Hibnick v. Google Inc.

Filing 41

MOTION for Settlement Notice of Motion and Motion for Order (1) Prleiminarily Approving Class Action Settlement; (2) Provisionally Certifying Settlement Class and Appointing Class Counsel; (3) Authorizing Distribution of Notice of Settlement; and (4) Setting a Schedule for the Final Approval Process; Memorandum of Points and Authorities filed by John Case, Barry Feldman, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner, Rochelle Williams. Motion Hearing set for 12/20/2010 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Attachments: # 1 Exhibit 1, # 2 Exhibit A to Settlement Agreement, # 3 Exhibit B to Settlement Agreement, # 4 Exhibit C to Settlement Agreement, # 5 Proposed Order)(Mason, Gary) (Filed on 9/3/2010)

Hibnick v. Google Inc.

Doc. 41 Att. 3

EXHIBIT B

Dockets.Justia.com

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

If you are a Gmail user who was presented with the opportunity to use Google Buzz, you could be part of a class action settlement.
A federal court authorized this notice. This is not a solicitation from a lawyer. ·

A class action Settlement has been reached with Google Inc. that resolves Litigation about privacy concerns arising out of Google's social networking program, Google Buzz. This settlement was reached to avoid the costs and uncertainties of further litigation; it does not mean Google violated any law. Under the Settlement, Google ("the Defendant") will establish an $8.5 million Common Fund to fund organizations focused on Internet privacy policy or privacy education, as well as to cover lawyers' fees and costs and other expenses. The Defendant will also do more to educate users about the privacy aspects of Google Buzz. Since the inception of this litigation, the Defendant has also made changes to Google Buzz that clarify its operation and users' options, including, in particular, changes regarding user information and control over Buzz's privacy settings. Your legal rights are affected whether you act, or do not act. Please read this notice carefully.

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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:
EXCLUDE YOURSELF OBJECT GO TO A HEARING DO NOTHING ·
This is the only option that allows you to bring your own, or be part of any other, lawsuit against Google about the legal claims resolved in this Settlement. Write to the Court about why you do not like the Settlement. Ask to speak in Court about the fairness of the Settlement. Give up your rights to sue Google about the legal claims in this case and thereby accept the terms of this Settlement.

These rights and options--and the deadlines to exercise them--are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement.

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· WHAT THIS NOTICE CONTAINS
BASIC INFORMATION ....................................................................................................PAGE 3
1. 2. 3. 4. Why is this Notice being provided? What is this Litigation about? Why is this a class action? Why is there a Settlement?

WHO IS IN THE SETTLEMENT ..........................................................................................PAGE 4
5. How do I know if I am part of the Settlement? 6. What if I am not sure whether I am included in the Settlement?

THE SETTLEMENT BENEFITS...........................................................................................PAGE 5
7. What does the Settlement provide? 8. What am I giving up as part of the Settlement?

EXCLUDING YOURSELF FROM THE SETTLEMENT ..............................................................PAGE 5
9. If I exclude myself, can I get anything from this Settlement? 10. If I do not exclude myself, can I sue later? 11. How do I get out of the Settlement?

THE LAWYERS REPRESENTING YOU ................................................................................PAGE 6
12. Do I have a lawyer in the case? 13. How will the lawyers be paid?

OBJECTING TO THE SETTLEMENT ....................................................................................PAGE 6
14. How do I tell the Court that I do not like the Settlement? 15. What is the difference between objecting and asking to be excluded?

THE COURT'S FAIRNESS HEARING .................................................................................PAGE 7
16. When and where will the Court decide whether to approve the Settlement? 17. Do I have to come to the hearing? 18. May I speak at the hearing?

IF YOU DO NOTHING .................................................................................................. ...P AGE 8
19. What happens if I do nothing at all?

GETTING MORE INFORMATION .................................................................................... ...P AGE 8
20. How do I get more information about the Settlement?

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BASIC INFORMATION
1. Why is this Notice being provided?
A Court authorized this Notice because you have a right to know about a proposed Settlement of this class action Litigation and about all your rights and options before the Court decides whether to give "final approval" to the Settlement. This notice explains the Litigation, the Settlement, your legal rights, what benefits are available, and how to get them. Judge James Ware of the United States District Court for the Northern District of California, San Jose Divison, is overseeing this class action. The case is known as In re Google Buzz Privacy Litigation, No. 5:10-cv-00672-JW. The people who sued are called the "Plaintiffs," and the organization that they sued, Google Inc., is called the "Defendant."

