In re Google Referrer Header Privacy Litigation

Filing 52

MOTION for Settlement (Preliminary Approval) filed by Paloma Gaos. Motion Hearing set for 8/23/2013 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 8/2/2013. Replies due by 8/9/2013. (Attachments: #1 Exhibit Declaration - Aschenbrener, #2 Exhibit Declaration - Chorowsky, #3 Exhibit Settlement Agreement, #4 Exhibit Declaration - Simmons, #5 Exhibit Declaration - Nassiri, #6 Exhibit Proposed Order)(Aschenbrener, Michael) (Filed on 7/19/2013)

EXHIBIT 1

KASSRA P. NASSIRI (215405)
1 ([e-mail])
NASSIRI & JUNG LLP
2 47 Kearny Street, Suite 700
San Francisco, California 94108
3 Telephone: [phone]
Facsimile: [phone]
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MICHAEL J. ASCHENBRENER
5 ([e-mail]) (277114)
ASCHENBRENER LAW, P.C.
6 795 Folsom Street, First Floor
San Francisco, CA 94107
7 Telephone: [phone]
Facsimile: [phone]
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9 Attorneys for Plaintiffs and the Putative Class
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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 REFERRER HEADER PRIVACY
15 LITIGATION
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Case No. 5:10-cv-04809-EJD
CLASS ACTION

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This Document Relates To: All Actions

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DECLARATION IN SUPPORT
OF PLAINTIFFS’ MOTION FOR
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
Date:
Time:
Place:
Judge:

August 23, 2013
9:00 a.m.
Courtroom 1, 5th Floor
Hon. Edward J. Davila

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ASCHENBRENER DECLARATION
5:10-CV-04809

1 Pursuant to 28 U.S.C. § 1746, I hereby declare and state as follows:
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1.

I am an attorney admitted to practice in the States of California, Illinois, and

3 Minnesota, and represent Plaintiffs in the above-titled action. I am over the age of eighteen and am
4 fully competent to make this declaration. This declaration is based upon my personal knowledge,
5 except where expressly noted otherwise.
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2.

Throughout the litigation, Plaintiffs propounded written discovery upon Google.

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3.

From the beginning of the case and while actively litigation, the Parties attempted

8 to resolve the matter without further litigation, but did not find success until mediating with
9 Randall Wulff.
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4.

First, counsel for the Parties met in person in San Francisco in January 2011 to

11 discuss possible resolution; the meeting was not successful.
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Counsel for the parties met again in San Francisco in February 2011, but were

13 again unsuccessful.
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6.

Counsel for the Parties met a third time to discuss resolution in June 2012, this time

15 for an all-day negotiating session, but were once again unsuccessful in coming to terms despite
16 extensive post-meeting discussions throughout the summer of 2012.
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7.

In an effort to advance the putative class’s interests most efficiently and effectively,

18 counsel for Plaintiffs Gaos and Italiano and for Plaintiff Priyev decided to work cooperatively to
19 again attempt to resolve the matter.
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8.

On January 28, 2013, in Oakland, California, the Parties mediated the case before

21 Randall Wulff, an experienced and well-respected mediator of class action disputes.
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9.

The arms-length negotiation went all day and long into the night, and based upon

23 his review of the facts and applicable law in this case, Mr. Wulff proposed a settlement amount in
24 the form of a “mediator’s proposal” to the Parties, which the Parties accepted and which formed
25 the framework for a settlement in principle.
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10.

Later that week, the parties began negotiating a settlement agreement.

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ASCHENBRENER DECLARATION
5:10-CV-04809

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11.

Over the span of nearly two months, the Parties exchanged numerous drafts of the

2 agreement and related documents.
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12.

On March 16, 2013, the Parties executed the Settlement Agreement, a true and

4 correct copy of which is attached to Plaintiffs’ Motion for Preliminary Approval as Exhibit 3.
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13.

Plaintiffs have maintained that any settlement would need to include injunctive

6 relief designed to notify users as to Google’s conduct so that users can make informed choices
7 about whether and how to use Google Search.
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14.

The instant Settlement Agreement provides such relief.

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15.

