Hanson - Motion to Dismiss Appeal.DOC by gdf57j

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                      UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT

CLRB HANSON INDUSTRIES, LLC
d/b/a INDUSTRIAL PRINTING, and                   No. 09-17380
HOWARD STERN, on behalf of
themselves and all others similarly
situated,
                                                 APPELLEE’S MOTION TO
                     Plaintiffs-Appellees,       DISMISS APPEAL

v.
WEISS & ASSOCIATES, PC,
                     Objector-Appellant,

v.
GOOGLE, INC.,
                     Defendant-Appellee.



                              I.     INTRODUCTION
         On October 14, 2009, Appellant Weiss & Associates, PC, filed a Notice of

Appeal of the district court’s Final Judgment and its Order Approving Award of

Attorney’s Fees and Expenses, and Class Representative Incentive Compensation

Award, both entered on September 14, 2009. No other Class Member filed a

Notice of Appeal. This sole appeal relates to an objection filed by Matthew Weiss,




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an attorney and seasoned objector to class action settlements.1 The appeal will

delay the distribution of a substantial settlement to Class Members in a case that

has been pending for over four years.

         This appeal should be dismissed because Appellant Weiss & Associates, PC,

did not file a proper and timely objection in the district court. Failing to file an

objection with the district court waived Appellant’s right to appeal the district

court’s Final Judgment and Order Approving Award of Attorneys’ Fees and

Expenses, and Class Representative Incentive Compensation Award.               On this

basis, Appellees seek dismissal of the appeal.




1
  Mr. Weiss testified that his law firm retained two Florida attorneys, Paul
Rothstein and Albert Bacharach, to represent him in objecting to this class action
settlement. See Matthew Weiss Dep. 23:3–14, Aug. 6, 2009 (district court Docket
No. 343-1, attached hereto as Exhibit 1). He further testified he has worked
together with both attorneys in objecting to class action settlements and that he has
objected to “roughly ten” class action settlements. Id. at 25:23 – 26:22.

Messrs. Rothstein and Bacharach are also seasoned class action objectors. They
have filed objections to other class action settlements with attorney Steve Miller
(who also filed an objection with the district court on behalf of two Class Members
in this action, but did not file a Notice of Appeal), and on at least one occasion they
received a fee for dismissing an appeal of a class action settlement without any
modification to the settlement. See Decl. of Lester L. Levy in Supp. of Pls.’ Mot.
for Final Approval of Class Action Certification and Settlement; Pls.’ Mot. for
Award of Att’ys’ Fees and Expenses and Class Representative Incentive
Compensation Award; and Pls.’ Resp. to Class Member Objections ¶ 98 & Exs. B–
C (district court Docket No. 343, attached hereto as Exhibit 2, with Exhibits B and
C thereto).



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                      II.    PROCEDURAL BACKGROUND

         On May 12, 2009, the district court issued an Order Certifying Settlement

Class and Granting Preliminary Approval of Class Action Settlement (“Order

Granting Preliminary Approval”) (district court Docket No. 319, attached hereto as

Exhibit 3). In that Order, the Court stated that all objections must be delivered to

counsel and filed on or before July 14, 2009, and that all objections must contain

proof that the objector was a Class Member:

         [N]o Class Member shall be heard or entitled to contest the approval
         of terms and conditions of the proposed Settlement, the Order and
         Final Judgment to be entered approving the same, the Plan of
         Allocation, or the Fee and Expense Application, unless on or before
         July 14, 2009, that Class Member has served by hand or by first-class
         mail written objections and copies of all briefs or other papers (which
         must contain proof of the dates that the person was an AdWords
         Advertiser) upon Representative Plaintiffs’ Counsel . . . and upon
         counsel for Google . . . and has filed said objections, papers and
         briefs, showing due proof of service upon Representative Plaintiffs’
         Counsel and counsel for Google with the Clerk of the Court.

Id. at ¶ 11 (emphases added); see also id. at 13 of Ex. 1 thereto (“Any such

objection shall include all briefs and other papers to be considered by the Court,

and must include the name and address of the person and the dates that the person

was an AdWords Advertiser . . . .”). The Court further stated that any objector

who did not abide by the above would be deemed to have waived the objection:

         Any Member of the Class who does not object in the manner provided
         shall be deemed to have waived any such objection, and shall
         forever be foreclosed from making any objection to the fairness,
         adequacy or reasonableness of the proposed Settlement, the Final


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         Judgment to be entered approving the Settlement, the Plan of
         Allocation, or the Fee and Expense Application.

Id. at ¶ 12 (emphasis added).

         On July 14, 2009, Matthew Weiss filed objections to the proposed

settlement. See Prelim. Objections to Proposed Settlement and Notice of Intent to

Appear at Fairness Hr’g (“Weiss Objection”) (district court Docket No. 329,

attached hereto as Exhibit 4).      Although the objection provides an AdWords

account number and address for Mr. Weiss, it provides no proof or specificity of

the dates that Mr. Weiss was an AdWords Advertiser, as required by the Order

Granting Preliminary Approval (indeed, no such proof exists because, as set forth

below, Mr. Weiss was never an AdWords Advertiser).              Indeed, Mr. Weiss’s

objection is not supported by any declaration or evidence whatsoever, and contains

only a general averment by Mr. Weiss’s attorney that Mr. Weiss became an

AdWords Advertiser at some point during the class period (“between June 1, 2005

and February 28, 2009, inclusive”). See id. at 2.

         The following day, Mr. Weiss’s attorney filed a Notice of New Address,

again listing his client as “Objector Matthew Weiss.” See district court Docket No.

332, at 1 (attached hereto as Exhibit 5).

         Mr. Weiss subsequently admitted that he is not a member of the Class at all

and had no standing to object to the Settlement. He testified in his individual

capacity at a deposition taken by Representative Plaintiffs’ Counsel on August 6,


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2009, and admitted that although he was not an AdWords advertiser, he personally

had a fee arrangement with the attorneys representing him that entitled him to

receive “25% of any legal fee that is given as a result of our objection and any

enhancements.”       See Matthew Weiss Dep. 3:24–4:4, 34:11–17 (district court

Docket No. 343-1, attached hereto as Exhibit 1).

         Mr. Weiss’s attorney Richard Abend attempted to cure the standing

deficiency in the Weiss Objection by proclaiming during Mr. Weiss’s deposition

that “the name was incorrectly placed” on the objection, and that the objection

“should have read ‘Weiss & Associates, P.C.,’ not ‘Matthew Weiss’ individually.”

Id. at 3:12–18.      Later that same day, Mr. Weiss’s attorney of record Alan

Sherwood filed a Notice of Scrivener’s Errors, which purports to (1) change the

name of the purported objector from “Matthew Weiss” to “Weiss & Associates,

PC,” and (2) add a new AdWords Account number. See district court Docket No.

335, at 1–2 (attached hereto as Exhibit 6). Neither Mr. Weiss nor his law firm

requested permission from the Court to file a late objection; nor did they request or

obtain the Court’s permission to substitute Weiss & Associates, PC, as the

objector.

         Representative Plaintiffs’ counsel responded to the Weiss Objection, arguing

that the “untimely attempt to substitute a new objector should be denied.” Pls.’

Resp. to Class Member Objections 9 (district court Docket No. 341, attached



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hereto as Exhibit 7). The Court permitted counsel representing Mr. Weiss and his

law firm to speak at the settlement hearing and overruled the objection. Final J. 1

(district court Docket No. 346, attached hereto as Exhibit 8).

                                III.   ARGUMENT
         Weiss & Associates, PC, did not file a timely and proper objection and

therefore has no “power to appeal.” Devlin v. Scardelletti, 536 U.S. 1, 11, 122 S.

Ct. 2005, 2011, 153 L. Ed. 2d 27 (2002) (“[T]he power to appeal is limited to those

nonnamed class members who have objected during the fairness hearing.”). The

attempt to substitute Weiss & Associates, PC, as the objector was invalid on two

grounds. First, the objection by Weiss & Associates, PC, was untimely because

the entity attempted to substitute itself as a new objector long after the July 14,

2009 deadline for submitting written objections. Second, Weiss & Associates, PC,

did not provide in its untimely written objection the requisite proof of the dates that

it was an AdWords advertiser. The district court did not waive any of these

requirements for Weiss & Associates, PC; nor did it issue an order permitting

Weiss & Associates, PC, to be substituted as the objector or otherwise hold that the

requirements for submitting objections set forth in the district court’s Order

Granting Preliminary Approval were waived as to Weiss & Associates, PC.

         Having failed to file a proper, timely objection with the district court,

Appellant has waived its right to appeal the district court’s Final Judgment and



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Order Approving Award of Attorneys’ Fees and Expenses, and Class

Representative Incentive Compensation Award.          See id. at 13 (stating that an

untimely objection “implicates basic concerns about waiver and should be easily

addressable by a court of appeals”); Glass v. UBS Fin. Servs., Inc., Nos. 07-15278

& 07-15309, 2009 WL 1360920, at *3 (9th Cir. May 14, 2009) (affirming district

court’s denial of class member D’Aria’s motion to intervene, stating: “In order to

challenge the fairness of the settlement or the reasonableness of class counsel’s

fees, D’Aria must either submit a timely objection to the settlement or be granted

leave to intervene.”); see also In re Plastics Additives Antitrust Litig., No. 08-3358,

2009 WL 405522, at *1 (3d Cir. Feb. 19, 2009) (“For an unnamed class member to

have standing to appeal a decision in a class action, he or she must have properly

raised objections to that decision during the pendency of the litigation.”) (citing

Devlin, 536 U.S. at 8–9, 122 S. Ct. 2005, 153 L. Ed. 2d 27); In re Integra Realty

Resources, Inc., 354 F.3d 1246, 1257 (10th Cir. 2004) (holding that class members

who neither objected nor sought to intervene in the district court had no right to

appeal settlement, stating: “Devlin reinforces the proposition that an unnamed class

member who does not opt out and desires to appeal a class settlement must at least

object in the district court”). Accordingly, Weiss & Associates, PC, has no basis

for appealing the district court’s order, and its appeal should be dismissed.




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                               IV.   CONCLUSION

         For all of the foregoing reasons, the appeal submitted by Weiss &

Associates, PC, should be dismissed. A professional class action objector that

failed to file a proper and timely objection with the district court should not be

permitted to delay distributions to the Class Members. Distribution from the $20

million settlement fund should proceed as ordered by the district court, without

further delay.

Dated: October 28, 2009.         Respectfully submitted,
                                 LESTER L. LEVY
                                 MICHELE FRIED RAPHAEL
                                 WOLF POPPER LLP
                                 845 Third Avenue
                                 New York, NY 10022
                                 Telephone: (212) 759-4600
                                 Facsimile: (212) 486-2093
                                 E-Mail: llevy@wolfpopper.com
                                 E-Mail: mraphael@wolfpopper.com

                                 MARC M. SELTZER (CSB #54534)
                                 SUSMAN GODFREY L.L.P.
                                 1901 Avenue of the Stars, Suite 950
                                 Los Angeles, CA 90067-6029
                                 Telephone: (310) 789-3100
                                 Facsimile: (310) 789-3150
                                 E-Mail: mseltzer@susmangodfrey.com

                                 STEPHEN D. SUSMAN (TXB #19521000)
                                 SUSMAN GODFREY L.L.P.
                                 1000 Louisiana Street, Suite 5100
                                 Houston, TX 77002
                                 Telephone: (713) 651-9366
                                 Facsimile: (713) 654-6666
                                 E-Mail: ssusman@susmangodfrey.com

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                                 RACHEL S. BLACK (WSBA #32204)
                                 DANIEL J. SHIH (WSBA #37999)
                                 SUSMAN GODFREY L.L.P.
                                 1201 Third Avenue, Suite 3800
                                 Seattle, WA 98101
                                 Telephone: (206) 516-3880
                                 Facsimile: (206) 516-3883
                                 E-Mail: rblack@susmangodfrey.com
                                 E-Mail: dshih@susmangodfrey.com


                                 By /s/ Rachel S. Black
                                 Rachel S. Black
                                 Attorneys for Plaintiffs-Appellees




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                            CERTIFICATE OF SERVICE
      I hereby certify that on October 28, 2009, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.

      Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.

      I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepaid, or have dispatched it to a third party commercial carrier for
delivery within 3 calendar days, to the following non-CM/ECF participants:

         William M. Audet
         Adel A. Nadji
         Kevin Lee Thomason
         AUDIT & PARTNERS, LLP
         221 Main Street. Suite 1460
         San Francisco, CA 94105

         David T. Biderman,
         Farschad Farzan
         M. Christopher Jhang
         Lisa Delehunt Olle
         PERKINS COIE LLP
         Four Embarcadero Center , Suite 2400
         San Francisco, CA 94111-4131

         Alan J. Sherwood
         LAW OFFICE OF ALAN J. SHERWOOD
         1300 Clay Street, Suite 600
         Oakland, CA 94612



                                  /s/ Rachel S. Black




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 1   LESTER L. LEVY (Admitted Pro Hac Vice)
     MICHELE FRIED RAPHAEL (Admitted Pro Hac Vice)
 2   WOLF POPPER LLP
     845 Third Avenue
 3   New York, NY 10022
     Telephone: (212) 759-4600
 4   Facsimile: (212) 486-2093
     E-Mail: llevy@wolfpopper.com
 5   E-Mail: mraphael@wolfpopper.com
 6

 7
                                      UNITED STATES DISTRICT COURT
 8
                                   NORTHERN DISTRICT OF CALIFORNIA
 9
                                               SAN JOSE DIVISION
10

11   CLRB HANSON INDUSTRIES, LLC d/b/a                          Case No. C 05-03649 JW PVT
     INDUSTRIAL PRINTING, and HOWARD
12   STERN, on behalf of themselves and all others              DECLARATION OF LESTER L. LEVY
     similarly situated,                                        IN SUPPORT OF PLAINTIFFS’
13                                                              MOTION FOR FINAL APPROVAL OF
                              Plaintiffs,                       CLASS ACTION CERTIFICATION AND
14                                                              SETTLEMENT; PLAINTIFFS’ MOTION
             vs.                                                FOR AWARD OF ATTORNEYS’ FEES
15                                                              AND EXPENSES AND CLASS
     GOOGLE, INC.,                                              REPRESENTATIVE INCENTIVE
16                                                              COMPENSATION AWARD; AND
                              Defendant.                        PLAINTIFFS’ RESPONSE TO CLASS
17                                                              MEMBER OBJECTIONS
18                                                              Date: September 14, 2009
                                                                Time: 9:00 a.m.
19                                                              Place: Courtroom 8
20
     I.      INTRODUCTION
21

22           I, LESTER L. LEVY, being duly admitted to the practice of law in the State of New York,

23   and pro hac vice in this action, do hereby declare:
24           1.       I am a member of the law firm Wolf Popper LLP (“Wolf Popper”), which together
25
     with Susman Godfrey L.L.P. (“Susman Godfrey”; collectively referred to as “Representative
26

27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   plaintiffs’ Counsel,1”) are counsel for Representative Plaintiffs Howard Stern and CLRB Hanson
 2   Industries LLC (“CLRB Hanson”; collectively “Plaintiffs” or “Representative Plaintiffs”) and the
 3
     Class in this action. Our firms were responsible for the investigation and prosecution of this class
 4
     action against Defendant Google Inc. (“Google”), challenging Google’s representations as to the
 5
     cost of its AdWords advertising program. Plaintiffs alleged that contrary to Google’s promotion
 6

 7   of its AdWords program as allowing AdWords advertisers to set and be billed no more than their

 8   daily budget, and to pause their advertisement without charge, Google billed them more than their

 9   daily budget on any given day and used paused days to absorb excess charges from other days, in
10
     breach of the AdWords agreement and in violation of Cal. Bus. & Prof. Code §§ 17200 et. seq.
11
               2.     I make and submit this Declaration in support of (a) approval of the Settlement set
12
     forth in the Settlement Agreement and Release, dated March 17, 2009, which includes Settlement
13
     Proceeds of $20,000,000, plus accrued interest from March 27, 2009, as fair, reasonable and
14

15   adequate to the Class; (b) payment of attorneys’ fees in the amount of $5 million plus accrued

16   interest; (c) reimbursement of Wolf Popper’s expenses in the amount of $116,929.50; and (d)
17   payment of $20,000 to each Representative Plaintiff as a result of their representation of the
18
     Class and in recognition of their time, effort and willingness to assist in the prosecution of this
19
     action.
20
               3.     The Settlement was achieved after three and a half years of contentious and hard-
21

22   fought litigation. Multiple motions to dismiss were filed, briefed, and argued, as well as multiple

23   motions and cross-motions for summary judgment. As of this date, there are 338 docket entries.

24   Notably, each motion posed the risk that Plaintiffs’ claims could have been dismissed or that
25   judgment could have been entered against them.
26

27
       1
        Defined terms shall have the meaning assigned thereto in the Settlement Agreement and Release
28   executed on March 17, 2009.
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           4.       This Settlement was reached only after:
 2                    a.      Plaintiffs’ counsel did an extensive investigation of the relevant facts and
 3
             law to formulate the allegations contained in the Class Action Complaint, the Amended
 4
             Class Action Complaint and the Second Amended Class Action Complaint, including
 5
             accessing and reviewing customers’ accounts and online AdWords terms and tutorials;
 6

 7                    b.      Plaintiffs’ counsel, through briefing and oral argument, successfully

 8           defeated Defendant Google’s repeated motions to dismiss the action and claims;

 9                    c.      Representative Plaintiffs’ Counsel participated in numerous meet and
10
             confer sessions and pre-motion conferences on discovery issues;
11
                      d.      Representative Plaintiffs’ Counsel defended Plaintiffs’ depositions and
12
             together with Plaintiffs, responded to and opposed approximately 150 combined document
13
             requests and 50 combined interrogatories;
14

15                    e.      Representative Plaintiffs’ Counsel prepared and served interrogatories,

16           document requests and requests for admission upon Defendant;
17                    f.      Representative Plaintiffs’ Counsel obtained more than one hundred
18
             thousand pages of documents from Google, took numerous depositions, including those of
19
             Google engineers concerning technical aspects of the AdWords program;
20
                      g.      the parties engaged in protracted settlement negotiations, which included
21

22                    selecting and engaging in a mediation session before a professional mediator

23           through JAMS;

24                    h.      Representative Plaintiffs’ Counsel carefully considered the prospects for
25           recovery at trial and the risks of continued litigation;
26
                      i.      Representative Plaintiffs and Representative Plaintiffs’ Counsel considered
27
             the significant risks of continued litigation, including appeals, delays and the specific
28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
     Case No. C 05-03649 JW
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 1           weaknesses of the case, including, inter alia, that concurrent with this case the California
 2           Supreme Court was considering the issue of whether individual reliance is an element of
 3
             causes of actions under Cal. Bus. & Prof. Code, §17200 and §17500;
 4
                      j.      Representative Plaintiffs and Representative Plaintiffs’ Counsel considered
 5
             the risk as to Plaintiffs’ ability to prove deception and false advertising based upon the
 6

 7           representations by Google and their ability to recover damages for more than one billing

 8           period; and

 9                    k.      Representative Plaintiffs and Representative Plaintiffs’ Counsel determined
10
             that given these risks, and the others described herein and in the memorandum in support
11
             of the Settlement, submitted herewith, the certainty and benefits of the proposed
12
             Settlement significantly outweighed the risks and any possible benefits from continuing to
13
             litigate this action.
14

15   The Pleadings and the Motions Addressed to the Pleadings

16           5.       Representative Plaintiffs filed their Class Action Complaint on August 3, 2005 in
17   the Superior Court of the State of California, County of Santa Clara, alleging causes of action for
18
     violation of Cal. Bus. & Prof. Code §§17200 and 17500, et seq., and breach of contract, negligent
19
     misrepresentation, unjust enrichment, imposition of a constructive trust, breach of the implied
20
     covenant of good faith and fair dealing, fraud, promise without intent to perform and injunctive
21

22   and/or declaratory relief.

23           6.       Prior to filing this complaint, Plaintiffs’ Counsel conducted extensive factual and

24   legal investigations to formulate the allegations contained therein, including inter alia,
25   discussions with clients and potential clients and retrieving and reviewing client’s account
26
     information, the AdWords agreement, and AdWords tutorials.
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           7.       On or about September 12, 2005, Defendant filed a Notice of Removal seeking to
 2   remove the action to this Court.
 3
             8.       On October 12, 2005, Defendant moved to dismiss the complaint for failure to
 4
     state a claim against Google.
 5
     On November 14, 2005, Plaintiffs filed their First Amended Class Action Complaint (“FAC”) in
 6

 7   this Court, alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair

 8   Dealing, Unfair Competition (violation of Cal. Bus. & Prof. Code §§17200 et seq.), Untrue and

 9   Misleading Advertising (violation of Cal. Bus. & Prof. Code §§17500 et seq.) and Unjust
10
     Enrichment.      On January 3, 2006, Defendant filed a motion to dismiss Plaintiffs’ unjust
11
     enrichment claim.
12
             9.       On February 2, 2006, Plaintiffs filed their opposition to Defendant’s motion to
13
     dismiss Plaintiffs’ unjust enrichment claim.
14

15           10.      On April 12, 2006, the Court granted Defendant’s motion to dismiss Plaintiffs’

16   unjust enrichment claim with leave to replead.
17           11.      On May 4, 2006, Plaintiffs filed their Second Amended Class Action Complaint
18
     (the “SAC”) repleading the unjust enrichment claim and alleging claims for violation of Cal. Bus.
19
     & Prof. Code §§ 17200 et seq., violation of California Bus. & Prof. Code §§ 17500 et seq., breach
20
     of contract, and breach of the implied covenant of good faith and fair dealing.
21

22           12.      On May 18, 2006, Defendant moved to dismiss Plaintiffs’ unjust enrichment claim

23   in the SAC.

24           13.      On June 5, 2006, Plaintiffs filed their opposition to Defendant’s motion.
25           14.      On June 27, 2006, the Court entered an order denying Defendant’s motion to
26
     dismiss Plaintiffs’ unjust enrichment claim.
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           15.      The SAC having been upheld, on July 12, 2006, Defendant answered same (the
 2   “Answer”). Defendant’s Answer contained 33 affirmative defenses.
 3
     Representative Plaintiffs Sought to Move for Summary Judgment as to Liability
 4
             16.      On June 26, 2006, counsel for both parties attended a case management
 5
     conference with the Court.           At that conference, the Court accepted Plaintiffs’ counsel’s
 6

 7   suggestion that Plaintiffs be permitted to make an early motion for partial summary judgment

 8   based upon limited discovery as to the terms of the AdWords advertising program.

