In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 109

REPLY (re #101 MOTION to Dismiss Defendant Facebook, Inc.s Motion to Dismiss Plaintiffs Second Amended Consolidated Class Action Complaint (Fed. R. Civ. P. 12(b)(1) & 12(b)(6)) ) filed byFacebook Inc.. (Brown, Matthew) (Filed on 3/10/2016)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
ADAM C. TRIGG (261498)
([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 JOSE DIVISION
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In re: Facebook Internet Tracking Litigation

Case No. 5:12-md-02314 EJD

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DEFENDANT FACEBOOK, INC.’S REPLY IN
SUPPORT OF MOTION TO DISMISS
PLAINTIFFS’ SECOND AMENDED
CONSOLIDATED CLASS ACTION
COMPLAINT (FED. R. CIV. P. 12(b)(1) &
12(b)(6))

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Date:
Time:
Courtroom:
Judge:
Trial Date:

April 28, 2016
9:00 a.m.
4
Hon. Edward J. Davila
None Set

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION .............................................................................................................. 1

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II.

ARGUMENT ...................................................................................................................... 2

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A.

Plaintiffs Lack Article III Standing As to All Claims ............................................. 2
1.

Plaintiffs Fail to Point to Any Allegations Establishing Injury in
Fact .............................................................................................................. 2

2.

The Ninth Circuit Has Explicitly Rejected Plaintiffs’ Theory that
Pleading a State Law Claim Establishes Article III Standing ..................... 3

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B.

Plaintiffs Fail to State a Claim under the Wiretap Act (Count I) ............................ 5

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1.

Plaintiffs Identify No Intercepted “Contents” of a Communication ........... 5

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2.

Plaintiffs’ Own Allegations Show That There Was No
“Interception” .............................................................................................. 6

3.

Plaintiffs Fail to Identify Any “Device” ..................................................... 7

4.

Facebook Was a Party to the Alleged Communication and Had
Consent to Receive the URL Referers ........................................................ 8

5.

Facebook Is Exempt from the Wiretap Act as an Electronic
Communication Service Provider in the Ordinary Course of
Business ...................................................................................................... 9

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C.

Plaintiffs Fail to State a Claim Under Penal Code §§ 631 and 632 (Count
III) ......................................................................................................................... 10

D.

Plaintiffs Fail to State a Claim under the SCA (Count II) .................................... 12

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1.

Plaintiffs Fail to Allege Facebook Accessed Information While in
“Electronic Storage” ................................................................................. 12

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2.

Plaintiffs Fail to Establish that Facebook Accessed a “Facility” .............. 13

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E.

Plaintiffs Fail to State a Claim for Fraud (Count VIII) ......................................... 15

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1.

Plaintiffs Fail to Allege With the Specificity Required by Rule 9(b)
Any False Statements upon Which Plaintiffs Relied ................................ 15

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2.

Plaintiffs Fail to Plead that Facebook Intended to Induce Reliance
on the Alleged False Statements ............................................................... 16

3.

Plaintiffs Fail to Plead Constructive Fraud ............................................... 17

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F.

Plaintiffs Fail to State a Claim Under Penal Code § 502 (Count X)..................... 18

G.

Plaintiffs Fail to State a Claim for Trespass to Chattels (Count IX) ..................... 19

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H.

Plaintiffs Fail to State a Claim for Invasion of Privacy (Count IV)..................... 20

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I.

Plaintiffs Fail to State a Claim for Intrusion upon Seclusion (Count V) .............. 22

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J.

Plaintiffs Fail to State a Claim for Breach of Contract (Count VI) ...................... 23

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF CONTENTS
(continued)

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Page

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K.

Plaintiffs Fail to State a Claim for Breach of Implied Covenant (Count VII) ...... 24

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L.

Plaintiffs Fail to State a Claim for Larceny (Count XI) ........................................ 25

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III.

CONCLUSION ................................................................................................................. 25

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES

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Page(s)

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Cases

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Alarcon v. Murphy,
201 Cal. App. 3d 1 (1988).........................................................................................................21

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In re Anthem Data Breach Litig.,
2016 U.S. Dist. LEXIS 18135 (N.D. Cal. Feb. 14, 2016)...........................................................5
Anthony v. Yahoo!, Inc.,
421 F. Supp. 2d 1257 (N.D. Cal. 2006) ....................................................................................15
In re Application for Telephone Info.,
2015 WL 4594558 (N.D. Cal. July 29, 2015) ...........................................................................22
Arduini v. Hart,
774 F.3d 622 (9th Cir. 2014).....................................................................................................21
Begay v. Kerr-McGee Corp.,
682 F.2d 1311 (9th Cir. 1982).....................................................................................................4
Bunnell v. Motion Picture Ass’n of Am.,
567 F. Supp. 2d 1148 (C.D. Cal. 2007) ..................................................................................6, 7
Cantrell v. City of Long Beach,
241 F.3d 674 (9th Cir. 2001)...................................................................................................3, 5
In re Capacitors Antitrust Litig.,
2015 U.S. Dist. LEXIS 173404 (N.D. Cal. Dec. 30, 2015) ....................................................4, 5
In re Carrier IQ, Inc., Consumer Privacy Litig.,
78 F. Supp. 3d 1051 (N.D. Cal. 2015) ....................................................................................5, 8

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Chan v. Drexel Burnham Lambert, Inc.,
178 Cal. App. 3d 632 (1986).....................................................................................................24
Chance v. Ave. A, Inc.,
165 F. Supp. 2d 1153 (W.D. Wash. 2001) ............................................................................9, 14
In re Clorox Consumer Litig.,
894 F. Supp. 2d 1224 (N.D. Cal. 2012) ....................................................................................15

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Coupons, Inc. v. Stottlemire,
2008 WL 3245006 (N.D. Cal. July 2, 2008) .............................................................................20
Crowley v. Cybersource Corp.,
166 F. Supp. 2d 1263 (N.D. Cal. 2001) ............................................................................8, 9, 13
iii.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)
Page(s)
CTC Real Estate Services v. Lepe,
140 Cal. App. 4th 856 (2006) ...................................................................................................25
DeLeon v. Wells Fargo Bank, N.A.,
2011 WL 311376 (N.D. Cal. Jan. 28, 2011) .............................................................................17
Declassified Opinion from the FISC .................................................................................................6
In re Doubleclick Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001) .........................................................................................7
Edwards v. First American Corp.,
610 F.3d 514 (9th Cir. 2010).......................................................................................................4
Engalla v. Permanente Med. Grp., Inc.,
15 Cal. 4th 951 (1997) ..............................................................................................................17
In re Facebook Privacy Litig.,
572 F. App’x 494 (2014).............................................................................................4, 5, 18, 24
Fiedler v. Clark,
714 F.2d 77 (9th Cir. 1983).........................................................................................................4
Flanagan v. Flanagan,
27 Cal. 4th 766 (2002) ..............................................................................................................11
FMC Corp. v. Boesky,
852 F.2d 981 (7th Cir. 1988).......................................................................................................3
In re Google Android Consumer Privacy Litig.,
2013 WL 1283236 (N.D. Cal. Mar. 26, 2013) ..........................................................................18

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In re Google Cookie Placement Consumer Privacy Litig.,
806 F.3d 125 (3d Cir. 2015) .............................................................................................. passim
In re Google, Inc. Gmail Litig.,
2013 WL 5423918 (N.D. Cal. Sept. 26, 2013) .........................................................................11
Hill v. National Collegiate Athletic Assn.,
7 Cal. 4th 1 (1994) ....................................................................................................................21

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Hydranautics v. FilmTec Corp.,
204 F.3d 880 (9th Cir. 2000).....................................................................................................18
Intel Corp. v. Hamidi,
30 Cal. 4th 1342 (2003) ......................................................................................................19, 20
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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)
Page(s)
In re iPhone App. Litig. I,
2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) .........................................................................20
Kearns v. Ford Motor Co.,
567 F.3d 1120, 1126 (9th Cir. 2009).........................................................................................16
Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868 (9th Cir. 2002).................................................................................................6, 13
LaCourt v. Specific Media, Inc.,
2011 WL 1661532 (C.D. Cal. Apr. 28, 2011) ..........................................................................20
Lee v. Am. Nat’l Ins. Co.,
260 F.3d 997 (9th Cir. 2001)...................................................................................................3, 4
Levin v. Citibank, N.A.,
2009 WL 3008378 (N.D. Cal. Sept. 17, 2009) .........................................................................17
Low v. LinkedIn Corp.,
900 F. Supp. 2d 1010 (N.D. Cal. 2012) ........................................................................14, 23, 25

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Mazur v. eBay Inc.,
2008 WL 618988 (N.D. Cal. Mar. 4, 2008) ..............................................................................15
Microsoft v. Does, 1-8,
No. 14-cv-00811-LO-IDD (E.D. Va. July 20, 2015) ................................................................14
Monreal v. GMAC Mortg., LLC,
948 F. Supp. 2d 1069 (S.D. Cal. 2013) .....................................................................................17

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In re Nickelodeon Consumer Privacy Litig.,
2014 U.S. Dist. LEXIS 91286 (D.N.J. July 2, 2014) ................................................................13
Opperman v. Path, Inc.,
87 F. Supp. 3d 1018 (N.D. Cal. 2014) ......................................................................................23
Patriot Scientific Corp. v. Korodi,
504 F. Supp. 2d 952 (S.D. Cal. 2007) .......................................................................................18

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Patterson v. Bayer Healthcare Pharm., Inc.,
2015 WL 778997 (E.D. Cal. Feb. 24, 2015) .............................................................................16
People v. Maury,
30 Cal. 4th 342 (2003) ..............................................................................................................11

