[00:00:01] Speaker 04: May I please the court? [00:00:02] Speaker 04: Oh yeah, and let me, we've got one councilor, one of you will be arguing rebuttal, right? [00:00:08] Speaker 03: Yes, as I understand it, I will be arguing for 10 minutes. [00:00:13] Speaker 03: Mr. Pence will be arguing for five minutes, and then Mr. Jan will be arguing, and we're reserving time for rebuttal. [00:00:18] Speaker 04: Okay. [00:00:18] Speaker 04: Well, who's reserving the time? [00:00:20] Speaker 04: Because if you use it all, then you don't get rebuttal. [00:00:23] Speaker 04: So you're going to only argue. [00:00:25] Speaker 04: How much time do you want for rebuttal? [00:00:26] Speaker 03: Well, let me reserve three minutes for rebuttal. [00:00:28] Speaker 04: Okay. [00:00:30] Speaker 04: So if it gets used up by all of you? [00:00:33] Speaker 04: You're out of luck. [00:00:34] Speaker 04: Okay. [00:00:34] Speaker 04: All right, you can go ahead and take it out of my all right Let's put seven on the clock then for him and then we'll reserve three All right, go ahead may it please the court I'm Eric Allen Isaacson. [00:00:46] Speaker 03: I am a member of the bar this court But I am here pro per as a member of the class that's bound by this settlement objected below to the fact that important parts of the record were filed under seal with with [00:01:01] Speaker 03: lots of redactions and exhibits to the complaint completely blacked out, more than 50 pages like this. [00:01:08] Speaker 03: I think that's a violation of- Do you move to unseal those? [00:01:12] Speaker 03: I asked the court to unseal it in my objection. [00:01:14] Speaker 03: The last sentence of the objection asked for it to be unsealed. [00:01:17] Speaker 03: Yes, Your Honor, I did. [00:01:18] Speaker 04: So you had a motion to unseal it. [00:01:19] Speaker 03: I did not file a formal motion because I was not a party to the action. [00:01:23] Speaker 03: I was simply an objector. [00:01:26] Speaker 01: Can't the public move to unseal in the public interest as well, even if you're not a party? [00:01:30] Speaker 03: Absolutely. [00:01:32] Speaker 01: But why didn't you then? [00:01:33] Speaker 03: Bob would require a formal motion to intervene. [00:01:35] Speaker 03: I was there simply as an objector. [00:01:37] Speaker 01: It wouldn't require a formal motion to intervene. [00:01:39] Speaker 01: A member of the public could file a motion to unseal without having to intervene in the litigation. [00:01:45] Speaker 03: Well, if you'd like me to do that, I'll file a motion in every seal. [00:01:49] Speaker 03: I'll file a motion in this court to unseal volume seven of the extra record in the prior appeal. [00:01:56] Speaker 03: I'll do that tomorrow. [00:01:57] Speaker 01: Let me ask why the, even with the sealed complaints, class members weren't able to understand the legal issues of the settlement itself. [00:02:09] Speaker 01: What prohibited you from being able to capture the understanding of what the settlement entailed? [00:02:13] Speaker 03: Well, there are a number of problems. [00:02:15] Speaker 03: The first is that the class notice doesn't clearly explain the nature of the claims in the case or what's at stake. [00:02:22] Speaker 03: It basically refers people to the settlement website. [00:02:26] Speaker 03: At the settlement website, there's a heavily redacted Second Amendment complaint, which has, quite frankly, the claims in it that were ultimately sustained or that had been dismissed by the district court, and a heavily redacted Third Amendment complaint [00:02:41] Speaker 03: which this court sustained the dismissal of. [00:02:45] Speaker 03: But the Ninth Circuit's opinion is not on the settlement website. [00:02:48] Speaker 03: There's no way for a class member who is not educated in law [00:02:52] Speaker 03: to figure out what's going on with those complaints. [00:02:54] Speaker 03: And there's additional complaints. [00:02:56] Speaker 01: So what's the best authority you have for the notion that the notice itself has to have this additional information, such as what was in the Ninth Circuit's opinion or anything else like that? [00:03:09] Speaker 03: Well, I think the rule itself says that you need to have a notice that explains the claims and the defenses. [00:03:17] Speaker 03: And I don't think that the notice explained the claims clearly. [00:03:21] Speaker 03: And I don't think it explained the defenses. [00:03:24] Speaker 03: Now, this is an argument that Mr. Jan has focused on more than I