Campbell et al v. Facebook Inc.

Filing 227

MOTION for Preliminary Approval of Class Action Settlement filed by Matthew Campbell, Michael Hurley. Motion Hearing set for 4/12/2017 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 3/15/2017. Replies due by 3/22/2017. (Attachments: # 1 Proposed Order, # 2 Declaration of Class Counsel Hank Bates and Michael Sobol, # 3 Exhibit 1 to Declaration of Class Counsel)(Sobol, Michael) (Filed on 3/1/2017)

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1 2 3 4 5 6 7 8 9 10 11 12 Michael W. Sobol (State Bar No. 194857) msobol@lchb.com David T. Rudolph (State Bar No. 233457) drudolph@lchb.com Melissa Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 17 Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com CARNEY BATES & PULLIAM, PLLC 519 West 7th Street Little Rock, AR 72201 Telephone: 501.312.8500 Facsimile: 501.312.8505 18 Attorneys for Plaintiffs and the Class 13 14 15 16 19 UNITED STATES DISTRICT COURT 20 NORTHERN DISTRICT OF CALIFORNIA 21 22 23 MATTHEW CAMPBELL, MICHAEL HURLEY, on behalf of themselves and all others similarly situated, Plaintiffs, 24 25 v. 26 FACEBOOK, INC., 27 28 Defendant. Case No. 4:13-cv-05996-PJH PLAINTIFFS' NOTICE OF MOTION; MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT; AND MEMORANDUM OF POINTS AND AUTHORITIES Date: Time: Judge: Place: April 12, 2017 9:00 a.m Hon. Phyllis J. Hamilton Courtroom 3, 3rd Floor MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 2 NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on April 12, 2017, at 9:00 a.m., in the Courtroom of the 4 Honorable Phyllis J. Hamilton, United States District Judge for the Northern District of 5 California, Courtroom 3, 1301 Clay Street, Oakland, California, 94612, Plaintiffs Matthew 6 Campbell and Michael Hurley will and hereby do move the Court, pursuant to Federal Rule of 7 Civil Procedure 23, for an Order: 8 A. Granting preliminary approval of the proposed Class Action Settlement Agreement (“Settlement”) entered into between the parties;1 B. Certifying the Settlement Class as defined in the Settlement; C. Appointing Class Representatives Matthew Campbell and Michael Hurley as Settlement Class Representatives of the proposed Settlement Class, extending the class period for the injunctive-relief class previously certified by the Court; D. Appointing current class counsel Lieff Cabraser Heimann & Bernstein, LLP and Carney Bates & Pulliam, PLLC for the proposed Settlement Class; E. Staying all non-Settlement related proceedings in the above-captioned case (the “Action”) pending final approval of the Settlement; and F. Setting a Fairness Hearing and certain other dates in connection with the final approval of the Settlement. 9 10 11 12 13 14 15 16 17 This motion is based on this notice of motion and motion, the accompanying 18 memorandum of points and authorities, the Settlement, including all exhibits thereto, the 19 accompanying Joint Declaration of Class Counsel (“Joint Decl.”), the argument of counsel, all 20 papers and records on file in this matter, and such other matters as the Court may consider. 21 22 23 24 25 26 27 28 1 See Exhibit 1 to the Joint Declaration of Class Counsel (“Joint Declaration”). -1- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 2 Dated: March 1, 2017 Respectfully submitted, CARNEY BATES & PULLIAM, PLLC 3 4 5 6 7 8 9 10 11 12 13 14 15 16 By: /s/ Hank Bates Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com 519 West 7th Street Little Rock, AR 72201 Telephone: 501.312.8500 Facsimile: 501.312.8505 Michael W. Sobol msobol@lchb.com David T. Rudolph drudolph@lchb.com Melissa Gardner mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 21 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 22 Class Counsel 17 18 19 20 23 24 25 26 27 28 -2- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 TABLE OF CONTENTS 2 3 4 Page I. II. III. 5 6 IV. 7 8 9 10 11 12 13 14 15 16 V. INTRODUCTION .............................................................................................................. 1 OVERVIEW OF THE LITIGATION................................................................................. 2 THE PROPOSED SETTLEMENT TERMS AND SCHEDULE OF EVENTS ................ 4 1. Cessation of the Three URL Uses Relevant to this Class Action ............... 5 CERTIFICATION OF THE PROPOSED SETTLEMENT CLASS IS APPROPRIATE .................................................................................................................. 9 A. Rule 23(a) is Satisfied. ............................................................................................ 9 1. The Settlement Class Is Too Numerous to Permit Joinder. ........................ 9 2. This Action Presents Common Questions of Law or Fact. ....................... 10 3. Class Representatives’ Claims are Typical of Those of the Settlement Class. ....................................................................................... 10 4. Class Representatives and Their Counsel Will Fairly and Adequately Protect the Interests of the Settlement Class Members. ........ 11 B. The Requirements of Rule 23(b)(2) are Satisfied. ................................................ 12 C. Preliminary Approval of the Settlement is Appropriate. ...................................... 13 1. The Settlement Falls Within the Range of Possible Approval.................. 13 2. The Settlement is the Product of Arm’s-Length Negotiations After a Thorough Investigation, Without a Trace of Collusion ............................ 15 3. The Recommendation of Experienced Counsel Favors Approval. ........... 17 CONCLUSION ................................................................................................................. 17 17 18 19 20 21 22 23 24 25 26 27 28 -i- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)...................................................................................................... 10 Arnott v. U.S. Citizenship & Immigration Servs., 290 F.R.D. 579 (C.D. Cal. Oct. 22, 2012) ................................................................................... 9 Bee, Denning, Inc. v. Capital Alliance Group, No. 13-cv-02654-BAS, 2016 WL 3952153 (S.D. Cal. 2016) ...................................................... 8 Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004)...................................................................................................... 13 Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992).............................................................................................. 13, 15 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15 (N.D. Cal. 1980) ................................................................................................... 