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Case5:08-cv-03845-RS Document123 Filed03/17/10 Page1 of 12
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`SEAN LANE, et al.,
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`No. C 08-3845 RS
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`Plaintiffs
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`FINDINGS OF FACT, CONCLUSIONS
`OF LAW, AND ORDER APPROVING
`SETTLEMENT
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`v.
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`FACEBOOK, INC., et al.,
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`Defendants.
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`A hearing was held before this Court on February 26, 2010, pursuant to the Court’s
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`Preliminary Approval Order of October 23, 2009, upon a Settlement Agreement, dated as of
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`September 17, 2009 (the “Settlement Agreement”) in the above-captioned Litigation. Due notice
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`of the hearing was given in accordance with the Preliminary Approval Order which was adequate
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`and sufficient and in accordance with the Court’s Preliminary Approval Order. The represented
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`parties appeared by their attorneys of record, and an opportunity to be heard was given to all other
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`persons desiring to be heard as provided in the notice. The Court has considered the terms of the
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`proposed Settlement as set forth in the Settlement Agreement, and the submissions and arguments
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`with respect to it. Accordingly, the Court makes following findings and orders thereon:
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`Findings and Order
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`*E-Filed 03/17/2010*
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`Case5:08-cv-03845-RS Document123 Filed03/17/10 Page2 of 12
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`A.
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`This Court has jurisdiction over the subject-matter of the Litigation pursuant to
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`Title 28, United States Code, section 1332, and all acts within the Litigation, and over all the
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`parties to the Litigation, and all members of the Settlement Class.
`B.
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`This Order incorporates herein and makes a part hereof the Settlement Agreement,
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`including the Exhibits thereto. Unless otherwise provided herein, the terms defined in the
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`Settlement Agreement shall have the same meanings for purposes of this Order.
`C.
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`Notice to the Settlement Class and other potentially interested parties has been
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`provided in accordance with the notice requirements specified by the Court in the Preliminary
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`Approval Order. Additionally, subsequent to preliminary approval, the parties proposed
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`amending the notice requirements to specify that Class members would be given notice by email
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`to the Class members’ email addresses on file with Facebook, in lieu of an internal Facebook
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`message in the ‘Updates’ Section.” The Court declined to execute the parties’ stipulation, instead
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`inquiring if it would be more appropriate to utilize email notice in addition to that specified in the
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`Preliminary Approval Order, rather than in lieu of it. Although the Preliminary Approval Order
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`was never expressly amended to require it, notice was thereafter given by email in addition to the
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`other forms of notice. Such notice fully and accurately informed the Settlement Class Members
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`of all material elements of the proposed Settlement and of their opportunity to object to, comment
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`thereon, or exclude themselves from, the Settlement. It provided Settlement Class Members
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`adequate instructions and a variety of means to obtain additional information and represented the
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`best notice practicable under the circumstances. The notice was valid, due, and sufficient to all
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`Settlement Class Members and complied fully with the laws of the of State of California, the
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`Federal Rules of Civil Procedure, the United Sates Constitution, due process and other applicable
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`laws. Notice was given in a timely manner pursuant to the Order of this Court on Preliminary
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`Approval and provided adequate time for Class Members to comment and object. Further, this
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`Court finds that adequate notice was provided as required under the Class Action Fairness Act.
`D.
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`One individual objector submitted an objection complaining that the email notice
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`he was given was intercepted by his email program’s “spam filter.” The objector asserted that this
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`occurred despite the fact that he has received other email from Facebook that was not filtered.
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`Although it is not entirely clear how or why this may have occurred, the Court is satisfied that the
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`possibility that some Class members have activated settings on their email accounts that might
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`filter the email notices does not undermine the overall adequacy of the notice given. Indeed, even
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`the objector appears to have received actual notice via email, albeit only because he checked the
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`contents of his spam filter, which not all Class members may have done.
`E.
