Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 1 of 33

9Michael W. Sobol (SBN 194857)
msobol@lchb.com
David T. Rudolph (SBN 233457)
drudolph@lchb.com
Jallé H. Dafa (SBN 290637)
jdafa@lchb.com
John D. Maher (SBN 316157)
jmaher@lchb.com
Amelia A. Haselkorn (SBN 339633)
ahaselkorn@lchb.com
Nabila Abdallah (SBN 347764)
nabdallah@lchb.com
LIEFF CABRASER HEIMANN& BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: 415.956.1000
Facsimile: 415.956.1008

10

Attorneys for Plaintiffs and the Class

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6
7

8

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION

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15

Michael Katz-Lacabe, and Dr. Jennifer
16 Golbeck, on behalf of themselves and allothers similarly situated,
17
Plaintiffs,
vs.
18
19 ORACLE AMERICA, INC., a corporation
organized under the laws of the State of
20 Delaware,
21
22
23
24
25

Defendant.

Case No. 3:22-cv-04792-RS
PLAINTIFFS’ UNOPPOSED NOTICE OF
MOTION AND MOTION FORPRELIMINARY APPROVAL OF CLASSACTION SETTLEMENT AND DIRECTION
OF NOTICE UNDER RULE 23(e)Judge: Hon. Richard Seeborg
Date: August 8, 2024
Time: 1:30 p.m.
Courtroom: 3
Date Action Filed: August 19, 2022
Trial Date: Not set(Declaration of David T. Rudolph including
Settlement Agreement, and Declaration of Steven
Weisbrot, filed concurrently herewith)

26
27
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NOTICENOTICEOF MOTION
OF MOTION
ANDANDMOTIONMOTIONFORFORPRELIMINARYPRELIMINARYSETTLEMENTSETTLEMENTAPPROVALAPPROVAL
CASE
NO.
3:22-CV-04792-RS
CASE
NO.
3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 2 of 33

NOTICE OF MOTION AND MOTION

1
2

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3PLEASE TAKE NOTICE THAT on August 8, 2024, at 1:30 p.m., or as soon thereafter4

as the matter may be heard,1 in Courtroom 3 of the United States District Court for the Northern5

District of California, located at 450 Golden Gate Ave., San Francisco, CA 94102, Plaintiffs

6

Michael Katz-Lacabe and Dr. Jennifer Golbeck (“Plaintiffs”) will, and hereby do, move the Court

7

for an order pursuant to Rule 23(e)(1) granting Plaintiffs’ Motion for Preliminary Approval of the

8

Class Action Settlement2 and for Direction of Notice Under Rule 23(e), and:a. Granting preliminary approval of the proposed Settlement Agreement entered between
the parties;

9
10
11

b. Determining that the Court, at the final approval stage, will likely certify the
Settlement Class as defined in the Settlement Agreement;

12c. Appointing Plaintiffs as Class Representatives of the proposed Settlement Class;13

d. Appointing Michael W. Sobol and David T. Rudolph of Lieff Cabraser Heimann &Bernstein, LLP (“Lieff Cabraser”) as Class Counsel for the proposed Settlement Class;14

e. Approving the parties’ proposed Notice Plan outlined herein, including the proposed
Email Notice, Detailed Notice, and Media Notice, and directing that notice bedisseminated pursuant to the Notice Plan;315
16f. Appointing Angeion Group, LLC as Settlement Administrator, and directing that it
carry out the duties and responsibilities of the Settlement Administrator specified in
the Settlement Agreement; and

17
18
19

g. Setting a Fairness Hearing and certain other dates in connection with the final
approval of the Settlement Agreement.

20This Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of21

Points and Authorities, the Declaration of David T. Rudolph in Support of Preliminary Settlement

22

Approval, with supporting exhibits; the Declaration of Steven Weisbrot of Angeion Group, LLC

23with supporting exhibits; the argument of counsel, all papers and records on file in this matter;

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25
1

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27
28

Dkt. 131, Order Granting Joint Administrative Motion to Set Preliminary Approval Hearing
Date.
2
The Settlement Agreement is attached as Exhibit 1 to the concurrently filed Declaration ofDavid T. Rudolph in Support of Preliminary Settlement Approval.
3
See Declaration of Steven Weisbrot and proposed notices attached as Exhibits B (Email Notice)and C (Detailed Notice) to the Settlement Agreement.
3052265.2-2-

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Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 3 of 33

1

and such other matters as the Court may consider.

2

STATEMENT OF ISSUES TO BE DECIDED
Pursuant to Rule 23(e), this Motion raises the following issues:

34

1. Whether the proposed Settlement Agreement entered between the parties should
be preliminary approved;

5

2. Whether the Settlement Class as defined in the Agreement is likely to be certified
at the final approval stage;

67

3. Whether Michael Katz-Lacabe and Dr. Jennifer Golbeck have adequately
represented the proposed Class and thereby merit appointment as Class
Representatives of the proposed Class;89

4. Whether Lieff Cabraser has adequately represented the proposed Class and thereby
merits appointment as Class Counsel for the proposed Class;1011

5. Whether the parties’ proposed Notice Plan outlined herein is the best noticepracticable under the circumstances and the Notice contents is clear; and

12

6. Whether the Court should appoint Angeion Group, LLC as Settlement
Administrator and direct it to carry out the duties and responsibilities of theSettlement Administrator specified in the Agreement.

13
14
15
16

Dated: July 18, 2024

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/s/ Michael W. Sobol
Michael W. Sobol (SBN 194857)
msobol@lchb.com
David T. Rudolph (SBN 233457)
drudolph@lchb.com
Jallé H. Dafa (SBN 290637)
jdafa@lchb.com
John D. Maher (SBN 316157)
jmaher@lchb.com
Amelia A. Haselkorn (SBN 339633)
ahaselkorn@lchb.com
Nabila Abdallah (SBN 347764)
nabdallah@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Attorneys for Plaintiffs and the Class

25
26
27
28
3052265.2-3-

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Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 4 of 33

1

TABLE OF CONTENTS

2

Page

3

NOTICE OF MOTION AND MOTION ........................................................................................ 2
STATEMENT OF ISSUES TO BE DECIDED ............................................................................. 3
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
I.
Factual Background ............................................................................................................ 2
II.
Procedural Background ....................................................................................................... 2A.
Pleadings ................................................................................................................. 2
B.
Discovery ................................................................................................................ 4

4
5
6
7

8

C.

9
10
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12
13
14
15
16

Mediation ................................................................................................................ 5III.

SUMMARY OF SETTLEMENT TERMS ......................................................................... 6A.
The Settlement Class and Release........................................................................... 6B.
The Non-Reversionary Settlement Fund ................................................................. 6
C.
Non-Monetary Relief .............................................................................................. 7
D.
Notice Plan and Settlement Administration Costs .................................................. 9
E.
Attorneys’ Fees and Expenses, and Class Representative Service Awards ............ 9F.
The Proposed Settlement Administrator ................................................................. 9
LEGAL STANDARD FOR PRELIMINARY APPROVAL.......................................................... 9
ARGUMENT ................................................................................................................................ 10
I.

17
18
19
20
21
22
23

The Settlement Satisfies the Northern District’s Guidance. ............................................. 10A.
Guidance 1(a) ‒ (b): Changes to the Settlement Class Definition. ....................... 10
B.
Guidance 1(c): The Settlement Recovery Outweighs the Costs, Risks, andDelay of Trial and Appeal. .................................................................................... 11C.
Guidance 1(e) ‒ (g): The Settlement Benefits Will Be Equitably
Distributed Through a Simple, Straightforward Settlement Claims Process. ....... 13
D.
Guidance 2: The Proposed Settlement Administrator Should be Appointed. ....... 14
E.
Guidance 3: The Proposed Notice Plan Should Be Approved. ............................. 14F.
Guidance 4 and 5: The Processes for Exclusions from and Objections to theSettlement are Straightforward. ............................................................................ 15
G.

24
H.
25
I.
J.

26
27

K.

28
3052265.2

Guidance 6: Plaintiffs’ Counsel Will Seek Reasonable Attorneys’ Fees andExpenses................................................................................................................ 15
Guidance 7: Plaintiffs Will Request a Service Award for Class
Representatives. .................................................................................................... 16
Guidance 8: The Parties Will Propose Appropriate Cy Pres Recipients. ............. 16
Guidance 9: The Court Should Schedule a Fairness Hearing and RelatedDates. ..................................................................................................................... 17
Guidance 10: The Requirements of the Class Action Fairness Act Will Be
Met. ....................................................................................................................... 18-i-Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 5 of 33

1

TABLE OF CONTENTS(continued)

2

Page
L.

8

Guidance 11: This Outcome Exceeds the Relief Obtained in Comparable
Data Privacy Cases. ............................................................................................... 18
The Proposed Settlement is Fair, Reasonable, and Adequate. .......................................... 20
A.
The Settlement is the Product of Arm’s Length Negotiations and is
Supported by Experienced Counsel. ..................................................................... 20
B.
The Stage of the Proceedings and the Discovery Conducted Support
Approval. ............................................................................................................... 20
The Court Will be Able to Certify the Proposed Settlement Class. .................................. 21A.
The Class Satisfies Rule 23(a)’s Prerequisites. ..................................................... 21

9

B.

3
4

II.

5
6
7
III.

10
11

IV.

