Lalo v. Apple, Inc et al

Filing 159

REPLY in Support of ( 145 MOTION to Dismiss First Consolidated Class Action Complaint ) filed by AdMarval, Inc, Admob, Inc, Flurry, Inc., Mellenial Media, MobClix, Pinch Media, Inc., Quattro Wireless, Inc., TrafficMarketplace.com. Inc.. (Beringer, Susan) (Filed on 8/3/2011) Modified text on 8/5/2011 (dhm, COURT STAFF).

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GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
[e-mail]
S. ASHLIE BERINGER, SBN 263977
[e-mail]
JOSHUA A. JESSEN, SBN 222831
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
FLURRY, INC.
PINCH MEDIA, INC.
[Counsel For Additional Mobile Industry
Defendants Listed On Signature Page]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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In re iPhone Application Litigation

Case No. 10-CV-05878 LHK (PSG)

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CLASS ACTION

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MOBILE INDUSTRY DEFENDANTS’
REPLY IN SUPPORT OF MOTION TO
DISMISS FIRST CONSOLIDATED CLASS
ACTION COMPLAINT

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HEARING:
Date:
September 1, 2011
Time:
1:30 p.m.
Place:
Courtroom 4
Judge:
The Honorable Lucy H. Koh

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT........................................................ 1

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II.

ARGUMENT ............................................................................................................................ 2

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A.

Plaintiffs Lack Standing To Pursue Their Claims ........................................................ 2

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1.

Plaintiffs Lack Article III Standing ................................................................... 2

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2.

Plaintiffs Lack Standing Under California’s Unfair Competition
Law.................................................................................................................... 6

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B.

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The Complaint’s Allegations Against The Mobile Industry Defendants
Are Insufficient Under Rule 8(a) .................................................................................. 8

C.

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Each Of Plaintiffs’ Separate Claims Against The Mobile Industry
Defendants Fails To State A Claim............................................................................. 10
1.

Plaintiffs Fail To State A Claim Under California’s Computer
Crime Law ....................................................................................................... 12

3.

Plaintiffs Fail To State A Claim For Trespass To Chattels............................. 13

4.

Plaintiffs Fail To State A Claim Under California’s Unfair
Competition Law............................................................................................. 14

5.

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Plaintiffs’ Claim For Violation Of The Computer Fraud And
Abuse Act Fails As A Matter Of Law............................................................. 10

2.

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California Does Not Recognize A Claim For Unjust Enrichment .................. 15

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III.

CONCLUSION ....................................................................................................................... 15

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TABLE OF AUTHORITIES
Page(s)

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Cases

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Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ...................................................................................................... 10, 13

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Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................................................ 11

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Birdsong v. Apple, Inc.,
590 F.3d 955 (9th Cir. 2009)..................................................................................................... 5

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Bova v. City of Medford,
564 F.3d 1093 (9th Cir. 2009)................................................................................................... 4

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Cohen v. Facebook, Inc.,
2011 WL 3100565 (N.D. Cal. June 28, 2011) .......................................................................... 7

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Dodaro v. Std. Pacific Corp.,
2010 WL 1330889 (C.D. Cal. Apr. 1, 2010)............................................................................ 4

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Doe I v. AOL, LLC,
719 F. Supp. 2d 1102 (N.D. Cal. 2010) .................................................................................... 7

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Hepting v. AT&T Corp.,
439 F. Supp. 2d 974 (N.D. Cal. 2006) ...................................................................................... 5

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In re Apple & AT&TM Antitrust Litig.,
2010 WL 3521965 (N.D. Cal. July 8, 2010) ........................................................................... 11

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In re Cathode Ray Tube (CRT) Antitrust Litig.,
738 F. Supp. 2d 1011 (N.D. Cal. 2010) .................................................................................... 9

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In re DoubleClick Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001) ..................................................................................... 15

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In re Facebook Privacy Litig.,
2011 WL 2039995 (N.D. Cal. May 12, 2011) .......................................................... 6, 8, 12, 13

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In re Google Inc. Street View Elec. Commc’n Litig.,
2011 WL 2571632 (N.D. Cal. June 29, 2011) .......................................................................... 7

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In re Providian Fin. Corp. ERISA Litig.,
2002 WL 31785044 (N.D. Cal. Nov. 14, 2002) ........................................................................ 9

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Intel Corp. v. Hamidi,
30 Cal. 4th 1342 (2003) .......................................................................................................... 13

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Kearns v. Ford Motor Co.,
567 F.3d 1120 (9th Cir. 2009)................................................................................................. 15

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La Court v. Specific Media, Inc.,
2011 WL 1661532 (C.D. Cal. April 28, 2011) ..................................................................... 5, 6

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TABLE OF AUTHORITIES (continued)
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Page(s)

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Lee v. Capital One Bank,
2008 WL 648177 (N.D. Cal. Mar. 4, 2008) .............................................................................. 4

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Levitt v. Yelp! Inc.,
C 10-1321 MHP (N.D. Cal. Mar. 22, 2011) ........................................................................... 15

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Lewis v. Casey,
518 U.S. 343 (1996) .................................................................................................................. 3

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Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .......................................................................................................... 3, 4, 6

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McHenry v. Renne,
84 F.3d 1172 (9th Cir. 1996)..................................................................................................... 9

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Nevis v. Wells Fargo Bank,
2007 WL 2601213 (N.D. Cal. Sept. 6, 2007) ........................................................................... 8

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Pac. Aerospace & Elecs., Inc. v. Taylor,
295 F. Supp. 2d 1188 (E.D. Wash. 2003) ............................................................................... 12

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Starr v. Sony BMG Music Entm’t,
592 F.3d 314 (2d Cir. 2010) ...................................................................................................... 9

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Waste Mgmt. of N. Am., Inc. v. Weinberger,
862 F.2d 1393 (9th Cir. 1988)................................................................................................... 6

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Statutes
Cal. Bus. & Prof. Code § 17200 ......................................................................................................... 14

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Cal. Penal Code § 502(b)(10) ............................................................................................................. 13

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Cal. Penal Code § 502(c)(1)-(8) .................................................................................................... 12, 13

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Rules

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Fed. R. Civ. P. 8(a)(2) ........................................................................................................................... 2

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT

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Plaintiffs’ prolix Opposition highlights the two essential failings of their Complaint: it contains

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not a single factual allegation of injury to any Plaintiff, and it contains not a single factual allegation of

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any act by any Mobile Industry Defendant at all, much less any act that caused any injury. Indeed, like

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the Complaint itself, the Opposition (1) makes no attempt to differentiate among the eight Mobile

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Industry Defendants (whom Plaintiffs acknowledge engage in a variety of different types of business),

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(2) fails to identify a single App downloaded by a single named plaintiff (which is the sole means

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through which Plaintiffs allege their unspecified “personal information” was collected by the Mobile

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Industry Defendants), (3) fails to identify a single relationship between a single Mobile Industry

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Defendant and a single App developer (much less an App developer whose App was downloaded by a

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named plaintiff), (4) fails to explain what “personal information” was collected about any named

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plaintiff (or which company supposedly collected the information), and (5) fails to provide a single

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specific detail or example of any economic harm or any other type of injury suffered by any named

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plaintiff. Plaintiffs’ Opposition thus confirms what was already apparent from their Complaint: Rather

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than filing suit against specific defendants who allegedly caused specific harm to specific plaintiffs in

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alleged violation of some legal duty (i.e., rather than presenting the Court with a “case or controversy”),

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Plaintiffs’ Complaint is nothing more than an amorphous policy critique of the core business model of

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the mobile application industry. Plaintiffs acknowledge as much when they insist that the practices they

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complain of here are “simply wrong—wrong for the class, and bad for our society.” Opp. at 1. If

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Plaintiffs genuinely believe that to be true, they should lobby Congress or the California legislature to

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prohibit the alleged practices. Under existing federal and state law, the alleged practices simply are not

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unlawful, and no one has been harmed by them here.

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The Complaint must be dismissed for each of the three reasons set forth in the Mobile Industry

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Defendants’ Motion. First, despite Plaintiffs’ conclusory allegations to the contrary, no one has

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suffered (or even alleged) an injury in fact—not the named plaintiffs and not unnamed members of the

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putative class. Certainly, if someone actually had been harmed, Plaintiffs could provide an example of

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that alleged harm. But they have not, and they cannot; instead, they speak only in generalities that are

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plainly insufficient to pass Article III muster. Moreover, Plaintiffs’ entire theory of injury here—that

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consumers are somehow harmed by the alleged collection of their unspecified “personal information”—

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simply has no basis in law and has been consistently rejected by courts.
Second, however Rule 8(a) may have been construed in a pre-Twombly/Iqbal era (and Plaintiffs

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rely upon a host of pre-Twombly/Iqbal case law), plaintiffs today simply cannot lump together eight

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unrelated defendants, announce “they [all] engaged in the same wrongful conduct” (Opp. at 24), provide

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no further details, and still satisfy Rule 8(a)’s requirement of “showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). Plaintiffs’ en masse pleading is insufficient.
Finally, none of Plaintiffs’ five claims against the Mobile Industry Defendants states a claim

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upon which relief can be granted. Plaintiffs’ contention that the practices alleged here violate two

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criminal statutes (the CFAA and California’s Computer Crime Law)—statutes that by their very nature

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must be strictly construed to pass constitutional muster—is utterly without support, as even a cursory

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examination of those statutes and their interpretative case law makes abundantly clear. Plaintiffs’ other

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claims also fail. Plaintiffs have no standing under California’s Unfair Competition Law because as

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courts (including several courts in this District) have repeatedly held, the collection of “personal

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information” does not constitute “lost money or property” under the UCL. Plaintiffs simply ignore the

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mountain of case law on this point. But even if Plaintiffs could establish standing under the UCL,

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Plaintiffs have pled no actual “unfair competition” here. Finally, Plaintiffs’ common law “trespass to

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chattels” claim fails under well-established California law (including the California Supreme Court’s

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decision in Intel), and California does not recognize a claim for “unjust enrichment” (of which there has

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been none, in any event), so that claim fails, as well.
II.

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A.

ARGUMENT

Plaintiffs Lack Standing To Pursue Their Claims

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1.

Plaintiffs Lack Article III Standing

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Plaintiffs’ standing argument boils down to two assertions, the first legal and the second

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factual: (1) “Injury-in-fact is not Mount Everest,” and an “identifiable trifle” of injury is sufficient

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under Article III (Opp. at 6), and (2) “Plaintiffs do allege and explain that ‘they themselves were

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injured’ and do so with great detail and frequency” (Opp. at 8). The Mobile Industry Defendants do

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not take issue with the applicable legal standard, but it does not help Plaintiffs here, because

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Plaintiffs do not (and cannot) point to a single, concrete example of harm.

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The Complaint mentions five named plaintiffs: Anthony Chiu; Dustin Freeman; Jonathan

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Lalo; Jared Parsley; and Daniel Rodimer. Compl. ¶¶ 8-13. These individuals are mentioned at the

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outset of the Complaint and never again. Plaintiffs’ counsel are well aware that at least one named

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plaintiff must have standing for the Court to have subject-matter jurisdiction over this putative class

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action, yet the Complaint does not allege how any of these named plaintiffs was harmed. Take Mr.

