"In Re: Facebook Privacy Litigation"

Filing 58

MOTION to Consolidate Cases for All Purposes and to Address Related Issues in Response to Court's November 12, 2010 and 53 Order November 19, 2010 filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Brown, Matthew) (Filed on 11/22/2010) Modified on 11/23/2010 (cv, COURT STAFF).

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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.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IN RE: FACEBOOK PRIVACY LITIGATION

Case No. 10-cv-02389-JW DEFENDANT FACEBOOK, INC.'S NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES FOR ALL PURPOSES AND TO ADDRESS RELATED ISSUES IN RESPONSE TO COURT'S NOVEMBER 12, 2010 AND NOVEMBER 19, 2010 ORDERS Date: November 22, 2010 Dept: Courtroom 8 Judge: Hon. James Ware

_____________________________________ NANCY WALTHER GRAF, Plaintiff, v. ZYNGA GAME NETWORK, INC., Defendant. _____________________________________

Trial Date: Not Yet Set Case No. 10-cv-04680-JW

FACEBOOK'S MOT. TO CONSOLIDATE NO. 10-CV-02389-JW

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SHELLEY ALBINI, Plaint iff, v. ZYNGA GAME NETWORK, INC. AND DOES 1-50, INCLUSIVE, Defendants. _____________________________________ VALERIE GUDAC and RICHARD BEILES, Plaint iffs, v. ZYNGA GAME NETWORK, INC., Defendant. _____________________________________ HOWARD L. SCHREIBER, Plaint iff, v. ZYNGA GAME NETWORK, INC., Defendant. _____________________________________ JOHN SWANSON, Plaint iff, v. ZYNGA GAME NETWORK, INC., Defendant. _____________________________________ ZENA CARMEL-JESSUP, Plaint iff, v. FACEBOOK, INC. and ZYNGA GAME NETWORK, INC., Defendants. _____________________________________

Case No. CV-10-04723-JW

Case No. 10-cv-04793-JW

Case No. 10-cv-04794-JW

Case No. 10-cv-04902-JW

Case No. 10-cv-04930-JW

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IRIS PHEE and WILLIAM J. OHARA, Plaint iffs, v. FACEBOOK, INC. and ZYNGA GAME NETWORK, INC., Defendants. _____________________________________ KAREN BRYANT and CHRISTOPHER BROCK, Plaint iffs, v. FACEBOOK, INC., AND ZYNGA GAME NETWORK, INC., Defendants.

Case No. 10-cv-04935-JW

Case No. 10-CV-05192-JW

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TABLE OF CONTENTS Page I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 RELEVANT FACTS & PROCEDURAL HISTORY.......................................................4 A. The First Two Complaints Against Facebook Alleging the Transmission of User IDs Via "Referrer Headers" When Individuals Click on Ads on facebook.com.......................................................................................................4 B. Subsequent Complaints Against Facebook and Zynga Alleging the Transmission of User IDs Via "Referrer Headers" When Individuals Use Applications, Such as Games Designed by Zynga, Accessed From facebook.com.......................................................................................................5 C. Subsequent Complaints Against Facebook and Zynga Involving Both Species of "Referrer Header" Allegations.............................................................6 ARGUMENT .................................................................................................................. 6 A. Legal Standard ..................................................................................................... 6 B. The Ten Cases Share Common Questions of Law and Fact, Common Defendants, and Substantially Similar and Overlapping Putative Classes ............. 7 C. Conso lidat ion Would Eliminate the Risk of Inconsistent Results and Serve the Interests of Efficiency and Economy .............................................................. 8 D. Plaint iffs Should File a Consolidated Amended Complaint ................................ 10 E. Lead Plaintiff and Lead Counsel ........................................................................ 10 F. Discovery........................................................................................................... 11 G. Case Schedule....................................................................................................11 H. Possible Dismissal of Facebook in Certain Cases and Impact on Consolidation.....................................................................................................11 CONCLUSION ............................................................................................................. 12

III.

IV.

i.

