Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 1 of 10
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`JONATHAN DIAZ, and others,
`
`Plaintiffs,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`Case No. 21-cv-03080-NC
`
`ORDER GRANTING
`PLAINTIFFS' MOTION FOR
`PRELIMINARY APPROVAL OF
`CLASS ACTION SETTLEMENT
`
`Re: ECF 64
`
`
`
`Plaintiffs Jonathan Diaz and Lewis Bornmann (“Plaintiffs”) bring a putative class
`
`action against Google LLC (“Defendant”). Defendant designed a digital contact tracing
`
`system to “slow or stop the spread of COVID-19 on mobile devices using Google’s
`
`Android operating system.” ECF 64 at 6. Plaintiffs allege that Google “unlawfully
`
`exposed confidential medical information and personally identifying information” through
`
`this system. Id. Before the Court is Plaintiffs’ motion for preliminary approval of class
`
`action settlement. ECF 64. The Court held a hearing on this motion on June 23, 2022.
`
`Having considered the Plaintiff’s motion, the input of counsel at the June 23, 2022,
`
`hearing, and the record in this case, the Court GRANTS Plaintiffs’ motion for preliminary
`
`approval of class action settlement.
`
`I. LEGAL STANDARD
`
`Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 2 of 10
`
`
`
`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
`
`of a certified class . . . may be settled . . . only with the court’s approval.” Fed. R. Civ. P.
`
`23(e). “The purpose of Rule 23(e) is to protect the unnamed members of the class from
`
`unjust or unfair settlements affecting their rights.” In re Syncor ERISA Litig., 516 F.3d
`
`1095, 1100 (9th Cir. 2008). Accordingly, in order to approve a class action settlement
`
`under Rule 23, a district court must conclude that the settlement is “fundamentally fair,
`
`adequate, and reasonable.” 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 (2011). In
`
`determining whether the proposed settlement meets this standard, the Court does not have
`
`the ability “to delete, modify, or substitute certain provisions . . . The settlement must stand
`
`or fall in its entirety.” Id. at 1026.
`
`Where “the parties negotiate a settlement before the class has been certified,
`
`settlement approval requires a higher standard of fairness and a more probing inquiry than
`
`may normally be required under Rule 23(e).” Roes, 1-2 v. SFBSC Mgmt., LLC, 944 F.3d
`
`1035, 1048 (9th Cir. 2019) (internal quotation marks and citations omitted). In such cases,
`
`the Court must apply “an even higher level of scrutiny for evidence of collusion or other
`
`conflicts of interest than is ordinarily required under Rule 23(e) before securing the court’s
`
`approval as fair.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir.
`
`2011). Signs of potential collusion include:
`
`“(1) when counsel receive a disproportionate distribution of the settlement;
`
`(2) when the parties negotiate a ‘clear sailing’ arrangement” (i.e., an
`
`arrangement where defendant will not object to a certain fee request by class
`
`counsel); and
`
` (3) when the parties create a reverter that returns unclaimed fees to the
`
`defendant.”
`
`Allen v. Bedolla, 787 F.3d 1218, 1224 (9th Cir. 2015) (quoting Bluetooth, 654 F.3d
`
`at 947) (internal quotations omitted).
`
`
`
`“The Court may grant preliminary approval of a settlement and direct notice
`
`to the class if the settlement: “(1) appears to be the product of serious, informed,
`
`
`
`2
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 3 of 10
`
`
`
`non-collusive negotiations; (2) has no obvious deficiencies; (3) does not improperly
`
`grant preferential treatment to class representatives or segments of the class; and (4)
`
`falls within the range of possible approval.” Foster v. Adams & Assoc., No. 18-cv-
`
`02723-JSC, 2021 U.S. Dist. LEXIS 203351, at *11 (N.D. Cal. 2021); Harris v.
`
`Vector Mktg. Corp., No. 08-cv-05198-EMC, 2011 WL 1627973, at *7 (N.D. Cal.
