Price v. Facebook, Inc.

Filing 7

MOTION to Relate Case /ADMINISTRATIVE MOTION To Consider Whether Cases Should Be Related filed by Steven Price. (Harnett, Melissa) (Filed on 8/18/2009)

Price v. Facebook, Inc.

Doc. 7

Case5:09-cv-03519-RMW Document7

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1 J. Paul Gignac (State Bar No. 125676) Kiley L. Grombacher (State Bar No. 245960) 2 ARIAS OZZELLO & GIGNAC LLP 4050 Calle Real, Suite 130 3 Santa Barbara, California 93110-3413 Telephone: [phone] Facsimile: [phone] 5 Mike Arias (State Bar No. 115385) ARIAS OZZELLO & GIGNAC LLP 6 6701 Center Drive West, 14th Floor Los Angeles, California 90045 7 Telephone: [phone] Facsimile: [phone] 8 Melissa M. Harnett (Bar No. 164309) 9 Gregory B. Scarlett (Bar No. 131486) WASSERMAN, COMDEN & CASSELMAN, L.L.P. 10 5567 Reseda Boulevard, Suite 330 Post Office Box 7033 11 Tarzana, California 91357-7033 Telephone: [phone] · [phone] 12 Facsimile: [phone] 13 Attorneys for Plaintiff Steven Price 14 15 16 17 STEVEN PRICE, on behalf of himself and all others similarly situated, 18 Plaintiff, vs. 19 20 FACEBOOK, INC., a Delaware corporation, and DOES 1 through 10, 21 inclusive, 22 Defendants. Case No. 09-cv-03043-JF Honorable Jeremy Fogel Case No. 09-cv-03519-W Honorable Ronald M. Whyte ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED (Civil Local Rule 3-12) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

WASSERMAN, COMDEN & CASSELMAN, L.L.P.

5567 RESEDA BOULEVARD, SUITE 330 POST OFFICE BOX 7033 TARZANA, CALIFORNIA 91357-7033

23 This document also relates to: 24 RootZoo, Inc., individually, and on behalf of all others similarly situated, 25 Plaintiff, 26 v. 27 FACEBOOK, INC., and DOES 1 through 10, inclusive, 28 Defendants.
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C0903519 (HRL) ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED CASE NO. 09-CV-03043-HRL Dockets.Justia.com

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1 This document also relates to: 2 Unified ECM, Inc., on behalf of itself and all others similarly situated, 3 Plaintiff, 4 v. 5 FACEBOOK, INC., 6 7 8 9
WASSERMAN, COMDEN & CASSELMAN, L.L.P.

Case No. 09-cv-03430-PVT Honorable Ronald M. Whyte

Defendant.

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5567 RESEDA BOULEVARD, SUITE 330 POST OFFICE BOX 7033 TARZANA, CALIFORNIA 91357-7033

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WASSERMAN, COMDEN & CASSELMAN, L.L.P.

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 31, 2009, the case entitled Price v. Facebook, Inc., Case No. 09-cv-03519 (the "Price Action") was filed in the United States District Court for the Northern District of California. Pursuant to Local Civil Rule 3-12, Plaintiff Steven Price ("Plaintiff") submits this motion for the Court to consider whether the Price Action should be related to the action entitled RootZoo, Inc. v. Facebook, Inc., Case No. 09-cv-03043-JF (the "RootZoo Action"), and the matter for which a previous Notice of Related Case was filed, Unified ECM, Inc. v. Facebook, Inc., Case No. 09-cv-03430 (the "Unified Action"). Plaintiff is informed and believes that an administrative motion to consider whether the Unified Action should be related to the RootZoo Action was filed by the plaintiff in the Unified Action on August 3, 2009, and remains unresolved. Local Rule 3-12(a) says that an action is related to another when: "(1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." As such, the Price Action is related to the RootZoo and Unified Actions because, while not identical, both concern substantially the same parties, property, transactions or events.1 To wit: 1. 2. All Actions are against the same Defendant, Facebook, Inc. ("Facebook"). All Actions are class actions brought on behalf of substantially the same parties ­

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5567 RESEDA BOULEVARD, SUITE 330 POST OFFICE BOX 7033 TARZANA, CALIFORNIA 91357-7033

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Facebook pay-per-click ("PPC")advertising customers who were overcharged for PPC advertising. 3.
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All Actions allege claims against Facebook for breach of contract and the violation

Plaintiff notes that while the allegations made within the Price, Unified and RootZoo Actions all involve "substantially the same parties, property, transaction or event," making relation and coordination of the Actions appropriate, the Price Action has differences that militate against consolidation of the Actions. In particular, the Price Action involves a narrower scope of wrongful conduct by Facebook -- that is, the Price Action seeks to recover for "invalid clicks" (clicks that never even took place) only, while the Unified and Root Zoo Actions also seek to recover for "fraudulent clicks" (clicks that occurred but were caused by the fraudulent activities of third parties). In addition, the Price Action, unlike the Unified and Root Zoo Actions, challenges Facebook's practice of providing its customers with future use "credits" rather than present cash refunds as reimbursement for invalid clicks. Finally, Plaintiff anticipates amending the complaint in the Price Action to include an additional claim that, like Plaintiff's existing declaratory judgment claim, is not alleged in the Unified or RootZoo Actions.
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1 of Business & Professions Code Section 17200, et seq. 2 4. The Price and Unified Actions also allege claims against Facebook for Unjust

3 Enrichment. 4 5 5. 6. All Actions allege that Facebook overcharged its PPC advertising customers. All Actions allege that Facebook failed to fully and/or adequately refund those

6 advertisers for such improper charges. 7 Pursuant to Local Rule 3-12(b)(2), it appears likely that there will be an unduly

8 burdensome duplication of labor and expense or the possibility of conflicting results if the cases 9 are conducted before different judges as a result of the foregoing. Accordingly, Plaintiff
WASSERMAN, COMDEN & CASSELMAN, L.L.P.

10 respectfully requests that the Court relate the Price Action to the RootZoo and Unified Actions
5567 RESEDA BOULEVARD, SUITE 330 POST OFFICE BOX 7033 TARZANA, CALIFORNIA 91357-7033

11 forthwith. 12 13 DATED: August18, 2009 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WASSERMAN, COMDEN & CASSELMAN, L.L.P. MELISSA M. HARNETT GREGORY SCARLETT

By:

/s/-Melissa M. Harnett MELISSA M. HARNETT Attorneys for Plaintiff

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