 9           17.      On June 27, 2006, the Court issued an Order Following Case Management
10
     Conference setting the schedule for the summary judgment motion.
11
             18.      In accordance with the Court’s June 27, 2006 Order and throughout the summer of
12
             2006, Plaintiffs’ counsel drafted and served discovery requests concerning the terms of the
13
     AdWords program. In response, Defendants produced approximately 7 boxes of documents in
14

15   hard copy consisting of various terms and conditions of the AdWords program.

16           19.      Also during the summer of 2006 and prior to the first summary judgment motion,
17   Defendant noticed each Plaintiff’s deposition and requested documents be produced by each.
18
             20.      In mid-August 2006, Defendant deposed Plaintiff Howard Stern and Plaintiff
19
     CLRB Hanson by Brett Hanson.
20
     The September 2006 Cross-Motions for Partial Summary Judgment and/or
21   Summary Adjudication; Subsequent Court Ordered Discovery; and Supplemental Briefing
22           21.      On or about September 29, 2006, Plaintiffs filed their Motion for Partial Summary
23
             Judgment on Liability as to their claims for violation of Cal. Bus. & Prof. Code § 17200,
24
     et seq., violation of Cal. Bus. & Prof. Code § 17500, et seq., and unjust enrichment.
25
             22.      On or about October 2, 2006, Defendant filed its Motion for Summary Judgment,
26
     or in the Alternative, Summary Adjudication. Defendant submitted supporting affidavits from,
27

28   inter alia, Google engineer, Michael Schulman.
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           23.      On October 16, 2006, Plaintiffs filed their Opposition to Defendant’s Motion for
 2   Summary Judgment or in the alternative for Summary Adjudication. Also on October 16, 2006,
 3
     Defendant filed its Opposition to Plaintiff’s Motion for Partial Summary Judgment on Liability.
 4
             24.      On October 23, 2006, the parties submitted their respective reply papers. In
 5
     support of its reply papers, Google submitted a declaration from its employee, Heather Wilburn.
 6

 7           25.      After the completion of the summary judgment briefing, yet prior to any hearing

 8   thereon, on or about October 30, 2006, the Court entered an order to show cause directing the

 9   parties to demonstrate why the case should not be remanded for lack of subject matter
10
     jurisdiction, i.e., whether potential damages were in excess of $5 million.
11
             26.      In order to respond to the Court’s order to show cause, Plaintiffs’ counsel
12
     investigated Google’s public financial information to best determine the breakdown of its
13
     revenues and searched information regarding the number of AdWords users. On November 8,
14

15   2006, Plaintiffs filed their Memorandum of Points and Authorities in Response to Order to Show

16   Cause and in support of Retention of Federal Jurisdiction. On November 14, 2006, the Court
17   vacated its order to show cause.
18
             27.      On January 22, 2007, the Court held a hearing on the parties’ cross motions for
19
     summary judgment/summary adjudication.
20
             28.      On February 8, 2007, the Court issued an order following the hearing which noted,
21

22   inter alia, that there was insufficient evidence supporting Google’s statement that it only

23   overdelivers ads to offset prior shortfalls and directed the depositions of Google employees with

24   knowledge as to how the AdWords program accounts for fluctuations in internet traffic, including
25   that of declarant engineer Michael Schulman.
26
             29.      Prior to the Court ordered depositions, the parties engaged in extensive
27
     negotiations over a confidentially stipulation and eventually entered into same.
28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           30.      On March 6 and 7, 2007, Defendant produced declarants Michael Schulman,
 2   Heather Wilburn and Google engineer Shivakumar Venkatarman, for depositions in San
 3
     Francisco.      Shortly before these depositions, Defendant produced additional documents
 4
     purportedly relevant thereto.
 5
             31.      The depositions revealed, inter alia, that Google had recently changed its method
 6

 7   of accounting for fully paused days. In September, 2006 (approximately 14 months after this case

 8   was filed complaining as to how Google treated paused days), Google changed its practice and

 9   began to exclude fully paused days from the number of days in a month - thereby lowering an
10
     advertiser’s monthly maximum charge which Google calculated as the daily budget multiplied by
11
     the number of days in the month.
12
             32.      Following the depositions, and based upon facts presented therein, the parties
13
     submitted supplemental briefs on their respective motions for summary judgment and/or
14

15   summary adjudication. The parties submitted supplemental cross-opening opposition and reply

16   papers. The opening supplemental papers were filed on May 3, 2007, the oppositions were filed
17   on or about May 21, 2007, and reply papers were filed on or about May 29, 2007.
18
             33.      Each supplemental opening, opposition, and reply brief was accompanied by an
19
     additional motion to file under seal and/or an opposition thereto. Whereas Plaintiffs did not agree
20
     that the papers necessitated filing under seal, given Defendant’s position otherwise, a motion
21

22   needed to be made and/or opposed for each filing by both parties and a redacted and a highlighted

23   version reflecting the redacted material, needed to be submitted for each filing.

24           34.      On June 12, 2007, the parties submitted a Joint Statement of Undisputed Facts, as
25   required by the Court. This, too, entailed extensive negotiation and proved to be a lengthy
26
     process.
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           35.      After the extensive supplemental briefing, a second hearing on the cross-motions
 2   for summary judgment and/or summary adjudication was held on June 21, 2007.
 3
             36.      On August 21, 2007, the Court entered a decision with respect to the cross
 4
     motions. The Court found that there was a valid contract between Plaintiffs and Google. The
 5
     Court dismissed Plaintiffs’ claims for breach of the covenant of good faith and fair dealing, as
 6

 7   duplicative of Plaintiffs’ contract claim. The Court also dismissed Plaintiffs’ claim for unjust

 8   enrichment, having found a valid governing contract. The Court further determined that there

 9   were triable issues of fact with respect to Plaintiffs’ claims that Google violated Cal. Bus & Prof.
10
     Code. §§ 17200 and 17500. The Court set a Case Management Conference for September 17,
11
     2007.
12
     The Mediation
13
             37.      After the Court’s decision in August, 2007, the parties agreed to private mediation.
14

15   That process first required selection of a mutually acceptable mediator with time available in the

16   coming months. The parties ultimately selected Judge Sabraw at JAMS.
17           38.      The parties agreed to adjourn the scheduled September 17, 2007 case management
18
     conference pending the mediation.
19
             39.      Prior to the mediation, Plaintiffs sought information from Defendant as to potential
20
     damages.
21

22           40.      On October 30, 2007, the parties exchanged mediation statements. On November

23   1, 2007, Plaintiffs filed a responsive mediation statement.

24           41.      The mediation took place in San Francisco on November 6, 2007. Although a
25   second day had been scheduled, the parties had reached an impasse and did not participate for a
26
     second day. The parties disagreed as to the interpretation of the Court’s August 21, 2007 Order,
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   namely, as to whether delivery above the daily budget on any given day remained an issue in the
 2   case. Defendant claimed the case had been limited to pausing.
 3
     The Parties’ Disagreement as to the Court’s
 4   August 21, 2007 Order and Further Summary Judgment Motions

 5           42.      After the unsuccessful mediation, the parties returned to the court schedule and

 6   worked to prepare a joint case management statement.
 7           43.      On November 26, 2007, the parties filed their Joint Case Management Statement
 8
     and Proposed Order pursuant to N.D. L.R. 16-9.
 9
             44.      On December 3, 2007, the parties appeared and participated in a case management
10
     conference. At the conference, the parties set forth their dispute and respective positions as to
11

12   what claims remained. The Court directed additional briefing and set an additional hearing for

13   February 25, 2008.

14           45.      On January 29, 2008, Plaintiffs filed their Supplemental Submission Re: The
15   Court’s Order of August 21, 2007, and Defendant filed its Opening Brief Regarding the 120%
16
     Rule. The parties contested whether overdelivery (in addition to pausing) was still an issue in the
17
     case and if so, addressed the merits thereof.
18
             46.      On February 11, 2008, the parties filed their respective opposition papers.
19

20           47.      On February 26, 2008, the Court heard argument on the then-current motions

21   addressed to the August 21, 2007 Order. The Court treated the additional submissions as an

22   additional summary judgment motion filed by Defendant directed to Plaintiffs’ claims arising
23
     from overdelivery.
24
             48.      On May 14, 2008, the Court granted in part and denied in part Defendant’s
25
     (second) motion for summary judgment. The Court granted Defendant’s motion with respect to
26
     whether the practice of charging customers up to 120% of their “Daily Budget,” in and of itself,
27

28   constitutes a breach of the AdWords Agreement. The Court denied Defendant’s motion with
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   respect to whether Defendant’s use of the term “Daily Budget,” while charging up to 120% of a
 2   customer’s “Daily Budget,” constitutes false advertising in violation of California Unfair
 3
     Competition Law, finding that such practice may be actionable under §17200 et seq.
 4
     Pretrial Discovery Including Extensive Discovery of
 5   Plaintiffs and Google’s Third Motion for Summary Judgment
 6           49.      On June 2, 2008, the parties submitted a joint case management statement and
 7
     proposed order.
 8
             50.      On June 16, 2008, the parties participated in a case management conference.
 9
             51.      In early July, 2008, the parties submitted their respective plans for discovery.
10

11           52.      On July 7, 2008, the court issued an order regarding discovery addressing: Initial

12   Disclosures, Discovery Topics, Timing and Sequencing of Discovery, Electronic Documents and

13   Discovery Limits.
14
             53.      On July 21, 2008, Plaintiffs served Plaintiffs’ First Set of Interrogatories to
15
     Defendant Google, Notice of Rule 30(b)(6) Videotaped Deposition of Google, and Plaintiffs’
16
     First Set of Requests for Production of Documents to Defendant Google.
17
             54.      On July 22, 2008, Defendant Google served Requests for Production of
18

19   Documents to Plaintiff Howard Stern (Set Two) and Requests for Production of Documents to

20   Plaintiff CLRB Hanson Industries, LLC (Set Two).
21           55.      On August 11, 2008, Defendant produced its Supplemental Disclosures pursuant
22
     to Fed. R. Civ. Pro. 26.
23
             56.      On August 19, 2008, Google served Objections and Responses to Plaintiffs’ Rule
24
     30(b)(6) Videotaped Deposition of Google.
25

26           57.      On August 25, 2008, Plaintiff CLRB Hanson served its Response to Defendant

27   Google’s Request for Production of Documents (Set Two) and Plaintiff Howard Stern served its

28   Response to Defendant Google’s Request for Production of Documents (Set Two).
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           58.      On August 25, 2008, Defendant Google served its Request for Admissions to
 2   Plaintiff CLRB Hanson (Set One); Interrogatories to Plaintiff CLRB Hanson (Set One); and
 3
     Requests for Admissions to Plaintiff Howard Stern (Set One).
 4
             59.      On August 25, 2008, Google served its Response to Plaintiff’s First Set of
 5
     Interrogatories.
 6

 7           60.      On August 27, 2008, Google served a Notice of Deposition of Plaintiff Howard

 8   Stern, Notice of FRCP Rule 30(b)(6) Deposition of CLRB Hanson, and a Notice of Deposition of

 9   Cindy Hanson.
10
             61.      On September 12, 2008, Google served Interrogatories to Plaintiff CLRB Hanson
11
     (Set Two) and Interrogatories to Plaintiff Howard Stern (Set Two).
12
             62.      On September 25, 2008, Plaintiff CLRB Hanson served its Responses and
13
     Objections to Defendant Google’s Interrogatories (Set One).
14

15           63.      On September 26, 2008, Plaintiff CLRB Hanson served its Objection to Notice of

16   FRCP Rule 30(b)(6) Deposition of CLRB Hanson.
17           64.      On September 26, 2008, Plaintiff Howard Stern served his Objections to
18
     Defendant Google’s Notice of Deposition addressed to him.
19
             65.      Also on September 26, 2008, Plaintiffs served their Objections to Notice of
20
     Deposition of Cindy L. Hanson and Howard Stern’s Responses and Objections to Defendant
21

22   Google’s Interrogatories (Set One).

23           66.      On September 26, 2008, the parties filed their joint case management statement.

24           67.      On September 29, 2008, Plaintiffs CLRB Hanson and Howard Stern Responded to
25   Defendant Google’s respective Requests for Admissions (Set One).
26

27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           68.      On October 7, 2008, Plaintiffs served their Notice of Videotaped Oral Deposition
 2   of Adam Samet (see infra, Mr. Adam Samet submitted a declaration in support of Google’s third
 3
     motion for summary judgment).
 4
             69.      On October 15, 2008, Defendant served their Second Supplemental Disclosures
 5
     pursuant to Fed. R. Civ. P. 26.
 6

 7           70.      On November 21, 2008, Plaintiffs served their Third Set of Interrogatories to

 8   Defendant Google.

 9           71.      On November 12, 2008, Google served its Amended Response to Plaintiff’s First
10
     Set of Interrogatories, Nos. 1-3.
11
             72.      On November 25, 2008 Google served Interrogatories to Plaintiff CLRB Hanson
12
     (Set Three) and Requests for Production of Documents to Plaintiff CLRB Hanson (Set Three).
13
             73.      On November 26, 2008, Plaintiffs served their Fourth Set of Interrogatories to
14

15   Defendant Google.

16           74.      On December 1, 2008, Plaintiff Howard Stern served his Response to Defendant
17   Google’s Request for Admissions (Set One).
18
             75.      On December 9, 2008, the Court issued an amended order following case
19
     management conference, setting a new deadline of February 2, 2009 for the close of all discovery
20
     and March 20, 2009 for dispositive motions.
21

22           76.      In December, 2008, Defendant served subpoenas upon Cindy L. Hanson, Hanson

23   Industries LLC, and upon CLRB Hanson’s bankers and vendors.

24           77.      During this time frame, Google produced over one hundred thousand pages of
25   documents in electronic format.            Google also showed Plaintiffs’ Representative Counsel
26
     screenshots it claimed were just discovered in its archives. These screenshots evidenced that the
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   disclosure of the “120% Rule” were more clearly made in the period before June 2005 and after
 2   October 2006 than in the interim period.
 3
             78.      On January 28, 2009, Google responded to Plaintiffs’ Third Set of Interrogatories
 4
     and on January 29, 2009, responded to Plaintiffs’ Fourth Set of Interrogatories.
 5
             79.      On January 29, 2009, CLRB Hanson Responded to Defendant’s Request for
 6

 7   Production of Documents (Set Three) and served its Responses and Objections to Google’s

 8   Interrogatories (Sets One and Three).

 9           80.      Also on January 29, 2009, Howard Stern served his Revised Responses and
10
     Objections to Defendant’s Interrogatories (Set One).
11
             81.      On January 30, 2009, Plaintiffs objected to the Subpoena to Cindy L. Hanson and
12
     Hanson Industries.
13
             82.      While this extensive pretrial discovery was taking place, Google filed its third
14

15   motion for summary judgment.

16           83.      On September 5, 2008, Defendant filed its Motion for Partial Summary Judgment
17   on Plaintiffs’ “120% Rule” and “Partial Month” Claims. Google submitted the Declaration of
18
     Adam Samet, Senior Software Engineer in support of this motion.
19
             84.      On November 7, 2008, after having taken the deposition of Mr. Samet, Plaintiffs
20
     filed their Opposition to Defendant’s Motion for Partial Summary Judgment on Plaintiffs’ “120%
21

22   Rule” and “Partial Month” Claims.

23           85.      On November 17, 2008, Defendant filed its Reply in Support of its Motion for

24   Partial Summary Judgment on Plaintiffs’ “120 Rule” and “Partial Months” Claims.
25           86.      On December 16, 2008, the Court issued its Order Denying Defendant’s Motion
26
     for Summary Judgment on Plaintiffs’ “120% Rule” and “Partial Month” Claims.
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   The Settlement
 2           87.      In the period December 2008 to March 2009, the parties engaged in arm’s length
 3
     settlement negotiations. The negotiations culminated in the March 17, 2009 Settlement and
 4
     Release Agreement.
 5
             88.      As per the Settlement, Defendant deposited $20 million into an interest bearing
 6

 7   account established for the benefit of the Settlement Class. The Settlement Proceeds, together

 8   with the interest thereon, shall be distributed in AdWords Credits or cash in accordance with the

 9   terms of the Settlement.
10
             89.      In addition to the Settlement Proceeds, Google will pay all costs of notice and
11
     settlement administration. The Settlement is structured so that Class Members do not have to file
12
     proofs of claim to participate in the Settlement Proceeds.
13
             90.      The Settlement Proceeds, $20,000,000 plus interest from March, 2009, is a
14

15   substantial benefit to Class Members. Representative Plaintiffs’ Counsel had estimated that the

16   overdelivery claim had a maximum damage potential of approximately $197 million.                            (As
17   detailed in the memorandum filed herewith, the actual damages from daily overcharges are likely
18
     much lower.) Thus, the Settlement Proceeds of $20,000,000 (plus interest thereon), represents
19
     more than 10% of the maximum potential recovery. In addition, and as noted supra, while not a
20
     part of this Settlement, after this suit was brought, Google changed its practice so as to no longer
21

22   use fully paused days to “absorb” overdelivery within a billing period.

23           91.      Given the inherent risks in continued litigation, and the uncertainty of

24   Representative Plaintiffs’ ability to prove their claims at trial, including Defendant’s proffer of
25   screen sheets it claims disclosed the challenged overdelivery practice during the AdWords sign-
26
     up process, the Settlement is in the best interest of the Class.
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           92.      After the settlement was reached, the parties negotiated and prepared all of the
 2   necessary settlement documents, including the Settlement Agreement and Release, Notice to the
 3
     Class, Plan of Allocation, and an Order of Preliminary Approval.
 4
             93.      On May 12, 2009, this Court entered the Order Certifying Class and Granting
 5
     Preliminary Approval of Class Action Settlement (the “Preliminary Approval Order”). In the
 6

 7   Preliminary Approval Order, the Court approved the form and content of the Notice and

 8   Summary Notice.

 9   The Objection Filed by Matthew Weiss and the Objections filed by Attorney Miller
10
             94.      On July 14, 2009, an objection to the settlement was filed on behalf of objector
11
     Matthew Weiss, an attorney and seasoned objector to class action settlements. The objection
12
     provides an AdWords account and customer identification number for Matthew Weiss, states that
13
     he was charged more than his per day budget and claims that the proposed $20 million settlement
14

15   is unfair and inadequate and unreasonable in light of Google’s 2006 fiscal year revenue of over

16   $10 billion.
17           95.      On August 2, 2009, Mr. Weiss appeared for his deposition concerning his
18
     objection. At the deposition, Mr. Weiss’s counsel stated that Mr. Weiss, in preparing for his
19
     deposition, noticed that the objection should have been filed for Weiss & Associates PC and not
20
     for him personally. The deposition revealed that Matthew Weiss was not a Google AdWords
21

22   customer and thus, not a Class member and lacks standing to object to the Settlement. (Transcript

23   of the Deposition of Mr. Mathew Weiss, relevant pages annexed hereto as Ex. A, at pp 1-4.) The

24   deposition also revealed that Mr. Weiss works with two Florida attorneys, Mr. Paul Rothstein and
25   Mr. Albert Bacharach, in objecting to class action settlements. Although not disclosed to the
26
     Court, Mr. Rothstein and Mr. Bacharach are participants in Mr. Weiss’ current objection. (Id. at
27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   pp. 22-3, 25-7. 32-3.) As per Mr. Weiss, there is an unwritten agreement pursuant to which Mr.
 2   Weiss, personally, will receive 25% of any fees generated by this objection. (Id. at p. 34.)
 3
             96.      Mr. Weiss testified that he has not read any of the filings in this action, other than
 4
     the Class Notice, that he is unaware of Google’s defenses, and that he never read the AdWords
 5
     Agreement nor FAQs when he signed up his law firm to use Google AdWords. (Id. at pp.7-8.)
 6

 7   He is also unaware of whether the “attorneys who are handling this on my behalf or on Weiss &

 8   Associates’ behalf I should say” obtained and/or reviewed any of the Court filings herein. (Id. at

 9   20:17-20.)     On the other hand, Mr. Weiss recognized from the Notice that Representative
10
     Plaintiffs’ Counsel did “a lot of work” and did a “very good job” withstanding Google’s summary
11
     judgment motions. (Id. at 19:15-19.)
12
             97.      In sum, the objection filed by Matthew Weiss, is meritless and invalid. His belated
13
     attempt to substitute his law firm as the objector—well after the period to file an objection had
14

15   passed—is untimely.

