In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 177

Administrative Motion to File Under Seal Stipulation and [Proposed] Order Requesting Limited Redaction of November 16, 2017 Hearing Transcript filed by Facebook Inc.. (Attachments: #1 Declaration of Kyle C. Wong in Support of Stipulation, #2 Exhibit A, #3 Exhibit B)(Brown, Matthew) (Filed on 12/13/2017)

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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]

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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. 12-md-02314 EJD
DECLARATION OF KYLE C. WONG IN
SUPPORT OF STIPULATION AND
[PROPOSED] ORDER REQUESTING
LIMITED REDACTION OF NOVEMBER 16,
2017 HEARING TRANSCRIPT

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JUDGE:
COURTROOM:

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Edward J. Davila
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REDACTED

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Exhibit A

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

156980068

NAUGLE DECL. I/S/O REQUEST TO REDACT
NOV 16, 2017 HEARING TRANSCRIPT
CASE NO. 12-MD-02314 EJD

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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IN RE FACEBOOK INTERNET
TRACKING LITIGATION

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_______________________________

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5:12-MD-02314-EJD
SAN JOSE, CALIFORNIA
NOVEMBER 16, 2017
PAGES 1-55

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE EDWARD J. DAVILA
UNITED STATES DISTRICT JUDGE

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A P P E A R A N C E S:

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FOR THE PLAINTIFF:

BY: STEPHEN G. GRYGIEL
SILVERMAN THOMPSON SLUTKIN WHITE
26TH FLOOR, 201 NORTH CHARLES ST.
BALTIMORE, MD 21201

FOR THE PLAINTIFF:

BY: DAVID A. STRAITE
KAPLAN FOX & KILSHEIMER LLP
850 THIRD AVENUE, 14TH FLOOR
NEW YORK, NY 10022

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APPEARANCES CONTINUED ON THE NEXT PAGE
OFFICIAL COURT REPORTER:

SUMMER FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

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PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY
TRANSCRIPT PRODUCED WITH COMPUTER

UNITED STATES COURT REPORTERS

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APPEARANCES CONTINUED:

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FOR THE DEFENDANT:

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BY:

MATTHEW DEAN BROWN
LAUREN POMEROY
COOLEY LLP
101 CALIFORNIA ST. FLR 5
SAN FRANCISCO, CA 94111

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UNITED STATES COURT REPORTERS

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SAN JOSE, CALIFORNIA

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NOVEMBER 16, 2017

P R O C E E D I N G S
(COURT CONVENED AT 9:02 A.M.)

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THE COURT:

AND WE WILL CALL OUR MORNING CALENDAR.

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THIS IS 12-MD-2314.

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THE COURT:

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MR. GRYGIEL:

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LIKE TO MENTION IN THIS CASE, AS YOUR HONOR IS AWARE, WE HAVE

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SOME DOCUMENTS THAT HAVE BEEN PROVIDED TO THE COURT UNDER SEAL.

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THEY WILL ALMOST CERTAINLY BE REFERRED TO TODAY DURING THE

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COURSE OF THE ARGUMENT, BY ONE SIDE OR THE OTHER, PERHAPS

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GENERALLY, PERHAPS MORE SPECIFICALLY.

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THIS MIGHT BE A CASE WHERE WE ARE KEEPING THE COURTROOM CLOSED

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UNTIL WE ARE DONE.

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IT MAY BE POSSIBLE FOR YOU TO MAKE YOUR ARGUMENT WITHOUT

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EXPOSING THE CONTENT.

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MR. GRYGIEL:

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ANY DIFFICULTY WITH THE OTHER SIDE ABOUT MENTIONING A DOCUMENT

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THEY THOUGHT I SHOULDN'T MENTION.

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FACEBOOK INTERNET TRACKING CASE.

MAY I HAVE APPEARANCES, PLEASE.
MR. GRYGIEL:

GOOD MORNING, YOUR HONOR.

STEVE GRYGIEL FOR THE PLAINTIFFS.

WITH ME IS MY

COLLEAGUE, DAVID STRAITE, WHOM I'M SURE YOU REMEMBER.

THE COURT:

THE COURT:

YES, THANK YOU.

GOOD MORNING.

YOUR HONOR, BEFORE I SIT DOWN, I WOULD

AND I THOUGHT WITH THAT,

WELL, I RECOGNIZE THAT, I JUST WANT TO --

IT MAY BE BUT, I DIDN'T WANT TO ATTRACT

WELL, THANK YOU.

UNITED STATES COURT REPORTERS

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MR. BROWN, DO YOU INTEND TO REVEAL SECRETS HERE?

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PROTECTIVE ORDER THAT THE GOVERNS THIS.

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TIME HEARING OF THIS.

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MR. BROWN:

I DO.

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THE COURT:

OKAY.

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MR. GRYGIEL:

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THERE ARE SOME PORT PARTS OF THESE DOCUMENTS I DO WANT TO REFER

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TO.

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I CAN CERTAINLY DESCRIBE THEM IN A WAY THAT DOESN'T

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PARTICULARLY IDENTIFY A SPEAKER AND DOESN'T PARTICULARLY

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IDENTIFY A TIME.

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THE COURT:

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MR. GRYGIEL:

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THE COURT:

SURE.

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MR. BROWN:

WELL, YEAH, TO BE CLEAR, IT SHOULDN'T BE

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MR. BROWN:

I DO NOT INTEND TO DO THAT.

I THOUGHT THAT THERE HAD BEEN A PROVISION OF THE
AND THIS IS THE FIRST

I THOUGHT I TOOK PRIOR NOTICE OF THAT.

SO I WOULD OBJECT TO, OBVIOUSLY, DISCUSSING ANY
CONFIDENTIAL INFORMATION IN OPEN COURT.
THE COURT:

AND DO YOU THINK IT'S POSSIBLE TO

ACCOMPLISH YOUR ARGUMENT WITHOUT DOING THAT?

WELL, YOUR HONOR, IN MY CASE FRANKLY,

THEY ARE QUITE TELLING.

THEY ARE IMPORTANT TO OUR CASE.

YOUR HONOR HAS THEM AS EXHIBITS, AND THAT MAY BE VERY WELL
SUFFICIENT TO DIRECT THE COURT'S ATTENTION TO THEM.
I THINK THAT WOULD SUFFICE, YEAH.
WELL, IF WE GET INTO A PROBLEM AREA,

MR. BROWN CAN LET ME KNOW.

MY BURDEN TO LET HIM KNOW AFTER HE'S DISCUSSED CONTENTS OF A

UNITED STATES COURT REPORTERS

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CONFIDENTIAL DOCUMENT.

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PEOPLE'S NAMES OR THE AUTHORS OF THE DOCUMENTS, IT'S THE

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CONTENTS.

