Google ‘Incognito’ Case Attorneys Unlikely to Win $217 Million

A group of lawyers who settled a class action with Google LLC over privacy issues with Chrome’s “Incognito” mode are unlikely to get their total attorneys’ fee award request of $217 million, a federal judge said Wednesday.

At a hearing in Oakland federal court, Judge Yvonne Gonzalez Rogers also expressed skepticism of Google’s request to cut the plaintiffs’ attorney fees request by 25% across the board, and chided the company’s attorneys for asking her to review thousands of the plaintiffs’ attorneys time sheet entries on her own.

The four-year-old case reached an accord in April on the eve of trial, with Google agreeing to delete billions of data records of incognito mode users and implement some reforms, but providing no monetary damages to users.

The close-to-quarter-billion-dollar request by the plaintiffs’ attorneys—from Boies Schiller Flexner LLP, Susman Godfrey LLP, and Morgan & Morgan—is based on what they said was 78,880 hours of work on the case.

That accounts for $62 million in standard billing rates, which should be multiplied by 3.5 in what is known as a “lodestar multiplier” given to lawyers in successful class actions, the plaintiffs’ attorney argued.

Rogers said that it is unlikely she would ever give a multiplier above three for successful class actions. “I don’t think you were entirely successful, but this was not insignificant,” she told the plaintiffs’ attorney David Boies.

Google’s attorney Andrew Schapiro of Quinn Emanuel Urquhart & Sullivan LLP said during the hearing that Google spent only $40 million in total on the case, which he said shows the plaintiffs had over-billed and used other tactics to inflate their rates to $62 million.

The Google Chrome users first sued the tech company in the US District Court for the Northern District of California in 2020, alleging browser’s incognito mode improperly retained user data despite advertising that it was private for users.

As part of the settlement, Google agreed to clarify to users what data is collected and allowing Incognito mode users to block third-party cookies for the next five years. The agreement also allows individuals to sue for monetary damages in California state court, with tens of thousands already filing.

The plaintiffs originally sought $9 billion in damages.

Google shot back forcefully to the plaintiffs’ attorney fee request in court filings, calling the dispute the “Incredible Shrinking Case” based on how little the class achieved compared to what they originally sought.

Schapiro argued at the hearing that the fee multiplier should be negative. “This was a partial success case warranting a partial fee,” he told the judge.

Boies countered that they had achieved extraordinary relief for the hundreds of millions of Incognito mode users, and had to battle a company that was sanctioned for misconduct in the case for concealing relevant data.

“The test is based not on what we didn’t get, but what we did get,” Boies said. “When you file a complaint you never know what you’re going to find.”

The case is Brown v. Google LLC, N.D. Cal., No. 4:20-cv-03664, hearing on 8/7/24.