, IT'S PROBABLY
20
ANOTHER SUBSET OF PEOPLE.
21
IT'S SOME SUBSET OF
SO NOW WE'RE ASKED TO AGREE TO A
22
SETTLEMENT, OR AT LEAST A SETTLEMENT IS PUT BEFORE
23
THE COURT FOR APPROVAL WHERE I DON'T THINK WE
24
REALLY HAVE ANY IDEA WHAT THE SIZE OF THE CLASS IS.
25
I REALLY DON'T THINK THAT THAT INFORMATION HAS BEEN
30
1
CAPTURED.
2
AND JUST ONE OTHER POINT BECAUSE I THINK
3
EVERYTHING ELSE HAS BEEN ARTICULATED BY THE OTHER
4
GENTLEMEN.
5
THERE HAS BEEN A LOT MADE BY THE
6
PLAINTIFFS' COUNSEL OF THE FACT THAT THERE ARE
7
NO -- BASED UPON THEIR REVIEW OF THE MATERIALS THAT
8
HAVE BEEN PROVIDED TO THEM AND THEIR INVESTIGATION,
9
THERE'S NO CLAIM OF ACTUAL DAMAGES SUFFERED BY
10
11
ANYBODY.
MR. STATMAN OR MR. FURMAN POINTED OUT
12
THAT, IN FACT, THERE IS THAT ONE OBJECTOR WHO
13
ARTICULATED THE IDENTITY THEFT OBJECTION.
14
WHEN YOU LOOK AT THE COMPLAINT ITSELF AT
15
PARAGRAPH 30, THERE ARE THREE OR FOUR EXAMPLES OF
16
PERSONS WHO PURPORTEDLY SUFFERED SOME SORT OF
17
DAMAGE, AND THEN WE HEAR THAT STORY THIS MORNING.
18
SO I THINK THERE IS A PROBLEM WITH THE
19
SCOPE OF THE RELEASE, IT'S OVERLY BROAD, AND IT
20
DOES NEED TO BE CARVED OUT, I BELIEVE, FOR ANYBODY
21
WHO MAY HAVE SUFFERED A PERSONAL INJURY LIKE THAT
22
ARTICULATED BY MR. STATMAN.
23
THE COURT:
24
MR. OSBORN:
25
THANK YOU.
SORRY, IF I CAN MAKE ONE
LAST POINT, YOUR HONOR.
31
1
ON THE FEES -- I HATE TO PICK ON FEES
2
BECAUSE I DO THIS FOR A LIVING AND I WOULD HATE FOR
3
SOMEBODY TO BE STANDING HERE PICKING ON MY FEES --
4
BUT IT'S UNUSUAL FOR ME TO SEE AN APPLICATION, FEE
5
APPLICATION, WITH ONLY SUMMARY TIME RECORDS,
6
DECLARATIONS RATHER, THAT SAY "I WORK FOR THIS
7
FIRM, I WORKED 20 HOURS AT $400 AN HOUR, $8,000."
8
9
10
IN THE CASES I WORK ON, WE'RE REQUIRED TO
SUBMIT DETAILED TIME RECORDS TO SEE WHAT WORK WAS
DONE.
11
I THINK THAT IS PARTICULARLY IMPORTANT
12
HERE GIVEN THE FACT THAT BY JUNE 2ND, THREE AND A
13
HALF MONTHS AFTER THE FIRST LAWSUIT WAS FILED, THIS
14
CASE WAS SETTLED.
15
NOW, I KNOW THERE'S WORK THAT'S DONE
16
AFTERWARD TO IMPLEMENT THE SETTLEMENT AGREEMENT,
17
BUT CLASS COUNSEL IS NOT SUPPOSED TO BE COMPENSATED
18
FOR THAT WORK.
19
CASE.
20
THAT'S JUST PART OF TAKING ON THE
SO I THINK IT'S IMPORTANT THAT THE COURT
21
ACTUALLY SEE THE TIME AND THE WORK THAT WAS
22
PERFORMED BY THE ATTORNEYS.
23
THANK YOU, YOUR HONOR.
24
THE COURT:
25
THANK YOU.
