Campbell et al v. Facebook Inc.
MOTION to Relate Case filed by Facebook Inc.. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Jessen, Joshua) (Filed on 1/29/2014)
1 2 3 4 5 6 7 8 9 10 11 GIBSON, DUNN & CRUTCHER LLP JOSHUA A. JESSEN, SBN 222831 JJessen@gibsondunn.com JEANA BISNAR MAUTE, SBN 290573 JBisnarMaute@gibsondunn.com JESSICA S. OU, SBN 280534 JOu@gibsondunn.com 1881 Page Mill Road Palo Alto, California 94304 Telephone: (650) 849-5300 Facsimile: (650) 849-5333 GIBSON, DUNN & CRUTCHER LLP CHRISTOPHER CHORBA, SBN 216692 CChorba@gibsondunn.com 333 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 Attorneys for Defendant FACEBOOK, INC. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 OAKLAND DIVISON 16 17 MATTHEW CAMPBELL and MICHAEL HURLEY, on behalf of themselves and all others similarly situated, First Filed Case: No. C 13-05996 PJH Related Case: No. C 14-00307 PSG CLASS ACTION 18 Plaintiffs, 19 v. 20 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES FACEBOOK, INC., 21 Defendant. The Honorable Phyllis J. Hamilton 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG 1 Pursuant to Civil Local Rule 3-12(b), Facebook, Inc. (“Facebook”) respectfully submits this 2 Administrative Motion to give notice of the following action: Shadpour v. Facebook, Inc., Case No. 3 5:14-00307-PSG (“Shadpour”), filed in this District on January 21, 2014. Facebook brings the 4 Shadpour filing to the Court’s attention because Shadpour is related to the above-captioned action, 5 Campbell, et al. v. Facebook, Inc., Case No. 4:13-05996-PJH, under Local Rule 3-12. All parties to 6 the Campbell and Shadpour cases have executed a stipulation agreeing that the cases are related and 7 seeking a reassignment of the Shadpour case to this Court. That stipulation and a proposed order are 8 being filed with this Motion. I. 9 INTRODUCTION 10 On December 30, 2013, plaintiffs Matthew Campbell and Michael Hurley initiated this 11 putative class action against Facebook, alleging violations of federal and state law in connection with 12 the purported scanning of URLs in private messages between Facebook users.1 The Campbell 13 Complaint alleges that Facebook scans users’ messages for URLs for the purpose of delivering 14 targeted advertising and building user profiles.2 On January 21, 2014, three weeks after the Campbell Complaint was filed, plaintiff David 15 16 Shadpour filed a separate putative class action in this District against Facebook predicated on 17 substantially similar facts and substantive allegations, and asserting the same state law claims as the 18 Campbell Complaint.3 Given the overlapping nature of the Campbell and Shadpour suits, an order 19 relating the cases would avoid duplicative labor, the unnecessary expenditure of private and judicial 20 resources, and the risk of inconsistent or conflicting rulings that might occur if the actions proceeded 21 separately in different courts. 22 II. THE CAMPBELL AND SHADPOUR ACTIONS SHOULD BE RELATED 23 Local Rule 3-12(a) provides that “[a]n action is related to another when: (1) [t]he actions 24 25 1 Complaint (hereinafter, “Campbell Compl.”), attached as Exhibit A. 26 2 Id. ¶¶ 6–7. 27 3 Complaint, Shadpour v. Facebook, Inc., Case No. 5:14-00307-PSG (hereinafter, “Shadpour Compl.”), attached as Exhibit B. 28 Gibson, Dunn & Crutcher LLP 1 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG 1 concern substantially the same parties, property, transaction, or event; and (2) [i]t appears likely that 2 there will be an unduly burdensome duplication of labor and expense or conflicting results if the 3 cases are conducted before different Judges.” Under this standard, the Campbell and Shadpour 4 actions are related because they involve substantially the same parties and events, and relation would 5 create significant efficiencies while minimizing the likelihood of conflicting rulings. 6 A. The Actions Involve Substantially the Same Parties and Events The Campbell Complaint and Shadpour Complaint each assert legal violations based on the 7 8 same alleged conduct: the alleged scanning of URLs in private messages between Facebook users for 9 the purpose of delivering targeted advertising and building user profiles. The allegations are more 10 than similar. In fact, the complaints contain dozens of identical allegations, ranging from general 11 background on data aggregation and Facebook’s business model, to the core conduct purportedly at 12 issue in the cases. For example, both complaints allege, among other things: “When a user composes a Facebook message and includes a link to a third party website (a ‘URL’), the Company scans the content of the Facebook message, follows the enclosed link, and searches for information to profile the message-sender’s web activity.”4 “Facebook performs this task to aggregate data on its users for purposes of advertising, marketing and user profiling[.]”5 17 “All of Facebook’s activities complained of herein are [allegedly] performed without users’ consent.”6 18 Similarly, in alleging lack of consent for this purported conduct, both complaints quote identical 19 excerpts from numerous Facebook web pages, including portions of the “Help Center,”7 “Data Use 20 Policy,”8 and “Statement of Rights and Responsibilities.”9 The two actions thus concern the same 13 14 15 16 21 22 23 24 25 26 27 4 See Campbell Compl. ¶ 5; Shadpour Compl. ¶ 6. 5 See Campbell Compl. ¶ 50; Shadpour Compl. ¶ 43. 6 See Campbell Compl. ¶ 9; Shadpour Compl. ¶ 9. 7 See Campbell Compl. ¶¶ 38, 43; Shadpour Compl. ¶¶ 31, 36. 8 See Campbell Compl. ¶¶ 83–84; Shadpour Compl. ¶¶ 65–66. 9 See Campbell Compl. ¶¶ 80–81; Shadpour Compl. ¶¶ 62–63. 