"In Re: Facebook Privacy Litigation"

Filing 64

RESPONSE to Court 47 order Dated November 12, 2010 Requesting Court Separately Consolidate Related Cases as In Re: Zynga Privacy Litigation, Designate Lead Plaintiffs and Appoint Co-Lead Counsel filed by Valerie Gudac, Richard Beiles. (Attachments: # 1 Affidavit Declaration of Adam J. Levitt In Support of Majority Group Plaintiffs' Response to Court order Dated November 12, 2010 Requesting court Separately Consolidate Related Cases as In Re: Zynga Privacy Litigation, Designate Lead Plaintiffs and Appoint Co-Lead Counsel, # 2 Declaration of Service)(Gregorek, Francis) (Filed on 11/23/2010) Modified on 11/23/2010 (cv, COURT STAFF).

Gould v. Facebook, Inc.

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FRANCIS M. GREGOREK (144785) [e-mail] BETSY C. MANIFOLD (182450) [e-mail] RACHELE R. RICKERT (190634) [e-mail] PATRICK H. MORAN (270881) [e-mail] WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: [phone] Facsimile: 619/234-4599 Attorneys for Plaintiffs [Additional Counsel Appear on Signature Page] IN THE UNITED STATE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Nancy Graf, ___________________________________/ Shelly Albini, ___________________________________/ Valerie Gudac, et al., ___________________________________/ Howard L. Schreiber, ___________________________________/ John Swanson, ___________________________________/ Zena Carmel-Jessup, ___________________________________/ Iris Phee, et al., ___________________________________/ Karen Bryant, et al., Plaintiffs, v. Zynga Game Network, Inc., et al. Defendants. ___________________________________/ THIS DOCUMENT RELATES TO: ALL ACTIONS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. C 10-04680 WHA NO. C 10-04723 JL NO. C 10-04793 EMC NO. C 10-04794 JCS NO. C 10-04902 HRL NO. C 10-04930 MEJ NO. C 10-04935 SC No. C 10-05192 PVT PLAINTIFFS' RESPONSE TO COURT ORDER DATED NOVEMBER 12, 2010 REQUESTING COURT SEPARATELY CONSOLIDATE RELATED CASES AS IN RE: ZYNGA PRIVACY LITIGATION, AND DESIGNATE LEAD PLAINTIFFS AND APPOINT CO-LEAD COUNSEL Date: Time: Judge: N/A N/A. Hon. James Ware

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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 I. II.

TABLE OF CONTENTS INTRODUCTION AND PROCEDURAL HISTORY........................................................... 1 CONSOLIDATION................................................................................................................ 3 A. The Zynga Cases Should Be Consolidated With One Another .......................................... 3 B. The Zynga Cases Should Not Be Consolidated With In Re Facebook............................... 4 1. The Zynga Cases and In Re Facebook Allege Different Disclosing Parties .................. 4 2. The Zynga Cases and In Re Facebook Allege Different PII Recipients......................... 4 3. The Zynga Cases and In Re Facebook Allege Breaches of Different Privacy Policies............................................................................................................... 5 4. The Zynga Cases and In Re Facebook Allege Different Plaintiff Classes ..................... 5 5. The Zynga Cases and In Re Facebook Allege Different Modes of PII Transmission......................................................................................................... 6 6. Consolidating the Zynga Cases With In Re Facebook Will Impede Judicial Efficiency ............................................................................................. 7 7. Consolidating the Zynga Cases With In Re Facebook Will Prejudice Plaintiffs in the Zynga Cases .......................................................................................... 8 8. There Is No Risk of Inconsistent Judgments .................................................................. 9 9. Any Purported Benefits to be Gained Through Consolidating the Zynga Cases With In Re Facebook Can Be Better Achieved Through Coordination ­ Plaintiffs' Counsel Have Already Shown a Willingness to Engage in Such Coordination .................................................................................... 9 III. LEADERSHIP ...................................................................................................................... 11 A. Lead Plaintiffs................................................................................................................... 11 B. Co-Lead Counsel .............................................................................................................. 11 1. Legal Standards For Appointment Under Rule 23(g)................................................... 12 2. Argument ...................................................................................................................... 14 (A) Proposed Co-Lead Counsel Satisfy The Rule 23(g)(1)(A) Factors For Appointment As Co-Lead Counsel....................................................................... 14 (1) Proposed Co-Lead Counsel have extensively investigated the alleged sales and/or distribution of PII in this litigation and have substantially directed the overall development of the legal claims involved. ...... 14 (2) Proposed Co-Lead Counsel's experience in handling class actions and other complex litigation ­ as well as their extensive knowledge of the applicable law, resulting from their extensive experience in the Internet privacy field ­ supports their requested leadership appointment here.................. 15 a. Adam J. Levitt, Wolf Haldenstein Adler Freeman & Herz LLC ................ 16 b. Jonathan Shub, Seeger Weiss LLP ............................................................. 19 c. Michael Aschenbrener, Edelson McGuire LLC.......................................... 20 (3) Proposed Co-Lead Counsel have and will continue to commit significant resources on behalf of the Class.......................................................... 21
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Strong Support for Proposed Co-Lead Counsel's Undisputed Leadership and the Resulting Proposed Three-Firm Lead Structure Are Additional Pertinent Facts Favoring Their Appointment Under Rule 23(g)(1)(B). ........ 21, 22 IV. CONCLUSION..................................................................................................................... 23

(B)

