Slip Opinion
N.D. Cal.Oct 16, 2023Background
- Consolidated class action alleging Google disclosed users' search queries to third parties via referrer headers for searches from Oct 25, 2006 to Sept 30, 2013; Plaintiffs are Gaos, Italiano, and Priyev.
- Original 2015 all‑cy pres $8.5M settlement was approved, appealed by objectors Frank and Holyoak; Ninth Circuit affirmed but Supreme Court vacated and remanded for Spokeo standing analysis (Frank v. Gaos).
- On remand the court found Plaintiffs had standing; parties renegotiated and obtained preliminary approval of a restructured settlement increasing the fund to $23M and conditionally certifying a Settlement Class of ~193 million persons.
- Settlement terms: $23M common fund (includes attorneys’ fees, admin, and incentive awards), pro rata distributions (estimated average recovery ~$7.16 per claimant), limited injunctive relief (disclosures on Google FAQ), no reversion to Google; residual cy pres recipient to be mutually agreed.
- Notice program reached ~83% of class; 2,564,682 claims were filed and 2,530 timely opt-outs received; two objections were submitted.
- Court granted final approval, found settlement fair/reasonable, approved Class Counsel fees of $5,750,000 and costs $43,634.69, service awards of $5,000 each to three named plaintiffs, and awarded $793,500 to former objectors’ counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Final approval under Rule 23(e) — is the settlement fair, reasonable, and adequate? | Settlement provides certain monetary recovery and injunctive disclosures; avoids prolonged, risky litigation. | Google denies liability; settlement is fair resolution of disputed claims. | Approved: court found settlement fair under Churchill factors and not collusive. |
| Class certification for settlement purposes (Rule 23(a)/(b)) | Class is numerous, common questions predominate, typicality and adequacy met; class mechanism superior. | Google would challenge certification but class may be unmanageable. | Approved for settlement purposes: numerosity, commonality, typicality, adequacy, predominance, and superiority satisfied. |
| Adequacy of notice and claims process | Notice program (multi‑channel, website, toll‑free line) was best practicable; claims process accessible. | Objectors argued process costly/cumbersome and fund small relative to Google. | Approved: notice adequate (reached ~83%); 2.56M claims show accessibility; objections overruled. |
| Class Counsel fees (request: $5.75M = 25%) | Counsel sought 25% benchmark, lodestar $3.1M with 1.85 multiplier, citing risk, duration, and results. | Google did not oppose fee request. | Approved: $5,750,000 awarded; lodestar cross‑check supports reasonableness. |
| Former objectors’ fees (request: $793,500) | Former objectors argue their appeals (leading to remand and re‑negotiation) produced substantial incremental benefit to the class. | Not opposed by Class Counsel; defendant did not contest. | Approved: $793,500 awarded (≈4.6% of fund); lodestar cross‑check with 1.5 multiplier accepted. |
Key Cases Cited
- Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) (factors for evaluating class settlement fairness)
- Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035 (9th Cir. 2019) (heightened scrutiny for pre-certification settlements)
- In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) (signs of collusion and fee‑award guidance)
- Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) (percentage‑of‑fund method and lodestar cross‑check)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (degree of success as critical factor in fee awards)
- Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) (court must scrutinize fee provisions to protect the class)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (standing analysis for informational injuries)
- Frank v. Gaos, 139 S. Ct. 1041 (2019) (Supreme Court vacated and remanded for standing in light of Spokeo)