have. [00:03:29] Speaker 03: So if you want specific case citations, he'll be more able to give them to you. [00:03:34] Speaker 03: My two big issues, personally, are the filing under seal, which violates the First Amendment and public rights of access, also violates due process of class members. [00:03:45] Speaker 03: Because class members in a settlement class [00:03:48] Speaker 03: have a right to see the record. [00:03:49] Speaker 04: Well, but the problem is, you haven't asked this, and you haven't asked below, for us to go through and figure out whether any of this should have been sealed or not. [00:04:00] Speaker 04: And so the only issue before us is not whether things should be sealed or not sealed, but looking at the sealed material, was there anything that would have been added? [00:04:11] Speaker 03: Well, I have no idea what would have been added. [00:04:15] Speaker 03: I mean, if I've got 50 pages, [00:04:17] Speaker 03: completely blacked out if I go to a declaration. [00:04:20] Speaker 03: I can go to the settlement website. [00:04:22] Speaker 03: I can see a completely superseded first amended complaint, a second amended complaint heavily redacted, and a third amended complaint heavily redacted. [00:04:32] Speaker 03: No exhibits on any of them. [00:04:34] Speaker 03: I can go to PACER and then download the complaints. [00:04:37] Speaker 03: in their redacted forms. [00:04:38] Speaker 03: It'll cost me 30 bucks a piece to get them with the exhibits, including a lot of them, simply say, filed under seal with no further information. [00:04:48] Speaker 01: So the redacted third amendment complaint, I looked at that this morning, discusses the like button, the collection of user information through cookies, [00:04:55] Speaker 01: when the data was collected and how, and plaintiff's theory of liability and damages. [00:05:01] Speaker 01: Why isn't that information sufficient to give the class an understanding of what the settlement entailed and what those issues were about? [00:05:09] Speaker 03: Because we don't know what's in the portions that were redacted. [00:05:12] Speaker 01: In the third amended complaint, one of the redactions... Any time there's a redacted complaint, a class member has the right to unredact? [00:05:20] Speaker 03: Any time there's a redacted complaint, the court has an obligation [00:05:26] Speaker 03: And to make findings, the redaction is necessary. [00:05:31] Speaker 03: The proponent of redaction has an obligation to make a compelling showing. [00:05:36] Speaker 04: Counsel, that may be true. [00:05:38] Speaker 04: That's not what's on appeal to us right now. [00:05:41] Speaker 04: What's on appeal to us, and I think this was Judge Sanchez's question, is why isn't the unredacted information enough to give you a clue as to what this case is about? [00:05:54] Speaker 03: It may give me a clue. [00:05:56] Speaker 03: It doesn't give me enough information. [00:05:59] Speaker 04: What more would you want? [00:06:01] Speaker 03: I would like to know what was redacted. [00:06:05] Speaker 04: What more would be relevant to whether you would settle this or not? [00:06:11] Speaker 03: They told this court that this material was so critical to their complaint. [00:06:16] Speaker 04: That may be true or not true. [00:06:17] Speaker 04: That's not before us, counsel. [00:06:20] Speaker 04: Counsel, you're not understanding my question. [00:06:22] Speaker 04: That's not before us. [00:06:24] Speaker 04: You didn't make the motion. [00:06:25] Speaker 04: You could have. [00:06:26] Speaker 04: You didn't. [00:06:27] Speaker 04: The only question before us is, what information do you think would have made a difference? [00:06:33] Speaker 04: Can you give me an example of some information that you think might have been redacted that would have made a difference as to whether you would have objected or not? [00:06:42] Speaker 03: Without wild speculation, no, I can't, you're right. [00:06:45] Speaker 03: Other than that, it's very important, it's very embarrassing to them. [00:06:48] Speaker 03: The other problem with this settlement approval [00:06:50] Speaker 03: is that rather than applying the amended version of Rule 23C, which requires the court to consider a number of things, including the provision for attorney's fees and the timing of payment, as well as whether it treats class members equitably relative to one another, rather than applying Rule 23 as amended in 2018, the district court applied a presumption of adequacy [00:07:16] Speaker 03: based on