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 2

1 KASSRA P. NASSIRI (215405)
([e-mail])
2 NASSIRI & JUNG LLP
47 Kearny Street, Suite 700
3 San Francisco, California 94108
Telephone: [phone]
4 Facsimile: [phone]
5 MICHAEL J. ASCHENBRENER
([e-mail]) (277114)
6 ASCHENBRENER LAW, P.C.
795 Folsom Street, First Floor
7 San Francisco, CA 94107
Telephone: [phone]
8 Facsimile: [phone]
9 ILAN CHOROWSKY (Admitted Pro Hac Vice)
([e-mail])
10 ALEX STEPICK (Admitted Pro Hac Vice)
([e-mail])
11 MARK BULGARELLI (Admitted Pro Hac Vice)
([e-mail])
12 PROGRESSIVE LAW GROUP, LLC
1 N LaSalle Street, Suite 2255
13 Chicago, IL 60602
Telephone: [phone]
14 Facsimile: [phone]
15 Attorneys for Plaintiffs
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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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20 In re GOOGLE REFERRER HEADER PRIVACY
21 LITIGATION
22 _______________________________________
23 This Document Relates To: All Actions

Case No. 5:10-cv-04809-EJD
CLASS ACTION

DECLARATION IN SUPPORT
OF PLAINTIFFS’ MOTION FOR
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

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Date:
Time:
Place:
Judge:

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August 23, 2013
9:00 a.m.
Courtroom 4, 5th Floor
Hon. Edward J. Davila

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CHOROWSKY DECLARATION
5:10-CV-04809

1 I, Ilan Chorowsky, declare as follows:
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1.

I am one of Plaintiffs’ counsel of record in the above-captioned action, and

3 Progressive Law Group, LLC represents Plaintiff Priyev in this matter. This declaration is based
4 upon my personal knowledge and review of the Court dockets in this matter.
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2.

Plaintiff Priyev filed his complaint against Google in the District Court for the

6 Northern District of Illinois, Eastern Division in February 2012.
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3.

On March 6, 2012, Plaintiff Priyev moved to certify the class as alleged in his

8 complaint.
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4.

On March 23, 2012, the parties agreed by motion to propose to allow Google

10 additional time to respond to the complaint, and the Court granted that motion.
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5.

Ultimately, Google moved to dismiss on various grounds, including for improper

12 venue, on April 30, 2012.
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6.

On July 13, 2012, in lieu of responding to Google’s motion to dismiss for improper

14 venue, Priyev moved to transfer.
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7.

On August 3, 2012, Priyev filed an amended complaint and on August 10, 2012

16 Priyev filed a second amended complaint.
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8.

Priyev’s complaints, inter alia, made allegations related to Google’s sharing of

18 search information and Web History via referrer headers and, among other things, Google’s
19 resulting breach of its own standardized terms and duties of good faith and fair dealing related to
20 Google’s Web History service and terms and conditions. E.g., Priyev Cmplt., Case No. 1:12-cv21 01467, Dckt. # 1, ¶¶ 14, 15, 19; Priyev FAC, Dckt. #40, ¶¶ 14, 15, 19 ; Priyev SAC, Dckt. #42, ¶¶
22 14, 15, 19. Priyev has alleged a property interest, affirmed via Google’s contract, allotted to users
23 in their search query information or Web History, and Priyev has alleged that Google’s conduct
24 violated industry protocol. E.g., Priyev Cmplt. ¶ 13; Priyev FAC ¶¶ 13, 63-64; Priyev SAC ¶¶ 13,
25 63-64. Priyev has alleged that Google has improperly received revenues or profits stemming from
26 its disclosure of search queries to third-parties via Google Analytics or advertising services. E.g.
27 Priyev Cmplt. ¶¶ 49-50; Priyev FAC ¶¶ 69-70; Priyev SAC ¶¶ 18-25, 69-70.
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CHOROWSKY DECLARATION
5:10-CV-04809

1

9.

Priyev’s Second Amended Complaint alleged causes of action for Breach of

2 Contract, Breach of Covenant of Good Faith and Fair Dealing, Breach of Contract Implied in Law,
3 Violations of the Electronic Communications Privacy Act, Violations of California’s Unfair
4 Competition Law, and Claims for Declaratory and Injunctive Relief. Priyev SAC ¶¶ 82-165.
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10.