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`A full opportunity was afforded to the Settlement Class Members to participate in,
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`comment on, opt-out and/or object to the Settlement, notice and claims procedure. A list of those
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`members of the Settlement Class who timely opted-out of the Settlement and the Settlement Class
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`and who therefore are not bound by the Settlement, the provisions of the Settlement Agreement,
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`this Order and the Judgment to be entered by Clerk of Court, hereon, has been submitted by the
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`Claims Administrator and is attached hereto as Exhibit A and incorporated by reference herein.
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`All other members of the Settlement Class (as permanently certified below) shall be subject to all
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`of the provisions of this Order.
`F.
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`Federal Rule of Civil Procedure 23(a) lists four conjunctive criteria that must be
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`met to certify a class action: numerosity, commonality of issues, typicality of the representative
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`plaintiffs' claims, and adequacy of representation. A class may only be certified if the court is
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`“satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”
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`General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d
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`740 (1982). Based on the record before the Court, including all submissions in support of the
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`Settlement Agreement, objections, comments and responses thereto, as well as the settlement set
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`forth in the Settlement Agreement, this Court finds that the applicable requirements of Federal
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`Rule of Civil Procedure 23 have been satisfied with respect to the Settlement Class and the
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`proposed Settlement. Specifically, this Court finds that, with regard to the proposed Settlement
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`Class, Rule 23(a) is satisfied in that:
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`1.
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`The Settlement Class, as defined below, is so numerous that joinder of all
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`members is impracticable. The undisputed record indicates that there are over 3.6 million
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`members of the class.
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`2.
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`There are questions of law and fact common to members of the Settlement
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`Findings and Order
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`Class in that all the allegations and claims in this matter arise from the operation of Facebook’s
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`Beacon program on third-party sites and its transmission of personal information to Facebook.
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`3.
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`The representative Plaintiffs’ claims are typical of the claims of members
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`of the Settlement Class. Collectively, the representative Plaintiffs’ claims implicate each of the
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`defendants. More importantly, all of the named Plaintiffs’ and Settlement Class Members’ claims
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`arise from the operation of the Beacon program—a common course of conduct resulting in the
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`same or similar alleged injuries. See In re Static Random Access Memory (SRAM) Antitrust Litig.,
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`2009 WL 4263524 *4 (N.D. Cal.) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th
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`Cir. 1992). Although some claims of some Settlement Class Members arise from statutes unique
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`to the third-party Beacon Merchants with whom they interacted, the more salient characteristic of
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`the Class is the Beacon nexus and the statutory claims, such as the Electronic Communications
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`Privacy Act (ECPA), common to all Class Members. These reasonably coextensive claims
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`support typicality more than any disparities in particular statutory damages militate against it. See
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`Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (“[t]he amount of damages is invariably an
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`individual question and does not defeat class action treatment”); see also In re SRAM Antitrust
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`Litig., 2009 WL 4263524 *4 (citing Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.
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`1998); (compare Video Privacy Protection Act, Title 18, United States Code, section
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`2710(c)(2)(A) (liquidated damages of $2,500) and the ECPA Wiretap Act, Title 18, United States
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`Code, section 2520(c)(2)(B) (statutory damages of whichever is the greater of $100 a day for each
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`day of violation or $10,000)).
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`4.
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`Settlement Class Counsel and class representatives have fairly and
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`adequately protected the interests of the Settlement Class. By Order dated October 23, 2009, this
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`Court, pursuant to Federal Rule of Civil Procedure 23(g), appointed Scott A. Kamber and David
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`A. Stampley of KamberLaw, LLC and Joseph H. Malley of the Law Office of Joseph H. Malley,
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`P.C., as Class Counsel for the Settlement Class, providing the Settlement Class with
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`representation by nationally recognized members of the class action bar and significant
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`experience in consumer privacy and technology matters. Counsel’s efforts on behalf of the Class
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`to reach a settlement included protracted arms-length negotiations for over a year as well as
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`opposition to a motion to intervene. The attorneys of KamberLaw have made a showing that they
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`possess experience and expertise in the areas of consumer privacy and technology matters and
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`have professionally represented the interests of the Class in this matter.