the fact that there were only nine objectors. [00:07:18] Speaker 03: That cannot be sustained under this court's decisions, saying Rule 23C as amended in 2018 controls. [00:07:26] Speaker 03: And the attorney's fee provision is extremely important, Your Honor, because there's a fee-shifting provision. [00:07:31] Speaker 03: If they possibly did the case. [00:07:32] Speaker 01: Can I ask, I saw your argument about the presumption, and I saw that it related to the court's specific discussion of the class's reaction to the proposed settlement. [00:07:43] Speaker 01: But you seem to be making a broader argument that that discussion there, the court was making a presumption of fairness as to everything. [00:07:52] Speaker 01: So where in the record is that argument supported? [00:07:56] Speaker 03: It's supported right in the court's order. [00:07:58] Speaker 03: The court has a heading three, reasonableness and fairness. [00:08:02] Speaker 03: And the first thing it says is that this is reasonable and fair. [00:08:05] Speaker 03: A strong presumption is reasonable and fair. [00:08:08] Speaker 03: Actually, the first thing it says is it's fair based on the handling factors analysis that were in the preliminary approval order. [00:08:14] Speaker 03: There is no such analysis in the preliminary approval order. [00:08:18] Speaker 03: The second thing that it says [00:08:19] Speaker 03: is that there's a strong presumption of fairness and adequacy from the fact that there are only nine objectors. [00:08:25] Speaker 03: And that is absolutely inconsistent with the amended Rule 23C, and absolutely inconsistent with this court's precedence, which prohibits such a assumption. [00:08:37] Speaker 03: I see, unfortunately, my time has run. [00:08:40] Speaker 03: Thank you. [00:08:47] Speaker 05: Good morning, Your Honors. [00:08:49] Speaker 05: John Pence on behalf of Appellants Jan and Feldman. [00:08:55] Speaker 05: Our primary problem with this settlement approval was that the District Court failed to properly value the two statutory claims that survived this Court's 2020 decision and applied an improper measure of maximum possible damages. [00:09:09] Speaker 05: Those two claims, of course, are the Federal Wiretap Act and the California Invasion of Privacy Act. [00:09:16] Speaker 04: Well, Counsel, it seems like you have two problems with that argument. [00:09:18] Speaker 04: Number one is the statute does seem to be permissive as to May. [00:09:25] Speaker 04: But the bigger problem is, and the district court flatly considered this, I mean, you're suggesting there would be 1.25 or 1.24 trillion, that's with a T, dollars in damages. [00:09:39] Speaker 04: You wanted to use this case, or under your theory, you would bankrupt Metta. [00:09:46] Speaker 04: That doesn't strike me as a, and the district court said this, that would violate Metta's due process [00:09:54] Speaker 04: if they were subject. [00:09:57] Speaker 04: to that amount of war. [00:09:58] Speaker 05: Your Honor, you're correct. [00:09:59] Speaker 05: And we readily concede that in both our objection and our brief. [00:10:03] Speaker 05: And I would just point out that although there is a permissive or a discretion under the Wiretap Act, there's no such discretion under the California Invasion of Privacy Act, which provides for- And is that also $10,000 per- That's $5,000. [00:10:16] Speaker 04: That's half as much. [00:10:17] Speaker 05: Oh, so it's only $600 billion. [00:10:19] Speaker 05: They might be able to survive that. [00:10:20] Speaker 05: They're starting to fall into their market capitalization. [00:10:23] Speaker 05: But no, no, I think the cases illustrate what would happen. [00:10:27] Speaker 05: We saw in Wakefield that the court found that and again remember that was a robocall case So even though it was only 900 million the Ninth Circuit found there that it needs to go back for consideration under the Wakefield standards There's another case that we did not cite in our brief. [00:10:43] Speaker 05: It's Golan versus free eats from the Eighth Circuit there a jury awarded a 1.6 billion dollar verdict and then the court and this is key because this what we think would have happened here the court reduced it to some number between [00:10:57] Speaker 05: $500 per class member and zero. [00:11:00] Speaker 05: And I believe it was $10 per class member for a robocall. [00:11:03] Speaker 05: But here, the violation of privacy is much more serious here. [00:11:06] Speaker 01: I mean, this was really spying on- But