Facebook, Inc. v. Power Ventures, Inc.

Filing 70

CASE MANAGEMENT STATEMENT filed by Facebook, Inc.. (Gray, Thomas) (Filed on 2/25/2010)

Facebook, Inc. v. Power Ventures, Inc.

Doc. 70

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] JESSICA S. PERS (STATE BAR NO. 77740) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaintiff/Counterclaim Defendants, v. POWER VENTURES, INC. a Cayman Island Corporation; STEVE VACHANI, an individual; DOE 1, d/b/a POWER.COM, DOES 2-25, inclusive, Counterclaimants/ Defendants.

Case No. 5:08-cv-05780 JF (RS) FACEBOOK, INC.'S CASE MANAGEMENT STATEMENT Date: Time: Judge: Courtroom: February 26, 2010 9:00 a.m. Hon. Jeremy D. Fogel 3

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CASE MANAGEMENT STATEMENT 5:08-CV-05780 JF (RS)

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This Court has set the Initial Case Management Conference for February 26, 2010. Facebook, Inc. hereby submits the following case management statement. In light of the pending motions, Facebook requests that the Court conduct another Case Management Conference approximately 30 days after the resolution of the pending motions to discuss the scheduling and discovery issues set forth below. I. JURISDICTION AND SERVICE: The parties agree that this Court has subject matter jurisdiction over Plaintiff's claims and Defendants' counterclaims under 28 U.S.C. §§ 1331, 1367. The parties also agree that the venue is proper under 28 U.S.C. § 1391(b). Facebook has asserted a number of federal claims, such as the CAN-SPAM Act, 15 U.S.C. § 7201 et seq.; the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.; the Digital Millennium Copyright Act, 17 U.S.C. § 101 et seq.; as well as federal copyright and trademark infringement claims. Power.com has alleged federal antitrust claims under 15 U.S.C. § 2. II. FACTS Facebook owns and operates the widely popular social networking website located at http://www.facebook.com. The Facebook website and the servers upon which they are hosted are private property belonging to Facebook. Facebook regulates access to its property through a variety of measures, including its Terms of Use. Also, the parties agree that Facebook permits authorized integration with third-party websites through the Facebook Connect service. This interface ensures that Facebook users only provide their login information to Facebook. By offering Facebook Connect, Facebook enables users to integrate with other sites without compromising Facebook's commitment to safeguard its users' privacy and security. For security reasons, Facebook does not permit third party access to Facebook user profile data unless such third-parties use Facebook Connect. Power operates the website located at www.power.com. By its own admission, Power does not operate a social networking site of its own. Rather, the Power service aggregates data scraped from a variety of other social networking sites. For instance, Power uses login information obtained from a registered Facebook user to access the Facebook servers, locate that
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user's data (including, necessarily, that of that user's Facebook friends), and then copies that data to Power's own servers. That data is then displayed through the Power "browser" on the Power.com website. In order to copy a user's data, Power must make cached copies of Facebook's website, over which Facebook has copyright and trademark rights. The Power defendants refuse to use Facebook Connect to access the Facebook site. They believe that they should have free access to Facebook's servers and the data contained thereon, notwithstanding Facebook's express demands that Power stop. Further, the Power defendants believe that Facebook's efforts to police the integrity of its website and regulate access thereto are per se anti-competitive. Facebook disagrees and believes that it is allowed to regulate access to its computer systems. In addition to impermissibly scraping data from Facebook's servers, Power has also misutilized certain internal programs on the Facebook site in order to send mass, commercial spam messages to Facebook users urging them to join the Power service. III. LEGAL ISSUES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
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Did Defendants violate the CAN-SPAM Act, 15 U.S.C. § 7701 et seq.? Did Defendants violate the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.? Did Defendants violate California Penal Code § 502? Did Defendants infringe Facebook's copyrights? Did Defendants violate the Digital Millennium Copyright Act, 17 U.S.C. § 101 et seq.? Did Defendants infringe Facebook's trademarks? Did Defendants commit unlawful, unfair or fraudulent business practices in violation of California Business & Professions Code § 17200? What damages are available to Facebook? What other remedies are available to Facebook? Did Facebook violate antitrust laws? Did Facebook commit unlawful, unfair or fraudulent business practices in violation of California Business & Professions Code § 17200? What damages, if any, are available to Defendants? -2CASE MANAGEMENT STATEMENT 5:08-CV-05780 JF (RS)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. IV.