2. What is this Litigation about?
On February 9, 2010, Google launched Buzz, a social networking program. The Plaintiffs allege that Google automatically enrolled Gmail users in Buzz, and that Buzz publicly exposed data, including users' most frequent Gmail contacts, without enough user consent. The Litigation alleges that the Defendant violated (i) the Electronic Communications Privacy Act, 18 U.S.C. §2510 et seq; (ii) the Stored Communications Act, 18 U.S.C. §2701 et seq; (iii) the Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq; (iv) the common law tort of Public Disclosure of Private Facts as recognized by California common law; and (v) the California Unfair Competition Law, California Business & Professions Code §17200. Google denies the accuracy of Plaintiffs' allegations and denies that it violated any law or caused any harm by the launch of Google Buzz.

3. Why is this a class action?
In a class action, one or more people called "Class Representatives" (in this case, Mark Neyer, Barry Feldman, Katherine C. Wagner, Andrew Souvalian, John H. Case, Lauren Maytin, and Rochelle Williams) sue on behalf of people who have similar claims. All of these people are a "Class" or "Class Members." The Settlement resolves the issues for all Class Members, except for those who exclude themselves from the Class.

4. Why is there a Settlement?
The Court did not decide in favor of Plaintiffs or Google. Instead, both sides agreed to settle this case to avoid the cost and risk of trial. The Settlement does not mean that any law was broken or that the Google did anything wrong. Google denies all legal claims in this case. The Class Representatives and their lawyers think the Settlement is in the best interest of the Class Members.

WHO IS IN THE SETTLEMENT
To see if you will be affected by this Settlement, you first have to determine if you are a Class Member.

5. How do I know if I am part of the Settlement?
The Court decided that the Class includes all Gmail users in the United States who were presented with the opportunity to use Google Buzz before ___, 2010. The Class also includes all representatives, heirs, administrators, executors, beneficiaries, agents, and assigns of these affected individuals.

6. What if I am not sure whether I am included in the Settlement? 41063-0140/LEGAL19034135.1
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If you are not sure whether you are in the Class, or have any other questions about the Settlement, call the toll-free number, 1-888-XXX-XXXX or visit www.buzzclass.com. You may also write with questions to Buzz Settlement, PO BoxXXXX, City, State, XXXXX-XXXX.

THE SETTLEMENT BENEFITS
7. What does the Settlement provide?
· First, the Defendant agreed to make, and did make, changes to Buzz that clarify its operation and users' options regarding Google Buzz, including, in particular, changes regarding user information and control over Buzz's privacy settings. The Settlement Agreement recognizes that since the inception of this Litigation the Defendant has made these changes to Google Buzz. Second, the Defendant will do more to educate users about the privacy aspects of Google Buzz. The Defendant will consider the recommendations of Plaintiffs about the content of that public education. Google will select and design the final content of the public education efforts in its discretion, and will provide a report to Plaintiffs' lead lawyer of the education undertaken. Third, the Defendant will pay a total of $8,500,000 into an interest-bearing account. This $8,500,000, plus interest, will constitute the "Common Fund." Because few, if any, class members suffered compensable actual damages and because a pro rata distribution of the fund to the Class would not be feasible due to the size of the Class, the Common Fund amounts in excess of fees, costs, expenses, and incentive awards will be distributed to organizations that advance the privacy interests of internet users such as the Class Members. The Settlement Agreement, available at www.buzzclass.com, describes all of the details about the proposed Settlement Agreement.

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8. What am I giving up as part of the Settlement?
If the Settlement becomes final, Class Members will be releasing the Defendants from all of the settled claims. The settled claims are all claims arising from or related to the facts giving rise to the subject matter of the Litigation, as described in Sections 1.23 and 9 of the Settlement Agreement. This means you will no longer be able to sue the Defendant regarding any of the settled claims described in the Settlement Agreement if you are a Class Member and if you do not exclude yourself from the Class. The full text of the Settlement Agreement is available at www.buzzclass.com.

EXCLUDING YOURSELF FROM THE SETTLEMENT
If you want to keep the right to sue the Defendant about the issues in this case, then you must exclude yourself from ("opt out" of) the Class.

9. What happens if I exclude myself?
If you exclude yourself, you cannot object to the proposed Settlement. However, if you ask to be excluded, you may sue or continue to sue the Defendant about the same claims resolved by this Settlement in the future. You will not be bound by anything that happens in this Litigation.

10. If I do not exclude myself, can I sue later?
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No, if you are a Class Member, unless you exclude yourself, you give up the right to sue the Defendant for all of the claims that this Settlement resolves.

11. How do I get out of the Settlement?
To exclude yourself from the Settlement, you must send a letter or other written document by mail saying that you want to be excluded from In re Google Buzz Privacy Litigation, No. 5:10-cv-00672-JW. Be sure to include your full name, address, reason why you want out of the Settlement, as well as proof that you used Gmail at some point after February 9, 2010, your signature, and the date. You must mail your request for exclusion so that it is received no later than Month XX, 2010 to:

NOTICE ADMINISTRATOR
Buzz Settlement Exclusions PO Box 0000 City, State Zip Code

You cannot ask to be excluded on the phone, by email, or at the website. An exclusion request is not a claim for payment.

