"In Re: Facebook Privacy Litigation"

Filing 96

MOTION to Dismiss FACEBOOK, INC.S MOTION TO DISMISS FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT filed by Facebook, Inc.. Motion Hearing set for 10/17/2011 09:00 AM in Courtroom 15, 18th Floor, San Francisco before Hon. James Ware. Responses due by 7/29/2011. Replies due by 8/5/2011. (Attachments: # 1 Proposed Order)(Brown, Matthew) (Filed on 7/15/2011)

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COOLEY LLP
MICHAEL G. RHODES (116127) ([e-mail])
MATTHEW D. BROWN (196972) ([e-mail])
BENJAMIN H. KLEINE (257225) ([e-mail])
KELLY A. COOKE (258003) ([e-mail])
MEGAN L. DONOHUE (266147) ([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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IN RE: FACEBOOK PRIVACY
LITIGATION

Case No. 10-CV-02389-JW
FACEBOOK, INC.’S MOTION TO DISMISS FIRST
AMENDED CONSOLIDATED CLASS ACTION
COMPLAINT
F.R.C.P. 12(b)(6)

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Date:
Time:
Courtroom:
Judge:
Trial Date:

October 17, 2011
9:00 a.m.
15 (18th Floor)
Hon. James Ware
Not Yet Set

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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Table of Contents

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Page
I.
II.
III.
IV.

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V.

INTRODUCTION .............................................................................................................. 2
STATEMENT OF FACTS ................................................................................................. 3
APPLICABLE STANDARDS ........................................................................................... 6
ARGUMENT ...................................................................................................................... 7
A.
Plaintiffs Fail to State a Claim for Violation of the Wiretap Act or Stored
Communications Act (Counts I and II)................................................................... 7
1.
Facebook cannot be held liable under the Wiretap Act or the SCA
because the addressee or intended recipient of all communications
alleged in the FAC was either Facebook or a third-party advertiser........... 9
2.
The disclosures alleged in the FAC did not involve the “contents of
a communication” under the Wiretap Act or the SCA.............................. 14
3.
The FAC does not allege facts plausibly suggesting Facebook
divulged a communication “while in transmission” under the
Wiretap Act. .............................................................................................. 17
4.
To the extent Plaintiffs’ SCA claim is based on hypothetical
allegations of advertisers viewing Users’ profile pages, it should be
dismissed. .................................................................................................. 18
B.
Plaintiffs Do Not Allege Facebook Introduced a Computer Contaminant,
As Required Under California Penal Code § 502(c)(8) (Count IV) ..................... 20
C.
Plaintiffs’ Breach of Contract Claim Must Be Dismissed for Failure to
Allege that Plaintiffs Have Suffered, or are Likely to Suffer, Any Actual
Damages As a Result of a Breach (Count VI) ...................................................... 22
D.
Plaintiffs Fail to State a Claim Under California Civil Code §§ 1572 and
1573 (Count VII)................................................................................................... 23
E.
Plaintiffs’ Claims Should Be Dismissed with Prejudice....................................... 25
CONCLUSION ................................................................................................................. 25

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i.

Motion to Dismiss First Amended
Consolidated Class Action Complaint
Case No. 10-cv-02389-JW

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TABLE OF AUTHORITIES

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Page(s)

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CASES

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Allen v. City of Beverly Hills,
911 F.2d 367 (9th Cir. 1990)................................................................................................... 25

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Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ........................................................................................................ 6, 21
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................................ 6, 23
Chem. Device Corp. v. Am. Cyanamid Co.,
NO. C-89-1739 WHO, 1990 WL 56164 (N.D. Cal. Jan. 11, 1990) ................................... 13, 14
Crispin v. Christian Audigier, Inc.,
717 F. Supp. 2d. 965 (C.D. Cal. 2010).................................................................................... 16
Dyer v. Nw. Airlines Corps.,
334 F. Supp. 2d 1196 (D.N.D. 2004) ...................................................................................... 23
Engalla v. Permanente Med. Grp.,
15 Cal. 4th 951 (1997) ............................................................................................................ 25
Epstein v. Wash. Energy Co.,
83 F.3d 1136 (9th Cir. 1996)................................................................................................... 21
First Commercial Mortg. Co. v. Reece,
89 Cal. App. 4th 731 (2001).................................................................................................... 22
Freedman v. Am. Online, Inc.,
325 F. Supp. 2d 638 (E.D. Va. 2004)...................................................................................... 16
Freedman v. Am. Online, Inc.,
412 F. Supp. 2d 174 (D. Conn. 2005 ...................................................................................... 17
Gaos v. Google,
No. 10-CV-04809-JW (N.D. Cal. Apr. 7, 2011)..................................................................... 24
Gautier v. Gen. Tel. Co.,
234 Cal. App. 2d 302 (1965)................................................................................................... 22
Heller v. Roberts.,
386 F.2d 832 (2d Cir. 1976).................................................................................................... 14
In re Am. Airlines, Inc., Privacy Litig.,
370 F. Supp. 2d 552 (N.D. Tex. 2005).............................................................................. 11, 12
ii.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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ATTORNEYS AT LAW
SAN FRANCISCO

In re GlenFed, Inc. Sec. Litig.,
42 F.3d 1541 (9th Cir. 1994) (en banc)................................................................................... 23
In re Google Inc. Street View Elec. Commc’ns Litig.,
No. CV 10-MD-02184-JW (N.D. Cal. June 29, 2011) ........................................................... 19
In re JetBlue Airways Corp. Privacy Litig.,
379 F. Supp. 2d 299 (E.D.N.Y. 2005) .................................................................................... 23
In re Silicon Graphics, Inc. Sec. Litig.,
970 F. Supp. 746 (N.D. Cal. 1997) ................................................................................... 23, 24
In re Zynga Privacy Litig.,
NO. 10-CV-04680 JW (N.D. Cal. June 15, 2011) ........................................................ 10, 11, 22
Jessup-Morgan v. Am. Online, Inc.,
20 F. Supp. 2d 1105 (E.D. Mich. 1998)............................................................................ 15, 16
Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009)................................................................................................. 23
Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868 (9th Cir. 2002)............................................................................................... 8, 17
Moore v. Kayport Package Express, Inc.,
885 F.2d 531 (9th Cir. 1989)................................................................................................... 24
Navarro v. Block,
250 F.3d 729 (9th Cir. 2001)..................................................................................................... 6
Parrino v. FHP, Inc.,
146 F.3d 699 (9th Cir. 1998)..................................................................................................... 6
Perlman v. Zell,
938 F. Supp. 1327 (N.D. Ill. 1996).......................................................................................... 14
Ruiz v. Gap, Inc.,
622 F. Supp. 2d 908 (N.D. Cal. 2009) .............................................................................. 22, 23
Ruiz v. Gap, Inc.,
540 F. Supp. 2d 1128 (N.D. Cal. 2008) .................................................................................. 25
Quon v. Arch Wireless Operating Co.,
529 F.3d 892 (9th Cir. 2008), rev’d on other grounds, 130 S. Ct. 2619 (2010) ..................... 16
Sams v. Yahoo!, Inc.,
No. cv-10-5897-JF (HRL), 2011 WL 1884633 (N.D. Cal. May 18, 2011) ...................... 15, 16
Small v. Fritz Co.,
30 Cal. 4th 167 (2003) ............................................................................................................ 25
iii.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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Snow v. DirecTV, Inc.,
450 F.3d 1314 (11th Cir. 2006)............................................................................................... 20
Steckman v. Hart Brewing, Inc.,
143 F.3d 1293 (9th Cir. 1998)................................................................................................. 25
Swartz v. KPMG LLP,
476 F.3d 756 (9th Cir. 2007)..................................................................................................... 6
Theofel v. Farey-Jones,
359 F.3d 1066 (9th Cir. 2004)................................................................................................. 16
Thompson v. Home Depot, Inc.,
No. 07-cv-1058 IEG, 2007 WL 2746603 (S.D. Cal. Sept. 18, 2007) ..................................... 25
United States v. Kennedy,
81 F. Supp. 2d 1103 (D. Kan. 2000) ....................................................................................... 17
United States v. N.Y. Tel. Co.,
434 U.S. 159 (1977) ................................................................................................................ 15
Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097 (9th Cir. 2003)................................................................................................. 23

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Viacom Int’l Inc. v. YouTube Inc.,
253 F.R.D. 256 (S.D.N.Y. 2008) ............................................................................................ 16

