Petition for Writ of Certiorari — Eric Alan Isaacson, Petitioner v. Meta Platforms, Inc., fka Facebook, Inc.

Supreme Court briefAug 29, 2024

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No. 23-____

In the

Supreme Court of the United States

ERIC ALAN ISAACSON, PETITIONER,

vs.

META PLATFORMS, INC. (F.K.A. FACEBOOK, INC.);

PERRIN AKINS DAVIS; BRIAN K. LENTZ; CYNTHIA D.

QUINN; MATTHEW J. VICKERY, RYAN UNG; CHI

CHENG; ALICE ROSEN, ET AL., RESPONDENTS

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ERIC ALAN ISAACSON

Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858) 263-9581

ericalanisaacson@icloud.com

Petitioner

QUESTIONS PRESENTED

“Since the decisions in Trustees v. Greenough, 105

U.S. 527 (1882), and Central Railroad & Banking Co.

v. Pettus, 113 U.S. 116 (1885), this Court has recognized consistently that a litigant or a lawyer who

recovers a common fund for the benefit of persons other

than himself or his client is entitled to a reasonable

attorney’s fee from the fund as a whole,” Boeing Co. v.

Van Gemert, 444 U.S. 472, 478 (1980), provided the fee

award is “made with moderation.” Greenough, 105 U.S.

at 536-37. But payments to representative plaintiffs

for their own “personal services” in the case are

“decidedly objectionable,” “illegally made,” id. at 53738, and “unsupported by reason or authority.” Pettus,

113 U.S. at 122. The Eleventh Circuit thus holds that

“Supreme Court precedent prohibits incentive awards”

to reward settling plaintiffs for serving as class

representatives. Johnson v. NPAS Solutions, LLC, 975

F.3d 1244, 1255 (11th Cir.2020). The First, Second,

Seventh, and Ninth Circuits reject that conclusion,

holding that Greenough and Pettus no longer bind

them. Ignoring Greenough’s mandate that fee awards

be “made with moderation,” moreover, lower courts

regularly approve of paying class-action lawyers

several times the unenhanced lodestar that this Court

holds is a presumptively reasonable attorney’s fee in

fee-shifting cases. The questions presented are:

1. May district courts approve payments from

class-action settlement funds to reward and

encourage litigants for service as representative

plaintiffs?

2. May district courts in common-fund cases pay

class-action lawyers multiples of their lodestar,

unconstrained by this Court’s precedents on

reasonable attorney’s fees?

PARTIES TO THE PROCEEDING

Eric Alan Isaacson, the Petitioner here, was an

Objector-Appellant below.

Perrin Akins Davis, Brian K. Lentz, Cynthia D.

Quinn, Matthew J. Vickery, are Respondents here, and

were Named Plaintiffs-Appellees below.

Ryan Ung, Chi Cheng, and Alice Rosen are included

as Respondents before this Court, because the Petition

challenges the approval of payments to them as

representative plaintiffs in related state-court

litigation. Although no formal entries of appearance

were made for them below, Petitioner understands

their interests to have been represented below by

counsel for the Named Plaintiffs-Appellees Davis,

Lentz, Quinn, and Vickery.

Meta Platforms, Inc. (f.k.a. Facebook, Inc.) is a

Respondent here, and was the Defendant-Appellee

below.

Sarah Feldman and Hondo Jan are Respondents

here who, like Isaacson, were Objector-Appellants

below.

Because Isaacson is not a corporation, a corporate

disclosure statement is not required under Supreme

Court Rule 29.6.

RELATED PROCEEDINGS

This case arises from the following proceedings:

In re Facebook Internet Tracking Litigation, No.

5:12-MD-02314-EJD (N.D. Cal.).

In re Facebook Internet Tracking Litigation, Nos. 2216903, 22-16904 (9th Cir.).

iii

The federal class-action settlement approved by the

District Court, and affirmed by the Court of Appeals,

also resolves what the Settlement papers describe as a

“parallel state court action,” Ung, et al. v. Facebook,

Inc., No. 112-cv-217244 (Santa Clara Superior Court,

2012).

No other proceedings are directly related to this case

within the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTION PRESENTED............................................i

PARTIES TO THE PROCEEDING.............................ii

RELATED PROCEEDINGS........................................iii

TABLE OF CONTENTS..............................................iv

TABLE OF AUTHORITIES........................................vi

REPORTS OF THE OPINIONS BELOW....................1

JURISDICTION............................................................2

RULE INVOLVED........................................................2

STATEMENT OF THE CASE......................................2

REASONS FOR GRANTING THE WRIT.................12

I. REVIEW IS NEEDED TO RESOLVE

WHETHER THIS COURT’S FOUNDATIONAL

COMMON-FUND PRECEDENTS STILL

PROHIBIT SERVICE AWARDS............................13

II. CIRCUIT COURTS ARE IGNORNG THIS

COURT’S MANDATE THAT COMMON-FUND

ATTORNEY’S FEES BE AWARDED “WITH

MODERATION”......................................................24

III. THIS CASE PROVIDES AN EXCELLENT

VEHICLE FOR RESOLVING EXTREMELY

IMPORTANT ISSUES AFFECTING CLASS

ACTIONS.................................................................27

CONCLUSION............................................................29

APPENDIX

APPENDIX A –

Opinion of the Ninth Circuit...................................1a

APPENDIX B –

Final Order of the District Court...........................6a

TABLE OF CONTENTS—Continued

Page

APPENDIX C –

Order Denying Feldman & Hondo Petition for

Rehearing...............................................................39a

APPENDIX D –

Order Denying Isaacson Petition for

Rehearing...............................................................40a

APPENDIX E –

Federal Rule of Civil Procedure 23.......................41a

TABLE OF AUTHORITIES

Page

CASES

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975)...........................................14, 25

Amchem Products, Inc. v. Windsor,

521 U.S. 591 (1997).................................................19

In re Apple Inc. Device Performance Litig.,

50 F.4th 769 (9th Cir.2022)....9-10, 11, 17, 19-20, 23

In re Apple Inc. Device Performance Litig.,

2021 WL 1022866 (N.D.Cal. March 17, 2021).......11

Bloomer v. Liberty Mut. Ins. Co.,

445 U.S. 74 (1980)...................................................14

Boeing Co. v. Van Gemert,

444 U.S. 472 (1980)..............................................i, 13

Central Railroad & Banking Co. v. Pettus,

113 U.S. 116 (1885).........i, 2-3, 8-9, 13-17, 20, 23-24

China Agritech Inc. v. Resh,

584 U.S. 732, 747 n.7 (2018)..............................22-24

City of Burlington v. Dague,

505 U.S. 557 (1992)..................................3, 12-13, 24

Comm’r v. McCoy,

484 U.S. 3 (1987).....................................................29

Cook v. Niedert,

142 F.3d 1004 (7th Cir.1998).............................22-23

Crutcher v. Logan,

102 F.2d 612 (5th Cir.1939)....................................14

In re Diet Drugs,

582 F.3d 524 (3d Cir.2009)......................................26

vii

TABLE OF AUTHORITIES—Continued

Page

In re Dry Max Pampers Litig.,

724 F.3d 713 (6th Cir.2013)....................................28

In re Equifax Inc. Customer Data Security

Breach Litig.,

999 F.3d 1247 (11th Cir.2021)..........................17, 22

In re Facebook, Inc. Internet Tracking Litig.,

No. 22-16903, 2024 WL 700985,

2024 U.S. App. LEXIS 3952

(9th Cir. Feb. 21, 2024).............................................1

In re Facebook Internet Tracking Litig.,

No.5:12-MD-02314-EJD, 2022 WL 16902426,

2022 U.S. Dist. LEXIS 205651 (N.D.Cal.

Nov. 10, 2022)............................................................1

In re Facebook Internet Tracking Litig.,

956 F.3d 589 (9th Cir.2020), cert. denied

sub nom. Facebook, Inc. v. Davis, No. 20-727,

141 S.Ct. 1684 (2021)................................................1

Facebook, Inc. v. Davis,

141 S.Ct. 1684 (2021)(mem.).....................................5

In re Facebook Internet Tracking Litig.,

140 F.Supp.3d 922 (N.D.Cal.2015).......................1, 4

In re Facebook Internet Tracking Litig.,

263 F.Supp.3d 836 (N.D.Cal.2017).......................1, 4

In re Facebook Internet Tracking Litig.,

290 F.Supp.3d 916 (N.D.Cal.2017).......................1, 4

Fikes Wholesale, Inc. v. HSBC Bank USA, N.A.,

62 F.4th 704 (2d Cir.2023)......................17-19, 25-26

viii

TABLE OF AUTHORITIES—Continued

Page

Fresno County Employees’ Ret. Ass’n v.

Isaacson/Weaver Fam. Tr.,

925 F.3d 63 (2d Cir.2019)........................................25

Hansberry v. Lee,

311 U.S. 32 (1940)...................................................16

Hyland v. Navient Corp.,

48 F.4th 110 (2d Cir.2022).................................17-18

Johnson v. NPAS Solutions, LLC,

975 F.3d 1244 (11th Cir.2020),

rehearing denied, 43 F.4th 1138

(11th Cir.2022), cert. denied sub nom.

Johnson v. Dickenson, 143 S.Ct. 1745 (2023),

and sub nom. Dickenson v. Johnson,

143 S.Ct. 1746 (2023).................i, 8, 12, 17-19, 21-22

Johnson v. NPAS Solutions,

43 F.4th 1138 (11th Cir.2022)...........................18, 21

Medical & Chiropractic Clinic, Inc. v. Oppenheim,

981 F.3d 983 (11th Cir.2020)............................17, 22

Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson,

501 U.S. 350 (1991)............................................28-29

Melito v. Experian Mktg. Sols., Inc.,

923 F.3d 85 (2d Cir.2019)..................................17-18

Mickens v. Taylor,

535 U.S. 162 (2002).................................................23

Moses v. New York Times Co.,

79 F.4th 235 (2d Cir.2023).....................17, 19-21, 23

Murray v. Grocery Delivery E-Servs. USA Inc.,

55 F.4th 340 (1st Cir.2022)...............................17, 20

TABLE OF AUTHORITIES—Continued

Page

In re Nat’l Collegiate Athletic Ass’n Athletic

Grant-in-Aid Antitrust Litig.,

768 F.App’x 651 (9th Cir.2019)...............................11

In re Online DVD-Rental Antitrust Litig.,

779 F.3d 934 (9th Cir.2015)....................................10

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air,

478 U.S. 546, 565 (1986), supplemented,

483 U.S. 711 (1987).......................................3, 13, 24

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542 (2010)..........................3, 8-9, 12, 24, 26

Scott v. Dart,

99 F.4th 1076 (7th Cir.2024), reh’g denied,

108 F.4th 931 (7th Cir.2024).................17, 20-21, 24

Scott v. Dart,

108 F.4th 931 (7th Cir.2024)...................................21

Shalala v. Illinois Council on Long Term Care,

529 U.S. 1 (2000).....................................................22

Shane Group, Inc. v. Blue Cross Blue Shield,

825 F.3d 299 (6th Cir.2016)...............................27-28

Sheikh v. Tesla, Inc.,

No. 17-cv-02193-BLF, 2018 WL 5794532

(N.D.Cal. Nov. 2, 2018)...........................................11

Smith v. Swormstedt,

57 U.S. (16 How.) 288 (1853)..................................16

Steiner v. Am. Broad. Co.,

248 F.App’x 780 (9th Cir.2007).........................11, 26

TABLE OF AUTHORITIES—Continued

Page

Supreme Tribe of Ben-Hur v. Cauble,

255 U.S. 356 (1921).................................................16

Terrett v. Taylor,

13 U.S. (9 Cranch) 43 (1815)...................................16

Trustees v. Greenough,

105 U.S. 527 (1882).......i, 2, 8-9, 12-16, 19-20, 23-24

U.S. Airways, Inc. v. McCutchen,

569 U.S. 88 (2013)...................................................14

Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002)...........................24, 26

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

396 F.3d 96 (2d Cir.2005)........................................26

West v. Randall,

29 F.Cas. 718 (C.C.D.R.I.1820)(Story, J.)..............16

Wormley v. Wormley,

21 U.S. 421 (1823)(reporter’s note).........................16

STATUTES

15 U.S.C. §15(a)...........................................................25

15 U.S.C.§78j(b)...........................................................28

18 U.SC. §2520(b)(2)-(3)................................................5

18 U.SC. §2520(b)(3)...............................................5, 25

18 U.S.C. §2520(c)(2).....................................................5

28 U.S.C. §1254(1).........................................................1

28 U.S.C. §2072(b).......................................................19

California Penal Code §637.2(a)(1)...............................5

TABLE OF AUTHORITIES—Continued

Page

California Invasion of Privacy Act (“CIPA”).............3-6

Wiretap Act......................................................3-6, 8, 25

RULES

Fed.R.Civ.P. 23...................................... 2, 16, 18-21, 29

Supreme Court Rule 14.1(b)(iii)..................................iii

Supreme Court Rule 29.6.............................................ii

SECONDARY AUTHORITIES

Andrew Blum,

Class Actions’ New Wrinkle: Bonus Awards,

National Law Journal, Oct. 7, 1991, p.1................15

John P. Dawson,

Lawyers and Involuntary Clients: Attorney Fees

from Funds,

87 Harv.L.Rev. 1597 (1974)...............................14-15

Howard M. Downs,

Federal Class Actions: Diminished Protection

for the Class and the Case for Reform,

73 Neb.L.Rev. 646 (1994)........................................15

Theodore Eisenberg & Geoffrey P. Miller,

Incentive Awards to Class Action Plaintiffs:

An Empirical Study,

53 U.C.L.A. L.Rev. 1303 (2006)..............................15

xii

TABLE OF AUTHORITIES—Continued

Page

Thomas E. Willging, Laural L. Hooper & Robert J.

Niemic,

An Empirical Analysis of Rule 23 to Address the

Rulemaking Challenges,

71 N.Y.U. L.Rev. 74 (1996).....................................15

OTHER MATERIALS

Petition for Certiorari, Facebook, Inc. v. Davis,

No. 20-727 (filed Nov. 20, 2020)

[https://perma.cc/KH35-LKGB]................................4

REPORTS OF THE OPINIONS BELOW

The Ninth Circuit’s panel opinion affirming the

District Court’s approval of a common-fund classaction settlement, along with awards of incentive

payments to the representative plaintiffs and commonfund attorney’s fees to their lawyers, is not reported.

It is available on both WestLaw and LEXIS: In re

Facebook, Inc. Internet Tracking Litig., No. 22-16903,

2024 WL 700985, 2024 U.S. App. LEXIS 3952 (9th Cir.

Feb. 21, 2024). It is reproduced at Pet.App. 1a-5a.

The District Court’s opinion approving the classaction settlement and awarding incentive payments to

the representative plaintiffs and common-fund

attorney’s fees to their lawyers is not reported, but is

available on WestLaw and LEXIS: In re Facebook

Internet Tracking Litig., No.5:12-MD-02314-EJD, 2022

WL 16902426, 2022 U.S. Dist. LEXIS 205651

(N.D.Cal. Nov. 10, 2022). It is reproduced at

Pet.App.6a-38a.

Several earlier decisions dealing with motions to

dismiss the class claims, review of which this Petition

does not seek, are reported:

The District Court’s opinions granting motions to

dismiss are reported: In re Facebook Internet Tracking

Litig., 140 F.Supp.3d 922 (N.D.Cal.2015); In re

Facebook Internet Tracking Litig., 263 F.Supp.3d 836

(N.D.Cal.2017); In re Facebook Internet Tracking

Litig., 290 F.Supp.3d 916 (N.D.Cal.2017).