THE LAWYERS REPRESENTING YOU
12. Do I have a lawyer in the case?
The Court appointed Gary E. Mason of Mason LLP; Michael Ram of Ram & Olson LLP; William Rubenstein; Jonathan Shub of Shublaw LLC; Peter N. Wasylyk, Andrew S. Kierstead, Donald Amamgbo of Amamgbo & Associates; Reginald Terrell of The Terrell Law Group; and Peter W. Thomas as "Class Counsel" to represent Class Members. You will not be individually charged for these lawyers, who, instead, will apply to the Court to be paid from the Common Fund. If you want to be represented by your own lawyer in this case, you may hire one at your own expense.

13. How will the lawyers be paid?
Class Counsel will ask the Court for attorneys' fees of 25 % of the Common Fund, plus reimbursement of costs and expenses. Class Counsel will also request that the five Class Representatives who helped the lawyers on behalf of the whole Class each receive a $2500 incentive award. The Court may award less than these amounts. The payment of attorneys' fees, incentive awards and reimbursement of costs and expenses will be deducted from the Common Fund prior to the distribution of the Common Fund to the selected Internet privacy organizations.

OBJECTING TO THE SETTLEMENT
14. How do I tell the Court that I do not like the Settlement?
You can object to the Settlement if you do not like any part of it. You must give reasons why you think the Court should not approve the Settlement. To object, send a letter saying that you object to the proposed Settlement in In re Google Buzz Privacy Litigation, No. 5:10-cv-00672-JW. Be sure to include: your name, address, telephone number, and your signature; the reasons why you object to the Settlement; copies of any legal support or evidence you would like the Court to consider; proof that you are a Class Member;

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and whether you or your attorney will appear at the fairness hearing (see Question 16 below). Mail the objection to the three different places listed below so that it is received no later than Month XX, XXXX. Note: Your objection must be received by the deadline. The Court will appoint a Notice Administrator to process all responses to the Settlement, and to coordinate with Class Counsel to answer Class Members' questions.

COURT
Clerk of the United States District Court for the Northern District of California San Jose Division 280 South 1st Street San Jose, CA 95113

CLASS COUNSEL
Gary Mason, Esq. Mason LLP 1625 Massachusetts Ave., NW Suite 605 Washington, DC 20036

DEFENSE COUNSEL
David J. Burman, Esq. Perkins Coie LLP 1201 Third Avenue Suite 4800 Seattle, WA 98101-3099

15. What is the difference between objecting and asking to be excluded?
Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you stay in the Class. Excluding yourself is telling the Court that you do not want to be part of the Class. If you exclude yourself, you cannot object to the Settlement because the case no longer affects you.

THE COURT'S FAIRNESS HEARING
16. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Fairness Hearing at _:_ _.m. on Month XX, XXXX, at the United States District Court for the Northern District of California, San Jose Division, 280 South 1st Street, San Jose, CA. At the Fairness Hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate. The Court will also consider Class Counsel's request for attorneys' fees, costs and expenses, and the incentive awards. If there are objections, the Court will consider them. The Fairness Hearing may be moved to a different date without additional notice, so it is recommended that you periodically check www.buzzclass.com for updated information.

17. Do I have to come to the hearing?
No, you are not required to attend the final fairness hearing. However, you are welcome to attend the hearing at your own expense. If you send in a written objection, you do not have to come to the Fairness Hearing to talk about it. As long as you mailed your written objection and it was received on time, the Court will consider it. You also may pay your own lawyer to attend the Fairness Hearing, but that is not necessary.

18. May I speak at the hearing?
To speak at the Fairness Hearing, you must send a letter or other written document saying that the letter or document is your "Notice of Intent to Appear" in In re Google Buzz Privacy Litigation, No. 5:10-cv00672-JW. Be sure to include your name, address, telephone number, signature, and copies of any documents you have proving that you are a Class Member. Send your Notice of Intent to Appear so that it is received no later than Month XX, XXXX, to the addresses listed in Question 14. You cannot speak at the hearing if you exclude yourself from the Settlement.

IF YOU DO NOTHING
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1-888-XXX-XXX TOLL FREE, OR VISIT WWW.BUZZCLASS.COM

19. What happens if I do nothing at all?
If you are a Class Member and do nothing, and you do not exclude yourself, you will not be able to start a lawsuit, or be part of any other lawsuit against the Defendants about the claims in this case, ever again.

GETTING MORE INFORMATION
20. How do I get more information about the Settlement?
This notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement at www.buzzclass.com. You also may write with questions to Buzz Settlement, PO Box 0000, City, State, Zipcode or call 1-888-XXX-XXXX.

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{00019987; 1}QUESTIONS? CALL

1-888-XXX-XXX TOLL FREE, OR VISIT WWW.BUZZCLASS.COM