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STATUTES

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18 U.S.C.
§ 2510............................................................................................................................... passim
§ 2511............................................................................................................................... passim
§ 2701........................................................................................................................................ 1
§ 2702............................................................................................................................... passim
§ 2703(c) ........................................................................................................................... 16, 17

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Cal. Bus. & Prof. Code § 17200. .................................................................................................... 7
Cal. Civ. Code
§ 1572.................................................................................................................................. 1, 23
§ 1573.................................................................................................................................. 1, 23
§ 1750........................................................................................................................................ 7
Cal. Penal Code § 502............................................................................................................ passim

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

iv.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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OTHER AUTHORITIES

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Federal Rule of Civil Procedure
Rule 9(b)........................................................................................................................ 3, 23, 24
Rule 12(b) ......................................................................................................................... 1, 6, 7

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v.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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NOTICE OF MOTION AND MOTION TO DISMISS
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on October 17, 2011 at 9:00 a.m. or as soon thereafter as

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this motion may be heard in the above-entitled court, located at 450 Golden Gate Avenue, San

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Francisco, California, in Courtroom 15 (18th Floor), Defendant Facebook, Inc. (“Facebook”) will

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move to dismiss with prejudice the First Amended Consolidated Class Action Complaint filed by

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Plaintiffs. Facebook’s Motion is made pursuant to Federal Rule of Civil Procedure 12(b)(6) and

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is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and

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Authorities, the Request for Judicial Notice filed herewith, the Declaration of Ana Yang Muller

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and accompanying Exhibits filed herewith, and all pleadings and papers on file in this matter, and

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upon such other matters as may be presented to this Court at the time of hearing or otherwise.

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STATEMENT OF RELIEF SOUGHT
Facebook seeks an order, pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissing

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with prejudice the First Amended Consolidated Class Action Complaint and each of its causes of

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action for failure to state a claim upon which relief can be granted.

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STATEMENT OF ISSUES TO BE DECIDED
1.

Because Plaintiffs fail to state a claim upon which relief can be granted for each

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remaining cause of action—alleged violations of 18 U.S.C. § 2510 et seq., 18 U.S.C. § 2701 et

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seq., Cal. Penal Code § 502(c)(8), Cal. Civil Code §§ 1572-73, and breach of contract—should

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the First Amended Consolidated Class Action Complaint be dismissed with prejudice?

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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In a May 12, 2011 Order (the “Dismissal Order”), this Court dismissed all eight claims in

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Plaintiffs’ original consolidated complaint (the “original Complaint”) for failure to state a claim,

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although it granted leave to amend certain but not all of the claims. Plaintiffs’ First Amended

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Consolidated Class Action Complaint (“FAC”) attempts to salvage their remaining claims with

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what amounts to non-substantive, cosmetic revisions. The FAC contains the same conclusory

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allegations, is based on essentially the same underlying facts, realleges the same rejected legal

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theories, and suffers from the same deficiencies that were fatal to the original Complaint.

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The core allegations in the FAC remain the same: for a period of time in 2010, when a

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Facebook user (“User”) clicked on an advertisement on Facebook, as a result of the “referrer

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header” function in the User’s web browser, a URL (Internet address) was transmitted to an

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advertiser that potentially contained (i) the User’s “User ID” or “Username” and (ii) basic

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information about the type of webpage from which the User was navigating. Because the FAC

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only superficially changes Plaintiffs’ original complaint, each of the remaining claims should be

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again dismissed—this time with prejudice.

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Plaintiffs’ Wiretap Act and SCA claims (Counts I and II) fail for several reasons. First,

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the FAC cannot overcome several explicit statutory exceptions to liability: for disclosure of

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communications made to a provider of an electronic communication service; for disclosure to an

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“addressee or intended recipient”; and for disclosure to a third party with the consent of an

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addressee or intended recipient. Second, the alleged disclosures did not involve the “contents of a

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communication” as required for liability under both statutes. Third, Plaintiffs fail to allege that

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Facebook divulged a communication “while in transmission,” as required by the Wiretap Act.

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Fourth, to the extent that Plaintiffs’ SCA claim is based on vague and speculative allegations that

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advertisers could possibly have navigated to Users’ profile pages and viewed information posted

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there, the claim should be dismissed because, in addition to other deficiencies, two statutory

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exceptions to liability apply.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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Nor have Plaintiffs adequately alleged facts to support their other claims. Plaintiffs do no

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more than recite the elements of their claim for violation of California Penal Code § 502(c)(8)

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(Count IV), with no specific allegations of what contaminant was introduced, of how any alleged

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contaminant affected operation of their computers, or that any instructions were actually

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introduced into their computers. Plaintiffs’ breach of contract claim (Count VI) lacks any facts

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supporting the necessary “appreciable and actual damages”; to the contrary, the FAC makes it

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clear that Plaintiffs cannot allege such damage because, as the Court stated previously, Facebook

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is a free service. And Plaintiffs’ fraud claim (Count VII) both fails to satisfy the heightened Rule

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9(b) pleading standard—since the FAC fails to state, among other things, how any particular

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alleged representation was false or when Plaintiffs allegedly clicked on advertisements—and fails

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to allege the necessary element of damages.

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Plaintiffs’ FAC should thus be dismissed with prejudice.
II.

STATEMENT OF FACTS

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Facebook operates a free social networking website, with over 500 million active Users.

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(FAC ¶ 10.) It allows anyone who registers, agrees to the site’s terms of service, and has access

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to the Internet to create a profile page where they can share content and updates with Friends

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about their activities. (Id. ¶¶ 11, 13.)

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Instead, Facebook earns revenue, in part, by selling advertising space to third parties. (See id.

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¶¶ 25-27.) Third-party advertisers may choose to target their ads to different groups of Users—

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for example, based on criteria such as age, interests, or location—in accordance with Facebook’s

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terms. Advertisers cannot target specific Users on Facebook. (See id.)

Users do not pay a fee to use Facebook. (FAC ¶ 11.)

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Facebook assigns a generic, numerical “User ID” (or “UID”) to each User for internal

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operational purposes. The User ID associated with some Users may be contained in the technical

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Internet

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http://www.facebook.com/profile.php?id=123456789), to allow Facebook to display the correct

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information on that page. (See id. ¶ 14.) Other Facebook Users have elected to create unique

address

(the

“URL”1)

on

their

profile

pages

on

Facebook

(e.g.,

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ATTORNEYS AT LAW
SAN FRANCISCO

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A “Uniform Resource Locator” specifies the location of a webpage or file on the Internet.
3.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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Facebook “Usernames” (nicknames, initials, or other phrases or terms of the Users’ choosing) for

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the purpose of providing personalized, public Internet addresses for their profile pages. (See id.

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¶ 14.) For example, a San Francisco lawyer named John Smith could choose to create the

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Username “SmithEsq” or “sanfranlawyer” or “Johnny.”

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“Username” (and not the User ID) would appear in the URL for his or her profile page (e.g.,

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http://www.facebook.com/SmithEsq,

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http://www.facebook.com/Johnny). Not all Facebook Users have a Username, and a Username

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need not, and often does not, consist of the User’s real name.

In such cases, a User’s chosen

http://www.facebook.com/sanfranlawyer,

or

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The FAC alleges that, when a User clicked on an advertisement on Facebook, the

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following occurred as a result of the “referrer header” function in the User’s web browser: a URL

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was transmitted to an advertiser that potentially contained (i) the User’s User ID or Username and

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(ii) basic information about the type of webpage from which the User was navigating. (Id. ¶¶ 35,

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41-43.) As the FAC acknowledges, the referrer header function is a “standard web browser

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function” effected by third-party web browsers—not Facebook—that occurs on the Internet

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whenever a person clicks on a link to another website (including online advertisements). (Id.

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¶¶ 35, 41.) Indeed, the FAC concedes that the referrer header function has been “provided by

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standard web browsers since . . . May 1996” (well before Facebook even existed). (Id. ¶ 41.)

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The “Referrer Header [function] reveals the specific web page address” (the URL) a person was

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viewing when he or she clicked on a link to another website. (Id. ¶ 35.)