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LOOKED AT THIS, AND I HAVE AN INCLINATION OF WHAT YOU ARE

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SPEAKING ABOUT, BUT I DO THINK WE CAN ACCOMPLISH THE

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CONVERSATION THIS MORNING WITHOUT SPECIFIC REFERENCE.

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PLEASE BE SEATED.

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WELL, THIS IS FACEBOOK'S MOTION.

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OR MS. POMEROY BE MAKING ANY ARGUMENT?

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WILL MAKE THE ARGUMENT WHEN HE ARRIVES.

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MR. BROWN:

YES.

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THE COURT:

WE COULD WAIT FOR HIM IF YOU WOULD LIKE.

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MR. BROWN:

THAT'S OKAY.

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BAD ACCIDENT ON 280 THIS MORNING, IT WAS HOLDING A BUNCH OF

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PEOPLE UP.

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THE COURT:

AND IT'S NOT JUST ABOUT WITHHOLDING

UNDERSTOOD.

WELL, I THINK WE CAN -- I'VE READ YOUR PLEADINGS AND I'VE

MR. GRYGIEL:

I THINK WE CAN MANAGE IT, YOUR HONOR.

THE COURT:

MR. BROWN, THERE'S SOMEONE ELSE AT YOUR

MR. BROWN:

SO MATT BROWN FOR FACEBOOK, AND JOINED BY

TABLE.

LAUREN POMEROY.
THE COURT:

THE COURT:

THANK YOU.

GOOD MORNING.

THANK YOU.
SO MR. BROWN, WOULD YOU
OR PERHAPS MR. WONG

I UNDERSTAND THERE WAS A

SO WHY SHOULD THIS MOTION BE GRANTED?

GUESS THAT'S MY QUESTION.

UNITED STATES COURT REPORTERS

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MR. BROWN:

AND THAT GOES TO THE HEART OF WHY WE ARE

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THE SECOND AMENDED COMPLAINT, AND THAT ORDER DEALT WITH A WHOLE

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ARRAY OF CLAIMS, ONLY TWO OF WHICH ARE THE ONES THAT WE ARE

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DEALING WITH STILL HERE.

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COVENANT CLAIM, YOUR HONOR DISMISSED THOSE WITH LEAVE TO AMEND.

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AND IN DOING SO, SAID A COUPLE DIFFERENT THINGS THAT ARE

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IMPORTANT HERE.

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THINGS THEY SHOULD KEEP IN MIND AS THEY AMEND.

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AND THAT IS, THE FIRST THING WAS, POINT TO WHAT TERMS IN

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THE STATEMENTS OF RIGHTS AND RESPONSIBILITIES YOU CONTEND WERE

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BREACHED.

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OUTSIDE OF THE STATEMENT OF RIGHTS AND RESPONSIBILITIES THAT IS

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SOMEHOW INCORPORATED BY REFERENCE, THEN EXPLAIN HOW, WITH

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SPECIFICITY, THAT DOCUMENT IS INCORPORATED.

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TO SHOW WHAT TRAIL OF LINKS YOU WOULD NEED TO FOLLOW TO GET

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FROM THE SRR, TO THE PARTICULAR, LET'S SAY, HELP CENTER PAGE

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THAT YOU MIGHT BE RELYING ON.

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HERE TODAY.
SO YOUR HONOR WILL RECALL IN THE PREVIOUS ORDER DISMISSING

FOR THE BREACH OF CONTRACT CLAIM AND THE BREACH OF IMPLIED

IN A SENSE, DIRECTIONS TO THE PLAINTIFFS ON

THE STATEMENTS OF RIGHTS AND RESPONSIBILITIES IS THE
CONTRACT BETWEEN FACEBOOK AND ITS USERS.
SECONDLY, IF YOU ARE CONTENDING THAT THERE'S SOME DOCUMENT

AND FOR EXAMPLE, ONE WAY IN WHICH YOU MIGHT SHOW THAT IS

SO THAT WAS SORT OF THE DIRECTIVE GIVEN IN THE LAST ORDER.

UNITED STATES COURT REPORTERS

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AND THAT'S, OF COURSE, CONSISTENT WITH A WHOLE LONG LINE OF

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CASE LAW BEARING ON THE DOCTRINE OF INCORPORATION BY REFERENCE

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WHICH HOLDS THAT THE REFERENCE MUST BE CLEAR AND UNEQUIVOCAL,

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THE REFERENCE MUST BE CALLED TO THE ATTENTION OF THE OTHER

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PARTY, AND THE TERMS OF ANY INCORPORATED DOCUMENT MUST BE KNOWN

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TO THE PARTIES.

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LAW.

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AND WE NEED TO MAKE SURE THAT WHAT -- ONE OF THE PARTIES IN THE

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CASE IS INTENDING A CONTRACT IS, IS ACTUALLY THE CONTRACT THAT

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WAS AGREED TO AND WAS KNOWN AND CONSENTED TO BY BOTH PARTIES.

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THE END OF JULY, PLAINTIFFS HAD REQUESTED A CASE MANAGEMENT

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CONFERENCE WHICH YOUR HONOR GRANTED, AND YOU WILL RECALL WE HAD

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A LONG CONVERSATION ABOUT HELP CENTER PAGES.

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STATEMENTS IN THE HELP CENTER, AT LEAST WHAT THEY BELIEVED WAS

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THE HELP CENTER, IN THE CLASS PERIOD THAT THEY WERE GOING TO

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RELY ON.

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HISTORICAL VERSIONS OF THOSE HELP CENTER PAGES.

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APPARENTLY IDENTIFIED THESE USING THE WAY BACK MACHINE OR

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SOMETHING LIKE THAT.

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AND WHY IS THAT?

IT GOES RIGHT TO THE HEART OF CONTRACT

WE ARE TRYING TO EFFECTUATE THE INTENT OF THE PARTIES.

SO YOU WILL RECALL THAT WE CAME BEFORE YOUR HONOR LAST AT

AND PLAINTIFFS SAID THAT THEY HAD IDENTIFIED ALL THE

AND THEY ASKED THE COURT TO ORDER FACEBOOK TO PRODUCE
NOW THEY HAD

SO WE LEFT THE COURTHOUSE THAT DAY, AND A WEEK PASSED, TWO
WEEKS PASSED, NO WORD FROM THE PLAINTIFFS.

UNITED STATES COURT REPORTERS

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SOME 17 DAYS LATER, WE GOT THE REQUEST, WHICH WAS A LITTLE

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SURPRISING TO ME, GIVEN THAT WE HAD HEARD THAT THEY HAD ALREADY

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IDENTIFIED THE LANGUAGE THAT WAS SUPPOSEDLY PART OF THE

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CONTRACT THAT THEY ARE SUING OVER HERE.

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PAGES THAT WE ARE GOING TO RELY ON.

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AND SEARCHED FOR HISTORICAL VERSIONS OF THOSE PAGES.

