E.K.D. et al v. Facebook, Inc.

Filing 60

AFFIDAVIT re 57 MOTION to Transfer Case (Declaration of Matthew D. Brown in Support of Motion to Transfer) by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Brown, Matthew)

EXHIBIT E

Case 3:11-cv-00461-GPM -SCW Document 33

Filed 10/06/11 Page 1 of 2 Page ID #285

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
E.K.D., et al., individually and on behalf
of all others similarly situated,
Plaintiffs,
vs.
FACEBOOK, INC.,
Defendant.

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Cause No: 3:11-cv-00461-GPM-SCW

CLASS ACTION

NOTICE OF RULING BY
THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
TO THE CLERK OF THE COURT AND ALL PARTIES OF RECORD
Please take notice that earlier today the Judicial Panel for Multidistrict Litigation issued its
order denying Facebook’s Motion for Transfer of Related Actions to the Northern District of
California Pursuant to 28 U.S.C. § 1407 in In re: Facebook Use of Name and Likeness
Litigation, MDL No. 2288. (Order, Doc. 33-1). Plaintiffs respectfully suggest that the Panel’s
ruling renders moot Facebook’s Motion to Stay Proceedings Pending Ruling by MDL Panel on
Motion to Transfer. (Mot., Doc. 27).
Dated: October 6, 2011

Respectfully submitted,
KOREIN TILLERY
/s Aaron M. Zigler
Aaron M. Zigler
One U.S. Bank Plaza
505 N. 7th Street, Suite 3600
St. Louis, Missouri 63101-1625
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Attorneys for Plaintiffs
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Case 3:11-cv-00461-GPM -SCW Document 33

Filed 10/06/11 Page 2 of 2 Page ID #286

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
E.K.D., et al., individually and on
behalf of all others similarly situated,
Plaintiffs,
vs.
FACEBOOK, INC.,
Defendant.

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Cause No: 3:11-cv-00461-GPM-SCW

CLASS ACTION

CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2011, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system that will send notification of such filing to
the following:
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Matthew D. Brown
Jeffrey M. Gutkin
Michael C. Hermann
Michael G. Rhodes
Charles J. Swartwout
Steven A. Katz
KOREIN TILLERY
/s Aaron M. Zigler
One U.S. Bank Plaza
505 N. 7th Street, Suite 3600
St. Louis, Missouri 63101-1625
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]

2

Case 3:11-cv-00461-GPM No. 2288 Document 27 Filed 10/06/11 Page 1 of 3 Page ID #287
Case MDL -SCW Document 33-1 Filed 10/06/11 Page 1 of 3

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: FACEBOOK USE OF NAME
AND LIKENESS LITIGATION

MDL No. 2288

ORDER DENYING TRANSFER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, defendant Facebook, Inc. (Facebook)
moves to centralize this litigation comprised of three actions1 pending in two districts, as listed on
Schedule A, in the Northern District of California. Plaintiffs in all three actions oppose
centralization.
On the basis of the papers filed and hearing session held, we are not persuaded that
centralization of these three actions would serve the convenience of the parties and witnesses or
further the just and efficient conduct of this litigation. These actions involve some similar
allegations concerning the use of plaintiffs’ names or likenesses in what plaintiffs characterize as
advertisements on Facebook.com. Despite this general factual overlap among the actions, the
proponent of centralization has not convinced us that any shared factual questions are sufficiently
complex or numerous to justify centralization.
The various plaintiffs have persuaded us that individual factual issues contained in these
actions are likely to predominate over any alleged common fact questions. For instance, the two
Northern District of California actions focus on different aspects of Facebook’s alleged advertising
– the “Sponsored Stories” and “Friend Finder” services. In contrast, the third action, pending in the
Southern District of Illinois, focuses broadly on advertising that uses the images of minors. While
discovery in the three actions may involve some background general facts concerning Facebook’s
advertising practices and terms of use, centralization does not appear necessary, given the limited
overlap among the three putative classes. With the few demonstrable efficiencies gained by
centralizing these somewhat different actions, we consider voluntary coordination among the parties
and the involved courts to be a preferable alternative to centralization.
Though we are denying centralization, we nevertheless encourage the parties to pursue
various alternative approaches, should the need arise, to minimize the potential for duplicative
*

1

Judge W. Royal Furgeson, Jr., did not participate in the decision of this matter.

Plaintiffs’ motion originally included five actions, but two of those actions were dismissed
during the pendency of the Section 1407 motion.

Case 3:11-cv-00461-GPM No. 2288 Document 27 Filed 10/06/11 Page 2 of 3 Page ID #288
Case MDL -SCW Document 33-1 Filed 10/06/11 Page 2 of 3

- 2discovery and inconsistent pretrial rulings. See, e.g., In re Eli Lilly and Co. (Cephalexin
Monohydrate) Pat. Litig., 446 F.Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex
Litig., Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of the actions listed on Schedule A is denied.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Barbara S. Jones
Marjorie O. Rendell

Frank C. Damrell, Jr.
Paul J. Barbadoro

Case 3:11-cv-00461-GPM No. 2288 Document 27 Filed 10/06/11 Page 3 of 3 Page ID #289
Case MDL -SCW Document 33-1 Filed 10/06/11 Page 3 of 3

IN RE: FACEBOOK USE OF NAME
AND LIKENESS LITIGATION

MDL No. 2288

SCHEDULE A

Northern District of California
Robyn Cohen, et al. v. Facebook, Inc., C.A. No. 3:10-05282
Angel Fraley, et al. v. Facebook, Inc., C.A. No. 5:11-01726
Southern District of Illinois
E.K.D., et al. v. Facebook, Inc., C.A. No. 3:11-00461