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TABLE OF AUTHORITIES Page(s) CASES Backe v. Novatel Wireless, Inc., No. 08-CV-01689-H (RBB), 2008 WL 5214262 (S.D. Cal. Dec. 10, 2008) ........................... 9 Burnett v. Rowzee, No. SACV07-641 DOC (ANx), 2007 WL 4191991 (C.D. Cal. Nov. 26, 2007)..................8, 9 Huene v. U.S., 743 F.2d 703 (9th Cir. 1984) ................................................................................................. 7 Hutchens v. Alameda County Social Servs. Agency, No. C 06-06870 SBA, 2008 WL 927899 (N.D. Cal. Apr. 4, 2008).........................................8 In re Equity Funding Co. of Am. Sec. Litig., 416 F. Supp. 161 (C.D. Cal. 1976).......................................................................................10 Indiana State Dist. Council of Laborers and HOD Carriers Pension Fund v. Gecht, No. C-06-7274 EMC, 2007 WL 902554 (N.D. Cal. Mar. 22, 2007) ................................... 6, 7 Investors Research Co. v. U.S. Dist. Ct. for Central Dist. of Cal., 877 F.2d 777 (9th Cir. 1989) ................................................................................................. 7 Osher v. JNI Corp., No. 01-CV-0557-J (NLS), 2001 WL 36176415 (S.D. Cal. July 10, 2001)..............................8 Siegall v. Tibco Software, Inc., No. C 05-2146 SBA, 2006 WL 1050173 (N.D. Cal. Feb. 24, 2006).......................................7 Team Enters., LLC v. W. Inv. Real Estate Trust, No. 08-cv-00872 LJO-SMS, 2008 WL 4712759 (E.D. Cal. Oct. 23, 2008) ............................ 7 Townsley v. Hydro Intern. LLC, No. CV10-2212-AHM (RZx), 2010 WL 3070387 (C.D. Cal. Aug. 2, 2010) .......................... 8 STATUTES 18 U.S.C. § 2511.........................................................................................................................8 18 U.S.C. § 2701.........................................................................................................................7 California Business & Professions Code § 17200 ........................................................................ 8

ii.

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California Civil Code § 1572.......................................................................................................8 California Civil Code § 1573.......................................................................................................8 California Civil Code § 1750.......................................................................................................8 California Penal Code § 502........................................................................................................8 Federal Rules of Civil Procedure Rule 42(a) ......................................................................................................................... 2, 8 Rule 42(a)(2).........................................................................................................................6 Rule 42(a)(3).......................................................................................................................10 OTHER AUTHORITIES 8-42 Moore's Federal Practice - Civil § 42.13(5)(a) (2010) ....................................................... 10

iii.

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NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, pursuant to this Court's Orders dated November 12, 2010 (Case No. 10-cv-02389-JW, Dkt. No. 47) and November 19, 2010 (Case No. 10-cv-02389-JW, Dkt. No. 53), requesting briefing, to be filed on or before November 22, 2010, on whether certain related cases should be consolidated into In re: Facebook Privacy Litigation and on the appointment of Lead Plaintiffs and Lead Counsel--which briefing, under the Court's Orders, the Court will take under submission without oral argument--Defendant Facebook, Inc. ("Facebook") hereby moves for an order providing the following: 1. The following ten cases shall be consolidated for all purposes: 2. In re: Facebook Privacy Litigation, No. 10-cv-02389-JW; Marfeo v. Facebook, No. 10-cv-_____1; Graf v. Zynga, No. 10-cv-04680-JW; Albini v. Zynga, No. 10-cv-04723-JW; Gudac & Beiles v. Zynga, No. 10-cv-04793-JW; Schreiber v. Zynga, No. 10-cv-04794-JW; Swanson v. Zynga, No. 10-cv-04902-JW; Carmel-Jessup v. Facebook & Zynga, No. 10-cv-04930-JW; Phee & O'Hara v. Facebook & Zynga, No. 10-cv-04935-JW; and Bryant & Brock v. Facebook & Zynga, No. 10-cv-05192-JW;