I HAVE OTHER
MATTERS I HAVE TO ATTEND TO, BUT I DIDN'T WANT TO
32
1
DEPRIVE ANY OTHER OBJECTORS WHO HAVE ANY NEW OR
2
DIFFERENT OBJECTIONS.
3
I HAD MS. GACHOT WHO MADE AN APPEARANCE.
4
I UNDERSTAND THAT THERE'S A MR., OR ATTORNEY
5
DARRELL PALMER WHO'S HERE ON BEHALF OF AN OBJECTOR.
6
ANYONE ELSE?
7
YES, MA'AM.
8
MS. GACHOT:
9
NATALIE GACHOT APPEARING IN
PRO PER.
10
AND MOST OF --
11
THE COURT:
12
MS. GACHOT:
13
THE COURT:
14
15
16
17
YOU'RE REPRESENTING YOURSELF?
YES.
THANK YOU, MA'AM.
YOU'RE A
LAWYER, THOUGH?
MS. GACHOT:
YES.
MOST OF MY OBJECTIONS
HAVE ALREADY BEEN COVERED BY OTHER OBJECTORS.
HOWEVER, I'D LIKE TO MAKE A POINT THAT I
18
THINK THERE WAS INSUFFICIENT INVESTIGATION INTO
19
WHETHER OR NOT THE MEMBERS OF THE CLASS SUFFERED
20
OUT-OF-POCKET DAMAGES OR DAMAGES IN GENERAL.
21
THEY WERE BASED ON 2,000 E-MAILS WHICH
22
WERE VOLUNTARILY GIVEN TO GOOGLE, KIND OF COMMENTS
23
OR, I GUESS, OPINIONS ABOUT GOOGLE BUZZ GIVEN
24
VOLUNTARILY TO GOOGLE, AND THAT REPRESENTS JUST A
25
VERY, VERY SMALL AMOUNT OF THE ACTUAL CLASS SIZE.
33
1
THE COURT:
2
YES?
3
MR. MURPHY:
4
THE COURT:
5
THANK YOU VERY MUCH.
MR. MURPHY:
I'M ALSO AN OBJECTOR.
SPEED.
MY NOTES ARE BRIEF.
MY NAME
6
IS RYAN MURPHY, AND I HAVE -- I DO HAVE SOMETHING
7
SLIGHTLY DIFFERENT TO SAY, AND IT'S IN THE --
8
9
THE COURT:
TELL ME WHAT IT IS.
DON'T
TELL ME --
10
MR. MURPHY:
IT'S IN THE FRAMEWORK OF THE
11
IDEA OF THE PRIVATE ATTORNEY GENERAL WHICH YOU
12
NOTED.
13
SO I THINK THAT THERE ARE -- THE DYNAMIC
14
OF THIS CASE HAS TWO MAIN -- THERE ARE TWO FEATURES
15
THAT ARE SALIENT TO ME.
16
COUNSEL, THIS IS LOW RISK LITIGATION.
17
ONE IS THAT FOR THE CLASS
THE SECOND IS THAT THIS SETTLEMENT
18
DOESN'T FORCE OR EVEN ENCOURAGE GOOGLE TO
19
INTERNALIZE THE COST OF ITS BEHAVIOR, TO FACTOR IN
20
GMAIL USERS' PRIVACY CONCERNS INTO THE CALCULUS OF
21
THEIR BUSINESS DECISIONS.
22
AND SO IF YOU LOOK AT THE RELATIVE
23
BENEFITS AND LOSSES, THE AVERAGE PAY OUT TO THE 11
24
FIRMS IS ABOUT $200,000 PER FIRM, ALTHOUGH FOR THE
25
TOP FOUR FIRMS, THAT'S -- THE AVERAGE IS $430,000
34
1
2
PER FIRM.
THE AVERAGE HOURLY RATE, IF WE'RE
3
INCLUDING THE MULTIPLIER FOR ALL THE FIRMS, IS
4
ABOUT $870 PER HOUR.
