Joffe v. Google, Inc. (In re Google Inc. St. View Elec. Commc'ns Litig.)

• Decision Date: 27 December 2021
• Docket Number: No. 20-15616,20-15616
• Citation: 21 F.4th 1102
• Parties: IN RE GOOGLE INC. STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION, Benjamin Joffe; Lilla Marigza; Rick Benitti; Bertha Davis; Jason Taylor; Eric Myhre; John E. Redstone; Matthew Berlage; Patrick Keyes; Karl H. Schulz ; James Fairbanks; Aaron Linsky; Dean M. Bastilla; Vicki Van Valin; Jeffrey Colman; Russell Carter; Stephanie Carter; Jennifer Locsin, Plaintiffs-Appellees, David Lowery, Objector-Appellant, v. Google, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 1102

IN RE GOOGLE INC. STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION,Benjamin Joffe; Lilla Marigza; Rick Benitti; Bertha Davis; Jason Taylor; Eric Myhre; John E. Redstone; Matthew Berlage; Patrick Keyes; Karl H. Schulz ; James Fairbanks; Aaron Linsky; Dean M. Bastilla; Vicki Van Valin; Jeffrey Colman; Russell Carter; Stephanie Carter; Jennifer Locsin, Plaintiffs-Appellees,David Lowery, Objector-Appellant,

v.Google, Inc., Defendant-Appellee.

No. 20-15616

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2021 San Francisco, California

Filed December 27, 2021

Adam E. Schulman (argued) and Theodore H. Frank, Hamilton Lincoln Law Center, Center for Class Action Fairness, Washington, D.C., for Objector-Appellant.

Daniel A. Small (argued) and Robert W. Cobbs, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Elizabeth L. Cabraser, Michael W. Sobol, and Melissa Gardner, Leiff Cabraser Heimann & Bernstein LLP, San Francisco, California; Jeffrey L. Kodroff, John A. Macoretta, and Mary Ann Geppert, Spector Roseman & Kodroff P.C., Philadelphia, Pennsylvania; for Plaintiffs-Appellees.

Brian M. Willen (argued) and Eli B. Richlin, Wilson Sonsini Goodrich & Rosati, New York, New York; David H. Kramer, Wilson Sonsini Goodrich & Rosati, Palo Alto, California; Paul N. Harold, Wilson Sonsini Goodrich & Rosati, Washington, D.C.; for Defendant-Appellee.

Kate B. Sawyer (argued), Assistant Solicitor General; Keena Patel, Assistant Attorney General; Oramel H. Skinner, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; Steve Marshall, Attorney General, State of Alabama; Kevin G. Clarkson, Attorney General, State of Alaska; Leslie Rutledge, Attorney General, State of Arkansas; Lawrence G. Wasden, Attorney General, State of Idaho; Curtis T. Hill Jr., Attorney General, State of Indiana; Derek Schmidt, Attorney General, State of Kansas; Jeff Landry, Attorney General, State of Louisiana; Eric Schmitt, Attorney General, State of Missouri; Aaron D. Ford, Attorney General, State of Nevada; Wayne Stenehjem, Attorney General, State of North Dakota; Dave Yost, Attorney General, State of Ohio; Mike Hunter, Attorney General, State of Oklahoma; for Amici Curiae Thirteen Attorneys General for the States of Arizona, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Louisiana, Missouri, Nevada, North Dakota, Ohio, and Oklahoma.

Ellen Bronchetti and Ron Holland, McDermott Will & Emery LLP; San Francisco, California; Wilber H. Boies and Timothy M. Kennedy, McDermott Will & Emery LLP, Chicago, Illinois; for Amici Curiae Legal Aid Organizations.

Stuart T. Rossman, National Consumer Law Center, Boston, Massachusetts; Michael Landis, Center for Public Interest Research, Denver, Colorado; for Amici Curiae United States Public Interest Research Group Education Fund and National Consumer Law Center.

Before: Marsha S. Berzon, Morgan Christen, and Bridget S. Bade, Circuit Judges.

BADE, Circuit Judge:

In this consolidated class action lawsuit, plaintiffs alleged, on behalf of an estimated sixty million people, that Google illegally collected their Wi-Fi data through its Street View program. After a decade of litigation, including a complex, three-year forensic investigation to confirm the standing of the eighteen named plaintiffs, the parties reached a settlement agreement that provided for injunctive relief, cy pres payments to nine Internet privacy advocacy groups, fees for the attorneys, and service awards to class representatives—but no payments to absent class members. The district court approved the proposed settlement, finding that it was not feasible to distribute funds directly to class members given the class size and the technical challenges to verifying class members' claims.