`G.
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`Because certification is for settlement purposes only and not for litigation
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`purposes, the Court need not consider whether the case, if tried, would present intractable
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`manageability problems. Nonetheless, the Court finds that on the record presented that there
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`would not be intractable manageability problems and, in fact, the class would be manageable
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`given its unitary nature and the high likelihood of success in identifying Class Members.
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`With regard to the proposed Settlement Class, Rule 23(b)(3) is satisfied in that issues of
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`law and fact common to the Class predominate over those affecting individual Class Members
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`and that a class action is the superior method to adjudicate these claims.
`H.
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`The Court has held a hearing to consider the fairness, reasonableness and adequacy
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`of Settlement, has been advised of all objections to and comments regarding the Settlement, and
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`has given fair consideration to such objections and comments. The Court has reviewed the papers
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`submitted by the parties and by all persons objecting to and commenting on the Settlement and
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`has heard the arguments of those objectors to the Settlement appearing at the fairness hearing.
`I.
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`The Settlement, as provided for in the Settlement Agreement is fair, reasonable,
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`adequate and proper and in the best interests of the Settlement Class. In reaching this conclusion,
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`the Court has considered the record in its entirety, all objections and comments submitted to the
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`Court, and the arguments of counsel for the parties and all other persons seeking to comment on
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`the proposed Settlement.
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`The Court has considered a number of factors in its evaluation of the Settlement,
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`including: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely
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`duration of further litigation; (3) the risk of maintaining class action status throughout the trial;
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`(4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the
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`proceedings; (6) the experience and views of counsel; (7) the presence of a governmental
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`participant; and (8) the reaction of the class members to the proposed settlement. Molski v.
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`Gleich, 318 F.3d 937, 953 (9th Cir. 2003); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th
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`Cir. 1998).
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`1.
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`Regarding the strength of plaintiff’s case, plaintiffs’ claims implicate factual issues
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`that would likely be vigorously disputed, such as the type and sufficiency of notice Class
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`Members received about Beacon activity during specific time periods, the nature of Class
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`Members’ agreements with Facebook and the extent to which Beacon’s transfer and distribution
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`of personal information was legally unauthorized.
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`In addition, Plaintiffs’ claims raise novel legal theories with little in the way of prior
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`decisions to assist in gauging the likelihood of success. For example, regarding Blockbuster’s
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`liability under the VPPA, neither the parties nor objectors have brought to the Court’s attention
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`any cases in which plaintiffs have been awarded multiple liquidated damages. Facebook also has
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`denied it is liable under the VPPA definition of “video tape service provider.”
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`2.
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`The contested facts and novelty of claims increase the likelihood of risk, expense,
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`complexity and protracted duration of further litigation, which would be significant even without
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`such factors. Despite the brevity of the period of Beacon operation at issue, the parties would
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`have had to conduct costly discovery of voluminous, not-easily-readable Internet transaction logs
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`of highly-trafficked websites operated by numerous Defendants as well as defendant Facebook’s
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`software code for its Beacon functions, and to engage in extensive preparations for trial. This
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`would have required significant time and expense in reviewing discovery materials with the
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`assistance of experts and in preparing expert witness reports and expert witnesses for deposition
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`and trial. Further, taking into consideration the number of defendants involved, bringing this case
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`to trial would likely have been a long and costly proposition, the outcome of which would have
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`been uncertain. This factor supports the fairness, reasonableness and adequacy of the Settlement.
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`3.
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`The risk that a class action may be decertified at any time generally weighs in
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`favor of approving a settlement. Rodriguez v. West Publishing Corp., 563 F.3d 948, 966 (9th Cir.
