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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MATTHEW CAMPBELL and MICHAEL
HURLEY,
Plaintiffs,

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Case No. C 13-05996 PJH-SK
CLASS ACTION
[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT

v.
FACEBOOK, INC.,
Defendant.

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No. 13-05996 PJH-SK

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WHEREAS, the above-entitled action is pending before this Court (the “Action”);

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WHEREAS, the Plaintiffs having moved, pursuant to Federal Rule of Civil Procedure 23(e),

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for an order approving the Settlement of this Action, in accordance with the Class Action Settlement

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Agreement (“Settlement Agreement”) attached as Exhibit 1 to the Declaration of Class Counsel in

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Support of Plaintiffs’ Motion for Preliminary Approval of Class Settlement filed on March 1, 2017,

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which sets forth the terms and conditions for a proposed settlement of the Action and for dismissal of

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the Action with prejudice upon the terms and conditions set forth therein; and the Court having read

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and considered the Settlement Agreement and having heard any argument of counsel; and

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WHEREAS, all defined terms herein have the same meanings as set forth in the Settlement
Agreement.

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NOW, THEREFORE, IT IS HEREBY FOUND AND ORDERED:

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1.

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the Action, including all Settlement Class Members.

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This Court has jurisdiction over the subject matter of the Action and over all Parties to

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The Court does hereby preliminarily approve the Settlement Agreement and the

Settlement set forth therein, subject to further consideration at the Fairness Hearing described below.

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3.

The Court finds on a preliminary basis that the Settlement as set forth in the

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Settlement Agreement falls within the range of reasonableness and therefore meets the requirements

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for preliminary approval.

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4.

The Court conditionally certifies, for settlement purposes only (and for no other

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purpose and with no other effect upon the Action, including no effect upon the Action should the

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Settlement Agreement not receive final approval or should the Effective Date not occur), a class

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defined as all natural-person Facebook users located within the United States and its territories who

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have sent, or received from a Facebook user, private messages that included URLs in their content

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(and from which Facebook generated a URL attachment), from December 30, 2011 to March 1, 2017.

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The only changes between the Settlement Class and the class certified by the Court on May 18, 2016,

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are (1) the explicit inclusion of Facebook users located in United States territories, and (2) bringing

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the end of the class period current to the date of settlement. Excluded from the Settlement Class are

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(i) all Persons who are directors, officers, and agents of Facebook or its subsidiaries and affiliated
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No. 13-05996 PJH-SK
1340836.1

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companies or are designated by Facebook as employees of Facebook or its subsidiaries and affiliated

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companies; and (ii) the Court, the Court’s immediate family, and Court staff, as well as any appellate

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court to which this matter is ever assigned, and its immediate family and staff.

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The Court finds, for settlement purposes only, that the expansion of the certified class

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to include all Settlement Class Members is appropriate under Federal Rule of Civil Procedure

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23(b)(2) in the settlement context because (1): the Defendant is alleged to have acted or refused to act

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on grounds that apply generally to the Settlement Class, so that the described injunctive and non-

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monetary relief is appropriate with respect to the Settlement Class as a whole; and (2): (a) the

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Settlement Class Members are so numerous that joinder of all Class Members in the class action is

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impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims

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of the Class Representatives are typical of the claims of the Class; (d) the Class Representatives and

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their counsel will fairly and adequately represent and protect the interests of the Class Members; and

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(e) a class action is superior to other available methods for the fair and efficient adjudication of the

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controversy.

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6.

The Court finds that, subject to the Fairness Hearing, the Settlement Agreement is fair,

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reasonable, adequate, and in the best interests of the Settlement Class. The Court further finds that

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the Settlement Agreement substantially fulfills the purposes and objectives of the class action and

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provides beneficial relief to the Settlement Class. The Court also finds that the Settlement

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Agreement: (a) is the result of serious, informed, non-collusive arms’-length negotiations, involving

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experienced counsel familiar with the legal and factual issues of this case and made with the

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assistance and supervision of a mediator; (b) meets all applicable requirements of law, including

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Federal Rule of Civil Procedure 23, and the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715;

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and (c) is not a finding or admission of liability by Defendant.

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Notice of the settlement is not required here. See Fed. R. Civ. P. 23(c)(2)(A) (stating

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that under Rule 23(b)(2) the court “may direct appropriate notice to the class”) (emphasis added).

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The Court finds that notice also is not required because the Settlement Agreement only releases

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claims for injunctive and/or declaratory relief and does not release the monetary or damages claims of

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the Class (see Settlement Agreement, ¶ 49), and thus the settlement expressly preserves the individual
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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rights of class members to pursue monetary claims against the defendant. See, e.g., Lilly v. Jamba

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Juice Co., No. 13-cv-02998-JST, 2015 WL 1248027, at *8–9 (N.D. Cal. Mar. 18, 2015); Kim v.

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Space Pencil, Inc., No. 11-cv-03796-LB, 2012 WL 5948951, at *4, 17 (N.D. Cal. Nov. 28, 2012).

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The Court finds that the CAFA Notice sent by Facebook complied with 28 U.S.C.