16 Hanlon v. Chrysler Corp, 150 F.3d 1011 (9th Cir. 1998)........................................................................................ 10, 11, 13 Hart v. Colvin, No. 15-cv-00623-JST, 2016 WL 6611002 (N.D. Cal. 2016)....................................................... 8 Hendricks v. Starkist Co, No. 13-cv-00729-HSG, 2015 WL 4498083 (N.D. Cal. July 23, 2015) ..................................... 14 In re Heritage Bond Litig., No. 02-ML-1475-DT, 2005 WL 1594403 (C.D. Cal. June 10, 2005) ....................................... 16 In re Juniper Networks Sec. Litig., 264 F.R.D. 584 (N.D. Cal. 2009) ............................................................................................... 10 In re Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015) ......................................................................................... 10, 12 In re Yahoo Mail Litig., No. 13-CV-4980-LHK, 2016 WL 4474612 (N.D. Cal. Aug. 25, 2016) ................................ 8, 15 Jordan v. Cnty. of Los Angeles, 669 F.2d 1311 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) .................. 9, 10 Kim v. Space Pencil, Inc., No. C 11-03796 LB, 2012 WL 5948951 (N.D. Cal. 2012) ......................................................... 8 Kline v. Dymatize Enterprises, LLC, No. 15-cv-2348-AJB-RBB, 2016 WL 6026330 (S.D. Cal. 2016) ............................................... 8 Knight v. Red Door Salons, Inc., No. 08-01520 SC, 2009 WL 248367 (N.D. Cal. Feb. 2, 2009) ................................................. 17 Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 2015 U.S. WL 1248027 (N.D. Cal. Mar. 18, 2015) ................................ 8 Linney v. Cellular Alaska Partnership, No. C-96-3008 DLJ, 1997 WL 450064 (N.D. Cal. July 18, 1997) ............................................ 17 Lyon v. United States Immigration and Customs Enf’t, 300 F.R.D. 628 (N.D. Cal. 2014) ................................................................................................. 8 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 TABLE OF AUTHORITIES (continued) Page Newman v. Stein, 464 F.2d 689 (2d Cir. 1972) ....................................................................................................... 15 Pilkington v. Cardinal Health, Inc., 516 F.3d 1095 (9th Cir. 2008).................................................................................................... 13 Rodriguez v. West Publishing Corp., 563 F.3d 963 (9th Cir. 2009)...................................................................................................... 14 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003)...................................................................................................... 11 Sueoka v. U.S., 101 F. App’x 649 (9th Cir. 2004) .............................................................................................. 10 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ........................................................................................................... 8, 10 RULES Fed. R. Civ. P. 23(a)(1)......................................................................................................................................... 9 23(a)(3)....................................................................................................................................... 10 23(a)(4)....................................................................................................................................... 11 23(b)(2) ................................................................................................................................ 12, 15 23(e)(2)....................................................................................................................................... 13 TREATISES Alba Conte et al., Newberg on Class Actions § 3.10 (3rd ed. 1992) .................................................................................................................. 10 Alba Conte et al., Newberg on Class Actions § 11.41 (4th ed. 2002) ................................................................................................................ 15 Alba Conte et al., Newberg on Class Actions § 11.25 (4th ed. 2002) ................................................................................................................ 13 Manual for Complex Litigation (Fourth) (2004) § 21.632 ...................................................................................................................................... 13 20 21 22 23 24 25 26 27 28 - iii - 1 2 3 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs and Class Representatives Mathew Campbell and Michael Hurley respectfully 4 submit for the Court’s preliminary approval a proposed Class Action Settlement Agreement 5 (“Settlement”) resolving the above-captioned action (the “Action”), which alleges that Defendant 6 Facebook, Inc. (“Facebook”) intercepted the content of private Facebook messages, without 7 consent, in violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. 8 (“ECPA”) and Cal. Penal Code §§ 630, et seq. (“CIPA”). 9 Pursuant to the terms of the Settlement, Facebook has agreed to substantial changes that 10 bring Facebook’s message processing practices in compliance with Class Counsel’s view of 11 ECPA and CIPA’s requirements. Specifically, pursuant to the terms of the Settlement, Facebook 12 has confirmed that the alleged unlawful conduct challenged in the operative Second Amended 13 Complaint has ceased—namely, Facebook confirms that it no longer utilizes data from URLs 14 within private messages to (1) generate recommendations to its users; (2) share user data with 15 third parties or (3) increase “like” counter numbers on third party websites. In addition, Facebook 16 has confirmed, as of the date of the Settlement, that it is not using any data from EntShares 17 created from URL attachments sent by users in Facebook Messages in any public counters in the 18 “link_stats” and Graph APIs. In addition, during the course of this litigation, Facebook made 19 changes to its operative disclosures to its users, stating that it collects the “content and other 20 information” that people provide when they “message or communicate with others,”—thereby 21 further explaining the ways in which Facebook may use that content. Facebook has also agreed 22 to display additional educational language on its United States website for Help Center materials 23 concerning its processing of URLs shared within messages. 24 Pursuant to the Settlement, absent Settlement Class Members would release claims for 25 declaratory, injunctive, and non-monetary equitable relief only; claims for monetary damages are 26 specifically excluded from the proposed Settlement Class Members’ Released Claims. 