13. MOTIONS A.

What other remedies, if any, are available to Defendants?

Pending Motions

Currently pending before the Court are: 1. Facebook's Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) or, in the Alternative Partial Summary Judgment of Liability Under California Penal Code § 502(c); Facebook's Motion to Dismiss Counterclaims and Strike Affirmative Defenses; and Defendants' Motion for Summary Judgment.

2. 3.

Anticipated Motions

If the case continues after the Court issues its rulings on the pending motions, Facebook reserves the right to file additional dispositive motions, such as other motions for summary judgment, as well as discovery motions and motions in limine. V. AMENDED PLEADINGS The Court's rulings on the currently pending motions will determine if any future amendments are necessary. Facebook does not anticipate any further amendments to its pleadings, but reserves the right to do so. VI. EVIDENCE PRESERVATION Facebook has taken appropriate measure to preserve relevant evidence. VII. INITIAL DISCLOSURES The parties have not yet exchanged Rule 26 disclosures. VIII. DISCOVERY The parties have not yet conducted any discovery. The Court's rulings on the currently pending motions likely will significantly impact the scope and timing of discovery. IX. CLASS ACTIONS This is not a class action case. X. RELATED CASES There are no related cases. -3CASE MANAGEMENT STATEMENT 5:08-CV-05780 JF (RS)

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XI.

RELIEF Facebook prays for injunctive relief and monetary damage to be proven at trial. The bases

for Plaintiff's monetary damages include compensatory, statutory, and punitive damages as permitted by law. XII. SETTLEMENT AND ADR The parties engaged in an ADR mediation session on December 14, 2009. The session was facilitated by mediator Daralyn Durie, who has filed papers with the Court indicating that the ADR process is not yet complete and that further facilitated discussions are expected. See Dkt. No. 59. Consistent with the Certification of ADR Session filed on December 28, 2009, the parties are expected to engage in further settlement discussions prior to March 14, 2010. Id. Such discussions would be appropriate following determination of the parties' pending dispositive motions and following the start of discovery. XIII. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES The parties have not consented to a magistrate judge. XIV. OTHER REFERENCES Facebook does not believe the case is suitable for other references at this time. XV. NARROWING OF ISSUES Facebook believes the Court's rulings on the currently pending motions likely will narrow the issues, if not resolve the case in its entirety. XVI. EXPEDITED SCHEDULES In light of the pending motions Facebook lacks significant information to determine whether the case can be expanded or streamlined. XVII. SCHEDULING In light of the pending motions, Facebook lacks sufficient information to propose a schedule for the case. XVIII. TRIAL Facebook has requested a jury trial. In light of the pending motions, Facebook lacks

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sufficient information to estimate the length of trial. XIX. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES AND PERSONS Pursuant to Civil L.R. 3-16 Facebook certifies that as of this date, other than the named parties, there are no further interested entities or persons in this action that would affect the outcome of this litigation. XX. OTHER MATTERS Facebook believes that it lacks sufficient information at this early stage of the litigation to identify other matters that may facilitate the just, speedy and inexpensive disposition of this matter, other than the pending motions. As set forth above, in light of the pending motions, Facebook requests that the Court conduct another Case Management Conference approximately 30 days after the resolution of the pending motions to discuss the scheduling and discovery issues. Dated: February 25, 2010 I. NEEL CHATTERJEE THOMAS J. GRAY JULIO C. AVALOS JESSICA S. PERS Orrick, Herrington & Sutcliffe LLP

/s/ Thomas J. Gray THOMAS J. GRAY Attorneys for Plaintiff FACEBOOK, INC.

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