the issue, I guess, as I understand it, is the district court was relying on class council's estimate of a $900 million settlement or potential recovery under the statute. [00:11:19] Speaker 01: You're saying that was an abuse of discretion because the court should have looked at $1.24 trillion, but I'm hearing you acknowledge that there's a due process problem. [00:11:29] Speaker 01: So what made the district court's consideration of $900 million an abuse of discretion? [00:11:34] Speaker 05: Because the $900 million was based on application of the case State Farm v. Campbell. [00:11:39] Speaker 05: which is a case limiting punitive damages and tethering them to no more than 10 times actual monetary damages. [00:11:46] Speaker 05: But we have Wakefield, which is on point. [00:11:49] Speaker 01: Right. [00:11:50] Speaker 05: But Wakefield explicitly rejected the state farm limitation of 10 to 1. [00:11:54] Speaker 05: Also, in a statutory damages case, actual monetary damages are irrelevant. [00:12:00] Speaker 05: In fact, in this case, we really have none. [00:12:02] Speaker 05: I'm sorry, Facebook claims that they never sold this information, they never monetized it. [00:12:09] Speaker 05: Plaintiffs hire an expert to determine how much their profits went up during the class period and then assume that all of that increase in profits was attributable to their holding on to this internet history information, but that makes little sense. [00:12:25] Speaker 05: to me because if they didn't sell it, they didn't make any money from it. [00:12:29] Speaker 05: But be that as it may, the $90 million figure is based on an expert report that was never even submitted. [00:12:36] Speaker 05: made part of the record. [00:12:38] Speaker 05: And then to use that to then say 10 times that is the maximum. [00:12:42] Speaker 01: We have a case, Rodriguez, that affirmed the district court saying that 10% of a class's estimate of its own maximum damages was reasonable. [00:12:53] Speaker 01: And here, if the court's using $900 million as a benchmark and doing 10% as a reasonable recovery of $90 million, why isn't that a reasonable way to go about it? [00:13:06] Speaker 05: Well, we don't disagree that a 10% recovery on the facts of this case may be a reasonable settlement amount, but there has to be 10% of what the class would realistically recover after trial in front of a jury, and the juries generally don't, they award full damages, because that's what the statute says you do, and even in the class action, and then courts will then reduce that to bring it within the bounds of due process. [00:13:31] Speaker 05: We believe the bounds of due process are far higher than 900 million. [00:13:35] Speaker 05: You know Facebook has already paid five billion in a fine and the goal and you have to look at Wakefield says you look at the goals of the statute to determine whether a resulting verdict or amount or judgment amount is too high and here one of the goals of the statute is deterrence of this kind of activity and you know Facebook is back. [00:13:54] Speaker 04: Well they stopped doing it. [00:13:55] Speaker 04: That was part of the settlement. [00:13:56] Speaker 04: I'd say that's pretty good deterrence. [00:13:57] Speaker 05: Oh they didn't say they'd stop. [00:13:59] Speaker 05: They just destroyed the information they gathered 10 years ago. [00:14:01] Speaker 04: Your time's up. [00:14:02] Speaker 04: We'll move on to our third council. [00:14:11] Speaker 06: Good morning, Your Honors. [00:14:12] Speaker 06: May it please the Court, my name is Kendrick Jan, I represent Feldman and Jan, Objector Appellants. [00:14:18] Speaker 06: And I am just, I would just like to talk about class notice, and if I can get back to Judge Sanchez's issue, I'd be more than happy to do that. [00:14:26] Speaker 06: I'd like to discuss three quick items first, as kind of an overview. [00:14:31] Speaker 06: Phillips, or the Supreme Court in Phillips Petroleum tells us that due process requires [00:14:38] Speaker 06: fully descriptive notice. [00:14:39] Speaker 06: That fully descriptive notice requirement is effectively codified rule 23C. [00:14:46] Speaker 04: So what was defective? [00:14:49] Speaker 04: Maybe that's what would help us to focus on this. [00:14:52] Speaker 04: What was defective? [00:14:53] Speaker 04: What could they have done differently? [00:14:54] Speaker 04: Because I read it and I thought, this is pretty good. [00:14:57] Speaker 04: But you obviously don't agree. [00:14:58] Speaker 04: So