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TABLE OF AUTHORITIES CASES PAGE Alley v. Chrysler Credit Corp., 767 F.2d 138 (5th Cir. 1985) ...................................................................................................... 7 Blumofe v. Pharmatrak, Inc. (In re Pharmatrak, Inc. Privacy Litig.), 329 F.3d 9 (1st Cir. 2003)......................................................................................................... 17 Campbell v. PricewaterhouseCoopers, LLP, Nos. CIV. S-06-2376, CIV. S-080965, CIV. S-08-997, 2008 U.S. Dist. LEXIS 75756 (E.D. Cal. Aug. 14, 2008) .......................................................... 9 Chance v. Avenue A, Inc., 165 F. Supp. 2d 1153 (W.D. Wash. 2001)................................................................................ 17 Gaddy v. Elmcroft Assisted Living, Nos. 3:04CV36, 3:04CV309, 3:04CV458, 2005 U.S. Dist. LEXIS 44471 (W.D.N.C. Nov. 2, 2005)........................................................... 7 In re Air Cargo Shipping Serv. Antitrust Litig., 240 F.R.D. 56 (E.D.N.Y. 2006) ................................................................................................ 13 In re Amazon.Com, Inc./Alexa Internet Privacy Litigation, MDL 1346 (W.D. Wash. filed Feb. 11, 2000).......................................................................... 17 In re Apple & AT&TM Antitrust Litigation, No. C 07-5152 JW (N.D. Cal. Apr. 15, 2008) (ECF No. 100) ................................................. 18 In re ATI Tech. HDCP Litig., Case No. 5:06-CV-01303 JW (N.D. Cal. Apr. 18, 2006) ......................................................... 23 In re Comdisco Sec. Litig., 150 F. Supp. 2d 943 (N.D. Ill. 2001) ........................................................................................ 18 In re Dole S'holders Litig., No. BC281949 (Cal. Super. Ct., Los Angeles County March 28, 2003).................................. 19 In re DoubleClick, Inc. Privacy Litigation, No. 00 Civ. 0641 (S.D.N.Y. filed Jan. 31, 2000)................................................................ 17, 19 In Re Facebook PPC Advertising Litig., Nos. 09-3043, 09-3519, 09-3430 (N.D. Cal. filed July 7, 2009) .............................................. 19 In re Facebook Privacy Litig., No. C 10-02389 JW (N.D. Cal. Aug. 20, 2010) ....................................................................... 22 In Re Genetically Modified Rice Litigation, MDL 1811 (E.D. Mo. filed Dec. 19, 2006) .............................................................................. 16 In re Google, Inc. Street View Elec. Comm'n Litig., No. C 10-MD-02184 JW (N.D. Cal. Oct. 8, 2010)................................................................... 22 In re Jamster Marketing Litig., MDL No. 1751, No. 05-0819 (S.D. Cal. filed April 18, 2005) ................................................ 19 In Re JPMorgan Chase Home Equity Line of Credit Litig., No. 10 C 3647 (N.D. Ill., July 16, 2010) .................................................................................. 21 In re Municipal Derivatives Antitrust Litig., 252 F.R.D. 184 (S.D.N.Y. 2008) .............................................................................................. 23
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In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., MDL 05-1720 (JG) (JO), 2006 U.S. Dist. LEXIS 45727 (E.D.N.Y. Feb. 24, 2006)......................................................... 23 In re Pet Food Prod. Liab. Litig., MDL 1850, No. 07-2867 (NLH) (D.N.J. Nov. 18, 2008)......................................................... 20 In re RealNetworks, Inc. Privacy Litigation, No. 00 C 1366 (N.D. Ill. filed March 5, 2000) ................................................................... 17, 19 In re Repetitive Stress Injury Litig., 11 F.3d 368 (2d Cir. 1993).......................................................................................................... 8 In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 702 (S.D. Fla. 2004)....................................................................................... 16 In re Ticketmaster Entm't S'holder Litig., Co-Lead Case No. BC407677 (Cal. Super. Ct. Los Angeles County filed Feb. 13, 2009) ................................................. 18, 19 In re T-Mobile Sidekick Litig., Case No. 5:09-CV-04854-JW (N.D. Cal. filed Oct. 13, 2009)........................................... 21, 23 In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661 (D. Kan. 2004)................................................................................................. 23 In re: Google Buzz Privacy Litigation, No. 10-CV-0672 (N.D. Cal. filed Feb. 17, 2010) ..................................................................... 19 Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777 (9th Cir. 1989) ...................................................................................................... 3 Jackson v. Ford Consumer Finance Co., Inc., 181 F.R.D. 537 (N.D. Ga. 1998)................................................................................................. 8 Jolly v. Purdue Pharma L.P., Case No. 05-CV-1452 H (POR), 2005 U.S. Dist. LEXIS 44599 (S.D. Cal. Sept. 27, 2005) .......................................................... 9 MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958)........................................................................................................ 11 Owen v. Labor Ready Inc., 146 Fed. Appx. 139 (9th Cir. 2005)............................................................................................ 3 Parkinson v. Hyundai Motor Am., No. SACV 06-345 AHS (MLGx) et al., 2006 U.S. Dist. LEXIS 59055 (C.D. Cal. Aug. 7, 2006).......................................................... 13 Supnick v. Amazon.com, Inc., No. C00-0221P, 2000 U.S. Dist. LEXIS 7073 (W.D. Wash. May 18, 2000)........................... 17 STATUTES Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2510.......................................................................................................................................... 7 RULES Federal Rules of Civil Procedure (Fed. R. Civ. P.) Rule 23(g) .......................................................................................................................... passim Rule 23(g)(3)............................................................................................................................. 12 Rule 23(g)(1)(A) ................................................................................................................. 13, 14
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Rule 23(g)(1)(B) ....................................................................................................................... 13 Rule 23(g)(2)............................................................................................................................. 13 Rule 30(b)(6)............................................................................................................................. 10 Rule 42(a).................................................................................................................................... 3 Rule 42(b) ................................................................................................................................... 9 OTHER AUTHORITIES MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.224..................................................................................................................................... 13 § 11.455..................................................................................................................................... 10 § 11.631....................................................................................................................................... 3 § 21.11....................................................................................................................................... 13 The Sedona Conference, The Sedona Conference Cooperation Proclamation (2008) .................................................... 15

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I.

INTRODUCTION AND PROCEDURAL HISTORY In response to the Court's Order dated November 12, 2010 (the "Related Case Order"),