No later than fourteen (14) days before the Objection Deadline, Class Counsel will

10 make public, via the Settlement Website and direct notice to the Cy Pres Recipients, any
11 additional Cy Pres Recipients and the allocations of Cy Pres disbursements.
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16.

Plaintiffs have not negotiated, and do not intend to negotiate, a clear sailing

13 provision for Plaintiffs’ attorneys’ fees and costs request.
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Further, proposed Class Counsel have regularly engaged in major complex

15 litigation and have extensive experience in consumer class action lawsuits that are similar in size,
16 scope, and complexity to the present case.
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Attached to this Declaration as Exhibit 1-A is a true and correct copy of the firm

18 resume of Aschenbrener Law, P.C.
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Although Plaintiffs and proposed Class Counsel are confident in the strength of

20 their claims and in their ability to prevail ultimately at trial, they also recognize that litigation is
21 inherently risky.
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20.

Nevertheless, the viability of Google’s factual and legal defenses to Plaintiffs’

23 claims, many of which would create issues of first impression within this Circuit counsels in favor
24 of the instant settlement.
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21.

Given the size of the Settlement Class, any realistically obtainable monetary award

26 would result in payments to Class Members that would be negligible on an individual level.
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ASCHENBRENER DECLARATION
5:10-CV-04809

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22.

I declare under penalty of perjury that the foregoing is true and correct.

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3 Dated: July 19, 2013

ASCHENBRENER LAW, P.C.

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s/ Michael Aschenbrener
Michael J. Aschenbrener

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ASCHENBRENER DECLARATION
5:10-CV-04809

EXHIBIT 1-A

ASCHENBRENER LAW FIRM RESUME
ASCHENBRENER LAW, P.C. is a litigation and legal consulting firm with offices in
San Francisco, Chicago, and Minneapolis. The firm primarily handles plaintiffs’ consumer class
action litigation with a particular focus on technology cases. The firm also counsels growing
businesses on a variety of legal matters.
Representative Cases:

§

In re T-Mobile Sidekick Litig., 5:09-cv-4854-JW (N.D. Cal.): Appointed Class
Counsel in cloud computing data loss case against T-Mobile and Microsoft. Case
settled for value in excess of $4.9 million.

§

Turner v. Storm8, 4:09-cv-5234-CW (N.D. Cal.): Appointed Class Counsel in mobile
data privacy case against an iPhone app developer. Case settled for value of
$8,000,000 plus strong injunctive relief.

§

Resmer v. Oversee.net, BC 434426 (L.A. Sup. Ct.): Appointed Class Counsel in case
concerning shill bidding in online auctions for domain names. Case settled for
100% relief plus interest and strong injunctive relief.

§

Gawronski v. Amazon, 2:09-cv-1084-JCC (W.D. Wash): Lead attorney in wellpublicized class action concerning alleged remote deletions of electronic books.
Case settled for more than 100% relief for putative class members and property
rights of e-book purchasers.

§

Standiford v. Palm, 5:09-cv-5719-LHK (N.D. Cal.): Counsel in class action
concerning mobile cloud computing data loss against Palm and Sprint. Case
settled for $640,000.

§

Claridge v. RockYou, 4:09-cv-6032-PJH (N.D. Cal.): Counsel in class action
concerning data loss of personally identifiable information of 32 million
consumers. First case to survive MTD on damages theory concerning monetary
value of PII. Case settled on injunctive basis, including years of privacy audits to
ensure security of user data.

§

Eros v. Linden, 09-cv-4269-PJH (N.D. Cal.): Counsel in Intellectual Property case
alleging contributory infringement of IP of virtual goods. Case settled.

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Robins v. Spokeo, 10-cv-5306 (C.D. Cal.): Counsel in class action brought under
the Fair Credit Reporting Act against social networking/ search site. Case
pending appeal.

§

Lane v. Facebook, 08-cv-3845-RS (N.D. Cal.): Counsel in privacy class action
against Facebook regarding Facebook’s one-time product known as Beacon.
Case settled for $9.5 million.