The Ninth Circuit’s opinion affirming in part, and

reversing in part, the District Court’s orders

dismissing the claims is reported as In re Facebook

Internet Tracking Litig., 956 F.3d 589 (9th Cir.2020),

cert. denied sub nom. Facebook, Inc. v. Davis, No. 20727, 141 S.Ct. 1684 (2021).

JURISDICTION

The Court of Appeals issued its decision on February

21, 2024, Pet.App.1a, and on April 1, 2024, denied

timely petitions for rehearing filed by ObjectorAppellants Sarah Feldman and Hondo Jan,

Pet.App.39a, and by Objector Appellant (and

Petitioner herein) Eric Alan Isaacson. Pet.App.40a.

Granting Isaacson’s timely application for an

extension of time, Justice Elena Kagan on June 17,

2024, extended the time to file this Petition to August

29, 2024. See Isaacson v. Meta Platforms, Inc., No.

23A1112.

This Court has jurisdiction under 28 U.S.C.

§1254(1).

RULE INVOLVED

Federal Rule of Civil Procedure 23 is reproduced at

Pet.App.41a.

STATEMENT OF THE CASE

This class action involves Facebook users’ very

substantial invasion-of-privacy claims, which the

Named Plaintiffs settled and released in return for a

common-fund amounting to just 73 cents per Class

Member, from which the Named Plaintiffs then

collected thousands of dollars apiece for their “service”

in procuring such a settlement, and from which their

lawyers were awarded attorney’s fees amounting to

more than three times their reasonable hourly rates.

Petitioner Eric Alan Isaacson is a Class Member

bound by the Settlement, who challenges the Named

Plaintiffs’ service awards as contrary to this Court’s

foundational common-fund precedents, Trustees v.

Greenough, 105 U.S. 527, 537-38 (1882)(“Greenough”),

and Central Railroad & Banking Co. v. Pettus, 113

U.S. 116, 122 (1885)(“Pettus”), which held that

payments rewarding representative plaintiffs for their

own “personal services” in securing a common fund are

both “decidedly objectionable” and “illegally made.”

Greenough, 105 U.S. 537-38; accord Pettus, 113 U.S. at

122 (Greenough rejected such awards “as unsupported

by reason or authority”). Isaacson also challenges

Class Counsel’s attorney’s fee award as contrary both

to Greenough’s mandate that common-fund attorney’s

fees must be awarded “with moderation and a jealous

regard to the rights of those who are interested in the

fund,” Greenough, 105 U.S. at 536-37, and inconsistent

with this Court’s more recent decisions holding, in

statutory

fee-shifting

cases,

that

attorneys’

unenhanced lodestar provides a presumptively

reasonable and sufficient fee. See, e.g., Perdue v. Kenny

A. ex rel. Winn, 559 U.S. 542, 546, 552-53 (2010)

(mandating “a strong presumption that the lodestar is

sufficient”); City of Burlington v. Dague, 505 U.S. 557,

562 (1992)(“[w]e have established a ‘strong

presumption’ that the lodestar represents the

‘reasonable”’ fee”)(quoting Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546,

565 (1986), supplemented, 483 U.S. 711 (1987)).

This matter arises from the settlement of an MDL

class action consolidating cases filed in 2011 on behalf

of Facebook users in the United States, alleging that

between April 22, 2010, and September 26, 2011,

Facebook, Inc. (since renamed Meta Platforms, Inc.)

surreptitiously and unlawfully spied on its users’

Internet browsing even after they logged out of

Facebook, compiling browsing histories of their visits

to third-party websites. The Named Plaintiffs asserted

claims under the federal Wiretap Act, the California

Invasion of Privacy Act (“CIPA”), and other state laws.

In a series of orders, the District Court dismissed all

the claims with prejudice.1

The Ninth Circuit reversed in substantial part.

Given the character of the surreptitious surveillance

alleged, and noting that “[t]he parties do not dispute

that Facebook engaged in these tracking practices

after its users had logged out of Facebook,” the Ninth

Circuit held that the “Plaintiffs adequately stated

claims for relief for invasion of privacy, intrusion upon

seclusion, breach of contract, breach of the implied

covenant of good faith and fair dealing, as well as their

claims under the Wiretap Act, and CIPA.” In re

Facebook, Inc. Internet Tracking Litig., 956 F.3d 589,

596, 601 (9th Cir.2020), cert. denied sub nom.

Facebook, Inc. v. Davis, No. 20-727, 141 S.Ct. 1684

(2021).

Facing massive potential liability, Facebook

petitioned for certiorari, asking this Court to review

and overturn the Ninth Circuit’s decision sustaining

the Wiretap Act claims.2 Facebook explained that, with

their Wiretap Act claims, the “Plaintiffs seek $15

billion in class-wide damages.”3 Under the Wiretap

Act, Facebook told the Court, “Plaintiffs may recover

either ‘the sum of the actual damages suffered by the

plaintiff and any profits made by the violator as a

result of the violation,’ or ‘statutory damages of

whichever is greater of $100 a day for each day of

1 See In re Facebook Internet Tracking Litig., 140 F.Supp.3d

922 (N.D.Cal.2015); In re Facebook Internet Tracking Litig., 263

F.Supp.3d 836 (N.D.Cal.2017); In re Facebook Internet Tracking

Litig., 290 F.Supp. 3d 916 (N.D.Cal.2017).

2 Petition for Certiorari, Facebook, Inc. v. Davis, No. 20-727

(filed Nov. 20, 2020) [https://perma.cc/KH35-LKGB].

3 Id. at 2; see also id. at 12 (“plaintiffs seek more than $15

billion in total damages”).

violation or $10,000.’”4 “And courts may award

‘punitive damages in appropriate cases,’ as well as ‘a

reasonable attorney’s fee.’”5

This placed Facebook in an economic predicament if

this Court would not intervene: “Because of the

Wiretap Act’s draconian penalty scheme—which

authorizes punitive damages and statutory damages of

$100 per day of violation across class members, 18

U.S.C. §2520(c)(2)—claims that survive past the

motion-to-dismiss stage place enormous settlement

pressure on defendants.”6 Facebook did not mention

that under the California Invasion of Privacy Act

(“CIPA”), it also faced liability for statutory damages

of $5,000 per violation.7 Neither did it quantify its

potential liability under the other claims asserted.

This Court denied certiorari, see Facebook, Inc. v.

Davis, 141 S.Ct. 1684 (2021), leaving Facebook with

“enormous settlement pressure” given its Wiretap Act

liability of $100 per day, to each of 124 million class

members, over a Class Period extending more than a

year.

Yet on remand, Facebook managed to negotiate a

Settlement under which the 124 million class

members’ claims would be released for just 73 cents

apiece. The Named Plaintiffs agreed to settle the entire

class action for a common fund of just $90 million—

thereby releasing the 124 million class members’

apparently very substantial claims in return for a

common-fund recovery of about 73 cents per class

4 Id. at 5-6 (quoting 18 U.S.C. §2520(c)(2)).

5 Id. at 6 (quoting 18 U.SC. §2520(b)(2)-(3).

6 Id. at 33 (Facebook’s emphasis).

7 See California Penal Code §637.2(a)(1) (providing for recovery

of “Five thousand dollars ($5,000) per violation”).

member. That is not enough to compensate class

members for the time it takes to read the class notice

and submit a claim, let alone to make them whole for

the serious privacy harms alleged.8

In light of the remarkably small recovery, only

“approximately 1,558,805 total Class Members,” from

the Class of 124 million victims of Facebook’s unlawful

surveillance, bothered to “submit[ ] valid claims by

September 22, 2022.” Pet.App.17a. In the end, only

one-and-a-quarter percent of the Class submitted

claims.9

As a result, the few who filed claims might receive

as much as $39.21 apiece for Facebook’s unlawful

invasions of their privacy rights.10 Even that is but a

tiny fraction of class members’ claims for $100 a day

under the Wiretap Act, or for the alternative statutory

damages $10,000 apiece under the Wiretap Act, and

for $5,000 per violation under the CIPA. Since fewer

than two percent of the Class submitted claims, the

vast majority of the Class—more than 98%—end up

with nothing.

The Named Plaintiffs and their lawyers did

somewhat better under the common-fund Settlement

that they negotiated. The Named Plaintiffs applied for,

and received, awards from the common fund of from

$3,000 to $5,000 apiece, to reward them for their

The District Court’s final order approving the Settlement

notes that “[a]fter deductions from the common fund for fees,

costs, and service awards, approximately $61,124,415.87, will

remain,” which amounts to just under 50 cents apiece for the 124

million class members. Pet.App.10a-11a (Final Order).

9 4-ER-640(DE290:13(lines6-15)) (transcript of Oct. 27, 2022,

final-approval hearing).

10 Pet.App.11a (final order); 4-ER-639(DE290:12(lines14-15))

(transcript of Oct. 27, 2022 final-approval hearing).

“service” in securing just 73 cents apiece for the rest of

the Class, and to encourage others to serve as class

representatives in future class actions.11

Class Counsel, for their part, requested and received

29% of the $90-million common fund as attorney’s fees.

The resulting $26.1 million attorney’s fee award,

compensates them at more than three times their

lodestar, which this Court holds “is presumptively

sufficient” to compensate class-action plaintiffs’

counsel whenever a fee shifting statute mandates that

defendants pay the attorney’s fees of winning

plaintiffs. Perdue v. Kenny A. ex rel. Winn, 559 U.S.

542, 552 (2010); see Pet.App.32a (awarding Class

Counsel a “multiplier of 3.28” times their lodestar). To

be clear: Winning the case would have earned Class

Counsel, under Perdue, their unenhanced lodestar,

representing their hours reasonably billed multiplied

by their reasonable hourly rates. But by settling 124

million class members’ claims for just 73 cents apiece,

Class Counsel were able to collect more than three

times their claimed lodestar.

As a class member who would be bound by the

Settlement, Isaacson vigorously objected before the

District Court, arguing inter alia that the 73-cents-perclass-member recovery was woefully inadequate, that

the incentive awards of $3,000 to $5,000 apiece for the

Named Plaintiffs are unlawful under this Court’s

foundational common-fund precedents, and that Class

The final-approval order directed that “Plaintiffs Perrin

Davis, Dr. Brian Lentz, Michael Vickery and Cynthia Quinn shall

each be paid a service award of $5,000 and State Court Plaintiff

Ryan Ung, Chi Cheng, and Alice Rosen shall each be paid a

service award of $3,000.” Pet.App.7a (Final Order). The District

Court specified that “[t]he class representatives are being

rewarded for their service to the class,” and “to incentivize the

participation of future lead plaintiffs.” Pet.App.37a.

Counsel’s requested common-fund fee award—at more

than three times their lodestar—was excessive.

Citing Trustees v. Greenough, 105 U.S. 527, 537

(1882), and Central Railroad & Banking Co. v. Pettus,

113 U.S. 116, 122 (1885), Isaacson specifically objected

that “‘Supreme Court precedent prohibits incentive

awards.’” Johnson v. NPAS Solutions, LLC, 975 F.3d

1244, 1255 (11th Cir.2020), rehearing denied, 43 F.4th

1138 (11th Cir.2022), cert. denied sub nom. Johnson v.

Dickenson, 143 S.Ct. 1745 (2023), and sub nom.

Dickenson v. Johnson, 143 S.Ct. 1746 (2023).12

Isaacson also objected to the requested attorney’s fee

award. Given the Wiretap Act’s statutory fee-shifting

provision, Class Counsel’s attorney’s fee award on

winning the case would have been limited, absent

extraordinary circumstances, to their lodestar—which

is to say, the sum of their hours reasonably worked

multiplied by their reasonable hourly rates. See

Perdue, 559 U.S. at 546, 552-53.

By negotiating a settlement under which class

members would receive a tiny fraction of a percent of

their realistic claims, Class Counsel could ask for a

common-fund fee award of nearly three times their

reasonable hourly rates. Isaacson explained:

Had Class Counsel proceeded to trial and won,

their compensation would have been limited to

their unenhanced lodestar as presumptively

reasonable compensation for [their] time and

effort on the case. See Perdue v. Kenny A. ex rel.

Winn, 559 U.S. 542, 546 (2010). They should not

receive several times their lodestar for quitting,

12 See 2-ER-073(DE269:6[ECFp12]) (Objection).

and selling the Class out for the tiniest fraction of

recoverable damages.13

Isaacson contended that the presumptively

reasonable attorney’s fee award under Perdue also

should be deemed a reasonable award under

Greenough, which requires courts awarding commonfund attorney’s fees to act with “moderation and a

jealous regard to the rights of those who are interested

in the fund.” Greenough, 105 U.S. at 536.14 A commonfund fee award at more than three times Class

Counsel’s reasonable rates seemed beyond the bounds

of moderation.

But the District Court rejected Isaacson’s objections.

Citing the Ninth Circuit’s published opinion, In re

Apple Inc. Device Performance Litig., 50 F.4th 769, 785

(9th Cir.2022), the District Court rebuffed Isaacson’s

contention that this Court’s precedents bar the

payment of service awards to representative plaintiffs.

The District Court acknowledged that Isaacson

“objects to the service awards as ‘illegal and

inequitable’ in common fund cases, citing to Trs. v.

Greenough, 105 U.S. 527, 537-38 (1882) and Central

R.R. & Banking Co. v. Pettus, 113 U.S. 116, 122

(1885).” Pet.App.36a. “However,” it held,

the Ninth Circuit squarely addressed this

argument in Apple, where the objectors similarly

asserted that such awards conflict with Supreme

Court precedent. In re Apple Inc. Device

Performance Litig., 50 F.4th 769, 785 (9th

Cir.2022). The Ninth Circuit “previously

See 2-ER-076(DE269:9[ECFp15]) (Objection).

14 See 2-ER-077(DE269:10[ECFp20]) (Objection) (quoting

Greenough).

considered this nineteenth century caselaw in the

context of incentive awards and found nothing

discordant,” and concluded that service or

incentive awards are permissible so long as they

are reasonable. Id.

Pet.App.36a (quoting Apple Device, 50 F.3d at 785).

The District Court said it intended the incentive

awards in this case both to compensate the

representative plaintiffs for their service on behalf of

the class, and also to incentivize others to pursue

future class actions:

The class representatives are being rewarded for

their service to the class. In re Online DVD-Rental

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

(“[Service or] incentive awards [ ] are intended to

compensate class representatives for work

undertaken on behalf of a class.”). Moreover,

service or incentive awards may also serve to

incentivize the participation of future lead

plaintiffs. The Court therefore overrules Mr.

Isaacson’s objection.

Pet.App.37a.

The District Court similarly overruled Isaacson’s

objections to the requested attorney’s fee award.

Acknowledging Isaacson’s contention “that the

multiplier on Class Counsel’s lodestar (3.28) is far too

high,” the District Court countered Isaacson’s

argument—grounded in precedents of this Court—

merely by noting that Class Counsel had cited

numerous nonprecedential lower-court decisions

ignoring limitations from this Court’s precedents to

approve large fee multipliers:

Finally, Objector Mr. Isaacson opposed the

request for attorneys’ fees and costs as excessive,

particularly given what Mr. Isaacson perceives as

poor results compared to potentially recoverable

damages. Dkt No. 269 at 9. Mr. Isaacson contends

that the multiplier on Class Counsel’s lodestar

(3.28) is far too high. Id. In response, Class

Counsel refers back to their motion brief where

Counsel cites to a number of cases supporting the

reasonableness of the requested multiplier. See

e.g., Sheikh v. Tesla, Inc., No. 17-cv-02193-BLF,

2018 WL 5794532, at *8 (N.D.Cal. Nov. 2, 2018);

In re Nat’l Collegiate Athletic Ass’n Athletic Grantin-Aid Antitrust Litig., 768 F.App’x 651, 653 (9th

Cir.2019); Steiner v. Am. Broad. Co., 248 F.App’x

780, 783 (9th Cir.2007); In re Apple Inc. Device

Performance Litig., 2021 WL 1022866, at *8. ...