§ 1715 and all other provisions of the Class Action Fairness Act of 2005.
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Each Settlement Class Member shall be given a full opportunity to comment on or

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object to the Settlement Agreement, and to participate at a Fairness Hearing. Comments or

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objections must be in writing, and must include (1) the name and case number of the Action

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(Campbell et al. v. Facebook, Inc., Case No. 13-5996-PJH); (2) the Settlement Class Member’s full

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legal name and mailing address; (3) the personal signature of the Settlement Class member; (4) the

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grounds for any objection; (5) the name and contact information of any and all attorneys representing,

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advising, or assisting with the comment or objection, or who may profit from pursuing any objection;

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and (6) a statement indicating whether the Settlement Class Member intends to appear at the Final

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Approval Hearing, either personally or through counsel.

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To be considered, written comments or objections must be submitted to the Court

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either by mailing them to Class Action Clerk, United States District Court for the Northern District of

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California, 1301 Clay Street, Oakland, California 94612, or by filing them in person at any location

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of the United States District Court for the Northern District of California, within 60 days after the

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entry of this Order. No Class Member shall be entitled to be heard at the Final Approval Hearing,

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whether individually or through counsel, unless written notice of the Class Member’s intention to

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appear at the Final Approval Hearing is timely filed, or postmarked for mail to the Court within 60

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days after date of entry of this Order.

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The date of the postmark on the envelope containing the written objection shall be the

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exclusive means used to determine whether an objection has been timely submitted. Class Members

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who fail to mail timely written objections in the manner specified above shall be deemed to have

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waived any objections and shall be forever barred from objecting to the Settlement Agreement and

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the proposed settlement by appearing at the Final Approval Hearing, appeal, collateral attack, or

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otherwise.
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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12.

The Court appoints Plaintiffs Michael Hurley and Matthew Campbell as the Class

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Representatives, and the law firms of Lieff Cabraser Heimann & Bernstein, LLP and Carney Bates &

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Pulliam, PLLC as Class Counsel.

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A hearing (the “Fairness Hearing”) shall be held before this Court on __________,

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2017, at _____.m., at the United States District Court for the Northern District of California, Oakland

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Courthouse, Courtroom 3 – 3rd Floor, 1301 Clay Street, Oakland, California 94612, to determine

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whether the proposed settlement of the Action on the terms and conditions provided for in the

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Settlement Agreement is fair, reasonable, and adequate to the Settlement Class and should be finally

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approved by the Court; whether a Final Approval Order and Final Judgment as provided in the

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Settlement Agreement should be entered; and to determine any amount of fees, costs, and expenses

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that should be awarded to Class Counsel and any award to the Class Representatives for their

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representation of, or service on behalf of, the Settlement Class. All Settlement Class Members will

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be bound by any Final Approval Order and Final Judgment dismissing the Action with prejudice.

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Class Counsel’s application for attorneys’ fees, costs and expenses shall be filed and

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served no later than thirty (30) days after the Court’s order of preliminary approval. Any opposition,

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comment, or objection shall be filed no later than sixty (60) days after the Court’s order of

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preliminary approval. Any reply shall be filed no later than seventy-four (74) days after the Court’s

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order of preliminary approval.

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The motion in support of final approval of the settlement shall be filed and served no

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later than thirty (30) days after the Court’s order of preliminary approval. Any opposition or

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objection shall be filed no later than sixty (60) days after the Court’s order of preliminary approval.

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Any reply shall be filed no later than seventy-four (74) days after the Court’s order of preliminary

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approval.

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At or after the Fairness Hearing, the Court shall determine whether any application for

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attorneys’ fees, costs and expenses, and any award to the Class Representatives for their

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representation of, and service to, the Class, should be approved.

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Neither this order, the fact that a settlement was reached and filed, the Settlement

Agreement, nor any related negotiations, statements, or proceedings shall be construed as, offered as,
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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admitted as, received as, used as, or deemed to be an admission or concession of liability or

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wrongdoing whatsoever or breach of any duty on the part of Defendant. This order is not a finding of

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the validity or invalidity of any of the claims asserted or defenses raised in the Action. In no event

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shall this order, the fact that a settlement was reached, the Settlement Agreement, or any of its

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provisions or any negotiations, statements, or proceedings relating to it in any way be used, offered,

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admitted, or referred to in the Action except by the settling Parties and only the settling Parties in a

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proceeding to enforce the Settlement Agreement.

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The Court reserves the right to adjourn the date of the Fairness Hearing and retains

jurisdiction to consider all further applications arising out of or connected with the proposed

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Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by

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the settling Parties, if appropriate, without further notice.

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All discovery and proceedings in this Action are stayed until further order of this

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Court, except as may be necessary to implement the Settlement or comply with the terms of the

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Settlement Agreement. Settlement Class Members and their Legally Authorized Representatives are

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preliminarily enjoined from filing or otherwise participating in any other suit based on the Released

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Claims in the Settlement Agreement.

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The Court retains jurisdiction over the Action to consider all further matters arising

out of or connected with the Settlement Agreement and the Settlement described therein.

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IT IS SO ORDERED.

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DATED: _____________
HONORABLE PHYLLIS J. HAMILTON
UNITED STATES DISTRICT JUDGE

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT