Netflix Class Action Lawsuit Settlement Screws Members

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[Check out: http://www.videoprivacyclass.com/CommonlyAskedQuestions.aspx]

 Plaintiffs, several former Netflix subscribers, brought a class action against Netflix on their own behalf and on behalf of other subscribers like them on claims that Netflix retained and disclosed information, including records of the movies and TV shows its subscribers viewed, in violation of the Video Privacy Protection Act (VPPA), California’s Unfair Competition Law (UCL), and California’s Customer Records Act (CCRA).  Netflix denies that it did anything wrong.

Settlement members receive NOTHING. But our names were used to score millions for the attorneys and millions for unspecified non-profit organizations?

“Netflix will pay $9 million into a Settlement Fund to: • Make donations to Court-approved not-for-profit organizations, institutions, or programs. • Pay notice and settlement administration expenses. • Pay attorneys’ fees of up to 25% or $2.25 million of the Settlement Fund, plus up to $25,000 in expenses. • Pay a total incentive award of $30,000 to the Named Plaintiffs.”

I plan to write a letter to the Court objecting to this settlement.

22 Responses to “Netflix Class Action Lawsuit Settlement Screws Members”

  1. Jamie Still

    Please sign my name to this letter when you sign it!

    Reply
  2. rslarkin

    As a “current or former Netflix subscriber,” I received notice of this yesterday.
    Lawyer parasites. But I repeat myself.

    The website says in one place that we can write to the court to object to this settlement. Just below that though it says “Disclaimer: Please do not contact either the Defendants or the Court about this Settlement.”

    In another place it says “Your objection to the Settlement must be in writing, filed with the Court and served on the attorneys for the Parties.”

    > I plan to write a letter to the Court
    If you do, posting a copy would be appreciated. And a followup if you ever hear anything back. Thank you.

    Reply
    • Jorge

      Great catches. It seems they are being purposely confusing to dissuade people from actually responding to the matter. I will keep you updated.

      Reply
  3. Jonathan Murray

    If someone comes up with a decent boilerplate, please post it. I don’t care to be part of this class, but writing formal “legal” letters is not my forte. I’d love to be part of a true grass-roots movement that moved the court to toss this case out on it’s ear. And the lawyers on their asses.

    Reply
    • Jorge

      I have a lawyer friend that I’m talking with about getting something drafted. I was going to do it myself and I think it would have been fine, but with the feedback I’m getting here I think something even better would be best.

      Reply
    • nick

      UNITED STATES DISTRICT COURT
      FOR THE DISTRICT OF THE NORTHERN DISTRICT OF CALIFORNIA
      (SAN JOSE DIVISION)

      IN RE: NETFLIX PRIVACY LITIGATION,
      __________________________________

      Case No. 5:11-CV-00379-EJD
      Hon. Edward J. Davila

      Objection to the proposed settlement

      INTRODUCTION

      The parties claim that the proposed settlement conditions “are fair, reasonable, and adequate to the class, and that it is in the best interests of the class to settle the claims raised in the Action pursuant to the terms and provisions of this Agreement”. This can’t be further away from truth. The settlement is great for the Defendant because it releases a multitude of claims with the potential of significant monetary damages. The settlement is great for the class counsel because it receives unconditioned compensation. But it is an exceedingly poor deal for the class.

      I. I am the Member of the class.

      My full name is , my mailing address is . My telephone number is . I have been a former/I am a current customer of Netflix, and my email address registered with Netflix is .

      On I received the e-mail from the Online DVD Class Action Administrator stating that “Our records show that you were a current or former Netflix subscriber as of July 5, 2012”. Thereby I qualify for membership in the class and can object to the settlement.

      I respectfully notify the Court hereby that I intend to attend the hearing on December 5, 2012 (only if you intend to attend).

      II. This objection is brought in a good faith.

      I am bringing this objection in a good faith because I’m incredibly disappointed with the state of our class action system which seem to have switched from protecting the class to making money for the lawyers at the expense of the class. Nevertheless if this Court has any doubt whether this objection is brought in good faith, I am willing to stipulate to an injunction prohibiting me from accepting a cash payment in exchange for the settlement of this objection.

