In Re Specific Media Flash Cookie Litig.

Filing 12

RESPONSE filed by Defendant Specific Media Incto Notice of Related Case(s) #9 (Reeves, Jeffrey)

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JEFFREY T. THOMAS, SBN 106409
[e-mail]
JEFFREY H. REEVES, SBN 156648
[e-mail]
JOSHUA A. JESSEN, SBN 222831
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, California 92612-4412
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant SPECIFIC
MEDIA, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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GENEVIVE LA COURT; DEIRDRE
HARRIS; CAHILL HOOKER; BILL
LATHROP; JUDY STOUGH; and E.H., a
minor, by and through her parent, JEFF
HALL; individually, on behalf of
themselves and others similarly situated,

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Plaintiffs,

Case No. SACV 10-1256 JVS(VBKx)
DEFENDANT SPECIFIC MEDIA,
INC.’S OPPOSITION TO
PLAINTIFFS’ NOTICE OF
RELATED CASES
[Local Rule 83-1.3.2]
Honorable James V. Selna

v.
SPECIFIC MEDIA, INC., a Delaware
Corporation,

Complaint filed August 19, 2010

Defendant.

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Pursuant to Local Rule 83-1.3.2, Defendant Specific Media, Inc. (misidentified
in the Complaint as a Delaware Corporation, but in fact a California corporation
headquartered in Orange County, California) respectfully submits the following
Opposition To Plaintiffs’ Notice of Related Cases (“Notice”), which Plaintiffs’ counsel
filed on November 16, 2010 in the above-referenced matter pending before the

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Honorable James V. Selna (hereinafter “the Specific Media action”) and the following

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three cases (hereinafter “Unrelated Party actions”) pending before the Honorable

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George H. Wu:
 In re Quantcast Advertising Cookie Litigation, Case No. 2:10-CV-05484-

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GW;

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 In re Clearspring Flash Cookie Litigation, Case No. 2:10-CV-05948-GW;

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and

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 Davis, et al., v. VideoEgg, Inc., Case No. 2:10-CV-07112-GW.

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Three months after filing the Specific Media action, Plaintiffs’ counsel now seek

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to relate this action – a discrete case naming a single defendant headquartered in

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Orange County – to three cases filed by the same group of plaintiffs’ lawyers several

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months before the Notice and before the Specific Media action on behalf of different

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plaintiffs and against almost twenty different defendants that are wholly unrelated to

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Specific Media.1 The Court should deny Plaintiffs’ counsel’s attempted and

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unsupported “related case” transfer. There is no allegation in any of the lawsuits that

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Specific Media acted together or colluded in any way with any of the defendants in any

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of the other cases, nor is there any overlap among the parties to the Specific Media

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action and the parties to the Unrelated Party actions. Thus, the underlying events,

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transactions, and conduct at issue in the Specific Media action are wholly different

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from, and independent of, the events, transactions, and conduct at issue in the

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The plaintiffs in the Unrelated Party actions are Edward Valdez; Alan
Bonebrake; Byron Griffith; Mary Huebner; Jose Marquez; Brittany Sanchez;
Gerardo Valdez; Austin Muhs; Kayla Valdez; Jennifer Aguirre; Alejandro
Godoy; Brian White; R.H., a minor, by and through her parent, Jeff Hall; A.A., a
minor, by and through her parent, Jose Aguirre; J.H., a minor, by and through
his parent, Jeff Hall; Kira Miles; Toni Miles; Terrie J. Moore; Erica Intzekostas;
David Rona; Timothy Davis; Jessica Fishbein; Jeff Hall; Amanda Spear. The
defendants in the Unrelated Party actions are: Quantcast Corp.; MySpace, Inc.;
American Broadcasting Cos.; ESPN; Hulu; Jibjab Media; MTV Networks; NBC
Universal; Scribd, Inc.; Clearspring Technologies; Walt Disney Internet Group;
Demand Media, Inc.; Project Playlist, Inc.; Soapnet, LLC; Sodahead, Inc.;
Ustream, Inc.; Warner Bros. Records; Inc.; Fox Entertainment Group; and
VideoEgg, Inc.

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Unrelated Party actions. And Plaintiffs’ counsel cannot overcome this fact by baldly

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asserting –without a scintilla of evidentiary support – that the Specific Media action is

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related to the Unrelated Party actions merely because each of the cases is a putative

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class action in which different plaintiffs allege similar “statutory violations and

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fraudulent and unfair business practices” against different defendants alleged to have

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used “Flash cookies” for allegedly improper purposes. Notice at 2-3. Indeed, relating

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the Specific Media action to the Unrelated Party actions would be entirely unfounded,

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given that none of the factors for establishing a related case under Local Rule 83-1.3.1

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is present here.

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First, none of the claims asserted in the Specific Media action “arise from the

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same or a closely related transaction, happening or event” in any of the Unrelated Party

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actions. L.R. 83-1.3.1(a). To the contrary, Plaintiffs’ counsel have alleged in each of

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these cases that different defendants installed different “Flash cookies” on different

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internet users’ computers through different websites. Accordingly, the factual

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determinations in the Specific Media action necessarily will be specific to the facts of

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that case, and will in no way overlap with the separate “transaction[s], happening[s] or

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event[s]” at issue in the Unrelated Party actions. For example, if the Complaint in the

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Specific Media action survives a motion to dismiss (and Specific Media does not

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believe it can), a trier of fact ultimately may have to make the following factual

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determinations, each of which would be completely independent of, and would not

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hinge in any way on, any actions the defendants in the Unrelated Party actions took or

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did not take:

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 Whether Specific Media uses Flash cookies (it does not), and if so, in what
way (see Complaint, ¶ 1);
 The identity of Specific Media’s affiliates and related websites, which the
Complaint defines as “SpecificClick Flash Cookie Affiliates” (id., ¶¶ 1-2);

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 The precise activities of the named plaintiffs and putative class members in

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the Specific Media action (the “Specific Media Plaintiffs and Putative

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Class”) on Specific Media’s affiliates’ websites (see id., ¶ 3);
 The specific terms and conditions and privacy policies applicable to Specific

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Media’s affiliates’ websites (see id., ¶¶ 2, 33-48);

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 The precise scope of any “personal identifying information” allegedly

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obtained through any use of Flash cookies from the Specific Media Plaintiffs

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and Putative Class (id., ¶¶ 7-8);2
 The members of the putative class, which hinge on facts unique to Specific

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Media – e.g., the universe of persons who (1) “accessed” a Specific Media-

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affiliated website, and (2) had a Specific Media Flash cookie set on their

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computer “for the purposes of restoring” browser cookies later (see id., ¶¶ 3,

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5, 16-21);

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 The browser settings and Flash cookie preferences established by each of the

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Specific Media Plaintiffs and Putative Class members in the case (see, e.g.,

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id., ¶¶ 3, 67-68, 82);
 The extent to which each of the Specific Media Plaintiffs and Putative Class

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members downloaded Flash players or engaged in other activities resulting in

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the authorized creation of Flash cookies (see id., ¶ 5); and
 The extent to which each of the Specific Media Plaintiffs and Putative Class

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members were damaged (if at all) by alleged Specific Media Flash cookies

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that purportedly were used to respawn browser cookies (see id., ¶¶ 87-117).

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Each of these factual determinations has no overlap at all with any of the factual

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determinations that may be made in the Unrelated Party actions.

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In fact, Specific Media does not collect or maintain any “personal identifying
information.”

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Second, Plaintiffs’ counsel are incorrect that the Specific Media action “call[s]

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for determination of the same or substantially related or similar questions of law . . . .”