§

Sims v. Cellco, 07-cv-1510-MC (N.D. Cal.): Counsel in class action against Verizon
concerning cramming charges associated with recycled cell phone numbers.
Case settled for $1 million plus attorneys’ fees and costs.

§

In re ATI Tech. HDCP Litig., 06-cv-1303-JW (N.D. Cal.): Counsel in consumer class
action concerning alleged false representations of technical capabilities of
computer graphics cards. Case settled for $11 million.

§

Evans v. Linden Research, Inc., 4:11-cv-1078-DMR (N.D. Cal.). Appointed Class
Counsel in case alleging the company behind Second Life violated its users
property rights by wrongfully confiscating their real world money, virtual money,
virtual property, and virtual land. Settlement pending.

§

In re Google Referrer Header Privacy Litig., 10-cv-4809-EJD (N.D. Cal.): Counsel in
class action concerning alleged illegal transmission of personally identifiable
information of tens of millions of Americans. Settlement pending.

§

In re Facebook Privacy Litig., 10-cv-2389-JW (N.D. Cal.): Appointed interim co-lead
counsel in privacy class action concerning alleged illegal transmission of
personally identifiable information of tens of millions of Americans. Case pending
appeal.

§

In re Zynga Privacy Litig., 10-cv-4680-JW (N.D. Cal.): Appointed interim co-lead
counsel in hotly competitive class action concerning alleged illegal transmission
of personally identifiable information of tens of millions of Americans. Case
pending appeal.

§

Earll v. eBay, 5:11-cv-262-JF (N.D. Cal.): Lead counsel in class action seeking to
establish rights for deaf users of the Internet under the ADA and California state
human rights laws. Case pending appeal.

§

Counsel in many other class actions concerning the mobile content industry
(spam text messages, etc.) that resulted in the recovery of hundreds of millions of
dollars for consumers.

MICHAEL ASCHENBRENER is the founder and principal of Aschenbrener Law, P.C. He
has been recognized as a leader in class action litigation. His reputation for leadership has

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caused him to be appointed lead counsel in many high-profile class action suits, including cases
involving Facebook, T-Mobile, Microsoft, Zynga, and others. In appointing Michael interim colead counsel in a hotly contested and well-publicized privacy class action, Judge Ware noted
that co-lead counsel “were pioneers in the electronic privacy class action field, having litigated
some of the largest consumer class actions in the country on this issue.”
Michael has appeared in dozens of national and international publications and numerous
TV and radio programs to discuss his cases and class action and consumer issues more
generally. He regularly speaks at seminars on class action and technology issues. Michael is a
graduate of the University of Minnesota and Chicago-Kent College of Law.
Before entering the legal field, Michael spent several years working the wireless,
computer and Internet marketing industries where he gained significant insight into the
business of technology.
Prior to founding Aschenbrener Law, Michael served as Chair of the Technology and
Privacy practice group at Edelson LLC in Chicago. Prior to joining Edelson, Michael also served
as an Assistant Attorney General for the State of Minnesota and worked as an associate at
Edelman, Combs, Latturner & Goodwin, LLC, which is a Chicago-based consumer rights and
class action firm.
During law school, Michael was an award-winning member of the Moot Court Honor
Society, as well as Editor of the SEVENTH CIRCUIT REVIEW.
MATTHEW ROSSETTI is Of Counsel at Aschenbrener Law. He represents individuals in
consumer class actions. He also represents businesses in technology and commercial matters.
Prior to joining Aschenbrener Law, Matt was Of Counsel at a Chicago-area class action
law firm and Entrepreneur Collaboration Director at VentureSHOT, a business incubator in
Chicago.
Matt, who grew up in the Chicago area, graduated Magna Cum Laude from DePaul
University. Matt earned his J.D. from IIT Chicago-Kent College of Law where he was a Wellgates
International Distinguished Scholar and founded the Chicago-Kent Trial Law Society.
Matt is a serial entrepreneur and has nearly a decade of experience with Internet
marketing, software development, and e-commerce. In 2012, the Sigma Nu Tau
Entrepreneurship Honors Society at the Illinois Institute of Technology inducted Matt as a
Charter Entrepreneur Member.

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