On August 28, 2012, the court in the Northern District of Illinois granted Priyev’s

6 contested and fully briefed motion to transfer and ordered his case transferred to the Northern
7 District of California.
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11.

On December 18, 2013, Priyev’s case file was electronically transferred to the

9 Northern District of California.
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12.

On January 8, 2013, the Priyev action was officially transferred in to the Northern

11 District of California’s docket.
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13.

During this litigation, Priyev and Google engaged in discussions of possible case

13 resolution. Plaintiff Priyev agreed to work in conjunction with Plaintiffs Gaos and Italiano to
14 resolve the claims from the Priyev and Gaos cases with Google, because such a joint resolution
15 would be most effective and in light of the prior filed Gaos litigation.
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14.

Counsel for all parties engaged in formal mediation on January 28, 2013.

17

15.

All parties successfully reached an agreement in principle at the formal mediation,

18 and settlement terms, memorialized in the parties’ Settlement Agreement annexed to the extant
19 Motion for Preliminary Approval, were negotiated and finalized in the months following
20 mediation.
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16.

On April 26, 2013, in light of the proposed settlement of both cases, the parties

22 jointly stipulated and requested that the Court approve their stipulation to consolidate the cases
23 and accept plaintiffs’ proposed consolidated class action complaint. Case No. 5:10-cv-0480924 EJD, Dckt. No. 50.
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17.

On April 30, 2013, the Court granted the parties’ stipulation to consolidate the two

26 cases. The Priyev matter was reassigned to Judge Davila on May 1, 2013, and the Priyev and
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CHOROWSKY DECLARATION
5:10-CV-04809

1 Gaos matters were consolidated as In re GOOGLE REFERRER HEADER PRIVACY
2 LITIGATION.
3

18.

The consolidated complaint, now the operative complaint in this matter,

4 incorporates claims and allegations from both the Priyev and Gaos matters.
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19.

Priyev initiated his action, identified claims, and benefitted throughout the

6 litigation due to substantial factual research, analysis and investigation by counsel.
7

20.

From the start of his litigation and negotiations with Google, Priyev consistently

8 sought to negotiate terms aimed at advising class members of Google’s alleged business practices
9 at issue.
10

21.

The parties reached the proposed settlement in the face of vigorous opposition from

11 Google throughout the Priyev litigation and in the course of the related and joint negotiations.
12

22.

Annexed hereto is a summary of the background and experience of the attorneys

13 working with our law firm.
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The foregoing is true and correct to the best of my knowledge. Executed this 19th day of
July, 2013, in Chicago, Illinois.
Respectfully submitted,
/s/ Ilan Chorowsky
Ilan Chorowsky, Esq.

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CHOROWSKY DECLARATION
5:10-CV-04809

EXHIBIT 2-A

One North LaSalle Street, Suite 2255
Chicago, IL 60602
Telephone: [phone]
Facsimile: [phone]
FIRM PROFILE
Progressive Law Group LLC in Chicago, Illinois is a law practice dedicated to protecting people
through class action litigation. PLG prosecutes consumer, employee, and antitrust claims in
Illinois and venues nationwide. PLG works with its sister law practice, Progressive Law Group
LLC based in Madison, Wisconsin, to prosecute class action litigation.
ATTORNEY PROFILES
Frank Jablonski (Madison, WI) founded the Progressive Law Group LLC practice in Madison,
Wisconsin, in 2004. He focuses on trials and related work (litigation, mediation, and
arbitration). He has represented persons harmed by corporate malfeasance, communities, nonprofit organizations, businesses and business shareholders, and individuals, including both
individual consumers and landowners subject to condemnation “takings” by utility companies.
He has a broad legal and policy background, having worked on legislation and rules as a lobbyist
for environmental and industry organizations. He has been honored twice for his work on public
policy issues through Wisconsin Legislative Council Special Committees (1985 and 1993). He
has also managed small and medium businesses, including a wood products manufacturing
division within a Wisconsin manufacturing, distribution, and energy services Company, and a
subsidiary of Puget Sound Power and Light Company, an investor-owned utility. Over the last
27 years he has been lead counsel for clients retained in administrative, regulatory, trial and
appellate court actions too numerous to recount. These have involved both individual and class
action consumer matters, ranging from misrepresentation to telecommunications to contaminated
pet food. They have also included environmental matters such as regulated industries, energy
facilities development and impacts (e.g. planning dockets, power plants, transmission lines, stray
voltage, EMF), licensing and permitting, transportation, land use, and business disputes
(contracts, fair competition, stockholder disputes, and the duties of owners to each other and to
the shared enterprise). (J.D., University of Wisconsin, 1983).

