In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 162

MOTION to Dismiss Plaintiffs Third Amended Consolidated Class Action Complaint filed by Facebook Inc.. Motion Hearing set for 11/16/2017 09:00 AM in Courtroom 4, 5th Floor, San Jose before Hon. Edward J. Davila. Responses due by 10/13/2017. Replies due by 10/27/2017. (Attachments: #1 Declaration of Matthew D. Brown In Support of Defendant Facebook, Inc.s Motion to Dismiss Plaintiffs Third Amended Consolidated Class Action Complaint, #2 Exhibit 1 to Brown Declaration, #3 Exhibit 2 to Brown Declaration, #4 Exhibit 3 to Brown Declaration, #5 Exhibit 4 to Brown Declaration, #6 Exhibit 5 to Brown Declaration, #7 Exhibit 6 to Brown Declaration, #8 Proposed Order)(Brown, Matthew) (Filed on 9/8/2017)

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
KYLE C. WONG (224021)
([e-mail])
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]
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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Case No. 5:12-md-02314 EJD

In re: Facebook Internet Tracking Litigation

DECLARATION OF MATTHEW D. BROWN
IN SUPPORT OF DEFENDANT FACEBOOK,
INC.’S MOTION TO DISMISS PLAINTIFFS’
THIRD AMENDED CONSOLIDATED CLASS
ACTION COMPLAINT

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DATE:
TIME:
COURTROOM:
JUDGE:
TRIAL DATE:

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November 16, 2017
9:00 a.m.
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Edward J. Davila
None Set

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I, Matthew D. Brown, hereby declare as follows:
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I am an attorney licensed to practice law in the state of California and Partner at

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the law firm of Cooley LLP, counsel of record for defendant Facebook, Inc. I have personal

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knowledge of the facts below and could and would testify competently to them if called as a

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witness.

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2.

During the Rule 26(f) conference between counsel for the parties, held on July 13,

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2012, the parties agreed that Facebook would collect and preserve data up until 90 days after the

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end of the alleged class period, or until December 25, 2011. Attached as Exhibit 1 is a true and

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

BROWN DECLARATION I/S/O DEF. FACEBOOK’S
MTD THIRD AMENDED COMPLAINT
CASE NO. 5:12-MD-02314 EJD

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correct copy of an email memorializing that agreement.

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reviewed, and produced approximately 65,000 pages of documents to Plaintiffs on April 16,

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2014.

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3.

Facebook subsequently collected,

The parties attended a Case Management Conference before the Court on July 28,

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2017. During the CMC, Plaintiffs’ counsel, David Straite, requested “relevant historical Help

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Center pages from the Class Period.” (Tr. at 4:12-13.) Mr. Straite stated that they had identified

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“all of the relevant language of the historical help center pages that we think are part of the

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contract” (Tr. at 3:20-23) and claimed that “to our knowledge every single help center page that’s

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relevant for our claim did appear during the class period.” (Tr. at 3:9-11.) The Court set the

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deadline for Plaintiffs’ to file their third amended complaint on August 25, 2017, noting “if you

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can just get and identify those pages recognizing that they might assist what you already have,

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and it sounds like you have, what I’ve heard you say, we probably have enough today to go

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forward with the complaint.” (Tr. 18:9-12.) Attached as Exhibit 2 is a true and correct copy of

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the transcript of the Case Management Conference.

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4.

After the July 28, 2017 Case Management Conference, Plaintiffs did not contact

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Facebook regarding any Help Center pages until August 14, 2017, when Mr. Straite sent a letter

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following requesting historical versions of four different Facebook pages. Attached hereto as

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Exhibit 3 is a true and correct copy of Mr. Straite’s August 14, 2017 letter.

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5.

After determining that the requested Help Center pages had already been produced

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to Plaintiffs in April 2016, I sent an email to Mr. Straite on August 21, 2017 directing him to the

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bates numbers of the produced documents matching his request. I informed Mr. Straite that all

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but two of these documents post-dated the end of the class period. Attached as Exhibit 4 is a true

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and correct copy of my August 21, 2017 email to Mr. Straite.

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6.

On August 22, 2017, three days before Plaintiffs’ third amended complaint was

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due to be filed, Mr. Straite sent me another email requesting production of further Help Center

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pages. On August 24, 2017, I responded to Mr. Straite via email, explaining that Facebook would

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produce the requested pages. Attached as Exhibit 5 is a true and correct copy of Mr. Straite’s

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

BROWN DECLARATION I/S/O DEF. FACEBOOK’S
MTD THIRD AMENDED COMPLAINT
CASE NO. 5:12-MD-02314 EJD

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August 22, 2017 email and my August 24, 2017 response to him. The requested pages were

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produced to Mr. Straite via secure FTP.

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7.

Attached as Exhibit 6 is a true and correct copy of the Facebook Statement of

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Rights and Responsibilities as it appeared at the following URL on September 8, 2017:

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https://www.facebook.com/legal/terms.

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8.

I declare under penalty of perjury that the foregoing is true and correct.

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Executed on September 8, 2017 at San Francisco, California.

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/s/ Matthew D. Brown
Matthew D. Brown

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

BROWN DECLARATION I/S/O DEF. FACEBOOK’S
MTD THIRD AMENDED COMPLAINT
CASE NO. 5:12-MD-02314 EJD