In re Google Referrer Header Privacy Litigation

Filing 57

Transcript of Proceedings held on 08/23/2013, before Judge Davila. Court Reporter Irene L. Rodriguez, Telephone number [phone] email: [e-mail]. 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 11/25/2013. (Related documents(s) #54 ) (Rodriguez, Irene) (Filed on 8/27/2013)

Case5:10-cv-04809-EJD Document57 Filed08/27/13 Page1 of 50
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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IN RE: GOOGLE REFERRER HEADER
PRIVACY LITIGATION.

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE

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SAN JOSE, CALIFORNIA

PAGES 1 - 49

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CV-10-4809-EJD

AUGUST 23, 2013

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CASE NO.

A-P-P-E-A-R-A-N-C-E-S
FOR THE PLAINTIFFS:

NASSIRI & JUNG
BY:
KASSRA P. NASSIRI
47 KEARNEY STREET, SUITE 700
SAN FRANCISCO, CALIFORNIA 94108
ASCHENBRENER LAW, P.C.
BY: MICHAEL ASCHENBRENER
795 FOLSOM STREET, FIRST FLOOR
SAN FRANCISCO, CALIFORNIA 94107
PROGRESSIVE LAW GROUP
BY: ILAN CHOROWSKY
1 N. LASALLE STREET, SUITE 2255
CHICAGO, ILLINOIS 60602

(APPEARANCES CONTINUED ON THE NEXT PAGE.)
OFFICIAL COURT REPORTER:

IRENE L. RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY,
TRANSCRIPT PRODUCED WITH COMPUTER.

UNITED STATES COURT REPORTERS

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A P P E A R A N C E S: (CONT'D)

FOR THE DEFENDANTS:

MAYER BROWN
BY: EDWARD D. JOHNSON
TWO PALO ALTO SQUARE, SUITE 300
PALO ALTO, CALIFORNIA 94306
O'MELVENY & MYERS
BY: RANDALL W. EDWARDS
28TH FLOOR
TWO EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111

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UNITED STATES COURT REPORTERS

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SAN JOSE, CALIFORNIA

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AUGUST 23, 2013
P R O C E E D I N G S

(COURT CONVENED.)

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THE CLERK:

CALLING CASE NUMBER 10-4809, IN RE:

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GOOGLE REFERRER HEADER PRIVACY LITIGATION.

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PRELIMINARY APPROVAL.

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COUNSEL, COME FORWARD AND STATE YOUR APPEARANCES.

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MR. JOHNSON:

GOOD MORNING, YOUR HONOR.

EDWARD

JOHNSON FROM MAYER BROWN FOR GOOGLE.

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ON FOR MOTION FOR

MR. EDWARDS:

GOOD MORNING, YOUR HONOR.

RANDALL

EDWARDS FROM O'MELVENY & MYERS ALSO FOR GOOGLE.

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MR. ASCHENBRENER:

GOOD MORNING, YOUR HONOR.

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MICHAEL ASCHENBRENER ON BEHALF OF PLAINTIFFS AND THE PUNITIVE

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CLASS.

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THE COURT:

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MR. NASSIRI:

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THANK YOU.

GOOD MORNING, YOUR HONOR.

THE COURT:

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MR. CHOROWSKY:

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THANK YOU.
GOOD MORNING, YOUR HONOR.

ILAN

CHOROWSKY FOR PROGRESSIVE LAW GROUP FOR PLAINTIFFS.

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KASSRA

NASSIRI FOR NASSIRI & JUNG ON BEHALF OF THE PLAINTIFFS.

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GOOD MORNING.

THE COURT:
SEATED.

THANK YOU.

GOOD MORNING.

PLEASE BE

THANK YOU.

WELL, I HAVE YOUR DOCUMENTS HERE REGARDING THIS

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PRELIMINARY APPROVAL, AND I DO HAVE SOME QUESTIONS I WANTED TO

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ASK YOU.

UNITED STATES COURT REPORTERS

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FIRST OF ALL, LET ME THANK YOU FOR YOUR EFFORTS IN PUTTING

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THIS TOGETHER.

THIS IS AN INTERESTING LAWSUIT.

AND IT SOUNDS

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LIKE, MR. NASSIRI, I DON'T KNOW HOW YOU WOULD FIT ALL OF YOUR

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CLIENTS IN YOUR OFFICE.

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TO ACCOMPLISH THAT.

YOU MIGHT HAVE TO RENT A FEW STADIUMS

IT SOUNDS LIKE THAT'S THE SIZE OF THE --

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MR. NASSIRI:

IT'S ENORMOUS, YOUR HONOR.

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THE COURT:

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ASPECTS OF THIS SETTLEMENT HERE.

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THIS IS AN OVERVIEW, AND I'LL INVITE COUNSEL TO TELL ME ABOUT

SO I WANTED TO GO THROUGH SOME OF THE
AND I GUESS IT LOOKS LIKE

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THIS IN A COUPLE OF MINUTES.

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SIZE OF THE CLASS ACTUAL REMUNERATION, IF YOU WILL, TO AN

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INDIVIDUAL CLASS MEMBER IS VIRTUALLY IMPOSSIBLE.

IT CAN'T

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HAPPEN EVEN IF YOU SENT THEM ONE CENT, A PENNY.

THE COST OF

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ADMINISTRATION OF THAT WOULD DWARF ANY POSSIBLE SETTLEMENT.

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IT SOUNDS LIKE BECAUSE OF THE

AND I GUESS WHAT WE'RE SEEING IS THESE LARGE CLASSES AND

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HOW TO RESOLVE THEM IN SUCH A WAY THAT THERE'S SOME BENEFIT TO

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THE CLASS MEMBERS, OR AS IN THIS CASE IS SUGGESTED A PURE

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CY PRES RESOLUTION, THAT THERE'S SOME BENEFIT TO THE CLASS THAT

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IS SOMEWHAT RELATED TO THE ISSUES IN THE LAWSUIT.

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TO FOCUS ON SOME OF THOSE ISSUES INITIALLY.

AND I'D LIKE

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SO, MR. NASSIRI, WHY DON'T I GIVE YOU TWO MINUTES TO GIVE

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ME A SYNOPSIS OF THIS LAWSUIT AND WHAT IT IS ABOUT AND WHY YOU

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FEEL THAT THIS RESOLUTION IS APPROPRIATE.

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MR. NASSIRI:

WOULD YOU LIKE ME TO STEP UP, YOUR

HONOR?

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THE COURT:

I WOULD, YES.

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MR. NASSIRI:

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THANK YOU.

THANK YOU FOR THE OPPORTUNITY.

THIS

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IS, AS YOUR HONOR NOTED, AN INTERESTING LAWSUIT AND IT SEEMS TO

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BE KIND OF SUBJECT MATTER THAT IS OF GREATER AND GREATER

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INTEREST.

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THE LAWSUIT IS -- TECHNICALLY IT'S ABOUT THE DISCLOSURE OF
SEARCH QUERIES TO THIRD PARTIES.

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MORE BROADLY SPEAKING IT'S KIND OF ABOUT SOME OF THE

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PRIVACY CONCERNS IN GENERAL AND THE INNOVATIONS IN TECHNOLOGY

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THAT HAVE BEEN OCCURRING AT A TREMENDOUS PACE THAT MAKES THINGS

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THAT JUST FIVE YEARS AGO DISCLOSURES OF INFORMATION AND DATA

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THAT JUST FIVE YEARS AGO SEEMED PRETTY INNOCUOUS LIKE IT IS

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ANONYMIZED HAS TURNED IT INTO SOMETHING ELSE COMPLETELY AND IT

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HAS BEEN REIDENTIFIED AND BECAUSE OF ADVANCES IN COMPUTER

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SCIENCE AND ALL OF THE MONEY AND ATTENTION THAT HAS BEEN GIVEN

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TO THESE EFFORTS PRIVACY IS REALLY AT ISSUE NOW IN ALMOST

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EVERYTHING WE DO ON LINE.

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THE COURT:

THAT'S WHY YOU FILED THIS LAWSUIT ON

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BEHALF OF YOUR CLIENTS I PRESUME BECAUSE YOU FELT THERE WAS AN

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INVASION OF THEIR PRIVACY, THEY FELT THERE WAS AN INVASION OF

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THEIR PRIVACY AND THEY SEEK REMEDIES IN THE COURT.

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IT WAS ABOUT, RIGHT?

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MR. NASSIRI:

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THE COURT:

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MR. NASSIRI:

THAT'S WHAT

THAT'S RIGHT, YOUR HONOR.

OKAY.
AND EVERY TIME THE NATURE OF THE

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SCIENCE IS THAT ANY PIECE OF INFORMATION, WHETHER IT SEEMS

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ANONYMOUS OR NOT ON ITS OWN, WHEN YOU START AGGREGATING DATA IT

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GETS POSSIBLE TO REIDENTIFY INFORMATION AND TO CREATE PRETTY

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DETAILED PROFILES.

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STORAGE IS PRACTICALLY FREE, AND YOU HAVE THIS GIANT DATABASE

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IN THE SKY.

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THE INFORMATION NEVER GOES AWAY.

THE

AND I HAVE TO SAY, YOUR HONOR, WHEN WE FILED THIS CASE AND

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I WOULD TALK TO PEOPLE ABOUT IT, THEY WOULD LOOK AT ME LIKE

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WHERE IS YOUR TINFOIL HAT TO PREVENT THE RAYS, YOU KNOW,

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THEY'RE HACKING INTO YOUR BRAIN.
BUT I THINK NOW PEOPLE ARE STARTING TO REALIZE THAT THIS

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IS REAL STUFF.

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ABOUT PEOPLE AND IS ASSOCIATED WITH PEOPLE, WHETHER IS SEEMS

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ANONYMOUS OR NOT, WHETHER IT'S ASSOCIATED WITH AN IP ADDRESS OR

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ASSOCIATED WITH AN ISP SERVER, IF THERE'S ANY INFORMATION IN

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THE SEARCH QUERY AT ALL, IT CAN BE CONNECTED TO SOMETHING ELSE

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THAT WILL EVENTUALLY LEAD YOU BACK TO THE INDIVIDUAL PERSON.

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SO THAT WAS KIND OF THE BASIS AND IN A VERY GENERAL WAY

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AND EVERY LITTLE BIT OF DATA THAT IS RELEASED

FOR WHY WE FILED THE LAWSUIT.
THE COURT:

AND YOU FELT THAT, AND YOU TELL ME IF

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I'M WRONG HERE, BUT YOU FELT, AS YOUR CLIENTS FELT, THAT THIS

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WAS WRONG, AND IT NEEDED TO BE CORRECTED?

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MR. NASSIRI:

THAT'S RIGHT, YOUR HONOR.

IT NEEDED

TO BE ADDRESSED PARTICULARLY AT THE TIME AND STILL TODAY.
THE COURT:

THERE'S A DIFFERENCE BETWEEN ADDRESSING

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IT AND CORRECTING IT.
MR. NASSIRI:

AND IT NEEDED TO BE CORRECTED.

AND

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ONE OF THE -- AND PARTICULARLY WHAT WE FOCUSSED ON IN THE

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LAWSUIT AND IN OUR CLAIMS AND IN PARTICULAR THAT 2702 CLAIM

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UNDER THE STORED COMMUNICATIONS ACT WAS THIS IDEA OF CONSENT,

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THAT PEOPLE NEEDED TO KNOW -- IT'S NOT NECESSARILY ILLEGAL OR

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WRONG FOR GOOGLE OR ANYBODY ELSE TO DO WHAT THEY DO WITH

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PEOPLE'S DATA.

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THE WORK THAT THEY'RE DOING.

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AND THERE ARE CERTAINLY A LOT OF BENEFITS TO

BUT WHAT WE FELT WAS WRONG AND NEEDED TO BE ADDRESSED WAS

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THAT PEOPLE NEEDED TO KNOW, AND THEY NEEDED TO OPT IN.

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NEEDED TO UNDERSTAND, HEY, WHEN I USE GOOGLE AND I TYPE MY NAME

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OR ANYTHING INTO A SEARCH QUERY BOX, THERE'S A GOOD CHANCE THAT

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SOMEBODY IS GOING TO KNOW IT WAS ME THAT DID THAT AND AM I OKAY

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WITH THAT OR NOT?

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THEY

AND SO THIS ISSUE OF CONSENT AND INFORMED CONSENT IS ONE
THAT WE BELIEVE IS VERY IMPORTANT.
THIS SHOULDN'T BE TAKING PLACE KIND OF WITHOUT THE
KNOWLEDGE OF THE PEOPLE WHO ARE USING THE SERVICES.

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AND PART OF OUR EFFORTS IN STRUCTURING THE SETTLEMENT TO

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CREATE REAL VALUE AND BENEFIT FOR THE CLASS WAS AIMED AT THAT

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KIND OF AN ISSUE, EDUCATION, TRANSPARENCY, ACCOUNTABILITY, AND

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MAKING SURE THAT PEOPLE HAVE AN IDEA THAT WHEN THEY USE THESE

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KINDS OF SERVICES AND THEY SUBMIT THEIR PERSONAL INFORMATION,

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WHETHER THEY THINK IT'S ANONYMOUS OR NOT, THAT, HEY, THERE'S A

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GOOD CHANCE THAT THIS IS GOING TO BE ATTACHED TO ME DOWN THE

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ROAD.

