"In Re: Facebook Privacy Litigation"
RESPONSE to re 47 Order Relating Case by Barbara Moskowitz. (Attachments: # 1 Exhibit A)(Lurie, Jordan) (Filed on 11/22/2010) Modified on 11/23/2010 (cv, COURT STAFF).
Gould v. Facebook, Inc.
1 Jordan L. Lurie (130013) email@example.com 2 Leigh A. Parker (170565) firstname.lastname@example.org 3 Joel E. Elkins (256020) email@example.com 4 WEISS & LURIE 10940 Wilshire Boulevard, 23rd Floor 5 Los Angeles, CA 90024 Telephone: (310) 208-2800 6 Facsimile: (310) 209-2348 7 Attorneys for Plaintiff Barbara Moskowitz and Proposed Co-Lead Counsel for the Class 8 [Additional Counsel Listed on Signature Page] 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 IN RE: FACEBOOK PRIVACY LITIGATION ) ) _______________________________________) 16 ) This Document Relates to: ) 17 ) ALL ACTIONS. ) 18 ) _______________________________________) 19 15 20 21 22 23 24 25 26 27 28 Case No: C 10-02389 JW CLASS ACTION PLAINTIFF MOSKOWITZ'S RESPONSE TO THIS COURT'S NOVEMBER 15, 2010 ORDER RE: CONSOLIDATION OF RELATED CASES AND APPOINTMENT OF CO-LEAD PLAINTIFF AND CO-LEAD COUNSEL DATE: TIME: COURTROOM: JUDGE: N/A N/A 8, 4th Floor Hon. James Ware
Plaintiff Barbara Moskowitz respectfully submits this memorandum in response to this
2 Court's Order dated November 15, 2010 ("November 15 Order") inviting the parties to brief the 3 issue whether the cases related by that Order should be consolidated into this action, or 4 consolidated as a separate action, In re: Zynga Litigation. 5 I. 6 INTRODUCTION AND PROCEDURAL HISTORY Plaintiff Barbara Moskowitz filed a class action against defendants Facebook, Inc.
7 ("Facebook"), Zynga Game Network, Inc. ("Zynga") and Rapleaf, Inc. ("Rapleaf") in this 8 District on behalf of herself and a Class of all registered Facebook members in the United States 9 who utilized Facebook Platform Applications.1 ¶11. Plaintiff's Complaint alleges that 10 Defendants inappropriately and unlawfully transmitted sensitive personally identifiable 11 information, including Facebook User IDs ("UIDs") and real names, to third parties, or otherwise 12 used such information without user consent and for substantial profit. ¶2. By doing so, 13 Defendants violated accepted industry standards, state and federal laws, the respective terms of 14 use and privacy policies of each Defendant, as well as the agreements between Facebook and 15 application developers and operators. Id. The Complaint further alleges that Defendants' 16 conduct violates the Electronic Communications Privacy Act (18 U.S.C. § 2510, et seq.), the 17 Stored Communications Act (18 U.S.C. § 2701, et seq.), the California Computer Crime Law 18 (Cal. Penal Code § 502), the California Unfair Competition Law (Cal. Bus. & Prof. Code 19 § 17200, et seq.), California Civil Code §§ 1572 & 1573 and constitutes breach of contract, 20 breach of the implied covenant of good faith and fair dealing, and unjust enrichment. ¶¶3, 5721 123. 22 23 24 25 26 27 28 Excluded from the Class are Defendants and their officers and directors, legal representatives, successors or assigns, and any person or entity related to, affiliated with, or controlled by any of the Defendants. Id. All references to "¶" refer to Plaintiff's Complaint filed on November 22, 2010, Moskowitz v. Facebook, Inc., et al., Case No. 10-CV-05287 HRL. 1
This Court's November 15 Order related the following cases to this action: Graf v. Zynga Game Network, Inc. Albini v. Zynga Game Network, Inc. and Facebook, Inc. 10-CV-04680 JW 10-CV-04723 JW
1 2 3 4 5 6 7
Gudac v. Zynga Game Network, Inc. Schreiber v. Zynga Game Network, Inc. Swanson v. Zynga Game Network, Inc. Carmel-Jessup v. Facebook, Inc. and Zynga Game Network, Inc. Phee v. Facebook, Inc. and Zynga Game Network, Inc.