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`2009). Here, although there has been no specific showing that maintaining class action status
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`throughout trial would be particularly difficult or problematic, the general risks and burdens on
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`plaintiffs in doing so further support the propriety of the settlement.
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`4.
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`In light of these litigation risks and in the context of settlements involving claims
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`of infringement of consumers’ privacy rights, the $9.5 million offered in settlement is substantial
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`and, further, is directed toward a purpose closely related to Class Members’ interests in this
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`litigation. The objectors do not suggest otherwise, except to state that the “safety” element of the
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`Privacy Foundation charter is unrelated to the Class Members’ claims. However, given the nexus
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`of online privacy, safety and security, particularly as those values relate to the online threat
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`landscape and the benefit of protecting consumers’ identities and personal information online
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`from those threats, the Privacy Foundation as constituted is sufficiently related to the claims
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`raised by Class Members.
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`5.
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`The court has also considered the extent of discovery completed and the stage of
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`the proceedings. The parties have engaged in significant investigation, informal discovery and
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`research, and have documented these efforts to the court, both at the Final Approval hearing as
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`well as in the declaration of Scott A. Kamber, Dkt. 107. These efforts supplement the substantial
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`information about Beacon that is already publicly known, including how it operates technically,
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`the nature and timing of modifications to its data collection, and how Facebook interacted with
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`the Facebook Beacon-Activated Affiliates. Such information places the Plaintiff Class in a
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`position to make an informed decision about settlement. Class Counsel established that they
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`acquired sufficient information to make an informed decision with respect to settlement, even
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`though formal discovery is not complete. See In re Mego Financial Corp. Sec. Litig., 213 F.3d
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`454, 459 (9th Cir. 2000).
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`6.
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`The next factor the Court has considered is the experience and views of counsel.
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`The Court recognizes that the Settlement was only achieved after intense and protracted arm’s-
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`length negotiations conducted in good faith and free from collusion, through the efforts of counsel
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`with recognized experience in complex litigation involving technology and privacy issues such as
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`those presented in this case. Class Counsel demonstrated an understanding of both the strengths
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`and weaknesses of this case. See declaration of Class Counsel Scott A. Kamber, Dkt. 107. Based
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`on the facts of the case and Class Counsel’s experience in these types of cases, Class Counsels’
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`reasonably concluded that the immediate benefits represented by the Settlement outweighed the
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`possibility—perhaps remote—of obtaining a better result at trial, especially given the hurdles
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`inherent in proving liability on behalf of the Settlement Class and the additional expense and
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`delay inherent in any trial and likely subsequent appeals. This factor supports the fairness,
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`reasonableness and adequacy of the Settlement.
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`7.
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`Notice of the preliminary approval of this class action was provided pursuant to
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`the Class Action Fairness Act of 2005. In addition, Class Counsel explained at the Final Approval
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`hearing that they were contacted by, and spoke with, representatives of the attorneys general of
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`four states and responded to their questions regarding the Settlement. No government agencies
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`voiced objections or comments to the Court. In addition, the Settlement stands as the product of
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`the efforts of Class Counsel, inasmuch as no attorneys general or federal regulatory personnel
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`have announced actions regarding the Facebook Beacon issues present in this matter.
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`8.
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`Only four Class members have objected to the substance of the settlement. The
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`Court has also received and considered comments from certain privacy organizations. The
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`objectors and commentators have criticized the fact that, under the Settlement, Class Members do
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`not receive any direct monetary compensation. However, the only basis for compensation they
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`have addressed at any length is that which would proceed from statutory damages awards. As
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`discussed above, the expectation of such recovery is speculative at best, given the inherent and
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`particular litigation risks the Class would face in proceeding to trial. If only moderate statutory
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`damages were awarded, the effect on the fund of incurring administrative costs to distribute de
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`minimis amounts per Class Member leads to the conclusion that the certainty of the Settlement, as
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`constituted, provides more meaningful relief to the Class.
