«1 LARRY C. RUSS (SBN 82760) DORIAN S. BERGER (SBN 264424) lruss dberger 2 NATHAN D. MEYER (SBN 239850) DANIEL P. HIPSKIND ...»
Case 5:13-cv-04303-LHK Document 126-1 Filed 01/14/16 Page 1 of 86
1 LARRY C. RUSS (SBN 82760) DORIAN S. BERGER (SBN 264424)
2 NATHAN D. MEYER (SBN 239850) DANIEL P. HIPSKIND (SBN 266763)
3 RUSS AUGUST & KABAT OLAVI DUNNE LLP
12424 Wilshire Boulevard, 12th Floor 1880 Century Park East, Ste. 815 4 Los Angeles, California 90025 Los Angeles, California 90067 Telephone: (310) 826-7424 Telephone: (213) 516-7900 5 Facsimile: (310) 826-6991 Facsimile: (213) 516-7910 6 MICHAEL W. SOBOL (SBN 194857) firstname.lastname@example.org 7 NICHOLAS R. DIAMAND (Pro Hac Vice) email@example.com 8 MELISSA GARDNER (SBN 289096) firstname.lastname@example.org
9 LIEFF CABRASER HEIMANN & BERNSTEIN, LLP275 Battery Street, 29th Floor 10 San Francisco, CA 94111 Telephone: (415) 956-1000 11 Facsimile: (415) 956-1008 12 Class Counsel 13
14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA16 SAN JOSE DIVISION PAUL PERKINS, PENNIE SEMPELL, ANN Case No. 13-CV-04303-LHK 17
BRANDWEIN, ERIN EGGERS, CLARE
CONNAUGHTON, JAKE KUSHNER, DECLARATION OF NICHOLAS18
NATALIE RICHSTONE, NICOLE CROSBY, DIAMAND IN SUPPORT OF
SETTLEMENT20 Plaintiffs, v.
21 HEARING Judge: Hon. Lucy H. Koh
LINKEDIN CORPORATION,22 Date: February 11, 2016 Defendant. Time: 1:30 p.m.
23 Location: Courtroom 8 – 4th Floor 24 25 26 27 28
DECLARATION OF NICHOLAS DIAMAND ISO
-1- MOTION FOR FINAL APPROVALCASE NO. 13-CV-04303-LHK Case 5:13-cv-04303-LHK Document 126-1 Filed 01/14/16 Page 2 of 86 1 I, Nicholas Diamand, hereby declare:
2 1. I am a partner in the law firm of Lieff, Cabraser, Heimann & Bernstein, LLP 3 (“LCHB”), and, together with counsel at Russ August & Kabat PC, and Olavi Dunne LLP, serve 4 as Class Counsel in this action. I am admitted pro hac vice to practice before this Court, and I am 5 a member in good standing of the New York State Bar. I submit this Declaration in support of 6 Plaintiffs’ Motion for Final Approval of Class Action Settlement. I have personal knowledge of 7 the matters set forth herein, and could and would testify competently thereto if called upon to do 8 so.
9 I. Implementation of the Notice Plan 10 2. Pursuant to the Court’s Order Granting Preliminary Approval of Proposed 11 Settlement, Directing Notice to Class, and Setting Final Approval Hearing (“Preliminary 12 Approval Order”) (Dkt. No. 106), Class Counsel worked together with counsel for LinkedIn and 13 Gilardi & Co. LLC (“Gilardi”), the Court-appointed Settlement Administrator to effect the Notice 14 Plan submitted to and approved by the Court in the preliminary approval process. Based upon my 15 experience in complex litigation, I respectfully endorse this Settlement as fair, reasonable and 16 adequate.
17 3. Specifically, at approximately 3:00 p.m. Pacific Time on October 2, 2015, 18 LinkedIn emailed Email Notice of the Proposed Settlement in substantially the form approved by 19 the Court (Dkt. No. 106-2) to the email address on file with LinkedIn for members of the Class.
20 4. Shortly after the Email Notice was disseminated at approximately 3:00 p.m., due 21 to the volume of hits to the Settlement Website (www.addconnectionssettlement.com), some 22 visitors to the website experienced slow load of the website. I immediately contacted numerous 23 team members of the Settlement Administrator who informed me they were actively working to 24 resolve the issue as quickly as possible. I also contacted other Class Counsel lawyers and staff as 25 well as counsel for LinkedIn to ensure we had an interim game plan to address potential concerns 26 and questions from Class Members. Shortly thereafter that day, the issue was remedied and all 27 Class Members were able to submit Claims electronically through the Settlement Website. The 28 following weekend (Saturday, October 3 and Sunday, October 4) and on an ongoing basis, I
DECLARATION OF NICHOLAS DIAMAND ISO
-2- MOTION FOR FINAL APPROVAL CASE NO. 13-CV-04303-LHK Case 5:13-cv-04303-LHK Document 126-1 Filed 01/14/16 Page 3 of 86 1 monitored the website functionality myself and via calls and emails with the team at Gilardi. I 2 did not observe any issues that weekend – or thereafter – and am informed that Gilardi did not 3 either.