Based on the foregoing, the Court finds an

award of attorneys’ fees in the amount of

$26,100,000 to be fair, reasonable, and adequate

and approves Class Counsel’s request.

Pet.App.33a-34a.

Isaacson timely appealed to the Ninth Circuit, which

affirmed the District Court’s service awards in an

unpublished opinion that also cited and followed Apple

Device Performance:

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).

Pet.App.5a.

The Ninth Circuit held, moreover, that a commonfund attorney’s fee award amounting to more than

three times the attorney’s reasonable hourly rates

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).”

Pet.App.4a-5a.

Isaacson now seeks this Court’s review of the rulings

on incentive awards and attorney’s fees.

REASONS FOR GRANTING THE WRIT

This case presents a clear conflict among the circuits

on the propriety of paying representative plaintiffs

“service awards” or “incentive awards,” from commonfund recoveries, in order to compensate them for

personal service as class representatives—and as an

incentive to encourage others to file and settle further

class actions. The Eleventh Circuit holds that

“Supreme Court precedent prohibits incentive

awards.” NPAS Solutions, 975 F.3d at 1255, while the

First, Second, Seventh, and Ninth Circuits all hold

that this Court’s foundational common-fund decisions

no longer bind them.

The case also presents an opportunity to remind

lower courts that common-fund attorney’s fees are to

be awarded “with moderation and a jealous regard to

the rights of those who are interested in the fund,”

Greenough, 105 U.S. at 536-37, and to bring the lower

courts’ common-fund cases back into line with this

Court’s decisions, such as Perdue, holding that

attorneys’ unenhanced lodestar provides them a

presumptively reasonable and sufficient fee. See, e.g.,

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 55253 (2010)(mandating “a strong presumption that the

lodestar is sufficient”); City of Burlington v. Dague, 505

U.S. 557, 562 (1992)(“[w]e have established a ‘strong

presumption’ that the lodestar represents the

‘reasonable”’ fee”)(quoting Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546,

565 (1986), supplemented, 483 U.S. 711 (1987)).

Both questions are extremely important. The

promise of incentive awards can be used by class

counsel first to recruit representative plaintiffs to file

new class actions, and then to induce those plaintiffs

to agree to settlements that recover little for the class.

Class counsel, for their part, are apt to respond to the

economic incentives produced by this Court’s holdings,

on the one hand, that if they prevail they will be

presumptively limited to their unenhanced lodestar,

and lower courts’ holdings, on the other, that by

settling class claims for remarkably little they can

collect fees amounting to several times their

reasonable lodestar. The current legal regime presents

truly perverse incentives.

REVIEW IS NEEDED TO RESOLVE

WHETHER

THIS

COURT’S

FOUNDATIONAL

COMMON-FUND

PRECEDENTS STILL PROHIBIT SERVICE

AWARDS

“Since the decisions in Trustees v. Greenough, 105

U.S. 527 (1882), and Central Railroad & Banking Co.

v. Pettus, 113 U.S. 116 (1885), this Court has

recognized consistently that a litigant or a lawyer who

recovers a common fund for the benefit of persons other

than himself or his client is entitled to a reasonable

attorney’s fee from the fund as a whole,” Boeing Co. v.

Van Gemert, 444 U.S. 472, 478 (1980), but that that

any payment compensating a representative plaintiff

for “personal services” in prosecuting the litigation is

both “decidedly objectionable” and “illegally made.”

Greenough, 105 U.S. at 537-38. A named plaintiff’s

“claim to be compensated, out of the fund ... for his

personal services” the Court flatly “rejected as

unsupported by reason or authority.” Pettus, 113 U.S.

at 122.; see generally John P. Dawson, Lawyers and

Involuntary Clients: Attorney Fees from Funds, 87

Harv.L.Rev. 1597, 1601-02 (1974).

Greenough and Pettus seemed to be pretty clear.

Professor John P. Dawson explained in his 1974 article

reviewing the common-fund doctrine:

The Court in Greenough ... drew a sharp

distinction .... While [Francis] Vose, the active

litigant, was held to be entitled to a “charge”

for the reasonable value of his lawyers’

services, which the lower court would fix with

a wide discretion, it had no discretion to award

an allowance to Vose himself for his own time

and expenses.

Dawson, Lawyers and Involuntary Clients, 87 Harv. L.

Rev. at 1602.15 For a century lower courts honored the

rule of Greenough and Pettus, that named plaintiffs in

common-fund cases may be reimbursed for reasonable

litigation expenses including attorney’s fees, but not

for their personal service as class representatives. In

Crutcher v. Logan, 102 F.2d 612, 613 (5th Cir.1939),

for example, the Fifth Circuit recognized that under

Greenough and Pettus claimants who are themselves

interested in a common fund can receive “no

compensation for personal services.” And writing in

1974, Professor Dawson observed that Greenough “has

15 For examples of opinions favorably citing Professor Dawson’s

article see: U.S. Airways, Inc. v. McCutchen, 569 U.S. 88, 103

(2013); Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74, 88 n.15

(1980); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

240, 258 (1975).

been followed in this.” Dawson, Lawyers and

Involuntary Clients, 87 Harv. L. Rev. at 1602. He could

find “no case that uses the Greenough doctrine to

reimburse the litigants themselves for their own time,

travel, or personal expenses, however necessary their

efforts may have been to litigation that conferred gains

on others.” Id.

That soon changed. And the circuits now are in clear

conflict concerning whether Greenough and Pettus

nonetheless continue to bar payments from commonfund recoveries to compensate litigants for their

service as representative plaintiffs, and to encourage

others to file even more class actions.

Writing in 2006, Professors Theodore Eisenberg and

Geoffrey Miller noted the utter “lack of specific

authorization for incentive awards in the relevant

statutes or court rules.”16 “Beginning around 1990,

however, awards for representative plaintiffs began to

find readier acceptance,” and soon orders “approving

incentive awards proliferated,” so that “[b]y the turn of

the century, some considered these awards to be

‘routine.’”17 Today they are ubiquitous, their promise

employed by class-action lawyers to recruit

representative plaintiffs who otherwise wouldn’t care

16 Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards

to Class Action Plaintiffs: An Empirical Study, 53 U.C.L.A. L.Rev.

1303, 1312-13 (2006).

17 Id. at 1310-11 & n.21; see also Howard M. Downs, Federal

Class Actions: Diminished Protection for the Class and the Case

for Reform, 73 Neb.L.Rev. 646, 673 (1994)(“Cases in the late 1970s

and early 1980s abhorred such preferences, but recent cases

permit such practices more freely.”)(footnotes omitted); Thomas

E. Willging, Laural L. Hooper & Robert J. Niemic, An Empirical

Analysis of Rule 23 to Address the Rulemaking Challenges, 71

N.Y.U. L. Rev. 74, 101 n.102 (1996); Andrew Blum, Class Actions’

New Wrinkle: Bonus Awards, National Law Journal, Oct. 7, 1991,

p.1.

enough to litigate, and then to induce any who want to

litigate too vigorously to accept settlements that

recover little for the class while rewarding class

counsel with rich fees.

The dramatic change cannot be attributed to

anything in Federal Rule of Civil Procedure 23, which

currently governs class actions, for it says nothing at

all to authorize payments prohibited by Greenough and

Pettus which, although they, preceded Rule 23, were

themselves class actions that produced common-fund

recoveries. Class actions, it is well to remember, were

around long before Rule 23’s promulgation in 1938, let

alone its amendment in 1966.18

Both Greenough and Pettus held that when a

representative plaintiff’s litigation produces a

“common fund” benefiting a larger class, the fund may

be assessed for representative plaintiff’s litigation

expenses and reasonable attorney’s fees. See

Greenough, 105 U.S. at 536-37; Pettus, 113 U.S. at 122.

But Greenough and Pettus also clearly held that any

payment from a common fund compensating

representative plaintiffs for their own “personal

services” on behalf of a class is both “decidedly

objectionable” and “illegally made.” Greenough, 105

U.S. at 537-38. A named plaintiff’s “claim to be

compensated, out of the fund ... for his personal

18 See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 363

(1921)(“Class suits have long been recognized in federal

jurisprudence.”)(citing, e.g., Smith v. Swormstedt, 57 U.S. (16

How.) 288, 303 (1853)); see also Hansberry v. Lee, 311 U.S. 32, 4242 (1940)(collecting citations); Terrett v. Taylor, 13 U.S. (9

Cranch) 43, 43 (1815)(Taylor and other vestrymen of the

Episcopal Church of Alexandria sued “on behalf of themselves and

others, members of the said church, and of the congregation

belonging to the said church’”)(syllabus; emphasis added);

Wormley v. Wormley, 21 U.S. 421, 451, n.v (1823)(reporter’s note);

West v. Randall, 29 F.Cas. 718, 722 (C.C.D.R.I.1820)(Story, J.).

services” was “rejected as unsupported by reason or

authority.” Pettus, 113 U.S. at 122. Neither decision

focused on whether the amount sought was reasonable.

They broadly proscribed payments to representative

plaintiffs, without qualification.

The Eleventh Circuit accordingly holds that

“Supreme Court precedent prohibits incentive

awards.” NPAS Solutions, 975 F.3d at 1255.19 Yet the

First, Second, Seventh, and Ninth Circuit all hold to

the contrary, that this Court’s foundational commonfund decisions have been superseded by the lower

courts’ more recent practice, since the 1990s, of freely

awarding bonuses to representative plaintiffs.

Four circuits are in plain conflict with the Eleventh

Circuit:

Murray v. Grocery Delivery E-Servs. USA Inc.,

55 F.4th 340, 352-53 (1st Cir.2022);

Melito v. Experian Mktg. Sols., Inc., 923 F.3d

85, 96 (2d Cir.2019); Hyland v. Navient Corp., 48

F.4th 110, 123-24 (2d Cir.2022); Fikes Wholesale,

Inc. v. HSBC Bank USA, N.A., 62 F.4th 704, 721

(2d Cir.2023); Moses v. New York Times Co., 79

F.4th 235, 253-56 (2d Cir.2023);

Scott v. Dart, 99 F.4th 1076, 1082, 1084-88 (7th

Cir.2024), reh’g denied, 108 F.4th 931 (7th

Cir.2024);

In re Apple Inc. Device Performance Litig., 50

F.4th 769, 785-87 (9th Cir.2022).

Accord, e.g., In re Equifax Inc. Customer Data Security

Breach Litig., 999 F.3d 1247, 1257 (11th Cir.2021)(“such awards

are prohibited”); Medical & Chiropractic Clinic, Inc. v.

Oppenheim, 981 F.3d 983, 994 n.4 (11th Cir.2020)(“service awards

are foreclosed by Supreme Court precedent”).

These decisions typically note controversy

surrounding the Eleventh Circuit’s decision in NPAS

Solutions, which was accompanied by Judge Beverly

Martin’s vigorous dissent. See NPAS Solutions, 975

F.4th at 1264-1269. When it took the better part of two

years for the court to deny en banc rehearing,

moreover, the order was accompanied by a further

dissent authored by Judge Jill Pryor and joined by

Judges Charles R. Wilson, Adalberto Jordan, and

Robin S. Rosenbaum. See Johnson v. NPAS Solutions,

43 F.4th 1138, 1139-53 (11th Cir.2022)(Jill Pryor,

Cir.J., dissenting from denial of en banc rehearing).

The Second Circuit nonetheless acknowledged in

Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62

F.4th 704, 721 (2d Cir.2023), that “[s]ervice awards are

likely impermissible under Supreme Court precedent.”

The Second Circuit declared, however, that it would

adhere to its own precedents allowing incentive

awards—even though they conflict with this Court’s

foundational

common-fund

decisions—because

“practice and usage seem to have superseded

Greenough (if that is possible).” Fikes Wholesale, 62

F.4th at 721. In a concurring opinion the Fikes

Wholesale panel opinion’s author, Judge Dennis

Jacobs, explained that the panel could not follow the

Eleventh Circuit’s “thorough and well-reasoned

opinion” in NPAS Solutions, because the Second

Circuit “has twice come out the opposite way,” first in

Melito v. Experian Marketing Solutions, 923 F.3d 85,

96 (2d Cir.2019), which contained no real analysis, and

then in Hyland v. Navient Corp., 48 F.4th 110, 124 (2d

Cir.2022), which “over-read Melito to hold that ‘Rule 23

does not per se prohibit service awards.’” Fikes

Wholesale, 62 F.4th at 729 (Jacobs, Cir.J., concurring).

As a consequence of Melito and Hyland, Judge Jacobs

wrote, “we now find ourselves on the wrong side of a

circuit split.” Id.

The Second Circuit subsequently asserted, in Moses

v. New York Times Co., 79 F.4th 235, 254-55 (2d

Cir.2023), that this Court’s holdings in “Greenough and

Pettus have been superseded, not merely by practice

and usage” in the lower courts, “but by Rule 23, which

creates a much broader and more muscular class

action device than the common law predecessor that

spawned nineteenth-century precedents.” Moses, 79

F.4th at 254-55. According to Moses, this Court’s

common-fund

precedents—explicitly

prohibiting

payments to compensate litigants for their service as

representative plaintiffs—were implicitly overruled by

Federal Rule of Civil Procedure 23 (which says nothing

at all on the subject). Moses did not explain when or

how Rule 23 created a claim for representative

plaintiffs to be compensated from a common fund

recovery—let alone how it might be reconciled with the

Rules Enabling Act’s provision that “[s]uch rules shall

not abridge, enlarge or modify any substantive right.”

28 U.S.C. §2072(b); see Amchem Products, Inc. v.

Windsor, 521 U.S. 591, 612-13 (1997).

Justified or not, the First, and Seventh, and Ninth

Circuits all have joined the Second Circuit in

dismissing the continuing relevance of this Court’s

foundational common-fund class-action decisions.

Most pertinent for present purposes—since the

decision controlled the result below here—the Ninth

Circuit in Apple Device specifically rejected the

Eleventh Circuit’s conclusion “that Greenough and

Pettus prohibit any incentive award to class

representatives.” Apple Device, 50 F.4th at 785 n.13

(9th Cir.2022)(citing NPAS Solutions, 975 F.3d at

1255, with disapproval).

Rejecting contentions “that our twenty-first century

precedent allowing such awards conflicts with

Supreme Court precedent from the nineteenth

century,” the Ninth Circuit held that “we have

previously considered this nineteenth century caselaw

in the context of incentive awards and found nothing

discordant.” Apple Device, 50 F.4th at 785. Where it

had done this the Ninth Circuit did not say. In fact, no

reported decision of the Ninth Circuit had ever

reconciled its relatively recent practice of approving

incentive awards with the holdings of either

Greenough or Pettus. The Ninth Circuit in Apple Device

nonetheless emphatically rejected what it described as

the Eleventh Circuit’s “opposite conclusion,” in NPAS

Solutions, “that Greenough and Pettus prohibit any

incentive award to class representatives.” Apple

Device, 50 F.3d at 785 n.13.

So did the First Circuit in Murray, which dismissed

this Court’s Greenough and Pettus decisions as “latenineteenth-century creditor lawsuits” that, though

litigated by bondholders as class actions, cannot be

deemed to control “modern-day class actions under

Rule 23.” Murray, 55 F.4th at 352. The First Circuit’s

opinion identifies nothing in Rule 23 that purports to

authorize the incentive awards of the past several

decades.