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Notice at 2; L.R. 83-1.3.1(b). Assuming Plaintiffs’ Complaint survives a motion to

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dismiss, the legal issues in the Specific Media action – as in the separate Unrelated

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Party actions – will hinge on specific facts unique to each case. For example, the

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Specific Media Plaintiffs’ allegations that Specific Media violated the Computer Fraud

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and Abuse Act and California’s Computer Crime Law involve legal determinations

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concerning: (1) whether Specific Media accessed the computers of each of the Specific

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Media Plaintiffs and Putative Class Members; (2) Specific Media’s intent; (3) whether

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any access by Specific Media to these computers was authorized (including under the

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terms and conditions and privacy policies specific to the Specific Media affiliates’

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websites accessed by the Specific Media Plaintiffs); and (4) whether “as a result of

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[Specific Media’s alleged] conduct,” the Specific Media Plaintiffs and Putative Class

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members sustained “damage and loss” (and if so, whether such damage and loss

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“aggregat[ed] at least $5,000 in value”). See 18 U.S.C. § 1030(a)-(c); California Penal

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Code § 502(b). Separately, the Specific Media Plaintiffs’ claims against Specific

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Media under California’s Business and Professions Code Section 17200 require a

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finding that Specific Media (not the defendants in the Unrelated Party actions) engaged

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in conduct that was “unlawful, unfair or fraudulent.” Cal. Bus. & Prof. Code § 17200.

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In short, to the extent that the Specific Media Plaintiffs have stated a claim in the

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Specific Media action at all (and they have not), the legal determinations to be

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made in that action will be inextricably intertwined with the specific facts unique

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to Specific Media – and in no way overlap with the separate legal determinations

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in the Unrelated Party actions.

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At bottom, Plaintiffs’ Notice asks the Court to relate the Specific Media action

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to the Unrelated Party actions because different plaintiffs make the same or similar

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claims against different and non-overlapping defendants. But the fact that two or more

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entities in different cases are accused of violating the same laws or engaging in similar

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types of conduct plainly does not satisfy the standard for demonstrating that the cases

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are “related.” See L.R. 83-1.3.1. For example, a lawsuit by a plaintiff against a

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defendant for negligence stemming from an automobile accident is not related to

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another lawsuit filed by a different plaintiff for another automobile accident occurring

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a week later and involving a different defendant, even if the plaintiffs (as here) are

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represented by the same law firm. L.R. 83-1.3.1 Nor is it the case that all lawsuits

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involving similar causes of action against defendants in the same general industry

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(such as “online advertising and web analytics companies” (Notice at 3)) are

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considered related, any more than separate product liability actions against different

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car manufacturers relating to a similar alleged defect would be deemed related or heard

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by the same judge. Here, it would only confuse matters to lump Specific Media

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together with close to twenty other defendants in different lawsuits involving wholly

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different facts and legal issues, particularly where those defendants are not alleged to

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have acted together with Specific Media in any way.

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In similar cases, where plaintiffs have attempted to relate cases against different

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defendants based upon similar – but separate – conduct, courts in this District have not

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hesitated to deny “related case” status and transfer. See, e.g., Exh. A (6-2-06 Orders

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from Judge Schiavelli (Ret.)) (“These cases are not related. The low number case . . .

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stems from allegations that [Defendant 1] engaged in various anticompetitive practices

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. . . . [The high number] case alleges similar practices committed by [Defendant 2].

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Thus, the cases involve different defendants and will turn on different questions of law

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and fact.”).

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Third, there would be no “substantial duplication of labor” if the Specific Media

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action and Unrelated Party actions are heard by different judges, as Plaintiffs’ counsel

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assert without any explanation. L.R. 83-1.3.1(c). As demonstrated above, there are no

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overlapping legal or factual issues in the Specific Media action and Unrelated Party

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actions. Moreover, the Unrelated Party actions have been pending for several months,

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and the parties already have engaged in “considerable discussion[s]” and activity in

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those actions. See, e.g., Case No. 2:10-CV-05484, Docket No. 30. Whereas the

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parties in the Unrelated Party actions appear to have engaged in meet and confer

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discussions and possibly discovery exchanges – and will be participating in a case

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management conference before Judge Wu on December 2, 2010 – the Specific Media