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)
Page(s)
People v. Nakai,
183 Cal. App. 4th 499 (2010) ...................................................................................................12
In re Pharmatrak,
329 F.3d 9 (1st Cir. 2003) ...........................................................................................................9
Portney v. CIBA Vision Corp.,
2008 WL 5505517 (C.D. Cal. July 17, 2008) .....................................................................17, 18
Riley v. California,
134 S. Ct. 2473 (2014) ........................................................................................................14, 22
Rosenfeld v. JPMorgan Chase Bank N.A.,
732 F. Supp. 2d 952 (N.D. Cal. 2010) ......................................................................................24
Senah, Inc. v. Xi’an Forstar S & T Co.,
2014 WL 3044367 (N.D. Cal. July 3, 2014) .............................................................................17
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ......................................................................................................................5

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Theofel v. Farey-Jones,
359 F.3d 1066 (9th Cir. 2004)...................................................................................................12
In re Toys R Us, Inc. Privacy Litig.,
2001 U.S. Dist. LEXIS 16947 (N.D. Cal. Oct. 9, 2001) .....................................................12, 13
Ung v. Facebook, Inc.,
No. 12-CV-217244 (Cal. Super. Ct. July 2, 2012)....................................................................21

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United States v. Councilman,
418 F.3d 67 (1st Cir. 2005) .................................................................................................12, 13
United States v. Forrester,
512 F.3d 500 (9th Cir. 2008).........................................................................................11, 21, 22
United States v. Guerrero,
768 F.3d 351 (5th Cir. 2014)...............................................................................................14, 22

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United States v. Jones,
132 S. Ct. 945 (2012) ..........................................................................................................21, 22
United States v. Maynard, sub nom. U.S. v. Jones,
615 F.3d 544 (D.C. Cir 2010) ...................................................................................................21

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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TABLE OF AUTHORITIES
(continued)

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Page(s)
United States v. Szymuszkiewicz,
622 F.3d 701 (7th Cir. 2010)...................................................................................................7, 9
Wallace v. ConAgra Foods, Inc.,
747 F.3d 1025 (8th Cir. 2014).....................................................................................................4
Woods v. Google Inc.,
2011 WL 3501403 (N.D. Cal. Aug. 10, 2011)....................................................................23, 24
In re Yahoo Mail Litig.,
7 F. Supp. 3d 1016 (N.D. Cal. 2014) ..........................................................................................9
Yates v. United States,
135 S. Ct. 1074 (2015) ................................................................................................................8
In re Zynga Privacy Litig.,
2011 WL 7479170 (N.D. Cal. June 15, 2011), aff’d, 750 F.3d 1098 (9th Cir.
2014) .........................................................................................................................................25

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In re Zynga Privacy Litig.,
750 F.3d 1098 (9th Cir. 2014).....................................................................................................5

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Statutes

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18 U.S.C.
§ 2510(4) .....................................................................................................................................8
§ 2510(5) .....................................................................................................................................7
§ 2510(15) .................................................................................................................................10
§ 2701 ..................................................................................................................................13, 14
§ 2703 ........................................................................................................................................14

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Cal. Penal Code
§ 502 .................................................................................................................................. passim
§ 530.5 .......................................................................................................................................25
§ 530.55(b) ................................................................................................................................25
§ 631 ....................................................................................................................................10, 11
§ 632 ..............................................................................................................................10, 11, 12

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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I.

INTRODUCTION

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Plaintiffs’ Opposition (“Opposition” or “Opp.”) to Facebook’s Motion to Dismiss fails to

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demonstrate why Plaintiffs’ Second Amended Consolidated Class Action Complaint (“SAC”)

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should not meet the same fate as their first consolidated complaint. The SAC does not include

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any allegations of particularized and concrete harm required to establish standing, and Plaintiffs’

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theory that standing is established when any violation of state law is asserted has been explicitly

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rejected by the Ninth Circuit.

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The SAC also fails to allege facts sufficient to state any of its eleven claims. Many of the

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arguments in the Opposition directly contradict the actual facts pled in the SAC. As the SAC

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explains, when an individual visits a webpage with Facebook content, the individual sends to

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Facebook a separate and different GET request containing the “referer URL” of the webpage

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being loaded so that Facebook knows where to load its content. (SAC ¶¶ 37, 38, 60.) Facebook

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receives a referer URL when an individual requests to view a webpage that contains Facebook

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content, in the same manner as any other third-party provider of Internet content. (Id.) When a

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Facebook cookie is present, that cookie is also sent as part of the GET request, but it is simply a

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“small text file[]” that includes only the data Facebook itself included. (Id. ¶ 52.)

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These same factual allegations have serious—indeed fatal—implications for many of

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Plaintiffs’ claims. Because Plaintiffs sent referer URLs to Facebook whenever Plaintiffs visited a

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webpage that contained Facebook content, Facebook’s receipt of this information cannot be (i) an

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“interception” under the Wiretap Act, (ii) improper “access” of information in “electronic

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storage” under the SCA, (iii) “without permission” under Penal Code § 502, (iv) “unlawful

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access,” as required for trespass, or (v) “theft,” as required for larceny. Nor does a user have a

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reasonable expectation of privacy in such information, as numerous courts have held. Moreover,

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Facebook is a party to the GET request, precluding liability under the Wiretap Act and California

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Invasion of Privacy Act (“CIPA”). Finally, as an idle “text file,” a cookie is not a “device” under

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the Wiretap Act, a “contrivance” under CIPA, or a “contaminant” under Penal Code § 502.

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But that’s not all. Plaintiffs also fail to rebut Facebook’s numerous challenges to the other

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necessary elements of their claims. And they ignore Ninth Circuit precedent holding that referer

COOLEY LLP
ATTORNEYS AT LAW
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1.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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URLs are not “contents” of any communications. A number of Plaintiffs’ common law claims

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are based on Facebook’s alleged statement that certain cookies would be deleted on logout, but

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the Opposition offers no justification for the SAC’s failure to plead when the alleged statement

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was made, that any named Plaintiffs ever saw or relied on it, that Facebook intended the

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statement to induce reliance, or that it was part of any contract between Plaintiffs and Facebook.

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For these reasons and those that follow, the SAC should be dismissed with prejudice.
II.

ARGUMENT
A.

Plaintiffs Lack Article III Standing As to All Claims
1.

Plaintiffs Fail to Point to Any Allegations Establishing Injury in Fact

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In its Order dismissing the FAC, this Court dismissed Plaintiffs’ state law claims, holding

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that because the FAC did not “demonstrate[] that Facebook’s conduct resulted in some concrete

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and particularized harm” Plaintiffs failed to “articulate[] a cognizable basis for standing pursuant

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to Article III[.]” (Order at 11.) The SAC fails to cure this fatal defect. As demonstrated in

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Facebook’s Motion, Plaintiffs’ SAC contains no new allegations of “a realistic economic harm or

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loss that is attributable to Facebook’s alleged conduct.” (Id. at 10.) Nor have Plaintiffs even

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attempted to respond to Facebook’s cited authority. Given these failures, the Court should

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dismiss the SAC. (Mot. at 8 (collecting cases).)

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Plaintiffs also have not pled they themselves were harmed by Facebook’s alleged conduct.

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Specifically, they have not alleged a single example of a third-party webpage they visited or a

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communication of theirs that was supposedly “tracked.” (Mot. at 9-10.) Instead, their Opposition

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argues that the SAC is sufficient because it includes allegations that the “intercepted URLs

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contain detailed file paths containing the content of GET and POST communications.” (Opp. at 8

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(internal quotation marks omitted).) But this conclusory assertion about the alleged contents of

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the URLs says nothing about any concrete or particular harm suffered by Plaintiffs. (Mot. at 9-10

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(citing cases).) Likewise, Plaintiffs do not address their failure to allege an actual economic

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injury, as required by their California Penal Code § 502, civil fraud, and larceny claims. (Mot. at

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10 (citing cases).) Without these allegations, Plaintiffs cannot establish Article III standing.

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2.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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2.

The Ninth Circuit Has Explicitly Rejected Plaintiffs’ Theory that
Pleading a State Law Claim Establishes Article III Standing

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Recognizing the weaknesses in their standing argument, Plaintiffs incorrectly rely on

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FMC Corp. v. Boesky, 852 F.2d 981 (7th Cir. 1988), and Cantrell v. City of Long Beach, 241 F.3d

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674 (9th Cir. 2001),1 for the proposition that pleading a state law claim is sufficient to invoke

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Article III standing, regardless of any particularized injury, because “if a claim is cognizable

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under state common law it is Constitutionally cognizable in federal court.” (Opp. at 7.) This

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argument is meritless. As an initial matter, the language from the cases that Plaintiffs rely on for

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this sweeping proposition is dicta.

FMC, 852 F.2d at 990-91 (concluding facts alleged

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established Article III injury regardless of state law claims);2 Cantrell, 241 F.3d at 683 (holding

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no standing to bring state taxpayer claim in federal court regardless of FMC). More importantly,

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the Ninth Circuit has squarely rejected Plaintiffs’ theory. Cantrell itself stated: “[A]lthough the

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[plaintiffs] may well have standing under California law to bring their suit in state court, that does

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not help them here. A party seeking to commence suit in federal court must meet the stricter

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federal standing requirements of Article III.” 241 F.3d at 683 (emphasis added).