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THE COURT:

SO THE LAWSUIT WAS NOT DESIGNED TO STOP

THE PRACTICE BECAUSE THE SETTLEMENT DOESN'T.

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MR. NASSIRI:

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PRACTICE, YOUR HONOR.

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THE COURT:

IT IS NOT DESIGNED TO STOP THE

THE SETTLEMENT SAYS THEY CAN KEEP GOING

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AND THEY ARE GOING TO KEEP DOING WHAT THEY'RE DOING, BUT AS I

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STAND HERE AS CHAMPION OF MY CLIENTS, WHAT WE HAVE DONE FOR

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YOU, AS YOU SPEAK TO THOSE STADIUMS UP AND DOWN THE BAY AREA

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WHERE YOUR CLIENTS ARE SITUATED IN LOUD SPEAKERS SUFFICIENT SO

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THEY CAN ALL HEAR YOU, WHAT WE HAVE DONE FOR YOU IS WE HAVE

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BEEN ABLE -- YOU NOW KNOW THAT THIS IS WHAT GOOGLE DOES AND

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THIS IS WHAT WE HAVE DONE FOR YOU IN THIS LAWSUIT.

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IS THAT IN ESSENCE WHAT IS HAPPENING HERE?

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MR. NASSIRI:

THAT'S NOT THE EXTENT OF IT.

THAT'S A

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MAJOR PIECE OF IT BECAUSE, AS YOU POINTED OUT, YOUR HONOR, THIS

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IS NOT SOMETHING -- ONLY CONGRESS COULD LEGISLATE TO STOP THE

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PRACTICE AND SAY CONSENT OR NO CONSENT, GOOGLE, YOU CANNOT DO

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THIS.

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THAT'S NOT FOR US.

FOR US WE BELIEVE THAT WE CAN AND DO

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HAVE THE TOOLS AND HAVE THE DESIRE TO MAKE SURE THAT PEOPLE

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CONSENTED BECAUSE THAT IS THE LAW UNDER THE STORED

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COMMUNICATIONS ACT.

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THESE THINGS CANNOT BE DISCLOSED WITHOUT CONSENT.

UNITED STATES COURT REPORTERS

CONSENT

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WAS LACKING.
THE COURT:

SO CONSENT IS PROVIDING INFORMATION TO

YOUR CLIENTS, TO THE PUBLIC?

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MR. NASSIRI:

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THE COURT:

YES.

IF THERE IS ANY PUBLICITY ABOUT THIS

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LAWSUIT, I DON'T KNOW IF THERE IS OR NOT, BUT PEOPLE WHO ARE

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INVOLVED IN TECHNOLOGY SEEM TO FOLLOW THOSE THINGS, MY SENSE IS

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THAT THE WORD IS ALREADY OUT, ISN'T IT?

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MR. NASSIRI:

THE WORD IS OUT, YOUR HONOR.

AND

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YOU'LL SEE AND YOU'LL HEAR FROM US, IF YOU WOULD LIKE TO AND

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IT'S IN OUR PAPERS, THAT THE PUBLICATION PLAN THAT WE HAVE WILL

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HIT EVERYBODY.

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OF THIS AND JUST BY SEEING NOTICE OF THIS AND KIND OF ASKING

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WHAT THE CASE IS ABOUT I THINK, YOU KNOW, PEOPLE WILL START TO

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SAY, OH, THAT WILL INTEREST ME, I WANT TO KNOW AND WHAT IS

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GOING ON WITH MY DATA.

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EVERYBODY WHO IS ON LINE IS GOING TO SEE NOTICE

SO THAT IS A BIG PART OF WHAT WE ARE DOING.

I THINK, YOU

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KNOW, THIS IS ONE OF THOSE INTERESTING CASES WHERE, WHERE THE

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NOTICE PLAN ITSELF IS GOING TO DO A LOT OF GOOD.

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PLAN BY ITSELF IS A GREAT BENEFIT BECAUSE IT BRINGS ATTENTION

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TO WHAT IS GOING ON AND IT'S ALMOST IN A SENSE A WAY OF TELLING

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PEOPLE, HEY, WAKE UP AND SEE WHAT IS HAPPENING WITH YOUR DATA,

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WHEN YOU USE GOOGLE UNDER THESE CIRCUMSTANCES, YOUR SEARCH

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QUERIES WILL BE TRANSMITTED TO THIRD PARTIES.

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THE COURT:

THE NOTICE

IS THAT KNOWLEDGE PRETTY MUCH COMMON

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KNOWLEDGE IN THE INTERNET NOW?

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MR. NASSIRI:

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THE COURT:

NO.

YOU HEAR ABOUT AND WE READ ABOUT

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ARTICLES AND ABOUT THERE IS NO PRIVACY ANY MORE, THE LOSS OF

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PRIVACY AND THIS META DATA AND ALL OF THESE THINGS.

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BECOMING COMMON KNOWLEDGE THAT PARENTS TELL THEIR FIVE-YEAR-OLD

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KIDS, WHEN YOU DO SEARCHES, YOU WILL BE DISCOVERED AND ALL OF

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THESE THINGS?

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ISN'T THAT

ISN'T IT COMMON KNOWLEDGE NOW?

MR. NASSIRI:

I WOULD SAY SINCE THE EDWARD SNOWDEN

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AFFAIR IT'S MORE PREVALENT.

PEOPLE TALK ABOUT IT AND I THINK

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THEY PAY LIP SERVICE TO IT, BUT EVEN THE PEOPLE IN THIS ROOM

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WHO HAVE STUDIED IT, I WOULD SAY THE EXTENT TO WHAT IS GOING

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ON, THE DEVIL IS IN THE DETAILS HERE, IT REALLY IS.

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PEOPLE I TALK TO KIND OF REALLY DON'T UNDERSTAND THE MECHANISMS

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FOR IT AND THE CONSEQUENCES.

AND MOST

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AND IN PARTICULAR THE QUESTION THAT YOU ASK THAT IS

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DIRECTLY RELEVANT HERE IS DO PEOPLE KNOW THAT WHEN THEY TYPE

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THEIR SEARCH QUERIES INTO GOOGLE, THAT THOSE SEARCH QUERIES MAY

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END UP BEING ASSOCIATED WITH THEM IN THE FUTURE?

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ANECDOTALLY PROBABLY NOT FOR MOST PEOPLE.

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THE COURT:

AND YOU THINK THAT THIS LAWSUIT WOULD

CURE THAT LACK OF KNOWLEDGE?

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MR. NASSIRI:

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THE COURT:

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I WOULD SAY

I WISH I COULD BE --

YOUR COLLEAGUE IS NODDING HIS HEAD UP

AND DOWN WHICH IS A UNIVERSAL SIGN FOR AGREEMENT I THINK.

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MR. NASSIRI:

YES.

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WELL, YOUR HONOR, THAT CERTAINLY

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IS THE GOAL AND I THINK WE ARE PUTTING TOGETHER A REALLY GOOD

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PROGRAM TO DO THAT, AND I THINK WE'RE GOING TO GO A LONG WAYS

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IN DOING THAT.

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THE COURT:

AND THE PIECE THAT ACCOMPLISHES THAT, I

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GUESS IT'S SPECIFIC TO GOOGLE IS THE FAQ THAT THEY'RE GOING TO

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ADD, I SUPPOSE?

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MR. NASSIRI:

SPECIFIC TO GOOGLE, YOUR HONOR, YES,

IN TERMS OF THE BUSINESS PRACTICE CHANGE.
AS WE ALREADY DISCUSSED, THEY'RE NOT GOING TO CHANGE THEIR

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PRACTICES PER SE, AND WE DON'T BELIEVE THAT THAT WOULD BE

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APPROPRIATE FROM THE SCOPE OF THE CLAIMS THAT WE BROUGHT.

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BUT THEY ARE GOING TO MAKE THEIR DISCLOSURES MORE ROBUST

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AND MORE PROMINENT AND THAT IN CONJUNCTION WITH THE NOTICE

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PROGRAM AND THE CY PRES EFFORTS AND GENERALLY THE CLIMATE IN

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THE MEDIA THESE DAYS I THINK WILL GO A LONG WAY IN KIND OF

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REALLY QUALITATIVELY INCREASING THE PUBLIC'S AWARENESS.

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THE COURT:

RESEARCH TELL US ABOUT LEADERSHIP OF FAQ'S?

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WHAT DO THE STUDIES TELL US AND THE

MR. NASSIRI:

WELL, THAT'S A GOOD QUESTION, YOUR

HONOR.

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THE COURT:

THANK YOU.

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MR. NASSIRI:

THAT'S WHY YOU SIT THERE.

I DON'T

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HAVE SPECIFIC NUMBERS FOR YOU.

I KNOW THAT THERE ARE A LOT OF

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COMMENTATORS OUT THERE AND CRITIQUES WHO SAY IT'S PRACTICALLY

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NIL AND IT'S NOT GOING TO DO ANYTHING.

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THE COURT:

WHAT DO YOU THINK?

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MR. NASSIRI:

I THINK IT'S A MIXED BAG, AND I DON'T

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THINK THAT THAT BY ITSELF WOULD BE SUFFICIENT TO MAKE SURE THAT

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PEOPLE HAVE INFORMED CONSENT AND THAT THEY KNOW WHAT THEY'RE

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DOING WHEN THEY ENTER SEARCH QUERIES.

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THE COURT:

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THAT?

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WHAT WOULD BE THE BEST WAY TO ACCOMPLISH

ACCOMPLISH THAT?

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THAT'S THE GOAL OF THE LAWSUIT.

MR. NASSIRI:

WHAT IS THE BEST WAY TO

HYPOTHETICALLY SPEAKING?

YOU KNOW,

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GOOGLE IS VERY, VERY, VERY PROTECTIVE OF THE REAL STATE ON ITS

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SEARCH PAGE.

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THERE'S NOT MUCH THERE.

IT HAS BEEN FOR A LONG TIME.

IT'S VERY BLANK.

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IF WE HAD REALLY, REALLY BIG FLASHING NEON WORDS THAT SAID

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YOUR DISCLOSURES MAY BE TRANSMITTED, YOUR SEARCH QUERIES MAY BE

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TRANSMITTED, THAT WOULD PROBABLY BE THE BEST RIGHT THERE AT THE

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TIME THE PEOPLE ARE GOING TO MAKE THIS DECISION, DO I WANT TO

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PUT THIS IN THE SEARCH BOX, THAT WOULD BE THE BEST.

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I DON'T THINK THAT WE CAN --

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THE COURT:

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PREVIEW OF WHAT IS TO COME HERE.

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YOU I'M GOING TO THROW YOU A FAST BALL AND IT'S A CURVE BALL

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AND SO YOU'LL HAVE THE BENEFIT OF THE STRIKE ZONE.

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I'LL ASK MR. JOHNSON ABOUT GIVING HIM A

MR. NASSIRI:
THE SECOND BEST.

IT'S LIKE THE PITCHER TELLING

WELL, YOUR HONOR, YOU KNOW, WE DO HAVE

GOOGLE DOES HAVE ON ITS SEARCH PAGE A LINK TO

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THE PRIVACY POLICY AND WITH THE ROBUST PUBLICATION AND NOTICE

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PLAN ALONG WITH THE EDUCATION AND THE OUTREACH --

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THE COURT:

I WANT TO TALK TO YOU ABOUT THAT IN A

MINUTE, TOO.

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MR. NASSIRI:

OKAY.

-- WE EXPECT THAT A LOT MORE

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PEOPLE WILL CLICK ON THE PRIVACY POLICY AND WHEN THEY DO THAT,

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IT WILL BE A LOT EASIER FOR THEM TO FIND THE FAQ'S AND SEE

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EXACTLY WHAT IT IS THAT GOOGLE DOES WITH SEARCH QUERIES.

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THE COURT:

OKAY.

YOU KNOW, THE EDUCATIONAL

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PROGRAMS, WE SEE THESE A LOT IN THESE CASES -- NOT A LOT BUT

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IT'S BECOMING WITH MORE FREQUENCY THAT RESOLUTIONS IN CASES

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RESULT IN CY PRES TO VARIOUS ORGANIZATIONS AND THINK TANKS AND

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STUFF LIKE THAT, THAT SUPPORT GREATER INFORMATION FOR CONSUMERS

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FOR THE PUBLIC.

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AND I'M CURIOUS, IT SEEMS LIKE THE STUDENTS SHOULD BE THE

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RECIPIENT OF THAT INFORMATION.

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WORLD?

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SHOULDN'T DO?

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PRIVACY LAW AND SHOULDN'T THERE BE AN EDUCATION FOR THE

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CORPORATE WORLD AS TO WHAT THEY'RE DOING?

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SHOULDN'T THAT BE THE CORPORATE

SHOULDN'T YOU BE EDUCATING THEM AS TO WHAT THEY
I MEAN, YOUR CLIENTS PART COMPANY WITH THIS

MR. NASSIRI:

CAN YOU -- I'M NOT SURE I UNDERSTAND

THE IMPORT OF THE QUESTION.
THE COURT:

YES, SURE.

YOU KNOW, THESE PROGRAMS,

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THESE INITIATIVES, THESE INDIVIDUALS THAT YOU HAVE IDENTIFIED

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HERE, THEY'RE GOING TO CREATE, I GUESS, RESEARCH AND EDUCATE

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THE PUBLIC.

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MR. NASSIRI:

AND SOME TECHNOLOGY AS WELL, YOUR

HONOR.