16           98.      Worth noting, attorneys Rothstein and Bacharach have also filed objections to
17   class action settlements with attorney Steve Miller, a Colorado lawyer, who has also filed an
18
     objection to this Settlement on behalf of two persons located in Alabama. I have been informed
19
     that in TransUnion Privacy Litigation, MDL No. 1350, Civil Action No. 00cv-4729 (N.D. Ill.),
20
     Messers Rothstein, Bacharach, and Miller were among a group of attorneys who filed objections
21

22   to the class action settlement, (see Ex. B hereto, service list for TransUnion), that when the

23   objections were denied by the Court as meritless, the objectors filed Notices of Appeal, and that

24   they were paid fees to dismiss the appeal. The attorneys dismissed the appeal without any
25   modification to the settlement. (See Ex. C hereto, TransUnion, Order of Dismissal of Appeal.)
26
             104.     I have also been informed that in Reformulated Gasoline Antitrust and Patent
27
     Litigation, D.C. No. 2:05-ml-01671-CAS-VBK (C.D. Cal.), attorney Steve Miller filed an
28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1   objection to the settlement therein on behalf of a Ms. Leslie Yagar. I have ascertained that Leslie
 2   Yagar was formerly Leslie Miller. I am further informed that when that objection was denied as
 3
     meritless, attorney Miller filed a Notice of Appeal and was again paid a fee when he dismissed
 4
     the appeal. There, too, I am informed that Mr. Miller dismissed his appeal even though there was
 5
     no modification to the settlement.
 6

 7           105.     Consistent with this course of conduct, Attorney Miller has filed an objection to

 8   the Google settlement on behalf of purported class members “Randy R. Lyons and Chase

 9   Thompson individually and d/b/a Etech Digital Playroom, Inc. and Universal Pro Audio, LLC.”
10
     (Docket No. 326.) These objections fail to provide the addresses and account information for the
11
     objectors, as required by Court order. Mr. Miller has further objected to any deposition of his
12
     clients with regard to their objections, and has otherwise thwarted efforts by Representative
13
     Plaintiffs’ Counsel to ascertain whether the objections were authorized and whether there is an
14

15   agreement pursuant to which the objectors will receive any portion of monies paid to Mr. Miller,

16   similar to the agreement Mr. Weiss testified about, and pursuant to which Mr. Weiss is to receive
17   a portion of any monies paid to his attorney with respect to the objection.
18
             106.     Mr. Miller has also objected to the deposition subpoena served on Leslie Yagar,
19
     formerly Leslie Miller. This subpoena was served to assist Representative Plaintiff’s Counsel in
20
     establishing Mr. Miller’s apparent pattern of filing objections, filing appeals when they are
21

22   invariably dismissed and denied as meritless, and then being paid a fee upon his dismissal of the

23   appeal. Ms. Yagar would also have been questioned on whether she had an arrangement similar

24   to Mr. Weiss’ to participate in any monies paid to objector’s counsel.
25           107.     Representative Plaintiffs’ Counsel sought to compel the depositions of Mr.
26
     Miller’s clients who purport to object to this Settlement. Magistrate Judge Trumball denied the
27
     motion because the discovery period had ended, but did so without prejudice to Plaintiffs to seek
28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
     Case No. C 05-03649 JW
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 1   relief from the Court to reopen discovery. (Docket No. 338.) Accordingly, those depositions and
 2   that of Leslie Yagar have not been conducted.
 3
             108.     Were this Court to allow the depositions to proceed, they may well shed light on
 4
     the bona fides of the objection filed by attorney Miller to the Settlement.
 5
     The Requested Incentive Awards
 6

 7           109.     The Representative Plaintiffs spent substantial amounts of time participating in the

 8   prosecution of this litigation. They responded to Google’s voluminous interrogatories, requests

 9   for admission, and requests for document production.                  They each testified at depositions
10
     conducted by Google. Moreover, they consulted with their counsel at all key points in this
11
     litigation. They also reviewed the pleadings, motions, court decisions, discussed strategy and the
12
     proposed Settlement.
13
             110.     Plaintiff CLRB Hanson responded to 26 interrogatories and 83 separate document
14

15   requests, produced thousands of pages of documents, had its depositions taken, had its vendors

16   and banks subpoenaed by Google for records dealing with CLRB Hanson activities, participated
17   in numerous telephone conversations and emails with counsel. It estimates it spent 175 hours in
18
     the prosecution of this suit.
19
             111.     Plaintiff Howard Stern responded to 22 interrogatories and 76 document requests,
20
     exchanged over 300 emails with counsel and participated in dozens of telephone conversations
21

22   and meetings with counsel. He searched for and produced relevant documents, generated usage

23   reports, reviewed credit card statements, created spreadsheets with respect to damages, reviewed

24   Court filings and had his deposition taken. He estimates having spent more than 140 hours in the
25   prosecution of this suit.
26

27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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 1           112.     This is a David and Goliath situation. The Representative Plaintiffs who believed
 2   they and others similarly situated had been wronged, took on the well financed Google. Without
 3
     any assurance of success, they pursued this litigation to a successful conclusion.
 4
     Request for Attorneys’ Fees and Reimbursement of Expenses
 5
             113.     My firm litigated this action on a fully contingent basis.               At each litigation
 6

 7   obstacle, including each motion to dismiss and each summary judgment motion, we risked non-

 8   payment for all of the time and expenses that we had thus far spent on this extremely hard fought

 9   case.
10
             114.     The attorneys who litigated this suit are experienced class action attorneys that
11
     have successfully litigated complex class actions throughout the country. For example, I headed
12
     the legal team that recently obtained a settlement of more than $190,000,000 for the class in the
13
     Motorola Securities Litigation, 03C287 (N.D. Ill.). The Courts before whom we practice have
14

15   commented favorably upon our work. Annexed as Ex. D hereto is a biography of Wolf Popper

16   and the attorneys who principally litigated this action, which sets forth our experience.
17           115.     As reflected in Ex. E, hereto, the total number of hours expended by Wolf Popper
18
     in connection with the prosecution of this litigation exceeds 5,700 hours. The total lodestar of my
19
     firm is $3,213,639.50. This calculation is reflected in Ex. E and is based upon Wolf Popper’s
20
     billing rates and does not include charges for expense items.
21

22           116.     As detailed in Ex. F hereto, my firm has incurred a total of $116,929.50 in

23   unreimbursed expenses in connection with the prosecution of this litigation.                    The expenses

24   incurred in this action are reflected on the books and records of the firm.
25

26

27

28
     Decl. of Lester L. Levy in Support of Pls.’ Mot. for Final Approval of Class Cert. & Settlement; Pls.’ Mot. for
     Award of Attorneys’ Fees & Expenses & Class Rep. Incentive Awards; and Pls.’ Resp to Class Member Objs.
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1                                        CERTIFICATE OF SERVICE
2
             I hereby certify that on the date written above, that I electronically filed the foregoing
3
     document with the Clerk of the Court using the CM/ECF system. The Court or the CM/ECF system
4
     will send notification of such filings to all CM/ECF participants.
5

6
             I further certify that a true and correct copy of this document was sent via U.S. first-class

7    mail, postage pre-paid, to all non-CM/ECF participants, as follows:

8                                                               Aaron R. Bakken
             Alan J. Sherwood                                   Emalfarb Swan & Bain
9                                                               440 Central Avenue
             LAW OFFICE OF ALAN J.
             SHERWOOD                                           Highland Park, IL 60035
10                                                              Attorneys for National Lien & Bond
             1300 Clay Street, Suite 600
11           Oakland, CA 93612
             Attorney for Objector Matthew Weiss
12

13           Harry Virgil Tootle                                Sharon Mostyn
             140 West 1st Street                                Ecommerce Manager
14           Tustin, CA 92780                                   MEDEX Global Group, Inc.
                                                                8501 LaSalle Road, Suite 200
15                                                              Baltimore, MD 21286
16
             Sylvie D. Robinson                                 Forrest Jenkins
17           The Portrait Liquidating Trust                     5404 Braeburn Drive
             1855 Lakeland Drive, Suite D-20                    Bellaire, TX 77041
18           Jackson, MS 39216
19

20

21                                                  s/ Rachel S. Black
22

23

24

25

26

27

28



                                                        1
     CERTIFICATE OF SERVICE
     Case No. C 05-03649 JW

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         EXHIBIT B
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         EXHIBIT C
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          EXHIBIT 3
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                                                                            S DISTRICT
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7
                                                            N                                    C
                                  NORTHERN DISTRICT OF CALIFORNIA                          F
8
                                                              D               IS T RIC T O
                                                 SAN JOSE DIVISION
9

10   CLRB HANSON INDUSTRIES, LLC d/b/a                     Case No. C 05-03649 JW PVT
     INDUSTRIAL PRINTING, and HOWARD
11   STERN, on behalf of themselves and all others
     similarly situated,                                   AMENDED [PROPOSED] ORDER
12                                                         CERTIFYING SETTLEMENT CLASS
                                   Plaintiffs,             AND GRANTING PRELIMINARY
13
                        vs.                                APPROVAL OF CLASS ACTION
14                                                         SETTLEMENT
     GOOGLE, INC.,
15
                                   Defendant.              Hearing:    May 11, 2009
16                                                         Time:       9:00 a.m.
                                                           Dept.:      Courtroom 8
17
                                                           Judge:      Hon. James W. Ware
18

19
     WHEREAS:
20
            A.      Plaintiffs CLRB Hanson Industries, LLC and Howard Stern, on behalf of themselves
21

22   and the Class (as defined below) and defendant Google Inc. (“Google”) in the above-titled action, all

23   by and through their respective counsel, have entered into a settlement (the “Settlement”) of the claims

24   asserted in the Action, the terms of which are set forth in the Settlement Agreement and Release (the
25
     “Settlement Agreement”) filed with the Court;
26
            B.      The parties to the Action have moved pursuant to Rule 23 of the Federal Rules of Civil
27
     Procedure for an order certifying the Settlement Class and for an Order preliminarily approving the
28
                                            1
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1    Settlement in accordance with the Settlement Agreement and providing notice to the Class; and

2           C.      The Court having read and considered the Settlement Agreement and the motion for
3
     preliminary approval thereof, the proposed Notice to be sent to the Class, the proposed Summary
4
     Notice, and the proposed form of Final Judgment, and finding that there exist substantial and sufficient
5
     grounds for entering this Order and good cause appearing therefor;
6
            NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
7

8           1.      The Court, for purposes of this Order, adopts the definitions set forth in the Agreement.

9           2.      The Litigation shall be maintained as a class action for the purposes of settlement with
10   the named Plaintiffs in the Litigation as class representatives and their counsel as class counsel,
11
     pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Settlement Class (the “Class”) is
12
     defined as set forth in the Agreement. The Court determines that the requirements of Rules 23(a) and
13
     23(b) of the Federal Rules of Civil Procedure are satisfied as to the above defined Class.
14

15
            3.      The Court preliminarily approves: (a) the Settlement of the Action on the terms set

16   forth in the Settlement Agreement, as being fair, just, reasonable and adequate as to the Class, and (2)

17   the proposed Plan of Allocation described in the Notice, as being fair and reasonable, subject to the
18
     right of any member of the Class to exclude himself, herself, or itself from the Class and the
19
     Settlement in accordance with the terms set forth in the Settlement Agreement, or to challenge the
20
     fairness, reasonableness, and adequacy of the Settlement, the proposed Plan of Allocation, or the
21
     fairness of Representative Plaintiffs’ Counsel’s Fee and Expense Application, and to show cause, if
22

23   any exists, why, upon the Effective Date, the Action should not be deemed dismissed with prejudice

24   and without costs based on the Settlement Agreement after due and adequate notice to the Class has

25   been given in conformity with this Order.
26
            4.      A Settlement Hearing shall be held before this Court on _____September 14__, 2009,
27
     at 9:00 am in Courtroom 8, at the United States Courthouse, located at 280 South First Street, San
28
                                            2
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1    Jose, California 95113: (a) to determine whether the proposed Settlement is fair, reasonable and

2    adequate to the Class and should be approved, and whether final judgment should be entered
3
     dismissing the Action as to all claims asserted therein, against Google on the merits, with prejudice,
4
     and without costs; (b) to consider the Fee and Expense Application of Representative Plaintiffs’
5
     Counsel; and (c) to reserve jurisdiction to effectuate and enforce the Settlement.
6
            5.        Google shall cause notice of the proposed Settlement, the Settlement Hearing, and the
7

8    Fee and Expense Application to be provided to members of the class as follows:

9                     i.     On or before _____June 9_____, 2009, Google shall cause to be sent via e-mail
10   address if known, or by U.S. mail if there is no known or working e-mail address, the Notice of
11
     Pendency and Proposed Settlement of Class Action and Settlement Hearing (the “Notice”),
12
     substantially in the form annexed hereto as Exhibit 1, to all members of the Class.
13
                      ii.    No later than one week after the mailing of the Notice, Google shall cause to be
14

15
     posted the Notice on a website established by Google for this purpose, until the date of the Settlement

16   Hearing; and

17                    iii.   A Summary Notice of Pendency and Proposed Settlement of Class Action and
18
     Settlement Hearing (the “Summary Notice”), substantially in the form annexed hereto as Exhibit 2,
19
     shall be published once in The Wall Street Journal and USA Today, within one week after the mailing
20
     of the Notice.
21
            6.        The Court approves the form and content of the Notice and Summary Notice, and finds
22

23   that the procedures established for publication, mailing and distribution of such notices substantially in

24   the manner and form set forth in Paragraph 5 of this Order meet the requirements of Rule 23 of the

25   Federal Rules of Civil Procedure and due process, and constitute the best notice practicable under the
26
     circumstances, including individual notice to those members of the Class who can be identified
27
     through the exercise of reasonable effort.
28
                                            3
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1           7.      The costs of notification of the Class of the Settlement, including printing, mailing and

2    publication of all required notices, shall be paid by Google.
3
            8.      Fifteen (15) days before the date fixed by this Court for the Settlement Hearing, Google
4
     shall cause to be filed with the Clerk of this Court affidavits or declarations of the person or persons
5
     under whose general direction the dissemination and mailing of the Notice and the publication of the
6
     Summary Notice shall have been made, showing that such dissemination, mailing and publication
7

8    have been made in accordance with this Order.

9           9.      Representative Plaintiffs’ Counsel may retain Gilardi & Co., LLC to be the Claims
10   Administrator. Google must pay the Claims Administrator’s reasonable and customary fees and costs
11
     associated with administration of the Settlement. The Claims Administrator is authorized and directed
12
     to prepare any tax returns required to be filed on behalf of the Settlement Proceeds and cause any taxes
13
     due and owing to be paid from the Settlement Proceeds.
14

15
            10.     Upon the Effective Date of the Settlement, each member of the Class will be bound by

16   the Settlement provided for in the Settlement Agreement, and by any judgment or determination of the

17   Court affecting the Class, unless such member shall submit, by first-class mail so that it is actually
18
     received by the Claims Administrator no later than _____July 14_____, 2009, a written request for
19
     exclusion from the Class. The Claims Administrator shall forward all requests for exclusion or
20
     objections received by it to Representative Plaintiffs’ Counsel and Google’s Counsel so that they are
21
     actually received no later than ____July 24____, 2009. Any request for exclusion from the Class must
22

23   be in writing and must include the name, email address, AdWords account number, and mailing

24   address of the person or entity seeking to request exclusion, the dates that the person or entity was an

25   AdWords Advertiser, and a statement that the person or entity wishes to be excluded from the Class,
26
     and must be signed by or on behalf of the person or entity so requesting exclusion. A request for
27
     exclusion shall not be effective unless it is made in the manner and within the time set forth in this
28
                                            4
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1    paragraph. If a member of the Class requests to be excluded, that person or entity will not receive any

2    benefits provided by the Settlement Agreement, in the event it is approved by the Court, or participate
3
     further in the Action. Any Class member who does not request exclusion in the manner provided for
4
     herein may, but need not, enter an appearance in this Action at his own cost through counsel of his or
5
     her own choice. If a Class Member does not enter an appearance, such Class Member will be
6
     represented by Representative Plaintiffs’ Counsel in the Action as set forth in the Settlement
7

8    Agreement.

9           11.     Any member of the Class who has not requested exclusion from the Class may appear
10   at the Settlement Hearing to show cause (1) why the proposed Settlement should or should not be
11
     approved as fair, reasonable and adequate; (2) why a judgment should or should not be entered
12
     thereon; (3) why the proposed Plan of Allocation should not be approved; or (4) why the Fee and
13
     Expense Application should or should not be approved; provided, however, that no Class Member
14

15
     shall be heard or entitled to contest the approval of terms and conditions of the proposed Settlement,

16   the Order and Final Judgment to be entered approving the same, the Plan of Allocation, or the Fee and

17   Expense Application, unless on or before _______July 14________, 2009, that Class Member has
18
     served by hand or by first-class mail written objections and copies of all briefs or other papers (which
19
     must contain proof of the dates that the person was an AdWords Advertiser) upon Representative
20
     Plaintiffs’ Counsel at the following addresses:
21
                           LESTER L. LEVY
22                         WOLF POPPER LLP
                           845 Third Avenue
23
                           New York, NY 10022
24
                           RACHEL S. BLACK
25
                           SUSMAN GODFREY L.L.P.
                           1201 Third Avenue, Suite 3800
26
                           Seattle, WA 98101

27

28
                                            5
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1    and upon counsel for Google:

2                           DARALYN DURIE
                            Durie Tangri Lemley Roberts & Kent
3                           332 Pine Street, Suite 200
                            San Francisco, CA 94104
4
     and has filed said objections, papers and briefs, showing due proof of service upon Representative
5

6
     Plaintiffs’ Counsel and counsel for Google with the Clerk of the Court.

7           12.     Any Member of the Class who does not object in the manner provided shall be deemed

8    to have waived any such objection, and shall forever be foreclosed from making any objection to the
9
     fairness, adequacy or reasonableness of the proposed Settlement, the Final Judgment to be entered
10
     approving the Settlement, the Plan of Allocation, or the Fee and Expense Application.
11
            13.     The Court may adjourn the Settlement Hearing without any further notice to the Class
12
     other than an announcement made at the time and place designated for the Settlement Hearing, or any
13

14   adjournment thereof, and to approve the Settlement Agreement with such modifications as may be

15   approved by the parties and without further notice to the Class. The Court retains jurisdiction of this

16   Action to consider all further applications arising out of, or connected with the proposed Settlement.
17
            14.     The administration of the Settlement, and the decision of all disputed questions of law
18
     and fact with respect to the Settlement, including, but not limited to, disputes regarding the validity of
19
     any claim or right of any person to participate in the distribution of the Settlement Proceeds, shall be
20
     under the authority of the Court. The parties to this Settlement, counsel herein in any capacity in
21

22   which they may act hereunder, and any employees or agents of such law firms or the parties to the

23   Settlement (including, without limitation, those employees who may furnish services in connection
24   with the proposed Settlement), shall not be liable for anything done or omitted to be done in
25
     connection with the proposed Settlement and the orders of the Court entered pursuant thereto.
26
            15.     The parties to the Settlement Agreement are directed to carry out their obligations
27
     under the terms of the Settlement Agreement.
28
                                            6
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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1           16.    In the event that the Settlement is terminated, canceled, rejected or is not approved by

2    the Court, or in the event that the Court enters the Final Judgment and it is vacated or modified on
3
     appeal in a material way, or if the Effective Date for any other reason does not occur, the proposed
4
     Settlement and any actions to be taken in connection therewith shall be vacated and terminated and
5
     shall become null and void for all purposes, and all negotiations, transactions and proceedings
6
     connected with it (a) shall be without prejudice to the rights of any party hereto; (b) shall not be
7

8    deemed or construed as evidence or an admission by any party of any fact, matter or thing; and (c)

9    shall not be admissible in evidence or used for any purpose in any subsequent proceeding in the
10   Action or any other action or proceeding in this or any other forum, judicial, administrative or
11
     otherwise, except in a proceeding to approve, enforce or otherwise effectuate the Settlement or any
12
     agreement or order relating thereto, except that Google shall remain responsible for all fees and costs
13
     incurred by it or by the Claims Administrator in connection with identifying Class members, providing
14

15
     notice to the Class, administering the Settlement, or distributing the Settlement Proceeds to Class

16   Members and will not be entitled to seek reimbursement of any such fees and costs.

17          17.    In the event that the events contemplated by the Settlement Agreement, including the
18
     Effective Date, shall occur, the Settlement and any actions to be taken in connection therewith shall
19
     not be deemed or construed as evidence or an admission by any party of any fact, matter or thing and
20
     shall not be admissible as evidence or used for any purpose in any proceedings in this or any other
21
     forum, judicial, administrative, or otherwise, except in connection with proceedings to enforce the
22

23   Settlement.

24
            May 12, 2009
     Dated: ___________________, 2009            ____________________________________
25                                               James W. Ware
                                                 UNITED STATES DISTRICT JUDGE
26

27

28
                                            7
     [PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND
     GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
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          EXHIBIT 1
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1
                                           UNITED STATES DISTRICT COURT
2                                         NORTHERN DISTRICT OF CALIFORNIA
                                                 SAN JOSE DIVISION
3
     CLRB HANSON INDUSTRIES, LLC d/b/a                            Case No. C 05-03649 JW PVT
4    INDUSTRIAL PRINTING, and HOWARD
     STERN, on behalf of themselves and all others
5    similarly situated,

6                                           Plaintiffs,

7                             vs.

8    GOOGLE, INC.,

9                                           Defendant.

10
                             NOTICE OF PENDENCY AND PROPOSED
11                   SETTLEMENT OF CLASS ACTION AND SETTLEMENT HEARING
12

13
     TO:      ALL PERSONS OR ENTITIES RESIDING IN THE UNITED STATES WHO HAVE
14            PAID GOOGLE FOR ADVERTISING PURSUANT TO GOOGLE’S ADWORDS
              PROGRAM WHO (A) BECAME ADWORDS ADVERTISERS BETWEEN JUNE 1,
15            2005 AND FEBRUARY 28, 2009, INCLUSIVE, AND WHO WERE CHARGED MORE
              THAN THEIR PER DAY DAILY BUDGET ON ANY DAY DURING THAT TIME
16            PERIOD; OR (B) PAUSED THEIR ADWORDS ADVERTISING CAMPAIGNS ON
              ANY DAY DURING THE PERIOD FROM JANUARY 1, 2002 TO FEBRUARY 28,
17
              2009, INCLUSIVE, AND DURING THE SAME BILLING PERIOD WHEN THEIR
18            ADWORDS ADVERTISING CAMPAIGNS WERE PAUSED, WERE CHARGED
              MORE THAN THE PRODUCT OF THEIR PER DAY DAILY BUDGET TIMES THE
19            NUMBER OF DAYS THAT SUCH CLASS MEMBERS’ ADVERTISING CAMPAIGNS
              WERE NOT PAUSED DURING THAT BILLING PERIOD
20

21            PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR
              RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION. IF YOU
22            ARE A CLASS MEMBER, YOU MAY BE ENTITLED TO RECEIVE BENEFITS
              PURSUANT TO THE PROPOSED SETTLEMENT DESCRIBED HEREIN.
23

24
     EXCLUSION DEADLINE:   REQUESTS FOR EXCLUSION FROM THE CLASS MUST
25   CONTAIN THE INFORMATION SET FORTH BELOW AND BE ACTUALLY RECEIVED BY
     THE CLAIMS ADMINISTRATOR ON OR BEFORE     July 14    , 2009.
26

27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   1
     Granting Prelim. Approval of Class Action Settlem’t


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1

2                      I.        SUMMARY OF SETTLEMENT AND RELATED MATTERS

3             A.        Purpose of this Notice

4             This Notice is given pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order

5    of the Court, dated          May                , 2009. The purpose of this Notice is to inform you that the

6    above-entitled action (“the Action”) has been certified as a class action and of the terms of a proposed

7    settlement of the Action. This Notice describes rights you may have under the proposed settlement

8    and what steps you may take in relation to this litigation. This Notice is not an expression of any

9    opinion by the Court as to the merits of any claims or any defenses asserted by any party in this

10   litigation, or the fairness or adequacy of the proposed settlement.

11            B.        Statement of Recovery to the Class

12            Pursuant to the settlement described herein, $20,000,000, in a combination of cash and

13   AdWords Credits, have been created for the benefit of the Class. These funds have been placed in an

14   interest-bearing escrow account.

15            A Class member’s distribution from the net Settlement Fund will be determined by a Plan of

16   Allocation to be approved by the Court. An explanation of how each Class member’s distribution will

17   be calculated for purposes of the settlement is set forth in the proposed Plan of Allocation which is

18   summarized in Part VI of this Notice below.