5
THE LOSS TO GOOGLE IS ABOUT -- IS 8 -- IS
6
$8.5 MILLION, WHICH IS ALMOST EXACTLY ONE
7
ONE-THOUSANDTH OF THEIR 2010 NET INCOME, WHICH IS
8
NOT THEIR REVENUE, IT'S THEIR NET INCOME, AND I GOT
9
THAT FROM THEIR WEBSITE, WHICH IS 8 AND A HALF
10
11
BILLION DOLLARS.
SO IT'S A RATHER SAFE BET THAT FACED WITH
12
THE POSSIBILITY OF OWING STATUTORY DAMAGES TO A
13
POOL OF 32 OR 37 MILLION PEOPLE, A MASSIVE COMPANY
14
LIKE GOOGLE WILL HAND OVER A THOUSANDTH OF ITS
15
ANNUAL INCOME, AND THAT GOOGLE WILL PAY THAT
16
AMOUNT, WHICH IS ONLY A SMALL AMOUNT, AND THAT
17
GOOGLE WILL HAVE NO OBLIGATION TO CHANGE GOOGLE
18
BUZZ, AND THAT THEY'LL BE IMMUNIZED FROM FUTURE
19
LITIGATION MEANS THAT IF WE WENT BACK IN TIME ONE
20
YEAR AND TOLD GOOGLE THAT THE COST OF CHANGING BUZZ
21
WOULD BE THIS SETTLEMENT, THEY WOULD HAVE NO
22
INCENTIVE TO DO ANYTHING DIFFERENT.
23
AND ACTUALLY WE KIND OF KNOW THAT BECAUSE
24
THEY HAVE NONE -- THEY HAVE REALLY DONE NOTHING
25
DIFFERENT SINCE THE START OF THIS LITIGATION.
35
1
SO THAT'S VERY QUICKLY THE REASONS WE,
2
MYSELF AND TWO OF MY COLLEAGUES, ARE HERE, BECAUSE
3
WE BELIEVE THAT THIS IS NOT AN ADEQUATE SETTLEMENT.
4
THANK YOU.
5
THE COURT:
VERY WELL.
SO LET ME HAVE
6
THE PARTIES BACK AND ADDRESS NOT ALL OF THIS, BUT
7
THERE ARE A COUPLE THINGS THAT I DID WANT TO HEAR
8
YOU ADDRESS IN PARTICULAR, BUT BRIEFLY.
9
I MIGHT ACTUALLY ASK FOR SUPPLEMENTAL
10
BRIEFING ON THIS IF I CAN'T GET A BRIEF
11
EXPLANATION.
12
THE ONE CONCERN THAT I'VE HEARD IS THAT
13
THE SETTLEMENT DOES NOT PROVIDE ANY DETAIL OF
14
GOOGLE'S PUBLIC EDUCATION EFFORT, THAT THERE'S NO
15
MECHANISM FOR ENSURING THAT IT IS GOING IN A
16
FASHION THAT BENEFITS THE CLASS.
17
AND THEN THERE'S A QUESTION THAT I WOULD
18
WISH YOU TO ADDRESS HAVING TO DO WITH -- IT WAS THE
19
ONE I INITIALLY ASKED, WHICH IS, WHAT CHANGE IS
20
BEING MADE?
21
AND THEN AS I UNDERSTAND IT, ONE OF THE
22
OBJECTIONS IS THERE'S NO REQUIREMENT THAT IT BE
23
PERMANENT, EVEN IF IT IS -- IF THERE IS A CHANGE
24
THAT'S BEING MADE.
25
AND THERE ARE SOME OTHER QUESTIONS THAT
36
1
CAME UP HAVING TO DO WITH WHETHER, IN A RELATIVELY
2
SHORT LITIGATION, THE FULL AMOUNT OF FEES UP TO THE
3
NINTH CIRCUIT BENCHMARK IS WARRANTED.
4
MR. RUBENSTEIN:
YES, SIR.
5
FIRST OF ALL, ON THE PUBLIC EDUCATION
6
CAMPAIGN, WE BELIEVE, AND WE'VE BRIEFED THIS, WE
7
BELIEVE THERE IS AN ACCOUNTABILITY MECHANISM BUILT
8
INTO THAT.
9
WE -- GOOGLE WILL TAKE RECOMMENDATIONS
10
FOR THE PUBLIC EDUCATION CAMPAIGN FROM US.
11
ALREADY MADE SOME.
12
13
14
WE'VE
THEY'VE SUGGESTED THEY'RE OPEN TO HEARING
FROM ANYONE ABOUT THE IDEA OF IT.
THEY THEN HAVE TO REPORT BACK TO US, IT'S
15
WRITTEN INTO THE AGREEMENT, THEY HAVE TO REPORT
16
BACK TO CLASS COUNSEL WHAT THEY DID IN THE PUBLIC
17
EDUCATION CAMPAIGN.
18
IF WE BELIEVE THAT IT'S A BREACH OF THE
19
CONTRACT OF THE SETTLEMENT AGREEMENT, THAT IT
20
WASN'T DONE IN GOOD FAITH, THE PUBLIC EDUCATION
21
CAMPAIGN, WE WILL TELL GOOGLE THAT.
22
IF THEY DISAGREE, THERE'S A DISPUTE
23
RESOLUTION MECHANISM IN THE SETTLEMENT.
WE GO
24
BEFORE JUDGE SMITH AND WE TRY TO WORK OUT WITH HER
25
WHETHER OR NOT THEY'VE LIVED UP TO THEIR
37
1
CONTRACTUAL OBLIGATION TO DO THE PUBLIC EDUCATION.
2
AND, OF COURSE, FAILING ANY AGREEMENT
3
THERE, WE COME BACK TO THE COURT AND WE BRING IT TO
4
YOU AND SAY "WE DON'T THINK THEY LIVED UP TO THEIR
5
CONTRACTUAL OBLIGATION TO DO THE PUBLIC EDUCATION
6
CAMPAIGN."
7
WE DON'T THINK THIS IS A MEANINGLESS,
8
HOLLOW THING.
WE THINK THERE'S A BUILT-IN
9
ACCOUNTABILITY MECHANISM.
WE SPECIFICALLY WROTE
10
INTO THIS THAT THEY HAVE TO REPORT BACK TO US ON
11
EXACTLY WHAT THEY DID, AND WE HAVE THE DISPUTE
12
RESOLUTION MECHANISM IN PLACE WITH REGARD TO THAT.
13
SECOND, AS TO THE CHANGES IN THE PROGRAM,
14
YOUR HONOR, I'M HAPPY TO GO THROUGH THEM WITH YOU
15
AGAIN.
I THINK THE MAIN --
16
THE COURT:
DON'T GO THROUGH THEM, JUST
17
WHETHER THERE'S ANY REQUIREMENT THAT THEY BE
18
PERMANENT.
19
MR. RUBENSTEIN:
THERE'S NOTHING IN THE
20
SETTLEMENT AGREEMENT THAT REQUIRES THEM TO BE
21
PERMANENT.
22
I WILL SAY, YOUR HONOR, IF, IN FACT, THE
23
DAY AFTER FINAL APPROVAL IS GRANTED, SHOULD IT BE
24
THAT GOOGLE THEN CHANGED THE BUZZ PROGRAM BACK AND
25
MADE IT THAT THEY'RE AUTOMATICALLY RELEASING, WHICH
38
1
IT NEVER WAS THAT, BUT IF THEY AUTOMATICALLY
2
RELEASED USER INFORMATION, I THINK WE'D COME BACK
3
BEFORE THE COURT AND SAY IT'S OUT OF LINE WITH THE
4
SETTLEMENT.
5
THE COURT:
BUT I WOULDN'T HAVE ANY
6
ENFORCEMENT AUTHORITY UNLESS THERE IS SOME
7
REQUIREMENT.
8
9
BUT I GUESS THE ULTIMATE QUESTION THAT'S
BEING RAISED, AND IT'S THE ONE I RAISED AT THE
10
PRELIMINARY APPROVAL, IS THE NATURE OF THIS IS A
11
(B)(3) CLASS.
12
IT DOES SEEM TO THE COURT THAT ONE VIEW
13
THAT THE COURT COULD TAKE OF THIS IS THAT THE
14
EDUCATIONAL PROCESS, THE CY PRES PROCESS, WHATEVER
15
THAT IS, IS ALL DESIGNED FOR INJUNCTIVE TYPE
16
RELIEF.