27 Attorneys’ fees and costs and service awards to the Class Representatives that may be awarded by 28 the Court will be paid by Facebook. The Settlement addresses each of the challenged practices -1- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 that the Court certified for class treatment, achieves the goals of the litigation as articulated in the 2 operative Second Amended Complaint, protects the interests of any Settlement Class Members 3 that may not be remedied through injunctive relief, and falls well within the “range of 4 reasonableness” applicable at the preliminary approval stage. 5 The Settlement is the product of extensive arm’s-length negotiations between the parties 6 and their experienced and informed counsel. Settlement negotiations spanned over six months 7 and included multiple mediation sessions before highly respected and skilled mediators Cathy 8 Yanni and Randall Wulff. Prior to reaching a resolution, and through three years of hard-fought 9 litigation, Class Counsel thoroughly examined both the facts and rapidly-developing law involved 10 in this case, reviewed and analyzed tens of thousands of documents produced by Facebook, spent 11 hundreds of hours reviewing detailed technical documentation, deposed more than a dozen 12 witnesses and achieved certification of a class for injunctive relief. Class Counsel possess a firm 13 understanding of both the strengths and weaknesses of Class Representatives’ allegations and 14 Facebook’s potential defenses. Both prior to and during the negotiations, Class Counsel faced 15 formidable opposition from Facebook’s counsel who zealously defended their client’s position. 16 Both sides were well-represented by seasoned and informed counsel who vigorously pursued 17 their respective clients’ interests. 18 In sum, the Settlement achieves significant business practice changes, and benefits the 19 Settlement Class now, without the inherent risks of continued litigation and without requiring 20 Class Members to release any claims they may have for monetary relief. The Settlement was 21 only reached after months of discovery and arm’s-length negotiations and enjoys the support of a 22 neutral mediator who had an integral part in the settlement negotiations. Consequently, the 23 Settlement satisfies the criteria for preliminary approval. 24 II. 25 OVERVIEW OF THE LITIGATION On December 30, 2013, Plaintiffs Matthew Campbell and Michael Hurley filed a class 26 action complaint in the United States District Court for the Northern District of California 27 asserting claims under the Electronic Communications Privacy Act (“ECPA”; 18 U.S.C. §§ 2510 28 et seq.); the California Invasion of Privacy Act (“CIPA”; Cal. Penal Code §§ 630, et seq.); and -2- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 California’s Unfair Competition Law (“UCL”; California Business and Professions Code 2 §§ 17200, et seq.), alleging, inter alia, that Facebook “read[] its users’ personal, private Facebook 3 messages without their consent” for “purposes including but not limited to data mining and user 4 profiling,” and “generating ‘Likes’ for web pages” and “targeted advertising,” on behalf of 5 themselves and a proposed class of “[a]ll natural person Facebook users located within the United 6 States who have sent or received private messages where such message included URLs in the 7 content, from within two years before the filing of this action up through and including the date of 8 the judgment in this case” (Dkt. 1). 9 On January 21, 2014, David Shadpour filed another complaint in the United States District 10 Court for the Northern District of California alleging similar facts and asserting similar claims 11 under ECPA, CIPA and the UCL against Facebook (see Shadpour v. Facebook, Inc., Case 12 No. 5:14-cv-00307-PSG (N.D. Cal.), Dkt. 1). 13 On April 15, 2014, the Court granted Plaintiffs’ Motion to Consolidate the Related 14 Actions (Dkt. 24), thereby consolidating the Campbell and Shadpour actions, and on April 25, 15 2014, the Class Representatives filed a Consolidated Amended Complaint asserting ECPA, CIPA, 16 and UCL claims on behalf of themselves and a proposed class of “[a]ll natural-person Facebook 17 users located within the United States who have sent or received private messages that included 18 URLs in their content, from within two years before the filing of this action up through and 19 including the date when Facebook ceased its practice” (Dkt. 25).2 20 On December 23, 2014, the Court issued an order granting in part and denying in part 21 Facebook’s motion to dismiss the Consolidated Amended Complaint, dismissing the claims under 22 CIPA § 632 and the UCL, but denying the motion to dismiss claims under ECPA and CIPA § 631 23 (Dkt. 43). 24 The parties engaged in almost two years of extensive discovery, including the production 25 of tens of thousands of pages of documents, fact and expert depositions of 18 witnesses (spanning 26 19 days of testimony), informal conferences and discussions, hundreds of hours reviewing 27 28 2 On October 2, 2015 David Shadpour voluntarily dismissed his claims, with prejudice, pursuant to Federal Rule of Civil Procedure 41(a) (Dkt. 123). -3- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 detailed technical documentation, substantial discovery motion practice and the exchange of 2 hundreds of pages of written discovery requests and responses. A mediation between the parties 3 before Cathy Yanni of JAMS on August 19, 2015 was unsuccessful. 4 On May 18, 2016, the Court issued an order granting in part and denying in part Plaintiffs’ 5 Motion for Class Certification, denying certification as to the proposed damages class under 6 Federal Rule of Civil Procedure 23(b)(3), but granting certification of the injunctive-relief class 7 under Federal Rule of Civil Procedure 23(b)(2). Specifically, the Court certified for class 8 treatment three specific alleged uses by Facebook of URLs included in private messages: 9 (1) Facebook’s cataloging URLs shared in private messages and counting them as a “like” on the 10 relevant third-party website, (2) Facebook’s use of data regarding URLs shared in private 11 messages to generate recommendations for Facebook users, and (3) Facebook’s sharing of data 12 regarding URLs in messages (and attendant demographic data about the messages’ participants) 13 with third parties. (Dkt. 192, at 3-5). In addition, the Court directed the Plaintiffs to file a Second 14 Amended Complaint “(1) revising the class definition to reflect the definition set forth in the class 15 certification motion, and (2) adding allegations regarding the sharing of data with third parties” 16 (Id. at 6). On June 7, 2016, the Class Representatives filed a revised, Second Amended 17 Complaint as ordered (Dkt. 196). 