Plaint iffs shall file and serve a single consolidated amended complaint;

1

Marfeo v. Facebook, was originally filed on June 17, 2010 in the District of Rhode Island and served on October 13, 2010. Marfeo filed a First Amended Complaint on October 18, 2010. (Case No. 10-cv-00262-S-LDA, Dkt. No. 2.) The District of Rhode Island issued an order on November 1, 2010 transferring the action to this Court (Id., Dkt. No. 11), but the case has not yet appeared on this Court's docket. Inasmuch as the clerk in the District of Rhode Island emailed a certified copy of the Order to the clerk in this Court on November 19, 2010, we expect that the case will appear on this Court's docket very soon, at which time the case would be related and consolidated with the other cases in this Court. 1.
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3.

Facebook is relieved of the obligation of filing a response to the individual

complaints currently on file in the cases, and Facebook shall instead a file a response (answer, motion to dismiss, or other response) to the consolidated amended complaint within 30 days after it is filed; 4. Discovery is stayed until a consolidated amended complaint is filed and any

motions to dismiss have been decided; and 5. Lead Counsel for Plaintiffs, counsel for Facebook, and counsel for Zynga shall

meet and confer and submit a joint case management statement, including a proposed case schedule, for the Court's consideration within 30 days of the Court's order regarding consolidation. This motion is made under Federal Rule of Civil Procedure 42(a) and the Court's inherent power to control and manage its docket. This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, and all previous papers and proceedings from the class actions enumerated in subsection No. 1 of this Notice. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In response to the Court's November 12, 2010 and November 19, 2010 Orders calling for briefing by the parties, Facebook hereby requests an order consolidating into a single action the nine putative class actions recently ordered related by this Court as well as a tenth putative class action, Marfeo v. Facebook, Inc., which was recently ordered transferred from the District of Rhode Island to the Northern District of California and involves similar issues and class definitions. The ten cases that should be consolidated are (listed in the order in which they were filed): In re: Facebook Privacy Litigation, No. 10-cv-02389-JW; Marfeo v. Facebook, No. 10-cv-_____; Graf v. Zynga, No. 10-cv-04680-JW; Albini v. Zynga, No. 10-cv-04723-JW; 2.
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Gudac & Beiles v. Zynga, No. 10-cv-04793-JW; Schreiber v. Zynga, No. 10-cv-04794-JW; Swanson v. Zynga, No. 10-cv-04902-JW; Carmel-Jessup v. Facebook & Zynga, No. 10-cv-04930-JW; Phee & O'Hara v. Facebook & Zynga, No. 10-cv-04935-JW; and Bryant & Brock v. Facebook & Zynga, No. 10-cv-05192-JW.

There is good cause for consolidating all of these cases for all purposes. First, there is commonality of parties inasmuch as the cases all name Facebook, Zynga, or both as defendants. Facebook is a defendant in five of the ten cases, and Zynga is a defendant in nine of the ten cases. Second, the cases allege substantially similar and overlapping class definitions. Third, all of the claims in these cases arise from allegations that "referrer headers" within some users' web browsers caused user information to be sent to third parties when users took certain actions on facebook.com or within applications on Facebook's online social networking platform. Fourth, the cases raise related and overlapping legal issues and causes of action. Fifth, consolidating these cases and having plaintiffs file a single consolidated amended complaint will avoid the significant possibility of inconsistent results, and will promote efficiency and economy by streamlining discovery, vastly reducing the motions and filings that would otherwise occur, and substantially reducing unnecessary and duplicative burden and expense. Sixth, consolidation at this early stage of proceedings will neither prejudice nor inconvenience the parties or the Court. Facebook emphasizes that there is only one way to consolidate these cases that will avoid inconsistent results and that will maximize efficiency and economy. Specifically, as discussed below, all cases should be consolidated into In re Facebook Privacy Litigation, No. 10-cv-02389JW. There should not be two separate sets of litigation because, as currently pled, there is no principled way of segregating the cases that would not end up forcing Facebook to litigate the same issues on two fronts and to face the risk of inconsistent results. If Facebook were dismissed from the cases alleging transmission of User IDs in connection with the use of applications, such as Zynga games, on the Facebook Platform--and instead Facebook only faced allegations

3.