28 Gibson, Dunn & Crutcher LLP 2 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG 1 alleged transactions or events. Both cases also concern substantially the same parties. Facebook is the sole defendant in each 2 3 case, and the named plaintiffs in each case seek to represent almost identical proposed classes.10 4 Additionally, plaintiffs allege overlapping causes of action and seek substantially the same relief. 5 Both complaints allege violations of California Penal Code § 630, et seq.,11 as well as unlawful, 6 unfair, and fraudulent conduct in alleged violation of California’s Unfair Competition Law, Cal. Bus. 7 & Prof. Code § 17200, et seq.12 For these alleged violations, both complaints request declaratory 8 relief, preliminary and permanent injunctive relief, and monetary damages.13 9 B. Relation Will Avoid Duplication of Labor and Prevent Conflicting Results Because these actions involve the same alleged factual events and allege overlapping claims, 10 11 relation will prevent “unduly burdensome duplication of labor and expense or conflicting results” that 12 could occur if the cases are “conducted before different Judges.” See Civ. L.R. 3-12(a)(2). 13 Conducting these two virtually identical cases before two different judges would be a tremendous 14 waste of the resources of both the parties and the Court. Relating these cases also will reduce the risk 15 of inconsistent or conflicting rulings with respect to the legal issues framed by both complaints. 16 /// 17 /// 18 /// 19 20 21 22 23 24 25 10 See Campbell Compl. ¶ 91; Shadpour Compl. ¶ 69. 11 See Campbell Compl. ¶¶ 123–51; Shadpour Compl. ¶¶ 78–86. 12 See Campbell Compl. ¶¶ 152–58; Shadpour Compl. ¶¶ 87–93. The Campbell Complaint also asserts an alleged violation of the Electronic Communications Privacy Act (18 U.S.C. § 2510 et seq.). 13 See Campbell Compl. at pp. 33–34; Shadpour Compl. at p. 24. 26 27 28 Gibson, Dunn & Crutcher LLP 3 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG III. 1 2 CONCLUSION For the foregoing reasons, Facebook respectfully requests that this Court grant its motion and 3 sign the proposed order attached to the parties’ stipulation relating the Shadpour action to the 4 Campbell action. 5 6 Respectfully submitted, DATED: January 29, 2014 GIBSON, DUNN & CRUTCHER LLP 7 8 By: /s/ JOSHUA A. JESSEN 9 10 Attorneys for Defendant FACEBOOK, INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 4 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG CERTIFICATE OF SERVICE 1 2 I, Jeana Bisnar Maute, declare as follows: 3 I am employed in the County of Santa Clara, State of California; I am over the age of eighteen 4 years and am not a party to this action; my business address is 1881 Page Mill Road, Palo Alto, CA 5 94304-1211, in said County and State. On January 29, 2014, I served the following document(s): 6 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES 7 on all counsel of record in the actions stated below, by the following means of service: 8 Campbell, et al. v. Facebook, Inc., No. 4:13-cv-05996-PJH 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Michael W. Sobol Melissa Ann Gardner Lieff Cabraser Heimann Bernstein, LLP Embarcadero Center West 275 Battery St., 29th Flr. San Francisco, CA 94111 415-956-1000 Fax: 415-956-1008 / 415-956-1005 Email: email@example.com firstname.lastname@example.org Attorney for Plaintiffs Campbell and Hurley VIA ECF Rachel Geman Nicholas Diamand Lieff Cabraser Heimann & Bernstein, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 (212) 355-9500 Fax: (212) 355-9592 Email: email@example.com Attorney for Plaintiffs Campbell and Hurley VIA ECF Hank Bates Allen Carney David F. Slade Carney Bates and Pulliam, PLLC 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 501-312-8500 Fax: 501-312-8505 Email: firstname.lastname@example.org Attorney for Plaintiffs Campbell and Hurley VIA ECF 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 5 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG 1 Shadpour v. Facebook, Inc., No. 5:14-cv-00307-PSG 2 3 4 5 6 7 Lionel Z. Glancy Glancy Binkow & Goldberg LLP 1925 Century Park East Suite 2100 Los Angeles, CA 90067-2722 310-201-9150 Fax: 310-201-9160 Email: email@example.com VIA EMAIL AND U.S. MAIL Lesley F. Portnoy Jeremy A. Lieberman POMERANTZ LLP 600 Third Avenue, 20th Floor New York, New York 10016 Telephone: 212-661-1100 Facsimile: 212-661-8665 firstname.lastname@example.org email@example.com VIA EMAIL AND U.S. MAIL 8 9 10 11 12 13 Patrick V. Dahlstrom POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, Illinois 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 firstname.lastname@example.org VIA EMAIL AND U.S. MAIL 14 15 16 17 18 19 20 21 22 23 24 BY UNITED STATES MAIL: I placed a true copy in a sealed envelope or package addressed to the persons as indicated above, on the above-mentioned date, and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited with the U.S. Postal Service in the ordinary course of business in a sealed envelope with postage fully prepaid. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing set forth in this declaration. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Palo Alto, California. BY ELECTRONIC SERVICE: On the above-mentioned date, I caused the documents to be sent to the persons at the electronic notification addresses as shown above. I certify under penalty of perjury that the foregoing is true and correct, that the foregoing document(s) were printed on recycled paper, and that this Certificate of Service was executed by the undersigned on January 29, 2014. 25 26 27 /s/ Jeana Bisnar Maute Jeana Bisnar Maute 28 Gibson, Dunn & Crutcher LLP 6 FACEBOOK, INC.’S ADMINISTRATIVE MOTION TO RELATE CASES First Filed Case No. C 13-05996 PJH; Related Case No. C 14-00307 PSG