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Plaintiffs have not even served the Complaint in the Specific Media action (even

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though they filed the Complaint three months ago). Moreover, the parties in the

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Unrelated Party actions appear to have been actively engaged in settlement

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discussions. See id.3 By contrast, Specific Media first spoke with counsel for the

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Specific Media Plaintiffs late last week, and Specific Media has indicated that it

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intends to move to dismiss the Complaint filed in the Specific Media action.
The consolidation of the Quantcast Advertising Cookie Litigation and the

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Clearspring Flash Cookie Litigation does not support relating the wholly distinct

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Specific Media action to these cases. The Quantcast and Clearspring cases resulted

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from consolidations of multiple cases (a total of six) that named either Quantcast or

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Clearspring as a defendant. Although it was appropriate for those cases to be

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consolidated before the same judge since each involved the same claims against the

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same defendants and their publisher clients, no efficiencies are gained by lumping the

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sole Specific Media action into that group, especially where Specific Media is not

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stipulating to such combined treatment. And with respect to the third and final Non-

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Specific Media action, Davis v. VideoEgg, defendant VideoEgg has filed a Motion to

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Transfer Venue to the Northern District of California (Document No. 12, Case No.

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2:10-CV-07112), such that the VideoEgg case also may not be before the Court much

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longer.

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Of course, should any of the parties in the Unrelated Party actions reach a
settlement, the administration of notice to the putative class members in the
Unrelated Party actions and this Court’s evaluation of the settlement terms under
Fed. Rule Civ. P. 23(e) necessarily would be unique for each of the settling
parties.

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Finally, in addition to each of the foregoing reasons (which provide more than

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an adequate basis for the Court to deny a “related case” transfer), the Court should

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deny a transfer here because the Notice is entirely untimely. L.R. 83-1.3.1 provides in

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no uncertain terms that plaintiffs’ counsel are required to file a notice of related cases

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“[a]t the time a civil action . . . is filed, or as soon as known thereafter[.]” L.R. 83-

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1.3.1 (emphasis added). Here, Plaintiffs’ counsel filed the Notice seeking to relate the

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Specific Media case three months after they filed suit against Specific Media on

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August 19, 2010 – and more than three months after filing the initial Unrelated Party

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actions. Compare Valdez v. Quantcast (filed 7-23-10), Aguirre v. Quantcast (filed 7-

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30-10), and White v. Clearspring (filed 8-10-10) with the Specific Media Action (filed

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8-19-10). During that three-month time period, Specific Media retained Orange

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County counsel (specifically, attorneys from Gibson, Dunn, & Crutcher’s Orange

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County office) based upon the expectation that the case would proceed in Orange

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County. Specific Media would be unfairly prejudiced if this case were now to be

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transferred to Los Angeles. Plaintiffs’ counsel have advanced no good reason – and

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there is none – why they filed their Notice three months late, and a transfer (even if it

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would otherwise be proper, which it would not) should be denied on those grounds

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alone.

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For each of the foregoing reasons, Specific Media respectfully requests that the

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Court deny Plaintiffs’ request for a “related case” transfer and leave the Specific Media

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action pending before Judge Selna.

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Dated: November 18, 2010

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JEFFREY T. THOMAS
JEFFREY H. REEVES
JOSHUA A. JESSEN
GIBSON, DUNN & CRUTCHER LLP

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Gibson, Dunn &
Crutcher LLP

By: /s/ Jeffrey H. Reeves
Jeffrey H. Reeves
Attorneys for Defendant SPECIFIC MEDIA,
INC.

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EXHIBIT A

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CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2010, I electronically filed the foregoing
DEFENDANT SPECIFIC MEDIA, INC.’S OPPOSITION TO PLAINTIFFS’
NOTICE OF RELATED CASES with the Clerk of the Court by using the CM/ECF
system, which will send a notice of electronic filing to the following:
David C Parisi - [e-mail]
Azita Moradmand - [e-mail]

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/s/Jeffrey H. Reeves
Jeffrey H. Reeves

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