19            C.        Statement of Potential Outcome of the Case
20            Google has denied, and continues to deny, each and all claims of wrongdoing against it and
21   continues to assert defenses thereto, and has expressly denied any wrongdoing or legal liability out of
22   any of the conduct alleged in the Action. Google denies that Representative Plaintiffs or the Class
23   have suffered any damages or are entitled to any restitution. Representative Plaintiffs considered that
24   there was a substantial risk that they and the Class might not have prevailed on their claims and that
25   there were risks that they and the Class could have recovered substantially less than the settlement
26   amount, if the case had been litigated to judgment.
27            The settlement was reached only after the parties conducted arduous arm’s-length negotiations
28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and      2
     Granting Prelim. Approval of Class Action Settlem’t


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1
     over a period of two months. Representative Plaintiffs’ Counsel have determined that the settlement
2
     was fair, reasonable and adequate and in the best interest of the Class.
3
              D.         Statement of Attorney’s Fees and Expenses and Representative Plaintiffs’ Incentive
4                        Compensation Awards Sought
5
              Representative Plaintiffs’ Counsel for the Class intend to apply for: attorneys’ fees of not more
6
     than $5,000,000, plus a proportionate share of the interest earned on the Settlement Proceeds, for
7
     reimbursement of expenses incurred in connection with the prosecution and settlement of this
8
     litigation, not to exceed $250,000; and for an incentive compensation award to the two Representative
9
     Plaintiffs, not to exceed $20,000 each.
10
              E.         Further Information
11
              Further information regarding the litigation and this Notice may be obtained by contacting
12
     Representative Counsel for the Class:
13
                                                               LESTER L. LEVY
14                                                            WOLF POPPER LLP
                                                               845 Third Avenue
15
                                                              New York, NY 10022
16
                                                            RACHEL S. BLACK
17                                                       SUSMAN GODFREY L.L.P.
                                                        1201 Third Avenue, Suite 3800
18                                                           Seattle, WA 98101
19
                                                           MARC M. SELTZER
20                                                      SUSMAN GODFREY L.L.P.
                                                     1901 Avenue of the Stars, Suite 950
21                                                     Los Angeles, CA 90067-6029
22
                                      II.       NOTICE OF SETTLEMENT HEARING
23
              NOTICE IS HEREBY GIVEN, pursuant to Rule 23 of the Federal Rules of Civil Procedure
24
     and an Order of the United States District Court for the Northern District of California (the “Court”)
25
     dated         May            , 2009, that a hearing (“Settlement Hearing”) will be held by the Court on
26
     __September 14_ 2009 at _9:00 _a.m., at the United States Courthouse, 280 South 1st Street, San
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and        3
     Granting Prelim. Approval of Class Action Settlem’t


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1
     Jose, California, 95113. The purpose of the Settlement Hearing will be, among other things: (1) to
2
     determine whether the proposed Settlement Agreement is fair, reasonable and adequate to the Class
3
     and should be approved by the Court and, therefore, whether the Action should be dismissed on the
4
     merits and with prejudice, and (2) to consider the reasonableness of an application by Representative
5
     Plaintiffs’ Counsel for payment of attorney’s fees and reimbursement of costs and expenses incurred
6
     in connection with the Action and for incentive compensation award to the Representative Plaintiffs.
7
              The Court has certified a Settlement Class defined as: all persons and entities residing in the
8
     United States who have paid Google for advertising pursuant to Google’s AdWords program who (a)
9
     became AdWords advertisers between June 1, 2005 and February 28, 2009, inclusive, and who were
10
     charged more than their per day Daily Budget on any day during that time period; or (b) paused their
11
     AdWords advertising campaigns on any day during the period from January 1, 2002 to February 28,
12
     2009, inclusive, and during the same billing period when their AdWords advertising campaigns were
13
     paused, were charged more than the product of their per day Daily Budget times the number of days
14
     that such Class Members’ advertising campaigns were not paused during that billing period. Excluded
15
     from the Class are Resellers, defined as persons or entities whose regular business activities include
16
     placing ads on Google’s AdWords program on behalf of otherwise unaffiliated persons or entities.
17
                                         III.      BACKGROUND OF THE ACTION
18
              AdWords is a global advertising program offered by Google. This Action concerns Google’s
19
     billing practice for its AdWords program.
20
              On May 4, 2006, Representative Plaintiffs filed their Second Amended Class Action
21
     Complaint, which is the operative complaint in the Action, which alleges five causes of action: (1)
22
     Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3)
23
     Violations of Cal. Bus. & Prof. Code § 17200, et seq. (“UCL”); (4) Violation of Cal. Bus. & Prof.
24
     Code § 17500, et seq. (“FAL”); and (5) Unjust Enrichment. In their Complaint, the Representative
25
     Plaintiffs sought damages, restitution, and injunctive relief to remedy Google’s practice of (1)
26
     charging its AdWords advertisers up to 120% of their per day daily budget on any given day
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   4
     Granting Prelim. Approval of Class Action Settlem’t


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1    (Plaintiffs’ “120% claims”); and (2) charging AdWords customers who paused their campaigns more

2    than their per day Daily Budget times the number of days their campaigns were not paused during the

3    billing period (Plaintiffs’ “pausing claims”).

4             Google filed four separate motions for partial summary judgment. The Court dismissed the

5    Representative Plaintiffs’ Second and Fifth Causes of action for breach of the implied covenant of

6    good faith and fair dealing and unjust enrichment. Google also successfully argued that its practice of

7    charging AdWords Advertisers up to 120% of their daily budget on any given day does not, in and of

8    itself, constitute breach of contract. The Court held that triable issues of fact existed as to whether

9    Google’s practice of charging up to 120% of an AdWords Advertiser’s per day Daily Budget violates

10   the UCL and FAL and whether Google’s pre-September 2006 pausing practices constitute a breach of

11   contract.

12                                   IV.       BACKGROUND OF THE SETTLEMENT

13            Google has denied all claim of wrongdoing or liability in the Action.          The Settlement

14   Agreement is not and shall not be construed or deemed to be evidence or an admission or a concession

15   on the part of Google of any fault or liability or damages whatsoever, and Google does not concede

16   any infirmity in the defenses which it has asserted in the Action.

17            Counsel for the parties conducted extensive settlement negotiations to achieve the settlement

18   described herein. The settlement was reached only after the parties conducted arduous arm’s-length

19   negotiations and after the parties conducted extensive pre-trial discovery. During the course of this

20   Action, Google produced hundreds of thousands of pages of documents, responded to multiple

21   interrogatories, and Google employees testified at deposition. In addition, Representative Plaintiffs

22   produced documents to Google, responded to interrogatories, and testified at deposition.

23            In determining to settle the Action, Representative Plaintiffs and Representative Plaintiffs’
24   Counsel have taken into account the substantial expense and length of time necessary to prosecute the
25   litigation through complete pretrial discovery, trial, post-trial motions and likely appeals, taking into
26   consideration the significant uncertainties in predicting the outcome of this complex litigation.
27   Representative Plaintiffs’ Counsel believes that the settlement described herein provides substantial
28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   5
     Granting Prelim. Approval of Class Action Settlem’t


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1
     benefits to the Class. Based on their consideration of all of these factors, Representative Plaintiffs and
2
     Representative Plaintiffs’ Counsel have concluded that it is in the best interests of the Class to settle
3
     the Action on the terms described herein, subject to the approval of the Court.
4
              Representative Plaintiffs recognized the uncertainty and risk of the outcome of any litigation,
5
     especially complex litigation such as this, and the difficulties and risks inherent in the trial of such an
6
     action. Representative Plaintiffs desired to settle the claims of the Class against Google on the terms
7
     and conditions described herein which provide substantial and immediate benefits to the Class.
8
     Representative Plaintiffs’ Counsel deems such settlement to be fair, reasonable and adequate to, and in
9
     the best interests of, the members of the Class.
10
              Google, while continuing to deny all allegations of wrongdoing or liability, desired to settle
11
     and terminate all existing or potential claims against it without in any way acknowledging fault or
12
     liability. During the course of the litigation, Google, in addition to denying any liability, disputed that
13
     Representative Plaintiffs and the Class were damaged by any wrongful conduct on its part. The
14
     settlement provides immediate and substantial benefits to the Class and avoids the risks that liability or
15
     damages might not be proven at trial.
16
              THE COURT HAS NOT FINALLY DETERMINED THE MERITS OF REPRESENTATIVE
17
     PLAINTIFFS’ CLAIMS OR THE DEFENSES THERETO. THIS NOTICE DOES NOT IMPLY
18
     THAT THERE HAS BEEN OR WOULD BE ANY FINDING OF VIOLATIONS OF LAW OR
19
     THAT RECOVERY COULD BE OBTAINED IN ANY AMOUNT IF THE ACTION WERE NOT
20
     SETTLED.
21
                                           V.        TERMS OF THE SETTLEMENT
22
              In full and complete satisfaction of the claims which have or could have been asserted in this
23
     Action, and subject to the terms and conditions of the Stipulation, Google has paid $20,000,000 into
24
     escrow on behalf of the Class (the “Settlement Proceeds”), which has been earning interest since on or
25
     about _March 31, 2009. The Settlement Proceeds, which are inclusive of any Fee and Expense Award
26
     and incentive compensation award to Representative Plaintiffs, shall be distributed by Google (with
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   6
     Granting Prelim. Approval of Class Action Settlem’t


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1
     respect to AdWords Credits) and the Claims Administrator in accordance with the terms of the Plan of
2
     Allocation described below.
3
              The settlement will release Representative Plaintiffs’ and Class Members’ Released Claims
4
     against the Google. The Released Claims are defined as: any and all claims, demands, actions, causes
5
     of action, rights, offsets, suits, damages, lawsuits, liens, costs, losses, expenses or liabilities of any
6
     kind whatsoever, for any relief whatsoever, including monetary, injunctive or declaratory relief, or for
7
     reimbursement of attorneys’ fees, costs or expenses, which the Representative Plaintiffs or any
8
     Member of the Class which were or could have been asserted based on the allegations set forth in the
9
     complaints filed by the Representative Plaintiffs in the Action, specifically including any and all
10
     claims based on a Class Member being charged more than his, her, or its Daily Budget.
11
              Upon the Effective Date of the settlement, the Representative Plaintiffs and Class Members on
12
     behalf of themselves, their heirs, executors, administrators, successors, assigns, employees, officers,
13
     directors, attorneys, representatives, affiliates, agents, and any persons or entities they represent, shall
14
     be deemed to release and forever discharge Google from all Released Claims, and shall forever be
15
     barred and enjoined from prosecuting, commencing, instituting or asserting all or any of the Released
16
     Claims in any action or other proceeding in any court of law asserting all or any of the Released
17
     Claims in any action or other proceeding in any court of law or equity, arbitrational tribunal,
18
     administrative or other forum, whether directly, representatively, derivatively, or in any other capacity
19
     against Google.
20
              If the settlement is approved by the Court, all claims which have or could have been asserted in
21
     the Action will be dismissed on the merits and with prejudice as to all Class Members and all Class
22
     Members shall be forever barred from prosecuting a class action or any other action raising any
23
     Released Claims against Google.
24
              The settlement will become effective at such time as Final Judgment entered by the Court
25
     approving the settlement shall become final and not subject to appeal (the “Effective Date”).
26

27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   7
     Granting Prelim. Approval of Class Action Settlem’t


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1                                             VI.      PLAN OF ALLOCATION OF

2                                 SETTLEMENT FUND AMONG CLASS MEMBERS

3             1.        The $20,000,000 settlement and the interest earned thereon are the “Settlement

4    Proceeds.”

5             2.        Upon final approval of the settlement by the Court and the satisfaction of the

6    other conditions to the effectiveness of the Settlement, the Settlement Proceeds will be allocated under

7    the Court’s direction and supervision, as follows:

8                       a.        To pay the fees, expenses and costs of Representative Plaintiffs’ Counsel as and

9             to the extent allowed by the Court;

10                      b.        To pay an incentive compensation award to each Representative Plaintiff to the

11            extent allowed by the Court; and

12                      c.        To pay all costs and expenses reasonably incurred in connection with the

13            preparation and filing of tax returns and the payment of taxes on the interest earned on the

14            Settlement Proceeds, including all taxes and tax expenses.

15            3.        Subject to the approval by the Court of the Plan of Allocation described below, the
16   balance of the Settlement Proceeds remaining after the payment of the foregoing fees, costs, expenses
17   and taxes (the “Net Settlement Proceeds”) shall be distributed in the form of cash or AdWords Credits
18   as set forth below, to Class members who have not requested exclusion from the class in accordance
19   with the instructions contained in this Notice. The following methodology shall be used to calculate
20   the distribution to each Class member:
21
                             (Class Member’s Total Overcharges) x (Net Settlement Proceeds)
22                            sum total of Estimate of all Class Members’ Total Overcharges

23
                        a.        “Net Settlement Proceeds” means the remaining balance of the Settlement
24
              Proceeds, including all interest earned thereon, following payment of any Fee and Expense
25
              Award as allowed by the Court.
26
                        b.        “17200 Overcharge” means the dollar amount that a Class Member, who signed
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   8
     Granting Prelim. Approval of Class Action Settlem’t


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1             up for AdWords between June 1, 2005 and February 28, 2009, was charged by Google in

2             excess of his, her, or its per day Daily Budget, the first month such overcharge occurred.

3                       c.        “Overcharge” means to charge an AdWords Advertiser more than his, her, or its

4             per day Daily Budget on any given day.

5                       d.        “Pausing Overcharge” means the dollar amount that Google charged a Class

6             Member, who paused his, her, or its campaign for any amount of time in a billing period, in

7             excess of the product of the Class Member’s per day Daily Budget times the number of days

8             that the campaign was not paused during the same billing period, at any time during the period

9             between January 1, 2002 and February 28, 2009, inclusive.

10                      e.        “Total Overcharges” means, for each Class Member, the sum of his, her, or its

11            17200 Overcharges and Pausing Overcharges, less any Overcharges that are duplicative of the

12            Pausing Overcharges.

13                      f.        “Claims Administrator” means Gilardi & Co. LLC.

14                      g.        For each Class Member who has a balance due on his, her, or its AdWords

15            account as of the Class Member Distribution Calculation Date that is equal to or greater than

16            that Class Member’s Distribution (defined as “Active AdWords Advertisers”), Google will

17            issue AdWords Credits in the amount of such Class Member’s Distribution within ten business

18            days of the Class Member Distribution Calculation Date. At the time of distribution, Google

19            will notify each Class Member who is an Active AdWords Advertiser who has a balance due

20            on his, her, or its AdWords account as of the Class Member Distribution Calculation Date that

21            is less than such Class Member’s Distribution that they may elect to receive cash in lieu of

22            AdWords Credits by contacting Google via email. To make such an election, the Active

23            AdWords Advertiser must notify the Claims Administrator within forty days of the Class

24            Member Calculation Date via email or in writing, including the following information: (1)

25            name of Class Member; (2) AdWords account(s) number; (3) email address associated with

26            AdWords account; (4) mailing address.               The request must be emailed to the Claims

27            Administrator at the following email address: _______________, or sent to the Claims

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   9
     Granting Prelim. Approval of Class Action Settlem’t


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1             Administrator at the following address:

2
                                     CLRB Hanson LLC et al. v. Google Class Action Settlement
3                                                   c/o Gilardi & Co., LLC
                                                        P.O. Box _____
4
                                                Corte Madera, California 94976
5
              Each Active AdWords Advertiser who makes such an election before the designated deadline
6
              shall receive that portion of the Class Member’s Distribution that is in excess of the balance
7
              due on his, her, or its AdWords account in cash.
8
                        h.        The Claims Administrator will issue checks to all Class Members who are not
9
              Active AdWords Advertisers, in the amount of each Class Member’s Distribution. To the
10
              extent, at the conclusion of efforts to make distributions to Class Members, there remains any
11
              undistributed portion of the Net Settlement Proceeds, it shall be disposed of pursuant to the
12
              instructions of Representative Plaintiffs’ Counsel, with approval of the Court. Under no
13
              circumstances shall the Net Settlement Proceeds, or any portion thereof, be paid or otherwise
14
              revert to Google following the Effective Date of the Settlement.
15
                        i.        The computation of each Class Member’s Distribution shall be made by Google
16
              or the Claims Administrator, and the data supporting such computation shall be supplied to the
17
              Claims Administrator. Payment pursuant to the Plan of Allocation set forth above shall be
18
              conclusive against all Class Members. No Person shall have any claim against Representative
19
              Plaintiffs’ Counsel, the Claims Administrator or other agent designated by Representative
20
              Plaintiffs’ Counsel, Google, or Google’s Counsel based on the distributions made substantially
21
              in accordance with the Settlement Agreement, the Plan of Allocation, or further orders of the
22
              Court.
23
              4.        If the proposed Settlement is approved by the Court, the Court will enter a final
24
     judgment (the “Judgment”) which will:
25
                        a.        Dismiss the Litigation against Google with prejudice, and without costs;
26
                        b.        Adjudge that Representative Plaintiffs and each Class Member, except those
27
              members of the Class who have previously timely and validly requested exclusion from the
28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   10
     Granting Prelim. Approval of Class Action Settlem’t


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1             Class, shall be deemed conclusively to have released the Released Claims (as described above)

2             against Google. Notwithstanding that Representative Plaintiffs or any Class Member may

3             hereafter discover facts in addition to or different from those which Representative Plaintiffs

4             and Class Members now know or believe to be true with respect to the Litigation and Released

5             Claims or to the subject matter of the release, plaintiffs and each Class Member shall be

6             deemed, upon the Effective Date of the Settlement, to fully, finally and forever settle and

7             release any and all Released Claims as against Google;

8                       c.        Bar and permanently enjoin Representative Plaintiffs and each Class Member,

9             except those members of the Class who have timely and validly requested exclusion from the

10            Class, from prosecuting any Released Claims against Google; and

11                      d.        Reserve jurisdiction, without affecting the finality of the Judgment entered,

12            over:

13                                (i)       Implementation of the Settlement and any award or distribution of the

14                                          Settlement Proceeds, including interest thereon;

15                                (ii)      Disposition of the Settlement Proceeds;
16                                (iii)     Hearing and determining Representative Plaintiffs’ Counsel’s appli-
17                                          cations for attorneys’ fees, costs, interest, and expenses (including fees
18                                          and costs of experts and consultants) and for an incentive compensation
19                                          award for Representative Plaintiffs;
20                                (iv)      Enforcing and administering the Settlement, including any releases
21                                          given in connection therewith; and
22
                                  (v)       Other matters related to the foregoing.
23
                                           VII.      RIGHTS OF CLASS MEMBERS
24
              The Court has certified this action to proceed as a class action pursuant to Rules 23(a) and
25
     23(b)(3) of the Federal Rules of Civil Procedure. If you are not a Reseller, you are a member of the
26
     Class if: you reside in the United States, have paid Google for advertising pursuant to Google’s
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and      11
     Granting Prelim. Approval of Class Action Settlem’t


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1
     AdWords program and either (a) became an AdWords advertiser between June 1, 2005 and February
2
     28, 2009, inclusive, and were charged more than your per day Daily Budget on any day during that
3
     time period; or (b) paused your AdWords advertising campaign on any day during the period from
4
     January 1, 2002 to February 28, 2009, inclusive, and during the same billing period when your
5
     AdWords advertising campaign was paused, were charged more than the product of your per day
6
     Daily Budget times the number of days that your AdWords advertising campaign was not paused
7
     during that billing period. Class members have the following options:
8
              A.        If you wish to remain a member of the Class, you may share in the proceeds of the
9
     Settlement.       Class Members will be represented by Representative Plaintiffs and Representative
10
     Plaintiffs’ Counsel, unless you enter an appearance through counsel of your own choice at your own
11
     expense. You are not required to retain your own counsel, but if you choose to do so, such counsel
12
     must file an appearance on your behalf on or before ________July 14______________, 2009, and
13
     must serve copies of such appearance on the attorneys listed below.
14
              B.        If you do not wish to remain a member of the Class, you may exclude yourself from the
15
     Class by following the instructions below. Persons who exclude themselves from the Class will NOT
16
     receive any share of the Settlement Proceeds and will NOT be bound by the Settlement.
17
              C.        If you object to the Settlement, the Plan of Allocation, or to Representative Plaintiffs’
18
     Counsel’s application for attorney’s fees and expenses and for an incentive compensation award for
19
     Representative Plaintiffs, and if you do not exclude yourself from the Class, you may present your
20
     objections by following the instructions below.
21
                           VIII. EXCLUSION FROM THE CLASS AND SETTLEMENT
22
              Each member of the class shall be bound by all determinations and judgments in this Action
23
     concerning the Settlement, whether favorable or unfavorable, unless such person files a written request
24
     for exclusion by first-class mail so that it is actually received by the Claims Administrator on or before
25
     ______ July 14, 2009______. Your rights against Google will be affected by this Settlement.
26
              To be effective, any request for exclusion from the Class must be in writing and must include
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   12
     Granting Prelim. Approval of Class Action Settlem’t


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1    the name, email address, AdWords account number, and mailing address of the person seeking to opt

2    out, the dates that the person was an AdWords Advertiser, and a statement that the person wishes to be

3    excluded from the Class, and must be signed by or on behalf of the person so requesting exclusion and

4    sent via first-class mail to:

5                               CLRB Hanson LLC et al. v. Google Class Action Settlement
                                               c/o Gilardi & Co., LLC
6                                                   P.O. Box 990
                                           Corte Madera, California 94976
7

8

9
                                               IX.       SETTLEMENT HEARING

10            At the Settlement Hearing, the Court will determine whether to finally approve this Settlement

11   and dismiss the Action and the claims of Representative Plaintiffs and the Class. The Settlement

12   Hearing may be adjourned from time to time by the Court without further written notice to the Class.

13            At the Settlement Hearing, any Class member who has not filed a proper request for exclusion

14   from the Class may appear in person or by counsel and be heard to the extent allowed by the Court in

15   opposition to the fairness, reasonableness and adequacy of the Settlement, the Plan of Distribution, or

16   the application of Representative Plaintiffs’ Counsel for an award of attorney’s fees and expenses and

17   for an incentive compensation award to Representative Plaintiffs, provided, however, that in no event

18   shall any person or entity be heard in opposition to the Settlement, the Plan of Distribution, or

19   Representative Plaintiffs’ Counsel’s application for attorney’s fees and expenses and for an incentive

20   compensation award to Representative Plaintiffs, and in no event shall any paper or brief submitted by

21   any such person be accepted or considered by the Court, unless, the objection is filed with the Court

22   and served on Representative Plaintiffs’ Counsel and Google’s Counsel so that it is received no later

23   than __ July 14, 2009___. Any such objection shall include all briefs or other papers to be considered

24   by the Court, and must include the name and address of the person and the dates that the person was an

25   AdWords Advertiser, and must be served to Representative Plaintiffs Counsel at the following

26   addresses:

27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and    13
     Granting Prelim. Approval of Class Action Settlem’t


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1                                 LESTER L. LEVY
                                  WOLF POPPER LLP
2                                 845 Third Avenue
                                  New York, NY 10022
3
                                  RACHEL S. BLACK
4                                 SUSMAN GODFREY L.L.P.
                                  1201 Third Avenue, Suite 3800
5                                 Seattle, WA 98101

6    and upon counsel for Google:
7                                 DARALYN DURIE
                                  Durie Tangri Lemley Roberts & Kent
8                                 332 Pine Street, Suite 200
                                  San Francisco, CA 94104
9
     and said objections, papers and briefs must be filed with the Clerk of the Court, showing due proof of
10
     service upon Representative Plaintiffs’ Counsel and counsel for Google.
11
                                       X.        ATTORNEY’S FEES AND EXPENSES
12
              At the Settlement Hearing, or at such other time as the Court may direct, Representative
13
     Plaintiffs’ Counsel will apply to the Court for an award of attorney’s fees from the Settlement
14
     Proceeds in an amount not exceeding $5,000,000, plus a proportionate share of the interest earned on
15
     the Settlement Proceeds, and for reimbursement of their costs and expenses, not to exceed $250,000;
16
     and for a incentive compensation award to the two Representative Plaintiffs, not to exceed $20,000
17
     each. Representative Plaintiffs’ Counsel, without further notice to the Class, may subsequently apply
18
     to the Court for fees and expenses incurred in connection with administering this Settlement and
19
     distributing the Settlement proceeds to the members of the Class.
20
                                              XI.       FURTHER INFORMATION
21
              For a more detailed statement of the matters involved in this Action, reference is made to the
22
     pleadings, to the Settlement Agreement, to the Orders entered by the Court and to the other papers
23
     filed in the Action, which may be inspected at the Office of the Clerk of the United States District
24
     Court for the Northern District of California, San Jose Division, United States Courthouse, 280 South
25
     1st Street, San Jose, California, 95113, during regular business hours.
26
              ALL INQUIRIES CONCERNING THIS NOTICE OR THE PROOF OF CLAIM FORM BY
27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and   14
     Granting Prelim. Approval of Class Action Settlem’t


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1
     CLASS MEMBERS SHOULD BE MADE TO THE CLAIMS ADMINISTRATOR. PLEASE DO
2
     NOT CONTACT THE COURT OR THE CLERK’S OFFICE FOR INFORMATION.
3

4

5    Dated: ___________________, 2009                         ____________________________________
                                                              James W. Ware
6                                                             UNITED STATES DISTRICT JUDGE
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
     Ex. 1 to Proposed Order Certifying Settlem’t Class and       15
     Granting Prelim. Approval of Class Action Settlem’t


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          EXHIBIT 2
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                 Case5:05-cv-03649-JW Document319 26 of 28 DktEntry: 7111769


1
                                           UNITED STATES DISTRICT COURT
2
                                          NORTHERN DISTRICT OF CALIFORNIA
3                                                SAN JOSE DIVISION

4    CLRB HANSON INDUSTRIES, LLC d/b/a                              Case No. C 05-03649 JW PVT
     INDUSTRIAL PRINTING, and HOWARD
5    STERN, on behalf of themselves and all others
     similarly situated,
6
                                            Plaintiffs,
7
                              vs.
8
     GOOGLE, INC.,
9

10
                                            Defendant.

11
                           SUMMARY NOTICE OF PENDENCY AND PROPOSED
12
                       SETTLEMENT OF CLASS ACTION AND SETTLEMENT HEARING
13

14   TO:      ALL PERSONS OR ENTITIES RESIDING IN THE UNITED STATES WHO HAVE
              PAID GOOGLE FOR ADVERTISING PURSUANT TO GOOGLE’S ADWORDS
15            PROGRAM WHO (A) BECAME ADWORDS ADVERTISERS BETWEEN JUNE 1,
16
              2005 AND FEBRUARY 28, 2009, INCLUSIVE, AND WHO WERE CHARGED MORE
              THAN THEIR PER DAY DAILY BUDGET ON ANY DAY DURING THAT TIME
17            PERIOD; OR (B) PAUSED THEIR ADWORDS ADVERTISING CAMPAIGNS ON
              ANY DAY DURING THE PERIOD FROM JANUARY 1, 2002 TO FEBRUARY 28,
18            2009, INCLUSIVE, AND DURING THE SAME BILLING PERIOD WHEN THEIR
19
              ADWORDS ADVERTISING CAMPAIGNS WERE PAUSED, WERE CHARGED
              MORE THAN THE PRODUCT OF THEIR PER DAY DAILY BUDGET TIMES THE
20            NUMBER OF DAYS THAT SUCH CLASS MEMBERS’ ADVERTISING
              CAMPAIGNS WERE NOT PAUSED DURING THAT BILLING PERIOD
21

22
              This Summary Notice is given pursuant to Rule 23 of the Federal Rules of Civil Procedure
23
     and an Order of the United States District Court for the Northern District of California (the “Court”),
24
     dated              May                 , 2009. The purpose of this Notice is to inform you of the pendency of
25

26   the above-entitled class action (the “Action”) against Google Inc. and the proposed settlement that

27   has been reached between plaintiffs and Google, pursuant to which a settlement fund in the amount of
28
     $20,000,000 has been established for the benefit of the Class. The proposed settlement resolves all



     Ex. 2 to Proposed Order Certifying Settlem’t Class and
     Granting Prelim. Approval of Class Action Settlem’t        1
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1
     claims which were asserted or could have been asserted against Google in the Action.
2

3             A hearing (“Settlement Hearing”) will be held by the Court on _September 14__, 2009, at

4    9:00 a.m., at the United States Courthouse, 280 South 1st Street, San Jose, California 95113. The
5
     purpose of the Settlement Hearing will be, among other things, (1) to determine whether the proposed
6
     settlement is fair, reasonable and adequate to the Class and should be approved and, therefore,
7
     whether the Action should be dismissed on the merits and with prejudice, and (2) to consider the
8

9    reasonableness of an application by plaintiffs’ counsel for payment of attorney’s fees and

10   reimbursement of costs and expenses incurred in connection with the Action and for an incentive
11
     compensation award to Representative Plaintiffs.
12
              If you are an AdWords customer who falls within the description of the Class described above
13
     and are not otherwise excluded from the Class, and do not file a written request for exclusion by first-
14

15   class mail so that it is actually received by the Claims Administrator on or before July 12, 2009, you

16   are a Class Member. Your rights against Google will be affected by this Settlement.
17
              Any request for exclusion from the Class must be in writing and must include the name, email
18
     address, AdWords account number, and mailing address of the person or entity requesting exclusion,
19
     the dates that the person or entity was an AdWords advertiser, and a statement that such person or
20

21   entity wishes to request exclusion from the Class, and must be signed by or on behalf of the person or

22   entity so requesting exclusion and sent to the Claims Administrator via first-class mail to:
23
                                CLRB Hanson LLC et al. v. Google Class Action Settlement
24                                             c/o Gilardi & Co., LLC
                                                    P.O. Box 990
25                                         Corte Madera, California 94976
26
              Any member of the Class who has not requested exclusion from the Class may appear at the
27
     Settlement Hearing to show cause (1) why the proposed settlement should or should not be approved
28
     as fair, reasonable and adequate; (2) why a judgment should or should not be entered thereon; (3)


     Ex. 2 to Proposed Order Certifying Settlem’t Class and
     Granting Prelim. Approval of Class Action Settlem’t      2
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1
     why the proposed Plan of Allocation of the settlement proceeds should not be approved; or (4) why
2

3    the fee and expense application of plaintiffs’ counsel and incentive compensation award to

4    Representative Plaintiffs should or should not be approved; provided, however, that no member of the
5
     Class shall be heard or entitled to contest the approval of the settlement, the fee and expense
6
     application, or the incentive compensation award unless on or before _____July 12______, 2009,
7
     such Class Member has served by hand or by first-class mail written statements or objections and
8

9    copies of all other papers upon Representative Plaintiffs’ Counsel:

10                                LESTER L. LEVY
                                  WOLF POPPER LLP
11                                845 Third Avenue
                                  New York, NY 10022
12

13
                                  RACHEL S. BLACK
                                  SUSMAN GODFREY L.L.P.
14                                1201 Third Avenue, Suite 3800
                                  Seattle, WA 98101
15
     and counsel for Google:
16
                                  DARALYN DURIE
17
                                  Durie Tangri Lemley Roberts & Kent
18                                332 Pine Street, Suite 200
                                  San Francisco, CA 94104
19
     and has filed said objections, papers and briefs, showing due proof of service upon the foregoing
20

21   counsel with the Clerk of the Court.

22
                                      PLEASE DO NOT CONTACT THE COURT
23
                                    OR THE CLERK=S OFFICE FOR INFORMATION.
24
     This is only a summary notice. The full notice may be accessed at www.[name of website]
25

26
     Dated: ___________________, 2009                         ____________________________________
27                                                            James W. Ware
                                                              UNITED STATES DISTRICT JUDGE
28




     Ex. 2 to Proposed Order Certifying Settlem’t Class and
     Granting Prelim. Approval of Class Action Settlem’t          3
     933903v4/010480
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         EXHIBIT 4
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                Case5:05-cv-03649-JW Document329 2 Filed07/14/09 Page1 of 7



 1   Alan Sherwoood, Esq.
 2   CA Bar No.118330
     2356 Alum Rock Ave.
 3   San Jose, CA 95116
     PH: 408-929-3635
 4
     FX:510-903-1773
 5
 6                               UNITED STATES DISTRICT COURT
 7                             NORTHERN DISTRICT OF CALIFORNIA
                                       SAN JOSE DIVISION
 8
 9
10   CLRB HANSON INDUSTRIES, LLV d/b/a/ INDUSTRIAL
     PRINTING, and HOWARD STERN,
11   on behalf of themselves and all others similarly situated    Case No. C 05-03649 JW PVT

12                                                  Plaintiffs,
13
                            vs.
14
15   GOOGLE, INC.,

16               Defendant
     ______________________________________________
17
18               PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
19
20          COMES NOW, Objector Matthew Weiss, by and through his undersigned counsel of

21   record, and hereby files these Preliminary Objections to the Proposed Settlement in the above
22
     style cause and in support there of, states as follows:
23
                                   PROOF OF CLASS MEMBERSHIP
24
25          Objector Matthew Weiss, Adwords Account Number/Customer I.D. Number 338-806-

26   2094, whose address is 419 Park Avenue South, 2nd Floor, New York, NY10016,
27
28                                                    -1-
                          PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                         AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
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                Case5:05-cv-03649-JW Document329 3 Filed07/14/09 Page2 of 7



 1   (Mjweiss@weissandassociatespc.com) is a person or entity residing in the United States, who has
 2
     paid Google for advertising pursuant to Google’s Adwords Program who, (A) became Adwords
 3
     Advertisers between June 1, 2005 and February 28, 2009, inclusive, and who was charged more
 4
 5   than his per day Daily Budget on any day during that time period; and (B) paused his Adwords

 6   Advertising Campaign on any day during the period from January 1, 2002 to February 28, 2009,
 7
     inclusive, and during the same billing period when his Adwords Advertising Campaigns was
 8
     paused, was charged more than the product of his per day Daily Budget times the number of days
 9
10   that Objector WEISS’ Advertising Campaign was not paused during that billing period. And,

11   Objector WEISS received the “Notice of Pendency and Proposed Settlement of Class Action and
12
     Settlement Hearing.”
13
                                  NOTICE OF INTENT TO APPEAR
14
15          Objector WEISS hereby gives notice he intends to appear, by undersigned counsel, at the

16   Fairness Hearing that is presently scheduled to be held in this matter on Monday, September 14th,
17
     2009 at 9:00am, at the United States Courthouse, 280 South 1st Street, in San Jose, California,
18
     before the Honorable James W. Ware, District Judge, to cross-examine witnesses, and, to present
19
20   legal argument. At this time, Objector WEISS does not intend to offer documents into evidence
21   or to call witnesses.
22
23
24
25
26
27
28
                                                    -2-
                          PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                         AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
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               Case5:05-cv-03649-JW Document329 4 Filed07/14/09 Page3 of 7



 1                                   PRELIMINARY OBJECTIONS

 2          The proposed Settlement for Adwords Advertisers is unfair, inadequate and unreasonable
 3
     for the following reasons:
 4
     1.      Ninety-nine percent (99%) of Google's revenue is derived from its advertising programs.
 5
 6           (Google Annual Report, Feb. 15, 2008) For the 2006 fiscal year, the company reported

 7           $10.492 Billion in total advertising revenues (Form 10-K. EDGAR. SEC).
 8
     2.      Before this Court can ultimately approve this proposed Settlement on behalf of Google
 9
             AdWords Web Advertisers, it must make finds with regard to "(1) Plaintiffs likelihood of
10
11           success at trial; (2) the range of possible recoveries by the settlement class if this matter

12           were tried; (3) the point within or below the range of possible recoveries at which the $20
13
             million settlement is still fair, adequate and reasonable; (4) the complexity, expense and
14
             duration of litigation; (5) the substance and amount of opposition to the settlement; and
15
16           the stage of proceedings at which the settlement was achieved .

17   3.      At this time it is not known by Objector WEISS, or any other Class Member, what would
18
             be the Plaintiff Class’ likelihood of success at trial. Even a thorough examination of the
19
             case file in and of itself would not allow a Class Member to estimate plaintiffs’ likelihood
20
21           of success on the three remaining counts in this class action.

22   4.      In any class action, it is imperative for class counsel to estimate and for the proposed
23
             Settlement and the Notice to disclose, the range of possible recoveries.
24
     5.      It is impossible for a Class Member to knowingly and intelligently decide whether to
25
26           remain in this Class or opt-out and without knowing both the range of possible recovery

27           and the point at or below the range of possible recovery that the proposed Settlement
28
             represents.
                                                      -3-
                            PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                           AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
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             Case5:05-cv-03649-JW Document329 5 Filed07/14/09 Page4 of 7



 1   6.    Therefore, it is impossible for Objector WEISS (or this Court) to decide whether this

 2         proposed Settlement is fair, reasonable and adequate. Until this variable is known and
 3
           disclosed to the Court and the Class Members, no determination as to the reasonableness
 4
           of this proposed Settlement can be made.
 5
 6   7.    It may very well turn out that once this variable is disclosed, that this Court, might so find

 7         that the proposed Settlement is not fair to the Class. Presently it appears to be leaning in
 8
           favor of the Defendant rather than the Class.
 9
     8.    Neither the proposed Settlement nor the Notice contains any disclosure with regard to the
10
11         size of the class (How many Class Members does it take to earn $10.492 Billion dollars in

12         advertising?).
13
     9.    Neither the proposed Settlement nor the Notice contains any disclosure with regard to the
14
           number of overcharges per Class Member during the class period.
15
16   10.   Neither the proposed Settlement nor the Notice contains any disclosure with regard to the

17         average cumulative value of each Class Members overcharges.
18
     11.   Neither the proposed Settlement nor the Notice contains any disclosure with regard to the
19
           total amount of damages class counsel estimates are due to the Class.
20
21   12.   Neither the proposed Settlement nor the Notice contains any disclosure with regard to

22         what percentage of the estimated damages suffered by the class the $20,000,000.00
23
           proposed Settlement reflects.
24
     13.   If 20,000,000 persons and entities are Class Members, each person would expect a dollar
25
26         from the settlement; before paying attorney fees, incentive awards and costs.

27
28                                                  -4-
                       PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                      AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
              Case: 09-17380 10/28/2009 Page: of 8      DktEntry: 7111769
              Case5:05-cv-03649-JW Document329 6 Filed07/14/09 Page5 of 7



 1   14.   If each of the 20 million persons or entities had been overcharged an average of $250, the

 2         damage to the class would be $5 Billion; and a 10 percent chance of success would be
 3
           than worth $500 million.
 4
     15.   The total failure of the proposed Settlement and Notice to provide the foregoing
 5
 6         information precludes due diligence by Class Members, who have no basis for making an

 7         informed judgment regarding opting out, objecting, or standing pat.
 8
     16.   The Notice states that any objections to the proposed Settlement or to class counsel’s
 9
           request for attorney’s fees must be filed by July 14, 2009.
10
11   17.   However, the Notice does not contain any information that supports a fee award, only that

12         class counsel will apply for a fee of up to $5,000,000.00 (25% of the proposed
13
           Settlement). Therefore, the Notice fails to convey the basis for class counsel’s fee, in
14
           violation of Rule 23(h).
15
16   18.   Pursuant to Rule 23(h), the proposed Settlement should have required that class counsel

17         file their initial motion for fees prior to the Notice being prepared so that the fee
18
           information could have been included in the Notice.
19
                                             CONCLUSION
20
     19.   Objector WEISS intends to attend and argue at the Fairness Hearing, through counsel.
21
22         Counsel anticipate requiring approximately thirty (30) minutes to present the foregoing
23         objections and be otherwise heard. In addition to the Objections set forth herein, Objector
24
           WEISS reserves the right to adopt and advance any other objections made by other Class
25
26         Members to the proposed Class Settlement herein and/or which subsequently become

27         apparent and are advanced during or after the Fairness Hearing herein that are not
28         inconsistent with his foregoing stated objections.

                                                    -5-
                       PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                      AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
              Case: 09-17380 10/28/2009 Page: of 8      DktEntry: 7111769
              Case5:05-cv-03649-JW Document329 7 Filed07/14/09 Page6 of 7



 1   20.   Objector WEISS, through counsel, may present his own affidavit at the fairness hearing.

 2         Additionally, counsel may present documents which others or counsel may have obtained
 3
           by discovery conducted so far or permitted by the Court here after, and other evidence
 4
           through cross-examination of witnesses at the Fairness Hearing. Objector WEISS
 5
 6         specifically reserves his right to conduct discovery regarding his objections, and to rely

 7         upon the documents and witnesses, whether live, by deposition, or by affidavit,
 8
           introduced by any party hereto, or any other objector or intervener herein, to support his
 9
           objections.
10
11         WHEREFORE, Objector WEISS requests the following relief from this Court:

12         That the objections asserted herein be sustained;
13
     A.    That, after hearing, the Court enter such Orders as are necessary and just, to address the
14
           objections contained herein;
15
16   B.    That the Court deny final approval of the proposed class action settlement;

17   C.    That the Court deny Class Counsel's request for an Award of Attorney's Fees,
18
           Reimbursement of Expenses, and Incentive Payments;
19
     D.    That the Court permit Objector WEISS, through counsel, to have both deposition
20
           and document discovery on all issues raised by these Objections; and,
21
     E.    That, if the proposed Settlement is not modified to eliminate the unfairness, inadequacy,
22
           and unreasonableness asserted by these Objections, the Court order this case to proceed
23
24         on good faith prosecution of the case.

25                                                        Respectfully submitted,

26                                                        /s/ Alan J. Sherwood
                                                          Alan J. Sherwood, State Bar #118330
27                                                        LAW OFFICE OF ALAN J. SHERWOOD
28                                                        1300 Clay Street, Suite 600
                                                          Oakland, CA 93612
                                                          Telephone:      510-409-6199
                                                          Facsimile:      510-903-1773
                                                    -6-
                          PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                         AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
               Case: 09-17380 10/28/2009 Page: of 8      DktEntry: 7111769
               Case5:05-cv-03649-JW Document329 8 Filed07/14/09 Page7 of 7



 1                                     PROOF OF SERVICE
                             STATE OF FLORIDA, COUNTY OF ALACHUA
 2
            I am employed in the County of Alachua, State of Florida; my business address is 115 NE
 3
 4   6th Avenue, Gainesville, FL 32601. I am over the age of 18 and not a party to the within action.

 5   On this 14th day of July, 2009, I served the following document on all parties by electronic filing
 6
     by providing the document listed above electronically through the Court’s electronic filing
 7
     service provider pursuant to the instructions on that website.
 8
 9          I declare under penalty of perjury under the laws of the United States that the above is true

10   and correct.
11
            Executed on this 14th day of July, 2009, at Gainesville, Florida.
12
13                                                         /s/ Janet K. Wood
14                                                         Janet K. Wood

15
16
17
18
19
20
21
22
23
24
25
26
27
28



                                                     -7-
                         PRELIMINARY OBJECTIONS TO PROPOSED SETTLEMENT
                        AND NOTICE OF INTENT TO APPEAR AT FAIRNESS HEARING
Case: 09-17380   10/28/2009   Page: 1 of 3   DktEntry: 7111769




         EXHIBIT 5
                Case: 09-17380 10/28/2009 Page: of 3      DktEntry: 7111769
                Case5:05-cv-03649-JW Document332 2 Filed07/15/09 Page1 of 2



 1   Alan J. Sherwood, State Bar #118330
     LAW OFFICE OF ALAN J. SHERWOOD
 2   1300 Clay Street, Suite 600
 3   Oakland, CA 93612
     Telephone: 510-409-6199
 4   Facsimile: 510-903-1773

 5   Attorney for Objector Weiss
 6
 7                              UNITED STATES DISTRICT COURT
                              NORTHERN DISTRICT OF CALIFORNIA
 8
                                      SAN JOSE DIVISION
 9
10
11   CLRB HANSON INDUSTRIES, LLV d/b/a/ INDUSTRIAL
     PRINTING, and HOWARD STERN,
12   on behalf of themselves and all others similarly situated    Case No. C 05-03649 JW PVT

13                                                 Plaintiffs,
14
                            vs.                                   NOTICE OF NEW ADDRESS
15
     GOOGLE, INC.,
16
17               Defendant
     ______________________________________________
18
19   To:    The Court, All Parties and Their Counsel of Record:

20          Please be advised of Objector Matthew Weiss’ counsel’s new address as follows:
21
                            Alan J. Sherwood, State Bar #118330
22                          LAW OFFICE OF ALAN J. SHERWOOD
                            1300 Clay Street, Suite 600
23                          Oakland, CA 93612
24                          Telephone:    510-409-6199
                            Facsimile:    510-903-1773
25
26
                                                           Respectfully submitted,
27
                                                           /s/ Alan J. Sherwood
28                                                         Alan J. Sherwood, State Bar #118330


                                                     -1-
                                         NOTICE OF NEW ADDRESS
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 1                                     PROOF OF SERVICE
 2                           STATE OF FLORIDA, COUNTY OF ALACHUA

 3          I am employed in the County of Alachua, State of Florida; my business address is 115 NE
 4   6th Avenue, Gainesville, FL 32601. I am over the age of 18 and not a party to the within action.
 5
     On this 15th day of July, 2009, I served the document on all parties by electronic filing the
 6
 7   document listed above electronically through the Court’s electronic filing service provider

 8   pursuant to the instructions on that website.
 9
            I declare under penalty of perjury under the laws of the United States that the above is
10
     true and correct.
11
12          Executed on this 15th day of July, 2009, at Gainesville, Florida.

