Ung et al v. Facebook, Inc.

Filing 31

REPLY (re 10 MOTION to Dismiss FACEBOOK, INC.S MOTION TO DISMISS PLAINTIFFS CLASS ACTION COMPLAINT ) Facebook, Inc.s Reply Brief in Support of its Motion to Dismiss Plaintiffs Class Action Complaint filed byFacebook, Inc.. (Brown, Matthew) (Filed on 9/28/2011)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
BENJAMIN H. KLEINE (257225)
([e-mail])
JAMES B. MCARTHUR (265806)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendant FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RYAN UNG, CHI CHENG and ALICE
ROSEN, on Behalf of Themselves and All
Others Similarly Situated,
Plaintiffs,

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v.

Case No. 11-CV-02829-JSW-PSG
FACEBOOK, INC.’S REPLY BRIEF IN
SUPPORT OF ITS MOTION TO DISMISS
PLAINTIFFS’ CLASS ACTION COMPLAINT
FED. R. CIV. PRO. 12(b)(1), 12(b)(6)

FACEBOOK, INC.,
Defendant.

Date:
Time:
Judge:
Courtroom:
Trial Date:

To be determined
To be determined
Hon. Jeffrey S. White
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Not yet set

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

TABLE OF CONTENTS

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PAGE

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I.
II.

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III.

INTRODUCTION .............................................................................................................. 1
ARGUMENT ...................................................................................................................... 2
A.
Plaintiffs Lack Standing Because They Fail to Plead Injury in Fact. ..................... 2
B.
Plaintiffs Fail to State a Claim Under the California Constitution. ........................ 7
1.
Plaintiffs Fail to Allege a Legally Protected Privacy Interest..................... 7
2.
Plaintiffs Fail to Allege a Reasonable Expectation of Privacy. .................. 9
3.
Plaintiffs Fail to Allege a Serious Invasion of a Privacy Interest. ............ 11
C.
Plaintiffs’ Claim for Unjust Enrichment Should Be Dismissed............................ 11
1.
Plaintiffs Do Not Allege That They Paid Any Money to Facebook
or That They Have Any Property Interest in Information about
Them. ........................................................................................................ 12
2.
Plaintiffs Do Not Allege Facebook Benefited Through
Wrongdoing. ............................................................................................. 14
CONCLUSION ................................................................................................................. 15

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FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

TABLE OF AUTHORITIES

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PAGE(S)

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3

CASES

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In re Actimmune Mktg. Litig.,
No. C 08-02376 MHP, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009) .................................... 14

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6

Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) ........................................................................................................ 5, 11

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Doe v. Penzato,
No. CV10-5154 MEJ, 2011 WL 1833007 (N.D. Cal. May 13, 2011)...................................... 8

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9

In re DoubleClick Inc. Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001)............................................................................. 5, 6, 13

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Durell v. Sharp Healthcare,
183 Cal. App. 4th 1350 (2010)................................................................................................ 14

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Edwards v. First Am. Corp.,
610 F.3d 514 (9th Cir. 2010)................................................................................................ 4, 5
In re Facebook Privacy Litig.,
No. C 10-02389 JW, --- F. Supp. 2d ---,
2011 WL 2039995 (N.D. Cal. May 12, 2011) .................................................................. 12, 13
First Am. Fin. Corp. v. Edwards,
131 S. Ct. 3022 (2011) .............................................................................................................. 5

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Folgelstrom v. Lamps Plus, Inc.,
195 Cal. App. 4th 986 (2011).................................................................................................. 11

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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) .................................................................................................................. 2

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Fulfillment Servs. Inc. v. UPS, Inc.,
528 F.3d 614 (9th Cir. 2008)................................................................................................. 4, 5

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Hill v. Nat’l Collegiate Athletic Ass’n,
7 Cal. 4th 1 (1994) .............................................................................................................. 7, 11

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In re iPhone Application Litigation,
No. 11-md-02250-LHK (N.D. Cal. Sept. 20, 2011) ........................................................ passim

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In re JetBlue Airways Corp., Privacy Litig.,
379 F. Supp. 299 (E.D.N.Y 2005) ............................................................................................ 6

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Kenneally v. Bank of Nova Scotia,
711 F. Supp. 2d 1174 (S.D. Cal. 2010) ................................................................................... 15

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Krottner v. Starbucks Corp.,
628 F.3d 1139 (9th Cir. 2010)................................................................................................... 6

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FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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TABLE OF AUTHORITIES
(CONTINUED)

PAGE

L.A. Haven Hospice, Inc. v. Sebelius,
638 F.3d 644 (9th Cir. 2011)..................................................................................................... 4

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LaCourt v. Specific Media, Inc.,
No. 10-1256, 2011 WL 1661532 (C.D. Cal. Apr. 28, 2011) ............................................ 5, 6, 9

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Lee v. Chase Manhattan Bank,
No. C07-04732 MJJ, 2008 WL 698482 (N.D. Cal. Mar. 14, 2008) ......................................... 4

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Lewis v. Casey,
518 U.S. 343 (1996) .................................................................................................................. 2

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Lierboe v. State Farm Mut. Auto. Ins. Co.,
350 F.3d 1018 (9th Cir. 2003)................................................................................................... 2

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London v. New Albertson’s, Inc.,
No. 08-CV-1173 H(CAB), 2008 WL 4492642 (S.D. Cal. Sep. 30, 2008) ............................... 8

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Monet v. Chase Home Finance,
No. C 10-0135 RS, 2010 WL 2486376 (N.D. Cal. June 16, 2010) ........................................ 15

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Press-Enterprise Co. v. Super. Ct.,
464 U.S. 501 (1984) .................................................................................................................. 8

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Robins v. Spokeo, Inc.,
No. CV10-05306 ODW, 2011 WL 597867 (C.D. Cal. Jan. 27, 2011) ..................................... 4