Plaintiffs Satisfy Rule 23(b)(3)’s Requirements. .................................................. 23C.
The Court Should Appoint the Named Plaintiffs as Class Representatives. ........ 24
D.
The Court Should Appoint Class Counsel as Settlement Class Counsel. ............. 24
CONCLUSION ................................................................................................................. 24

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27
28
3052265.2- ii -

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TABLE OF AUTHORITIES

1
2
3

Page
Cases
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ................................................................................................................ 21

4

Brinkley v. Monterey Fin. Servs., LLC,
No. 16-cv-1103, 2020 WL 12991079 (S.D. Cal. Jan. 17, 2020)............................................. 11

5

Campbell v. Facebook Inc.,
No. 13-CV-05996, 2017 WL 3581179 (N.D. Cal. Aug. 18, 2017), aff’d, 951
F.3d 1106 (9th Cir. 2020)........................................................................................................ 13

6
7

8

Carlotti v. ASUS Computer Int’l,No. 18-cv-03369, 2019 WL 6134910 (N.D. Cal. Nov. 19, 2019) ................................... passim

9

Churchill Village, L.L.C. v. Gen. Elec.,
361 F.3d 566 (9th Cir. 2004)................................................................................................... 14

10

Cummings v. Connell,
402 F.3d 936 (9th Cir. 2005)................................................................................................... 11

11
12
13
14
15

Ellis v. Naval Air Rework Facility,
87 F.R.D. 15 (N.D. Cal. 1980), aff’d, 661 F.2d 939 (9th Cir. 1981) ...................................... 20
Fleming v. Impax Lab’ys Inc.,
No. 16-CV-06557, 2021 WL 5447008 (N.D. Cal. Nov. 22, 2021) ........................................ 16
Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998)..................................................................................... 21, 23, 24

16

Hesse v. Sprint Corp.,
598 F.3d 581 (9th Cir. 2010)..................................................................................................... 6

17

In re Anthem, Inc. Data Breach Litig.,
327 F.R.D. 299 (N.D. Cal. 2018) ............................................................................................ 23

18
19

In re Bluetooth Headset Prod. Liab. Litig.,
654 F.3d 935 (9th Cir. 2011)................................................................................................... 20

20

In re Chrysler-Dodge-Jeep Ecodiesel Mkting, Sales Pracs, and Prods. Liab. Litig.,
No. 17-md-02777, 2019 WL 536661 (N.D. Cal. Feb. 11, 2019) ............................................ 1121

In re Facebook Biometric Info. Priv. Litig.,
522 F. Supp. 3d 617 (N.D. Cal. 2021) .................................................................................... 20

22
23

In re Facebook, Inc. Consumer Priv. User Profile Litig.,
No. 3:18-MD-02843, 2023 WL 8443230 (N.D. Cal. Oct. 10, 2023) ...................................... 19

24

In re Google Inc. Street View Elec. Commc’n. Litig.,
21 F.4th 1102 (9th Cir. 2021).................................................................................................. 13

25
26
27

In re Google Location Hist. Litig.,
No. 5:18-CV-05062, 2024 WL 1975462 (N.D. Cal. May 3, 2024) .................................. 13, 19
In re Hyundai and Kia Fuel Econ. Litig.,
926 F.3d 539 (9th Cir. 2019)................................................................................................... 10283052265.2- iii -

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 7 of 33

1
2
3
4
5

In re Illumina, Inc. Sec. Litig.,
No. 3:16-CV-3044, 2021 WL 1017295 (S.D. Cal. Mar. 17, 2021) ........................................ 16
In re Online DVD-Rental Antitrust Litig.,
779 F.3d 934 (9th Cir. 2015)................................................................................................... 24
In re Volkswagen “Clean Diesel” Mktg., Sales Pracs. & Prod. Liab. Litig.,
No. MDL 2672, 2017 WL 672727 (N.D. Cal. Feb. 16, 2017) ................................................ 22

6

In re Wells Fargo & Co. S’holder Derivative Litig.,
445 F. Supp. 3d 508 (N.D. Cal. 2020) .................................................................................... 16

7

Lane v. Facebook,696 F.3d 811 (9th Cir. 2012)............................................................................................... 7, 18

8
9
10

Parsons v. Ryan,
754 F.3d 657 (9th Cir. 2014)................................................................................................... 22
Rodriguez v. W. Pub. Corp.,
563 F.3d 948 (9th Cir. 2009)................................................................................................... 16

11

Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227 (9th Cir. 1996)............................................................................................. 23, 24

12
13Villegas v. J.P. Morgan Chase & Co.,
No. CV 09-00261, 2012 WL 5878390 (N.D. Cal. Nov. 21, 2012) ......................................... 20

14

Wakefield v. ViSalus, Inc.,
51 F.4th 1109 (9th Cir. 2022), cert. denied, 143 S. Ct. 1756 (2023) ...................................... 11

15
16

Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ................................................................................................................ 21

17

Wolin v. Jaguar Land Rover N. Am., LLC,
617 F.3d 1168 (9th Cir. 2010)................................................................................................. 23

18

Statutes

19

18 U.S.C. § 2520(c)(2) .................................................................................................................. 1228 U.S.C § 1292(b) ......................................................................................................................... 420

28 U.S.C. § 1715 ........................................................................................................................... 18

21

Cal. Bus. & Prof. Code § 17200, et seq. ......................................................................................... 3

22

California Invasion of Privacy Act, Cal. Penal Code § 630................................................... passim

23

Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. .................................... 3, 4, 12

24

Florida Security of Communications Act (“FSCA”), Fla. Stat. Ann. §934.03 ............... 1, 3, 12, 18
Court Rules

25

Fed. R. Civ. P. § 23 ................................................................................................................ passim

26

Treatises

27

Judicial Council of California Civil Jury Instructions (2023), CACI No. VF-1800 ..................... 1128

Restatement (Second) of Torts § 652H (Am. L. Inst. 1977) ......................................................... 113052265.2- iv -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 8 of 33

1
2

Rutter Group, CAL. PRAC. GUIDE: CIV. PROC. TRIAL CLAIMS & DEF.,
Chapter 4(IV)-E ...................................................................................................................... 11
Constitutions

3

California Constitution ................................................................................................................ 1, 2

4
5
6
7

8
9
10
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12
13
14
15
16
17
18
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20
21
22
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Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 9 of 33

INTRODUCTION

1After nearly two years of hard-fought litigation encompassing three rounds of motion to2
3

dismiss briefing addressing privacy rights issues, and eight months of well-informed, arm’s

4length settlement negotiations aided by experienced mediators, Plaintiffs have reached an

5outstanding settlement with Oracle America Inc. (“Oracle”) that is fair, reasonable, and6adequate.4 The proposed Settlement delivers substantial relief to the Settlement Class, providing

7

that Oracle will pay $115 million into a non-reversionary cash fund to be distributed evenly

8

among Settlement Class Members. The settlement also provides meaningful non-monetary relief

9addressing the alleged privacy violations through binding promises that Oracle will, for as long as

10

it continues to offer the products and services described in the operative complaint, (i) not capture

11

certain complained-of electronic communications and (ii) will implement an audit program to12

review its customers’ compliance with contractual consumer privacy obligations. Shortly after the13

parties reached an agreement in principle for this non-monetary relief, Oracle publicly announced

14

the imminent shut down of its ad tech business. The Settlement thus demarcates a new era for

15

Oracle’s relationship with class members, offers substantial benefits, and at the same time

16

eliminates the risk and uncertainty of continued litigation.

17

Plaintiffs request that the Court preliminarily approve this proposed nationwide class18

action settlement, resolving numerous claims against Oracle including claims for invasion of

19

privacy under the California Constitution (Article I, Section I); intrusion upon seclusion under20

California common law; violation of the California Invasion of Privacy Act (“CIPA”), Cal. Penal

21

Code § 630, et seq.; violation of the Florida Security of Communications Act (“FSCA”), Fla. Stat.

22

Ann. § 934.03; unjust enrichment under California and Florida common law; declaratory

23

judgment that Oracle wrongfully accessed, collected, stored, disclosed, sold, and otherwise

24

improperly used Plaintiffs’ private data; and injunctive relief. See Dkts. 87, 114.
This Settlement was reached at a critical juncture in the litigation, after extensive motion

25
26
27
28

The Settlement Agreement (the “Settlement” or “SA”) is attached as Exhibit 1 to the
concurrently filed Declaration of David T. Rudolph in Support of Preliminary Settlement
Approval (“Rudolph Decl.”). Unless otherwise noted, capitalized terms herein refer to and havethe same meanings as in the Settlement.
4

1

NOTICENOTICEOF MOTION
OF MOTION
ANDANDMOTIONMOTIONFORFORPRELIMINARYPRELIMINARYSETTLEMENTSETTLEMENTAPPROVALAPPROVAL
CASE
NO.
3:22-CV-04792-RS
CASE
NO.
3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 10 of 33

1practice and discovery, but before Plaintiffs would face the risks of class certification, summary2

judgment, and trial. Given the substantial and meaningful relief provided by this proposed

3

Settlement and in light of the risks of continuing and protracted litigation, Plaintiffs respectfully

4

request that the Court grant preliminary approval of the proposed Settlement to immediately

5

provide substantial monetary and injunctive relief to the proposed Class.

6
7

BACKGROUND
I.

