Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 David M. Given (SBN ) Nicholas A. Carlin (SBN ) PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP Mesa Street, Suite 0 The Presidio San Francisco, CA Tel: --000 Fax: --0 Email: dmg@phillaw.com nac@phillaw.com James M. Wagstaffe (State Bar No. ) Michael J. von Loewenfeldt (State Bar No. ) Frank Busch (State Bar No. ) KERR & WAGSTAFFE LLP 00 Spear Street, th Floor San Francisco, CA 0 Tel: --00 Fax: --000 Email: wagstaffe@kerrwagstaffe.com myl@kerrwagstaffe.com busch@kerrwagstaffe.com Interim Co-Lead Counsel for Plaintiffs [ADDITIONAL COUNSEL LISTED BELOW] NORTHERN DISTRICT OF CALIFORNIA MARC OPPERMAN, et al., v. PATH, INC., et al., UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Plaintiffs, Defendants. Case No. -cv-00-jst DECLARATION OF DAVID M. GIVEN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT THIS MOTION RELATES TO: Opperman v. Path, Inc., No. -cv--jst Hernandez v. Path, Inc., No. -cv--jst SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 I, David M. Given, declare as follows:. I am a member in good standing of the State Bar of California and the State Bar of New York admitted to practice before this Court and a principal in the law firm of Phillips, Erlewine, Given & Carlin LLP, which serves as Plaintiffs co-lead counsel in the above-entitled putative class action lawsuit filed in this Court against Path, Inc., et al. (Case No. -cv-00- JST)) and Related Actions. I submit this declaration in support of the accompanying Motion for Preliminary Approval of Class Action Settlement. The facts set forth herein are based upon my personal knowledge and, if called upon, I could and would competently testify thereto.. I am the lawyer at my firm with principal responsibility for this matter. After the various cases were related and assigned, the Court ordered an organization of plaintiffs counsel with our firm serving as co-lead, together with a Plaintiffs Steering Committee that came to include co-lead counsel (Kerr & Wagstaffe LLP) and three other law firms. I have worked on this matter continuously since that time, and my firm and I have devoted considerable time and resources to this matter and have been centrally involved in every aspect of the proceedings before this Court.. The Court has previously considered a declaration in this case covering the subject of my and my law firm s background and experience as may be relevant to the present motion. Reference is made to my Declaration filed in support of Opperman Plaintiffs Submission re Organization of Plaintiffs Counsel (ECF No., at et seq.), the contents of which I reaffirm and which are incorporated herein by this reference. Additional information and biographical data further illustrating as well as updating the information in the aforementioned Declaration about my and my firm s experience in handling class actions and complex litigation may be found at http://www.phillaw.com.. On or about March, 0, Plaintiffs, on behalf of themselves and all Settlement Class Members (as defined), entered into a Class Action Settlement Agreement (the Settlement Agreement ) resolving the above-captioned action(s) against Defendants Foodspotting, Inc. ( Foodspotting ), Foursquare Labs, Inc. ( Foursquare ), Gowalla, Inc. ( Gowalla ), Instagram, LLC ( Instagram ), Kik Interactive, Inc. ( Kik ), Kong Technologies, SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 Inc. (formerly known as Path, Inc.) ( Path ), Twitter, Inc. ( Twitter ) and Yelp! Inc. ( Yelp ) (collectively, the App Defendants ).. The Settlement Agreement is the product of protracted and adversarial litigation, spanning five years and reflected in the case s procedural history before the Court (reviewed in the accompanying Memorandum), together with extensive and complex settlement negotiations between and among the parties and their counsel. Included in those negotiations was the involvement of a neutral third-party mediator, the Honorable William J. Cahill (Ret.), from JAMS.. Plaintiffs attorneys have an adequate basis in fact to assess and recommend to their clients the Settlement Agreement. Central to that basis are the Court s several rulings on the App Defendants motions to dismiss, Yelp s summary judgment motion, and Plaintiffs Carter, Cooley and Green s motion for class certification against Path.. Since discovery in the Opperman case began in Aug. 0, attorneys for Plaintiffs have defended a dozen-plus Plaintiff depositions (some Plaintiffs were deposed more than once), have responded to hundreds of written discovery requests, have supervised the forensic imaging of Plaintiffs respective idevices, have posed hundreds of written discovery requests to the App Defendants, have reviewed those requests and conducted all follow up meet and confer to them, have organized and reviewed tens of thousands of pages of documents produced in the case and have spent hundreds of thousands of dollars in out-of-pocket costs in prosecuting the action.. Attorneys for Plaintiffs have thus far taken the depositions of