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Robins v. Spokeo, Inc.,
No. CV10-05306, slip op. (C.D. Cal. Sept. 19, 2011) .............................................................. 4

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Ruiz v. Gap, Inc.,
540 F. Supp. 2d 1121 (N.D. Cal. 2008) .................................................................................. 13

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Scott v. Pasadena Unified Sch. Dist.,
306 F.3d 646 (9th Cir. 2002)..................................................................................................... 4

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Summers v. Earth Island Inst.,
129 S. Ct. 1142 (2009) .............................................................................................................. 4

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Thompson v. Home Depot, Inc.,
No. 07cv1058 IEG, 2007 WL 2746603 (S.D. Cal. Sept. 18, 2007)........................................ 12

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United States v. Forrester,
512 F.3d 500 (9th Cir. 2008)............................................................................................... 7, 10

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United States v. Jones,
131 S. Ct. 3064 (2011) .............................................................................................................. 8

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United States v. Maynard,
615 F.3d 544 (D.C. Cir. 2010) .................................................................................................. 8

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FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

TABLE OF AUTHORITIES
(CONTINUED)

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PAGE

United States v. Pineda-Moreno,
591 F.3d 1212 (9th Cir. 2010)............................................................................................... 7, 8

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Warth v. Seldin,
422 U.S. 490 (1975) .................................................................................................................. 4

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Whitmore v. Ark.,
495 U.S. 149 (1990) ...................................................................................................... 2, 10, 11

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STATUTES
Cal. Civ. Code § 2224 ................................................................................................................... 14
OTHER AUTHORITIES
Cal. Const. art. I, § 1 .............................................................................................................. passim
N.D. Cal. Civ. L.R. 79-5 ................................................................................................................. 5
Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 5
Fed. R. Civ. P. 12(b)(1)................................................................................................................... 6
U.S. Constitution art. III, § 2................................................................................................... 4, 5, 6

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FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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I.

INTRODUCTION

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Plaintiffs’ Opposition attempts to save their fatally deficient Class Action Complaint

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(“Complaint”) by conjuring up an Orwellian plot—ludicrously dubbed the “Like Button

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Surveillance Program”—around two tools that Facebook provides to help users share with their

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friends: Facebook Connect and the Facebook “Like” button. Plaintiffs contend that, with these

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tools, Facebook has introduced a ubiquitous, but hidden, new technology to track the browsing

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data of every American who uses the Internet. But the “new technology” Plaintiffs allege

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Facebook is using—the HTTP cookie—is an extraordinarily commonplace feature of Internet

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websites and is necessary to the functionalities that Facebook Connect and the Facebook “Like”

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button provide.

Indeed, HTTP cookies are so prevalent that courts have regularly rejected

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attempts to impose liability for using them. Perhaps more fundamentally, Plaintiffs cannot point

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to a single instance in which they were personally harmed because of the alleged collection of the

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browsing data of unnamed “users.”

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Plaintiffs’ Opposition only reaffirms that the Complaint should be dismissed for each of

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the reasons set forth in Facebook’s opening brief (“Motion”). First, Plaintiffs have alleged no

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actual or imminent injury to themselves, and their vague references to supposed injury to “users”

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or “members” generally are entirely speculative and hypothetical. Plaintiffs have not alleged that

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Facebook has collected any personal data about them, or disclosed that data to third parties, or

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that Plaintiffs suffered any harm—economic, emotional, or otherwise—as a result of the

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challenged conduct. The Complaint therefore fails for lack of standing.

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Second, Plaintiffs’ claim for violation of Article I, Section 1 of the California Constitution

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fails as a matter of law because it does not satisfy any of the three required elements. Plaintiffs

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have failed to show that Facebook violated any legally protected privacy interest, and their

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attempts to ask the Court to create one by analogy fail. Nor do Plaintiffs have a reasonable

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expectation of privacy in data about their browsing history because, among other reasons,

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individuals in their “Facebook members” subclass received notice of Facebook’s use of cookies

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in Facebook’s Privacy Policy, and, as Plaintiffs concede, any browsing data for individuals in

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their “non-Facebook members” subclass is completely anonymous. Further, Plaintiffs have failed

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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to allege any conduct by Facebook that constitutes a serious invasion of a privacy interest,

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especially given the commonplace nature of the activity Plaintiffs allege Facebook engages in.

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Third, Plaintiffs’ claim for “unjust enrichment” fails because, as Plaintiffs concede, there

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is no such independent claim. Plaintiffs attempt to have the Court reinterpret their claim for

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unjust enrichment as one granting a right to restitution. But Plaintiffs do not allege that they paid

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or otherwise tendered money to Facebook (nor could they since Facebook, Facebook Connect,

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and the use of the Facebook “Like” button are free). Nor do Plaintiffs have a property interest in

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data that has been collected regarding their browsing history. Finally, even if Plaintiffs do have

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such an interest, they do not allege that Facebook acquired information about them through any

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wrongdoing that would provide grounds for a right to a restitutionary remedy. And Plaintiffs’

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specious allegations regarding the supposed sale of Plaintiffs’ personal information (which

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Plaintiffs have alleged no facts to support) should not alter that result.

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II.

ARGUMENT

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A.

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Article III requires Plaintiffs to show they have suffered an injury in fact that is

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qualitatively, temporally concrete and particularized, not abstract, and that is actual or imminent,

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not conjectural or hypothetical. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

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528 U.S. 167, 180-81 (2000); Whitmore v. Ark., 495 U.S. 149, 155 (1990). That Plaintiffs purport

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to represent a class does not change this requirement—the named Plaintiffs must establish that

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they personally have standing to bring the claim, not merely that injury has been suffered by other

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members of the putative class. Lewis v. Casey, 518 U.S. 343, 357 (1996); Lierboe v. State Farm

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Mut. Auto. Ins. Co., 350 F.3d 1018, 1020 (9th Cir. 2003). As Facebook explained in its opening

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brief, the Complaint fails because Plaintiffs do not allege that they themselves have suffered any

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actual harm—economic or otherwise—arising from Facebook’s alleged collection of data

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regarding their browsing history or, indeed, that anything at all happened to them. (Mot. at 8-11.)