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`Further, the objectors have suggested that the claims in the Harris action were too
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`valuable to be released through this Settlement. The Harris Plaintiffs, however, now join in the
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`motion for approval, having investigated and evaluated this Settlement, and following the efforts
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`of Class Counsel in this matter to assist the Harris plaintiffs in resolving their case against
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`Blockbuster. As this Court found in denying the Harris Plaintiffs’ motion to intervene prior to
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`Preliminary Approval, “[H]aving pursued their own claims against Blockbuster relating to these
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`same operative events, Proposed Intervenors are already uniquely equipped to present informed
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`analysis as to Blockbuster’s potential liability . . . .” Order Denying Motion for Leave to
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`Intervene, Dkt. 66.
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`Finally, the argument most strongly pressed by the objectors and the commentators is that
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`the Privacy Foundation created by the Settlement is both unnecessary and unduly subject to the
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`influence and control of Facebook. Although theoretical efficiencies might arise from giving the
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`settlement funds to an existing organization rather than by creating a new entity, that possibility
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`does undermine the conclusion that the Settlement is fair and adequate. As to the independence
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`of the Privacy Foundation, the objectors’ arguments appear to rest on a premise that no aspect of
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`the organization’s structure, and no future use of its funds, should in any way be potentially
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`consistent with Facebook’s own interests. Settlements in litigation very often rest on the
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`participants’ abilities to find non-zero sum game solutions. Thus, while it likely would be
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`inappropriate to apply settlement funds in a manner that was solely or primarily for the benefit of
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`the defendant, there is no requirement that the funds be used in a manner wholly antagonistic to
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`the defendant’s interests. In this context, the parties have demonstrated that the structure of the
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`Privacy Foundation, and the individuals who will be involved with it, are sufficient to ensure that
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`the settlement funds will be disbursed in a manner that furthers the interests of the Class, and the
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`public at large, consistent with the interests pursued by plaintiffs in this litigation.
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`Objectors have not shown there is any substantial reason to doubt the independence of two
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`of the three directors. The unanimity requirement for board votes is applicable only to structural
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`changes, and not to funding decisions. While the director associated with Facebook may
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`reasonably be expected to exercise his influence against the Foundation taking any actions that
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`would clearly and directly harm Facebook, there has been no persuasive showing that the
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`Foundation will be a mere publicity tool for Facebook, or in any meaningful sense under
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`Facebook’s direct control. To the extent objectors are arguing that that Foundation could be
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`structured somewhat differently, or that it would be even better for the funds to go to some
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`existing organization, such fine-tuning of the settlement reached by the parties is beyond the
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`purview of the Court. “Settlement is the offspring of compromise; the question we address is not
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`whether the final product could be prettier, smarter or snazzier, but whether it is fair, adequate
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`and free from collusion.” Hanlon, 150 F.3d at 1027.
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`The fact that only a few Class Members object to the proposed settlement further militates
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`in favor of approval. In re Mego, 213 F.3d at 459. In addition, the fact that an overwhelming
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`majority of the class willingly approves a settlement and remains in the class also indicates
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`fairness. Hanlon, 150 F.3d at 1027. Here, given only four substantive objections and slightly
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`more than 100 opt-outs from over 3.6 million Class Members, this factor favors a finding of
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`fairness, reasonableness and adequacy.
`J.
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`The Court further finds that the Class representatives are entitled to and shall
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`receive incentive awards for their efforts on behalf of the Class in this litigation and in obtaining
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`this Settlement. Class representative Sean Lane shall receive an award of $10,000.00 due to the
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`significant time and effort that he devoted to seeking the recovery obtained for the class,
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`representatives Mohannaed Sheikha and Sean Martin shall receive an award of $5000.00 each for
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`their significant time and efforts, and the remaining named representatives shall receive $1,000.00
`
`for their efforts and time.
