1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 1 of 9
`
`
`
`
`
`TINA WOLFSON (SBN 174806)
`twolfson@ahdootwolfson.com
`ROBERT R. AHDOOT (SBN 172098)
`rahdoot@ahdootwolfson.com
`THEODORE MAYA (SBN 223242)
`tmaya@ahdootwolfson.com
`BRADLEY K. KING (SBN 274399)
`bking@ahdootwolfson.com
`CHRISTOPHER STINER (SBN 276033)
`cstiner@ahdootwolfson.com
`AHDOOT & WOLFSON, PC
`2600 West Olive Avenue, Suite 500
`Burbank, California 91505
`Tel: (310) 474-9111
`
`MARK C. MOLUMPHY (SBN 168009)
`mmolumphy@cpmlegal.com
`TYSON C. REDENBARGER (SBN 294424)
`tredenbarger@cpmlegal.com
`ELLE LEWIS (SBN 238329)
`elewis@cpmlegal.com
`COTCHETT, PITRE & MCCARTHY, LLP
`840 Malcolm Road, Suite 200
`Burlingame, California 94010
`Tel: (650) 697-6000
`
`Interim Co-Lead Class Counsel for the Settlement
`Class
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`IN RE: ZOOM VIDEO COMMUNICATIONS
`INC. PRIVACY LITIGATION,
`
`
`This Document Relates To:
`
`All Actions
`
`Master Case No. 3:20-cv-02155-LB
`
`JOINT UNOPPOSED MOTION FOR
`INDICATIVE RULING RE APPROVAL
`OF SETTLEMENTS WITH
`OBJECTOR-APPELLANTS
`
`Hon. Laurel Beeler
`Courtroom: B
`Date: December 1, 2022
`Time: 9:30 AM
`
`
`
`
`
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`
`
`
`
`
`
`
`

`

`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 2 of 9
`
`
`
`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE
`that on December 1, 2022, at 9:30 a.m. or as soon thereafter as the matter may be heard before the
`Honorable Magistrate Judge Laurel Beeler, of the United States District Court for the Northern
`District of California, San Francisco Division, located at Courtroom B, 15th floor, 450 Golden Gate
`Avenue, San Francisco, California, 94102, Plaintiffs and Defendant Zoom Video Communications,
`Inc. (“Zoom” and together with Plaintiffs, the “Litigation Parties”) will and hereby do move the
`Court for an indicative ruling under Fed. R. Civ. P. 62.1 that the Court, upon remand from the Ninth
`Circuit Court of Appeals, would approve the settlement agreements between Plaintiffs, Zoom, and
`each of the Objectors Sammy Rodgers and Alvery Neace, on the one hand, and Objector Judith
`Cohen, on the other hand (Rodgers, Neace, and Cohen being referred to herein as the “Objectors”).
`This motion is based on this notice of motion and motion, the accompanying memorandum of
`points and authorities, the Joint Declaration of Tina Wolfson and Mark Molumphy (“Joint Decl.”),
`argument by counsel at the hearing before this Court, any papers filed in reply, such oral and
`documentary evidence as may be presented at the hearing of this motion, and all papers and records
`on file in this matter.
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiffs and Zoom respectfully submit that the Court should approve their settlements with
`three Settlement Class Members1 who objected to the Class Action Settlement Agreement and
`Release (the “Settlement Agreement”) and thereafter appealed the Court’s order granting final
`approval. ECF No. 249. Although the Court was correct in overruling the Objectors’ objections,
`the Objectors appealed and, through negotiations facilitated by the Circuit Mediator for the Ninth
`Circuit, the Litigation Parties and Objectors reached settlement agreements that, subject to the
`Court’s approval, would resolve those appeals and provide additional procedural and substantive
`benefits to Settlement Class Members. These benefits include a carve-out of certain claims from
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`1 Capitalized terms not otherwise defined herein have the same meaning as in the Settlement
`Agreement (ECF No. 191-1).
`
`
`2
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`