4 5. On October 15, pursuant to Section 5.1.1 of the Settlement, and 11 of the 5 Preliminary Approval Order, at approximately 5:00 p.m. Pacific Time, LinkedIn attempted to resend the Email Notice to the email address for which the Email Notice had resulted in a bounceback or was otherwise undeliverable. On October 16, the Settlement Administrator informed me 8 that Class Members would not have encountered any errors in their attempts to visit the 9 Settlement Website, review Case Documents, or file a Claim following the October 15 10 dissemination of the Email Notice.
11 6. On December 21, 2015, counsel for LinkedIn informed me that according to 12 LinkedIn’s records, 115,147 Claims filed without using a Claim ID did not appear to have 13 originated from Class Members. I understand from Gilardi that 3,125 of the email addresses 14 submitted by such claimants were invalid.
15 7. Subsequently, and pursuant to that discussion and in accordance with Section 3.2.4 16 of the Settlement Agreement, the Settlement Administrator, with assistance from Class Counsel 17 and counsel for LinkedIn crafted a procedure for the 112,022 such claimants who had provided 18 valid contact email addresses with their Claims to cure the deficiencies in their Claims.
19 8. Class Counsel, the Settlement Administrator and Counsel for LinkedIn concurred 20 that initiating this process at the end of December and carrying it over into the holiday period, in 21 order to include this data within Plaintiffs’ submission of this motion in support of final approval 22 by January 14, 2016, risked recipients either overlooking the email itself or failing to submit the 23 relevant materials in a timely fashion. Therefore, although the materials were prepared for 24 dissemination at the end of December 2015, the parties agreed to a January timeline for this 25 process.
26 9. On January 6, 2016, in consultation with the Parties, the Settlement Administrator 27 emailed a Notice of Deficiency to these 112,022 potentially valid Claimants, which contained a 28 hyperlink to a webpage created by the Settlement Administrator where Claimants could re-submit
DECLARATION OF NICHOLAS DIAMAND ISO
-3- MOTION FOR FINAL APPROVAL CASE NO. 13-CV-04303-LHK Case 5:13-cv-04303-LHK Document 126-1 Filed 01/14/16 Page 4 of 86 1 the email address associated with their LinkedIn account, or their unique Claim ID, in order to 2 validate their claim. The deadline for Claimants to respond to the Notice of Deficiency is January 3 20, 2016.
4 10. Class Counsel will report on the outcome of this process, as well as the final 5 numbers of Class Members who have submitted valid Claims, on or before February 4, 2016 6 together with the filing of Plaintiffs’ reply brief in support of Plaintiffs’ fees, costs and service 7 awards.
8 II. Media Coverage of the Settlement 9 11. National news media published information about the Settlement following 10 dissemination of the Email Notice on October 2, 2015. A search on Google News 11 (www.news.google.com) for the term “LinkedIn Settlement” recalls at least 190 individual 12 articles posted in and around early October 2015 responsive to the term, all of which the search 13 engine has categorized as relating to this Settlement. Attached hereto as Exhibit 1 is a screenshot 14 of the Google News search results for term “LinkedIn Settlement.” 15 12. A majority of the articles covering the Settlement and claims process provided 16 accurate information to the public, such as by posting excerpts from the Email Notice and/or 17 direct links to the Settlement Website or the Claim Form. For example, attached hereto as 18 Exhibit 2 is an article by Jillian D’Onfro of Business Insider, which provided information about 19 the Settlement and pasted a copy of the Email Notice within the article. (Jillian D’Onfro, LinkedIn 20 Might Have To Pay You Money For Spamming Your Email Contacts, BusinessInsider.com, 21 October 2, 2015 (available at http://www.businessinsider.com/linkedin-settles-class-actionlawsuit-2015-10 (last visited January 9, 2016)). Attached hereto as Exhibit 3 is an article posted 23 online by The Guardian, which, in the text of the article, provided a link to the Email Notice 24 (Unnamed Author, LinkedIn Settles Lawsuit Over 'Add Connection' Feature For $13m, 25 TheGuardian.com, October 7, 2015 (available at 26 http://www.theguardian.com/technology/2015/oct/07/linkedin-lawsuit-add-connection-feature 27 (last visited January 9, 2016)).
