Hibnick v. Google Inc., No. 5:2010cv00672 - Document 122 (N.D. Cal. 2011)

Court Description: OBJECTIONS to re 120 Proposed Order and Final Judgment by Alison Jackson, Tanya Rudgayzer, Jon M. Zimmerman. (Furman, Joshua) (Filed on 3/30/2011) Modified on 4/1/2011 (cv, COURT STAFF). (Entered: 03/30/2011)
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Hibnick v. Google Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Doc. 122 Joshua R. Furman, Bar No. 225461 jrf@furmanlawyers.com JOSHUA R. FURMAN LAW CORP. 9663 Santa Monica Boulevard, No. 721 Beverly Hills, California 90210 Telephone: (310) 809-3016 Facsimile: (310) 861-0449 Attorney for Plaintiff-Objector, Jon M. Zimmerman Jeffrey P. Harris Alan J. Statman Melinda S. Nenning STATMAN, HARRIS & EYRICH, LLC 3700 Carew Tower, 441 Vine Street Cincinnati, Ohio 45202 Telephone: (513) 621-2666 Facsimile: (513) 621-4896 Attorneys for Plaintiff-Objector, Alison Jackson Daniel A. Osborn, Bar No. 132472 OSBORN LAW, P.C. 295 Madison Avenue, 39th Floor New York, New York 10017 Telephone: (212)725-9800 Facsimile: (212) 725-9808 Attorney for Plaintiff-Objector, Tanya Rudgayzer UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 19 20 IN RE GOOGLE BUZZ USER PRIVACY LITIGATION Case No.: CV 10-00672 JW 21 [Hon. James Ware, Courtroom 8] 22 OBJECTIONS TO PROPOSED ORDER AND FINAL JUDGMENT GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARDING ATTORNEYS’ FEES 23 24 25 26 27 28 1 Objections to Proposed Order Dockets.Justia.com 1 Plaintiff-Objectors JON M. ZIMMERMAN, ALISON JACKSON, and 2 TANYA RUDGAYZER, by and through their respective counsel above 3 (hereinafter, collectively, “Objectors”), object to the Proposed Order and Final 4 Judgment Granting Final Approval of Class Action Settlement and Awarding 5 Attorneys’ Fees as follows: 6 A. Proposed Cy Pres Recipients Include Primarily Industry- 7 Supported Organizations That Receive Substantial Funding 8 From Defendant 9 Objectors appreciate the need for a balanced selection of cy pres recipients. 10 However, in the arena of online privacy, it is extremely important to note that 11 there is a striking difference between the advocacy of groups that receive 12 substantial industry funding, and the groups that do not receive substantial 13 industry funding. 14 There are very few national organizations truly focused on online privacy, 15 and fewer still that play a significant role in public policy and consumer 16 protection actions directed at protecting privacy rights from commercial—not 17 governmental—interests. While both industry-funded and non-industry-funded 18 groups are potentially worthy candidates for funding many reasons, we believe it 19 is imperative for the purposes of the settlement and the benefit of the class that 20 organizations which typically do not receive substantial industry funding be 21 apportioned the bulk of the funding in this case. 22 To that end, there are several facts regarding the cy pres recipients proposed 23 by Class Counsel that raise red flags—both in terms of the information that Class 24 Counsel has provided to the Court and the information that Class Counsel has 25 omitted. 26 First, there are only 12 organizations selected, while over 77 applications 27 were received. (Class Counsel’s Submission Brief, p. 1:7–13.) 28 some of the most prolific and reputable consumer privacy organizations have been 2 Objections to Proposed Order In addition, 1 omitted from the list without explanation. While Objectors applaud the inclusion 2 of the Electronic Frontier Foundation and appreciate the value of organizations 3 like the Center for Democracy and Technology, the most active and long-standing 4 online privacy organization in the nation was omitted, the Electronic Privacy 5 Information Center. In addition, applicants with missions that would directly 6 benefit the class were omitted, including the Center for Digital Democracy. 7 Objectors are informed that both of these organizations applied for funding in this 8 matter. These are but two of the worthwhile, focused organizations that applied 9 for cy pres funding and were omitted by Class Counsel. 10 It also appears from Class Counsel’s filing that Defendant was involved in 11 deciding which nominees to submit to the Court. This participation likely played 12 a role in the omission of the groups identified above, because Defendant has 13 applied pressure on the Rose Foundation (utilized by Class Counsel here) in the 14 past to direct cy pres funding away from similar groups.1 15 In addition, Objectors are concerned that Defendant funds a large portion of 16 the existing budget of many of these groups, and often provides funding in excess 17 of the total budgets reported for online privacy programs. Many of the groups are 18 otherwise extremely well-funded or broad-based organizations that have a number 19 of programs not related to consumer privacy online. 20 Finally, many of these groups, or the institutions with which they are 21 affiliated, receive funding from Defendant or have other entanglements that were 22 not reported to the Court. Publicly available information reveals the following: 23 Berkley Center for Law & Technology reports “0” contributions from 24 Defendant, but Google, Inc. is listed as a current “Corporate Benefactor” of the 25 26 27 28 1 Wendy Davis, Google Tries to Kibosh Funding of Critic, MediaPost News, Online Media Daily (Feb. 25, 2009) available at http://www.mediapost.com/ publications/?fa=Articles.showArticle&art_aid=100929. 3 Objections to Proposed Order 1 Center (http://www.law.berkeley.edu/bcltsponsors.htm). In addition, the Center 2 lists law firm WilmerHale as a “Benefactor;” the firm represents Google. Google 3 is also a sponsor of the 2010 “Privacy Law Scholars Conference” convened by the 4 Center and George Washington University Law School (http://docs.law.gwu.edu/ 5 facweb/dsolove/PLSC/). 