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RESPECT TO THE OTHER THREE, WE CAME TO LEARN THAT ALL OF THOSE

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PAGES HAD ALREADY BEEN PRODUCED TO THE PLAINTIFFS EARLIER IN

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DISCOVERY IN THE CASE.

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MAKE IT REALLY EASY.

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THAT THE MAJORITY OF THOSE PAGES WERE ACTUALLY DATED AFTER THE

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CLASS PERIOD, AND THEREFORE, WERE NOT RELEVANT.

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IMPORTANT CONTEXT FOR THE THIRD AMENDED COMPLAINT THAT WAS

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LATER FILED.

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POSTDATE THE CLASS PERIOD PROPOSED IN THE SECOND AMENDED

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COMPLAINT.

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INQUIRY.

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OF HELP CENTER PAGES MIGHT EXIST, OTHER THAN THE ONES ALREADY

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PRODUCED.

SO WE GOT THE LETTER AND THEY SAID, HERE ARE THE FOUR

AND WE REPORTED BACK TO THEM.

SO WE DID OUR DILIGENCE

IN ONE INSTANCE, THE

LANGUAGE WAS NOT EVER FOUND IN THE HELP CENTER.

AND THEN WITH

SO WE POINTED THAT OUT AND GAVE THEM THE BATES NUMBERS TO
AND WE NOTED IN GETTING BACK TO THEM,

I THEN GOT AN E-MAIL BACK, WHICH I THINK IS TELLING AND

AND IT SAYS, AS YOU NOTE, SEVERAL OF THE PRODUCED PAGES

AND PERHAPS INARTFULLY, THAT WAS THE POINT OF OUR

WE NEED TO CONFIRM WHETHER OLDER HISTORICAL VERSIONS

UNITED STATES COURT REPORTERS

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IN OTHER WORDS, WE ARE LOOKING FOR PAGES WITHIN THE CLASS

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PERIOD.

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ANY HELP CENTER PAGES THAT CONTAIN THE LANGUAGE FROM THE FIRST

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SENTENCE OF THE FIRST PARAGRAPH IN EXHIBIT A TO MY LETTER.

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MATERIALLY SIMILAR APPEARED IN THE HELP CENTER PRIOR TO

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SEPTEMBER 27, 2011."

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A REASONABLE SEARCH AND WE DID NOT FIND ANY HISTORICAL PAGES

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THAT PREDATED WHAT WE HAD ALREADY PRODUCED.

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WITHIN THE CLASS PERIOD AND MAKING SPECIFIC FOLLOW-UP REQUESTS

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WITH RESPECT TO, APPARENTLY, THE ONE THAT THEY WERE REALLY

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INTERESTED IN, AND WE TOLD THEM THAT THERE WAS NOTHING MORE

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THERE.

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BEFORE THE COMPLAINT WAS DUE, I GOT ANOTHER REQUEST SAYING,

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JUST TODAY, WE LEARNED OF YET ANOTHER STATEMENT WHICH WE ARE

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APPARENTLY GOING TO CONTEND IS PART OF THIS CONTRACT THAT WE

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ARE SUING OVER.

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DAYS LEFT, BUT WE KICKED IT INTO HIGH GEAR AND DID OUR

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DILIGENCE AND GOT BACK TO THEM WITH THAT.

IN PARTICULAR, IF THEY EXIST, WE NEED PRODUCTION OF

"CAN YOU CONFIRM WHETHER OR NOT THAT LANGUAGE OR LANGUAGE

BECAUSE YOU WILL REMEMBER THAT THE CLASS PERIOD ENDED ON
SEPTEMBER 26, 2011.
AND WE DID OUR DILIGENCE, AND I RESPONDED THAT WE HAD DONE

SO WHAT WE HAVE HERE IS PLAINTIFFS LOOKING FOR LANGUAGE

SO I THOUGHT THAT WAS THE END OF IT, BUT THEN THREE DAYS

AND I SAID THAT THIS IS COMING QUITE LATE, WITH ONLY THREE

UNITED STATES COURT REPORTERS

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SO I LAY ALL THAT FOUNDATION JUST AS, A SOMEWHAT TABLE

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SETTING, BUT I THINK IMPORTANT CONTEXT FOR THEN WHAT YOU SEE IN

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THE THIRD AMENDED COMPLAINT.

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THE CLASS PERIOD THAT THEY CAN HANG THEIR HAT ON, AND EVEN

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COMING BACK THREE DAYS BEFORE THE COMPLAINT IS DUE, YET LOOKING

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STILL MORE FOR SUCH A STATEMENT.

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REFERENCES TO THE STATEMENT OF RIGHTS AND RESPONSIBILITIES, NO

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CITATION OF A PARTICULAR PARAGRAPH OR SECTION NUMBER OF THE

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STATEMENT OF RIGHTS AND RESPONSIBILITIES, NO QUOTATION FROM

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LANGUAGE OF THE STATEMENT OF RIGHTS AND RESPONSIBILITIES.

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THERE ARE NO SPECIFIC HELP CENTER TERMS, SPECIFICALLY

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IDENTIFIED IN COUNT 1, OR EVEN CITED.

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GENERAL, THERE'S KIND OF A CHARACTERIZATION OF WHAT THE SUPPOSE

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ED PROMISE WAS.

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OF HELP CENTER PAGES THAT ARE CITED OR QUOTED FROM, AS SORT OF

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A JUMBLE OF THEM.

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ASSOCIATED WITH ANY OF THEM, AT LEAST WITHIN THE BODY OF THE

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COMPLAINT.

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WITH THE COURT'S EARLIER ORDER, OBVIOUSLY THIS COMPLAINT HAS TO

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BE ASSESSED ON ITS OWN.

WE HAVE THE PLAINTIFFS SEARCHING FOR A STATEMENT WITHIN

THEN COMES THE THIRD AMENDED COMPLAINT.

AND IF YOU LOOK

AT COUNT 1, THE BREACH OF CONTRACT COUNT, THERE ARE NO SPECIFIC

THIS IS ALL VERY

EARLIER IN THE THIRD AMENDED COMPLAINT, THERE ARE A NUMBER

BUT INTERESTINGLY, THERE WERE NO DATES

SO THAT ALONE, I WOULD CONTEND IS CERTAINLY NOT CONSISTENT

BUT ONE WOULD HAVE THOUGHT GIVEN THE

UNITED STATES COURT REPORTERS

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INSTRUCTION GIVEN IN THE EARLIER ORDER, THAT YOU WOULD HAVE

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SEEN SPECIFIC DATES ASSOCIATED WITH EACH OF THOSE SUPPOSED

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PROMISES THAT SUPPOSEDLY MADE UP THE CONTRACT.

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HAVE THE THAT.

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COMPLAINT, AND I CAN BE CORRECTED IF I'M WRONG ABOUT THIS, BUT

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I BELIEVE IT'S DATED IN MAY OF 2011.

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NEW COMPLAINT IS DATED MAY 24TH, 2011.

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FROM THE FOUR CORNERS OF THE COMPLAINT, WE KNOW THAT LOOKING AT

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A TINY LITTLE DATE THAT'S ON THE DOCUMENT THAT'S ATTACHED AS AN

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EXHIBIT TO THE COMPLAINT.

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SO JUST AS SORT OF A SIDE NOTE, I MEAN, LITERALLY THE

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FIRST HELP CENTER PAGE IS DATED OVER A YEAR AFTER THE CLASS

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PERIOD SUPPOSEDLY STARTED.

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WAS AGREED TO BY THE PUTATIVE CLASS MEMBERS BEFORE MAY 22ND,

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2011, BETWEEN APRIL 22ND, 2010 AND MAY 24TH, 2011, WE ARE NOT

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SURE.

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BUT WE DIDN'T

AS BECAME CLEAR THROUGHOUT BRIEFING, AS YOUR HONOR HAS
SEEN, THE FACT THAT THE DATES ARE ALL OVER THE PLACE.
I THINK THE FIRST HELP CENTER PAGE THAT'S CITED IN THE

NOW YOU WILL RECALL THAT THE BEGINNING DATE OF THE CLASS
PERIOD WAS APRIL 22ND, I BELIEVE, OF 2010.
YES.

SO THE CLASS PERIOD HAD BEEN APRIL 22ND, 2010, TO

SEPTEMBER 26, 2011.
THE VERY FIRST HELP CENTER PAGE THAT I'M AWARE OF IN THE
AND WE DON'T KNOW THAT

WHICH HELP CENTER PAGE SUPPOSEDLY

BUT IN ANY EVENT, MY MAIN POINT WAS THAT THE DATES WERE

UNITED STATES COURT REPORTERS

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ALL OVER THE PLACE.

AND SEVERAL OF THE HELP CENTER PAGES ARE,

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IN FACT, DATED AFTER THE CLASS PERIOD, AND WITH QUITE DIFFERENT

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LANGUAGE.

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AND SO AFTER PLAINTIFFS SEARCHED MIGHTILY FOR LANGUAGE

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WITHIN THE CLASS PERIOD, AND AFTER YOUR HONOR HAD EXPLAINED

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THAT THEY NEEDED TO IDENTIFY WITH SPECIFICITY AND WITH DATES,

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THE CONTRACT TERMS THAT THEY WERE RELYING ON, WE END UP WITH A

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THIRD AMENDED COMPLAINT THAT HAS SORT OF A JUMBLE OF HELP

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CENTER PROVISIONS CITED OR QUOTED.

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THEM.

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INCLUDING DATES THAT POSTDATE THE CLASS PERIOD.

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SEPTEMBER 26, 2011 AS THE END OF THE CLASS PERIOD.

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ARE NOW SAYING WELL, GOSH, NOW THERE ACTUALLY IS NO END DATE,

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AND THAT'S TO BE DETERMINED LATER.

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PROVISIONS, WHICH ARE REALLY HELP CENTER PAGES, THEY HAVE NOW

09:16:17

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JUST DONE AWAY WITH THE LAST DATE OF THE CLASS PERIOD.

09:16:23

21

09:16:31

22

THE SITUATION WE HAVE HERE IS A STATEMENT OF RIGHTS AND

09:16:34

23

RESPONSIBILITIES THAT DOES NOT MAKE REFERENCE TO THE HELP

09:16:39

24

CENTER WHATSOEVER.

09:16:43

25

TO CONCEDE THAT AS A FACT.

NO DATES ASSOCIATED WITH

AND IN FACT, DATES THAT ARE ALL OVER THE PLACE,

AND SO PLAINTIFFS DECIDED TO JUST ELIMINATE THE LAST DAY
OF THE CLASS PERIOD.
SO WE NOW NO LONGER HAVE A COMPLAINT THAT HAS
PLAINTIFFS

SO IN ORDER TO RELY ON THE SUPPOSED CONTRACTURAL

SO THAT NOW LEADS US TO INCORPORATION BY REFERENCE.

AND

I THINK PLAINTIFFS WOULD JUST SIMPLY HAVE

UNITED STATES COURT REPORTERS

13

09:16:46

1

SO THERE'S CERTAINLY NO INCORPORATION BY REFERENCE INTO

09:16:49

2

THE STATEMENT OF RIGHTS AND RESPONSIBILITIES, WHICH IS IN FACT

09:16:51

3

THE CONTRACT BETWEEN FACEBOOK AND ITS USERS.

09:16:56

4

IS REALLY SORT OF A DAISY CHAIN OF INCORPORATION THEORY, AS I

09:17:01

5

WOULD CALL IT.

09:17:02

6

09:17:05

7

INCORPORATED BY REFERENCE INTO THE STATEMENT OF RIGHTS AND

09:17:07

8

RESPONSIBILITIES, AND THEN THESE PARTICULAR HELP CENTER PAGES

09:17:12

9

ARE INCORPORATED BY REFERENCE INTO THE PRIVACY POLICY.

09:17:16

10

THROUGH SORT OF A TRANSITIVE SORT OF PROPERTY HERE, OR A DAISY

09:17:21

11

CHAIN OF INCORPORATION TYPE THEORY, THESE HELP CENTER PAGES ARE

09:17:25

12

SOMEHOW INCORPORATED INTO THE STATEMENT OF RIGHTS AND

09:17:27

13

RESPONSIBILITIES.

09:17:28

14

09:17:30

15

09:17:31

16

09:17:33

17

09:17:34

SO WHAT WE HAVE

AND THEY ARGUE THAT WELL, FIRST, THE PRIVACY POLICY IS

SO

THE COURT:

COULD THAT EVER WORK?

IS THAT EVER

MR. BROWN:

ONLY IN THE MOST EXTREME CIRCUMSTANCES.

18

THE COURT:

HOW WOULD THAT BE POSSIBLE?

09:17:35

19

MR. BROWN:

WELL, YOU KNOW, THE STANDARD IS THAT IT'S

09:17:38

20

GOT TO BE CLEAR AND UNEQUIVOCAL AND IT'S GOT TO BE BROUGHT TO

09:17:42

21

THE ATTENTION OF THE OTHER PARTY.

09:17:44

22

THAT, RIGHT.

09:17:45

23

09:17:51

24

WELL, LET'S SPEAK HYPOTHETICALLY.

09:17:56

25

SUPPOSE, THAT SAID DOCUMENT NUMBER 2 IS HEREBY INCORPORATED BY

POSSIBLE?

I MEAN --

AND THEY HAVE TO ASSENT TO

SO YOU COULD IMAGINE AN EXTREME SITUATION WHERE THE SRR -YOU COULD HAVE A CONTRACT, I

UNITED STATES COURT REPORTERS

14

09:18:01

1

REFERENCE INTO THIS CONTRACT, BOTH PARTIES SIGN THE CONTRACT OR

09:18:06

2

ASSENT TO IT IN WHATEVER WAY.

