Hibnick v. Google Inc., No. 5:2010cv00672 - Document 61 (N.D. Cal. 2010)

Court Description: MOTION to Approve Consent Judgment Notice of Motion and Memorandum in Support of Motion for Order Granting Final Approval of Class Settlement, Certifying Settlement Class, and Appointing Class Representatives and Class Counsel filed by John Case, Barry Feldman, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner, Rochelle Williams. Motion Hearing set for 1/31/2011 09:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. (Mason, Gary) (Filed on 12/20/2010) (Entered: 12/20/2010)

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Hibnick v. Google Inc. 1 2 3 4 5 6 7 8 9 10 11 12 Doc. 61 Gary E. Mason (pro hac vice) gmason@masonlawdc.com Donna F. Solen (pro hac vice) dscolen@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@ramoson.com RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: (415) 433-4949 Facsimile: (415) 433-7311 William B. Rubenstein (SBN 235312) rubenstein@law.harvard.edu 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 Telephone: (617) 496-7320 Facsimile: (617) 496-4865 13 Attorneys for Plaintiffs and the Proposed Class 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 16 17 18 IN RE GOOGLE BUZZ USER Case No. 5:10-CV-00672-JW 19 PRIVACY LITIGATION NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 20 21 This Pleading Relates To: 22 23 24 25 ALL CASES Date: January 31, 2011 Time: 9:00 a.m. Place: Courtroom 8, 4th Floor [Hon. James Ware] 26 27 28 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL Dockets.Justia.com 1 2 TABLE OF CONTENTS I. STATEMENT OF FACTS.................................................................................................. 2 3 A. Background ............................................................................................................. 2 4 B. Plaintiffs’ Legal Claims and Google’s Defenses .................................................... 2 5 C. Google’s Response to the Privacy Concerns........................................................... 3 6 D. Negotiations, Mediation, and Settlement ................................................................ 3 7 E. Confirmatory Discovery.......................................................................................... 4 8 F. Preliminary Approval .............................................................................................. 5 9 II. THE PROPOSED SETTLEMENT ..................................................................................... 5 10 A. The Settlement Class ............................................................................................... 5 11 B. The Settlement Benefits .......................................................................................... 6 12 C. Attorneys’ Fees and Costs ....................................................................................... 7 13 D. Settlement Administration and Notice .................................................................... 7 14 E. Requests for Exclusions From and Objections to the Settlement ........................... 8 15 16 III. ARGUMENT ...................................................................................................................... 8 A. The Court-Ordered Notice Program is Constitutionally Sound and Has Been Fully Implemented ......................................................................................... 8 B. The Settlement Agreement is Fair, Adequate and Reasonable ............................... 9 17 18 1. The Relief Obtained Provides Substantial Benefits to the Class Members .................................................................................................... 11 20 2. The Positive Reaction of the Class Supports Final Approval ................... 15 21 3. The Strength of Plaintiffs’ Case Balanced Against the Risk and Expense of Continued Litigation Supports Final Approval ...................... 15 4. Through Discovery, Independent Investigation, and Formal Discussions with Google, Class Counsel Gained Ample Understanding of the Buzz Program and the Class Members’ Claims........................................................................................................ 16 5. The Recommendation of Experienced Counsel Supports Final Approval .................................................................................................... 17 6. The Settlement Agreement is the Product of Good Faith and HardFought Negotiation Between Experienced Counsel.................................. 18 19 22 23 24 25 26 27 28 C. The Court Should Certify the Settlement Class Pursuant to Federal Rule of Civil Procedure 23(b)(3) ....................................................................................... 18 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL i 1 1. 2 The criteria for class certification under Rule 23(a) are satisfied ............. 18 a. The class is so numerous that joinder of all members is impracticable ................................................................................. 18 b. There are many questions of law and fact common to the class ............................................................................................... 19 5 c. The class representatives’ claims are typical of the class.............. 19 6 d. The named plaintiffs and their counsel adequately represent the proposed class.......................................................................... 20 3 4 7 8 2. The proposed settlement class meets the predominance and superiority requirements of rule 23(b)(3) .................................................. 20 9 a. Common questions predominate ................................................... 21 10 b. Class treatment is superior to alternate methods of adjudication ................................................................................... 21 c. The nature of the remedies herein is consistent with (b)(3) certification.................................................................................... 22 11 12 13 IV. CONCLUSION ................................................................................................................. 23 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL ii 1 TABLE OF AUTHORITIES 2 Cases 3 7-Eleven Owners for Fair Franchising v. Southland Corp. 102 Cal. Rptr. 2d 777 (Cal. App. 1 Dist. 2000) .................................................................17 4 5 6 Abels v. JBC Legal Group, P.C. 227 F.R.D. 541 (N. D. Cal. 2005) ......................................................................................14 Amchem Prods., Inc. v. Windsor 521 U.S. 591 (1997) .....................................................................................................21, 22 7 8 9 Boyd v. Bechtel Corp. 485 F. Supp. 610 (N. D. Cal. 1979...............................................................................10, 17 Browning v. Yahoo! Inc. 2006 WL 3826714 (N.D. Cal. Mar. 19, 2010) .....................................................................9 10 11 12 Catala v. Resurgent Capital Services L.P. 2010 WL 2524158 (S.D. Cal., June 22, 2010) .............................................................12, 23 Chamberlan v. Ford Motor Co. 402 F.3d 952 (9th Cir. 2005)..............................................................................................21 13 14 15 Churchill Vill., L.L.C. v. G.E. 361 F.3d 566 (9th Cir. 2004)..............................................................................................15 Class Plaintiffs v. City of Seattle 955 F.2d 1268 (9th Cir. 1992)......................................................................................10, 16 16 17 18 DeLise v Farenheit Entertainment, Civ. Act. No. CV-014297 (Cal. Sup. Ct., Marin Cty. Sept. 2001) ....................................................11 Diamond Chemical Co., Inc v. Akzo Nobel 517 F.Supp. 2d 212 (D. D.C. 2007) ...................................................................................14 19 20 21 DirecTV, Inc. v. Rawlins 523 F.3d 318 (4th Cir. 2008)..............................................................................................14 DirecTV, Inc. v. Ruiz 2006 WL 1458204 (D. N.J. May 24, 2006) .......................................................................14 22 23 24 Ellis v. Naval Air Rework Facility 87 F.R.D. 15 (N. D. Cal. 1980) ..........................................................................................10 Hanlon v. Chrysler Corp. 150 F.3d 1011 (9th Cir. 1998).....................................................................................passim 25 26 27 Hanon v. Dataproducts Corp. 976 F.2d 497 (9th Cir. 1992)..............................................................................................19 In re Consol. Pinnacle West Secs. 51 F.3d 194 (9th Cir. 1995)................................................................................................18 28 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL iii 1 In re DoubleClick, Inc. Privacy Litig. No. 00 Civ 0641 (NRB) (S.D.N.Y. 2001)..........................................................................11 2 3 4 In re Omnivision Techs., Inc. 559 F.Supp.2d 1036 (N. D. Cal. 2008).........................................................................10, 15 In re Toys “R” Us Antitrust Litig. 191 F.R.D. 347 (E. D. N.Y. 2000) .....................................................................................23 5 6 7 In re Vitamin Cases 132 Cal. Rptr. 2d 425 (Cal. App. 1 Dist. 2003) .................................................................12 Kresnick v. Cendant Corp. 2007 WL 1795793 (N.D. Cal. June 20, 2007) ...................................................................19 8 9 10 Lerwill v. Inflight Motion Pics., Inc. 582 F.2d 507 (9th Cir. 1978)..............................................................................................20 Linney v. Cellular Alaska Partnership 151 F.3d 1234 (9th Cir. 1998)............................................................................................17 11 12 13 Marshall v. Holiday Magic, Inc. 550 F.2d 1173 (9th Cir. 1977)............................................................................................15 Mullane v. Central Hannover Bank & Trust Co. 339 U.S. 306 (1950) .............................................................................................................9 14 15 16 Murillo v. Pac. Gas & Elec. Co. 2010 WL 2889728 (E.D. Cal. July 21, 2010).....................................................................15 Natl. Federation of Blind v. Target Corp. 2007 WL 2846462 (N.D. Cal. Oct. 2, 2007) ......................................................................19 17 18 19 Officers for Justice v. Civil Serv. Comm’n 688 F.2d 615 (9th Cir. 1982)..........................................................................................9, 18 Omnivision Techs., Inc. 559 F. Supp. 2d 1036 (N.D. Cal. 2008)........................................................................10, 15 20 21 22 Ortiz v. Fibreboard Corp. 527 U.S. 815 (1999) ...........................................................................................................18 Reade-Alvarez v. Eltman, Eltman & Copper, P.C. 237 F.R.D. 26 (E. D. N.Y. 2006) .......................................................................................23 23 24 25 Silber v. Mabon 18 F.3d 1449 (9th Cir. 1994)................................................................................................8 Six (6) Mexican Workers v. Ariz. Citrus Grower 904 F.2d 1301 (9th Cir. 1990)............................................................................................12 26 27 28 Staton v. Boeing Co. 327 F.3d 938 (9th Cir. 2003)..............................................................................................10 Sullivan v. Kelly Services, Inc. 268 F.R.D. 356 (N. D. Cal. 2010) ......................................................................................21 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL iv 1 Zinser v. Accufix Research Inst., Inc. 253 F.3d 1180 (9th Cir. 2001)......................................................................................21, 22 2 Statutes 3 Cal. Bus. & Prof. Code §17200................................................................................................2 4 Rules 5 Fed. R. Civ. P. 23(b)(3) ...................................................................................................passim 6 Fed. R. Civ. P. 23(c)(2)(B) ...................................................................................................8, 9 7 Fed. R. Civ. P. 23(e) .....................................................................................................1, 10, 18 8 Treatises 9 10 11 4 W. RUBENSTEIN, ET AL., NEWBERG ON CLASS ACTIONS § 11.41 (4th ed. 2002 & 2010 Supp.) .................................................................................10 FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION, FOURTH § 30.42 (2004) ....................................................................................................................10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 10-00672-JW – NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL v 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 Please take notice that on January 31, 2011 at 9:00 a.m., or on such other date as the 3 Court directs, in Courtroom 8, 4th Floor of the United States District Court, Northern District of 4 California, San Jose Division, before the Honorable James Ware, Plaintiffs Andrew Souvalian 5 (“Souvalian”), Katherine C. Wagner (“Wagner”), 6 (“Feldman”), John H. Case (“Case”), Lauren Maytin (“Maytin”), and Rochelle Williams 7 (“Williams”) (collectively “Plaintiffs” or “Class Representatives”) on behalf of themselves and 8 all those similarly situated and Google Inc. (“Google”) will respectfully move this Court for an 9 order (1) finally approving the proposed Settlement; and (2) certifying the Settlement Class and 10 appointing Class Representatives and Class Counsel. Plaintiffs make this motion, with the 11 support of counsel for defendant, pursuant to Federal Rule of Civil Procedure 23(e) as set forth in 12 the accompanying brief. Mark Neyer (“Neyer”), Barry Feldman 13 This Motion will be based on this Notice; the accompanying Memorandum of Points and 14 Authorities in Support of the Motion; the Declaration of Gary E. Mason, the Declaration of Susan 15 Fahringer, the Declaration of Brian Stoler, and the Affidavit of Jennifer M. Keough filed 16 herewith, the Settlement Agreement and exhibits, attached to the Preliminary Approval 17 Memorandum as Exhibit 1; the Court’s file in this action, and such other argument or evidence as 18 may be presented at or prior to the hearing on the Motion. 19 MEMORANDUM OF POINTS AND AUTHORITIES 20 The parties to this putative class action, Plaintiffs Andrew Souvalian, Katherine C. 21 Wagner, Mark Neyer, Barry Feldman, John H. Case, Lauren Maytin, and Rochelle Williams 22 (collectively “Plaintiffs” or “Class Representatives”), and Google Inc. (“Google”), have reached 23 a Settlement Agreement resolving all claims asserted in this action. The Settlement’s terms were 24 reached after an extensive, arms-length negotiation before a mediator, the Hon. Fern Smith. 25 Pursuant to Federal Rule of Civil Procedure 23(e), the parties respectfully request an order from 26 this Court granting final approval to the proposed Settlement, the terms of which are set forth as 27 Exhibit 1 to the Notice of Motion and Motion for Order Preliminarily Approving Class Action 28 Settlement (Docket No. 41) previously submitted by the parties on September 2, 2010 (the Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 1 1 “Settlement Agreement”). 2 Settlement Class and appoint Class Counsel and the Lead Plaintiffs as Class Representatives. 3 I. The parties also respectfully request that the order certify the STATEMENT OF FACTS 4 A. 5 Google launched a social networking product, “Google Buzz” (or “Buzz”), on February 9, 6 2010. Google Buzz was built into Gmail, Google’s email program. In the terms used in Google 7 Buzz, Buzz users are networked with those other individuals whom they are “following” and 8 have individuals who are “followers” of them. 9 prospective Buzz users based in part upon who they email and chat with the most in Gmail. Buzz 10 users’ follower/following list may be publicly viewable through their Google profile. Plaintiffs 11 alleged that this approach to a social networking program raised privacy concerns (1) because 12 email users did not necessarily want to be in social networks with their email contacts; and (2) 13 because public knowledge of how the “follower/following” lists were populated, coupled with 14 the potential public availability of these lists, appeared to divulge a Gmail user’s most frequent 15 email contacts without sufficient consent. Background Buzz suggests follower/following lists to 16 B. 17 Eva Hibnick filed the initial class action complaint in this action on February 17, 2010, on 18 behalf of all Gmail users in the United States to whose accounts Google introduced the Buzz 19 program. Additional complaints were filed against Google on March 3, April 5, May 7, and June 20 7, 2010. The plaintiffs in these actions alleged that aspects of the operation of Google Buzz 21 violated: (i) the Electronic Communications Privacy Act, 18 U.S.C. §2510 et seq.; (ii) the Stored 22 Communications Act (“SCA”), 18 U.S.C. §2701 et seq.; (iii) the Computer Fraud and Abuse Act, 23 18 U.S.C. §1030 et seq.; (iv) the California common law tort of public disclosure of private facts; 24 and (v) the California Unfair Competition Law, Cal. Bus. & Prof. Code §17200. Plaintiffs’ Legal Claims and Google’s Defenses 25 Google contends that the plaintiffs have mischaracterized and misunderstood how Google 26 Buzz operates, has denied and continues to deny plaintiffs’ allegations, and denies that it has 27 engaged in any wrongdoing whatsoever relating to Google Buzz. 28 plaintiffs and putative class are entitled to any form of damages or other relief, and has Google denies that the Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 2 1 maintained throughout this litigation that it has meritorious defenses to all alleged claims and that 2 it was and is prepared to vigorously defend against those claims. 3 4 On June 30, 2010, this Court granted Plaintiff Hibnick’s motion to consolidate the cases and to appoint interim lead class counsel and liaison counsel. 5 C. 6 While denying any legal liability, Google responded quickly to improve Google Buzz and 7 to address concerns that had been raised about it. Google announced and implemented several 8 modifications within the first week after Buzz’s release. These changes included: (1) modifying 9 the introductory screens to provide a more visible option for users to opt-out of the public display 10 of their “follower” and “following” lists on their profile page; (2) improving the ease with which 11 users could block unwanted followers; (3) moving from a system that automatically selected the 12 people a user was “following” to an “auto-suggest” model that displayed a suggested list and 13 made the ability to de-select individuals a user did not wish to follow more prominent and user- 14 friendly; (4) changing the default so that users must affirmatively opt-in if they wish Buzz to 15 connect to other publicly shared Google content (such as photo albums uploaded to Picasa); and 16 (5) adding a Buzz tab to the Gmail settings page, through which users could control privacy and 17 other settings relating to their Buzz account, as well as disable their Buzz account completely if 18 so desired. Then, on April 5, 2010, several months after the original plaintiffs filed their case, 19 Google presented a “confirmation page” to each Buzz user. The page described the settings on 20 the user’s Buzz account and asked the user to confirm that the account was set up the way the 21 user wanted, placing particular emphasis on the privacy settings for the user’s account. Google’s Response to the Privacy Concerns 22 D. 23 Google proposed to Class Counsel an in-person meeting to discuss the way the Buzz 24 program functioned and the possible resolution of the litigation. The first meeting between the 25 parties took place on April 21, 2010 at the office of Google’s Counsel in San Francisco. See 26 Declaration of Gary E. Mason in Support of Preliminary Approval of Class Action Settlement, 27 Docket No. 42 (“Mason Prelim. Decl.”) (filed September 3), at ¶ 5. Google’s Vice President for 28 Product Management, whose responsibilities included the launch of Buzz, spent several hours Negotiations, Mediation, and Settlement Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 3 1 discussing the program with Class Counsel. Id. He provided an explanation of how Buzz 2 functioned and responded to Class Counsel’s questions. Id. Google’s Counsel also made an 3 extended presentation of the company’s defenses to the allegations in the complaints, 4 characterizing the presentation as essentially representing the substantive contentions that Google 5 would pursue were it to file a motion to dismiss. Id. Class Counsel debated these legal issues 6 with Google’s Counsel. Id. These discussions culminated with an agreement to exchange 7 information and to then engage in a formal mediation session. Id. 8 Prior to the mediation, Google provided further material to Class Counsel, including 9 numerous screenshots showing the functioning of the Buzz program at various times since its 10 launch. 11 investigation of the facts and law, Class Counsel produced for Google and the Mediator a 73- 12 page Mediation Statement that included a 31-page legal brief in support of plaintiffs’ case. Id. 13 This brief outlined the plaintiffs’ affirmative legal argument and responded to the de facto motion 14 to dismiss Google’s Counsel had presented at the April meeting. 15 produced a Mediation Statement for the Mediator, some of which was shared with Class Counsel. 16 Id. Mason Prelim. Decl., ¶ 6. Using this information and through an independent Id. Similarly, Google 17 On June 2, 2010, the parties met for the formal mediation session at the JAMS office in 18 San Francisco. Mason Prelim. Decl., ¶ 7. Hon. Fern Smith, a retired judge of the U.S. District 19 Court for the Northern District of California with extensive experience in class actions, presided. 20 Id. At the outset, Class Counsel made a formal presentation of plaintiffs’ factual and legal case 21 to the mediator and Google’s Counsel. Id. The parties spent the remainder of the day discussing 22 the factual and legal issues and the possibilities for settlement. Id. After approximately 14 hours, 23 the mediation proved successful, resulting in a Term Sheet and ultimately in the formal 24 Settlement Agreement described below. Id. 25 E. 26 As part of the Settlement, the parties agreed that Google would provide materials to Class 27 Counsel for the purpose of confirmatory discovery. Mason Prelim. Decl., ¶ 8. Shortly after the 28 mediation, Google made available to Class Counsel all consumer feedback that it had received Confirmatory Discovery Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 4 1 about the Buzz program from users throughout the world. Id. Google also produced a series of 2 sworn statements in which Google employees described relevant aspects of Buzz’s launch and 3 subsequent operations. 4 thousands of pages. Id. Class Counsel developed a coding system to analyze the user feedback. 5 Class Counsel identified no instances in which a class member alleged they had suffered out-of- 6 pocket damages due to Buzz’s release. Id. Class Counsel reviewed these documents, which amounted to 7 F. 8 This Court held a preliminary approval hearing on October 4, 2010. On October 7, 2010, 9 the Court issued an Order preliminarily approving the Settlement and ordering notice to the class. 10 The Court conditionally certified a Settlement Class and found that the requirements of Rule 11 23(a), as well as the predominance and superiority requirements of Rule 23(b)(3), were satisfied 12 for that purpose. Order Granting Preliminary Approval of Class Action Settlement, Docket No. 13 50, (“Preliminary Approval Order”) (filed October 7), at ¶ 4. The Court preliminarily found that 14 the terms of the Settlement were “fair, reasonable, and adequate, and in the best interests of the 15 Settlement Class as a whole.” Id. at ¶ 5. The Court approved the notice program, finding it to be 16 “the best notice practicable under the circumstances.” Id. at ¶ 6. Preliminary Approval 17 The Court set the following schedule for final approval: (1) the email notice program and 18 joint press release would be distributed within thirty days of the Order; (2) exclusions and opt- 19 outs were to be received within sixty days of the Order; (3) Plaintiffs’ petition for fees and 20 expenses was due by December 20, 2010; (4) objections are to be received by January 10, 2011; 21 and (5) the fairness hearing is scheduled for January 31, 2011 at 9:00 a.m. Preliminary Approval 22 Order, at ¶¶ 8, 12-13. 23 II. THE PROPOSED SETTLEMENT 24 A. 25 On October 7, 2010, the Court preliminarily certified the following Settlement Class: 26 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 27 28 The Settlement Class Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 5 1 Agreement, properly executes and submits a timely request for exclusion from the Class. 2 3 Notice was disseminated beginning on November 2, 2010, which is the Notice Date. 4 B. 5 The Settlement recognizes and secures three significant benefits for the class. 6 Changes to the Buzz Program. The Settlement recognizes that, since the inception of 7 these lawsuits, Google has made changes to the Buzz program to address privacy and other 8 concerns raised by users. These changes are described in part I(C) above. The Settlement Benefits 9 Public Education. The Settlement requires that Google undertake wider public education 10 about the privacy aspects of Buzz. Google will report back to Class Counsel identifying the 11 content of the educational efforts it undertakes within 90 days of the entry of final judgment. 12 Settlement Fund. The Settlement provides for the creation of an $8.5 million Settlement 13 Fund. After deduction of attorneys’ fees and expenses, incentive awards and administrative 14 costs, the balance of the Settlement Fund will be paid to cy pres beneficiaries, which shall be 15 existing organizations focused on Internet privacy policy or privacy education. Settlement at 16 ¶3.4. The Settlement provides that the parties shall mutually agree on the cy pres recipients and 17 the amounts for each. 18 The parties have agreed upon a fair process for identifying a strong set of worthy cy pres 19 recipients. Class Counsel has solicited applications from several independent organizations with 20 extensive expertise in designing cy pres distribution processes to assist in identifying a fair cross 21 section of potential cy pres recipients and is in the process of finalizing a selection of one of these 22 organizations to assist in this effort. Google, which has significant experience working with 23 privacy groups, will employ its own process for identifying potential grantees. The parties have 24 agreed that they will then negotiate a final list of grant recipients under the auspices of the 25 mediator, the Hon. Fern Smith, who will assist the parties in resolving any disagreement between 26 them regarding the final selection of the cy pres recipients. This process will ensure that the cy 27 pres funds are distributed to a cross-section of pre-existing organizations to support policy and 28 educational efforts about internet privacy, the central concern underlying the class’s claims. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 6 1 C. 2 Concurrently with this motion and brief, Class Counsel have submitted a separate 3 application for attorneys’ fees and costs. The requested fee is 25% of the settlement fund, or 4 $2,125,000. As discussed more fully in Counsel’s fee application, a 25% fee is the benchmark in 5 the Ninth Circuit for percentage fee awards and is an appropriate award in this case. Attorneys’ Fees and Costs 6 D. 7 The notice plan approved by the Court on October 7, 2010 has been implemented. The Settlement Administration and Notice 8 parties retained the Garden City Group (“GCG”) as the Settlement Administrator. 9 established a website, www.buzzclassaction.com, which includes a summary of the proposed 10 Settlement, a timeline to object, a link to the Class Notice, Frequently Asked Questions, and links 11 to important court documents including the Settlement Agreement. Affidavit of Jennifer M. 12 Keough in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement (“Keough 13 Decl.”), at ¶ 3. 14 plaintiffs’ legal claims and detailed instructions on how to opt-out or object. The website 15 remains available to the public for review and downloading of documents. Id. GCG also 16 maintains a twenty-four hour toll-free help line for the benefit of class members. Id. at ¶ 4. GCG The Class Notice includes further information including a description of 17 On November 2, 2010, Google distributed an email to all Gmail users whom Google 18 could identify through reasonable efforts as residing in the U.S. The email informed users of the 19 nature of the action, described the relief contained in the Settlement, told users of the right to opt- 20 out and gave the deadline for exclusion, and provided a link to the settlement website. 21 Declaration of Brian Stoler, ¶ 2 & Exh. 1. Industry research suggests there are more than 37 22 million Gmail users in the US.1 In addition, Class Counsel and Google mutually agreed to a joint 23 press release, which, like the email, described the relief contained in the Settlement, told users of 24 the right to opt-out and gave the deadline for exclusion, and provided a link to the settlement 25 website. The press release was sent to major news organizations over Business Wire on 26 27 28 1 See Gmail Nudges Past AOL Email in the U.S. To Take No. 3 Spot, TechCrunch.com, Aug. 14, 2009, available at http://techcrunch.com/2009/08/14/gmail-nudges-past-aol-email-inthe-us-to-take-no-3-spot/. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 7 1 November 2, 2010, and news of the Settlement was announced by several news organizations. 2 Declaration of Gary E. Mason in Support of Motion for Final Approval and Application for 3 Award to Attorneys’ Fees and Reimbursement of Expenses, at ¶ 5 (“Mason Final Decl.”). 4 The notice program was successful in reaching the class. The settlement website has had 5 more than 1.4 million hits. Keough Aff., at ¶ 3. The notice not only reached the class, it also 6 provided sufficient information to class members to make an informed decision about whether to 7 accept, opt-out of, or object to the proposed Settlement. 8 Pursuant to its obligation under the Class Action Fairness Act of 2005 (“CAFA”), 28 9 U.S.C. §1715, the defendant also provided notice to the requisite public officials on September 10 10 and 17, 2010. Declaration of Susan Fahringer, ¶¶ 2-4. 11 E. 12 Pursuant to the Court’s October 7 Order granting preliminary approval, class members 13 who did not wish to participate in the Settlement were afforded ample opportunity to request 14 exclusion. Requests for exclusion were to be sent to the administrator and received no later than 15 December 6, 2010. A total of 578 class members sought exclusion from the Settlement, Keough 16 Aff., at ¶ 7, which amounts to less than 1/100 of a percent of the estimated 37 million member 17 class. Keough Decl., at ¶ 7 . Class members were also afforded the opportunity to object to the 18 Settlement. Objections are due by January 10, 2011. Class Counsel will report on – and respond 19 to – objections in its final reply brief, to be filed on or before January 26, five days prior to the 20 January 31st Fairness Hearing. 21 III. 22 Requests for Exclusions From and Objections to the Settlement ARGUMENT A. The Court-Ordered Notice Program is Constitutionally Sound and Has Been Fully Implemented 23 Rule 23 requires that the class receive “the best notice practicable under the 24 circumstances, including individual notice to all members who can be identified through 25 reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Actual notice is not required. Silber v. Mabon, 26 18 F.3d 1449, 1454 (9th Cir. 1994). Notice to the class must be “reasonably calculated under all 27 the circumstances, to apprise interested parties of the pendency of the action and afford them an 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 8 1 opportunity to present their objections.” Mullane v. Central Hannover Bank & Trust Co., 339 2 U.S. 306, 314 (1950); Browning v. Yahoo! Inc., 2006 WL 3826714, at *8 (N.D. Cal. Mar. 19, 3 2010) (approving notice to the class by email that included a link to the settlement website). 4 The notice program in this case has four components and clearly meets the statutory and 5 constitutional standard. First, Google sent individual email notice to the Gmail account of each 6 class member. Email notice was particularly appropriate in this case because the alleged harm 7 took place through users’ Gmail accounts. Moreover, email account holders do not necessarily 8 register U.S. mail addresses when opening an email account, so mailed notice would have been 9 both prohibitively expensive and impracticable. The email notice contained a link to the 10 settlement website, accessible via a single click, and the large number of visits the website has 11 received – 1.4 million – is evidence that email notice was effective. Keough Decl., at ¶ 3. 12 Second, the parties issued the joint press release containing key information about the Settlement 13 and a link to the settlement website, and this release was picked up in a number of major media 14 outlets. 15 website. The website, www.buzzclassaction.com, contains detailed information about the 16 Settlement, the right to opt-out or object, and links to important documents. As noted, the 17 website has received 1.4 million visits. Keough Decl., at ¶ 3. Fourth, the parties posted at the 18 website a full notice containing detailed information about the Settlement in a simple question 19 and answer format. Mason Final Decl. at ¶ 5. Third, the notice program encompassed the settlement 20 The four-prong notice program was “the best notice practicable under the circumstances,” 21 and accomplished “individual notice to all members who can be identified through reasonable 22 effort.” Fed. R. Civ. P. 23(c)(2)(B). 23 B. 24 Ninth Circuit law has long embodied a strong policy favoring voluntary settlement of 25 complex class actions. “[V]oluntary conciliation and settlement are the preferred means of 26 dispute resolution. This is especially true in complex class action litigation.” Officers for Justice 27 v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982). 28 themselves to compromise because of the difficulties of proof, uncertainty of outcome, and The Settlement Agreement is Fair, Adequate and Reasonable Complex class actions lend Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 9 1 length and complexity of litigation. Id.; see also Class Plaintiffs v. City of Seattle, 955 F.2d 2 1268, 1276 (9th Cir. 1992) (“strong judicial policy . . . favors settlements, particularly where 3 complex class action litigation is concerned”); 4 W. RUBENSTEIN, 4 ACTIONS § 11.41 (4th ed. 2002 & 2010 Supp.) (“Newberg on Class Actions”) (gathering cases). ET AL., NEWBERG ON CLASS 5 A class action settlement must be “fair, adequate and reasonable.” Fed. R. Civ. P. 23(e). 6 A settlement is fair, adequate, and reasonable when “the interests of the class as a whole are 7 better served if the litigation is resolved by the settlement rather than pursued.” FEDERAL 8 JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION, FOURTH § 30.42 (2004). The decision to 9 approve or reject a proposed settlement is committed to the Court’s sound discretion. City of 10 Seattle, 955 F.2d at 1276. The Ninth Circuit has identified a non-exhaustive list of factors to 11 guide the final approval inquiry, including: “the strength of the plaintiffs’ case; the risk, expense, 12 complexity, and likely duration of further litigation; the risk of maintaining class action status 13 throughout the trial; the amount offered in settlement; the extent of discovery completed and the 14 stage of the proceedings; the experience and views of counsel; the presence of a governmental 15 participant; and the reaction of the class members to the proposed settlement.” Hanlon v. 16 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); see also Staton v. Boeing Co., 327 F.3d 17 938, 959 (9th Cir. 2003). “The recommendations of plaintiffs’ counsel should be given a 18 presumption of reasonableness,” particularly when counsel has significant experience litigating 19 similar cases. In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 1043 (N. D. Cal. 2008) 20 (quoting Boyd v. Bechtel Corp., 485 F. Supp. 610, 622 (N. D. Cal. 1979)). 21 The issue is not whether the settlement could be better, but whether it is fair, adequate and 22 reasonable and free from collusion. Hanlon, 150 F.3d at 1027. Where, as here, the settlement is 23 the product of arm’s-length negotiations conducted by capable counsel with extensive experience 24 in complex class action litigation, the Court begins its analysis with a presumption that the 25 settlement is fair and should be approved. See Newberg on Class Actions, § 21.41; see also Ellis 26 v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N. D. Cal. 1980) (“the fact that experienced 27 counsel involved in the case approved the settlement after hard-fought negotiations is entitled to 28 considerable weight”). All of the relevant factors support approval. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 10 1 1. The Relief Obtained Provides Substantial Benefits to the Class Members 2 The Settlement provides for three forms of relief. First, it recognizes that since the 3 inception of this litigation Google has made changes to the Buzz program that address the 4 privacy concerns plaintiffs raised in their complaints. See Section I(C) above. Second, Google 5 will undertake a public education program about the privacy aspects of Google Buzz. This 6 portion of the relief will bring a substantial benefit to the class because many of users’ privacy 7 concerns arose from misunderstandings and insufficient information regarding the functioning of 8 Buzz, default settings in the program, and the tools with which users could control the public 9 display of their data. Third, the Settlement creates an $8.5 million fund payable to existing 10 organizations that focus on Internet privacy; after fees and expenses, more than $6 million will 11 likely be distributed, should the Court finally approve the Settlement and requested fees and 12 expenses. This is, to Counsel’s knowledge, the largest distribution of funding ever directed at 13 internet privacy. This litigation produced these three forms of relief and each will benefit the 14 class: all class members may now use a more privacy-friendly Buzz program; all class members 15 will receive further public education about the privacy features of Buzz; and all class members 16 will benefit significantly from the Internet privacy initiatives funded by this Settlement. 17 This package of settlement benefits compares favorably to settlements in other cases 18 concerning alleged privacy violations. See In re DoubleClick, Inc. Privacy Litig., No. 00 Civ 19 0641 (NRB) (S.D.N.Y. 2001) (defendant, an Internet ad-serving company, revised its notice and 20 data collection practices, and conducted a privacy-oriented public information campaign); DeLise 21 v Farenheit Entertainment, Civ. Act. No. CV-014297 (Cal. Sup. Ct., Marin Cty. Sept. 2001) 22 (defendants, sellers of music CDs who allegedly collected and divulged user contact information 23 and data about music preferences, updated their privacy policies, added warning labels to CDs, 24 and purged previously collected data).2 25 26 27 28 2 The one case that created a cy pres fund similar in size to this one, Lane v. Facebook, Inc., No. 08-cv-3845 RS (N.D. Cal. Feb. 1, 2010) (Docket No. 96), drew substantial objections because the monies were not distributed but sent to a new foundation created and controlled by Facebook. By contrast, this settlement will fund only existing organizations focusing on Internet privacy policy or privacy education. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 11 1 Theoretically, the Settlement might have created a claiming process for class members 2 who suffered individual injuries and distributed only the residual funds via cy pres. That familiar 3 structure, however, is nothing but theoretical in these circumstances for three reasons: first, each 4 class member’s claim is so small, and the class so large, that the costs of distribution would have 5 far outweighed the benefits received; second, there is no evidence that any individual class 6 members suffered actual out-of-pocket damages; and third, in the absence of out-of-pocket 7 damages, the primary basis upon which Counsel could have sought recovery for the class – had 8 the case produced a final judgment in plaintiffs’ favor – would have been statutory damages 9 under the SCA; but by their nature, statutory damages are intended to serve purposes other than 10 11 strict compensation, and these purposes are better accomplished through cy pres distribution. 1. Small claims and large class. If the total $8.5 million fund herein were distributed 12 among the estimated 37 million Gmail users in the United States, each user would receive 13 approximately 23 cents. 14 justify the expense of sending the funds. Where the amount of money that would be distributed 15 to each class member is too small to justify the expense, it is well-established that a cy pres 16 distribution is a more appropriate and effective use of the fund. A recovery of less than a single quarter per class member would not 17 Ninth Circuit law states that: “Cy pres distribution is appropriate where distribution to 18 individual class members is impracticable.” Catala v. Resurgent Capital Services L.P., 2010 WL 19 2524158 (S.D. Cal., June 22, 2010) (approving cy pres distribution of the entire settlement fund 20 where “the de minimus recovery of approximately 13 cents per class member would make 21 distribution to the class members impracticable because of the burden and expense of 22 distribution.”); Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1305 (9th Cir. 23 1990) (“Federal courts have frequently approved [cy pres awards] in the settlement of class 24 actions where the proof of individual claims would be burdensome or the distribution of damages 25 costly.”). California state law also approves full cy pres distribution in these circumstances. See 26 In re Vitamin Cases, 132 Cal. Rptr. 2d 425 (Cal. App. 1 Dist. 2003). In the primary California 27 state case on point, Class Counsel achieved a $38 million fund for a class smaller than this one 28 (30 million members). The court approved a cy pres distribution because of the small recovery Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 12 1 (about $1.27) that each class member would receive were the money distributed individually. Id. 2 at 432-33. If a $38 million fund for 30 million people supports a full cy pres distribution, then a 3 $8.5 million fund for a larger number of class members surely does. Finally, in an influential 4 recent study, the American Law Institute issued a report that supports cy pres in a case such as 5 this on the grounds. See American Law Institute, Principles of Law of Aggregate Litigation, § 6 3.07 (2010). 7 8 9 While cy pres distribution of a fund is appropriate in any case involving small claims and a large class, it is especially appropriate in this case given the following additional factors. 2. No, or Very Few, Class Members Have Out-Of-Pocket Damages. Class Counsel 10 secured from Google all user feedback it received, including all complaints, regarding the Buzz 11 program. Counsel analyzed, coded, and catalogued each of these 1,865 user comments. See Part 12 I(E) above. Counsel similarly reviewed the class representatives’ experiences with Buzz, as well 13 as the experiences of persons who posted complaints about Buzz on the Internet. After reviewing 14 all of these data points, Counsel were unable to identify any instances in which class members 15 had reported privacy breaches resulting in out-of-pocket damage. It would have made little 16 sense, in this context, to go to the trouble of creating a claims facility, a claiming form, a 17 claiming process, and a claims distribution system. The time and money invested in such an 18 effort would have likely far out-stripped any amounts actually distributed to individual class 19 members, and hence would have simply reduced the total amount available for cy pres 20 distribution. If there are atypical class members with out-of-pocket individual damage claims, 21 these individuals were free to opt out of this Settlement and to pursue their claims individually.3 22 3. Class Members’ Damage Allegations Are Statutory in Nature and Statutory 23 Damages Serve Functions Other Than Compensation.4 An individual claiming process would 24 not only have been futile in this case, it would also have been an inefficient use of the class’s 25 26 27 28 3 The fact that only 578 class members excluded themselves is further evidence that outof-pocket damages were rare, if not non-existent. 4 Google, of course, denies that the class members are entitled to recover any damages, statutory or otherwise. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 13 1 recovery in light of the purposes that statutory damage provisions (such as those found in the 2 applicable federal statutes) are intended to serve. 3 successful plaintiff may be entitled to statutory damages of $1,000, regardless of individual 4 damages. Because their amount is untethered from any actual harm individual plaintiffs may 5 suffer, statutory damages do not serve purely compensatory purposes. Rather, statutory damages 6 stand in where out-of-pocket damages are small or difficult to prove, as in the case of privacy 7 violations. They “stand in” not to compensate individual plaintiffs, but rather to serve the 8 exemplary function of identifying wrongdoing, to encourage plaintiffs to file suits that will deter 9 such wrongdoing, and to set a predetermined value for an injury that is difficult to quantify. See 10 DirecTV, Inc. v. Ruiz, 2006 WL 1458204, at *2-3 (D. N.J. May 24, 2006) (stating that statutory 11 damages under ECPA are designed to serve as a deterrent to the wrongdoer rather than strict 12 compensation, and that ECPA statutory damages also exist “due to difficulty with quantifying the 13 amount of damages”); DirecTV, Inc. v. Rawlins, 523 F.3d 318 (4th Cir. 2008) (reversing the 14 denial of statutory damages under ECPA when the district court failed to consider the deterrence 15 purpose underlying ECPA’s statutory damage provision). The SCA, for example, provides that a 16 Cy pres distribution of the Settlement Fund to organizations that conduct Internet privacy 17 policy and education will far more significantly accomplish these statutory goals than would 18 distribution of 23 cents to each class member. See Abels v. JBC Legal Group, P.C., 227 F.R.D. 19 541, 546 (N. D. Cal. 2005) (granting class certification in a statutory damages action because 20 “application of the recovery for the benefit of class members under cy pres doctrines, would 21 fulfill the deterrence objectives” of the lawsuit); Diamond Chemical Co., Inc v. Akzo Nobel, 517 22 F.Supp. 2d 212, 220 (D. D.C. 2007) (reasoning that cy pres distribution was particularly 23 appropriate in light of the “deterrence and punitive goals” of the statute). Even if it were 24 economically feasible to distribute this amount to individual class members, 23 cents is unlikely 25 to make any difference in the lives of class members. By contrast, by aggregating the money and 26 applying it to Internet privacy policy and education, the Settlement ensures that the fund will 27 serve a socially beneficial purpose closely related to the motivating purpose of the lawsuit and 28 the privacy-protecting purposes underlying the SCA. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 14 1 In sum, in a situation with (a) small individual recoveries, for a very large class; (b) where 2 few, if any, class member sustained out-of-pocket harm; and (c) where available damages are 3 primarily statutory in nature, a cy pres distribution of the settlement funds is not a second-best 4 resolution of a class suit: it is a preferred resolution. Approving the cy pres distribution in this 5 case, however, would set no precedent beyond the unique facts presented here. The first factor in 6 favor of settlement approval is therefore met here: the Settlement’s benefits – changes to the 7 Buzz program, more public education, and possibly the largest privacy fund in history – are 8 considerable and support approval of the Settlement. 9 2. The Positive Reaction of the Class Supports Final Approval 10 The response of the class to the Settlement has been overwhelmingly positive. The 11 Settlement Administrator has received only 578 requests for exclusion, Keough Aff., at ¶ 6, 12 which represents less than 1/11 of a percent of the Settlement Class. Such a minute proportion of 13 opt-outs weighs in favor of a Court’s finding that the Settlement is fair, adequate, and reasonable. 14 See, e.g. Churchill Vill., L.L.C. v. G.E., 361 F.3d 566, 577 (9th Cir. 2004) (upholding district 15 court’s approval of class settlement where 500 members opted out from a class of 90,000); 16 Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977). The absence of a large 17 number of opt-outs to a proposed class action settlement “raises a strong presumption that the 18 terms of a proposed class action settlement are favorable to the class members.” Murillo v. Pac. 19 Gas & Elec. Co., 2010 WL 2889728 at *9 (E.D. Cal. July 21, 2010) (citing In re Omnivision 20 Techs., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2008)). 21 The deadline for class members to file objections is January 10, 2011. Although several 22 objections have been received to date, the final objection deadline is still several weeks off. 23 Class Counsel will respond in its reply brief to all individual objectors and to the content of the 24 objections they raise, rather than responding to some here and some later. 25 3. The Strength of Plaintiffs’ Case Balanced Against the Risk and Expense of Continued Litigation Supports Final Approval 26 Although Class Counsel believe that all claims asserted in the complaint are meritorious, 27 the significant burdens plaintiffs would have faced in pursuing a class judgment against Google 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 15 1 and the substantial risk of failure weigh strongly in favor of final approval of the Settlement. Of 2 particular relevance to the reasonableness of the relief obtained under the proposed Settlement is 3 the fact that Google has and would continue to contest vigorously (a) the factual allegations about 4 Buzz’s operations that plaintiffs make; (b) the substantive merits of class members’ legal claims; 5 and (c) the named plaintiffs’ ability to pursue this action on a class-wide basis. 6 If the plaintiffs had continued litigating, they would have faced numerous factual and 7 legal hurdles, any of which might have been fatal to the case, resulting in no recovery for the 8 class. These include: (1) demonstrating that the user information divulged by Google was 9 “content” rather than “record” information and thus not subject to the “records” exception to the 10 SCA found at 18 U.S.C. §2702; (2) winning the dispute over whether users consented to the 11 divulging of their information when they clicked through the screens Google presented to them 12 when it introduced Buzz; (3) proving that the plaintiffs’ claims are typical of the class despite 13 variations in individual users’ experiences with Buzz and in the way the Buzz program 14 functioned at various times during the class period; and (4) achieving class certification over 15 statutory damage claims that, when multiplied by the number of class members, would have 16 resulted in disproportionate and disastrous liability for the defendant. 17 In addition to the risk of little or no recovery, litigation would have incurred substantial 18 expense and caused lengthy delay in recovery for the class members. Even if the class had 19 prevailed at trial, Google would likely have appealed any adverse rulings against it. Accordingly 20 class members would likely not obtain relief, if at all, for a period of several years. The fact that 21 the Settlement avoids these challenges and provides prompt, substantial relief for class members 22 weighs in favor of final approval. See City of Seattle, 955 F.2d at 1291-92. 23 4. 24 Through Discovery, Independent Investigation, and Formal Discussions with Google, Class Counsel Gained Ample Understanding of the Buzz Program and the Class Members’ Claims 25 Prior to Settlement, Class Counsel conducted substantial independent investigation of the 26 functioning of the Buzz program and the strength of the class’ legal claims. This effort included: 27 (a) communicating with class members about their experiences; (b) reviewing publicly available 28 material about Buzz found on the Internet, in concerns raised by public and private officials Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 16 1 throughout the world, and in public documents; (c) communicating with other individuals and 2 groups alleging privacy problems with Buzz; (d) extensively communicating with Google about 3 Buzz’s operations; (e) meeting with Google officials and questioning them about Buzz’s 4 operations; (f) reviewing documents provided by Google about Buzz’s operations; (g) reviewing 5 all user complaints supplied to Google about Buzz’s operations. 6 Moreover, this is not a case in which there were complex factual disputes requiring 7 significant formal inquiry and employment of expert witnesses – as would, for example, a 8 complex antitrust matter – nor one where extensive formal discovery would have uncovered 9 many additional relevant facts. The facts of the case turned on the way the Buzz program 10 worked, and most of the important information on this topic was available through basic Internet 11 research and direct experimentation with the Buzz program. 12 necessary ticket to the bargaining table where the parties have sufficient information to make an 13 informed decision about settlement.” Linney v. Cellular Alaska Partnership, 151 F.3d 1234 (9th 14 Cir. 1998) (internal quotation omitted); see also 7-Eleven Owners for Fair Franchising v. 15 Southland Corp., 102 Cal. Rptr. 2d 777, 786-87 (Cal. App. 1 Dist. 2000). “[F]ormal discovery is not a 16 The above-described factual and legal research allowed Class Counsel to negotiate the 17 Settlement with ample knowledge of the case’s strengths and weaknesses. Furthermore, after the 18 parties had signed a term sheet, Google provided plaintiffs with affidavits from several 19 employees regarding the launch and operation of the Buzz program as well as copies of every 20 consumer comment, including every privacy complaint, Google had received regarding Buzz. 21 Class Counsel reviewed all of these thousands of pages of documents. The information obtained 22 confirmed representations Google had made to Class Counsel during settlement negotiations. 23 5. The Recommendation of Experienced Counsel Supports Final Approval 24 The judgment of experienced counsel regarding the settlement is entitled to significant 25 weight, see, e.g., Hanlon, 150 F.3d at 1026, and the recommendation of experienced Class 26 Counsel should be given a presumption of reasonableness. See Boyd, 485 F. Supp. at 622. Class 27 Counsel in this case are experienced and skilled in consumer class action litigation; their firm 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 17 1 resumes are attached to the previously-filed Declaration of Gary E. Mason in Support of 2 Preliminary Approval of Class Action Settlement. See Mason Prelim. Decl., at ¶ 9 Exhibits 1-9. 3 These experienced Class Counsel conducted a comprehensive legal and factual investigation of 4 the claims, and Class Counsel firmly believe that the proposed Settlement agreement easily 5 satisfies Rule 23(e)’s requirements and is in the best interest of all class members. The decision 6 by such experienced counsel to adopt this Settlement supports the conclusion that it is fair, 7 reasonable, and adequate, and in the best interests of the class as a whole. 8 6. The Settlement Agreement is the Product of Good Faith and HardFought Negotiation Between Experienced Counsel 9 Courts should also consider the presence of good faith and the absence of collusion on the 10 part of the settling parties. Officers for Justice, 688 F.2d at 625. To that end, courts recognize 11 that arm’s-length negotiations conducted by competent counsel are prima facie evidence of fair 12 settlements. Here, the very experienced counsel negotiated this Settlement over many months 13 with defense counsel. The ultimate mediation session was overseen by a retired federal judge, 14 Hon. Fern Smith, with significant class action and mediation experience. There can be little 15 doubt that this was an arms-length negotiation lacking in collusive qualities. As the Supreme 16 Court has held, “[o]ne may take a settlement amount as good evidence of the maximum available 17 if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure 18 through arm’s-length bargaining . . .” Ortiz v. Fibreboard Corp., 527 U.S. 815, 852 (1999); see 19 also In re Consol. Pinnacle West Secs., 51 F.3d 194, 197 n.6 (9th Cir. 1995). 20 21 C. The Court Should Certify the Settlement Class Pursuant to Federal Rule of Civil Procedure 23(b)(3) 22 1. 23 The criteria for class certification under Rule 23(a) are satisfied a. The class is so numerous that joinder of all members is impracticable 24 The class that plaintiffs seek to represent consists of millions of Gmail users. Industry 25 research estimates there were 37 million Gmail users in the United States in August of last year, 26 and the number of users has likely grown substantially since. This Court has noted that a class 27 consisting of as few as 41 members is sufficient to satisfy the numerosity requirement, 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 18 1 particularly where the size of each individual claim is relatively small or the members are 2 geographically diverse. See e.g., Natl. Federation of Blind v. Target Corp., 2007 WL 2846462, 3 at *13 (N.D. Cal. Oct. 2, 2007); Kresnick v. Cendant Corp., 2007 WL 1795793, at *7 (N.D. Cal. 4 June 20, 2007). With a class of tens of millions, there is no question that the numerosity 5 requirement is satisfied. 6 b. There are many questions of law and fact common to the class 7 Rule 23(a)(2) requires that there be questions of law or fact common to the class. Not all 8 questions of law or fact need be common to every single member of the class; rather, at least one 9 issue must be common to the claims of all the class members. Hanlon, 150 F.3d at 1019. Courts 10 do not treat commonality as a difficult hurdle, but construe the requirement “permissively” and 11 require a “minimal” showing. 12 The claims of plaintiffs and the class members all arise from the same legal theory – that 13 Google divulged user contact information without sufficient consent. 14 include: whether the Google Buzz program publicly shared user information and if so, what user 15 information it shared and how; whether Google failed to provide adequate information and 16 procedures for Buzz users to opt-out of the public display of their information; whether by 17 allegedly committing these acts and omissions Google violated federal and state laws; and 18 whether class members are entitled to injunctive, declarative and monetary relief as a result of 19 Google’s alleged conduct. These common questions form the basis of plaintiffs’ and class 20 members’ claims, and are sufficient to establish the commonality requirement. 21 c. The common issues The class representatives’ claims are typical of the class 22 Representative claims are “typical” if they are “reasonably coextensive with those of the 23 absent class members.” Hanlon, 150 F.3d at 1020. The class representatives’ claims “need not 24 be substantially identical.” Id. Rather, “[t]he test of typicality is whether other members have 25 the same or similar injury, whether the action is based on conduct which is not unique to the 26 named plaintiffs, and whether other class members have been injured by the same course of 27 conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotes 28 omitted). Here, Google added Buzz to the Gmail accounts of the named class representatives just Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 19 1 as it did to the Gmail accounts of other users. All the injuries claimed arise from the same 2 alleged conduct. Like the class as a whole, the named class representatives have expressed 3 concerns about the privacy issues arising from Buzz, but none have articulated any special, 4 unique, atypical injury arising therefrom. The class representatives claims are typical of those of 5 the class. 6 d. The named plaintiffs and their counsel adequately represent the proposed class 7 Rule 23(a)(4) and Rule 23(g) together ensure the satisfaction of what courts have 8 recognized as a two-part test: (1) that the named plaintiffs and their counsel do not have conflicts 9 of interest with the proposed class; and (2) that the named plaintiffs and their counsel can 10 prosecute the action vigorously through qualified counsel. Hanlon, 150 F.3d at 1020 (citing 11 Lerwill v. Inflight Motion Pics., Inc., 582 F.2d 507, 512 (9th Cir. 1978)). In considering the 12 adequacy of counsel, the court must consider (1) the work counsel has done in investigating the 13 potential claims in the action; (2) counsel’s experience in handling class actions and the types of 14 claims asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources 15 that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). Both 16 aspects of the adequacy test are satisfied here. 17 First, as shown above, plaintiffs’ interests are squarely aligned with the interests of absent 18 class members. Plaintiffs’ claims are typical of those of all Gmail users who were presented with 19 the opportunity to use Buzz. There is no conflict of interest among plaintiffs and the class 20 members, who all experienced the addition of Google Buzz to their Gmail accounts. Second, 21 Class Counsel are well-respected members of their legal communities and have extensive 22 experience prosecuting class action lawsuits. Further detailed credentials of counsel are 23 enumerated on their firm resumes. See Mason Prelim. Decl., at ¶ 9 Exhibits 1-9. Accordingly, 24 both plaintiffs and Class Counsel have and will adequately represent the class. 25 26 2. The proposed settlement class meets the predominance and superiority requirements of rule 23(b)(3) 27 Rule 23(b)(3) certification is proper because the predominance and superiority 28 requirements are satisfied and because nothing about the cy pres nature of the relief alters the Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 20 1 2 Rule 23(b) analysis. a. Common questions predominate 3 The predominance inquiry looks to whether a proposed class is sufficiently cohesive to 4 warrant adjudication by class representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 5 (1997). Common issues “predominate” where a common nucleus of facts and potential legal 6 remedies dominate the litigation. See Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th 7 Cir. 2005). The existence of individual issues will not, by itself, defeat certification. See 8 Sullivan v. Kelly Services, Inc., 268 F.R.D. 356 (N. D. Cal. 2010); Hanlon, 150 F.3d 15 at 1022 9 (“When common questions present a significant aspect of the case and they can be resolved for 10 all members of the class in a single adjudication, there is clear justification for handling the 11 dispute on a representative rather than on an individual basis”). Because class members’ claims 12 arise out of the same set of operative facts and are premised on identical legal theories, the 13 predominance requirement is satisfied here. This is particularly true because few, if any, class 14 members have suffered individualized out-of-pocket damages. Moreover, the underlying legal 15 claims arise out of three federal statutes, which apply similarly to all class members throughout 16 the United States, and out of California tort law, which applies to all class members by virtue of 17 the choice of law provision in Google’s Gmail Terms of Service. In short, each class member’s 18 claim has an identical factual predicate and the same legal causes of action. 19 b. Class treatment adjudication is superior to alternate methods of 20 In determining superiority, four considerations are relevant: (1) the interests members of 21 the class have in individually controlling the prosecution or defense of the separate actions; (2) 22 the extent and nature of any litigation concerning the controversy already commenced by or 23 against members of the class; (3) the desirability or undesirability of concentrating the litigation 24 of the claims in the particular forum; and (4) the difficulties likely encountered in the 25 management of a class action. Fed. R. Civ. P. 23(b)(3); Zinser v. Accufix Research Inst., Inc., 26 253 F.3d 1180, 1190-93 (9th Cir. 2001). Because the proposed certification of the class is in the 27 settlement context, the Court need not consider the manageability requirement. See Amchem 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 21 1 Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). 2 As to the first factor, class members have little interest in controlling this action on their 3 own, because the alleged damages affecting each individual are slight compared to the cost of 4 litigating a case of this complexity. Class actions, as a general proposition, are favored for the 5 very purpose of providing individuals with relatively small damages, and therefore little incentive 6 to litigate, an opportunity to prosecute their rights. The Supreme Court explained that “[t]he 7 policy at the very core of the class action mechanism is to overcome the problem that small 8 recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or 9 her rights.” Amchem, 521 U.S. at 617. See also Zinser, 253 F.3d at 1190 (“Where damages 10 suffered by each putative class member are not large, this factor weighs in favor of certifying a 11 class action.”). 12 members are therefore are unlikely to pursue litigation against Google on their own. With regard 13 to the second and third factors, while other class actions have been brought against Google 14 concerning its launch of Buzz, all of these cases have now been consolidated here and will be 15 resolved by the proposed Settlement. Thus, as a result of the Settlement, the litigation will be 16 fully and finally resolved. 17 Here, few if any class members suffered out-of-pocket damages and class c. The nature of the remedies herein is consistent with (b)(3) certification 18 While a central feature of this Settlement is the cy pres relief, 23(b)(3) remains the proper 19 mode of class certification for five reasons. 20 1. Nothing in Rule 23(b)(3) requires either that there be monetary damages or that 21 the monetary damages be distributed to the class members themselves. While it is common to 22 certify money damages cases under (b)(3), the only requirements for certification under (b)(3) are 23 the predominance and superiority requirements which, as noted above, are easily met here. There 24 is no 23(b)(3) requirement that monies be distributed to individual class members. 25 2. To the extent monetary damages are the anchor of a (b)(3) class, this case secured 26 monetary damages: Google will make an $8.5 million payment. The fact that for administrative 27 reasons this money will be distributed using cy pres rather than directly does not render this a 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 22 1 non-monetary damage case. 2 3. Although Google has agreed to undertake certain measures as part of this 3 Settlement, the Settlement Agreement seeks no court-ordered injunctive relief, so certification 4 under 23(b)(2) would be inappropriate. 5 (b)(2)/(b)(3) class is also unavailable, given the absence of (b)(2) relief.5 6 4. For the same reason, certification of a “hybrid” Certification under (b)(3) enables class members who may have suffered out-of- 7 pocket damages to opt out and pursue their individual claims. This is an important element of the 8 Settlement because it addresses any concerns that out-of-pocket damages are unavailable. 9 5. Settlements in which the full fund is distributed using cy pres are regularly 10 certified by courts under Rule 23(b)(3). See, e.g. Catala v. Resurgent Capital Services L.P., 2010 11 WL 2524158, at *9 (S.D. Cal., June 22, 2010); In re Toys “R” Us Antitrust Litig., 191 F.R.D. 12 347, 351 (E. D. N.Y. 2000); Reade-Alvarez v. Eltman, Eltman & Copper, P.C., 237 F.R.D. 26 (E. 13 D. N.Y. 2006). Class Counsel knows of no precedent requiring certification on other grounds, or 14 rejecting (b)(3) certification for this reason. 15 Rule 23(b)(3) certification for this Settlement is appropriate, applicable, and is well- 16 supported in the case law. 17 IV. CONCLUSION 18 For the foregoing reasons, the Settlement is fair, adequate, and reasonable. Plaintiffs 19 respectfully request that the Court grant this motion and enter an order finally approving the 20 Settlement, certifying the Settlement Class, and appointing class representatives and Class 21 Counsel. 22 23 Respectfully submitted, DATED: December 20, 2010 24 25 26 /s/ Gary E. Mason ______ Gary E. Mason, Esq. (admitted pro hac vice) MASON LLP 1625 Massachusetts Ave., N.W., Suite 605 Washington, D.C. 20036 Tel. (202) 429-2290 Fax. (202) 429-2294 27 28 5 Class certification under Rule 23(b)(1) is also inapposite since this is neither an incompatibility situation nor a limited fund. Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 23 1 2 3 4 Michael F. Ram (SBN 104805) RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Phone: (415) 433-4949 Fax: (415) 433-7311 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 William B. Rubenstein (SBN 235312) 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 Phone: (617) 496-7320 Fax: (617) 496-4865 Peter N. Wasylyk (pro hac vice) LAW OFFICES OF PETER N. WASYLK 1307 Chalkstone Avenue Providence, Rhode Island 02908 Phone: (401) 831-7730 Andrew S. Kierstead (SBN 132105) LAW OFFICE OF ANDREW KIERSTEAD 1001 SW 5th Avenue, Suite 1100 Portland, Oregon 97204 Phone: (508) 224-6246 Peter W. Thomas THOMAS GENSHAFT, P.C. 0039 Boomerand Rd, Ste 8130 Aspen, Colorado 81611 Phone: (970) 544-5900 Michael D. Braun (SBN 167416) BRAUN LAW GROUP, P.C. 12304 Santa Monica Blvd., Suite 109 Los Angeles, CA 90025 Phone: (310) 836-6000 Donald Amamgbo AMAMGBO & ASSOCIATES 7901 Oakport St., Ste 4900 Oakland, California 94261 25 26 27 Reginald Terrell, Esq. THE TERRELL LAW GROUP P.O. Box 13315, PMB # 149 Oakland, California 94661 28 Jonathan Shub (SBN 237708) Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 SEEGER WEISS LLP 1818 Market Street, 13th Floor Philadelphia, Pennsylvania 19102 Phone: (610) 453-6551 Christopher A. Seeger SEEGER WEISS LLP One William Street New York, New York Phone: (212) 584-0700 Lawrence Feldman LAWRENCE E. FELDMAN & ASSOC. 423 Tulpehocken Avenue Elkins Park, Pennsylvania 19027 Phone: (215) 885-3302 Eric Freed (SBN 162546) FREED & WEISS LLC 111 West Washington Street, Ste 1311 Chicago, IL 60602 Phone: (312) 220-0000 Howard G. Silverman KANE & SILVERMAN, P.C. 2401 Pennsylvania Ave, Ste 1C-44 Philadelphia, PA 19130 Phone: (215) 232-1000 17 18 Attorneys for Plaintiffs and the Proposed Class 19 20 21 22 23 24 25 26 27 28 Case No. 10-00672-JW – NOTICE OF MOTON AND MEMORANDUM IN SUPPORT OF MOTION FOR ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, CERTIFYING SETTLEMENT CLASS, AND APPOINTING CLASS REPRESENTATIVES AND CLASS COUNSEL 25

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