17
THIS IS NOT MONEY THAT IS BEING GIVEN TO
18
THE CY PRES ORGANIZATIONS AS DAMAGES FOR THE
19
BENEFIT OF THE CLASS MEMBERS.
20
THE MONIES THAT ARE BEING GIVEN ARE VERY
21
MUCH TO BE AN EDUCATIONAL BENEFIT FOR INTERNET
22
PRIVACY, AND I CAN UNDERSTAND THAT.
23
AS I HEAR IT, THE REASON THIS IS BEING
24
JUSTIFIED AS A (B)(3) CLASS IS, NUMBER ONE, THERE
25
ARE POTENTIAL DAMAGE CLAIMS THAT COULD BE BROUGHT,
39
1
AND ALTHOUGH THE DAMAGES WOULD BE SMALL, THERE ARE
2
DAMAGES, AND SO THIS IS A SETTLEMENT WHICH IS
3
DESIGNED TO TAKE THOSE SMALL AMOUNTS OF DAMAGES,
4
AGGREGATE THEM INTO AN AMOUNT AND PUT IT IN SORT OF
5
A FUND THAT CAN BE USED FOR INTERNET PRIVACY POLICY
6
AND EDUCATION, AND I'M CONSIDERING IT IN THAT
7
LIGHT.
8
9
AT THE SAME TIME, AS I NOTED AT THE
PRELIMINARY HEARING, IT'S UNUSUAL.
IT'S UNUSUAL
10
FOR THE COURT TO ASK INDIVIDUALS TO GIVE UP THEIR
11
PERSONAL INJURY OR OTHER DAMAGE CLAIMS IN A
12
CIRCUMSTANCE WHERE THEY ARE NOT RECEIVING THOSE
13
DAMAGES, AND I'M NOT SURE I UNDERSTAND WHY THEY
14
WOULD NOT BE ENTITLED TO RECEIVE THEM, HOWEVER
15
SMALL.
16
I JUST APPROVED ONE WHERE THE AMOUNTS ARE
17
RELATIVELY SMALL COMPARED TO THE KINDS OF CLAIMS
18
THAT PEOPLE MIGHT FEEL THEY HAVE HAVING TO DO WITH
19
THEIR MORTGAGES OR OTHER MATTERS.
20
21
SO YOU WANT TO ADDRESS THE (B)(3) ASPECT
OF THIS?
22
MR. RUBENSTEIN:
YES, YOUR HONOR.
23
I DISAGREE WITH ONE THING THAT YOU SAID
24
IN CHARACTERIZING IT.
I THINK THAT WE HAVE
25
RECEIVED MONEY DAMAGES FOR THE CLASS.
WE'VE
40
1
RECEIVED $8.5 MILLION FOR THIS CLASS.
2
3
GOOGLE HAS GIVEN UP THAT AMOUNT.
THAT
SERVES AS A DETERRENT EFFECT.
4
THE ONLY REASON, THE ONLY REASON THE
5
CLASS MEMBERS ARE NOT GETTING THE MONEY HERE IS
6
THAT THERE ARE 37 MILLION OF THEM.
7
THIS IS NOT UNUSUAL.
THIS HAPPENS ALL
8
THE TIME.
THIS IS VERY TYPICAL IN ANTITRUST
9
SETTLEMENTS, FOR INSTANCE, YOUR HONOR.
WHERE THERE
10
ARE LARGE CLASSES AND THE DAMAGES CANNOT BE
11
DISTRIBUTED TO THE CLASS, 100 PERCENT OF THE MONEY
12
IS SENT CY PRES.
13
THERE'S NOTHING ABOUT IT THAT'S
14
NEFARIOUS.
15
THE FACT THAT WE'RE REPRESENTING 37 MILLION PEOPLE.
16
17
18
IT'S SIMPLY A MATTER OF DIVISION AND
SO WE HAVE RECEIVED MONEY DAMAGES AND
IT'S A STANDARD (B)(3) CLASS ACTION.