13
                                                            /s/ Janet K. Wood
14
                                                            Janet K. Wood
15
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         EXHIBIT 6
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 1   Alan Sherwood, Esq.
 2   CA Bar No.118330
     2356 Alum Rock Ave.
 3   San Jose, CA 95116
     PH: 408-929-3635
 4
     FX:510-903-1773
 5
 6
 7                              UNITED STATES DISTRICT COURT
                              NORTHERN DISTRICT OF CALIFORNIA
 8                                    SAN JOSE DIVISION
 9
10
     CLRB HANSON INDUSTRIES, LLV d/b/a/ INDUSTRIAL
11   PRINTING, and HOWARD STERN,
     on behalf of themselves and all others similarly situated   Case No. C 05-03649 JW PVT
12
13                                                 Plaintiffs,

14                          vs.
15
     GOOGLE, INC.,
16
                 Defendant
17
     ______________________________________________
18
19                                NOTICE OF SCRIVENER’S ERRORS
20
            Objector Weiss & Associates, PC, by counsel, hereby gives notice of scrivener’s
21
22   errors on the face of Doc 329 “Preliminary Objectors to Proposed Settlement and Notice

23   of Intent to Appear at Fairness Hearing”, and says:
24
            1.      Objector Weiss is misnamed as Objector Matthew Weiss, on page 1, instead of
25
26                  Objector Weiss & Associates, PC.

27
28


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 1   2.      Also on page 1, AdWords account number/customer ID number 338-806-2094

 2           should be; AdWords account numbers/customer ID numbers 338-806-2094 and
 3
             586-629-8649.
 4
                                               Respectfully submitted,
 5
 6                                             /s/ Alan J. Sherwood
                                               Alan J. Sherwood, State Bar #118330
 7                                             LAW OFFICE OF ALAN J. SHERWOOD
                                               1300 Clay Street, Suite 600
 8
                                               Oakland, CA 93612
 9                                             Telephone:      510-409-6199
                                               Facsimile:      510-903-1773
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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 1                                        PROOF OF SERVICE

 2   STATE OF FLORIDA, COUNTY OF ALACHUA
 3
            I am employed in the County of Alachua, State of Florida; my business address is 115 NE
 4
     6th Avenue, Gainesville, FL 32601. I am over the age of 18 and not a party to the within action.
 5
 6   On this 6th day of August, 2009, I served the following document on all parties by electronic

 7   filing by providing the document listed above electronically through the Court’s electronic filing
 8
     service provider pursuant to the instructions on that website.
 9
            As required, a copy, marked “Chambers Copy”, has been provided to the Clerk of the
10
11   Court by Federal Express Overnight Delivery this 6th day of 2009 for Judge James Ware.

12          I declare under penalty of perjury under the laws of the United States that the above is true
13
     and correct.
14
            Executed on this 6th day of August, 2009, at Gainesville, Florida.
15
16
                                                           /s/ Janet K. Wood
17                                                         Janet K. Wood
18
19
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          EXHIBIT 7
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1    LESTER L. LEVY (Admitted Pro Hac Vice)
     MICHELE FRIED RAPHAEL (Admitted Pro Hac Vice)
2
     WOLF POPPER LLP
3    845 Third Avenue
     New York, NY 10022
4    Telephone: (212) 759-4600
     Facsimile: (212) 486-2093
5
     E-Mail: llevy@wolfpopper.com
6    E-Mail: mraphael@wolfpopper.com

7    MARC M. SELTZER (54534)
     SUSMAN GODFREY L.L.P.
8
     1901 Avenue of the Stars, Suite 950
9    Los Angeles, CA 90067-6029
     Telephone: (310) 789-3100
10   Facsimile: (310) 789-3150
     E-Mail: mseltzer@susmangodfrey.com
11

12   Attorneys for Plaintiffs
     (See Signature Page for Additional
13   Representative Plaintiffs’ Counsel)
14
                                     UNITED STATES DISTRICT COURT
15
                                  NORTHERN DISTRICT OF CALIFORNIA
16
                                           SAN JOSE DIVISION
17

18
     CLRB HANSON INDUSTRIES, LLC d/b/a               Case No. C 05-03649 JW PVT
19   INDUSTRIAL PRINTING, and HOWARD
     STERN, on behalf of themselves and all others   PLAINTIFFS’ RESPONSE TO CLASS
20
     similarly situated,                             MEMBER OBJECTIONS
21
                           Plaintiffs,               Date: September 14, 2009
22                                                   Time: 9:00 a.m.
             vs.                                     Place: Courtroom 8
23

24   GOOGLE, INC.,

25                         Defendant.
26

27

28




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1
                                                         TABLE OF CONTENTS
2

3    I.      SUMMARY OF ARGUMENT.............................................................................................. 1

4    II.     BACKGROUND .................................................................................................................... 2
5            A.        Procedural and Factual Background of the Litigation.................................................... 2
6
             B.        The Settlement Agreement ........................................................................................... 5
7
             C.        Release......................................................................................................................... 6
8
             D.        Notice to the Class........................................................................................................ 6
9
             E.        Exclusion from the Class .............................................................................................. 7
10
             F.        Class Member Objections............................................................................................. 7
11

12           G.        Claims Administration.................................................................................................. 8

13           H.        Continued Jurisdiction.................................................................................................. 8
14   III.    THE OBJECTIONS TO THE PROPOSED SETTLEMENT SHOULD BE
             OVERRULED........................................................................................................................ 8
15

16           A.        The Weiss Objection Should Be Overruled................................................................... 9

17           B.        The Lyons and Thompson Objection Should Be Overruled......................................... 13

18           C.        The Jenkins Objection Should Be Overruled............................................................... 15
19           D.        Tootle’s Objection Should Be Overruled. ................................................................... 15
20
     IV.     CONCLUSION .................................................................................................................... 15
21

22

23

24

25

26

27

28



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1                                                      TABLE OF AUTHORITIES
2
     Cases
3
       Gould v. Alleco, Inc., 883 F.2d 281 (4th Cir. 1989)...........................................................................9
4
       Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) .................................................. 12, 14, 15
5
     Rules
6

7
       FED. R. CIV. P. 23 ...........................................................................................................................11

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



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1
     I.      SUMMARY OF ARGUMENT
2
             Plaintiffs respectfully submit this memorandum in response to (1) the Preliminary Objections
3
     to Proposed Settlement and Notice to Appear at Fairness Hearing, filed by Matthew Weiss (Docket
4
     Item No. 329; see also Docket Item No. 335); (2) Objection to Proposed Settlement, Notice of
5
     Appearance and Intent to Be Heard, filed by Randy R. Lyons and Chase Thompson (Docket Item No.
6
     326); (3) the objection letter dated July 13, 2009, filed by Forrest Jenkins (Docket Item No. 331); and
7
     (4) the Objection and Demand to Include Harry Tootle as Additional Representative Plaintiff and to
8
     Award Compensation to Same (Docket Item No. 330) (collectively, the “Objections”). Plaintiffs’
9

10   response is supported also by Plaintiffs’ Motion for Final Approval of Class Action Certification and

11   Settlement, filed concurrently herewith (“Motion for Final Approval”), and Plaintiffs’ Motion for

12   Award of Attorneys’ Fees and Class Representative Incentive Compensation Awards, also filed

13   concurrently herewith, along with the supporting declarations of Rachel S. Black, Lester L. Levy, and

14   Markham Sherwood, also filed concurrently herewith.          Representative Plaintiffs’ Counsel firmly

15   believe that the Settlement, the attorneys’ fee and expense application, and the requested incentive
16   compensation awards are fair and reasonable, and each has been approved by the Representative
17   Plaintiffs.
18           Plaintiffs submit that the Objections should be overruled because none of the objectors
19   included the required proof demonstrating that each objector was an AdWords Advertiser and none
20   raise a meaningful objection to the settlement terms, the requested award for attorneys’ fees and costs,
21
     or the requested incentive compensation award. As set forth in Plaintiffs’ Memorandum in support of
22
     its Motion for Final Approval, Representative Plaintiffs’ Counsel recommend that the Settlement be
23
     approved by this Court because the Settlement, which will result in substantial benefit to the Class, is
24
     fair, reasonable and adequate and is the result of extensive arm’s-length negotiations that took place
25
     over a period of nearly three months in a case that was intensely litigated for three and one-half years.
26
             Representative Plaintiffs’ Counsel also submit that their request for an attorneys’ fee award of
27
     $5 million (plus accrued interest) plus actual expenses of $147,599.50 is also fair and reasonable under
28
     the applicable legal standards and in light of the significant risks faced and the excellent result

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1    achieved. The fee requested is more than fair and reasonable when considered under the applicable
2    standards and is well within the normal range of awards made in contingent fee matters of this type,
3    particularly in view of the outstanding result achieved, the quality of the work performed, and the
4    considerable risks attendant in bringing and pursuing this litigation.
5            Finally, Representative Plaintiffs’ Counsel submit that the Court should overrule the objections
6
     to their request for an incentive compensation award of $20,000 to each of the two Representative
7
     Plaintiffs. The requested incentive compensation award is also fair and reasonable and is intended to
8
     compensate the Representative Plaintiffs for their efforts supporting this litigation since the inception
9
     of the case in 2005, which included producing numerous documents, responding to numerous
10
     interrogatories and requests for admission, and testifying at deposition, and for undertaking the risk
11
     that their efforts would not produce a successful result.
12
     II.     BACKGROUND
13
             For the Court’s convenience, copied below is the Background set forth in Plaintiffs’
14
     accompanying Memorandum in support of their Motion for Final Approval.
15
             A.        Procedural and Factual Background of the Litigation
16
             Plaintiffs filed their original Class Action Complaint on August 3, 2005, in the Superior Court
17
     of the State of California, County of Santa Clara, alleging causes of action against Google for unfair
18

19
     competition, breach of contract, negligent misrepresentation, unjust enrichment, constructive trust,

20   breach of the implied covenant of good faith and fair dealing, fraud, and injunctive and declaratory

21   relief. (See Docket Item No. 1, Ex. A.) In preparation for filing the complaint, Representative

22   Plaintiffs’ Counsel conducted an extensive factual investigation, including discussions with AdWords

23   Advertisers, reviewing numerous AdWords account records, and reviewing AdWords account

24   agreements, tutorials, and other public materials concerning the AdWords program. Declaration of
25   Lester L. Levy in Support of Plaintiffs’ Motion for Final Approval of Class Action Certification and
26   Settlement, Plaintiffs’ Motion for Award of Attorneys’ Fees and Expenses and Class Representative
27   Incentive Compensation Award, and Plaintiffs’ Response to Class Member Objections (“Levy Decl.”)
28   ¶¶ 4, 6 (filed concurrently herewith). Representative Plaintiffs’ Counsel also conducted an extensive


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1    legal investigation into the causes of action most appropriate based on their factual investigation and
2    the potential defenses that Google might assert. Id.
3            On September 12, 2005, Google removed the action from the Superior Court to this Court.
4    (Docket Item No. 1.) After Google filed its first motion to dismiss (see Docket Item No. 14), Plaintiffs
5    filed a First Amended Class Action Complaint alleging claims for breach of contract; breach of
6
     implied covenant of good faith and fair dealing; unfair competition under the Unfair Competition Law
7
     (“UCL”), CAL. BUS. & PROF. CODE § 17200, et seq.; false advertising under the False Advertising Law
8
     (“FAL”), CAL. BUS. & PROF. CODE § 17500, et seq.; and unjust enrichment. (Docket Item No. 18.)
9
     On January 3, 2006, Google filed a motion to dismiss Plaintiffs’ unjust enrichment claim. (Docket
10
     Item No. 30.) Plaintiffs opposed the motion in briefs filed on February 2, 2006. (Docket Item Nos.
11
     34, 35.) On April 12, 2006, the Court granted Google’s motion to dismiss while granting Plaintiffs
12
     leave to amend. (Docket Item No. 46.)
13
             On May 4, 2006, Plaintiffs filed their Second Amended Class Action Complaint (“SAC”), the
14
     operative complaint in this matter. (Docket Item No. 47.) The SAC alleges five causes of action:
15
     (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) UCL;
16
     (4) FAL; and (5) unjust enrichment. (Id.) The SAC seeks damages, restitution, and injunctive relief to
17
     remedy Google’s practices of (1) charging its AdWords advertisers up to 120% of their per day Daily
18

19
     Budget on any given day (the “120% claims”) and (2) charging AdWords customers who paused their

20   campaigns more than their per day Daily Budget times the number of days their campaigns were not

21   paused during the billing period (the “pausing claims”).

22           Google moved unsuccessfully to dismiss Plaintiffs’ UCL claim as alleged in the SAC. (Docket

23   Item No. 52.) Google subsequently filed three separate motions for partial summary judgment.

24   (Docket Item Nos. 85, 202, 234). The Court dismissed with prejudice Plaintiffs’ second and fifth
25   causes of action for breach of the implied covenant of good faith and fair dealing and unjust
26   enrichment. Google also successfully argued that its practice of charging AdWords Advertisers up to
27   120% of their Daily Budget on any given day does not, in and of itself, constitute breach of contract.
28   The Court held that triable issues of fact existed as to whether Google’s practice of charging up to


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1    120% of an AdWords Advertiser’s per day Daily Budget violates the UCL and FAL and whether
2    Google’s pre-September 2006 pausing practices constitute a breach of contract.1
3            During the hearing on its most recent motion for summary judgment, Google represented to the
4    Court that it would be filing yet another motion for summary judgment to dismiss Plaintiffs’ 120%
5    claims under the UCL and FAL. (See Docket Item No. 295.) Google indicated that it had newly
6
     discovered evidence proving that Google had disclosed to potential advertisers during the AdWords
7
     sign-up process that it may charge AdWords customers up to 120% of their per day Daily Budget on
8
     any day in order to make up for underdelivery of ads on any other day during that same billing period.
9
     Google provided Plaintiffs with copies of the purported AdWords sign-up screens, which contained
10
     disclosures that raised issues as to Plaintiffs’ ability to prove their 120% claims under the UCL and
11
     FAL, particularly for members of the Class who signed up for AdWords prior to June 2005.
12
             Based on this evidence, Plaintiffs intended to seek leave to file a Third Amended Complaint to,
13
     among other things, dismiss their 120% claims under the UCL and FAL for those Class Members who
14
     signed up for AdWords prior to June 2005, and to name a new class representative who had signed up
15
     for AdWords after June 2005. Google indicated that it would oppose Plaintiffs’ expected motion for
16
     leave to file the Third Amended Complaint.
17
             The Settlement was achieved after years of intense litigation, extensive briefing and pre-trial
18

19
     discovery, one unsuccessful mediation, and arduous arm’s-length negotiations. For three and one-half

20   years, Representative Plaintiffs’ Counsel conducted an extensive investigation into Plaintiffs’ claims.

21   Levy Decl. ¶¶ 4, 6. As part of this investigation, Plaintiffs propounded interrogatories and document

22   requests to Google and obtained hundreds of thousands of pages of documents produced by Google.

23   Id.; Declaration of Rachel S. Black in Support of Plaintiffs’ Motion for Final Approval of Class Action

24   Certification and Settlement, Plaintiffs’ Motion for Award of Attorneys’ Fees and Expenses and Class
25

26   1
       Plaintiffs’ pausing claims are segregated into pre- and post-September 2006 claims because, in
27
     September 2006, Google changed its practice of treating a paused campaign as underdelivered. (See
     Docket Item No. 237 ¶ 6.) When Plaintiffs initially filed this lawsuit, Google treated a paused day as
28   an underdelivered (or shortfall) day for the month or budget period, and thus would use paused days to
     absorb overdelivery on other days in the billing period. (Id.)

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1    Representative Incentive Compensation Award, and Plaintiffs’ Response to Class Member Objections
2    (“Black Decl.”) ¶ 3 (filed concurrently herewith). Representative Plaintiffs’ Counsel also conducted
3    depositions of key Google employees and defended Representative Plaintiffs in depositions conducted
4    by Google. Id.
5            On December 9, 2008, the Court set February 2, 2009, as the date for the close of all discovery.
6
     (Docket Item No. 295.) The parties made diligent efforts to settle the action, including two face-to-
7
     face meetings in December and January. (See Docket Item No. 306 ¶ 2.) During the January meeting,
8
     the parties believed that the discussions had progressed to such a point that they agreed to request a
9
     45-day moratorium for all litigation activities so they could focus on attempting to settle the action.
10
     (Id. ¶ 3.) On January 8, 2009, the parties requested a 45-day continuance of, inter alia, the discovery
11
     deadline. (Docket Item No. 305.) On January 23, 2009, the Court granted the parties’ request in part,
12
     setting March 2, 2009, as the close of all discovery. (Docket Item No. 308.) The parties negotiated a
13
     settlement shortly thereafter (see Docket Item No. 310), and after several weeks of negotiation, they
14
     agreed on the terms reflected in the Settlement Agreement in its current form on March 17, 2009. (See
15
     Docket Item No. 315-2, also attached as Exhibit 1.)
16

17
             B.        The Settlement Agreement
             Under the terms of the Settlement Agreement (Docket Item No. 315-2), Google has agreed to
18

19
     settle the Class Members’ claims on the following terms:

20       ·   Google has agreed to pay $20,000,000, together with interest on said sum from March 27, 2009
             (the “Settlement Proceeds”), in a combination of cash and AdWords Credits, as stated in the
21           proposed Plan of Allocation, inclusive of any Fee and Expense Award. Google has already
22           deposited the $20 million into an escrow account, per the terms of the Settlement Agreement.

23       ·   In addition to the Settlement Proceeds, Google has agreed to pay for all administrative costs
             and expenses incurred in connection with providing notice to the Class and locating class
24           members, and will pay all fees and costs incurred by the Claims Administrator for
25
             administering and distributing the Settlement Proceeds to the Class Members.

26       ·   Representative Plaintiffs’ Counsel successfully negotiated a distribution procedure such that
             the Settlement Proceeds would be allocated to and delivered to Class Members without the
27           need for them to file proofs of claim.
28



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1            Under the terms of the Settlement Agreement, Class Members who have an AdWords balance
2    due to Google that is greater than their settlement distribution will receive their distribution in the form
3    of AdWords Credits, which will offset amounts that the Class Member already owes to Google. See
4    Settlement Agreement ¶ 1.27. Class Members who have a balance due to Google that is less than the
5    Class Member’s settlement distribution may elect to receive cash in lieu of AdWords Credits for the
6
     amount that is in excess of the amount owed to Google. Class Members who have no balance due to
7
     Google on their AdWords account will automatically receive their settlement distribution in cash.
8
     Thus, under the terms of the Settlement, Class Members will either receive cash or the equivalent of
9
     cash, in the form of a reduction of the amount already owed to Google. This is, therefore, not a
10
     coupon settlement and Class Members are not required to submit a claim form to receive the benefits
11
     of the Settlement.
12
             C.        Release
13
             The Settlement Agreement contains a release, pursuant to which all Class Members, on behalf
14
     of themselves and their respective heirs, executors, administrators, successors, assigns, employees,
15
     officers, directors, attorneys, representatives, affiliates, agents, and any persons or entities they
16
     represent, shall be deemed to release and forever discharge Google from all Released Claims (as
17
     defined in the Settlement Agreement), and shall forever be barred and enjoined from prosecuting,
18

19
     commencing, instituting, or asserting all or any of the Released Claims in any action or other

20   proceeding in any court of law or equity, arbitrational tribunal, administrative or other forum, whether

21   directly, representatively, derivatively, or in any other capacity against Google.         See Settlement

22   Agreement ¶ 4.1.

23           D.        Notice to the Class
24           Class notice was disseminated pursuant to this Court’s Order Certifying Settlement Class and
25   Granting Preliminary Approval of Class Action Settlement, issued May 12, 2009. (Docket Item
26   No. 319.) On June 9, 2009, the Claims Administrator (Gilardi & Co., LLC) distributed via email to
27   1,129,685 members of the Class (as identified by Google) the Notice of Pendency and Proposed
28   Settlement of Class Action and Settlement Hearing (“Notice”), substantially in the form attached as

     Exhibit 1 to the Court’s May 12, 2009, Order. Declaration of Markham Sherwood (“Sherwood
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1    Decl.”), filed concurrently herewith, ¶ 3 & Ex. A (Notice). Members of the Class whose email address
2    was no longer working or was unknown received the Notice via US mail. Id. ¶ 4. The Claims
3    Administrator also posted the Notice, the Preliminary Approval Order, the Settlement Agreement, and
4    a     chart       with    the    exclusion    and     objection     deadlines     on     a     website,
5    www.adwordscustomersettlement.com; and published a summary notice in The Wall Street Journal
6
     and USA Today. Id. ¶¶ 5-6 & Ex. B (Summary Notice).
7
             The Court-approved Notice fully comports with the requirements of Rule 23(c)(2)(B) and
8
     (e)(1) and due process because it constitutes the best notice practicable under the circumstances. It
9
     fairly apprises members of the Class of the essential terms of the Settlement and advises members of
10
     the Class of their rights thereunder. It advises Class Members of the pendency of this action, the
11
     proposed settlement, and Representative Plaintiffs’ Counsel’s application for a fee and expense award
12
     and for an incentive compensation award to Representative Plaintiffs; describes the facts underlying
13
     this action; states who members of the Class are; provides information regarding attorneys’ fees and
14
     how Class Members may object to the proposed settlement; and clearly indicates contact information
15
     for both Representative Plaintiffs’ Counsel and defense counsel. This is more than adequate notice
16
     under the circumstances.
17

18           E.        Exclusion from the Class

19
             Class Members had the opportunity to request exclusion from the Class by submitting, by first-

20   class mail so that it was actually received by the Claims Administrator no later than July 14, 2009, a

21   written request for exclusion from the Class. A total of 75 members of the Class served requests for

22   exclusion.2 Sherwood Decl. ¶ 7 & Ex. C.

23           F.        Class Member Objections
24           Class Members who chose to object to the proposed Settlement were required to file and serve
25   Representative Plaintiffs’ Counsel by hand or by first-class mail on or before July 14, 2009, written
26   objections and copies of all briefs or other papers (including proof of the dates that the person was an
27
     2
28    The Claims Administrator received the requests of six members of the class after the July 14, 2009
     deadline. Sherwood Decl. ¶ 7 & Ex. 3.