18 Following the class certification ruling, the parties engaged in additional discovery and 19 then agreed to further mediate their dispute; first in a second and third session before Cathy Yanni 20 on July 21, 2016, and July 28, 2016, and then in a fourth session with Randall Wulff on 21 December 7, 2016. In a Joint Status Report filed on December 23, 2016, the parties informed the 22 Court that they had reached a settlement-in-principle to resolve the Action. (Dkt. 222). 23 Thereafter, the parties memorialized the settlement in the Settlement Agreement executed on 24 March 1, 2017 and filed herewith as Exhibit 1 to the Joint Declaration of Michael W. Sobol and 25 Hank Bates (“Joint Declaration”). 26 III. 27 28 THE PROPOSED SETTLEMENT TERMS AND SCHEDULE OF EVENTS The Settlement achieves and memorializes significant changes to Facebook’s practices related to the use of URLs in private messages that address each of the three challenged practices -4- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 certified for class treatment by the Court and detailed in the operative Second Amended 2 Complaint, bringing Facebook’s practices related to the use of URLs in private messages within 3 compliance, in Class Counsel’s view, of both ECPA and CIPA. Specifically, in consideration for 4 the dismissal of the Action with prejudice and the releases provided in the Settlement Agreement, 5 Facebook has agreed to the following: 6 7 1. Cessation of the Three URL Uses Relevant to this Class Action In the Settlement Agreement, Facebook confirms that the following uses of data from 8 EntShares created from URLs sent in Facebook Messages during the Class Period have ceased, as 9 of the dates set forth below specific to each use: 10 • “Like” Count Increment. From the beginning of the Class Period until on or 11 about December 19, 2012, Facebook source code was engineered so that when an 12 anonymous, aggregate count was displayed next to a “Like” button on a third-party 13 web page, that count often included, inter alia, the number of times a URL related 14 to that particular website had been shared by Facebook users in Facebook 15 Messages and resulted in creation of an EntShare. On or about December 19, 16 2012, Facebook changed its source code such that the external count no longer 17 included the number of shares, by users, of URLs in private messages that resulted 18 in creation of EntShares. Settlement Agreement ¶ 40(a)(i). 19 • Sharing of URL Data with Third Parties. Facebook makes its “Insights” user 20 interface and related API available to owners of third-party websites that choose to 21 include Facebook tools or features, for purposes of providing anonymous, 22 aggregate data about interaction with and traffic to their websites. During certain 23 periods of time during the Class Period, this information included anonymous, 24 aggregate statistics and demographic information about users who shared links to 25 those sites across the Facebook platform. From the beginning of the Class Period 26 until on or about October 11, 2012, these statistics and demographic information 27 included information about users who shared URLs in Facebook Messages that 28 resulted in creation of EntShares. On or about October 11, 2012, Facebook -5- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 changed its source code such that it ceased including information about URL 2 shares in Facebook Messages that resulted in creation of EntShares (and attendant 3 statistics and demographic information) within Insights and its related API. 4 Settlement Agreement ¶ 40(a)(ii). 5 • Use of URL Data to Generate Recommendations. Facebook’s 6 Recommendations Feed was a social plugin offered to developers that displayed a 7 list of URLs representing the most recommended webpages on that developer’s 8 site. Over time, two different units of Facebook source code determined the list of 9 URLs that would appear in the Recommendations Feed for a given webpage at a 10 given time. One of those units of Facebook source code was the “PHP backend.” 11 Although, during the Class Period, the PHP backend was not the primary system 12 determining the list of URLs that would appear in the Recommendations Feed, the 13 PHP backend served as a backup system if the primary system failed. The PHP 14 backend considered, inter alia, an anonymous, aggregate count of, inter alia, the 15 number of times a URL had been shared in a Facebook Message and resulted in 16 creation of an EntShare. On or about July 9, 2014, Facebook changed its code 17 such that it ceased utilizing the PHP backend as the backup system for its 18 Recommendations Feed. Settlement Agreement ¶ 40(a)(iii). 19 • Use of EntShares created from URLs in Messages. In addition, Facebook 20 confirms that, as of the date of execution of the Settlement Agreement, it is not 21 using any data from EntShares created from URL attachments sent by users in 22 Facebook Messages for: 1) targeted advertising; 2) sharing personally identifying 23 user information with third parties; 3) use in any public counters in the “link_stats” 24 and Graph APIs; and 4) displaying lists of URLs representing the most 25 recommended webpages on a particular web site. Settlement Agreement ¶ 40(b). 26 • Disclosure Changes. Facebook implemented enhanced disclosures after the filing 27 of this Action that benefited the Class. Specific to the private message function, in 28 January 2015, Facebook revised its Data Policy to disclose that Facebook collects -6- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 the “content and other information” that people provide when they “message or 2 communicate with others,” and to further explain the ways in which Facebook may 3 use that content. Settlement Agreement ¶ 40(c). Facebook has taken the position 4 that these changes—implemented during the course of this litigation—were 5 significant and transparent enough to establish consent to the practices complained 6 of in this action (or at minimum neutralize any further suggestion that Facebook 7 users were not aware of the practices complained of in this action). 8 9 • Additional Explanatory Language. Pursuant to the Settlement Agreement, Facebook will display the following additional language, without material 10 variation, on its United States website for Help Center materials concerning 11 messages within 30 days of the Effective Date: “We use tools to identify and store 12 links shared in messages, including a count of the number of times links are 13 shared.” Facebook will make this additional language available on its United 14 States website for a period of one year from the date it is posted, provided however 15 that Facebook may update the disclosures to ensure accuracy with ongoing product 16 changes. Settlement Agreement ¶ 40(d). 