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United States Court of Appeals for the Ninth Circuit
February 11, 2021, Argued and Submitted, San Francisco, California; December 27, 2021, Filed
BADE, Circuit Judge:
In this consolidated class action lawsuit, plaintiffs alleged, on behalf of an estimated sixty million people, that Google illegally collected their Wi-Fi data through its Street View program. After a decade of litigation, including a complex, three-year forensic investigation to confirm the standing of [*9] the eighteen named plaintiffs, the parties reached a settlement agreement that provided for injunctive relief, cy pres payments to nine Internet privacy advocacy groups, fees for the attorneys, and service awards to class representatives—but no payments to absent class members. The district court approved the proposed settlement, finding that it was not feasible to distribute funds directly to class members given the class size and the technical challenges to verifying class members' claims.
David Lowery, one of two objectors to the settlement proposal, appeals the district court's approval of the settlement and grant of attorneys' fees. He argues that the district court should not have approved the settlement because it was feasible to distribute funds to class members, and that if it truly was not feasible to do so, then the district court should not have certified the class. He also asserts that the settlement violated the First Amendment's prohibition on compelled speech, that the cy pres recipients had improper relationships with the parties and class counsel, that the district court awarded excessive attorneys' fees, and that class counsel and the class representatives breached their fiduciary [*10] duties. We conclude that the district court did not abuse its discretion in approving the settlement, certifying the class, or in its award of attorneys' fees, and that it did not commit legal error by rejecting Lowery's First Amendment argument. We affirm.
In 2007, Google launched Street View, a web-based technology that would eventually provide users with panoramic street-level images from numerous points along roads throughout the world. To obtain the images for Street View, Google deployed a fleet of specially adapted cars ("Street View Vehicles"). As it turned out, however, these vehicles did not simply take photographs; they were also equipped with Wi-Fi antennas and software designed to collect, decode, and analyze various kinds of data commonly transmitted over Wi-Fi networks. The Street View Vehicles collected basic identifying information—such as signal strength, broadcasting channel, data transmission rate, media access control ("MAC") address, and Service Set Identifier ("SSID")—from Wi-Fi networks along the roads they travelled, apparently for the purpose of providing enhanced, "location-aware" services to Street View users.2
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2021 U.S. App. LEXIS 38142 *; 21 F.4th 1102
IN RE GOOGLE INC. STREET VIEW ELECTRONIC COMMUNICATIONS LITIGATION,BENJAMIN JOFFE; LILLA MARIGZA; RICK BENITTI; BERTHA DAVIS; JASON TAYLOR; ERIC MYHRE; JOHN E. REDSTONE; MATTHEW BERLAGE; PATRICK KEYES; KARL H. SCHULZ; JAMES FAIRBANKS; AARON LINSKY; DEAN M. BASTILLA; VICKI VAN VALIN; JEFFREY COLMAN; RUSSELL CARTER; STEPHANIE CARTER; JENNIFER LOCSIN, Plaintiffs-Appellees, DAVID LOWERY, Objector-Appellant, v. GOOGLE, INC., Defendant-Appellee.
Subsequent History: Motion granted by Joffe v. Google, Inc. (In re Google Inc. St. View Elec. Communs. Litig.), 2022 U.S. App. LEXIS 1433 (9th Cir., Jan. 19, 2022)
Prior History: [*1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-md-02184-CRB. Charles R. Breyer, District Judge, Presiding.
cy pres, settlement, class member, district court, recipients, settlement fund, distribute, settlement agreement, funds, class action, awards, parties, attorney's fees, feasible, injunctive relief, provisions, damages, payload, argues, approving, network, third party, privacy, absent class members, indirect benefit, users, collecting, class representative, class certification, fee award
Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Compromise & Settlement, Class Attorneys, Fees, Appellate Review, De Novo Review