David Lowery, one of two objectors to the settlement proposal, appeals the district court's approval of the settlement and grant of attorneys' fees. He argues that the district court should not have approved the settlement because it was feasible to distribute funds to class members, and that if it truly was not feasible to do so, then the district court should not have certified the class. He also asserts that the settlement violated the First Amendment's prohibition on compelled speech, that the cy pres recipients had improper relationships with the parties and class counsel, that the district court awarded excessive attorneys' fees, and that class counsel and the class representatives breached their fiduciary duties. We conclude that the district court did not abuse its discretion in approving the settlement, certifying the class, or in its award of attorneys' fees, and that it did not commit legal error by rejecting Lowery's First Amendment argument. We affirm.

I

In 2007, Google launched Street View, a web-based technology that would eventually provide users with panoramic street-level images from numerous points along roads throughout the world. To obtain the images for Street View, Google deployed a fleet of specially adapted cars ("Street View Vehicles"). As it turned out, however, these vehicles did not simply take photographs; they were also equipped with Wi-Fi antennas and software designed to collect, decode, and analyze various kinds of data commonly transmitted over Wi-Fi networks. The Street View Vehicles collected basic identifying information—such as signal strength, broadcasting channel, data transmission rate, media access control ("MAC") address, and Service Set Identifier ("SSID")—from Wi-Fi networks along the roads they travelled, apparently for the purpose of providing enhanced, "location-aware" services to Street View users.¹

In May 2010, Google revealed that its Street View Vehicles had been collecting not just network identifying information, but also payload data—that is, substantive information such as emails, usernames, passwords, videos, photographs, and documents—that Internet users transmitted over unencrypted Wi-Fi networks when the Street View Vehicles were nearby. See Joffe v. Google, Inc. , 729 F.3d 1262, 1264 (9th Cir.), amended and superseded on reh'g by 746 F.3d 920 (9th Cir. 2013). In total, the Street View Vehicles apparently collected around three billion frames of raw data from wireless networks, including approximately 300 million frames containing payload data.

Google publicly apologized for collecting payload data, suspended operation of the Street View Vehicles, and stated that it had segregated the data and rendered it inaccessible. It insisted (as it still maintains) that it never intended to collect payload data. Nevertheless, the revelations led to state and federal investigations, including a joint investigation by the attorneys general of thirty-eight states and the District of Columbia. In March 2013, Google entered an Assurance of Voluntary Compliance ("AVC") with these attorneys general regarding its collection of Wi-Fi data from Street View Vehicles. Among other provisions, the AVC stated that Google would destroy all payload data it had acquired, refrain from collecting or storing any additional payload data through Street View without notice and consent, maintain a "privacy program" as described in the AVC, and undertake a public service and education campaign.² The AVC also required Google to pay a total of $7 million to the attorneys general.

But Google's legal troubles related to the Street View Vehicles did not end with the AVC. Shortly after Google's May 2010 admission, at least thirteen putative class action lawsuits were brought based on the Street View Vehicles' collection of payload data. In August 2010, the Judicial Panel on Multidistrict Litigation consolidated eight of these cases and transferred them to the Northern District of California.

In November 2010, Plaintiffs filed a Consolidated Class Action Complaint asserting various state and federal claims, including violations of the Wiretap Act, see 18 U.S.C. § 2511, and seeking statutory and punitive damages as well as injunctive relief. Google moved to dismiss the complaint, and the district court dismissed the state law claims on pre-emption and standing grounds but held that Plaintiffs had adequately alleged violations of the Wiretap Act. See In re Google Inc. St. View Elec. Commc'ns Litig. , 794 F. Supp. 2d 1067, 1073–87 (N.D. Cal. 2011). We affirmed in an interlocutory appeal. Joffe , 746 F.3d 920.

On remand, Google disputed the named plaintiffs' standing, and the district court appointed a special master to determine "whether any communications from [named] Plaintiffs' unencrypted Wi-Fi networks were actually acquired by Google." This investigation first required the eighteen named plaintiffs to provide "personal information and forensic evidence of their wireless network equipment," including MAC addresses, email addresses, and SSIDs, to the special master. Then, as the district court described it, the special master organized the massive troves of Street View data "into a searchable database," developed custom software to process the data, and "conducted complex technical searches" to identify whether the data contained any transmissions intercepted from the named plaintiffs. This process took three years and culminated in a report, filed under seal with the district court in 2017, which was apparently still not entirely conclusive on whether Google had intercepted payload data from the named plaintiffs.

In June 2018, the parties reached a settlement agreement for a class consisting of "all persons who used a wireless network device from which Acquired Payload Data was obtained" from January 1, 2007 through May 15, 2010. Class counsel estimated that this class included approximately sixty million members. The settlement agreement provided that Google would establish a $13 million settlement fund. The agreement did not provide for any direct payments to absent class members. Instead, after attorneys' fees, litigation expenses, service awards for the class...