In re Google Referrer Header Privacy Litigation

Filing 70

OBJECTION (re #65 MOTION for Settlement (Final Approval), #66 MOTION for Attorney Fees Expenses and Costs filed by Theodore H Frank, Melissa Holyoak. (Attachments: #1 Declaration of Melissa Holyoak, #2 Declaration of Theodore H. Frank)(Frank, Theodore) (Filed on 8/8/2014) Modified TEXT on 8/8/2014 (cv, COURT STAFF).

Case5:10-cv-04809-EJD Document70-2 Filed08/08/14 Page1 of 4

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Theodore H. Frank (SBN 196332)
CENTER FOR CLASS ACTION FAIRNESS
1718 M Street NW
No. 236
Washington, DC 20036
Voice: [phone]
Email: [e-mail]

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Attorneys for Objectors Theodore H. Frank and Melissa Holyoak
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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In re GOOGLE REFERRER HEADER PRIVACY
LITIGATION

Case No. 5:10-cv-04809-EJD
DECLARATION OF THEODORE H. FRANK

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THEODORE H. FRANK and MELISSA
HOLYOAK

Date:
Time:
Courtroom:
Judge:

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Objectors.

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Case No: 5:10-cv-04809 EJD
DECLARATION OF THEODORE H. FRANK

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August 29, 2014
9:00 a.m.
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Hon. Edward J. Davila

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I, Theodore H. Frank, declare as follows:
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1. I have personal knowledge of the facts set forth herein and, if called as a witness, could and
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would testify competently to them.
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2. My business address is 1718 M Street NW, #236, Washington DC 20036 and my phone
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number is [phone]. My email address is [e-mail].
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3. I am a United States resident who has submitted a search query to Google on hundreds or
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thousands of occasions since October 25, 2006.
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4. I am thus a member of the proposed settlement class with standing to object. See Fed. R.
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Civ. P. 23(e)(5).
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5. I am the founder and president of the non-profit Center for Class Action Fairness
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(“Center”), and represent objector Melissa Holyoak as well as myself in objecting to this
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settlement.
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6. I run and operate the Center’s website: currently found at
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http://centerforclassactionfairness.blogspot.com/. Over the last several years, I employ
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analytics programs by Google and a third-party vendor, including the data provided by
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referrals from web searches to monitor and survey the status of the website. Google’s
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search engine and service permits to review useful information about the search queries
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used by members of the public who visit the Center’s website. Because of this, I was aware
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that Google transmits information regarding users’ search queries to website operators. I
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am also aware that it is possible for users who do not want their search query information
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to be provided to website providers to take steps to avoid transmitting that information,
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which I sometimes do.
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7. I have multiple email accounts through Google’s Gmail service. Nonetheless, I did not
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receive any direct notice of the settlement in this case, even though the defendant
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undoubtedly possesses my contact information in its records.
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8. The AARP takes numerous political positions that I believe contravene good public policy.
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As a class member, I object to the AARP receiving money as a proxy for the class.
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Case No: 5:10-cv-04809 EJD
DECLARATION OF THEODORE H. FRANK

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Case5:10-cv-04809-EJD Document70-2 Filed08/08/14 Page3 of 4

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9. I bring this objection in good faith to prevent approval of an unfair settlement and
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ratification of an improper certification.
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10. The Center receives many more requests to bring meritorious objections to class actions
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than it has resources to pursue, and thus has no interest in wasting resources bringing an
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objection it does not believe is legally meritorious. Because the Center is non-profit, it
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cannot and does not settle its objections for a quid pro quo cash payment to withdraw, as
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many professional objectors do. But if the Court has any doubts whether this objection is
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brought in good faith, I am willing to stipulate to an injunction forbidding me from settling
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my objection for personal financial gain. See Brian T. Fitzpatrick, The End of Objector
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Blackmail?, 62 VAND. L. REV. 1623 (2009) (suggesting inalienability of objections as solution
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to alleged problem of objector blackmail).
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11. Because of this necessity of selectiveness in choosing which objections to bring, the
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majority of the Center’s objections have resulted in settlement rejections; attorney-fee
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reductions; or agreements or court-orders to improve the settlement for the benefit of the
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class, winning millions of dollars for class members. Out of ten federal appellate court
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decisions where Center attorneys have argued, we have prevailed in eight, including all four
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in the Ninth Circuit. See e.g., In re MagSafe Apple Power Adapter Litig., Nos. 12-15757, 1218
15782, 2014 U.S. App. LEXIS 7708 (9th Cir. Apr. 24, 2014) (unpublished); In re HP Inkjet
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Printer Litigation, 716 F.3d 1173 (9th Cir. 2013); Nachshin v. AOL, LLC, 663 F.3d 1034, 1039
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(9th Cir. 2011); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011).While I
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am often accused of being an “ideological objector,” the ideology of the Center’s objections
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is merely the correct application of Rule 23 to ensure the fair treatment of class members.
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12. Through the Center, I represented myself and another class member in objecting to the
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second settlement and fee request in Fraley v. Facebook Inc., No. 11-cv-01726 RS (N.D. Cal.).
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There, class counsel orginially claimed administrative costs would be $2.55 million. But after
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the court held that they couldn’t count it as a settlement benefit, suddenly the
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administrative costs dropped to $1.2 million. Fraley demonstrates that administrative costs
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Case No: 5:10-cv-04809 EJD
DECLARATION OF THEODORE H. FRANK

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of a one-hundred million member class claims process need not cannibalize the $8.5 million
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fund of this settlement. Fraley also suggests that the alloted ceiling for administrative costs
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here—$1 million, See Settlement § 5.1—would be excessive given the lack of a claims
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procedure.
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13. On information and belief, many class counsel subscribe to a service that proposes
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arguments to be used against objectors; on information and belief, this service falsely
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characterizes me as opposing all class actions. I have seen this argument used against my
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objections in multiple cases (albeit without any citations supporting the claim). The
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argument is false. I believe the class action mechanism is procedurally appropriate in cases
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complying with Rule 23, do not oppose all class actions, and simply oppose the abuse of the
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class action mechanism to benefit class counsel at the expense of their clients and the public
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at large—something I believe Rule 23 already addresses.
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14. The specific grounds of my objection are identified in my contemporaneously-filed
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objection.
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I declare under penalty of perjury of the laws of the United States of America that the foregoing is
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true and correct.
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Executed on August 8, 2014 in Houston, Texas.
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/s/ Theodore H. Frank
Theodore H. Frank

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Case No: 5:10-cv-04809 EJD
DECLARATION OF THEODORE H. FRANK

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