Ung et al v. Facebook, Inc.

Filing 10

MOTION to Dismiss FACEBOOK, INC.S MOTION TO DISMISS PLAINTIFFS CLASS ACTION COMPLAINT filed by Facebook, Inc.. Responses due by 9/1/2011. Replies due by 9/28/2011. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Brown, Matthew) (Filed on 7/20/2011)

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1 7 COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MATTHEW D. BROWN (196972) (brownmd@cooley.com) BENJAMIN H. KLEINE (257225) (bkleine@cooley.com) JAMES B. MCARTHUR (265806) (jmcarthur@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 8 Attorneys for Defendant FACEBOOK, INC. 2 3 4 5 6 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 RYAN UNG, CHI CHENG and ALICE ROSEN, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, 15 16 17 18 19 v. FACEBOOK, INC., Defendant. Case No. 11-CV-02829-JF-PSG FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFFS’ CLASS ACTION COMPLAINT FED. R. CIV. PRO. 12(b)(1), 12(b)(6) Date: Time: Judge: Courtroom: Trial Date: To be determined To be determined Hon. Jeremy Fogel 3 Not yet set 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Table of Contents 2 3 4 5 Page I. II. III. IV. 6 7 8 9 10 11 12 13 V. INTRODUCTION .............................................................................................................. 2 FACTUAL BACKGROUND ............................................................................................. 4 APPLICABLE STANDARDS ........................................................................................... 6 ARGUMENT ...................................................................................................................... 8 A. Plaintiffs Have Not Alleged Injury in Fact and Thus Lack Article III Standing .................................................................................................................. 8 B. Plaintiffs Fail to State a Claim under Article I, Section 1 of the California Constitution........................................................................................................... 11 1. Plaintiffs Fail to Allege a Legally Protected Privacy Interest................... 12 2. Plaintiffs Fail to Allege a Reasonable Expectation of Privacy in the Circumstances. .......................................................................................... 13 3. Plaintiffs Fail to Allege Conduct by Facebook that Constitutes a Serious Invasion of a Privacy Interest....................................................... 14 C. Plaintiffs Fail to State a Claim for Unjust Enrichment ......................................... 15 CONCLUSION ................................................................................................................. 17 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO i. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Table of Authorities 2 Page 3 CASES 4 Archer v. United Rentals, Inc., Cal. App. 4th 807, 126 Cal. Rptr. 3d 118 (2011).................................................................... 10 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .............................................................................................. 7, 9, 12, 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................................. 7, 9 Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350 (2010)................................................................................................ 16 Dwyer v. Am. Express Co., 273 Ill. App. 3d 742 (Ill. App. Ct. 1995) ................................................................................ 10 Epstein v. Wash. Energy Co., 83 F.3d 1136 (9th Cir. 1996)................................................................................................... 12 Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986 (2011).................................................................................................. 15 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) .................................................................................................................. 8 GA Escrow, LLC v. Autonomy Corp. PLC, No. C 08-01784 SI, 2008 WL 4848036 (N.D. Cal. Nov. 7, 2008) ......................................... 16 Gaos v. Google, Inc., No. 10-CV-04809-JW (N.D. Cal. Apr. 7, 2011)..................................................................... 10 Heller v. Roberts, 386 F.2d 832 (2d Cir. 1976).................................................................................................... 10 Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1 (1994) ...................................................................................................... 12, 13, 14 Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047 (2011)................................................................................................ 13 In re Actimmune Mktg. Litig., No. C 08-02376, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009)........................................ 16, 17 In re DirecTV Early Cancellation Litig., 738 F. Supp. 2d 1062 (C.D. Cal. 2010)................................................................................... 15 ii. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Table of Authorities (continued) Page In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001).............................................................................. passim In re Facebook Privacy Litig., --- F. Supp. 2d ----, No. C 10-02389 JW, 2011 WL 2039995 (N.D. Cal. May 12, 2011) ...... 16 In re JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299 (E.D.N.Y. 2005) .................................................................................... 10 In re Pharmatrak, Inc. Privacy Litig., 329 F.3d 9 (1st Cir. 2003) ............................................................................................... 4, 5, 11 Johnson v. Weinberger, 851 F.2d 233 (9th Cir. 1988)................................................................................................... 10 LaCourt v. Specific Media, Inc., No. SACV 10-1256-GW(JCGx), 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011)............. 10, 15 Lee v. Capital One Bank, No. C 07-4599 MHP, 2008 WL 648177 (N.D. Cal. Mar. 5, 2008) ........................................ 10 Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117 (2010).......................................................................................... 15, 17 Lewis v. Casey, 518 U.S. 343 (1996) .................................................................................................................. 