Appealability, Class Action, Common Fund: Ninth Circuit, In A Case Which Was Not A Classic Common Fund Case When Google Agreed To Pay Class Action Counsel Outside Of Fund, Determines Award Of $725,580.80 To Class Counsel Was Not Appealable

No Final Judgment/Settlement Occurred, With Google Agreeing To Pay Outside Of The Common Fund, And With The Collateral Order Doctrine Not Inapplicable Under The Circumstances.

            The Ninth Circuit, in AdTrader, Inc. v. Google, LLC, Case No. 20-15542 (9^th Cir. July 30, 2021) (published), faced an interesting fact pattern as evidenced by this passage near the end of the opinion:  “ . . . this case neither fits the situation under which the ‘common fund’ doctrine developed nor meets the requirement of unreviewability that is essential to the limited collateral order exception to finality.”  Because of these wrinkles, it dismissed an appeal for lack of appellate jurisdiction.

            AdTrader, individually and on behalf of a class, sued Google on behalf of advertisers who used Google advertising services but received no refunds for invalid traffic in line with Google policies.  As some point in the litigation, Google informed the district court that it would issue $65.7 million in refunds to advertisers using the platform DoubleClick Bid Manager but that it would continue to litigate the remaining AdTrader class claims, although agreeing to pay AdTrader’s fees, if awarded by the district court, out of Google’s own pocket rather than have the fees paid out from the common fund.  AdTrader’s counsel argued that they produced a benefit to DoubleClick advertisers, moving for fees under CCP § 1021.5 and from the common fund.  The district judge denied fees under the California statute but awarded class counsel fees of $725,580.80 (after downward reductions and after application of a 1.6 multiplier) under the common fund doctrine.  AdTrader, unsatisfied with the amount of fees awarded, appealed, even though the Google litigation was still ongoing.

            The Ninth Circuit dismissed the appeal given the peculiar circumstances of the case.  Although agreeing that some “common fund” awards (even though this was not a classic one) might be appealable (example:  class members distributions and interim fees were ordered to be distributed such that supplemental fee awards would be gone from the fund), this case did not fit into that logic because there was no final decision on the merits or no final settlement—with Google agreeing to pay fees outside the fund no matter what (as long as awarded by the district judge).  The collateral order doctrine did not apply, because it was not shown that the order is not effectively unreviewable upon appeal given Google’s commitment to pay the fees.