plaintiffs in six of the eight related cases recently filed against Zynga Game Network, Inc. ("Zynga"), Shelly Albini, Richard Beiles, Nancy Graf, Valerie Gudac, Howard L. Schreiber, and John Swanson (collectively the "Majority Plaintiffs Group"), individually and on behalf of those similarly situated, request the Court not consolidate the actions listed below with In Re Facebook Privacy Litigation, Case No. CV-10-02389-JW ("In Re Facebook"), but rather that the Court consolidate the following eight related cases into a separate action captioned In Re Zynga Litigation, Lead Case No. CV-10-04680-JW: Graf v. Zynga, Case No. CV 10-04680 (filed Oct. 18, 2010); Albini v. Zynga, Case No. CV 10-04723 (filed Oct. 19, 2010); Gudac et al. v. Zynga, Case No. CV 10-04793 (filed Oct. 22, 2010); Schreiber v. Zynga, Case No. CV 10-04794 (filed Oct. 22, 2010); Swanson v. Zynga, Case No. CV 10-04902 (filed Oct. 28, 2010); Carmel-Jessup v. Facebook; Zynga, Case No. CV 10-04930 (filed Oct. 29, 2010); Phee et al. v. Facebook; Zynga, Case No. CV 10-04935 (filed Nov. 1, 2010); and Bryant et al. v. Facebook; Zynga, Case No. CV 10-5192 (filed Nov. 16, 2010). These eight actions shall be collectively referred to herein as the "Zynga Cases."1 All of the Zynga Cases concern allegations that Zynga sold, collected, and/or transmitted the Personally Identifiable Information ("PII") of tens of millions of Americans in violation of both federal and state law, as well as in violation of Zynga's own privacy policy. Zynga is the largest developer of electronic social games in the United States, including such names as FarmVille, Café World, Treasure Isle, Mafia Wars, and Vampire Wars. Plaintiffs and putative Class members played Zynga's games while logged into the Facebook social networking site. Plaintiffs in the three last-filed Zynga Cases are not part of the Majority Plaintiffs Group. These three last-filed cases are: Carmel-Jessup v. Facebook; Zynga, Case No. CV 10-04930; Phee v. Facebook; Zynga, Case No. CV 10-04935-SC; and Bryant et al. v. Facebook; Zynga, Case No. CV 10-5192-PVT. It is the Majority Plaintiffs Group's understanding that counsel for the Phee and Bryant
The Bryant action was not listed in the Related Case Order because it was not filed until November 16, 2010. However, it has been identified to the Court by Zynga as another related case, and was deemed related to the other seven actions listed above in a separate Order dated November 17, 2010.
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plaintiffs will be filing separate submissions in response to the Court's Order proposing different Lead Plaintiffs and different Lead Counsel and that Ms. Carmel-Jessup will be dismissing her lawsuit in its entirety. Significantly, counsel in not less than six of the seven pending Zynga Cases2 agree that those cases should not be consolidated with In Re Facebook and should be consolidated into a separate action.3 In addition, it is plaintiffs' understanding that plaintiffs' counsel in In Re Facebook similarly agree that the pending Zynga Cases should not be consolidated into that action, but instead should collectively be treated as a separate action. See Declaration of Adam J. Levitt in Support of Majority Group Plaintiffs' Response to Court Order Dated November 12, 2010 Requesting Court Separately Consolidate Related Cases as In re: Zynga Privacy Litigation, Designate Lead Plaintiffs and Appoint Interim Class Counsel ("Levitt Decl.") ¶¶ 6-9 (filed concurrently herewith). While there are several reasons plaintiffs here oppose consolidating the Zynga Cases with In Re Facebook, the Majority Plaintiffs Group contend the most significant is that the Zynga Cases do not share sufficient common questions of fact with In Re Facebook, as they are brought on behalf of a separately-defined putative Class. Thus, rather than consolidate with In Re Facebook, the Majority Plaintiffs Group respectfully submits that the Court should consolidate the eight Zynga Cases into a separate action titled In Re: Zynga Litigation, and treat the matters as related to In Re Facebook for purposes of coordinating discovery and motion practice in order to avoid duplication of labor and expense. The Majority Plaintiffs Group also proffer Richard Beiles, Nancy Graf, Howard L. Schreiber, and John Swanson as Lead Plaintiffs, and Adam J. Levitt of Wolf Haldenstein Adler Freeman & Herz LLC, Jonathan Shub of Seeger Weiss LLP, and Michael Aschenbrener of Edelson McGuire LLC as Plaintiffs' Co-Lead Counsel. All of the plaintiffs comprising the Majority Plaintiffs Group, and the twelve law firms representing them, support the nomination of Messrs. Levitt, Shub, and Aschenbrener (collectively, "Proposed Co-Lead Counsel"). Their
Based upon the representations of Ms. Carmel-Jessup's counsel that she will be dismissing her lawsuit, Levitt Decl. ¶ 7, the Majority Plaintiffs Group has excluded that action from further consideration in this Memorandum. Despite Proposed Co-Lead Counsel's repeated efforts to meet and confer with counsel for the Bryant plaintiffs about this consolidation issue, they were unable to obtain a response reflecting those plaintiffs' position prior to the deadline for filing this Memorandum.
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nomination is the result of a comprehensive private ordering process and is the consensus selection of virtually all of the plaintiffs and counsel in these actions ­ with the exception of the Phee and Bryant plaintiffs ­ in light of the work of each in coordinating the prompt advancement of these cases, and each meets the requirements for the appointment of interim class counsel under Federal Rule of Civil Procedure 23(g). Moreover, and as more fully discussed below, lawyers comprising the Proposed Co-Lead Counsel group have extensive experience in the field of Internet privacy class action litigation ­ having been involved in the field from its inception ­ and have led some of the key cases in the field that have been instrumental in developing the jurisprudential framework for this type of litigation. II. CONSOLIDATION A. The Zynga Cases Should Be Consolidated With One Another

The Majority Plaintiffs Group supports consolidation of all Zynga Cases, but opposes consolidating the Zynga Cases with In Re Facebook. Consolidation pursuant to Rule 42(a) is proper when actions involve common questions of law and fact. Fed. R. Civ. P. 42(a); see also
MANUAL FOR COMPLEX LITIGATION (FOURTH) §11.631 (2004) ("MCL 4th"); Owen v. Labor Ready

Inc., 146 Fed. Appx. 139, 141 (9th Cir. 2005). The Court has broad discretion under this rule to consolidate cases pending within this District. See Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777 (9th Cir. 1989). The Zynga Cases all allege claims on behalf of Zynga users whose PII Zynga transmitted to third parties, including advertisers and data brokers, without those users' consent. The Zynga Cases name the same defendant ­ Zynga ­ and involve substantially similar factual and legal issues. Common questions of law and fact include, among others: a. b. c. d. e. The specific methods that Zynga used to transmit PII to third parties; The time period during which Zynga transmitted PII to third parties; Whether Zynga sold PII to third parties; The extent of Zynga's PII transmissions; Whether Zynga's actions, as described above, constitute violations of the Electronic Communications Privacy Act or unjust enrichment;

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f.

Whether Plaintiffs and the other members of the proposed Class are entitled to relief, and the nature of such relief.

Given the substantial overlap of the factual and legal issues presented by the instant matters, the Zynga Cases should be consolidated with one another. B. The Zynga Cases Should Not Be Consolidated With In Re Facebook

Plaintiffs oppose consolidating the Zynga Cases with In Re Facebook chiefly because the cases do not share sufficient common questions of fact. Indeed, there are significant factual differences between the Zynga Cases and In Re Facebook that militate against consolidation. The critical claims of each case ­ namely the unauthorized disclosure of PII to third parties ­ involve different disclosing parties, different recipients of that information, different privacy policies, different plaintiff classes, and different time periods of alleged wrongdoing. 1. The Zynga Cases and In Re Facebook Allege Different Disclosing Parties

The clearest difference between the Zynga Cases and In Re Facebook is that Plaintiffs in the Zynga Cases allege that Zynga wrongfully transmitted user PII to third parties.4 In In Re Facebook, however, Facebook is the entity that wrongfully transmitted user PII. From this significant factual difference flows many other distinctions (described below) that ultimately distinguish the Zynga Cases from In Re Facebook such that while coordinating various discovery and other pre-trial issues makes sense, consolidation would not benefit either the parties or the Court. 2. The Zynga Cases and In Re Facebook Allege Different PII Recipients

