"In Re: Facebook Privacy Litigation"

Filing 98

Request for Judicial Notice re 96 MOTION to Dismiss FACEBOOK, INC.S MOTION TO DISMISS FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT filed byFacebook, Inc.. (Related document(s) 96 ) (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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Case No. 10-CV-02389-JW

IN RE: FACEBOOK PRIVACY
LITIGATION

FACEBOOK, INC.’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS FIRST AMENDED
CONSOLIDATED CLASS ACTION
COMPLAINT

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Date:
Time:
Courtroom:
Judge:
Trial Date:

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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

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT pursuant to Federal Rule of Evidence 201, Defendant
Facebook, Inc. (“Facebook”) hereby requests that the Court take judicial notice of the following
documents in support of its Motion to Dismiss the First Amended Consolidated Class Action
Complaint (“FAC”). All referenced exhibits are attached to the supporting Declaration of Ana
Yang Muller, filed herewith:
Exhibit A: Facebook’s Statement of Rights and Responsibilities.
Exhibit B: Facebook’s Privacy Policy.
Exhibit C: Facebook’s Privacy Guide.
1.

FACEBOOK’S REQ. FOR JUD. NOTICE
I/S/O MOTION TO DISMISS THE FAC
NO. 10-CV-02389-JW

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POINTS AND AUTHORITIES IN SUPPORT OF JUDICIAL NOTICE

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The documents listed above (Exhibits A-C to the Declaration of Ana Yang Muller) are

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proper subjects for judicial notice and the Court should consider them when ruling on Facebook’s

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Motion to Dismiss the First Amended Consolidated Class Action Complaint.

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I.

LEGAL STANDARD

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When ruling on a motion to dismiss, a court may consider any matter that is subject to

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judicial notice. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); Tellabs, Inc.

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v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Judicial notice is appropriate for facts

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“not subject to reasonable dispute” that are either generally known within the jurisdiction of the

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trial court or are “capable of accurate and ready determination by resort to sources whose

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accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts in this District have

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held that “as a general matter, websites and their contents may be proper subjects for judicial

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notice” provided that the party provides the court with a copy of the relevant web page. Caldwell

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v. Caldwell, No. C 05-4166, 2006 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006); see also Frances

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Kenny Family Trust v. World Sav. Bank FSB, No. C 04-03724 WHA, 2005 WL 106792, at *1

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(N.D. Cal. Jan. 19, 2005) (finding content on plaintiffs’ website to be proper matter for judicial

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notice).

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Moreover, the Ninth Circuit has recognized that in ruling on a motion to dismiss, “in order

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to ‘[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting . . .

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documents upon which their claims are based,’ a court may consider a writing referenced in a

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complaint but not explicitly incorporated therein if the complaint relies on the document and its

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authenticity is unquestioned.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citing

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Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (later superseded by statute)

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(incorporating by reference insurance terms of service and administrative documents because the

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claim necessarily relied on plaintiff having been a member of the insurance plan); Wietschner v.

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Monterey Pasta Co., 294 F. Supp. 2d 1102, 1108-09 (N.D. Cal. 2003) (judicially noticing press

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releases cited in the complaint). This allows the court to consider the full text of a document that

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

FACEBOOK’S REQ. FOR JUD. NOTICE
I/S/O MOTION TO DISMISS THE FAC
NO. 10-CV-02389-JW

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the plaintiff’s complaint relies on but only partially references. See, e.g., In re Copper Mountain

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Sec. Litig., 311 F. Supp. 2d 857, 864 (N.D. Cal. 2004).

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II.

THE COURT SHOULD TAKE JUDICIAL NOTICE OF EXHIBITS A, B, AND C

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The accuracy of each of the referenced exhibits is not subject to reasonable dispute and

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can be readily determined from sources whose accuracy cannot reasonably be questioned. All of

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the exhibits are explicitly referenced by Plaintiffs in their FAC, with references to the website

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address (technically called the Uniform Resource Locator (“URL”)) where each document may

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be located. (FAC ¶¶ 27, 28, 29.) Moreover, the FAC relies on these documents, explicitly

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alleging that each Facebook user must “agree to [the] Privacy Policy upon registering with the

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site” and “affirm that they have ‘read and agree[d] to’ Facebook’s Terms of Use (a hyperlink to

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the document entitled Statement of Rights and Responsibilities) . . . .” (FAC ¶ 33.) The FAC

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alleges that Facebook violated the “Privacy Policy and [] the representations quoted above . . . .”

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(FAC ¶ 34.) The “representations quoted above” that the FAC refers to include portions of the

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Statement of Rights and Responsibilities, Privacy Policy, and Privacy Guide quoted by Plaintiffs,

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among others. (See, e.g., FAC ¶¶ 27, 28, 29.) The FAC does not question the authenticity of the

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cited documents and in fact relies on their accuracy to make Plaintiffs’ allegations. See Swartz,

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476 F.3d at 763 (where the complaint relies on a portion of a document and does not question its

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authenticity, the court may take judicial notice of the entire document). Therefore, because the

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FAC relies on the documents contained in Exhibits A, B, and C, whose authenticity is not subject

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to dispute and can be readily determined from sources whose accuracy cannot reasonably be

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questioned, Defendants’ Request for Judicial Notice should be granted as to each exhibit.

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III.

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For the foregoing reasons, Defendant respectfully requests that the Court take judicial

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CONCLUSION

notice of Exhibits A, B, and C.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

FACEBOOK’S REQ. FOR JUD. NOTICE
I/S/O MOTION TO DISMISS THE FAC
NO. 10-CV-02389-JW

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Dated: July 15, 2011

COOLEY LLP
/s/ Matthew D. Brown
_______________________________

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

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1226940 /SF

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

FACEBOOK’S REQ. FOR JUD. NOTICE
I/S/O MOTION TO DISMISS THE FAC
NO. 10-CV-02389-JW