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The Ninth Circuit reaffirmed this holding in Lee v. American National Insurance

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Company, 260 F.3d 997 (9th Cir. 2001), where the plaintiff brought a class action against two

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out-of-state insurance companies alleging a violation of California’s Unfair Business Practices

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Act. Id. at 999. Although California law would have permitted the plaintiff to sue without

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having purchased the insurance policy being challenged, the Ninth Circuit agreed that state law

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Plaintiffs’ reliance on In re Google Cookie Placement Consumer Privacy Litigation, 806 F.3d
125 (3d Cir. 2015) (Opp. at 6-7), is unavailing since there the court did not even address the
argument that pleading a state law claim establishes Article III standing. Rather, the court
reasoned that plaintiffs had standing simply because the “events that the complaint describes are
concrete, particularized and actual as to the plaintiffs.” Id. at 135. The opinion does not explain
how such allegations amount to an injury under Article III when case law is replete with
examples of plaintiffs who alleged “events” that were particular to them, but nonetheless had no
standing because the allegations failed to demonstrate a concrete injury. (Mot. at 8 (collecting
cases).)
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FMC is also inapposite. In that case, the defendant allegedly stole confidential business
information, which has value only if it remains secret. Id. at 991. Plaintiffs’ logged out browsing
information is decidedly different from the information in FMC, the misappropriation of which
the Seventh Circuit held “destroyed whatever value it had in FMC’s hands.” Id. at 991 n.21.
3.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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did not trump Article III’s standing requirements: “[A] plaintiff whose cause of action is

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perfectly viable in state court under state law may nonetheless be foreclosed from litigating the

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same cause of action in federal court, if he cannot demonstrate the requisite injury.” Id. at

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1001-02 (emphasis added); accord Fiedler v. Clark, 714 F.2d 77, 79-80 (9th Cir. 1983) (“In

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determining jurisdiction, district courts of the United States must look to the sources of their

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power . . . not to the acts of state legislatures. However extensive their power to create and define

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substantive rights, the states have no power directly to enlarge or contract federal jurisdiction.”).

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Plaintiffs fare no better with their arguments that the Erie doctrine and the Class Action

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Fairness Act (“CAFA”) support standing here. As to Erie, federal courts must first have Article

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III jurisdiction before considering the doctrine, as the Ninth Circuit has long recognized:

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The Erie doctrine does not extend to matters of jurisdiction . . . . It does not
require relegation of the diversity jurisdiction to the mercies of the legislatures
of fifty separate states. Indeed, the Erie doctrine rests upon the premise that the
jurisdiction of the federal diversity court is satisfied . . . .

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Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1316 (9th Cir. 1982) (emphasis added) (citation

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omitted).3 As to CAFA, Plaintiffs argue that this Court should retain jurisdiction over state

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claims absent Article III injury because to do otherwise would be “contrary to CAFA’s

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nonsubstantive purpose.” (Opp. at 6.) Plaintiffs cite no case law in support. Nor could they, as

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several cases have held the exact opposite.4 E.g., Wallace v. ConAgra Foods, Inc., 747 F.3d

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1025, 1033 (8th Cir. 2014) (“CAFA does not purport to extend federal jurisdiction to state

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claims—if any exist—permitting recovery for bare statutory violations without any evidence the

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Lee and its progeny expressly apply to claims under state statutes in addition to common law
claims. E.g., In re Capacitors Antitrust Litig., 2015 U.S. Dist. LEXIS 173404, at *28-29 (N.D.
Cal. Dec. 30, 2015) (“It is of no moment that a state statute might purport to expressly give the
plaintiff a right to sue; a plaintiff who clearly has standing under a state statute but not under the
requirements of Article III cannot proceed with that claim in federal court.”). Therefore,
Plaintiffs do not have standing to maintain their California statutory claims based merely on
alleged violations of the statutes separate from some Article III injury, including CIPA claims.
This is not affected by Edwards v. First American Corporation, 610 F.3d 514 (9th Cir. 2010),
which addressed a federal, not state, statute.
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In Lee, the Ninth Circuit recognized that dismissing state law claims for lack of standing would
require two separate class actions to proceed in state and federal court and concluded that it was a
necessary outcome of Article III’s injury in fact requirement. 260 F.3d at 1006.
4.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

plaintiffs personally suffered a real, non-speculative injury in fact.”).5

2

As Plaintiffs have not pled injury, the Court should dismiss the SAC for lack of standing.6

3

B.

4

Plaintiffs Fail to State a Claim under the Wiretap Act (Count I)
1.

Plaintiffs Identify No Intercepted “Contents” of a Communication

5

Addressing Plaintiffs’ FAC, the Court held that the information allegedly intercepted “is

6

so similar to the referer headers addressed in Zynga Privacy Litigation [that] Plaintiffs may never

7

be able to state [a] Wiretap Act claim . . . .” (Order at 16 (citing In re Zynga Privacy Litig., 750

8

F.3d 1098 (9th Cir. 2014).) Zynga specifically held that referer headers—the same information

9

that Plaintiffs allege was intercepted here—do not qualify as “contents” of communications under

10

the Wiretap Act. 750 F.3d at 1108. Nothing in the SAC or Opposition alters this conclusion.

11

The Opposition first contends that Zynga is distinguishable because the referer headers in

12

Zynga allegedly included the name of a person or a group, rather than the title of an article such

13

as “How Do I Reduce Herpes Breakouts.” (Opp. at 11.) But this is a distinction without a

14

difference. Zynga, in fact, contemplated that referer headers could disclose that a person viewed

15

“the Facebook page of a gay support group.” Id. at 1108. Zynga nevertheless held that referer

16

headers are record information—not “contents” under the Wiretap Act. Id. As this Court has

17

already recognized, it is bound by that ruling and should dismiss this claim.

18

5

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Plaintiffs ask the Court to reconsider its Order distinguishing this case from In re Facebook
Privacy Litigation, 572 F. App’x 494 (2014), but provide no reason to do so. That decision is not
precedential, did not even address the issue of standing, and certainly did not “extend[] Cantrell”
as Plaintiffs argue. (Opp. at 7.) Moreover, as this Court explained in its Order, the unpublished
decision is “inapplicable to this case” (Order at 11 n.3) because, unlike here, the plaintiffs alleged
the “dissemination of their personal information” and “[loss of] sales value of that information.”
572 F. App’x at 494. In re Anthem Data Breach Litigation, 2016 U.S. Dist. LEXIS 18135 (N.D.
Cal. Feb. 14, 2016), is also inapplicable because there the court specifically held that “the loss of
value of PII represents a cognizable form of economic injury.” Id. at 170 (emphasis added). As
this Court previously concluded, Plaintiffs did not allege a loss of value in any of their
information. The SAC is also devoid of any such allegations.
6
The Court should reject Plaintiffs’ request to wait to resolve the standing issue until some
unspecified “later stage” (Opp. at 9) because “[t]he Supreme Court has been very clear that
Article III standing is a threshold inquiry that must be undertaken at the outset of a case before
the Court proceeds any further.” In re Capacitors Antitrust Litig., 2015 U.S. Dist. LEXIS 173404
at *23 (rejecting request to delay standing question) (citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95 (1998)). Even the cases from this district that Plaintiffs cite ruled on
standing on the pleadings. In re Carrier IQ, Inc., Consumer Privacy Litig., 78 F. Supp. 3d 1051,
1065-69 (N.D. Cal. 2015); Anthem Data Breach Litig., 2016 U.S. Dist. LEXIS 18135 at *98-109.
5.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

Plaintiffs also cite two out-of-circuit cases, but neither is availing.

Google Cookie

2

Placement stated that the “post-domain name portions of the URL are designed to communicate

3

to the visited website which webpage content to send the user,” but ultimately concluded that it

4

did not need to decide whether all such information was “content” under the Wiretap Act. 806

5

F.3d at 139. Moreover, the defendants in that case conceded that some queried URLs may

6

qualify as “content.” Id. Similarly, Declassified Opinion from the FISC (ECF No. 78) held that

7

dialing, routing, addressing, or signaling information can be content, observing that “if a user runs

8

a search using an Internet search engine [and] the search phrase [] appear[s] in the URL,” the

9

URL includes the “contents” of communications. Id. at 31-32. Neither case, however, supports

10

the conclusion that Plaintiffs advocate here—that all referer URLs are content. (Opp. at 11-12.)

11

Rather, these two courts determined that certain referer URLs could be content if they included a

12

search query. Plaintiffs here, however, do not allege a single URL that was collected, let alone

13

that Facebook collected a URL containing a search query by Plaintiffs.7 (See SAC ¶¶ 113-124.)

14

And to the extent that either of these cases conflicts with Zynga, they are incorrectly decided and,

15

in any event, irrelevant, as this Court must follow binding Ninth Circuit precedent.

16

2.

Plaintiffs’ Own Allegations Show That There Was No “Interception”

17

Plaintiffs ignore the clear case law establishing that there can be no “interception” where,

18

as the SAC acknowledges is true here, Facebook receives separate and different communications

19

after Plaintiffs’ communications to first-party servers are complete. (Mot. at 12-13.) Plaintiffs’

20

arguments in opposition are meritless. First, Plaintiffs dismiss Konop v. Hawaiian Airlines, Inc.,

21

302 F.3d 868 (9th Cir. 2002), as factually distinguishable because the communications in Konop

22

had been stored for “far longer than the milliseconds” at issue here. (Opp. at 13.) That argument

23

has been squarely rejected, Bunnell v. Motion Picture Ass’n of Am., 567 F. Supp. 2d 1148, 1154

24

(C.D. Cal. 2007) (citing Konop) (whether a defendant “received the [] messages in milliseconds

25

or days . . . makes no difference”), because the key inquiry under Konop is whether the

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SAN FRANCISCO

7

Plaintiffs’ continued failure to provide the referer headers allegedly intercepted is no mere
technicality. While the SAC speculates that some allegedly intercepted referer headers included
search queries, Plaintiffs point to no search engines that utilize the Facebook social media plugin.
6.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

interception occurs before the communication reaches its destination. Konop, 302 F.3d at 878

2

(requiring interception during transmission “is consistent with the ordinary meaning of

3

‘intercept,’ which is ‘to stop, seize, or interrupt in progress or course before arrival’” (emphasis

4

added)). Because the SAC concedes that the allegedly “intercepted” communication has already

5

arrived at the first-party website before that website instructs the user’s browser to send a separate

6

communication to Facebook (SAC ¶¶ 37, 61), there can be no interception as a matter of law.8

7

Second, courts have squarely rejected Plaintiffs’ suggestion that an interception is shown

8

so long as some derivative of the communication is obtained. E.g., Bunnell, 567 F. Supp. 2d at

9

1154 (holding that even a scheme to immediately forward exact copies of communications did

10

not “intercept” them while in transit). Plaintiffs offer no explanation (or case law) to support their

11

illogical argument that two different messages, sent at different times to different parties, but

12

containing some of the same information, can amount to an “interception” under the statute.