Plaintiffs in the Zynga Cases allege that Zynga wrongfully transmitted user PII to various third parties, including its advertisers and other Internet marketing companies.5 In contrast, the

Plaintiffs in a small number of the Zynga Cases also name Facebook as a defendant. Conversely, on November 11, 2010, Plaintiff Albini dismissed Facebook as a defendant from her action (Albini v. Zynga, Case No. CV 10-04723), leaving Zynga as the sole defendant in her case. Should discovery reveal that Facebook has played a substantial role in Zynga's alleged wrongdoing, the Majority Plaintiffs Group, considering the Class's best interests, reserve the right to reconsider their position on this consolidation issue. See, e.g., Schreiber v. Zynga Game Network, Inc., 10-CV-4794-JW, Complaint, ¶ 15 (ECF No. 1) ("Schreiber Compl."); Gudac v. Zynga Game Network Inc., 10-CV-4793-JW, Complaint, ¶ 29 (ECF No. 1) ("Gudac Compl.").
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In Re Facebook plaintiffs allege that Facebook transmitted PII to Facebook's advertisers.6 While there is some overlap, not only are these different sets of third party PII recipients, but this also means that contracts governing the respective advertising relationships materially differ. 3. The Zynga Cases and In Re Facebook Allege Breaches of Different Privacy Policies

Plaintiffs in the Zynga Cases allege that Zynga separately violated Zynga's Privacy Policy and the Facebook App Developer Policy, which prohibits companies like Zynga from transmitting Facebook User IDs to third parties. 7 In contrast, the In Re Facebook plaintiffs allege that Facebook violated Facebook's user Privacy Policy, not its developer terms of service. Thus the operative documents in the Zynga Cases and In Re Facebook are demonstrably different from one another ­ another factor militating against consolidation. 4. The Zynga Cases and In Re Facebook Allege Different Plaintiff Classes

Perhaps most significantly, the Zynga Cases and In Re Facebook allege different proposed classes. In the Zynga Cases, the classes are defined as all Zynga users.8 In marked contrast, the proposed class in In Re Facebook is defined as all persons who clicked a third-party advertisement on Facebook.com.9 As a result, the Zynga class is both broader and narrower than the In Re Facebook class. It is broader because it encompasses all users of Zynga games on the Facebook platform, whereas the In Re Facebook class is limited to those who clicked on third-party advertisements
See In re: Facebook Privacy Lit., 10-CV-2389-JW, Consolidated Complaint, ¶¶ 27-30 (ECF No. 36) ("In Re Facebook Compl."). See, e.g., Graf v. Zynga Game Network, Inc., 10-CV-4680-JW, Complaint, ¶ 15 (ECF No. 1) ("Graf Compl."). Moreover, with respect to the Facebook App Developer Policy, Plaintiffs allege that they are intended third-party beneficiaries of this policy. Id. at ¶ 14. See, e.g., Graf Compl., ¶ 20 ("Plaintiff brings this action on behalf of herself and all other persons in the following similarly-situated class: all registered users of Facebook.com in the United States who, at any time after October 18, 2006 registered a profile with Zynga") (emphasis in original); Schreiber Compl., ¶ 21 ("Plaintiff brings this action . . . on behalf of himself and all other persons in the following class: all persons in the United States who registered with Zynga while on the Facebook web site"); Gudac Compl., ¶ 41 ("Plaintiff bring[s] this action on behalf of . . . a class defined as all users of Zynga's Facebook applications from the time of Zynga's founding through the present day."). See In Re Facebook Compl., ¶ 37 ("Plaintiff brings this action on behalf of himself and all other persons in the following similarly-situated class: all Facebook users in the United States who, at any time after May 28, 2006 clicked on a third-party advertisement displayed on Facebook.com") (emphasis in original).
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on Facebook.com. But the Zynga class is also narrower because it is limited to Zynga users, which consists of a subset of Facebook users ­ not all Facebook users play Zynga's games, and being a member of the In Re Facebook class does not mean one is also a member of the Zynga class. Thus, consolidation would not promote efficiency. 5. The Zynga Cases and In Re Facebook Allege Different Modes of PII Transmission

The Zynga Cases allege that Zynga automatically transmitted user PII to third-parties when a Zynga user loaded a Zynga application into their browser, without requiring users to click on advertisements. 10 The In Re Facebook plaintiffs, on the other hand, allege that Facebook transmitted PII to advertisers only when Facebook users clicked on advertisements displayed on Facebook.com.11 This is significant because in the Zynga Cases, users did not need to take any affirmative action other than utilize one of the Zynga applications in order for Zynga to have violated their privacy rights. But in In Re Facebook, users had to take affirmative action for Facebook to transmit User PII in terms of clicking on an advertisement. This difference results from different applications of different underlying technologies. Thus, while both cases concern the

transmission of User IDs via Referrer Headers, the actual technologies underpinning these alleged wrongful acts are different. These non-overlapping facts may result in different factual inquiries into liability and damages. Although the allegations of the complaints may appear to be similar, the factual contexts of the claims in the Zynga Cases on the one hand and In Re Facebook on the other are distinct. Thus, while being related for common discovery issues and other pretrial matters will be more convenient and efficient, consolidation for all purposes simply inappropriate in these
See, e.g., Gudac Compl., ¶ 29 ("In order to determine which advertisements will be displayed with the iframe, Zynga's applications surreptitiously and automatically forwards `referrer' information to third party data brokers, advertisers, and others, all of it unbeknownst to users."). See In Re Facebook Compl., ¶ 28 ("When a Facebook user clicks on an advertisement posted on Facebook's website, Facebook sends a `Referrer Header' to the corresponding advertiser. The Referrer Header reveals the specific web page address the user was viewing prior to clicking the advertisement. Through the design of the Facebook website, Facebook's web page addresses, and Facebook's advertisement system, Facebook has caused users' browsers to send Referrer Header transmissions that report the user ID or username of the user who clicked an ad, as well as the page the user was viewing just prior to clicking on the ad.").
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circumstances. See, e.g., Alley v. Chrysler Credit Corp., 767 F.2d 138, 140 (5th Cir. 1985) ("Although the same van was involved in the two cases, the transactions forming the basis of the lawsuits were entirely separate. We do not find abuse of discretion [by the district court] in refusing to consolidate the cases, and accordingly affirm [its] denial of the motion to consolidate."). Thus, consolidation is not appropriate. See also Gaddy v. Elmcroft Assisted Living, Nos. 3:04CV36, 3:04CV309, 3:04CV458, 2005 U.S. Dist. LEXIS 44471, at *3

(W.D.N.C. Nov. 2, 2005) ("[W]hile these three cases involve some common questions of fact, they are separate and distinct cases. And so, consolidation for summary judgment purposes would be inappropriate."). These same guiding principles apply in the instant matters ­ Plaintiffs in the Zynga Cases and the In Re Facebook plaintiffs have submitted their claims under different sets of facts that allege different defendants engaged in different conduct to the detriment of different classes. 6. Consolidating the Zynga Cases With In Re Facebook Will Impede Judicial Efficiency