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concerning transmission of User IDs when users clicked on third-party ads on facebook.com-- then Facebook's position on consolidation may be different (see section III.H below). II. RELEVANT FACTS & PROCEDURAL HISTORY A. The First Two Complaints Against Facebook Alleging the Transmission of User IDs Via "Referrer Headers" When Individuals Click on Ads on facebook.com.2

On May 28, 2010 and June 1, 2010, two plaintiffs, David Gould and Mike Robertson, filed separate class actions against Facebook making substantially the same allegations relating to referrer headers and the disclosure of Facebook User IDs to third parties. The parties stipulated to consolidation of the two cases, and agreed that "[a]ll subsequently filed class or individual actions against the Defendant alleging the same or similar claims as alleged in the complaints in Consolidated Actions shall be consolidated under the [the same case caption and case number]." (Case No. 10-cv-02389-JW, Dkt. No. 23, ¶ 4.) On August, 20, 2010, this Court ordered

consolidation of those cases under the caption "In re: Facebook Privacy Litigation." (Case No. 10-cv-02389-JW, Dkt. No. 23, ¶ 1.) As it was first filed, Case No. 10-cv-02389-JW was

designated as the lead case for consolidation purposes. The Court appointed as co-lead counsel Michael Aschenbrener of Edelson McGuire LLC and Kassra Nassiri of Nassiri & Jung LLP, but "reserve[d] the right to modify appointment of counsel in the event that the nature of the case necessitates alteration of appointment." (Id. ¶ 3.) On October 11, 2010, plaintiffs filed a Consolidated Class Action Complaint ("CCAC"), which primarily alleges that in certain instances, when individuals clicked on third-party advertising links on facebook.com, their browsers would cause certain information to be transmitted to those third parties via html code called a "referrer header." (CCAC ¶¶ 28, 35.) The referrer header contained the address of the web page the user had been viewing when he or she clicked on the ad, which sometimes contained the user's unique Facebook User ID ("UID").

2

For the Court's convenience, Facebook has attached as Exhibit A a chart identifying all of the cases and the claims being made in each case. As the chart makes clear, there is substantial similarity and overlap of parties, factual and legal issues, and causes of action (in some instances, virtually identical). 4.
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(Id. ¶ 28.)

According to the CCAC, this allowed third parties to obtain information from

Facebook users' profile pages without their consent. (Id. ¶¶ 29-33, 36.) B. Subsequent Complaints Against Facebook and Zynga Alleging the Transmission of User IDs Via "Referrer Headers" When Individuals Use Applications, Such as Games Designed by Zynga, Accessed From facebook.com.

In addition to operating the website at facebook.com, Facebook, through the operation of the Facebook Platform, enables third-party developers to deploy applications for use by Facebook users. Shortly after the CCAC was filed in In re: Facebook Privacy Litigation, an article in the Wall Street Journal reported that developers who create applications for use on the Facebook Platform, such as co-defendant Zynga, experienced a similar issue with referrer headers in their applications. According to the article, when Facebook users used certain applications, including games developed by Zynga,3 their browsers sent referrer headers containing Facebook UIDs to third parties. Facebook and Zynga were named in multiple class actions. Facebook and Zynga were the two named defendants in Albini, No. 10-cv-047234 and Carmel-Jessup, No. 10-cv-04930.5 Zynga was named as a defendant in Graf, No. 10-cv-04680, Gudac, No. 10-cv-04793, Schreiber, No. 10-cv-04794, and Swanson, No. 10-cv-04902. The six co mplaints made essentially identical allegations, claiming that Zynga and, where named, Facebook were liable for the transmission of UIDs to third parties via referrer headers when users played Zynga games. As in the cases alleging transmission of UIDs to third parties in connection with clicking on third-party ads, these cases also allege that the transmission of UIDs allowed third parties to obtain information about users and their activities online.