13

Finally, Plaintiffs deny that acceptance of their theory could impose liability on all third-

14

party providers of webpage content because other third-party providers can rely on users’ implied

15

consent. (Opp. at 22.) Plaintiffs cite In re Doubleclick Privacy Litig., 154 F. Supp. 2d 497

16

(S.D.N.Y. 2001) in support, but that case held that Doubleclick had consent from first-party

17

websites that integrated code instructing Internet users’ browsers to contact Doubleclick; it did

18

not consider whether Doubleclick had obtained the consent of Internet users. Id. at 510-11.9

19

Plaintiffs’ interpretation would lead to an absurd result that is wholly unsupported by the statutory

20

text or case law.

21

3.

Plaintiffs Fail to Identify Any “Device”

The Opposition fails to explain how any one of the seven possible “devices” listed in the

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8

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United States v. Szymuszkiewicz held that a communication was “intercepted” where it was
obtained before it had reached its destination, and thus is consistent with the standard articulated
here. 622 F.3d 701, 704 (7th Cir. 2010) (noting that the evidence at trial showed “[t]he copying
at the server was the unlawful interception, catching the message ‘in flight’ (to use
Szymuszkiewicz’ preferred analogy)”). To the extent that dicta in Szymuszkiewicz provides an
alternate definition of “interception,” it is at odds with the Ninth Circuit and therefore irrelevant.
9
Indeed, applying the theory of consent articulated in In re Doubleclick, Facebook would be
exempt from liability under the Wiretap Act because first-party web sites impliedly consented to
the alleged interception. (See infra § II.B.4.)
7.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

SAC “can be used to intercept a wire, oral, or electronic communication.” 18 U.S.C. § 2510(5).

2

Instead, Plaintiffs argue that under certain circumstances, computers, computer code, cookies, and

3

“a plan” can function as devices.10 But Plaintiffs have not alleged how Facebook intercepted

4

“through the use of” any alleged “devices,” thus they have not met this element of the claim. For

5

example, Plaintiffs claim that their computers are “devices” under the Act, but fail to explain how

6

Facebook “use[d]” their computers to intercept communications.

7

Crowley v. Cybersource Corp., 166 F. Supp. 2d 1263, 1269 (N.D. Cal. 2001) (dismissing Wiretap

8

Act claim where defendant “did not acquire [the communication] using a device other than the

9

drive or server on which the e-mail was received”).11
4.

10
11
12
13
14
15
16
17
18
19
20
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18 U.S.C. § 2510(4); see

Facebook Was a Party to the Alleged Communication and Had
Consent to Receive the URL Referers

The SAC concedes that Facebook only acquired communications that Plaintiffs sent
directly to Facebook. (SAC ¶ 61.) Because Facebook was a party to those transmissions, they
cannot form the basis of a Wiretap Act violation. (Mot. at 14 (collecting cases).) Facebook’s
“admission” that it is a third-party provider of content does not alter this conclusion. (Opp. at
15.)

First, Facebook’s Motion “admits” nothing; it simply referred to one of Plaintiffs’

allegations: that websites that incorporate third-party content (such as the Facebook Like button)
require the users’ browsers to communicate directly with “third-party” providers to display the
site accurately. (Mot. at 17 (citing SAC ¶¶ 36-39).) Assuming that allegation is true, Facebook,
when acting as a third-party provider of webpage content, communicates directly with the user
and is therefore a party to those communications. See Crowley, 166 F. Supp. 2d at 1269
(dismissing Wiretap Act claim where alleged interceptor “merely received the information

22
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Facebook disputes that computer code, cookies, or “a plan” constitute “devices.”
Notwithstanding Plaintiffs’ Random House reference (Opp. at 14), applying the canon of
construction ejusdem generis, “other devices,” in the phrase “electrical, mechanical, or any other
device,” must be physical devices and cannot be computer software, cookies, or a “plan.” Yates
v. United States, 135 S. Ct. 1074, 1086-87 (2015) (ejusdem generis applies to limit “tangible
object” in context of “any record, document, or tangible object” to things used to record or
preserve information, and does not include fish).
11
Plaintiffs attempt to distinguish Crowley because there Amazon was a second party to the
communication (Opp. at 15), but that is irrelevant to Crowley’s holding on what constitutes a
“device.” Similarly, Plaintiffs cite to In re Carrier IQ, but there the court did not consider the
argument made here – that software is not a “device.” 78 F. Supp. 3d at 1084.
8.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

transferred to it by [Plaintiffs], an act without which there would be no transfer”).

2

Plaintiffs argue that Crowley is distinguishable because Plaintiffs here had “no intention

3

of sending any information to Facebook” and “Facebook [had] explicitly promised it would not

4

acquire user communications.” (Opp. at 15.)12 But Plaintiffs cannot reconcile this argument with

5

their allegations that, as part of the normal operation of the Internet, when a person seeks to visit a

6

webpage with third-party content, her browser must communicate with those third-party content

7

providers. (SAC ¶¶ 37-40.) Plaintiffs also ignore precedent that their subjective belief about

8

Facebook’s status as a party to the communication is irrelevant. (Mot. at 14 (collecting cases).)

9

Even Google Cookie Placement, upon which Plaintiffs heavily rely, ultimately dismissed the

10

Wiretap Act claims because, like Facebook here, Google was a party to those communications.

11

806 F.3d at 143-45.13

12

As to consent, Plaintiffs fundamentally misconstrue Facebook’s argument. The first-party

13

websites consented to Facebook’s receipt of URL referrers by voluntarily integrating the

14

Facebook code to place Facebook content on their webpages. See e.g., Chance v. Ave. A, Inc.,

15

165 F. Supp. 2d 1153, 1162 (W.D. Wash. 2001) (consent “is implicit in the web pages’ code

16

instructing the user’s computer to contact Avenue A”). Plaintiffs’ attempt to manufacture a

17

factual dispute here is unavailing; there is no dispute that first-party websites voluntarily installed

18

Facebook’s social plugin. (See SAC ¶¶ 2, 60.) Courts have not hesitated to dismiss Wiretap Act

19

claims where, as here, consent was evident on the face of the complaint. E.g., Chance, 165 F.

20

Supp. 2d at 1162; In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1029-30 (N.D. Cal. 2014).

21

5.

22

Plaintiffs assert that Facebook is an ECS provider “only for communications made on

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Facebook Is Exempt from the Wiretap Act as an Electronic
Communication Service Provider in the Ordinary Course of Business

Facebook.com” (Opp. at 17), but Facebook plugins enable users to send electronic
12

As discussed below, Facebook did not promise that it would not acquire referer URLs, and
Plaintiffs’ SAC contains no such allegation. And the SAC admits that third-party providers of
Internet content receive such information so they can render such content. (SAC ¶¶ 36-40.)
13
Neither of the cases Plaintiffs cite—In re Pharmatrak, 329 F.3d 9 (1st Cir. 2003) and
Szymuszkiewicz (Opp. at 16)—even considered whether the party exemption applied to the
recipient of the communication.
9.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

communications when, for example, a user “clicks on the Like or Share button” on a “webpage

2

with Facebook functionality.” (SAC ¶ 3.) Thus, Facebook “provides to users . . . the ability to

3

send . . . electronic communications.” 18 U.S.C. § 2510(15); Mot. at 15-16. And it does so in the

4

ordinary course of its business. Plaintiffs’ own allegations demonstrate that users necessarily

5

send referer URLs to third-party providers of website content to enable display of such content.

6

(SAC ¶¶ 36-41.)

7

C.

8

CIPA § 631. Plaintiffs’ Opposition merely recycles their argument on their deficient

9

Wiretap Act claim—asserting without factual or legal support that referer URLs are “contents” of

10

communications (Opp. at 22 n.9), ignoring binding Ninth Circuit authority to the contrary. (See §

11

§ II.B.1; Mot. at 16.) But the Court previously rejected this argument and dismissed Plaintiffs’

12

CIPA claim for failure to adequately plead that Facebook obtained the “contents of

13

communications.” (Order at 18.) It should do so again on this ground alone.

Plaintiffs Fail to State a Claim Under Penal Code §§ 631 and 632 (Count III)

14

The Opposition also fails to demonstrate that the SAC remedied the deficiencies this

15

Court identified when it dismissed the FAC for not adequately alleging the use of a “machine,

16

instrument, or contrivance.” (Id.) Plaintiffs cannot meet this element by simply providing a

17

laundry list of things that may fulfill this requirement; they must “include facts in their pleading

18

to show why it is so.” (Mot. at 16-17; Order at 18.) Unable to point to any such factual

19

allegations, the Opposition argues, without any legal support, that because the statute proscribes

20

certain conduct “by means of any machine, instrument, or contrivance, or in any other manner”

21

they need not explain how the objects listed in their SAC acted to satisfy this requirement. (Opp.

22

at 22-23.) But their argument does not relieve them of their pleading burden.

23

The Opposition also fails to rebut that Facebook was a party and had consent.14 Plaintiffs

24

rely on their arguments under the Wiretap Act (Opp. at 22 n.9), which fail for the reasons

25

articulated in § II.B.4 above. Moreover, courts have rejected Plaintiffs’ argument that Facebook,

26

as a party to the communication, required Plaintiffs’ consent to avoid liability under § 631. (Mot.