`
`2011).
`
`II. THE SETTLEMENT
`
`Under the Settlement Agreement, Google has conducted: (1) software code changes
`
`to the EN System on April 21, May 5, and May 26, 2021, providing more privacy
`
`protection for contact tracing app users, and (2) a process designed to search for and
`
`eliminate Exposure Notification (EN) System data that could be found on Google’s
`
`databases. ECF 64 at 12. The EN System requires users to allow use of their personal
`
`health information and general location information to inform of potential exposure to
`
`persons infected with COVID-19. Id. at 7-8.
`
`Upon execution of the Settlement Agreement, Google will represent and ensure that
`
`the following are true: (1) Google does not put any data generated from their EN System
`
`about a user’s health status where a third party could determine a user’s COVID status, (2)
`
`Google uses a process that reviews and eliminates EN System data in its databases, (3)
`
`Google issued a “Partner Security Advisory” to third parties explaining at Google had been
`
`advised of vulnerabilities by Plaintiffs, implemented a relevant “fix,” did not determine
`
`that identifying information was used wrongfully, and that third parties should eliminate
`
`potentially sensitive information acquired without explicit user consent, (4) Google did not
`
`find evidence that EN System data that was logged to device system logs was misused, and
`
`(5) Google investigated and found that no team had attempted to use EN and non-EN
`
`System data for any use by Google. ECF 64 at 12-13.
`
`As a complete and final settlement, Google will: (1) not revert the software code
`
`changes mentioned above, (2) confirm in writing that, after a good-faith search, it has
`
`identified no EN system data on its internal systems that could be used to infer health
`
`
`
`3
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 4 of 10
`
`
`
`status of an EN user, (3) edit the “Exposure Notifications and your privacy” section at
`
`http://www.google.com/covid19/exposurenotifications/ to explain and describe the
`
`heightened security and privacy protections implemented to address concerns brought by
`
`Plaintiffs; and (4) allow Plaintiffs to seek an injunction to enforce the terms of the
`
`Settlement Agreement from the Court. ECF 64 at 13.
`
`This Settlement does not provide for claims for damages or other monetary relief and
`
`only releases claims for injunctive relief related to handling of Google’s EN System data
`
`on system logs. ECF 64 at 13-14.
`
`III. DISCUSSION
`
`The Court GRANTS the motion for preliminary approval of class action settlement
`
`for the following reasons: (1) the Settlement is fair, reasonable, and adequate under Rule
`
`23; (2) the Settlement satisfies District Procedural Guidance for Class Action Settlements;
`
`and (3) the Court is likely to certify the Settlement Class.
`
`A. The Settlement is Fair, Reasonable, and Adequate.
`
`The Court may approve a proposed settlement agreement “only on finding that it is
`
`fair, reasonable, and adequate” by considering if: (1) the class representatives and the class
`
`counsel have adequately represented the class; (2) the settlement was negotiated at arm’s
`
`length; (3) the relief provided to the class is adequate; and (4) the settlement treats class
`
`members equitably in relation to one another. Fed. R. Civ. P. 23(e)(2).
`
`1. The Class has been Adequately Represented by Plaintiffs and their
`Counsel.
`
`Plaintiffs and their Counsel have conducted a forensic investigation of the security
`
`issues allegedly present in Defendant’s EN system, researched applicable law to the case,
`
`drafted two complaints and a response to Google’s Motion to Dismiss and request for
`
`judicial notice, and began discovery. ECF 64-1 at 4 (Cuthbertson Decl.); ECF 1; ECF 25.
`
`The Court finds that Plaintiffs and their Counsel have adequately represented the
`
`class by due diligence in investigating, researching, drafting, filing, and mediating the
`
`cause of action. The Court finds that the Settlement is the produce of informed and
`
`
`
`4
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 5 of 10
`
`
`
`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
`
`efficient advocacy on behalf of the Settlement class.