3

The Complaints often refer not only to Zynga, but to application developers generally. For the sake of brevity, however, this brief discusses the allegations by referring to Zynga only.
4 5

Facebook has since been dismissed as a named defendant in Albini.

Facebook and Zynga are also named defendants in a putative class action filed in state court that makes the same factual allegations and was filed by the same lawyers as the Carmel-Jessup case. Scherek v. Facebook & Zynga, No. CGC-504986 (Cal. Superior Ct., Cty. of San Francisco). 5.
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C.

Subsequent Complaints Against Facebook and Zynga Involving Both Species of "Referrer Header" Allegations.

Three of the ten cases--Marfeo, No. 10-cv-____6, Phee, No. 10-cv-04935, and Bryant, No. 10-cv-05192--involve both species of the referrer header allegations discussed in sections A and B above. Facebook is a named defendant in all three cases, and Zynga is a named defendant in two of the three cases. The complaints in these cases contain allegations and class definitions that are virtually identical to the allegations and class definitions in all o f the other seven cases, which further demonstrates why all of the cases should be consolidated into one single action, and why it is impossible to segregate the cases into two sets of cases without forcing Facebook to litigate the same issues on two fronts and to face the risk of inconsistent results. (See Exs. A & B, attached hereto.) III. ARGUMENT The ten putative class actions, all alleging that Facebook user information was improperly disclosed via the referrer headers that web browsers send when users navigate the Internet, should be consolidated for all purposes. The cases present common questions of law and fact, and consolidation will promote the interests of efficiency and economy, will eliminate the significant risk of inconsistent results, and will not cause prejudice or inconvenience to the parties or this Court. A. Legal Standard

"If actions before the court involve a common question of law or fact, the court may . . . consolidate the actions . . . ." Fed. R. Civ. P. 42(a)(2). "[T]he main question for a court in deciding whether to consolidate is whether there is a common question of law or fact." Indiana

6

Marfeo v. Facebook, was originally filed on June 17, 2010 in the District of Rhode Island and served on October 13, 2010. Marfeo filed a First Amended Complaint on October 18, 2010. (Case No. 10-cv-00262-S-LDA, Dkt No. 2.) The District of Rhode Island issued an order on November 1, 2010 transferring the action to this Court (Id., Dkt No. 11), but the case has not yet appeared on this Court's docket. Inasmuch as the clerk in the District of Rhode Island emailed a certified copy of the Order to the clerk in this Court on November 19, 2010, we expect that the case will appear on this Court's docket very soon, at which time the case would be related and consolidated with the other cases in this Court. 6.
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State Dist. Council of Laborers and HOD Carriers Pension Fund v. Gecht, No. C-06-7274 EMC, 2007 WL 902554, at *1 (N.D. Cal. Mar. 22, 2007). "The purpose of consolidation is to avoid the unnecessary costs or delays that would ensue from proceeding separately with claims or issues sharing common aspects of law or fact." Siegall v. Tibco Software, Inc., No. C 05-2146 SBA, 2006 WL 1050173, at *2 (N.D. Cal. Feb. 24, 2006). Further, consolidation serves "to avoid inconsistent adjudications." Team Enters., LLC v. W. Inv. Real Estate Trust, No. 1:08-cv-00872 LJO-SMS, 2008 WL 4712759, at *1 (E.D. Cal. Oct. 23, 2008). "The district court has broad discretion under . . . Rule [42(a)] to consolidate cases pending in the same district." Investors Research Co. v. U.S. Dist. Ct. for Central Dist. of Cal., 877 F.2d 777 (9th Cir. 1989). While "exercising its broad discretion to order consolidation of actions," a district court also "weighs the saving of time and effort consolidation would produce against any inconvenience, delay, or expense that it would cause." Huene v. U.S., 743 F.2d 703, 704 (9th Cir. 1984). B. The Ten Cases Share Common Questions of Law and Fact, Common Defendants, and Substantially Similar and Overlapping Putative Classes.