Factual Background
After an extensive two year investigation, Plaintiffs commenced this novel privacy action

8
9

on behalf of all persons whose personal data Oracle allegedly collected. See Rudolph Decl. ¶ 3.

10

The investigation commenced in early 2020 and involved analyzing the vast public record,

11

including complaints filed by consumer organizations and government regulators, academic

12

articles, news reports, books, web pages, marketing materials, privacy policies and disclosures.

13

Prior to filing this lawsuit, Plaintiffs obtained from Oracle their “Offline Access Request

14

Response Reports” (“OARRRs”), which have been central to this litigation. Id. Lieff Cabraser

15

also consulted with a privacy law scholar and with two computer science experts who performed

16

forensic research and analysis of Oracle’s publicly-available technical documentation. Id. On

17

August 19, 2022, three Plaintiffs filed suit against Oracle alleging that its data brokering business18

violates internet users’ right to privacy under the California Constitution as well as various state19

and federal privacy statutes. Dkt. 1.

20

II.

Procedural Background

21

A.

22

The complaint and amended complaints faced three rounds of motions to dismiss that

Pleadings

23

raised potentially dispositive issues including Plaintiffs’ standing, the reasonable expectation of24

privacy, choice of law, and applicability of state and federal wiretapping statutes. Rudolph Decl. ¶25

4; Dkts. 23, 63, 88. Plaintiffs researched and drafted thorough oppositions to Oracle’s motions

26

and, in response to the Court’s rulings, amended the complaint twice. Id. Each iteration of the27complaint required extensive additional research. Id.
In their initial complaint, Plaintiffs sought to represent five potential classes, including a

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1

Worldwide Class. Oracle filed a motion to dismiss Plaintiffs’ initial complaint on November 7,22022. Dkt. 23. On April 6, 2023, the Court granted in part Oracle’s motion, dismissing without

3

prejudice Plaintiffs’ claims under California’s unfair competition law (“UCL”), Cal. Bus. & Prof.

4

Code § 17200, et seq.; the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510,

5

et seq.; and for unjust enrichment under California common law. Dkt. 49. Meanwhile, the Court

6

maintained Plaintiffs’ constitutional invasion of privacy, intrusion upon seclusion (for the7

California subclass), CIPA (same), declaratory judgment, and equitable relief claims, “albeit

8

some barely.” Id. at 23. Following the Court’s choice of law ruling, finding that it could not apply

9

California law to European privacy claims, the foreign named Plaintiff voluntary dismissed his

10claims. Id.; Dkt. 56.

11

On May 22, 2023, the two U.S. Plaintiffs filed a First Amended Complaint (“FAC”)

12

repleading their Federal Wiretap Act and unjust enrichment claims, and adding Florida common

13

law and wiretap claims, attaching this time copies of the OARRRs to provide greater detail on the

14

nature of personal data Oracle maintains on people. Dkt. 54.
On June 28, 2023, Oracle moved to dismiss portions of the FAC. Dkt. 63. On October 3,15
162023, the Court (1) dismissed with leave to amend Plaintiffs’ intrusion upon seclusion under17

Florida law, unjust enrichment under California law (on behalf of a United States class), and18

ECPA claims; (2) dismissed without leave to amend Plaintiffs’ intrusion upon seclusion claim

19

under California law (on behalf of a United States class); and (3) maintained Plaintiffs’ intrusion

20

upon seclusion under California law (on behalf of a California subclass), invasion of privacy,

21

CIPA, FSCA, unjust enrichment, declaratory judgment, and injunctive relief claims. Dkt. 77.

22

Plaintiffs moved for leave to file a motion for partial reconsideration, which was denied. Dkts. 85,

23

86.

24

Plaintiffs filed their operative Second Amended Complaint (“SAC”) on November 17,

25

2023. Dkt. 87. On December 22, 2023, Oracle filed its third motion to dismiss, moving only

26

against Plaintiffs’ intrusion upon seclusion claim under Florida law and ECPA claim under the27

Federal Wiretap Act. Dkt. 88. With its motion to dismiss portions of the SAC, Oracle also28

requested that the Court consider documents outside of the Complaint (Dkt. 89), which Plaintiffs
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1

opposed (Dkt. 91).
Four days after Oracle filed its reply brief in support of its third motion to dismiss (Dkt.

2392), Oracle produced spreadsheets reflecting certain data in its records that may have been4

associated with Plaintiffs. Rudolph Decl. ¶ 5. Plaintiffs filed a motion for leave to file a surreply

5

in order to proffer new allegations stemming from this newly-produced information. See Dkt. 94.

6

The Court granted Plaintiffs’ request to file a surreply and allowed Oracle a response. Dkt. 95.

7

Plaintiffs moved to seal portions of the surreply brief, arguing that it contained sensitive personal

8

data and inferences from Oracle’s production. Dkt. 98. Oracle did not oppose the motion to seal,

9

and the Court granted it. Dkt. 114. On April 3, 2024, the Court dismissed with prejudice10

Plaintiffs’ intrusion upon seclusion claim under Florida law and ECPA claim, and ordered Oracle

11

to answer the SAC. Id.

12

Following the Court’s dismissal with prejudice of their ECPA claim, Plaintiffs filed a

13

motion under 28 U.S.C § 1292(b) to certify for interlocutory review the question of whether

14

defendant’s alleged intentional, further tortious use of intercepted data is sufficient to show that15

its interception meets the crime-tort exception to the ECPA’s consent exception. Dkt. 120;

16

Rudolph Decl. ¶ 6. Oracle thereafter filed its opposition to Plaintiffs’ motion to certify for

17interlocutory appeal. Dkt. 122.

18

B.

19

The parties engaged in extensive discovery efforts. The parties met and conferred on the

Discovery

20

terms of the ESI and protective order, as well as the parameters of the proposed forensic

21

inspection protocol to search Plaintiffs’ imaged devices for their internet activity. Rudolph Decl.

22¶ 7. Plaintiffs served—and Oracle responded to—four sets of substantive document requests,

23

comprised of 73 individual requests, along with two sets of interrogatories. Rudolph Decl. ¶ 7.

24

Plaintiffs also took the deposition of an Oracle employee. Id. ¶ 7, 10.

25

The parties contested the scope and relevance of discovery topics implicated in Plaintiffs’26requests as well as Oracle’s pace of production. This led to frequently contentious video meet and27

confer conferences and the exchange of dozens of discovery dispute letters and correspondence.

28

Rudolph Decl. ¶ 8. Throughout this process, Plaintiffs sent several motion to compel letter brief
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1

drafts to Oracle’s counsel, one of which was resolved by compromise between the parties. Id. The

2

parties each filed one motion to compel with Magistrate Judge Westmore, which helped advance3

the pace of discovery. Dkts. 102, 110.
Oracle ultimately produced over 160,000 pages of responsive documents and ESI to

4
5

Plaintiffs, as well as over 283 videos consisting largely of internal discussions of the technical6

operation of Oracle’s data collection and use practices, spanning approximately 173 hours.

7

Rudolph Decl. ¶ 9. To analyze the materials that Oracle produced, Class Counsel had to grasp

8complex ad tech software technologies and processes. Plaintiffs retained technical experts to9ensure meaningful and accurate analysis of these documents which included lines of computer

10

code. Id. Plaintiffs obtained key information about Oracle’s business practices and policies during

11

the relevant period, strategic decisions, agreements, clients, the extent of data Oracle had

12received, and the inferred data resulting from its data processing. Id.
Class Counsel responded to defensive discovery. Id. ¶ 11. Plaintiffs responded to Oracle’s

13
14

document requests (26 requests to Plaintiff Ryan, 27 requests to Plaintiff Katz-Lacabe, and 28

15

requests to Plaintiff Golbeck) and conducted thorough searches for documents and responsive

16

ESI. Id. This required engaging a forensics consultant who imaged Plaintiffs’ personal laptops

17

and cell phones, a process that required extensive safeguards before Plaintiffs could agree to it.

18

Id. Each Plaintiff produced responsive documents and provided detailed responses to Oracle’s

19interrogatories, including supplemental responses at Oracle’s request. Plaintiffs also provided

20

detailed responses to Oracle’s requests for admission. Id.

21

C.

22

After exchanging an initial demand and response, on April 24, 2024, the parties engaged

Mediation

23

in an extended day of in-person mediation with Professor Eric D. Green and Fouad Kurdi of24

Resolutions, LLC. Id. ¶ 13. Prior to the mediation, the parties prepared detailed mediation briefs

25

outlining their positions on the strengths and weaknesses of the case. Id. By the close of the26

mediation session, the parties had exchanged draft term sheets. Id. ¶ 14. During the next two

27

weeks, the parties continued negotiations through emails and phone calls with the mediators. Id.

28

On May 8, 2024, they executed a binding settlement term sheet outlining the basic terms of a
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1

settlement. Id. Over the next ten weeks, the parties negotiated a long-form settlement agreement,

2

including the precise terms and implementation of non-monetary relief. Id. ¶ 15. These arm’s

3length negotiations resulted in the Settlement Agreement, which was executed on July 8, 2024.

4

Id. Exhibit 1 to the Declaration of David T. Rudolph in Support of Preliminary Settlement

5

Approval is a true and correct copy of the parties’ Settlement Agreement.

6

III.

SUMMARY OF SETTLEMENT TERMS

7

A.