6 Carnegie Mellon, CyLab Usability, Privacy & Security Lab reports funding 7 from Defendant, but fails to report the access to Google “tools, technologies, and 8 expertise” 9 (http://research.google.com/university/relations/focused_research_awards.html). included with at least one of the grants it provided 10 Indiana University, Center for Applied Cybersecurity Research reports “0” 11 Defendant funding, but its director (http://www.fredhcate.com/affiliations.shtml) 12 is also a senior policy advisor for the Center for Information Policy and 13 Leadership, which does receive Google money (http://www.hunton.com/ 14 Resources/Sites/general.aspx?id=342). 15 Stanford Center for Internet & Society receives so much money from 16 Google (over 50 percent of its budget) that it has actually agreed to refrain from 17 all litigation involving Google (http://cyberlaw.stanford.edu/about). How it can 18 reconcile this position with being a further recipient of Google funding in this 19 lawsuit is unexplained. However, it is clear that an organization that bars itself 20 from being critical of Google cannot serve the class interest in a case like this. 21 The above concerns are by no means an exhaustive list of the hidden 22 conflicts of interest presented by Class Counsel’s selections. Objectors raise these 23 issues before the Court not to attack these organizations, many of which do 24 important work, but to heighten the Court’s awareness of the political landscape 25 from which the nominees were selected. 26 27 28 B. Class Counsel Improperly Sought Defendant’s Approval Prior to Submitting the List of Cy Pres Recipients to the Court Objectors also strongly question the basis for Defendant’s involvement in 4 Objections to Proposed Order 1 the selection process that resulted in the 12 nominees anointed by Class Counsel. 2 Objectors respectfully urge the Court to review all applications provided to Class 3 Counsel and not substitute Class Counsel’s Defendant-influenced judgment in 4 deciding which cy pres nominees to fund. 5 Pursuant to the original, flawed settlement agreement—to which Objectors 6 continue to strenuously object—Class Counsel and Google were to mutually agree 7 on the cy pres recipients. (Settlement Agreement, ¶ 3.4(b).) Objectors argued at 8 length that any such mystery cy pres award was improper (E.g., Zimmerman Brief 9 [Doc. No. 83], pp. 14–18; Jackson Brief [Doc. No. 74], pp. 9–10; Rudgayzer Brief 10 [Doc. No. 80] pp. 11–12), and that the settlement agreement exhibited the 11 hallmarks of a collusive settlement. 12 These matters were argued at the hearing on final approval and Court issued 13 its Order of February 16, 2011, thereafter. For Objectors’ part, it seems clear that 14 while Defendant was permitted to make nominations of cy pres recipients, the 15 Court did not intend for Defendant to be involved in the final selection of the 16 nominees. Objectors maintain that permitting Google to do so violates the spirit 17 of the February 16, 2011 Order and the purposes of the settlement. Particularly 18 given Defendant’s pattern of attempting to exert control over cy pres recipients in 19 the past (see, e.g., supra, footnote 1), the Court should be vigilant against 20 Defendant’s influence here and the detriment to the class interests. 21 As noted above, in order to avoid Defendant’s improper influence on the cy 22 pres recipients, Objectors respectfully request the Court order Class Counsel to 23 divulge all applicants for the cy pres funds, the details surrounding its selection 24 procedure, including communications with Defendant, and select cy pres 25 recipients from all applicants or other organizations without regard for Class 26 Counsel and Google’s suggestions. 27 C. Objectors Reiterate Objections to the Pending Proposed Order 28 Objectors continue to assert that the entire settlement is improper for the 5 Objections to Proposed Order 1 reasons set forth in their previous briefing and argument. This objection to 2 Proposed Order and Final Judgment is not offered as a waiver of any previous 3 objection, but only to express Objector’s continuing concerns on behalf of the 4 class membership. 5 Specifically, Objectors continue to assert that, in addition to the above, the 6 relief in the settlement is inadequate and illusory, that there are defects in the 7 notices and the breadth of the class definition (including, but not limited to, the 8 inclusion of personal injury and other actual damage claims in the release), that cy 9 pres-only distribution is improper in a class action for statutory damages resulting 10 from violations of federal privacy statutes, and that the settlement appears to 11 demonstrate collusion between Class Counsel and Defendant. 12 /// 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Objections to Proposed Order 1 In light of the foregoing, Objectors respectfully request the Court reject the 2 settlement as previously proposed, or, in the alternative, at least select the cy pres 3 recipients without regard for the nominees culled by Class Counsel and Defendant 4 from the complete pool of applicants. 5 6 Dated: March 30, 2011 JOSHUA R. FURMAN LAW CORP. 7 8 By: /s/ Joshua R. Furman Joshua R. Furman Attorney for Plaintiff-Objector, Jon M. Zimmerman 9 10 11 12 STATMAN, HARRIS & EYRICH, LLC 13 14 15 16 17 18 By: /s/ Jeffrey P. Harris Jeffrey P. Harris Alan J. Statman Melinda S. Nenning Attorneys for Plaintiff-Objector, Alison Jackson OSBORN LAW, PC 19 20 21 22 23 24 By: /s/ Daniel A. Osborn Daniel A. Osborn Attorneys for Plaintiff-Objector, Tanya Rudgayzer 25 26 27 28 7 Objections to Proposed Order