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Judge Koh’s recent decision in In re iPhone Application Litigation, No. 11-md-02250-

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LHK (N.D. Cal. Sept. 20, 2011), underscores the failings of the Complaint here. Similar to the

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this case, the plaintiffs in iPhone Application Litigation alleged that, through software

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs Lack Standing Because They Fail to Plead Injury in Fact.

2.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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applications downloaded onto the plaintiffs’ iPhone, iPad, and iPod Touch devices, defendants

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had, without the plaintiffs’ consent, accessed and tracked data about them. Id., slip op. at 3.

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Indeed, the plaintiffs alleged that the defendants had collected many more types of data: “address

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book, cell phone numbers, file system, geolocation, International Mobile Subscriber Identity

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(IMSI), keyboard cache, photographs, SIM card serial number, and unique device identifier

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(UDID).” Id. at 3. According to the complaint, the defendants were able to learn “highly

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personal details” of the plaintiffs, which they used not for the functioning of the applications, but

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instead for advertising and analytics purposes. Id. at 3-4. The plaintiffs brought claims for

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violation of the federal Computer Fraud and Abuse Act and California’s Computer Crime Law,

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Consumer Legal Remedies Act, and Unfair Competition Law, as well as for negligence, trespass

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to chattels, breach of the covenant of good faith and fair dealing, and “unjust enrichment.” Id. at

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4. Judge Koh held that the plaintiffs failed to allege injury in fact and dismissed all of the

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plaintiffs’ claims. Id. at 4-9. Judge Koh based this holding on two independent grounds. First,

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“[d]espite a lengthy Consolidated Complaint, Plaintiffs [did] not allege injury in fact to

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themselves.” Id. at 6 (emphasis in original). Second, the plaintiffs “ha[d] not identified a

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concrete harm from the alleged collection and tracking of their personal information sufficient to

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create injury in fact.” Id. at 7. This rationale is fully applicable here.

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Plaintiffs also assert they “can establish standing based on the alleged infringement of

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their privacy rights under the California Constitution.” (Opp’n at 5.) But, for one thing, the

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recitation of the elements of a cause of action under a state constitution (or statute) does nothing

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to remedy the Complaint’s failure to allege that the conduct at issue actually affected Plaintiffs

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themselves in any way. As noted above, the iPhone Application Litigation plaintiffs alleged

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violations of four statutes. See slip op. at 4.

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Beyond that, the mere allegation of a constitutional or statutory violation without injury in

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fact does not confer standing.1 The Supreme Court has repeatedly explained that, even where the

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people create a new constitutional right or the legislature creates a new statutory cause of action,

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs’ argument also fails because, as explained below, Plaintiffs have failed to state a claim
under Article I, Section 1 of the California Constitution. (See infra § II.B.)
3.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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Article III’s “requirement remains: the plaintiff still must allege a distinct and palpable injury to

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himself, even if it is an injury shared by a large class of other possible litigants.” Warth v. Seldin,

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422 U.S. 490, 501 (1975). That is because “injury in fact is a hard floor of Article III jurisdiction

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that cannot be removed by statute.” Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009).

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Plaintiffs must therefore allege “some threatened or actual injury resulting from the putatively

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illegal action,” even where they allege a constitutional or statutory violation.

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Pasadena Unified Sch. Dist., 306 F.3d 646, 653, 656 (9th Cir. 2002) (dismissing, for failure to

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satisfy the injury in fact requirement of Article III, claims brought under Article I, § 32 of the

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California Constitution and California Civil Code § 52).

See Scott v.

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Lower courts have acknowledged this rule, holding that the “mere allegation of a violation

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of a California statutory right, without more, does not confer Article III standing . . . [and a]

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plaintiff invoking federal jurisdiction must also allege some actual or imminent injury resulting

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from the violation . . . .” Lee v. Chase Manhattan Bank, No. C07-04732 MJJ, 2008 WL 698482,

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at *5 (N.D. Cal. Mar. 14, 2008); see also Robins v. Spokeo, Inc., No. CV10-05306 ODW

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(AGRx), 2011 WL 597867, at *1 (C.D. Cal. Jan. 27, 2011) (dismissing complaint for lack of

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standing and holding that alleged statutory violation by operator of website was insufficient for

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standing purposes without allegations of “actual or imminent” harm); Robins v. Spokeo, Inc., No.

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CV10-05306 (AGRx), slip op. at 1 (C.D. Cal. Sept. 19, 2011) (dismissing amended complaint for

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lack of standing and holding that “[m]ere violation of the Fair Credit Reporting Act does not

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confer Article III standing . . . where no injury in fact is properly pled”); cf. L.A. Haven Hospice,

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Inc. v. Sebelius, 638 F.3d 644, 656 (9th Cir. 2011) (noting “less tangible forms of injury, such as

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the deprivation of an individual right conferred by statute” may confer Article III standing if the

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harm is “sufficiently particularized and concrete to demonstrate injury-in-fact”).2

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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Against the weight of these authorities, Plaintiffs cite Edwards v. First Am. Corp., 610 F.3d 514
(9th Cir. 2010), which Plaintiffs rely on for the proposition that “[t]he injury required by Article
III can exist solely by virtue of statutes creating legal rights, the invasion of which creates
standing.” (Opp’n at 4 (internal quotation marks omitted) (citing Edwards, 610 F.3d at 517, and
Fulfillment Servs. Inc. v. UPS, Inc., 528 F.3d 614 (9th Cir. 2008) (relied upon in Edwards)).)
Edwards is inapposite. It turned on the court’s analysis of the legislative history of the underlying
statute, which showed that, for policy reasons, that particular statute had eschewed traditional
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FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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Plaintiffs argue they did not include information in their Complaint about websites they

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visited because “that would require them to compromise the privacy rights they have asserted.”