THE REASON WE CAN'T DISTRIBUTE THE MONEY
19
IS SOLELY THE AMOUNT OF MONEY DIVIDED BY THE AMOUNT
20
OF PEOPLE IN THE CLASS.
21
LIKE ANY ANTITRUST SETTLEMENT OF THIS
22
TYPE, WE CITE A NUMBER OF CASES IN OUR FINAL
23
APPROVAL BRIEF AND RELY BRIEF WHERE MONIES GO 100
24
PERCENT CY PRES AND THEY'RE CERTIFIED AS (B)(3)
25
CASES JUST LIKE THIS ONE.
41
1
REMEMBER, IN OUR FINAL APPROVAL BRIEF, WE
2
GIVE FIVE REASONS THIS SHOULD BE A (B)(3) CLASS.
3
THE FIRST IS IT FITS THE LANGUAGE OF (B)(3) IN THAT
4
COMMON ISSUES PREDOMINATE AND THE CLASS MECHANISM
5
IS SUPERIOR; SECOND, WE DO HAVE MONEY DAMAGES, WE
6
JUST CAN'T DISTRIBUTE THEM BECAUSE OF THE NUMBER OF
7
PEOPLE IN THE CLASS; THIRD, THERE IS NO INJUNCTIVE
8
RELIEF TO DO THIS UNDER (B)(2); FOURTH, WE WANTED
9
TO DO IT (B)(3), REMEMBER, SO PEOPLE COULD OPT OUT,
10
AND 500 AND SOME PEOPLE OPTED OUT OF THE CLASS; AND
11
FIFTH, IN SITUATIONS LIKE THIS WHEN THE AMOUNT OF
12
MONEY IS TOO SMALL TO DISTRIBUTE TO ALL OF THE
13
MEMBERS OF CLASS, IT'S TYPICAL TO CERTIFY AS (B)(3)
14
BECAUSE IT IS A MONEY CASE.
15
PROBLEM IS SOLELY A PROBLEM OF THE NUMBER OF PEOPLE
16
IN THE CLASS.
17
THE DISTRIBUTION
YOUR HONOR, I DO THINK THAT THE PRIVATE
18
ATTORNEY GENERAL MECHANISM THAT YOU WERE DISCUSSING
19
IN THE LAST CASE IS APPROPRIATE TO THINK ABOUT IN
20
THIS CONTEXT.
21
CASE.
22
FOR AN ENORMOUS CLASS.
23
OF THE CITIZENS OF THE STATE OF CALIFORNIA.
24
25
THAT IS WHAT WE'RE DOING IN THIS
WE'RE SERVING AS PRIVATE ATTORNEY GENERALS
A CLASS OF THIS SIZE IS ALL
WHAT WE'VE DONE HERE IS CREATE A
DETERRENT EFFECT IN SITUATIONS LIKE THIS WHERE
42
1
DEFENDANTS THAT LAUNCH INTERNET PROGRAMS THAT HAVE
2
PRIVACY CONCERNS, WE HOPE, WILL BE MORE SENSITIVE
3
TO THOSE CONCERNS IN THE FUTURE BECAUSE OF THE,
4
ESSENTIALLY THE FINE THEY HAVE TO PAY HERE.
5
LIKE A PRIVATE ATTORNEY GENERAL, WE'VE
6
SECURED JUST THE TYPES OF RELIEF THAT ARE
7
APPROPRIATE IN SMALL CLAIMS CASES SUCH AS THIS, AND
8
WE THINK THIS SETTLEMENT FITS THE DYNAMICS OF A
9
SMALL CLAIMS CLASS ACTION QUITE APPROPRIATELY IN
10
THAT SENSE.
11
MS. FAHRINGER:
ONLY ONE OBSERVATION IN
12
ANSWER TO YOUR THREE QUESTIONS ABOUT EDUCATION AND
13
CHANGES.
14
CHANGES IN PARTICULAR -- AS TO THE
15
QUESTION WHETHER INJUNCTIVE RELIEF SHOULD BE
16
REQUIRED TO PRESERVE GOOGLE BUZZ AS IS RATHER THAN
17
HAVING IT REVERT BACK TO THE WAY THE COMPLAINT
18
ALLEGES IT WORKED, GOOGLE BUZZ NEVER WORKED THE WAY
19
THE COMPLAINT ALLEGED IT WORKED.
