Brkic v. Facebook, Inc

Filing 11

NOTICE OF FILING OF DEFENDANT FACEBOOK, INC.S STIPULATED ADMINISTRATIVE MOTION (CIV. L.R. 3-12) IN DAVIS V. FACEBOOK, INC., CASE NO. 11-CV-04834 (N.D. CAL.) by Facebook, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4)(Brown, Matthew) (Filed on 10/31/2011) Modified on 11/3/2011 (bw, COURT STAFF).

EXHIBIT A TO:
NOTICE OF FILING OF DEFENDANT FACEBOOK, INC.’S STIPULATED
ADMINISTRATIVE MOTION (CIV. L.R. 3-12) IN DAVIS v. FACEBOOK, INC.,
CASE NO. 11-CV-04834 (N.D. CAL.)

Case5:11-cv-04834-EJD Document17

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
JEFFREY M. GUTKIN (216083)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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Filed10/28/11 Page1 of 6

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 JOSE DIVISION

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PERRIN AIKENS DAVIS, PETERSEN
GROSS, DR. BRIAN K. LENTZ,
TOMMASINA IANNUZZI, TRACY
SAURO, JENNIFER SAURO, and LISA
SABATO, individually and on behalf of all
others similarly situated,
Plaintiffs,

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Case No. 11-CV-04834-EJD-PSG
DEFENDANT FACEBOOK, INC.’S
STIPULATED ADMINISTRATIVE MOTION
TO CONSIDER WHETHER CASES SHOULD
BE RELATED (CIV. L.R. 3-12)
ACTION FILED: September 30, 2011

v.
FACEBOOK, INC.,
a Delaware Corporation
Defendant.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG

Case5:11-cv-04834-EJD Document17

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Filed10/28/11 Page2 of 6

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that, pursuant to Civil Local Rule 3-12, Defendant Facebook,

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Inc. (“Facebook”), by and through counsel, hereby submits this administrative motion seeking an

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order relating the action captioned Brkic v. Facebook, Inc., No. 11-cv-04935, (“Brkic”) to the

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action captioned Davis v. Facebook, Inc., No. 11-cv-04834 (“Davis”).1 The Brkic action involves

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substantially the same parties, events, and issues of law and fact as the Davis action. If the

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actions are not related, it is likely that there will be unduly burdensome duplication of efforts and

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expense and/or conflicting pretrial rulings. Moreover, relation of the actions is supported by the

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plaintiffs themselves, who have each stipulated to this administrative motion to relate.

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Facebook’s motion is based on this Motion and Memorandum of Points and Authorities

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and the Declaration of Matthew D. Brown (“Brown Declaration”) and Stipulation filed herewith.2

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

FACTUAL BACKGROUND

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Facebook is a social networking website that enables people to connect and share with

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their friends, families, and communities. Facebook is free. To join, Facebook users (“Users”)

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need only provide their name, age, gender, and a valid e-mail address, and agree to Facebook’s

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terms of service. Once Users register, they create a profile page and may begin connecting with

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other Users by inviting them to become Facebook “Friends.” Users can share virtually anything

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through Facebook—vacation photos, news about their everyday lives, links to websites or articles

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they think are interesting, or opinions about world events.

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Facebook offers Users an array of options for sharing content and communicating with

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each other both on Facebook and third-party websites. Options include the Facebook “Like”

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Civil Local Rule 3-12(f) states that “the Judge in this District who is assigned to the earliestfiled case will decide if the cases are or are not related.” Davis is the earliest-filed case. In
accordance with Civil Local Rule 3-12(b), all parties in both cases are being served with this
motion, and chambers copies are being lodged in both cases.
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

For the Court’s convenience, the operative complaints are attached as exhibits to the Brown
Declaration. The Complaint in Davis is attached as Exhibit A (“Ex. A”) and the Complaint in
Brkic is attached as Exhibit B (“Ex. B”).
1.

FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG

Case5:11-cv-04834-EJD Document17

Filed10/28/11 Page3 of 6

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button, which allows Users to click a button associated with some particular content that will

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result in the User’s “Like” statement potentially being displayed to Facebook Friends who visit

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the third-party website, as well as on the User’s profile page on Facebook. Users may choose to

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share content on a third-party website to communicate to their Facebook Friends that they like an

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article on a newspaper’s website, a product on a retailer’s website, a song or video on a media

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website, an entry on a blog, and so on. Plaintiffs concede that, while they are logged in to

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Facebook, they have consented to Facebook collecting data in order to provide these services.

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The main allegation in both the Davis and Brkic complaints is that Facebook collected

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data regarding Users’ Internet activity without their consent while Users were logged out of their

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Facebook accounts. The actions involve substantially the same parties, factual allegations, issues

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of law, defenses, and demands for relief, and it is likely that discovery and motion practice will

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overlap such that the parties’ and the Court’s resources will be conserved by relating the actions.

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The first-filed, Davis action, was filed on October 30, 2011 on behalf of a putative global

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class of “all persons who had active Facebook accounts and used Facebook between May 27,

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2010 and September 26, 2011, both dates inclusive, and whose privacy was violated by

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Facebook.” (Ex. A ¶ 31.) The Davis complaint alleges that, for a period ending September 26,

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2011, Facebook collected data regarding Users’ Internet activity without their consent while

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Users were logged out of their Facebook accounts. (Id. ¶¶ 3, 20-30.) The Davis plaintiffs assert

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claims for violations of the federal Wiretap Act, 18 U.S.C. § 2511; the Stored Electronic

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Communications Act, 18 U.S.C. § 2701; and the Computer Fraud and Abuse Act, 18 U.S.C. §

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1030. (Id. ¶¶ 37-56.) The complaint seeks compensatory and statutory damages, injunctive

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relief, attorneys’ fees, and costs. (Id. Prayer for Relief.)

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The Brkic action was filed on October 5, 2011 on behalf of a putative nationwide class of

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“[a]ll individuals in the United States who subscribe to Facebook and whose electronic internet

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information was intercepted by Facebook when the individuals were not logged-in to Facebook.”

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(Ex. B ¶ 16.) The Brkic Action was brought on behalf of a single Facebook User against

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Facebook and ten unnamed “directors, employees, agents, or contractors of Facebook.” (Id. ¶ 6.)

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Brkic alleges that, for a period ending September 23, 2011, Facebook collected data regarding

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG

Case5:11-cv-04834-EJD Document17

Filed10/28/11 Page4 of 6

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Users’ Internet activity without their consent while Users were logged out of their Facebook

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accounts. (Id. ¶¶ 12-15.) The Brkic complaint asserts claims for violations of the Wiretap Act

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and for unjust enrichment, intrusion upon seclusion, and trespass to personal property. (Id. ¶¶ 24-

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45.) The complaint seeks actual and statutory damages, injunctive relief, attorneys’ fees, and

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costs. (Id. Prayer for Relief.)

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On October 17, 2011, the Davis plaintiffs moved the Judicial Panel on Multidistrict

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Litigation to transfer the Brkic and Davis actions to a single judge in this District for coordinated

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or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. (Brown Decl. ¶ 4; Ex. C.) In

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the same motion, the Davis plaintiffs also moved to transfer to this District nine other related

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actions pending in other federal district courts. (Id.)

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II.

ARGUMENT

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Under Civil Local Rule 3-12, actions are related when: “(1) [t]he actions concern

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substantially the same parties, property, transaction or event; and (2) [i]t appears likely that there

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will be an unduly burdensome duplication of labor and expense or conflicting results if the cases

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are conducted before different Judges.” Brkic is related to Davis, and Brkic should be transferred

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to the judge presiding over Davis, the Honorable Edward J. Davila

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A.

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The Brkic action alleges facts and claims substantially identical to those in the
Davis action.

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The allegations in Brkic mirror those in Davis in numerous regards. First, Facebook is the

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only named defendant in the two actions. (See Exs. A, B.) The unnamed defendants in Brkic are

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clearly related to Facebook, being the “directors, employees, agents, or contractors of Facebook.”

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(Ex. B. ¶ 6.)