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THE COURT:

AND THE THOUGHT OCCURS TO ME, WELL,

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OKAY, BUT DON'T WE REALLY NEED TO EDUCATE THE CORPORATE WORLD

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OF GOOGLES AND WHOEVER DOES THIS THAT THIS IS WRONG?

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THAT WHAT YOUR PREMISE IS?

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MR. NASSIRI:

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THE COURT:

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ISN'T

WELL, THAT'S A LOADED QUESTION.

THAT'S WHY I ASKED IT.

MR. NASSIRI:

WE WANTED TO STAY WITHIN THE CONFINES

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OF THE LAWSUIT.

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THAT, AND I'M NOT SURE EXACTLY HOW TO STRUCTURE MY RESPONSE.

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AND, I MEAN, THERE ARE A LOT OF ANSWERS TO

BUT ONE IS THAT THAT SEEMS A LITTLE BIT BEYOND THE SCOPE

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OF WHAT WE'RE DOING HERE.

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SURE THAT PEOPLE ARE INFORMED AND GIVE INFORMED CONSENT.

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AGAIN, OUR PRIMARY CONCERN IS MAKING

ALSO THAT IS -- BY THE WAY, YOUR HONOR, I THINK ONE OF

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THE -- MAY I BRIEFLY EXPLAIN WHAT WE'RE DOING WITH CY PRES SO

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THAT --

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THE COURT:

SURE, SURE.

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MR. NASSIRI:

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THE COURT:

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MR. NASSIRI:

IT'S RELEVANT TO YOUR QUESTION.

PLEASE.

THANK YOU.

I BELIEVE WE'RE DOING SOMETHING NEW

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HERE AND SOME OF THE CRITIQUES ARE MISINFORMED ABOUT WHAT WE'RE

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DOING.

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WE ARE RAISING THE BAR, AND I THINK RAISING THE BAR FOR

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1
2

15

ALL CY PRES SETTLEMENTS LIKE THIS TO FOLLOW.
WE'RE TREATING THE CY PRES ALLOCATION MORE LIKE A GRANT

3

MAKING ORGANIZATION WOULD TREAT GRANT -- PROSPECTIVE GRANT

4

RECIPIENTS.

5
6

THE COURT:
LANE?

7
8
9

ISN'T THAT WHAT THEY TRIED TO DO IN

MR. NASSIRI:

IT'S WHAT THEY TRIED TO DO, BUT I

THINK WE'RE TAKING IT FURTHER.
AND SO -- AND I DON'T WANT TO MAKE -- OR I DON'T WANT TO

10

HAVE MY MOUTH WRITE CHECKS THAT WE CAN'T CASH ULTIMATELY, BUT I

11

THINK WE'LL GET THERE.

12

THE MONEY WILL TO SPECIFIC PROJECTS.

THIS MONEY THAT GOES

13

TO CY PRES RECIPIENTS IS NOT GOING TO DISAPPEAR INTO THEIR

14

GENERAL OVERHEAD.

15

PROJECTS, THOSE PROJECTS ARE BEING VETTED BY US VERY CAREFULLY

16

BEFORE WE EVEN PRESENT THEM TO THE COURT AND THE CLASS TO MAKE

17

SURE THAT THEY KIND OF ARE WITHIN THE CONFINES OF THE LAWSUIT

18

AND MEET SOME OF THE OBJECTIVES THAT WE HAVE FRAMED BY THE

19

LAWSUIT.

AND NOT ONLY WILL THE MONEY GO TO SPECIFIC

20

ONE OF THEM THAT MAY OR MAY NOT END UP BEFORE YOU, YOUR

21

HONOR, IS AN INITIATIVE BY THE BERKMAN CENTER AT HARVARD LAW

22

SCHOOL TO BRING TOGETHER --

23

THE COURT:

24

MR. NASSIRI:

25

IT'S YOUR ALMA MATER.
IT IS MY ALMA MATER AND SOME PEOPLE

HAVE RAISED AN OBJECTION TO THAT, AND I'M HAPPY TO DISCUSS

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2

16

THAT.
BUT WHAT ONE OF THE PROPOSALS THAT THEY HAVE BROUGHT TO

3

THE TABLE DOES HAVE A CORPORATE ANGLE TO IT, A

4

CORPORATE EDUCATION ANGLE.

5

KNOWS MORE ABOUT THIS THAN GOOGLE SO THEY SHOULD BE EDUCATING

6

US NOT VICE VERSA.

7

AN EDUCATION, BY THE WAY, NOBODY

SO -- BUT THIS KIND OF MULTIDISCIPLINARY DIALOGUE I THINK

8

IS IMPORTANT, AND IT'S SOMETHING THAT WE HOPE TO COVER AMONG

9

THE PROJECTS THAT WE'RE LOOKING AT FOR CY PRES WHERE YOU WOULD

10

BRING TOGETHER LEADERS FROM INDUSTRY LIKE GOOGLE, YOU WOULD

11

BRING TOGETHER PRIVACY ADVOCATES, AND LEGAL PROFESSIONALS AND

12

ENFORCEMENT, REGULATORY PEOPLE, AND SIT THEM DOWN IN A ROOM AND

13

GET EVERYBODY'S INPUT INTO WHAT IS GOING ON BECAUSE, AGAIN,

14

IT'S NOT A SIMPLE QUESTION TO JUST SAY, WELL, GOOGLE, YOU HAVE

15

TO STOP DOING THIS BECAUSE THERE'S A LOT OF BENEFIT TO WHAT

16

THEY'RE DOING.

17
18

ANOTHER PROJECT THAT WE'RE LOOKING AT -THE COURT:

SO THAT MIGHT ALSO -- I COULD ENVISION A

19

CONFERENCE WHERE A CLASS ACTION, PLAINTIFF'S CLASS ACTION

20

LAWYERS MEET WITH CORPORATE EXECUTIVES OF GOOGLE AND WHOEVER

21

ELSE, YAHOO AND THESE FOLKS, AND YOU TALK ABOUT THIS IS WHY WE

22

SUE YOU AND THESE ARE THE ISSUES THAT WE SEE OUR CLIENTS BRING

23

TO US, WE WANT TO BRING THIS TO YOUR ATTENTION AND HAVE THIS

24

KIND OF CONVERSATION IN SOME CONFERENCE LEVEL.

25

IS THAT WHAT YOU'RE SUGGESTING?

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MR. NASSIRI:

17

YOU KNOW WHAT, WE'RE NOT GOING TO

2

ALLOW ANY CLASS ACTION LAWYERS WITHIN MILES OF THAT ROOM.

I

3

DON'T THINK THEY'RE THE RIGHT KIND OF PEOPLE TO HAVE INVOLVED

4

IN THESE KINDS OF DISCUSSIONS.

5

NOW, THERE ARE A LOT OF PRIVACY ADVOCATES WHO SHARE THE

6

SAME KINDS OF INTERESTS THAT LAWYERS DO WHO BRING CASES LIKE

7

THIS, LIKE ME, AND I WOULDN'T CALL MYSELF A CLASS ACTION LAWYER

8

OR ANYTHING, THAT PUTS ME IN A BOX.

9

BUT, YOU KNOW, THIS IS NOT ABOUT LAWSUITS FROM MY

10

PERSPECTIVE OR FROM OUR PERSPECTIVE.

11

SOLVING A VERY COMPLICATED PROBLEM.

12

THIS IS MORE ABOUT

YOU KNOW, ANOTHER INITIATIVE WE ARE LOOKING AT IS --

13

BECAUSE THESE DATA SETS, HAVING UNRESTRICTED ACCESS TO DATA

14

SETS IS REALLY IMPORTANT FOR RESEARCH AND ADVANCING TECHNOLOGY

15

AND DEVELOPING THINGS THAT BENEFIT ALL OF US.

16

BALANCING THAT NEEDS TO TAKE PLACE.

17
18
19
20
21

SO THERE'S A

HOW DO YOU USE THIS STUFF AND PROTECT PEOPLE'S PRIVACY AT
THE SAME TIME?

SO THAT'S ONE INITIATIVE THAT WE'RE LOOKING AT.

ANOTHER ONE IS A TECHNOLOGY BASE.

SO THAT WOULD BE MORE

POLICY, YOU KNOW, POLICY ORIENTED.
ANOTHER INITIATIVE WE'RE CONSIDERING IS TECHNOLOGICAL AS

22

WELL, YOUR HONOR.

BUT THIS ONE IN PARTICULAR WOULD SAY THERE'S

23

A PROGRAM WHERE YOU HAVE HEALTH DATA, WHICH IS EXTREMELY

24

SENSITIVE, YOU HAVE THESE HUGE DATA SETS ON PEOPLE'S HEALTH

25

RECORDS AND HISTORY AND HOW DO YOU MAKE THAT DATA AVAILABLE TO

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PUBLIC HEALTH AND MEDICAL PROFESSIONALS IN A WAY THAT DOESN'T

2

VIOLATE PEOPLE'S PRIVACY WHERE NO ONE WOULD DOUBT THAT THOSE

3

18

ARE REALLY SENSITIVE DATA POINTS.

4

THE COURT:

5

WITH ME.

6

AND THANK YOU FOR SHARING THOSE IDEAS

THOUGHT OF?

7

AND THESE ARE IDEAS THAT YOU AND YOUR COLLEAGUES HAVE

MR. NASSIRI:

WE ARE WORKING COLLABORATIVELY TO

8

DESIGN PROGRAMS THAT WE THINK ARE GOING TO BE KIND OF RIGHT

9

SQUARELY ON POINT HERE FOR THIS LAWSUIT, BUT CERTAINLY THE

10

PEOPLE WE'RE TALKING TO ARE MUCH SMARTER THAN WE ARE AND KNOW A

11

LOT MORE ABOUT THIS STUFF.

12
13
14

THE COURT:

SO THAT WAS THE NEXT AREA OF INQUIRY I

HAVE.
DO YOU HAVE A WHITE BOOK OF PEOPLE THAT YOU WOULD LIKE TO

15

CONSULT OR CY PRES RECIPIENTS THAT YOU LOOK TO FOR THESE

16

ISSUES?

17
18

MR. NASSIRI:

IN THIS CASE IN PARTICULAR, YOUR

HONOR?

19

THE COURT:

YES.

20

MR. NASSIRI:

WELL -- SO IN THIS CASE IN PARTICULAR

21

WE DID -- SO CHRIS SOGHOIAN WHO PROVIDED A LOT OF THE

22

INFORMATION FOR THE COMPLAINT, HE'S A WELL-KNOWN PRIVACY

23

ADVOCATE WHO WORKS WITH A LOT OF THE INSTITUTIONS THAT

24

TYPICALLY RECEIVE CY PRES FUNDING, HE WEIGHED IN ON THIS AND HE

25

TALKED ABOUT KIND OF SOME OF THE PEOPLE THAT HE THOUGHT WOULD

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19

1

BE REALLY USEFUL FOR US TO SPEAK WITH AND THE UNIVERSE OF KIND

2

OF KNOWN INSTITUTIONS WHO DO THIS KIND OF WORK IS NOT THAT

3

LARGE.

4

SO WE HAD A KIND OF UNIVERSE, A WHITE BOOK, IF YOU WILL,

5

YOUR HONOR, BUT ALSO THIS WAS -- THERE WAS A NEGOTIATING ASPECT

6

TO THIS.

7

BETWEEN THE PLAINTIFFS AND GOOGLE.

8
9
10

WE HAD TO REACH AGREEMENT BETWEEN ALL PARTIES,

THE COURT:

WITH THE RECIPIENTS OR AS TO THE

RECIPIENTS?
MR. NASSIRI:

ABOUT, ABOUT -- THAT'S RIGHT.

NOW, I

11

WANT TO BE CLEAR, YOUR HONOR, WHILE GOOGLE DID -- WE DID HAVE

12

TO AGREE ON THE POTENTIAL POOL OF RECIPIENTS, GOOGLE'S

13

INVOLVEMENT GOES NO FURTHER THAN THAT.

14

SO THERE'S NO SITUATION HERE IN WHICH, YOU KNOW, LIKE IN

15

SOME OF THE PRIOR CLASS ACTIONS, CY PRES SETTLEMENTS WHERE

16

PEOPLE WILL CRITICIZE THEM BECAUSE THE DEFENDANTS KIND OF SAT

17

ON THE BOARDS OR WERE SOMEHOW CLOSELY AFFILIATED WITH THE

18

RECEIVING INSTITUTIONS.

19
20

THAT'S NOT THE CASE HERE, YOUR HONOR.
THE COURT:

OKAY.

SO THANK YOU, THANK YOU FOR THAT.

21

SO I'M CURIOUS ALSO, THE THOUGHT OCCURS TO ME, ARE WE

22

LOOKING AT YOU INDICATED INDIVIDUALS WHO TYPICALLY RECEIVE

23

CY PRES I THINK WERE THE WORDS YOU USED.

24
25

AND SO ARE WE LOOKING AT THE USUAL SUSPECTS THEN?
MR. NASSIRI:

I THINK EVERYONE ON OUR LIST HAS, HAS

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20

BEEN A RECIPIENT.

2

THE COURT:

I'M SURE SOMEONE KEEPS RECORDS AND

3

SOMEONE KEEP NOTES ABOUT WHAT INSTITUTION RECEIVES WHAT AND

4

WHAT THEY HAVE DONE WITH THOSE MONIES.