Given the substantial differences between the classes at issue and the different technologies implicated in the Zynga Cases and In Re Facebook, consolidation could actually impede, rather than enhance, judicial efficiency and complicate case management and trial. For example, the Zynga Cases and In Re Facebook all allege violations of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2510. Whether violations of the ECPA are viable claims in these cases will depend on whether Zynga and/or Facebook are electronic communications service providers, remote computing service providers, or both. But because Zynga and Facebook offer substantially different services to their respective users, adjudicating a motion to dismiss will require separate and distinct briefing vis-à-vis application of the ECPA to Zynga, on the one hand, and Facebook, on the other. Consolidation is not likely to yield any efficiencies on the motions for class certification. At this early stage of the litigation, there is no evidence of how much overlap there will be between the In Re Facebook class and the class alleged in the Zynga Cases. But, as described in

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section II.B.4, supra, there may be relatively little overlap between the two classes.12 As argued below, any benefits that might be attained through consolidation are better achieved by coordination, particularly since all of the related cases are presently before this Court. And coordination, as opposed to consolidation, will avoid the risk that one or more parties will seek to sever their claims at summary judgment or trial in order to avoid prejudice. If the cases are consolidated, however, the slowest moving case will dictate the pace and timing of motions for motions to dismiss, discovery, class certification, motions for summary judgment and trial, and delay adjudication of the other cases that would otherwise occur much sooner. 7. Consolidating the Zynga Cases With In Re Facebook Will Prejudice Plaintiffs in the Zynga Cases

Because consolidation is likely to protract the litigation, the Zynga Cases will likely be subject to unnecessary delay. And to the extent that discovery and motion practice relate only to the In Re Facebook plaintiffs' claims, plaintiffs in the Zynga Cases will bear a disproportionate amount of attorneys' fees and costs "monitoring and appearing in numerous cases to which they have no relation." See Jackson v. Ford Consumer Finance Co., Inc., 181 F.R.D. 537, 540 (N.D. Ga. 1998); see also In re Repetitive Stress Injury Litig., 11 F.3d 368, 374 (2d Cir. 1993) ("A party may not use aggregation as a method of increasing the costs of its adversaries ­ whether plaintiffs or defendants ­ by forcing them to participate in discovery or other proceedings that are irrelevant to their case."). Moreover, given the factual dissimilarities between the cases, consolidation poses a substantial risk of prejudice at trial. As numerous courts have recognized, consolidation does not merge the lawsuits into a single action. Each party is entitled to present evidence pertaining to
Consolidated discovery may also present significant case management problems and materially hinder the progress of each case. For example, the In Re Facebook plaintiffs and plaintiffs in the Zynga Cases will require discovery from Facebook and Zynga, respectively, of voluminous server log data to prove who was affected by the alleged disclosures, and to what extent they were affected. Because Facebook and Zynga are independent entities, each with proprietary infrastructure and databases, what may be burdensome for one defendant may not be for the other, and the character and scope of the data which exist may vary greatly by defendant. Similarly, the In Re Facebook plaintiffs will seek discovery from Facebook advertisers, while plaintiffs in the Zynga Cases will seek discovery from Zynga advertisers and various, currently unknown, Internet marketing companies. While there may be some overlap between these third party advertisers, there is no evidence before the Court that discovery from these two possibly distinct sets of third parties will not present significant delays for one set of plaintiffs or the other. While these differences present no problem when each case is allowed to proceed at its own pace, consolidation will thus likely result in inefficiency and delay.
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their individual claims or defenses at trial. This is especially significant here, where the In Re Facebook plaintiffs and plaintiffs in the Zynga Cases may be largely distinct groups. Adding to this complexity, if the ECPA claims are tried, for example, defendants are likely to present separate factual defenses pertaining to whether they are electronic communications service providers and/or remote computing service providers under the statute. Because a jury could very well lose track of which facts pertain to which parties, there is a substantial likelihood that one or more parties would move to bifurcate trials under Rule 42(b) of the Federal Rules of Civil Procedure. 8. There Is No Risk of Inconsistent Judgments

Defendants may argue that if the Court does not consolidate the Zynga Cases with In Re Facebook, there is a risk of inconsistent judgments. Trying the In Re Facebook and the Zynga Cases separately, however, poses little or no risk of inconsistent rulings for at least two reasons. First, whether or not these matters are consolidated, they are now pending in the same Court and before the same Judge. As such, it is reasonable to expect that, to the extent there are

overlapping questions of law, they will be resolved in a consistent manner. See, e.g., Jolly v. Purdue Pharma L.P., Case No. 05-CV-1452 H (POR), 2005 U.S. Dist. LEXIS 44599, at *8 (S.D. Cal. Sept. 27, 2005) (acknowledging that venuing related cases in the same court helps "avoid duplicative proceedings and inconsistent results"). Second, the cases involve different classes. As such, the factual determinations will be different for each defendant and claim. Thus, a defense verdict in one case and a verdict for plaintiffs in another would not necessarily be inconsistent "because they would be decided on the basis of different records." Campbell v. Pricewaterhouse Coopers, LLP, Nos. CIV. S-06-2376, CIV. S-080965, CIV. S-08-997, 2008 U.S. Dist. LEXIS 75756, at *10 (E.D. Cal. Aug. 14, 2008). 9. Any Purported Benefits to be Gained Through Consolidating the Zynga Cases With In Re Facebook Can Be Better Achieved Through Coordination ­ Plaintiffs' Counsel Have Already Shown a Willingness to Engage in Such Coordination