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Second, the allegations in Davis and Brkic arise from the same transaction or event. The

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main allegation of both complaints is that Facebook collected data regarding Users’ Internet

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activity without their consent while those Users were logged out of Facebook. (Compare Ex. A

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¶¶ 3, 20-30 (alleging that Facebook “installed cookies on users’ computers that track the internet

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activity of users even when they have logged off of Facebook” (emphasis in original)), with Ex. B

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG

Case5:11-cv-04834-EJD Document17

Filed10/28/11 Page5 of 6

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¶¶ 12-15 (“Facebook tracked, collected and stored its users’ wire or electronic communications,

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including but not limited to portions of their Internet browsing history even when the users were

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not logged-in to Facebook.”).)

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Third, the plaintiffs in both cases each bring claims under the Wiretap Act and seek

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damages under that statute, as well as claims for injunctive relief, attorneys’ fees, and costs.

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(Compare Ex. A ¶¶ 37-45, Prayer for Relief, with Ex. B ¶¶ 24-33, Prayer for Relief.)

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Fourth, Facebook will bring similar defenses in the two actions, such as that plaintiffs

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have suffered no cognizable injury and that plaintiffs’ causes of action, including under the

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Wiretap Act, fail to state a claim upon which relief may be granted.

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Fifth, the putative class in Davis substantially overlaps with the Brkic putative class. (See

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supra Part I.) The plaintiff in Brkic, who challenges Facebook’s conduct through September 23,

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2011, seeks to represent “[a]ll individuals in the United States who subscribe to Facebook and

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whose electronic internet information was intercepted by Facebook when the individuals were not

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logged-in to Facebook.” The putative class sought in Davis—“all persons who had active

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Facebook accounts and used Facebook between May 27, 2010 and September 26, 2011, both

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dates inclusive, and whose privacy was violated by Facebook”—appears to be almost entirely

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coextensive with (or to subsume) the Burkic class.

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Finally, the plaintiffs in Davis and Brkic have stipulated to the relation of the two cases.

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(See Stipulation, filed herewith.) Moreover, as referenced, the Davis plaintiffs have filed a

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motion before the Judicial Panel on Multidistrict Litigation to transfer the Davis and Brkic

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actions, along with nine other actions pending outside the Northern District of California, to a

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single judge in this District for coordinated or consolidated pretrial proceedings pursuant to 28

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U.S.C. § 1407. (Brown Decl. ¶ 7; Ex. C.)

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B.

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Given the substantial degree of factual and legal overlap between Davis and Brkic,

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relating the actions will promote the interests of judicial economy and fairness by preventing

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duplicative discovery. Not relating the two actions also would waste judicial resources and

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introduce a substantial risk of inconsistent rulings on legal issues—e.g., whether the plaintiffs

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Relation will avoid wasteful duplication of efforts and conflicting results.

4.

FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG

Case5:11-cv-04834-EJD Document17

Filed10/28/11 Page6 of 6

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consented to the conduct they now challenge, whether the plaintiffs have any cognizable injury,

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etc.—if pretrial motions were heard separately, by two different judges.

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possibility of inconsistent class determinations clearly exists here because the Davis action seeks

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certification of a global class of Users that substantially overlaps the putative classes in the Brkic

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action. See In re Facebook Privacy Litig., No. C 10-02389-JW, 2010 WL 5387616, at *1

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(relating actions with “overlapping classes”); see also In re Sugar Indus. Antitrust Litig., 395 F.

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Supp. 1271, 1273 (J.P.M.L. 1975) (holding that transfer for pretrial coordination or consolidation

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pursuant to 28 U.S.C. § 1407 “is appropriate, if not necessary, where the possibility of

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inconsistent class determinations exists”).

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III.

Additionally, the

CONCLUSION

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For these reasons, the Brkic action should be related to the Davis action, and the Brkic

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action should be transferred to the judge presiding over the Davis action, the Honorable Edward J.

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Davila.

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Dated: October 28, 2011

COOLEY LLP

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/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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2566574/ST

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEBOOK’S ADMIN. MOTION TO CONSIDER
WHETHER CASES SHOULD BE RELATED
CASE NO. 11-CV-04834-EJD-PSG