As discussed above, all of the claims in these ten cases arise from allegations that referrer headers within some users' web browsers caused user information to be sent to third parties when users took certain actions on facebook.com or within applications running on the Facebook Platform. Additionally, there is commonality of parties inasmuch as Facebook is a defendant in five of the ten cases, and Zynga is a defendant in nine of the ten cases. Further, the cases involve substantially similar and overlapping putative classes. (For ease of reference, Facebook has prepared two charts, which are attached hereto as Exhibits A and B. Exhibit A summarizes the parties, factual allegations, and legal claims in each of the ten cases. Exhibit B summarizes the class definitions alleged in each of the ten cases.) For these reasons alone, there is good cause for consolidating all cases for all purposes. In addition to these common factual issues, parties, and putative classes, the cases involve common legal issues, with many of the cases alleging the same statutory and common-law causes of action. As indicated on the chart submitted for the Court's convenience as Exhibit A, all ten 7.
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cases allege that disclosure of UIDs is a violation of the Stored Communications Act, 18 U.S.C. § 2701 et seq., as well as a breach of contract. Nine of the cases allege a violation of California Business and Professions Code § 17200 et seq., as well as claims for unjust enrichment. Additionally, eight of the cases allege violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et seq., and violation of California Business & Professions Code § 17200 et seq. Beyond this, multiples cases allege violation of California Penal Code § 502, violation of the California Consumers Legal Remedies Act, California Civil Code § 1750, et seq., and fraud under California Civil Code §§ 1572 and 1573. Even if the cases did not involve so many of the same causes of action, consolidation is appropriate if some common questions exist. See Osher v. JNI Corp., No. 01-CV-0557-J (NLS), 2001 WL 36176415, at *2 (S.D. Cal. July 10, 2001) (finding that Rule 42 does not "require[] that the actions be identical before they may be consolidated"). Where, as here, common questions of law and fact exist, consolidation is appropriate and may not be overcome merely because of the existence of some differing legal claims or, in a handful of cases, where only Facebook or Zynga, but not both, is named as a defendant. See Hutchens v. Alameda County Social Servs. Agency, No. C 06-06870 SBA, 2008 WL 927899, at *2 (N.D. Cal. Apr. 4, 2008) (consolidating cases against separate defendants where "[t]he same facts are at issue in both cases," "[t]he legal issues are the same or similar," and "the relief sought is similar in both cases"); see also Townsley v. Hydro Intern. LLC, 2010 WL 3070387, at *2 (C.D.Cal. Aug. 2, 2010) (granting consolidation of complaints filed against different defendants, noting Rule 42(a) does not require representation of all defendants by the same attorneys). C. Consolidation Would Eliminate the Risk of Inconsistent Results and Serve the Interests of Efficiency and Economy.

Because the cases arise from a the same core set of factual allegations, raise similar and overlapping legal issues, and involve similar and overlapping putative classes, divided proceedings create a significant risk of potentially inconsistent results. See Burnett v. Rowzee, No. SACV07-641 DOC (ANx), et al., 2007 WL 4191991, at *3 (C.D. Cal. Nov. 26, 2007) (finding a common factual issue and holding that "[t]he real risk of inconsistent judgments arises if the parties are allowed to proceed with dispositive motions or trial in an uncoordinated 8.
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manner"). Consolidation will therefore serve the interests of justice by eliminating the potential for inconsistent results. Conso lidat ion will also significantly streamline the discovery process and burden for both parties. The similar facts alleged in the cases will give rise to substantially similar discovery requests. For instance, plaintiffs in all cases will likely seek discovery regarding how referrer headers are created and what information is contained therein. Streamlining this discovery would create significant benefits for all parties. See Backe v. Novatel Wireless, Inc., No. 08-CV-01689H (RBB), 2008 WL 5214262, at *2 (S.D. Cal. Dec. 10, 2008) (consolidating in part "[b]ecause the related actions are based on the same facts and involve the same subject matter, the same discovery will be relevant to both lawsuits"). Conso lidat ion will also allow the Court to avoid unnecessary time and effort presiding over duplicative motions to dismiss, class certification proceedings, discovery matters, and other motions and proceedings that will arise in each case if these matters are not consolidated. The parties and Court will not, however, realize these benefits if the nine subsequently filed cases are consolidated separately from In re: Facebook Privacy Litigation. As discussed in section II.C above, three of the subsequent nine cases encompass both species of referrer header allegations and name Facebook as a defendant. (See Ex. A hereto.) Thus, a separate