`
`2. The Settlement was Negotiated at Arm’s Length.
`
`Potential signs of collusion include instances where counsel receives a large portion
`
`of settlement, when parties negotiate a ‘clear sailing’ agreement, or when parties create a
`
`reverter that returns unclaimed fees to the defendant. Allen, 787 F.3d at 1224 (quoting
`
`Bluetooth, 654 F.3d at 947) (internal quotations omitted). Furthermore, where “the parties
`
`negotiate a settlement before the class has been certified, settlement approval requires a
`
`higher standard of fairness and a more probing inquiry than may normally be required
`
`under Rule 23(e).” Roes, 1-2, 944 F.3d at 1048 (internal quotation marks and citations
`
`omitted).
`
`The parties mediated this case before the Hon. Read Ambler (Ret.) of JAMS, a
`
`highly experienced mediator. ECF 64 at 15. “While the participation of a neutral mediator
`
`is not . . . dispositive . . . it nonetheless is ‘a factor weighing in favor of a finding of non-
`
`collusiveness.’” Camilo v. Ozuna, 2020 WL 1557428, at *8 (N.D. Cal. Apr. 1, 2020)
`
`(quoting Bluetooth, 654 F.3d at 948).
`
`Additionally, the settlement does not involve damages to the Settlement Class, so it
`
`does not bear the signs of one potential sign of collusion involving a reverter. Although
`
`Plaintiffs’ Counsel’s proposed attorney fees make up most of the settlement fees, Parties
`
`have agreed that Google may contest the amount and that the Parties will accept any Court
`
`order on attorneys’ fees and expenses. ECF 64 at 18. Class Counsel has also expressed
`
`that they will base their fee application on its lodestar, offering a basis for its attorney’s
`
`fees ask. Id. In addition, the service awards of $2,500 for each of the two class
`
`representatives is reasonable given their contributions and there is no indication of a ‘clear
`
`sailing’ agreement. Id. at 22-23.
`
`The Court finds that the Settlement Proposal was negotiated at arm’s length and
`
`without any of the potential signs of collusion, even under the higher standard of fairness
`
`reserved for settlements negotiated before class certification.
`
`3. The Settlement Provides Adequate Relief to the Settlement Class.
`
`
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 6 of 10
`
`
`
`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
`
`To determine if the relief provided for the class is adequate, the Court should
`
`consider: (1) the costs, risks, and delay of trial and appeal; (2) the effectiveness of any
`
`proposed method of distributing relief to the class; (3) the terms of any proposed award of
`
`attorney’s fees, including timing of payment; and (4) any agreement required to be
`
`identified under Rule 23(e)(3). Fed. R. Civ. P. 23(e)(2)(C).
`
`First, the Court foresees that continued litigation would create significant delay and
`
`costs to both sides due to Google’s Motion to Dismiss and Request for Judicial Notice
`
`indicating their likeliness to strongly oppose Plaintiffs’ claims. ECF 18; ECF 19. Second,
`
`the settlement plan involves injunctive relief that Plaintiffs believe will remedy the alleged
`
`violations and a reasonable notice plan has been devised with KCC to publish online
`
`targeted advertisements to inform members of the settlement class. ECF 65.
`
`Although the Settlement Plan does not involve monetary damages for class
`
`members and only provides injunctive relief, the Court has previously granted preliminary
`
`approval of a class action settlement which only provided injunctive relief. See Lilly v.
`
`Jamba Juice Co., 2015 WL 1248027 (N.D. Cal. Mar. 18, 2015). The Court in Lilly
`
`considered that Plaintiffs would have difficulty “establishing damages on a classwide
`
`basis” and the amount of monetary damages to each class member would likely be,
`
`“relatively small.” Id. at *21.
`
`This Court finds that establishing damages from Google’s EN system across the
`
`millions of users who used the contact tracing application would be similarly difficult.