      III. The proposed settlement terms are worse than the Federal law already requires Netflix to do.

      The “injunctive relief” section of the Settlement Agreement (pages 10-11) states that the “Subscribers who have not subscribed to Netflix for a period of 365 or more consecutive days as of the Effective Date and who did not rejoin Netflix subsequent to the Effective Date, Netflix will cause his or her Entertainment Content Viewing History to be decoupled from his or her Identification Information and Payment Method”.

      Unfortunately it is hard to consider this a win for the members of the Class. The relevant law covering the information storage – the 18 USC § 2710 (section e) requires the destruction of the personally identifiable information. Not just mere decoupling, but destruction after a year passes since this information is no longer necessary for the purpose it was collected. There are obviously some questions about what considers the “purpose the information was collected”, but it is reasonable to assume that a fair impartial jury would agree with the class in such a case, as the intent of the Legislature seems to be pretty clear.

      IV. The mere “decoupling” of the information is reversible.

      The choice of the word “decoupling” in the injunctive relief is questionable. The information which has been merely decoupled may be linked together again if the linking information (which itself contains no personal data) is kept. For example, one can easily decouple the information in a phone book page by cutting out the column with the phone numbers with scissors and storing it separately. This way the phone numbers are disassociated from the relevant entries on this page. However it is very easy to associate them together again – all you need is just to put the phone column back into the cut-out.

      Therefore I respectfully request the Court to withhold the settlement approval until the parties amend the “injuctive relief” section to force Netflix to destroy the Entertainment Content Viewing History for those users, and not just merely decouple it. At least it should be decoupled irreversibly. This section as it states right now provides ephemeral relief to the Class.

      V. The proposed injunctive relief “exception” clause is not strong enough.

      The “exception” clause in the injunctive relief section (page 11) is very weak and provides little protection for the current Class members because it doesn’t require Netflix to provide the user with an option to deny the consent to the data storage. It is easy to modify the service cancellation page with the text like “by clicking on the Cancel button you provide Netflix with the express consent to store your information” – without any meaningful way to opt out. The “exception” clause needs to be modified to make sure that the user would still have the ability to cancel the service without being forced to provide the consent. Also Netflix should be prohibited to enforce the users to provide the consent while signing up for the service through the amended Terms and Conditions with yet another “you agree and provide the express consent that your data will be retained after you cancel the subscription”. There is nothing in the Settlement which would prevent Netflix from doing that, and I see no reason why they wouldn’t. After all, the companies use terms and conditions to twist the users’ arms all the time.

      Therefore I respectfully request the Court to withhold the settlement approval until the parties amend the “injuctive relief” exception section to make it clear that the users should be given a choice whether they consent to the storage of their data after the subscription cancellation, that the choice should only be made during the cancellation and not earlier, and that the process of the cancellation should not be otherwise affected by the user choice in any way.

      VI. The proposed settlement fund is against the interest of the Class.

      The Settlement Agreement specifies that a 9 million dollars fund is established to be funded by Netflix and to be distributed to the non-profits which “educate users, regulators, and enterprises regarding issues relating to protection of privacy, identity, and personal information through user control, and to protect users from online threats” (Settlement Agreement page 13). And while it is clear that the parties made their best effort to make the selection of non-profits as unbiased as possible, it is hard to see any value of such distribution for the members of the Class.

      I would like to explicitly point out that nothing in the Settlement Agreement bars Netflix to raise the user subscription fees to cover the payment into the Settlement fund. Considering that Netflix is a for-profit entity and would need to somehow compensate for this loss, the chance of the potential fee raise is likely. This would mean those class members, who are either current Netflix subscribers or consider rejoin Netflix, have a good chance to end in a worse position than they were before the settlement because their fees are raised as the result of the settlement.

      Also the non-profit selection has very little connection to the interest of the class or the case itself which according to the Complaint seem to be about the alleged Netflix non-compliance with the Federal and California laws. For example, how “protecting users from online threats” is connected to this case at all is lost to me. And if Netflix or other profit-making enterprises need to be educated about the laws, this education should not be at class members expense. They can afford to have a legal department which job is to do just that.

      Therefore I respectfully request the Court to reject the settlement until the settlement fund is removed from the settlement completely.