Directing discovery to one consolidated complaint, rather than two consolidated complaints, will not yield substantial, if any, benefits. But to the extent there is overlap in
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discovery, however, the parties have a shared interest in avoiding duplicative discovery. The In Re Facebook plaintiffs will not seek discovery from Zynga on any issues related to the claims raised in the Zynga Cases. This is true for the simple reason that the In Re Facebook plaintiffs have no claims against Zynga; Zynga's privacy policy is not implicated by the In Re Facebook claims, and Zynga is not alleged by the In Re Facebook plaintiffs to have disclosed any PII. Thus, to the extent that the In Re Facebook plaintiffs seek discovery from Zynga, it will be directed only to Zynga's role as one of Facebook's many advertisers. Plaintiffs in the Zynga Cases may seek discovery from Facebook. However, to the extent that Facebook is subject to Rule 30(b)(6) depositions regarding technology matters that may be relevant to both the In Re Facebook and the Zynga Cases, for example, coordination will ensure that Facebook need produce each witness only once. See Fed. R. Civ. P. 30(b)(6). Similarly, if there is any overlap between Facebook advertisers and Zynga advertisers, coordination will ensure that they are not subject to duplicative discovery.13 The fact that the Zynga Cases have been related and transferred to this Court addresses many of the concerns likely to be raised by proponents of consolidation. Inconsistent results will be avoided in the related actions because this Court will decide the issues in all cases. Judicial economy in deciding motions arising out of the related cases will be achieved for that same reason. The Court will be able to familiarize itself with any common issues that exist and recognize economies by, for example, holding case management conferences in these actions at the same time, or by holding "technology seminars" with all the parties present. Duplication of discovery, to the extent it might otherwise exist, can be avoided by an agreed plan to share discovery in the related actions and to limit defendants' discovery obligation to one-time productions, to the extent applicable. Indeed, the procedures for related actions contemplate coordination and are intended to avoid conflicts and duplication. David F. Herr, Annotated MCL 4th § 11.455. The fact that efficiencies can be realized with a less drastic remedy is another
All parties appear to be in agreement that consolidated discovery would be appropriate, which can occur without consolidating the Zynga Cases with In Re Facebook. In conference calls between counsel for the In Re Facebook plaintiffs and a majority of the Zynga plaintiffs ­ prior to this Court's order relating the Zynga Cases ­ counsel agreed that relating the Zynga Cases to In Re Facebook would be the most efficient way to ensure coordinated Facebook-related discovery.
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reason to decline consolidation of the Zynga Cases with In Re Facebook. See MacAlister v. Guterma, 263 F.2d 65, 69-70 (2d Cir. 1958) (holding that while consolidation is discretionary, it "should not be resorted to where other more conventional remedies will suffice," such as relating the actions before a single judge). For these reasons the Zynga Plaintiffs respectfully submit that the Court should not consolidate the Zynga Cases with In Re Facebook Privacy Litigation and that the proper course of action would be for the Court to consolidate the Zynga Cases into a separate action captioned In Re: Zynga Litigation. LEADERSHIP A. Lead Plaintiffs

9 III. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pursuant to the Court's November 12, 2010 Order, the Majority Plaintiffs Group respectfully advises the Court that they intend to proffer Richard Beiles, Nancy Graf, Howard L. Schreiber, and John Swanson, as Lead Plaintiffs. B. Co-Lead Counsel

Pursuant to the Court's November 12, 2010 Order, the Majority Plaintiffs Group respectfully nominate Adam J. Levitt of Wolf Haldenstein Adler Freeman & Herz LLC, Jonathan Shub of Seeger Weiss LLP, and Michael Aschenbrener of Edelson McGuire LLC as Plaintiffs' Co-Lead Counsel. From the earliest stages of this litigation, Proposed Co-Lead Counsel have reached out and built constructive relationships among all plaintiffs' counsel, as well as with Zynga's counsel, in an effort to expedite the coordination and consolidation of these cases. Levitt Decl. ¶ 17-19. For example, Proposed Co-Lead Counsel: Filed the first class action complaints against Zynga; Organized an efficient and broad coalition from the beginning leading to substantial work already performed in many areas, including: o Consultation with the leading experts in the field; o E-discovery preparation; o Document preservation; and

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o Correspondence with Zynga's counsel proposing and demanding immediate corrective conduct to protect Plaintiffs and the other members of the proposed Class; Communicated with all Plaintiffs' counsel in an effort to work cooperatively and efficiently, including scheduling and hosting the initial organizational conference call and actively initiating and implementing subsequent private ordering efforts among all plaintiffs; Arranged with defendants' counsel to have a single, coordinated response date to the various complaints in order to minimize possible duplicative or unnecessary effort that can be resolved through the filing of a Consolidated Amended Complaint; Met with Zynga's counsel to meet and confer on the direction of this litigation. Levitt Decl. ¶ 19. The attorneys nominated by the Majority Plaintiffs Group for Co-Lead Counsel, individually and/or collectively, were pioneers in the electronic privacy class action field, have been continuously recognized as national leaders in electronic privacy class action litigation, and both individually and collectively possess vast knowledge of the applicable law, having litigated some of the largest consumer class actions in the country on this issue, including numerous electronic privacy cases against such companies as Microsoft, Amazon, DoubleClick, Google, Avenue A, RealNetworks, Toys R'Us, Facebook, T-Mobile, RockYou, Storm8, AdZilla, NebuAd, Palm, and Spokeo. Levitt Decl. ¶¶ 22-24. Based on their substantial and substantive knowledge and experience, their support from the vast majority of plaintiffs and plaintiffs' counsel involved, their commitment to devote the required resources to this litigation, and inclusive leadership structure proposed, the Court should appoint Messrs. Levitt, Shub, and Aschenbrener as Co-Lead Counsel for all the Zynga Cases. 1. Legal Standards For Appointment Under Rule 23(g)

Rule 23(g)(3) authorizes the court to "designate interim class counsel to act on behalf of a

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putative class before determining whether to certify the action as a class action."14 While neither Rule 23(g) nor the Advisory Committee Notes to that Rule explicitly set forth the standards to be applied in choosing interim class counsel, courts have held that the same factors that apply in choosing class counsel at the class certification stage apply in choosing interim class counsel. Parkinson v. Hyundai Motor Am., No. SACV 06-345 AHS (MLGx) et al., 2006 U.S. Dist LEXIS 59055, at *6 (C.D. Cal. Aug. 7, 2000) (citing MCL 4th § 21.11); In re Air Cargo Shipping Serv. Anitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006). Rule 23(g)(1)(A) states that the following factors are relevant in appointing class counsel: (i) the work counsel has done in identifying or investigating potential claims in the action, (ii) counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (iii) (iv) counsel's knowledge of the applicable law, and the resources counsel will commit to representing the class.

Fed. R. Civ. P. 23(g)(1)(A). While all of these factors are relevant, no single one of these factors is determinative. See Advisory Committee Notes to the 2003 Amendments to Fed. R. Civ. P. 23(g) ("In evaluating prospective class counsel, the court should weigh all pertinent factors. No single factor should necessarily be determinative in a given case."). In addition, the Court may also "consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B). In this regard, courts evaluate whether proposed interim class counsel have worked cooperatively with opposing counsel and the court and whether counsel commands the respect of colleagues. See MCL 4th § 10.224. Where there are competing applications for appointment, a court must appoint counsel "best able to represent the interests of the class." Fed. R. Civ. P. 23(g)(2). Appointing Proposed Co-Lead Counsel here is appropriate as those leadership nominees best satisfy each of the specific factors enumerated by Rule 23(g)(1)(A). Their undisputed
See also, e.g., MCL 4th § 21.11 (Appointment of interim class counsel "is necessary to protect the interests of class members" because it "clarifies responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement.")
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leadership in organizing these cases and coordinating with both plaintiffs' and defendant's counsel, their nomination by the majority of the plaintiffs and firms involved (many of whom, in their own right, have substantial consumer and Internet privacy class action litigation experience) who actively support their appointment, and the efficient leadership structure proposed as a result of such organizational efforts are additional matters the Court should consider. 2. Argument (A) Proposed Co-Lead Counsel Satisfy The Rule 23(g)(1)(A) Factors For Appointment As Co-Lead Counsel.