Most recently, the Seventh Circuit in Scott v. Dart,

99 F.4th 1076, 1084-88, reh’g denied, 108 F.4th 931,

932 (7th Cir.2024), also declined to follow the Eleventh

Circuit—in a decision holding that a named plaintiff

who after a denial of class certification had settled his

individual claim for $7,500 should nevertheless be able

pursue claims on behalf of a class on remand, with a

potential incentive award giving him the stake in the

case required by Article III. The Seventh Circuit

endorsed the view expressed in Moses: “As the Second

Circuit recently explained, ‘Greenough and Pettus have

been superseded, not merely by practice and usage, but

by Rule 23, which creates a much broader and more

muscular class action device than the common law

predecessor

that

spawned

nineteenth-century

precedents.’” Scott v. Dart, 99 F.4th at 1085 (quoting

Moses, 79 F.4th at 254-55).

Dissenting in other respects, Judge Kirsh observed

that the circuits will remain in conflict on incentive

awards no matter what the Seventh Circuit does,

adding that “‘[u]nless our circuit is an outlier, ‘it makes

little sense for us to jump from one side of the circuit

split to the other.’” Scott v. Dart, 99 F.4th at 1093-94

(Kirsch, dissenting) (citation omitted). Judge

Easterbrook’s opinion on denial of en banc rehearing

said he “agree[d] with that view and therefore have not

called for a vote on the petition for rehearing en banc.”

Scott v. Dart, 108 F.4th 931, 932 (7th Cir.2024).

Whatever the Seventh Circuit might do, Judge

Easterbrook observed, “[t]he Supreme Court must

sooner or later resolve this conflict.” Id. The Seventh

Circuit clearly has no intention of revisiting the issue

itself.

This Court’s review is needed now to resolve this

already clear and deeply embedded conflict among the

circuits. The Eleventh Circuit adhered to its

September 2020 NPAS Solutions holding despite

Judge Jill Pryor’s lengthy August 2022 dissent from

denial of en banc rehearing, which itself concludes that

“it will be up to the Supreme Court to overrule or

clarify Greenough and Pettus.” Johnson v. NPAS

Solutions, LLC, 43 F.4th 1138, 1139-53 (11th

Cir.2022)(Jill Pryor, Cir.J., joined by Wilson, Jordan,

and Rosenbaum, Cir.JJ., dissenting from denial of en

banc rehearing). That “Supreme Court precedent

prohibits incentive awards” is well-settled Eleventh

Circuit law. NPAS Solutions, 975 F.3d at 1255; accord,

e.g., Equifax, 999 F.3d at 1257 (“such awards are

prohibited”); Oppenheim, 981 F.3d at 994 n.4 (11th

Cir.2020)(“service awards are foreclosed by Supreme

Court precedent”).

The contrary position of the First, Second, Seventh,

and Ninth Circuits also is settled. They all reject the

Eleventh Circuit’s conclusion that Greenough and

Pettus bar incentive awards compensating named

plaintiffs for personal service as class representatives.

Only this Court can resolve the conflict.

The need for this Court’s immediate review is

intensified, moreover, by a footnote of passing dictum

in in China Agritech Inc. v. Resh, 584 U.S. 732, 747 n.7

(2018), an opinion on American Pipe tolling that cites

a 1998 Seventh Circuit opinion affirming an incentive

award in order to illustrate representative plaintiffs’

motives for taking charge of class-action lawsuits that

they otherwise might not care about. The footnote said:

The class representative might receive a share

of class recovery above and beyond her

individual claim. See, e.g., Cook v. Niedert, 142

F.3d 1004, 1016 (C.A.7 1998)(affirming class

representative’s $25,000 incentive award).

China Agritech, 138 S.Ct. at 1811 n.7.

China Agritech can hardly be taken as a decision

that considered and overruled the doctrine of

Greenough and Pettus, which it does not even cite, let

alone discuss. “This Court does not normally overturn,

or so dramatically limit, earlier authority sub silentio.”

Shalala v. Illinois Council on Long Term Care, 529

U.S. 1, 18 (2000). “The notion that [this Court] created

a new rule sub silentio—and in a case where certiorari

had been granted on an entirely different question, and

the parties had neither briefed nor argued the ...

issue—is implausible.” Mickens v. Taylor, 535 U.S.

162, 172 (2002).

Yet lower courts are now citing China Agritech to

justify incentive awards. The Ninth Circuit in Apple

Devise, for example, observed that

the Supreme Court recently acknowledged

that “[a] class representative might receive a

share of class recovery above and beyond her

individual claim” through an incentive award,

China Agritech, Inc. v. Resh, __U.S.__, 138

S.Ct. 1800, 1811 n.7 123 (2018). Nonetheless,

the Feldman objectors contend that our

twenty-first century precedent allowing such

awards conflicts with Supreme Court

precedent from the nineteenth century—

Trustees v. Greenough, 105 U.S. 527 (1881),

and Central Railroad & Banking Co. v. Pettus,

113 U.S. 116 (1885).

Apple Device Performance Litig., 50 F.4th at 785

(footnote omitted). The Ninth Circuit seems to think

that China Agritech has overruled Greenough and

Pettus.

A panel of the Second Circuit similarly rationalized

that court’s approval of incentive awards by asserting

that “the Supreme Court appears to have left

Greenough and Pettus in the rear view,” when “without

reference to either case, the Supreme Court

acknowledged that a class representative ‘might

receive a share of class recovery above and beyond her

individual claim.’” Moses, 79 F.4th at 255 (quoting

China Agritech, Inc. v. Resh, 584 U.S. 732, 747 n.7

(2018)(citing Cook v. Niedert, 142 F.3d 1004, 1016 (7th

Cir.1998)). And the Seventh Circuit made similar use

of China Agritech’s footnote in Scott v. Dart, 99 F.4th

at 1087.

It should be this Court’s exclusive prerogative to

decide whether to overrule, reaffirm, or modify

Greenough and Pettus. If it does not act swiftly, the

lower Courts will conclude that it has indeed

abandoned its leading common-fund precedents.

II.

CIRCUIT COURTS ARE IGNORING THIS

COURT’S MANDATE THAT COMMONFUND ATTORNEY’S FEES BE AWARDED

“WITH MODERATION”

This Court’s review is needed for the further reason

that lower courts are systematically ignoring both

Greenough’s mandate that common-fund attorney’s fee

are awards are to be “made with moderation and a

jealous regard to the rights of those who are interested

in the fund,” Greenough, 105 U.S. at 536-37, and this

Court’s more recent decisions holding, in statutory feeshifting cases, that attorneys’ unenhanced lodestar

provides a presumptively reasonable and sufficient fee.

See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

546, 552-53 (2010)(mandating “a strong presumption

that the lodestar is sufficient”); City of Burlington v.

Dague, 505 U.S. 557, 562 (1992)(“[w]e have established

a ‘strong presumption’ that the lodestar represents the

‘reasonable”’ fee”)(quoting Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546,

565 (1986), supplemented, 483 U.S. 711 (1987)).

The circuit courts, on the other hand, insist that this

Court’s rule generally proscribing “multipliers in

statutory fee cases does not apply to common fund

cases.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051

(9th Cir. 2002)(approving fee award of 3.65 times class

counsel’s lodestar).

The Second Circuit’s decision in Fikes Wholesale, for

example, involved the settlement of a class action

asserting antitrust claims subject to the antitrust law’s

mandatory fee-shifting had the claims only been

proved.20 But the lawyers would have been

presumptively limited, under Perdue, to their

unenhanced lodestar had they actually won the case

and subjected the defendants to liability for their

attorney’s fees. So they settled—and got paid a lot

more for their time than they could have by winning

the case. The Second Circuit justified a 2.45 multiplier

of the class counsel’s lodestar, explaining that

whenever this Court’s decisions concerning reasonable

“‘statutory fees and the common-fund doctrine collide,

the common-fund doctrine operates autonomously

from fee-shifting principles.’” Fikes Wholesale, 62 F.4th

at 727 (quoting Fresno County Employees’ Ret. Ass’n v.

Isaacson/Weaver Fam. Tr., 925 F.3d 63, 69 (2d

Cir.2019)).

This case is a perfect example of the problem. Had

Class Counsel succeeded in proving the Wiretap Act

claims, imposing liability of $100 a day, Facebook

would have been liable to pay “a reasonable attorney’s

fee.” 18 U.SC. §2520(b)(3). Under this Court’s decisions

defining “a reasonable attorney’s fee” under feeshifting statutes, Class Counsel’s unenhanced lodestar

would have been the presumptively reasonable fee,

absent rare circumstances wholly sufficient to attract

20 “Under the antitrust laws ... allowance of attorneys’ fees to a

plaintiff awarded treble damages is mandatory.” Alyeska Pipeline

Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 261 & n.34 (1975).

Indeed: “Any person who shall be injured in his business or

property by reason of anything forbidden in the antitrust laws

may sue therefor ... and shall recover threefold the damages by

him sustained, and the cost of suit, including a reasonable

attorney’s fee.” 15 U.S.C. §15(a) (emphasis added).

and compensate competent counsel. See Perdue, 505

U.S. at 546, 552-53. Yet by throwing in the towel, and

settling for a common fund amounting to just 73 cents

per class member, Class Counsel were able to seek—

and indeed they obtained—a fee award of more than

three times their claimed lodestar. This, according to

the Ninth Circuit, was

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).

Pet.App.4a-5a.

Why would lawyers bother to prove cases, if settling

claims for a fraction of their worth gets the lawyers

paid several times more than they would receive by

litigating to win? Large multipliers are rampant in

attorney’s fee awards from common-fund settlements.

See, e.g., Fikes Wholesale, 62 F.4th at 724 (multiplier

of 2.45); In re Diet Drugs, 582 F.3d 524, 545 n.42 (3d

Cir.2009)(“Whether the multiplier is 2.6, 3.4, or

somewhere in that neighborhood, it is not

problematically high.”); Vizcaino, 290 F.3d at 1050-51

& n.6 (awarding a 3.65 multiplier from $96.9-million

fund); Steiner v. Am. B’casting Co., 248 F.App’x 780,

783 (9th Cir.2007)(holding a multiplier of 6.85 “falls

well within the range of multipliers that courts have

allowed”); Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

396 F.3d 96, 123 (2d Cir.2005)(approving “a multiplier

of 3.5” times lodestar in an antitrust class action).

No wonder so many class actions are filed, and

settled for relatively little—since doing so ensures that

the lawyers will make far more money than they could

by actually prosecuting cases to maximize the class’s

recovery.

The conflicts inherent in class-action litigation are

exacerbated when class-action lawyers can promote

their own personal interest in settling cheaply by using

the promise of incentive awards to recruit

representative plaintiffs who really do not care, with

the objective of entering settlements that recover

rather little for ordinary class members, but

substantial incentive awards to reward the

representative plaintiffs who will agree to the poor

settlements.

III.

THIS CASE PROVIDES AN EXCELLENT

VEHICLE FOR RESOLVING EXTREMELY

IMPORTANT ISSUES AFFECTING CLASS

ACTIONS

The questions presented are extraordinarily

important. Incentive awards have come to affect most

class-action settlements—precisely because classaction plaintiffs’ lawyers find them such an attractive

means of obtaining and manipulating compliant

representative plaintiffs. Litigation that Congress

sought to encourage by providing for fee-shifting is

instead cut short when class-action lawyers induce the

representative plaintiffs to settle cheaply—so that the

lawyers may receive multiples of their lodestars,

rather than an unenhanced lodestar award given to

those who litigate to win. The combination of incentive

awards, and excessive common-fund fee awards,

undermines the very integrity of class-action

litigation—and frustrates Congressional purpose in

providing for fee shifting in the first place.

The Sixth Circuit has warned that incentive awards

to representative plaintiffs provide “‘a disincentive for

the [named-plaintiff] class members to care about the

adequacy of relief afforded unnamed class members[.]’”

Shane Group, Inc. v. Blue Cross Blue Shield, 825 F.3d

299, 311 (6th Cir.2016)(quoting In re Dry Max Pampers

Litig., 724 F.3d 713, 722 (6th Cir.2013)(court’s

emphasis)). Yet despite their corrosive effect on Named

Plaintiffs’

ability

provide

unconflicted

representation, incentive awards now affect the great

majority of class-action settlements. And class-action

lawyers are wont to settle claims cheaply in return for

red-carpet treatment on fees, like that received in this

case.

The fact that the Ninth Circuit’s opinion is

unpublished ought not dissuade the Court from

granting certiorari to resolve the issues presented.

Where, as here, an unpublished opinion follows a

published precedent of the same circuit that conflicts

with the law of another circuit, it presents a viable

vehicle for resolving the pre-existing precedential

conflict.

In Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350, 354 (1991), for example, this

Court granted certiorari to review an unpublished

disposition of the Ninth Circuit that followed existing

Ninth Circuit precedent applying state-law limitations

periods to federal securities-fraud claims under §10(b)

of the Securities Exchange Act of 1934. This Court

explained that “[i]n its unpublished opinion” the Ninth

Circuit had

selected the 2-year Oregon limitations period. In

so doing, it implicitly rejected petitioner’s

argument that a federal limitations period should

apply to Rule 10b–5 claims. ... In view of the

divergence of opinion among the Circuits

regarding the proper limitations period for Rule

10b–5 claims, we granted certiorari to address

this important issue.

Lampf, 501 U.S. at 354. The Ninth Circuit’s

unpublished disposition that “implicitly” decided a

question in line with existing Ninth Circuit precedent

provided an excellent avenue to resolving the existing

conflict among the circuits. See id. at 354 & n.1; cf.

Comm’r v. McCoy, 484 U.S. 3, 7 (1987)(granting

certiorari to summarily reverse an unpublished order

of the Sixth Circuit, explaining that “the fact that the

Court of Appeals' order under challenge here is

unpublished carries no weight in our decision to review

the case. The Court of Appeals exceeded its jurisdiction

regardless of nonpublication and regardless of any

assumed lack of precedential effect of a ruling that is

unpublished.”

CONCLUSION

The circuits are in conflict on the question of

whether this Court’s foundational common-fund

precedents

control

common-fund

class-action

settlements approved under Rule 23. The question

implicates this Court’s sole prerogative to reconsider or

overrule its own decisions. It also implicates the

integrity of class-action litigation, given incentive

awards’ tendency to seriously undermine class

representatives’ ability to adequately represent absent

class members’ interests. And the case provides an

opportunity to require common-fund attorney’s fees be

awarded with moderation, and in line with the

reasonable fees that plaintiffs’ lawyers would be paid

under fee-shifting statutes if they actually litigated to

win.

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ERIC ALAN ISAACSON

Pro Se Counsel of Record

LAW OFFICE OF

ERIC ALAN ISAACSON

6580 Avenida Mirola

La Jolla, CA 92037-6231

Telephone: (858) 263-9581

ericalanisaacson@icloud.com

August 29, 2024

APPENDIX

APPENDIX A –

Opinion of the Ninth Circuit...................................1a

APPENDIX B –

Final Order of the District Court...........................6a

APPENDIX C –

Order Denying Feldman & Hondo Petition for

Rehearing...............................................................39a

APPENDIX D –

Order Denying Isaacson Petition for

Rehearing...............................................................40a

APPENDIX E –

Federal Rule of Civil Procedure 23.......................41a

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 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 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.” 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-thefund [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 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.

