"In Re: Facebook Privacy Litigation"

Filing 38

Declaration of James M. Penning in Support of 37 MOTION for Extension of Time to File Answer Defendant s Administrative Motion To Extend Deadline To Respond To Plaintiffs Consolidated Class Action Complaint filed byFacebook, Inc.. (Related document(s) 37 ) (Penning, James) (Filed on 11/4/2010)

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COOLEY LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) JAMES M. PENNING (229727) ([e-mail]) 101 California Street 5th Floor San Francisco, CA 94111-5800 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant FACEBOOK, Inc., a Delaware corporation UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IN RE: FACEBOOK PRIVACY LITIGATION.

Case No. 10-cv-02389-JW DECLARATION OF JAMES M. PENNING IN SUPPORT OF DEFENDANT'S ADMINISTRATIVE MOTION TO EXTEND DEADLINE TO RESPOND TO PLAINTIFFS' CONSOLIDATED CLASS ACTION COMPLAINT

I, James M. Penning, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am an

associate with the firm of Cooley LLP, counsel of record for Defendant Facebook, Inc. ("Facebook") in this action. I have personal knowledge of the facts set forth herein, and, if called as a witness, I could and would competently testify thereto. 2. Since Plaintiffs' Consolidated Complaint was filed, seven related actions have

been filed in the Northern District of California that contain allegations against Facebook, Zynga Game Network Inc. ("Zynga"), or some combination thereof, that are substantially similar to those in In Re: Facebook Privacy Litigation. Those matters are: 1.
DECL. OF JAMES M. PENNING I/S/O MOTION TO EXTEND DEADLINE TO RESPOND 5:10-CV-02389-JW

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3.

Graf v. Zynga, No. 3:10-cv-04680-WHA ("Graf"); Albini v. Zynga; Facebook Inc., No. 3:10-cv-04723-JL ("Albini"); Gudac v. Zynga, No. 3:10-cv-04793-EMC; Schreiber v. Zynga, No. 3:10-cv-04794-JCS; Swanson v. Zynga, No. 5:10-cv-4902-HRL; Carmel-Jessup v. Facebook; Zynga, No. 3:10-cv-4930-MEJ; and Phee v. Facebook; Zynga, No. 3:10-cv-4935-SC.

On October 13, 2010, Facebook was served with the complaint in the related

action captioned Wendy Marfeo v. Facebook, Inc., Case No. 10-cv-00262-S-LDA (D.R.I.) ("Marfeo"), to which Facebook previously alerted the Court by notice filed August 10, 2010. 4. October 18, 2010, an amended complaint was filed in the Marfeo action adding

additional allegations against Facebook related to applications developed and utilized on Facebook's online social networking platform. 5. All of the claims in the above eight actions arise from allegations that "referrer

headers" within some Facebook users' web browsers caused user information to be leaked to third parties when users took certain actions on Facebook or on applications developed on Facebook's online social networking platform. The actions also involve overlapping legal claims. and overlapping parties on both the plaintiff and defense sides, and overlapping legal counsel on both sides too. 6. Extension of Facebook's deadline to respond to Plaintiffs' Consolidated Class

Action Complaint will allow the parties to address the outstanding procedural issues in an efficient and logical manner. It will also avoid substantial harm to the parties by conserving valuable party and Court resources and eliminating unnecessary duplication of efforts that will be required if a response is required now and then the actions are consolidated and an Amended Consolidated Class Action Complaint filed. 7. Prior to consolidation of Gould and Robertson into this action, the parties

stipulated to extensions of Facebook's deadline to respond to the individual complaints and the Court entered Orders granting these extensions on June 14, July 27, and August 11 in Robertson, 2.
DECL. OF JAMES M. PENNING I/S/O MOTION TO EXTEND DEADLINE TO RESPOND 5:10-CV-02389-JW

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and on June 24, July 27, and August 11 in Gould. The parties previously agreed to Facebook being allowed thirty days from the date the Consolidated Complaint was filed to file its response. This agreed upon deadline to respond to the Consolidated Complaint has not been extended prior to this request. 8. In August 2010, the parties in this case began discussing procedural logistics

related to Marfeo, which was then pending in the District of Rhode Island but had yet to be served on Facebook. On October 13, 2010, Facebook was served with the Marfeo complaint. 9. On October 27, 2010, a stipulation to transfer Marfeo was filed, and on November

1, 2010, the District Court in Rhode Island ordered Marfeo be transferred to the Northern District of California. 10. On October 22, Facebook's counsel initiated meet-and-confer discussions with

Plaintiffs' counsel regarding procedural issues pertaining to the anticipated transfer of Marfeo to this Court and the additional actions being filed in this Court--the first two of which were filed on October 18 and 19. (On October 18, Plaintiffs' counsel filed the Graf action naming Zynga as a defendant. defendants.) 11. I advised Plaintiffs' counsel that a stipulation to transfer the Marfeo action to this On October 19, the Albini action was filed naming Facebook and Zynga as

Court would be filed in the near future and inquired about Plaintiffs' intentions with respect to consolidation of the actions. Plaintiffs' counsel advised they agreed that the original complaint filed in Marfeo should be consolidated into this action, however, they needed additional time to consider the impact of the additional allegations Marfeo raised in his amended complaint. In addition, the fact that they had recently filed an action asserting allegations similar to the allegations added by Marfeo against Zynga without naming Facebook as a defendant was something they also wanted to consider. The parties agreed to re-convene the meet-and-confer the following week. 12. On October 29, the parties met and conferred on the potential relation and

consolidation of Marfeo and the additional actions which had been filed--at that time, three actions naming Facebook and Zynga as defendants and three actions naming only Zynga as a 3.
DECL. OF JAMES M. PENNING I/S/O MOTION TO EXTEND DEADLINE TO RESPOND 5:10-CV-02389-JW

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defendant. The parties discussed whether this action should be stayed pending a determination on whether the actions should be related and then consolidated but made no decisions on how to proceed and agreed they needed additional information to make a final decision. The parties agreed to meet-and-confer on the issue the following week. 13. On November 3, the parties met and conferred again. At that time, I advised that

Facebook's position was that the actions all should be related and then consolidated. Plaintiffs' counsel advised that they had begun preliminary discussions regarding these procedural issues with counsel in the other actions and that there was no consensus on the issues. I requested a 30day extension of Facebook's deadline (currently less than a week away, on November 10) to respond to the Consolidated Complaint, to allow the parties to present the relatedness and consolidation issues to the Court for a determination. Plaintiffs' counsel declined to agree to the extension. Plaintiffs' counsel also advised that the Court was currently scheduling motion

hearings for February 14, 2011 or later, and that their decision was not tied to when the hearing would be held, but merely a reflection of their belief that the action should continue to move forward. 14. According to this Court's website, currently the first available hearing date for

Facebook's anticipated motion to dismiss is February 14, 2011.1 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 4th day of November, 2010 at Palo Alto, California. /s/James M. Penning_________ James M. Penning
1198864 v1/SF

See http://www.cand.uscourts.gov/cand/calendar.nsf/ExtraInfoLinkDocs/JW. November 3, 2010). 4.

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DECL. OF JAMES M. PENNING I/S/O MOTION TO EXTEND DEADLINE TO RESPOND 5:10-CV-02389-JW