what needed to be in there? [00:15:00] Speaker 04: Thank you. [00:15:01] Speaker 04: I absolutely disagree. [00:15:03] Speaker 06: Because we look at Lane and Rodriguez. [00:15:08] Speaker 06: And Lane and Rodriguez, Lane v. Facebook and Rodriguez, both describe something called settlement notice. [00:15:13] Speaker 06: Settlement notice is that which is generally considered to be ordered under Rule 23E1. [00:15:18] Speaker 06: And what Lane and [00:15:22] Speaker 06: Rodriguez state is that settlement notice must generally describe the terms of the settlement and class members interest in the settlement. [00:15:31] Speaker 06: But describing only settlement terms and the right to make a claim does not satisfy the persistent requirements of Rule 23C. [00:15:40] Speaker 06: The good news is that when a court orders settlement notice, the giving of a settlement notice under 23E1, it does not obviate [00:15:51] Speaker 06: 23 C's requirements. [00:15:53] Speaker 06: In fact... Mr. Jane, can I ask you this? [00:15:56] Speaker 01: I understood you to make a procedural challenge to notice below, but you're making a substantive challenge to the notice that was given. [00:16:06] Speaker 01: Did you waive this argument? [00:16:09] Speaker 01: Absolutely not. [00:16:10] Speaker 01: Why not? [00:16:10] Speaker 06: We look at, if you would, our reply page 10, where we describe that we objected to the sufficiency of the notice under 23C2B Roman numeral 3, which is what requires a description of class claims. [00:16:30] Speaker 01: Okay, 23C requires that... But did you give argument as to challenges to the substance of the notice itself and why it was defective? [00:16:40] Speaker 06: We did. [00:16:40] Speaker 06: Our point was the class simply doesn't know enough. [00:16:44] Speaker 06: And the issue, some of the ways we talked about it is, you know, the courts described me, there aren't many of you here. [00:16:50] Speaker 06: There would be a lot more of us here, Your Honor. [00:16:53] Speaker 06: if Moore was told consistent with and to satisfy the requirements of 23C2B sub Roman numeral 3. [00:17:00] Speaker 06: There is no definition of class claims in this case. [00:17:05] Speaker 06: What there is, is Facebook, the notice form describes that a lawsuit has been filed alleging that Facebook [00:17:16] Speaker 06: Generally speaking, and this is a quote, improperly obtained and collected data from users. [00:17:20] Speaker 06: There's slight extension on that description, but that's it. [00:17:23] Speaker 06: That is a description of facts. [00:17:26] Speaker 06: Those facts are never translated to a legal claim. [00:17:31] Speaker 06: And so that is what is required by 23C to be sub 3. [00:17:36] Speaker 01: What about the fact that the notice had a hyperlink to other documents in a way for people to inform themselves more? [00:17:44] Speaker 06: I appreciate that. [00:17:45] Speaker 06: And I appreciate that there is a broader way of getting information to folks. [00:17:50] Speaker 06: But what 23C says is class notice. [00:17:54] Speaker 06: The notice form must be clear, concise, in plain and easily understood language, and provide a statement of class claims. [00:18:03] Speaker 04: But doesn't the class notice have the link? [00:18:06] Speaker 04: I guess you're saying that's on the web. [00:18:08] Speaker 06: Listen, if I give you a, not you, forgive me, if I give your brother or sister a 100 page complaint, [00:18:19] Speaker 06: Is that a clear and concise statement of class claims made in plain and easily understood language? [00:18:25] Speaker 06: No, it's not. [00:18:26] Speaker 06: And here, it's especially troubling. [00:18:28] Speaker 06: Why? [00:18:28] Speaker 06: Because there are multiple complaints listed in the important documents link on the website. [00:18:36] Speaker 06: The one that appears to be operative, that is the most current version, the third amended complaint [00:18:42] Speaker 06: contains nothing of value to these people, none. [00:18:45] Speaker 06: So I say, oh gee whiz, I've got to read hundreds of pages of complaints, I'll disregard these old ones, I'll go right to the third, and I'm reading something that is not even available to me. [00:18:56] Speaker 06: These are the contractual claims that this court said do not exist. [00:19:00] Speaker 06: So do I know that? [00:19:01] Speaker 06: Should I now go back and read the second admitted complaint? [00:19:05] Speaker 06: Why would I? [00:19:06] Speaker 07: Council below, I think you argued that