APPENDIX B

UNITED STATES DISTRICT COURT,”

NORTHERN DISTRICT OF CALIFORNIA

IN RE FACEBOOK

LITIGATION

INTERNET

TRACKING

Case No. 5:12-md-02314-EJD

ORDER GRANTING MOTION FOR FINAL

APPROVAL OF CLASS ACTION SETTLEMENT;

GRANTING MOTION FOR ATTORNEYS' FEES,

EXPENSES,

AND

SERVICE

AWARDS;

JUDGMENT

Re: Dkt. Nos. 254, 256

EDWARD J. DAVILA, United States District Judge

The Court previously granted a motion for

preliminary approval of the Class Action Settlement

between Plaintiffs and Defendant Meta Platforms,

Inc., formerly Facebook, Inc., (“Defendant”) on March

31, 2022. See Order Granting Mot. for Class

Certification and Prelim. Approval of Class Action

Settlement, Dkt. No. 241. As directed by the Court's

preliminary approval order, Plaintiffs filed their

motion for attorneys’ fees, costs, and service awards on

August 23, 2022. Dkt. No. 256. Thereafter, Plaintiffs

filed their motion for final settlement approval on

August 23, 2022. Dkt. No. 254. The Court held a

hearing and took arguments from the parties and from

the following objectors: plaintiffs in the Klein litigation

appearing through counsel, Mr. Eric Alan Isaacson

appearing on his own behalf, and Ms. Sarah Feldman

and Mr. Cameron Jan appearing through counsel on

October 27, 2022. See Dkt. No. 282.

Having considered the motion briefing, the terms of

the Settlement Agreement, the objections and

response thereto, the arguments of counsel, and the

other matters on file in this action, the Court

GRANTS the motion for final approval. The Court

finds the settlement fair, adequate, and reasonable.

The provisional appointments of the class

representatives and class counsel are confirmed.

The motion for attorneys' fees, expenses, and service

Awards is GRANTED. The Court ORDERS that class

counsel shall be paid $26,100,000 in attorneys' fees,

$393,048.87

litigation

costs,

and

class

representatives Plaintiffs Perrin Davis, Dr. Brian

Lentz, Michael Vickery and Cynthia Quinn shall each

be paid a service award of $5,000 and State Court

Plaintiff Ryan Ung, Chi Cheng, and Alice Rosen shall

each be paid a service award of $3,000.

I. BACKGROUND

A. Procedural History

Over a decade ago, on September 30, 2011, Class

Members Perrin Aikens Davis, Petersen Gross, Dr.

Brian K. Lentz, Tommasina Iannuzzi, Tracy Sauro,

Jennifer Sauro, and Lisa Sabato filed an action (the

“Davis Action”) in this district on behalf of themselves

and all others similarly situated against Defendant.

See Davis et al v. Facebook, Inc., No. 5:11-cv-04834EJD. On February 8, 2012, the United States Judicial

Panel on Multidistrict Litigation transferred a number

of similar cases filed in other districts throughout the

country for coordinated or consolidated pretrial

proceedings. See Transfer Order, Dkt. No. 1. Shortly

thereafter, the Court consolidated the actions and

Plaintiffs subsequently filed the Consolidated

Amended Complaint on May 17, 2012, followed by the

Corrected First Amended Consolidated Class Action

Complaint (“First Complaint”) on May 23, 2012. See

Dkt. Nos. 33, 35. The complaint alleges that Defendant

knowingly intercepted and tracked users' internet

activity on pages that displayed a “Like” button using

“cookies,” or small text file that the server creates and

sends to the browser, which stores it in a particular

directory on the user's computer in violation of state

and federal laws.

Plaintiffs' First Complaint alleged violations of: (1)

the Wiretap Act, 18 U.S.C. §2510, et. seq.; (2) the

Stored Communications Act (“SCA”), 18 U.S.C. §2701,

et. seq.; (3) the Computer Fraud and Abuse Act, 18

U.S.C. §1030; (4) invasion of privacy; (5) intrusion

upon seclusion; (6) conversion; (7) trespass to chattels;

(8) unfair competition or Cal. Bus, and Prof. Code

§17200, et. seq.; (9) the California Computer Crime

Law (“CCCL”) or Cal. Penal Code §502; (10) the

Invasion of Privacy Act or Cal. Penal Code §630; and

(11) the Consumer Legal Remedies Act or Cal.Civ.

Code §1750. Dkt. No. 35. On November 17, 2017, the

Court granted Defendant's motion to dismiss plaintiffs'

third amended consolidated class action complaint and

entered judgment against Plaintiffs. See Dkt. Nos. 174,

175. Plaintiffs appealed, and the Ninth Circuit

affirmed the dismissal of Plaintiffs' claims for violation

of the SCA, breach of contract, and implied covenant of

good faith and fair dealing; it reversed and remanded

Plaintiffs' remaining claims. See Dkt. No. 190.

Defendant petitioned for writ of certiorari which the

United States Supreme Court denied. See Dkt. No.

209. The parties provided notice of settlement shortly

thereafter. See Dkt. No. 215.

The parties reached a settlement prior to class

certification with the assistance of an experienced

mediator, Mr. Randall Wulff. See Pl.’s Not. of Mot. &

Mot. for Final Approval of Class Action Settlement

with Supp. Mem. & Points of Auths., Dkt. No. 254.

Section 2.1 of the Settlement Agreement defines the

class as:

All persons who, between April 22, 2010 and

September 26, 2011, inclusive, were Facebook

Users in the United States that visited

nonFacebook websites that displayed the

Facebook Like button.

(“the Settlement Class”). See Settlement Agreement

(“Agreement”), Dkt. No. 233-1 §§2.1(a), 2.1(b)-(f)

(defining those who are excluded from the class

definition). In its preliminary approval order, the

Court conditionally certified the Settlement Class and

provisionally appointed David A. Straite of DiCello

Levitt Gutzler LLC and Stephen G. Grygiel of Grygiel

Law LLC as Class Counsel; Plaintiffs Perrin Davis, Dr.

Brian Lentz, Michael Vickery, and Cynthia Quinn

(collectively, “Plaintiffs”) and Ryan Ung, Chi Cheng,

and Alice Rosen (collectively, “State Court Plaintiffs”)

as class representatives; and Angeion Group as the

class administrator.1 See Dkt. No. 241.

B. Terms of the Settlement Agreement

Under the terms of the Settlement Agreement,

Defendant will pay $90,000,000 into a common

settlement fund and sequester and expunge all

improperly collected data without admitting liability.

1 The Settlement Agreement and Court Order also appoints

Jay Barnes of Simmons Hanly Conroy LLC as Chair of the

Plaintiffs' Counsel Executive Committee. Lead Counsel and Mr.

Barnes together are referred to herein as “Class Counsel.”

10a

Dkt. No. 254. This amount includes attorneys' fees and

costs, the cost of class notice and settlement

administration, and the class representatives' service

awards.

1. Attorneys’ Fees and Costs

Under the Settlement Agreement, Class Counsel

agreed to seek up to $26,100,000 in attorneys' fees

exclusive of hours for State Court Counsel, which

would be paid out of any award approved by the court,

and no more than $393,048.87 in litigation costs

inclusive of costs incurred in the parallel action in the

Santa Clara Superior Court.2 Class Counsel represents

that “State Court Counsel will not be making a

separate fee or expense application here nor in the

state court proceeding.” Dkt. No. 256 at 18. The

common settlement fund also includes a provision for

$2,353,535.26 in settlement administration costs.

Weisbrot Fourth Decl. Dkt. No. 281 ¶7. The Claims

Administrator attests that Plaintiffs have incurred

$1,655,782.54 in settlement administration costs and

projects that it will incur an additional $697,752.72 in

settlement costs. Id. at ¶¶5-6. In addition, service

awards of $5,000 each will be paid to Plaintiffs Davis,

Lentz, Vickery, and Quinn, and up to $3,000 each will

be paid to the three State Court Plaintiffs Ung, Cheng,

and Rosen in exchange for a general release of all

claims against Defendant. Mot. for Attorneys’ Fees &

Costs, Dkt. No. 256 at 23.

2. Class Relief

After deductions from the common fund for fees,

costs,

and

service

awards,

approximately

$61,124,415.87 will remain to be distributed among

2 Ung, et al. v. Facebook, Inc., Case No. 2012-1- CV-217244.

11a

the participating Class Members. Weisbrot Fourth

Decl. ¶7. Class members will be paid an equal pro rata

share of the Net Settlement Fund. Dkt. No. 256 at 8.

Dividing this amount across the 1,558,805 valid claims

submitted by participating Class Members yields an

average recovery of approximately $39.21 per Class

Member. Weisbrot Fourth Decl. ¶7. The Agreement

provides that no amount will revert to Defendant. In

addition, the Agreement provides for injunctive relief

where Facebook will sequester and delete all data that

was wrongfully collected during the Class Period. Dkt.

No. 254.

3. Unclaimed Payments

Pursuant to the Settlement Agreement, when

checks mailed to participating Class Members are not

redeemed or deposited within ninety (90) days, that

Settlement Class Member waives and releases their

claim for payment. Dkt. No. 233-1 §4.5. Any unclaimed

money in the Settlement Fund “(less any additional

Administrative Costs) shall be distributed on an equal

basis to each Authorized Claimant who received a

Settlement Payment that was electronically processed

or a check which was negotiated.” Id. at §4.7. At no

point will any funds revert to Defendant or be paid to

a cy pres recipient; rather, the Agreement provides

that:

To the extent that any second distribution is not

administratively and economically feasible, as

determined by the Settlement Administrator, or

funds remain in the Net Settlement Fund for an

additional one hundred (100) days after the

second distribution, the Parties shall confer and

present a proposal for treatment of the remaining

funds to the Court.

12a

Id. at §4.8. In exchange for the settlement awards,

Class Members will release claims against Defendant

as set forth in the Settlement Agreement at Section 9.

C. Class Notice and Claims Administration

The Settlement Agreement is being administered by

Angeion Group, LLC (“Angeion”). Following the

Court’s preliminary approval and conditional

certification of the settlement, Angeion provided direct

notice via email to all reasonably identifiable

Settlement Class Members. The “Notice Plan” includes

a media campaign that uses “state-of-the-art targeted

internet notice, social media notice, and a paid search

campaign.” Dkt. No. 233-1, Ex. 1B ¶12.

The Class Administrator established a settlement

website

(the

“Settlement

Website”)

www.fbinternettrackingsettlement.com, a dedicated

address

field

questions

info@fbinternettrackingsettlement.com.

Weisbrot

First Decl. Dkt. No. 255-1 ¶¶15-19. The Settlement

Website includes the settlement notices, the

procedures for Class Members to submit claims or

exclude themselves, a contact information page that

includes address and telephone numbers for the claim

administrator and the parties, the Settlement

Agreement, the preliminary approval order, claim

form, and opt-out form. In addition, the motion for final

approval and the application for attorneys' fees, costs,

and service awards were uploaded to the website after

they were filed. The Class Administrator also operated

a toll-free number for Class Member inquiries.

Class members were given until September 12,

2022, to object to or exclude themselves from the

Settlement Agreement. Out of 1,558,805 total Class

Members who submitted valid claims 1,374 persons

filed timely requests to opt out of the Settlement Class.

13a

A total of 2,054,346 claims were received by the

administrator, of which 1,558,805 were accepted as

valid. Weisbrot Fourth Decl. Dkt. No. 281-1 ¶4.

II. FINAL APPROVAL OF SETTLEMENT

A. Legal Standard

A court may approve a proposed class action

settlement of a certified class only “after a hearing and

on finding that it is fair, reasonable, and adequate,”

and that it meets the requirements for class

certification. Fed.R.Civ.P. 23(e)(2). In reviewing the

proposed settlement, a court need not address whether

the settlement is ideal or the best outcome, but only

whether the settlement is fair, free of collusion, and

consistent with plaintiff’s fiduciary obligations to the

class. See Hanlon v. Chrysler Corp., 150 F.3d at 1027

overruled on other grounds by Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011). The Hanlon court

identified the following factors relevant to assessing a

settlement proposal: (1) the strength of the plaintiff's

case; (2) the risk, expense, complexity, and likely

duration of further litigation; (3) the risk of

maintaining class action status throughout the trial;

(4) the amount offered in settlement; (5) the extent of

discovery completed and the stage of the proceeding;

(6) the experience and views of counsel; (7) the

presence of a government participant; and (8) the

reaction of Class Members to the proposed settlement.

Id. at 1026 (citation omitted); see also Churchill Vill.,

L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir.2004).

Settlements that occur before formal class

certification also “require a higher standard of

fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d

454, 458 (9th Cir.2000). In reviewing such settlements,

in addition to considering the above factors, a court

also must ensure that “the settlement is not the

14a

product of collusion among the negotiating parties.” In

re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,

946-47 (9th Cir.2011).

B. Analysis

1. The Settlement Class Meets the Prerequisites

for Certification

As the Court found in its order granting preliminary

approval and conditional certification of the settlement

class herein, the prerequisites of Rule 23 have been

satisfied for purposes of certification of the Settlement

Class, as discussed in more detail below. See Dkt. No.

241.

Likewise, the Churchill factors are satisfied.

Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575

(9th Cir.2004). This case was hard-fought. The parties

engaged in both discovery and substantive motion

practice (three rounds of motions to dismiss), which

ultimately disposed of Plaintiffs' claims. Plaintiffs

successfully appealed to the Ninth Circuit and

developed data privacy precedent in the process.

Defendant went to great lengths to shield itself from

Plaintiffs' claims and subsequently petitioned the

Supreme Court for writ of certoriari, which was denied.

While Plaintiffs believed in the strength of their case,

Class Counsel recognized the substantial risk and cost

in continued litigation, including novel and uncertain

damage theories that may likely require a “battle of

experts” to determine, for example, the value of the

data and the extent of any damages calibrated to the

Defendant's use of the data. Dkt. No. 254 at 12–15.

Counsel also pointed to other considerations, such as

obtaining class certification and “[a] fourth Motion to

Dismiss, discovery, litigation class certification,

summary judgment, trial and appeals would have

consumed many more years, involving tremendous

15a

time and expense of the parties and the Court.” Id. at

14.

Only after the Supreme Court denied Defendant's

petition—almost eleven years after this action was

initiated—did the parties agree to mediate. The parties

negotiated at arms-length; they spent three days in

mediation and six months in informal settlement

discussions. This settlement fund constituted the

seventh largest monetary settlement of its kind for

data privacy cases at the time of settlement. Most

significantly, however, the Settlement Agreement

provides injunctive relief whereby Defendant must

expunge the data at issue to the benefit of all Class

Members, regardless of whether they filed a claim,

opted out, or objected to the Settlement.

2. Adequacy of Notice

A court must “direct notice [of a proposed class

settlement] in a reasonable manner to all class

members who would be bound by the proposal.”

Fed.R.Civ.P. 23(e)(1). “The class must be notified of a

proposed settlement in a manner that does not

systematically leave any group without notice.”

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d

615, 624 (9th Cir.1982). Adequate notice requires: (i)

the best notice practicable; (ii) reasonably calculated,

under the circumstances, to apprise the Class

members of the proposed settlement and of their right

to object or to exclude themselves as provided in the

settlement agreement; (iii) reasonable and constitute

due, adequate, and sufficient notice to all persons

entitled to receive notice; and (iv) meet all applicable

requirements of due process and any other applicable

requirements under federal law. Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process

requires “notice reasonably calculated, under all the

16a

circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity

to present their objections.” Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 314 (1950).

The Court found that the parties' proposed notice

procedures provided the best notice practicable and

reasonably calculated to apprise Class Members of the

settlement and their rights to object or exclude

themselves. Dkt. No. 241. Pursuant to those

procedures, the Class Administrator provided direct

email notice to all reasonably identifiable Settlement

Class embers, combined with a media campaign that

used targeted internet notice, social media notice, and

a paid search campaign. Weisbrot First Decl. Dkt. No.

255-1 ¶5. Angeion established a settlement website

(www.fbinternettrackingsettlement.com), a dedicated

address

field

questions

(info@fbinternettrackingsettlement.com.), and a tollfree hotline (1-844-665-0905) dedicated to the

settlement. Id. ¶¶15-19.