Proposed Co-Lead Counsel's experience in leading the national consortium of attorneys involved in this matter renders them particularly suited for appointment as interim class counsel under the four enumerated Rule 23(g)(1)(A) factors. Proposed Co-Lead Counsel have extensively (1) investigated the alleged sales and/or distribution of PII in this litigation and have substantially directed the overall development of the legal claims involved. Proposed Co-Lead Counsel have been at the forefront of this litigation from the outset. Levitt Decl. ¶¶ 15-21. After engaging in extensive research and consultation with experts, they were the first to file a class action relating to Zynga's alleged dissemination of PII to thirdparties. Levitt Decl. ¶ 16. Proposed Co-Lead Counsel have already performed substantial work and dedicated substantial resources to this litigation. Significantly, as part of their substantial efforts, Proposed Co-Lead Counsel have retained and are presently working with the top experts in the Internet privacy field in their continued investigation and pursuit of plaintiffs' claims in this litigation. Levitt Decl. ¶ 19. Proposed Co-Lead Counsel have also proactively communicated with Zynga's counsel in an effort to reach agreements, at the earliest stage of this litigation, to preserve relevant evidence and establish electronic discovery protocols. Levitt Decl. ¶¶ 17, 19. In a case in which the central allegations concern the misuse of electronic information, working early to preserve potential evidence and to establish appropriate protocols for the handling of such evidence is of

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utmost importance to achieving eventual benefit for putative Class members.15 Proposed CoLead Counsel also worked with all plaintiffs' counsel to develop a uniform position on the related case issue and to establish a uniform response date to minimize duplication of effort, at the request of Zynga's counsel. Levitt Decl. ¶¶ 19, 21. In furtherance of those efforts, on November 16, 2010, Proposed Co-Lead Counsel met with Zynga's counsel in San Francisco to further address the above matters and others including possible means by which Zynga could protect Plaintiffs' and the other Class members' personally identifiable information and ensure the cessation of their alleged wrongful conduct. Levitt Decl. ¶¶ 19, 21. Thus, Majority Plaintiffs Group's Proposed Co-Lead Counsel have already developed a working relationship with Zynga's counsel. Proposed Co-Lead Counsel are also in the process of coordinating the research and preparation of a consolidated amended complaint based on the likelihood of the Zynga Cases being consolidated so that a Consolidated Amended Complaint can be filed within twenty-one (21) days of these cases being consolidated. Proposed Co-Lead Counsel are undertaking these efforts now so that this litigation will be positioned to move to the merits as quickly as practicable. Levitt Decl. ¶¶ 18-19, 21. Significantly, proposed Co-Lead Counsel undertook and performed all this work well before the Bryant action was even filed. (2) Proposed Co-Lead Counsel's experience in handling class actions and other complex litigation ­ as well as their extensive knowledge of the applicable law, resulting from their extensive experience in the Internet privacy field ­ supports their requested leadership appointment here.

The Majority Plaintiff Group's Co-Lead Counsel nominees ­ Adam J. Levitt, Jonathan Shub, and Michael Aschenbrener ­ and their respective law firms are particularly qualified to lead this litigation. Levitt Decl. ¶¶ 22-25. In addition to their substantial class action and related complex litigation experience in general, Levitt Decl. ¶ 22, they have contributed significantly to the development and progression of Internet privacy litigation. The combined knowledge,

capacity, and credentials of these attorneys and their respective law firms make them uniquely
See The Sedona Conference, The Sedona Conference Cooperation Proclamation (2008) (available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation.pdf) (promoting and forthright information sharing . . . to facilitate cooperative, collaborative, transparent discovery.").
15

"open

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well-suited to, and capable of, leading this action on behalf of all Plaintiffs and other Class members. As a result of their experience and collective resources expended in this and other Internet privacy cases, Proposed Co-Lead Counsel have a better understanding of the underlying technology, the claims, and the legal theories at issue than perhaps any other group of lawyers in the country. Indeed, Proposed Co-Lead Counsel have served in leadership positions in similar litigation against DoubleClick, Amazon.com, Google, Facebook, RockYou, (an Internet application developer), Avenue A, RealNetworks, Storm8 (an iPhone software maker), Spokeo (an Internet Search Engine), NebuAd, and Adzilla, among others, bring a unique perspective to the claims at issue here and through their in-court efforts and their outside work as well, have acquired an unparalleled in-depth familiarity with the applicable law. Levitt Decl. ¶ 24. This point should not be taken lightly, as it ­ along with the third Rule 23(g) factor ­ is considered the most persuasive factor and thereby demonstrates that these three firms are best qualified for appointment as Co-Lead Counsel here. See, e.g., In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 702 (S.D. Fla. 2004) (explaining that the "most persuasive" factor in choosing lead counsel pursuant to Rule 23(g) is proposed counsel's "experience in, and knowledge of, the applicable law in [the] field"). a. Adam J. Levitt, Wolf Haldenstein Adler Freeman & Herz LLC

Leading the prosecution of these cases for Wolf Haldenstein is Adam J. Levitt, a partner in the Firm's Chicago office, working closely with the Firm's San Diego office. Substantially all of Mr. Levitt's practice is focused on complex commercial litigation and class actions, and Mr. Levitt has extensive experience in consumer protection and technology law. Since 1993, Mr. Levitt has served as lead counsel, co-lead counsel, and in other leadership positions in numerous class and other complex litigations throughout the United States. A detailed survey of Mr. Levitt's class leadership, including his current designation as Co-Lead Counsel in In Re Genetically Modified Rice Litigation, MDL 1811 (E.D. Mo. filed Dec. 19, 2006), in which he is representing the interests of United States long-grain rice producers seeking to recover damages they sustained resulting from the contamination of the U.S. rice supply with unapproved,

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genetically-modified rice seed traits, is reflected in Wolf Haldenstein's Firm Resume, attached to the Levitt Declaration as Exhibit 1. Mr. Levitt was one of the pioneers in the field of electronic privacy class action litigation and continues to demonstrate leadership in the field to this day. He was lead or co-lead counsel in each of the following seminal electronic privacy actions: In re Amazon.Com, Inc. / Alexa Internet Privacy Litigation, MDL 1346 (W.D. Wash. filed Feb. 11, 2000), In re RealNetworks, Inc. Privacy Litigation, No. 00 C 1366 (N.D. Ill. filed March 5, 2000), In re DoubleClick, Inc. Privacy Litigation, No. 00 Civ. 0641 (S.D.N.Y. filed Jan. 31, 2000), and Chance v. Avenue A, Inc., No. C00-1964 C (W.D. Wash. filed Nov. 20, 2000). Several of the Internet privacy cases Mr. Levitt has led, including those listed above, are the key cases in the Internet privacy field and have been instrumental in creating the jurisprudential framework for this type of class and direct litigation. See, e.g., Supnick v.

