Google $5.5M Zombie Cookie Settlement Gets Final Approval

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By Daniel R. Stoller

Attorneys and privacy advocacy groups are the big winners in a $5.5 million settlement between Alphabet Inc.'s Google and consumers over claims that the search engine giant evaded web browser privacy settings ( In re Google Inc. Cookie Placement Consumer Privacy Litig. , 2017 BL 32259, D. Del., No. 12-MD-2358, order granting final settlement approval 2/2/17 ).

The case concerned Google’s alleged use of zombie cookies that continued to collect consumers’ browsing information even after they actively set up controls to block the use of cookies. Cookies are small packets of computer code that websites place on user computers to streamline access to the site and potentially collect data on the user. The settlement in the present case demonstrates that U.S. tech companies that use cookies should abide by consumer tracking choices or face potential risks from litigation.

Judge Sue L. Robinson of the U.S. District Court for the District of Delaware stamped her final approval Feb. 2 on the settlement deal that end’s Google’s involvement in the long-running consumer privacy case.

As part of the $5.5 million settlement fund, three class representatives will receive $1,000 each and class counsel will receive approximately $1.93 million in attorneys’ fees and $90,000 in expenses. The remaining funds will go to public interest organizations involved in consumer privacy advocacy and education. Other affected individual consumers, which the complaint estimated in the “millions,” will receive no cash payment from the settlement.

The settlement class consists of consumers in the U.S. that used Apple. Inc.'s Safari or Microsoft Corp.'s Internet Explorer and who visited a website from which Google’s advertising partners placed cookies.

Under the settlement, Google assured consumers it had “taken actions to expire or delete, by modifying the cookie deletion date contained in each cookie, all third-party Google cookies that exist in the browser files for Safari browsers.”

Approximately $3.5 million will be donated from settlement funds to the Berkeley Center for Law & Technology, the Berkman Center for Internet & Society at Harvard University, the Center for Democracy & Technology, Public Counsel, Privacy Rights Clearinghouse and the Center for Internet and Society at Stanford Law School.

Brian Strange, class action partner at Strange & Butler LLP in Los Angeles and settlement class counsel, told Bloomberg BNA Feb. 3 that the bulk of the proceeds are going to groups that would most benefit the consumer class. With a class projected to be in the millions, the biggest impact will come through payments to public interest groups that can research and help protect consumer privacy, he said. Google didn’t immediately respond to Bloomberg BNA’s e-mail request for comments.

Google’s Alleged Cookie Trickery

In 2012, consumers alleged that Google and third-party advertisers used cookies that evaded the browser settings of Safari and Internet Explorer in violation of federal and state law.

According to the consumers, when a Safari or Internet Explorer user visited a website using third-party tracking cookies from Google, Media Innovation Group LLC, WPP Plc and Vibrant Media Inc., those tracking cookies circumvented the consumer’s internet browser settings that blocked the cookies. The defendants responded that they never hacked into the browser privacy settings.

The federal trial court dismissed the case against Google. The U.S. Court of Appeals for the Third Circuit agreed that the consumer federal claims should be dismissed but allowed state claims to continue. The plaintiffs asked the U.S. Supreme Court to reinstate the federal claims, but the high court denied review. The end result was that the state law claims were remanded to the district court, where the present settlement was reached.

This wasn’t the first time Google has been accused of trickery involving cookies. Google previously agreed to pay a $22.5 million civil penalty to settle similar Federal Trade Commission claims, a settlement that was approved by a California federal court in December 2012.

Wilson Sonsini Goodrich & Rosati represented Google. Silverman Thompson Slutkin & White LLC, Strange & Butler LLP and Bartimus, Frickleton and Roberston PC represented the settlement class.

To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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