`

`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 3 of 9
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Settlement Class Members’ release of claims and amended procedures to make it easier for class
`members who filed claims to receive and cash their payments.
`Resolution of Objectors’ appeals through these settlements will have the added benefit of
`ensuring the expeditious delivery of Settlement Payments from the Settlement Fund to Claimants
`on a far quicker timeline—a substantial benefit given the current rate of inflation. And the
`settlements achieve these benefits without taking any money out of the funds allocated for payments
`to Settlement Class Members. While the settlements permit Objectors to seek service awards and
`Objectors’ counsel to seek fee and expense awards up to certain amounts, approval of such awards
`is not a condition to the settlements and any approved payments would be made from the Fee and
`Expense Award that the Court previously approved for payment to Class Counsel.
`Accordingly, the Litigation Parties respectfully request that the Court grant this Motion, in
`accordance with Federal Rules of Civil Procedure 23(e)(5)(C) and 62.1, and issue an order
`indicating that it would approve the settlements with these Objectors were the Ninth Circuit to
`remand this case for that purpose.
`
`II.
`
`BACKGROUND
`Following arm’s-length negotiations, Plaintiffs and Zoom entered into the Settlement
`Agreement. ECF No. 191-1. On July 31, 2021, Plaintiffs moved this Court for preliminary
`approval of the Settlement Agreement. ECF No. 190. On October 21, 2021, the Court granted
`Plaintiffs’ motion for preliminary approval and set an objection deadline of March 5, 2022. ECF
`No. 204. After Plaintiffs filed their Motion for Final Approval and Motion for Attorneys’ Fees,
`ECF Nos. 216 & 217, Objector Cohen filed an Objection to Plaintiffs’ Motion for Final Approval,
`ECF No. 227, as did Objectors Rodgers and Neace, ECF No. 228 (collectively, the “Objections”).
`After considering the Objections, the Court granted final approval of the Settlement Agreement and
`entered final judgment, ECF Nos. 249 & 250, from which the Objectors each appealed. ECF Nos.
`251 & 252. The Objectors’ appeals currently are pending before the Ninth Circuit Court of
`Appeals, where Objectors-Appellants’ opening briefs currently are due on October 31, 2022. See
`Brice v. Zoom Video Communications Inc., 9th Cir. Case No. 22-1576, ECF No. 16.
`
`
`
`
`
`3
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 4 of 9
`
`
`
`Following extensive arms-length settlement negotiations coordinated by the Circuit
`Mediator for the Ninth Circuit, Plaintiffs, Zoom, and the Objectors have agreed to settle the
`Objections and appeals.
`Settlement with Objectors Rodgers and Neace. Plaintiffs, Zoom, and Objectors Rodgers
`and Neace have entered into a settlement agreement in which the Litigation Parties agree to
`undertake certain procedures to make it easier for class members who have filed claims to update
`their addresses and to receive cash payments by mailed checks. See Joint Decl., Ex. A
`(“Rodgers/Neace Settlement Agreement”) at ¶ 2. These agreed-upon procedures specifically
`address certain of the concerns raised in the Rodgers and Neace Objection:
`
`Rodgers and Neace Objection Argument
`Settlement Administrator should
`notify claimants if their check is returned by
`the post office. (ECF No. 228 at 13-14)
`
`A normal business (#10) envelope should be
`used to send settlement checks. (ECF No.
`228 at 13.)
`
`90 days is not sufficient time to cash
`settlement checks (ECF No. 228 at 14-15)
`
`Agreed Procedure to Settle Objection
`For returned checks from Settlement Class
`Members, the Settlement Administrator will
`run address correction, check forwards, and
`send payments to the corrected addresses
`when possible. (Rodgers/Neace Settlement
`Agreement ¶ 2(b).)
`
`For returned checks from Settlement Class
`Members, the Settlement Administrator will
`also notify such claimants via email to update
`their address. (Rodgers/Neace Settlement
`Agreement ¶ 2(c).)
`The Settlement Administrator will mail the
`checks issued pursuant to the Settlement
`Agreement to eligible Settlement Class
`Members via USPS first class mail, in a
`number 10 business envelope.
`(Rodgers/Neace Settlement Agreement
`¶ 2(a).)
`Zoom and Plaintiffs will amend the
`Settlement Agreement (§§ 2.5(c) a€(e)) to
`extend the deadline for Settlement Class
`Members to cash a settlement check by 30
`days, from 90 days to 120 days.
`(Rodgers/Neace Settlement Agreement
`¶ 2(d).)
`
`
`
`
`
`4
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`