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Chiu, for example—what specific harm did he suffer? What “personal information” of his was

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collected, and how was he personally harmed by that collection? The Complaint does not say. What

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about Mr. Freeman. What was his harm? Was his personal iOS Device damaged somehow by the

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alleged actions of one of the Mobile Industry Defendants or Apple? If so, how was it damaged, and

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who damaged it? Once again, the Complaint is silent. And precisely the same thing is true of the

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three remaining named plaintiffs: the Complaint is devoid of a single detail about how they allegedly

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were harmed. This complete absence of “concrete and particularized” harm to a single named

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plaintiff mandates dismissal. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992) (“By

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particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”).

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Plaintiffs cannot skirt this constitutional requirement by lumping the five named plaintiffs

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together under the moniker “Plaintiffs” (much as they have done with the eight Mobile Industry

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Defendants) and then making generic, fact-free allegations about how the “Plaintiffs” have been

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harmed. If someone has been harmed, Plaintiffs should specify whom (and how). Any other

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standard would strip all meaning from the requirement that “named plaintiffs who represent a class

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‘must allege and show that they personally have been injured, not that injury has been suffered by

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other, unidentified members of the class to which they belong and which they purport to represent.’”

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Lewis v. Casey, 518 U.S. 343, 357 (1996) (emphasis added) (citations omitted).

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Moreover, the “injury” alleged here—not to the named plaintiffs, but to unnamed members of

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the putative class—boils down to a completely theoretical and highly abstract assertion that a person

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somehow is harmed when their unspecified “personal information” is collected by a third party. In

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an effort to give their injury allegations a veneer of substance, Plaintiffs include seven bullet points in

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their Opposition that purport to describe the different types of injuries they have pled. See Opp. at 8-

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9. Examined closely, however, all of the bullet points essentially say the same thing in slightly

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different ways—namely, that Plaintiffs somehow have been deprived of unspecified “personal

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information.” Plaintiffs contend that (i) they “have lost money and property—specifically, personal

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information,” (ii) Defendants have “misappropriated their personal information, which . . . has

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discernable value as an asset in the information marketplace,” (iii) “the scarcity of consumer

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information increases its value, and therefore, by taking and propagating their personal information,

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the [Mobile Industry Defendants] caused a diminution in its value,” (iv) the Mobile Industry

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Defendants “raised the price consumers paid to use the app . . . by extracting their undisclosed

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premium in the form of Plaintiffs’ information,” (v) “Plaintiffs were harmed . . . in that their personal

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private information was procured,” and (vi) Plaintiffs were “harmed by the loss of opportunity of

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entering into value-for-value exchanges for their personal private information in transparent

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transactions.” Id. (emphasis added).

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Plaintiffs’ theories might make for interesting reading in an academic journal, but they come

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nowhere close to establishing the “concrete and particularized” and “actual or imminent, not

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conjectural or hypothetical,” injury required for Article III standing. Lujan, 504 U.S. at 560-61.

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Indeed, the Complaint never once alleges that a named plaintiff (or indeed, anyone) attempted to

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market or sell his personal information at all, much less that he received a lower price for that

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information than he would have received but for the alleged actions of the Mobile Industry

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Defendants. Likewise, the Complaint fails to identify a single “value-for-value exchange” that any

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person, including the named plaintiffs, was unable to enter into as a result of the actions alleged in

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the Complaint. Thus, Plaintiffs have failed to plead a cognizable injury in fact. See, e.g., Bova v.

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City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (if a claim “rests upon contingent future events

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that may not occur as anticipated, or indeed may not occur at all,” then “the plaintiff likely will not

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have suffered an injury that is concrete and particularized enough to establish the first element of

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standing”); Dodaro v. Std. Pacific Corp., 2010 WL 1330889, at *4 (C.D. Cal. Apr. 1, 2010) (rejecting

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“reduced-value theory” where plaintiff still owned his house because any loss would have been

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conjectural); Lee v. Capital One Bank, 2008 WL 648177, at *4 (N.D. Cal. Mar. 4, 2008) (dismissing

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complaint for lack of Article III standing where plaintiff did not allege that defendants deprived him

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of use of any of the agreed upon features of his credit card).

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Plaintiffs’ attempts to distinguish Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) and

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La Court v. Specific Media, Inc., 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011)—fall flat. In

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Birdsong, as Plaintiffs acknowledge, the plaintiffs pled “conjectural” and “hypothetical” injuries,

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which is precisely what Plaintiffs here have done. In La Court—a case in which the plaintiffs made

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“injury” allegations virtually identical to those made here—it is true that the plaintiffs referenced

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facts in their brief that were not contained in their complaint, including “reference[s] to a number of

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academic articles concerning the nature of ‘Internet business models ... driven by consumers’

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willingness to supply data about themselves.’” Id. at *4 (citing plaintiffs’ brief). But the failure to

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include this “quasi-philosophical” material in their pleading was not the basis for Judge Wu’s ruling

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that plaintiffs had failed to allege a basis for Article III standing. Rather, Judge Wu stated that he

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“recognize[ed] the viability in the abstract of such concepts as ‘opportunity costs,’ ‘value-for-value

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exchanges,’ ‘consumer choice,’ and other concepts referred to in the Opposition,” but made it clear

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that “what Plaintiffs really need to do is to give some particularized example of their application

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in this case.” Id. (emphasis added). This Court should require no less of Plaintiffs here.

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In the face of these decisions rejecting Plaintiffs’ nonspecific theories of “injury” as a basis

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for Article III standing, Plaintiffs do not cite a single case finding that the mere “collection” of

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“personal information” constitutes an “injury in fact” under Article III—and there is none. Plaintiffs’

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suggestion that Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006) involved “similar

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issues” to those alleged here (Opp. at 11) is belied by the actual facts of that case, which involved

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claims that AT&T had collaborated with the federal government to conduct a warrantless

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surveillance program that illegally recorded the confidential communications of millions of

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customers, in violation of the First and Fourth Amendments to the U.S. Constitution and several

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federal laws that are not asserted here. Contrary to Plaintiffs’ contention, the court in Hepting did not

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find that plaintiffs were injured by the “collect[ion] of personal information” (Opp. at 11), and

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instead found that plaintiffs had pled concrete allegations of injury “[t]hroughout the complaint”

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detailing AT&T’s interception of “detailed communications records about millions of its customers,

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including [p]laintiffs and class members” and “disclos[ure] to the government [of] the contents of its

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customers’ communications.” Id. at 1000.1
Additionally, unlike in Hepting, Plaintiffs have not pled some uniform harm inflicted by the

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Mobile Industry Defendants on some class of persons that can be imputed to the named plaintiffs. In

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fact, Plaintiffs have not even identified the Apps they downloaded, much less identified the specific

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Mobile Industry Defendants with which those Apps did business and who therefore allegedly

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collected their unspecified “personal information.” For this reason, Plaintiffs also cannot establish

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that any alleged injury is “fairly . . . traceable to the challenged action of [a specific] defendant,”

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Lujan, 504 U.S. at 560-61, and they therefore lack standing for that reason, as well.
Finally, Plaintiffs half-heartedly contend that their iOS Devices “have diminished in value

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and performance, and the resources of their [iOS Devices], such as Internet connectivity, have been

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improperly consumed.” Opp. at 1. Again, however, these conclusory assertions are unaccompanied

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by the “concrete and particularized” facts necessary to establish standing. Indeed, the Complaint is

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entirely devoid of specific facts identifying even a single iOS Device (belonging to a named plaintiff

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or otherwise) that was purportedly damaged by the Mobile Industry Defendants’ alleged conduct. To

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the extent the Complaint contains any allegations concerning diminished performance or capabilities

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of iOS Devices, these allegations are entirely generic in nature and cannot establish actual or non-

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speculative injury-in-fact. See La Court, 2011 WL 1661532, at *5 (“If Plaintiffs are suggesting that

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their computers’ performance was compromised . . . they need to allege facts showing that is true.”).

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2.

Plaintiffs Lack Standing Under California’s Unfair Competition Law

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Even if Plaintiffs’ Complaint could pass Article III muster (and it does not), the Complaint

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fails to allege any “lost money or property,” and the UCL claim at a minimum must therefore be

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dismissed for lack of statutory standing. As explained in the Mobile Industry Defendants’ opening

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Plaintiffs’ citation to In re Facebook Privacy Litigation, 2011 WL 2039995 (N.D. Cal. May 12,
2011) is equally unavailing. In that case, the court founded its decision that plaintiffs had
alleged Article III standing on a finding that the plaintiffs had alleged a “violation of their
statutory rights under the Wiretap Act, 18 U.S.C. §§ 2510, et seq.”—which does not require a
showing of injury and which is not alleged here. Id. at *4. Moreover, it is well-settled that
“[a]bsent injury, a violation of a statute gives rise merely to a generalized grievance but not to
standing.” Waste Mgmt. of N. Am., Inc. v. Weinberger, 862 F.2d 1393, 1398 (9th Cir. 1988).
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brief, numerous courts, including the Facebook court cited by Plaintiffs in support of their Article III

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argument, have definitively held in the context of “privacy” claims that “personal information” does

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not constitute property for purposes of a UCL claim. See Mot. at 12 (collecting cases). It is

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impossible for Plaintiffs to distinguish these cases, so instead they ignore them and cite general UCL

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case law (Kwikset, Korea Supply, and so forth) that does not address the specific issue before the

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Court. But these cases in no way support the notion that the alleged collection of “personal

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information” can constitute “lost money or property” under the UCL, and do not overcome the

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numerous cases to the contrary—including two additional cases decided in this District in the past

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several weeks. See Cohen v. Facebook, Inc., 2011 WL 3100565, at *7 (N.D. Cal. June 28, 2011)

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(dismissing UCL claim involving Facebook’s “Friend Finder” service for lack of standing “[i]n light

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of the requirement to show a loss of money or property”); In re Google Inc. Street View Elec.

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Commc’n Litig., 2011 WL 2571632, at *17 (N.D. Cal. June 29, 2011) (holding that the “interception

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of data packets that a plaintiff has sent over a wireless network are not lost property for purposes of

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determining Proposition 64 standing”).

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Plaintiffs’ reliance on Doe I v. AOL, LLC, 719 F. Supp. 2d 1102 (N.D. Cal. 2010) is

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misplaced. In AOL, as Plaintiffs readily admit, the plaintiffs brought suit under the UCL and other

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statutes based on AOL’s public disclosure of Internet search records that included “highly sensitive

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personal information belonging to 658,000 of its members,” including “members’ names, addresses,

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telephone numbers, credit card numbers, social security numbers, financial account numbers, user

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names and passwords . . . [and] information regarding members’ personal issues, including sexuality,

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mental illness, alcoholism, incest, rape, adultery and domestic violence.” Id. at 1111. The AOL court

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noted that this highly sensitive private information was disclosed despite AOL’s continual assurances

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to its members of the privacy and security of their personal information. Id. The AOL court did not

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separately analyze plaintiffs’ allegations of injury in the context of plaintiffs’ UCL claim (rather, it

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analyzed the injury allegations in the context of plaintiffs’ CLRA claim and then incorporated that

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analysis into the UCL section of the opinion), but even if the opinion could be considered to have

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undertaken a plenary “lost money or property” analysis, the public disclosure of highly sensitive

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personal information across the Internet, accessible to anyone worldwide, presents a vastly different

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scenario than the factual circumstances of this case. Additionally, in distinguishing AOL, the

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Facebook court noted that it was significant that AOL subscribers had “paid fees for [the

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defendant’s] service.” In re Facebook Privacy Litig., 2011 WL 2039995, at *7 (citing AOL at 1113)

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(emphasis added by Facebook court). But Plaintiffs here do not allege that they paid any fees to the

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Mobile Industry Defendants, nor could they. “The court's opinion in AOL does not stand for the

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broad proposition that personal information of any kind ‘equates to money or property.’” Id.

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B.

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The Complaint’s Allegations Against The Mobile Industry Defendants Are Insufficient
Under Rule 8(a)
Plaintiffs acknowledge that Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation” (Opp. at 23) (quoting Twombly), but that is precisely the nature of
Plaintiffs’ allegations against the Mobile Industry Defendants: those allegations, no matter what
Plaintiffs say, simply do not plead any actual facts regarding which specific Mobile Industry
Defendants are alleged to have done what to whom. As explained in detail in the Mobile Industry
Defendants’ Motion, the Complaint does not even identify the Apps the named plaintiffs allegedly
downloaded—much less the information supposedly collected through those Apps, by any specific
company—and it is therefore impossible for the Mobile Industry Defendants (whom Plaintiffs
acknowledge engage in different types of business with different App developers) to know what they
are alleged to have done wrong and to respond accordingly.
It is no response for Plaintiffs to say that “[t]he Complaint differentiates between conduct
committed by Apple and conduct committed by the [Mobile Industry Defendants]” (Opp. at 24)—as
if including specific allegations against one defendant somehow excuses Plaintiffs from their
obligations to make plausible allegations regarding the other eight defendants. See, e.g., Nevis v.
Wells Fargo Bank, 2007 WL 2601213, at *6 (N.D. Cal. Sept. 6, 2007) (“The court notes that plaintiff
has made no attempt in her complaint to set forth specific facts as to Gateway, lumping it together
with other defendants. As to some of those defendants there are specific facts alleged, but that is not
sufficient to state claims against another defendant, in this case Gateway.”). Similarly, as clearly
established by the case law cited in the Mobile Industry Defendants’ Motion (Mot. at 15-17)—case
law that Plaintiffs, with one exception, make no attempt to distinguish—Plaintiffs are not excused
8
MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
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1

from their obligations under Twombly and Iqbal by asserting that the Mobile Industry Defendants

2

“are grouped together because Plaintiffs have alleged that they engaged in the same wrongful

3

conduct.” Opp. at 24. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1175 (9th Cir. 1996) (“Given the

4

number and diversity of named defendants and the breadth of the allegations, claims which vaguely

5

refer to ‘defendants’ or ‘other responsible authorities’ will not suffice.”).

6

Plaintiffs’ citations to Starr v. Sony BMG Music Entm’t, 592 F.3d 314 (2d Cir. 2010) and In

7

re Cathode Ray Tube (CRT) Antitrust Litig., 738 F. Supp. 2d 1011 (N.D. Cal. 2010) are misplaced.

8

The complaints in both of those cases concerned antitrust/conspiracy claims that—unlike those

9

here—hinged on allegations of a common scheme that were much more detailed than the vacuous

10

allegations contained in the instant Complaint. See, e.g., In re Cathode Ray Tube (CRT) Antitrust

11

Litig., 738 F. Supp. 2d at 1019 (“Courts in this district do not require plaintiffs in complex,

12

multinational, antitrust cases to plead detailed, defendant-by-defendant allegations; instead they

13

require plaintiffs ‘to make allegations that plausibly suggest that each Defendant participated in the

14

alleged conspiracy.’”) (citation omitted) (emphasis added).
Finally, Plaintiffs’ attempt to distinguish one of the six relevant cases cited in the Mobile

15
16

Industry Defendants’ Motion (Mot. at 16-17)—a pre-Twombly case, no less—fails. Indeed, in In re

17

Providian Fin. Corp. ERISA Litig., 2002 WL 31785044 (N.D. Cal. Nov. 14, 2002), the Court did note

18

that the complaint “lumped the various classes of defendants into an undifferentiated mass,” but then

19

dismissed the complaint for reasons that apply equally here: “[t]he resulting cause of action [was] so

20

general that it fail[ed] to put the various defendants on notice of the allegations against them.” Id. at

21

*1 (emphasis added).2 The same is true of the present Complaint with respect to the Mobile Industry

22

Defendants, especially in a post-Twombly/Iqbal era.

23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

2

While legally irrelevant, there is also no merit to Plaintiffs’ suggestion that the Mobile Industry
Defendants constitute a single “class” of defendants. Just the opposite, Plaintiffs themselves
acknowledge that the various Mobile Industry Defendants provide different types of services
relating to different third-party software applications. See Compl. ¶¶ 15-22, 65.
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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1
2

C.

Each Of Plaintiffs’ Separate Claims Against The Mobile Industry Defendants Fails To
State A Claim

3

1.

4

Plaintiffs spend eight pages of their brief trying to convince the Court that they have stated a

5

Plaintiffs’ Claim For Violation Of The Computer Fraud And Abuse Act Fails As
A Matter Of Law

claim for violation of a federal criminal statute—the CFAA. But they have not, and they cannot.

6

First, no matter what they claim in their brief, Plaintiffs have not plausibly alleged any

7

“damage” or “loss” within the meaning of the statute—not one penny’s worth, much less the $5,000

8

in one year needed to state a claim under the statute. As with their other claims, the injury Plaintiffs

9

allege in their CFAA claim is that “by taking and retaining their personal information without their

10

consent, Defendants have caused a diminution of value of such information.” Opp. at 26. But as

11

noted in the Mobile Industry Defendants’ Motion, this very theory of “damage”/“loss” has no support

12

in the statute and was flatly rejected by Chief Judge Ware, who dismissed the plaintiffs’ CFAA claim

13

with prejudice, in In Re Zynga Privacy Litigation less than two months ago. See Mot. at 19; Beringer

14

Decl. (Docket 146), Exh. B. Plaintiffs make no attempt to distinguish Zynga, and with good reason:

15

it cannot be distinguished and is dispositive of Plaintiffs’ CFAA claim here.

16

Well aware of this fatal defect to their CFAA claim, Plaintiffs argue that they also have

17

alleged—“albeit under the trespass claim,” they acknowledge (Opp. at 27)—that the Defendants’

18

actions “have resulted in the diversion and consumption of Plaintiff and Class Members’ mobile

19

computing resources (such as space, memory, processing cycles, and Internet connectivity) in ways

20

they did not expect and in ways that diminished the utility and performance of their [iOS Devices].”

21

Id. But Plaintiffs plead no actual facts in support of these naked assertions, as they must. See

22

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“naked assertion[s]” devoid of “further factual

23

enhancement” are insufficient to state a claim). Nor do Plaintiffs attempt to link these generic

24

allegations to the challenged conduct of the Mobile Industry Defendants, as opposed to Plaintiffs’ use

25

of the actual Apps they admittedly chose to install on their devices. Moreover, even if these vague

26

and conclusory allegations were accepted in place of facts, the alleged harm still would not meet the

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28
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Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
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1

definition of “damage” or “loss” in the CFAA (and would not add up to $5,000 in any event). See

2

Mot. at 18.3 Finally, Plaintiffs cite paragraphs 131 and 177 in their Complaint for the proposition

3

that they “have expended money, time and resources in order to remove the unauthorized program[s]

4

installed on their [iOS Devices].” Opp. at 28. The assertion strains credulity—it literally takes a split

5

second to delete an App from an iOS Device—and, more importantly for purposes of the present

6

Motion, the paragraphs that purport to substantiate it are nothing more than “a formulaic recitation of

7

the elements,” including a verbatim quote from the statute. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

8

555 (2007). Plaintiffs have in fact identified no actual “costs expended . . . to remediate the [alleged]

9

negative effects on their [iOS Devices]” (Opp. at 28), and the Court need not credit Plaintiffs’ bald

10

assertions. Such fact-free allegations obviously “will not do.” Twombly, 550 U.S. at 555.4
Second, Plaintiffs have failed plausibly to allege that the Mobile Industry Defendants

11
12

accessed their iOS Devices “without authorization” or that they “exceed[ed] authorized access.”

13

Plaintiffs do not and cannot dispute (i) that they themselves authorized each and every App by

14

downloading it to their iOS Devices (something they were not required to do), and (ii) that Apple’s

15

disclosures put them on clear notice that their “information [might be] collected by third parties,

16

which may include such things as location data or contact details.” Mot. at 19. Plaintiffs’ attempt to

17

distinguish the recent case of In re Apple & AT&TM Antitrust Litig., 2010 WL 3521965 (N.D. Cal.

18

July 8, 2010) on the basis that “[i]n that case . . . the software itself caused the damage” (Opp. at 31)

19

fails for the simple reason that (i) the Apps themselves are software, and (ii) the Apps are the sole

20

means through which Plaintiffs allege they were “tracked” by the Mobile Industry Defendants.

21

Accordingly, by Plaintiffs’ own admission, the alleged collection of their “personal information”

22

came about as the result of software they voluntarily downloaded to their iOS Devices. There is no

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24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

3

4

Plaintiffs also are mistaken that to reach the $5,000 threshold they can somehow “aggregate”
damages allegedly caused by nine separate defendants—the eight Mobile Industry Defendants
and Apple. Plaintiffs cite no authority for such a proposition, and there is none.
Precisely the same thing is true of Plaintiffs’ threadbare allegations that the Mobile Industry
Defendants “intentionally” or “recklessly” caused damage to their iOS Devices and are therefore
liable under Subsections (a)(5)(A) & (B) of the statute. Opp. at 25-26. As noted above,
Plaintiffs have pled no plausible damage to their iOS Devices. Similarly, they have failed to
plausibly allege—as opposed to just parroting the language of the statute—that any alleged harm
to their Devices was done “intentionally” or “recklessly” by the Mobile Industry Defendants.
11

MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1

legal basis for any assertion by Plaintiffs that they authorized only “part” of the software (e.g., x lines

2

of source code, but not y lines of source code).

3

Finally, Plaintiffs assert that “[t]he CFAA is no longer a criminal statute designed to target

4

hackers and technology criminals alone” (Opp. at 24), but the case they cite in support of that

5

proposition confirms that “the majority of CFAA cases still involve ‘classic’ hacking activities,” and

6

notes that “[e]mployers . . . are increasingly taking advantage of the CFAA’s civil remedies to sue

7

former employees and their new companies who seek a competitive edge through wrongful use of

8

information from the former employer’s computer system.” Pac. Aerospace & Elecs., Inc. v. Taylor,

9

295 F. Supp. 2d 1188, 1196 (E.D. Wash. 2003) (emphasis added). The present case, of course, is

10

neither a hacking case nor a case of employees improperly accessing their former employer’s

11

computer system. Rather, it is a “privacy” case that the statute clearly does not cover.

12

2.

Plaintiffs Fail To State A Claim Under California’s Computer Crime Law

13

Plaintiffs attempt to salvage their second criminal claim (Section 502 of the California Penal

14

Code) by arguing, first, that they have sufficiently alleged “damage and loss” (they have not), and

15

second, that the requirement that a defendant acts “without permission” under § 502 only when he

16

“circumvent[s] technical barriers to gain access to a computer,” In re Facebook Privacy Litig., 2011

17

WL 2039995, at *8 (emphasis added), applies only when the defendant initially had permission to

18

access the device and then “subsequently took actions which violated the terms of that

19

authorization.” Opp. at 33-34. The argument is meritless. The decision in Facebook did not turn on

20

any supposed distinction between “initial” access versus a later “violat[ion] [of] the terms of that

21

access.” Id. at 34. Indeed, unlike the CFAA, Section 502 does not draw any distinction between

22

access “without authorization” and “exceed[ing] authorized access” but instead speaks only of access

