Xiaoning et al v. Yahoo! Inc, et al

Filing 110

Memorandum in Opposition to Defendants' Rule 7-11 Supplemental Submission filed byWang Xiaoning, Shi Tao, Yu Ling. (Myers, Roger) (Filed on 10/22/2007)

Xiaoning et al v. Yahoo! Inc, et al

Doc. 110

Case 4:07-cv-02151-CW

Document 110

Filed 10/22/2007

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Morton, H. Sklar, Executive Director [e-mail] World Organization for Human Rights USA 2029 P Street NW, Suite 301 Washington, DC 20036 Telephone: [phone] Facsimile: [phone] [Admitted Pro Hac Vice] Roger Myers (CA State Bar No. 146164) [e-mail] HOLME ROBERTS & OWEN LLP 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 Telephone: [phone] Facsimile: [phone] [Additional Attorneys Appear on Signature Page] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANSISCO DIVISION WANG XIAONING, YU LING, SHI TAO, and ADDITIONAL PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUALS, Plaintiffs, v. Case No. C07-02151 CW TORT DAMAGES CLAIM PLAINTIFFS' OPPOSITION TO DEFENDANTS' RULE 7-11 SUPPLEMENTAL SUBMISSION

YAHOO, INC., a Delaware Corporation, YAHOO! HONG KONG, LTD., a Foreign Judge: Hon. Claudia Wilken Subsidiary of Yahoo!, AND OTHER PRESENTLY UNNAMED AND TO BE IDENTIFIED CORPORATE DEFENDANTS AND UNNAMED AND TO BE IDENTIFIED INDIVIDUAL EMPLOYEES OF SAID CORPORATIONS, Defendants.

Plaintiff's Opposition to Rule 7-11 Submission

Case No. C07-02151 CW
Dockets.Justia.com

Case 4:07-cv-02151-CW

Document 110

Filed 10/22/2007

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Plaintiffs object to the Defendants' seeking leave to file an administrative letter under Rule 7-11 with the court containing their views on the applicability of the newly issued decision in Khulumani v. Barclay, (2d Cir., decided Oct. 12, 2007) to the proceedings currently before the Court relating to jurisdictional discovery. Plaintiffs note at the outset that the Defendants' pleading and letter were filed with the Court prior to the Plaintiffs being notified of the action or given an opportunity to join (or object to) an accompanying stipulation or declaration, which was not initially submitted with the pleading, along with a proposed Order, as required under Rule 711 in any case, but submitted several hours later. Moreover, Rule 7-11 submissions are not intended to provide parties with additional opportunities to file supplemental submissions to the Court on pending issues that are outside of, and in addition to, the regularly scheduled pleadings. Plaintiffs note in addition that the decision in the Khulumani case is a matter of public record and may be interpreted and applied by the Court without the need for additional briefing by the parties. With regard to the substantive point the Defendants seek to raise in their letter, that the TVPA portion of the complaint in Khulumani was dismissed because a connection between the defendant corporations' actions in that case was not sufficiently linked with official state conduct that would establish the presence of state sponsored torture, this allegation has no relevance to the Yahoo! litigation. The present proceedings are firmly based on clearly enunciated allegations that actions by state officials taken under the color of law, aided and abetted by actions by Yahoo!, produced the arbitrary arrests, long-term detentions, and acts of torture that provide the basis for the complaint. The Khulumani decision was noted in the Plaintiffs brief as providing support for the principle that a private corporation can be held accountable for major human rights abuses under the "aiding and abetting" principle, and the need for more detailed findings of fact regarding the aiding and abetting and justiciability issues in connection with the pending jurisdictional discovery motion. It was not cited, as the Defendants are suggesting, in reference to the question of the sufficiency of the allegations in the complaint under the TVPA, which is what the portion of the Khulumani decision they refer to addresses. Both parties will have an opportunity to further address these issues, and the relevance of the Khulumani decision to this case, at the scheduled November 1, 2007 hearing before the Court. No further delays or supplemental pleadings are required for these issues to be properly considered.

Plaintiff's Opposition to Rule 7-11 Submission

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Case 4:07-cv-02151-CW

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Respectfully submitted this 22nd day of October, 2007, by

MORTON SKLAR THERESA HARRIS WORLD ORGANIZATION FOR HUMAN RIGHTS USA By: /s/ Morton Sklar Morton Sklar ROGER MYERS HOLME ROBERTS & OWEN LLP By: /s/ Roger Myers Roger Myers Attorneys for Plaintiffs Karen Parker (CA State Bar No. 112486) Association of Humanitarian Lawyers 154 5th Avenue San Francisco, CA 94118 Telephone: [phone] E-mail: [e-mail] With the assistance of: Rifk Ebeid, George Mason University School of Law Legal Intern

Plaintiff's Opposition to Rule 7-11 Submission

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Case No. C07-02151 CW

Case 4:07-cv-02151-CW

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CERTIFICATE OF SERVICE This is to certify under penalty of perjury that service of the foregoing Plaintiffs' Opposition to Defendants' Rule 7-11 Supplemental Submission has been made on the parties listed below through the Court's electronic filing system and by depositing a copy thereof in the United States Postal Service first class mail, postage prepaid, addressed to: Daniel M. Petrocelli Matthew T. Kline Alan Rader O'Melveny & Meyers LLP 1999 Avenue of the Stars Los Angeles, California 90067-6035 Signed and certified to this 22nd day of October, 2007.

By: /s/ Morton Sklar Morton Sklar Executive Director World Organization for Human Rights USA 2029 P Street NW, Suite 301 Washington, DC 20036

Plaintiff's Opposition to Rule 7-11 Submission

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Case No. C07-02151 CW