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Plaintiffs’ Opposition does not dispute that the Court’s prior holding on this issue is
inapplicable because the SAC made material changes to its allegations regarding what supposed
“content” was obtained. (Mot. at 17.)
10.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

at 17 (collecting cases).)

2

CIPA § 632. Plaintiffs attempt to manufacture the “confidential communication” missing

3

from their SAC by claiming that Facebook “promised” their communications would be

4

confidential. (Opp. at 23.) But this argument has no basis in the SAC and Plaintiffs provide no

5

authority to support it. First, Facebook’s alleged promise to “remove the cookies that identify [a

6

user’s] particular account” is not a “promise[] not to record the communications at issue” as

7

Plaintiffs claim. (Id.) The referer URLs at issue would have been sent, regardless of whether

8

these cookies were present. Second, even if Facebook had promised not to receive referer URLs,

9

such a promise would not create a reasonable expectation of privacy in such communications.

10

See, e.g., People v. Maury, 30 Cal. 4th 342, 385 (2003) (promise of anonymity did not create

11

reasonable expectation of privacy where circumstances suggested that such expectation was

12

unreasonable). Section 632 applies only “if a party to that conversation has an objectively

13

reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v.

14

Flanagan, 27 Cal. 4th 766, 777 (2002). But this Court, like many others, has concluded that the

15

alleged information that was communicated here is not private. (Order at 12 n.5 (“Internet users

16

have no expectation of privacy in the. . . IP addresses of the websites they visit . . . .” (quoting

17

United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).) And such decisions are not

18

limited to IP addresses. Forrester’s reasoning extends to all “information [that] is provided to

19

and used by Internet service providers for the specific purpose of directing the routing of

20

information.” 512 F.3d at 510. As Plaintiffs’ SAC acknowledges, that is precisely the purpose of

21

the GET requests that Plaintiffs send. (SAC ¶ 31.) See also In re Google, Inc. Gmail Litig., 2013

22

WL 5423918, at *22 (N.D. Cal. Sept. 26, 2013) (applying § 632 and finding no confidentiality in

23

communications that can be “recorded [by] . . . the recipient, who may then easily transmit the

24

communication to anyone else”).

25

Plaintiffs also contend that that they have satisfied the “recording device” requirement.

26

But Plaintiffs merely rely on the list of things they claim constitute a “machine, instrument, or

27

contrivance” under § 631. Plaintiffs have not described how any of these things are capable of

28

“recording” or “amplifying” communications. For example, Plaintiffs allege that “cookies [are]

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

11.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

designed to track and record . . . communications” (Opp. at 24), but they do not explain how an

2

idle “text file” can record anything or qualifies as a “recording device” under § 632.15

3

D.

4

Plaintiffs Fail to State a Claim under the SCA (Count II)
1.

5

Plaintiffs Fail to Allege Facebook Accessed Information While in
“Electronic Storage”

6

Plaintiffs fail to rebut Facebook’s showing that neither “the toolbar” nor “browsing

7

history” satisfy the definition of “electronic storage” under §§ 2510(17)(A) and (B). First, the

8

toolbar does not store referer URLs “in the middle of a transmission” and therefore is not

9

“temporary, intermediate storage of a wire or electronic communication incidental to the

10

electronic transmission thereof” under § 2510(17)(A). (Mot. at 19-20.) Plaintiffs’ Opposition

11

distorts the allegations in the SAC to suggest that storage in the toolbar is part of the transmission

12

process. (Opp. at 21.) But the SAC alleges only that “a copy of the Plaintiffs’ URL requests”

13

appears in the toolbar while “the communication is in the process of being sent and received

14

between the user and the first-party webpage.” (SAC ¶ 206.) Because Plaintiffs do not (and

15

cannot) allege that “a copy of the Plaintiffs’ URL request” in the toolbar is the actual

16

communication or that this copy is delivered anywhere, Plaintiffs have not alleged that the toolbar

17

stores a communication “in the middle of a transmission” as required under § 2510(17)(A). In re

18

Toys R Us, Inc. Privacy Litig., 2001 U.S. Dist. LEXIS 16947, at *10-11 (N.D. Cal. Oct. 9, 2001).

19

Second, § 2510(17)(B) only encompasses storage “by an electronic communication

20

service for purposes of backup protection,” and thus cannot include storage of “browsing history”

21

on Plaintiffs’ personal computers. (Mot. at 19-20 (collecting cases).) Plaintiffs fail to address

22

any of Facebook’s cited authorities (Id. at 19-21), instead claiming only that “the definitions of

23

storage are ‘extraordinary – indeed, almost breathtakingly – broad’” (Opp. at 20-21 (citing United

24

States v. Councilman, 418 F.3d 67, 73 (1st Cir. 2005)), and that backup protection includes

25

storage “for the user’s benefit” (Opp. at 21 (citing Theofel v. Farey-Jones, 359 F.3d 1066, 1075

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People v. Nakai, 183 Cal. App. 4th 499, 518 (2010), is not to the contrary. There, the court
assumed that all requirements of § 632, including the use of a recording device, had been met,
before determining there was no “confidential communication.” Id.
12.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

(9th Cir. 2004)). But Councilman and Theofel involved electronic storage on an email server and

2

thus are not an answer to the authority offered by Facebook demonstrating that storage on a

3

personal computer does not qualify as “electronic storage” for backup protection under the Act.16

4

Lastly, even if storage in the toolbar or in browsing history could constitute “electronic

5

storage,” Plaintiffs have not alleged that Facebook accessed information “while it is in” these

6

locations, as required by the statute. Instead, Plaintiffs have alleged that Facebook receives

7

referer URLs because they are sent to Facebook so that Facebook can deliver requested website

8

content. (SAC ¶¶ 35-40, 61.) Plaintiffs’ Opposition suggests that it does not matter whether

9

Facebook “access[es] . . . [an] electronic communication while it is in electronic storage” (18

10

U.S.C. § 2701(a)(2)) so long as Facebook obtained or even just used the information somehow.

11

(Opp. at 21-22.) This absurd argument ignores the plain language of the statute, and if accepted,

12

would impose liability for obtaining or using any communication that had ever, at any point, been

13

in temporary “electronic storage.”

14

§ 2701(a)(2) to be synonymous with “obtain” or “use,” nor has plaintiff identified any authority

15

to the contrary. See In re Toys R Us, 2001 U.S. Dist. LEXIS 16947, at *11-14 (dismissing SCA

16

claim where plaintiffs alleged that cookies were in “electronic storage” while in random access

17

memory (“RAM”), but failed to plead that the defendant procured the cookies from RAM).

18

2.

Moreover, courts have not interpreted “access” under

Plaintiffs Fail to Establish that Facebook Accessed a “Facility”

19

Facebook established in its Motion that personal computers are not “facilities” under the

20

SCA. (Mot. at 21 (collecting cases).) Plaintiffs’ efforts to carve out web browsers and browser-

21

managed files from these authorities (Opp. at 18) is unavailing, as web browsers and browser-

22

managed files are installed on their own personal computers. See Crowley, 166 F. Supp. 2d at

23

1270-71 (plaintiff’s personal computer is not a facility under the SCA); In re Nickelodeon

24

Consumer Privacy Litig., 2014 U.S. Dist. LEXIS 91286, at *61 (D.N.J. July 2, 2014) (“[T]he

25

SCA is not concerned with access of an individual’s personal computer.”). Plaintiffs’ inability to

26

distinguish those cases cited in Facebook’s Motion mandates dismissal.

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16

Councilman involved the Wiretap Act, not the SCA, and explicitly departs from Ninth Circuit
precedent. 418 F.3d at 69; id. at 87 (Torruella, J., dissenting) (citing Konop).
13.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

Plaintiffs attempt to salvage their SCA claim by citing a number of irrelevant and

2

inapposite authorities, several of which do not even discuss the meaning of “facility” under the

3

SCA. (Opp. at 18-19.) Plaintiffs cite a series of Microsoft cases, but they all involve default

4

judgments entered against parties who had not appeared, let alone contested whether browsers are

5

“facilities.” See, e.g., Microsoft v. Does, 1-8, No. 14-cv-00811-LO-IDD (E.D. Va. July 20, 2015)

6

(court accepts without question Microsoft’s contention that browsers were “facilities” under the

7

SCA).17 Likewise, Plaintiffs’ remaining citation is to a case in which a court did not hold that

8

personal computers were “facilities” under the SCA, but rather considered the plaintiffs’

9

interpretation for the sake of argument and then explained why “the subsequent implications of

10

this rather strained interpretation of a ‘facility through which an electronic communication service

11

is provided’ are fatal to [plaintiffs’] cause of action.” Chance, 165 F. Supp. 2d at 1161.

12

Plaintiffs fare no better with their policy argument that excluding personal computers

13

from the SCA’s purview would enable the government to access an Internet user’s web-browsing

14

history without a warrant, and would enable a third party to disclose a user’s web-browsing

15

history without consent. The SCA already specifies what information can and cannot be lawfully

16

disclosed to a governmental entity, see 18 U.S.C. § 2703, and Plaintiffs ignore the numerous

17

cases addressing (and rejecting) similar attempts to depart from the plain interpretation of the

18

statute. (Mot. at 21 (citing § 2701(c)).)

19

Finally, Plaintiffs are incorrect to argue that the SCA should apply to every alleged

20

unwanted access to electronic communications (Opp. at 20). See Low v. LinkedIn Corp., 900 F.

