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Opperman v. Kong Technologies, Inc.

United States District Court, N.D. California

July 6, 2017

MARC OPPERMAN, ET AL., Plaintiffs,
KONG TECHNOLOGIES, INC., et al., Defendants.


          Jon S. Tigar United States District Judge.

         Plaintiffs[1] move for preliminary approval of class action settlement with the App Defendants.[2] ECF No. 878. For the reasons below, the Court will grant the motion.

         I. BACKGROUND

         A. Factual and Procedural Background

         This is a class action against Apple and various mobile application (“app”) developers for alleged invasions of privacy. See Second Consolidated Amended Complaint (“SCAC”), ECF No. 478. The Plaintiffs allege that the apps unlawfully uploaded their address book data without their knowledge or consent, and that Apple aided and abetted them in that conduct. Id. ¶¶ 246, 250-52.

         Discovery and motion practice have been extensive since this case began in March 2012. The parties engaged in three years of motion to dismiss briefing, which significantly narrowed the Plaintiffs' claims. See ECF Nos. 55, 67, 543. Since formal discovery began in August 2015, Plaintiffs' counsel “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.” ECF No. 879 ¶ 7. Plaintiffs' counsel has also deposed several Apple, Twitter, and Path employees, and has retained a source code expert and two damages experts. Id. ¶¶ 8˗9.

         In July 2016, the Court certified nominal and punitive damage claims against Path and Apple for a class comprising all persons in the United States who downloaded an offending version of the Path app from the App Store and activated the app via their Apple device between November 29, 2011 and February 7, 2012. See ECF No. 761.

         In August 2016, several Plaintiffs filed an omnibus motion for class certification against five of the remaining App Defendants and Apple on their invasion of privacy and aiding and abetting claims. ECF No. 799.[3] This settlement agreement, if approved, would render that motion moot.

         In September 2016, the Court denied Yelp's motion for summary judgment. ECF No. 828.

         Two of the App Defendants settled with Plaintiffs prior to joint mediation. ECF No. 879 ¶ 10. Formal settlement negotiations began in November 2016 and involved three in-person mediation sessions with Judge Cahill at JAMS in San Francisco. Id. The parties filed a notice of settlement with this Court in January 2017. ECF No. 856.

         The Plaintiffs have now moved for preliminary approval of their class action settlement with the App Defendants. ECF No. 878.

         B. Terms of the Agreement

         Plaintiffs seek provisional certification of a settlement class comprising all persons in the United States who activated the pertinent versions of the challenged apps on their Apple devices during the relevant time periods.

         Pursuant to the settlement agreement, the App Defendants will pay $5.3 million to establish a non-reversionary common fund from which settlement class members who submit valid claims will be sent cash or cash-equivalent payments on a per-app basis. See ECF No. 884 §§ 1.37, 2.1˗2.3. The App Defendants will separately pay for the settlement administrator's costs and notice expenses.[4] Id. §§ 5.1-5.4, 8.3.

         In exchange, class members will release the App Defendants and Apple from all claims that were or could have been asserted in relation to the alleged misappropriation and misuse of Plaintiffs' private address book data. Id. §§ 1.28, 1.29, 11.1, 11.3. Apple will not be released from the misrepresentation and false advertising claims. Id. § 1.28.

         The settlement administrator will provide notice to class members via a settlement website, a toll-free number, direct email to class members, and a Twitter Promoted Tweet to those class members for whom a Twitter handle is available. Id. §§ 5.2, 5.3.

         To receive payment, class members must submit an electronic claim form through the settlement website within 120 days after the Court grants preliminary approval. Id. §§ 7.1, 1.1. The settlement administrator will then calculate each class member's share, depending on how many of the apps they designated on their electronic claim form (up to a maximum of eight shares). Id. §§ 7.7, 7.8, 7.5. The settlement administrator will distribute payment to each class member on a pro rata basis via either a physical postcard check (valid for ninety days) or electronic payment in the form of a cash value credit on (no expiration date). Id. §§ 7.4, 7.7, 7.8. Any funds from checks not cashed within ninety days and from failed electronic payments shall be distributed on a cy pres basis to the Electronic Frontier Foundation, a leading nonprofit organization defending civil liberties in the digital world. Id. § 7.10.

         Alternatively, individuals may opt out of the class by sending a written request to the settlement administrator within sixty days after the notice date. Id. §§ 1.22, 6.2.

         Class counsel will separately petition the Court to allocate a portion of the settlement payment to reasonable attorneys' fees, costs, and expenses, as well as an incentive award for each representative Plaintiff. Id. §§ 8.1, 9.1. Should the Court decide to award less than the amounts sought, the difference will remain in the settlement account to pay eligible claimants. Id. §§ 8.2, 8.3, 9.2, 9.3.

         Class members may object to the settlement, class counsel's fee application, and/or the amount requested for incentive awards for the representative Plaintiffs by filing an objection with the Court within 120 days after the entry of the preliminary approval order. Id. §§ 6.1, 1.21.


         The Rule 23 requirements are satisfied. The settlement class is sufficiently numerous because it contains an estimated seven million eligible claimants. ECF No. 879 ¶ 12.[5] Moreover, the Court previously certified a substantially similar class against one of the App Defendants (the Path app), finding that the commonality, typicality, predominance, and superiority requirements were all satisfied. ECF No. 761. For the same reasons, the Court finds that those requirements are met here. The Court accordingly grants provisional certification of the settlement class.


         A. ...

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