The first round of notice was sent to 114,078,891

Class Members' email addresses and 86,075,107 of

those emails were successfully delivered. Id. ¶9. The

media campaign notice ran for four weeks and created

377,909,804 impressions. Id. ¶11. At the hearing, Mr.

Weisbrot (the CEO of Angeion) reported that the media

campaign reached slightly over 80% of all adults in the

U.S. who are 18 years of age or older in addition to the

99% of all Class Members who were reached directly.

See also Weisbrot First Decl. ¶25. Angeion also

employed a “claims stimulation package” which

consisted of sponsored listings on two class action

settlement websites, such as www.topclassactions.com

and www.classaction.org, and utilized active listening

on Twitter to monitor Twitter traffic for discussion of

the settlement and to provide notice and answer

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questions on Twitter as appropriate. Id. ¶12. In

addition, Angeion sent email reminder notices to the

86,075,105 Class Members who had successfully

received the first notice, extended the paid search

campaign, and utilized a banner advertisement

campaign for a month. Weisbrot Second Decl. ¶5.

The Court finds that Plaintiffs' notice meets all

applicable requirements of due process and is

particularly impressed with Plaintiffs' methodology

and use of technology to reach as many Class Members

as possible. Based upon the foregoing, the Court finds

that the Settlement Class has been provided adequate

notice.

3. The Settlement Is Fair And Reasonable

As the Court previously found in its order granting

preliminary approval, the Hanlon factors indicate the

settlement here is fair and reasonable and treats Class

Members equitably relative to one another. Dkt. No.

241.

The reaction of the class was for the most part

positive; there were very few objectors and opt-outs

relative to the size of the Settlement Class. There were

a total of 9 objectors and 1,374 opt-outs as of the

September 12, 2022 deadline. These objections and

opt-outs constitute a small fraction of the

approximately 1,558,805 total Class Members who

submitted valid claims by September 22, 2022. “[T]he

absence of a large number of objections to a proposed

class action settlement raises a strong presumption

that the terms of a proposed class settlement action are

favorable to the class members.” In re Omnivision

Techs., Inc., 559 F.Supp.2d 1036, 1043 (N.D. Cal.

2008)(citation omitted); see also Churchill Vill., 361

F.3d at 577 (holding that approval of a settlement that

18a

received 45 objections (0.05%) and 500 opt-outs (0.56%)

out of 90,000 class members was proper).

In its preliminary approval order, the Court

approved the proposed plan of allocation. Dkt. No. 241.

That plan is straightforward; all Settlement Class

members are entitled to equal cash payment, and

payments will be based on final claims rates and the

size of the Settlement Fund less fees and expenses. Id.

at 17. The Court finds the plan of allocation to be fair

and reasonable and to treat Class Members equitably

and therefore approves the plan of allocation.

4. Objections

The Court received written objections from nine (9)

objectors in total, eight (8) of which were submitted by

or on behalf of the following individuals: (1) Martin

Suroor Corrado; (2) Michael E. Colley, (3) Edward W.

Orr, (4) Eleni Gugliotta, (5) Austin Williams, (6) Sarah

Feldman, (7) Cameron Jan, and (8) Eric Alan

Isaacson.3 See Dkt. Nos. 234, 235, 248, 249, 251, 257,

262, 263, 265, 267, 269. All eight of these objectors

oppose the final approval of the settlement. In

addition, the Court received a ninth (9) objection from

Class Members (the “Klein Objectors”) in Klein v. Meta

Platforms, Inc., No. 3:20-cv-08570-JD (N.D. Cal.)

currently pending in the Northern District of

California before Judge Donato. Dkt. No. 267. As

discussed more below, the Klein Objectors do not

oppose the fee request, and their opposition to the

settlement is limited to the release of claims; they

specifically seek clarification and assurance that the

The docket also indicates that Ms. Anne Barschall filed a

letter with the Court. See Dkt. No. 261. At the hearing Class

Counsel clarified that Ms. Barschall did not object to either

motion, and that her inquiry regarding alternative methods to file

her claim has since been resolved. See Dkt. No. 273 at 6.

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release language of the Settlement Agreement does not

affect their antitrust litigation. Id.

Finally, no objector opposed Plaintiffs' request for

reimbursement of litigation expenses nor the

allocation plan. The Court has considered all objections

and overrules them for the reasons stated on the record

at oral argument and as further explained below. The

Court addresses each objector's arguments in turn.4

a. Objector Gugliotta

Objector Ms. Eleni Gugliotta through her counsel

objects to approval of the settlement on the grounds

that it is not fair, reasonable, nor adequate. Dkt. No.

257. Ms. Gugliotta asserts that the settlement amount

is too low compared to Defendant's yearly earnings and

to other class action settlements which have yielded

larger settlement amounts. Id. at 2-4. Ms. Gugliotta

also contends that Class Counsel's notice is deficient

because it failed to disclose the class size and it

imposed an onerous amount of public disclosure of

personal information to state an objection. Id. at 4. As

to the former objection, Class Counsel responds that

these metrics are not relevant to gauge

reasonableness, but even so, Ms. Gugliotta relies on

global current figures to make her comparison rather

than using data limited to the U.S. and relevant to the

class period time frame ending in September 2011.

Dkt. No. 273.

Class Counsel contend that the settlement amount

is reasonable because it is one of the top ten data

4 The Court has reviewed and considered the objections from

Mr. Corrado, Mr. Colley, and Mr. Orr. Dkt. Nos. 234, 235, 248,

249, 251, and 263. The Court finds that these objections raise

issues that are not relevant to the scope of the Settlement nor the

motions before the Court, and therefore overrules them.

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privacy class action settlements ever and it is a

“disgorge[ment] of any unjust enrichment earned on

the data.” Dkt. No. 254 at 3. In response to the latter

objection, Counsel notes that the Class was in fact

informed that there are approximately 124 million

Class Members in Plaintiffs' motions—which would

permit a Class Member to calculate what monetary

and injunctive relief they are accepting to release the

claims—and contends that the disclosure of basic

information in objections is to reduce risk of fraud. Id.

at 4.

Ms. Gugliotta also objects to the signature

requirement, contending that an objector represented

by counsel should not be required to sign the objection

because it is logistically burdensome.5 Id. at 7. The

Court finds this argument unpersuasive. Accordingly,

the Court overrules Ms. Gugliotta’s objections, finding

that the objection disclosure requirements are not so

burdensome as to discourage objections; the settlement

amount is fair, reasonable, and adequate; the notice

provided was not deficient; and the objection signature

requirement is not logistically burdensome.

b. Objector Williams

Pro se Objector Austin Williams filed an objection

contesting the settlement amount for providing

inadequate compensation to victims. Dkt. No. 262. Mr.

Williams expressed his concern that the settlement

5 Ms. Gugliotta also objects on the grounds that the Agreement

does not identify a cy pres recipient and to the settlement being a

“claims made” settlement. Dkt. No. 257 at 2, 5. Class Counsel

clarifies that this is a common fund settlement, not a claimsmade-settlement. Dkt. No. 273 at 5. Moreover, it is true that the

Agreement does not identify a cy pres recipient because it

provides a different method for handling unclaimed funds as

discussed in supra Section B(2).

21a

will not deter Defendant from unlawfully collecting

and using user data in the future because the

settlement is such a small fraction of Facebook’s

annual revenue of $1.97 billion and $3.7 billion in 2010

and 2011 respectively. Id. at 1. In reference to the

injunctive relief, Mr. Williams also expressed his doubt

that the data could ever be fully deleted from existence

despite Defendant's promise to expunge the data

pursuant to the Agreement. Id. at 2.

Class Counsel responds that, like Ms. Gugliotta, Mr.

Williams relies on Facebook's global revenue during

the years at issue, rather than limiting it to the United

States, and that he fails to explain why gross revenues

rather than net profits should be used in this case

“where the Ninth Circuit used an unjust enrichment

measure of damages, which is measured by net

profits.” Dkt. No. 273 at 7. Regarding Mr. Williams'

deletion of data concern, Class Counsel notes that

Defendant provided a sworn declaration stating that it

will sequester and delete the data and there is no

reason to assume that Defendant will defraud the

Court. Dkt. No. 262 at 2.

Mr. Williams also objects to approval of the

settlement on the grounds that either further

discovery or trial could have uncovered additional

wrongdoing. Dkt. No. 262 at 2. The Court

acknowledges Mr. Williams' concerns but is not

persuaded by speculation, particularly where

substantial and exhaustive discovery has already

occurred. For the foregoing reasons, the Court

overrules Mr. Williams' objection.

c. Objectors Feldman and Jan

Objectors Sarah Feldman and Cameron Jan jointly

object to approval of the settlement and the requested

22a

fees and expenses by and through their counsel.6 Dkt.

No. 265. First, Feldman and Jan oppose the settlement

fund as not fair, reasonable, nor adequate because the

settlement amount is well below the recoverable

statutory damages. They contend that the settlement

amount is not justifiable compared to the potentially

recoverable $1.24 trillion in statutory damages

according to their calculations, which they obtained by

multiplying the $10,000 minimum statutory damages

recoverable per Class Member by the 124 million Class

Members. Id. at 10–11. Feldman and Jan assert that

Plaintiffs were required to provide a calculation of the

potential class recovery if Plaintiffs had fully prevailed

on each of their claims and a justification of any such

discount. Id.

6 Feldman and Jan oppose the settlement agreement for two

other reasons. First, they oppose service awards to non-Class

member State Court Plaintiffs Chi Cheng and Alice Rosen

because they allegedly “disavow[ed] class membership” since they

were not Facebook users during the Class Period. Dkt. No. 265 at

20. Class Counsel responds that Objectors Feldman and Jan

misread the complaint, as Cheng and Rosen pled that, at the time

of filing the complaint in state court, they were nonFaceboook

users—not that they did not have Facebook accounts during the

relevant class period from April 22, 2010 to September 26, 2011.

State Court Plaintiffs Cheng and Rosen are participants in this

settlement based on their surrender of related claims in the state

action. Dkt. No. 271 at 8–9.

Second, Feldman and Jan oppose the settlement for failing to

comply with the Court's Procedural Guidance for Class Action

Settlements which requires any explanation as to any differences

between the claims to be released and the claims in the “operative

complaint.” Dkt. No. 265 at 10. Feldman and Jan take issue with

what constitutes the “operative complaint” here because, after

two rounds of motion to dismiss, only Plaintiffs' breach of contract

and breach of the covenant of good faith and fair dealing remained

in the TAC. See Third Amended Complaint (“TAC”), Dkt. No. 157.

However, the operative claims here are those identified by the

Ninth Circuit on appeal.

23a

Class Counsel responds that the real measure of

damages is closer to $900 million in consideration of

the Supreme Court's dicta in State Farm, reasoning

that while there is no rigid benchmark, statutory

damages would likely be capped at a multiplier of ten.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.

408, 410, 424-26 (2003)(“[F]ew awards exceeding a

single-digit ratio between punitive and compensatory

damages will satisfy due process.”); Dkt. No. 273 at 9.

Feldman and Jan acknowledge that a trillion-dollar

recovery is unlikely and that Class Members could

reasonably expect recovery of up to $900 million if the

Court were to regard statutory damages as punitive

damages but nonetheless assert that the settlement

amount is indefensible. Plaintiffs argue that

settlement is reasonable because it is a complete

disgorgement of all net profits earned on the allegedly

improperly collected data. Dkt. Nos. 256 at 8. By Class

Counsel's calculations, the settlement fund is 10% of

the potentially recoverable statutory damages;

Feldman and Jan do not explain why 10% recovery

plus injunctive relief is unfair under these

circumstances. Dkt. No. 273 at 9.

Objectors Feldman and Jan also oppose the notice

plan and contend that the low percentage of claims

submitted by Class Members is, in part, due to

Plaintiffs' failure to provide Class Members with the

best notice practicable. Dkt. No. 265 at 14. At the

hearing, Feldman and Jan's counsel contended that

Plaintiffs should have utilized social media to effect

notice. In their opinion, notice should have been

provided via Facebook Messenger rather than through

email. Class counsel responds that the take rate “is

approaching 2%” which is a satisfactory claims rate for

class sizes in the millions. Dkt. No. 273 at 9 (citing In

re TikTok, Inc., Consumer Privacy Litig., 565 F.Supp.

24a

3d 1076, 1090 n.6 (N.D.Ill. Sept. 30, 2021) (“[a]ccording

to the plaintiff's expert in In re Facebook, the average

claims rate for classes above 2.7 million class members

is less than 1.5%.”); Pollard v. Remington Arms Co.,

LLC, 320 F.R.D. 198, 214–15 (W.D.Mo. Mar. 14,

2017)(collecting cases that have approved settlements

“where the claims rate was less than one percent”).

During the hearing Mr. Weisbrot responded that

Plaintiffs did in fact use social media (Twitter) to effect

notice. See also Dkt. No. 255-1. Moreover, Mr. Weisbrot

considered the plan very successful, as it reached 99%

of Class Members directly and reached approximately

80% of all adults 18 years or older in the United States.

(emphasis added).

For these reasons and the reasons discussed above,

the Court finds the notice plan to be adequate.

d. Objector Isaacson

Pro se Objector Eric Allan Isaacson, who is an

attorney and a member of the bar of this Court, objects

to the settlement, the requested attorneys' fees, and

the service awards. Dkt. No. 269 at 7. At the outset Mr.

Isaacson objects to the filing of the complaints under

seal (with publicly available redacted versions) as

improperly depriving class members of information

needed to evaluate the case. However, as Class

Counsel points out, the Ninth Circuit affirmed the

sealing and the Court cannot now relitigate this issue.

Dkt. No. 173 at 12.

Next, Mr. Isaacson objects on the grounds that

monetary relief is too low because, according to his

calculations, the settlement amount would yield

approximately fifty cents per class member after

deducting all fees and expenses. Dkt. No. 269 at 4. To

reach this conclusion Mr. Isaacson divided the net

settlement fund by all 124 million potential class

25a

members (rather than by the number of Settlement

Class Members who submitted a valid claim). Id. Like

Objectors Jan and Feldman, Mr. Isaacson focuses on

the potential recoverable statutory damages under the

Wiretap Act, finding the settlement fund lacking

relative to these damages. Id. at 4-5. Class Counsel

projected that Settlement Class Members would

receive approximately $40 per person after factoring in

the number of claims received and those still

anticipated to be received. Dkt. No. 256 at 9. In terms

of the potential statutory damages, Class Counsel

reiterates that:

[T]he maximum Wiretap Act recovery[,] assuming

all the many remaining liability hurdles were

cleared—would likely never pass Due Process muster,

and their argument that $900 million in Wiretap Act

damages is a reasonable figure (passing, for the

moment, the problem that Wiretap Act damages are (i)

discretionary in the first instance and (ii) “all or

nothing” in nature”) means that a $90 million

settlement, if all allocable to the Wiretap Act damages,

is 10% of the recoverable damages.

Dkt. No. 273 at 13-14. Class Counsel attests to

having analyzed maximum recoveries in the “best day

in court” scenario and weighing it against the barriers

to achieving such a result before accepting settlement.

Id.; see Dkt. No. 254 at 12-14 (describing factual and

legal obstacles in litigating).

Next, Mr. Isaacson argues that Plaintiffs failed to

provide information required by the Court’s

Procedural Guidance for Class Action Settlements ¶1)e

in failing to provide a calculation of the potential class

recovery if plaintiffs had fully prevailed on each of

their claims and an explanation as to why the

settlement amount differs. Dkt. No. 269 at 5. In

26a

addition, he contends that Counsel did not provide “ ‘an

estimate of the number and/or percentage of class

members who are expected to submit a claim... the

identity of the examples used for the estimate, and the

reason for the selection of those examples.’” Id.