17 In exchange for the foregoing consideration, the Action will be dismissed with prejudice 18 upon final approval of the Settlement, and the Settlement Class Members will thereby release all 19 claims which have been or could have been asserted against Facebook by any member of the 20 Settlement Class in this Action, with the caveat that the release provided under the Settlement 21 Agreement extends solely to claims for declaratory, injunctive, and non-monetary equitable relief. 22 No Settlement Class Member, with the exception of the Class Representatives, will release any 23 claim for monetary damages under CIPA or ECPA. Settlement Agreement, ¶¶ 44-49. In other 24 words, the class benefits and the class release parallel the contours of the class certified by the 25 Court. Additionally, Facebook has agreed not to take a position on an application by Class 26 Counsel for an award of $3,890,000 in Attorneys’ Fees and Expenses (which represents a 27 negative Lodestar multiplier), and for Service Awards in the amount of $5,000 to each of the 28 Class Representatives. Settlement Agreement, ¶¶ 57, 60. -7- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 Finally, pursuant to the Settlement Agreement, Facebook is obligated to serve notice of 2 the Settlement Agreement that meets the requirements of 28 U.S.C. § 1715, on the appropriate 3 federal and state officials no later than ten (10) days following the filing of this Settlement 4 Agreement with the Court. Settlement Agreement ¶ 56. As the class claims in this Action only 5 pertain to declaratory, injunctive, and non-monetary equitable relief and the proposed Class 6 Settlement does not include any release of monetary claims, notice to Class Members was not 7 required after the Court’s May 18, 2016 order certifying the class pursuant to Fed. R. 8 Civ. P. 23(b)(2) and is not required as part of the proposed Settlement. See Wal-Mart Stores, 9 Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011); Lilly v. Jamba Juice Co., No. 13-cv-02998-JST, 10 2015 U.S. WL 1248027, at *9 (N.D. Cal. Mar. 18, 2015) (“[E]ven if notified of the settlement, 11 the settlement class would not have the right to opt out from the injunctive settlement and the 12 settlement does not release the monetary claims of class members, [therefore] the Court 13 concludes that class notice is not necessary.”); In re Yahoo Mail Litig., No. 13-CV-4980-LHK, 14 2016 WL 4474612, at *5 (N.D. Cal. Aug. 25, 2016) (“[B]ecause Rule 23(b)(2) provides only 15 injunctive and declaratory relief, ‘notice to the class is not required.’”) (quoting in part Lyon v. 16 United States Immigration and Customs Enf’t, 300 F.R.D. 628, 643 (N.D. Cal. 2014)); Hart v. 17 Colvin, No. 15-cv-00623-JST, 2016 WL 6611002 at *9 (N.D. Cal. 2016); Kim v. Space Pencil, 18 Inc., No. C 11-03796 LB, 2012 WL 5948951 (N.D. Cal. 2012); Kline v. Dymatize Enterprises, 19 LLC, No. 15-cv-2348-AJB-RBB, 2016 WL 6026330 at *6 (S.D. Cal. 2016); Bee, Denning, Inc. v. 20 Capital Alliance Group, No. 13-cv-02654-BAS, 2016 WL 3952153 at *9 (S.D. Cal. 2016). 21 Consistent with the provisions of the Settlement, Plaintiffs respectfully propose the 22 23 following schedule: • 24 Class Counsel’s motions for final approval and for attorneys’ fees, costs and service awards: 30 days after the Court’s order of preliminary approval; 25 • Objection Deadline: 60 days after the Court’s order of preliminary approval; 26 • Deadline for parties to file a response to any comments or objections by a Class 27 28 Member: 74 days after the Court’s order of preliminary approval; • Final Approval Hearing: at least 100 days after the filing of this motion for -8- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 preliminary approval and at least 81 days after the Court’s order of preliminary 2 approval. 3 4 IV. CERTIFICATION OF THE PROPOSED SETTLEMENT CLASS IS APPROPRIATE 5 The parties agree that for purposes of settlement only, the class certified by the Court on 6 May 18, 2016 should be modified slightly to bring the end of the class period current to the date 7 of execution of the Settlement and to explicitly include Facebook users located in United States 8 territories. Accordingly, for the purposes of the provisional certification, the parties propose that 9 the Settlement Class be defined as follows: 10 12 All natural-person Facebook users located within the United States and its territories who have sent, or received from a Facebook user, private messages that included URLs in their content (and from which Facebook generated a URL attachment), from December 30, 2011 to March 1, 2017. 13 These revisions to the class definition do not materially change the analysis for class certification 14 pursuant to Rule 23(a) and Rule 23(b)(2) of a class for injunctive and declaratory relief. 15 Accordingly, as discussed below, for the same reasons the Court previously held in its May 18, 16 2016 Class Certification Order (Dkt. 192, “Class Cert. Order”), the proposed Settlement Class 17 meets the requirement of class certification set forth in Rule 23(a) and Rule 23(b)(2). 11 18 19 20 A. Rule 23(a) is Satisfied. 1. The Settlement Class Is Too Numerous to Permit Joinder. A case may be certified as a class action only if “the class is so numerous that joinder of 21 all members is impracticable.” Fed. R. Civ. P. 23(a)(1). While there is no fixed rule, numerosity 22 is generally presumed when the potential number of class members reaches forty (40). Jordan v. 23 Cnty. of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 24 810 (1982). In addition, “[b]ecause plaintiffs seek injunctive and declaratory relief, the 25 numerosity requirement is relaxed and plaintiffs may rely on [ ] reasonable inference[s] arising 26 from plaintiffs’ other evidence that the number of unknown and future members of [the] proposed 27 []class ... is sufficient to make joinder impracticable.” Arnott v. U.S. Citizenship & Immigration 28 Servs., 290 F.R.D. 579, 586 (C.D. Cal. Oct. 22, 2012) (all but last alteration in original) (quoting -9- MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 Sueoka v. U.S., 101 F. App’x 649, 653 (9th Cir. 2004)). 2 Here, numerosity is readily satisfied. The total Facebook audience in the United States is 3 estimated to be more than 190 million.3 Even if only a small fraction of Facebook users 4 embedded a URL in a private message during the Class period, the numerosity requirement would 5 easily be met. Indeed, the Court made such an inference in granting class certification for 6 purposes of litigation. Class Cert. Order, at 13. 7 2. 