8

The Agreement provides for a Settlement Class of all United States residents “whose

9personal information, or data derived from their personal information, was acquired, captured, or10otherwise collected by Oracle Advertising technologies or made available for use or sale by or

11

through Oracle’s ID Graph, Data Marketplace, or any other Oracle Advertising product or service

12from August 19, 2018 to the date of final judgment in the Action.” SA ¶ R.

The Settlement Class and Release13

In exchange for the Settlement’s benefits, members of the Settlement Class will release14

any claims against Oracle and the Released Parties that are based on, or arise from, one or more

15of the same factual predicates or theories of liability as alleged in the operative complaint (Dkt.

1687). SA ¶¶ 10.2, 10.3. The scope of the Release is consistent with this Circuit’s governing

17

standards. See, e.g., Hesse v. Sprint Corp., 598 F.3d 581, 590 (9th Cir. 2010) (“A settlement18

agreement may preclude a party from bringing a . . . released claim [that] is ‘based on the19

identical factual predicate as that underlying the claims in the settled class action.’”) (citation

20

omitted). Pursuant to Rule 23(e)(3), there are no agreements that would modify any term of the21

Settlement Agreement.

22

B.

23

Oracle has agreed to pay $115 million to create a non-reversionary cash Settlement Fund24

for the benefit of Settlement Class Members, who will receive a claims-made pro rata payment

25

from the Net Settlement Fund (i.e., after the deduction of settlement-related costs, including the26

costs of Notice and Settlement administration, any Court-awarded attorneys’ fees and expenses,

27

and Class Representative Service Awards). SA ¶¶ H, O, W, 3.2.5, 3.2.15. The Net Settlement

28

Fund will be distributed among Valid Claimants within 40 days after the Effective Date. Id. ¶3052265.2

The Non-Reversionary Settlement Fund

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1

3.1.2. No portion of the Settlement Fund will revert to Oracle. Id. ¶¶ T, 3.2.1.
Unclaimed funds (if any) will go through a second distribution, if feasible, but if not

2
3

feasible, the residual funds will be distributed cy pres. The parties have initially identified as a4potential cy pres beneficiary the Privacy Rights Clearinghouse (PRC). Id. ¶¶ 3.2.15.4 and5

3.2.15.5.5 The work of this organization has the requisite nexus to this action, the goals of the

6

underlying statutes and claims, and the interests of this Settlement Class. See Lane v. Facebook,7

696 F.3d 811, 821 (9th Cir. 2012). See Rudolph Decl. ¶ 19.

8

C.

9

Oracle must implement meaningful business practices designed to address the alleged10

privacy violations and protect Plaintiffs’ privacy moving forward. There are two aspects of the11

non-monetary relief. One, Oracle has agreed that it will not capture (a) user-generated electronic

12

information within referrer URLs (i.e., the URL of the previously-visited page) associated with a13

website user or (b) any text entered by a user in an online web form other than through Oracle’s

14

own websites. As such, Oracle has agreed it will not engage in the alleged conduct which is

15

central to Plaintiffs’ wiretap claims. SA ¶ 3.5; see Dkt. 77 at 9 (limiting electronic “content” for16

Plaintiffs’ CIPA claim to referrer URLs and data entered into forms). Two, Oracle has agreed to17

implement an audit program to reasonably review customer compliance with contractual

18

consumer privacy obligations. SA ¶ 3.5. Oracle has agreed to comply with these provisions for as

19long as it offers the products and services described in the SAC (Dkt. 87). Id.

Non-Monetary Relief

These significant business practice changes herald a new era in the relationship between

20
21

Oracle and the Settlement Class as further reflected in business changes with a nexus to this22

lawsuit. As described in Plaintiffs’ amended pleadings, Oracle ceased operation of its “AddThis”

23

tracking mechanism only after Plaintiffs’ initial pleadings alleged that Oracle’s collection of data

24

through AddThis violated Plaintiffs’ privacy rights.6 See Dkt. 87, ¶ 56. Plaintiffs had alleged that

25
26
27
28

5

The need for final determination of the proper cy pres recipient(s) is several months in the
future. Once the size of any residual appropriate for cy pres distribution is determined, the parties
will submit their final recommendation of the appropriate recipient for the Court’s approval.
6
Allison Schiff, Oracle To Shut Down AddThis – Completely This Time, AdExchanger (May 25,2023), https://www.adexchanger.com/data-exchanges/oracle-to-shut-down-addthis-completelythis-time/ [https://perma.cc/6LWB-X75U].
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1

AddThis was a highly privacy-invasive data collection mechanism in their initial and amended

2

complaints, and the data collection practices through AddThis partially underlie Plaintiffs’

3

intrusion upon seclusion and unjust enrichment claims. See Dkt. 1, ¶ 41; Dkt. 54, ¶ 56. Oracle

4

shut down AddThis on May 31, 2023—a week after Plaintiffs filed their First Amended5Complaint on May 22, 2023.

6

On June 11, 2024, just over thirty days after committing to the business practice changes

7in the parties’ May 8, 2024 binding term sheet, Oracle’s CEO announced that it would be exiting8

the ad tech business altogether.7 Specifically, Oracle has confirmed that its ad tech products—

9

including Oracle Cloud Data Management Platform (comprising the BlueKai business, including10

the BlueKai “Core Tag” tracking mechanism and associated cookies and pixels, Datalogix, and11

the Data Marketplace); Digital Audiences (including OnRamp, the primary Oracle service

12

utilizing Oracle’s ID Graph); and Cross-Device tracking—will no longer exist as of September

1330, 2024.8 Oracle has also announced that it will automatically delete its customers’ data “once14[its] obligations are met,” and will “end relationships with data providers.”9 Thus, after the15

execution of the Settlement Agreement, Oracle announced it would shut down the business units

16

responsible for virtually all of the conduct that is at issue in this case.

17

While Oracle’s CEO cited falling revenues for its decision, media reports stated that18

“there is a near-universal view that [this decision] also reflects the impact of” “strengthening

19

privacy rules around the world.”10 Plaintiffs believe the filing of this lawsuit may have

20
21
22
23
24
25
26
27
28

7

Tim Cross, Oracle Quietly Exits the Advertising Business, VideoWeek (June 12, 2024),
https://videoweek.com/2024/06/12/oracle-quietly-exits-the-advertising-business/[https://perma.cc/7ECF-FXXB].
8
Oracle Advertising End-of-Life Frequently Asked Questions, Oracle (June 17, 2024),
https://www.oracle.com/contracts/docs/oracle-advertising-end-of-life-faqs.pdf?download=false[https://perma.cc/WFL3-ARU8]; see also Catherine Perloff, Exclusive: Oracle will end all of its
ad products by Sept. 30, Adweek (June 17, 2024),
https://www.adweek.com/programmatic/exclusive-oracle-will-end-all-of-its-ad-products-by-sept30/ [https://perma.cc/GR5N-V4PC].
9
Oracle Advertising End-of-Life Frequently Asked Questions, Oracle at 3 (June 17, 2024), supran. 7.
10Andrew Birmingham and Nadia Cameron, $1.7bn wipeout: Oracle’s adtech exit follows ‘grossmiscalculation’ as industry ‘also rans’ squeezed out by privacy pincer, outgunned by bigger techMi3 (June 17, 2024), https://www.mi-3.com.au/17-06-2024/oracles-ad-tech-retreat-suggestsgross-miscalculation-also-speaks-volumes-about-state [https://perma.cc/H27Q-E7LV].
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1

contributed to its decision.11, 12, 13

2

D.

3

Class Members will be notified through a program implemented by Angeion Group, LLC

4(“Angeion”), a highly experienced third-party administrator. As independently supported by the5

Declaration of Steven Weisbrot in Support of Motion for Preliminary Approval of Class Action

6

Settlement and Direction of Notice under Rule 23(e) (“Weisbrot Decl.”) ¶¶ 18‒36, the proposed

7

Class Notice and notice program meets all applicable standards, as set forth below in Section I.E.

Notice Plan and Settlement Administration Costs

Attorneys’ Fees and Expenses, and Class Representative Service Awards

8

E.

9

Class Counsel will file a motion for an award of reasonable attorneys’ fees and expenses,

10

and service awards for the Class Representatives, at least 50 days prior to the Exclusion and

11

Objection Deadline. The amounts requested (see infra Section I.A.H) will be disclosed in the

12

Class Notice. Rudolph Decl. ¶ 35, Ex. C at Question 10. Any approved attorneys’ fees and13

expenses, and service awards, will be paid out of the Settlement Fund. SA ¶ B, 3.2.5, 8.1. The

14

Settlement is not conditioned upon the Court’s approval of any service award, attorneys’ fees, or

15

expenses, and Oracle may oppose these applications. Id. ¶ 8.3.

16

F.

17

The parties propose Angeion as the Settlement Administrator after a competitive selection

The Proposed Settlement Administrator

18

process. Rudolph Decl. ¶ 28; see infra Section I.D. The settlement administration costs will be

19

paid directly from the Settlement Fund. Rudolph Decl. ¶ 30.