09:18:08

3

09:18:12

4

DOCUMENT NUMBER 2 SAY, BY THE WAY, IN THIS DOCUMENT, TERMS OF

09:18:19

5

DOCUMENT NUMBER 3 ARE HEREBY INCORPORATED BY REFERENCE AND

09:18:22

6

INCORPORATED BY REFERENCE INTO THE CONTRACT.

09:18:28

7

I WOULD ARGUE THAT YOU MIGHT EVEN NEED THAT LEVEL OF

09:18:31

8

CLARITY, OTHERWISE IT'S NOT COMPLETELY CLEAR WHETHER THE INTENT

09:18:35

9

IS REALLY JUST TO INCORPORATE INTO THE STAND-ALONE DOCUMENT

09:18:39

10

NUMBER 2, OR WHETHER IT'S TRULY INTENDED TO RELATE BACK TO KIND

09:18:42

11

OF THE ASSENTED TO CONTRACT.

09:18:44

12

09:18:49

13

GOING TO SORT OF SAY IN THE ABSTRACT THAT WHATEVER SET OF FACTS

09:18:53

14

MIGHT COME BEFORE THE COURT, THAT THAT WOULD IN FACT SATISFY

09:18:57

15

IT, BUT I'M TRYING TO GIVE YOU A STRAIGHT ANSWER TO YOUR

09:19:00

16

QUESTION.

09:19:03

17

WHAT WE HAVE HERE.

09:19:04

18

09:19:06

19

REASON THE LAW REQUIRES CLARITY AND UNEQUIVOCAL LANGUAGE IS

09:19:10

20

BECAUSE WE AVOID THIS TYPE OF POSSIBLE CONFUSION WITH TERMS.

09:19:15

21

09:19:16

22

09:19:20

23

DAISY CHAIN THEORY OF INCORPORATION.

09:19:23

24

INSTANCES WHERE A DEFENDANT MIGHT FOR ITS OWN ADVANTAGE, AND

09:19:29

25

THE PLAINTIFF MIGHT THINK IT'S QUITE UNFAIR.

YOU COULD THEN, IN A VERY CLEAR, CONSPICUOUS PLACE IN

YOU COULD IMAGINE SOME SITUATION LIKE THAT, AND I'M NOT

BUT IT'S NOT WHAT WE HAVE, IT'S NOT EVEN CLOSE TO

THE COURT:

MR. BROWN:

SO WHAT I HEAR YOU SAYING IS THAT THE

SURE.

AND HERE IT'S THE PLAINTIFF THAT'S TRYING TO ENGAGE IN THE
BUT YOU COULD IMAGINE

UNITED STATES COURT REPORTERS

15

09:19:32

1

THE COURT:

WHAT HAPPENS IN THE -- I'M SORRY TO

09:19:34

2

09:19:36

3

BUT I'M JUST CURIOUS IN THE CONTEXT OF, I DON'T KNOW HOW

09:19:39

4

TO DESCRIBE IT, IN THE CONTEXT OF ELECTRONIC -- THIS BUSINESS

09:19:45

5

WHERE THESE TERMS CHANGE FREQUENTLY, THE SRR SOMETIMES CHANGE,

09:19:52

6

THERE ARE UPGRADES TO SOFTWARE, UPGRADES TO WHATEVER THE

09:19:57

7

PROGRAM IS OR WHATEVER THE FUNCTION IS, AND I THINK THAT'S

09:20:02

8

PRETTY COMMON KNOWLEDGE THAT THAT HAPPENS, PEOPLE RECEIVE, OH,

09:20:06

9

HERE'S YOUR NEW TERMS AND CONDITIONS.

09:20:09

10

09:20:12

11

TO THE BOTTOM WITHOUT READING ALL THAT GOOD WORK THAT PEOPLE

09:20:15

12

LIKE YOU AND YOUR FIRMS PUT IN AND ALL OF THAT, AND THEN CLICK

09:20:18

13

THE BUTTON.

09:20:23

14

09:20:26

15

09:20:28

16

I MEAN, WHAT YOU'RE BASICALLY HAVING IS YOU ARE HAVING A NEW --

09:20:33

17

YOU ARE HAVING A MECHANISM FOR A NEW ASSENT TO A NEW CONTRACT

09:20:38

18

OR AT LEAST AN AMENDMENT TO A CONTRACT, RIGHT.

09:20:41

19

SO ALL THE PRINCIPLES OF CONTRACT LAW WOULD APPLY.

09:20:45

20

THERE EITHER NEEDS TO BE SOME SHOWING THAT THERE WAS ACTUALLY

09:20:49

21

ASSENT BETWEEN THE TWO PARTIES.

09:20:50

22

THE COURT:

THAT'S THE CLICK OF THE BUTTON.

09:20:52

23

MR. BROWN:

EXACTLY.

09:20:54

24

09:20:55

25

INTERRUPT YOU, MR. BROWN.

AND YOU KNOW, AS WE KNOW, PEOPLE TYPICALLY DO, THEY SCROLL

DOES THAT CHANGE HOW WE LOOK AT THINGS THEN?
MR. BROWN:

WELL, YOU KNOW, IN A SITUATION LIKE THAT,

AND

IT'S USUALLY THE CLICK OF A

BUTTON.
BUT HERE WHAT WE ARE TALKING ABOUT IS LITERALLY, IT'S A

UNITED STATES COURT REPORTERS

16

09:20:57

1

HELP CENTER BY ITS NAME, IT IS A HELP CENTER ON A WEBSITE.

AND

09:21:02

2

THESE HELP CENTER PAGES ARE CONSTANTLY CHANGING AND EVOLVING,

09:21:07

3

PROBABLY ON A MONTHLY OR MAYBE EVEN WEEKLY BASIS IN SOME

09:21:13

4

INSTANCES.

09:21:14

5

09:21:21

6

THE ENTIRETY OF THE HELP CENTER IS SOMEHOW INCORPORATED BY

09:21:22

7

REFERENCE, FIRST IN THE PRIVACY POLICY, AND THEN SOMEHOW FROM

09:21:26

8

THERE, INTO THE STATEMENTS OF RIGHTS AND RESPONSIBILITIES.

09:21:28

9

09:21:33

10

09:21:37

11

09:21:39

12

SAY THERE'S REFERENCE TO THE HELP CENTER IN SOME OF THE

09:21:42

13

LANGUAGE.

09:21:43

14

09:21:46

15

09:21:46

16

09:21:51

17

REFERRED TO IN THE COMPLAINT.

09:21:58

18

PRIVACY POLICY REFER SPECIFICALLY TO THE HELP CENTER, AS WE

09:22:01

19

UNDERSTAND IT, AS WE WOULD CONSIDER THE HELP CENTER.