8 9 This Action Presents Common Questions of Law or Fact. Rule 23(a)(2) requires that there be one or more questions common to the class. See Hanlon v. Chrysler Corp, 150 F.3d 1011, 1019 (9th Cir. 1998); 1 Newberg § 3.10; see also Wal- 10 Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011). Plaintiffs “need only show the 11 existence of a common question of law or fact that is significant and capable of classwide 12 resolution.” In re Yahoo Mail Litig., 308 F.R.D. 577, 592 (N.D. Cal. 2015) (citations omitted). 13 The Court has already held that “a single common question is sufficient” to satisfy Rule 23(a)(2), 14 and that commonality is established by “the mere fact that Facebook creates a share object every 15 time a message is sent with a URL.” Class Cert. Order at 15. 16 3. 17 Class Representatives’ Claims are Typical of Those of the Settlement Class. 18 Rule 23(a)(3) requires that “the claims and defenses of the representative parties are 19 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality does not 20 require total identity between representative plaintiffs and class members. Armstrong v. Davis, 21 275 F.3d 849, 868 (9th Cir. 2001). Rather, typicality is satisfied so long as the plaintiffs’ claims 22 stem “from the same event, practice, or course of conduct that forms the basis of the class claims, 23 and is based upon the same legal theory.” Jordan, 669 F.2d at 1322; In re Juniper Networks Sec. 24 Litig., 264 F.R.D. 584, 589 (N.D. Cal. 2009) (“representative claims are ‘typical’ if they are 25 reasonably co-extensive with those of absent class members”) (citation omitted). 26 27 28 Here, the Class Representatives’ claims stem from the same common course of conduct as 3 https://www.statista.com/statistics/268136/top-15-countries-based-on-number-of-facebookusers/ - 10 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 the claims of the Class Members. Class Representatives and the Class Members contend that 2 they did not consent to Facebook’s processing of their electronic communications, which conduct 3 forms the basis for this suit. Facebook’s conduct is common to all Class Members and represents 4 a common thread of conduct resulting in injury to all Class Members. The injunctive and 5 declaratory relief achieved by the Settlement would apply to all Class Representatives and Class 6 Members equally. As the Court has already held, “Plaintiffs argue that they are users who have 7 sent private messages containing a URL link, and that Facebook intercepted the URL content of 8 their messages in the same manner that it did with the rest of the class’s messages,” and 9 accordingly, “the typicality requirement is met.” Class Cert. Order, at 16. 10 11 12 4. Class Representatives and Their Counsel Will Fairly and Adequately Protect the Interests of the Settlement Class Members. Rule 23(a)(4) requires that the representative plaintiffs will “fairly and adequately” protect 13 the interests of the class. The two-prong test for determining adequacy is: “(1) Do the 14 representative plaintiffs and their counsel have any conflicts of interest with other class 15 members?; and (2) will the representative plaintiffs and their counsel prosecute the action 16 vigorously on behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003); 17 Hanlon, 150 F.3d at 1020. Both prongs are satisfied here. 18 First, the Class Representatives’ interests are aligned with, and not antagonistic to, the 19 interests of the Settlement Class Members. Indeed, the Class Representatives and the Settlement 20 Class Members are equally interested in ensuring that Facebook’s treatment of, and practices 21 regarding, the content of their private communications are conducted in compliance with ECPA 22 and CIPA. See Hanlon, 150 F.3d at 1021 (adequacy satisfied where “each…plaintiff has the 23 same problem”). Accordingly, the Class Representatives will fairly and adequately protect the 24 interests of all Settlement Class Members. 25 Second, Class Counsel have extensive experience litigating and settling class actions, 26 including consumer cases throughout the United States. See Joint Decl., ¶¶ 17-22. Class Counsel 27 are well-qualified to represent the Settlement Class. In addition, Class Counsel, along with the 28 Class Representatives, have vigorously litigated this action in order to protect the interests of the - 11 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 Settlement Class and maximize the relief obtained for all Settlement Class Members, as 2 evidenced by, inter alia, the terms of the proposed Settlement. See Joint Decl., ¶¶ 6-14, 23-27. 3 In granting class certification for purposes of litigation, the Court found “no indication 4 that either plaintiffs or their counsel has any conflict with the Class Members, nor any reason to 5 believe that they would not prosecute this action vigorously on behalf of the Class. 6 Accordingly…the adequacy requirement [is] met.” Class Cert. Order at 17. Since the Court’s 7 order granting class certification, Class Counsel have continued to vigorously litigate this action 8 and have further engaged in extensive settlement negotiations, further evidencing that 9 Rule 23(a)’s adequacy requirement remains satisfied. 10 B. 11 In addition to the requirements of Rule 23(a), at least one of the prongs of Rule 23(b) must The Requirements of Rule 23(b)(2) are Satisfied. 12 be satisfied. Here, the proposed Settlement Class satisfies Rule 23(b)(2), which permits a class 13 action if the Court finds that “the party opposing the class has acted or refused to act on grounds 14 that apply generally to the class, so that final injunctive relief or corresponding declaratory relief 15 is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). 16 Under identical circumstances, courts in this District have held that the requirements of 17 Rule 23(b)(2) are satisfied where “all emails sent from and to [an electronic communication 18 service provider’s] subscribers are subject to the same interception and scanning processes.” In 19 re Yahoo Mail Litig., 308 F.R.D. at 598 (“Yahoo”). Like this Action, Yahoo dealt with an 20 electronic communication service provider’s common policy and practice of processing electronic 21 communications in a manner that allegedly resulted in interception and the extraction of message 22 content. Id. Where, as here, the plaintiffs sought “uniform relief” addressing commonly- and 23 consistently-applied message-scanning practices, the Yahoo court held that the requirements of 24 Rule 23(b)(2) were satisfied. Id. at 600. 25 In the instant matter, the Court has found the reasoning in Yahoo persuasive and adopted 26 same with regard to the facts of this case, finding that certification under Rule 23(b)(2)—for 27 injunctive and declaratory relief only—was proper. Class Cert. Order, at 27-29 (citing Yahoo, 28 308 F.R.D. at 598-601). - 12 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 C. 2 Public policy “strong[ly] … favors settlements, particularly where complex class action Preliminary Approval of the Settlement is Appropriate. 