1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 In re GOOGLE REFERRER HEADER Case No. 5:10-cv-04809-EJD
9 PRIVACY LITIGATION ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS 10 ACTION SETTLEMENT; GRANTING MOTIONS FOR ATTORNEYS’ FEES, 11 COSTS, AND SERVICE AWARDS; JUDGMENT 12 This Document Relates To: All Actions 13 Re: Dkt. Nos. 181, 182, 186
14 Pending before the Court are Plaintiffs’ Motion for Final Approval of Class Action 15 Settlement, ECF No. 186 (“Mot. Final Settlement”); Plaintiffs’ Motion for Attorneys’ Fees and 16 Costs, ECF No. 181 (“Class Counsel Mot. Attorneys’ Fees); and Former Objectors Melissa 17 Holyoak and Theodore H. Frank’s Motion for Attorneys’ Fees and Costs, ECF No. 182 (“Former 18 Objectors’ Mot. Attorneys’ Fees”). On October 12, 2023, the Court heard oral arguments from the 19 parties on all three motions. ECF No. 190. No objectors were present. 20 Having considered the motions briefing, terms of the Settlement, objections and responses 21 thereto, arguments of counsel, and other matters on file in this action, the Court GRANTS the 22 motion for final approval. The Court finds the settlement fair, adequate, and reasonable. The 23 provisional appointments of the class representatives and class counsel are confirmed. The Court 24 also GRANTS both Class Counsel and Former Objectors’ requests for attorneys’ fees and other 25 costs. 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 I. BACKGROUND 2 This is a consolidated internet privacy litigation brought by Representative Plaintiffs 3 Paloma Gaos, Anthony Italiano, and Gabriel Priyev (“collectively Plaintiffs”) against Defendant 4 Google, LLC (“Google”) for allegedly disclosing users’ private personal information to third 5 parties. In light of this case’s procedural posture, the Court will not reiterate the entirety of the 6 lengthy factual background. 7 The Court previously granted final approval to an all-cy pres $8.5 million class action 8 settlement in this case on March 31, 2015. Order Granting Motion for Final Approval of Class 9 Action Settlement (“Prior Final Approval Order”), ECF No 85. Former Objectors Melissa 10 Holyoak and Theodore H. Frank (“Former Objectors”) appealed the Order on the grounds that the 11 cy pres component was improper. ECF No. 87. The Ninth Circuit affirmed the grant of final 12 approval. In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir 2017). Former 13 Objectors then petitioned the U.S. Supreme Court for Writ of Certiorari, which the Supreme Court 14 granted. Frank v. Gaos, 139 S. Ct. 1041 (2019). The Supreme Court remanded the case for this 15 Court to re-analyze standing in light of the Supreme Court’s recent decision in Spokeo, Inc. v. 16 Robins, 578 U.S. 330 (2016). Id. at 1046. The Supreme Court did not consider the merits of 17 Former Objectors’ cy pres arguments. See id. 18 On remand, the Court confirmed that Plaintiffs still had standing for their federal claims in 19 light of Spokeo. Order Den. Def.’s Mot. to Dismiss, ECF No. 115. The Court also found that 20 Plaintiffs sufficiently alleged standing for the state-law claims that the Court previously 21 dismissed.1 22
23 1 On March 29, 2012, the Court denied Google’s first motion to dismiss as to Plaintiffs’ federal claim but granted Google’s motion as to Plaintiffs’ state law claims with leave to amend, finding 24 that Plaintiffs failed to sufficiently plead standing. Gaos v. Google Inc., No. 5:10-CV-4809-EJD, 2012 WL 1094646 (N.D. Cal. Mar. 29, 2012). Plaintiffs filed an amended complaint and Google 25 filed another motion to dismiss, but before this Court made its ruling on Google’s motion to dismiss, the parties stipulated to the consolidation of Gaos and Italiano’s case with another class 26 action, and Plaintiffs filed the now-operative Consolidated Complaint. ECF Nos. 50, 51. The motion to dismiss the was therefore terminated as moot. Dkt. No. 51. The parties reached their 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 The parties re-negotiated a settlement, and on May 25, 2023, the Court granted the parties’ 2 motion for preliminary approval of the settlement which increased the settlement fund to $23 3 million, certified a settlement class, and appointed counsel. Order Granting Mot. for Prelim. 4 Approval (“Order Granting Prelim. Approval”), ECF Nos. 177, 179. 5 The Settlement defines the class (“the Settlement Class”) as:
6 [A]ll Persons in the United States who submitted a search query to 7 Google and clicked on a search result at any time during the period commencing on October 25, 2006, up to and including September 8 30, 2013. 9 Settlement Agreement and Release (“Settlement”) 7, ECF No. 165-10. 10 The Settlement Class excludes: 11 (i) Google, its subsidiaries and affiliates, officers, and directors; (ii) the judge(s) to whom these cases are or have been assigned and any 12 member of the judges’ staff or judges’ immediate family; (iii) Persons who have settled with and released Google from individual 13 claims substantially similar to those alleged in the Consolidated 14 Complaint; (iv) Persons who submit a valid and timely Request for Exclusion pursuant to Section 7; and (v) Class Counsel. 15 Id. § 1.50. 16 In its Preliminary Approval Order, the Court conditionally certified the Settlement Class 17 and provisionally appointed Kassra Nassiri of Nassiri & Jung LLP, Michael Aschenbrener of 18 KamberLaw, LLC, and Mark Bulgarelli of Progressive Law Group as Class Counsel, Plaintiffs 19 Paloma Gaos, Anthony Italiano, and Gabriel Priyev as Class Representatives, and Kroll Notice 20 Media Solutions (“Kroll Media”) as the Class Administrator. Order Granting Prelim. Approval 2– 21 4. 22 The Court received two written objections to the settlement from Boyd Adams and 23 Clifford Weiler. Letter from Boyd John Adams: Objection to Release of Personal Information 24 (“Adams Objection”), ECF No. 180; Letter re Objection from Clifford Donald Weiler (“Weiler 25
26 first settlement shortly thereafter. 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 Objection”), ECF No. 185. 2 A. Terms of the Settlement Agreement 3 Under the terms of the Settlement, Google will pay $23 million into a common settlement 4 fund, without admitting liability. Settlement § 3.1. This amount includes attorneys’ fees and 5 costs, the cost of class notice and settlement administration, and the Class Representatives’ service 6 award. Id. In exchange for the settlement awards, the Settlement Class will release claims against 7 Google as set forth in the Settlement at Section 12. Id. § 12. 8 1. Attorneys’ Fees and Costs 9 The Settlement provides that: 10 Plaintiffs may apply to the Court seeking a reasonable proportion of the Settlement Fund as payment of any reasonable attorneys’ fees 11 and costs (“Fee Award”). The Fee Award will be paid as part of the 12 Settlement Fund specified in Paragraph 3.2. It is not a condition of this Settlement that any particular amount of attorneys’ fees, costs, 13 expenses, or service awards be approved by the Court, or that such fees, costs, expenses or awards be approved at all. Google expressly 14 reserves the right to oppose the motion seeking a Fee, Cost, and Expense Award. 15 Settlement § 11.1. The Settlement allows Plaintiffs to seek up to $5,000 to be paid to Named 16 Plaintiffs as an incentive award. Id. § 11.4. 17 2. Class Relief 18 After deductions from the common fund for fees, costs, and service incentive awards, the 19 Settlement Class will be paid according to an equal pro rata basis. Settlement § 6.6. Participating 20 Settlement Class members yield an average recovery of approximately $7.16 per class member. 21 Mot. Final Settlement 1–2. The Settlement provides that no amount will revert to Google. Id. § 3.9. 22 The final Settlement also provides for injunctive relief, whereby Google agrees to maintain certain 23 disclosures concerning search inquiries on Google’s FAQ webpage. Id. § 10. 24 3. Cy Pres/Remainder 25 The Settlement provides that: 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS If, despite the best efforts of the Settlement Administrator, a residual 1 amount remains after distribution (for example, because claims 2 contain erroneous payment information that cannot be corrected), all remaining funds shall be distributed pro rata to timely Claimants. If 3 the cost of fairly distributing the remaining balance exceeds the balance available to be distributed, the remaining balance shall be 4 paid to the Residual Cy Pres Recipient as a Residual Settlement Payment. 5 Settlement § 3.12. The Settlement does not provide a cy pres recipient, but it provides that the entity 6 will be “selected by the Parties’ mutual agreement.” Id. § 1.47. Class Counsel indicated at oral 7 arguments on October 12, 2023 that they have selected World Privacy, the same cy pres recipient 8 identified in the first settlement. 9 B. Class Notice and Claims Administration 10 The Settlement is being administered by Kroll Media. Prelim. Approval Order ¶ 7. 11 Following the Court’s preliminary approval and conditional certification of settlement, the Class 12 Administrator implemented the Notice Plan. Mot. Settlement 15. The Class Administrator used 13 multiple media channels, including internet-based banner advertisements, Google keywork search 14 advertising, Gmail advertising, publication on social media platforms, publication on class action 15 websites, and publication in nationally circulated print magazines. Id. 16 The Class Administrator also established a settlement website (the “Settlement Website”) at 17 www.referrerheadersettlement.com, including the settlement notices, the procedures for Settlement 18 Class members to submit claims or exclude themselves, a contact information page that includes 19 address and telephone numbers for the claim administrator and the parties, the Settlement, the signed 20 order of preliminary approval, claim form, and exclusion. Mot. Settlement, Ex. 1, Finegan 21 Declaration ¶ 26, ECF No. 187-1. In addition, the motion for final approval and the application for 22 attorneys’ fees, costs, and incentive awards were uploaded to the website after they were filed. See 23 id. at ECF p. 27. The Class Administrator also operated a toll-free number for Settlement Class 24 member inquiries. Id. ¶ 27. This Notice Plan reached 83% of potential Settlement Class members. 25 Id. ¶ 4. 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 Settlement Class members were given until July 31, 2023, to object to or exclude 2 themselves from the Settlement. Id. ¶ 31. Out of the estimated total population of 193 million 3 Settlement Class members, 2,530 persons filed timely requests to opt out of the Settlement Class. 4 Id. ¶ 33. A total of 2,564,682 claims were received by the Class Administrator. Id. ¶ 30. 5 II. FINAL APPROVAL OF SETTLEMENT 6 A. Legal Standard 7 A court may approve a proposed class action settlement of a certified class only “after a 8 hearing and on finding that it is fair, reasonable, and adequate,” and that it meets the requirements 9 for class certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement, a court 10 must balance a number of factors to gauge fairness and adequacy, including the following: 11 (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of 12 maintaining class action status throughout the trial; (4) the amount 13 offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; 14 (7) the presence of a governmental participant; and (8) the reaction of the class members to the proposed settlement. 