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The FAC alleges that “Facebook began disclosing communications containing user’s [sic]

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usernames/UIDs no later than February 2010 when Facebook implemented a website ‘upgrade’

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that began to embed ever more detailed data within Referrer Headers.” (Id. ¶ 38.) Plaintiffs

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allege that sometime after May 21, 2010, when Facebook was alerted to the issue by the Wall

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Street Journal, URLs transmitted to advertisers from Facebook no longer included User IDs or

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Usernames. (Id. ¶ 39.) The FAC claims—incorrectly—that an advertiser could use the User ID

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or Username to collect additional information about the User by navigating to the Facebook

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User’s profile page to view any information the User had posted there. (Id. ¶ 36.) In fact, even if

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an advertiser were to take the step of navigating to a particular User’s profile page, the advertiser

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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would only be able to see information that was publicly available—in other words, information

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the User made available to anyone on the Internet, as opposed to information available only to the

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User’s Friends. Also, Users’ names, profile pictures, and certain basic information are always

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publicly available on Facebook, as plainly disclosed in Facebook’s Privacy Policy and Privacy

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Guide (relied on by Plaintiffs in their FAC). (Declaration of Ana Yang Muller (“Yang Decl.”),

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filed herewith, Ex. B ¶ 3 (Privacy Policy); id. Ex. C ¶ 2 (Privacy Guide).)2

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Plaintiffs assert generally that Facebook shared “personally identifiable information” with

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advertisers. (FAC ¶¶ 1, 3, 34.) Conspicuously, as with the original Complaint, the FAC does not

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identify what, if any, of Plaintiffs’ information was supposedly disclosed. The only allegation

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specific to Plaintiffs is that they “clicked on at least one third-party advertisement displayed on

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Facebook” during the “relevant time period.” (Id. ¶¶ 4, 5.) Plaintiffs do not identify the “relevant

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time period” when they purportedly clicked on an advertisement, anything specific about the

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advertisement, or what information was allegedly disclosed by their actions. Nor do Plaintiffs

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allege that any advertiser ever used such unspecified information to gather any personal

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information, much less any information specific to Plaintiffs. Plaintiffs do not allege that they

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even have Usernames, much less that they have Usernames that reflect their real names.3

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Again, as in the original Complaint, Plaintiffs state as legal conclusions that they have

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“suffered irreparable injury,” “suffered harm,” and “suffered loss.” (FAC ¶¶ 106, 111, 133; see

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also id. ¶¶ 105, 110, 122.) But the FAC does not aver that any of Plaintiffs’ information has been

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disclosed or that such disclosure resulted in any actual injury. The closest Plaintiffs come is a

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hypothetical allegation that advertisers “could” obtain “confidential and sometimes highly

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sensitive information” about a User. (Id. ¶ 44.) The FAC contains an academic discussion of the

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Also attached as Exhibit A is what the Complaint alternatively refers to as the “Statement of
Rights and Responsibilities” (FAC ¶¶ 29, 33), “Terms and Conditions” (id. ¶¶ 46, 64, 114),
“Terms of Use” (id. ¶ 33), and “Terms of Service” (id. ¶ 49(b)), and what Facebook formally
refers to as the “Statement of Rights and Responsibilities.” On the Facebook website, the SRR is
also sometimes referred to as “Terms.” (Yang Decl. ¶ 2, Ex. A.)
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Again, Facebook requires that Users provide their real names when they register and create a
profile. But a “Username” is different—it is voluntary, and need not be the User’s real name.
5.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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hypothetical value of personal information (id. ¶ 23), but does not allege any facts suggesting that

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Plaintiffs ever attempted to sell their own information for economic gain.

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III.

APPLICABLE STANDARDS

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A court may dismiss a claim under Rule 12(b)(6) when “there is no cognizable legal

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theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion under Rule 12(b)(6), “all material

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allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn

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from them.” Id. However, as the Supreme Court has emphasized, “labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not” survive a motion to dismiss.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A plaintiff must therefore

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plead “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949.

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“[T]o ‘[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately

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omitting . . . documents upon which their claims are based,’” a court may consider a writing

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referenced in a complaint if the complaint relies on the document and its authenticity is

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unquestioned. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (quoting Parrino v.

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FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998) (superseded by statute on other grounds)).4

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As discussed in the Request for Judicial Notice filed herewith, the FAC references Facebook’s
Statement of Rights and Responsibilities (SRR), Privacy Policy, and Privacy Guide (FAC ¶¶ 2733), which, under applicable legal principles, the Court may properly consider in ruling on this
motion. Copies of these three documents are attached as Exhibits A through C to the Yang
Declaration, filed herewith.
6.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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IV.

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ARGUMENT5
A.

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Plaintiffs Fail to State a Claim for Violation of the Wiretap Act or Stored
Communications Act (Counts I and II).

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The Court previously dismissed Plaintiffs’ claims under the Wiretap Act and the SCA as it

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was clear from the original Complaint that any alleged disclosures were made to entities

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authorized to receive Plaintiffs’ communications. (Dismissal Order at 9.) The FAC fails to

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remedy these deficiencies and the claims fail as a matter of law for other reasons as well.

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As in the original Complaint, Count I of the FAC asserts that Facebook violated 18 U.S.C.

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§ 2511(3)(a) of the Wiretap Act (FAC ¶ 65), which provides that “a person or entity providing an

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electronic communication service to the public shall not intentionally divulge the contents of any

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communication (other than one to such person or entity, or an agent thereof) while in

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transmission on that service to any person or entity other than an addressee or intended recipient

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of such communication or an agent of such addressee or intended recipient.”

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§ 2511(3)(a). An “electronic communication service” means any service that provides Users the

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ability to send or receive electronic communications.

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communication” is “any transfer of signs, signals, writing, images, sounds, data, or intelligence of

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any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or

18

photooptical system that affects interstate or foreign commerce . . . .” Id. § 2510(12). The

19

“contents” of an electronic communication means “any information concerning the substance,

Id. § 2510(15).

18 U.S.C.

An “electronic

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

5

Several of Plaintiffs’ claims included in the FAC have already been dismissed with prejudice.
These claims include Count III (for violation of the Unfair Competition Law, California Business
and Professions Code section 17200 et seq.), the majority of Count IV (for violation of
subsections (c)(1), (2), (3), (6), & (7) of California Penal Code section 502), Count V (for
violation of the Consumers Legal Remedies Act, California Civil Code section 1750 et seq.), and
Count VIII (for unjust enrichment). Plaintiffs state that they are including them in the FAC only
to preserve them for the purposes of appeal (see FAC, headings to Counts III, IV, V, and VIII), so
Facebook does not address them in this Memorandum, but instead moves to dismiss them on the
ground that they have already been dismissed with prejudice by the Court. In addition, the
Dismissal Order disagreed with Facebook’s argument that Plaintiffs do not have Article III
standing to bring the present suit as they have not alleged injury in fact. Facebook continues to
contend that this case should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for
lack of Article III standing, and preserves this issue in the event of any appeal.
7.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

purport, or meaning of that communication.” Id. § 2510(8).

2

held by an electronic communication service—including a subscriber’s name, address, connection

3

records, records of session times and durations, service utilization data, subscriber number or

4

identity, and payment methods—are not subject to the same limits on disclosure. Id. § 2702(c).

By contrast, “customer records”

5

Also as in the original Complaint, Count II of the FAC asserts that Facebook violated 18

6

U.S.C. §§ 2702(a)(1) and (a)(2) of the SCA.6 (FAC ¶ 83.) Section 2702(a)(1) provides that “a

7

person or entity providing an electronic communication service to the public shall not knowingly

8

divulge to any person or entity the contents of a communication while in electronic storage by

9

that service.” 18 U.S.C. § 2702(a)(1). Section 2702(a)(2) provides that “a person or entity

10

providing remote computing service to the public shall not knowingly divulge to any person or

11

entity the contents of any communication which is carried or maintained on that service . . . on

12

behalf of . . . a subscriber or customer . . . .” Id. § 2702(a)(2).

13

There are a number of relevant exceptions to liability under these statutes. The Wiretap

14

Act contains an exception that allows a provider of an electronic communication service (here,

15

Facebook) to divulge the contents of a communication made to the provider itself. 18 U.S.C.

16

§ 2511(3)(a) (“a person or entity providing an electronic communication service to the public

17

shall not intentionally divulge the contents of any communication (other than one to such person

18

or entity, or an agent thereof) . . .” (emphasis added)). Exceptions under both the Wiretap Act

19

and the SCA also allow providers to divulge the contents of a communication to “an addressee or

20

intended recipient” of such communication. Id. §§ 2511(3)(a), 2702(b)(1). Further, under both

21

statutes, a provider may divulge the contents of a communication “with the lawful consent of the

22

originator or any addressee or intended recipient of such communication.” Id. §§ 2511(3)(b)(ii),

23

2702(b)(3).