8 Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018 (9th Cir. 2003)................................................................................................... 8 McBride v. Boughton, 123 Cal. App. 4th 379 (2004).................................................................................................. 16 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001)..................................................................................................... 7 Netscape Commc’ns Corp. v. Valueclick, Inc., 684 F. Supp. 2d 678 (E.D. Va. 2009).................................................................................. 5, 11 Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998)..................................................................................................... 7 People v. Stipo, 195 Cal. App. 4th 664 (2011).................................................................................................. 14 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO iii. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Table of Authorities (continued) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Page Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................................................................................... 7 Susan S. v. Israels, 55 Cal. App. 4th 1290 (1997).................................................................................................. 12 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007)..................................................................................................... 7 Thompson v. Home Depot, Inc., No. 07-cv-1058 IEG (WMc), 2007 WL 2746603 (S.D. Cal. Sept. 18, 2007) ........................ 10 Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979)..................................................................................................... 6 Two Jinn, Inc. v. Gov’t Payment Serv., Inc., No. 09CV2701 JLS (BLM), 2010 WL 1329077 (S.D. Cal. Apr. 1, 2010) ............................. 10 United States v. Forrester, 512 F.3d 500 (2008)................................................................................................................ 14 Urbaniak v. Newton, 226 Cal. App. 3d 1128 (1991)................................................................................................. 12 17 Whitmore v. Ark., 495 U.S. 149 (1990) .................................................................................................................. 8 18 OTHER AUTHORITIES 19 Article I, Section 1 of the California Constitution ................................................................. passim 20 Article III of the U.S. Constitution ................................................................................... 3, 6, 8, 11 21 Electronic Communications Privacy Act (“ECPA”)..................................................................... 11 22 Federal Rules of Civil Procedure 12(b)(1) ..................................................................................................................................... 6 12(b)(6) ..................................................................................................................................... 7 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO iv. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 2 NOTICE OF MOTION AND MOTION TO DISMISS TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on a date and at a time that is to be determined by the 4 Court,1 in the above-entitled court, located at 280 South First Street, San Jose, California, 5 Defendant Facebook, Inc. (“Facebook”) will move to dismiss with prejudice the Class Action 6 Complaint (“Complaint”) filed by Plaintiffs. Facebook’s Motion is made pursuant to Federal 7 Rules of Civil Procedure 12(b)(1) and 12(b)(6) and is based on this Notice of Motion and Motion, 8 the accompanying Memorandum of Points and Authorities, the Request for Judicial Notice filed 9 herewith, the Declaration of Ana Yang Muller and accompanying Exhibits filed herewith, and all 10 pleadings and papers on file in this matter, and upon such other matters as may be presented to 11 the Court at the time of hearing or otherwise. 12 STATEMENT OF RELIEF SOUGHT 13 Facebook seeks an order pursuant to Federal Rules of Civil Procedure 12(b)(1) and 14 12(b)(6) dismissing with prejudice Plaintiffs’ Complaint and each of the two Causes of Action 15 alleged therein for lack of standing and failure to state a claim upon which relief can be granted. 16 STATEMENT OF ISSUES TO BE DECIDED 17 18 1. Because Plaintiffs fail to allege an injury in fact that gives them standing under Article III of the United States Constitution, should the Complaint be dismissed? 19 2. Because the Complaint fails to state a claim upon which relief can be granted 20 under Article I, Section 1 of the California Constitution, should the First Cause of Action be 21 dismissed? 22 3. Because the Complaint fails to state a claim upon which relief can be granted for 23 unjust enrichment, should the Second Cause of Action be dismissed? 24 1 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO This case is currently assigned to Judge Jeremy Fogel, who will be leaving the Northern District of California to head the Federal Judicial Center in October 2011. However, before removal of this action to this Court, the state court (Judge Peter Kirwan of the Santa Clara Superior Court) entered a stipulated order setting a schedule for briefing and hearing this Motion that does not permit a hearing before October. (Dkt. No. 1, Ex. 6.) This Court has therefore instructed the parties to submit their briefing on the Motion and that a hearing date and time will be set once the case is reassigned. 1. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 Facebook is a social networking website that enables people to connect and share with 4 their friends, families, and communities. Facebook is free. To join, Facebook users (“Users”) 5 need only provide their name, age, gender, and a valid e-mail address, and agree to Facebook’s 6 terms of service. Once Users register, they create a profile page and may begin connecting with 7 other Users by inviting them to become Facebook “Friends.” Users can share virtually anything 8 through Facebook—vacation photos, news about their everyday lives, links to websites or articles 9 they think are interesting, or opinions about world events. When a Facebook User shares content 10 with his or her Friends, that action appears on the User’s profile page and may appear in his or 11 her Friends’ News Feeds (which are running lists of content updates posted by each of the Users’ 12 Friends), depending on the User’s privacy settings. 13 Facebook offers Users an array of options for sharing content and communicating with 14 each other both on Facebook and third-party websites. Plaintiffs bring this putative class action 15 based on two features that Facebook makes available for free on third-party websites via the 16 Facebook Platform. The first feature is the Facebook “Like” button. If a third-party website 17 operator adds the “Like” button on its site, and a Facebook User clicks the button for some 18 particular content, the User’s “Like” statement may be displayed to Facebook Friends who visit 19 the third-party website, as well as on the User’s profile page on Facebook. Users may choose to 20 share content on a third-party website to communicate to their Facebook Friends that they like an 21 article on a newspaper’s website, a product on a retailer’s website, a song or video on a media 22 website, an entry on a blog, and so on. The second feature is “Facebook Connect.” If a third- 23 party website has integrated Facebook Connect, a Facebook User can log in to the site using his 24 or her Facebook account and then share links to content (articles, videos, etc.) directly on that site 25 with the User’s Friends. 26 Plaintiffs do not take issue with these features per se, apparently recognizing the 27 significant benefits that they provide by helping to personalize the Internet for hundreds of 28 millions of users. Indeed, almost every major website incorporates multiple social plug-ins or COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 2. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 widgets that allow visitors to share with others through various services, including Facebook. 2 Plaintiffs claim instead that Facebook improperly uses the “Like” button and Facebook Connect 3 to collect information about Plaintiffs’ web browsing history. Plaintiffs further claim—with no 4 factual support whatsoever—that Facebook sells this web browsing information to third parties 5 for marketing purposes. Based on these allegations, Plaintiffs assert two legal claims: that 6 Facebook (1) has violated their right to privacy under the California Constitution and (2) has been 7 unjustly enriched. 8 Plaintiffs’ Complaint fails as a matter of law. As an initial matter, Plaintiffs fail to allege 9 facts sufficient to establish that they have suffered an injury in fact that would give them standing 10 under Article III of the U.S. Constitution. Plaintiffs do not specify what, if any, personal 11 information Facebook has collected or disclosed through the addition of the Facebook “Like” 12 button or the integration of Facebook Connect on a third-party website. The Complaint relies on 13 vague, generalized allegations that say nothing about the named Plaintiffs or how they were 14 harmed by Facebook. 15 could—sell information related to their browsing history. Nor have Plaintiffs alleged that they ever attempted to—or actually 16 Additionally, the Complaint fails to state a claim upon which relief can be granted. 17 Plaintiffs’ claims are essentially repackaged arguments regarding alleged liability for the use of 18 “browser cookies” that were litigated and rejected more than ten years ago, since which time the 19 Internet has developed substantially and cookies have been widely employed by reputable 20 websites to promote convenience and customization. Plaintiffs’ claim under Article I, Section 1 21 of the California Constitution fails because the Complaint does not allege facts that, if true, would 22 satisfy the three elements of such a claim. Plaintiffs have failed to allege any legally protected 23 privacy interest, any reasonable expectation of privacy, or any “serious invasion” of such a 24 privacy interest. Plaintiffs’ claim for unjust enrichment fails because there is no such claim in 25 California and because Plaintiffs have failed to allege sufficient facts to support any alternative 26 legal theory that would give rise to a restitutionary remedy. Nor can they because Facebook is a 27 free service and Facebook does not charge third-party websites to add the Like button or integrate 28 with Facebook Connect. COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 3. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Accordingly, Facebook respectfully requests that the Court grant this Motion and dismiss 2 the Complaint with prejudice. 3 II. 4 FACTUAL BACKGROUND2 Facebook operates a free social networking website, with more than 500 million registered 5 users. (Compl. ¶ 8.) Facebook offers Users an array of options for sharing content and 6 communicating. Facebook makes available to third-party websites, for free on its Platform, two 7 features that allow Facebook Users to share content on those websites with their Facebook 8 Friends. (Id. ¶¶ 10-13.) The first feature is the Facebook “Like” button, which has a “thumbs- 9 up” symbol accompanied by the word “Like,” and is typically displayed by a participating 10 website alongside the many other sharing plug-ins and widgets that other services offer. (Id. 11 ¶ 10.) The Like button allows a Facebook User to share content on third-party websites that the 12 User finds interesting, funny, or for which the User has an affinity. (Id.) If a third-party website 13 operator has the “Like” button on its site, and a User who is logged into Facebook clicks the 14 button for some particular content, the User’s “Like” statement may be displayed to Facebook 15 Friends who visit the third-party website, as well as on the User’s profile page on Facebook. (Id. 16 ¶¶ 10-11.) The second feature is “Facebook Connect.” (Id. ¶ 13.) If a third-party website has 17 integrated Facebook Connect, a Facebook User can log in to the site using his or her Facebook 18 account and then share content directly on that site with the User’s Friends. (Id.) Both features 19 enable third-party websites to create a more personalized and social online experience for visitors 20 to their sites. 21 Plaintiffs allege that Facebook tracks the websites “Internet users” visit by placing 22 “cookies” in their web browsers. (Compl. ¶¶ 14-15.) A cookie, also known as a “browser 23 cookie” or an “HTTP cookie,” “is a piece of information sent by a web server to a web browser 24 that the browser software is expected to save and to send back whenever the browser makes 25 additional requests of the server (such as when the user visits additional webpages at the same or 26 related sites).” In re Pharmatrak, Inc. Privacy Litig., 329 F.3d 9, 14 (1st Cir. 2003) (footnote 27 2 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO By discussing the Complaint’s factual allegations for purposes of this motion, Facebook does not thereby make any admission of fact. 4. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 omitted). Even ten years ago, cookies were “commonly used by Web sites to store useful 2 information such as usernames, passwords, and preferences, making it easier for users to access 3 Web pages in an efficient manner.” In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 4 502-03 (S.D.N.Y. 2001). Because cookies make it easier for users to access websites and allow 5 for a better user experience, they are used by almost every major Internet website today. See 6 Pharmatrak, 329 F.3d at 14 (“Cookies are widely used on the Internet by reputable websites to 7 promote convenience and customization.”); Netscape Commc’ns Corp. v. Valueclick, Inc., 684 F. 8 Supp. 2d 678, 682 (E.D. Va. 2009) (“[T]oday the ‘cookies’ technology is ubiquitous . . . .”). 9 Plaintiffs allege that Facebook places cookies in Facebook Users’ web browsers and 10 collects Users’ most recent browsing history each time they visit a site displaying the Facebook 11 “Like” button. (Compl. ¶ 15(a).)3 As for non-Facebook Users, Plaintiffs allege that Facebook (i) 12 places cookies in their web browsers when they first visit a site integrated with Facebook Connect 13 and (ii) collects their most recent browsing history when they subsequently visit a site displaying 14 the Facebook “Like” button. (Compl. ¶ 15(c).) Plaintiffs allege that the information collected 15 about non-Facebook Users is “anonymous”; according to the Complaint, only after a non-User 16 becomes a Facebook User “can” that information possibly be connected with his or her Facebook 17 account. (Id.) The Complaint does not allege that Facebook has actually done so. (See id.) 18 19 20 21 22 23 24 25 26 Plaintiffs purport to bring claims on behalf of themselves and two subclasses of Internet 3 As stated in Facebook’s Privacy Policy, to which all Users agree when they register for the site and of which this Court may take judicial notice (see Request for Judicial Notice filed herewith): Cookie Information. We use “cookies” (small pieces of data we store for an extended period of time on your computer, mobile phone, or other device) to make Facebook easier to use, to make our advertising better, and to protect both you and Facebook. For example, we use them to store your login ID (but never your password) to make it easier for you to login whenever you come back to Facebook. We also use them to confirm that you are logged into Facebook, and to know when you are interacting with Facebook Platform applications and websites, our widgets and Share buttons, and our advertisements. You can remove or block cookies using the settings in your browser, but in some cases that may impact your ability to use Facebook. 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO (Declaration of Ana Yang Muller (“Yang Decl.”), filed herewith, Ex. B (Privacy Policy) § 2.) 5. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 users. 2 displaying the Facebook ‘Like’ button from April 22, 2010 to the date of filing of this complaint.” 3 (Compl. ¶ 19.) The second proposed subclass includes “all non-Facebook members who visited a 4 website in the Facebook Connect network and subsequently visited a website displaying the 5 Facebook ‘Like’ button from April 22, 2010 to the date of the filing of this complaint.” (Id.) The first proposed subclass includes “all Facebook members who visited a website 6 According to the Complaint, Plaintiff Ryan Ung is a registered Facebook User who, 7 during some unspecified period, visited certain unspecified third-party websites that displayed the 8 “Like” button. (Compl. ¶ 4.) Plaintiffs Chi Cheng and Alice Rosen are not Facebook users but, 9 during some unspecified period, allegedly visited certain unspecified websites integrated with 10 Facebook Connect and subsequently visited other unspecified sites that displayed the “Like” 11 button. (Id. ¶¶ 5, 6.) The Complaint does not indicate that Plaintiffs Cheng or Rosen ever 12 registered as Facebook Users. 13 Although Plaintiffs allege in conclusory fashion that Facebook “collected [their] browsing 14 histor[ies]” and “personally identifiable information” without consent (id. ¶¶ 4-6), the Complaint 15 does not allege specifically what, if any, personal information Facebook has supposedly collected 16 from them along with their browsing histories. Nor does the Complaint allege that Facebook has 17 disclosed any of Plaintiffs’ personal information to third parties, much less any specific facts 18 suggesting that Plaintiffs were harmed in any way. The Complaint further alleges that the 19 information allegedly collected by Facebook is “an asset of the sort that is priced, bought, and 20 sold in discrete units for marketing purposes” (id. ¶ 16 (emphasis added)), but contains no 21 specific factual allegations concerning any such sale of information allegedly collected from 22 Plaintiffs or otherwise. 23 III. APPLICABLE STANDARDS 24 A court may dismiss a claim under Federal Rule of Civil Procedure 12(b)(1) based on lack 25 of subject matter jurisdiction, and the motion may attack either the complaint on its face or the 26 existence of jurisdiction in fact. See Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 27 730, 732-33 (9th Cir. 1979). If a complaint does not establish standing under Article III of the 28 U.S. Constitution, a federal court does not have subject matter jurisdiction to hear the case. See COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 6. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998). 2 A court may dismiss a claim under Rule 12(b)(6) when “there is no cognizable legal 3 theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. 4 Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion under Rule 12(b)(6), “all material 5 allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn 6 from them.” Id. However, as the Supreme Court recently emphasized, “labels and conclusions, 7 and a formulaic recitation of the elements of a cause of action will not” suffice. Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 555 (2007). “[A] complaint must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 12 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A plaintiff must therefore plead “more 13 than a sheer possibility that a defendant has acted unlawfully.” Id. 14 Additionally, “in order to ‘[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by 15 deliberately omitting . . . documents upon which their claims are based,’ a court may consider a 16 writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on 17 the document and its authenticity is unquestioned.” See Swartz v. KPMG LLP, 476 F.3d 756, 763 18 (9th Cir. 2007) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (incorporating by 19 reference insurance terms of service and administrative documents because the claim necessarily 20 relied on plaintiff having been a member of the insurance plan)). As discussed in greater detail in 21 the accompanying Request for Judicial Notice filed herewith, the Complaint relies on the 22 Facebook Statement of Rights and Responsibilities and Privacy Policy (see Compl. ¶¶ 4, 9, 15), 23 which, under the applicable legal principles, the Court may properly consider in ruling on this 24 motion.4 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 4 Facebook Users agree to the Facebook Statement of Rights and Responsibilities (“SRR”) when they register with the site. (See Yang Decl. Ex. A.) The SRR and Privacy Policy can be found by clicking on a link labeled “Terms” at the bottom of the Facebook webpage. (See id. ¶ 2.) The SRR and Privacy Policy are attached as Exhibits A and B to the Yang Declaration. 7. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 2 3 IV. ARGUMENT A. Plaintiffs Have Not Alleged Injury in Fact and Thus Lack Article III Standing. 4 To have Article III standing to maintain an action in federal court, a plaintiff bears the 5 burden of alleging facts sufficient to establish that “(1) it has suffered an ‘injury in fact’ that is (a) 6 concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the 7 injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed 8 to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the 9 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The alleged injury 10 in fact must be “concrete in both a qualitative and temporal sense.” Whitmore v. Ark., 495 U.S. 11 149, 155 (1990). Plaintiffs must “allege an injury to [themselves] that is ‘distinct and palpable’ as 12 opposed to merely ‘[a]bstract,’ and the alleged harm must be actual or imminent, not ‘conjectural’ 13 or ‘hypothetical.’” Id. (citations omitted). 14 purporting to represent the class must establish that they personally have standing to bring the 15 cause of action. If the named plaintiffs cannot maintain the action on their own behalf, they may 16 not seek such relief on behalf of the class. See Lewis v. Casey, 518 U.S. 343, 357 (1996) (“[E]ven 17 named plaintiffs who represent a class ‘must allege and show that they personally have been 18 injured, not that injury has been suffered by other, unidentified members of the class to which 19 they belong and which they purport to represent.’” (citations omitted)); Lierboe v. State Farm 20 Mut. Auto. Ins. Co., 350 F.3d 1018, 1020 (9th Cir. 2003) (same). In a putative class action, the named plaintiffs 21 Plaintiffs here have failed to allege any harm that constitutes injury in fact. Plaintiffs do 22 not allege that they themselves have suffered any actual harm—economic or otherwise—arising 23 from Facebook’s alleged collection of their browsing history. Plaintiffs do not specify what sites 24 they visited or when, nor do Plaintiffs indicate whether they ever proactively deleted cookies 25 allegedly stored in their web browser. Importantly, Plaintiffs do not allege that the browsing 26 histories Facebook is alleged to have collected contained any sensitive personal data about them, 27 that Facebook disclosed their browsing information to third parties, or that Plaintiffs suffered any 28 emotional or economic harm arising from Facebook’s alleged collection of their browsing history. COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 8. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Indeed, Plaintiffs admit that to the extent alleged “data profiles” exist for individuals in their 2 proposed “non-Facebook members” subclass (including Plaintiffs Cheng and Rosen), the data 3 profiles were “anonymous.” (See Compl. ¶ 15; see also id. ¶¶ 5-6 (Plaintiffs Cheng and Rosen 4 are “non-Facebook member[s]”); id. ¶ 14 (browsing history is collected “in some cases” for non- 5 members).) 6 Instead of alleging specific harm, Plaintiffs rely on insinuation and speculation to suggest 7 that Facebook might have collected personal information of some individuals and might have sold 8 it to third parties. For example, the Complaint alleges that “[a]nyone who has used the Internet to 9 seek advice about hemorrhoids, sexually transmitted diseases, abortion, drug rehabilitation[,] [or] 10 dementia . . . can be reasonably certain that Facebook has tracked at least some of those visits 11 and in many cases, identified them with a particular individual . . . .” (Id. ¶ 14 (emphasis 12 added).) Further compounding the conjectural nature of the alleged injury, Plaintiffs do not even 13 allege that they themselves visited any such sites. Similarly, Plaintiffs also allege that Facebook 14 collects information that “can easily be incorporated into a personal profile for sale to marketers 15 of all sorts, or to be put at the disposal of the United States or state government agencies” (id. 16 (emphasis added)) and that “[t]he personal information collected by Facebook is an asset of the 17 sort that is priced, bought, and sold in discrete units for marketing purposes” (id. ¶ 16 (emphasis 18 added)). But, again, Plaintiffs fail to allege that such sales or transmission actually took place. 19 Finally, Plaintiffs also claim that “[p]ersonal data is viewed as currency” and allege that “a 20 company called ‘Allow Ltd.’ . . . offer[s] to sell people’s personal information on their behalf.” 21 (Id. ¶¶ 17-18 (emphasis added).) 22 information has taken place, or even that they have attempted to sell their own information.5 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO But Plaintiffs do not allege that any such sales of their In short, Plaintiffs’ allegations are precisely the kinds of conjectural and hypothetical 5 Plaintiffs’ generalized, conclusory statement—contained only within their unjust enrichment cause of action—that Facebook has “s[old] [personal information] to third parties for marketing purposes” (Compl. ¶ 35) is not only false but is unsupported by sufficient factual allegations to support the claim. See Iqbal, 129 S. Ct. at 1949 (2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”); id. (citing Twombly, 550 U.S. at 555 (“[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements,” are not taken as true)). 9. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 assertions that do not support a finding of injury in fact. See Johnson v. Weinberger, 851 F.2d 2 233, 235 (9th Cir. 1988) (affirming dismissal of complaint for lack of Article III standing where 3 “speculative inferences” were necessary to establish injury); Gaos v. Google, Inc., No. 10-CV- 4 04809-JW, at *5 (N.D. Cal. Apr. 7, 2011) (dismissing complaint for lack of Article III standing 5 where plaintiffs failed to allege that they were affected by challenged practices); Two Jinn, Inc. v. 6 Gov’t Payment Serv., Inc., No. 09CV2701 JLS (BLM), 2010 WL 1329077, at *3 (S.D. Cal. Apr. 7 1, 2010) (dismissing complaint for lack of Article III standing where the alleged injury was “mere 8 conjecture”); Lee v. Capital One Bank, No. C 07-4599 MHP, 2008 WL 648177, at *2 (N.D. Cal. 9 Mar. 5, 2008) (dismissing complaint for lack of Article III standing where alleged injuries were 10 “hypothetical” and not “actual or imminent”). 11 Furthermore, the collection of browsing history or demographic data does not support a 12 finding of economic loss, as the Southern District of New York ruled over ten years ago. See 13 DoubleClick, 154 F. Supp. 2d at 525 (holding that “plaintiffs have failed to state any facts that 14 could support a finding of economic loss” arising from defendant’s alleged use of cookies to track 15 plaintiffs’ browsing history and demographic data). Nor does the alleged collection of personal 16 information otherwise support a finding of economic loss. See Thompson v. Home Depot, Inc., 17 No. 07-cv-1058 IEG (WMc), 2007 WL 2746603, at *3 (S.D. Cal. Sept. 18, 2007) (holding that 18 plaintiff’s alleged use of personal information for marketing purposes did not confer a property 19 interest to plaintiff under California’s Unfair Competition Law); In re JetBlue Airways Corp. 20 Privacy Litig., 379 F. Supp. 2d 299, 327 (E.D.N.Y. 2005) (“There is [] no support for the 21 proposition that an individual passenger’s personal information has or had any compensable value 22 in the economy at large.”); Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 126 Cal. Rptr. 23 3d 118, 124 (2011) (holding that “collection and recordation” of plaintiffs’ personal information 24 did not constitute loss of money or property); Dwyer v. Am. Express Co., 273 Ill. App. 3d 742, 25 749 (Ill. App. Ct. 1995) (holding that cardholder name has little or no intrinsic value apart from 26 its inclusion on a categorized list; instead, “[d]efendants create value by categorizing and 27 aggregating” the names). 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO These issues were recently addressed by the Central District of California in LaCourt v. 10. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Specific Media, Inc., No. SACV 10-1256-GW(JCGx), 2011 WL 1661532, at *3-5 (C.D. Cal. Apr. 2 28, 2011). In LaCourt, the plaintiffs alleged that Specific Media had used what are known as 3 “flash cookies” (which plaintiffs argued were used to circumvent standard HTTP cookies) to 4 collect names, e-mail addresses, home and business addresses, telephone numbers, web searches, 5 and browser histories. Id. at *5. The court granted Specific Media’s motion to dismiss on Article 6 III grounds, finding that the plaintiffs “d[id] not specifically allege that Plaintiffs themselves were 7 affected by [Specific Media’s alleged conduct].” Id. at *4. The court further found that even if 8 the plaintiffs had alleged that they were affected by Specific Media’s conduct, they also had not 9 included any particularized facts regarding how they suffered economic injury, and dismissed the 10 complaint for lack of standing on that basis as well. Id. at *4-5. The court cited Doubleclick 11 approvingly, noting that while “not binding, . . . [Doubleclick’s] reasoning at least suggests that 12 the question of Plaintiffs’ ability to allege standing is a serious one” and that “[i]t would be very 13 difficult to conclude at this point that Plaintiffs have met their burden of establishing that this 14 Court has subject matter jurisdiction.” Id. at *6. 15 16 17 18 Because Plaintiffs have not alleged any cognizable injury to establish standing under Article III, the Complaint should be dismissed. B. Plaintiffs Fail to State a Claim under Article I, Section 1 of the California Constitution. 19 Cookies have long been used by websites across the Internet for the convenience of, and 20 to provide a more personalized experience for, visitors to those websites. See Pharmatrak, 329 21 F.3d at 14; Valueclick, 684 F. Supp. 2d at 682. Accordingly, it is not surprising that courts have 22 repeatedly rejected attempts to impose liability on websites based merely on the placement of 23 cookies that collect browsing history. 24 (dismissing with prejudice claims under the Wiretap Act (Title I of the Electronic 25 Communications Privacy Act (“ECPA”)), Stored Communications Act (Title II of the ECPA), 26 and the Computer Fraud and Abuse Act). Plaintiffs’ attempt to repackage this theory of liability 27 as a claim under the California Constitution also fails as a matter of law and should be rejected. 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO See, e.g., DoubleClick, 154 F. Supp. 2d at 526-27 To state a claim for violation of the California constitutional right to privacy, Plaintiffs 11. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 must allege sufficient facts establishing three elements: “(1) a legally protected privacy interest; 2 (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant 3 constituting a serious invasion of privacy.” See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 4 1, 66 (1994). Plaintiffs here have failed to allege facts to support any of these elements, instead 5 offering only improper legal conclusions. Accordingly, Plaintiffs’ claim should be dismissed. 6 See Iqbal, 129 S. Ct. at 1949 (noting that “[t]hreadbare recitals of the elements of a cause of 7 action . . . do not suffice” to survive a motion to dismiss). 8 1. Plaintiffs Fail to Allege a Legally Protected Privacy Interest. 9 Plaintiffs assert that they have a “legally protected interest in their personal Internet 10 browsing history” (Compl. ¶ 30), but such a legal conclusion need not be accepted as true for the 11 purposes of a motion to dismiss. See Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 12 1996) (“conclusory allegations of law and unwarranted inferences are insufficient to defeat a 13 motion to dismiss for failure to state a claim”); accord Iqbal, 129 S. Ct. at 1949. The California 14 Supreme Court has recognized two classes of protected privacy interests: (1) “informational 15 privacy,” which protects “interests in precluding the dissemination or misuse of sensitive and 16 confidential information,” and (2) “autonomy privacy,” which protects “interests in making 17 intimate personal decisions or conducting personal activities without observation, intrusion, or 18 interference . . . .” Hill, 7 Cal. 4th at 35. Although a privacy interest may exist in certain types of 19 highly sensitive information, see, e.g., Susan S. v. Israels, 55 Cal. App. 4th 1290, 1295-98 (1997) 20 (confidential mental health records); Urbaniak v. Newton, 226 Cal. App. 3d 1128, 1140-41 (1991) 21 (HIV status), the Complaint does not allege that Facebook has either collected—or disclosed— 22 any such highly personal information from any of the Plaintiffs or that any of the Plaintiffs even 23 have such interests to protect. (See, e.g., Compl. ¶¶ 4-6.) Further, Plaintiffs admit that any data 24 profiles that could potentially exist for “non-Facebook members,” such as Plaintiffs Cheng and 25 Rosen, were stored “anonymous[ly].” (See id. ¶ 15.) Because Plaintiffs have failed to allege that 26 Facebook has violated a legally protected privacy interest, Plaintiffs’ claim should be dismissed. 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 12. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 2 3 2. Plaintiffs Fail to Allege a Reasonable Expectation of Privacy in the Circumstances. Plaintiffs have also failed to allege that they had a reasonable expectation of privacy in 4 their browsing history. “A ‘reasonable’ expectation of privacy is an objective entitlement 5 founded on broadly based and widely accepted community norms.” Hill, 7 Cal. 4th at 37. 6 “[C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit 7 reasonable expectations of privacy.” Id. at 36. “[T]he presence or absence of opportunities to 8 consent voluntarily to activities impacting privacy interests obviously affects the expectations of 9 the participant.” Id. at 37. 10 Plaintiffs fail to establish a reasonable expectation of privacy for individuals in their 11 “members” subclass (including Plaintiff Ung), because Facebook plainly discloses its use of 12 cookies in its Privacy Policy, which is published on its website and agreed to by all Users as a 13 condition to using the website: 14 15 16 17 18 19 20 Cookie Information. We use “cookies” (small pieces of data we store for an extended period of time on your computer, mobile phone, or other device) to make Facebook easier to use, to make our advertising better, and to protect both you and Facebook. For example, we use them to store your login ID (but never your password) to make it easier for you to login whenever you come back to Facebook. We also use them to confirm that you are logged into Facebook, and to know when you are interacting with Facebook Platform applications and websites, our widgets and Share buttons, and our advertisements. You can remove or block cookies using the settings in your browser, but in some cases that may impact your ability to use Facebook. 21 (See Yang Decl., Ex. B § 2 (emphases added).) Individuals do not have a reasonable expectation 22 of privacy where they receive notice and an opportunity to consent to the activity. Hill, 7 Cal. 4th 23 at 42 (holding that athletes do not have a reasonable expectation of privacy regarding urine tests, 24 where the tests were disclosed to them and the athletes had an opportunity to consent to or refuse 25 to participate in the testing); Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047, 1068-72 26 (2011) (holding that plaintiff who used company email account to communicate with her attorney 27 did not have reasonable expectation of privacy in that communication where company’s review of 28 her emails had been disclosed to her). COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 13. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 As to non-Facebook Users, Plaintiffs have alleged that any browsing data that may have 2 been collected was done so anonymously. (Compl. ¶ 15(c).) A person cannot be said to have a 3 reasonable expectation of privacy in anonymous data about the pages he or she has visited on the 4 Internet, particularly because data on the Internet is routinely routed through multiple third-party 5 servers as anonymous data packets.6 6 7 Plaintiffs have thus failed to allege that they held any “reasonable” expectation of privacy in their browsing histories. 8 3. 9 Plaintiffs Fail to Allege Conduct by Facebook that Constitutes a Serious Invasion of a Privacy Interest. 10 Finally, Plaintiffs have failed to allege a serious invasion of a privacy interest. To be 11 actionable as a violation of the constitutional right of privacy, an “invasion[] of privacy must be 12 sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious 13 breach of the social norms underlying the privacy right.” Hill, 7 Cal. 4th at 37. However, as 14 discussed above, Plaintiffs make no allegation that they were harmed economically or 15 emotionally or in any other way by Facebook’s alleged activities. Plaintiffs’ only allegation in 16 this regard is the statement that: “Facebook committed a serious invasion of Plaintiffs’ privacy 17 interest by using the ‘Like’ button and Facebook Connect to secretly track Plaintiffs’ website 18 browsing history.” (Compl. ¶ 32.) But Plaintiffs’ threadbare recital of the elements of a cause of 19 action is insufficient to state a claim. See Iqbal, 129 S. Ct. at 1949. 20 Indeed, inasmuch as Plaintiffs allege that Facebook collected Plaintiffs’ browsing history 21 to serve targeted ads to Plaintiffs (see Compl. ¶¶ 16, 35), those allegations do not constitute a 22 serious invasion of a privacy interest as a matter of a law. Collection of personal information in 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 6 Courts have held, in the context of the Fourth Amendment, that users do not have a reasonable expectation of privacy for similar Internet activity. See United States v. Forrester, 512 F.3d 500, 510 (2008) (“[E]-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.”); People v. Stipo, 195 Cal. App. 4th 664, 666, 668-69 (2011) (holding that a “subscriber has no expectation of privacy in the subscriber information he supplies to his Internet provider”). 14. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 order to serve advertisements is “routine commercial behavior” that does not rise to the level of 2 egregiousness required under the California Constitution. See Folgelstrom v. Lamps Plus, Inc., 3 195 Cal. App. 4th 986, 992 (2011). The plaintiff in Folgelstrom alleged that the defendant retail 4 chain had collected his zip code at check out and used it to determine his home address. Id. at 5 989. The chain then used the address “to mail him coupons and other advertisements.” Id. at 6 992. 7 California Constitution’s right to privacy, explaining that “[t]his conduct is not an egregious 8 breach of social norms, but routine commercial behavior.” Id. 9 The California Court of Appeal affirmed the dismissal of plaintiff’s claim under the The collection and use of personal information on the Internet in order to serve targeted 10 advertisements is similarly routine. 11 explained: 12 As the court in In re DoubleClick Privacy Litigation 20 We do not commonly believe that the economic value of our attention is unjustly taken from us when we choose to watch a television show or read a newspaper with advertisements and we are unaware of any statute or caselaw that holds it is. We see no reason why Web site advertising should be treated any differently. A person who chooses to visit a Web page and is confronted by a targeted advertisement is no more deprived of his attention’s economic value than are his off-line peers. Similarly, although demographic information is valued highly . . . , the value of its collection has never been considered a[n] economic loss to the subject. Demographic information is constantly collected on all consumers by marketers, mail-order catalogues and retailers. However, we are unaware of any court that has held the value of this collected information constitutes damage to consumers or unjust enrichment to collectors. Therefore, it appears to us that plaintiffs have failed to state any facts that could support a finding of economic loss . . . . 21 154 F. Supp. 2d at 525. Plaintiffs therefore have not alleged a serious invasion of a privacy 22 interest, and their claim should be dismissed. 13 14 15 16 17 18 19 23 C. 24 Plaintiffs’ unjust enrichment claim should also be dismissed, on the ground that there is no 25 such independent cause of action in California. See, e.g., LaCourt, 2011 WL 1661532, at *8 26 (“This Court agrees with other courts in this district that ‘unjust enrichment is not an independent 27 claim’ . . . .”); In re DirecTV Early Cancellation Litig., 738 F. Supp. 2d 1062, 1091 (C.D. Cal. 28 2010) (noting “unjust enrichment is not an independent claim”); Levine v. Blue Shield of Cal., COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO Plaintiffs Fail to State a Claim for Unjust Enrichment. 15. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 189 Cal. App. 4th 1117, 1138 (2010) (dismissing unjust enrichment claim because “[t]here is no 2 cause of action in California for unjust enrichment”) (citations omitted); McBride v. Boughton, 3 123 Cal. App. 4th 379, 387 (2004) (“Unjust enrichment is not a cause of action, however, or even 4 a remedy. . . .”). 5 alternative legal theory that would give rise to restitution. See GA Escrow, LLC v. Autonomy 6 Corp. PLC, No. C 08-01784 SI, 2008 WL 4848036, at *7 (N.D. Cal. Nov. 7, 2008) (noting that a 7 court may elect to reinterpret an improperly pleaded “unjust enrichment” claim as a properly 8 pleaded cause of action granting restitution). Moreover, Plaintiffs have failed to allege facts sufficient to support an 9 Even were Plaintiffs to allege a properly pleaded cause of action supporting restitution 10 (which they do not), their claim for unjust enrichment would still fail. “An individual is required 11 to make restitution if he or she is unjustly enriched at the expense of another.” Durell v. Sharp 12 Healthcare, 183 Cal. App. 4th 1350, 1370 (2010) (emphasis added) (citations omitted). But 13 Plaintiffs do not allege that they have suffered any detriment to Facebook’s benefit. Plaintiffs 14 have not alleged that they paid or otherwise tendered money to Facebook—nor could they, since 15 Facebook, Facebook Connect, and the Facebook “Like” button are free. Nor do Plaintiffs have 16 property rights in their personal information that would be harmed had Facebook collected that 17 information. See In re Facebook Privacy Litig., --- F. Supp. 2d ----, No. C 10-02389 JW, 2011 18 WL 2039995, *8 (N.D. Cal. May 12, 2011) (holding that “[p]laintiffs’ contention that their 19 personal information constitutes a form of ‘payment’ to Defendant is unsupported by law” and 20 dismissing claim under Consumer Legal Remedies Act); see also id. at *6-7 (dismissing claim 21 under California’s Unfair Competition Law because “personal information does not constitute 22 property for purposes of a UCL claim”); DoubleClick, 154 F. Supp. 2d at 525 (“[W]e are unaware 23 of any court that has held the value of this collected information constitutes damage to consumers 24 or unjust enrichment to collectors.”). 25 Plaintiffs also fail to plead that Facebook’s alleged collection of their browsing histories 26 was unjust. To plead unjust enrichment, it must ordinarily appear “‘that the benefits were 27 conferred by mistake, fraud, coercion or request; otherwise, though there is enrichment, it is not 28 unjust.’” In re Actimmune Mktg. Litig., No. C 08-02376, 2009 WL 3740648, at *16 (N.D. Cal. COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 16. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG 1 Nov. 6, 2009) (internal quotation marks and citation omitted). Plaintiffs have not alleged that 2 Facebook tracked their browsing histories through mistake, fraud, coercion, or request. Nor have 3 Plaintiffs alleged any other wrongdoing that might support a cause of action granting restitution. 4 As explained above, Plaintiffs have failed to successfully plead a claim under Article I, Section 1 5 of the California Constitution (see supra § IV. B.). See Actimmune, 2009 WL 3740648, at *16 6 (“[C]ourts routinely dismiss unjust enrichment claims where a plaintiff cannot assert any 7 substantive claims against a defendant.”); Levine, 189 Cal. App. 4th at 1138 (sustaining trial 8 court’s dismissal of claim for unjust enrichment where the court also dismissed plaintiffs’ 9 remaining claims). Therefore, Plaintiffs’ improperly pleaded claim for unjust enrichment is 10 unsalvageable, and should be dismissed. 11 V. 12 CONCLUSION For the foregoing reasons, Plaintiffs’ Class Action Complaint should be dismissed with 13 prejudice. 14 Dated: July 20, 2011 COOLEY LLP 15 /s/ Matthew D. Brown ____________________________________ 16 Matthew D. Brown (196972) 17 Attorneys for Defendant FACEBOOK, INC. 18 19 1227110/SF 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW SAN FRANCISCO 17. FACEBOOK, INC.’S MOTION TO DISMISS PLAINTIFF S’ CLASS ACTION COMPLAINT CASE NO. 11-CV-02829-JF-PSG

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