09:22:04

20

09:22:09

21

LOWER CASE H, LOWER CASE P, THAT REFER USERS TO DIFFERENT TOOLS

09:22:15

22

THEY CAN USE TO CUSTOMIZE FACEBOOK OR PROVIDE ADVICE ON HOW TO

09:22:20

23

CHANGE PASSWORDS AND THINGS LIKE THAT.

09:22:22

24

09:22:26

25

AND WHAT THEY ARE ASKING YOU TO DO IS ACTUALLY FIND THAT

SO IMAGINE THE QUAGMIRE WE WOULD GET INTO IN TERMS OF
FIGURING OUT WHAT THE CONTRACT IS AT ANY GIVEN TIME.
THE COURT:

MR. BROWN:

AND YOU SUGGEST THEY DO THAT BECAUSE THEY

AND SO LET ME LAY THAT OUT EVEN MORE

CLEARLY.
SO THERE ARE THREE VERSIONS OF THE PRIVACY POLICY THAT ARE
NONE OF THOSE VERSIONS OF THE

THERE ARE SOME REFERENCES TO THINGS CALLED HELP PAGES,

BUT FIRST OF ALL, WE WOULDN'T -- WE WOULD SAY THAT THOSE
ARE NOT ACTUALLY REFERENCES TO THE HELP CENTER.

UNITED STATES COURT REPORTERS

BUT EVEN IF

17

09:22:29

1

YOU THOUGHT THEY WERE, NONE OF THOSE PAGES ARE AT ISSUE, RIGHT.

09:22:33

2

09:22:37

3

INCORPORATION OF THOSE PAGES INTO THE PRIVACY POLICY, THEY

09:22:43

4

CERTAINLY DON'T INCORPORATE CLEARLY, THE ACTUAL PAGES OF THE

09:22:46

5

HELP CENTER THAT THEY ARE TRYING TO RELY ON FOR THE THIRD

09:22:49

6

AMENDED COMPLAINT, PUTTING ASIDE WHETHER YOU CAN THEN TAKE THE

09:22:52

7

PRIVACY POLICY AND INCORPORATE THAT INTO THE STATEMENT OF

09:22:55

8

RIGHTS AND RESPONSIBILITIES.

09:22:56

9

09:23:00

10

SO THOSE ARE THE THREE PRIVACY POLICIES.

09:23:04

11

POINT TO A DATA USE POLICY LATER IN THEIR CLASS PERIOD, I THINK

09:23:09

12

LITERALLY WITHIN THE LAST MONTH OF THE CLASS PERIOD.

09:23:13

13

09:23:18

14

PAGES, ONLY THREE, IT DOESN'T PURPORT, I DON'T EVEN THINK

09:23:22

15

PLAINTIFFS WOULD ARGUE THAT IT PURPORTS TO PULL IN THE ENTIRETY

09:23:26

16

OF THE HELP CENTER.

09:23:29

17

WHICH THEY ARE RELYING ON, NONE OF WHICH THEY ARE RELYING ON.

09:23:33

18

09:23:36

19

ATTENUATED DAISY CHAIN, WHICH I THINK JUST FAILS PERIOD, I

09:23:41

20

DON'T THINK YOU CAN TAKE ALL THOSE STEPS, EVEN PUTTING THAT

09:23:46

21

ASIDE FOR A MOMENT, THEY ARE TRYING TO PULL IN HELP CENTER

09:23:50

22

PAGES THAT AREN'T REFERRED TO ANYWHERE.

09:23:53

23

09:23:58

24

WOULD RESULT IN ALL SORTS OF SORT OF CONTRACTURAL

09:24:01

25

INTERPRETATION PROBLEMS AND ALL SORTS -- INVITE MISCHIEF,

SO EVEN IF YOU FOUND THAT TO BE A CLEAR AND UNEQUIVOCAL

SO THERE ARE PROBLEMS WITH EVERY STEP OF THE DAISY CHAIN.
AND THEN THEY ALSO

AND THAT DOCUMENT HAS REFERENCE TO THREE HELP CENTER

IT'S THREE HELP CENTER PAGES, NONE OF

SO LITERALLY, THE THEORY HERE, IN ADDITION TO THIS KIND OF

AND THAT CLEARLY WASN'T THE INTENT OF THE PARTIES AND

UNITED STATES COURT REPORTERS

18

09:24:04

1

FRANKLY, IN LITIGATION.

09:24:07

2

09:24:10

3

BREACH OF CONTRACT THEORY, WHAT I HEAR YOU SAYING IS THEY NEED

09:24:19

4

THIS INCORPORATION BY REFERENCE.

09:24:20

5

09:24:22

6

ITSELF, WHICH IS THE STATEMENTS OF RIGHTS AND RESPONSIBILITIES,

09:24:24

7

HAS NO PROVISION THAT THEY ARE RELYING ON, PERIOD.

09:24:28

8

THE COURT:

STANDING ALONE.

09:24:28

9

MR. BROWN:

STANDING ALONE.

09:24:32

10

INCORPORATE THESE HELP CENTER PAGES.

09:24:35

11

THAT THEY'VE -- THAT THEY ARE RELYING ON.

09:24:39

12

09:24:42

13

FRANKLY, SHOULD JUST BE DISMISSED AT THIS POINT, AND DISMISSED

09:24:45

14

WITH PREJUDICE.

09:24:47

15

09:24:51

16

09:24:53

17

09:24:56

18

INTERESTED IN.

09:25:01

19

REMAINING COUNT FLOWS FROM THIS AS WELL.

09:25:04

20

09:25:08

21

09:25:12

22

09:25:12

23

09:25:15

24

ELEMENT, I THINK THERE'S THIS WHOLE ISSUE ABOUT THESE

09:25:18

25

PURPORTEDLY, THROUGH ALLEGATIONS FROM SEPTEMBER 27, 2011 AND ON

THE COURT:

MR. BROWN:

SO FOR PLAINTIFF'S CASE TO THRIVE ON THE

THEY ABSOLUTELY DO.

BECAUSE THE CONTRACT

THEY ABSOLUTELY HAVE TO
AND THAT'S THE THEORY

SO, YOU KNOW, I DON'T THINK IT WORKS, AND I THINK THAT IT,

AND I DID WANT TO POINT OUT, THERE ARE OTHER ISSUES WE CAN
TALK ABOUT, BUT THIS IS SORT OF A THRESHOLD ISSUE.
THE COURT:

WELL, THIS IS THE ONE, CANDIDLY, I'M MOST

I THINK IT IS A THRESHOLD ISSUE AND THE

MY SENSE OF IT IS, IF THE CONTRACT EXISTS, THEN THE SECOND
COUNT EXISTS AS WELL.
MR. BROWN:

BUT IF THERE'S NO CONTRACT, THEN -THAT'S RIGHT.