`K.
`
`The Court will issue a further order with respect to an award of attorney fees and
`
`costs.
`
`
`IT IS SO ORDERED.
`
`
`
`
`
`
`
`Dated: 03/17/2010
`
`
`
`RICHARD SEEBORG
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
`
`15
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`16
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`17
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`18
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`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Findings and Order
`
`
`10
`
`No. C 08-3845 RS
`
`

`
`Case5:08-cv-03845-RS Document123 Filed03/17/10 Page11 of 12
`Case5:08—cv—O3845—RS Document123 Fi|ed03/17/10 Pagell of 12
`
`
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`

`
`Case5:08-cv-03845-RS Document123 Filed03/17/10 Page12 of 12
`
`OPT-OUTS
`Sean Lane, et al. v. Facebook, Inc., et al., No. C 08-3845 RS
`Patterson, Rachel J
`Kavanaugh, Bridget
`Pearson, Ryan S
`Keller, Chad J
`Pearson, Spencer
`Kennedy, Catherine
`Pearson, Tracey
`Kerian, Ryan M
`Powers, Jeffrey
`Kern, Hannah
`Radakovich, Jaime
`Kim, William
`Ramey, Sarah K
`Krones, Jeremy D
`Rapo, Mario
`Kubik, Kelley
`Reed, Timothy
`Laabs, Parker
`Repshire, Rhonda
`Lachance, Emily
`Ricotta, Victoria
`Lachance, Joseph
`Riley, Michele
`Lachance, Nancy
`Ritchey, Devon J
`Lee, Sharon
`Rodisch, Christopher
`Lefevre, Danielle M
`Rose, Randy
`Lightfoot, Robert
`Rund, Stephanie
`Luikart, Heather
`Sarig, Ida
`Macchiaverna, Ciera
`Savage, Valerie
`Marcus, Bruce
`Schehl, Micah
`Markham, Dave
`Schroeder, Melissa
`Masini, Charles
`Sorenson, Mary
`Matteson, Meghann
`Sorgen, Monique
`Mayer, Lindsay
`Spero, Jessica
`Mcgrane, Lauren
`Strock, Amber
`Meadows, Tori
`Sudik, Lynn
`Medcalf, Geoffrey Brian
`Susen, Andrew
`Meenen, Ashli Dawn
`Swafford, Nicole
`Mercer, Karah
`Tidwell, Jessica
`Mika II, David E
`Turbow, Benjamin
`Millspaugh, Ethan
`Tureau, Alexandra
`Mitau, Connie
`Varner, Andrew
`Moody, Tara
`Viquez, Ericka
`Na, Eric
`Ward, Thomas
`Naivn, Michael
`Westbrook, Tessa
`Nathan, David
`Williams, Carla
`Negin, Samuel B
`Wood, Ben
`Palon, Jeffrey
`
`Abel, Rebecca L
`Amoonclark, Brady
`Baehr, Robert J
`Bialas, Victoria M
`Brignoni, Michele
`Buechler, James T
`Carlos, Marvin
`Cauley, Eileen
`Chang, Jack
`Clark, Colin
`Colton, Lisa
`Connelly, Shawn
`Connolly, Timothy M
`Donohoe, Michael
`Dougherty, Joseph M
`Dreitner, Zachary
`Evans, Kathryne
`Freeman, Krystal
`Gang, Kelcy
`Garcia, Mirna
`Geisthardt, Amber E
`Giroux, Terrie
`Goldenberg, David
`Gonillo, Stacey
`Gottlieb, Laura Christine
`Grigsby, Kevin D
`Grigsby, Kevin D
`Gurney, Peter
`Hoover, Daniel Patrick
`Huang, Jordan
`Huangfu, Shan
`Jamula, Matthew
`Jeng, Michael Y
`Johnson, Charles A
`Jorgensen, Zane
`Karapanagiotis, Nicole

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