`

`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 5 of 9
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Rodgers and Neace Objection Argument
`Address change form should be easier to
`locate. Settlement Administrator should
`provide confirmation/receipt for address
`change when made. (ECF No. 228 at 16-17)
`
`Agreed Procedure to Settle Objection
`The Settlement Administrator will include a
`link to the form for Settlement Class
`Members to change their contact information
`on the home page of the Settlement Website,
`with a statement that the form can be used to
`update email addresses, mailing addresses, or
`both, and with directions on how to include
`all current contact information, including
`mailing and email addresses. The Settlement
`Administrator will also send an email to
`Settlement Class Members completing the
`form, confirming their updated contact
`information. (Rodgers/Neace Settlement
`Agreement ¶ 2(e).)
`
`In exchange, Objectors Rodgers and Neace agree to release and not to pursue their other
`objections to the Settlement Agreement and to dismiss their appeal with prejudice. Rodgers/Neace
`Settlement Agreement ¶¶ 1.2, 4. In addition, Objectors Rodgers and Neace may apply to the Court
`for service payments of up to $1,000 each, and their counsel may apply to this Court for up to
`$47,900 in attorneys’ fees and costs, both of which (if approved) would be paid from the prior
`award of attorneys’ fees to Class Counsel. Id. ¶ 3. Notably, the Court’s granting of such payments
`is not a condition of the settlement. Id.
`Settlement with Objector Cohen. Similarly, Plaintiffs, Zoom, and Objector Cohen have
`entered into a settlement agreement in which the Litigation Parties agree to modify the release in
`the Settlement Agreement to exclude certain claims for indemnification or contribution made by a
`state-licensed professional against Zoom for damages or losses from a “Breach of Confidentiality
`Claim.” Joint Decl., Ex. B (“Cohen Settlement Agreement”) at ¶ 2. This carve-out from the release
`directly addresses the core of Objector Cohen’s objection—namely that the Settlement Agreement
`does not take into account the risk of possible lawsuits that might be filed against Zoom users who
`are medical or other professionals and who may owe “legal or contractual commitments” to
`maintain confidentiality. ECF No. 227 at 4-5; ECF No. 236 at 2, 3 (“Any settlement that binds the
`professional Zoom users must account for this increased risk through future indemnification or by
`other means”).
`In exchange, Objector Cohen agrees to release and not to pursue her other arguments in
`
`
`
`
`
`5
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`

`

`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 6 of 9
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`support of her objection to the Settlement Agreement and to dismiss her appeal with prejudice. Id.
`¶¶ 1.2, 4. In addition, Objector Cohen may apply to the Court for a service payment of up to $1,000,
`and her counsel may apply to this Court for up to $78,000 in attorneys’ fees and costs, both of
`which (if approved) would be paid from the prior award of attorneys’ fees to Class Counsel. Id.
`Again, the Court’s granting of such payments is not a condition of the settlement. Id.
`
`III. ARGUMENT
`Federal Rule of Civil Procedure 23 permits class members to object to proposed class action
`settlements, Fed. R. Civ. P. 23(e)(5(A), and requires court approval of any payment in connection
`with “forgoing, dismissing, or abandoning an appeal from a judgment approving” a settlement.
`Fed. R. Civ. P. 23(e)(5)(B)(ii). If the parties do not obtain such approval “before an appeal has
`been docketed in the court of appeals, the procedure of Rule 62.1 applies while the appeal remains
`pending.” Fed. R. Civ. P. 23(e)(5)(C). Rule 62.1 permits the court to make an indicative ruling
`when the court lacks the authority to grant a motion because an appeal has been taken. Fed. R. Civ.
`P. 62.1(a)(3). Here, consistent with these Rules, Plaintiffs and Zoom seek an order indicating that
`the Court would grant approval of the Rodgers/Neace Settlement Agreement and the Cohen
`Settlement Agreement, if the Ninth Circuit remands the case for that purpose.
`The Court should approve these settlements because they are in the best interests of the
`Settlement Class. First, the settlements address the Objections by granting additional benefits to
`the settlement class. Specifically, the Rodgers/Neace Settlement Agreement requires the Litigation
`Parties to ensure that the Settlement Administrator implements certain procedures designed to make
`it easier for Claimants to update their addresses and to receive and cash checks sent by mail. See
`Rodgers/Neace Settlement Agreement ¶ 2. And one of the agreed-upon procedural changes will
`require a small amendment to the Settlement Agreement and the Final Approval Order in order to
`extend the deadline for Settlement Class Members to cash a settlement check from 90 days to 120
`days.2 Similarly, the Cohen Settlement Agreement requires the Litigation Parties to narrow the
`release of Settlement Class Members’ claims in the Settlement Agreement, excluding from that
`
`2 If the Court indicates it would approve the settlements with Objectors, the Parties will ask the
`Ninth Circuit to remand the case and then file a motion for approval with this Court, attaching a
`revised proposed Final Approval Order and an amendment to the Settlement Agreement.
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`6
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`
`
`