AND, I MEAN, I THINK THERE ARE PROBLEMS WITH THE DAMAGES

UNITED STATES COURT REPORTERS

19

09:25:24

1

AND NEW KIND OF CLASS MEMBERS WHICH, UNDER THE LAW, ARE TREATED

09:25:27

2

AS NEW PLAINTIFFS.

09:25:32

3

COMPLAINT IN THE CASE.

09:25:38

4

09:25:41

5

THINK YOU'VE GOT THE TERMS THAT THEY CONTEND WERE PART OF THE

09:25:44

6

CONTRACT AND CONTEND WERE BREACHED, WEREN'T ACTUALLY PART OF

09:25:47

7

THE CONTRACT, BECAUSE THE INCORPORATION BY REFERENCE DOCTRINE

09:25:50

8

IS NOT SATISFIED.

09:25:51

9

09:25:54

10

THERE ARE ALSO PROBLEMS WITH THE NEW ALLEGATIONS NOT RELATING

09:25:58

11

BACK.

09:25:59

12

09:26:02

13

REFERENCE, A DOCUMENT THAT DID NOT EXIST AT THE TIME OF THE

09:26:06

14

ORIGINAL CONTRACT?

09:26:08

15

09:26:10

16

09:26:14

17

AND RESPONSIBILITIES, I THINK THE LAST ONE IN TIME, REFERENCED

09:26:17

18

IN THE COMPLAINT, ACTUALLY PREDATED SOME OF THE HELP CENTER

09:26:21

19

PAGES THAT THEY ARE TRYING TO RELY ON.

09:26:26

20

09:26:29

21

MEAN, I DON'T KNOW THAT YOU NECESSARILY EVEN NEED TO GET TO

09:26:31

22

THAT ISSUE, BECAUSE OF THE MORE FUNDAMENTAL PROBLEMS, BUT

09:26:35

23

CERTAINLY THE TIMING COULD BE AN ISSUE.

09:26:38

24

09:26:42

25

NEITHER OF THOSE RELATE BACK TO THE EARLIER
AND SO THERE'S AN ENTIRE PROBLEM THERE.

SO THERE'S SORT OF A STACK OF PROBLEMS HERE, AND I DON'T

BUT THEN THERE ARE PROBLEMS WITH THE DAMAGES ELEMENT AND

THE COURT:

MR. BROWN:

IS THERE A PROBLEM WITH INCORPORATING BY

WELL, THAT COULD BE A PROBLEM.

WE HAVE A SITUATION HERE WHERE THIS STATEMENT OF RIGHTS

AND SO THAT COULD POTENTIALLY BE A PROBLEM AS WELL.

I

IT GETS BACK TO THIS, IN SOME WAYS, A LARGER ISSUE, WHEN
YOU ARE TRYING TO INCORPORATE IN SOMETHING LIKE A HELP CENTER

UNITED STATES COURT REPORTERS

20

09:26:46

1

WHERE YOU'VE GOT KIND OF DYNAMIC AND CONSTANTLY SHIFTING AND

09:26:49

2

EVOLVING PAGES, IT BECOMES A REAL LEGAL PROBLEM TRYING TO

09:26:54

3

FIGURE OUT HOW THOSE SHIFTING PAGES BECOME PART OF A CONTRACT

09:26:58

4

THAT MAY HAVE ALREADY BEEN ASSENTED TO EARLIER IN TIME.

09:27:02

5

09:27:05

6

IMAGINE PEOPLE CONTRACTING IN A WAY WHERE THERE'S SOME SORT OF

09:27:13

7

AGREEMENT AND UNDERSTANDING THAT AN INCORPORATED DOCUMENT MAY

09:27:17

8

CHANGE IN CERTAIN CIRCUMSTANCES, AND THE PARTIES IN A VERY

09:27:20

9

CLEAR, KNOWING WAY, ASSENT TO KIND OF THOSE CHANGED TERMS,

09:27:29

10

09:27:34

11

09:27:37

12

COVER THE WATERFRONT HERE.

09:27:39

13

HAVE THAT SITUATION BUT WE ARE NOWHERE CLOSE TO THAT HERE.

09:27:43

14

09:27:45

15

STATEMENT OF RIGHTS AND RESPONSIBILITIES, LET ALONE SOME

09:27:48

16

UNDERSTANDING REFLECTED THAT ANY CHANGE THAT AN ENGINEER MIGHT

09:27:51

17

PUSH OUT TO THE HELP CENTER MIGHT BECOME A CONTRACTURAL

09:27:55

18

OBLIGATION BETWEEN THE PARTIES.

09:27:56

19

THE COURT:

09:27:59

20

COLLEAGUE OPPOSITE ABOUT THIS, BECAUSE I THOUGHT IN ADVANCING

09:28:06

21

THIS QUESTION, HE WILL RESPOND TO, I'M CERTAIN, I THOUGHT THAT

09:28:09

22

PLAINTIFFS ARGUE THAT THE DATA USE POLICY PROMISED THAT YOU

09:28:12

23

WOULD NOT, FACEBOOK WOULD NOT LOG -- TRACK LOGGED OUT USERS.

09:28:18

24

09:28:23

25

UNLESS THERE'S SOME VERY SPECIFIC PROVISION, YOU CAN

CHANGES IN THE INCORPORATED DOCUMENTS IN THE FUTURE.
BUT I'M SPEAKING KIND OF HYPOTHETICALLY, I'M TRYING TO
SO I THINK IT'S POSSIBLE YOU COULD

THERE'S NO REFERENCE TO THE HELP CENTER AT ALL IN THE

WELL, I'M GOING TO OBVIOUSLY ASK YOUR

AND IT SEEMS THAT THAT VERSION WAS PUBLISHED
SEPTEMBER 2011 SOME TIME, SEPTEMBER 7TH I THINK IT WAS, WHICH

UNITED STATES COURT REPORTERS

21

09:28:27

1

WOULD HAVE BEEN AFTER.

09:28:28

2

09:28:31

3

THAT I'M SURE I WILL GET SOME HELP FROM YOUR FRIENDS ON THE

09:28:34

4

OTHER SIDE.

09:28:36

5

09:28:38

6

09:28:42

7

09:28:44

8

09:28:47

9

09:28:52

10

REFERENCE BECAUSE THE SRR DOESN'T MENTION THE DATA USE POLICY

09:28:58

11

ANYWHERE.

09:28:59

12

AND SO THE STANDARD IS THERE'S GOT TO BE A CLEAR,

09:29:05

13

UNEQUIVOCAL PULLING IN BY REFERENCE OF AN EXTERNAL DOCUMENT,

09:29:09

14

AND IT NEEDS TO BE BROUGHT TO THE OTHER PARTY'S ATTENTION SO

09:29:12

15

THEY CAN ASSENT TO IT, AND THE DATA USE POLICY IS SIMPLY NOT

09:29:17

16

MENTIONED ANYWHERE IN THAT, IN EVEN THE LATEST-IN-TIME

09:29:19

17

STATEMENT OF RIGHTS AND RESPONSIBILITIES.

