Hibnick v. Google Inc., No. 5:2010cv00672 - Document 120 (N.D. Cal. 2011)
Court Description: Proposed Order re 119 Reply to Opposition/Response,,, and Final Judgment Granting Final Approval of Class Action Settlement and Awarding Attorneys' Fees by Eva Hibnick. (Ram, Michael) (Filed on 3/25/2011) (Entered: 03/25/2011)
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Hibnick v. Google Inc. 1 2 3 4 5 6 7 8 9 10 Doc. 120 Gary E. Mason (pro hac vice) gmason@masonlawdc.com Donna F. Solen (pro hac vice) dsolen@masonlawdc.com MASON LLP 1625 Massachusetts Ave., NW Washington, DC 20036 Telephone: (202) 429-2290 Facsimile: (202) 429-2294 Michael F. Ram (SBN 104805) mram@ramolson.com RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: (415) 433-4949 Facsimile: (415) 433-7311 Attorneys for Plaintiffs and the Proposed Class 11 12 13 14 15 16 17 18 19 20 THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE GOOGLE BUZZ USER PRIVACY LITIGATION No.: 10-00672 JW This Document Relates To: ALL CASES [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES JUDGE: Hon. James Ware MEDIATOR: Hon. Fern Smith (Ret.) Original Complaint Filed: 02/17/10 21 22 WHEREAS, the Plaintiffs Andranik Souvalian, Katherine C. Wagner, Mark Neyer, Barry 23 Feldman, Rochelle Williams, John Case, and Lauren Maytin (collectively, “Plaintiffs”) and 24 Defendant Google Inc. (the “Defendant”) have moved for an order granting final approval to this 25 Class Action Settlement (“Settlement”) which received preliminary approval on October 7, 2010; 26 27 WHEREAS, the Parties appeared by their attorneys of record at a fairness hearing on February 7, 2011, after an opportunity having been given to all Class Members to be heard in 28 –1– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES Dockets.Justia.com 1 accordance with the Court’s Preliminary Approval Order, and having given due consideration to the 2 Parties’ Settlement Agreement, including all attached exhibits and related materials, the Motion, all 3 other papers filed in support, all objections to the Settlement, the complete record of the case, the 4 arguments at the February 7, 2011, hearing, and all other material relevant to this matter including 5 the Affidavit of the Settlement Administrator; WHEREAS, the Court has before it the parties’ Motion for Order Granting Final Approval of 6 7 Class Settlement, together with the Settlement Agreement and supporting materials; and 8 WHEREAS, the Court is satisfied that the terms and conditions set forth in the Settlement 9 Agreement were the result of good faith, arm’s length settlement negotiations between competent 10 and experienced counsel for both Plaintiffs and Defendant, assisted by a retired federal district judge 11 with extensive class action experience. 12 IT IS HEREBY ORDERED THAT: 13 1. 14 all terms as used in this Order shall have the meanings as set forth in the Settlement Agreement. 2. 15 16 3. The Settlement Agreement previously provided to the Court is adopted by the Court and made part of this Order as if set out in full herein. 4. 19 20 For purposes of this litigation, the Court has subject matter and personal jurisdiction over the Parties, including all Class Members. 17 18 This Order incorporates by reference the definitions in the Settlement Agreement, and Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b) (3), the proposed Class is hereby certified for settlement purposes only. The Settlement Class is defined as follows: 21 25 All Gmail users in the United States presented with the opportunity to use Google Buzz through the Notice Date. Excluded from the Class are: (1) Google, or any entity in which Google has a controlling interest, and its respective legal representatives, officers, directors, employees, assigns and successors; (2) the judge to whom this case is assigned and any member of the judge’s staff and immediate family; and (3) any person who, in accordance with the terms of this Agreement, properly executes and submits a timely request for exclusion from the Class. 26 5. 22 23 24 27 Pursuant to Federal Rule of Civil Procedure 23, and for purposes of settlement only, // 28 –2– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 1 the Court makes the following findings of fact and conclusions of law: 2 a. The Settlement Class is sufficiently definite; 3 b. The Settlement Class is so numerous that joinder of all members of the 4 Settlement Class is impracticable; 5 c. There are questions of law and/or fact common within the Settlement Class; 6 d. Plaintiffs’ claims are typical of the claims of the members of the Settlement e. Plaintiffs and their counsel have and will fairly and adequately represent and 7 Class; 8 9 protect the interests of the Settlement Class; 10 f. 11 the maintenance of this action; 12 g. 13 h. Certification of the Settlement Class is superior to other available methods for the fair and efficient adjudication of this controversy. 6. 16 17 The questions of law and/or fact common to the Settlement Class predominate over the questions affecting only individual members of the Settlement Class; and 14 15 Plaintiffs’ interests do not conflict with the interests of the Settlement Class in The Settlement Agreement and the terms contained therein are hereby approved as fair, reasonable, and adequate, and in the best interests of the class as a whole. 18 7. Gary E. Mason, Mason LLP, is hereby confirmed as Lead Class Counsel. 19 8. Michael F. Ram, Ram & Olson LLP, is hereby confirmed as Liaison Counsel. 20 9. William B. Rubenstein, Peter N. Wasylyk, Andrew S. Kierstead, Peter W. Thomas, 21 Thomas Genshaft, P.C.; Michael D. Braun, Braun Law Group, P.C.; Donald Amamgbo, Amamgbo 22 & Associates; Reginald Terrell, The Terrell Law Group; Jonathan Shub, Shub Law LLC; 23 Christopher A. Seeger, Seeger Weiss LLP; Lawrence Feldman, Lawrence E. Feldman & Associates; 24 Eric Freed, Freed & Weiss LLC; and Howard G. Silverman, Kane & Silverman P.C., are hereby 25 confirmed as Class Counsel. 10. 26 The Parties have provided notice in a manner consistent with the Order Granting 27 Motion for Preliminary Approval of Class Action Settlement and as set forth in the Settlement 28 // –3– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 1 Agreement. The notice, as implemented, met the requirements of due process and was the best 2 notice practicable under the circumstances. The notice was reasonably calculated, under the 3 circumstances, to apprise members of the Settlement Class of the pendency of the action, the terms 4 of the Settlement, and their right to appear, object to, or exclude themselves from the Settlement. 5 Further, the notice was reasonable and constituted due, adequate, and sufficient notice to all Persons 6 entitled to receive notice. The Defendant notified the appropriate federal and state officials pursuant 7 to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1715. 11. 8 Class Counsel retained The Garden City Group, Inc. to assist in disseminating Notice 9 in accordance with the terms of the Settlement Agreement and the Court’s Order Granting Motion 10 for Preliminary Approval of Class Action Settlement. It is apparent from the Affidavit of Jennifer 11 M. Keough in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and the 12 Declaration of Susan Fahringer and Declaration of Brian Stoler that the Notice was properly 13 implemented and effective. 12. 14 The Court has determined that full opportunity has been given to the members of the 15 Settlement Class to opt out of the Settlement, object to the terms of the Settlement or to Class 16 Counsel’s request for attorneys’ fees and expenses, and otherwise participate in the Final Approval 17 Hearing on February 7, 2011. The Court has considered all submissions and arguments provided by 18 Class Members objecting to the Settlement as well as Class Counsel’s response to those objections 19 and has determined that none of the objections warrants disapproval of the Settlement Agreement 20 and/or Plaintiffs’ request for attorneys’ fees and expenses. 13. 21 Following the February 7, 2011 Final Approval Hearing the Court issued an order on 22 February 16, 2011 directing the parties to solicit nominations from organizations interested in 23 receiving awards from the cy pres fund established by this Settlement and ordering Class Counsel to 24 consolidate the list and submit the cy pres organization and distribution amount nominations to this 25 Court before March 28, 2011. On March 25, 2011, Class Counsel reported to the Court that the 26 parties had received a total of 77 applications seeking more than $35 million altogether. Pursuant to 27 section 3.4 of the Settlement Agreement, counsel met and agreed to nominate a total of 12 groups for 28 // –4– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 1 $6,065,000 of funding. In accordance with the Court’s February 16, 2011 order, Class Counsel 2 submitted these organization and distribution amount nominations to the Court on March 25, 2011. 3 Having reviewed Class Counsel’s submission, the Court hereby approves the following list of 4 nominated organizations and amounts submitted by Class Counsel: 5 7 1. 2. 3. 8 4. 9 5. 6. 6 10 7. 8. 9. 11 12 13 10. 11. 12. 