5

MR. NASSIRI:

WELL, IN THE CLASS ACTION CONTEXT

6

CERTAINLY, YOUR HONOR, IT'S ALL A MATTER OF RECORD BECAUSE

7

THEY'RE CLASS ACTIONS.

8
9

AND TO THE EXTENT THAT THERE IS KIND OF LESS PUBLIC
FUNDING GOING ON WITH THESE INSTITUTIONS, WE ARE REQUIRING THEM

10

TO PROVIDE US WITH THAT INFORMATION SO WE CAN PRESENT TO THE

11

COURT AND THE CLASS SO THAT YOUR HONOR AND THE CLASS CAN MAKE

12

THEIR OWN JUDGMENT ABOUT WHETHER THESE ARE INDEPENDENT

13

INSTITUTIONS THAT CAN BE RELIED UPON TO USE THE MONEY

14

OBJECTIVELY.

15

THE COURT:

YOU KNOW, THE THOUGHT -- THANK YOU.

THE

16

THOUGHT OCCURRED TO ME ALSO THAT THERE MAY BE SOME -- AND I

17

DON'T KNOW, I DON'T HAVE ANY PARTISAN FOR ANY SCHOOL.

18

JUST MENTION A SMALL SCHOOL, THE UNIVERSITY OF VERMONT, LET'S

19

SAY, OR SOME SMALL SCHOOL, THAT IS -- HAS STUDENTS AND HAS

20

PROFESSORS WHO ARE JUST REALLY INCHING TO START -- THEY'RE

21

EAGER TO GO, THEY HAVE GOT STUDENTS WHO ARE WILLING TO DEVOTE

22

RESEARCH, TIME, AND PROFESSORS, BUT THEY JUST DON'T HAVE THE

23

FUNDING.

24
25

I'LL

HAVE YOU LOOKED OUT FOR THOSE TYPE OF SCHOOLS OR
INSTITUTION TO SAY, GEE, MAYBE WE SHOULD -- WE'RE IN SILICON

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1

VALLEY AND MAYBE WE SHOULD ACT AS ANGELS HERE AND MAYBE WE

2

21

SHOULD CEDE SOME OF THOSE PROGRAMS?

3

MR. NASSIRI:

WE TOOK A BROAD LOOK, YOUR HONOR,

4

INCLUDING AT SOME OF KIND OF UPSTARTS, UNKNOWN STARTUPS IF YOU

5

WILL IN THE SPACE, AND A COUPLE OF THE POTENTIAL PROPOSED

6

RECIPIENTS I WOULD SAY RELATIVELY SPEAKING WOULD FALL INTO THAT

7

CATEGORY.

8

THE COURT:

THESE THAT YOU HAVE ON THE LIST HERE?

9

MR. NASSIRI:

YEAH.

I MEAN, I WOULDN'T CALL THEM

10

UNKNOWNS BUT THEY'RE RELATIVELY COMPARED TO AARP OR THE BERKMAN

11

CENTER, THEY'RE KIND OF NEWER PLAYERS.

12

THE COURT:

I HAVE TO CONFESS, AARP, I HAVE NEVER

13

SEEN AN AARP IDENTIFIED AS A RECIPIENT IN ONE OF THESE

14

LAWSUITS.

15

SO THAT WAS VERY INNOVATIVE.
MR. NASSIRI:

I BELIEVE THEY HAVE BEEN RECIPIENTS

16

BEFORE, BUT I DON'T HAVE THAT SPECIFIC INFORMATION AT MY

17

FINGERTIPS.

18

BUT WE FOCUSSED ON -- WE BELIEVE THE CASE LAW AND COURTS

19

BEFORE THIS HAVE WANTED SOME KIND OF REPUTATION AND TRACK

20

RECORD TO HELP KIND OF JUDGE WHETHER OR NOT.

21

THE COURT:

RIGHT.

22

MR. NASSIRI:

BUT BEYOND THAT, THESE -- THE ENTITIES

23

THAT WE'VE SELECTED AND MORE WELL-KNOWN ESTABLISHED ENTITIES,

24

THEY CAN DO MORE NOT JUST BECAUSE OF THE MONEY BUT BECAUSE OF

25

THEIR EXPERIENCE, THEIR CONNECTIONS, THEIR TRACK RECORD.

UNITED STATES COURT REPORTERS

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1

THE COURT:

NO DOUBT ABOUT IT.

2

MR. NASSIRI:

22

I UNDERSTAND.

AND EVEN, YOU KNOW, FOR EXAMPLE,

3

HAVING STANFORD CIS ON THE LIST, YOU KNOW, THOSE PEOPLE ARE

4

VERY WELL CONNECTED AND ARE -- I THINK THAT THEY STAND A BETTER

5

CHANCE, WITHIN THE TECH WORLD, AND -- BUT THEY STILL HAVE --

6

THEIR INTERESTS ARE IN THE RIGHT PLACE AND THEIR MISSION.

7
8
9

THE COURT:

I APPRECIATE THAT.

AND I GUESS WHAT I

WAS SUGGESTING IS WHAT ABOUT THE LITTLE GUY?
MR. NASSIRI:

YOU KNOW, WE HAVE A COUPLE OF LITTLE

10

GUYS ON THE LIST, AND THEY'LL PROBABLY RECEIVE LESS MONEY THAN

11

THE OTHERS BECAUSE THEY HAVEN'T PROVEN THEMSELVES TO THE EXTENT

12

THAT SOME OF THE OTHERS HAVE.

13
14

THE COURT:

AND THE OBSERVATION I'M LOOKING AT IT

FROM 30,000 FEET, HOW DO YOU GET STARTED?

15

MR. NASSIRI:

16

THE COURT:

YEAH.

YOU CAN'T EXPECT SOMEBODY FROM THE SMALL

17

SCHOOL WHO HAS ALL OF THE ENERGY OF STUDENTS AND PROFESSORS,

18

YOU CAN'T EXPECT THEM TO PRODUCE LIKE A STANFORD OR SOMEBODY

19

ELSE, BUT YOU HAVE TO GIVE THEM A CHANCE.

20

MR. NASSIRI:

TO BE SURE, YOUR HONOR, EVERYTHING

21

YOU'RE SAYING RESONATES WITH ME, AND I HAVE A LOT I WOULD DO IF

22

I HAD THE BILL GATES FOUNDATION KIND OF MONEY UNDER MY FINGERS.

23

BUT HERE --

24
25

THE COURT:

WELL, THIS IS A GOOD START.

SETTLEMENT.

UNITED STATES COURT REPORTERS

THIS IS A

Case5:10-cv-04809-EJD Document57 Filed08/27/13 Page23 of 50
1

MR. NASSIRI:

23

WELL, HERE WE FEEL LIKE WE HAVE A

2

RESPONSIBILITY TO THE CLASS.

3

APPLICABLE NINTH CIRCUIT PRECEDENT, AND I THINK THAT, YOU KNOW,

4

WE CAN'T GO OUT AND DO ALL OF THE THINGS THAT WE WOULD LIKE TO

5

DO.

IT WOULDN'T BE APPROPRIATE.

6
7
8
9

WE HAVE TO STICK WITHIN

THE COURT:

OF COURSE, OF COURSE.

I UNDERSTAND

THAT.
BUT IT'S A SIGNIFICANT AMOUNT OF MONEY COMING FROM A
PUBLIC EMPLOYEE.

THIS IS A LOT OF MONEY.

10

MR. NASSIRI:

11

MONEY, AND WE'RE EXCITED ABOUT IT.

I CAN'T WAIT TO PRESENT TO

12

YOU THE PROPOSAL AND TO THE PUBLIC.

AND I THINK IT'S GOING TO

13

BE A QUANTUM LEAP FROM WHAT HAS BEEN DONE IN THE PAST.

14

THE COURT:

I AGREE, YOUR HONOR, THIS IS A LOT OF

SO LET ME -- THANK YOU FOR THAT.

15

APPRECIATE THAT.

16

I

ME AS FAR AS THE CY PRES ISSUES.

17

I APPRECIATE THE COLLOQUY HERE AND THAT HELPS

THERE ARE SOME OTHER THINGS THAT I WOULD LIKE TO GO

18

THROUGH THE DOCUMENT WITH YOU.

19

IS DYING TO GET UP HERE AND TALK TO ME ABOUT HIS COMMENTS TO

20

THIS, BUT LET ME GO THROUGH SOME OF THESE ITEMS THAT I HAVE

21

IDENTIFIED IF I MAY, PLEASE.

22

I KNOW YOUR COLLEAGUE OPPOSITE

I'M LOOKING AT THE SETTLEMENT AGREEMENT.

I'M LOOKING

23

AT -- YES, 3.1 IS THE RELIEF PARAGRAPH, PAGES 6 AND 7.

AND I'M

24

JUST LOOKING AT MY NOTES.

25

QUESTION HERE AND MY NOTES ASK MYSELF, DOES THIS MEAN -- I'M

I THINK YOU HAVE ANSWERED THE

UNITED STATES COURT REPORTERS

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24

1

LOOKING ON PAGE 7, THE LAST SENTENCE -- THIS TELLS US THEN THAT

2

THIS POLICY, THIS PRACTICE WILL NOT CHANGE, THE CURRENT

3

PRACTICE WILL NOT CHANGE; IS THAT RIGHT?

4

MR. NASSIRI:

5

WITH SEARCH QUERIES, THAT'S RIGHT.

6

CONTEXT, YOUR HONOR, I DON'T REMEMBER THE EXACT DATE NOW, BUT

7

RIGHT AROUND THE TIME THAT THE SECOND MOTION TO DISMISS WAS

8

FILED IN THIS CASE GOOGLE DID MAKE SOME CHANGES, IMPORTANT

9

CHANGES.

10
11

IN TERMS OF WHAT GOOGLE DECIDES TO DO
NOW, TO GIVE IT SOME

WHETHER OR NOT OUR LAWSUIT HAD ANYTHING TO DO WITH

IT, I DON'T KNOW.
BUT GOOGLE CHANGED ITS POLICY ON DISCLOSING SEARCH QUERIES

12

SO THAT FOR GOOGLE ACCOUNTHOLDERS WHO ARE SIGNED IN AND DO

13

SEARCHES, SO LONG AS THEY DON'T CLICK ON PAID ADVERTISEMENTS,

14

THEIR SEARCH QUERIES ARE NO LONGER DISCLOSED.

15

THE COURT:

16

CONSUMERS KNOW THAT?

17

AND HOW DO THEY KNOW THAT?

HOW DO

IS THAT ON THE FAQ PAGE?

MR. NASSIRI:

IT IS, YOUR HONOR.

I BELIEVE THERE

18

WAS A BLOG POST THAT GOT A LOT OF PRESS AT LEAST IN THE TECH

19

COMMUNITY THAT REPORTED THIS CHANGE.

20

THE COURT:

IS THERE A -- CAN YOU TELL ME, IN THE

21

INTERNET SPHERE, IS THERE A CERTAIN OR IDENTIFIABLE PAGES THAT

22

PEOPLE GO TO REGARDING PRIVACY ISSUES?

23

MR. NASSIRI:

THERE ARE.

SOME OF -- SO TECHCRUNCH

24

DOES A LOT OF REPORTING ON PRIVACY ISSUES.

REDDIT, WHICH IS A

25

HUGE SITE, ALSO DOES A LOT OF REPORTING AND THERE ARE OTHERS.

UNITED STATES COURT REPORTERS

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1

THE COURT:

25

SO THIS INFORMATION HAS PROBABLY BEEN

2

POSTED ON THOSE SITES?

3

MR. NASSIRI:

ABSOLUTELY, ABSOLUTELY.

ERIC

4

GOLDMAN -- YOU'RE PROBABLY FAMILIAR WITH ERIC GOLDMAN.

5

ARE A LOT OF PEOPLE WHO ARE WELL PUBLISHED ON THE INTERNET, AND

6

THEY'RE REPUBLISHED AND THEIR STORIES ARE PICKED UP AND THIS

7

WAS ONE OF THEIR STORIES.

8
9

THE COURT:

THERE

THIS GETS BACK TO MY POINT, MAYBE IF NOT

COMMON KNOWLEDGE, IT AT LEAST HAS GREATER KNOWLEDGE NOW ABOUT,

10

THE PUBLIC HAS GREATER KNOWLEDGE ABOUT THIS ISSUE AND ABOUT

11

WHAT GOOGLE DOES AND DOESN'T DO.

12

MR. NASSIRI:

WELL, YES AND NO, YOUR HONOR.

I

13

BELIEVE THAT THAT UNIVERSE IS KIND OF A SUBUNIVERSE OF KIND OF

14

TECHY GEEK ORIENTED PEOPLE.

15

NEVER SEEN THAT STORY.

16

THE COURT:

SURE.

MY WIFE, FOR EXAMPLE, WOULD HAVE

SO SOMEBODY'S 72 YOUNG GREAT AUNT

17

WHO LIVES IN GRINNELL, IOWA IN A LOVELY RANCH HOUSE AND SHE

18

GETS INTERNET FOR THE FIRST TIME AND SHE HAS THIS LOVELY 486

19

COMPUTER THAT HER GRANDSON, PERHAPS, GAVE HER AND SAID, NO, NO,

20

LET ME UPDATE YOU AND LET ME GET YOU SOMETHING NEW AND ALL YOU

21

HAVE TO DO IS PUSH THE BUTTON AND SHE GETS THIS AND CLICKS ON

22

IT, SHE'S NOT GOING TO GO TO AN FAQ.

23

MR. NASSIRI:

SHE MIGHT NOT, YOUR HONOR.

BUT,

24

AGAIN, SOME OF THE PROPOSALS WE'RE LOOKING AT WILL TARGET

25

PEOPLE WHO ARE LESS LIKELY TO RECEIVE THE MESSAGE THROUGH OTHER

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1

CHANNELS.

2

26

SO YOUNG PEOPLE AND OLDER PEOPLE IS WHO I'M

REFERRING TO.

3

THE COURT:

4

MR. NASSIRI:

5

WE'VE KIND OF DIVIDED.

6

THAT THEY HAVE PUT ON THE TABLE.

7
8

AARP, THAT'S WHY AARP IS IN THERE.
I'M NOT ACTUALLY NOT TALKING TO AARP.
SO I'M NOT SURE OF ALL OF THE PROPOSALS

BUT, YEAH, EVEN HARVARD OR THE BERKMAN CENTER HAS DONE
SOME WORK THAT IS AIMED AT THOSE DEMOGRAPHICS.

9

THE COURT:

SO LET ME -- THANK YOU.

SO LET ME TURN

10

TO THE CLASS NOTICE FOR A MOMENT.

11

I'M AT PAGE 3 AND AT THE BOTTOM IT'S UNDER THE BASIC

12

INFORMATION TITLE, I THINK, AND THE LAST SENTENCE AND IT TALKS

13

ABOUT MORE INFORMATION.

14

REFERRER HEADERS.

15

AND JUST GOING THROUGH THIS,

THERE'S REFERENCE TO ABOUT THESE

AGAIN, YOU REFER THE INDIVIDUAL TO THE FAQ AND KEY TERM

16

PAGES, I GUESS, IS THAT -- WHAT IS THE PURPOSE OF HAVING THIS

17

HERE?

18

MR. NASSIRI:

WELL, ANY OPPORTUNITY TO GIVE PEOPLE

19

INFORMATION BECAUSE, ADMITTEDLY, I MEAN, REALLY WHEN YOU USE

20

THE TERM "REFERRER HEADERS," EVEN MORE PEOPLE ARE GOING TO TUNE

21

OUT.

THEY'RE NOT GOING TO KNOW WHAT THAT IS.

22

SO BECAUSE "REFERRER HEADER" IS A TECHNICAL TERM THAT

23

APPEARS THROUGHOUT THE COMPLAINT AND HERE IN THE NOTICE WE

24

WANTED TO GIVE PEOPLE AN OPPORTUNITY WHO ARE INTERESTED AT THIS

25

STAGE TO GET MORE INFORMATION ABOUT IT.

UNITED STATES COURT REPORTERS

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1
2

THE COURT:

OKAY.

THANK YOU.

27

AND I'M TURNING TO

PAGE 4 UNDER PARAGRAPH 3, WHY IS THERE A SETTLEMENT?

3

MR. NASSIRI:

4

THE COURT:

UH-HUH.

THE LAST SENTENCE THERE DESCRIBES COSTS,

5

I GUESS.

6

AND THE CLASS WILL RECEIVE RELIEF WHEN THE SETTLEMENT IS FINAL

7

RATHER THAN YEARS FROM NOW, IF AT ALL.

8

IS THAT KIND OF MISLEADING?

9

THAT WAY THEY AVOID THE COSTS AND RISKS OF A TRIAL

MR. NASSIRI:

10

THE COURT:

NO.

"THE CLASS WILL RECEIVE RELIEF," I READ

11

THAT AND AT FIRST BLUSH I THOUGHT, AND I'M TRYING TO PUT MYSELF

12

LIKE A GREAT AUNT WHO LIVES IN GRINNELL OR SOMETHING LIKE THAT.

13

WELL, AM I GOING TO GET RELIEF FROM THIS?

IS THERE

14

SOMETHING IN THE AGREEMENT THAT SAYS YOU WILL NOT RECEIVE

15

ANYTHING, BUT WHAT YOU WILL RECEIVE IS ACCESS TO AN ENHANCED

16

FAQ?

17

NOT IN THAT LANGUAGE I'M CERTAIN BUT -MR. NASSIRI:

WELL, YOUR HONOR, SO THERE'S NOTHING

18

IN HERE THAT SAYS THAT YOU WILL NOT RECEIVE DIRECT

19

REMUNERATION.

20
21

THE COURT:

IS THAT SOMETHING THAT YOU THINK THE

CLASS SHOULD KNOW?

22

MR. NASSIRI:

23

THE COURT:

YES, IT IS.

I THOUGHT SO.

IT SEEMED TO ME THAT TO

24

BE A FULL NOTICE, MAYBE A CLASS MEMBER SHOULD KNOW THAT I'M NOT

25

GOING TO RECEIVE ANYTHING AS A CLASS MEMBER.

UNITED STATES COURT REPORTERS

HOWEVER, FOR THE

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28

1

GREATER GOOD, THE CY PRES IS RECEIVING THIS AMOUNT AND THIS IS

2

WHAT IS HOPEFULLY WILL HAPPEN FROM THOSE RECIPIENTS.

3

BUT AS AN INDIVIDUAL MEMBER, AS AN INDIVIDUAL PLAINTIFF

4

I'M NOT GOING TO RECEIVE ANYTHING.

5

AND UNLESS, AND I'LL HEAR FROM MR. JOHNSON ABOUT THIS, UNLESS

6

PERHAPS ONE OF THE MEASURES OF SETTLEMENT IS THAT GOOGLE HAS AN

7

EPIPHANY AND SAID YOU KNOW WHAT, WE'RE GOING TO EITHER STOP

8

DOING THIS OR WE'LL STOP DOING THIS FOR SIX MONTHS.

9

THE NEXT SETTLEMENT AGREEMENT.

10
11
12

I WON'T GET REMUNERATION,

I'M NOT TRYING TO MESS WITH YOUR DEAL.

AND THAT'S

I'M JUST TRYING TO

SUGGEST THAT THAT IS SOMETHING ELSE THAT MIGHT COME UP.
BUT THEY SHOULD KNOW, SHOULDN'T THEY?

13

MR. NASSIRI:

14

WOULD LIKE THEM TO DO.

15

THE COURT:

I CAN THINK OF A LOT OF THINGS THAT I

I'M TALKING ABOUT YOUR CLIENTS,

16

SHOULDN'T THEY KNOW THAT THEY'RE NOT GOING TO RECEIVE ANYTHING

17

SPECIFICALLY?

18

MR. NASSIRI:

WELL, IT'S HERE BECAUSE THE -- WHERE

19

THAT IS DISCLOSED IS IN THE NEXT SECTION OF THE SETTLEMENT

20

BENEFITS.

21

THE COURT:

RIGHT.

22

MR. NASSIRI:

SO I BELIEVE WHAT YOU'RE SAYING, YOUR

23

HONOR, IS THAT IT SHOULD BE KIND OF SIMPLER AND KIND OF STATED

24

MORE DIRECTLY.

25

THE COURT:

I THINK SO, I THINK SO.

UNITED STATES COURT REPORTERS

JUST IN, YOU

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1
2

29

KNOW, KIND OF LANGUAGE THAT A LAYPERSON MIGHT GRASP.
AND I AGREE WITH YOU, IT IS CAPTURED, ON PAGE 4, THE NEXT

3

BOLD TITLE IS THE SETTLEMENT OF BENEFITS AND WHAT DOES THIS

4

SETTLEMENT PROVIDE AND YOU START OFF WITH THE EIGHT AND A HALF

5

MILLION DOLLARS.

6
7

AND IF SOMEONE, YOU KNOW, READS THAT, THEY THINK, WOW, YOU
KNOW, I'M GOING TO ORDER THE MASERATI RIGHT NOW.

8
9

MR. NASSIRI:

ABOUT 300 OTHER MILLION PEOPLE THAT THEY ARE GOING TO SHARE?

10

THE COURT:

11

MR. NASSIRI:

12

AND THEN THEY REALIZE THAT THERE'S

THAT'S RIGHT.
AND, OH, MAYBE I SHOULD PUT THAT ORDER

ON HOLD.

13

THE COURT:

THAT'S RIGHT.

I'M SUGGESTING THAT IS,

14

YOU KNOW, SOME -- AND WE'RE NOT GOING TO WORD SMITH IT NOW, BUT

15

I'M SUGGESTING THAT MAYBE SOMETHING COULD BE INSERTED THAT

16

LET'S THE INDIVIDUAL CLASS MEMBER KNOW THAT YOU WILL NOT BE

17

RECEIVING OR YOUR SHARE OF THIS BECAUSE OF THE SIZE OF THE

18

CLASS, I DON'T WANT TO WORD SMITH AND TELL YOU WHAT TO DO, BUT

19

SOME INFORMATION THAT LET'S THEM KNOW THAT THERE IS NOT GOING

20

TO BE, THERE'S NOT AN EXPECTATION OF REMUNERATION, PERSONAL

21

REMUNERATION.

22

MR. NASSIRI:

23

THE COURT:

I UNDERSTAND THAT, YOUR HONOR.

AND YOU DO CAPTURE THAT IN WHAT I TURN

24

INTO A BULLET POINT IN MY NOTES, TO PROMOTE PUBLIC AWARENESS,

25

ET CETERA.

BUT I THINK A NEXUS, JUST TO LET THE INDIVIDUALS

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1

30

KNOW.

2

I THINK IN YOUR SUPPLEMENTAL THAT YOU ANSWERED THE OTHER

3

QUESTION I HAD WHICH WAS NUMBER 12, PARAGRAPH 12, UNDER LAWYERS

4

REPRESENTING YOU AND THE TRIPLE X FOR THE FEES AND THINGS,

5

YOU'LL INSERT THAT APPROPRIATELY.

6

MR. NASSIRI:

7

THE COURT:

8

YES, YOUR HONOR.

THE NEXT ITEM THAT I HAD WAS THE NOTICE

AND SPECIFICALLY THE OBJECTING, ANY OBJECTORS.

9

YOU'RE GOING TO PROVIDE, I THINK, DOCUMENTS FOR PLAINTIFFS

10

TO, OR CLASS MEMBERS TO SIGN AND JOIN THE CLASS, I THINK.

11

THAT RIGHT?

IS THERE PREPRINTED FORMS OR SOMETHING?

12

MR. NASSIRI:

13

THE COURT:

14

OUT?

YES, TO BECOME MEMBERS OR NOT TO OPT

MR. NASSIRI:

THE COURT:

18

MR. NASSIRI:

20

WELL, THIS IS NOT AN OPT IN.

TO

OPT OUT, YES, YOUR HONOR.

17

19

DID YOU SAY TO JOIN THE CLASS?

EXCUSE ME.

15
16

IS

RIGHT.
YES, WE WILL PROVIDE THAT ON THE

WEBSITE.
THE COURT:

AND THE THOUGHT OCCURRED TO ME THAT WHAT

21

MIGHT BE HELPFUL IS THAT IF THERE ARE THOSE OPT OUT FORMS, AND

22

THEN AS TO OBJECTORS, ARE YOU GOING TO PROVIDE A FORM FOR

23

OBJECTORS TO FILL OUT AND PREPARE?

24

MR. NASSIRI:

25

I DON'T BELIEVE WE PLANNED ON THAT,

YOUR HONOR.

UNITED STATES COURT REPORTERS

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1

THE COURT:

31

AND I WAS THINKING, JUST BECAUSE OF THE

2

SIZE OF THE CLASS, BUT IT MIGHT BE HELPFUL TO THE COURT, AND I

3

HOPE IT WOULD BE HELPFUL TO THE PARTIES, THAT IF THOSE

4

OBJECTIONS WERE RECEIVED, IF THEY WERE IN SOME KIND OF A

5

UNIFORM TYPE OF FORMAT, PARDON ME, AND IF THAT COULD BE

6

PREPARED AND PROVIDED FOR OBJECTOR'S USE, IF THERE ARE ANY, I

7

THINK THAT'S BETTER THAN RECEIVING THREE-BY-FIVE CARDS THAT ARE

8

IN HANDWRITTEN AND IN SMALL, SMALL TYPE -- THAT WOULD BE

9

HELPFUL TO ME SHOULD THAT --

10
11

MR. NASSIRI:

I DON'T ANTICIPATE ANY OBJECTIONS BUT,

YES, YOUR HONOR.

12

THE COURT:

ALL RIGHT.

13

MR. NASSIRI:

GREAT.

ONE QUESTION ABOUT THAT, YOUR HONOR.

14

SO THE FORM, DID YOU ENVISION THAT IT WOULD BE MANDATORY OR

15

OPTIONAL?

16

THE COURT:

17

MR. NASSIRI:

18

THE COURT:

19

FOR AN OBJECTION?
TO USE THE OBJECTION FORM?

I THINK MANDATORY.

I WOULD LIKE

OBJECTIONS TO BE PROVIDED IN A FORM THAT IS PROVIDED BY YOU.

20

NOW, IF THERE ARE OBJECTORS, WE KNOW WE WILL RECEIVE

21

LETTERS OUTSIDE OF THIS, AND THAT'S JUST NORMAL, BUT I'D LIKE

22

AT LEAST THE ATTEMPT TO BE MADE SO THAT WE CAN KIND OF PROVIDE

23

SOME TYPE OF A UNIVERSAL, UNIVERSAL FORM, IF YOU WILL.

