NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: FACEBOOK, INC. INTERNET No. 22-16903
TRACKING LITIGATION,
D.C. No. 5:12-md-02314-EJD
------------------------------
PERRIN AIKENS DAVIS; BRIAN K. MEMORANDUM*
LENTZ; CYNTHIA D. QUINN;
MATTHEW J. VICKERY,
Plaintiffs-Appellees,
SARAH FELDMAN; HONDO JAN,
Objectors-Appellants,
v.
META PLATFORMS, INC., FKA
Facebook, Inc.,
Defendant-Appellee.
In re: FACEBOOK, INC. INTERNET No. 22-16904
TRACKING LITIGATION,
D.C. No. 5:12-md-02314-EJD
------------------------------
PERRIN AIKENS DAVIS; BRIAN K.
LENTZ; CYNTHIA D. QUINN;
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Panel
MATTHEW J. VICKERY,
Plaintiffs-Appellees,
v.
ERIC ALAN ISAACSON,
Objector-Appellant,
v.
META PLATFORMS, INC., FKA
Facebook, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted February 7, 2024
San Francisco, California
Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.
Objectors Sarah Feldman, Hondo Jan, and Eric Alan Isaacson (collectively,
the “Objectors”) appeal the district court’s order approving a class-action
settlement between Plaintiffs and Defendant Meta Platforms, Inc., formerly
Facebook, Inc. We have jurisdiction following entry of final judgment under 28
U.S.C. § 1291 to review an objecting class member’s timely appeal from the
district court’s order approving a class-action settlement as to all parties and
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claims. See Allen v. Bedolla, 787 F.3d 1218, 1220 (9th Cir. 2015). We affirm.
1. In 2011, Facebook users began suing Facebook for tracking their
online activities without their consent, stating common law and statutory causes of
action in contract and tort. These lawsuits against Facebook were consolidated in a
multidistrict litigation proceeding. Ultimately, the parties entered into a settlement
agreement under which Facebook agreed to pay $90 million into a settlement fund,
then the seventh-largest amount in a privacy class-action settlement. Facebook
further agreed to search for, collect, sequester, and delete “all cookie data” it
improperly received or collected between April 22, 2010 and September 26, 2011.
Class counsel sought $26.1 million in attorneys’ fees, as well as service awards of
$3,000 to $5,000 for each of the seven named Plaintiffs. Following a fairness
hearing, the district court overruled the Objectors’ objections and granted final
approval of the class-action settlement along with associated fees and awards.
2. A district court must decide after a hearing whether a class-action
settlement is “fair, reasonable, and adequate,” considering the factors set forth in
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998). Lane v. Facebook, Inc.,
696 F.3d 811, 818–19 (9th Cir. 2012) (quoting Fed. R. Civ. P. 23(e)(2)). “Parties
seeking to overturn the settlement approval must make a ‘strong showing’ that the
district court clearly abused its discretion.” Campbell v. Facebook, Inc., 951 F.3d
1106, 1121 (9th Cir. 2020) (citation omitted). The Objectors argue that the district
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court abused its discretion by incorrectly using disgorgement as the measure of
actual damages when the court should have analyzed the settlement by aggregating
statutory damages at $10,000 per violation under the Electronic Communications
Privacy Act (“Wiretap Act”), 18 U.S.C. §§ 2510–2523.
In its final order approving the settlement, the district court applied the
correct legal standard under Federal Rule 23 of Civil Procedure and the Hanlon
factors. With 124 million potentially affected Facebook users in the United States,
the district court properly rejected the $1.24 trillion in statutory damages proposed
by Objectors as an unreasonable baseline that would violate due process. See
Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1121–22 (9th Cir. 2022). The district
court did not clearly abuse its discretion in accepting class counsel’s estimate that
$900 million represented a “best-day-in-court” verdict, and by determining that the
$90-million settlement—in conjunction with injunctive relief benefitting the entire
class—was fair and reasonable. See Rodriguez v. W. Publ’g Corp., 563 F.3d 948,
965 (9th Cir. 2009) (concluding that ten percent of the class’s estimated damages
was a fair and reasonable settlement award). Nor did the district court
impermissibly apply a “presumption of fairness” to the settlement. See Saucillo v.
Peck, 25 F.4th 1118, 1131 (9th Cir. 2022). The district court merely noted that the
“absence of a large number of objections to a proposed class action settlement
raises a strong presumption that the terms . . . are favorable to the class members.”
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Consideration of the class’s reaction to the proposed settlement is one of the
factors the district court should consider in evaluating a settlement proposal. See
Hanlon, 150 F.3d at 1026.
3. The district court did not abuse its discretion in using the percentage-
of-the-fund method in finding the proposed attorneys’ fees of $26.1 million (29%
of the settlement fund) reasonable. The court cited class counsel’s creation of new
law in the Ninth Circuit and its attainment of substantial monetary and injunctive
relief for the class as grounds for the upward departure of four percentage points
above the 25-percent benchmark. See In re Facebook, Inc. Internet Tracking
Litig., 956 F.3d 589 (9th Cir. 2020). The district court also conducted a “cross-
check of the percentage-of-the-fund [method] using the lodestar method” and
found that the requested attorneys’ fee award represents a multiplier of 3.28 from
the post-multidistrict consolidation lodestar. See In re Bluetooth Headset Prods.
Liab. Litig., 654 F.3d 935, 944 (9th Cir. 2011). That is well within the permissible
bounds of this Circuit’s decisions. See Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1051 n.6 (9th Cir. 2002) (noting the range of multipliers applied in most
common fund cases is 1.0 to 4.0). Awarding modest service awards of $3,000 to
$5,000 each to seven named Plaintiffs was also not an abuse of discretion. See In
re Apple Inc. Device Performance Litig., 50 F.4th 769, 785–87 (9th Cir. 2022).
4. Finally, class notice of settlement comported with Rule 23 and
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constitutional due process by “describ[ing] the action and the plaintiffs’ rights in
it,” as well as describing how to participate in or object to settlement. Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Objector Isaacson contends
that the district court erroneously authorized material redactions of Plaintiffs’
complaints and sealed exhibits, but he never moved to unseal the complaints or
exhibits, and he fails to explain why a class representative or absent class member
would need to know this information to evaluate the settlement or “protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4).
AFFIRMED.
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