In re Google LLC St. View Elec. Commc'ns Litig.
| Citation | 611 F.Supp.3d 872 |
| Decision Date | 18 March 2020 |
| Docket Number | Case No. 10-md-02184-CRB |
| Parties | IN RE GOOGLE LLC STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT, GRANTING ATTORNEYS' FEES, AND ENTERING FINAL JUDGMENT
The Court must now assess the settlement of a case in which a vast but nonetheless difficult-to-identify class of people suffered intangible injury, and minimal damages. Specifically, this suit arises under the Electronic Communications Privacy Act of 1986 ("ECPA"), see Transfer Order (dkt. 1), and Plaintiffs allege that between 2007 and 2010, Google used its Street View vehicles to intentionally intercept and store electronic communications transmitted by class members over unencrypted wireless internet connections, see CAC (dkt. 54) ¶¶ 1–4. After almost a decade of litigation, the parties reached a settlement. See generally Agreement (dkt. 166-1) Ex. A. The settlement provides for injunctive relief and a $13 million Settlement Fund, which (after deducting attorneys' fees and expenses, service awards for the named plaintiffs, and notice and settlement expenses) the parties have agreed will be used to fund Court-approved cy pres awards to organizations that address consumer privacy issues. Mot. (dkt. 184) at 3–4. The Court preliminarily approved the settlement in October 2019. See Order on Prelim. Approval (dkt. 178).
Class Counsel now moves for final approval of the settlement. See generally Mot. The Court held a motion hearing on Friday, February 28, 2020. See Motion Hearing (dkt. 204). The Court has considered the record, the Settlement Agreement, and the briefing on this motion, including the objections and comments it received, and the arguments at the hearing. In adjudicating this motion, the Court bears in mind its responsibility to absent class members. Particularly when a settlement takes place before formal class certification, the Court must "scrutinize the proceedings to discern whether" Class Counsel and the named plaintiffs "have sacrificed the interests of absent class members for their own benefit." See In re Google Referrer Header Privacy Litigation, 869 F.3d 737, 741 (9th Cir. 2017), vacated on other grounds by Frank v. Gaos, ––– U.S. ––––, 139 S. Ct. 1041, 203 L.Ed.2d 404 (2019) ;1 Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012). But the Court is also mindful that its job is not to create policy about the cy pres doctrine generally, or even to fashion the settlement agreement that it might most prefer in this case. Rather, it is to decide, given the circumstances of this case, whether the settlement the parties have reached is " ‘fair, adequate, and free from collusion.’ " See Lane, 696 F.3d at 819 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ).
IT IS THEREFORE HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
I. DEFINED TERMS
Unless otherwise defined herein, all terms that are capitalized herein shall have the meanings ascribed to those terms in the Settlement Agreement.
II. JURISDICTION
This Court has jurisdiction over the subject matter of this Action, all parties to the Action, and all Class Members.
III. STANDING
Courts considering class action settlements must "assure [them]selves of litigants' standing under Article III." Gaos, 139 S. Ct. at 1046 (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). Moreover, "named plaintiffs who represent a class ‘must allege and show that they personally have been injured.’ " Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1547 n.6, 194 L.Ed.2d 635 (2016) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). The Class Representatives' standing here was not a foregone conclusion.
Plaintiffs allege that Google willfully intercepted and stored their private electronic communications in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the ECPA, 18 U.S.C. §§ 2510, et seq. (together "the Wiretap Act"). See CAC (dkt. 54). Plaintiffs further alleged that Google's Street View vehicles "surreptitiously collected, decoded, and stored data from [their] WiFi connection, including payload data," and that they "did not know that Google collected [t]his data, nor did [they] give permission for Google to do so." Id. ¶¶ 18–38.
Given these allegations, the parties engaged a Special Master to conduct intensive discovery on the issue of standing. See Case Management Conference – Further (dkt. 108). The Special Master conducted complex technical searches on data collected by Google "to determine whether any Plaintiff's communications were acquired by Google." Order Regarding Jurisdictional Discovery (dkt. 121-1) at 2. The Special Master was provided with three billion frames of wireless raw data, of which about 300 million contained "Payload Data"—the kind of frames that could contain communications. See Joint Decl. (dkt. 186) ¶ 19. It took a year for the Special Master to organize the data into a searchable database, and another two years for the Special Master to design and conduct the searches, during which time the parties and Special Master met regularly to confer on the process. Id. Eighteen Named Plaintiffs "produced personal information and forensic evidence of their wireless network equipment (including MAC addresses, email addresses, and SSIDs) to the Special Master to facilitate this targeted discovery." Id.
After the Special Master issued his report, Joint Mot. to File Under Seal (dkt. 138), the Court stayed these proceedings pending the Supreme Court's consideration of Gaos, see Stay Order (dkt. 155). Although the Supreme Court in Gaos had granted certiorari to review the issue of cy pres-only settlements, it did not reach that issue, concluding that "there remain[ed] substantial questions about whether any of the named plaintiffs ha[d] standing" in light of Spokeo, 578 U.S. 330, 136 S. Ct. 1540. The holdings of Gaos and Spokeo guide this Court's standing analysis.
The district court in Gaos had found that Gaos established standing by alleging that the defendant violated the Stored Communications Act, which provides a private right of action. See Gaos, 139 S. Ct. at 1044. While the Ninth Circuit was considering an appeal of Gaos's class action settlement, the Supreme Court decided Spokeo. See Gaos, 139 S. Ct. at 1045. In Spokeo, the Court explained that standing consists of having "(1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." 136 S. Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The Court explained that an injury in fact requires "a plaintiff [to] show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548. "Particularized" means that the injury " ‘must affect the plaintiff in a personal and individual way,’ " while "concrete" means that the injury "must actually exist." Id. (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130 ). The Court noted that "intangible injuries can be concrete," and that "in determining whether an intangible harm constitutes an injury in fact, both history and the judgment of Congress play important roles." Id. at 1549. The Court found it instructive "to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Id. Merely "alleg[ing] a bare procedural violation, divorced from any concrete harm," does not satisfy the injury-in-fact requirement. Id. Plaintiffs must allege concrete harm, the Court explained, "even in the context of a statutory violation." Id. Because the Ninth Circuit had affirmed Gaos's class action settlement without reexamining standing, the Supreme Court remanded the case to the Ninth Circuit to consider Gaos's standing in light of Spokeo. Gaos, 139 S. Ct. at 1045–46.2
Because the Plaintiffs here have alleged an intangible injury that stems from a statutory violation, the Court considers Congress's judgment in "identifying and elevating intangible harms" and the relationship between the intangible injury and "harm that has traditionally been regarded as providing a basis for a lawsuit." See Spokeo, 136 S. Ct. at 1549. In enacting the ECPA, Congress sought to protect the concrete privacy interests of individuals in avoiding unwanted interception of their electronic communications. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) (). The prohibition in the statute, and its accompanying private right of action, reflect Congress's judgment that intentional, nonconsensual interception of private communications is an invasion of an individual's right to privacy. See S. Rep. No. 99-541 at 5 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3559 ( ). This congressional judgment is "instructive and important" in establishing a concrete injury under Article III. See Spokeo, 136 S. Ct. at 1549. Moreover, the injury at issue here—having one's electronic communication intentionally intercepted—bears a close relationship to a traditional violation of the right to privacy.
In so holding, the Court follows the guidance of Campbell...
To continue reading
Request your trial