(quoting Procedural Guidance ¶1)g). Class Counsel

explains that they provided this information in their

motion for preliminary approval, which identified an

estimated “take rate” under 5% consistent with FTC

research, and in Angeion's declaration, which provided

updated claim administration cost estimates based on

1%, 3% or 5% take rates. Dkt. No. 254 at 14.

Finally, Mr. Isaacson takes issue with the injunctive

relief insofar as Plaintiffs have stated that “Defendant

will delete the sequestered Settlement Class Data from

Defendant's systems to the extent not already deleted.”7

Dkt. No. 269 at 5-6 (italicized for emphasis). Mr.

Isaacson questions the meaning of this phrase and

whether such data has already been deleted before

settlement, in which case he believes that the

injunctive relief would be of little value to Class

Members. Id. At the hearing, Counsel clarified that

regardless of whether Defendant had deleted some or

all (though unlikely) of the allegedly improperly

collected data, Defendant was not required to do so

before it was imposed by the parties’ settlement. The

purpose of the injunctive relief was to ensure that the

data would be completely expunged.

7 Plaintiffs did not assign a monetary value on the injunctive

relief in accordance with Ninth Circuit law, which disfavors

attempting to assign monetary values on injunctions in common

fund cases. Instead, in determining whether to depart from the

25% benchmark, Class Counsel asks that the fees be awarded

based on the monetary component but also in consideration of the

injunctive relief as a “relevant circumstance.” Dkt. No. 273 at 14;

See Boeing, 327 F.3d at 974.

27a

Accordingly, the Court overrules Mr. Isaacson's

objections.

e. The Klein Objectors

Kupcho, Grabert and Klein (the “Klein Objectors”)

are lead plaintiffs in an antitrust case against

Defendant's parent company presently before Judge

Donato in Klein v. Meta Platforms, Inc., Case No. 20cv-08570 (N.D. Cal.).8 Dkt. No. 267 at 1. The Klein

Objectors do not oppose the fees award and only oppose

the Settlement out of concern that the language of the

release clause is too broad and may release claims such

as those asserted in their litigation. The Settlement

Agreement defines “released claims” as:

[A]ny and all claims, demands, actions,

causes of action, lawsuits, arbitrations,

damages, or liabilities, whether known or

unknown, legal, equitable, or otherwise that

were asserted or could have been asserted in

the Actions, regarding the alleged collection,

storage, or internal use by Facebook of data

related to browsing history (such as IP address,

Uniform Resource Locator (URL), referrer header

information, and search terms) obtained from

cookies stored on the devices of Facebook Users in

the United States who visited nonFacebook

websites that displayed the Facebook Like button

during the Settlement Class Period ....

Dkt. 233-1 at 9-10, §1.33 (emphasis added). They seek

either (i) clarification that the Settlement is not

intended to release or otherwise limit the Klein claims

or (ii) insertion of language in the Settlement

8 The Klein Objectors are the proposed representatives of the

“Consumer Class,” and their counsel are the court-appointed

interim counsel for that class.

28a

Agreement release clause that carves out their claims.

Id. at 11-12. Class Counsel represents that the

Settlement Agreement is not intended to release or

otherwise limit the Klein claims and urges the Court

to deny the Klein Objector's requested relief for a host

of reasons, including Defendant's waiver of any

argument that the release clause bars the Klein claims

by failing to comply with the Procedural Guidance on

overlapping cases. Id. at 2, 10 n.5, 12 (citing to

Northern District of California Procedural Guidance

for Class Action Settlements, Preliminary Approval

¶13). At the hearing, Defendant would not state on the

record whether the release clause impacts the Klein

litigation without having first reviewed the Klein

pleadings.

The Court overrules this objection without

determining whether the claims asserted in Klein are

released by this Settlement Agreement.9

5. Certification Is Granted and the Settlement

Is Approved

After reviewing all of the required factors, the Court

finds the Settlement Agreement to be fair, reasonable,

and adequate, and certification of the Settlement Class

as defined therein to be proper. The Settlement

Agreement specifies those are excluded from the

Settlement Class. Dkt. No. 233-1 §§1.41, 2.1(b)-(f).

III. MOTION FOR ATTORNEYS' FEES, COSTS,

AND CLASS REPRESENTATIVE AWARDS

Because Defendant has not substantively responded to

whether the Klein action would be released under the Settlement

Agreement at the hearing, the Court declines to rule on any issues

of preclusion in this instance. See Reyn's Pasta Bella, LLC v. Visa

USA, Inc., 442 F.3d 741, 747 (9th Cir.2006).

29a

Attorneys' fees and costs may be awarded in a

certified class action under Federal Rule of Civil

Procedure 23(h). Such fees must be found “fair,

reasonable, and adequate” in order to be approved.

Fed.R.Civ.P. 23(e); Staton v. Boeing Co., 327 F.3d 938,

963 (9th Cir. 2003). To “avoid abdicating its

responsibility to review the agreement for the

protection of the class, a district court must carefully

assess the reasonableness of a fee amount spelled out

in a class action settlement agreement.” Id. at 963.

“[T]he members of the class retain an interest in

assuring that the fees to be paid class counsel are not

unreasonably high,” since unreasonably high fees are

a likely indicator that the class has obtained less

monetary or injunctive relief than they might

otherwise. Id. at 964.

Class counsel requests an attorneys' fee award of

$26,100,000. Based on the declarations submitted by

counsel, the attorneys' fees sought amount to

approximately 29% of the percentage-of-the-fund.

Defendants do not oppose the fee request.

The Court analyzes an attorneys' fee request based

on either the “lodestar” method or a percentage of the

total settlement fund made available to the class,

including costs, fees, and injunctive relief. Vizcaino v.

Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir.2002).

The Ninth Circuit encourages courts to use another

method as a cross-check in order to avoid a

“mechanical or formulaic approach that results in an

unreasonable reward.” In re Bluetooth, 654 F.3d at

944-45 (citing Vizcaino, 290 F.3d at 1050-51.)

Under the lodestar approach, a court multiplies the

number of hours reasonably expended by the

reasonable hourly rate. Kelly v. Wengler, 822 F.3d

1085, 1099 (9th Cir.2016)(“[A] court calculates the

30a

lodestar figure by multiplying the number of hours

reasonably expended on a case by a reasonable hourly

rate. A reasonable hourly rate is ordinarily the

‘prevailing market rate [ ] in the relevant

community.’”). Under the percentage-of-the-fund

method, courts in the Ninth Circuit “typically calculate

25% of the fund as the ‘benchmark’ for a reasonable fee

award, providing adequate explanation in the record of

any ‘special circumstances’ justifying a departure.” In

re Bluetooth, 654 F.3d at 942 (citing Six (6) Mexican

Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311

(9th Cir.1990)). The benchmark should be adjusted

when the percentage recovery would be “either too

small or too large in light of the hours devoted to the

case or other relevant factors.” Six (6) Mexican

Workers, 904 F.2d at 1311. When using the percentageof-recovery method, courts consider a number of

factors, including whether class counsel “ ‘achieved

exceptional results for the class,’ whether the case was

risky for class counsel, whether counsel's performance

‘generated benefits beyond the cash settlement fund,’

the market rate for the particular field of law (in some

circumstances), the burdens class counsel experienced

while litigating the case (e.g., cost, duration, foregoing

other work), and whether the case was handled on a

contingency basis.” In re Online DVD-Rental Antitrust

Litig., 779 F.3d 934, 954-55 (9th Cir. 2015)

(quoting Vizcaino, 290 F.3d at 1047-50. “[T]he most

critical factor [in determining appropriate attorney's

fee awards] is the degree of success obtained.” Hensley

v. Eckerhart, 461 U.S. 424, 436 (1983).

Using the percentage-of-the-fund method, the Court

finds the attorneys’ fees sought to be reasonable. Here,

the settlement value is $90,000,000 and Class Counsel

requests $26,100,000 in attorneys' fees, which equals

29%-of-the-fund. The Court may adjust the benchmark

31a

“‘upward or downward to account for any unusual

circumstances involved in the case.’” In re Google St.

View Elec. Commc’ns Litig., 21 F.4th 1102, 1120 (9th

Cir.2021)(quoting Fischel v. Equitable Life Assurance

Soc’y of U.S., 307 F.3d 997, 1006 (9th Cir.2002)). Class

Counsel requests an upward adjustment of 4% above

the 25% benchmark because Counsel created “new

law” after appealing and arguing before the Ninth

Circuit, and achieved an exceptional result for the

Class in obtaining both monetary and injunctive

relief.10 Dkt. No. 256 at 22–23. Ontiveros v. Zamora,

303 F.R.D. 356, 373 (E.D.Cal. Oct. 8, 2014) (“[N]ovelty

of class counsel's legal arguments may constitute

‘special circumstances’ justifying a departure from the

benchmark” and concluding such upward departure

was warranted (citing Teitelbaum v. Sorenson, 648

F.2d 1248, 1250 (9th Cir.1981)). The injunctive relief is

particularly meaningful here because the deletion of

the data at issue benefits all Class Members,

regardless of whether they filed a claim, opted out, or

objected to the Settlement. The Court agrees therefore

that both considerations warrant an upward

adjustment from the benchmark

The Court also considered a cross-check of the

percentage-of-the-fund using the lodestar method. The

lodestar figure for post-consolidation hours is 9,233.98

hours at $863.02 rate for a total of $7,969,186.5. See

Dkt. No. 255-27. Plaintiffs claim hourly rates that are

commensurate with their experience and with the

legal market in this district, citing to a range for

attorneys, including associates, counsel, and partners

10 See In re Facebook, Inc. Internet Tracking Litig., 956 F.3d

589, 608 (9th Cir. 2020). As of the date of filing motion for

preliminary approval, Plaintiffs mentioned that the Ninth

Circuit’s ruling had been cited more than 50 times in reported

cases in the past 18 months. Dkt. No. 232 at 3.

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across all firms as $300–$1,200 and paralegals at

$125–$375 an hour. Dkt. No. 256 at 19. On the basis of

these reasonable hourly rates and amounts, class

counsel calculates the combined lodestar to be

$7,969,186.5, which represents a multiplier of 3.28

exclusive of any pre-consolidation time. Dkt. No. 256

at 20. The Court finds that the hours claimed were

reasonably incurred and that the rates charged are

reasonable and commensurate with those charged by

attorneys with similar experience in the market. The

Court also finds that Class Counsel represented their

clients with skill and diligence for over ten years on a

contingent fee basis and obtained an excellent result

for the class, taking into account the possible outcomes

and risks of proceeding trial.

A. Objections

Objectors Gugliotta, Feldman, Jan, and Isaacson

also opposed Plaintiffs' fee request in addition to

opposing final approval of settlement.

Objector Gugliotta opposes the attorneys' fees award

because it is based on the gross settlement fund rather

than “on the value of the Net Settlement Proceeds or

the amount of claims filed and paid.” Dkt. No. 257 at 9.

Gugliotta further asserts that the fee award

disproportionately compensates Class Counsel despite

what she considers inadequate benefits obtained for

the class. Id. at 8. In response Class Counsel points out

that Gugliotta does not offer any support for her

contention that the fee request should be tethered to

the take-rate of the class. The Court is inclined to

agree. Counsel sufficiently demonstrated how their

advocacy, which spanned 11 years, warranted a 29%

fee award after having successfully appealed the

class's dismissed claims and developed new law in data

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privacy. For these reasons the Court overrules

Gugliotta's objections.

Objectors Feldman and Jan challenge the $26.1

million in requested attorneys' fees (29% of the fund,

which is greater than a 3x lodestar multiplier) and

instead propose a 20% fee which is closer to a 2x

lodestar multiplier, or $18 million. Dkt. No. 265 at 10.

Class Counsel responds that courts will find an

upward adjustment of the 25% benchmark to be

appropriate in certain circumstances, particularly one

that results in a change in the law, and that

Defendants fail to justify a fee below the benchmark in

this case. Dkt. No. 273 at 10. Feldman and Jan also

contend that Plaintiffs lodestar crosscheck is

insufficient because it provides only “summary

numbers” in support of their claimed lodestar. Dkt. No.

265 at 11. However, this is not true—each attorney

complied with the Northern District of California's

Procedural Guidance for Class Action Settlements by

filing declarations inclusive of their rates, hours, and

summaries of their roles and time spent in the case.

Dkt. No. 255. For these reasons the Court overrules

Feldman and Jan's objections.

Finally, Objector Mr. Isaacson opposed the request

for attorneys' fees and costs as excessive, particularly

given what Mr. Isaacson perceives as poor results

compared to potentially recoverable damages. Dkt No.

269 at 9. Mr. Isaacson contends that the multiplier on

Class Counsel's lodestar (3.28) is far too high. Id. In

response, Class Counsel refers back to their motion

brief where Counsel cites to a number of cases

supporting the reasonableness of the requested

multiplier. See e.g., Sheikh v. Tesla, Inc., No. 17-cv02193-BLF, 2018 WL 5794532, at *8 (N.D. Cal., Nov.

2, 2018); In re Nat’l Collegiate Athletic Ass'n Athletic

Grant-in-Aid Antitrust Litig., 768 F.App’x 651, 653

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(9th Cir. 2019); Steiner v. Am. Broad. Co., 248 F.App'x

780, 783 (9th Cir.2007); In re Apple Inc. Device

Performance Litig., 2021 WL 1022866, at *8. Mr.

Isaacson also objects to the Settlement because it

purportedly permits Class Counsel to be paid before

Class Members receive payment. Id. at 12 (citing

to Hart v. BHH, LLC, 334 F.R.D. 74, 77

(S.D.N.Y.2020)). The Court declines to find the

settlement unreasonable based on this argument.

Based on the foregoing, the Court finds an award of

attorneys' fees in the amount of $26,100,000 to be fair,

reasonable, and adequate and approves Class

Counsel's request.

B. Costs Award

Class counsel is entitled to reimbursement of

reasonable out-of-pocket expenses. Fed.R.Civ.P. 23(h);

see Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994)

(holding that attorneys may recover reasonable

expenses that would typically be billed to paying

clients

non-contingency

matters).

Costs

compensable under Rule 23(h) include “nontaxable

costs that are authorized by law or by the parties'

agreement.” Fed.R.Civ.P. 23(h). Here, class counsel

seeks reimbursement for litigation expenses, and

provides records documenting those expenses, in the

amount of $393,048.87. None of the objectors oppose

Class Counsel's requested costs. Accordingly, the

Court finds this amount reasonable, fair, and adequate

and approves Class Counsel's request for litigation

expenses.

C. Service Awards

The district court must evaluate named plaintiff's

requested service award (also referred to as “incentive

awards”) using relevant factors including “the actions

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the plaintiff has taken to protect the interests of the

class, the degree to which the class has benefitted from

those actions ... [and] the amount of time and effort the

plaintiff expended in pursuing the litigation.” Staton,

327 F.3d at 977. “Such awards are discretionary ... and

are intended to compensate class representatives for

work done on behalf of the class, to make up for

financial or reputational risk undertaken in bringing

the action, and, sometimes, to recognize their

willingness to act as a private attorney general.”

Rodriguez v. West Publ'g Corp., 563 F.3d 948, 958-959

(9th Cir.2009). The Ninth Circuit has emphasized that

district courts must “scrutiniz[e] all incentive awards

[and service awards] to determine whether they

destroy the adequacy of the class representatives.”

Radcliffe v. Experian Info. Sols., 715 F.3d 1157, 1163

(9th Cir.2013).