10-CV-04793 JW 10-CV-04794 JW 10-CV-04902 JW 10-CV-04930 JW 10-CV-04935 JW
This Court issued a further order on November 19, 2010 relating Bryant v. Facebook, Inc.
8 and Zynga Game Network, Inc., Case No. 10-CV-05192 PVT, to this action. Another class 9 action entitled Marfeo v. Facebook, Inc., Case No. 10-CV-00262, was filed in the United States 10 District Court for the District of Rhode Island. The Marfeo action appears related because it is 11 brought on behalf of similar classes, alleges a similar class period and involves substantially the 12 same transactions, events and parties. The United States District Court for the District of Rhode 13 Island entered an order on November 1, 2010 transferring the Marfeo action to this District. 14 For the reasons set forth below, it is the position of Plaintiff Moskowitz that all cases
15 alleging similar claims against Facebook and/or Zynga, including her case, should be 16 consolidated with this action. Plaintiff Moskowitz also respectfully requests that this Court 17 appoint her as a Co-Lead Plaintiff and appoint her counsel as Plaintiff's Co-Lead Counsel. 18 II. 19 20 21 22 23 24 25 26 27 28 ALL ACTIONS AGAINST FACEBOOK AND/OR ZYNGA SHOULD BE CONSOLIDATED As stated in this Court's November 15 Order, each of the actions referenced therein alleges that unique Facebook user information was disclosed to third parties, which allowed those third parties to obtain additional information about the users and their online activities. The cases related to this action by the November 15 Order name Zynga as a defendant. Certain of those cases name Zynga and Facebook as defendants. However, the addition of Zynga as a defendant does not require two separate groups of cases. To the contrary, as this Court stated in its November 15 Order, "in light of the substantial similarity of parties, events and causes of action, the Court finds that there is a risk of `an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different judges.'" The creation of two different groups of cases would indeed result in the duplication of labor and 2
1 conflicting results because of the similarities common to all the actions, whether they name 2 Facebook or Zynga, or both. Given the commonalities of the parties and allegations, the same 3 witnesses, documents and questions of fact and law would be at issue in both cases. Maintaining 4 two separate groups of cases would result in judicial inefficiency and unnecessarily burden this 5 Court, the parties and their counsel. 6 However, to the extent that there are any conflicts between the members of the Class
7 whose information was leaked by Facebook to third parties and members of the Class whose 8 UIDs were transmitted to third parties as a result of their interactions with applications 9 authorized by Facebook, such as Zynga, the interests of the Class may be protected through the 10 appointment of separate Co-Lead Plaintiffs and Co-Lead Counsel. 11 Plaintiff Moskowitz therefore respectfully requests that all actions alleging similar claims
12 against Facebook and/or Zynga, including her case, should be consolidated with this action. 13 Plaintiff Moskowitz also requests that she be appointed a Co-Lead Plaintiff and that her counsel 14 be appointed Co-Lead Counsel in the event that this Court determines to establish a co-lead 15 structure, as set forth below. 16 III. 17 18 THIS COURT SHOULD APPOINT PLAINTIFF MOSKOWITZ AS CO-LEAD PLAINTIFF AND APPOINT HER COUNSEL AS CO-LEAD COUNSEL FOR THE CLASS It is well established that the duty of adequate representation requires counsel to represent
19 the class competently and vigorously, and without conflicts of interest within the class. See, e.g., 20 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n. 20 (1997). As class counsel are 21 fiduciaries to the class, it is the duty of class counsel to avoid conflicts. See Rodriguez v. West 22 Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009). 23 Rule 23(g)(3) of the Federal Rules of Civil Procedure provides this Court with the