it was the delivery of the notice that you were challenging. [00:19:12] Speaker 07: You're not arguing that anymore? [00:19:13] Speaker 06: You know, I think I used it. [00:19:16] Speaker 06: I did. [00:19:16] Speaker 06: We used the term best practicable. [00:19:19] Speaker 06: And really, best practicable is means. [00:19:22] Speaker 06: And I don't have a problem with the means, because they actually sent an electronic notice, an email notice. [00:19:28] Speaker 06: Oh my goodness, I'm over. [00:19:30] Speaker 06: An email notice of the claim form. [00:19:34] Speaker 06: but the claim form didn't satisfy the requirements of 23C. [00:19:37] Speaker 06: It absolutely did not. [00:19:38] Speaker 06: Now, it was supplemented by this social media program that was supposed to drive folks to the settlement website where these important documents were posted, but those don't satisfy the clear and concise statement of legal claims, and it does not satisfy the plain and easily understood obligation [00:20:00] Speaker 06: of the presentation of these items in the class form itself. [00:20:06] Speaker 04: Okay. [00:20:06] Speaker 04: Thank you. [00:20:07] Speaker 04: And with that I'll reserve your co-council or separate council some time for rebuttal. [00:20:15] Speaker 04: And we're splitting here as well, 10 minutes each. [00:20:19] Speaker 00: Good morning, Your Honors. [00:20:20] Speaker 00: Yes, we ask permission to split this. [00:20:23] Speaker 04: That's fine. [00:20:24] Speaker 04: You're Mr. Strait? [00:20:26] Speaker 00: Yes, Your Honor. [00:20:27] Speaker 00: David Strait, counsel for plaintiffs' appellants. [00:20:30] Speaker 00: As noted before, our counsel for MEDA, Christopher Chorba, will wish to be heard as well, and we'll split approximately 10 minutes. [00:20:38] Speaker 00: In this appeal, the objector appellants, their argument rests on three pillars. [00:20:44] Speaker 00: First, they're asking this court to change existing Ninth Circuit law articulated in Lane versus Facebook and more recently in the Apple device performance opinion. [00:20:54] Speaker 00: Second, they're asking this court to create new functionally unworkable law. [00:20:59] Speaker 00: And third, they're misrepresenting the district court's faithful application of Hanlon and Bluetooth regarding the presumption. [00:21:09] Speaker 00: We believe this to be an historic settlement [00:21:12] Speaker 00: with overwhelmingly positive reaction from the class. [00:21:16] Speaker 00: More than 1.5 million valid claims submitted, only seven or eight or nine objectors, depending how you count the client objectors, and only three here today. [00:21:26] Speaker 00: Plaintiffs are available to answer any questions your honors have, but if none, I respectfully ask that the district court's judgments be affirmed, and I re-yield the rest of my time to counsel for Metta. [00:21:38] Speaker 00: Okay, thank you. [00:21:44] Speaker 02: Good morning, Your Honors. [00:21:45] Speaker 02: May it please the court, Chris Chorba on behalf of defendant Metta at the time of the settlement known as Facebook. [00:21:51] Speaker 02: I'll be equally brief. [00:21:52] Speaker 02: I'd just like to pick up on a few of the issues that the objectors counsel raised. [00:21:56] Speaker 02: First of all, I won't spend very much time on this, but on the ceiling issue, Mr. Isaacson is incorrect. [00:22:01] Speaker 02: He was a party. [00:22:02] Speaker 02: There was a certified class at the preliminary approval order, so therefore he was a member of the class. [00:22:06] Speaker 02: Indeed, he has to be a member of the class in order to have standing to object to it. [00:22:10] Speaker 02: He did not opt out. [00:22:11] Speaker 02: He has class counsel. [00:22:13] Speaker 02: I know they're now in conflict, but at the time this settlement was presented to the district court, he had every opportunity to approach counsel and ask for the information to be unsealed. [00:22:22] Speaker 02: There was no sealing motion, but there were less formal means that he could have pursued, and he simply didn't. [00:22:27] Speaker 02: So there's no basis upon which this court can or should review that decision. [00:22:32] Speaker 02: He's citing to you as well portions that were sealed exhibits. [00:22:36] Speaker 02: The complaints were not any of the pages that he held up to that were entirely blacked out. [00:22:40] Speaker 02: The second amended complaint had only 13 of 57 pages that had parts sealed. [00:22:45] Speaker 02: And for six of those 