3 litigation is concerned.” Pilkington v. Cardinal Health, Inc., 516 F.3d 1095, 1101 (9th Cir. 4 2008); Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); Class 5 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). 6 “[T]he decision to approve or reject a settlement is committed to the sound discretion of 7 the trial judge because he is exposed to the litigants and their strategies, positions, and proof.” 8 Hanlon, 150 F.3d at 1026. In exercising such discretion, the Court should give “proper deference 9 to the private consensual decision of the parties…[T]he court’s intrusion upon what is otherwise a 10 private consensual agreement negotiated between the parties to a lawsuit must be limited to the 11 extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or 12 overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a 13 whole, is fair, reasonable and adequate to all concerned.” Hanlon, 150 F.3d at 1027; see also 14 Fed. R. Civ. P. 23(e)(2). 15 The proposed Settlement here satisfies the standard for preliminary approval because: 16 (a) it is within the range of possible approval; (b) there is no reason to doubt its fairness because it 17 is the product of hard-fought, arm’s-length negotiations between the parties and was only reached 18 after a thorough investigation by Class Counsel of the facts and the law; and (c) Class 19 Representatives and Class Counsel believe it is in the best interest of the Settlement Class. 20 1. The Settlement Falls Within the Range of Possible Approval 21 To grant preliminary approval of the proposed Settlement, the Court need only find that it 22 falls within “the range of reasonableness.” Alba Conte et al., Newberg on Class Actions § 11.25, 23 at 11-91 (4th ed. 2002). The Manual for Complex Litigation (Fourth) (2004) (“Manual”) 24 characterizes the preliminary approval stage as an “initial evaluation” of the fairness of the 25 proposed settlement made by the court on the basis of written submissions and informal 26 presentation from the settling parties. Manual § 21.632. Evaluating where a proposed settlement 27 falls within this spectrum entails focus “on substantive fairness and adequacy,” and weighing 28 “Plaintiffs’ expected recovery … against the value of the settlement offer.” Hendricks v. Starkist - 13 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 Co, No. 13-cv-00729-HSG, 2015 WL 4498083, at *6 (N.D. Cal. July 23, 2015) (quotation 2 omitted). 3 Here, consistent with the Court’s May 18, 2016 Order certifying an injunctive relief class, 4 Plaintiffs sought classwide declaratory, injunctive, and non-monetary equitable relief under 5 ECPA and CIPA related to three specific uses by Facebook of URLs in private messages, as 6 detailed in the operative Second Amended Complaint. While Facebook has vigorously contested 7 its liability, the terms of the Settlement provide meaningful, targeted relief that addresses all three 8 URL uses alleged in the operative Second Amended Complaint in a manner that Class 9 Representatives contend brings Facebook’s practices into compliance with Class Representatives’ 10 view of both ECPA and CIPA. 11 In contrast to the tangible, immediate benefits of the Settlement, the outcome of continued 12 litigation, trial and potential appeal is uncertain and could add years to this litigation. Facebook 13 has vigorously denied any wrongdoing, and, absent settlement, Class Representatives anticipate 14 Facebook would defend this action aggressively at multiple, procedural steps prior to trial, 15 including a motion for summary judgment. While Class Representatives strongly believe in the 16 merits of their case, they recognize that the law is in relative infancy in the context of ECPA’s 17 application to electronic messages, and this uncertainty presents at least some element of risk at 18 multiple, critical junctures in this Action. For instance, the parties have advanced conflicting 19 interpretations of certain elements of Class Representatives’ ECPA claim, including the 20 definitions and effect of the terms “in transit” and “storage,” and Class Representatives may face 21 the risk on appeal that the Ninth Circuit might agree with Facebook’s interpretation of these 22 terms. 23 While Class Representatives firmly believe in the strength of their claims, and have 24 amassed substantial evidence in support of those claims through the discovery process, there is at 25 least some risk that, absent a settlement, Facebook might prevail in motion practice, at trial, or on 26 appeal, resulting in no relief to the Class. This weighs in favor of preliminary approval. See, e.g., 27 Rodriguez v. West Publishing Corp., 563 F.3d 963, 966 (9th Cir. 2009) (noting that the 28 elimination of “[r]isk, expense, complexity, and likely duration of further litigation,” including, - 14 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 inter alia, an “anticipated motion for summary judgment, and … [i]nevitable appeals would likely 2 prolong the litigation, and any recovery by class members, for years,” which facts militated in 3 favor of approval of settlement); Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972) (“[I]n any 4 case there is a range of reasonableness with respect to a settlement—a range which recognizes the 5 uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily 6 inherent in taking any litigation to completion.”). 7 Ultimately, Facebook has agreed to provide the injunctive relief sought on behalf of the 8 Settlement Class—namely, it has implemented and confirmed substantial changes to both its 9 business practices and to its disclosures and Help Center materials, which Class Representatives 10 contend bring Facebook’s business practices into compliance with their view of ECPA and CIPA. 11 Similarly, the release obtained by Facebook only extends to Settlement Class Members’ claims 12 for declaratory, injunctive, and non-monetary equitable relief. No Settlement Class Member, 13 with the exception of the Class Representatives, will release any claim for damages. See In re 14 Yahoo Mail Litig., No. 13-cv-04980-LHK (N.D. Cal.) (ECF No. 182) (N.D. Cal. Mar. 15, 2016) 15 (holding, under analogous circumstances, that a very similar result obtained on behalf of a class 16 of email users and certified under Rule 23(b)(2) was within the range of possible approval). 17 In sum, the Settlement provides substantial, meaningful relief to all Settlement Class 18 Members based on the strengths of their claims without delay and is within the range of possible 19 approval, particularly in light of the above risks that Settlement Class Members would face in 20 further litigation. 