Judge Approves Google Privacy $8.5M Class Action Settlement With Reservations

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A California federal judge has granted final approval to an $8.5 million class action settlement against Google Inc. over privacy issues despite some objections to the organizations chosen to benefit from the settlement award as well as the lack of changes required by the internet giant.

U.S. District Judge Edward J. Davila raised concerns about the proposed cy pres recipients in August 2014, saying that Google already donates money to some of the proposed organizations and some are the alma maters of the attorneys who are representing clients in the Google privacy class action lawsuit.

In his March 31 ruling, granting final approval for the settlement and attorneys fees, Judge Davila approved the $2.1 million in attorneys’ fees and $6.5 million that will go to AARP Inc., Harvard University, Carnegie Mellon University, Chicago-Kent College of Law, Stanford University, the MacArthur Foundation and the World Privacy Forum. He had granted preliminary approval of the Google class action settlement in March 2014.

However, the California federal judge did express disappointment that “some of the proposed cy pres recipients are ‘usual suspects,’ or organizations that routinely receive distributions from class action settlements.”

Judge Davila explains that “at the two approval hearing held in this case, the court expressed a concern with using the same list of cy pres recipients in every internet privacy class action and observed that this practice discourages the development of other worthy organizations.”

In addition, he says that “this practice raises questions about the effectiveness of those organizations that have received prior distributions.” For this reason Judge Davila says that “the court was somewhat surprised at the final list of distributees, since Plaintiffs’ counsel suggested the selection process would potentially cast a wider net.”

However, “despite this concern, the court recognizes that failure to diversify the list of distributees is not a basis to reject the settlement, particularly when the proposed recipients otherwise qualify under the applicable standard,” which states that the cy pres recipients are not required to be “ideal,” the California federal judge explains.

The Google privacy class action settlement aims to resolve allegations that the internet giant violated the Stored Communications Act by disclosing search terms to third parties, which can include personal information such as the names, addresses, phone numbers, credit card numbers, and social security numbers of users, “all of which increases the risk of identify theft,” the plaintiffs had said.

The practice by Google led to two privacy class action lawsuits — one filed in 2010 and another in 2012, which were later consolidated in 2013.

Judge Davila also expressed concerns about what the class action settlement requires of Google, saying that “Google’s allegedly unlawful practice will not change as a result of this case.”

According to the agreement, “instead, Google will be obligated to make certain ‘agreed-upon disclosures,’ or changes to certain portions of its website, the purpose of which is to better inform users how their search terms could be disclosed to third parties through a referrer header.”

Google will add information to the “frequently asked questions” part of its website explaining that the search queries of Google users is shared with third parties.

Judge Davila admits “that this relief is not the best result,” since what the plaintiffs were seeking in their class action lawsuit “would have required Google to stop disclosing search queries altogether.”

But he says that “a class action settlement does not need to embody the best possible result to be approved,” and that “the court’s role is not to advocate for any particular relief, but instead to determine whether the settlement terms fall within a reasonable range of possible settlements.”

Google agreed to the class action settlement in July 2013. Privacy groups asked the Federal Trade Commission in August 2014 “to intervene and block” Judge Davila from approving the privacy class action settlement.

The plaintiffs are represented by Michael Aschenbrener of Aschenbrener Law PC, Kassra Nassiri and Charles H. Jung of Nassiri & Jung LLP and Ilan Chorowsky of Progressive Law Group LLC.

Google is represented by Randall W. Edwards of O’Melveny & Myers LLP and Edward D. Johnson and Eric V. Evans of Mayer Brown LLP.

The Google Privacy Class Action Lawsuit is In re: Google Referrer Header Privacy Litigation, Case No. 5:10-cv-04809, in the U.S. District Court for the Northern District of California.