24 authority to appoint co-lead counsel for the class prior to determining whether this action may 25 proceed as a class action. The criteria for appointment of co-lead class counsel are the same as 26 the criteria for the appointment of class counsel following the certification of a plaintiff class. To 27 determine whether counsel is adequate to serve as co-lead counsel for the class requires that the 28 Court consider the work counsel has done in identifying potential claims in the action; counsel's 3
1 experience with and handling of class actions; other complex litigation, and claims of the type 2 asserted in the action; counsel's knowledge of the applicable law; and the resources that counsel 3 will commit to representing the class. See Fed.R.Civ.P. 23(g)(1)(c). Plaintiff's counsel here 4 satisfy the foregoing criteria. Accordingly, Plaintiff's counsel, the law firm of Weiss & Lurie, 5 should be appointed Co-Lead Counsel for the Plaintiff Class and Plaintiff Moskowitz should be 6 appointed a Co-Lead Plaintiff, in the event that the Court determines to establish a co-lead 7 structure. 8 Plaintiff's counsel have extensive experience in litigating class actions, including large,
9 complex class actions such as this matter. Weiss & Lurie has been appointed sole lead counsel, 10 or co-lead counsel, for plaintiff classes in numerous cases, successfully prosecuted numerous 11 class actions and have secured significant recoveries for injured consumers and investors. The 12 firm's experience and success in class action litigation, including numerous large complex class 13 actions litigated in this District, is described in further detail in the firm's resume attached hererto 14 as Exhibit A. The firm recently participated in a nationwide electronic privacy class action 15 alleging that hackers breached the security systems of retail store holding company TJX 16 Companies, Inc., wherein consumers' personal and financial information was exposed while 17 shopping at national retail stores such as T.J. Maxx and Marshalls. See In re: TJX Companies 18 Retail Security Breach Litigation, MDL 1838 (D. Mass.). Weiss & Lurie also was co-counsel in 19 In re: Department of Veterans' Affairs Data Theft Litigation, MDL 1796 (D.D.C.), which 20 resulted in the settlement of the claims alleged in that case for $20 million, the largest settlement 21 to date against a government entity for privacy law violations. The firm also possesses the 22 resources necessary to prosecute litigation of this scale and is committed to doing so. This Court 23 may be assured that the Class will receive the highest caliber of legal representation available. 24 Accordingly, Plaintiff Moskowitz respectfully requests that this Court appoint her as a
25 Co-Lead Plaintiff and appoint her counsel as Plaintiff's Co-Lead Counsel. 26 IV. 27 CONCLUSION For all the foregoing reasons, Plaintiff Moskowitz respectfully requests that this Court
28 consolidate all cases alleging similar claims against Facebook and/or Zynga, including her case, 4
1 with this action. Plaintiff also respectfully requests that this Court appoint her as a Co-Lead 2 Plaintiff and appoint her counsel as Plaintiff's Co-Lead Counsel. 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 5 OF COUNSEL: WEISS & LURIE Joseph H. Weiss, Esq. Mark D. Smilow, Esq. Julia J. Sun, Esq. 551 Fifth Avenue, Suite 1600 New York, NY 10176 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 *Pro hac vice admission pending Attorneys for Plaintiff Barbara Moskowitz and Proposed Co-Lead Counsel for the Class /s/ - Jordan L. Lurie Jordan L. Lurie 10940 Wilshire Boulevard, 23rd Floor Los Angeles, CA 90024 Telephone: (310) 208-2800 Facsimile: (310) 209-2348 Dated: November 22, 2010 WEISS & LURIE Jordan L. Lurie Leigh A. Parker Joel E. Elkins
CERTIFICATE OF SERVICE I, Jordan L. Lurie, hereby certify that on November 22, 2010, I caused to be electronically
3 filed the foregoing Plaintiff Moskowitz's Response to This Court's November 15, 2010 Order Re: 4 Consolidation of Related Cases and Appointment of Co-Lead Plaintiff and Co-Lead Counsel with 5 the Clerk of the Court using the CM/ECF System. Notice of this filing is sent to the following 6 parties by operation of the Court's electronic filing system: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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