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(Opp’n at 10 & n.10.) But the crux of the Complaint is that information about Plaintiffs has

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already been collected. In any event, Plaintiffs have failed to meet their burden under Federal

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Rule of Civil Procedure 8(a)(2), which requires a pleading to contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” Plaintiffs’ “privacy rights” are directly

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relevant to whether Plaintiffs have standing or can even show they are entitled to relief under the

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California Constitution. Plaintiffs cannot meet their burden by asking the Court simply to assume

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such interests exist. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (“[W]here the well-

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pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

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complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” (quoting

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Fed. R. Civ. P. 8(a)(2)). The correct way for Plaintiffs to resolve their purported conundrum was

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to file the Complaint under seal. See N.D. Cal. Civ. L.R. 79-5.

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Plaintiffs’ attempt to distinguish two of the cases cited in Facebook’s opening brief (see

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Mot. at 8-11)—In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001)

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and LaCourt v. Specific Media, Inc., No. 10-1256, 2011 WL 1661532 (C.D. Cal. Apr. 28,

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2011)—is also unavailing. (See Opp’n at 5.) Facebook did not represent that DoubleClick was

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an Article III decision, but rather that the court held the collection of browsing data did not

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constitute an economic loss to plaintiffs.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

(See Mot. at 10 (arguing that “the collection of

injury in fact requirements and permitted claims to go forward without allegations of an actual
overcharge. See Edwards, 610 F.3d at 517-18 (holding that plaintiff alleged “an injury sufficient
to satisfy Article III” because “no-fee situations were the impetus behind Congress’ enactment”
of an amendment to the Real Estate Settlement Procedures Act of 1974 (“RESPA”)); see also
Fulfillment Services, 528 F.3d at 619 (holding that plaintiff had standing because “we must infer
that [Congress] intended” to create a right “the infringement of which is sufficient to support
standing”). No such policy reasons support a departure from the standing requirements here. The
Supreme Court’s recent grant of a Writ of Certiorari in Edwards further draws into question the
soundness of Edwards and Fulfillment Services. The Court granted certiorari to review whether
plaintiffs alleging a statutory violation—but who, like Plaintiffs here, suffered no actual injury—
have standing. See First Am. Fin. Corp. v. Edwards, 131 S. Ct. 3022 (2011); Petition for a Writ
of Certiorari, First Am. Fin. v. Edwards, No. 10-708, 2010 WL 4876485, at *i (filed Nov. 23,
2010). Therefore, Edwards does not support Plaintiffs’ standing argument absent allegations
establishing an injury in fact.
5.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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browsing history or demographic data does not support a finding of economic loss”).) See also

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DoubleClick, 154 F. Supp. 2d at 525 (“[I]t appears to us that plaintiffs have failed to state any

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facts that could support a finding of economic loss . . . .”). The LaCourt decision then recognized

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that the holding in DoubleClick was relevant to whether the plaintiffs could allege Article III

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standing at all. See 2011 WL 1661532, at *5-6. The court explained that DoubleClick, “albeit

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not in the context of evaluating Article III standing,” “suggests that the question of Plaintiffs’

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ability to allege standing is a serious one” and therefore “[i]t would be very difficult to conclude

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at this point that Plaintiffs have met their burden of establishing” standing. Id. at *6. Plaintiffs

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offer nothing to distinguish the allegations in this case from those in LaCourt. (See Opp’n at 5.)

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Indeed, Judge Koh specifically relied on DoubleClick and LaCourt (among other

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authorities) in her opinion. See iPhone Application Litig., slip op. at 7. As in LaCourt, Judge

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Koh found that the plaintiffs had not articulated a “coherent and factually supported theory” of

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injury—the plaintiffs had alleged only general facts and “abstract concepts (e.g., lost opportunity

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costs, value-for-value exchanges)” but the plaintiffs “ha[d] not identified an actual injury to

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themselves sufficient for Article III standing.” Id. (noting that “[o]ther cases have held the same”

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(citing DoubleClick, 154 F. Supp. 2d at 525, and In re JetBlue Airways Corp., Privacy Litig., 379

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F. Supp. 299, 327 (E.D.N.Y 2005))).

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Finally, Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010), is clearly

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distinguishable from this case. The plaintiffs in Krottner were employees of Starbucks who

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claimed the company acted negligently when a laptop containing their names, addresses, and

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social security numbers was stolen.

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sufficiently alleged injury in fact because the theft of the personal information resulted in “real

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and immediate” risk of identity theft, mental anguish, and time and future costs to monitor

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financial accounts. Id. at 1143. But no such allegations have been made here nor have Plaintiffs

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made any allegations of actual or imminent injury to themselves.

Id. at 1140.

The court found that the plaintiffs had

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Plaintiffs have not alleged an actual or imminent, concrete or particularized injury

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resulting from Facebook’s alleged conduct, and therefore their claims should be dismissed under

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Rule 12(b)(1) for lack of standing.

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ATTORNEYS AT LAW
SAN FRANCISCO

6.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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B.

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As explained in Facebook’s opening brief, Plaintiffs have failed to allege facts sufficient

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to satisfy the elements of a claim for violation of the California Constitution’s right to privacy.

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(See Mot. at 11-15.)

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reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting

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a serious invasion of privacy.” See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 66 (1994).

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Plaintiffs’ Opposition fails to save their claim, and it should be dismissed with prejudice.

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Plaintiffs Fail to State a Claim Under the California Constitution.

1.

Those elements are: “(1) a legally protected privacy interest; (2) a

Plaintiffs Fail to Allege a Legally Protected Privacy Interest.

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Plaintiffs’ claim under the California Constitution’s right to privacy fails first because

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Plaintiffs have failed to allege a legally protected privacy interest. Plaintiffs assert that they have

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a legally protected “informational privacy” interest regarding their Internet browsing history.

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(Opp’n at 7.)3 However, Plaintiffs do not cite any authority to support their argument that

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individuals have a legally protected privacy interest in such browsing data. Instead, Plaintiffs ask

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the Court to find such an interest by analogy from cases finding that individuals have a privacy

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interest in the disclosure of criminal rap sheets and holding that individuals have a reasonable

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expectation of privacy in their precise geographic location over a substantial period of time. (See

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Opp’n 7-9.) But Plaintiffs do not allege that they have criminal records, let alone that Facebook

18

has sought to disclose such information regarding them.

19

assuming it gives rise to a privacy interest that implicates the California constitution, which it

20

does not—is very different from use of the Internet, which inherently requires the services of

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intermediaries to direct and respond to individuals’ browsing requests. See United States v.

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Forrester, 512 F.3d 500, 510 (9th Cir. 2008).4

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SAN FRANCISCO

And geographic location—even

Plaintiffs also assert in a footnote that Facebook has violated their “autonomy privacy” “because
tracking a person’s use of the Internet to browse websites . . . is a form of ‘observation, intrusion
or interference’ in her decisions regarding which websites to visit.” (Opp’n at 7 n.5.) Plaintiffs’
assertion cannot save their claim under the California Constitution. Nowhere in their Complaint
have Plaintiffs alleged that their behavior on the Internet has changed in any way because of their
allegations that Facebook has been tracking browsing data.
4

Even assuming Plaintiffs’ analogy to GPS tracking cases is applicable, controlling Ninth Circuit
precedent is contrary to the cases Plaintiffs cite. In United States v. Pineda-Moreno, 591 F.3d
1212 (9th Cir. 2010), the Ninth Circuit held that individuals do not have a reasonable expectation
7.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

Plaintiffs also have failed to show how individuals in their “non-members” subclass

2

(including Plaintiffs Cheng and Rosen) have a legally protected privacy interest in browsing data

3

that Plaintiffs admit is anonymous. (See Compl. ¶ 15(c).) As courts have long recognized,

4

anonymity helps protect individuals’ privacy and preserves their privacy interests. See London v.

5

New Albertson’s, Inc., No. 08-CV-1173 H(CAB), 2008 WL 4492642, at *8 (S.D. Cal. Sep. 30,

6

2008) (holding that plaintiff did not have a legally protected privacy interest in anonymous

7

medical information); see also Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 513 (1984)

8

(holding that privacy interests of jurors may be preserved by providing anonymized transcripts of

9

their testimony); Doe v. Penzato, No. CV10-5154 MEJ, 2011 WL 1833007, at *4 (N.D. Cal. May

10

13, 2011) (holding that victim of sexual battery’s privacy interests were protected by proceeding

11

anonymously).

12

members’ anonymous data with account information should they later join Facebook (see Compl.

13

of privacy under the Fourth Amendment in connection with government officials’ use of GPS
tracking devices. See id. at 1216-17. Pineda-Moreno involved almost identical facts to Maynard,
the case Plaintiffs chiefly rely on. Compare Pineda-Moreno, 591 F.3d at 1216 (DEA agents used
a GPS device to track defendant’s Jeep “continuously”) with Maynard, 615 F.3d at 555 (police
used a GPS device to track defendant’s Jeep “24 hours a day”). Although, as Plaintiffs note,
Pineda-Moreno did not specifically address the issue of short-term versus prolonged GPS
tracking (Opp’n at 9 n.9), the court found that the defendant did not have a reasonable expectation
of privacy from “agents’ use of mobile tracking devices continuously to monitor the location of
[defendant’s] Jeep.” 591 F.3d at 1216 (emphasis added). Curiously, and despite the case’s
similarity to Maynard, Plaintiffs also attempt to distinguish Pineda-Moreno from the facts alleged
here. First, Plaintiffs argue that, in contrast to travel by car, “Internet transmissions are not over
public thoroughfares (but rather invisible or through cables buried deep underground), and a
person’s Internet browsing is not open to public view.” (Opp’n at 9 n.9.) But, as explained
above, this fundamentally misunderstands the operation of the Internet, which is less anonymous
than driving, because it always relies on the intervention of other parties. Second, Plaintiffs argue
that Pineda-Moreno is distinguishable because the government had a “substantial countervailing
interest in the information collected” (to prosecute a crime) and Facebook does not have such an
interest in the information it collects. (See id.) Although Facebook certainly has an interest in
providing services to its members, it is unclear why such an interest would be relevant to whether
Plaintiffs have alleged a legally protected privacy interest in the first place.

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Although Plaintiffs allege that Facebook has the ability to associate non-

Plaintiffs cite United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) (addressing appeals by
co-defendants Antoine Jones and Lawrence Maynard) in support of their GPS data analogy. But
the Supreme Court has granted certiorari in that case to review the question: “Whether the
government violated respondent’s Fourth Amendment rights by installing the GPS tracking
device on his vehicle without a valid warrant and without his consent.” See United States v.
Jones, 131 S. Ct. 3064, 3064 (2011).
8.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

¶ 15(c)), Plaintiffs do not allege that Facebook has done so for any named Plaintiff or even any

2

unnamed putative class member.

3
4

Neither the Complaint nor the Opposition establishes that Plaintiffs had a legally protected
privacy interest, even assuming Plaintiffs’ factual allegations to be true.

5

2.

6
7

Plaintiffs Fail to Allege a Reasonable Expectation of Privacy.

Plaintiffs’ claim under the California Constitution’s right to privacy also fails because
they have failed to allege they had a reasonable expectation of privacy under the circumstances.

8

Plaintiffs respond, first, that Facebook’s Privacy Policy does not provide adequate notice

9

to individuals in their proposed “members” subclass (including Plaintiff Ung) that Facebook uses

10

cookies on websites that are part of the Facebook Platform. (Opp’n at 10-11.) That is false.

11

Facebook’s Privacy Policy, in a section titled “Cookie Information,” states that Facebook may use

12

cookies “to know [when members] are interacting with Facebook Platform applications and

13

websites . . . .”5 (See Declaration of Ana Yang Muller, filed with Facebook’s Motion, Ex. B

14

(“Privacy Policy”) § 2 (emphasis added).)

15

Second, Plaintiffs argue that even if individuals in the proposed “members” subclass were

16

given notice of Facebook’s use of cookies, “such notice was wholly ineffective and meaningless”

17

because they cannot be sure before they visit a website whether it is part of the Facebook

18

Platform.

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information to Facebook, therefore, would be to avoid using the Internet altogether . . . .” (Id.)

20

Plaintiffs’ assertion is as melodramatic as it is untrue. Among the many alternatives is one laid

21

out in the Complaint: Facebook users can terminate their account.

22

Plaintiffs can also use settings within their Internet browsers to block cookies, see LaCourt, 2011

23

WL 1661532, at *1 (discussing the use of browser settings to block HTTP cookies), a solution

24

which is referenced in Facebook’s Privacy Policy. (Privacy Policy § 2 (“You can remove or

25

block cookies using the settings in your browser . . . .”).)

(Opp’n at 11.)

Plaintiffs assert that their “only alternative to disclosing private

(See Compl. ¶ 15(b).)

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This provision is quoted in full in Facebook’s opening brief. (Mot. at 5 n.3, 13.)
9.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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Finally, Plaintiffs appear to concede that individuals in the proposed “non-Facebook

2

members” subclass do not have a reasonable expectation of privacy in anonymous browsing data.

3

(Opp’n at 11-12.) Plaintiffs assert, however, that Facebook may correlate that data “with the

4

user’s actual identity” if they later join Facebook, and that this correlation will violate the non-

5

Facebook members’ reasonable expectation that their search history “will remain” anonymous.

6

(Opp’n at 12.) Nowhere in the Complaint, however, do Plaintiffs allege that Facebook has

7

actually done this. Nor do Plaintiffs have standing to bring a claim alleging that (1) some

8

unknown Internet users might have visited sites integrated with the Facebook Platform, (2)

9

Facebook might have collected anonymous browsing history from those users, (3) some of these

10

users might decide in the future to register Facebook accounts, and (4) Facebook might associate

11

some anonymous data with a particular user. Such allegations of injury are “conjectural” and

12

“hypothetical,” not “actual” or “imminent.” See Whitmore, 495 U.S. at 155 (citations omitted).

13

(See supra § II.A.)6 And, in any event, Plaintiffs’ assertion is flatly inconsistent with their

14

allegation that the proposed non-Facebook member subclass includes “individuals who

15

consciously choose not to participate in Facebook.” (Compl. ¶ 15(c).)

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Plaintiffs misrepresent United States v. Forrester, 512 F.3d 500 (9th Cir. 2008), which
Facebook cited to note that, in the Fourth Amendment context, the Ninth Circuit has held that
individuals do not have a reasonable expectation of privacy in anonymous browsing data that is
routinely routed through multiple third-party servers. (Mot. at 14 n.6). Plaintiffs claim that
Forrester is “not at all similar” to this case, asserting that Forrester involved only “the disclosure
of email addresses.” (Opp’n at 11 n.12.) But Forrester also involved tracking of the “IP
addresses of the websites that [the defendant] visited,” Forrester, 512 F.3d at 505, which is a type
of browsing data (a website typically has one unique IP address). In the context of a criminal
defendant’s argument that the government’s surveillance of his computer usage was an
unreasonable search in violation of the Fourth Amendment, the Forrester court held that “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.” Id. at 510. Contrary to Plaintiffs’ representation, the court in Forrester did not
“recognize[] that a plaintiff has a reasonable expectation to privacy in the content of web
searches” (Opp’n at 11 n.12)— the court, in fact, never reached that issue. The decision merely
noted in dicta relegated to a footnote that “[s]urveillance techniques that enable the government to
determine not only the IP addresses that a person accesses but also the uniform resource locators
(‘URL’) of the pages visited might be more constitutionally problematic” under the Fourth
Amendment. Forrester, 512 F.3d at 510 n.6 (emphases added).
10.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

3.

Plaintiffs Fail to Allege a Serious Invasion of a Privacy Interest.

2

As explained in Facebook’s opening brief (Mot. at 14-15), Plaintiffs have failed to allege

3

an invasion of a privacy interest “sufficiently serious in [its] nature, scope, and actual or potential

4

impact to constitute an egregious breach of the social norms underlying the privacy right.” Hill, 7

5

Cal. 4th at 37. Plaintiffs have not alleged that they were harmed emotionally or economically by

6

Facebook’s alleged activities. And, inasmuch as Plaintiffs allege that their browsing history was

7

collected for advertising purposes, such collection of information, if any, is “routine commercial

8

behavior” that does not rise to the level of egregiousness required under the California

9

Constitution. See Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986, 992 (2011) (holding

10

that collection of zip code in order to serve targeted ads “is not an egregious breach of social

11

norms, but routine commercial behavior”). Plaintiffs allege no other use of the supposedly

12

private information that Facebook allegedly collected.

