Cohen et al v. Facebook, Inc.

Filing 102

ORDER REQUESTING FURTHER BRIEFING. Signed by Judge Richard Seeborg on 2/3/12. (cl, COURT STAFF) (Filed on 2/3/2012)

**E-filed 2/3/12**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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ROBYN COHEN, et al.,
Plaintiffs,
v.

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ORDER REQUESTING FURTHER
BRIEFING

FACEBOOK, INC.,

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No. C 10-5282 RS

Defendant.
____________________________________/

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Plaintiffs’ opposition to Facebook’s motion for attorney fees offers one substantive, as

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opposed to procedural, basis on which they contend Facebook should be precluded from recovering

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any fees in this action. Plaintiffs argue that because Facebook successfully defended on the grounds

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that they lacked standing under Constitutional principles to bring their claims in federal court,

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Facebook cannot be seen as having “prevailed” on the claim under California Civil Code §3344 for

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purposes of fee-shifting. Plaintiffs provide no authority in support of this argument, suggesting

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instead that Facebook’s failure to cite precedent to the contrary in its moving papers should be fatal

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to its fee request.

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On reply, Facebook relies on Love Associated Newspapers, Ltd., 611 F.3d 601 (9th Cir.

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2010). In Love, the defendants defeated a §3344 claim by showing that California law did not apply

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to the allegedly wrongful conduct, all of which took place in England. Id. at 610-11. The court held

award, notwithstanding the ultimate determination that the statute did not govern their conduct.

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The dismissal Facebook obtained in this action was different. Although the argument in

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plaintiffs’ opposition is underdeveloped, there is a reasonable basis to contend that the dismissal

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here falls short of establishing that plaintiffs have no potentially valid claim under §3344. Rather,

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the order arguably only found that any such claim cannot be heard in federal court as a result of

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Constitutional standing limitations applicable in this forum. Whether plaintiffs might have standing

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to bring a claim under §3344 in California courts at least theoretically may remain an open question.

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See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322 n. 5 (2011) (“There are sound reasons to

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be cautious in borrowing federal standing concepts, born of perceived constitutional necessity, and

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For the Northern District of California

that because plaintiff had in fact brought an action “under” §3344, defendants were entitled to a fees

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United States District Court

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extending them to state court actions where no similar concerns apply.”) Thus, while the Love

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defendants had succeeded in showing that the §3344 claim failed because the statute did not govern

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their conduct, Facebook may have only shown that plaintiffs sued in a court system without

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jurisdiction to hear their claims.

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The parties are in agreement that California law governs the question of whether Facebook is

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entitled to recover fees. The particular circumstances here, however, seem unlikely to have ever

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arisen in a California court. Nevertheless, the question is whether, under California law, a defendant

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can be considered to have “prevailed” for purposes of a fee-shifting statute where it did not

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establish, for example, (1) the allegedly wrongful conduct did not occur, (2) the conduct was not

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wrongful, (3) California law did not apply to the conduct, (4) the plaintiff lacked standing under

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California law, or (4) any other similar basis for judgment in its favor more clearly equivalent to a

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determination on the merits than was the dismissal here. More specifically, does a dismissal in

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federal court for lack of Article III standing—i.e. a dismissal for lack of federal jurisdiction—equate

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to having “prevailed” on a state statutory claim that has a fee shifting provision?

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Within 20 days of the date of this order, Facebook may submit a supplemental brief, not to

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exceed 15 pages, addressing this issue. Within 10 days after Facebook’s brief is filed, plaintiffs may

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file a response, also not to exceed 15 pages. The matter will then be resubmitted for decision.

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IT IS SO ORDERED.

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Dated: 2/3/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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