And neither statute prohibits disclosure of communications if the system “is

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ATTORNEYS AT LAW
SAN FRANCISCO

6

The same conduct cannot be a violation of both the Wiretap Act and the SCA because they are
mutually exclusive: one statute addresses communications while they are in transit, and the other
statute addresses communications while they are in storage. Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868, 878-79 (9th Cir. 2002) (holding that the Wiretap Act protects communications
during “transmission” while the SCA protects communications while “stored”).
8.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

configured so that such electronic communication is readily accessible to the general public.” Id.

2

§ 2511(2)(g)(i) (applicable to both the Wiretap Act and the SCA).

3

Plaintiffs fail to state a claim for violation of either the Wiretap Act or the SCA for several

4

reasons. First, the FAC does not overcome the various statutory exceptions to liability: for

5

disclosure of a communication made to the service provider itself (18 U.S.C. § 2511(3)(a)); for

6

disclosure to an addressee or intended recipient of a communication (id. §§ 2511(3)(a),

7

2702(b)(1)); and for disclosure to a third party with the consent of an addressee or intended

8

recipient of a communication (id. §§ 2511(3)(b)(ii), 2702(b)(3)). No matter how one reads the

9

strained and sometimes contradictory allegations in the FAC regarding the nature of the alleged

10

User communications allegedly disclosed by Facebook, one or more of these exceptions applies.

11

Accordingly, the FAC fails to state a claim for violation of the Wiretap Act and the SCA for the

12

same reasons set forth in this Court’s prior Dismissal Order. (See Dismissal Order at 8-10.)

13
14

Second, the disclosures alleged in the FAC did not, in any event, involve the “contents of
a communication” under the Wiretap Act or the SCA, a necessary element of both claims.

15

Third, the FAC does not allege facts plausibly suggesting that Facebook divulged a

16

communication “while in transmission”; thus, the FAC fails to state a claim for violation of the

17

Wiretap Act on this additional ground.

18

Fourth, to the extent that Plaintiffs’ SCA claim is based on an alternative factual theory—

19

their vague and speculative allegations that advertisers could possibly have navigated to Users’

20

profile pages and viewed information posted there—the claim should be dismissed for several

21

additional reasons, including the applicability of two statutory exceptions to liability.

22

1.

23

Facebook cannot be held liable under the Wiretap Act or the SCA
because the addressee or intended recipient of all communications
alleged in the FAC was either Facebook or a third-party advertiser.

24

Wiretap Act

25

This Court previously ruled that the Wiretap Act claim (Count I) failed to state a claim.

26

(Dismissal Order at 9.) Plaintiffs claimed that they did not consent to Facebook’s disclosure of

27

their User IDs or Usernames or information about the webpage Plaintiffs were viewing when they

28

clicked on an advertisement. (Id. at 8 (citing original Complaint ¶ 56).) The Court reasoned that

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

9.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

there were two possible ways to view these allegations. Under the first view, Plaintiffs alleged

2

that when they clicked on an advertisement, the click constituted an electronic communication

3

from Plaintiffs to Facebook, with the content of that communication being a request that

4

Facebook send a further electronic communication to an advertiser. (Id. at 8.) Under the second

5

view, Plaintiffs alleged that the click constituted an electronic communication from Plaintiffs to

6

the advertiser. (Id. at 8-9.) The Court held “that as a matter of law, Plaintiffs cannot state a claim

7

under the Wiretap Act under either interpretation.” (Id. at 9.) If the communication was to

8

Facebook, the Court explained, Facebook cannot be liable for divulging it under 18 U.S.C. §

9

2511(3)(a)’s exception for communications “to such person or entity” providing an electronic

10

communication service. (Dismissal Order at 9.)7 Alternatively, the Court explained, if the

11

communication was to an advertiser, Facebook cannot be liable for divulging it under 18 U.S.C. §

12

2511(3)(a)’s “addressee or intended recipient” exception. (Dismissal Order at 9.) Accordingly,

13

the Court dismissed the Wiretap Act claim, “with leave to amend to allege specific facts showing

14

that the information allegedly disclosed by Defendant [Facebook] was not part of a

15

communication from Plaintiffs to an addressee or intended recipient of that communication.”

16

(Id.) See also In re Zynga Privacy Litig., No. 10-cv-04680 JW, at 4, 6 (N.D. Cal. June 15, 2011).

17

Plaintiffs have not made any material amendments to their Wiretap Act claim or

18

elsewhere in the FAC that cure the infirmities identified by the Court. (See FAC ¶¶ 58-67.)

19

Plaintiffs continue to allege that the communications that form the basis of their Wiretap Act

20

claim were from Plaintiffs to either Facebook or advertisers. Again, under the pertinent statutory

21

exceptions, “as a matter of law, Plaintiffs cannot state a claim under the Wiretap Act under either

22

interpretation.” (Dismissal Order at 9.) Accordingly, for the reasons set forth above and in the

23

Dismissal Order, Count I of the FAC should be dismissed with prejudice.

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ATTORNEYS AT LAW
SAN FRANCISCO

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Facebook also cannot be liable for divulging such a communication because, under the Wiretap
Act, a service provider may divulge the contents of a communication “with the lawful consent of
the originator or any addressee or intended recipient of such communication.”
Id.
§§ 2511(3)(b)(ii). Facebook would be the addressee or intended recipient, and Facebook had its
own consent to divulge the communication to a third party. (Cf. Dismissal Order at 10 & n.8
(discussing identical provision of SCA and case law, and dismissing SCA claim).)
10.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

SCA

2

This Court also held that Plaintiffs’ SCA claim in the original Complaint (Count II) failed

3

to state a claim. Directly tracking the analysis of the Wiretap Act claim, the Court stated that

4

Plaintiffs alleged in the SCA claim that the communications at issue were sent either to Facebook

5

or to advertisers. (Dismissal Order at 10.) The Court held that “[u]nder either interpretation,

6

Plaintiffs fail to state a claim under the Stored Communications Act.” (Id. at 10.) If the

7

communication was to Facebook, the Court explained, Facebook cannot be liable for divulging it

8

because, under the SCA, a service provider may divulge the contents of a communication “with

9

the lawful consent of the originator or any addressee or intended recipient of such

10

communication.”

18 U.S.C. § 2702(b)(3).

Facebook would be the addressee or intended

11

recipient, and Facebook had its own consent to divulge the communication to third-party

12

advertisers. (Dismissal Order at 10 & n.8 (discussing 18 U.S.C. § 2702(b)(3) and In re Am.

13

Airlines, Inc., Privacy Litig., 370 F. Supp. 2d 552, 560-61 (N.D. Tex. 2005)).) Alternatively, the

14

Court explained, if the communication was to an advertiser, Facebook cannot be liable for

15

divulging it under 18 U.S.C. § 2702(b)(1)’s “addressee or intended recipient” exception.

16

(Dismissal Order at 9-10.) Accordingly, the Court dismissed the SCA claim, again (as with the

17

Wiretap Act claim) “with leave to amend to allege specific facts showing that the information

18

allegedly disclosed by Defendant [Facebook] was not part of a communication from Plaintiffs to

19

an addressee or intended recipient of that communication.” (Id. at 10.) See also In re Zynga

20

Privacy Litig., No. 10-cv-04680 JW, at 4, 6.

21

Plaintiffs amended the SCA claim to include a number of strained and sometimes

22

contradictory allegations regarding the nature of the communications that allegedly were

23

disclosed by Facebook.

24

fundamental problem identified in the Dismissal Order because every “alternative” fact pattern

25

Plaintiffs aver nevertheless falls within the § 2702(b)(3) or § 2702(b)(1) exceptions.

26

“contents of communications” (according to Plaintiffs, consisting of User IDs, Usernames, or,

27

more vaguely, “PII”) that Plaintiffs claim Facebook disclosed to advertisers were all disclosed by

28

Plaintiffs to either Facebook or an advertiser—that is, an addressee or intended recipient.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

(FAC ¶¶ 73-78.)

These amendments, however, fail to cure the

11.

The

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Plaintiffs’ primary allegation (FAC ¶¶ 73-77) is that when Plaintiffs clicked on an

2

advertisement, the click constituted a communication to Facebook, the content being a “request[]

3

that Facebook connect the user to the specific advertisement” (FAC ¶ 74). Plaintiffs allege that

4

rather than disclosing the “bare request to be taken to the advertisement,” Facebook disclosed to

5

the advertiser, “via a ‘Referrer Header,’”8 Plaintiffs’ “personal information, including UIDs and

6

[U]sernames.” “[D]isclosure of the user PII,” the FAC alleges, “violates the SCA.” (FAC ¶ 77.)