15 Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). 16 Furthermore, class settlements reached prior to formal class certification require a 17 “heightened fairness inquiry.” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 1049 (9th Cir. 18 2019). When reviewing such a pre-certification settlement, the district court must not only explore 19 the Churchill factors but also “look[] for and scrutinize[] any subtle signs that class counsel have 20 allowed pursuit of their own self-interests . . . to infect the negotiations.” Id. at 1043 (internal 21 quotation marks omitted). 22 B. Analysis 23 1. Class Certification 24 This analysis begins with an examination of whether class treatment remains appropriate 25 under Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequate protection 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 by the Named Representatives. 2 Plaintiffs anticipated a Settlement Class comprised of approximately 193 million 3 individuals who all share a common injury. Mot. Settlement 2. The existence of this injury for 4 each Settlement Class member could be determined by resolving one question: whether Google’s 5 system-wide practice and policy of storage and disclosure of their search query information was 6 unlawful. Plaintiffs’ claims were also typical, if not identical, to that of other Settlement Class 7 members. For that reason, there was no indication that Plaintiffs’ interest would conflict with that 8 of the Settlement Class, and Plaintiffs and their counsel had proven a desire to vigorously pursue 9 class claims as evidenced by prior motion practice. As to Rule 23(b), the Court finds that common 10 questions predominate and that the class action mechanism was a superior process for this 11 litigation. The alternatives to class certification—millions of separate, individual and time- 12 consuming proceedings or a complete abandonment of claims by a majority of class members— 13 were not preferable. Moreover, class treatment was appropriate because Google’s policy was 14 directed at all of its users as whole rather than at particular users of its search engine. 15 Therefore, the Court finds all factors have been met and the class shall remain certified for 16 settlement purposes. 17 2. Adequacy of Notice 18 A court must “direct notice [of a proposed class settlement] in a reasonable manner to all 19 class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must 20 be notified of a proposed settlement in a manner that does not systematically leave any group 21 without notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982). 22 Adequate notice requires: (i) the best notice practicable; (ii) reasonably calculated, under the 23 circumstances, to apprise the Settlement Class members of the proposed settlement and of their 24 right to object or to exclude themselves as provided in the settlement agreement; (iii) reasonable 25 and constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 meet all applicable requirements of due process and any other applicable requirements under 2 federal law. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires 3 “notice reasonably calculated, under all the circumstances, to apprise interested parties of the 4 pendency of the action and afford them an opportunity to present their objections.” Mullane v. 5 Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). 6 The Court finds that the parties’ proposed notice procedures provided the best notice 7 practicable and reasonably calculated to apprise Settlement Class members of the settlement and 8 their rights to object or exclude themselves. Pursuant to those procedures, the Class Administrator 9 Kroll carried out the Notice Program and reached 83% of potential Settlement Class members by 10 using multiple media channels, including internet-based banner advertisements, Google keywork 11 search advertising, Gmail advertising, publication on social media platforms, publication on class 12 action websites, and publication in nationally circulated print magazines, as well as a toll-free 13 number and a website. Mot. Settlement, Ex. 1, Finegan Declaration ¶¶ 6–29. A total of 2,564,682 14 claims were received by the administrator. Id. ¶ 30. Based upon the foregoing, the Court finds that 15 the Settlement Class has been provided adequate notice. 16 3. The Settlement Is Fair and Reasonable 17 The Court finds that the Settlement here is fair, reasonable, and adequate under the 18 Churchill factors. The Court will analyze each factor in turn. 19 a. Strength of Plaintiffs’ Case 20 To assess strength of the case, “the district court’s determination is nothing more than an 21 amalgam of delicate balancing, gross approximations and rough justice.” Officers for Justice, 688 22 F.2d at 625 (internal quotations omitted). There is no “particular formula by which that outcome 23 must be tested,” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 965 (9th Cir. 2009), and the 24 district court is not required to render specific findings on the strength of all claims. Lane v. 25 Facebook, Inc., 696 F.3d 811, 823 (9th Cir. 2012). 26 Here, Plaintiffs readily state that the alleged privacy violation underlying all their claims is 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 novel and was potentially one of first impression in this circuit. Mot. Settlement 6. Thus, from 2 the outset, there was no guarantee that any claims would survive pre-trial challenges if adversarial 3 litigation had continued. Plaintiffs would also face challenges had the case proceeded to trial. 4 Considering the technology involved, the jury would have been required to review complex 5 technical evidence about the inner workings of Google’s search engine, leaving significant 6 opportunity for misunderstanding. Id. Furthermore, Plaintiffs state that success at trial would not 7 have equated to an ultimate success for the class. Id. This is because the calculation of damages 8 based on a potentially unquantifiable privacy injury would have posed a serious challenge to 9 Plaintiffs in obtaining some type of valuable relief, and any meaningful monetary amount awarded 10 to each Settlement Class member would have resulted in an astronomical judgment far exceeding 11 the value of Google, given the size of the Settlement Class. Id. 12 This factor weighs strongly in favor of the settlement. Without a compromise, there was 13 little guarantee of any benefit to the Settlement Class without a substantial amount of further 14 litigation. 15 b. Risk, Expense, Complexity, and Likely Duration of Further Litigation 16 Plaintiffs state that counsel took a particularly high risk litigating this matter because the 17 type of privacy injury asserted is legally unproven, technically complex, and potentially of little 18 value. Mot. Settlement 6. Moreover, Google’s denial of liability means that Plaintiffs would 19 continue to face “serious hurdles,” including a motion for summary judgment, Daubert challenges, 20 and inevitable appeals that would “likely prolong the litigation, and any recovery by class 21 members, for years.” Rodriguez, 563 F.3d at 966; see also Mot. Settlement 7. Further, this matter 22 has already proceeded through appeals for thirteen years. Because a negotiated resolution 23 provides for a certain recovery in the face of an uncertain legal theory, this factor favors the 24 settlement. Curtis-Bauer v. Morgan Stanley & Co., Inc., No. 06-C-3903 TEH, 2008 WL 4667090, 25 at *4 (N.D. Cal. Oct. 22, 2008) (“Settlement avoids the complexity, delay, risk and expense of 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 continuing with the litigation and will produce a prompt, certain, and substantial recovery for the 2 Plaintiff class.”). c. Risk of Maintaining Class Action Status Throughout Trial 3 Although a class can be certified for settlement purposes, the notion that a district court 4 could decertify a class at any time is an inescapable and weighty risk that weighs in favor of a 5 settlement. See Rodriguez, 563 F.3d at 966 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 6 160 (1982)). Here, there is little doubt that Google would have vigorously opposed class 7 certification at every opportunity before the district and appellate courts. In addition, the sheer 8 size of the class—essentially covering all persons in the United States who submitted a search 9 query to Google for a period of years—all but invites challenges to class certification based on 10 overbreadth or management difficulties, some of which could be considered meritorious. Thus, 11 the very real risk of never obtaining or losing class status in the absence of settlement weighs in 12 favor of approval. 13 d. The Amount Offered in the Settlement 14 Under the terms of the Settlement, Google will pay $23 million into a common settlement 15 fund, without admitting liability. Settlement § 3.1. This amount includes attorneys’ fees and 16 costs, the cost of class notice and settlement administration, and the class representative’s service 17 award. Id. 18 The Court finds that the amount of the agreed-upon settlement fund compares favorably to 19 that of other similar class actions. See, e.g., In re Google Buzz Privacy Litig., 2011 WL 7460099, 20 at *3–4 (N.D. Cal. June 2, 2011) (approving $8.5 million settlement fund for unauthorized 21 disclosure of email contact lists); Lane, 696 F.3d at 818 (approving $9.5 million settlement fund 22 for unauthorized disclosure of online behavior); In re Netflix Privacy Litig., No. 5:11-CV-00379 23 EJD, 2013 WL 1120801 (N.D. Cal. March 18, 2013) (approving $ 9 million settlement fund for 24 unauthorized storage of personal information). 25 The Court must also comment on the fact that Google’s allegedly unlawful practice will 26 not change as a result of this settlement. Instead, Google will be obligated to make certain 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 “agreed-upon disclosures,” or changes to certain portions of its website, the purpose of which is to 2 better inform users how their search terms could be disclosed to third parties through a referrer 3 header. Settlement § 3.7. While requiring that Google stop disclosing search queries altogether 4 may presumably be a preferrable result to the Settlement Class, at the same time, a class action 5 settlement does not need to embody the best possible result to be approved. The Court’s role is 6 not to advocate for any particular relief, but instead to determine whether the settlement terms fall 7 within a reasonable range of possible settlements. Considering all the circumstances which led to 8 a compromise here, the relief obtained for the class falls within a reasonable range of possible 9 settlements since it was entirely possible that nothing would be obtained if the case were to 10 proceed further. 11 Under the terms of the parties’ agreement, future users of Google’s website will receive 12 some benefit from the injunctive relief: the opportunity to better understand Google’s disclosure 13 practices before conducting a search on its website, and the ability to make a better-informed 14 choice based on that information. 15 Therefore, this factor favors settlement. 16 e. Extent of Discovery 17 Prior to reaching the Settlement, the parties had engaged in extensive document exchange 18 and had fully briefed three motions to dismiss. They also met in person numerous times and 19 engaged an experienced neutral to assist them in reaching a negotiated resolution. The extent of 20 factual investigation and the amount of pre-compromise litigation shows that Plaintiffs “had a 21 good grasp on the merits of their case before settlement talks began.” Rodriguez, 563 F.3d at 967. 