Amazon.com, Inc., No. C00-0221P, 2000 U.S. Dist. LEXIS 7073, at *3-5 (W.D. Wash. May 18, 2000) (first ECPA case in which nationwide class was certified; court held that "interpretation of the relevant privacy policies presents a common question of law or fact that can be resolved by this Court."); Chance v. Avenue A, Inc., 165 F. Supp. 2d 1153, 1162 (W.D. Wash. 2001) (denying defendant's summary judgment motion and defining the "consent" issue in the ECPA context, holding, inter alia, that "[i]t is implicit in the web pages' code instructing the user' s computer to contact Avenue A, either directly or via DoubleClick's server, that the web pages have consented to Avenue A' interception of the communication between them and the s individual user."); Blumofe v. Pharmatrak, Inc. (In re Pharmatrak, Inc. Privacy Litig.), 329 F.3d 9, 21-22 (1st Cir. 2003) (reversing district court on grounds that defendant pharmaceutical companies did not give data aggregator the requisite consent to collect PII from website users and that and that collection of information from URL query string referrer header constitutes an interception under the ECPA). Mr. Levitt has also lectured on electronic privacy litigation issues, being the sole plaintiffs' lawyer invited to address the International Association of Privacy Professionals at its 2009 conference: "Privacy Litigation: The Evolution in Theories and Outcomes," International

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Association of Privacy Professionals "Privacy Academy" 2009 (Boston, Massachusetts, September 2009). In addition, Mr. Levitt is an elected member of the American Law Institute ("ALI") and participates in the ALI's Members Consultative Groups on, inter alia, the Principles of the Law of Aggregate Litigation and the Restatement of the Law (Third) Torts: Liability for Economic Loss. In recognition of his achievements to date, Mr. Levitt has achieved an "AV" rating by Martindale-Hubbell and was named one of Avenue Magazine's "Legal Elite" (2010). Mr. Levitt has also received a "10" "Superb" Avvo.com rating and his most recent article "CAFA and Federalized Ambiguity: The Case for Discretion in the Unpredictable Class Action" will be published in the Yale Law Journal [online] in early 2011. Wolf Haldenstein Adler Freeman & Herz, LLP ("Wolf Haldenstein"), Mr. Levitt's firm, is among the most experienced class action law firms in the United States and has repeatedly been recognized for its successful class action leadership. Levitt Decl. ¶ 22; see also, e.g., In re Comdisco Sec. Litig., 150 F. Supp. 2d 943, 951 (N.D. Ill. 2001) (confirming Wolf Haldenstein's credentials as being "exemplary").16 This Court is well aware of Wolf Haldenstein's qualifications and credentials, having appointed the Firm as Lead Counsel in In re Apple & AT&TM Antitrust Litigation, No. C 075152 JW (N.D. Cal. Apr. 15, 2008) (ECF No. 100), converting that appointment into a Class Counsel appointment on July 8, 2010, in conjunction with certifying a nationwide class in that action. (ECF No. 466). Also significant is Wolf Haldenstein's substantial California presence. Conveniently located in Southern California, Wolf Haldenstein's San Diego office has served as lead counsel in numerous high-profile consumer and securities class actions in both state and federal court throughout California. See, e.g., In re Ticketmaster Entm't S'holder Litig., Co-Lead Case No.

In granting final approval to the settlement of the Comdisco action, Judge Shadur further recognized the high level of Wolf Haldenstein's work in a difficult case, stating: [T]he efforts that have been expended on behalf of the plaintiff class in the face of these obstacles were exemplary. And in my view they reflected the kind of professionalism that the critics of class actions . . . are never willing to recognize . . . . I really cannot speak too highly of the services rendered by class counsel in an extraordinarily difficult situation . . . . In re Comdisco Sec. Litig., No. 01-C-2110, transcript at 3 (N.D. Ill. July 14, 2005) (Shadur, J.).

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BC407677 (Cal. Super. Ct. Los Angeles County filed Feb. 13, 2009) (class action challenging the merger of Ticketmaster with Live Nation); In re Dole S'holders Litig., No. BC281949 (Cal. Super. Ct., Los Angeles County March 28, 2003) (Wolf Haldenstein served as co-lead counsel and recovered $172 million on behalf of Dole's shareholders). For instance, in one recently concluded consumer action prosecuted in the United States District Court for the Southern District of California, class members received full refunds for unauthorized mobile telephone services as well as changes in billing and advertising practices. See In re Jamster Marketing Litig., MDL No. 1751, No. 05-0819 (S.D. Cal. filed April 18, 2005). Wolf Haldenstein's full Firm Resume is attached to the Levitt Declaration as Exhibit 1. b. Jonathan Shub, Seeger Weiss LLP

Jonathan Shub, the managing partner of Seeger Weiss' Philadelphia office, is recognized as one of the nation's leading consumer advocates. He has gained notable attention in the areas of defective consumer electronics and computer hardware as a result of many leadership positions in class action cases against companies such as Hewlett-Packard, Maytag, IBM, and Palm. In fact, Maximum PC Magazine, a leading legal technology publication, said that "Shub is becoming renowned for orchestrating suits that have simultaneously benefited consumers and exposed buggy hardware." Mr. Shub also has extensive experience in privacy and electronic communications class actions. He was actively involved in the early privacy cases against Real Networks and

DoubleClick: In re RealNetworks, Inc. Privacy Litigation, No. 00 C 1366 (N.D. Ill. filed March 5, 2000) and In re DoubleClick, Inc. Privacy Litigation, No. 00 Civ. 0641 (S.D.N.Y. filed Jan. 31, 2000). Most recently, he served as counsel in a class action against Google related to privacy violations relating to its social networking program known as "Buzz," In re: Google Buzz Privacy Litigation, No. 10-CV-0672 (N.D. Cal. filed Feb. 17, 2010). Mr. Shub was also recently appointed interim class counsel in In Re Facebook PPC Advertising Litig., Nos. 09-3043, 093519, 09-3430 (N.D. Cal. filed July 7, 2009). With offices in California, New York, New Jersey, Pennsylvania, Oklahoma, and California, Seeger Weiss's experienced trial lawyers have earned their reputation as a "go to"
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law firm with their adept work on a broad array of complex litigation. Known for the breadth of their experience and the ingenuity of their solutions, Seeger Weiss handles lawsuits in c