three Apple employees, one Twitter employee and two Path employees. The parties had scheduled several more depositions but those came off calendar when the parties set their mediation with Judge Cahill. Over the course of these proceedings, various discovery disputes made their way to the Court for resolution, including an all-day meet and confer held at the courthouse under Magistrate Judge Spero s supervision.. Plaintiffs attorneys retained a source code expert as well as two damages experts; all of Plaintiffs experts proffered expert reports or opinions to the Court, and all have SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 been deposed. Plaintiffs source code expert reviewed, analyzed and reported to lead counsel upon each of the App Defendants source code versions produced to Plaintiffs. Much of that review required multiple onsite visits to secure rooms, as well as an attorney s presence. 0. Informal settlement discussions between and among the parties occurred throughout this litigation. The parties first engaged in formal mediated negotiations beginning Nov., 0 with Judge Cahill at JAMS in San Francisco. Two of the smaller defendants had reached tentative agreements with Plaintiffs prior to the formal joint mediations.. Between that date and the Jan. 0 notice to the Court of the parties tentative settlement, the parties met again with Judge Cahill on December, 0, followed by a third mediation with a smaller group of parties, for a total of three in-person sessions, and engaged in numerous telephone and email communications with him on the nature and scope of their agreement. The parties also exchanged mediation briefs as well as additional data and other information pertaining to class size and membership beyond that contained in formal discovery responses. Drafting of the Settlement Agreement consumed another several weeks, with various iterations exchanged between attorneys for the respective parties before reaching the document proffered to the Court for approval and attached hereto.. We estimate the class size at approximately seven million members. In estimating the size of the class, Plaintiffs relied on the same formal discovery responses from the App Defendants concerning the number of accounts affected by the challenged conduct which Plaintiffs relied on in their motions for class certification. In three respects some estimation was required. First, Instagram was not able to determine the number of users who used the Find Friends feature during the Class Period, and thus an estimate that 0% of its user base did so was used. Both parties agreed that was a reasonable estimate in light of the information from other App Defendants. Second, many of the defendants were not able to exclude non-us or non-ios users from their counts, and had to estimate percentage deductions. See, e.g., ECF No. -, at - (Instagram Supplemental Rog ); ECF No. 0-, at - (Foursquare Rog ). In most cases, Plaintiffs used the larger (and more conservative, for these purposes) figure proffered by the App Defendants in coming to the total estimated number of SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 class members, and insisted on the most comprehensive notice available given the state of the available data. Third, the estimates for class size were made by adding each defendants numbers together; however, we know that many people had more than one App. Once email lists are de-duplicated across Apps, we expect the number of people in the class to drop to around million or less. Thus, we believe that the seven million class member figure is conservatively estimated.. Notice, however, will need to be sent to an over-inclusive group because () notice will need to be sent to all of Instagram s users who registered during the Class Period, although most will not be class members (as discussed above), () Foodspotting is in a similar situation (although it knows the number of class members, it does not have a record of which they are), and () most of the other defendants did not track which platform (ios or Android) users were using and/or whether the user was a U.S. resident, so the emails they provide will include some Android users and non-u.s. residents who are not class members. We anticipate that notice may go to approximately - million email addresses before email de-duplication. Given the state of defendants records and their discovery responses, over-notice is the best way for all class members to receive notice. The Claim Form provides the class definitions so that people can confirm their membership if they make a claim.. Notice to Twitter users is slightly different because Twitter informed us it does not have email addresses for the affected users, but does have Twitter handles for all potentially affected users. Notice will thus be made to Twitter users through promoted tweets. As with other defendants, Twitter will need to notice a much broader group than those who actually used the Find Friends feature because it cannot identify the specific individuals who used Find