20

LEGAL STANDARD FOR PRELIMINARY APPROVALAt the preliminary approval stage, the Court must determine that it “will likely be able to:2122(i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of judgment

23
24
25
26
27
28

Supra n. 6 (noting this lawsuit “put extra pressure” on Oracle to close its ad business).
Stephanie Liu, Mo Allibhai, and Xiaofeng Wang Oracle Exits the Advertising Business,
Forrester (June 19, 2024), https://www.forrester.com/blogs/oracle-exits-the-advertising-business/[https://perma.cc/35CB-QYU2]. (“In Oracle’s case, consumer privacy awareness manifested as aclass-action lawsuit alleging that Oracle built ‘digital dossiers’ on millions of people without theirconsent. While a judge dismissed some of the claims in the original lawsuit, it is still proceeding
through the legal system and remains unresolved.”)
13
Supra n. 9 (noting that given “the legal baggage of the Datalogix class action lawsuit,” made itnecessary for Oracle to “convince the market its solutions are viable”).
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1

on the proposal.” Fed. R. Civ. P. 23(e)(1)(B). Specifically, in evaluating a proposed settlement,

2

the Court should consider whether “(A) the class representatives and class counsel have3

adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief

4provided for the class is adequate . . . ; and (D) the proposal treats class members equitably

5

relative to each other.” Fed. R. Civ. P. 23(e)(2). Through this analysis, courts are guided by a6

“strong judicial policy that favors settlements, particularly where complex class action litigation7

is concerned.” In re Hyundai and Kia Fuel Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019).

8
9

ARGUMENTI.

The proposed Settlement satisfies the requirements of the Northern District of California’s

10
11

The Settlement Satisfies the Northern District’s Guidance.

Procedural Guidance for Class Action Settlements (“Guidance”).
Guidance 1(a) ‒ (b): Changes to the Settlement Class Definition.

12

A.

13

A class has not yet been certified. The proposed Settlement Class is: “all natural persons

14

residing in the United States whose personal information, or data derived from their personal

15

information, was acquired, captured, or otherwise collected by Oracle Advertising technologies or

16

made available for use or sale by or through ID Graph, Data Marketplace, or any other Oracle

17

Advertising product or service from August 19, 2018 to the date of final judgment in the Action.”18

SA ¶ R. The Settlement Class encompasses the class definitions in the operative SAC, with three19

divergences. First, it adds a temporal restraint on the class definition to ensure that no claims

20

arising after the date of final judgment are released, and aligns with the longest statute of21

limitations of the claims at issue. Second, it is modified to encompass persons from whom Oracle

22“acquired, captured, or otherwise collected” personal data “through ID Graph, Data Marketplace,23

or any other Oracle Advertising product or service,” to reflect Plaintiffs’ current understanding of24

the nature of Oracle’s business activities. Third, Plaintiffs do not seek certification for settlement25

purposes of the four California and Florida subclasses remaining in the SAC, because the26

Settlement encompasses them in a single, nationwide class. Rudolph Decl. ¶ 24; see SAC ¶ 134.

27

Courts routinely approve similar or even more extensive departures from proposed litigation

28

classes. See, e.g., Carlotti v. ASUS Computer Int’l, No. 18-cv-03369, 2019 WL 6134910, at *143052265.2- 10 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 19 of 33

1(N.D. Cal. Nov. 19, 2019) (approving settlement class narrower than class in complaint); In re2

Chrysler-Dodge-Jeep Ecodiesel Mkting, Sales Pracs, and Prods. Liab. Litig., No. 17-md-02777,

32019 WL 536661, at *3(N.D. Cal. Feb. 11, 2019) (approving settlement with “simpler” class4

definition).

5

B.

6

Guidance 1(c): The Settlement Recovery Outweighs the Costs, Risks, andDelay of Trial and Appeal.

The proposed $115 million recovery and non-monetary relief is a substantial recovery,
7even when compared with the potential recovery had Plaintiffs prevailed at trial.

8

Intrusion Upon Seclusion and California Constitutional Privacy. Plaintiffs’ common

9
law and constitutional privacy claims allow for compensatory damages, restitution, punitive
10
damages, nominal damages, and injunctive relief. See, e.g., Judicial Council of California Civil
11
Jury Instructions (2023), CACI No. VF-1800; Restatement (Second) of Torts § 652H (Am. L.
12
Inst. 1977); Rutter Group, CAL. PRAC. GUIDE: CIV. PROC. TRIAL CLAIMS & DEF., Ch.
13
4(IV)-E; Cf. Cummings v. Connell, 402 F.3d 936, 944 (9th Cir. 2005). Calculating class-wide
14
damages under the claims asserted here is an imprecise exercise and would have drawn
15
significant challenges from Oracle. Nevertheless, while difficult to estimate, damages could be
16
substantial given the large number of class members, even when limited to those residing in
17
California and Florida; at minimum, the approximately 40 million members of the proposed
18
California and Florida classes would be entitled to nominal damages of at least one dollar each.
19
20
21
22
23

Violation of the California Invasion of Privacy Act. Plaintiffs’ CIPA claim soughtmonetary “damages for the greater of $5,000 or three times the amount of actual damages.” SAC¶ 210. “[T]he 2017 amendment to section 637.2 clarified that damages are available on a perviolation basis.” Brinkley v. Monterey Fin. Servs., LLC, No. 16-cv-1103, 2020 WL 12991079, at*13 (S.D. Cal. Jan. 17, 2020). Had Plaintiffs’ CIPA claim proceeded to trial, Oracle would have24
been exposed to statutory damages of $5,000 per violation for nearly every person in California.
25
While the potential recovery on such massive aggregated statutory damages would be enormous
26(likely over a billion dollars), it could face challenges reducing recovery. Wakefield v. ViSalus,
27

Inc., 51 F.4th 1109, 1121 (9th Cir. 2022), cert. denied, 143 S. Ct. 1756 (2023) (“[A]ggregated283052265.2- 11 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

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1

statutory damages awards are, in certain extreme circumstances, subject to constitutional due

2

process limitations.”).

3

Violation of the Florida Security of Communications Act. Success of Dr. Golbeck’s

4

FSCA claim could have resulted in “liquidated damages computed at the rate of $100 a day for5each day of violation or $1,000, whichever is higher,” for class members residing in Florida. Fla.

6

Stat. Ann. § 934.10(b). This claim would have also entitled Dr. Golbeck and proposed FSCA

7

Class Members to “reasonable attorney’s fees and other litigation costs reasonably incurred.” Fla.

8

Stat. Ann. § 934.10(d). Therefore, as with the CIPA claim, had Plaintiffs prevailed on their FSCA

9

claim, their potential class recovery would have been substantial (potentially hundreds of millions

10of dollars).
Unjust Enrichment. Both California and Florida law recognize a right to disgorgement of

11
12

ill-gotten profits resulting from unjust enrichment, even where an individual has not suffered a13

corresponding loss. While the scope of Oracle’s profits from the conduct at issue was the subject

14of ongoing discovery, Plaintiffs valued Oracle’s ill-gotten gains from its collection and use of15

their data to be likely in the hundreds of millions of dollars. See SAC ¶ 273, n. 202.

16

Electronic Communications Privacy Act. The ECPA provides that “the court may

17assess as damages whichever is the greater of: (A) the sum of the actual damages suffered by the18plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages

19of whichever is the greater of $100 a day for each day of violation or $10,000.” 18 U.S.C. §202520(c)(2). The Court dismissed Plaintiffs’ nationwide ECPA claim. Plaintiffs had sought

21

interlocutory appeal of this claim, but may have had to wait for a final judgment and then faced22

the uncertainty of a ruling on appeal.
Because Oracle’s exposure in this litigation is substantial, the only certainty for Plaintiffs

23
24

was that Oracle would stage vigorous defenses throughout the litigation. Plaintiffs faced

25

substantial pretrial risks such as whether the Court would grant class certification or enter

26

summary judgment against them. And while the Court maintained Plaintiffs’ claims at the27

pleading stage, it made clear that “some [had] barely [survived].” Dkt. 49 at 23. Trial of course

28

presented the usual risks including whether the Court would allow the presentation of Plaintiffs’
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1

damages models and whether a jury would award the damages sought. Similar uncertainties exist

2

in many privacy class actions.14 And Oracle’s recent announcement that it is shutting down its ad

3tech business—and the associated reductions in staff—may make it difficult to obtain key

4

witnesses for future depositions and for trial. Finally, while Plaintiffs’ claims are based on long-5

standing Constitutional, common law, and statutory rights, the application of those rights to6parties not in privity to the alleged offender, based in part on the mere aggregation of data, is

7completely novel and therefore risky.
With years remaining before any prospect of trial and uncertain, pivotal hurdles yet to8
9come, Plaintiffs faced significant risk. In contrast, the Settlement before the Court provides $115

10

million in a guaranteed, immediate, and substantial cash recovery, plus significant non-monetary11

relief addressing the alleged invasive practices.

12

C.

13

Guidance 1(e)15 ‒ (g): The Settlement Benefits Will Be Equitably Distributed
Through a Simple, Straightforward Settlement Claims Process.