7

Plaintiffs’ convoluted allegations still fail to state a claim because in order for the disclosure of

8

“PII” to be a violation of the SCA, that PII must constitute the contents of a communication.

9

And, according to the FAC itself, such communications are from Plaintiffs to Facebook. (See,

10

e.g., FAC ¶¶ 73, 76 (stating that users share PII with Facebook for the “specific purpose[] of

11

registering to use the service”).) Facebook would be the addressee or intended recipient of these

12

communications, and, even if the FAC’s allegations were true, Facebook would have its own

13

consent to divulge the communication to third-party advertisers. (Dismissal Order at 10 & n.8.)9

14

Apparently recognizing the vulnerability of its primary allegation, Plaintiffs have included

15

a series of “facts in the alternative,” hoping that if all of them get thrown against the wall, one

16

will stick. (FAC ¶ 78.) None of these alternative, contradictory sets of allegations escape the

17

fundamental fact that the alleged communications at issue fall into the “addressee or intended

18

recipient” exception under § 2702(b)(3) (if the communication was to Facebook) or § 2702(b)(1)

19

(if the communication was to an advertiser).

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ATTORNEYS AT LAW
SAN FRANCISCO

8

The allegation in FAC ¶ 77 that Facebook is responsible for the transmission of referrer headers
is contradicted by other allegations in the FAC. The FAC states that “[t]he HTTP Referrer
Header is a standard web browser function provided by web browsers since the HTTP 1.0
specification in May 1996” (before Facebook even existed). (FAC ¶ 41 (emphasis added).)
9

Although Plaintiffs repeatedly assert that Facebook’s alleged disclosures are contrary to
Facebook’s Privacy Policy (see FAC ¶¶ 35, 64, 76), that allegation has no bearing on whether
Facebook may consent to disclosure of such information under the SCA. As this Court explained
in its Dismissal Order, “a defendant [is] not liable under the [SCA] for disclosing personal
information of which it was the intended recipient, even if the defendant was ‘contractually bound
by its privacy policy not to disclose [such] information.’” (Dismissal Order at 10 n.8 (citing In re
Am. Airlines, Inc., Privacy Litig., 370 F. Supp. 2d at 560-61).)
12.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Plaintiffs’ first set of “facts in the alternative” is based on the alleged transmission by

2

Facebook of “an additional communication containing the user’s [U]sername and/or UID to the

3

Advertiser.” (FAC ¶ 78(i).) Again, even if these allegations were true, Facebook would have

4

been an intended recipient of the original “communication containing the user’s [U]sername

5

and/or UID,” and therefore would be authorized to disclose the information under § 2702(b)(3).

6

Plaintiffs’ second set of “facts in the alternative” alleges that “Facebook exceeds its

7

authority to disclose records about its users by sending [U]sernames and/or UIDs to the

8

Advertiser.”

9

“records” rather than “contents of communications” under the SCA; thus, under the express

10

provisions of § 2702(c)(6), Facebook may disclose such “records” to “any person other than a

11

governmental entity,” including a third-party advertiser. (See infra § IV(A)(2).) But, again, even

12

if this allegation were interpreted to mean that Usernames and User IDs were “contents of

13

communications,” Facebook was the intended recipient of those communications and, therefore,

14

there is no liability under § 2702(b)(3).

(FAC ¶ 78(ii).)

This allegation concedes that Usernames and User IDs are

15

Plaintiffs’ third set of alternative allegations is merely a slight variation on the first two

16

sets, in which Plaintiffs allege that they “provide[d] PII to Defendant for the sole purpose of

17

communicating that information to . . . ‘friends,’” not advertisers, but Facebook nevertheless sent

18

their “PII” to advertisers. (FAC ¶ 78(iii).) Although Plaintiffs have used, in this set of alternative

19

facts, an extremely vague allegation that “PII” 10 is provided to Facebook and sent to advertisers,

20

Plaintiffs clearly allege elsewhere in the FAC that it is actually User IDs and/or Usernames that

21

are sent to advertisers via referrer headers. (See FAC ¶¶ 76-77.) These specific allegations trump

22

the vaguely generalized assertion that “PII” is sent to advertisers. See Chem. Device Corp. v. Am.

23
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

10

To the extent that Plaintiffs’ vague allegation concerning the provision of “PII” may suggest
that something more than User IDs or Usernames (such as real names or profile pictures) was
provided to advertisers, the documents that Plaintiffs themselves cite and rely on state in explicit
terms that basic User information, such as Users’ real names and profile pictures, shall be
publicly available. (Yang Decl. Ex. B ¶ 3; id. Ex. C ¶ 2.) Plaintiffs’ allegation that such
information was provided for the “sole purpose of communicating that information . . . to friends”
is therefore contradicted by the documents on which they rely, and the court may refuse to accept
the allegation as true.
13.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Cyanamid Co., No. C-89-1739 WHO, 1990 WL 56164, at *3 (N.D. Cal. Jan. 11, 1990) (“[T]he

2

Court is not bound to accept conclusory legal allegations in the complaint when more specific

3

allegations in the pleadings are at variance with those conclusions.”) (citing Heller v. Roberts,

4

386 F.2d 832 (2d Cir. 1976)); accord Perlman v. Zell, 938 F. Supp. 1327, 1347 (N.D. Ill. 1996)

5

(where specific factual allegations conflict with general allegations, the specific allegations

6

control). Regardless, this allegation specifically states that the User sends this information “to

7

Defendant.” Accordingly, Facebook is an intended recipient of such information under Plaintiffs’

8

own allegation, and the exception under § 2702(b)(3) applies.

9

Plaintiffs’ fourth and final set of alternative allegations is a variation on the third set, in

10

which Plaintiffs state that “when a Facebook user clicks on an ad, the user does not intend to send

11

Facebook nor the Advertiser any information regarding his or her true identity.” (FAC ¶ 78(iv).)

12

Again, Plaintiffs concede that this information constitutes “records” (id.), not “contents of

13

communications”; therefore, Facebook may disclose it under the express provisions of

14

§ 2702(c)(6). (See infra § IV(A)(2).) And, again, even if this allegation were construed to mean

15

that this information was “contents of communications,” the “intended recipient” exception

16

would apply. Whatever “the information regarding his or her true identity” may be (which the

17

FAC leaves intentionally vague), the only information allegedly disclosed by Facebook is the

18

User’s Username or User ID, which, as discussed above, is subject to the § 2702(b)(3) “intended

19

recipient” exception.

20

As with the original Complaint, the alleged “communications” that form the basis of

21

Plaintiffs’ SCA claim were from Plaintiffs to either Facebook or advertisers. In either scenario,

22

statutory exceptions apply, and Count II of the FAC should be dismissed with prejudice.

23
24

2.

The disclosures alleged in the FAC did not involve the “contents of a
communication” under the Wiretap Act or the SCA.

25

Plaintiffs’ allegations center on disclosure of User IDs and Usernames included in referrer

26

headers (i.e., within the referrer URL containing the Internet address of the webpage) transmitted

27

by third-party browsers to advertisers.

28

“communication” within the intended scope of the statutes, but simply identifies the location of a

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

As an initial matter, a referrer URL is not a

14.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

webpage on the Internet, much as, for example, a postal address is not the communication itself,

2

but simply an identification of a location. Plaintiffs thus fail to satisfy the threshold requirement

3

under the Wiretap Act and the SCA that the alleged disclosures involve a “communication.” See

4

18 U.S.C. §§ 2510(12); 2711(1).

5

Facebook also cannot be held liable because only the disclosure of “the contents of a

6

communication” while in transmission or in electronic storage by a service provider is prohibited.

7

See 18 U.S.C. §§ 2511(3)(a), 2702(a)(1), 2702(a)(2) (emphasis added). The “contents” of a

8

communication means “any information concerning the substance, purport, or meaning of that

9

communication.” 18 U.S.C. § 2510(8). Basic information such as a User ID or Username does

10

not constitute the “contents” of a communication, but instead constitutes, at most, a User

11

“record,” which is governed by separate statutory provisions that do not prohibit disclosure. See

12

Jessup-Morgan v. Am. Online, Inc., 20 F. Supp. 2d 1105, 1108 (E.D. Mich. 1998) (holding

13

disclosure of an AOL User ID was not the “‘content’ of electronic communications” under

14

18 U.S.C. § 2702). The User records that were allegedly disclosed by Facebook do not reveal the

15

substance of any private communications. See id. (noting customer account information is not the

16

content of a communication); cf. United States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977) (a pen

17

register does not reveal the “‘contents’ of communications” under the Wiretap Act (as it existed

18

before amendments in 1986) because it does not reveal the existence of a communication, just the

19

telephone number).