`
`Even if a viable damages model were determined, it is likely that the amount of money that
`
`individual class members would be entitled to would also be very small given that actual
`
`violations are hard to ascertain. ECF 64 at 20. Therefore, the Court finds that injunctive
`
`relief is adequate in ensuring that the alleged violations are remedied by Google’s new
`
`measures.
`
`The Court finds that the Settlement provides adequate relief to the Settlement Class
`
`and would prevent the significant costs, risks, and delays that the parties would likely bear
`
`under further litigation.
`
`
`
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 7 of 10
`
`
`
`4. The Settlement Treats Class Members Equitably.
`
`The Settlement Plan involves Google making software code changes and security
`
`advisories that would equally benefit all Settlement Class members without choice to
`
`benefit a class member over another.
`
`
`
`Therefore, the Court finds that the injunctive relief within the Settlement treats class
`
`members equitably.
`
`B. The Settlement Satisfies the District’s Procedural Guidance.
`
`The District Court for the Northern District of California provides procedural
`
`guidance for class action settlements and advises that, “[p]arties submitting class action
`
`settlements for preliminary and final approval . . . should review and follow these
`
`guidelines . . . [f]ailure to address the issues discussed below may result in unnecessary
`
`delay or denial of approval.”
`
`1. Procedural Guidance 3 & 5: Notice
`
`Procedural Guidance for Class Action Settlements require: (1) contact information
`
`for class counsel to answer questions; (2) the address for a website, maintained by the
`
`claims administrator or class counsel, that has links to the notice, motions for approval and
`
`for attorneys’ fees and any other important documents in the case; (3) instructions on how
`
`to access the case docket via PACER or in person at any of the court’s locations. In
`
`addition, “the notice should instruct class members who wish to object to the settlement to
`
`send their written objections only to the court.”
`
`Here, KCC will publish notice to Settlement Class Members on a single website and
`
`links to this site will be used in targeted advertisements. ECF 65. The notice will provide
`
`Class Counsel’s contact information, a toll-free number to ask questions about the
`
`settlement, links to important case documents via access to PACER or in person. ECF 64
`
`at 22. The notice will also list procedures for filing an objection pursuant to Procedural
`
`Guidance 5.
`
`The Court finds that the proposed notice plan follows the District’s procedural
`
`guidance for notice of settlement class action settlements.
`
`
`
`7
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 8 of 10
`
`
`
`2. Procedural Guidance 10: Class Action Fairness Act (CAFA) Notice
`
`The Settlement Plan stipulates that Google will serve notice of the Settlement
`
`Agreement that meets the requirements of 28 U.S.C. §1715, “on the appropriate federal
`
`and state officials no later than ten days following the filing of this Settlement Agreement
`
`with the Court.” ECF 64 at 23.
`
`The Court finds that the Settlement Plan follows the District’s procedural guidance
`
`for CAFA notice.
`
`3. Procedural Guidance 12: Electronic Version
`
`Counsel states that they will provide Word copies of the proposed preliminary
`
`approval order in accordance with Procedural Guidance 12. ECF 64 at 23.
`
`C. The Court is Likely to Certify the Settlement Class
`
`“The court must direct notice in a reasonable manner to all class members who
`
`would be bound by the proposal if giving notice is justified by the parties' showing that the
`
`court will likely be able to . . . certify the class for purposes of judgment on the proposal.”
`
`Fed. R. Civ. P. 23(e)(1)(B)(ii). Here, that requirement is met.
`
`1. Rule 23(a) Requirements are Satisfied.
`
`Rule 23(a) states that “[o]ne or more members of a class may sue or be sued as
`
`representative parties on behalf of all members only if” prerequisites of numerosity,
`
`commonality, typicality, and adequacy are met. Fed. R. Civ. P. 23(a).
`
`a. Numerosity
`
`Class actions may be maintained if, “the class is so numerous that joinder of all
`
`members is impracticable.” Fed. R. Civ. P. 23(a)(1).