      VII. The Class Counsel representation of the Class is not adequate.

      The Class Counsel considered the terms of the settlement “fair, reasonable and adequate to the Class” (page 3 of Settlement Agreement). I see how it is fair and adequate for the Defendants, and for the Class Counsel, but I fail to see how is it adequate for the Class. If my attorney negotiated such a settlement in a hypothetical case – where he’d get 2.5M and I’d get nothing, I definitely would question who my attorney actually represented.

      The real problem I see with this settlement is that it makes no sense for the class members to stay in the class. Those class members which exclude themselves from the settlement would be in the best position – they will get the same – minuscule – benefits of the settlement as those who stay, and they will keep the right to sue Netflix again. I am sure if the settlement was opt-in instead of opt-out less than 1% of the class members would agree to this kind of settlement. Therefore it is very hard say that the class representatives did a decent job representing the class – how could it be if those who exclude themselves from the settlement would actually be in a better position than those who accept the settlement?

      Unfortunately a lot of class action cases are just like that, and this seem to be a typical class action case. With the Class Counsel often caring more about getting paid than actually fighting for the class there is often nobody to truly represent the Class members, and this is a very sad situation our country got into.

      Conclusion

      This settlement is kind of a settlement that has something for everyone, with the notable exception of the class, which it betrays. The Court should reject this settlement.

      Dated: _____________ By: ___________________________

      Certificate of Service

      I hereby certify that on I caused true copies of this document to be sent to the following addresses by the USPS First Class Mail:

      Clerk of the Court
      United States District Court for The Northern District of California (San Jose Division)
      Robert F. Peckham Federal Building
      280 South 1st Street
      San Jose, CA 95113

      Jay Edelson, Rafey S. Balabanian, Ari J. Scharg, Chandler R. Givens
      Edelson McGuire LLC
      350 N. LaSalle, Suite 1300
      Chicago, IL 60654

      Keith E. Eggleton, Rodney G. Strickland, Dale R. Bish
      Wilson Sonsini Goodrich & Rosati
      650 Page Mill Road
      Palo Alto, CA 94304

      Reply
  4. Jeff

    If someone posts a letter objecting to the settlement, I will eagerly send out my copy…and coerce everyone else I can to do the same.

    Does anyone know how this class includes subscribers that never cancelled their subscription? I don’t like being “represented” against my will to begin with, but in this case it seems particularly insidious…

    Reply
  5. al leah

    I want my name on your letter too. We should at least get a free month of service or something else tangible. I mean c’mon, is my portion of the lawsuit’s settlement that’s going to charity a write off for me at least?

    Reply
  6. Nothing

    Ask your lawyer friend to look at the date on Page 2, Line 9 of the Class Action Settlement Agreement.

    (Download http://www.videoprivacyclass.com/SettlementAgreement.aspx)

    According to this date, the individual cases have not been consolidated into class action but yet an agreement is already in place for a class action settlement. Incorrect Procedure or “typographical error”?

    Either way, it is a document of record and the case should be thrown out for this reason alone.

    Reply
  7. Brian Baker

    I’ve written about this at my blog, including this letter I sent protesting the settlement. Copy it if you like it.

    I took a somewhat… sardonic tack. Who the hell do they think they’re kidding? The lawyers saw a big payday, dug up a few jerks who saw a chance to rake in some bucks for themselves, and went to town. This is along the same lines of all the El Cheapo commercials you see on basic cable all the time put on by leech law firms trolling for “victims” of drugs, medical devices, vitamins, whatever.

    Sonorous voice: “I am a non-attorney spokesperson. If you have ever blah blah blah and suffered blah blah blah, then you should call Dewey, Screwem and Howe IMMEDIATELY at 1-800-IMA-JERK to assure that your rights to compensation have blah blah blah…”. Ambulance-chasing at its worst.

    Feel free to join in to the protest if you’re a “member” of this lawsuit. Have fun with it. I did!