20

This distinction was recently recognized by another court in the Northern District of

21

California in Sams v. Yahoo!, Inc., No. cv-10-5897-JF (HRL), 2011 WL 1884633, at *7 (N.D.

22

Cal. May 18, 2011). In that case, the plaintiff challenged Yahoo’s disclosure of records under the

23

SCA, arguing the government’s subpoena was invalid. Id. at *2. The disclosure included all

24

records regarding “the Yahoo! ID ‘lynnsams’ or ‘[e-mail]’ . . . including name and

25

address, date account created, account status, Yahoo! E-mail [sic] address, alternative e-mail

26

address, registration from IP, date IP registered and login IP addresses associated with session

27

time and dates.” Id. at *6. The court reasoned that all such information “is not content-based”

28

information subject to strict restrictions but “user identification information” which could be

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

15.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

disclosed, without notice to the user, under 18 U.S.C. § 2703(c)(2). Sams, 2011 WL 1884633, at

2

*7. The court also rejected the plaintiff’s argument that all aspects of a communication, including

3

the identity of the parties, was intended to be protected by the SCA, because the 1986

4

amendments struck out the phrase “the identity of the parties to such communication or the

5

existence” of the communication from 18 U.S.C § 2510(8)’s definition of contents. Id. at *6-7.

6

This distinction between “contents of a communication,” which are controlled by

7

§§ 2702(a)(1) and (a)(2), and “customer records,” which are controlled by § 2702(a)(3), is

8

regularly recognized by the courts. For instance, §§ 2702(a)(1) and (a)(2) are applied to actual

9

communications that by their nature contain “content.” See Theofel v. Farey-Jones, 359 F.3d

10

1066, 1070 (9th Cir. 2004) (applying § 2702(a)(2) to email messages); Quon v. Arch Wireless

11

Operating Co., 529 F.3d 892, 900 (9th Cir. 2008) (applying §§ 2702(a)(1) and (a)(2) to text

12

messages), rev’d on other grounds, 130 S. Ct. 2619 (2010); Crispin v. Christian Audigier, Inc.,

13

717 F. Supp. 2d. 965, 972 (C.D. Cal. 2010) (applying §§ 2702(a)(1) and 2702(a)(2) to private

14

messages and posts on social networking sites); Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D.

15

256, 264 (S.D.N.Y. 2008) (applying §2702(a)(2) to videos). In contrast, § 2702(a)(3) has been

16

applied to subscriber identification information, i.e., customer records. See Jessup, 20 F. Supp.

17

2d at 1108 (applying § 2702(a)(3) to AOL User ID); Freedman v. Am. Online, Inc., 325 F. Supp.

18

2d 638, 646 (E.D. Va. 2004) (applying § 2702(a)(3) to Internet subscriber account information

19

such as user’s screen name and membership start date).

20

The distinction between the “contents of a communication” and a user “record” is

21

important because the statutes place much more restrictive limits on the disclosure of the contents

22

of communications than they do on the disclosure of user records. For instance, under the SCA, a

23

provider has broad discretion to disclose a customer record “to any person other than a

24

governmental entity,” 18 U.S.C. § 2702(c)(6), or to a governmental entity when authorized by

25

§ 2703, id. § 2702(c)(1).

26

communication service provider or a remote computing service provider to disclose customer

27

“records,” including a User’s name, address, telephone connection records, records of session

28

times and durations, service utilization, subscriber number or identity (including temporarily

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Under § 2703(c), a government entity can require an electronic

16.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

assigned network address), and payment methods.

2

Usernames that Plaintiffs allege Facebook disclosed constitute, at most, a “subscriber number or

3

identity,” which is specifically defined by statute as a “record,” not “contents of a

4

communication.” See id. § 2703(c)(2); see also United States v. Kennedy, 81 F. Supp. 2d 1103,

5

1107-09 (D. Kan. 2000) (applying § 2703(c) to Internet subscriber account information, including

6

name, e-mail address, and membership history); Freedman v. Am. Online, Inc., 412 F. Supp. 2d

7

174, 181 (D. Conn. 2005) (noting for Fourth Amendment purposes courts have “universally” held

8

there is a distinction between “the content of electronic communications, which [are] protected,

9

and non-content information, including a subscriber’s screen name and corresponding identity,

10

which [are] not”). Under the express provisions of § 2702(c)(6), Facebook may disclose such

11

“records” to “any person other than a governmental entity,” including a third-party advertiser.

Id. § 2703(c)(2).

The User IDs and

12

The language and structure of the Wiretap Act and the SCA reflect that the information of

13

which Plaintiffs complain (User IDs and Usernames) are, at most, User “records,” not “contents

14

of communications.” Counts I and II should be dismissed with prejudice for this reason as well.

15
16
17
18
19
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ATTORNEYS AT LAW
SAN FRANCISCO

3.

The FAC does not allege facts plausibly suggesting Facebook divulged
a communication “while in transmission” under the Wiretap Act.

Plaintiffs’ allegations under the Wiretap Act are insufficient for an additional, independent
reason: they do not allege that Facebook “divulged” their User IDs or Usernames contemporaneously with transmission of that information by Plaintiffs. See Konop, 302 F.3d at 876-79
(Wiretap Act covers only communications “in transmission” and not “in storage”). (FAC ¶¶ 5867; see also id. ¶ 62 (acknowledging that the Wiretap Act covers only disclosure of
communications “while in transmission,” stating that “[t]he Wiretap Act prevents an electronic
communications service provider from intentionally divulging the contents of any communication
while in transmission on that service . . . .”) (emphasis added).)
Here, Plaintiffs allege that Facebook improperly divulged their “user identities and other
user information to advertisers without their consent” (FAC ¶ 65), which Plaintiffs allege
occurred when they “click[ed] on an advertisement banner” on Facebook (FAC ¶ 64). But the
FAC alleges that Plaintiffs’ User IDs and User Names were transmitted to Facebook at an earlier
17.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

time—namely, when they registered for the site—rather than when Plaintiffs later clicked on an

2

advertisement. (See, e.g., FAC ¶ 12 (alleging that Users provide their names when they register

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to use facebook.com); id. ¶ 73 (“When a user signs up for Facebook’s services, the user provides

4

PII to Defendant . . . .”).) Plaintiffs therefore do not allege that their User IDs or Usernames were

5

divulged by Facebook while in transmission—i.e., at the same time Plaintiffs originally

6

transmitted them to Facebook. Thus, the Wiretap Act claim should be dismissed with prejudice.

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4.

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SAN FRANCISCO

To the extent Plaintiffs’ SCA claim is based on hypothetical allegations
of advertisers viewing Users’ profile pages, it should be dismissed.

Although unclear, Plaintiffs appear to allege an alternative factual theory in support of
their SCA claim—their vague and speculative allegations (with no supporting facts or specific
examples) that, with a User ID or Username obtained from a referrer header, an advertiser could
possibly have navigated to a User’s profile page and viewed information posted there. (See FAC
¶¶ 27, 36-37, 83.) Plaintiffs appear to allege that the information on a User’s profile page
constitutes the contents of stored communications—that is, communications from the User to
Facebook. And, according to this theory, if an advertiser were to navigate to a User’s profile
page (using a User ID or Username obtained from a referrer header) and see the information
there—including the User’s real name, profile picture, gender, etc.—such viewing by the
advertiser would somehow constitute an improper disclosure by Facebook under the SCA. (See
FAC ¶¶ 80-83.) To the extent Plaintiffs rest their SCA claim on this alternative theory,11 the
claim should be dismissed for reasons in addition to those above (see supra §§ IV(A)(1)–(2)).
First, Plaintiffs have not adequately alleged that any information was “divulged” by
anyone—certainly not Facebook—a necessary starting point for any SCA claim. See 18 U.S.C.
§§ 2702(a)(1)–(2). According to this theory, a third party may have navigated to a particular
webpage and viewed information that was publicly visible there.
11

In their opposition to Facebook’s earlier motion to dismiss the original Complaint, Plaintiffs
stated that their theory is “not that Facebook disclosed information voluntarily published on User
profiles to advertisers” and that “this is not the crux of Plaintiffs’ claims.” (Plaintiffs’ Opposition
to Facebook’s Motion to Dismiss Consolidated Class Action Complaint, 16 & n.12 (emphasis
added).) Facebook makes the argument here given that the same or similar language is still
contained in the FAC.
18.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Second, as demonstrated above (see supra §§ IV(A)(1)–(2)), disclosure of a User ID or

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Username in a referrer header is not a violation of the SCA; thus, subsequent use of the properly

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disclosed User ID or Username by a third party (not Facebook) to navigate to a webpage cannot

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be the basis for an independent violation of the SCA by Facebook.

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Third, to the extent Plaintiffs allege an advertiser may have viewed a User’s profile page,

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the advertiser could have viewed only what was accessible to any other third party on the Internet.

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The FAC concedes that Users voluntarily provide the information posted on their profile pages

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for the purpose of sharing that information with others online. (FAC ¶¶ 11, 13.) And Plaintiffs

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have alleged no facts whatsoever (nor can they) that any information that could have been

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accessed by third-party advertisers on their profile pages was private or unavailable to the general

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public. Instead, any such information was made publicly available by the User to everyone on the

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Internet. Furthermore, Users’ names, profile pictures, and certain basic information are always

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publicly available on Facebook, as plainly disclosed in Facebook’s Privacy Policy and Privacy

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Guide. (Yang Decl. Ex. B ¶ 3; id. Ex. C ¶ 2.) Accordingly, everyone on the Internet, including

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advertisers, were the intended recipients of such information on a User’s profile page, and the

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exception to liability applies. 18 U.S.C. § 2702(b)(1) (service provider “may divulge the contents

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of a communication . . . to an addressee or intended recipient of such communication”).

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Fourth, the SCA does not prohibit disclosure of communications if the system “is

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configured so that such electronic communication is readily accessible to the general public.” 18

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U.S.C. § 2511(2)(g)(i) (applicable to “this chapter [the Wiretap Act] or chapter 121 of this title

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[the SCA]”).

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Wiretap Act and concluded a presumption of accessibility applies only in narrow circumstances,

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such as traditional radio technology or broadcast radio, wherein the communication medium is

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designed or intended to be public. In re Google Inc. Street View Elec. Commc’ns Litig., No. CV

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10-MD-02184-JW, at *19 (N.D. Cal. June 29, 2011).12 An Internet page configured to display to

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ATTORNEYS AT LAW
SAN FRANCISCO

Recently, this Court interpreted the “readily accessible” exception under the

The Google Street View case involved allegations that Google collected a substantial amount of
data from individuals’ home Wi-Fi networks via mobile software technology that decoded and
decrypted the data as it streamed wirelessly, including usernames, passwords and personal emails.
In support of its motion to dismiss claims brought under the Wiretap Act, Google argued that
19.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

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all Internet users everywhere fits comfortably within the presumption, as it is part of a medium

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that is designed or intended to be public, i.e., publicly available Internet pages.

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The application of the “readily accessible” exception to publicly available Internet pages

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has been recognized by the Eleventh Circuit in Snow v. DirecTV, Inc., 450 F.3d 1314, 1321-22

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(11th Cir. 2006).

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concluded that “[t]he legislative history and the statutory structure clearly show that Congress did

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not intend to criminalize or create civil liability for acts of individuals who ‘intercept’ or ‘access’

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communications that are otherwise readily accessible by the general public.” Id. at 1320-21.

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This included the “World Wide Web” in instances where “individuals can easily and readily

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access websites hosted throughout the world.” Id. at 1321-22 (holding “[t]o survive a motion to

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dismiss, [Plaintiff] must have alleged, at a minimum, facts from which we could infer that his

12

electronic bulletin board was not readily accessible to the general public”). Because Plaintiffs do

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not point to any private communication that allegedly was divulged to an advertiser, the SCA

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claim must be dismissed. See 18 U.S.C. §§ 2511(2)(g)(i).

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For the foregoing reasons, Plaintiffs fail to state a claim under the Wiretap Act or the
SCA, and Counts I and II should be dismissed with prejudice.

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B.

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SAN FRANCISCO

In that case, the court analyzed the “readily accessible” exception, and

Plaintiffs Do Not Allege Facebook Introduced a Computer Contaminant, As
Required Under California Penal Code § 502(c)(8) (Count IV).

To state a claim under California Penal Code § 502(c)(8), Plaintiffs must allege that
Facebook introduced a computer contaminant13 into their computer, system or network. As the
such Wi-Fi communications were “readily accessible to the general public” and thus qualified for
an exemption on liability under 18 U.S.C. § 2511(2)(g)(i). Facebook contends that the “readily
accessible to the general public” exception should not be restricted exclusively to traditional radio
broadcasts.
13

A contaminant is defined by section 502(b)(10) as “any set of computer instructions that are
designed to modify, damage, destroy, record, or transmit information within a computer,
computer system, or computer network without the intent or permission of the owner of the
information. They include, but are not limited to, a group of computer instructions commonly
called viruses or worms, that are self-replicating or self-propagating and are designed to
contaminate other computer programs or computer data, consume computer resources, modify,
destroy, record, or transmit data, or in some other fashion usurp the normal operation of the
computer, computer system, or computer network.” Cal. Penal Code § 502(b)(10).
20.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Court noted when it dismissed the original Complaint, Plaintiffs had failed to allege “any facts

2

suggesting that Defendant introduced computer instructions designed to ‘usurp the normal

3

operation’ of a computer, computer system or computer network” that would support a claim

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under California Penal Code ¶ 502(c)(8). (See Dismissal Order at 13 n.11.) The FAC does not

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allege any additional facts to alter this conclusion.

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The FAC keeps the original conclusory statement that Facebook “introduced a computer

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contaminant, as defined in § 502(b)(10), by introducing computer instructions designed to record

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or transmit to advertisers Plaintiffs’ and the Class’s personally-identifiable information on

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Facebook’s computer networks without the intent or permission of Plaintiffs . . . in violation of

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§ 502(c)(8).”

(FAC ¶ 104.)

It then adds the equally conclusory statement that “[t]hese

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instructions usurped the normal operations of the relevant computers, which by normal operation

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would not transmit the PII of Plaintiff and/or the Class members.” (Id.) Plaintiffs have not

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alleged what contaminant Facebook introduced or how their computers operated differently after

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the alleged contaminant was introduced. Nor have Plaintiffs alleged that the instructions were

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actually introduced onto their computers, systems, or networks rather than simply being a part of

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how the Facebook website operates and indeed how the Internet works. Plaintiffs simply heap

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repetitions of the statute’s elements on top of legal conclusions that the Court has already found

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insufficient. As courts have often observed, “conclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v.

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Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); accord Iqbal, 129 S. Ct. at 1949 (citing

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Twombly, 550 U.S. at 555 (“[t]hreadbare recitals of the elements of the cause of action, supported

22

by mere conclusory statements,” are not taken as true).

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Plaintiffs’ own allegations also recognize that the referrer header function is “a standard

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web browser function provided by web browsers since the HTTP 1.0 specification in May 1996.”

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(FAC ¶ 41.) They allege that the disclosure of Usernames or User IDs occurs when developers

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use “GET based forms for the submission of sensitive data” and that this issue is “well known”

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among developers.

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analogous to “self-replicating or self-propagating” viruses or worms intended to “contaminate

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

(Id. ¶ 42.)

A well-recognized software development function is not

21.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

other computer programs” that “usurp” the computer’s normal function. Under Plaintiffs’ theory,

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any computer program that works as intended, but has unintended consequences, would make the

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developer criminally liable and subject him or her to vast civil liability. Plaintiffs’ allegations are

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thus as baseless as Plaintiffs’ original assertion that Facebook acted “without permission” when it

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accessed information within its own system.

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Because Plaintiffs have failed to allege facts sufficient to support their claim under section
502(c)(8), their claim should be dismissed with prejudice.

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C.

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Plaintiffs’ Breach of Contract Claim Must Be Dismissed for Failure to Allege
that Plaintiffs Have Suffered, or are Likely to Suffer, Any Actual Damages As
a Result of a Breach (Count VI).

10

This Court dismissed the breach of contract claim in the original Complaint, “with leave

11

to amend to allege specific facts showing appreciable and actual damages in support of their

12

claim, if so desired.” (Dismissal Order at 15.) See also In re Zynga Privacy Litig., No. 10-cv-

13

04680 JW, at 4-5, 6. As with the original Complaint, Plaintiffs again fail to allege specific facts

14

sufficient to support a claim that they have suffered appreciable and actual damage. This Court

15

should dismiss Plaintiffs’ breach of contract claim with prejudice.

16

In order to state a cause of action for breach of contract, Plaintiffs must plead four

17

elements: “[1] the contract, [2] plaintiffs’ performance (or excuse for nonperformance), [3]

18

defendant’s breach, and [4] damage to plaintiffs therefrom.” Gautier v. Gen. Tel. Co., 234 Cal.

19

App. 2d 302, 305 (1965). Damages are essential to the claim. See First Commercial Mortg. Co.

20

v. Reece, 89 Cal. App. 4th 731, 745 (2001). Further, “[u]nder California law, a breach of a

21

contract claim requires a showing of appreciable and actual damage.” Ruiz v. Gap, Inc., 622 F.

22

Supp. 2d 908, 917 (N.D. Cal. 2009) (emphasis added); accord Dismissal Order at 15.14

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In the FAC, Plaintiffs make it clear that they cannot allege any actual and appreciable
damage.

Plaintiffs still include no plausible allegation that Facebook gave any personal

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Pursuant to the SRR, California law governs claims arising between the parties. (Yang Decl.
Ex. A ¶ 15(1).) Accordingly, Facebook analyzes the common-law cause of action in the FAC
(breach of contract) under California law.
22.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

information to an advertiser.15

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property loss specific to Plaintiffs or any other User—nor could they because Facebook is a free

3

service. In fact, the primary change to Plaintiffs’ breach of contract claim allegations appears to

4

be that they have replaced the word “injury” with the word “damages.” (Compare original

5

Compl. ¶ 109 with first sentence of FAC ¶ 122.) Plaintiffs also reiterate the allegations from their

6

original Complaint that Plaintiffs and Class members “paid” for Facebook’s services with

7

personal information—a theory already rejected by this Court. (See Dismissal Order at 14

8

(“Plaintiffs’ contention that their personal information constitutes a form of ‘payment’ to

9

Defendant is unsupported by law.”).) Such conclusory allegations of harm and unsupported (and,

10

in fact, rejected) legal theories do not state a claim for relief. See Twombly, 550 U.S. at 555.

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D.

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SAN FRANCISCO

Moreover, the FAC contains no allegations of monetary or

Plaintiffs Fail to State a Claim Under California Civil Code §§ 1572 and 1573
(Count VII).

Plaintiffs have not alleged facts sufficient to state a claim for violation of California Civil
Code §§ 1572 and 1573, which relate to actual and constructive fraud in the formation of
contracts. An action sounding in fraud must be pled with particularity under Federal Rule of
Civil Procedure 9(b) to give defendants adequate notice of the allegations. See Kearns v. Ford
Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). Thus, to satisfy Rule 9(b), “[a]verments of
fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct
charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted).
Furthermore, “[t]he plaintiff must set forth what is false or misleading about a statement, and why
it is false.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc),
superseded by statute on other grounds as stated in In re Silicon Graphics, Inc. Sec. Litig., 970 F.
15

Multiple courts have held that conclusory allegations of injury based on disclosure of personal
information do not constitute actionable damages for a breach of contract claim. See, e.g., Ruiz,
622 F. Supp. 2d at 917 (under California law, “[plaintiff] cannot show he was actually damaged
by pointing to his fear of future identity theft”); In re JetBlue Airways Corp. Privacy Litig., 379 F.
Supp. 2d 299, 326-27 (E.D.N.Y. 2005) (loss of privacy and deprivations of “economic value”
based on disclosure of personal information did not constitute actionable damages for a breach of
contract action); Dyer v. Nw. Airlines Corps., 334 F. Supp. 2d 1196, 1200 (D.N.D. 2004)
(dismissing breach of contract claim premised on “conclusory statements” of damage from
disclosure of personal information).
23.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Supp. 746, 754 (N.D. Cal. 1997). Plaintiffs must provide support for each allegation, and “mere

2

conclusory allegations of fraud are insufficient.” Moore v. Kayport Package Express, Inc., 885

3

F.2d 531, 540 (9th Cir. 1989).

4

Plaintiffs’ allegations do not satisfy the heightened Rule 9(b) pleading standard. Plaintiffs

5

allege that Facebook made statements in its Privacy Policy and in blog postings that Users’

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personal information would not be provided to third parties without consent. (FAC ¶¶ 27-31,

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126.)

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representation was false. In fact, Plaintiffs do not point to a single instance where Facebook

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provided any personal information associated with the named Plaintiffs (or any putative class

10

But Plaintiffs fail to allege with specificity—as they must—how any particular alleged

member) to a third-party advertiser in violation of its stated policies or otherwise.

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Plaintiffs furthermore fail to plead any particular facts regarding the advertisements

12

displayed on Facebook that they allegedly clicked on. While they state that each of them “clicked

13

on at least one third-party advertisement displayed on Facebook.com” (FAC ¶¶ 4-5), they do not

14

state when they clicked on such ads, except that they did so “during the relevant time period,”

15

with no indication of what “the relevant time period” refers to. (Id.) This question of “when”

16

Plaintiffs clicked on advertisements is fundamental. While Plaintiffs have defined their class to

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include Users who clicked on ads “at any time after May 28, 2006” (FAC ¶ 45)—and, thus,

18

Plaintiffs may be relying on May 28, 2006 to present as “the relevant time period”—the FAC

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alleges that (1) a February 2010 website “upgrade” led to the inclusion of more “detailed data” in

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referrer headers and (2) Facebook ceased such transmissions in or around May 2010. (See FAC

21

¶¶ 38-39.) Plaintiffs’ general allegation leaves open the dispositive question of whether Plaintiffs

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actually clicked on an advertisement during the time period in which “detailed data” was

23

allegedly sent in referrer headers, or at some point before or after that time period. This Court

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recently dismissed claims against Google related to alleged disclosure of personal information in

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referrer headers for this exact reason. See Gaos v. Google, No. 10-CV-04809-JW, at *5 (N.D.

26

Cal. Apr. 7, 2011) (dismissing all claims for lack of Article III standing because “Plaintiff failed

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to plead that she clicked on a link from the Google search page during the same time period that

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Defendant allegedly released search terms via referrer headers”).

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

24.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW

1

Finally, as discussed above (supra § IV(C)), Plaintiffs once again fail to plead that they

2

suffered damages—a necessary element of any fraud claim. See Engalla v. Permanente Med.

3

Grp., 15 Cal. 4th 951, 974 (1997); Small v. Fritz Co., 30 Cal. 4th 167, 173-74 (2003). The

4

disclosure of personal information is not a loss of property under California law. See Ruiz v. Gap,

5

Inc., 540 F. Supp. 2d 1121, 1128 (N.D. Cal. 2008); Thompson v. Home Depot, Inc., No. 07-cv-

6

1058 IEG (WMc), 2007 WL 2746603, at *3 (S.D. Cal. Sept. 18, 2007). Nor have Plaintiffs

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articulated any other grounds supporting damages.

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prejudice.

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E.

Count VII should be dismissed with

Plaintiffs’ Claims Should Be Dismissed with Prejudice.

10

Plaintiffs’ claims should be dismissed with prejudice. Even with the Court’s Dismissal

11

Order as guidance, Plaintiffs have been unable to allege legally sufficient claims. Instead, they

12

have merely used their opportunity to amend to make superficial, cosmetic changes to their

13

original allegations, which were already dismissed by the Court for failure to state a claim. Given

14

Plaintiffs’ failure to put forward legally sufficient allegations, granting Plaintiffs leave to amend

15

would be futile and dismissal with prejudice is appropriate. See Steckman v. Hart Brewing, Inc.,

16

143 F.3d 1293, 1298 (9th Cir. 1998) (leave to amend should not be granted where amendment

17

would be futile); Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (a “district

18

court’s discretion to deny leave to amend is particularly broad where plaintiff has previously

19

amended the complaint” (citation omitted)).

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V.

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CONCLUSION
For the foregoing reasons, Plaintiffs fail to state a claim as a matter of law, and the First

Amended Consolidated Class Action Complaint should be dismissed with prejudice.

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Dated: July 15, 2011

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

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ATTORNEYS AT LAW
SAN FRANCISCO

25.

MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION COMPLAINT
CASE NO. 10-CV-02389-JW