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Ilan Chorowsky (Chicago, IL) concentrates his practice in multi-state class action litigation of
consumer, employee, and antitrust claims in federal and state court venues, and presently serves
as the Co-President of the Illinois Chapter of the Wisconsin Bar Association. He has served as
counsel in numerous class actions resulting in recovery of tens of millions of dollars and other
favorable relief for class members. Mr. Chorowsky has also represented several Indian tribes in
a variety of litigation, employment, and environmental matters, and has successfully prosecuted
actions and defended clients in commercial and contract litigation. He has served as a member
of the Board of Directors for the Wisconsin Bar Public Interest Law Section, and the American
Bar Association AIDS Coordinating Committee, and has lectured at the Loyola University
Chicago School of Law, the John Marshall Law School, the University of Wisconsin Schools of
Law and Medicine, and the Wisconsin State Bar Convention. A 1996 graduate of the University
of Wisconsin Law School, he clerked for the Wisconsin Department of Justice Civil Litigation
Unit, and was employed by The Washington Post, the National Endowment for the Arts, and as a
researcher for the Smithsonian Institute Woodrow Wilson Center for Scholars prior to practicing
law. He has represented and counseled indigent clients in various matters including in
connection with the Legal Assistance Foundation of Chicago and the Chicago Legal Clinic. He
previously successfully prosecuted class action lawsuits for several years as an attorney with
Larry D. Drury Ltd., and has served as an attorney in a variety of cases resulting in class action
settlements, including In re Vitamins antitrust litigation, and lawsuits filed against the Chicago
Sun-Times, Village of Crestwood, Illinois, and Conseco Insurance Co. He has been appointed
class counsel, and has worked as lead or co-lead counsel in class actions lodged against several
defendants, including Sprint United Management Company and Sprint Nextel Corporation, and
Guitar Center, Inc. He presently serves as liaison counsel in In RE: Dairy Farmers of America,
Inc. Cheese Antitrust Litigation, MDL 2031. He holds degrees from the University of
Wisconsin-Madison (B.A. – Hon., 1992) (J.D., 1996).
Mark A. Bulgarelli (Chicago, IL) is a dedicated professional who concentrates his practice in
litigation of class action, employment, consumer fraud, antitrust, and contract disputes. Mr.
Bulgarelli has successfully prosecuted claims on behalf of individuals and governments in state
court, federal courts, bankruptcy courts, appellate courts, and before the Equal Employment
Opportunity Commission. He is admitted to practice law in Illinois, the United States District
Court for the Northern District of Illinois, the United States District Court for the Western
District of Michigan, and the United States Court of Appeals for the Fifth and Ninth Circuits.
Prior to becoming a member of Progressive Law Group, Mr. Bulgarelli was an attorney at
Keaton & Associates, P.C. and Foote, Meyers, Mielke & Flowers, LLC. In the course of his
career, Mr. Bulgarelli has litigated numerous complex and class action cases, including, but not
limited to RICO, FLSA, mass tort, Qui Tam, and consumer products cases, along with cases
under the Perishable Agricultural Commodities Act. He has been appointed class counsel and
worked as lead counsel in class action settlements against Tri-State Auto Auction Company and
Brainfuse, Inc. Mr. Bulgarelli received his undergraduate degree from Indiana University and
was a member of the university’s Honors College. Mr. Bulgarelli received his law degree and a
Certificate in International Trade and Development Law from Valparaiso University where he
was also a member of the law school’s Jessup International Moot Court Team (J.D., 2004).
Alex Stepick (Chicago, IL) has served as counsel for plaintiffs in multiple class action
proceedings. Mr. Stepick was a graduate fellow with the U.S. Congress Committee on the
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Judiciary, and a clerk with the United States Department of Justice. While in law school Mr.
Stepick was a member of Washington University Law’s international moot court program,
winning the “Best Advocate” award, the highest individual honor, and carrying his team to the
semi-finals at the Niagara International Moot Court Competition in Toronto, Canada in 2009.
Prior to joining Progressive Law Group, Mr. Stepick completed a post-graduate fellowship