Each Settlement Class Member who timely submits a Valid Claim shall receive the same14
pro rata portion of the Net Settlement Fund. See SA ¶ 3.1. This allocation is inherently fair given
15
that each Settlement Class Member suffered the same injury—having a dossier logged about them16by Oracle. If any funds remain in the Settlement Fund after all valid claims are paid, the parties
17
anticipate a redistribution of the remaining funds to Settlement Class Members unless it is18
economically infeasible to do so. Finally, subject to Court approval, any final balance will be
19

directed in cy pres to PRC’s privacy protection efforts. SA ¶ 3.2.15.5. This ensures that all of the20
money secured by the Settlement will inure to the benefit of the Settlement Class and the privacy
21
interests advanced in this litigation. The funds will never revert to Oracle. The proposed
22
Settlement Administrator advises the parties that based on a variety of factors, including its
23
24
25
26
27
28

See, e.g., In re Google Location Hist. Litig., No. 5:18-CV-05062, 2024 WL 1975462, at *6‒7
(N.D. Cal. May 3, 2024) (approving cy pres monetary award and injunctive relief settlement); In
re Google Inc. Street View Elec. Commc’n. Litig., 21 F.4th 1102, 1115 (9th Cir. 2021) (affirming
approval of settlement providing for injunctive relief and cy pres monetary award); Campbell v.
Facebook Inc., No. 13-CV-05996, 2017 WL 3581179, at *8 (N.D. Cal. Aug. 18, 2017) (granting
final approval of declaratory and injunctive relief settlement), aff’d, 951 F.3d 1106 (9th Cir.
2020); McDonald, et al. v. Kiloo A/S, et al., No. 17-CV-04344, Dkt. 406 (N.D. Cal. Apr. 12,2021) (granting final approval to 16 injunctive relief-only settlements).
15
Pursuant to Guidance 1(d), counsel for Plaintiffs are not aware of any other cases that will beaffected by this Settlement. Rudolph Decl. ¶ 21.
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1

review of outcomes in similar data privacy cases, the estimated claims rate in this matter is likely

2

to be between 1.5% and 2.5%. Weisbrot Decl. ¶¶ 48‒50; see supra Section III.D.

3

D.

4

Before deciding to recommend Angeion as Settlement Administrator (see supra Section

5

III.D), Class Counsel sought bids from three leading class action settlement administration firms

6and notice providers. See Rudolph Decl. ¶ 28. Angeion offered a cost-effective proposal including

7

sophisticated and tailored methods for notice and distribution of payments and a best-in-class

8

approach for reaching class members through a digital media campaign. It will provide these9

services while committing to a hard cap on its fees. See Weisbrot Decl. ¶¶ 18‒36, 59.

Guidance 2: The Proposed Settlement Administrator Should be Appointed.

10

Lieff Cabraser’s engagements with Angeion over the last two years include the following:

11

Guida v. Gaia Inc., No. 1:22-CV-02350 (D. Colo.); Chabak v. Somnia, Inc., No. 7:22-CV-09341

12(S.D.N.Y); Vela et al. v. AMC Networks Inc., No. 1:23-CV-02524 (S.D.N.Y.); Vianu et al. v.

13

AT&T Mobility LLC, No. 19-cv-03602 (N.D. Cal.); and Jenkins v. National Grid USA Service

14

Company Inc., No. 2:15-cv-0121 (E.D.N.Y.). To securely handle potential Settlement Class

15

Member data, Angeion will comply with the Joint Stipulated Protective Order (Dkt. 28),

16

including keeping identities and contact information of potential members of the Settlement Class17

confidential, using them only for purposes of administrating this Settlement. Weisbrot Decl. ¶ 14.

18

Further information regarding Angeion’s procedures for securely handling Class Member data

19

and acceptance of responsibility and maintenance of insurance in case of errors is provided in the20

Weisbrot Declaration. Weisbrot Decl. ¶¶ 13‒17.

21

E.

22

The Court “must direct notice in a reasonable manner to all class members who would be

Guidance 3: The Proposed Notice Plan Should Be Approved.

23bound by the proposal.” Fed. R. Civ. P. 23(e)(1)(B). “Notice is satisfactory if it generally

24

describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to25

investigate and to come forward and be heard.” Churchill Village, L.L.C. v. Gen. Elec., 361 F.3d

26566, 575 (9th Cir. 2004).
The proposed forms of notice here readily meet the Rule 23 standards. They inform Class

27
28

Members, in clear and concise terms, about the nature of this case, the Settlement, their rights,
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1

and includes all applicable requirements set out in paragraph 3 of the Guidelines. See SA, Exs. B

2(Email Notice) and C (Detailed Notice). Notice will be disseminated through a highly robust,3

targeted digital media campaign designed to reach more than 80 percent of the potential

4

Settlement Class. SA ¶ 7.2.4; Weisbrot Decl. ¶ 18‒36. Supplemental notice will also be

5disseminated directly to each potential Settlement Class Member whom Oracle has an available

6

email address; this currently comprises approximately 840 million email addresses for an

7

estimated 220 million class members. Id. ¶ 7.2.3; Weisbrot Decl. ¶¶ 18‒36. A Settlement Website

8

will provide access to relevant case documents such as the Second Amended Complaint; the9Settlement Agreement; the Preliminary Approval Order; any application for attorneys’ fees,

10

expenses, or service awards; any brief filed by the parties in support of the Settlement; and once

11

issued, the Final Approval Order and Final Judgment. Id. ¶ 7.2.1. A toll-free telephone number,

12

email, and physical mailing address will be available for potential Settlement Class Members to

13

contact the Settlement Administrator directly. Id. ¶ 7.2.2. All settlement notice and administrative

14

costs will be paid from the Settlement Fund. Id. ¶ 7.4. The Notice Plan is the best practicable

15

notice under the circumstances, meets due process requirements, and will reach at least 80 percent

16of the potential Settlement Class. Weisbrot Decl. ¶¶ 18‒36.

17

F.

18

Guidance 4 and 5: The Processes for Exclusions from and Objections to theSettlement are Straightforward.

The proposed Notice Plan complies with Rule 23(e)(5) by instructing Settlement Class
19
Members who wish to opt out of or object to the Settlement how to do so. The Notice Plan clearly
20
apprises Settlement Class Members of the (1) deadlines to opt out or exclude themselves from the21
Settlement; (2) method to opt out; and (3) consequence of opting out. See SA, Ex. C (Detailed
22
Notice). Likewise, pursuant to Rule 23(e)(5), the proposed Notice Plan instructs Settlement Class
23
Members of their right to object to the Settlement and the deadline to submit an objection. As
24seen in Exhibits B and C to the Settlement Agreement, the notices make clear that the Court can
25
only approve or deny the Settlement and cannot change the terms of the Settlement.
26
G.

27

Guidance 6: Plaintiffs’ Counsel Will Seek Reasonable Attorneys’ Fees andExpenses.

Settlement Class Counsel will apply for an award of attorneys’ fees based on a percentage

283052265.2- 15 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 24 of 33

1of the common fund, up to the amount of the Ninth Circuit’s benchmark percentage of 25% of the2

Settlement Fund (i.e., up to $28.75 million), plus reimbursement of reasonable out-of-pocket

3

expenses currently totaling approximately $217,000. Rudolph Decl. ¶ 35. Settlement Class

4

Counsel will support its request with a lodestar cross-check. Plaintiffs’ Counsel’s total lodestar,5

through July 17, 2024 (the day before this filing), totals approximately $9,624,251 million for6

approximately 12,902 hours of work. Rudolph Decl. ¶ 35. Settlement Class Counsel will likely

7

incur further lodestar before reporting its final, audited lodestar in the fee motion, but based on8

the current lodestar figure, an award of 25% of the common fund would represent a reasonable9

multiplier of 3. Id. Settlement Class Counsel will detail the work, hours, lodestar, and expenses in

10

their fee and expense motion. Oracle may oppose Settlement Class Counsel’s request for fees and11

expenses. SA ¶ 8.1. The Settlement Agreement provides that Oracle agrees not to appeal this12

Court’s determination of the attorneys’ fee and expense award. Id. The Settlement Agreement

13

provides that final approval of the Settlement is independent of any award of fees and expenses to

14

Settlement Class Counsel. SA ¶ 8.3.

15

H.

16

Guidance 7: Plaintiffs Will Request a Service Award for Class
Representatives.

Plaintiffs will request Service Awards of up to $10,000 to compensate the Settlement
17
Class Representatives for the time and effort they spent pursing the matter on behalf of the18

Settlement Class. Rudolph Decl. ¶ 27. Such awards “are fairly typical in class action cases.”19
Rodriguez v. W. Pub. Corp., 563 F.3d 948, 958 (9th Cir. 2009); see also In re Illumina, Inc. Sec.
20
Litig., No. 3:16-CV-3044, 2021 WL 1017295, at *8 (S.D. Cal. Mar. 17, 2021) (granting $25,000
21

service award); In re Wells Fargo & Co. S’holder Derivative Litig., 445 F. Supp. 3d 508, 534

22(N.D. Cal. 2020) (granting $25,000 service awards to each institutional investor plaintiff). The
23
anticipated service awards do not raise any equitable concerns about the Settlement itself.
24
25

Fleming v. Impax Lab’ys Inc., No. 16-CV-06557, 2021 WL 5447008, at *10 (N.D. Cal. Nov. 22,2021) (service awards “are not per se unreasonable”).

26
I.

27

Guidance 8: The Parties Will Propose Appropriate Cy Pres Recipients.

Pursuant to section 3.3 of the Settlement, the parties will identify potential cy pres28
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1

recipients in the event that any residual funds remaining after the initial distribution of the Net

2

Settlement Fund become too small to make a secondary distribution economically viable. See SA3¶ 3.2.15.4. The parties propose the cy pres recipient described above at Section III.B.