24
25

MR. NASSIRI:
TERMS OF LENGTH?

AND SHOULD THERE BE A RESTRICTION IN

BECAUSE I WAS BEING A LITTLE FACETIOUS ABOUT

UNITED STATES COURT REPORTERS

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1

NOT EXPECTING ANY OBJECTORS WITH A CLASS THIS SIZE.

2

THE COURT:

3

MR. NASSIRI:

4

32

I KNEW THAT.
RIGHT.

AND SO WOULD IT BE USEFUL TO

THE COURT --

5

THE COURT:

6

WELL, I DON'T THINK THAT WE SHOULD SAY

IN 25 WORDS OR LESS.

7

MR. NASSIRI:

8

THE COURT:

ALL RIGHT, 30.

BUT YOU ARE TOO YOUNG TO KNOW, BUT THERE

9

USED TO BE THESE CONTESTS ALL OF THE TIME AND THEY'D SAY IN

10

25 WORDS OR LESS, TELL US WHY PROCTOR AND GAMBLE WOULD GIVE

11

AWAY WASHING MACHINES, OR SOMETHING.

12

IN 25 WORDS OR LESS TELL US WHY YOU THINK -- WHO YOUR

13

FAVORITE FIGURE IS ON MOUNT RUSHMORE AND WHY.

14

OVER THE COUNTRY WOULD SEND IN AND SOMEHOW THEY WOULD GIVE

15

WASHERS AWAY THAT WAY.

16

NO, NO.

AND PEOPLE ALL

I THINK THAT THE FORM CAN BE PRESENTED.

YOU CAN

17

-- I DON'T KNOW, IN AN 8-AND-A-HALF-BY-AN-11 PAGE ENTER YOUR

18

COMMENTS HERE.

19

AND THEN THE NEXT QUESTION IS AT THE BOTTOM RIGHT-HAND

20

CORNER, JUDGE, DO WE PUT IN -- ATTACH ADDITIONAL PAGES IF

21

NECESSARY.

22

MR. NASSIRI:

23

THE COURT:

24
25

YOU READ MY MIND.

AND SHOULD THERE BE ADDITIONAL LANGUAGE

THAT SAYS LIMITED TO INSERT NUMBER HERE?
MR. NASSIRI:

RIGHT.

UNITED STATES COURT REPORTERS

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1
2
3

THE COURT:

33

THERE PROBABLY SHOULD BE SOME

LIMITATION, I SUPPOSE.
AND WE COULD LOOK TO THE LOCAL RULES OF COURT THAT LIMIT

4

THE NUMBER OF PAGES FOR PLEADINGS.

5

AND FOR YOUR POSITION, I EXPECT YOU WOULD LIKE TO SAY YOU WOULD

6

LIKE TO BACK OFF FROM THAT?

7

MR. NASSIRI:

I SUPPOSE THAT'S A START

I DON'T WANT TO GET IN THE WAY OF DUE

8

PROCESS, YOUR HONOR, AND THAT'S, YOU KNOW, I THINK IT'S

9

PROBABLY A DECISION THAT I WOULD LIKE FOR THE COURT TO MAKE.

10

THE COURT:

OKAY.

BUT I'D LIKE IT TO BE KEPT IN

11

SOME KIND OF A FORM LIKE THAT SO THAT WE CAN, WE CAN LOOK AT

12

THAT AND THEN I'LL MAKE THAT DECISION.

13

MR. NASSIRI:

14

THE COURT:

15
16

THE COURT:

19

MR. JOHNSON:

20

THE COURT:

24
25

ALL RIGHT.

WELL,

WHY DON'T I HEAR FROM MR. JOHNSON FOR JUST A MOMENT.

18

23

ALL RIGHT.

THAT'S -- I THINK THAT WAS HELPFUL TO ME.

MR. NASSIRI:

22

OKAY.

GOOD.

17

21

THANK YOU.

THANK YOU.

YOU'RE WELCOME.

GOOD MORNING.

GOOD MORNING, YOUR HONOR.

WELL, ARE YOU READY TO HIT THE FAST BALL

OR CURVE WHEN I TOLD YOU IT WAS COMING?
MR. JOHNSON:

I HAVE BEEN HIM LIMBERING UP AT

COUNSEL TABLE, YOUR HONOR.
THE COURT:

SO LET'S TALK ABOUT THE NOTICE FIRST AND

THE THOUGHT OCCURRED TO ME THAT THE BEST FORM OF NOTICE FOR

UNITED STATES COURT REPORTERS

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34

1

THIS, SHOULDN'T THAT BE FOR GOOGLE TO PUT IT ON THEIR, WHATEVER

2

IT IS, THEIR HOME PAGE, CLICK HERE FOR INFORMATION ABOUT

3

EXCITING LAWSUIT THAT YOU MAY BE A PARTY TO?

4

MR. JOHNSON:

WELL, YOUR HONOR, I THINK THAT THERE

5

ARE -- THERE WOULD BE MANY COMPETING, YOU KNOW, INTEREST GROUPS

6

WHO WOULD LOVE TO DO THAT.

7

I THINK THAT THE QUESTION BEFORE THE COURT AND THAT THE

8

QUESTION THAT THE PARTIES NEGOTIATED AT LEAST HOW CAN WE LET

9

PEOPLE KNOW ABOUT THIS?

10

AND IT'S NOT JUST THE FAQ SECTION AND IT'S NOT JUST THE

11

KEY TERM, BUT THERE'S AN ELABORATE ADVERTISING CAMPAIGN WITH

12

BANNER ADS ON THE MOST POPULAR WEBSITES THAT ARE DESIGNED TO

13

LET PEOPLE KNOW, AND EXACTLY THE WAY THAT THE PEOPLE ARE USING

14

THE INTERNET AND SEARCHING THE INTERNET, WHERE ARE THEY LIKELY

15

TO BE.

16

BE ON A VARIETY, IF THEY'RE TAKING OUT ADVERTISING ON A VARIETY

17

OF SITES, TO LET PEOPLE KNOW ABOUT THE SETTLEMENT.

18

AND IT WOULDN'T EVEN BE JUST GOOGLE, AND IT'S GOING TO

AND WITH RESPECT TO THE PEOPLE WHO CARE ABOUT, YOU KNOW,

19

THESE ISSUES IN PARTICULAR, THEY ARE FREQUENT VISITORS AND

20

FREQUENT COMPARERS OF CHANGERS IN FACTS AND TERMS AND THOSE

21

PEOPLE GET A LOT OF PUBLICITY AND THIS LAWSUIT HAS ALREADY

22

GOTTEN A LOT OF PUBLICITY.

23

SO TO THE EXTENT THAT IT WAS THE GOAL OF PLAINTIFFS IN THE

24

FIRST PLACE, YOU KNOW, IT'S A GOAL THAT HAS PARTLY BEEN

25

ACCOMPLISHED BUT WILL BE FURTHER ACCOMPLISHED THROUGH THE, YOU

UNITED STATES COURT REPORTERS

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35

1

KNOW, PROVIDED AD CAMPAIGN WHICH IS DESIGNED TO CREATE I THINK

2

200 MILLION IMPRESSIONS.

3

THE COURT:

SO YOU THINK THAT THE -- WHAT YOU'RE

4

TELLING US, MR. JOHNSON, WHAT YOU HAVE NEGOTIATED WITH COUNSEL

5

IS FAIR NOTICE AND IT PROVIDES FAIR NOTICE AND CAPTURES THE

6

WIDEST POSSIBLE UNIVERSES THAT YOU CAN?

7

MR. JOHNSON:

YEAH, IT'S DESIGNED -- I MEAN, THE

8

HEART OF THEIR LAWSUIT, YOUR HONOR, AND SINCE WE'RE HERE TO

9

TALK ABOUT SETTLEMENT, I WON'T GO INTO THE MERITS, BUT THE

10

HEART OF THEIR LAWSUIT IS THAT THESE REFERRER HEADERS, WHICH

11

ARE VISIBLE, THE SEARCH QUERIES WHICH ARE VISIBLE AND THE TERMS

12

ARE VISIBLE IN THE LITTLE WHITE LINE, YOU KNOW, THAT THAT

13

WASN'T DISCLOSED, THAT PEOPLE DIDN'T KNOW THAT WHEN THEY WERE

14

CLICKING THAT THE PAGE THAT THEY CLICKED TO COULD SEE IT.

15

THIS SETTLEMENT PROCESS, NOT TO MENTION ALL OF THE

16

PUBLICITY ASSOCIATED WITH THE LAWSUIT, IS DESIGNED TO

17

ACCOMPLISH THAT, TO LET PEOPLE KNOW.

18
19

THE COURT:

SO IT'S A NOTICE LAWSUIT FROM YOUR

PERSPECTIVE?

20

MR. JOHNSON:

21

THE COURT:

22

MR. JOHNSON:

YES, YOUR HONOR.

THAT IS WHAT IT IS ABOUT?
AND THEY SAY THAT.

YOU KNOW, ASIDE

23

FROM, YOU KNOW, QUESTIONS OF HARM, I DON'T THINK ANYONE IS

24

ALLEGING ECONOMIC HARM.

25

I THINK THE COURT FOUND IN ONE OF ITS OPINIONS IN GAOS

UNITED STATES COURT REPORTERS

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36

1

THAT THERE WAS NO IMMINENT THREAT TO PEOPLE.

2

4 OF THE CONSOLIDATED COMPLAINT SAYS THAT, YOU KNOW, TYPICALLY

3

THERE'S NOT A WAY OF SEEING WHO MADE THE SEARCH IN THE FIRST

4

PLACE, HENCE A PRIVACY ISSUE.

5

I MEAN, PARAGRAPH

I THINK THAT THE LAWSUIT AND THE NOTICE AND THE RELIEF

6

PROVIDED FOR MORE THAN ACCOMPLISHES THE, THE GOAL THAT THE

7

PLAINTIFFS HAD IN THE FIRST PLACE.

8
9
10
11
12

THE COURT:

WHAT ABOUT THESE -- YOU HEARD ME SPEAK

WITH YOUR COLLEAGUE OPPOSITE ABOUT THESE CHANGES AND AT LEAST
OBSERVATIONS THAT I HAVE.
ANY COMMENT YOU WANT TO MAKE AS TO ANY OF THOSE?
MR. JOHNSON:

WELL, YOUR HONOR, I THINK THAT JUST

13

WITH RESPECT TO THE RELIEF REQUESTED, I THINK THOSE WOULD BE

14

THINGS THAT WE WOULD BE, YOU KNOW, HAPPY TO DISCUSS AND COME UP

15

WITH SOMETHING THAT FULLY SATISFIES THE COURT.

16

I THINK YOUR HONOR FOCUSSED ON PARAGRAPH 3.

PARAGRAPH 5

17

OF THE NOTICE TALKS ABOUT WHAT THE RELIEF IS, AND I THINK THE

18

COURT ALLUDED TO THAT A MOMENT AGO.

19

I THINK THAT WITH RESPECT TO THE FORM FOR OBJECTORS, I

20

THINK THAT I WILL SAY, NOT HAVING HAD A CHANCE TO TALK WITH MY

21

CLIENT, IT STRIKES ME AS CERTAINLY A PRACTICAL THING AND A

22

THING THAT I WOULD UNDERSTAND THE COURT WOULD WANT.

23

THE ONLY QUESTION I WOULD RAISE ABOUT THAT IS, YOU KNOW,

24

WOULD AN OBJECTOR USE IT AS A POSSIBLE APPEAL POINT THAT THE

25

COURT LIMITED ME TO A FIVE PAGE, YOU KNOW?

AS THE COURT KNOWS,

UNITED STATES COURT REPORTERS

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1

PEOPLE CAN BE VERY CREATIVE NOT JUST IN BRINGING LAWSUITS BUT

2

37

IN OBJECTING TO SETTLEMENTS OF LAWSUITS.

3

THE COURT:

WELL, THAT'S WHY I WAS SUGGESTING

4

PERHAPS IF THERE'S A PAGE LIMIT, IF IT IS CREATED AND THERE IS

5

A FORM.

6

AND MAYBE I'M GOING TO ASK YOU TO CREATE THE FORM, JUST SO

7

THAT I CAN LOOK AT IT AND SEE AND THINK ABOUT IT IF THERE IS A

8

PAGE LIMIT ON IT, MAYBE IT WOULD MEET THE LOCAL RULES FOR

9

PLEADING PURPOSES AND YOU'RE RIGHT TO POINT OUT ANY DUE PROCESS

10

ISSUES.

11

OR LESS.

12

I CERTAINLY DON'T WANT TO LIMIT PEOPLE TO THE 25 WORDS

MR. JOHNSON:

I THINK THAT'S HOW THELMA RITTER MADE

13

HER WAY TO HOLLYWOOD, YOUR HONOR, THE GREAT CHARACTER ACTOR,

14

SHE WON ONE OF THOSE.

15

THE COURT:

16
17

SOMEONE HAS GOT TO WIN.

AND SOMEONE

DOES ALWAYS.
THAT'S A GOOD SUGGESTION, AND I THINK I WOULD LIKE YOU TO

18

CREATE THOSE FORMS SO WE CAN LOOK AT THEM AND SEE IF IT'S

19

PRACTICAL TO ACTUALLY DO THAT.