22 As such, this factor weighs in favor of the settlement. 23 f. Experience and Views of Counsel 24 “Parties represented by competent counsel are better positioned than courts to produce a 25 settlement that fairly reflects each party’s expected outcome in litigation.” Id. Consequently, 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 “‘[t]he recommendations of plaintiffs’ counsel should be given a presumption of reasonableness.’” 2 In re Omnivision Techns., Inc., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2009) (quoting Boyd v. 3 Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979)). Given the extensive experience of Class 4 Counsel with complex class action lawsuits of a similar size to the instant case, this factor favors 5 approval of the settlement. g. The Presence of a Governmental Participant 6 The Class Action Fairness Act, or “CAFA,” requires that notice of a settlement be given to 7 state and federal officials and provides those officials a window of time to comment. 28 U.S.C. § 8 1715(b). “Although CAFA does not create an affirmative duty for either state or federal officials 9 to take any action in response to a class action settlement, CAFA presumes that, once put on 10 notice, state or federal officials will raise any concerns that they may have during the normal 11 course of the class action settlement procedures.” Garner, 2010 WL 1687832, at *14. 12 Here, the Class Administrator complied with the CAFA notice requirement on January 13, 13 2023. Mot. Settlement, Ex. 1, Finegan Declaration ¶ 25. No objections from a government 14 official have been received. Thus, this factor favors the settlement. 15 h. The Reaction of the Class Members to the Proposed Settlement 16 The reaction of the class was overwhelmingly positive. The Court received two objections 17 and 2,530 opt-outs as of the July 31, 2023 deadline. Mot Settlement 1–2 . These objections and 18 opt-outs constitute .0013% of estimated 193 million Settlement Class members. Mot. Settlement 19 2. “[T]he absence of a large number of objections to a proposed class action settlement raises a 20 strong presumption that the terms of a proposed class settlement action are favorable to the class 21 members.” In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 1043 (N.D. Cal. 2008) (citation 22 omitted); see also Churchill Vill., 361 F.3d at 577 (holding that approval of a settlement that 23 received 45 objections (0.05%) and 500 opt-outs (0.56%) out of 90,000 Settlement Class members 24 was proper). Therefore, this factor favors settlement. 25 In sum, all the applicable factors weigh in favor of finally approving the Settlement. 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 4. Collusion 2 The Ninth Circuit has articulated the following “subtle signs” of collusion of which a court 3 should be “particularly vigilant” when scrutinizing settlements achieved prior to class 4 certification: (1) “when counsel receive a disproportionate distribution of the settlement, or when 5 the class receives no monetary distribution but class counsel are amply rewarded;” (2) “clear 6 sailing” arrangements; and (3) “when the parties arrange for fees not awarded to revert to 7 defendants rather than be added to the class fund.” In re Bluetooth Headset Prod. Liab. Litig., 654 8 F.3d 935, 947 (9th Cir. 2011) (internal quotations and citations omitted). 9 Here, there is no evidence of conflicts of interest nor are there “subtle signs” of collusion. 10 The fact that this case was litigated aggressively by both sides over the course of thirteen years 11 strongly suggests a lack of collusion. The Settlement was reached only after extensive litigation 12 and arm’s-length negotiations between experienced counsel, including several in-person mediation 13 sessions and additional negotiations facilitated by Magistrate Judge Kim. That the Settlement was 14 based upon Judge Kim’s proposal demonstrates, in part, non-collusive conduct. See, e.g., Ebarle 15 v. Lifelock, Inc., 2016 WL 234364, at *6 (N.D. Cal. Jan. 20, 2016) (finding that acceptance of a 16 mediator’s proposal following mediation sessions “strongly suggests the absence of collusion or 17 bad faith”). 18 Furthermore, Class Counsel did not reach an agreement with Google regarding the amount 19 of attorney's fees to which they were entitled. See In re Hyundai & Kia Fuel Econ. Litig., 926 20 F.3d 539, 570 (9th Cir. 2019). Rather, the attorneys’ fees will be provided from the Settlement 21 Fund, indicating that the parties have not negotiated a “clear sailing” arrangement, which “carries 22 the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for 23 counsel accepting an unfair settlement on behalf of the class.” Bluetooth, 654 F.3d at 947. 24 5. Objections 25 Two individuals submitted objections: Clifford Weiler and Boyd John Adams. The Court 26 has considered all objections and overrules them for the reasons stated on the record at oral 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 argument, and as further explained below. 2 Objector Clifford Weiler filed an objection indicating that the size of the settlement fund is 3 insufficient in comparison to Google’s resources and the harms suffered, and the claims process is 4 too cumbersome. Weiler Objection. Plaintiffs respond that the 2.5 million claims show that the 5 claims process is not too cumbersome, and she that the claimants believe the size of the settlement 6 fund is adequate. Mot. Settlement 12. The Court finds that the size of the settlement fund is 7 reasonable, and the number of claimants goes to show that the claims process is adequately 8 accessible. The Court overrules Mr. Weiler’s objection. 9 Objector Boyd John Adams filed an objection indicating that Google should admit 10 wrongdoing, the punishment is not severe enough, and no one should be precluded form suing 11 Google again if Google commit crimes against them. Adams Objection 3–4. The Court finds the 12 release of liability reasonable and limited. The Court overrules Mr. Adams’s objection. 13 III. MOTION FOR ATTORNEYS’ FEES, COSTS, AND INCENTIVE AWARDS 14 Attorneys’ fees and costs may be awarded in a certified class action under Federal Rule of 15 Civil Procedure 23(h). Such fees must be found “fair, reasonable, and adequate” in order to be 16 approved. Fed. R. Civ. P. 23(e); Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To 17 “avoid abdicating its responsibility to review the agreement for the protection of the class, a 18 district court must carefully assess the reasonableness of a fee amount spelled out in a class action 19 settlement agreement.” Id. at 963. “[T]he members of the class retain an interest in assuring that 20 the fees to be paid class counsel are not unreasonably high,” since unreasonably high fees are a 21 likely indicator that the class has obtained less monetary or injunctive relief than they might 22 otherwise. Id. at 964. 23 A. Class Counsel Attorneys’ Fees 24 Class Counsel request $5.7 million in attorneys’ fees. Class Counsel Mot. Attorneys’ Fees. 25 Google does not oppose the fee request. No objector has challenged any of Class Counsel’s hours 26 or rates. 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 The Court analyzes an attorney’s fee request based on either the “lodestar” method or a 2 percentage of the total settlement fund made available to the class, including costs, fees, and 3 injunctive relief. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The Ninth 4 Circuit encourages courts to use the lodestar method as a cross-check in order to avoid a 5 “mechanical or formulaic approach that results in an unreasonable reward.” In re Bluetooth, 654 6 F.3d at 944–45 (citing Vizcaino, 290 F.3d at 1050–51). 7 When using the percentage of the fund method, courts consider a number of factors, 8 including whether class counsel “‘achieved exceptional results for the class,’ whether the case was 9 risky for class counsel, whether counsel's performance ‘generated benefits beyond the cash 10 settlement fund,’ the market rate for the particular field of law (in some circumstances), the 11 burdens class counsel experienced while litigating the case (e.g., cost, duration, foregoing other 12 work), and whether the case was handled on a contingency basis.” In re Online DVD-Rental 13 Antitrust Litig., 779 F.3d 934, 954–55 (9th Cir. 2015) (quoting Vizcaino, 290 F.3d at 1047–50). 14 “[T]he most critical factor [in determining appropriate attorney’s fee awards] is the degree of 15 success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). Under the percentage of the 16 fund method, courts in the Ninth Circuit “typically calculate 25% of the fund as the ‘benchmark’ 17 for a reasonable fee award, providing adequate explanation in the record of any ‘special 18 circumstances’ justifying a departure.” In re Bluetooth, 654 F.3d at 942 (citing Six (6) Mexican 19 Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990)). The benchmark should be 20 adjusted when the percentage recovery would be “either too small or too large in light of the hours 21 devoted to the case or other relevant factors.” Six (6) Mexican Workers, 904 F.2d at 1311. 22 Under the lodestar approach, a court multiplies the number of hours reasonably expended 23 by the reasonable hourly rate. Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (“[A] court 24 calculates the lodestar figure by multiplying the number of hours reasonably expended on a case 25 by a reasonable hourly rate. A reasonable hourly rate is ordinarily the ‘prevailing market rate [] in 26 the relevant community.’”). 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 Using both the percentage of the fund and the lodestar methods as a cross-check, the Court 2 finds an award of $5.75 million in attorneys’ fees to be reasonable. 3 1. Percentage of the Fund 4 Class Counsel seek a fee award of $5.75 million, which is equal to 25% of the settlement 5 fund. According to counsel, the combination of monetary distributions and injunctive relief 6 obtained in the settlement is an excellent result for the class because they “work in concert . . . 7 reshape the landscape of Internet privacy protections” and “enact a regime of informed consent for 8 Google Search users, who can now access complete and truthful information about the ways 9 Google handles user search queries before deciding whether to use Google Search, Google 10 Encrypted Search, or a competing search engine.” Class Counsel Mot. Attorneys’ Fees 3. Class 11 Counsel also believe they undertook substantial risk by agreeing to litigate this case on a purely 12 contingent basis given the unsettled legal issues, and, for that reason, spent considerable time— 13 more than twelve years—and money with no guarantee of payment. Id. 2–8. In addition, they 14 assert that the novel nature of this case, coupled with an opponent armed with substantial defenses 15 and resources, required sophisticated litigation and negotiation skills. Id. Finally, counsel points 16 out that the award requested is consistent with that awarded in other similar cases. Id. Having 17 considered the relevant factors, the court agrees with Class Counsel that this action posed a 18 substantial risk and required significant time and skill to obtain a result for the Settlement Class. 