DECLARATION OF NICHOLAS DIAMAND ISO
-4- MOTION FOR FINAL APPROVAL CASE NO. 13-CV-04303-LHK Case 5:13-cv-04303-LHK Document 126-1 Filed 01/14/16 Page 5 of 86 1 13. Among the articles covering the Settlement and claims process, certain coverage 2 provided inaccurate information. The two most common inaccuracies were (1) that the 3 Settlement entitled Claimants to payments of up to $1,500; and (2) that LinkedIn users who 4 received unwanted invitation or reminder emails were members of the Class. Immediately 5 following dissemination of the Email Notice, LCHB attorney Melissa Gardner monitored the 6 media for such inaccuracies, and, in conjunction with members of LCHB’s Marketing 7 Department, attempted to locate the contact information for the author of each inaccurate article 8 published between October 2 and October 7, 2015, when the vast majority of coverage about the 9 Settlement and claims process occurred. Ms. Gardner worked with LCHB’s Marketing 10 Department to contact the most widely-distributed publications and request that corrections to the 11 factual content of the articles be made. Corrections were issued by the Los Angeles Times online 12 (see Exhibit 4, Samantha Masunaga, LinkedIn Agrees To Pay $13 Million In ‘Spam’ Settlement, 13 Los Angeles Times October 6, 2015 (with correction), (available at 14 http://www.latimes.com/business/la-fi-linkedin-Settlement-20151006-story.html (last visited 15 January 9, 2016); Marie Claire online (see Exhibit 5, Michael Sebastian, Heads Up, LinkedIn 16 Might Owe You Money - *Scrambles To Check Inbox*, MarieClaire.com, October 6, 2016 (with 17 correction) (available at http://www.marieclaire.com/career-advice/news/a16220/linkedin-mightowe-you-money/ (last visited January 9, 2016); and the news website Buzzfeed.com (see Exhibit 19 6, Rachel Zarrell, If You Use LinkedIn It May Owe You Compensation From A $13 Million 20 Settlement, BuzzFeed.com, October 6, 2015 (with correction). Because many articles failed to 21 identify the author, a number of reporters could not be reached.
22 III. Class Member Response to the Settlement 23 14. As of January 14, 2016, the Settlement Administrator, with the assistance of Class 24 Counsel and LinkedIn, has determined that 567,816 individuals timely submitted Claim Forms, of 25 which Claims, to date, 433,047 have been determined to be valid, timely, non-duplicate Claims 26 submitted by Class Members. 145 individuals have requested exclusion from the Settlement. 85 27
1 individuals have filed objections, of which eight objections fully comply with the requirements of 2 this Court’s Order for submitting a valid objection, (and 77 of which do not).
3 15. Since September 15, 2015, when the Court granted preliminary approval of the 4 Settlement (Dkt. No. 106), 53 Class Members have contacted LCHB directly, by email or 5 telephone, with questions and requests regarding the Settlement. To date, LCHB has directly 6 received 28 e-mails, 24 calls, and 1 letter from potential Class Members. Ms. Gardner or I often 7 personally answered these questions and responded to these requests. For the remainder, we 8 worked with and supervised LCHB paralegal Miriam Gordon who answered questions and 9 responded appropriately to requests.
10 16. The most common subjects of inquiries from Class Members were (1) general 11 questions regarding the litigation and proposed Settlement, (2) requests for information regarding 12 how to file a claim, and (3) assistance in determining if someone was a Class Member. In all 13 instances, we referred the individual to the Settlement Website.
14 17. In response to Class Member inquiries regarding the litigation and the Settlement 15 generally, we answered specific Class Member questions, explained what the case is about, the 16 terms of the Settlement, and explained Class Members’ options with respect to the Settlement.
17 18. In response to Class Member inquiries regarding submitting a Claim Form, we 18 explained to Class Members how to file a claim online, or by mail. When Class Members 19 requested that a paper or electronic copy of the Claim Form be emailed or mailed to them, we 20 provided a copy as requested.
21 19. In response to Class Member inquiries about whether an individual was a Class 22 Member, we explained the scope of the Class definition, and provided information on how to 23 ascertain whether they had used LinkedIn’s Add Connections feature.
24 20. Many Class Members and members of the public contacted Class Counsel and the 25 Court to express their support of the litigation and the Settlement. Examples include 26 correspondence received by the Court from June Barrett (Dkt. No. 124, at 8-10); Diane Hiltman 27 (Dkt. No. 108, at 23-34); and Ronald Campbell (Dkt. No. 109, at 5-6).