Judge signals support of attorney fees request in $425 million Google privacy suit

SAN FRANCISCO (CN) — A federal judge Thursday declined to rule on a motion requesting more than $146 million in attorney fees in a Google privacy class action, but left the door open for a substantial award for counsel representing the nearly 100 million class members in the case.

"I am comfortable that the request is not out of sight," U.S. District Judge Richard Seeborg said. "It is an understandable, reasonable request that recognizes the very good work done by the plaintiff side. It is certainly going to be within the realm of what you requested."

Lead plaintiff Anibal Rodriguez sued Google in July 2020, saying the company collected app data despite telling users they could disable tracking.

A jury trial last September found Google violated users' privacy by continuing to collect data even after they opted out, awarding more than $425 million in compensatory damages to a class of over 100 million users. The jury, however, did not find Google violated the California Comprehensive Computer Data Access and Fraud Act, and declined to award additional damages.

Counsel for the plaintiff class is asking the court for $146 million in attorneys' fees — or one-third of the common fund, which now exceeds $440 million due to interest — plus $12 million in litigation costs.

At Thursday's hearing, Seeborg asked plaintiffs' attorney David Boies of Boies Schiller and Flexner to address concerns some class members have with the high fee request.

"We got 300 objections that came in, the bulk of which boil down to the perceived disproportion per recovery on a class member basis, which is a relatively small amount compared to the quite substantial recovery of the attorney's request," the Barack Obama appointee asked. "For those who are listening, why is that not a problem?"

Boies responded that the request has problematic optics, but the small amount of recovery per class member is par for the course in such a large class action.

"The very nature of a class action is that you have individuals who had such a small amount at issue, they couldn't afford to litigate individually to hold the defendant accountable. What a class action does is it does give some sort of monetary compensation to the class, but more importantly, it holds the defendant accountable," Boies said.

Boies emphasized that by taking the case to trial, counsel for the plaintiffs secured not only monetary damages, but injunctive relief, for the class. Following the jury's verdict, Google amended its privacy disclosures to more accurately reflect its data collection practices.

"I would tell class members that the injunctive relief we got and the damages are worthwhile … [and] a contribution to benefit class members going forward," he said.

Plaintiffs further seek $50,000 awards for the two class representatives who testified at trial and $35,000 for the class representative who didn't testify for medical reasons.

Boies explained that the class representatives dealt with "a lot of intrusion" into their private lives in order to be a successful representative for the class, including extensive discovery "going after the plaintiffs."

"They had to go through an arduous process that is not normal for an individual," he said. "While the amounts are high, they are relatively small compared to the recovery and injunctive relief we got for the class."

Seeborg acknowledged the time and effort of the class representatives but told Boies the $50,000 was "a magnitude higher than any award I have given."

The judge also praised both parties' attorneys for their work, calling the case "extremely well litigated," and noting there was substantial risk involved on the plaintiffs' side for taking on such a case against Google.

Representatives for both parties did not immediately respond to a request for comment.

Following the jury's decision, plaintiffs sought a permanent injunction and $2.36 billion in disgorgement, a "conservative approximation" of Google's profits made during the class period. Google countered by asking the court to decertify the class and vacate the verdict.

Seeborg denied both requests, describing the parties' posttrial efforts as seeking to "augment and upset the verdict in various ways."