20
DISCLOSED E-MAIL ADDRESSES PUBLICLY.
21
THE THINGS ALLEGED IN THE COMPLAINT.
22
IT NEVER
IT NEVER DID
AND SO IT IS VERY UNLIKELY THAT GOOGLE
23
WOULD EVER CAUSE THE PROGRAM TO BE CHANGED TO ALIGN
24
TO THE PROGRAM AS ALLEGED IN THE COMPLAINT.
25
MR. RUBENSTEIN:
YOUR HONOR, YOU HAD ONE
43
1
LAST QUESTION ABOUT THE FEE REQUEST BEING A
2
BENCHMARK, AND LEAD COUNSEL WILL ADDRESS THAT.
3
MR. MASON:
VERY BRIEFLY, YOUR HONOR,
4
WE'VE ASKED FOR 25 PERCENT.
5
PERCENT, BUT WE THOUGHT 25 PERCENT, THE BENCHMARK,
6
WAS APPROPRIATE IN THIS CASE GIVEN ALL THE
7
CIRCUMSTANCES.
8
WE NEGOTIATED 30
OF IMPORTANCE AND WHAT MAKES THIS CASE A
9
LITTLE BIT DIFFERENT THAN MAYBE EVEN SOME OF THE
10
CASES THAT YOU SAW THIS MORNING IS THERE ARE FIVE
11
COMPLAINTS THAT ARE ON FILE, THREE OF WHICH WERE
12
FILED PRIOR TO THIS COURT CONSOLIDATING THE CASES
13
AND MAKING MYSELF LEAD COUNSEL, TWO OF WHICH CAME
14
AFTERWARDS.
15
THERE'S MORE THAN TEN LAW FIRMS INVOLVED,
16
AND AS LEAD COUNSEL, I'VE BEEN VERY DILIGENT ABOUT
17
WATCHING EVERYBODY'S TIME, MAKING SURE THAT IT'S
18
NOT DUPLICATIVE.
19
WE'VE BASICALLY, YOU KNOW, KEPT VERY
20
SMALL THE NUMBER OF LAWYERS WHO HAVE BEEN DOING THE
21
WORK SINCE THE CONSOLIDATION.
22
BUT NONETHELESS, GIVEN THE NUMBER OF LAW
23
FIRMS INVOLVED, GIVEN THE SUBSTANTIAL BRIEFING WE
24
DID IN CONNECTION WITH THE MEDIATION, AS WELL AS
25
THE PRELIMINARY APPROVAL, FINAL APPROVE BRIEF, AND
44
1
NOW THE REPLY BRIEF, THE TIME DOES ADD UP.
2
JUST -- THAT'S SOMETHING THAT NOBODY CAN CONTROL
3
THAT EFFECTIVELY AT SOME LEVEL.
4
IT'S
THE LODESTAR, AS REPORTED INITIALLY, WAS
5
ABOUT 1.3 MILLION, WHICH LED TO A MULTIPLIER OF
6
1.67, WHICH IS WELL WITHIN THE RANGE OF
7
MULTIPLIERS.
8
MY BACK-OF-THE-ENVELOPE CALCULATION OF
9
WHERE WE ARE NOW AFTER DOING ADDITIONAL BRIEFING
10
IS CLOSER TO 1.5, WHICH HAS LOWERED THE MULTIPLIER
11
TO ALSO ABOUT 1.5.
12
AND OF COURSE THERE'S GOING TO BE
13
ADDITIONAL WORK GOING FORWARD, PARTICULARLY WITH
14
THE CY PRES AND POTENTIALLY WITH APPEALS.
15
SO BASICALLY, YOUR HONOR, WE'RE JUST
16
ASKING FOR A VERY MODEST MULTIPLIER, IF ANY, OVER
17
THE LODESTAR THAT HAS ACCRUED IN THIS CASE.
18
19
20
THE COURT:
VERY WELL.
I'M PREPARED TO
TAKE THIS UNDER SUBMISSION.