Friends, which means Twitter s promoted tweet will provide notice to a broad group of potentially impacted individuals. The Twitter users are included within the seven million estimate, but cannot be de-duplicated without email. Thus, in addition, a class member who had both Twitter and another affected app will receive both a tweet and an email.. Given these estimates, together with the Court s decision to certify a nominal damages only class as against Path (signaling the strong likelihood that the entire class would be SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 limited to nominal damages), the sum of $. million plus additional contributions for much of the electronic distributions amounts to a reasonable and fair compromise of the parties respective positions in the case. The settlement was only achieved after significant arms length negotiations and with the direct participation of Judge Cahill, and represents a significant percentage of any nominal damages recovery for the Settlement Class especially in light of the risks of further litigation, including on the subject of class certification. The settlement allocates payment based on the number of people who submit claims and the number of Apps each claimed. Given that nominal relief is non-remunerative, that allocation is fair and reasonable whether a large, or more realistically small, percentage of the class makes claims and irrespective of minor differences between App Defendants. With electronic payment through Amazon the distribution is nearly costless, although the settlement does reserve a check option for class members who insist on it because we recognize that not everyone uses Amazon.com (distributing all the funds via check would be cost-prohibitive). Payments made with Amazon.com credits do not expire.. Continuation of this litigation would be risky, expensive and create substantial delay in recovery to class members. The events in issue here are now over five years old. While the Court has provided guidance in the matter, the outcome on the merits is unpredictable, and a favorable outcome for Plaintiffs would no doubt be appealed. Moreover, Plaintiffs attorneys recognize that variations among the App Defendants in available information regarding users who had their address book data uploaded by a charged app could create ascertainability issues on class certification. The risk of certifying and thereafter maintaining class action status throughout trial and appeal, and affording relief to all members of the class rather than a handful of named plaintiffs, weights strongly in favor of settlement.. The settlement amount also compares favorably on a per head basis with settlements approved by courts in this District in other data privacy matters. Plaintiffs attorneys considered several other such settlements. For example, in Fraley v. Facebook, No. - (N.D. Cal.), the parties reached a settlement agreement after denial of a motion to dismiss but prior to class certification, and Judge Seeborg approved a settlement providing for a $0 million SETTLEMENT, ETC. -- Case No. -cv-00-jst
Case :-cv-00-jst Document Filed 0/0/ Page of 0 California Street, nd Floor San Francisco, CA () -000 0 0 cash fund where the class size was an estimated million Facebook members. Similarly, in In re Google Referrer Header Privacy Litig., No. 0-00 (N.D. Cal.), Judge Davila granted final approval to a $ million settlement in a case with estimated million class members. Finally, in In re Google Buzz Privacy Litig., No. 0-00 (N.D. Cal.), Judge Ware granted final approval to $. million settlement in a case with estimated million class members.. As I trust is reflected in the above recitation, lead counsel accepted and recommended the Settlement Agreement to their colleagues and clients only after conducting serious settlement negotiations and thorough investigation into the factual and legal issues raised in this case, the latter of which were thoroughly vetted by Plaintiffs counsel and tested by the Court.. In negotiating and evaluating the Settlement Agreement, I relied upon our investigation and drew on our experience, skill and expertise in determining that the Settlement Agreement was fair, reasonable and adequate. While I continue to believe that Plaintiffs can overcome the various defenses of the App Defendants, they are indicative of the risks, hurdles, and delays that Plaintiffs and class members face should this matter proceed in litigation. 0. I believe that the proposed Settlement Agreement provides appropriate monetary relief for Settlement Class Members while allowing them to avoid the risks of unfavorable, and in some cases possibly dispositive, rulings on these and other issues. Based on my experience as well as my involvement in this case, I believe that the Settlement Agreement is fair, reasonable and adequate and in the bests interests of the class. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this rd day of April 0 at San Francisco, California. /s/ David M. Given David M. Given SETTLEMENT, ETC. -- Case No. -cv-00-jst