4

J.

5

Guidance 9: The Court Should Schedule a Fairness Hearing and RelatedDates.

The next steps in the settlement approval process are to notify Settlement Class Members
6of the proposed Settlement, then allow Class Members to file comments or objections or to opt
7out, and finally to hold a Fairness Hearing.

8
The parties respectfully request that the Court adopt a schedule that allows for a Final
9
Approval hearing on November 14, 2024. As set forth in the proposed Order, Exhibit D of the10
Settlement Agreement, the parties propose the following general timeline below:
11
12
13

Event

Relevant Provisions of Settlement
Agreement and Parties’ Proposal

14

Deadline for Class Counsel’s Motions for
Attorneys’ Fees, Expenses, and Service
AwardsPer ¶ 5.5 of the Settlement Agreement, at least 50
days prior to Exclusion and Objection Deadline

Notice Date

Per Definitions, ¶ J of the Settlement Agreement,
21 days after issuance of Preliminary Approval
Order

Request for Exclusion (Opt-Out) or
Objection Deadline

Per ¶¶ 5.2, 6.3 of the Settlement Agreement, 49
days after Notice Date

Responses to Objections

Per ¶ 5.6 of the Settlement Agreement, 14 days
after Objection Deadline

Deadline to Submit Claim Form

Per ¶ 3.6 of the Settlement Agreement, 49 days
after Notice Date

Deadline for Motion for Final Approval(estimate of 14 days after Claim Form Deadline)

Fairness Hearing(estimate 7 days after submission of Plaintiffs’
Motion for Final Approval, or as soon thereafter
as is convenient for the Court)

15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Assuming the Court enters an order granting preliminary approval on August 15, 2024,

1
2

the resulting schedule would be as follows:

3
4

Event

Date

Deadline for Class Counsel’s Motions for Attorneys’ Fees,
Expenses, and Service Awards

September 4, 2024

Notice Date

September 5, 2024

Request for Exclusion (Opt-Out) or Objection Deadline

October 24, 2024.

Deadline to Submit Claim Form

October 24, 2024.

10

Responses to Objections

November 7, 2024

11

Deadline for Motion for Final Approval

November 7, 2024

12

Fairness Hearing

November 14, 2024

5
6
7

8
9

13
K.

14

Guidance 10: The Requirements of the Class Action Fairness Act Will Be
Met.

15

The Administrator will serve the notice required by the Class Action Fairness Act, 28

16

U.S.C. § 1715, no later than 10 days after this filing. Id. ¶ 4.2. No other notices to government

17

entities are required or have been provided.

18

L.

Guidance 11: This Outcome Exceeds the Relief Obtained in Comparable Data
Privacy Cases.

19

Pursuant to the Guidelines, Plaintiffs provide information regarding a selection of

20
21
22
23
24
25

outcomes and distributions in comparable data privacy class settlements in a detailed, yet easy-toread chart. See Carlotti, 2019 WL 6134910, *16‒17 (quoting Guidelines ¶ 11); Rudolph Decl., ¶20, Ex. 2. The outcomes obtained in these cases demonstrate that this Settlement compares
favorably to other class settlements alleging consumer privacy violations in that it provides bothsubstantial monetary and non-monetary relief. For example:


26
27
28
3052265.2

Facebook, Inc. Internet Tracking Litig. was a privacy class action brought onbehalf of an estimated 124 million consumers alleging claims arising fromFacebook’s use of tracking cookies on other websites through the Facebook “Like”
button, including federal Wiretap Act claims and common law privacy claims.
Facebook, Inc. Internet Tracking Litig., No. 5:12-md-2314, Dkt. 289, *2‒3 (N.D.
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1Cal. Nov. 10, 2022). The settlement included a $90 million fund to be distributed
via a claims program and Facebook’s agreement to delete certain user data. Id. at
*3‒4.

2
3



In re Google Location History Litig. arose from Google’s tracking of 247.7 million
mobile device users’ location, despite having their “Location History” setting
disabled. In re Google Location History Litig., No. 5:18-CV-05062, Dkt. 367, *2(N.D. Cal. May 3, 2024). The court approved a settlement of $62 million(distributed cy pres) paired with injunctive relief requiring Google to send a
notification to all Google users who have Location History and Web & App
Activity settings enabled (a) explaining how those features collect Location
Information, (b) instructing them how to disable those settings, and (c) directing
them to new web pages. Id. at *3‒4.



TikTok, Inc. Consumer Privacy Litig. alleged invasions of privacy through the
TikTok application by collecting, using, and transmitting users’ data. TikTok, Inc.
Consumer Privacy Litig., No. 1:20-CV-4699, Dkt. 195, *10‒11 (N.D. Ill. Mar. 31,2022). Plaintiffs alleged claims similar to those alleged in this case, including theCalifornia Constitutional Right to Privacy, California UCL, intrusion uponseclusion, and unjust enrichment. Id. at *11. For a nationwide class consisting of
89 million members, the court approved a settlement of $92 million in monetary
relief and injunctive relief requiring that TikTok not collect, store, or transmit thedata at-issue as well as implement privacy compliance trainings. See TikTok, Inc.
Consumer Privacy Litig., No. 1:20-CV-4699, Dkt. 122-1, *12, *14 (N.D. Ill. Feb.
25, 2021).



In re Google Referrer Header Privacy Litigation was a data privacy class action
alleging that Google improperly shared 193 million users’ search queries withthird-party websites and companies. In re Google Referrer Header Privacy
Litigation, No. 5:10-CV-04809, Dkt. 193, *2‒3 (N.D. Cal. Oct. 16, 2023). The
court approved a $23 million settlement paired with injunctive relief where Google
agreed to maintain certain disclosures concerning search inquiries on Google’s
FAQ webpage. Id. at *4.

4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20

The only two privacy class action settlements larger than this one not involving a data21
breach that Plaintiffs are aware of both involved Facebook and had different profiles from this22case. In re: Facebook, Inc. Consumer Privacy User Profile Litig., No. 3:18-md-02843 (N.D. Cal.)
23($750 million common fund settlement) involved a watershed privacy scandal that was the24
subject of congressional hearings and a $5 billion fine by the FTC. In re Facebook, Inc.
25
Consumer Priv. User Profile Litig., No. 3:18-MD-02843, 2023 WL 8443230 (N.D. Cal. Oct. 10,262023). In re: Facebook Biometric Information Privacy Litigation, No. 3:15-CV-03747 (N.D.
27

Cal.) ($650 million common fund settlement) involved Illinois’s uniquely powerful Biometric283052265.2- 19 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

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1

Information Privacy Act, went through multiple rounds of appeals including to the Supreme

2

Court, and was on the eve of trial when it settled. In re Facebook Biometric Info. Priv. Litig., 522

3

F. Supp. 3d 617 (N.D. Cal. 2021). Reviewing the outcomes of comparable data privacy cases

4demonstrates that Plaintiffs have obtained significant monetary relief in comparison to most other5

data privacy cases.

6

II.

7

A.

8
9

The Proposed Settlement is Fair, Reasonable, and Adequate.
The Settlement is the Product of Arm’s Length Negotiations and is Supported
by Experienced Counsel.

This Settlement was reached at arm’s length without any indicia of collusion, including
the absence of a “clear sailing provision.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d

10935, 948 (9th Cir. 2011); Rudolph ¶ 15. It took over eight months of contentious negotiations to11reach the agreement currently before the Court. Courts recognize that the opinion of experienced
12
13

counsel supporting settlement after arm’s length negotiations “is entitled to considerable weight.”
Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff’d, 661 F.2d 939 (9th14
Cir. 1981). Settlement Class Counsel extensively investigated the claims and diligently
15
prosecuted the case in the face of an unwavering defense mounted by Oracle. The parties’16
contentious negotiations included the determined assistance of experienced mediators. See
17
Rudolph Decl. ¶ 13. Villegas v. J.P. Morgan Chase & Co., No. CV 09-00261, 2012 WL 5878390,
18
19

at *6 (N.D. Cal. Nov. 21, 2012) (noting that private mediation “tends to support the conclusionthat the settlement process was not collusive”). The parties remained zealous adversaries

20
throughout negotiations, and Settlement Class Counsel support the settlement as fair, reasonable,
21
and adequate. Rudolph Decl. ¶¶ 13‒21.
22
B.

23

The Stage of the Proceedings and the Discovery Conducted Support
Approval.

24

As discussed above, Settlement Class Counsel engaged in extensive investigation,25

research, and analysis of the Settlement Class’s claims. The parties engaged in over a year and a26

half of discovery, including: serving discovery requests and written responses; meeting and27

conferring; and engaging in discovery motion practice, where necessary. See Rudolph Decl. ¶¶ 7‒28

12. Oracle produced, and Plaintiffs reviewed a substantial portion of more than 160,000 pages of3052265.2- 20 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

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1

responsive documents, as well as over 283 videos, spanning approximately 173 hours. Id. ¶ 9. In

2

addition, Settlement Class Counsel consulted with several technical experts throughout the course

3of the case, deposed an Oracle employee and, after substantial document production, began

4

preparations to depose many more. Id. ¶¶ 3, 9‒10. This discovery allowed Plaintiffs to adequately

5

evaluate the merits of their claims.