13

Plaintiffs argue that Facebook’s alleged use of cookies is a “new technology the impact of

14

which is untested.” (Opp’n at 12.) But, as explained in Facebook’s opening brief, collecting and

15

using browsing data to provide services—here, in the context of a social networking site that

16

enables the sharing of content on the Facebook platform and across third-party sites—is not only

17

longstanding, it is well accepted and courts have repeatedly rejected attempts to impose liability

18

on such companies. (See Mot. at 11, 14-15.) Plaintiffs then argue that Facebook’s alleged

19

collection of browsing data chills Plaintiffs’ freedom of association and their “membership in, or

20

an interest in, dissident groups.” (Opp’n at 12-13.) But Plaintiffs have made no allegation that

21

they themselves have had their interests in dissident groups repressed. See Whitmore, 495 U.S. at

22

155 (noting that, in order to constitute injury in fact, an alleged harm must not be “hypothetical”

23

or “conjectural”). Nor have they alleged in any way that Facebook has disclosed browsing data

24

that could have a chilling effect on Plaintiffs’ freedom to associate. See Iqbal, 129 S. Ct. at 1950

25

(the court must be able “to infer more than the mere possibility of misconduct”).

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C.

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Plaintiffs also fail to show in their Opposition why their claim for “unjust enrichment”

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should not be dismissed with prejudice. As discussed in Facebook’s opening brief, there is no

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs’ Claim for Unjust Enrichment Should Be Dismissed.

11.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

such independent cause of action under California law. (Mot. at 15-16 (citing authorities).)

2

Accord iPhone Application Litig., slip op. at 20-21 (“As this Court has previously determined,

3

there is no cause of action for unjust enrichment under California law. . . . Plaintiffs concede that

4

unjust enrichment is merely an equitable remedy . . . .” (internal quotation marks and citations

5

omitted)). Plaintiffs apparently concede as much, instead urging that the Court should reinterpret

6

their claim as one giving rise to restitution in equity: “when money or property identified as

7

belonging in good conscience to the plaintiff could clearly be traced to particular funds or

8

property in the defendant’s possession, giving rise to restitution in equity, ordinarily in the form

9

of a constructive trust or an equitable lien.” (Opp’n at 13-14.) But Plaintiffs’ reconstituted claim

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for restitution fails for two reasons discussed below.
1.

Plaintiffs Do Not Allege That They Paid Any Money to Facebook or
That They Have Any Property Interest in Information about Them.

13

First, Plaintiffs have not shown that Facebook possesses “money or property identified as

14

belonging in good conscience” to them. Conceding that they have not paid or otherwise tendered

15

money to Facebook, Plaintiffs argue that information gathered about their Internet use is property

16

that belongs to them, and that they have a right to restitution of any such information in

17

Facebook’s possession or of any money arising from Facebook’s sale of such information. (Id. at

18

14.) But Plaintiffs do not cite any precedent for the proposition that individuals have a property

19

interest in information about them that is harmed when that information is gathered or sold by

20

others. Indeed, court after court has found that there is no such property interest. See, e.g.,

21

iPhone Application Litig., slip op. at 15-16, 19-20 (holding that personal information does not

22

constitute property for purposes of the federal Computer Fraud and Abuse Act and California’s

23

Unfair Competition Law); In re Facebook Privacy Litig., No. C 10-02389 JW, --- F. Supp. 2d ---,

24

2011 WL 2039995, at *8 (N.D. Cal. May 12, 2011) (holding that “[p]laintiffs’ contention that

25

their personal information constitutes a form of ‘payment’ to Defendant is unsupported by law,”

26

and dismissing claims under the Consumer Legal Remedies Act); id. at *6-7 (dismissing claim

27

under California’s Unfair Competition Law because “personal information does not constitute

28

property for purposes of a UCL claim”); Thompson v. Home Depot, Inc., No. 07cv1058 IEG

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

12.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

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(WMc), 2007 WL 2746603, at *3 (S.D. Cal. Sept. 18, 2007) (denying claim under California’s

2

Unfair Competition Law because, while plaintiff provided personal information to defendant, he

3

did not lose “any money or property”); Ruiz v. Gap, Inc., 540 F. Supp. 2d 1121, 1126-27 (N.D.

4

Cal. 2008) (Conti, J.) (personal information does not constitute property); DoubleClick, 154 F.

5

Supp. 2d at 525 (“[W]e are unaware of any court that has held the value of this collected

6

information constitutes damage to consumers or unjust enrichment to collectors.”). Plaintiffs’

7

failure to cite any such precedent is fatal to their claims. See Facebook Privacy Litig., 2011 WL

8

2039995, at *7 n.10 (noting the court was “constrained” to find that loss of personal information

9

did not constitute a loss of property where plaintiffs offered no authority in support of that

10

proposition); Ruiz, 540 F. Supp. 2d at 1127 (same).7

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Plaintiffs’ attempt to distinguish Facebook Privacy Litigation fails for the same reason:

12

Plaintiffs do not allege any actual property interest. Plaintiffs argue that Facebook Privacy

13

Litigation is distinguishable on the ground that Plaintiffs here “have alleged that Defendant’s

14

conduct caused Plaintiffs to lose money,” whereas the plaintiffs in Facebook Privacy Litigation

15

did not. (Opp’n at 14 (emphasis in original).) Plaintiffs cite this language from the Complaint to

16

support their argument: “Facebook has received and retained money belonging to Plaintiffs and

17

the Class . . . .” (Id. (quoting Compl. ¶ 35) (emphasis added in Opp’n).) But the relevant

18

complaint in Facebook Privacy Litigation contains the exact same language. (See Consol. Class

19

Action Compl., In re Facebook Privacy Litigation, Case No. 10-cv-02389-JW (N.D. Cal.), Dkt.

20

No. 36, ¶ 117 (“Facebook has received and retained money belonging to Plaintiffs and the Class .

21

. . .”).) The court in Facebook Privacy Litigation did not dismiss the claims because the plaintiffs

22

there failed to allege lost money or property, but because information gathered about the plaintiffs

23

“does not constitute property.” 2011 WL 2039995, at *6. Plaintiffs have similarly failed to show

24

a property interest in information gathered about them.

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ATTORNEYS AT LAW
SAN FRANCISCO

The Facebook Privacy Litigation plaintiffs also alleged a claim for unjust enrichment, which
Chief Judge Ware dismissed because a plaintiff may not “assert an unjust enrichment claim while
also alleging an express contract.” 2011 WL 2039995, at *9.
13.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

Plaintiffs also argue that they “have provided several sources of scholarly and

2

governmental research discussing the economic value of Plaintiffs’ personal information,” and

3

therefore “Plaintiffs have sufficiently alleged that their personal information is a valuable

4

commodity.” (Opp’n at 15.) But similar allegations were made in the complaint in In re iPhone

5

Application Litigation, where the plaintiffs alleged that “[c]onsumers routinely engage in online

6

economic exchanges with the websites they visit by exchanging their personal information for the

7

websites’ content and services” that are “value-for-value exchanges” and that the “scarcity of

8

consumer information increases its value.” See First Consolidated Class Action Complaint,

9

iPhone Application Litigation, No. 10-cv-05878-LHK, ¶¶ 85-94 (N.D. Cal. filed Apr. 21, 2011).

10

As Judge Koh explained in dismissing the iPhone Application Litigation plaintiffs’ claims

11

(including a claim for unjust enrichment) for lack of standing, allegations of “abstract concepts

12

(e.g., lost opportunity costs, value-for-value exchanges)” are insufficient where “Plaintiffs have

13

not identified an actual injury to themselves.” See No. 11-md-02250-LHK, slip op. at 7. Because

14

Plaintiffs do not have a relevant property interest in data about their browsing history, they have

15

not suffered any cognizable detriment. See Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350,

16

1370 (2010) (“An individual is required to make restitution if he or she is unjustly enriched at the

17

expense of another.” (emphasis added) (citations omitted)).

18

2.

Plaintiffs Do Not Allege Facebook Benefited Through Wrongdoing.

19

Even if Plaintiffs did have a property interest in data regarding their browsing history

20

(which they do not), Plaintiffs have failed to allege that Facebook acquired that data through any

21

wrongdoing that would provide grounds for a right of restitution. As explained in Facebook’s

22

opening brief, to bring a claim providing a restitutionary remedy on a theory of unjust

23

enrichment, Plaintiffs must show the alleged “benefits were conferred by mistake, fraud,

24

coercion, or request; otherwise, though there is enrichment, it is not unjust.” In re Actimmune

25

Mktg. Litig., No. C 08-02376 MHP, 2009 WL 3740648, at *16 (N.D. Cal. Nov. 6, 2009) (internal

26

quotation marks and citations omitted) (emphasis added); see also Cal. Civ. Code § 2224 (“One

27

who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other

28

wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

14.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG

1

the thing gained, for the benefit of the person who would otherwise have had it.” (emphasis

2

added)); Kenneally v. Bank of Nova Scotia, 711 F. Supp. 2d 1174, 1192-93 (S.D. Cal. 2010)

3

(dismissing claim for “unjust enrichment, constructive trust and equitable lien” where plaintiffs

4

failed to plead “fraud, breach of fiduciary duty, or other act that entitles the plaintiff to some

5

relief”). Plaintiffs have not alleged any such facts.8

6

Plaintiffs’ arguments regarding Facebook’s alleged “unjust” conduct therefore miss the

7

point. Plaintiffs allege that the benefit they conferred on Facebook was “Plaintiffs’ personal

8

information that Defendant collected and stored.” (Opp’n at 14.) But Plaintiffs argue that

9

Facebook’s “conduct was unjust” because “[i]t is patently unjust to use very private and sensitive

10

information of consumers to make profits without the consumers’ knowledge that this private

11

information is being disseminated to complete strangers . . . .” (Opp’n at 15.) Despite the case

12

law’s clear focus on how the benefit was received, Plaintiffs argue instead that they are entitled to

13

restitution because of Facebook’s alleged use of Plaintiffs’ browsing data after it was received.

14

This is wrong on the law and Plaintiffs fail to salvage their claim for unjust enrichment.

15

For these reasons, Plaintiffs’ “unjust enrichment” claim should be dismissed. Because

16

Plaintiffs will not be able to allege a property interest in data about them, amendment would be

17

futile, and the claim should be dismissed with prejudice.

18

III.

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CONCLUSION
Plaintiffs’ Class Action Complaint should be dismissed with prejudice.

Dated: September 28, 2011

21

COOLEY LLP
/s/ Matthew D. Brown
___________________________________

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Matthew D. Brown (196972)

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Attorneys for Defendant FACEBOOK, INC.

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ATTORNEYS AT LAW
SAN FRANCISCO

8

The chief case Plaintiffs cite to support their unjust enrichment allegations is no different: the
plaintiff in Monet v. Chase Home Finance successfully pled grounds for unjust enrichment
meriting a constructive trust because he pled that the defendant Chase acquired funds from him
when it violated a duty to credit those funds to his mortgage account. No. C 10-0135 RS, 2010
WL 2486376, at *4 (N.D. Cal. June 16, 2010) (Seeborg, J.).
15.

FACEBOOK, INC.’S REPLY BR. I/S/O
MOTION TO DISMISS CLASS ACTION COMPL.
CASE NO. 11-CV-02829-JSW-PSG