Here, the Plaintiffs came forward to represent the

data privacy interests of more than 124 million others

for over a ten year period with very little personally to

gain. Plaintiff compiled documents, answered

interrogatories in response to discovery requests,

regularly corresponded with counsel telephonically

and by email, and took the substantial risk of litigation

which, at a minimum, involves a risk of losing and

paying the other side's costs. Because the laws are not

self-enforcing, it is appropriate to incentivize those

who come forward with little to gain and at personal

risk and who work to achieve a settlement that confers

substantial benefits on others—particularly when

these individuals dedicate ten years to doing so. The

Court also considers “the number of named plaintiffs

receiving incentive payments, the proportion of the

payments relative to the settlement amount, and the

size of each payment.” Staton v. Boeing Co., 327 F.3d

938, 977 (9th Cir. 2003). Here, the aggregate $29,000

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sought for seven (7) Service Awards constitutes a very

small fraction (0.0004%) of the $90 million Settlement

Fund. Dkt. No. at 256.

Objector Isaacson opposes the requested award for

class representatives. First, he objects to the service

awards as “illegal and inequitable” in common fund

cases, citing to Trs. v. Greenough, 105 U.S. 527, 537–

38 (1882) and Central R.R. & Banking Co. v. Pettus,

113 U.S. 116, 122 (1885). However, the Ninth Circuit

squarely addressed this argument in Apple, where the

objectors similarly asserted that such awards conflict

with Supreme Court precedent. In re Apple Inc. Device

Performance Litig., 50 F.4th 769, 785 (9th Cir. 2022).

The Ninth Circuit “previously considered this

nineteenth century caselaw in the context of incentive

awards and found nothing discordant,” and concluded

that service or incentive awards are permissible so

long as they are reasonable. Id.; see also Dkt. No. 273

at 13.

Mr. Isaacson ceded this point at the hearing but

takes issue with the class representatives’ declarations

where at least two of the named plaintiffs indicate that

they were “not even aware of the possibility of any

Service Award” until after reviewing and approving of

the Settlement Agreement. Davis Decl., Dkt. No. 25516 ¶17; see also Lentz Decl., Dkt. No. 255-19 ¶18. Class

Counsel responded that, as a matter of practice, they

do not inform class representatives of service awards

until after they have examined the Settlement

Agreement in order to ensure that any award would

not influence the class representatives' acceptance of

the terms. See Dkt. No. at 256 at 24. Mr. Isaacson

therefore opposes the awards on the grounds that they

could not have incentivized Plaintiffs Davis or Lentz

since neither of them were aware of such awards at the

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time they agreed to represent the class. Dkt. No. 269

at 7.

In consideration of Objector Isaacson's point, the

Court clarifies that in this case the awards are best

characterized as a “service” award rather than an

“incentive” award. This characterization more

appropriately captures the purpose of the award in this

instance. The class representatives are being rewarded

for their service to the class. In re Online DVD-Rental

Antitrust Litig., 779 F.3d 934, 943 (9th

Cir.2015)(“[Service or] incentive awards [ ] are

intended to compensate class representatives for work

undertaken on behalf of a class.”). Moreover, service or

incentive awards may also serve to incentivize the

participation of future lead plaintiffs. The Court

therefore overrules Mr. Isaacson's objection.

Accordingly, the Court approves the requested

service award payment for all aforementioned Named

Plaintiffs.

IV. CONCLUSION

Based upon the foregoing, the motion for final

approval of class settlement is GRANTED. The

motion for attorneys' fees, costs, and service awards

is GRANTED as follows: Class Counsel is awarded

$26,100,000 in attorneys' fees and $393,048.87 in

litigation costs.

Plaintiffs Davis, Lentz, Vickery, and Quinn are

granted a service award of $5,000 each, and State

Court Plaintiffs Ung, Cheng, and Rosen are granted a

service award of $3,000 each.

Without affecting the finality of this order in any

way, the Court retains jurisdiction of all matters

relating to the interpretation, administration,

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implementation, effectuation and enforcement of this

order and the Settlement.

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that final judgment is ENTERED in

accordance with the terms of the Settlement, the Order

Granting Preliminary Approval of Class Action

Settlement filed on March 31, 2022, and this order.

This document will constitute a final judgment (and a

separate document constituting the judgment) for

purposes of Rule 58, Federal Rules of Civil Procedure.

As provided in the Settlement Agreement, the

parties shall file a post-distribution accounting in

accordance with this District's Procedural Guidance

for Class Action Settlements within 21 days after the

distribution of the settlement funds and payment of

attorneys' fees. The Court SETS a compliance deadline

on Friday, February 10, 2023 to verify timely filing

of the post-distribution accounting.

IT IS SO ORDERED.

Dated: November 10, 2022

EDWARD J. DAVILA

UNITED STATES DISTRICT JUDGE

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE

NINTH CIRCUIT

_____________________________________________

In re: FACEBOOK, INC. INTERNET

TRACKING LITIGATION,

No. 22-16903

ORDER

FILED APR 1 2024

-----------------------------PERRIN AIKENS DAVIS; et al.,

Plaintiffs-Appellees,

SARAH FELDMAN; HONDO JAN,

Objectors-Appellants,

META PLATFORMS, INC., FKA Facebook, Inc.,

Defendant-Appellee.

------------------------------

Before: R. NELSON, FORREST, and SANCHEZ,

Circuit Judges.

Judges R. Nelson, Forrest, and Sanchez voted to

deny Objectors-Appellants Sarah Feldman and Hondo

Jan’s petition for rehearing en banc. The full court has

been advised of the petition for rehearing en banc, and

no judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35. Accordingly,

Objectors-Appellants’ petition for rehearing en banc,

filed March 5, 2024 (Dkt. 62), is DENIED.

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE

NINTH CIRCUIT

_____________________________________________

In re: FACEBOOK, INC. INTERNET

TRACKING LITIGATION,

No. 22-16904

ORDER

FILED APR 1 2024

-----------------------------PERRIN AIKENS DAVIS; et al.,

Plaintiffs-Appellees,

ERIC ALAN ISAACSON,

Objector-Appellant,

META PLATFORMS, INC., FKA Facebook, Inc.,

Defendant-Appellee.

------------------------------

Before: R. NELSON, FORREST, and SANCHEZ,

Circuit Judges.

Judges R. Nelson, Forrest, and Sanchez voted to

deny Objector-Appellant Eric Alan Isaacson’s

petitions for panel rehearing and rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 35. Accordingly, Objector-Appellant’s petitions for

rehearing and rehearing en banc, filed March 6, 2024

(Dkt. 64), are DENIED.

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APPENDIX F

Federal Rule of Civil Procedure Rule 23

Class Actions

(a) PREREQUISITES. One or more members of a class

may sue or be sued as representative parties on behalf

of all members only if:

(1) the class is so numerous that joinder of all

members is impracticable;

(2) there are questions of law or fact common to the

class;

(3) the claims or defenses of the representative

parties are typical of the claims or defenses of the

class; and

(4) the representative parties will fairly and

adequately protect the interests of the class.

(b) TYPES OF CLASS ACTIONS. A class action may be

maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against

individual class members would create a risk of:

(A) inconsistent or varying adjudications with

respect to individual class members that would

establish incompatible standards of conduct for

the party opposing the class; or

(B) adjudications with respect to individual class

members that, as a practical matter, would be

dispositive of the interests of the other members

not parties to the individual adjudications or

would substantially impair or impede their ability

to protect their interests;

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(2) the party opposing the class has acted or refused

to act on grounds that apply generally to the class,

so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class

as a whole; or

(3) the court finds that the questions of law or fact

common to class members predominate over any

questions affecting only individual members, and

that a class action is superior to other available

methods for fairly and efficiently adjudicating the

controversy. The matters pertinent to these findings

include:

(A) the class members’ interests in individually

controlling the prosecution or defense of separate

actions;

(B) the extent and nature of any litigation

concerning the controversy already begun by or

against class members;

concentrating the litigation of the claims in the

particular forum; and

(D) the likely difficulties in managing a class

action.

JUDGMENT; ISSUES CLASSES; SUBCLASSES.

(1) Certification Order.

(A) Time to Issue. At an early practicable time

after a person sues or is sued as a class

representative, the court must determine by order

whether to certify the action as a class action.

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(B) Defining the Class; Appointing Class Counsel.

An order that certifies a class action must define

the class and the class claims, issues, or defenses,

and must appoint class counsel under Rule 23(g).

grants or denies class certification may be altered

or amended before final judgment.

(2) Notice.

(A) For (b)(1) or (b)(2) Classes. For any class

certified under Rule 23(b)(1) or (b)(2), the court

may direct appropriate notice to the class.

(B) For (b)(3) Classes. For any class certified under

Rule 23(b)(3)—or upon ordering notice under Rule

23(e)(1) to a class proposed to be certified for

purposes of settlement under Rule 23(b)(3)—the

court must direct to class members the best notice

that is practicable under the circumstances,

including individual notice to all members who

can be identified through reasonable effort. The

notice may be by one or more of the following:

United States mail, electronic means, or other

appropriate means.The notice must clearly and

concisely state in plain, easily understood

language:

(i) the nature of the action;

(ii) the definition of the class certified;

(iii) the class claims, issues, or defenses;

(iv) that a class member may enter an

appearance through an attorney if the member

so desires;

44a

(v) that the court will exclude from the class any

member who requests exclusion;

(vi) the time and manner for requesting

exclusion; and

(vii) the binding effect of a class judgment on

members under Rule 23(c)(3).

(3) Judgment. Whether or not favorable to the

class, the judgment in a class action must:

(A) for any class certified under Rule 23(b)(1) or

(b)(2), include and describe those whom the court

finds to be class members; and

(B) for any class certified under Rule 23(b)(3),

include and specify or describe those to whom the

Rule 23(c)(2) notice was directed, who have not

requested exclusion, and whom the court finds to

be class members.

(4) Particular Issues. When appropriate, an action

may be brought or maintained as a class action with

respect to particular issues.

(5) Subclasses. When appropriate, a class may be

divided into subclasses that are each treated as a

class under this rule.

(d) CONDUCTING THE ACTION.

(1) In General. In conducting an action under this

rule, the court may issue orders that:

(A) determine the course of proceedings or

prescribe measures to prevent undue repetition or

complication in presenting evidence or argument;

45a

(B) require—to protect class members and fairly

conduct the action—giving appropriate notice to

some or all class members of:

(i) any step in the action;

(ii) the proposed extent of the judgment; or

(iii) the members’ opportunity to signify

whether they consider the representation fair

and adequate, to intervene and present claims

or defenses, or to otherwise come into the

action;

parties or on intervenors;

(D) require that the pleadings be amended to

eliminate allegations about representation of

absent persons and that the action proceed

accordingly; or

(E) deal with similar procedural matters.

(2) Combining and Amending Orders. An order

under Rule 23(d)(1) may be altered or amended from

time to time and may be combined with an order

under Rule 16.

(e)

SETTLEMENT,

VOLUNTARY

DISMISSAL,

COMPROMISE. The claims, issues, or defenses of a

certified class—or a class proposed to be certified for

purposes of settlement—may be settled, voluntarily

dismissed, or compromised only with the court's

approval. The following procedures apply to a proposed

settlement, voluntary dismissal, or compromise:

(1) Notice to the Class.

(A) Information That Parties Must Provide to the

Court. The parties must provide the court with

46a

information sufficient to enable it to determine

whether to give notice of the proposal to the class.

(B) Grounds for a Decision to Give Notice. The

court must direct notice in a reasonable manner

to all class members who would be bound by the

proposal if giving notice is justified by the parties'

showing that the court will likely be able to:

(i) approve the proposal under Rule 23(e)(2);

and

(ii) certify the class for purposes of judgment on

the proposal.

(2) Approval of the Proposal. If the proposal would

bind class members, the court may approve it only

after a hearing and only on finding that it is fair,

reasonable, and adequate after considering whether:

(A) the class representatives and class counsel

have adequately represented the class;

(B) the proposal was negotiated at arm's length;

taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of

distributing relief to the class, including the

method of processing class-member claims;

(iii) the terms of any proposed award of

attorney's fees, including timing of payment;

and

(iv) any agreement required to be identified

under Rule 23(e)(3); and

47a

(D) the proposal treats class members equitably

relative to each other.

(3) Identifying Agreements. The parties seeking

approval must file a statement identifying any

agreement made in connection with the proposal.

(4) New Opportunity to Be Excluded. If the class

action was previously certified under Rule 23(b)(3),

the court may refuse to approve a settlement unless

it affords a new opportunity to request exclusion to

individual class members who had an earlier

opportunity to request exclusion but did not do so.

(5) Class-Member Objections.

(A) In General. Any class member may object to

the proposal if it requires court approval under

this subdivision (e). The objection must state

whether it applies only to the objector, to a specific

subset of the class, or to the entire class, and also

state with specificity the grounds for the objection.

(B) Court Approval Required for Payment in

Connection with an Objection. Unless approved by

the court after a hearing, no payment or other

consideration may be provided in connection with:

(i) forgoing or withdrawing an objection, or

(ii) forgoing, dismissing, or abandoning an

appeal from a judgment approving the proposal.

approval under Rule 23(e)(5)(B) has not been

obtained before an appeal is docketed in the court

of appeals, the procedure of Rule 62.1 applies

while the appeal remains pending.

48a

(f) APPEALS. A court of appeals may permit an appeal

from an order granting or denying class-action

certification under this rule, but not from an order

under Rule 23(e)(1). A party must file a petition for

permission to appeal with the circuit clerk within 14

days after the order is entered or within 45 days after

the order is entered if any party is the United States,

a United States agency, or a United States officer or

employee sued for an act or omission occurring in

connection with duties performed on the United States'

behalf. An appeal does not stay proceedings in the

district court unless the district judge or the court of

appeals so orders.

(g) CLASS COUNSEL.

(1) Appointing Class Counsel. Unless a statute

provides otherwise, a court that certifies a class

must appoint class counsel. In appointing class

counsel, the court:

(A) must consider:

(i) the work counsel has done in identifying or

investigating potential claims in the action;

(ii) counsel's experience in handling class

actions, other complex litigation, and the types

of claims asserted in the action;

(iii) counsel's knowledge of the applicable law;

and

(iv) the resources that counsel will commit to

representing the class;

(B) may consider any other matter pertinent to

counsel's ability to fairly and adequately

represent the interests of the class;

49a

information on any subject pertinent to the

appointment and to propose terms for attorney's

fees and nontaxable costs;

(D) may include in the appointing order provisions

about the award of attorney's fees or nontaxable

costs under Rule 23(h); and

(E) may make further orders in connection with

the appointment.

(2) Standard for Appointing Class Counsel. When

one applicant seeks appointment as class counsel,

the court may appoint that applicant only if the

applicant is adequate under Rule 23(g)(1) and (4). If

more than one adequate applicant seeks

appointment, the court must appoint the applicant

best able to represent the interests of the class.

(3) Interim Counsel. The court may designate

interim counsel to act on behalf of a putative class

before determining whether to certify the action as

a class action.

(4) Duty of Class Counsel. Class counsel must fairly

and adequately represent the interests of the class.

(h) ATTORNEY'S FEES AND NONTAXABLE COSTS. In a

certified class action, the court may award reasonable

attorney's fees and nontaxable costs that are

authorized by law or by the parties’ agreement. The

following procedures apply:

(1) A claim for an award must be made by motion

under Rule 54(d)(2), subject to the provisions of this

subdivision (h), at a time the court sets. Notice of the

motion must be served on all parties and, for

50a

motions by class counsel, directed to class members

in a reasonable manner.

(2) A class member, or a party from whom payment

is sought, may object to the motion.

(3) The court may hold a hearing and must find the

facts and state its legal conclusions under Rule

52(a).

(4) The court may refer issues related to the amount

of the award to a special master or a magistrate

judge, as provided in Rule 54(d)(2)(D).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.