19 This case was not one where settlement was easily secured; to the contrary, Class Counsel was 20 required to defend their claims against four motions to dismiss, plus trips to the Ninth Circuit and 21 the U.S. Supreme Court. An agreement only materialized after extensive in-person negotiations, 22 first without and then including Magistrate Judge Kim. The parties ultimately reached this 23 Settlement by accepting Magistrate Judge Kim’s mediator’s proposal. Moreover, counsel’s 24 request is not disproportionate to the class benefit and is comparable to awards approved in other 25 similar internet privacy class actions, including one previously approved by this court. See In re 26 Netflix Privacy Litig., 2013 WL 1120801 (approving benchmark award of 25%). 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 2. Lodestar 2 The Ninth Circuit encourages district courts “to guard against an unreasonable result” by 3 cross-checking attorneys’ fees calculations against a second method. In re Bluetooth, 654 F.3d at 4 944. Since a 25% benchmark award might be reasonable in some cases but arbitrary in cases 5 involving an extremely large settlement fund, the purpose of the comparison is to ensure counsel 6 is not overcompensated. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust 7 Litig., 103 F.3d 602, 607 (9th Cir. 1997). 8 Here, Class Counsel calculates a lodestar figure of $3,107,295.25 for 4,014.4 billing hours 9 from four law firms, to which they apply a 1.85 multiplier for a total amount of $5.75 million. 10 Class Counsel’s Mot. Attorneys’ Fees 8–11. These amounts are attributable to each firm as 11 follows: 12 Firm Fees Expenses Total Cost 13 KamberLaw, LLC $1,298,395 $29,099 $1,327,494.00 14 Nassiri & Jung LLP $1,213,364 $6,199.24 $1,219,563.24 Progressive Law 15 $595,536.25 $8,336.45 $603,872.70 Group 16 Totals $3,107,295.25 $43,634.69 $3,150,929.94 17 Among the participating law firms, the hourly rates charged by attorneys range from $500 18 to $950. Id. at 9. 19 Class Counsel has provided sufficient support for its proposed lodestar calculation. The 20 number of hours and other costs attributed to this case are reasonable in light of the efforts 21 required to litigate and ultimately engage in a lengthy settlement process spanning over thirteen 22 years. In addition, the hourly rates charged fall within the range of those approved in other similar 23 cases, and the lodestar multiplier of 1.85 is comparable to that previously permitted by other 24 courts in similar internet privacy cases. Accordingly, the lodestar cross-check confirms the 25 reasonableness of the percentage-based calculation. 26 Based on the foregoing, the Court finds an award of attorneys’ fees to Class Counsel in the 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 amount of $5,750,000 fair, reasonable, and adequate. 2 B. Costs Award 3 Class Counsel also seek compensation for total costs of $43,634.69. Class Counsel’s Mot. 4 Attorneys’ Fees 11. Class Counsel is entitled to reimbursement of reasonable out-of-pocket 5 expenses. Fed. R. Civ. P. 23(h); see Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (holding 6 that attorneys may recover reasonable expenses that would typically be billed to paying clients in 7 non-contingency matters). Costs compensable under Rule 23(h) include “nontaxable costs that are 8 authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Here, Class Counsel seeks 9 reimbursement for litigation expenses, and provides records documenting those expenses, in the 10 amount of $43,634.69. The Court finds this amount reasonable, fair, and adequate. 11 C. Incentive Award 12 Service awards are “intended to compensate class representatives for work undertaken on 13 behalf of a class” and “are fairly typical in class action cases.” DVD-Rental, 779 F.3d 934, 943 14 (9th Cir. 2015) (internal quotation marks and citation omitted). The district court must evaluate 15 named plaintiff’s requested award using relevant factors including “the actions the plaintiff has 16 taken to protect the interests of the class, the degree to which the class has benefitted from those 17 actions . . . [and] the amount of time and effort the plaintiff expended in pursuing the litigation.” 18 Staton, 327 F.3d at 977. “Such awards are discretionary . . . and are intended to compensate class 19 representatives for work done on behalf of the class, to make up for financial or reputational risk 20 undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private 21 attorney general.” Rodriguez v. West Publishing Corp., 563 F.3d 948, 958–59 (9th Cir. 2009). 22 The Ninth Circuit has emphasized that district courts must “scrutiniz[e] all incentive awards to 23 determine whether they destroy the adequacy of the class representatives.” Radcliffe v. Experian 24 Info. Solutions, 715 F.3d 1157, 1163 (9th Cir. 2013). 25 Here, the Named Plaintiffs Gaos, Italiano, and Priyev request service awards of $5,000 26 each. The Court finds that the requested service awards are reasonable considering Named 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 Plaintiffs’ efforts in this case and the length of this litigation across thirteen years. The requested 2 service awards are also at the presumptively reasonable amount of $5,000 and are consistent with 3 precedent. See Allagas v. BP Solar Int’l, 2016 WL 9114162, at *4 (N.D. Cal. Dec. 22, 2016) 4 (awarding $7,500 to named plaintiffs who were deposed and $3,500 to one named plaintiff who 5 was not deposed). The Court finds that the requested service awards are appropriate in this case. 6 D. Objectors’ Attorneys’ Fees 7 “Under certain circumstances, attorneys for objectors may be entitled to attorneys' fees 8 from the fund created by class action litigation.” Rodriguez v. Disner, 688 F.3d 645, 658 (9th Cir. 9 2012). The general rule governing such fee awards is that objectors who generate “an increase to 10 the common fund” “or otherwise substantially benefit the class members” “may claim entitlement 11 to fees on the same equitable principles as class counsel.” Id. at 658. 