Case Information
JOHN A. YANCHUNIS ( pro hac vice ) Clayeo C. Arnold, SBN 65070 jyanchunis@forthepeople.com carnold@justice4you.com RYAN J. McGEE ( pro hac vice ) Joshua H. Watson, SBN 238058 rmcgee@forthepeople.com jwatson@justice4you.com MORGAN & MORGAN CLAYEO C. ARNOLD COMPLEX LITIGATION GROUP A PROFESSIONAL LAW 201 N. Franklin Street, 7th Floor CORPORATION Tampa, Florida 33602 865 Howe Avenue Telephone: (813) 223-5505 Sacramento, California 95825 Facsimile: (813) 223-5402 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 Counsel for Plaintiffs Matt Matic and Zak Harris
FRANKLIN D. AZAR ( pro hac vice )
azarf@fdazar.com MARGEAUX R. AZAR ( pro hac vice )
azarm@fdazar.com FRANKLIN D. AZAR & ASSOCIATES, P.C.
14426 East Evans Avenue
Aurora, Colorado 80014
Telephone: (303) 757-3300
Facsimile: (720) 213-5131
Counsel for Plaintiffs Charles Olson and Eileen M. Pinkowski
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
IN RE GOOGLE PLUS PROFILE Case No. 5:18-cv-06164-EJD (VKD) LITIGATION ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT, AWARDING RE A SONABLE ATTORNEYS’ FEES, COSTS AND SERVICE AWARDS; AND ENTERING FINAL JUDGMENT 1 INTRODUCTION
2
This matter came before the Court for hearing on November 19, 2020 and January 7, 2021, 3 pursuant to the Court’s Preliminary Approval Order dated June 10, 2020, (ECF No. 71), and on the 4
Plaintiffs’ Motion for Final Approval of Class Action Settlement, dated October 15, 2020, (ECF No.
5 95) seeking final approval of the Settlement Agreement (the “Settlement”), entered into by the parties,
6 and Plaintiffs’ Omnibus Response in Opposition to Objections to Proposed Settlement, dated 7 November 5, 2020, (ECF No. 99). The Court has also considered Class Counsel’s Motion for 8 9 Attorneys’ Fees, Costs, and Expenses and Service Awards, dated September 28, 2020. (ECF No. 88).
10 Due and adequate notice having been given to the Class Members of the proposed Settlement and the 11 pending motions, as directed by the Court’s Preliminary Approval Order, and upon consideration of 12
all papers filed and proceedings had herein, and good cause appearing, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: [1]
PROCEDURAL HISTORY
This case concerns the alleged exposure of Google+ users’ Profile Information as a result of software bugs that Google, LLC (“Google”) announced on October 8, 2018, and December 10, 2018. Following briefing from the parties on dismissal, the parties mediated this case with Mr. Randall W. Wulff, an experienced mediator, reaching a settlement after significant arms-length negotiations. (Dkt. 71, ¶ 6). The parties then memorialized the settlement into the Settlement Agreement (the “Settlement”) and moved for preliminary approval on January 6, 2020, which this Court granted on June 10, 2020, after a hearing on Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement. (Dkts. 57, 71). The Court approved the program for disseminating notice to Settlement Class Members as set forth in the Settlement and exhibits A and B attached thereto (the “Notice Program”). (Dkts. 57-2, 71). The Court appointed Plaintiffs Matt Matic, Zak Harris, Charles Olson, and Eileen M. Pinkowski as class representatives for the Class. (Dkt. 71, ¶ 7). The Court also appointed as Class Counsel attorneys John A. Yanchunis and Ryan J. McGee of Morgan Complex Litigation Group; Clayeo C. Arnold and Joshua H. Watson of Clayeo C. Arnold Professional Law Corporation; and Franklin D. Azar and Margeaux R. Azar of Franklin D. Azar & Associates, PC. (Dkt. 71, ¶ 8).
SUMMARY OF SETTLEMENT TERMS
Under the Settlement, Google stipulated to a nationwide settlement for the following Class: All persons residing within the United States who (1) had a consumer Google+ account for any period of time between January 1, 2015 and April 2, 2019; and (2) had their non-public Profile Information exposed as a result of the software bugs Google announced on October 8, 2018 and December 10, 2018. (the “Settlement Class”). Google agreed to a non-reversionary $7,500,000.00 Settlement Fund to cover all costs associated with the Notice Program, monetary benefits to members of the Settlement Class, incentive awards for the class representatives, and Class Counsel’s attorneys’ fees, costs, and expenses. The Settlement represents a fair resolution of the claims asserted on behalf of the Plaintiffs and the Settlement Class Members in this Action and released by the Settlement, and fully and finally resolves all such claims. Google, Plaintiffs, and the Settlement Class Members shall be bound by the Settlement, including the Release provisions set forth in Sections 7.1 to 7.6 of the Settlement, which is incorporated by reference herein, and by this Order and the Final Judgment entered in connection with this Order.
LEGAL STANDARD
A class action may not be settled without court approval. Fed. R. Civ. P. 23(e). “If the proposal
would bind class members, the court may approve it only after a hearing and on finding that it is fair,
reasonable, and adequate.”
Id.
When the parties to a putative class action reach a settlement
agreement prior to class certification, “courts must peruse the proposed compromise to ratify both the
propriety of the certification and the fairness of the settlement.”
Staton v. Boeing Co.,
The law favors the compromise and settlement of class action suits.
See, e.g., Churchill Vill.,
LLC v. Gen. Elec.,
361 F.3d 566, 576 (9th Cir.2004);
Class Plaintiffs v. City of Seattle,
955 F.2d
1268, 1276 (9th Cir.1992);
Officers for Justice v. Civil Serv. Comm'n,
688 F.2d 615, 625 (9th
Cir.1982). “[T]he decision to approve or reject a settlement is committed to the sound discretion of
the trial judge because he is exposed to the litigants and their strategies, positions, and proof.”
Hanlon
v. Chrysler Corp.,
First, the district court must assess whether a class exists under Federal Rule of Civil
Procedure 23(a) and (b). “Such attention is of vital importance, for a court asked to certify a settlement
class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the
proceedings as they unfold.”
Amchem Prods. Inc. v. Windsor,
An objector to a proposed settlement agreement bears the burden of proving any assertions
they raise challenging the reasonableness of a class action settlement.
United States v. State of
Oregon,
ANALYSIS
A. The Settlement is Fair, Adequate, and Reasonable, and is therefore Finally Approved
A court may approve a proposed class action settlement of a certified class only “after a
hearing and on finding that it is fair, reasonable, and adequate after considering whether: (A) the class
representatives and class counsel have adequately represented the class; (B) the proposal was
negotiated at arm's length; (C) the relief provided for the class is adequate, taking into account: (i)
the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of
distributing relief to the class, including the method of processing class-member claims; (iii) the terms
of any proposed award of attorney's fees, including timing of payment; and (iv) any agreement
required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably
relative to each other.” Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement, the Court need
not address whether the settlement is ideal or the best outcome, but determines only whether the
settlement is fair, free of collusion, and consistent with plaintiff's fiduciary obligations to the
class.
See Hanlon v. Chrysler Corp.
,
The Court reaffirms that this Action is properly maintained as a class action, for settlement purposes only, pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2) and 23(e), and that Class Counsel and the Plaintiffs, as class representatives, fairly and adequately represent the interests of the Settlement Class Members. Specifically, for settlement purposes only, the Court finds that the requirements of Federal Rule of Civil Procedure 23(a) are satisfied: The Class is so numerous that joinder of all members is impractical. Moreover, there are issues that are common to the Class, including whether Google took adequate steps to prevent users’ non-public Profile Information from exposure to third parties. Further, the Plaintiffs’ claims arise from the same alleged course of conduct and are typical of the Class. Finally, the Court finds that the Plaintiffs and Class Counsel have adequately represented the class and that there are not conflicts among the class.
The Court finds that the Settlement, including the exhibits thereto, is fair, reasonable and
adequate to the Settlement Class Members, has been entered into in good faith, and should be and
hereby is fully and finally approved pursuant to Federal Rule of Civil Procedure 23. In granting final
approval of the Settlement, the Court has considered the factors that courts in this Circuit consider in
evaluating proposed class settlements.
Churchill Village LLC v. General Electric Corp
., 361 F.3d
566, 575 (9th Cir. 2004). The Court finds that, given the benefits provided to Settlement Class
Members pursuant to the Settlement; the strengths and weaknesses of the parties’ respective claims
and defenses in the litigation; the risk, expense, complexity, and likely duration of further litigation;
the fact that significant discovery and litigation have occurred in this case; given the experience and
views of Class Counsel who have considerable experience litigating class actions and other complex
cases; and given the positive reaction of the Settlement Class Members—more than 1.8 million claims
were made with only 761 objections filed—the Settlement is fair, reasonable, and adequate and
should be approved. The Court finds that the Settlement was negotiated in good faith and at arms-
length by the parties and their experienced counsel, with the assistance of a highly-capable mediator,
Mr. Randall W. Wulff, and is free of any evidence of collusion.
In re Bluetooth Headset Prod.
Liab. Litig
.,
The parties and Settlement Administrator are hereby directed to implement the Settlement in accordance with the terms and provisions thereof.
B. Response to Class Notice
The Court finds that the notice provisions set forth under the Class Action Fairness Act, 28 U.S.C. § 1715, were complied with in this matter. The Court further finds that the program for disseminating notice to the Settlement Class Members provided for in the Settlement, and previously approved and directed by the Court (hereinafter, the “Notice Program”), has been implemented by the Settlement Administrator and the Parties, and that such Notice Program, including the approved forms of notice, is reasonable and appropriate and satisfies all applicable due process and other requirements, and constitutes notice reasonably calculated under the circumstances to apprise Settlement Class Members of the pendency of the Action, the terms of the Settlement, their right to object to the Settlement, and their right to appear at the Final Approval Hearing.
Approximately 1,820,549 individuals submitted timely claim forms under the terms of the Settlement. The Court provided objectors up to and including October 8, 2020, to submit timely objections, (Dkt. 71), which resulted in 761 objections.
1. Exclusions The Court has reviewed the list of Settlement Class Members requesting exclusion. (Dkt. 96- 1). The Court also notes that Objections 56, 70, 116, 208, 235, 237, 275, 532, 737, and 793 are also requests for exclusion, rather than objections. All of these individuals ( i.e. , the submitted list and the enumerated objections) were timely requests for exclusion, therefore, the Court excludes these individuals from the Settlement and all relief provided therein, including any release.
2. Objections First, the Court notes objections were submitted after the objection deadline of October 8, 2020. The Court has reviewed those objections and deems them untimely, and these objectors presented no legal basis for an extension of exception to their late filings. Therefore, all untimely objections are overruled. Fed. R. Civ. P. 23(c)(2)(B)(vi), (e).
Next, as stated at the hearing, the Court has carefully reviewed and considered all timely
submitted objections. Objections 97, 103, 256, 368, 403, 464, 458, 547, 574, 602, and 763, as well as
Dkt. 73, lack standing. These individuals represented that they did not have Google+ accounts, did
not include private information in their accounts, or live outside of the United States. “It is well-
settled that only class members may object to a class action settlement.”
Moore v. Verizon Comm.,
Inc.
, No. C09-1823 SBA
Some objectors objected to the Notice Program. , e.g. , Objections 13, 54, 279, 555, 510, 570, and 780. The Court carefully reviewed the Notice Program prior to its implementation, and found it to comply with all requirements under Federal Rule of Civil Procedure 23. These objections do not alter the Court’s analysis, and are therefore overruled. Similarly, Objection 356 questions whether the Court has jurisdiction to resolve a nationwide class. Google is based in California and this Court has jurisdiction to approve a national class pursuant to the Settlement. The Court overrules this objection.
Some objectors requested that any settlement amount be sent via check instead of received by PayPal or ACH transfer. See , e.g. , Objections 118, 221, 228, 244, 246, 305, 320, 378, 384, 446, 545, 554, 623, 652, 789, as well as Dkt. 81). The Court overrules these objections, but directs the Settlement Administrator to determine whether sufficient information is available for any such objector and, if that objector made a claim under the Settlement, to provide monetary payment to said objector via check, sent via U.S. Mail.
Some individuals failed to state a valid basis for objection.
See
,
e.g.
, Objections 163, 330,
443, 467, 569, 678, 755, 759, and 794). These objections both failed to state a valid basis for not
approving the Settlement and therefore fail to comply with the procedures set forth in the Notice
Program,
Hendricks v. StarKist Co.
, No. 13-cv-00729-HSG,
Some individuals stated that Google should not have any liability in this case. ,
e.g.
,
Objections 10, 12, 22, 24, 26, 33, 71, 87, 103, 107, 112, 119, 121, 128, 133, 150, 151, 155,
176, 225, 229, 234, 260, 265, 283, 286, 300, 302, 320, 324, 325, 327, 331, 332, 335, 337, 351,
354, 358, 362, 366, 367, 371, 372, 373, 419, 488, 493, 496, 511, 538, 546, 562, 572, 575, 577,
581, 586, 589, 590, 607, 643, 650, 657, 662, 764, and 795. “[T]he purpose of Rule 23(e)’s final
1
approval process is the protection of absent class members, and not the defendant.”
In re TD
2
Ameritrade
,
the issue of whether the Settlement is fair, therefore the Court overrules these objections.
5 Some individuals objected to the per-claimant value of the Settlement. , e.g. , Objections
6 9, 11, 16, 28, 32, 34, 37, 43, 44, 45, 46, 55, 60, 61, 66, 67, 68, 69, 72, 73, 74, 76, 81, 7 82, 83, 84, 85, 86, 88, 90, 94, 96, 98, 99, 104, 106, 110, 111, 115, 117, 122, 123, 124, 125, 126, 129, 8 9 134, 136, 137, 138, 145, 167, 169, 170, 173, 177, 179, 181, 182, 207, 209, 210, 211, 212, 213, 216, 10 217, 219, 220, 227, 229, 230, 235, 237, 238, 245, 248, 249, 255, 261, 277, 285, 287, 288, 289, 291, 11 292, 293, 298, 303, 308, 311, 319, 321, 323, 325, 326, 334, 353, 355, 357, 363, 370, 375, 377, 379, 12
381, 385, 390, 391, 394, 396, 397, 398, 399, 400, 402, 404, 405, 406, 407, 408, 409, 412, 413, 414, 13 415, 416, 420, 421, 422, 426, 427, 429, 433, 434, 435, 436, 437, 442, 444, 446, 447, 450, 453, 454,
14 459, 460, 461, 462, 465, 470, 473, 482, 483, 485, 491, 505, 509, 510, 516, 517, 518, 522, 533, 539, 15 540, 542, 543, 548, 550, 552, 555, 561, 563, 568, 570, 578, 580, 583, 584, 585, 588, 595, 598, 600, 16 17 603, 606, 608, 612, 617, 621, 622, 636, 637, 638, 640, 641, 642, 646, 649, 653, 655, 664, 673, 675, 18 676, 677, 682, 684, 693, 720, 734, 738, 739, 743, 744, 745, 756, 765, 769, 789, 780, 782, 785, as well 19 as Dkts. 77, 82, and 92. These objections fail to comply with the procedures set forth in the Notice 20
Program,
Hendricks
,
22
F.2d at 581;
Schechter
,
whether a settlement fairly reflects their expected outcome in litigation.”). That a settlement does not 5 provide full compensation is not a basis for rejecting a settlement, considering the risks of proceeding
6
to trial, recovering nothing, “must be weighed against the uncertainty of recovering something.”
In
7
re TD Ameritrade Account Holder Litig.
, No. C 07-2852 SBA,
10 Some individuals objected to the deterrent relief, essentially that Google will not learn any 11 lessons because the value of the Settlement is not sufficient and has no lasting impact. , e.g. , 12
Objections 17, 25, 104, 114, 115, 137, 154, 171, 173, 185, 211, 227, 233, 253, 271, 274,
287, 295, 304, 311, 321, 328, 329, 364, 391, 397, 406, 408, 409, 427, 435, 447, 456, 462, 479,
482, 497, 504, 513, 535, 551, 557, 558, 565, 583, 587, 593, 606, 612, 621, 636, 637, 642, 646,
660, 668, 684, 696, 720, 734, 736, 743, 745, 769, 770, 781, and 782. To the contrary, Google has
shuttered its consumer social media platform. The objections provide no expert testimony, nor any
persuasive argument to suggest this Settlement is unfair, unreasonable, or should be rejected, and the
Court overrules these objections.
Edwards
,
At the hearings on final approval on November 19, 2020, and January 7, 2020, the Court also heard from objectors Steven Davis, Edward Orr, and Paul Cammerena, and heard from Class Counsel as to why their objections should be overruled. The Court overrules these objections.
3. Service Awards
The district court must evaluate named plaintiffs' awards individually, using relevant factors
including “the actions the plaintiff has taken to protect the interests of the class, the degree to which
the class has benefitted from those actions, . . . [and] the amount of time and effort the plaintiff
expended in pursuing the litigation.”
Staton v. Boeing Co.
,
4. Attorneys’ Fees and Costs Class Counsel requests a fee award of $1,875,000.00 in attorneys’ fees and costs. Google does not oppose the fee request. The record is undisputed that the settlement negotiation was overseen by an experienced mediator and negotiated only after all relief was obtained for the Settlement Class and therefore free from any collusion. See, e.g., In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation , 2017 WL 1047834, at *4 (N.D. Cal., Mar. 17, 2017 (“Volkswagen's agreement not to oppose the application does not evidence collusion and was not obtained by Class Counsel to Class Members' detriment.”); G. F. v. Contra Costa Cty. , 2015 WL 4606078, at *13 (N.D. Cal. July 30, 2015) (noting that “[t]he assistance of an experienced mediator in the settlement process confirms that the settlement is non-collusive”).
Where a settlement involves a common fund, courts typically award attorneys' fees based on
a percentage of the total settlement.
See State of Fla. v. Dunne
,
In the Ninth Circuit, the benchmark for an attorney fee is 25% of the total settlement value,
including the monetary and non-monetary recovery.
