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Case 3:10-Md-02184-CRB Document 188-2 Filed 01/20/20 Page 1 of 25 Case 3:10-md-02184-CRB Document 188-2 Filed 01/20/20 Page 1 of 25 1 Theodore H. Frank (SBN 196332) HAMILTON LINCOLN LAW INSTITUTE 2 CENTER FOR CLASS ACTION FAIRNESS 1629 K Street NW, Suite 300 3 Washington, DC 20006 4 Voice: 703-203-3848 Email: [email protected] 5 Attorneys for Objector David Lowery 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 9 10 IN RE GOOGLE LLC STREET VIEW Case No. 3:10-md-02184-CRB 11 ELECTRONIC COMMUNICATIONS LITIGATION DECLARATION OF THEODORE FRANK 12 Time: 10:00 A.M. 13 Date: February 28, 2020 Judge: Hon. Charles R. Breyer DAVID LOWERY, th 14 Courtroom: 6, 17 Floor Objector. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOHN Case 3:10-md-02184-CRB Document 188-2 Filed 01/20/20 Page 2 of 25 1 I, Theodore Frank, declare as follows: 2 1. I have personal knowledge of the facts set forth herein and, if called as a witness, could and 3 would testify competently thereto. 4 2. My full name is Theodore Harold Frank. My business address is Hamilton Lincoln Law 5 Institute, Center for Class Action Fairness, 1629 K Street NW, Suite 300, Washington, DC 20006. My 6 telephone number is 703-203-3848. My email address is [email protected]. 7 3. I am Director of Litigation at the non-profit Hamilton Lincoln Law Institute (“HLLI”), and a 8 Senior Attorney with its Center for Class Action Fairness (“CCAF”). I represent David Lowery in objecting to 9 the proposed settlement, class certification, and fee request. 10 Factual Basis for Lowery’s Objection 11 4. The specific grounds of my client’s objection are identified in his contemporaneously-filed 12 Objection. 13 5. In the course of drafting Mr. Lowery’s objection, I discovered evidence that Google is already 14 donating to some of the proposed cy pres recipients. 15 6. A true and accurate copy of the Public Knowledge webpage titled Sources of Funding for Public 16 Knowledge webpage as of January 17, 2020, available at https://www.publicknowledge.org/sources-of-funding- 17 for-public-knowledge, is attached as Exhibit A. 18 7. A true and accurate copy of Google’s biannually updated “list of politically-engaged trade 19 associations, independent third-party organizations and other tax-exempt groups that receive the most 20 substantial contributions from Google’s U.S. Government Affairs and Public Policy team” as of January 17, 21 2020, available at https://services.google.com/fh/files/misc/trade_association_and_third_party_groups.pdf, 22 is attached as Exhibit B. This list is accessible via a link from U.S. Public Policy-Transparency webpage, available at 23 https://www.google.com/publicpolicy/transparency/. It includes World Privacy Forum as a recipient. 24 8. Exhibits to plaintiffs’ preliminary approval motion contain evidence that ACLU, World Privacy 25 Forum, and Public Knowledge have all received contributions from Google. Dkt. 166-1 at 61, 76, 100. 26 9. Plaintiffs have argued that “the class is receiving no monetary distribution because such a 27 distribution would be impossible for many Class Members and too expensive to implement for the few who 28 could be identified.” Dkt. 184 at 16. They present no evidence in support of this proposition. Case No. 3:10-md-02184-CRB 1 DECLARATION OF THEODORE FRANK Case 3:10-md-02184-CRB Document 188-2 Filed 01/20/20 Page 3 of 25 1 10. Through my experience with CCAF, I have learned that it is economically feasible to distribute 2 $13 million to multi-million member classes. I represented myself and another class member in objecting to 3 the second settlement and fee request in Fraley v. Facebook Inc., No. 11-cv-01726 RS (N.D. Cal.), a privacy class 4 action brought on behalf of some 150 million Facebook users. There, class counsel originally proposed to 5 distribute $10 million to cy pres beneficiaries in lieu of any payments to class members on the theory that the 6 class was simply too large to get direct benefit to class members. However, after Judge Seeborg rejected that 7 proposed agreement (see Fraley v. Facebook, Inc., 2012 U.S. Dist. LEXIS 116526 (N.D. Cal. Aug. 17, 2012)), the 8 settling parties returned with a second settlement proposal that would permit class members to make claims 9 against the settlement fund for $10 each. Ultimately, class members submitted only 614,000 claims (a claims 10 rate of 0.4%), thus undersubscribing the fund and allowing the Court room to augment claim values upwards 11 to $15. Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 944 (N.D. Cal. 2013). Despite including a direct-notice 12 component, administrative costs in Fraley only amounted to $900,000. Fraley, No. 11-cv-01726, Dkt. 336 at 3. 13 Fraley demonstrates that administrative costs of a class claims process need not cannibalize the $13 million 14 fund of this settlement. 15 11. I am also aware of the cases listed in the following chart, each of which supports the feasibility 16 of actual class member payments in this case through a claims process: 17 Case Name Size of Class Gross Administrative Cash Costs 18 Settlement Amount1 19 Fraley v. Facebook, Inc., No. 11-cv-1726 RS (N.D. ~150 million $20 million ~$900,000 20 Cal. 2013) Koller v. Med Foods, Inc., No. 3:14-CV-2400-RS Unknown (150 $7 million $432,700 21 (N.D. Cal.) million bottles sold during 22 class period) In re Conagra Foods, Inc., No. 11-cv-5379-CJC > 31 million Less than “no more than 23 (C.D. Cal. 2019) $8,500,0002 $660,000” 24 In re Carrier iQ, Inc., Consumer Privacy Litig., 2016 ~30 million $9 million $655,500 WL 4474366, 2016 U.S. Dist. LEXIS 114235 25 (N.D. Cal. Aug. 25, 2016) 26 1 This figure includes payments to class members, fees and expenses to class counsel, and notice and 27 administration costs payments to the administrator. 2 Class counsel received $6.85 million of this total. A CCAF client objected to the disproportion and 28 the appeal is pending. Case No. 3:10-md-02184-CRB 2 DECLARATION OF THEODORE FRANK Case 3:10-md-02184-CRB Document 188-2 Filed 01/20/20 Page 4 of 25 1 Case Name Size of Class Gross Administrative Cash Costs 2 Settlement Amount1 3 Perkins v. LinkedIn Corp., No. 13-cv-04303-LHK ~20.8 million $13 million $716,750 4 (N.D. Cal.) Leiner v. Johnson & Johnson Consumer Companies, Inc., ~12.9 million $5 million $439,222 5 No. 1:15-cv-05876 (N.D. Ill.) In re LivingSocial Marketing and Sales Practices Litig. ~10.9 million $7.58 ~$130,000 6 No. 11-mc-00472, 298 F.R.D. 1 (D.D.C. 2013) million See Dkt. 40. (included direct 7 notice) 8 Zepeda v. PayPal, No. 10-cv-02500-SBA, 2017 WL ~10.5 million $3.2 million Capped at 1113293, 2017 U.S. Dist. LEXIS 43672 (N.D. $400,000 9 Cal. Mar. 24, 2017) (included direct notice) 10 Thomas Iglesias v. Ferrara Candy Co., No. 3:17-cv- >10 million $2.5 million Capped at 00849-VC (N.D. Cal.) $522,000 11 In re Sony PS3 "Other OS" Litigation, No. 10-cv- 10 million $3.75 $495,000 12 01811-YGR (N.D. Cal.) million In re Google Plus Profile Litigation, No. 18-cv-06164- ~10 million $7.5 million Estimated at 13 EJD (N.D. Cal.) $265,000 Chester v. The TJX Cos., Inc., No. 15-cv-0437, 2017 ~8 million $8.5 million Estimated at 14 WL 6205788 (C.D. Cal. Dec. 5, 2017) $500,000 (included direct 15 notice) 16 Kumar v. Salov North America Corp., 4:14-cv-02411- ~5.4 million Less than Preliminary cost YGR (N.D. Cal.) $1.7 million est. $450,000 17 Martin v. Cargill, Inc., 295 F.R.D. 380 (D. Minn. ~5 million $5.3 million Class counsel 2013) represented 18 administration costs as 19 $170,000. 20 Settlement 21 established administration 22 fund of $300,000 23 Frohberg v. Cumberland Packing Corp., No. 14-cv- ~ 2 million Up to $1.5 Capped at 00748 (E.D.N.Y.), terms available at million $210,000 24 http://web.archive.org/web/20160528175123/h 25 ttps://www.steviaintherawsettlement.com/ Shestopal v. Follett Higher Education Group Inc., Case ~1.9 million $3.5 million Capped at 26 No. 15-cv-8980 (N.D. Ill) $499,000 (included direct 27 notice) 28 Case No. 3:10-md-02184-CRB 3 DECLARATION OF THEODORE FRANK Case 3:10-md-02184-CRB Document 188-2 Filed 01/20/20 Page 5 of 25 1 Case Name Size of Class Gross Administrative Cash Costs 2 Settlement Amount1 3 Aguiar v. Merisant Co., 14-cv-00670 (C.D. Cal.), ~1.2-2.4 $1.65 Unknown 4 terms available at million million (included direct http://web.archive.org/web/20160329153716/h notice to part of 5 ttps://www.pureviasweetenersettlement.com/ class) Dashnaw v. New Balance Ath., Inc., 2019 U.S. Dist. ~1.1 million $1.4 million Capped at 6 LEXIS 126183, 2019 WL 3413444 (S.D. Cal. Jul. $200,000 29, 2019) 7 In re Packaged Ice Antitrust Litig., 322 F.R.D. 276 >1 million $2.7 million $650,000 8 (E.D. Mich. 2017) Bezdek v. Vibram USA, Inc, No. 12-cv-10513 (D.
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