13 pages, you were talking about a few words. [00:22:48] Speaker 02: So that cannot provide a basis. [00:22:50] Speaker 02: Certainly the complaints contain more than what Rule 8 required, which is a short and plain statement of the relief requested. [00:22:56] Speaker 02: Second, the argument that was raised that Judge Davila somehow applied an incorrect presumption is just factually wrong and it misstates his opinion. [00:23:04] Speaker 02: Judge Nelson will recall. [00:23:05] Speaker 02: that Judge Davila oversaw the Apple decision. [00:23:08] Speaker 02: I was counsel for Apple in that case. [00:23:10] Speaker 02: By the time of the final approval hearing, Judge Davila was well aware and counsel made sure he was well aware not to include that language. [00:23:18] Speaker 02: Judge Nelson, I remember you saying to me when I said what more could Judge Davila had done, how about he applies the correct standard? [00:23:24] Speaker 02: He did that here. [00:23:25] Speaker 02: And the quotation, this court has never held that you can't use the word presumption in any final approval order. [00:23:30] Speaker 02: And that's essentially what their argument is. [00:23:32] Speaker 02: When Judge Davila cited a district court decision, what he specifically said was, the reaction of the class members here has been favorable. [00:23:39] Speaker 02: And that creates a presumption that the terms were favorable. [00:23:43] Speaker 02: Counsel just misrepresented to you and said that he used the words presumption of fairness. [00:23:47] Speaker 02: He did not. [00:23:48] Speaker 02: So that is just factually incorrect. [00:23:50] Speaker 01: And counsel, isn't the reaction of the class one of the handling factors as well? [00:23:55] Speaker 02: Absolutely, your honor. [00:23:56] Speaker 02: And so again, he relied on a district court decision where that district court held that there is a presumption of favorability when you're evaluating that particular handling factor. [00:24:06] Speaker 02: He did not apply the incorrect standard. [00:24:08] Speaker 02: He was again, well aware of it. [00:24:11] Speaker 02: I'll address briefly statutory damages and notice just briefly. [00:24:14] Speaker 02: Statutory damages this court has held in Lane and Rodriguez [00:24:17] Speaker 02: that a district court is not, first of all, a district court may consider only one form of monetary relief. [00:24:24] Speaker 02: A district court is not required in approving the settlement to consider every available form of relief. [00:24:28] Speaker 02: And this is a unique case. [00:24:30] Speaker 02: For purposes of the settlement, class counsel went out and engaged a damages expert who calculated that the $90 million represented 100% of the available disgorgement that was one of their principal theories of damage. [00:24:42] Speaker 02: It's, of course, within class counsel's discretion to consider what relief to seek in a lawsuit because of the obvious due process problems. [00:24:49] Speaker 04: But the district court, I mean, it made that point, but it didn't rely on disgorgement. [00:24:53] Speaker 04: I mean, that seems to be the objectors keep saying, well, you can't just go to disgorgement. [00:24:57] Speaker 04: But that's not what the district court did, right? [00:24:59] Speaker 02: That's correct, Your Honor. [00:24:59] Speaker 02: There was extensive discussion. [00:25:01] Speaker 02: And in addition to his order, I'd encourage the court, if it needs to, to look at the final approval hearing transcript, which was more than three hours. [00:25:07] Speaker 02: He discussed at length the statutory damages and, in fact, objectors [00:25:11] Speaker 02: in that hearing and in their paper said that a one plus trillion dollar damages award would be unconstitutional. [00:25:19] Speaker 02: So we don't think there was error at all. [00:25:21] Speaker 02: To the extent there was error, it was explicitly invited. [00:25:24] Speaker 02: And finally on notice, I would just say two things. [00:25:26] Speaker 02: Number one, the notice here faithfully applied the FJCs, the Federal Judicial Center's template notice. [00:25:32] Speaker 02: We all spend a lot of time in these cases designing notices that's accessible to the class [00:25:36] Speaker 02: so that they can understand them. [00:25:38] Speaker 02: And here, that is exactly what we had. [00:25:41] Speaker 02: And if you look at the very second question, and this is at ER 146, what is this lawsuit about? [00:25:47] Speaker 02: It described in plain English. [00:25:49] Speaker 02: There is no requirement in the law or this court's precedent that a court itemize the specific legal causes of action and contain statutory citations. [00:25:59] Speaker 02: In fact, had we done that, we would have faced a more viable objection that it was incomprehensible to average class members. [00:26:05] Speaker 02: And as your honor noted in one of your questions, [00:26:06] Speaker 02: The complaints were available, and that part wasn't sealed. [00:26:09] Speaker 02: The statutory causes of action, none of that was sealed, nor were the statutory citations. [00:26:14] Speaker 02: The only other argument they have is they cite Rule 23C2B. [00:26:18] Speaker 02: To the extent that argument wasn't waived, let's look at the language of that. [00:26:21] Speaker 02: You spent a lot of time with BIPA. [00:26:22] Speaker 02: I promise you this is a much more simple statutory interpretation. [00:26:26] Speaker 04: It would be hard to get more complicated. [00:26:27] Speaker 02: It would be hard. [00:26:28] Speaker 02: And this one is a very easy one. [00:26:29] Speaker 02: So it's probably a good place for me to end. [00:26:31] Speaker 02: That rule states that the notice must state, quote, the class claims, issues, or defenses. [00:26:36] Speaker 02: First of all, it's in the disjunctive. [00:26:38] Speaker 02: Second of all, it does not say that you have to identify every legal cause of action. [00:26:43] Speaker 02: And in fact, that would run contrary to the FJC's guidance. [00:26:46] Speaker 02: Here, it clearly identified the issues and defenses at a bare minimum. [00:26:50] Speaker 02: So we would dispute that there was any noncompliance with Rule 23C2V. [00:26:53] Speaker 02: Thank you. [00:26:55] Speaker 04: Thank you. [00:26:56] Speaker 04: Oh, you are doing the rebuttal. [00:26:58] Speaker 04: OK, I misunderstood. [00:27:00] Speaker 04: So you got two minutes. [00:27:02] Speaker 06: Thank you, Your Honor. [00:27:03] Speaker 06: Real quickly, regarding Hanlon, the district court did not do a Hanlon analysis. [00:27:13] Speaker 06: And what they're describing when they're talking about Lane is that the court is not obliged to go in and break down every feature of every proposed cause of action and so forth. [00:27:26] Speaker 06: The problem with Lane was, [00:27:28] Speaker 06: is that there was a class, but it was really a class where we had class members that had separate claims. [00:27:36] Speaker 06: They changed, they broadened the settlement class at the end and included folks that had statutory damage claims. [00:27:44] Speaker 06: And so when they're talking about there's no need to consider or calculate the individual statutory damages in lane, what they're saying is we don't have enough information to do that. [00:27:56] Speaker 06: You've brought us some folks who have this claim. [00:27:59] Speaker 06: You haven't told us how many folks have this claim. [00:28:01] Speaker 06: And so we're looking at this in a broad spectrum. [00:28:04] Speaker 06: Here, every class member has the same statutory damages claim, whether it's Wiretap Act or it's the Information Privacy Act. [00:28:13] Speaker 06: It's either 10,000 in gross potential or 5,000 in gross potential. [00:28:18] Speaker 06: We realize that the damages, the aggregated statutory damages [00:28:23] Speaker 06: our excessive Wakefield, if it was an award, would take that 1.4 and say, we're going to look at where this number becomes oppressive, and we're gonna reduce it by due process standards accordingly. [00:28:37] Speaker 06: But what we've asked the court to do is what it is required to do under Hanlon, which is look at the strength of the case. [00:28:44] Speaker 06: When you look at the strength of the case, you cannot look at it in a vacuum. [00:28:47] Speaker 06: What are the gross calculable statutory damages? [00:28:50] Speaker 06: Now, let's adjust those according to [00:28:53] Speaker 06: litigation risk, and then let's talk about how those would be adjusted by due process. [00:28:59] Speaker 06: That makes good sense. [00:29:01] Speaker 06: It's very, very simple. [00:29:03] Speaker 06: We're not asking for a complex calculation. [00:29:06] Speaker 06: It's A, number of class members times B. Thank you, counsel. [00:29:09] Speaker 06: Oh, sorry for being so long. [00:29:11] Speaker 04: It goes quick. [00:29:12] Speaker 04: No, your arguments were well taken, and I appreciate all counsel in this case, and the case is now submitted, and we are adjourned for the day.