United States District Court, N.D. California
ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT Re ECF No. 878
Tigar United States District Judge.
Plaintiffs move for preliminary approval of
class action settlement with the App
ECF No. 878. For the reasons below, the Court will grant the
Factual and Procedural Background
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.
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.
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.
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. This settlement agreement, if
approved, would render that motion moot.
September 2016, the Court denied Yelp's motion for
summary judgment. ECF No. 828.
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.
Plaintiffs have now moved for preliminary approval of their
class action settlement with the App Defendants. ECF No. 878.
Terms of the Agreement
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.
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. Id. §§
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.
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.
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
Amazon.com (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.
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.
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.
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.
Rule 23 requirements are satisfied. The settlement class is
sufficiently numerous because it contains an estimated seven
million eligible claimants. ECF No. 879 ¶
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.
PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT