Fraley et al v. Facebook, Inc.

Filing 70

MOTION for Leave to File Statement of Recent Decisions Relevant to Motion to Dismiss Second Amended Class Action Complaint filed by Facebook, Inc.. (Brown, Matthew) (Filed on 10/28/2011)

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1 2 3 4 5 6 7 8 9 10 COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MATTHEW D. BROWN (196972) (brownmd@cooley.com) JEFFREY M. GUTKIN (216083) (jgutkin@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 FACEBOOK, INC. COLIN S. STRETCH (205144) (colin@fb.com) SANDEEP N. SOLANKI (244005) (ssolanki@fb.com) 1601 S. California Ave. Palo Alto, CA 94304 Telephone: (650) 853-1300 Facsimile: (650) 543-4800 Attorneys for Defendant FACEBOOK, INC. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 16 17 18 19 20 21 22 ANGEL FRALEY; PAUL WANG; SUSAN MAINZER; JAMES H. DUVAL, a minor, by and through JAMES DUVAL, as Guardian ad Litem; and WILLIAM TAIT, a minor, by and through RUSSELL TAIT, as Guardian ad Litem; individually and on behalf of all others similarly situated, Plaintiffs, v. Case No. CV-11-01726 LHK (PSG) FACEBOOK’S REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISIONS RELEVANT TO MOTION TO DISMISS SECOND AMENDED CLASS ACTION COMPLAINT Judge: Trial date: Hon. Lucy H. Koh None Set FACEBOOK, INC., a corporation; and DOES 1-100, Defendant. 23 24 25 26 27 28 COOLEY LLP FACEBOOK’S REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISIONS NO. CV-11-01726 LHK (PSG) ATTORNEYS AT LAW SAN FRANCISCO 1241265 v5/SF 1 On July 1, 2011, Defendant Facebook, Inc. (“Facebook”) filed a Motion to Dismiss 2 Plaintiffs’ Second Amended Complaint (“Motion”) on multiple grounds, including that: (1) 3 Plaintiffs fail to allege an injury sufficient for Article III standing, or for liability under California 4 Civil Code Section 3344 or under California’s Unfair Competition Law, Business and Professions 5 Code Section 17200; and (2) Plaintiffs’ claims are barred by the Communications Decency Act, 6 47 U.S.C. § 230 (“CDA § 230”). 7 Facebook’s Motion and took the matter under submission. This week, two Northern District of 8 California judges issued decisions that bear on the pending Motion. On September 29, 2011, the Court heard argument on 9 Facebook’s Motion, Plaintiffs’ opposition, and Facebook’s reply all discussed, in some 10 detail, the dismissal without prejudice entered by the Honorable Richard Seeborg in Cohen v. 11 Facebook, Inc., No. CV-10-5282 RS (N.D. Cal.), on June 28, 2011. The plaintiffs in the Cohen 12 action filed a First Amended Complaint on July 18, 2011, alleging, as here, violations of Civil 13 Code Section 3344 and Business and Professions Code Section 17200. On October 27, 2011, 14 Judge Seeborg granted Facebook’s motion to dismiss the First Amended Complaint with 15 prejudice and entered judgment for Facebook. 16 cognizable injury and standing that are directly relevant to the issues raised in Facebook’s Motion 17 here and should be considered. The Court’s decision discusses issues of 18 Earlier this week, on October 26, 2011, the Honorable Edward M. Chen issued a decision 19 in Levitt v. Yelp! Inc., No. CV-10-1321 EMC (N.D. Cal.), granting the defendant’s motion to 20 dismiss, with prejudice, on the ground that the defendant—the website www.yelp.com—is 21 immune from suit under CDA § 230. The Court’s discussion of CDA immunity, including 22 whether a defendant’s intent is relevant, is germane to the pending Motion here and should be 23 considered. 24 Under Civil Local Rule 7-3(d), a party must seek leave of the Court to file a Statement of 25 Recent Decisions concerning a decision issued after the date of the noticed hearing. Facebook 26 hereby seeks leave of the Court to file a Statement of Recent Decisions concerning the decisions 27 in Cohen v. Facebook and Levitt v. Yelp!, both of which were decided approximately four weeks 28 after the hearing on Facebook’s Motion. Consistent with Civil Local Rule 7-3(d)(2), if the Court COOLEY LLP 1. ATTORNEYS AT LAW SAN FRANCISCO 1241265 v5/SF FACEBOOK’S REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISIONS NO. CV-11-01726 LHK (PSG) 1 grants Facebook’s request, Facebook will provide a Statement of Recent Decisions that includes 2 only copies of the decisions, without argument. 3 4 Dated: October 28, 2011 COOLEY LLP 5 6 By: /s/ Matthew D. Brown ___________________________________ Matthew D. Brown (196972) 7 Attorneys for Defendant FACEBOOK, INC. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP 2. ATTORNEYS AT LAW SAN FRANCISCO 1241265 v5/SF FACEBOOK’S REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISIONS NO. CV-11-01726 LHK (PSG)

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