"In Re: Facebook Privacy Litigation"

Filing 54

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 47 CONSOLIDATION AND IN SUPPORT OF APPOINTMENT OF CO-LEAD PLAINTIFF AND CO-LEAD COUNSEL by Interested Party Wendy Marfeo. (Attachments: # 1 Exhibit A-E *** First Amended Class Action Complaint case no. 10-262 District of Rhode Island )(Zevin, Matthew) (Filed on 11/22/2010) Modified on 11/22/2010 (cv, COURT STAFF). Modified on 11/30/2010 (cv, COURT STAFF).

Gould v. Facebook, Inc.

Doc. 54

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

STANLEY · IOLA, LLP MATTHEW J. ZEVIN, SBN: 170736 [e-mail] 525 B Street, Suite 760 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, Wendy Marfeo [Additional Counsel Listed on Signature Page] IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN JOSE DIVISION IN RE: FACEBOOK PRIVACY LITIGATION CASE NO. 10-cv-02389-JW MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION OF CONSOLIDATION AND IN SUPPORT OF APPOINTMENT OF CO-LEAD PLAINTIFF AND CO-LEAD COUNSEL JUDGE: CTRM: Honorable James Ware 8

MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW
Dockets.Justia.com

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

Plaintiff Wendy Marfeo ("Ms. Marfeo"), through her attorneys, The Law Offices of Peter N. Wasylyk, The Law Offices of Andrew S. Kierstead, and Stanley · Iola, LLP ("Plaintiff's Counsel"), hereby respectfully submits this memorandum in opposition of the consolidation of all cases related to the instant case, and for support of the appointment of herself as Co-Lead Plaintiff and Plaintiff's Counsel as Co-Lead Counsel pursuant to Fed. R. Civ. P. 23(g)(3) and pursuant to this Court's Order [Doc. 47] of November 15, 2010. I. PROCEDURAL HISTORY AND INTRODUCTION Plaintiff Wendy Marfeo commenced a class action against Facebook, Inc. ("Facebook") on June 17, 2010 in the United States District Court for the District of Rhode Island (Cause No. 10cv-262). In her Complaint, Ms. Marfeo alleged causes of action against Facebook for violations of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq., breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment based on Facebook's disclosure of her unique Facebook user ID to third parties via referrer headers when she and thousands of other users clicked on third-party advertisements displayed on Facebook's website. On October 18, 2010, Ms. Marfeo filed an Amended Class Action Complaint on behalf of herself and two distinct classes (the "Classes") defined as follows: all Facebook users who reside in the United States, who interacted with Facebook's authorized applications on Facebook's social networking website, and as a result of such interactions had their user ID's transmitted to thirdparty advertisers and/or internet tracking companies (the "Application Class"); and all Facebook users who reside in the United States, whose user ID was embedded in the URL referrer header, and who clicked on a third-party advertisement displayed on Facebook's social networking website, anytime on or before May 21, 2010 (the "Advertiser Class"). On November 1, 2010, pursuant to stipulation between Plaintiff's Counsel and Facebook's counsel, Ms. Marfeo's case was ordered transferred to this Court by the United States District Court for the District of Rhode Island. A true and correct copy of Ms. Marfeo's First Amended Class Action Complaint is attached hereto as Exhibit A, and a true and correct copy of the Stipulation and Order Transferring Case to Northern District of California is attached hereto as Exhibit B. In preparation for the prosecution of her case before this Court, Ms. Marfeo became 1 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW

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

aware of this Court's Order [Doc. 47] of November 15, 2010 requesting briefing by November 22, 2010 regarding whether the numerous cases recently filed against Zynga Game Network ("Zynga") should also be consolidated into the instant action, and requesting nominations for Lead Plaintiffs and Lead Counsel. Ms. Marfeo opposes the consolidation of the Zynga cases into the instant action, but respectfully requests that the Court appoint her a Co-Lead Plaintiff and appoint Plaintiff's Counsel as Co-Lead Counsel in the In Re: Facebook Privacy Litigation, Case No. CV 10-02389-JW. Ms. Marfeo respectfully requests these appointments whether or not this Honorable Court consolidates the related Zynga actions into the current Facebook action. II. THE COURT SHOULD NOT CONSOLIDATE ALL RELATED ACTIONS INTO THE CURRENT ACTION As the Court recognizes in its November 15 Order [Doc. 47], the gravamen of all the related actions filed against Zynga and Facebook involves allegations that unique Facebook user IDs were disclosed to third parties, thereby allowing third parties to obtain additional information about the users. The recently-related cases and the current consolidated case present different questions of law and fact. Different contractual agreements and representations govern users' relationships with Facebook as compared to users' relationships with Zynga. Ms. Marfeo therefore opposes the consolidation of all related cases into the current action. Additionally, Ms. Marfeo requests that she be appointed a Co-Lead Plaintiff and that Plaintiff's Counsel are appointed Co-Lead Counsel whether or not this Honorable Court consolidates the related cases into the current action. III. THE COURT SHOULD APPOINT MS. MARFEO AS CO-LEAD PLAINTIFF AND HER COUNSEL AS CO-LEAD COUNSEL The duty of adequate representation requires counsel to represent the class competently and vigorously and without conflicts of interest with the class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998); Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir.1998); Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.1985). The duty to avoid conflicts is serious. Class counsel are 2 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW

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

fiduciaries to the class. Rodriguez v. W. Publishing Co., 563 F.3d 948, 968 (9th Cir.2009); see also Sondel v. Nw. Airlines, Inc., 56 F.3d 934, 938 (8th Cir.1995). Rule 23(g)(3) provides this Court with authority to appoint co-lead class counsel prior to determining whether this action can proceed as a class action. The criteria for appointment of colead class counsel are the same as the criteria for the appointment of class counsel following certification. The standard in federal law for determining whether counsel is adequate to serve as co-lead counsel requires that the court consider the work the counsel has done in identifying or investigating potential claims in the action; counsel's experience with and handling of class actions, other complex litigation, and claims of the type asserted in the action; counsel's knowledge of the applicable law; and resources counsel will commit to representing the class. See Fed. R. Civ. P. 23(g)(1)(C); Parkinson v. Hyundai Motors America, 2006 WL 2289801, *2-*3 (C.D. Cal. Aug. 7, 2006) (in appointing interim class counsel, the court considered the experience of counsel in the underlying litigation and the resources of class counsel). Plaintiff's Counsel clearly meet these criteria and should accordingly be appointed Co-Lead Counsel, and Ms. Marfeo should be appointed a Co-Lead Plaintiff. Initially, appointment of interim class counsel in this case is necessary to ensure that the rights of absent potential class members are adequately protected during the precertification phase of a class action. This is particularly important as to Ms. Marfeo and the members of the Application Class, whose claims against Facebook based on interactions with Facebookauthorized applications are not being prosecuted in the current case, and, as noted above, would be jeopardized if all of the related cases are not consolidated. However, Ms. Marfeo and Plaintiff's Counsel are uniquely situated to protect the interests of this Class, and they should accordingly serve as Co-Lead Plaintiff and Co-Lead Counsel respectively as to all claims against Facebook. Indeed, Plaintiff's Counsel have devoted considerable time and resources to independently investigate the claims asserted in this litigation. In developing and drafting Ms. Marfeo's original complaint and her amended complaint, Plaintiff's Counsel consulted extensively with multiple technology experts, including Craig E. Wills, Professor of Computer Science at Worcester Polytechnic Institute, whose seminal paper On the Leakage of Personally Identifiable Information 3 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW

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

Via Online Social Networks was the first study to discuss the computer science of unique user ID leakage by social networking sites such as Facebook's. As a result of their initial investigation, Plaintiff's Counsel filed a complaint on behalf of Ms. Marfeo and a nationwide Class of Facebook users whose information was leaked by clicking on third-party advertisements in June of this year ­ on information and belief, only the third such complaint to be filed in the nation, and a full four to five months before the bevy of recently related cases were filed. After substantial further investigation, Ms. Marfeo and her counsel then filed their First Amended Complaint. Plaintiff's Counsel are accordingly amply familiar with the facts and theories underlying the current consolidated case, are in consultation with highly knowledgeable experts in the related technology field, have spoken on multiple occasions with Facebook's counsel and with other counsel for plaintiffs in the current and related actions, and can therefore greatly enhance the effectiveness of the legal representation available to all class members by joining as Co-Lead Counsel, with Ms. Marfeo as a Co-Lead Plaintiff. Moroever, Plaintiff's Counsel have extensive experience in handling large, complex class action litigation such as the instant matter, and have been approved as class counsel in many significant and successful class actions, as detailed on the firm resumes of Stanley · Iola, LLP (attached hereto as Exhibit C), The Law Offices of Peter N. Wasylyk (attached hereto as Exhibit D), and The Law Offices of Andrew S. Kierstead (attached hereto as Exhibit E). The firms' resumes contain representative lists of the many cases each has prosecuted as lead or primary counsel, and detail the results achieved in those cases class actions and their experience in representing large plaintiff classes. Plaintiff's Counsel also possess the ability and willingness to expend the financial and human resources necessary to prosecute this litigation to its conclusion. As well, Plaintiff's Counsel also have experience handling cases involving privacy issues that are similar to those raised in the instant case. Specifically, The Law Offices of Peter N. Wasylyk participated as plaintiff's counsel in In re Doubleclick Inc. Privacy Litigation, No. 00Civ. 0641 in the United States District Court for the Southern District of New York; and Plaintiff's Counsel all participated in In re National Security Agency Telecommunications Records Litigation, No. 3:06-md-01791-VRW in the United States District Court for the Northern District 4 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW

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

of California, San Francisco Division. In sum, consideration of the work that Plaintiff's counsel have performed in identifying and investigating potential claims in this case, their experience in handling class actions, other complex litigation, and claims of the type asserted in the action, their knowledge of the applicable law, and the resources that they will commit to prosecuting all claims in this litigation should lead the Court to conclude that Plaintiff's Counsel will represent the Classes fairly and adequately. Accordingly, the Court at this time should appoint Ms. Marfeo as Co-Lead Plaintiff and appoint Plaintiff's Counsel as Co-Lead Counsel during the precertification phase of these proceedings whether this Honorable Court does or does not consolidate the related Zynga actions with the already consolidated Facebook action. IV. CONCLUSION Ms. Marfeo respectfully asks this Court not to consolidate all related cases into the current action, to appoint her as a Co-Lead Plaintiff, and to appoint Plaintiff's Counsel as Co-Lead Counsel in the In Re Facebook Privacy action whether or not the related Zynga actions are consolidated into the current consolidated Facebook action and authorize them to direct and supervise the activities and conduct of the action. Ms. Marfeo also requests the granting of such other relief that the Court deems just and proper. DATED: November 22, 2010 STANLEY · IOLA, LLP MATTHEW J. ZEVIN /s/ Matthew J. Zevin MATTHEW J. ZEVIN 525 B Street, Suite 760 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone]

5 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW

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

STANLEY · IOLA, LLP MARC R. STANLEY (admitted pro hac vice) [e-mail] MARTIN WOODWARD (admitted pro hac vice) [e-mail] 3100 Monticello Avenue, Suite 750 Dallas, TX 75205 Telephone: [phone] Fax: [phone] LAW OFFICE OF ANDREW KIERSTEAD ANDREW S. KIERSTEAD; SBN: 132105 [e-mail] 1001 SW 5th Avenue, Suite 1100 Portland, OR 97204 Telephone: [phone] Facsimile: [phone] LAW OFFICES OF PETER N. WASYLYK PETER N. WASYLYK (pro hac vice pending) [e-mail] 1307 Chalkstone Avenue Providence, RI 02908 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Wendy Marfeo

6 MEM IN OPP OF CONS AND IN SUPP OF APPT; Case No. 10-cv-02389-JW