consolidation, "In re: Zynga Privacy Litigation," would be a misnomer because Facebook would be a defendant in that litigation, and it would not prevent inconsistent results or create the same judicial efficiencies as consolidating all of the actions with In re Facebook Privacy Litigation.7 For instance, if the Court were to consolidate Marfeo, Phee, or Bryant into a separate action, along with the cases naming only Zynga as a defendant, it would still have to determine facts and legal questions already at issue in In re Facebook Privacy Litigation. Therefore, given the way the cases are currently pled, the only way to capture the benefits that consolidation offers is to consolidate all of the ten cases into one action.

7

The consolidated action would benefit from being renamed, since Zynga would be a defendant in addition to Facebook. 9.
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Finally, there will be no prejudice or inconvenience to Plaintiffs or the Court, particularly given that all Plaintiffs are in the same, early stage of the proceedings. See Burnett, 2007 WL 4191991, at *3 (finding no prejudice where "no case is close to trial" and all of the cases to be consolidated arose within a four-month period so that "the risk of prejudice due to cases being at different stages of preparation is minimal"). D. Plaintiffs Should File a Consolidated Amended Complaint.

Upon consolidating these cases, the Court has the discretion to order Plaintiffs to file a consolidated amended complaint. See Fed. R. Civ. P. 42(a)(3); In re Equity Funding Co. of Am. Sec. Litig., 416 F. Supp. 161, 176-77 (C.D. Cal. 1976) (court has power to order consolidated pleadings where it would tend to avoid unnecessary cost or delay and would not cause serious prejudice to a party's rights). Facebook suggests that having Plaintiffs file a consolidated

amended complaint would be the most sensible course after consolidation. Otherwise, the Court will face ten separate complaints, without any coordination between the plaintiffs, causes of action, or allegations. This is a common procedure in consolidated class actions because having one coherent pleading provides clarity and reduces burdens on both the Court and the parties. "As a management tool for complex litigation, the consolidated complaint has been found to have significant advantages." 8-42 Moore's Federal Practice ­ Civil § 42.13(5)(a) (2010) (identifying advantages to pretrial proceedings such as eliminating the need for multiple answers, streamlining discovery, and eliminating confusion). See also In re Equity Funding, 416 F. Supp. at 176 (finding that a consolidated complaint avoided unnecessary costs and delay, allowed the court "to receive memoranda and hear argument directed to one coherent pleading," made "consideration of class action issues . . . considerably easier," "lessened" the "burdens of discovery management," and made "clerical and administrative matters . . . much less burdensome"). E. Lead Plaintiff and Lead Counsel

Facebook takes no position at this time regarding the Court's appointment of Lead Plaintiff or Lead Counsel, and notes that the Court will be receiving briefs from Plaintiffs addressing this topic.

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FACEBOOK'S MOT. TO CONSOLIDATE NO. 10-CV-02389-JW

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F.