`
`Here, as a response to COVID-19, a global pandemic, contract tracing apps have
`
`been used by various state agencies and downloaded millions of times in the U.S. ECF 25
`
`at 6-7. Therefore, joinder of every affected party is impracticable.
`
`b. Commonality
`
`The Court also finds that, “there are questions of law or fact common to the class.”
`
`Fed. R. Civ. P. 23(a)(2).
`
`
`
`8
`
`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
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 9 of 10
`
`
`
`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
`
`Here, common questions of whether Google’s EN system data “violated reasonable
`
`expectations of privacy and was highly offensive to a reasonable person,” exist. ECF 64 at
`
`24. The settlement proposal would provide changes to the relevant system that directly
`
`seek to resolve the common questions.
`
`c. Typicality
`
`The Court also finds that, “the claims or defenses of the representative parties are
`
`typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
`
`Here, the Plaintiffs’ claims stem “from the same event, practice, or course of
`
`conduct that forms the basis of the class claims, and . . . upon the same legal theory . . . .”
`
`Jordan v. Los Angeles Cty., 669 F.2d 1311, 1321 (9th Cir. 1982). The same course of
`
`conduct involving Google’s EN system potentially shared personally identifying
`
`information and confidential medical information is typical to the claims or defenses of the
`
`class members. Therefore, the claims of the representatives are common to the class.
`
`d. Adequacy of Representation
`
`Lastly, the Court find that, “the representative parties will fairly and adequately
`
`protect the interests of the class. Fed. R. Civ. P. 23(a)(4).
`
`Here, as discussed in analysis of the settlement’s fairness, reasonableness, and
`
`adequacy, Class Counsel has completed substantial work in this action and would fairly
`
`and adequately protect the interests of the class. Therefore, because the Court finds that
`
`the Settlement Class meets Rule 23(a) requirements, the Court is likely the certify the
`
`Settlement Class.
`
`2. Rule 23(b)(2) Requirements are Satisfied.
`
`The Court should find that, “the party opposing the class has acted or refused to act
`
`on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate
`
`respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
`
`Plaintiffs allege that Google’s EN system violated the rights of the class members and
`
`the injunctive relief offered in the proposed settlement would resolve the alleged violations
`
`and offer appropriate relief to the whole class. Therefore, the Court finds that the
`
`
`
`9
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:21-cv-03080-NC Document 71 Filed 06/30/22 Page 10 of 10
`
`
`
`Settlement Class has satisfied Rule 23(b)(2) requirements and the Court is likely to certify
`
`the Settlement Class.
`
`IV. CONCLUSION
`
`In sum, the Court concludes that (1) the Settlement is fair, reasonable, and adequate
`
`under Rule 23; (2) the Settlement satisfies District Procedural Guidance for Class Action
`
`Settlements; and (3) the Court is likely to certify the Settlement Class. Accordingly, the
`
`Court GRANTS Plaintiffs’ motion for preliminary approval of class settlement.
`
`V. RELEVANT DATES
`
`Deadline to post Notice on the Settlement
`
`July 15, 2022
`
`Website, along with all relevant Court
`
`orders in the Lawsuit.
`
`Deadline for Plaintiffs to file Final
`
`August 4, 2022
`
`Approval Motion and Attorneys’ Fees
`
`Motion
`
`Objection Deadline
`
`Deadline to respond to Objections
`
`September 8, 2022
`
`September 23, 2022
`
`Final Approval Hearing
`
`October 11, 2022, at 11:00 a.m. via Zoom
`
`
`
`
`
`IT IS SO ORDERED.
`
`Dated: June 30, 2022
`
`_____________________________________
`NATHANAEL M. COUSINS
`United States Magistrate Judge
`
`
`
`
`
`10
`
`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
`
`Northern District of California
`
`United States District Court
`
`