6

III.

The Court Will be Able to Certify the Proposed Settlement Class.
Parties seeking class certification for settlement purposes must satisfy the requirements of

7

8Fed. R. Civ. P. 23. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). “[I]f a class has

9

not [yet] been certified, the parties must ensure that the court has a basis for concluding that it

10

likely will be able, after the final hearing, to certify the class.” Fed. R. Civ. P. 23, Adv. Comm.

11

Notes to 2018 Amendment. All the requirements of Rule 23(a) must be met, and at least one of12

the three requirements listed in Rule 23(b). The proposed Settlement Class meets the13

requirements for class certification under Rule 23(a) and Rule 23(b)(3) for settlement purposes.

14

When “[c]onfronted with a request for settlement-only class certification, a district court need not15

inquire whether the case, if tried, would present intractable management problems . . . for the

16

proposal is that there [will] be no trial.” Amchem, 521 U.S. at 620.

17

A.

18

The Class Satisfies Rule 23(a)’s Prerequisites.
1.

Numerosity is satisfied.

The numerosity requirement is satisfied when the class is “so numerous that joinder of all

19
20

members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, Settlement Class Counsel estimates

21

there are likely 220 million Class Members based on public reports. Rudolph Decl. ¶ 25. The

22

numerosity requirement is easily satisfied.

23

2.

Commonality is satisfied.

24

Rule 23(a)(2) requires that there be one or more questions common to the class. See

25

Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) “The common question ‘must be26

of such a nature that it is capable of classwide resolution—which means that determination of its

27

truth or falsity will resolve an issue that is central to the validity of each one of the claims in one

28

stroke.’” Carlotti, 2019 WL 6134910, at *17 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
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Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 30 of 33

1338, 350 (2011)). Plaintiffs readily meet this standard, as the primary proof focuses on Oracle’s

2

acts and practices generally directed toward the class as a whole to determine whether its conduct3

constituted unlawful collection, aggregation, and use of the Settlement Class’s personal data.

4

3.

Typicality is satisfied.

The typicality requirement is satisfied when the representative parties’ claims are “typical5
6of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Under this ‘permissive’ rule,7‘representative claims are “typical” if they are reasonably coextensive with those of absent class8

members; they need not be substantially identical.’” In re Volkswagen “Clean Diesel” Mktg.,

9

Sales Pracs. & Prod. Liab. Litig., No. MDL 2672, 2017 WL 672727, at *13 (N.D. Cal. Feb. 16,

102017) (quoting Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014)). Named Plaintiffs’ claims

11

stem from the same course of conduct and alleged wrongdoing as the Settlement Class they seek12

to represent. Plaintiffs and Settlement Class Members all allegedly had their personal data

13

intercepted, collected, analyzed, and sold without their knowledge or consent. Plaintiffs’ claims

14

are typical because they were subject to the same conduct as the other Settlement Class Members

15

and are alleged to have suffered the same injury as a result.

164.

Adequacy of representation is satisfied.

17

The adequate representation requirement is satisfied when the representative party is able

18

to “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4); see also Fed.

19

R. Civ. P. 23(g). “Courts engage in a dual inquiry to determine adequate representation and ask:

20‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class21

members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on

22behalf of the class?’” Carlotti, 2019 WL 6134910, at *18 (quoting Volkswagen, 2017 WL

23672820, at *7)). Both requirements are satisfied here.

24

Settlement Class Counsel has extensive experience litigating, trying, and settling class25

actions, including consumer data privacy cases. See Rudolph Decl. ¶ 33, Ex. 3 (firm resume).

26

Settlement Class Counsel has vigorously litigated the Action and had sufficient information at27

their disposal before entering into settlement negotiations. With this information, Settlement

28

Class Counsel was able to adequately assess the strengths and weaknesses of Plaintiffs’ case and3052265.2- 22 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

Case 3:22-cv-04792-RS Document 132 Filed 07/18/24 Page 31 of 33

1balance the benefits of settlement against the risks of further litigation. See id. ¶¶ 7‒12, 22‒24.

2Plaintiffs’ interests are aligned with, and are not antagonistic to, the interests of the other3

Settlement Class Members as they both are equally interested in obtaining relief from Oracle’s

4

alleged surveillance and invasion of their privacy, and for ensuring that Oracle reforms its

5business practices. See Hanlon, 150 F.3d at 1021 (adequacy satisfied where “each . . . plaintiff

6

has the same problem”).
Plaintiffs Satisfy Rule 23(b)(3)’s Requirements.

7

B.

8

Rule 23(b)(3) requires the Court to find that (1) “questions of law or fact common to class9

members predominate over any questions affecting only individual members,” and (2) “a class10

action is superior to other available methods for fairly and efficiently adjudicating the11controversy.” See Fed. R. Civ. P. 23(b)(3). “Certification under Rule 23(b)(3) is appropriate

12‘whenever the actual interests of the parties can be served best by settling their differences in a13

single action.’” Carlotti, 2019 WL 6134910, at *18 (quoting Hanlon, 150 F.3d at 1022).

14

1.

Common questions of law predominate over individual issues.

15

Rule 23(b)(3) requires a finding that common issues of law or fact predominate over any

16

issues unique to individual class members. Plaintiffs allege that every Settlement Class Member17

was subjected to the same conduct—invasions of their privacy by Oracle’s alleged interception,

18

collection, analysis, and wrongful use of their personal data without their knowledge or consent.

19

Plaintiffs allege this conduct uniformly injured Plaintiffs’ and the Settlement Class Members’

20

legally protected interests. The overarching questions at issue in this case are common ones that21

can be resolved for all members of the proposed Settlement Class in a single adjudication. See,

22

e.g., In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299, 312 (N.D. Cal. 2018).

23

2.

Class treatment is a superior method of adjudication.

Whether a settlement class action is the superior method for the adjudication of claims

24
25“requires the court to determine whether maintenance of [the] litigation as a class action is26

efficient and whether it is fair.” Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175‒

27

76 (9th Cir. 2010). Specifically, “[a] class action is the superior method for managing litigation if

28

no realistic alternative exists.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234‒35 (9th Cir.
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11996). Furthermore, a class action is superior where, as here, classwide litigation of common

2

issues “reduce[s] litigation costs and promote[s] greater efficiency.” Id. at 1234. Individual3

litigation is not a realistic alternative to a class action due to the size of the Settlement Class and4

the risks of this novel litigation. See Rudolph Decl. ¶¶ 22‒23, 25. The maximum amount of

5

recovery for an individual Settlement Class Member would likely be a fraction of the cost of

6

bringing a lawsuit. See Hanlon, 150 F.3d at 1023 (“There would be less litigation or settlement

7

leverage, significantly reduced resources and no greater prospect for recovery.”). Moreover, the8prosecution of separate actions by individual Settlement Class Members would create the risk of

9inconsistent adjudications, establishing incompatible standards of conduct for Oracle.

10

Accordingly, for settlement purposes, this Court “will likely be able to . . . certify the class for

11

purposes of judgment on the proposal.” Fed. R. Civ. P. 23(e)(1)(B)(ii).

12

C.

13

The Court should appoint the named Plaintiffs as Class Representatives because they have

The Court Should Appoint the Named Plaintiffs as Class Representatives.

14

no conflicts with the Settlement Class and are represented by qualified counsel who will

15

vigorously prosecute the Settlement Class’s interests. Rudolph Decl. ¶¶ 26‒27; In re Online

16

DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015).

17

D.

18

Considering counsel’s collective expertise and experience in handling similar actions, the

The Court Should Appoint Class Counsel as Settlement Class Counsel.

19

resources they have committed to vigorously representing the proposed Class over the last two

20

years, and the result they have achieved, they should be appointed as Settlement Class Counsel

21

for the proposed Settlement Class under Rule 23(g)(3) and confirmed under Rule 23(g)(1).

22

Rudolph Decl. ¶¶ 3‒20.

23

IV.

CONCLUSION

24

Plaintiffs respectfully request that the Court (1) grant preliminary approval of the25

proposed Settlement; (2) appoint Michael Katz-Lacabe and Jennifer Golbeck as interim

26

Settlement Class Representatives; (3) appoint Angeion Group, LLC as Settlement Administrator

27

and direct notice to the Settlement Class through the proposed Notice Plan; (4) appoint Michael

28

Sobol and David Rudolph of Lieff Cabraser as interim Settlement Class Counsel to conduct the3052265.2- 24 -NOTICE OF MOTION AND MOTION FORPRELIMINARY SETTLEMENT APPROVALCASE NO. 3:22-CV-04792-RS

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1

necessary steps in the settlement approval process; (5) schedule a fairness hearing under Rule2

23(e)(2); and enter an order consistent with the proposed order filed herewith.

3

Dated: July 18, 2024

4

Respectfully submitted,/s/ Michael W. Sobol
Michael W. Sobol (SBN 194857)
msobol@lchb.com
David T. Rudolph (SBN 233457)
drudolph@lchb.com
Jallé H. Dafa (SBN 290637)
jdafa@lchb.com
John D. Maher (SBN 316157)
jmaher@lchb.com
Amelia A. Haselkorn (SBN 339633)
ahaselkorn@lchb.com
Nabila Abdallah (SBN 347764)
nabdallah@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN,
LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Attorneys for Plaintiffs and the Class

5
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7

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