23

“without permission.” Cal. Penal Code § 502(c). Moreover, the “constitutional notice concerns”

24

underlying the court’s opinion in Facebook are precisely the same whether the initial access is

25

authorized or not. As the court stated, “the statute must be read to limit criminal liability to

26

circumstances ‘in which a user gains access to a computer, computer network, or website to which

27

access was restricted through technological means,’ since anyone ‘applying the technical skill

28

necessary to overcome such a barrier will almost always understand that any access gained through

Gibson, Dunn &
Crutcher LLP

12
MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1

such action is unauthorized.’” In re Facebook Privacy Litig., 2011 WL 2039995, at *7 (emphasis

2

added). Here, Plaintiffs do not and cannot allege that the Mobile Industry Defendants circumvented

3

any “technical barriers” to gain access to their iOS Devices, so, as in Facebook, the Section 502

4

claim must be dismissed.

5

Plaintiffs’ last-ditch assertion that their Section 502(c)(8) claim should survive because that

6

provision does not require Defendants to act “without permission” is meritless. Section 502(c)(8) is

7

directed at “computer contaminant[s],” which “include, but are not limited to, a group of computer

8

instructions commonly called viruses or worms, that are self-replicating or self-propagating and are

9

designed to contaminate other computer programs or computer data, consume computer resources,

10

modify, destroy, record, or transmit data, or in some other fashion usurp the normal operation of the

11

computer, computer system, or computer network.” Cal. Penal Code § 502(b)(10) (emphasis added).

12

Plaintiffs’ attempt to stretch a criminal provision aimed at combatting computer viruses and worms to

13

encompass standard portions of App software should be rejected by this Court. Indeed, virtually all

14

software “record[s]” or “transmits information within a computer.” Id. But Section 502(c)(8) is not

15

directed at all software; rather, it is aimed at “computer contaminant[s],” such as viruses and worms.

16

3.

17

In support of their “trespass to chattels” claim, Plaintiffs cite several irrelevant cases

18

involving “the transmission of unsolicited e-mails, search robots, web spiders, and other automated-

19

data-collection and electronic scraping devices.” Opp. at 41. But Plaintiffs never address the

20

California Supreme Court’s seminal holding in Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003) that

21

this tort “does not encompass . . . an electronic communication that neither damages the recipient

22

computer system nor impairs its functioning.” Id. at 1347; see also Mot. at 21-22.

23

Plaintiffs Fail To State A Claim For Trespass To Chattels

Plaintiffs argue that “[t]he Complaint in Paragraphs 170-177 contains detailed information

24

explaining how Defendants’ conduct did, in fact, impair the condition and value of Plaintiffs’ mobile

25

devices.” Opp. at 42. But a review of those paragraphs reveals that they do not plead any actual

26

facts—in fact, they fail to cite a single example of tangible harm to an iOS Device—and instead set

27

forth a generic, conclusory, laundry list of alleged harm, which is insufficient. See Iqbal, 129 S. Ct.

28

at 1949. None of the cases cited by Plaintiffs—which, by Plaintiffs’ own admission, involved

Gibson, Dunn &
Crutcher LLP

13
MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1

malicious tools like “search robots,” “scraping devices,” and “web spiders”—is to the contrary.

2

Moreover, Plaintiffs do not allege or attempt to explain how any purported “harm” to their iOS

3

Devices relates to the Mobile Industry Defendants’ supposed collection of unspecified “personal

4

information,” as opposed to the use of Apps Plaintiffs voluntarily installed on their devices. Indeed,

5

as noted in the Mobile Industry Defendants’ Motion and above, Plaintiffs also cannot establish

6

trespass here because they authorized the Apps—a point they cannot and do not challenge.

7

4.

Plaintiffs Fail To State A Claim Under California’s Unfair Competition Law

8

As explained above, Plaintiffs do not have standing to maintain a UCL claim because they

9

have not suffered any injury in fact and have not lost money or property. But even if Plaintiffs could

10

establish standing (and they cannot), their UCL claim still fails for lack of any alleged conduct that is

11

actually “unlawful, unfair or fraudulent.” Cal. Bus. & Prof. Code § 17200.

12

Plaintiffs’ Opposition sets forth a page and a half of background UCL case law and then

13

baldly asserts—in a few brief sentences—that the Mobile Industry Defendants’ actions satisfy each

14

of the three UCL prongs. But as explained in the Mobile Industry Defendants’ Motion, none of the

15

alleged “unlawful” conduct states a claim under Rule 12(b)(6), so the Complaint by definition does

16

not successfully allege a UCL violation under the “unlawful” prong. See Mot. at 23. So too with the

17

“unfair” prong. Plaintiffs assert that “Defendants’ conduct satisfies [this prong] because the

18

systematic disclosures of Plaintiffs’ personal information caused actual harm and could not be

19

avoided when using the device to its full capacity.” Opp. at 39. This conclusory assertion is belied

20

by the Complaint’s failure to provide even one example of actual harm; moreover, the assertion that

21

any alleged harm “could not be avoided” is belied by Plaintiffs’ undisputed ability to download

22

Apps, not download Apps, and/or delete Apps at any time and completely as they saw fit.

23

Additionally, despite Plaintiffs’ naked and illogical assertion that “personal data is wholly irrelevant

24

for the functioning of a particular App” (Opp. at 1), Plaintiffs ignore their own allegations that many

25

Apps are free or very low cost precisely because of the availability of mobile advertising and

26

analytics that allow the App developer to support the costs of developing and providing free or low

27

cost content to users. See Compl. ¶¶ 6, 39, 61-62. Plaintiffs’ allegations plainly are insufficient to

28

state a claim under the UCL’s “unfair” prong. See, e.g., Beringer Decl. (Docket 146), Exh. C (Levitt

Gibson, Dunn &
Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1

v. Yelp! Inc., No. C 10-1321 MHP, at *19-20 (N.D. Cal. Mar. 22, 2011)) (dismissing UCL claim

2

under “unfair” prong where plaintiffs made “little effort to quantify the extent to which they [had]

3

been harmed” and “only obliquely set forth a theory of unfairness”); Mot. at 23-24.

4

Finally, Plaintiffs’ one-sentence allegation that the UCL’s “fraud” prong is satisfied in this

5

case fails under both Rule 8(a) and Rule 9(b)—the latter of which, contrary to Plaintiffs’ assertion at

6

pages 35 and 36 of their brief (an assertion that cites a handful of California state court cases that

7

have nothing to do with federal pleading standards), fully applies to claims brought under the “fraud”

8

prong of the UCL. See, e.g., Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009).

9

Plaintiffs have not identified a single alleged misrepresentation by any of the Mobile Industry

10

Defendants, much less alleged that any Plaintiff relied on such a statement to his detriment.

11

5.

California Does Not Recognize A Claim For Unjust Enrichment

12

Plaintiffs acknowledge, as they must, that “this Court . . . has previously found . . . that there

13

[is] no cause of action for unjust enrichment under California law.” Opp. at 42. But in the next

14

breath, Plaintiffs argue that they have “sufficiently stated a cause of action for unjust enrichment by

15

alleging that Defendants received a benefit, and unjust enrichment of the benefit at the expense of

16

plaintiff[s].” Id. at 43. Plaintiffs’ acknowledgement of this Court’s prior ruling (which sets forth

17

black letter California law) undermines their argument: there simply is no claim for unjust

18

enrichment under California law. At any rate, even if this Court permitted Plaintiffs to plead unjust

19

enrichment as a remedy (for what claim is unclear), as Plaintiffs alternatively suggest, such a remedy

20

would be inapplicable here because, as the DoubleClick court noted over ten years ago, “we are

21

unaware of any court that has held the value of this collected information”—i.e., Plaintiffs’ “personal

22

information” here—“constitutes damage to consumers or unjust enrichment to collectors,” In re

23

DoubleClick Privacy Litig., 154 F. Supp. 2d 497, 525 (S.D.N.Y. 2001), a conclusion reinforced by

24

recent case law in both California state court and this District. See, e.g., Mot. at 11-12.

25

III.

CONCLUSION

26

This Court serves an important gatekeeping function in preventing complaints that fail to

27

allege any cognizable harm, fail to differentiate among multiple defendants, and fail to state any

28

actionable claims from moving forward. Accordingly, the Complaint should be dismissed.

Gibson, Dunn &
Crutcher LLP

15
MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1

Dated: August 3, 2011

Respectfully submitted,

2

GIBSON, DUNN & CRUTCHER LLP

3

By: /s/

4

GAIL E. LEES
S. ASHLIE BERINGER
JOSHUA A. JESSEN
GIBSON, DUNN & CRUTCHER LLP
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
FLURRY, INC. and
PINCH MEDIA, INC.

5
6
7
8
9
10
11
12
13

S. Ashlie Beringer

Dated: August 3, 2011

DURIE TANGRI LLP
By: /s/

14

Michael H. Page

15

MICHAEL H. PAGE
JOSEPH C. GRATZ
GENEVIEVE ROSLOFF
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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21

Attorneys for Defendant
ADMOB, INC.

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Gibson, Dunn &
Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

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2

Dated: August 3, 2011

By: /s/

3

Carter W. Ott

4

LUANNE SACKS
CARTER W. OTT
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]

5
6
7
8

Attorneys for Defendant
MOBCLIX, INC.

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10
11
12
13
14
15
16
17
18
19
20

DLA PIPER LLP (US)

Dated: August 3, 2011

COOLEY LLP
By: /s/
Matthew D. Brown
MICHAEL G. RHODES
MATTHEW D. BROWN
COOLEY LLP
101 California Street, 5th Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
ADMARVEL, INC., erroneously sued as
AdMarval, Inc., and MILLENNIAL MEDIA
INC., erroneously sued as Mellenial Media

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Gibson, Dunn &
Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1
2
3
4
5
6
7
8
9
10
11
12
13

Dated: August 3, 2011

K&L GATES LLP
By: /s/
Seth A. Gold
SETH A. GOLD (SBN 163220)
K&L GATES LLP
10100 Santa Monica Boulevard, 7th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
RACHEL R. DAVIDSON (SBN 215517)
K&L GATES LLP
Four Embarcadero Center, Suite 1200
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant
TRAFFIC MARKETPLACE, INC., erroneously
sued as TrafficMarketplace.com, Inc.

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Gibson, Dunn &
Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)

1
2

Dated: August 3, 2011

By: /s/

3

James McCabe

4

JAMES McCABE
BRYAN WILSON
TERESA BURLISON
MORRISON FOERSTER LLP
755 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

5
6
7
8
9
10

MICHAEL L. CHARLSON
MAREN J. CLOUSE
HOGAN LOVELLS US LLP
525 University Avenue, 4th Floor
Palo Alto, California 94301
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

11
12
13
14
15

Attorneys for Defendant
QUATTRO WIRELESS, INC.

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17
18

MORRISON FOERSTER LLP

ATTORNEY ATTESTATION

20

Pursuant to General Order 45, I, S. Ashlie Beringer, hereby attest that the above-listed
counsel have read and approved the MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT
OF MOTION TO DISMISS FIRST CONSOLIDATED CLASS ACTION COMPLAINT and consent
to its filing in this action.

21

Dated: August 3, 2011

19

22

GIBSON, DUNN & CRUTCHER LLP
By: /s/

23
24

S. Ashlie Beringer

101127271.1

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Gibson, Dunn &
Crutcher LLP

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MOBILE INDUSTRY DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-CV-05878 LHK (PSG)