Discovery

On the same date as this Court's Order relating eight of the ten cases, Plaintiffs in In re: Facebook Privacy Litigation recent ly served interrogatories and requests for production on Facebook. Facebook's written responses are due on December 13, 2010, absent an extension of time. Facebook suggests that upon consolidation, it would be within the discretion o f the

appointed Lead Counsel to determine, in that role, whether to withdraw this discovery, in lieu of propounding other discovery. At a minimum, Facebook requests that the Court stay discovery until a consolidated amended complaint is filed and any motions to dismiss have been decided, so that discovery can be tailored to the allegations of the operative complaint. G. Case Schedule

Upon consolidation, Facebook would ask the Court to set a deadline for Plaintiffs to file a consolidated amended complaint, with Facebook's response due within 30 days after it is filed. Facebook believes that upon consolidation, some adjustment of the current case schedule in In re: Facebook Privacy Litigation would be appropriate. Facebook would suggest that Plaintiffs' Lead Counsel, Facebook, and Zynga meet and confer and submit a joint case management statement, including a proposed case schedule, for the Court's consideration within 30 days of the Court's Order regarding consolidation. H. Possible Dismissal of Facebook in Certain Cases and Impact on Consolidation

There has been some discussion as to whether Facebook is an appropriate defendant in cases alleging transmission of UIDs in connection with use of applications, such as Zynga games, on the Facebook Platform. Facebook is presently a defendant in four such cases: Marfeo, If the Marfeo complaint were amended to remove such

Carmel-Jessup, Phee, and Bryant.

allegations against Facebook, and if Facebook were dismissed from the other three cases, then Facebook may have a different position on the question of whether all ten cases should be consolidated for all purposes. Facebook's position would more likely be that only Marfeo should be consolidated with In re: Facebook Privacy Litigation, and that the remaining cases (which,

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FACEBOOK'S MOT. TO CONSOLIDATE NO. 10-CV-02389-JW

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after Facebook's dismissal, would name only Zynga as a defendant) should be consolidated separately as "In re: Zynga Privacy Litigation." Even so, Facebook would strongly urge that the Court enter an order requiring that any third-party discovery propounded to Facebook by Plaintiffs in the cases against Zynga be handled in a consolidated manner on behalf of all plaintiffs, so that Facebook would not end up facing uncoordinated and duplicative discovery from a number of separate plaintiffs. If cases naming Facebook and alleging transmission of UIDs in connection with use of applications were subsequently filed, Facebook would reserve the right to be heard again on the question of consolidation. IV. CONCLUSION For these reasons, Facebook respectfully requests that this Court enter an order providing the following: 1. The following ten cases shall be consolidated for all purposes: 2. 3. In re: Facebook Privacy Litigation, No. 10-cv-02389-JW; Marfeo v. Facebook, No. 10-cv-_____; Graf v. Zynga, No. 10-cv-04680-JW; Albini v. Zynga, No. 10-cv-04723-JW; Gudac & Beiles v. Zynga, No. 10-cv-04793-JW; Schreiber v. Zynga, No. 10-cv-04794-JW; Swanson v. Zynga, No. 10-cv-04902-JW; Carmel-Jessup v. Facebook & Zynga, No. 10-cv-04930-JW; Phee & O'Hara v. Facebook & Zynga, No. 10-cv-04935-JW; and Bryant & Brock v. Facebook & Zynga, No. 10-cv-05192-JW;

Plaint iffs shall file and serve a single consolidated amended complaint; Facebook is relieved of the obligation of filing responses to the individual

complaints currently on file in the cases, and Facebook shall instead a file a response (answer, motion to dismiss, or other response) to the consolidated amended complaint within 30 days after it is filed; 12.
FACEBOOK'S MOT. TO CONSOLIDATE NO. 10-CV-02389-JW

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4.

Discovery is stayed until a consolidated amended complaint is filed and any

motions to dismiss have been decided; and 5. Lead Counsel for Plaintiffs, counsel for Facebook, and counsel for Zynga shall

meet and confer and submit a joint case management statement, including a proposed case schedule, for the Court's consideration within 30 days of the Court's order regarding consolidation. Dated: November 22 , 2010 COOLEY LLP MICHAEL G. RHODES (116127) MATTHEW D. BROWN (196972) JAMES M. PENNING (229727)

/s/ Matthew D. Brown Matthew D. Brown (196972) Attorneys for Defendant FACEBOOK, INC.

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FACEBOOK'S MOT. TO CONSOLIDATE NO. 10-CV-02389-JW