21

Supp. 2d 1010, 1022 (N.D. Cal. 2012) (“[T]he SCA is not a catch-all statute designed to protect

22

the privacy of stored Internet communications” as “there are many problems of Internet privacy

23

that the SCA does not address.”) (citation omitted).18

24

17

25
26
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SAN FRANCISCO

While Plaintiffs list other cases involving Microsoft and unnamed defendants, they fail to
identify any decision in those cases holding that browsers or browser-managed files are facilities.
18
Plaintiffs also claim that exempting access to web browsers from the SCA’s purview would
undermine Riley v. California. But even if the SCA question presented here were somehow
coextensive with Fourth Amendment jurisprudence (which Facebook does not concede), Riley
only stands for the limited proposition that law enforcement must obtain a warrant before
searching a cell phone seized incident to arrest. Riley did not eliminate the principle that there is
no reasonable expectation of privacy in information voluntarily disclosed to a third party. See
14.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

E.

2

Plaintiffs Fail to State a Claim for Fraud (Count VIII)
1.

3

Plaintiffs Fail to Allege With the Specificity Required by Rule 9(b)
Any False Statements Upon Which Plaintiffs Relied

4

Nowhere in either Plaintiffs’ Complaint or Opposition does any Plaintiff allege that she

5

both read and relied on a specific fraudulent statement. In fact, only one paragraph in the SAC

6

even mentions reliance at all, stating in boilerplate fashion: “Plaintiffs relied on Facebook’s false

7

assertions in contracting with and using Facebook.” (SAC ¶ 267.) Not only is this conclusory

8

allegation of reliance itself insufficient, see Mazur v. eBay Inc., 2008 WL 618988, at *13 (N.D.

9

Cal. Mar. 4, 2008), but Facebook and the Court are also left to guess which allegedly false

10

assertions Plaintiffs supposedly read and relied on.19

11

The Opposition, in an attempt to cure this defect, points to seven paragraphs Plaintiffs

12

claim “specifically” identify the otherwise elusive false promises. (Opp. at 36 (citing SAC ¶¶ 4,

13

23, 24, 27, 74, 78).) But a review of each of these paragraphs reveals the fatal flaw of the SAC—

14

Plaintiffs have utterly failed to point to a statement by Facebook that was false, that was read by

15

any of the named Plaintiffs, and that was relied upon:

16



Paragraph 4 of the SAC asserts: “When a subscriber logs out of Facebook, however,

17

Facebook promises to delete those cookies that contain subscriber’s identifying

18

information, such as user ID.” (SAC ¶ 4.) But Plaintiffs offer no specifics of when,

19

where, or by whom this “promise” was made, and give no citation.

20



told USA Today that it did not track users post-logout. (SAC ¶ 27.)

21
22
23
24
25
26
27
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ATTORNEYS AT LAW
SAN FRANCISCO

Paragraph 27 claims that in November of 2011, after the proposed class period, Facebook



Paragraphs 74 and 78 quote from internal Facebook communications, so Plaintiffs cannot
have read and relied on any of these statements. (SAC ¶¶ 74, 78.)

United States v. Guerrero, 768 F.3d 351, 358–60 n.7 (5th Cir. 2014).
19
Plaintiffs cite In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (N.D. Cal. 2012), and
Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006), for the claim that they can allege
reliance in general terms. (Opp. at 36.) But, in both cases, the plaintiffs alleged (1) specific false
statements that they were exposed to and (2) which statements they relied on. Clorox, 894 F.
Supp. 2d at 1234 (plaintiffs alleged seeing and relying on specific statements in commercials
when purchasing the product); Anthony, 421 F. Supp. 2d at 1264 (plaintiffs pointed to specific
“false profiles” and alleged exposure to and reliance on them). Here, Plaintiffs do neither.
15.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

The two remaining allegations also fail. Paragraph 23 alleges that a Facebook Help

2

Center page said “when you log out of Facebook, we remove the cookies that identify your

3

particular account.” But critically, Plaintiffs do not explain when this Help Center page was live,

4

nor do they clarify where it could be found. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1126

5

(9th Cir. 2009) (“Nor did [plaintiff] specify when he was exposed to [the allegedly fraudulent

6

statements] or which ones he found material.”). Equally important, the SAC is silent on whether

7

any of the Plaintiffs ever visited the alleged Help Center page, when they did so, or if they relied

8

on that alleged representation.

9

778997, at *13 (E.D. Cal. Feb. 24, 2015) (“Absent . . . is where or when [plaintiff] was exposed

10

See Patterson v. Bayer Healthcare Pharm., Inc., 2015 WL

to the [fraudulent] materials.”).

11

Finally, paragraph 24 alleges that 19 days before the end of the class period, Facebook

12

added a “promise” to its Data Use Policy by stating: “[Data received] may include the date and

13

time you visit the site; the web address, or URL, you’re on; technical information about the IP

14

address, browser and the operating system you use; and, if you are logged in to Facebook, your

15

User ID.” (SAC Ex. H, § I.) Whether this wording is a promise not to collect URLs post-logout

16

(it is not) is irrelevant because no named Plaintiff alleges she actually read this language let alone

17

relied on it. Nonetheless, Plaintiffs contend (with no factual support in the SAC) that but for

18

statements like this, they would not have contracted with Facebook—a requirement of reliance.

19

(Opp. at 36.) Plaintiffs cannot claim that they relied on the updated language of the Data Use

20

Policy when deciding whether to use Facebook, given that all four Plaintiffs used Facebook for at

21

least 16 months before the language was added and none allege that they even read and relied on

22

the language added in the last 19 days of the class period. (SAC ¶¶ 12, 13, 14, 15.)

23
24
25
26
27
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ATTORNEYS AT LAW
SAN FRANCISCO

2.

Plaintiffs Fail to Plead that Facebook Intended to Induce Reliance on
the Alleged False Statements

Plaintiffs do not deny that fraud requires proof of falsity and intent to induce reliance,
stating only that “Fraud’s elements are not at issue. The facts are.” (Opp. at 35.) Precisely. The
question is whether the facts alleged in the SAC adequately plead the element of fraudulent
intent. See Levin v. Citibank, N.A., 2009 WL 3008378, at *5 (N.D. Cal. Sept. 17, 2009) (finding
16.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

conclusory allegations of intent to induce insufficient to plead fraud); Senah, Inc. v. Xi’an Forstar

2

S & T Co., 2014 WL 3044367, at *4 (N.D. Cal. July 3, 2014) (dismissing fraud claim due to “bare

3

allegations” of intent). The SAC’s failure to allege any intent to defraud on the part of Facebook,

4

in conclusory fashion or otherwise, is fatal to Plaintiffs’ claim.

5

The Opposition’s citation to various quotes from Facebook employees does not

6

demonstrate intent. As an initial matter, a quote showing that some engineers at Facebook

7

discussed post-logout cookie functions would not alone suffice to allege intent to induce reliance.

8

See Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 976 (1997) (“A fraudulent state of

9

mind includes not only knowledge of falsity of the misrepresentation but also an intent to . . .

10

induce reliance on it.”) (citation omitted); DeLeon v. Wells Fargo Bank, N.A., 2011 WL 311376,

11

at *8 (N.D. Cal. Jan. 28, 2011) (“[K]nowing, intentional fraud” requires more than mistakes

12

stemming from “one department not talking to another”). Instead, Plaintiffs must set forth factual

13

allegations demonstrating that Facebook made false statements, and did so with the specific

14

intent, at the time, to trick Plaintiffs into using Facebook. The referenced statements do nothing

15

of the sort.

16

For instance, the Opposition offers part of a sentence from SAC ¶ 74, from an internal

17

email thread, that has been taken far out of context. (Opp. at 35 (citing SAC ¶ 74).) The quote in

18

context does not show intent to trick Plaintiffs, but instead it demonstrates intent to ensure that

19

Facebook’s public statements were true. (SAC ¶ 74.) Plaintiffs point to no fact that suggests any

20

person at Facebook made a statement to users, while that person knew the statement was false, let

21

alone made it with intent to induce reliance. Plaintiffs’ failure to plead intent requires dismissal.20

22

3.

Plaintiffs Fail to Plead Constructive Fraud

23

The Opposition also does not cure the SAC’s failure to plead a “confidential relationship,”

24

as required to make out a claim for constructive fraud. (Opp. at 38.) Rather than point to

25

supporting allegations in the SAC, Plaintiffs grossly misquote two cases. Plaintiffs quote Portney

26

v. CIBA Vision Corp., 2008 WL 5505517, at *5 (C.D. Cal. July 17, 2008), for the proposition that

27
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ATTORNEYS AT LAW
SAN FRANCISCO

20

Plaintiffs improperly argue for the first time that Facebook had a duty to disclose (Opp. at 37).
See Monreal v. GMAC Mortg., LLC, 948 F. Supp. 2d 1069, 1078 (S.D. Cal. 2013).
17.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

a confidential relationship existed because Facebook’s “sophistication and bargaining power,”

2

and Plaintiffs’ “substantial” reliance on Facebook’s claims, “give rise to equitable concerns.”

3

(Opp. at 38.) But this comes from Portney’s discussion of fiduciary relationships—a type of

4

relationship not alleged in the SAC. 2008 WL 5505517, at *5. When discussing confidential

5

relationships, the court made clear: “As a general rule, the [confidential] relationship is not

6

created simply by the receipt of confidential information.” Id. (citation omitted). Likewise, the

7

Opposition cites Patriot Scientific Corp. v. Korodi, 504 F. Supp. 2d 952, 966 (S.D. Cal. 2007), for

8

the proposition that the existence of a confidential relationship is “generally a fact question,” but

9

omits the rest of the sentence, which clarifies that “where the allegations of fact, if true, would be

10

legally insufficient to establish a confidential relationship, dismissal is appropriate.” Id. at 966.21

11

F.

12

No Damages. The SAC and Opposition (see Opp. at 33-34) ignore this Court’s earlier

13

ruling that Plaintiffs failed to allege damages sufficient to plead a § 502 claim (Order at 13).

14

Plaintiffs offer no reason for the Court to reach a different conclusion now. Indeed, they do not

15

address any of Facebook’s case law, but instead offer a single misleading excerpt from In re

16

Google Android Consumer Privacy Litig., 2013 WL 1283236, at *11 (N.D. Cal. Mar. 26, 2013).

17

There, however, plaintiffs alleged that the value of their user data was diminished when it was

18

improperly collected. Even then, the court found the allegations were “not sufficient to allege

19

damage” for purposes of § 502. Id. Plaintiffs have also made much of the Third Circuit’s

20

decision in Google Cookie Placement, but that court also affirmed dismissal of the § 502 claims

21

for failure to allege cognizable damages. 806 F.3d at 152. Finally, Plaintiffs seem to suggest, for

22

the first time, that the volume of data transmitted to Facebook somehow caused damage to

23

Plaintiffs, but never explain how that purported fact satisfies the damages element here, or point

Plaintiffs Fail to State a Claim Under Penal Code § 502 (Count X)

24
25
26
27
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ATTORNEYS AT LAW
SAN FRANCISCO

21

Plaintiffs’ failure to plead any damages caused by the alleged fraud is also an independent basis
to dismiss this claim. (Mot. at 24.) Plaintiffs’ claim that the In re Facebook Privacy Litigation
memorandum opinion (Opp. at 37) is preclusive on this issue is incorrect because the
distinguishable facts alleged there (see supra at 5 n.5) means the cases are not “identical,”
preventing any issue preclusion. Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.
2000) (prior case must have considered the identical issue to be preclusive).
18.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

to where in the SAC such an allegation is made. (Opp. at 33.)22

2

Not Without Permission. The Opposition concedes that to state a § 502 claim the SAC

3

must allege facts establishing that Facebook circumvented a technical barrier. (Opp. at 34.)

4

Plaintiffs argue that Facebook supposedly circumvented the “cookie blocking technology” used

5

by the Internet Explorer (“IE”) subclass, but do not explain how. (Opp. at 34:9-12.) Nor could

6

they. IE gives users the option to reject cookies, so if Facebook wrote cookies onto Plaintiffs’ IE

7

browsers, then Plaintiffs’ privacy settings allowed for cookies. (SAC Ex. Z at 2.)

8
9

Plaintiffs do not even attempt to explain how their Privacy Policy Project Platform
(“P3P”) allegations support the claim that Facebook circumvented a technical barrier.

As

10

Plaintiffs’ own exhibit makes clear, IE does not require that websites use more tokens than were

11

sent by Facebook, and IE erects no technical barrier to two-token sets like Facebook’s. (Id. at 6

12

(“[IE cookie filters] do not check to make sure the minimum required tokens are present.”).)

13

Neither Facebook, nor the over 6,000 other websites that were found to have missing tokens,

14

“tricked” IE, as Microsoft was well aware of the common practice of using less than five tokens,

15

and never took any technical steps to prevent it. (Id. at 4, 6.)23

16

No Contaminant.

Plaintiffs argue that cookies are contaminants under the statute

17

because they are “viruses or worms.” (Opp. at 34.) But Plaintiffs offer no factual support for this

18

claim, or for their conclusory assertions that cookies “self-replicate” and “contaminate” URLs. In

19

fact, the SAC contradicts these characterizations. Cookies do not self-replicate; they are set when

20

a user visits a website and send information only when the browser directs them. (SAC ¶¶ 56, 57,

21

60.) Likewise, the SAC never alleges that cookies contaminate URLs or alter them in any way.

22

G.

23

Plaintiffs’ Opposition advances two unpersuasive arguments to support their trespass

24

claim. First, Plaintiffs attempt to distinguish Intel Corp. v. Hamidi in which the California

25

22

26
27
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs Fail to State a Claim for Trespass to Chattels (Count IX)

Plaintiffs also assert that the alleged intrusion into their privacy is enough to establish damages
under § 502. But Plaintiffs cite no support for this proposition.
23
Plaintiffs cite Google Cookie Placement for their claim that Facebook acted without
permission. But that case did not rule on § 502 permission, made no mention of P3P, and
concerned fundamentally different allegations: namely that Google “used code to command
users’ web browsers to automatically submit a hidden form to Google.” 806 F.3d at 132.
19.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

Supreme Court held that trespass to chattels “does not encompass . . . an electronic

2

communication that neither damages the recipient computer system nor impairs its functioning.”

3

30 Cal. 4th 1342, 1347 (2003).

4

Opposition argues that Facebook’s cookies interfered with the operation of their computers by

5

circumventing privacy protections. (Opp. at 39.) But almost identical arguments were rejected in

6

LaCourt v. Specific Media, Inc., 2011 WL 1661532, at *7 (C.D. Cal. Apr. 28, 2011) (dismissing §

7

502 claim based on installation of cookies and interception of private information because

8

plaintiffs had not alleged any interference with the functioning of their computers except in a

9

“trivial sense”). Plaintiffs make no attempt to distinguish LaCourt, despite its clear applicability.

10

The SAC fails to plead around this standard.

Plaintiffs’

(Opp. at 39.) Nor can they.

11

Second, the Opposition argues that the issue should not be decided on a motion to dismiss.

12

(Opp. at 39.) But unlike the case Plaintiffs cite, Coupons, Inc. v. Stottlemire, 2008 WL 3245006

13

(N.D. Cal. July 2, 2008), here there is no factual dispute. The question is whether, as a matter of

14

law, the alleged damages comport with the holding in Hamidi. Here, they do not. When such is

15

the case, the claim should be dismissed. LaCourt, 2011 WL 1661532, at *7-8; In re iPhone App.

16

Litig., 2011 WL 4403963, at *14 (N.D. Cal. Sept. 20, 2011) (dismissing trespass claim for failing

17

to allege identifiable injury).

18

H.

19

The Opposition fails to address this Court’s prior order, binding Ninth Circuit law, or any

20

of the cases cited in Facebook’s Motion establishing that the elements of invasion of privacy

21

cannot be met. Plaintiffs also ignore their continued failure to allege that any of their specific,

22

private information was actually sent to Facebook. (Mot. at 29-30.) Plaintiffs instead rely

23

principally on two cases (Opp. at 25), but both cases are distinguishable and erroneously decided.

24

Google Cookie Placement does not support Plaintiffs’ arguments here. There, the court

25

distinguished Google’s conduct from mere “tracking and disclosure” and held that the plaintiffs’

26

allegations were sufficient to state a claim largely because Google overrode “the plaintiffs’ cookie

27

blockers” while assuring users that they would be effective. 806 F.3d at 150. In contrast,

28

Plaintiffs allegations do not show that Facebook subverted their attempts to block cookies (see

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs Fail to State a Claim for Invasion of Privacy (Count IV)

20.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

supra § II.F), nor that Facebook collected information about them despite an “express, clearly

2

communicated denial of consent.” Id. at 151. Thus, even under Google Cookie Placement’s

3

standard, Plaintiffs fail to sufficiently allege a reasonable expectation of privacy and an egregious

4

breach of social norms. Id. at 151. More importantly, Google Cookie Placement was wrongly

5

decided. First, in concluding that plaintiffs had established a legally protected privacy interest,

6

the court erroneously relied on dicta in a case involving a different privacy tort, which does not

7

require the showing of such a legally protected interest. Id. at 151. Second, the court ignored the

8

California Supreme Court’s directive in Hill that individual circumstances limit the reasonable

9

expectation of privacy. Compare id. at 150 (“It is no matter whether or not a given plaintiff had

10

actual, subjective knowledge of her browser settings and the impact of those settings on the

11

defendants’ tracking practices”) with Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1, 36-

12

37 (1994) (observing that “a privacy interest is not independent of the circumstances” and

13

reasoning that “notice,” “consent,” and “awareness” affect the expectations of the individual).24

14

Finally, the court failed to address case law holding that collection of consumer data is not an

15

egregious breach of social norms.25 (See Mot. at 30.)

16

Plaintiffs also cite the Superior Court’s demurrer ruling in Ung v. Facebook, Inc., No. 12-

17

CV-217244 (Cal. Super. Ct. Santa Clara Cnty. July 2, 2012).26 But in its decision, the Ung court

18

relied on United States v. Maynard, 615 F.3d 544, 551 (D.C. Cir 2010), which concerned tracking

19

a person’s physical location, and was affirmed (sub nom U.S. v. Jones) on a theory of physical

20

trespass. Jones, 132 S. Ct. 945, 955 (2012). Maynard thus has little application to whether

21

browsing history is a legally protected privacy interest.

22

acknowledge case law finding a lack of a reasonable expectation of privacy in the type of

23

information at issue here. Moreover, the Ung court did not consider case law binding on this

24

24

25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Also, the Ung court failed to

Under the correct standard, Plaintiffs’ claims fail, as described in the Motion. (Mot. at 31-32.)
Moreover, to the extent that Google Cookie Placement conflicts with Forrester’s holding that
“Internet users have no expectation of privacy in the . . . IP addresses of the websites they visit,”
it must be disregarded. Forrester, 512 F.3d at 510.
26
Plaintiffs halfheartedly argue that Ung “may” be preclusive here (Opp. at 24 n.12), but Ung did
not consider Ninth Circuit case law, as well as other relevant case law and arguments, and, as a
denial of a demurrer, was not a final decision on the merits. See Arduini v. Hart, 774 F.3d 622,
632 (9th Cir. 2014) (“[T]he denial of the motion to dismiss was not a final order.”).
25

21.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

court, including cases raised in Facebook’s Motion (Mot. at 31-33) and this Court’s prior Order.

2

(Order at 12 n.5 (citing, among others, Forrester).)