See Six Mexican Workers
,
class action). Here Class Counsel’s fee request amounts to 25% of the monetary value of the 5 settlement, which is the benchmark under Ninth Circuit law, and this Court finds no basis to deviate
6 from that benchmark here. The Court overrules the objections to the Class Counsel’s attorneys’ fees. 7 See , e.g. , Objections 11, 21, 22, 23, 27, 79, 115, 116, 125, 137, 149, 168, 173, 174, 184, 211, 213, 8 9 216, 218, 227, 245, 273, 283, 291, 297, 298, 302, 311, 322, 323, 325, 355, 357, 363, 369, 371, 377, 10 385, 391, 397, 402, 406, 408, 409, 410, 413, 415, 427, 434, 435, 442, 444, 446, 447, 452, 459, 461, 462, 465, 470, 472, 484, 489, 503, 505, 519, 522, 523, 540, 541, 552, 564, 571, 575, 583, 585, 589,
596, 600, 606, 636, 641, 642, 646, 664, 671, 672, 680, 684, 732, 734, 739, 743, 769, 778, 782, as well as Dkt. 82. These objections fail to carry the burden of demonstrating how the fee award is unreasonable. , e.g. , In re TFT-LCD (Flat Panel) Antitrust Litig. , No. M 07-1827 SI, 2013 WL 1365900, *10 (N.D. Cal. April 3, 2013).
5. Litigation Expenses
Class Counsel are also entitled to reimbursement of reasonable out-of-pocket expenses. Fed.
R. Civ. P. 23(h);
see Harris v. Marhoefer
,
Here, Class Counsel seek reimbursement of current litigation costs of $64,558.23 [2] and anticipated future litigation costs of $5,000.00, for a total of $69,558.23. The Court finds Class Counsel’s submissions support the award of current and anticipated future litigation costs, and therefore awards Class Counsel $69,558.23 in litigation costs. Any objections to this award are overruled.
C. Cy Pres Awards
The Settlement provided for a distribution to cy pres recipients in the event any Residual Settlement Payments remained. Based on the response from Settlement Class Members for claims made, there will be no Residual Settlement Payments, therefore this Court need not opine on any cy pres awards.
D. Compliance with the Class Action Fairness Act
The record establishes that the required notices under the Class Action Fairness Act of 2005, 28 U.S.C. § 1715 were served, with the documentation required by 28 U.S.C. § 1715(b)(1–8). The record further establishes that no objections were received from any state attorneys general or other government entities.
E. Releases
As of the Effective Date, Releasing Named Plaintiffs and the Releasing Class Members shall waive, release, forever discharge, and will not in any manner pursue the Released Claims as defined and set forth in Section 1.37 of the Settlement against Google, its affiliates, and their respective officers, directors, employees, members, agents, attorneys, administrators, representatives, insurers, beneficiaries, trustees, shareholders, investors, contractors, joint venturers, predecessors, successors, assigns, transferees, and all other individuals and entities acting on Google’s behalf in connection with the Released Claims..
F. Other Effects of This Order
The Court hereby dismisses this Action with prejudice, and without fees or costs except as provided in the Settlement and this Order. Nothing in this Order or the Final Judgment entered in connection with this Order shall preclude any action to enforce the terms of the Settlement. Without affecting the finality of this Order or the Final Judgment entered in connection with this Order in any way, the Court hereby retains continuing jurisdiction over:
a. all matters relating to the modification, interpretation, administration, implementation, effectuation and enforcement of the Settlement; and
b. the Parties, Class Counsel, and Settlement Class Members for the purpose of administering, supervising, construing and enforcing this Order and the Settlement in accordance with its terms.
Neither this Order (nor the Final Judgment entered in connection with this Order), the Settlement, nor any action taken to carry out this Order or the Final Judgment entered in connection with this Order shall be construed or used against Google or the Released Parties as an admission, concession, or evidence of the validity of any claim or defense or any actual or potential fault, wrongdoing, or liability whatsoever. Without further order of the Court, the Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement and to make other nonmaterial modifications, in implementing the Settlement, that are not inconsistent with this Order.
The Clerk of the Court shall enter Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED this 2 5th day of January, 2021.
______________________________________ HON. EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE
Notes
[1] Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Settlement.
[2] The Court notes that Class Counsel sought $64,603.23; however, during the final approval hearing, it was clarified that a scrivener’s error resulted in the $45 difference. The Court, therefore, considers the amount of $64,558.23, which is supported by Class Counsel’s detailed declarations in support of their request. (Dkts. 88-1, 88-2, and 88-3).