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1    AdWords Advertiser). Four objections were served, none of which provides proof that the objector
2    was an AdWords Advertiser; nor do they specify the dates that the objectors were AdWords
3    Advertisers.
4
             G.        Claims Administration
5            Per the terms of the Settlement Agreement, after any Order granting final approval becomes
6
     final, Google is to provide the Claims Administrator with AdWords account records sufficient for the
7
     Claims Administrator to calculate the Settlement Distribution due to each Class Member under the
8
     Plan of Allocation. Settlement Agreement ¶ 1.27. Class Members are not required to submit claim
9
     forms to receive the benefits of the Settlement. The Claims Administrator will issue checks to all
10
     Class Members who are not Active AdWords Advertisers and to those Active AdWords Advertisers
11
     who elect to receive cash in lieu of AdWords Credits per the terms of the Settlement Agreement.
12
     Google is responsible for distributing AdWords Credits. Within five business days of receiving
13
     evidence that Google has distributed and applied the AdWords Credits to Active AdWords Advertisers
14
     who did not elect to receive their distribution in cash per the Plan of Allocation, the Claims
15
     Administrator is to transfer from the Escrow Account to Google the dollar amount of such AdWords
16
     Credits. A proportionate share of the interest earned on such funds shall be added to the Cash
17
     Settlement Proceeds to be distributed to the Class Members.
18

19           H.        Continued Jurisdiction

20           The Settlement Agreement contemplates that the Court would retain continuing jurisdiction

21   over the Settlement Proceeds and the Parties for the purposes of (a) implementing and effectuating the

22   Agreement; and (b) construing, enforcing, and administering the Settlement Agreement, including the

23   distribution of the Settlement Proceeds to Authorized Claimants. See Settlement Agreement ¶ 4.2.

24   III.    THE OBJECTIONS TO THE PROPOSED SETTLEMENT SHOULD BE
             OVERRULED
25
             Pursuant to the Court’s Order dated May 12, 2009, Class members who chose to object to the
26
     proposed Settlement were required to file and serve Representative Plaintiffs’ Counsel by hand or by
27
     first-class mail on or before July 14, 2009, written objections and copies of all briefs or other papers.
28
     (See Docket Item No. 319.) The Court required objections to include proof of the dates that the person

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1    was an AdWords Advertiser. (Id.) Four objections were served. None of the objections provide proof
2    of the dates that the objector was an AdWords Advertiser, and none raise a legitimate reason for
3    disapproving the Settlement, denying the requested award of attorneys’ fees and expenses, or denying
4    the requested incentive compensation awards to the Representative Plaintiffs.          Each objection,
5    addressed in turn below, should be overruled.
6
             A.        The Weiss Objection Should Be Overruled
7
             On July 14, 2009, an objection to the Settlement was filed on behalf of objector Matthew
8
     Weiss. (See Docket Item No. 329.) Although the objection provides an AdWords account number
9
     and address for Mr. Weiss, it provides no proof or specificity of the dates that Mr. Weiss was an
10
     AdWords Advertiser, as required by Court Order (indeed, no such proof exists because Mr. Weiss was
11
     never an AdWords Advertiser). Rather, Mr. Weiss’s objection is not supported by any declaration or
12
     evidence whatsoever, and contains only a general averment that Mr. Weiss became an AdWords
13
     Advertiser “between June 1, 2005 and February 28, 2009, inclusive.” (Docket Item No. 329, at 2.) On
14
     this basis alone, Mr. Weiss’s objection should be overruled.
15
             Mr. Weiss subsequently discovered that he is not a member of the Class at all and has no
16
     standing to object to the Settlement.3 Mr. Weiss attempted to cure his lack of standing by filing a
17
     “Notice of Scrivener’s Errors” on August 6, 2009, which purports to (1) change the name of the
18

19
     purported objector from “Matthew Weiss” to “Weiss & Associates, PC,” and (2) add a new AdWords

20   Account number. (Docket Item No. 335.) This untimely attempt to substitute a new objector should

21   be denied.

22           Should the Court overlook the deficiencies in Mr. Weiss’s and his law firm’s purported

23   objection, the objection should be denied because it does not raise a legitimate reason for disapproving

24
     3
25     Mr. Weiss appeared for his deposition concerning his objection on August 6, 2009. At the
     deposition, Mr. Weiss’s counsel, Richard Abend, stated that Mr. Weiss, in preparing for his
26   deposition, noticed that the objection should have been filed on behalf of Weiss & Associates PC and
27
     not on behalf of Mr. Weiss personally. Levy Decl. Ex. A (Weiss Dep. 3:12–18). Thus, per Mr.
     Weiss’s own admission, he is not a Class member and lacks standing to object to the Settlement. See,
28   e.g., Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989) (“[N]on-class members have no standing
     to object, pursuant to a Rule 23(e) notice directed to class members, to a proposed class settlement.”).

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1    the Settlement, the requested award of attorneys’ fees and expenses, or the Representative Plaintiffs’
2    incentive compensation awards. Weiss’s attorney objected on the following grounds:4 (1) 99% of
3    Google’s revenue is derived from its advertising programs, and its 2006 advertising revenues
4    amounted to $10.492 billion; (2) the Court must make findings with regard to Plaintiffs’ likelihood of
5    success at trial, and “[e]ven a thorough examination for the case file in and of itself would not allow a
6
     Class Member to estimate plaintiffs’ likelihood of success”; (3) the range of possible recoveries was
7
     not disclosed and therefore “no determination as to the reasonableness of this proposed Settlement can
8
     be made”; (4) the size of the class is not disclosed; (5) the number of overcharges per Class Member is
9
     not disclosed; (6) the average cumulative value of each Class Member overcharge is unknown; (7) the
10
     total amount of estimated damages is not disclosed; and (8) the Notice does not contain any
11
     information supporting a fee award. (Docket Item No. 335.) None of these objections are valid.
12
             As for the first objection, Google’s revenue does not represent anything close to the potential
13
     recovery of the Class. As detailed in Plaintiffs’ Memorandum in support of Plaintiffs’ Motion for
14
     Final Approval, the Class Members’ claims are likely limited to 20% overcharges for their first month
15
     of advertisement, and pausing overcharges are likely limited to a small time period (prior to September
16
     2006). See also Black Decl. ¶ 7. Thus, Google’s annual advertising revenue bears absolutely no
17
     relation to the Class Members’ potential recovery.
18

19
             As for the second objection, Representative Plaintiffs’ Counsel have thoroughly analyzed this

20   case and have determined that the Settlement achieves an excellent result for the Class in light of the

21   real possibility of zero recovery if the case were litigated to a final resolution. Black Decl. ¶ 9. Mr.

22   Weiss, on the other hand, testified that he did not even read any of the filings in this action other than

23   the Class Notice, that he was unaware of Google’s defenses or the strength of Plaintiffs’ case, and that

24   he never read the AdWords Agreement or FAQs when he signed his law firm up to use Google
25   AdWords. Levy Decl. ¶ 96 & Ex. A (Weiss Dep. 8:4–6, 20:5–12, 30:15–32:4). He is also unaware of
26   whether the “attorneys who are handling this on my behalf or on Weiss & Associates’ behalf I should
27
     4
28    Mr. Weiss did not read his objection prior to it being filed. Levy Decl. Ex. A (Weiss Dep. 15:19–
     16:2).

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1    say” obtained or reviewed any of the Court filings.5 Id. (Weiss Dep. 20:13–22). Yet he admitted that
2    from reading the Notice that Representative Plaintiffs’ Counsel did “a lot of work” and did a “good
3    job” withstanding Google’s summary judgment motions. Id. (Weiss Dep. 19:15–19).
4            Weiss’s objections concerning the lack of detail set forth in the Notice concerning class size
5    and overcharge amount are similarly without merit. Although it is true that the Court-approved Notice
6
     did not detail the range of possible recoveries or the estimated recovery, the estimated size of the
7
     Class, the number of overcharges per Class Member, or the average cumulative value of each Class
8
     Member overcharge, it is not necessary to provide such detailed information in order for a notice to be
9
     valid and a settlement to be approved. Indeed, Mr. Weiss cites no authority supporting the proposition
10
     that this information must be stated in the Settlement Notice. To the contrary, Federal Rule of Civil
11
     Procedure 23(c)(2)(B) provides, in pertinent part that, “For any class certified under Rule 23(b)(3), the
12
     court must direct to class members the best notice practicable under the circumstances, including
13
     individual notice to all members who can be identified through a reasonable effort.” FED. R. CIV. P.
14
     23(c)(2)(B) (emphasis added). Proper notice should include:
15
         ·   the essential terms of the proposed settlement;
16
         ·   disclosure of any special benefits provided to the class representatives;
17
         ·   information regarding attorney fees;
18

19

20
     5
       Mr. Weiss, who is an attorney himself, testified that his attorney, Mr. Sherwood, is co-counsel with
21   two other attorneys (Paul Rothstein and Albert Bacharach) who are purportedly representing Mr.
     Weiss’s law firm in this objection. Levy Decl. ¶ 95 & Ex. A (Weiss Dep. 19:12–20:6). Mr. Weiss
22
     testified that as part of his practice he works with Messrs. Rothstein and Bacharach objecting to class
23   action settlements. Id. (Weiss Dep. 25:23–26:1). Undoubtedly Mr. Weiss’s objection is at least in part
     motivated by the unwritten agreement Mr. Weiss entered into with his counsel, pursuant to which he
24   personally will receive 25% of any fees generated by this objection. Id. (Weiss Dep. 34:11–17).
25           Notably, Messrs. Rothstein and Bacharach have also filed objections to class action settlements
     with attorney Steve Miller, a Colorado lawyer who has filed an objection to the Settlement on behalf
26   of two persons located in Alabama. Levy Decl. ¶ 103. For example, in TransUnion Privacy
27
     Litigation Messrs. Rothstein, Bacharach, and Miller were among a group of attorneys who filed
     objections to the class action settlement. Id. When the objections were overruled by the Court as
28   meritless, the objectors filed Notices of Appeal and were paid fees to dismiss the appeal. Id. They
     dismissed the appeal without any modification to the settlement. Id.

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1        ·   the time and place of the hearing to consider approval of the settlement, and the method for
             objecting to the settlement;
2
         ·   explanation of the procedures for allocating and distributing settlement funds; and
3
         ·   prominently display the address and phone number of class counsel and the procedure for
4            making inquiries.
5    Id. Details concerning potential damages and precise recovery are not required to be included in the
6    Class Notice. Indeed, individual recoveries from a proposed lump-sum settlement are often uncertain,
7    especially before opt-outs are known, and there is no requirement that a notice of settlement even
8    disclose the formula for calculating one’s recovery. As the Eighth Circuit has held,
9                      We do not agree with the objectors’ contention that a mailed notice of
                       settlement must contain a formula for calculating individual awards. It
10
                       is well settled that the notice is not required to provide a complete source
11                     of information. The weight of authority rejects the proposition that a
                       specific formula must always be included in the notice.
12

13
     Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1153 (8th Cir. 1999) (internal quotation marks omitted).

14           Here, the Court-approved Notice fully comports with the requirements of Rule 23(c)(2)(B) and

15   (e)(1) and due process because it constituted the best notice practicable under the circumstances. It

16   fairly apprised members of the class of the essential terms of the Settlement and advised members of

17   the class of their rights thereunder. Sherwood Decl. Ex. A. It advised Class members of the pendency

18   of this action, the basic terms of the proposed Settlement (and posted the actual Settlement Agreement
19   on the website), and Representative Plaintiffs’ Counsel’s application for a fee and expense award and
20   for an incentive compensation award to Representative Plaintiffs; described the facts underlying this
21   action; stated who members of the Class are; provided information regarding attorneys’ fees and how
22   Class Members may object to the Settlement; and clearly indicated contact information for both
23   Representative Plaintiffs’ Counsel and defense counsel. Id. It stated that Representative Plaintiffs’
24
     counsel, in determining to settle the action, considered “the substantial expense and length of time
25
     necessary to prosecute the litigation through complete pretrial discovery, trial, post-trial motions and
26
     likely appeals, taking into consideration the significant uncertainties in predicting the outcome of this
27
     complex litigation.” Id. It states that Representative Plaintiffs’ Counsel “concluded that it is in the
28
     best interests of the Class to settle the Action” in light of the “uncertainty and risk of the outcome of

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1    any litigation, especially complex litigation such as this, and the difficulties and risks inherent in the
2    trial of such an action.” Id. at p. 45. This is more than adequate notice under the circumstances.
3            Weiss’s final objection, that Representative Plaintiffs’ Counsel should have been required to
4    file their initial motion for fees “prior to the Notice being prepared so that the fee information could
5    have been included in the Notice,” is also without basis. (Docket Item No. 329, ¶ 17). The Notice
6
     informed members of the class that Representative Plaintiffs’ Counsel would apply “for an award of
7
     attorney’s fees from the Settlement Proceeds in an amount not exceeding $5,000,000, plus a
8
     proportionate share of the interest earned on the Settlement Proceeds, and for reimbursement of their
9
     costs and expenses, not to exceed $250,000.” Sherwood Decl. Ex. A. This provided sufficient
10
     information for the Class Members to raise any objection to the requested award of attorneys’ fees and
11
     expenses. Accordingly, Weiss’s objection should be overruled.
12
             B.        The Lyons and Thompson Objection Should Be Overruled
13
             Attorney Steve Miller has filed an objection to the Settlement on behalf of purported Class
14
     Members “Randy R. Lyons and Chase Thompson individually and d/b/a Etech Digital Playroom, Inc.
15
     and Universal Pro Audio, LLC.” (Docket Item No. 326.) As with the Weiss objection, the Lyons and
16
     Thomas objection is invalid on its face in that it fails to provide the addresses and account information
17
     for the objectors and proof of the dates that each objector was an AdWords Advertiser, as required by
18

19
     the Court’s Order. Instead, Mr. Miller’s clients merely aver “that they “believe[] they are identified as

20   Class Members” and that they “regularly advertised on Google during the class period.” (Id. at 2.)

21           Even if the Court overlooks this deficiency and considers the Lyons and Thompson objection

22   on its merits, the objection should also be overruled. Lyons and Thompson objected to the Settlement

23   because “Defendants have available information sufficient to identify all Class Members and to

24   compute with reasonable certainty the amount that each identified Class Member will ultimately
25   receive based on the allocation formula” but failed to disclose this information to the Class Members.
26   (Id. at 3.)   Without citing to any supporting authority, Lyons and Thompson aver that “[i]t is
27   imperative to understanding whether a proposed Settlement is fair, adequate and reasonable that Class
28   Members be able to ascertain what their actual benefit will be and how this relates to actual


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1    overcharges.” (Id.) As discussed above, this is wrong, and the Settlement should not be rejected on
2    this basis. See Petrovic, 200 F.3d at 1153.
3            Lyons and Thompson also complain that the Notice does not give members of the class
4    “sufficient information regarding the terms of the settlement and have succeeded in making the
5    settlement so opaque and complex as to not be fully understood.” (Docket Item No. 326, at 4.) This
6
     argument is also without merit. The Court-approved Notice provided details concerning the precise
7
     terms of Settlement, settlement calculation and distribution, and provided an email address and contact
8
     information for Representative Plaintiffs’ Counsel should any member of the Class have questions
9
     concerning the proposed Settlement. Sherwood Decl. Ex. A. Indeed, Representative Plaintiffs’
10
     Counsel received numerous telephone and email inquiries. Black Decl. ¶ 14.
11
             Without providing any detail or reasoning, Lyons and Thompson object to the requested
12
     attorneys’ fees “as being excessive” and to the requested representative fee “as being excessive.”
13
     (Docket Item No. 326, at 4.) These conclusory objections should also be overruled. As explained in
14
     detail in Plaintiffs’ Memorandum in support of their Motion for an Award of Attorneys’ Fees and
15
     Expenses, the requested award of attorneys’ fees and expenses are well within the range of reasonable
16
     fee awards, as are the incentive compensation awards for the Representative Plaintiffs.
17
             Notably, when Representative Plaintiffs’ Counsel attempted to depose Mr. Miller’s clients to
18

19
     ascertain the basis for their objections and to determine whether they had standing to object to the

20   Settlement, Mr. Miller refused to produce them for deposition.6 Representative Plaintiffs’ Counsel

21   sought to compel the depositions, but Magistrate Judge Trumbull denied the motion because the

22   discovery period had ended, without prejudice to Plaintiffs to seek relief from the Court to reopen

23
     6
24
       Mr. Miller thwarted efforts by Representative Plaintiffs’ Counsel to ascertain whether Lyons and
     Thompson also entered into a fee sharing arrangement similar to the agreement Mr. Weiss testified
25   that he entered into with his counsel. Mr. Miller has previously received compensation for dismissing
     an appeal of a trial court’s rejection of his objection to a class action settlement in Reformulated
26   Gasoline Antitrust and Patent Litigation. Levy Decl. ¶ 104. In that case, Mr. Miller filed an objection
27
     to the proposed settlement on behalf of Leslie Yagar (formerly Leslie Miller). Id. After the objection
     was denied as meritless, Mr. Miller filed a Notice of Appeal and was paid a fee when he dismissed the
28   appeal. Id. Mr. Miller accepted payment and dismissed his appeal even though there was no
     modification to the settlement. Id.

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1    discovery. (Docket Item No. 338.) Should the Court be inclined to sustain the Lyons and Thompson
2    objections in whole or in part, Representative Plaintiffs’ Counsel request that the Court require the
3    objectors to testify at deposition so that counsel may learn the bona fides of their objections, and to
4    determine whether they are in fact Class Members.
5
             C.        The Jenkins Objection Should Be Overruled
6
             Forrest Jenkins complains that, even after he “read the settlement notice,” he “cannot tell how
7
     much I am going to receive under this settlement” because it “is far too complicated and dependent
8
     upon contingencies.”      (Docket Item No. 331.)    He further objects that “the attorneys’ fees and
9
     incentive awards are too high and should be reduced so the class receives more of the settlement
10
     funds.” Id. As discussed above, there is no requirement that a notice of settlement disclose individual
11
     recoveries, Petrovic, 200 F.3d at 1153, and the requested attorneys’ fee and expenses award and
12
     incentive compensation award are fair and reasonable. Mr. Jenkins’s objection should therefore be
13
     overruled.
14
             D.        Tootle’s Objection Should Be Overruled
15
             The objection filed by “Harry Tootle d/b/a American International Commission on Peace
16
     Officers Standards and Training” states no basis for objecting. (Docket Item No. 330.) Mr. Tootle’s
17
     sole demand is that he “be included as a Representative Plaintiff and receive a $20,000 Incentive
18

19
     Compensation Award plus any other compensation deemed fitting and proper by this Court.” (Id.)

20   Mr. Tootle states no reason why he should be entitled to an incentive compensation award. He did not

21   serve as a Representative Plaintiff and did not participate in the litigation. He was not interviewed or

22   deposed or required to respond to any discovery requests, nor were his bank or business records

23   subpoenaed by Google. Accordingly, Mr. Tootle’s objection (request) should be overruled (denied).

24   IV.     CONCLUSION
25           For the reasons set forth herein, in Plaintiffs’ Motion for Final Approval of Class Action
26   Certification and Settlement, and in Plaintiffs’ Motion for Award of Attorneys’ Fees and Expenses,
27   and the facts set forth in the accompanying declarations of Rachel S. Black, Lester L. Levy, and
28   Markham Sherwood, Plaintiffs respectfully request that the Court overrule the Objections and certify

     the Settlement Class, approve the Settlement together with the Plan of Allocation as fair, reasonable,
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1    and adequate, and grant the requested attorneys’ fees and expenses and Representative Plaintiffs’
2    incentive compensation awards.
3
     Dated: August 24, 2009             Respectfully submitted,
4
                                        LESTER L. LEVY (Admitted Pro Hac Vice)
5                                       MICHELE FRIED RAPHAEL (Admitted Pro Hac Vice)
                                        WOLF POPPER LLP
6

7                                       MARC M. SELTZER
                                        SUSMAN GODFREY L.L.P.
8
                                        STEPHEN D. SUSMAN (Admitted Pro Hac Vice)
9
                                        SUSMAN GODFREY L.L.P.
10                                      1000 Louisiana Street, Suite 5100
                                        Houston, TX 77002
11                                      Telephone: (713) 651-9366
                                        Facsimile: (713) 654-6666
12
                                        E-Mail: ssusman@susmangodfrey.com
13
                                        RACHEL S. BLACK (Admitted Pro Hac Vice)
14                                      DANIEL J. SHIH (Admitted Pro Hac Vice)
                                        SUSMAN GODFREY L.L.P.
15
                                        1201 Third Avenue, Suite 3800
16                                      Seattle, WA 98101
                                        Telephone: (206) 516-3880
17                                      Facsimile: (206) 516-3883
                                        E-Mail: rblack@susmangodfrey.com
18
                                        E-Mail: dshih@susmangodfrey.com
19

20
                                        By /s/ Rachel S. Black
21
                                        Rachel S. Black
22
                                        Attorneys for Plaintiffs
23

24

25

26

27

28



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1                                        CERTIFICATE OF SERVICE
2
             I hereby certify that on the date written above, that I electronically filed the foregoing
3
     document with the Clerk of the Court using the CM/ECF system. The Court or the CM/ECF system
4
     will send notification of such filings to all CM/ECF participants.
5

6
             I further certify that a true and correct copy of this document was sent via U.S. first-class

7    mail, postage pre-paid, to all non-CM/ECF participants, as follows:

8            Alan J. Sherwood                                   Aaron R. Bakken
             LAW OFFICE OF ALAN J.                              Emalfarb Swan & Bain
9                                                               440 Central Avenue
             SHERWOOD
             1300 Clay Street, Suite 600                        Highland Park, IL 60035
10                                                              Attorneys for National Lien & Bond
             Oakland, CA 93612
11           Attorney for Objector Matthew Weiss
12
             Harry Virgil Tootle                                Sharon Mostyn
13           140 West 1st Street                                Ecommerce Manager
             Tustin, CA 92780                                   MEDEX Global Group, Inc.
14                                                              8501 LaSalle Road, Suite 200
                                                                Baltimore, MD 21286
15

16
             Sylvie D. Robinson                                 Forrest Jenkins
             The Portrait Liquidating Trust                     5404 Braeburn Drive
17           1855 Lakeland Drive, Suite D-20                    Bellaire, TX 77041
             Jackson, MS 39216
18

19

20
                                                    s/ Rachel S. Black
21

22

23

24

25

26

27

28



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4

5

6

7

8                                  UNITED STATES DISTRICT COURT
9                                NORTHERN DISTRICT OF CALIFORNIA
10
                                                SAN JOSE DIVISION
11
     CLRB HANSON INDUSTRIES, LLC d/b/a                    Case No. C 05-03649 JW PVT
12
     INDUSTRIAL PRINTING, and HOWARD
     STERN, on behalf of themselves and all others
13
     similarly situated,                                  [PROPOSED] ORDER
                                                          OVERRULINGCLASS MEMBER
14
                                  Plaintiffs,             OBJECTIONS
15
                        vs.                               Hearing:    Monday, September 14, 2009
16                                                        Time:       9:00 am.
     GOOGLE, INC.,
                                                          Dept.:      Courtroom 8
17                                                        Judge:      Honorable James W. Ware
                                  Defendant.
18