14 15 14. American Civil Liberties Union Berkeley Center for Law & Technology Berkeley Law School, Samuelson Law, Technology & Public Policy Clinic Berkman Center for Internet & Society at Harvard University Brookings Institution Carnegie Mellon, CyLab Usability, Privacy & Security Lab Center for Democracy & Technology Electronic Frontier Foundation Indiana University, Center for Applied Cybersecurity Research Stanford, Center for Internet & Society YMCA of Greater Long Beach Youth Radio $1,000,000 $200,000 $700,000 $700,000 $165,000 $350,000 $500,000 $1,000,000 $300,000 $600,000 $500,000 $50,000 The Court has carefully considered all the materials and arguments before it and has 16 made its independent judgment that (1) Plaintiffs and Class Members face significant risks if this 17 litigation were to proceed; (2) the possibility of a greater ultimate recovery is speculative and any 18 such recovery would only occur after considerable delay; (3) the terms of the Settlement provide 19 substantial and meaningful benefits to the Settlement Class; (4) the cy pres recipient organizations 20 will use the funds in a way that provides an indirect benefit to the class members consistent with the 21 class members’ claims herein; (5) the Settlement is the product of meaningful investigation in the 22 facts and circumstances of the launch of Google Buzz; (6) the settlement negotiations were 23 extensive, arms-length, under the direction of the Hon. Fern Smith, and without any collusion; (7) 24 the reaction by the Settlement Class has been in favor of the Settlement; and (8) experienced Class 25 Counsel support the Settlement. Accordingly, having considered the foregoing as well as the small 26 number of opt-outs and objections, the costs and risks and delays of continued litigation versus the 27 benefits provided by the Settlement, and based on this Court’s knowledge of this action, the Court 28 // –5– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 1 finds and concludes that the Settlement is in the best interests of the Class and is fair, reasonable, and 2 adequate to all Class Members. 3 Settlement Agreement. 15. 4 The Court therefore enters judgment in accordance with the The Settlement and the terms of the Settlement Agreement are accordingly granted 5 final approval and are confirmed as fair, reasonable and adequate and are binding upon all Class 6 Members who have not timely opted-out. 16. 7 The Parties are hereby directed to proceed with and complete implementation of the 8 Settlement, including payment to the cy pres recipients pursuant to Section 3.4 of the Settlement 9 Agreement. 17. 10 11 orders the release of all Class Members’ claims pursuant to Section 9 of the Settlement Agreement. 18. 12 13 The Court dismisses on the merits with prejudice all claims presently before it and Those Class Members who requested exclusion and who are listed on Exhibit 1 to the Affidavit of the Class Action Administrator are hereby excluded from this Settlement. 19. 14 The Court, having considered the request of Class Counsel for an award of attorneys’ 15 fees and reimbursement of expenses, hereby grants the request and awards Class Counsel attorneys’ 16 fees in the amount of $2,125,000. 17 percentage analysis and a lodestar multiplier analysis. The Court also grants Class Counsel’s request 18 for expense reimbursement equal to the amount of their reasonable expenses incurred in prosecuting 19 this action and in implementing this Settlement. The Court approves reimbursement of Class 20 Counsel’s expenses totaling $29,286.85, as submitted in December 2010, and orders Class Counsel 21 to submit their final costs for Court approval within 30 days of the date of this Order. The Court 22 also approves the requested incentive award of $2,500 for each Class Representative. 23 awarded fees, expenses, and reimbursements shall be paid out of the Common Fund. Any monies 24 remaining in the Common Fund after the payment of all cy pres distribution, fees, and expenses shall 25 be distributed, pro rata, among the cy pres recipient organizations. 20. 26 27 All court- All Parties are bound by this Final Order and Judgment and by the Settlement Agreement. 28 This amount was reasonable under both a common fund // –6– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 21. 1 Without affecting the finality of this Final Order and Judgment, the Court reserves 2 continuing and exclusive jurisdiction over the Parties and their counsel, including all Class Members 3 and their counsel with respect to the execution, consummation, administration, implementation, 4 effectuation and enforcement of the Settlement Agreement and this Order, including the entry of any 5 additional orders as may be necessary and appropriate relating to any and all issues including any 6 appeals. 7 IT IS SO ORDERED. 8 9 10 11 12 Dated: The Honorable James Ware United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –7– Case No. 10-0672 JW – [PROPOSED] ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES
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