21 2. 22 The Settlement is the Product of Arm’s-Length Negotiations After a Thorough Investigation, Without a Trace of Collusion 23 “Before approving a class action settlement, the district court must reach a reasoned 24 judgment that the proposed agreement is not the product of fraud or overreaching by, or collusion 25 among, the negotiating parties.” City of Seattle, 955 F.2d at 1290. Where a settlement is the 26 product of arm’s-length negotiations conducted by capable and experienced counsel, the court 27 begins its analysis with a presumption that the settlement is fair and reasonable. See 4 Newberg 28 § 11.41; In re Heritage Bond Litig., No. 02-ML-1475-DT, 2005 WL 1594403, at *2 (C.D. Cal. - 15 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 2 June 10, 2005); Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980). Here, the Settlement was reached after informed, extensive arm’s-length negotiations. 3 First, the Settlement was reached after a thorough investigation into and discovery of the legal 4 and factual issues in the Action. In particular, before filing suit, Class Counsel conducted an 5 extensive investigation into the factual underpinnings of the practices challenged in the Action, as 6 well as the applicable law. In addition to their pre-filing efforts, Class Counsel engaged in 7 extensive discovery, including the review of tens of thousands of pages of documents, fact and 8 expert depositions of 18 witnesses (spanning 19 days of testimony), a detailed review (totaling 9 hundreds of hours) of highly technical documentation relevant to the private message function, 10 substantial discovery motion practice and the exchange of hundreds of pages of written discovery 11 requests and responses. 12 Second, the Settlement was reached only after the parties participated in three in-person 13 mediation sessions before experienced mediators Randall Wulff and Cathy Yanni as well as 14 multiple telephone conferences with the mediators. These mediation sessions were informed 15 through the exchange of confidential mediation statements, which discussed the strengths and 16 weaknesses of both Class Representatives’ allegations and Facebook’s potential defenses and 17 relevant documents related thereto. Throughout the mediation sessions, counsel vigorously 18 advocated for their respective clients’ positions. Notwithstanding the contentious nature of the 19 mediation sessions, the parties were able to come to an agreement in principle with the assistance 20 of both mediators. 21 In sum, the Settlement was reached only after Class Counsel conducted an extensive 22 factual investigation and discovery into the Facebook’s alleged misconduct and thoroughly 23 researched the law pertinent to Class Representatives’ and Class Members’ claims and 24 Facebook’s defenses. Consequently, Class Counsel had a wealth of information at their disposal 25 before entering into settlement negotiations, which allowed Class Counsel to adequately assess 26 the strengths and weaknesses of the case and to balance the benefits of settlement against the risks 27 of further litigation. Nothing in the course of the negotiations or in the substance of the proposed 28 Settlement presents any reason to doubt the Settlement’s fairness. - 16 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 3. The Recommendation of Experienced Counsel Favors Approval. In considering a proposed class settlement, “[t]he recommendations of plaintiffs’ counsel 2 3 should be given a presumption of reasonableness.” Knight v. Red Door Salons, Inc., No. 08- 4 01520 SC, 2009 WL 248367, at *4 (N.D. Cal. Feb. 2, 2009); see also Linney v. Cellular Alaska 5 P’ship, No. C-96-3008 DLJ, 1997 WL 450064, at *5 (N.D. Cal. July 18, 1997). Here, Class 6 Counsel endorse the Settlement as fair, adequate, and reasonable. Joint Decl., ¶¶ 23-27. 7 As demonstrated herein and in each respective firm’s resume, Class Counsel have 8 extensive experience litigating and settling consumer class actions and other complex matters (see 9 Joint Decl., ¶¶ 17-22) and have conducted an extensive investigation into the factual and legal 10 issues raised in this Action (see Joint Decl., ¶¶ 6-14, 23-27). Using their experience and 11 knowledge, Class Counsel have weighed the benefits of the Settlement against the inherent risks 12 and expense of continued litigation, and they strongly believe that the proposed Settlement is fair, 13 reasonable, and adequate. The fact that qualified and well-informed counsel endorse the 14 Settlement as being fair, reasonable, and adequate weighs in favor of approving the Settlement. 15 V. CONCLUSION 16 For the foregoing reasons, Plaintiffs respectfully request that the Court do the following: 17 a. Grant preliminary approval of the proposed Class Action Settlement Agreement (“Settlement”) entered into between the parties;4 b. Certify the Settlement Class as defined in the Settlement; c. Appoint Plaintiffs as Settlement Class Representatives of the proposed Class; d. Appoint Lieff Cabraser Heimann & Bernstein LLP and Carney Bates & Pulliam PLLC as Class Counsel for the proposed Settlement Class; e. Stay all non-Settlement related proceedings in the above-captioned case (the “Action”) pending final approval of the Settlement; and f. Set a Fairness Hearing and certain other dates in connection with the final approval of the Settlement. 18 19 20 21 22 23 24 25 26 27 28 4 See Exhibit 1 to the Joint Declaration of Michael W. Sobol and Hank Bates. - 17 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH 1 2 Dated: March 1, 2017 Respectfully submitted, CARNEY BATES & PULLIAM, PLLC 3 4 5 6 7 8 9 10 11 12 13 14 15 16 By:/s/ Hank Bates Hank Bates (State Bar No. 167688) hbates@cbplaw.com Allen Carney acarney@cbplaw.com David Slade dslade@cbplaw.com 519 West 7th Street Little Rock, AR 72201 Telephone: 501.312.8500 Facsimile: 501.312.8505 Michael W. Sobol (State Bar No. 194857) msobol@lchb.com David T. Rudolph (State Bar No. 233457) drudolph@lchb.com Melissa Gardner (State Bar No. 289096) mgardner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 21 Rachel Geman rgeman@lchb.com Nicholas Diamand ndiamand@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: 212.355.9500 Facsimile: 212.355.9592 22 Class Counsel 17 18 19 20 23 24 25 26 ATTESTATION I, Michael W. Sobol, am the ECF user whose identification and password are being used in this filing. I hereby attest that Hank Bates has concurred in this filing. 27 28 /s/ Michael W. Sobol Michael W. Sobol, Esq. - 18 - MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 4:13-CV-05996-PJH

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