19
             Plaintiffs’ Motion for Final Approval of Class Action Certification and Settlement and
20
     Plaintiffs’ Motion for Award of Attorneys and Expenses and Class Representative Incentive
21
     Compensation Awards having come on for hearing, and the Court having considered such motions and
22
     the Preliminary Objections to Proposed Settlement and Notice to Appear at Fairness Hearing, filed by
23
     Matthew Weiss (Docket Item No. 329; see also Docket Item No. 335); the Objection to Proposed
24
     Settlement, Notice of Appearance and Intent to Be Heard, filed by Randy R. Lyons and Chase
25
     Thompson (Docket Item No. 326); the objection letter dated July 13, 2009, filed by Forrest Jenkins
26
     (Docket Item No. 331); and the Objection and Demand to Include Harry Tootle as Additional
27
     Representative Plaintiff and to Award Compensation to Same (Docket Item No. 330) (collectively, the
28
                                           1
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1    “Objections”), along with Plaintiffs’ Response to Class Member Objections and all relevant

2    documents and evidence and having considered the argument of counsel, and good cause appearing

3    therefore:

4            IT IS HEREBY ORDERED THAT the Objections are OVERRULED in their entirety.

5

6
     Dated: ___________________, 2009
7

8
                                              __________________________________
9                                             JAMES WARE
                                              United States District Judge
10

11

12
     Respectfully Submitted:
13   SUSMAN GODFREY L.L.P.
14
     By: ___s/Rachel S. Black______
15          Rachel S. Black
            Attorneys for Plaintiffs
16

17

18

19

20

21

22

23

24

25

26

27

28
                                           2
     [PROPOSED] ORDER OVERRULING CLASS MEMBER OBJECTIONS
     Case No. C 05-03649 JW
     965188v1/010480
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          EXHIBIT 8
                Case: 09-17380 10/28/2009 Page: of 13       DktEntry: 7111769
                Case5:05-cv-03649-JW Document346 2 Filed09/14/09 Page1 of 12

                                                                                S DISTRICT
                                                                              TE           C
1                                                                           TA




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2




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                                                                                  O ORD




                                                                 UNIT
3                                                                         IT IS S




                                                                                                          R NIA
4
                                                                                            es Ware




                                                                  NO
                                                                                           m
5                                                                                  Judge Ja




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6
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                                                                                                      A
                                                                               N                      C
                                                                                                 F
7                                                                                  D IS T IC T O
                                                                                         R
8
                                      UNITED STATES DISTRICT COURT
9
                                   NORTHERN DISTRICT OF CALIFORNIA
10
                                                  SAN JOSE DIVISION
11

12   CLRB HANSON INDUSTRIES, LLC d/b/a                       Case No. C 05-03649 JW PVT
     INDUSTRIAL PRINTING, and HOWARD
13   STERN, on behalf of themselves and all others
     similarly situated,                                     FINAL JUDGMENT
                                                             [PROPOSED] FINAL JUDGMENT
14
                                    Plaintiffs,
15                                                           Hearing:   September 14, 2009
                          vs.
16
                                                             Time:      9:00 a.m.
     GOOGLE, INC.,                                           Dept.:     Courtroom 8
17                                                           Judge:     Hon. James W. Ware
                                    Defendant.
18
            On September 14, 2009, this matter came before the Court for hearing on the application of the
19            This matter came before the Court for hearing on the application of the Parties for approval of
     Parties for approval of the settlement set forth in the Settlement Agreement and Release
20
      the settlement set forth in the Settlement Agreement and Release (“Agreement”), dated as of March
21   (“Agreement”), dated as of March 17, 2009. The Court reviewed the various objections it has received
      17, 2009. Due and adequate notice having been given to the Class as required by prior Order of this
22   and permitted counsel representing three objectors to speak at the hearing. Upon consideration, the
      Court, and the Court having considered all papers filed and proceedings had herein and otherwise
23
     Court overrules the objections to this Settlement Agreement. Accordingly, due and adequate notice
24    being fully informed in the premises and good cause appearing therefor,
     having been given to the Class as required by prior Order of this Court, and the Court having
25            NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
     considered all papers filed and proceedings had herein and otherwise being fully informed in the
26            1.      The Court, for purposes of this Order, adopts the definitions set forth in the Agreement.
27   premises and good cause appearing therefor,

28         NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
                                                     1
         1.     The Court, for purposes of this Order, adopts the definitions set forth in the Agreement.
     [PROPOSED] FINAL JUDGMENT
     964984v1/010480
                                                         1
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1            2.        This Court has jurisdiction over the subject matter of the Action and over all parties to

2    the Action, including all members of the Class.
3
             3.        Pursuant to Rule 23 of the Federal Rules of Civil Procedure and by prior Order of this
4
     Court, the Class has been certified, defined as set forth in the Agreement. Excluded from the Class are
5
     Resellers, as defined in the Agreement, and those who validly requested to be excluded from the Class
6
     pursuant to paragraph 3.4 of the Agreement (the names of which are attached hereto as Exhibit A).
7

8            4.        Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby approves

9    the settlement set forth in the Settlement Agreement and finds that said settlement is, in all respects,

10   fair, just, reasonable and adequate to the Class, and in the best interests of the Class.
11
             5.        The Action and all claims contained therein, as well as all of the Released Claims, are
12
     dismissed with prejudice as to plaintiffs and all Class Members and as against Google.
13
             6.        The Court finds that the Agreement, and the terms of the settlement set forth therein, is
14
     fair, just, reasonable and adequate to the Class, and that the Agreement, and the terms of the settlement
15

16   set forth therein, are hereby finally approved in all respects and the Parties are hereby directed to

17   perform its terms.
18           7.        Upon this Final Judgment becoming final, all Class Members, on behalf of themselves,
19
     and their respective heirs, executors, administrators, successors, assigns, employees, officers,
20
     directors, attorneys, representatives, affiliates, agents, and any persons or entities they represent, shall
21
     be deemed to release and forever discharge Google from all Released Claims, and shall forever be
22

23   barred and enjoined from prosecuting, commencing, instituting or asserting all or any of the Released

24   Claims in any action or other proceeding in any court of law or equity, arbitrational tribunal,

25   administrative or other forum, whether directly, representatively, derivatively, or in any other capacity
26
     against Google, and Google shall be deemed to have, and by operation of this Judgment shall have
27

28
                                                          2
     [PROPOSED] FINAL JUDGMENT
     964984v1/010480
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1    fully, finally, and forever released the Representative Plaintiffs from all claims that Google has or may

2    have against them, their affiliates, employees, or members as of February 28, 2009.
3
             8.        All Members of the Class are hereby forever barred and enjoined from prosecuting the
4
     Released Claims against Google.
5
             9.        Upon this Final Judgment becoming final, Google shall be deemed to have, and by
6
     operation of this Final Judgment shall have fully, finally and forever released, relinquished and
7

8    discharged each and all of Representative Plaintiffs, Class Members, and Representative Plaintiffs’

9    Counsel from all claims — known and unknown — arising out of, relating to, or in connection with

10   the institution, prosecution, assertion, settlement or resolution of the Action or the Released Claims.
11
             10.       As set forth in the Court’s prior Order, the notice given to the Class was the best notice
12
     practicable under the circumstances of these proceedings and of the matters set forth therein, including
13
     the certification of the Class, and the proposed settlement set forth in the Agreement to all persons
14
     entitled to such notice, and said notice fully satisfied the requirements of Federal Rules of Civil
15

16   Procedure 23 and due process.

17           11.       Neither the Agreement nor the terms of the settlement set forth therein, nor any act
18   performed or document executed pursuant to or in furtherance of the Agreement or the settlement: (i)
19
     is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any
20
     Released Claim, or of any wrongdoing or liability of Google, or (ii) is or may be deemed to be or may
21
     be used as an admission of, or evidence of, any fault or omission of Google in any civil, criminal or
22

23   administrative proceeding in any court, administrative agency or other tribunal, except in a proceeding

24   to approve, enforce, or otherwise effectuate the settlement set forth in the Agreement (or any

25   agreement or order relating thereto). Google may file the Agreement and the Final Judgment entered
26
     thereon in any other action that may be brought against it in order to support a defense or counterclaim
27

28
                                                           3
     [PROPOSED] FINAL JUDGMENT
     964984v1/010480
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1    based on principles of res judicata, collateral estoppel, release, good faith settlement, judgment bar or

2    reduction or any theory of claim preclusion or issue preclusion or similar defense or counterclaim.
3
             12.       The Court finds that each party to the Action, together with their respective counsel,
4
     have complied throughout the Action with the requirements of Rule 11(b) of the Federal Rules of Civil
5
     Procedure.
6
             13.       In the event that the settlement set forth in the Agreement does not become effective in
7

8    accordance with the terms of the Final Agreement, then this Judgment shall be rendered null and void

9    to the extent provided by and in accordance with the terms of the Agreement and shall be vacated, and

10   in such event, all releases delivered or given in connection herewith shall be null and void to the extent
11
     provided by and in accordance with the terms of the Agreement.
12
             14.       Without affecting the finality of this Final Judgment in any way, this Court hereby
13
     retains continuing jurisdiction over the Settlement Proceeds and the Parties for purposes of (a)
14
     implementing and effectuating the Agreement; and (b) construing, enforcing and administering the
15

16   Agreement, including the distribution of the Settlement Proceeds to Authorized Claimants.
         The Clerk shall close this file.
17
     Dated: ___________________, 2009
            September 14, 2009                      ____________________________________
18                                                  James W. Ware
                                                    JAMES WARE
19
                                                    UNITED STATES DISTRICT JUDGE
                                                    United States District Judge

20

21

22

23

24

25

26

27

28
                                                          4
     [PROPOSED] FINAL JUDGMENT
     964984v1/010480
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         EXHIBIT A
                                                       Case: 09-17380 10/28/2009 Page: of 13       DktEntry: 7111769
                                                       Case5:05-cv-03649-JW Document346 7 Filed09/14/09 Page6 of 12



Name/Company                                 Class Member              GilardiClassID   Notes                          Date Reiceived
Joy A. Reed                                  YES                      GGLE117638763     No Account Number; No Dates    On or Before July 14, 2009

Greg Smith c/o Cheri P. Smith                YES                      GGLE119577192     No Account Number; No Dates    On or Before July 14, 2009
Melvin-Smith Learning Center of Sacramento

Etsuko Hasegawa                              YES                      GGLE110947965     No Account Number; No Dates    On or Before July 14, 2009

Guidance Helicopters                         YES                      GGLE118020348
                                                                      GGLE120333781                                    On or Before July 14, 2009

Mike Hazard                                  YES                      GGLE115079988     No Account Number              On or Before July 14, 2009

MarketPlace Innovations, LLC                 YES                      GGLE120622708                                    On or Before July 14, 2009
Philip E. Landau

Clinical Trials & Surveys Group (C-TASC)     PROBABLE MATCH           GGLE115403270     No Account Number; No Dates    On or Before July 14, 2009
Bruce W. Thompson, Chairman

Icksoo Shin                                  MATCHING EMAIL ADDRESS   GGLE119951744     No Account Number; No Dates    On or Before July 14, 2009

Margaryta Savytska                           YES                      GGLE115481360     No Account Number; No Dates    On or Before July 14, 2009

Beauty Queen Management                      YES                      GGLE114033100     No Account Number; No Dates    On or Before July 14, 2009
Juel Daisi Pollard

www.GIDogTags4u.com                          YES                      GGLE117185297     No Account Number; No Dates    On or Before July 14, 2009
Hiller Engraving

Brook Advertising & Public Relations         YES                      GGLE115931374                                    On or Before July 14, 2009
Cindy Tannewitz

W.N.McKenna, Ltd dba Gaswatch.info           YES                      GGLE111548207                                    On or Before July 14, 2009
C. Robert Murray, Jr.

Ronald Strickland                            PROBABLE MATCH           GGLE121190631                                    On or Before July 14, 2009
                                                Case: 09-17380 10/28/2009 Page: of 13       DktEntry: 7111769
                                                Case5:05-cv-03649-JW Document346 8 Filed09/14/09 Page7 of 12



Name/Company                          Class Member             GilardiClassID   Notes                                                     Date Reiceived

Engineering Systems Technology, Inc   YES                      GGLE120661487                                                              On or Before July 14, 2009
Henry Borja

Kauffman's Fruit Farm and Market      YES                      GGLE115706702                                                              On or Before July 14, 2009
Lonnie Kauffman

Gregg Matshushima                     YES                      GGLE113002198                                                              On or Before July 14, 2009

Lloyd Standish                        YES                      GGLE118587496                                                              On or Before July 14, 2009

Lump Sum Solutions                    YES                      GGLE116191595                                                              On or Before July 14, 2009
Diane Bennett

Joe Hayes                             YES                      GGLE117213592                                                              On or Before July 14, 2009

Oneupweb                              YES                      GGLE110720898                                                              On or Before July 14, 2009
Lisa Wehr

Tom's Incense                         YES                      GGLE117303214    No Account Number; No Dates                               On or Before July 14, 2009
Tom L Newlin

Aubri Webb                            YES                      GGLE110949240                                                              On or Before July 14, 2009

Salim Ibrahim                         YES                      GGLE113086405                                                              On or Before July 14, 2009

The David Law Firm                    YES                      GGLE111096500                                                              On or Before July 14, 2009
Jonathan David
S. Bradley Cooper

Lee Bieker                            YES                      GGLE118934706    No Account Number, No Dates                               On or Before July 14, 2009

Dolores Sweney                        YES                      GGLE121468648    No Account Number, No Dates, Claims Accout was Fraudulent On or Before July 14, 2009

Dennis Aaberg                         YES                      GGLE120607954    No Email Address                                          On or Before July 14, 2009
                                                        Case: 09-17380 10/28/2009 Page: of 13       DktEntry: 7111769
                                                        Case5:05-cv-03649-JW Document346 9 Filed09/14/09 Page8 of 12



Name/Company                                  Class Member             GilardiClassID   Notes                                                     Date Reiceived

Chronometry Company International             YES                      GGLE113040103                                                              On or Before July 14, 2009
Chronometry Astronautics
Advanced Robotic Systems
Genebank High Security Genetics
Richard Ward Custer

MLI Network LLC                               YES                      GGLE119364350                                                              On or Before July 14, 2009
Robert Baker

International Adoption Center                 YES                      GGLE113574159
Ann Wrixon                                                             GGLE118882501                                                              On or Before July 14, 2009
Ryan Schwab                                                            GGLE119973993

Loysen + Kreuthmeier                          YES                      GGLE115334929    No Account Number, No Dates, Claims Accout was Fraudulent On or Before July 14, 2009
Karen Loysen
Peter Kreuthmeier

MEG Financial                                 YES                      GGLE117448484                                                              On or Before July 14, 2009
Michael Gray Jr.

Garret Bockhorst                              YES                      GGLE119792654                                                              On or Before July 14, 2009

International Food And Wine Consultants Inc   YES                      GGLE121030375                                                              On or Before July 14, 2009
Mary Beth Clark

Bien C Hernandez Jr                           YES                      GGLE119908288    No Account Number                                         On or Before July 14, 2009

Shepler                                       YES                      GGLE117833949                                                              On or Before July 14, 2009
Billy Hopkins

Roy Huft                                      YES                      GGLE113080563    Printed Email. No Signature                               On or Before July 14, 2009

Clover Sites, Inc                             YES                      GGLE116073835                                                              On or Before July 14, 2009
James Elliston
Benjamin Rugg
                                          Case5:05-cv-03649-JW Document346 of 13     DktEntry: 7111769
                                          Case: 09-17380 10/28/2009 Page: 10Filed09/14/09 Page9 of 12



Name/Company                    Class Member             GilardiClassID   Notes                                                     Date Reiceived

AJ Riggins Search Group         YES                      GGLE110047948    No Account Number, No Dates, No Email Address             On or Before July 14, 2009
Bernard B Long

Family Products, LLC            YES                      GGLE114376342                                                              On or Before July 14, 2009
Jim Bilen

Michael O'Connell               YES                      GGLE114330261                                                              On or Before July 14, 2009

Debra Cooley                    YES                      GGLE115050947                                                              On or Before July 14, 2009

Juanita Crispens                YES                      GGLE111065788    No Account Number, No Dates, Claims Account was FraudulenOn or Before July 14, 2009

Jill M. Anderson                YES                      GGLE116962702                                                              On or Before July 14, 2009

Federal Tax Resolution LLC      YES                      GGLE118304508                                                              On or Before July 14, 2009
Douglas Myser

Ascentive LLC                   YES                        MULTIPLE       Appears to be Third Party Account Holder                  On or Before July 14, 2009
Adam Schran

Burgess Sprint Inc dba Excal    YES                      GGLE119780281    No Account Number                                         On or Before July 14, 2009
Michael King

eSurmountable LLC               YES                      GGLE118439039                                                              On or Before July 14, 2009
Lonny Meinecke

CF Dominicana Cigars, Inc       YES                      GGLE120052723                                                              On or Before July 14, 2009
Dennis Briganti

Cameron Barholomew Gaston Jr.   YES                      GGLE110587535                                                              On or Before July 14, 2009

Gifts of Encouragement, Inc.    YES                      GGLE113791184    No Account Number                                         On or Before July 14, 2009
Marnie Swedberg

Ruth Kelsen                     YES                      GGLE112330337    No Account Number, No Dates, Claims Account was FraudulenOn or Before July 14, 2009
                                        Case: 09-17380 10/28/2009 Page: Filed09/14/09 Page10 of 12
                                        Case5:05-cv-03649-JW Document346 11 of 13 DktEntry: 7111769



Name/Company                   Class Member            GilardiClassID   Notes                                           Date Reiceived

Brandon Pulido                 YES                    GGLE115466914     No Account Number, No Dates. Sent by fax.       On or Before July 14, 2009

Assistech Special Needs        YES                    GGLE119979690     No Account Number, No Dates, No Email Address   On or Before July 14, 2009
Oliver Simoes                                                           Sent by fax.

Cliptomania                    YES                    GGLE119767595     No Account Number, No Dates                     On or Before July 14, 2009
James R. Santo

Michael Rocco                  YES                    GGLE113659138     No Dates                                        On or Before July 14, 2009

Metzler / Payden               YES                    GGLE119591446     No Account Number                               On or Before July 14, 2009
Vlad Milev
Edward Garlock, Esq.

Savin Kent                     YES                    GGLE110334343     No Account Number, No Dates                     On or Before July 14, 2009

Lawrence W. Brooks             YES                    GGLE114097354     No Account Number. No Dates.                    On or Before July 14, 2009
                                                                        Identifies himself as a reseller.


Wildcat Technology Solutions   YES                    GGLE1-1031020-7 No Account Number, No Dates                       On or Before July 14, 2009
Joseph Messina                                                        Multiple Emails. One Active.

Orsus                          YES                    GGLE116938240     Received July 15, 2009                          July 15, 2009
E Stewart Ashford

Orcas Hotel                    YES                    GGLE116590490     No Account Number, No Dates. Sent by fax.       July 15, 2009
Larua Tidwell                                         GGLE119094507     Received July 15, 2009

Glenda Bartolome               YES                    GGLE1-1746506-0 ID# 687-255-0388, No Dates                        July 16, 2009
                                                                      Received July 16, 2009
                                                      Case: 09-17380 10/28/2009 Page: Filed09/14/09 Page11 of 12
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Name/Company                                 Class Member            GilardiClassID   Notes                           Date Reiceived


HostRocket.com                                                                        11 Account Numbers with Dates
John Reyes                                   YES                                      Received July 16, 2009          July 16, 2009
Brendan Brader

Brittany Smuts                               YES                    GGLE1-1263678-9 No Account Number, No Dates
                                                                                    Received July 20, 2009            July 20, 2009


Total Received by Mail as of July 14, 2009: 61
Total Received by Mail: 66
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EXCLUSIONS SENT VIA EMAIL

Name/Company                     Class Member                               GilardiClassID         Notes                                                       Received
sh@bedgetac.com                  There is a matching Email Address         GGLE112527386           Sent via email. No Account Number, No Dates, No Signature        June 11, 2009
Shane

Kemper Brothers Holding          YES                                       GGLE115825876           Sent via email. No Account Number, No Dates, No Signature        June 17, 2009
Oliver Kemper

Tim Alexander                    Unable to verify                    Multiple Names w/No Address   Sent via email. No Account Number, No Dates, No Signature        June 17, 2009

Robert Porterfield               YES                                      GGLE1-1800657-4          Sent via email. No Account Number, No Dates, No Signature        June 27, 2009
                                                                                                   Sent via email. No Account Number, No Dates, No Signature
Cathy Clark                      Unable to verify                                                  Claims Account was Fradulent                                     June 30, 2009

Rosemary Jones                   YES                                      GGLE1-1070865-0          Sent via email. No Account Number, No Dates, No Signature        June 30, 2009

Shelley Hernandez                YES                                      GGLE1-1809322-1          Sent via email. No Account Number, No Dates, No Signature         July 3, 2009

Brandon Pulido                   YES                                      GGLE1-1546691-4          Sent via email. No Account Number, No Dates, No Signature        June 30, 2009

Mikalai Christiakou              YES                                      GGLE1-1312466-8          Sent via email. No Account Number, No Dates, No Signature        June 27, 2009

Steven P. Hurtado                YES                                      GGLE1-2117760-0          Sent via email. No Account Number, No Dates, No Signature        July 11, 2009

Laura Tidwell                    YES                                      GGLE1-1659049-0          Sent via email. No Account Number, No Dates, No Signature        July 14, 2009
Orcas Hotel                                                               GGLE1-1909450-7

adwords.google@rchv.com          Email Match - Kelly Chien                GGLE1-1519599-6          Sent via email. No Account Number, No Dates, No Signature        June 16, 2009

John Romanoff                    Unable to Verify                                                  Sent via email. No Account Number, No Dates, No Signature         July 2, 2009

Vicki Lowe                       YES                                      GGLE1-1821285-9          Sent via email. No Account Number, No Dates, No Signature         July 7, 2009

Simon Sullivan                   YES                                      GGLE1-1212193-2          Sent via email. No Account Number, No Dates, No Signature        July 22, 2009


Total Timely Requests Sent Via Email: 14
Total Late Requests Sent Via Email: 1

								
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