The Kroll Lens: Monitoring Class Action Settlements – 2023, Volume V

In Re: Google, Inc. Cookie Placement Consumer Privacy Litigation

A class of web browser users commenced an action against Google, Inc., alleging privacy settings issues related to use of the program. Plaintiffs filed a motion for final certification and final approval, but the Court denied the motion, finding it necessary for Plaintiffs to establish ascertainability as a prerequisite for certification, which counsel had conceded could not be met.

In support of its decision, the Court first looked at Rule 23(a). Numerosity was met by the parties' statements that it would be impossible to identify every affected individual. The Court also found that commonality and typicality both stemmed from the actions of the company regarding the class as a whole and whether these practices violated California law. Additionally, the Court found that counsel was experienced and that no conflicts existed that would undermine adequacy.

Turning next to Rule 23(b), the Court found that certification as a Rule 23(b)(2) injunctive class had been rejected by the Third Circuit, and that the parties now sought Rule 23(b)(3) certification but with the argument that the class should be certified under Rule 23(b)(2) anyway, and not the heightened requirements of subsection (b)(3). The Court rejected this standard and instead considered certification under Rule 23(b)(3) for predominance and superiority.