AS I SAID, I MIGHT ASK FOR SUPPLEMENTAL
21
BRIEFING BEFORE I GIVE FINAL APPROVAL, AND THE
22
ORDER THAT I GIVE FOR FINAL APPROVAL MIGHT BE A
23
LITTLE DIFFERENT THAN WHAT I HAVE GIVEN THE
24
IMPORTANCE OF THE CY PRES RECIPIENTS.
25
MY STAFF MIGHT HAVE ALERTED YOU TO THIS
45
1
ALREADY.
2
MAKE THE FINAL DECISION AS TO WHO THOSE RECIPIENTS
3
ARE AND RECEIVE NOMINATIONS FROM THE PARTIES, AND
4
PERHAPS THERE COULD BE A WAY OF INCLUDING THE CLASS
5
IN SOME WAY IN THAT, AT LEAST AS TO NOTICE OF ALL
6
OF THAT.
7
ALERT PEOPLE TO WHAT THE COURT IS CONSIDERING DOING
8
AND ACTUALLY GET SOME FEEDBACK TO THAT PROCESS.
9
10
11
THE COURT WOULD TAKE IT UPON ITSELF TO
WITH TODAY'S TECHNOLOGY, IT'S EASY TO
I HAVEN'T THOUGHT ABOUT THAT YET, BUT I
WILL.
AND SO I'LL SEND YOU A DRAFT OF MY
12
PROPOSED ORDER, GET YOUR COMMENTS ON IT, AND THEN
13
PUT IT IN PLACE AFTER I RECEIVE THAT.
14
MR. RUBENSTEIN:
THANK YOU, YOUR HONOR.
15
ONE THING TO NOTE.
IN OUR FINAL APPROVAL
16
BRIEF, WE MENTIONED, AS TO THE CY PRES PROCESS,
17
THAT WE'D BE WORKING WITH AN INDEPENDENT
18
ORGANIZATION TO HELP US IDENTIFY CY PRES
19
RECIPIENTS, AND WE HOPE TO RECEIVE A BROAD CROSS
20
SECTION OF CY PRES RECIPIENTS AND DISTRIBUTE THE
21
MONEY WIDELY ACROSS THE COUNTRY.
22
THERE'S A LARGE AMOUNT OF MONEY HERE, AND
23
WE HAVE A CLASS THAT ENCOMPASSES THE WHOLE COUNTRY,
24
SO WE HOPE TO HAVE A GOOD SLATE OF -- A BROAD RANGE
25
OF CY PRES RECIPIENTS.
46
1
THE COURT:
2
GOOGLE PART OF THIS.
3
SPECIFICITY WITH RESPECT TO THAT PART OF IT.
4
AND I DIDN'T SPEAK TO THE
I DO INTEND TO SEEK SOME MORE
IT DOES SEEM TO ME THAT IF I HAVE TO PLAY
5
ANY ROLE IN ASSESSING WHETHER OR NOT THEY HAVE
6
COMPLIED WITH THE TERMS, I NEED TO HAVE THOSE TERMS
7
MORE EXPLICITLY STATED, AND SO I MIGHT ASK FOR MORE
8
SPECIFICITY FROM THE PARTIES BEFORE I GIVE YOU MY
9
FINAL JUDGMENT ON THAT PART AS WELL.
10
MR. RUBENSTEIN:
11
THE COURT:
12
MS. FAHRINGER:
13
(WHEREUPON, THE PROCEEDINGS IN THIS
14
THANK YOU, YOUR HONOR.
MATTER SUBMITTED.
THANK YOU, YOUR HONOR.
MATTER WERE CONCLUDED.)
15
16
17
18
19
20
21
22
23
24
25
47
1
2
3
4
CERTIFICATE OF REPORTER
5
6
7
8
9
I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR
10
THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH
11
FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY
12
CERTIFY:
13
THAT THE FOREGOING TRANSCRIPT,
14
CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND
15
CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS
16
SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS
17
HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED
18
TRANSCRIPTION TO THE BEST OF MY ABILITY.
19
20
21
22
23
24
25
/S/
_____________________________
LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595
48
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