12 Former Objectors Mr. Frank and Ms. Holyoak now seek $793,500 in attorneys’ fees for 13 contributing to an increase in the settlement fund. To briefly reiterate relevant procedure, Former 14 Objectors objected to the first settlement in 2015 on the grounds that the cy pres component was 15 improper. The Ninth Circuit affirmed the Court’s approval, but the Supreme Court vacated and 16 remanded on the issue of whether Plaintiffs had standing for their federal claims. On remand, the 17 Court still concluded that Plaintiffs had standing for their federal claims, but the Court also had the 18 opportunity to review Plaintiffs’ amended complaint on Google’s motion to dismiss and found that 19 Plaintiffs had cured the identified deficiencies to establish standing for their state-law claims. 20 Former Objectors argue that their appeals lead to an increase in the Settlement Class fund by 21 $17.25 mil. Class Counsel has filed a non-opposition. The Court will analyze Former Objectors’ 22 request under the same principles as Class Counsel. 23 1. Percentage of the Fund 24 Former Objectors’ attorneys’ fee request of $793,500 amounts to 4.6% of the total 25 settlement fund, well below the Ninth Circuit’s benchmark of 25%. 26 The Court must note that the Supreme Court did not reach the merits of Former Objectors’ 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 claims, but rather vacated the case so the Court could analyze standing under a recent Supreme 2 Court decision entered after the Final Approval Order. However, absent Former Objectors’ 3 appeals, the parties would not have re-negotiated the first settlement, the initial all-cy pres 4 settlement would still be in place, and the Settlement Class would have received $0. Under the re- 5 negotiated Settlement, the Settlement Class of approximately 2.5 million claimants will receive an 6 estimated $7.16 each. While it is arguable whether the increase in the settlement fund can be 7 directly attributable to Former Objectors’ appeals, the Court still finds that their litigation 8 ultimately led to a substantial increased benefit for the Settlement Class as a whole. 9 Thus, the overall result and benefit to the Settlement Class supports the requested fee. This 10 case also required skill and high-quality work, which Former Objectors’ counsel demonstrated 11 throughout their multi-year involvement in this case throughout appeals in the Ninth Circuit and 12 the Supreme Court. Former Objectors’ work here also entailed significant risks. The Supreme 13 Court hears a very small percentage of petitions, reflecting a small chance that Former Objectors 14 would achieve their objective. 15 In light of all the above, the Court finds 4.6% of the total settlement fund to be reasonable. 16 2. Lodestar 17 A lodestar cross-check further confirms that the requested fee is reasonable. Former 18 Objectors’ Counsel calculates a lodestar figure of $526,196.25 for 817.55 billing hours, to which 19 they apply a 1.5 multiplier for a total amount of $793,500. Former Objectors’ Mot. Attorneys’ 20 Fees 12–14. Their billing summaries contain sufficient detail for the Court to conduct a lodestar- 21 based assessment as a crosscheck. The Court finds that the time Former Objectors’ counsel 22 dedicated to prosecuting this action is reasonable, and understated given that Former Objectors are 23 themselves attorneys who did not include the significant hours that they spent on legal work for 24 the case in their lodestar and given the variety of tasks that were necessary for them to prosecute 25 their objection—from filing an objection; the appeal; and the petition for certiorari to and litigation 26 before the Supreme Court. All these steps were necessary to achieve the outcome Former 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 1 Objectors sought. The Court also finds that Former Objectors’ hourly rates are reasonable, in line 2 || with those prevailing in this district for similar services by lawyers of reasonably comparable skill, 3 experience, and reputation. 4 For all the reasons discussed above, the Court grants Former Objectors’ request for 5 attorneys’ fees. 6 || IV. CONCLUSION 7 Based on the preceding discussion, the Court finds that the terms of the Settlement, 8 including the awards of attorneys’ fees, costs, and incentive awards, is fair, adequate, and 9 || reasonable; that it satisfies Federal Rule of Civil Procedure 23(e) and the fairness and adequacy 10 || factors; and that it should be approved and implemented. 11 The Motion for Final Approval is GRANTED. Plaintiffs’ Motion for Attorneys’ Fees and 12 Costs is GRANTED. Class Counsel is awarded $5,750,000 in attorneys’ fees and $43,634.69 in 5 13 litigation costs. Named Plaintiffs Gaos, Italiano, and Priyev are granted an incentive award of 14 |} $5,000 each. Former Objectors’ Motion for Attorneys’ Fees is GRANTED. Former Objectors’ 3 15 || counsel is awarded $793,500. The Clerk shall close this file upon entry of Judgment. a 16 Without affecting the finality of this Order in any way, the Court retains jurisdiction of all 3 17 matters relating to the interpretation, administration, implementation, effectuation and 18 || enforcement of this Order and the Settlement. 19 IT IS SO ORDERED. 20 Dated: October 16, 2023 21 22 eM. EDWARD J. DAVILA 23 United States District Judge 24 25 26 27 Case No.: 5:10-cv-04809-EJD ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; GRANTING CLASS 2g || COUNSEL’S MOTION FOR ATTORNEYS’ FEES; GRANTING FORMER OBJECTORS’ MOTION FOR ATTORNEYS’ FEES