    Well, here’s my response, in this particular case:

    ________

    Brian Baker
    XXXXX XXXXXXXXXXXX
    Saugus, CA 91390
    661-XXX-XXXX

    31 July 2012

    Clerk of the Court
    United States District Court for
    The Northern District of California (San Jose Division)
    Robert F. Peckham Federal Building
    280 South 1st Street
    San Jose, CA 95113

    Jay Edelson
    Rafey S. Balabanian
    Ari J. Scharg
    Chandler R. Givens
    Edelson McGuire LLC
    350 N. LaSalle, Suite 1300
    Chicago, IL 60654

    Keith E. Eggleton
    Rodney G. Strickland
    Dale R. Bish
    Wilson Sonsini Goodrich & Rosati
    650 Page Mill Road
    Palo Alto, CA 94304

    In re Netflix Privacy Litigation, No. 5:11-cv-00379-EJD

    Sirs:

    I am a member of the settlement class.

    I strongly oppose the proposed settlement of this case as it currently stands.

    As stated on the litigation website, the attorneys who filed this suit are going to get 25% of the $9,000,000 settlement, which my math tells me is $2,250,000, plus $25,000 “expenses”. Not a bad payday at all.

    The six “named plaintiffs” are going to rake in $30,000 each.

    Some unnamed “charities” are going to divvy up the rest of the pot.

    The rest of us peons – the folks whose “rights” have supposedly been violated – are going to get exactly bupkes.

    Where I come from, there’s a word for that: “bullshit”.

    No wonder lawyers are considered the scum of the earth. Have any of you morons considered that maybe there’s a more appropriate way to compensate the rest of the peasants? How about a rebate of part of our monthly dues? Anything? Bueller?

    I’ve never before been part of a class action lawsuit – either willingly or unwillingly – in which the settlement didn’t recompense ME in some way, as the supposedly “injured party”.

    If any of you cretins have any questions, don’t hesitate to contact me… assuming you can communicate in common parlance. If not, let me know ahead of time and I’ll try to have an interpreter handy who speaks Idiot.

    (Signed)

    ___________________________________________________

    Reply
  8. FU

    Hey Morons…It is only a $9 million settlement. Just how much money do YOU greedy people think you can get when Netflix has 20 million customers

    Reply
    • Enchante

      Uhh, I expect to get SOMETHING when my name is used to score millions of dollars for attorneys. Even if it’s a refund of $8.99. And yes even if they have 20 million customers. You clearly don’t have even a basic understanding of right and wrong.

      Reply
    • Jonathan Murray

      Wow. FU. Almost a response in itself.

      I have no issues with Netflix, and to have my name used to add to the weight of some lawyers payday makes me sick. I don’t want anything, and I don’t want you (or them) to get anything on my behalf.

      Reply
      • Markos M.

        Jonathan – I’m with you in tone and I too have a problem with my personally-identifiable information being manipulated and sold. I want a portion of the pot. What’s screwed up is how ambulance chaser law firms can put together suits like this, negotiate a settlement on behalf of people that never opted-in and must go through hoops to opt-out at the very end, and they get rich while the so-called class members get . . manipulated, just like Netflix did with our information to begin with. Class action lawsuits need to be revamped in process. Class members need to opt-in before they can be represented. IMHO.

        Reply
  9. FU2PAL

    Hey FU,

    Congrats on not understanding why some of us want out. I would rather not have my name on a class action lawsuit I didn’t agree on. I won’t personally be suing Netflix and I definitely don’t want anyone else suing Netflix in my name.

    From a Moron…

    Reply
  10. BC

    Here was my letter. You are free to use.:

    In re Netflix Privacy Litigation, No. 5:11-cv-00379-EJD

    To Whom It May Concern:

    I was notified (on 7/27/12 by email) that I am a member of the settlement class. I object to the settlement.

    I was never asked to give authorization, nor would I have given my authorization, to be used as a tool in this manner. I do not approve of attorneys profiting profusely and unidentified non-profit organizations receiving monies based on my personal negative experience with Netflix. I also do not approve of Netflix being able to walk away, denying any wrongdoing.

    I cannot appear in person and do not have representation.

    Respectfully,

    Reply
  11. Melissa H

    So I submitted my objection to the Netflix settlement. Do we get any confirmation from the court or the attorneys that our opinions are being heard? Or is it just accepted into the record silently? I mean without doing something like Delivery Confirmation.

    Reply
    • Jorge

      It is my understanding that your objection is heard in the record and is taken into consideration by the Judge. I don’t think it entitles you to future updates or information from the Court. I could be wrong.

      Reply

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