In re Google Referrer Header Privacy Litigation, No. 15-15858 (9th Cir. 2017)Annotate this Case
The Ninth Circuit affirmed the district court's order approving the cy pres-only settlement arising from class action claims that Google violated users' privacy by disclosing their Internet search terms to owners of third-party websites. The panel held that the district court did not abuse its discretion in approving a cy pres- only settlement where the settlement funds were non-distributable; the district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible; the district court did not abuse its discretion in approving the six cy pres recipients; the district court appropriately found that the cy pres distribution addressed the objectives of the Stored Communications Act and furthered the interests of the class members; a prior relationship or connection between the cy pres recipient and the parties or their counsel, without more, was not an absolute disqualifier; and the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs.
Court Description: Stored Communications Act / Settlement. The panel affirmed the district court’s order approving the cy pres-only settlement of a class action brought under the Stored Communications Act and state law by Google Search users, alleging that Google violated their privacy by disclosing their Internet search terms to owners of third- party websites. The panel held that the district court did not abuse its discretion in approving the settlement, which provided that Google would pay a total of $8.5 million and provide information on its website disclosing how users’ search terms are shared with third parties, in exchange for a release of the claims of the approximately 129 million people who used Google Search in the United States between October 25, 2006 and April 25, 2014. Of the $8.5 million IN RE GOOGLE REFERRER HEADER PRIVACY LITIG. 3 settlement fund, approximately $3.2 million was set aside for attorneys’ fees, administration costs, and incentive payments to the named plaintiffs, and the remaining $5.3 million or so was allocated to six cy pres recipients. The panel held that the cy pres-only settlement, reached prior to class certification, was appropriate because the settlement fund was non-distributable. In addition, the fact that the settlement fund was non-distributable did not mean that a class action could not be the superior means of adjudicating the controversy under Fed. R. Civ. P. 23(b)(3). The panel held that approval of the settlement was not an abuse of discretion due to claimed relationships between counsel or the parties and some of the cy pres recipients. The panel held that a prior relationship or connection, without more, is not an absolute disqualifier. Rather, a number of factors, such as the nature of the relationship, the timing and recency of the relationship, the significance of dealings between the recipient and the party or counsel, the circumstances of the selection process, and the merits of the recipient play into the analysis. The panel also held that the district court did not abuse its discretion by approving the attorneys’ fees and costs. Concurring in part and dissenting in part, Judge Wallace agreed that a cy pre-only settlement was appropriate and that the district court did not abuse its discretion in calculating class counsel’s fees. Dissenting from Section II of the majority opinion, Judge Wallace wrote that the fact alone that 47% of the settlement was being donated to the alma maters of class counsel raised an issue which, in fairness, the district court should have pursued further. Judge Wallace would vacate the district court’s approval of the class settlement and remand with instructions to hold an evidentiary hearing, examine class counsel under oath, and 4 IN RE GOOGLE REFERRER HEADER PRIVACY LITIG. determine whether class counsel’s prior affiliation with the cy pres recipients played any role in their selection as beneficiaries.
- In re GOOGLE REFERRER HEADER PRIVACY LITIGATION, No. 5:2010cv04809 (N.D. Cal. Mar. 31, 2015)
- Frank v. Gaos, No. 17-961 (U.S. Mar. 20, 2019)