In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 146

STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byPerrin Aikens Davis, Brian K. Lentz, Cynthia D. Quinn, Matthew J. Vickery. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C)(Straite, David) (Filed on 5/16/2017)

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Frederic S. Fox (admitted pro hac vice)
David A. Straite (admitted pro hac vice)
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Tel.: [phone]
Fax: [phone]
[e-mail]

Stephen G. Grygiel (admitted pro hac vice)
SILVERMAN THOMPSON
SLUTKIN WHITE LLC
201 N. Charles Street, 26TH Floor
Baltimore, MD 21201
Tel.: [phone]
Fax: [phone]
[e-mail]

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Laurence D. King (206423)
Mario Choi (243409)
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
[e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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No. 5:12-md-02314-EJD
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IN RE: FACEBOOK, INC. INTERNET
TRACKING LITIGATION

PLAINTIFFS’ NOTICE OF NEW AUTHORITY;
REQUEST FOR LEAVE
N.D. Cal. L.R. 7-3(d)
Next CMC: June 29, 2017, 1:00pm

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PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
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Earlier today, May 16, 2017, the privacy regulators of five European countries issued a common

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statement regarding their respective investigations of the privacy implications of Facebook’s use of

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tracking cookies and the Like Button to, among other things, track Internet users without their consent.

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See Common Statement by the Contact Group of Data Protection Authorities of The Netherlands,

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France, Spain, Hamburg and Belgium (English Language Version) (May 16, 2016) (the “Common

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Statement”), attached as Exhibit A. Three regulators (in France, Belgium and the Netherlands) held

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today that Facebook’s practices are unlawful, and investigations by two others (in Germany, via the

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Hamburg DPA, and Spain) continue. Specifically:

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1. The Netherlands: the Dutch Data Protection Authority (the “Autoriteit Persoonsgegevens”)

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has determined that Facebook “violates data protection law” because it uses sensitive

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personal information without user consent in order to show targeted advertisements.

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Common Statement at 2. Simultaneously with the Common Statement, the Dutch DPA

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issued an English Language press release repeating the same conclusion. See Press Release,

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Dutch Data Protection Authority: Facebook Violates Privacy Law (May 16, 2017), attached

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as Exhibit B.

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2. France: the French Commission Nationale de l’Informatique et des Libertes (the “CNIL”)

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today announced monetary sanctions against Facebook due, in part, to “unlawful tracking,

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via the datr cookie, of internet users.” Common Statement at 1. The French regulator

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specifically found that Facebook’s disclosures regarding data collection do not sufficiently

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make clear that users’ “personal data are systemically collected as soon as they navigate on a

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third-party website that includes a social plug-in.” Id. Simultaneously with the release of the

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Common Statement, the CNIL issued an English Language press release providing more

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detail of their investigation and the “public sanction.” Press Release, CNIL, Facebook

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Sanctioned For Several Breaches of the French Data Protection Act (May 16, 2017),

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attached as Exhibit C. Today’s announcement and sanction are an extension of the CNIL’s

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earlier decision regarding the datr cookie and unlawful tracking of Internet users. See CNIL

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Decision dated January 26, 2016, included as Exs. 4 & 5 to the Declaration of Stephen

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Grygiel (ECF Nos. 104-4 and 104-5); see also Plaintiffs’ Opposition to Facebook’s Motion

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to Dismiss at 25 (ECF No. 104) (discussing CNIL investigation and decision).

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3. Belgium: the Belgian Privacy Commission issued new guidance to Facebook “about its

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tracking of users and non-users of Facebook through cookies, social plug-ins and pixels”

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following Facebook’s changes to its practices in 2015 and 2016 following an earlier decision

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of the Belgian Privacy Commission. Common Statement at 1; see also Second Amended

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Complaint at ¶¶ 154-160 (discussing the earlier Belgian decision referenced in the Common

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Statement). Although Facebook made some changes, the Privacy Commission found today

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that “Facebook continues to act in non-compliance with both Belgian and EU data protection

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law as regards the tracking of both users and non-users of Facebook through cookies, social

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plug-ins and pixels.” Common Statement at 1.

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Plaintiffs do not argue that Dutch, French or Belgian law applies in this case. Rather, as pled in

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the Second Amended Complaint, argued in the Opposition to the Motion to Dismiss, and now

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emphasized by multiple privacy regulators, Facebook’s practice of tracking Internet users and

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aggregating personal data is globally condemned when it lacks consent. Tracking and aggregation of

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Internet browsing, without consent, is a breach of social norms and a grave invasion of privacy.

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Plaintiffs therefore respectfully seek leave to provide the Common Statement and the Dutch and French

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press releases as supplemental authority for the Court’s consideration when deciding the pending

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Motion to Dismiss. All three attached documents are provided publicly on the websites of the various

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regulators and are capable of verification.

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[signatures on following page]

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-2PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
No. 5:12-md-02314-EJD

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Dated: May 16, 2017

Respectfully submitted,

KAPLAN, FOX & KILSHEIMER LLP

SILVERMAN, THOMPSON, SLUTKIN &
WHITE LLC

By:
/s/ David A. Straite
Frederic S. Fox (admitted pro hac vice)
David A. Straite (admitted pro hac vice)
850 Third Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
[e-mail]

By: /s/ Stephen G. Grygiel
Stephen G. Grygiel (admitted pro hac vice)
201 N. Charles St., #2600
Baltimore, MD 21201
Telephone [phone]
Facsimile: [phone]
[e-mail]

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Interim Co-Lead Counsel
Laurence D. King (206423)
Mario Choi (243409)
350 Sansome Street, 4th Floor
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
[e-mail]
Interim Co-Lead Counsel

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-3PLAINTIFFS’ NOTICE OF NEW AUTHORITY AND REQUEST FOR LEAVE
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ATTESTATION OF E-FILED SIGNATURE
I, David A. Straite, court-appointed interim lead counsel for the proposed Class, am the ECF user

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whose ID and password are being used to file the foregoing. In compliance with Civil L.R. 5-1(i)(3), I

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hereby attest that Stephen Grygiel has concurred in this filing.

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/s/ David A. Straite

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