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

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

No. 12-MD-2358, 2023 WL 4420431 (D. Del. Jul 10, 2023) (Robreno, J.)

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.

 

The Court began this review by noting the Third Circuit’s precedent requiring that the class be ascertainable for certification under 23(b)(3). Here, the parties had conceded that the class was not ascertainable but argued that the ascertainability prong concerning a feasible identification mechanism was unnecessary and irrelevant to such a class. The Court disagreed, finding that such a mechanism was necessary (among other reasons) to ensure the clear identification of those to be bound by a final judgment, as well as to protect the rights of absent class members.

As such, the Court did not complete the analysis of the settlement agreement for fairness.