`

`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 7 of 9
`
`
`
`release certain claims for indemnification or contribution made by a state-licensed professional
`against Zoom. See Cohen Settlement Agreement ¶ 2.
`Both settlements thus benefit the settlement class, which supports their approval. See In re
`Takata Airbag Products Liability Litig., No. 1:15-md-02599, ECF No. 3632 at 2 (S.D. Fla. January
`27, 2020) (granting motion for indicative ruling and noting that negotiations with the objectors led
`to additional agreement that benefited the settlement class); see also The Shane Group, Inc. v. Blue
`Cross Blue Shield of Mich., No. 2:10-cv-14360, ECF No. 396 at 3 (E.D. Mich. December 14, 2020)
`(approving settlement with objectors and noting that objections “improved the settlement approval
`process”).
`Second, the Court already determined that the Settlement Agreement is in the best interests
`of the Settlement Class when it granted final approval and noted that nearly 1.5 million Settlement
`Class Members had made claims as of March 10, 2022. See ECF No. 249. As the Advisory
`Committee Notes to Rule 23(e)(5)(B) recognize, “an appeal by a class-action objector may produce
`much longer delay than an objection before the district court.” See Fed. R. Civ. P. 23, advisory
`committee’s notes, 2018 amendment. Approving the settlements with the Objectors would ensure
`that payments to Claimants are not substantially delayed—especially important in today’s financial
`climate with extremely high inflation. See, e.g., In re Google Plus Profile Litig., No. 5:18-cv-
`06164, ECF No. 119 at 2 (N.D. Cal. Apr. 23, 2021) (granting motion for indicative ruling and
`noting that the proposed settlement with the objectors would “expedite payment to the Settlement
`Class”); In re Volkswagen Timing Chain Product Liability Litig., No. 16-2765, ECF No. 250 at 2
`(February 19, 2019) (granting motion for indicative ruling and noting that payments to claimants
`would otherwise be “delayed until the Objectors/Appellants’ appeals are resolved”).
`Third, to the extent the Court approves service awards to Objectors or fee and expense
`awards to their counsel, they will not adversely impact the Settlement Class as these payments will
`be drawn solely from the prior Fee and Expense Award. See Charvat v. Valente, No. 1:12-cv-
`05746, ECF No. 744 at 2 (February 27, 2020) (granting motion for indicative ruling and noting that
`payments to objectors’ counsel “would not come from the net settlement fund”); In re Takata
`Airbag Products Liability Litig., No. 1:15-md-02599, ECF No. 3632 at 2 (“Most importantly, not
`
`
`7
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 8 of 9
`
`
`
`a single penny of the proposed payment will be taken from the funds available to all class
`members.”).
`Finally, the settlement agreements with Objectors are contingent on there being no further
`notice to the Class, and such notice is not required since the terms of the Settlement Agreements
`only benefit the Settlement Class for the reasons given above, and there is no other procedural
`reason to require re-notice to the class or to reopen the time for objection, opt out, or claims. See
`In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 330 (N.D. Cal. 2018) (“Courts have
`routinely found that additional notice to a class is not required where a modification to the
`settlement agreement makes the settlement more valuable to the class.”); see Shaffer v. Cont’l Cas.
`Co., 362 F. App’x 627, 631 (9th Cir. 2010) (“Although changes were made to the release after
`potential class members received the notice, the changes did not render the notice inadequate
`because they narrowed the scope of the release.”)
`
`
`
`IV. CONCLUSION
`Based on the foregoing, Plaintiffs and Zoom respectfully request that the Court issue an
`order indicating that it would approve the Rodgers/Neace Settlement Agreement and the Cohen
`Settlement Agreement if the Ninth Circuit were to remand this case for that purpose. Should the
`Court do so, the Parties will notify the Circuit Clerk of the Ninth Circuit, in accordance with Rule
`62.1(b) and Federal Rule of Appellate Procedure 12.1, and seek remand to this Court so the
`settlement agreements with the Objectors can be approved and so the Parties can submit to the
`Court amendments to the Settlement Agreement and Final Approval Order to effectuate the agreed-
`upon modifications.
`///
`
`
`
`
`
`8
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`

`

`
`
`
`
`Case 3:20-cv-02155-LB Document 255 Filed 10/27/22 Page 9 of 9
`
`Dated: October 27, 2022
`
`
`
`
`COTCHETT, PITRE & MCCARTHY, LLP
`
`By: /s/ Mark Molumphy
`Mark Molumphy (SBN 168009)
`
`Attorneys for Plaintiffs
`
`AHDOOT & WOLFSON, PC
`
`By: /s/ Tina Wolfson
`Tina Wolfson (SBN 174806)
`Attorneys for Plaintiffs
`
`
`COOLEY LLP
`
`By: /s/ Benjamin H. Kleine
`Benjamin H. Kleine (SBN 257225)
`Attorneys for Defendant
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`SIGNATURE ATTESTATION
`I am the ECF User whose identification and password are being used to file the foregoing
`Joint Unopposed Motion for Indicative Ruling re Approval of Settlements with Objector-
`Appellants; Memorandum of Points and Authorities in Support Thereof. Pursuant to L.R 5-1(i)(3)
`regarding signatures, I, Mark C. Molumphy attest that concurrence in the filing of this document
`has been obtained.
`
`DATED: October 27, 2022
`
`
`
`/s/ Mark C. Molumphy
`Mark C. Molumphy
`
`
`
`
`
`9
`
`JOINT UNOPPOSED MOTION FOR INDICATIVE
`RULING RE APPROVAL OF SETTLEMENTS
`MASTER CASE NO. 3:20-CV-02155-LB
`
`