working as a Staff Attorney at the Florida International University’s Immigration & Human
Rights Clinic in Miami, FL. (J.D., Washington University School of Law in Saint Louis, 2010;
A.B., The University of Chicago, 2006).
Adrienne M. Zibelman (Chicago, IL), Of Counsel, has more than 20 years of legal experience
in the areas of business litigation and corporate transactional work, compliance, and health care
law, both as in-house counsel for United Health Group and in private practice. Ms. Zibelman
has represented many corporations and individuals in complex civil litigation. She also employs
a breadth of experience in real estate, labor, probate, and business matters. She formerly served
as editor at Wolters Kluwer, one of the largest legal publishing companies in the world. (J.D.
and Masters of Law in Health, DePaul University School of Law).
Sang Yup Lee (Chicago, IL), Of Counsel, has contributed to the prosecution of numerous class
actions and previously interned for the Honorable Judge Mary Yu, with the Superior Court in
Washington State. Mr. Lee has worked for legal services agencies and defense agencies before
and during law school. Mr. Lee also worked as an Article Editor for the Journal of Law, Ethics
& Public Policy, and served his law school community as Co-President of the Public Interest
Law Forum and President of the Asian Law Student Association. (J.D., University of Notre
Dame Law School, 2009).
Anita Dellaria (Chicago, IL), Of Counsel, graduated from The John Marshall Law School in
Chicago in January, 2010. She received a CALI award for her course work in Fair Housing Law
and served gratefully as an intern in The John Marshall Law School Fair Housing Legal Clinic
where she worked on cases involving housing discrimination. She also served as an extern for
the Honorable Thomas P. Quinn of the Circuit Court of Cook County and as an intern with the
Board of Education of the City of Chicago, Law Department. Ms. Dellaria earned her law
degree while working full-time as a high school English teacher. She is a native Chicagoan, a
poet, and associate editor of the Tribeca Poetry Review.
Jeff W. Nichols (Madison, WI), Of Counsel, has tried civil and criminal cases in federal and
state courts since 1991, including extensive representation of indigent defendants both as a State
of Wisconsin public defender and as a private attorney. He has also represented clients in the
Wisconsin State Court of Appeals and the federal Seventh Circuit Court of Appeals. He is
currently a member of the board of the law office practice management section for the Wisconsin
state bar. (J.D., University of Wisconsin, 1991).
Krista Ralston (Madison, WI), Of Counsel, is an emerita clinical law professor who has
specialized in criminal and civil litigation for more than 25 years. Before becoming a full-time
clinical professor and program director at the University of Wisconsin Law School in 1990, she
practiced law in both the private and public sectors. Her practice experience includes a federal
clerkship with Chief Judge Barbara Crabb (W.D. Wisc.), two years as an Assistant U.S. Attorney
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and several years in private practice. She has litigated hundreds of cases in both state and federal
courts, including a variety of complex, multi-party cases. She was also “of counsel” in several
class action suits brought by the former Youth, Policy and Law Center in Madison, WI. As
clinical law professor and program director of a trial-level criminal defense clinical program, Ms.
Ralston specialized in teaching litigation technique and theory through live-client clinical
supervision and classroom courses such as trial and pre-trial advocacy and evidence. She also
coached mock trial teams in regional and national competitions, presented papers at national and
international conferences, taught as a visiting professor in Giessen, Germany, and published
articles in legal journals. She has been active in national, state and local organizations advocating
for the disenfranchised, including sitting on various professional and community-action boards
of directors, and is the recipient of numerous law school and professional awards. (J.D.,
University of Wisconsin, 1979).
Carmen Rumbaut (Madison, WI), Of Counsel, has practiced law in Texas as a plaintiff-side
civil rights attorney representing clients in class actions and individual employment
discrimination lawsuits in both state and federal courts. She has served on the board of directors
of the Wisconsin Association of Mediators. (J.D., University of Texas School of Law, 1989).

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