3

Finally, Plaintiffs selectively rely on Fourth Amendment jurisprudence, but fail to mention

4

Forrester and other case law holding that there is no reasonable expectation of privacy in the type

5

of information at issue here. Neither Riley v. California, 134 S. Ct. 2473 (2014), nor United

6

States v. Jones, 132 S. Ct. 945 (2012), is to the contrary. Riley concluded that the search-

7

incident-to-arrest exception was inapplicable to a cell phone. It did not overturn Supreme Court

8

precedent finding no reasonable expectation of privacy in information voluntarily shared with a

9

third party. United States v. Guerrero, 768 F.3d 351, 358–60 n.7 (5th Cir. 2014). Similarly,

10

Jones merely held that placing a tracking device on a vehicle is a seizure, requiring a warrant.

11

132 S. Ct. at 955. Plaintiffs also cite In re Application for Telephone Information, 2015 WL

12

4594558, at *8 (N.D. Cal. July 29, 2015), but that case shows exactly why Plaintiffs cannot plead

13

a reasonable expectation of privacy here.27 There, the court considered whether a warrant was

14

required to obtain cell phone location information.

15

“voluntarily conveyed” to third parties is not protected by the Fourth Amendment, but reasoned

16

that this principle is inapplicable with respect to cell phone location information not “voluntarily

17

conveyed,” such as information generated by continuously operating apps or automatic pinging.

18

Plaintiffs here voluntarily conveyed referer URLs. See Forrester, 512 F.3d at 510 (holding that

19

the Fourth Amendment does not protect information like IP addresses and to/from addresses that

20

are voluntarily disclosed to direct the routing of information on the Internet).

The court reaffirmed that information

21

I.

22

As with their invasion of privacy claim, Plaintiffs cannot overcome this Court’s prior

23

Order dismissing this claim for lack of a reasonable expectation of privacy. (Order at 12 n.5.)

24

Instead of rebutting Facebook’s authority regarding actionable intrusions and reasonable

25

expectations of privacy (Mot. at 29-30; supra § II.H), Plaintiffs’ Opposition merely repeats the

26

insufficient allegations in the SAC. Plaintiffs also fail to address controlling case law holding

27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs Fail to State a Claim for Intrusion upon Seclusion (Count V)

27

In re Application for Telephone Information is also distinguishable as it concerns location
information, which implicates well-established privacy concerns different from those implicated
here, including invasion of the right to privacy in one’s home. 2015 WL 4594558, at *11.
22.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

that conduct of the sort alleged here is not “highly offensive.” E.g., Low, 900 F. Supp. 2d at 1025

2

(no highly offensive invasion of privacy where defendant allegedly disclosed user browsing

3

history coupled with digital identification information to third parties in violation of its policies).

4

Plaintiffs’ citation to Opperman v. Path, Inc., 87 F. Supp. 3d 1018 (N.D. Cal. 2014), fails because

5

the court there sustained an intrusion claim based on allegations of unauthorized access to

6

personal contact list information on a cell phone. Id. at 1061. Opperman does not suggest that

7

collection of voluntarily disclosed information, as alleged here, could be highly offensive.

8

J.

9

No Reliance on a Contractual Provision. The Opposition, like the SAC, fails to point to

10

a specific contractual provision that Plaintiffs allege has been violated. As this Court has stated:

11

“In an action for breach of a written contract, a plaintiff must allege the specific provisions in the

12

contract creating the obligation the defendant is said to have breached.” Woods v. Google Inc.,

13

2011 WL 3501403, at *3 (N.D. Cal. Aug. 10, 2011) (emphasis added).

Plaintiffs Fail to State a Claim for Breach of Contract (Count VI)

14

The SAC quotes only one so-called “promise” in connection with its breach of contract

15

claim: “When you log out of Facebook, we remove the cookies that identify your particular

16

account.” (SAC ¶ 245.) Such language, Plaintiffs note, was included in Facebook’s “social plug-

17

in discussion” in “one Help Page entry.” (Id. ¶ 23.) The SAC, however, never alleges the URL

18

address where this entry can be found, how one would navigate to it from the SRR, or whether

19

Plaintiffs read this alleged representation before agreeing to the SRR.

20

Plaintiffs seek to overcome these defects by asserting that the Help Center is incorporated

21

into the Privacy Policy which is, in turn, incorporated into the SRR. (Opp. at 31.) But this is at

22

odds with the facts and the law. Only three specific Help Center pages are linked to the Privacy

23

Policy, and none contain the statement Plaintiffs claim was breached, nor concern cookies or

24

social plugins. (Mot. at 35 fn. 19; SAC Exs. E, F, G at 6.) Rather, Plaintiffs ask the Court to

25

incorporate the entire Help Center into the SRR without demonstrating how the page containing

26

the alleged “promise” is even linked to the SRR (if at all). Just because the Help Center appears

27

on Facebook’s website does not make it part of a contract (the SRR) that also happens to appear

28

on the same website. This Court has, in fact, rejected such an attenuated theory of incorporation.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

23.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

Woods, 2011 WL 3501403, at *4 (rejecting incorporation of webpages into contract as being too

2

“difficult to identify the terms of any actual and unambiguous contractual obligations”).28

3

No Performance. Plaintiffs claim that they were not required to plead performance of the

4

contractual obligations identified in Facebook’s Motion based on a distinction between positive

5

and negative contractual obligations, but provide no supporting authority. (Opp. at 32-33.)

6

Regardless, the SRR includes “positive” obligations as well, e.g., the obligation to use a real

7

name. (SAC Exs. A-D at 2.) Unable to identify any allegations of performance in the SAC,

8

Plaintiffs argue that allegations that they “accepted the terms of the contract with Facebook” and

9

“had active Facebook accounts during the entire class period” are sufficient. (Opp. at 32.) But

10

simply agreeing to a contract cannot satisfy the performance element of a breach of contract

11

claim, lest the performance element be entirely eviscerated.29

12

K.

Plaintiffs Fail to State a Claim for Breach of Implied Covenant (Count VII)

13

Plaintiffs concede that their claim for breach of the implied covenant is duplicative of

14

their breach of contract claim (Opp. at 33), but argue that the Court should still consider the

15

implied-covenant claim if “the promises made in the Help Pages or Privacy Policy are deemed

16

not to be contractually binding on Facebook.” (Id.) Plaintiffs provide no authority for using the

17

implied covenant as a mechanism to create obligations that are not present in a contract. Indeed,

18

case law holds precisely the opposite: “the implied covenant of good faith and fair dealing cannot

19

impose substantive duties or limits on the contracting parties beyond those incorporated in the

20

specific terms of their agreement.” Rosenfeld v. JPMorgan Chase Bank N.A., 732 F. Supp. 2d

21

952, 968 (N.D. Cal. 2010) (citation omitted). Plaintiffs’ claim should be dismissed.

22
23
28

24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Plaintiffs’ citation to Chan v. Drexel Burnham Lambert, Inc., 178 Cal. App. 3d 632 (1986), is
unavailing. Chan did not endorse multiple layers of incorporation, and instead required “the
incorporating document to refer to the incorporated document with particularity.” Id. at 643-44
(emphasis added). The SRR does not refer to this alleged help page with particularity (nor does
the SAC).
29
Plaintiffs’ failure to plead any damages caused by the alleged breach is also an independent
basis to dismiss their breach of contract and implied-covenant claims. (Mot. at 35-36, 38.)
Plaintiffs’ reliance on the In re Facebook Privacy Litigation memorandum opinion (Opp. at 32) is
unavailing because of the distinguishable facts alleged there. (See supra at 5 n.5.)
24.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

1

L.

2

Plaintiffs’ larceny claim fails for several reasons. First, cookies and referers are not

Plaintiffs Fail to State a Claim for Larceny (Count XI)

3

“property” under the statute.

4

information” can be property for purposes of this claim (Opp. at 28-29), but ignore that several

5

courts have held the opposite. Cf., e.g., In re Zynga Privacy Litig., 2011 WL 7479170, at *1

6

(N.D. Cal. June 15, 2011), aff’d, 750 F.3d 1098 (9th Cir. 2014) (“[P]ersonally identifiable

7

information does not constitute property for purposes of a UCL claim”); Low, 900 F. Supp. 2d at

8

1026 (same). Moreover, the case Plaintiffs cite, CTC Real Estate Services v. Lepe, 140 Cal. App.

9

4th 856 (2006), dealt with Cal. Penal Code § 530.5, which does not define property, but

10

proscribes obtaining personal information with intent to defraud. Id. at 859-60. And the statute’s

11

definition of personal information includes items like credit card numbers and health care records,

12

not browsing history. Cal. Penal Code § 530.55(b). Second, any cookies and referer URLs (the

13

only things Facebook allegedly received that Plaintiffs object to) were not “stolen,” despite

14

Plaintiffs’ conclusory assertions. (Opp. at 29-30). Referers are sent to Facebook when someone

15

visits a page with Facebook content, i.e., they are created for the very purpose of sending them to

16

Facebook. Similarly, the cookies at issue here were set by Facebook. Plaintiffs rely on a theory

17

of false pretense to turn this standard operation of the Internet into theft (Opp. at 29-30), but that

18

theory fails for the same reasons Plaintiffs’ other fraud theories fail. Third, Facebook did not sell

19

any cookies or referers. Plaintiffs speculate that Facebook charged more to advertisers based on

20

use of this information (Opp. 30), but cites to no such allegation in the SAC. Nor do Plaintiffs

21

cite any case law to support the novel idea that Facebook’s sale of advertising somehow amounts

22

to a sale of the supposed property they allege was stolen.

23

III.

24
25

Plaintiffs also argue that alleged “personally identifiable

CONCLUSION
For these reasons, the Court should grant Facebook’s motion to dismiss with prejudice.

Dated: March 10, 2016

COOLEY LLP

26
27

/s/Matthew D. Brown
Matthew D. Brown
Attorneys for Defendant FACEBOOK, INC.

28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

25.

DEF. FACEBOOK’S REPLY ISO
MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD