Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Google Inc. Cookie Placement Consumer Privacy Litigation

United States District Court, D. Delaware

February 2, 2017

IN RE GOOGLE INC. COOKIE PLACEMENT CONSUMER PRIVACY LITIGATION

          MEMORANDUM AND ORDER

         At Wilmington this 2nd day of February, 2017, having reviewed the papers filed in connection with Class Plaintiffs' motion for final approval of settlement with Google Inc. ("Google"), and having conducted a hearing on the same, at which time the sole objecting party was represented and heard;

         NOW, THEREFORE, IT IS ORDERED that the motion for approval (D.I. 167) is granted and the objection of Theodore H. Frank (D.I. 171) is overruled, for the reasons that follow:

         1. Background. In 2012, numerous individuals (including the plaintiffs at bar[1]) filed complaints in various federal courts around the country after it became known that Google had circumvented certain privacy settings on Apple Safari and Microsoft Internet Explorer web browsers. In June 2012, these actions were centralized and transferred to this court for coordinated or consolidated pretrial proceedings pursuant 28 U.S.C. § 1407. (D.I. 1)

         2. Thereafter, plaintiffs filed a consolidated class action complaint against Google and other defendants, alleging (on behalf of a nationwide class of consumers) that Google intentionally set cookies[2] on plaintiffs' Safari and Internet Explorer web browsers in conflict with the default cookie-blocking settings of such browsers and in violation of various federal and state laws. (D.I. 46) Rather than answer, Google filed a motion to dismiss all claims against it. (D.I. 56) The court granted the motion in its entirety (D.I. 122), which decision was affirmed in part (as to the federal claims asserted by plaintiffs) and vacated in part (as to certain state law claims) on appeal.[3] (D.I. 146)

         3. On remand, the parties initiated the pursuit of discovery. (D.I. 155-156, 158-160) Thereafter, the parties engaged in private mediation efforts, which efforts were successful. The agreed-upon Settlement provides for a payment from Google of $5.5 million, to be used for cy pres contributions that will indirectly benefit plaintiffs. The Settlement also provides for remedial and prospective relief, including Google's assurances that it took actions to expire or delete, by modifying the cookie deletion date contained in each cookie, all third-party Google cookies that exist in the browser filed for Safari browsers. (D.I. 163-1, ex. A at § 5.1) Plaintiffs subsequently filed a motion for preliminary approval of settlement. (D.I. 163) The motion was granted on August 31, 2016, with the court directing that notice be disseminated to the Settlement Class in accordance with the Settlement Agreement. (D.I. 164) The postmark deadline for all exclusions from the Settlement was November 27, 2016, and the postmark deadline to all objections to the Settlement was December 21, 2016. There were 50 timely requests for exclusion; as noted, one objection was filed. (D.I. 167-1 at 8-9; D.I. 171)

         4. Settlement Class. Plaintiffs seek first to certify the Settlement Class for settlement purposes only, and have defined the Settlement Class as:[4]

[A]ll persons in the United States of America who used Apple Safari or Microsoft Internet Explorer web browsers and who visited a website from which Doubleclick.net (Google's advertising serving service) cookies were placed by the means alleged in the Complaint.

(D.I. 163-1, ex. A at §2.3) In order to certify the Settlement Class, the court must conclude that the requirements for class certification under Federal Rule of Civil Procedure 23(a) and at least one of the separate provisions of Rule 23(b) are met. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-614 (1997). There have been no objections filed in this regard, and the record provides sufficient support for certification. As noted, the members of the Settlement Class are so numerous and geographically diverse that joinder is impracticable. Because Google served the same code in the same manner in order to circumvent users' Safari and/or Internet Explorer web browsers' security and privacy settings to the Class representatives and all class members, there are common questions of law and fact and injunctive relief is an appropriate remedy. Furthermore, the claims of the Class Representatives are typical of the claims of the Settlement Class and the Class Representatives will fairly and adequately protect the interests of the Settlement Class. For these reasons, the Settlement Class is certified.

         5. Settlement and Notice Program. The proposed settlement with Google was reached following extensive arm's-length negotiations between Class Counsel and Google's counsel, starting with informal discussions between the parties and culminating in private mediation efforts before a former federal judge. The amount of the award to be paid to the Settlement Class is $5.5 million, to be used for cy pres contributions and the indirect benefit of the Settlement Class.[5] Consistent with the Settlement Agreement, [6] the parties have proposed six cy pres recipients: (1) Berkeley Center for Law & Technology ("BCLT"); (2) Berkman Center for Internet & Society at Harvard University ("BCIS"); (3) Center for Democracy & Technology (Privacy & Data Project) ("CDT"); (4) Public Counsel; (5) Privacy Rights Clearinghouse; and (6) Center for Internet & Society at Stanford University ("CIS"). (D.I. 166) The amount of the settlement fund is related to the estimated monetary amount Google obtained from its actions under review was about $4 million, and Google had already disgorged unjust enrichment by paying more millions of dollars in fines to the government in settling a Federal Trade Commission investigation into its actions, Class Counsel concluded that $5.5 million was reasonable and fair compensation.[7] (D.I. 167-1 at 6) In addition to a cash award, the Settlement also provides for remedial and prospective relief for the Settlement Class, including Google's assurances that it has taken actions to expire or delete, by modifying the cookie deletion date contained in each cookie, all third-party Google cookies that exist in the browser files for Safari browsers. (D.I. 163-1, ex. A at § 5.1)

         6. The court preliminarily approved the Settlement on August 31, 2016. (D.I. 164) Beginning on September 12, 2016, and continuing until October 24, 2016, notice of the proposed settlement with Google ("Notice") was disseminated to potential members of the class via online advertisements on the Audience Network Buy and Pulpo Media networks, as well as through targeted social media advertising on Facebook, designed by the Class Administrator to reach the broadest possible audience of potential Apple Safari and Microsoft Internet Explorer web browsers. (D.I. 167-5, ¶¶ 6-9 and ex. C) A summary Notice was also published in the October 17, 2016 issue of People Magazine. (Id. at ¶ 10 and ex. D) A website containing the long-form Notice was also established and, as of November 28, 2016, was visited at least 41, 705 times. (Id. at ¶ 11 and ex. E) The postmark deadline for all exclusions from the Settlement was November 27, 2016, and the postmark deadline for all objections to the Settlement was December 21, 2016. The Class Administrator received 50 timely requests for exclusion from the Settlement. (Id. at ¶ 12 and ex. G) A single objection was filed.

         7. Standard of Review. The court recognizes that the "law favors settlement, particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation." In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 784 (3d Cir. 1995). Class settlements are presumed fair "if the court finds that: (1) the negotiations occurred at arm's length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected." In re Warfarin Sodium Antitrust Litig., 212 F.R.D. 231, 254 (D. Del. 2002). Nevertheless, in order to ensure that the settlement under review is "fair, adequate and reasonable, " the Third Circuit has identified the following issues as appropriate for judicial scrutiny: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the Settlement Class to the Settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of defendant to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of all the attendant risks of litigation. See Girsh v. Jepson, 521 F.2d 153, 156-57 (3d Cir. 1975).

         8. Again, the thrust of the sole objection is not directed to the Girsh factors, and the record adequately establishes that the applicable Girsh factors have been satisfied. The instant litigation clearly was complex, had already been litigated through a motion to dismiss and appeal, and was poised to move forward through further discovery, motion practice and trial to resolve the remaining state action.[8] As noted, the record reflects a single, limited objection.[9] The nature of the claims - invasion of privacy - pose difficulties in terms of establishing liability (as demonstrated by Google's successful motion to dismiss) and damages, as well as in maintaining the class action through trial.[10] Although Google most likely has the ability to withstand a greater judgment, this factor does not weigh against approving the proposed settlement "in light of the risks that Plaintiffs would not be able to achieve any greater recovery at trial."[11] Lazy Oil Co. v. Witco Corp., 95 F.Supp.2d 290, 318 (W.D. Pa. 1997). Finally, there has been no objection filed as to the adequacy of the notice provided to the Settlement Class; therefore, the court finds that the Notice Plan previously approved passes muster under Rule 23(c).

         9. In addition to the Girsh factors, which must be considered before approving a class settlement, the Third Circuit in In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283 (3d Cir. 1998), expanded the analysis by directing district courts to consider, when appropriate, such additional factors as: (1) "the maturity of the underlying substantive issues, " (2) "the development of scientific knowledge;" (3) any circumstances that "bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages;" (4) whether class members were "accorded the right to opt out of the settlement;" (5) "whether any provisions for attorneys' fees are reasonable;" and (6) whether the ADR procedure was fair and reasonable. Id. at 323. The Third Circuit in In re Baby Prod. Antitrust Litig. added an additional inquiry, that is, a "thorough" and "practical" analysis of settlement terms vis a vis "the degree of direct benefit provided to the class" versus any cy pres awards. 708 F.3d 163, 174 (3d Cir. 2013).

         10. Objection. The sole objection filed in this matter was done so by Theodore H. Frank, an individual who has participated in multiple litigations as an objector.[12] The thrust of his objection is that the Settlement should be modified or rejected because, rather than providing for direct compensation to the Settlement Class, it provides for indirect compensation via payments to certain cy pres charities. A cy pres remedy "is a settlement structure wherein class members receive an indirect benefit (usually through defendant donations to a third party) rather than a direct monetary payment." Lane v. Facebook, Inc.,696 F.3d 811, 819 (9th Cir. 2012). Although "direct distributions to the class are preferred over cy pres distributions, " In re Baby Prod. Antitrust Litig., 708 F.3d at 173, the cypres remedy has been held to be appropriate when there is unclaimed or non-distributable portions of a class action settlement fund. "For purposes of the cy pres doctrine, a class-action settlement fund is 'non-distributable' when 'the proof of individual claims would be burdensome or distribution of damages costly.'" Lane, 696 F.3d at 819 (quoting Nachshin v. AOL, LLC,663 F.3d 1034, 1038 (9th Cir. 2011)). Seealso In re Baby Products Antitrust Litig., 708 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.