20
21

LET'S SEE, AND THE ESTIMATE FOR THIS NOTICE IS UP TO A
MILLION DOLLARS; IS THAT RIGHT?

22

MR. JOHNSON:

23

ADMINISTRATOR PROVIDED.

24
25

THE COURT:
ABOUT THAT FIGURE?

I BELIEVE THAT'S WHAT THE

AND IS THAT A -- DO YOU KNOW ANYTHING

IS THAT A HARD FIGURE OR IS THAT KIND OF A

UNITED STATES COURT REPORTERS

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1

MUSHY FIGURE?

2
3
4
5

I MEAN, A MILLION DOLLARS FOR NOTICE?

MR. JOHNSON:

IT WAS PREPARED BY PROFESSIONALS WHO

WERE IN THE BUSINESS OF ENGAGING IN THESE KINDS OF NOTICES.
IT'S MY UNDERSTANDING THAT IT WAS A WELL VETTED FIGURE AND
WE'LL ACCOMPLISH THEIR 200 MILLION IMPRESSIONS GOAL.

6

THE COURT:

7

MR. EDWARDS:

8

38

OKAY.
YOUR HONOR, I APOLOGIZE FOR

INTERRUPTING BUT I JUST WANTED TO COMMENT.

9

THE COURT:

10

NO PROBLEM AT ALL.

MR. EDWARDS:

IN EXHIBIT 4(C) OF THE SUBMISSION THAT

11

THE PLAINTIFFS MADE ON THE MOTION FOR A PRELIMINARY APPROVAL,

12

THERE'S AN ITEMIZATION OF HOW THAT FIGURE IS DERIVED AND

13

MR. ASCHENBRENER HAS HAD THE MOST CLOSE COMMUNICATIONS WITH THE

14

NOTICE ADMINISTRATOR ABOUT THAT.

15

I BELIEVE THE MILLION DOLLAR FIGURE IN THE SETTLEMENT

16

AGREEMENT ITSELF IS SORT OF AN INITIAL FUNDING BY GOOGLE

17

BECAUSE IT WILL COVER THE PROJECTED COST OF NOTICE AND SOME

18

OTHER ADMINISTRATIVE ISSUES.

19

AND SO WE JUST WANTED TO CLARIFY THAT POINT, THERE IS SOME

20

BACKUP.

21

QUESTIONS, I THINK MR. ASCHENBRENER CAN PROBABLY ADDRESS THEM.

22
23
24
25

AND TO THE EXTENT THAT THERE ARE REALLY DETAILED

THE COURT:

GREAT.

OKAY.

ALL RIGHT.

THANK YOU.

THANK YOU FOR THAT.
ANYTHING ELSE, MR. JOHNSON, YOU WOULD LIKE ME TO KNOW IN
SUPPORT OF THIS?

UNITED STATES COURT REPORTERS

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1

MR. JOHNSON:

NO, YOUR HONOR.

39

I THINK OTHER THAN

2

THE FACT THAT WE -- THAT IT WAS THE PRODUCT OF A HEAVILY

3

NEGOTIATED SETTLEMENT WHICH WE HAD THE ASSISTANCE OF RANDY

4

WOLF, WHO I BELIEVE THE COURT IS FAMILIAR WITH, WHO BELIEVED

5

UNDER THE CIRCUMSTANCES THIS WAS THE FAIR PROPOSAL.

6
7
8
9

THE COURT:

YES, I THINK -- AND I NEGLECTED TO

MENTION THAT AT THE OUTSET HOW YOU GOT HERE.
AND THE LAWSUIT WAS FILED, AND I KNOW THERE WAS SOME
MOTION PRACTICE, AND THEN AS YOU SUGGEST, YOU MET WITH A

10

PROFESSIONAL MEDIATOR.

11

MR. JOHNSON:

12

THE COURT:

YES, YOUR HONOR.

YES, YOUR HONOR.

AND YOU HASHED OUT THE ISSUES AND YOU

13

HAVE COME TO THIS RESOLUTION AND WHAT YOU'RE ASKING THE COURT

14

TO FIND AS FAIR, ADEQUATE, AND REASONABLE?

15

MR. JOHNSON:

16

THE COURT:

ABSOLUTELY, YOUR HONOR.

AND I THINK YOU INDICATED IN YOUR

17

PLEADINGS THE RISK FOR BOTH SIDES AS TO THE LAWSUIT PROGRESSING

18

AND GOING FORWARD AND MEMBERS OF THE COMMUNITY MIGHT GO ONE WAY

19

OR THE OTHER AS THEY SAT AS A JURY AND LISTENED TO BOTH SIDES

20

AND BOTH OF YOU FELT THAT IT WAS AND IN BOTH OF YOUR BEST

21

INTERESTS TO RESOLVE THE CASE AS YOU HAVE BROUGHT TO THE COURT

22

HERE THIS MORNING.

23

MR. JOHNSON:

YES, YOUR HONOR, GIVEN THE

24

UNCERTAINTIES AND THE ISSUES OF FIRST IMPRESSION THAT ARE

25

MENTIONED IN THE PAPERS, YES, YOUR HONOR.

UNITED STATES COURT REPORTERS

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1

THE COURT:

2

MR. JOHNSON:

3

THE COURT:

4

GREAT.

40

THANK YOU VERY MUCH.

THANK YOU.

YOU'RE WELCOME.

THANK YOU.

SO I DID HAVE SOME OTHER -- WE WERE TALKING, MR. NASSIRI,

5

ABOUT THE POOL OF IDENTIFIED INDIVIDUALS, AND I APPRECIATE THAT

6

COLLOQUY.

AS I UNDERSTAND IT THE MACARTHUR FOUNDATION --

7

MR. NASSIRI:

8

THE COURT:

9

DO YOU WANT ME TO STEP UP?

YES, THANK YOU.

THE MACARTHUR

FOUNDATION HAS TAKEN THEMSELVES OUT OF THIS LIST?

10

MR. NASSIRI:

11

THE COURT:

THEY HAVE.

RIGHT.

AND I DON'T KNOW IF YOU WERE --

12

PARDON ME -- THINKING OF REPLACING THEM WITH SOMEONE ELSE, BUT

13

I THINK IT'S -- WHAT I WOULD LIKE TO HAVE YOU DO IS GIVE ME --

14

I'D LIKE YOU TO DO A LITTLE MORE WORK ON THIS.

15

PARDON ME.

AND WHAT I'D LIKE YOU TO DO IS I'D LIKE SOME MORE

16

INFORMATION ABOUT THE SELECTION PROCESS AND THE IDENTIFICATION

17

OF THE POOL OF CY PRES RECIPIENTS.

18
19
20
21
22

AND WHAT IS IT SPECIFICALLY, AS SPECIFIC AS YOU CAN, CAN
YOU TELL ME WHAT IS IT THAT THEY'RE GOING TO DO?
YOU'VE TALKED ABOUT THE DIFFERENT CONFERENCES, PERHAPS, OR
WHATEVER THERE WAS GOING TO BE, MEETINGS WITH GROUPS.
IF YOU COULD BE MORE SPECIFIC FOR ME TO GIVE ME GUIDANCE

23

AS TO WHAT THE PUBLIC AND I CAN EXPECT THE WORK PRODUCT TO BE.

24

AND, OF COURSE, IN THESE CASES WE CAN'T POLICE THEM AND I

25

DON'T SIT HERE AS A PROFESSOR TO HAVE THEM COME IN HERE AND

UNITED STATES COURT REPORTERS

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1
2

41

GRADE THEIR WORK.
BUT I THINK IT IS APPROPRIATE FOR ME TO, WHEN I LOOK, OR

3

WHEN I LOOK AT THIS SETTLEMENT, TO SPECIFICALLY LOOK AT THE

4

TASK THAT THEY'RE GOING TO ACCOMPLISH, OR LOOK AT THE GOALS

5

THAT THIS SETTLEMENT SETS FOR THEM.

6

FOR ME TO LOOK AT.

7

I THINK THAT'S APPROPRIATE

I KNOW YOU PUT IT IN YOUR PLEADINGS.

MR. NASSIRI:

8

THAT NOW, YOUR HONOR.

9

THE COURT:

WELL, I HAVE SOMETHING TO SAY ABOUT

10

OKAY.

MR. NASSIRI:

A FEW THINGS.

FIRST, WITH RESPECT TO

11

GRADING THEM, I ACTUALLY THINK THAT WHAT WE'RE DOING WILL MOVE

12

YOU A BIG STEP CLOSER, AND EVERYBODY ELSE, CLOSER TO GRADING

13

THEM BOTH IN MAKING A DECISION ABOUT WHETHER OR NOT TO GIVE

14

THEM THE MONEY AND THEN DOWN THE ROAD HOW THEY DID WITH IT.

15

I DON'T KNOW IF YOUR HONOR IS AWARE THAT LIKE MAYBE

16

SIX MONTHS AGO THERE WAS A LOT OF PRESS ABOUT CERTAIN CHARITIES

17

THAT WERE WASTING MONEY THAT WAS GIVEN TO THEM AND THERE

18

WERE -- THERE WERE THESE CHARITY WATCHDOG FOUNDATIONS THAT

19

PUBLISHED STATISTICS SAYING THAT CHARITY X FOR EVERY DOLLAR YOU

20

GIVE THEM, ONLY SIX CENTS OF IT ACTUALLY GOES TO THE TARGET

21

COMMUNITY.

22

SO STARTING ON THAT TRAIL I KIND OF TOOK A LOOK AT THOSE

23

WATCHDOGS, AND THEY HAVE DONE SOME REALLY GOOD WORK IN COMING

24

UP WITH CRITERIA FOR INCREASING TRANSPARENCY AND ACCOUNTABILITY

25

WITH RESPECT TO CHARITIES.

IT'S PERFECTLY APPLICABLE HERE.

UNITED STATES COURT REPORTERS

WE

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1

HAVE SENT, AND I'LL BE HAPPY TO SHARE WITH THE COURT IN A

2

SUPPLEMENTAL FILING, WE HAVE SENT KIND OF A TEMPLATE.

3

42

ACTUALLY A TEMPLATE.

4

IT'S NOT

BUT WE HAVE SENT OUR REQUIREMENTS TO ALL OF THE PROPOSED

5

RECIPIENTS AND SAID WE WANT A WRITTEN PROPOSAL FROM YOU THAT

6

ADDRESSES THESE POINTS.

7

TO GET BACK AND HAVE ALREADY STARTED TO GET BACK, YOUR HONOR,

8

ARE DETAILED DESCRIPTIONS OF EXACTLY WHAT THEY'RE GOING TO DO,

9

WHO IS ON STAFF, AND HOW THE BUDGET WILL BE ALLOCATED WITHIN

10
11

AND INCLUDED IN WHAT WE ARE EXPECTING

THE PROJECT.
WE HAVE ALSO ASKED FOR THESE ENTITIES TO GIVE US A SET OF

12

METRICS THAT THEY CAN USE TO MEASURE THE SUCCESS OF THE

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PROGRAM, AND WE ARE GOING TO REQUIRE THEM TO PUBLISH TO THE

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CLASS AND TO THE COURT DOWN THE ROAD THE RESULTS.

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SO THIS IS KIND OF TRACKING PERFECTLY WHAT SOME OF THE
FORWARD THINKERS IN THESE CHARITY WATCHDOGS ARE DOING.
SO THAT WILL BRING YOU A LOT CLOSER AND EVERYBODY ELSE TO
ACTUALLY GRADING THEM.

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AND IT WILL, KIND OF OVER THE BIGGER PICTURE, NOT JUST

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THIS LAWSUIT BUT FOR THE NEXT LAWSUIT, YOU'LL HAVE SOMETHING TO

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LOOK AT.

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THE COURT:

IS MORE COMING?

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MR. NASSIRI:

THERE'S PROBABLY MORE COMING.

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THINK WE'RE READY TO RETIRE HERE YET AS A GROUP.

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SO NEXT TIME YOU'LL HAVE A TRACK WORD.

I DON'T

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WELL, YOU WERE A

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CY PRES RECIPIENT IN THE GAOS CASE AND THIS IS WHAT HAPPENED.

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WITH RESPECT TO TIMING, WE HAVE PUT IN OUR CALENDAR, OUR

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PROPOSED CALENDAR, HERE A DATE FOR PROVIDING THAT INFORMATION,

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THE INITIAL PROPOSALS THAT INCLUDE THE METRICS AND THE PROPOSED

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ALLOCATION.

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WE HAVE A DATE IN HERE THAT IS 60 DAYS, NOT BEING

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PRESUMPTIVE, FROM THE DATE THAT YOU APPROVE THE PRELIMINARY

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APPROVAL WHERE WE WOULD FILE IT WITH THE COURT AND PUBLISH IT

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ON THE WEBSITE.

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AND THAT GIVES -- I DON'T HAVE THE EXACT NUMBER HERE, BUT

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THAT GIVES MONTHS, I BELIEVE, OF TIME FOR THE COURT TO CONSIDER

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IT AND FOR THE CLASS TO CONSIDER IT BEFORE THEY HAVE TO SUBMIT

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OBJECTIONS IF THEY SO CHOOSE.

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SO IF WE WERE TO TRY AND DO ALL OF THAT PRIOR TO GETTING

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PRELIMINARY APPROVAL, I THINK THIS WOULD PUSH THIS OUT A LITTLE

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FAR BECAUSE WE WANT TO HAVE SOME BREATHING ROOM TO WORK THESE

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PROPOSALS UP AND THEN PRESENT THEM TO THE CLASS AND THEN KIND

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OF HAVE THEM JUDGED ON FINAL APPROVAL.

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THE COURT:

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MR. NASSIRI:

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DO YOU HAVE A PROBLEM WITH THAT?
DO I HAVE A PROBLEM WITH TRYING TO GET

IT DONE BEFORE PRELIMINARY APPROVAL?

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THE COURT:

RIGHT.

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MR. NASSIRI:

IT'S LOGISTICALLY DIFFICULT.

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PUSH THINGS OUT OR IT WOULD --

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THE COURT:

IT WOULD

I GUESS THE QUESTION IS, IS THAT A

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PROBLEM IF IT GETS PUSHED OUT AND, IF SO, WHOSE PROBLEM IS IT?

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MR. NASSIRI:

WELL, IT IS A PROBLEM GENERALLY IF WE

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WANT RELIEF SOONER RATHER THAN LATER.

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STANDARDS FOR PRELIMINARY APPROVAL HERE ARE THAT, YOU KNOW,

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IT'S WITHIN THE SCOPE.

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IDENTITY -- WELL, I'LL JUST LEAVE IT AT THAT.

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AND, YOU KNOW, THE

AND HERE IT'S NOT SO MUCH THE

I HAVE DESCRIBED TO YOU WHAT THE PROCESS IS.

I THINK IT

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GOES FAR BEYOND WHAT HAS EVER BEEN DONE BEFORE, AND WE'RE GOING

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TO PRESENT MORE INFORMATION TO THE COURT AND THE CLASS FOR

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FINAL APPROVAL THAT HAS EVER BEEN DONE BEFORE.
SO IN TERMS OF PRECEDENT, I THINK WE'RE WAY BEYOND WHAT WE
NEED TO DO FOR PRELIMINARY APPROVAL.

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THE COURT:

WE HAD A CONVERSATION EARLIER ABOUT THE

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LITTLE GUY, I'LL CALL HIM, AND PARDON ME FOR BEING COLLOQUIAL,

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BUT DOES THAT GIVE YOU ANY THOUGHT THAT YOU MIGHT WANT TO

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REVISIT AND LOOK FOR THOSE TYPES OF ENTITIES THAT MIGHT RECEIVE

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ANGEL FUNDING FROM THIS LAWSUIT?

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MR. NASSIRI:

WELL, IT DOES GIVE ME A THOUGHT, YOUR

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HONOR.

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BEEN THINKING ABOUT THIS SINCE WE HAVE FILED THE LAWSUIT.

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I HAVE BEEN VERY INVOLVED OVER THE PAST FEW YEARS, AND I

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BELIEVE THE ENTITIES THAT WE HAVE SELECTED ARE THE BEST TO

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ACHIEVE THE OBJECTIVES TO DO SOMETHING GOOD FOR THE CLASS ON

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THE SUBJECT MATTER.

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I DON'T THINK IT'S THE RIGHT WAY TO GO.

HAVING -- I'VE
AND

YOU KNOW, GOING TO LITTLE GUYS I JUST DON'T -- THE BENEFIT

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THERE WOULD BE THAT YOU HAVE GOT MORE PEOPLE WHO COULD GET

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THERE -- WHO CAN ESTABLISH A FOOTHOLD AND DO THIS KIND OF WORK

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AND THAT'S A REAL BENEFIT, YOUR HONOR, BUT I BELIEVE IT'S JUST

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ONE STEP REMOVED FROM WHAT WE'RE REQUIRED TO DO WITHIN THE

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CONTEXT OF A CY PRES SETTLEMENT IN A CLASS ACTION.

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I THINK IT'S A LITTLE TOO POLICY ORIENTED.

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THE COURT:

SO WHEN WE LOOK AT A PURE CY PRES, AND

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IF WE FOLLOW THAT LOGIC THEN, THERE WILL ALWAYS BE THE USUAL

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SUSPECTS.

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MR. NASSIRI:

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ENTERING THE SPACE MORE AND MORE.

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FUNDING FOR IT.

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CHICAGO-KENT AND THE WORLD PRIVACY ORGANIZATION, THOSE ARE NEW

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PLAYERS.

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WELL, NO, YOUR HONOR.

PEOPLE ARE

THERE IS MORE INTEREST IN

AND WE HAVE A FEW NEW PLAYERS, LIKE I SAID,

THE COURT:

DID YOU GIVE ME INFORMATION ABOUT THAT

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SELECTION PROCESS, WHY YOU IDENTIFIED THOSE INDIVIDUALS?

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GUESS WHAT I'M SAYING IS PERHAPS I WOULD LIKE TO -- AND I THINK

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YOU'RE VERY CLOSE, I AGREE WITH YOU, FOR PRELIMINARY APPROVAL.

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YOU'RE VERY CLOSE.

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WOULD LIKE ADDITIONAL INFORMATION AS TO THAT THOUGHT PROCESS.

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I

THESE ARE JUST SOME LITTLE MINUTIA, BUT I

YOU HAVE ARTICULATED IT VERY WELL THIS MORNING.

AND YOU

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HAVE GIVEN ME A LOT OF ANSWERS TO MY QUESTIONS, BUT I THINK I

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WOULD BENEFIT FROM THAT INFORMATION.

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YOUR COLLEAGUE IS STANDING BEHIND YOU.
MR. ASCHENBRENER:

YOUR HONOR, MAY I BE HEARD ON

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THAT ISSUE VERY BRIEFLY?

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THE COURT:

SURE.

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MR. ASCHENBRENER:

JUST TO RESPOND AND GIVE A LITTLE

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MORE COLOR TO MY COLLEAGUE'S THOUGHTFUL RESPONSE AS IT RELATES

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TO THE COURT'S INQUIRY REGARDING, QUOTE, "THE LITTLE GUY."

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CERTAINLY DID ACTUALLY GIVE THAT A LOT OF THOUGHT, AND I DON'T

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WANT TO SAY TOO MUCH WITHOUT CONSENT FROM GOOGLE ABOUT THE

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NEGOTIATION PROCESS AND THE MEDIATION PROCESS.

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THE COURT:

WE

AND I SHOULDN'T KNOW ABOUT THAT.

MR. ASCHENBRENER:

BUT WHAT I CAN TELL YOU I BELIEVE

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WITHOUT VIOLATING ANY CONFIDENCES THERE IS THAT A LOT OF

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ORGANIZATIONS WERE CONSIDERED WELL BEYOND THE USUAL SUSPECTS

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THAT ADDRESS THE -- THAT WOULD ADDRESS THE COURT'S LINE OF

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QUESTIONING HERE.

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AND WHILE I CANNOT SPEAK FOR GOOGLE, I IMAGINE THAT THEY
GAVE GREAT THOUGHT TO THAT AS WELL.
AND THE LIST PRESENTED TO THE COURT OF PROPOSED RECIPIENTS

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REFLECTS, AS WAS DISCUSSED EARLIER, A NEGOTIATED LIST, BUT IT

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DID INCLUDE, THROUGH THE NEGOTIATION AND MEDIATION PROCESS, A

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FULL LOOK AT A VARIETY OF RECIPIENTS BEYOND THE USUAL SUSPECTS.

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SO I BELIEVE THAT THE LIST PROVIDED TO THE COURT HAS

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ALREADY TAKEN THAT INTO ACCOUNT.
IF THE COURT WISHES TO SEE MORE, OF COURSE, WE'LL BE HAPPY

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TO PROVIDE MORE, BUT I THINK IT'S IMPORTANT FOR THE COURT TO

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KNOW AT THIS TIME A LOT OF CONSIDERATION WAS GIVEN TO THAT

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ALREADY AND THE LIST PROVIDED TO THE COURT REFLECTS THAT

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THINKING AND THAT PROCESS.

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THE COURT:

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THAT I GUESS I WAS LOOKING FOR.

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I GUESS -- AND THAT'S THE INFORMATION

IF YOU COULD, IN AN ADDITIONAL PLEADING JUST, YOU KNOW,

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LET ME KNOW WHAT YOU DID IN THAT REGARD AND WHY THESE FOLKS

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WERE IDENTIFIED.

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SELF-IDENTIFYING, YOU KNOW, AS YOU SAY.

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I THINK SOME OF THESE ARE PERHAPS

MR. NASSIRI:

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THE COURT:

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MR. NASSIRI:

THEY'RE SOMEWHAT OBVIOUS CHOICES.

THANK YOU.
AND I DON'T WANT TO OVERSTATE THE

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INNOVATION I THINK WE HAVE GOT HERE.

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THAT THESE ARE KIND OF, YOU KNOW, THE USUAL GUYS AND PEOPLE

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JUST THROW MONEY AT THEM AND MAYBE WE SHOULD BE MORE

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THOUGHTFUL, I REALLY BELIEVE THAT, ONE, THE FACT THAT WE'RE

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REQUIRING THEM TO SPEND THE MONEY ON SPECIFIC PROJECTS AND NOT

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LETTING THEM DECIDE AFTER THEY GET THE MONEY HOW THEY'RE GOING

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TO SPEND THE MONEY IS A BIG DIFFERENCE BETWEEN WHAT HAS BEEN

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DONE IN THE PAST AND WHAT IS GOING TO BE DONE NOW.

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THE FACT THAT ANY CONCERN

AND THAT BY ITSELF I THINK WOULD ALLEVIATE SOME CONCERNS
ABOUT, HEY, YOU'RE JUST GIVING MONEY TO THE USUAL SUSPECTS.
THE COURT:

NO.

THIS IS A CREATIVE LOOK AT IT AND

TREATMENT OF IT AND I APPRECIATE IT.
AND IN MY CONVERSATION, I SHOULD SAY THIS, I DON'T MEAN TO
DISPARAGE ANY OF THESE INSTITUTIONS IN ANY WAY.

UNITED STATES COURT REPORTERS

I'M NOT

Case5:10-cv-04809-EJD Document57 Filed08/27/13 Page48 of 50
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ATTEMPTING TO DO THAT.

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LESS THAN SUCCESSFUL OR THOUGHTFUL AT ALL.

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I'M NOT SUGGESTING THAT THEIR WORK IS

I'M NOT GRADING.

I'M JUST ASKING THESE QUESTIONS AND IN

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AN EFFORT TO PERHAPS EXPAND THE POOL.

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HERE.

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THAT'S WHAT MY GOAL IS

SO I WANT TO BE CLEAR ON THAT.

ALL RIGHT.

WELL, THANK YOU VERY MUCH.

WHAT I WOULD LIKE

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YOU TO DO THEN -- I THINK WE HAVE HAD A PRETTY THOROUGH

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CONVERSATION ABOUT YOUR GOOD WORK, BOTH SIDES GOOD WORKS THIS

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MORNING.

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ANYTHING FURTHER, MR. JOHNSON?

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MR. JOHNSON:

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THE COURT:

NO, YOUR HONOR.

WELL, WHAT I WOULD LIKE TO DO, IF YOU

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COULD PLEASE PROVIDE FOR ME THESE FOLLOW UP, THE FORMS, THE OPT

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OUT -- THESE OTHER FORMS, SUGGESTED FORMS OF OBJECTORS.

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CAN ALSO PROVIDE ME SOME INFORMATION REGARDING THE SELECTION

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PROCESS IN A PLEADING TYPE FORM, I THINK THAT WOULD BE HELPFUL

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TO ME ALSO, ANYTHING YOU WANT TO ADD AS TO THE GRADING PROCESS

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AS YOU HAVE DESCRIBED IT, THAT REVIEW PROCESS, THAT WOULD BE

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HELPFUL ALSO.

IF YOU

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I THINK THE MORE, BECAUSE THIS IS INNOVATIVE AS YOU

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SUGGEST, SIR, I THINK THE MORE INFORMATION THAT IS PUT IN THE

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PLEADINGS AND IN THE ACTUAL SETTLEMENT ITSELF WOULD BE HELPFUL

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FOR THIS CASE AND ALSO AS YOU SUGGEST FOR FUTURE CASES FOR

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OTHER LITIGANTS TO LOOK AT FOR, PERHAPS, GUIDANCE.

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MR. NASSIRI:

I ACTUALLY LOOK FORWARD TO THE

UNITED STATES COURT REPORTERS

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OPPORTUNITY.

I'M EXCITED ABOUT THIS.

THE COURT:

RIGHT.

GREAT, AS AM I.

SO CAN WE HAVE THIS INFORMATION -- LET'S SEE, WHAT DO YOU
THINK, SEPTEMBER 6TH?

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MR. NASSIRI:

EASILY, YES.

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MR. JOHNSON:

YES, YOUR HONOR.

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THE COURT:

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MATTER WILL BE DEEMED SUBMITTED.

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OKAY.

GREAT.

AND AT THAT TIME THE

THANK YOU VERY MUCH FOR THE CONVERSATION THIS MORNING.

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MR. JOHNSON:

THANK YOU, YOUR HONOR.

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MR. NASSIRI:

THANK YOU, YOUR HONOR.

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THE COURT:

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AND WE'LL TAKE A RECESS.

(COURT CONCLUDED AT 10:50 A.M.)

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UNITED STATES COURT REPORTERS

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED

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STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,

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280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:
THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

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A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

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ABOVE-ENTITLED MATTER.

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______________________________
IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8076

DATED:

AUGUST 26, 2013

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UNITED STATES COURT REPORTERS