09:29:21

18

09:29:24

19

IF YOU WERE TO FIND THAT POLICY TO BE INCORPORATED BY

09:29:29

20

REFERENCE, WHY THAT CONTRACTURAL PROVISION ON ITS FACE CAN'T

09:29:33

21

CONSTITUTE A BREACH.

09:29:38

22

NOT CONSTITUTE A BREACH OF THAT LANGUAGE WHATSOEVER, BUT I

09:29:41

23

DON'T THINK YOU EVEN NEED TO GET THERE.

09:29:42

24

09:29:45

25

AND I THINK THAT'S WHERE THERE'S INCORPORATION PROBLEM

MR. BROWN:
THAT.

YEAH.

AND THANKS FOR REMINDING ME OF

THAT WAS ONE ISSUE I SORT OF NEGLECTED TO TOUCH ON.

SO THERE IS A TIMING ISSUE THERE BETWEEN THE DATE OF THE
SRR AND THE DATE OF THE DATA USE POLICY.
THERE'S A DISTINCT PROBLEM IN INCORPORATING THAT POLICY BY

WE ALSO HAVE AN ARGUMENT, IT'S IN THE PAPERS, FOR WHY EVEN

THE COURT:

IN OTHER WORDS, THE ALLEGED CONDUCT DOES

SO FOR THE REASONS YOU'VE ARTICULATED IN

YOUR PAPERS AND ADVANCED THIS MORNING, YOU ARE REQUESTING THIS

UNITED STATES COURT REPORTERS

22

09:29:49

1

COURT DISMISS THIS ACTION WITH PREJUDICE.

09:29:51

2

MR. BROWN:

THAT'S RIGHT.

09:29:52

3

THE COURT:

SO MY SENSE IS THAT THERE'S SOME

09:29:57

4

RECOGNITION THAT YOUR CLIENT MAY HAVE MADE SOME STATEMENTS,

09:30:04

5

MISREPRESENTATIONS ABOUT ITS POLICY AT SOME POINT IN TIME ABOUT

09:30:07

6

THIS TRACKING BUSINESS.

09:30:08

7

I'M NOT ASKING YOU TO CONCEDE THAT YOUR CLIENTS DID THAT,

09:30:11

8

BUT IT SEEMS THAT THERE WAS A CONVERSATION OUT THERE AT A TIME

09:30:19

9

WHEN FACEBOOK SAID THEY DIDN'T AND THEN CHANGED THEIR POLICY

09:30:23

10

09:30:26

11

09:30:28

12

WHAT'S THE DAMAGES, I UNDERSTAND THAT.

09:30:31

13

SOME KIND OF REMEDY FOR A COMPANY DOING THAT?

09:30:36

14

WANTS TO SPEAK TO THAT IN DEFENSE OF HIS CLIENT.

09:30:39

15

ARRIVED.

09:30:43

16

09:30:45

17

AND I'M GOING TO SPEAK SOMEWHAT GENERICALLY BECAUSE THE

09:30:48

18

DOCUMENTS, I THINK YOU ARE REFERRING TO, ARE SUBJECT TO A

09:30:50

19

PROTECTIVE ORDER, AND AS I MENTIONED EARLIER, WE HADN'T

09:30:54

20

RECEIVED ANY NOTICE THAT THESE WOULD BE COMING UP DURING THE

09:31:00

21

HEARING TODAY.

09:31:01

22

09:31:03

23

09:31:05

24

09:31:08

25

SUBSEQUENT.
PERHAPS TO THE HARM OF CONSUMERS, THAT'S ANOTHER ISSUE,

MR. BROWN:

THE COURT:

BUT SHOULDN'T THERE BE
MAYBE MR. WONG
I SEE HE'S

WELL, I THINK WHAT YOU ARE REFERRING TO,

DON'T ANSWER MY QUESTION IF YOU NEED TO

SPEAK ABOUT THOSE, BUT THIS IS VERY GENERAL.
AND AS I SAID, I'M CERTAINLY NOT REFERRING TO ANYTHING
THAT I THINK IS PROTECTED, I THINK THIS IS PUBLIC CONVERSATION

UNITED STATES COURT REPORTERS

23

09:31:12

1

ABOUT THIS SITUATION.

09:31:13

2

09:31:14

3

09:31:19

4

COMPANY'S PRACTICES.

09:31:24

5

WORLD.

09:31:30

6

CONDUCT ASSOCIATED WITH THE PRACTICES BEFORE.

09:31:32

7

09:31:34

8

BEFORE I CAME HERE TODAY, BUT WE HAVE GONE THROUGH, I WOULD

09:31:37

9

THINK A DOZEN OR MORE CAUSES OF ACTION IN THIS CASE SO FAR.

09:31:42

10

09:31:47

11

WE SHOULDN'T JUST BE SORT OF IN SOME GESTALT OR LOOSE FASHION,

09:31:53

12

SAYING WELL, GOSH, IT SEEMS LIKE MAYBE THERE WAS SOMETHING A

09:31:56

13

LITTLE OFF HERE, LET'S LOOK FOR A WAY TO MAKE IT INTO A FEDERAL

09:32:00

14

MULTI-DISTRICT LITIGATION.

09:32:05

15

09:32:08

16

ALLEGE FACTS AND TIE THEM TO LEGAL THEORIES.

09:32:12

17

TO DO THAT, THEY SPENT A LOT OF TIME TRYING TO CONVINCE THE

09:32:17

18

COURT THAT THIS WAS A WIRE TAP ACT VIOLATION.

09:32:20

19

09:32:22

20

THAT.

09:32:26

21

AVAILABILITY OF STATUTORY DAMAGES, AND YOU KNOW, THAT WAS FOUND

09:32:30

22

NOT TO BE A SATISFACTORY CLAIM TO BRING, AND WE ARE WHERE WE

09:32:35

23

ARE NOW, WHICH IS BREACH OF CONTRACT CLAIM AND A BREACH OF

09:32:38

24

IMPLIED COVENANT CLAIM.

09:32:43

25

MR. BROWN:

SURE.

THERE WERE CERTAIN STEPS TAKEN TO SORT OF THE SHIFT THE
AND THAT HAPPENS ALL THE TIME IN THE

BUT THE QUESTION IS WHETHER THERE WAS ANY WRONGFUL

AND WE'VE NOW BEEN THROUGH IT, I SHOULD HAVE COUNTED

AND SO IT'S SORT OF NOT FOR LACK OF TRYING, BUT, YOU KNOW,

THAT SHOULDN'T BE THE POINT.

AND IT'S REALLY UP TO THE PLAINTIFFS TO COME FORWARD AND
THEY HAVE TRIED

I REMEMBER LOTS AND LOTS OF BRIEFING AND ARGUMENT OVER
AND, YOU KNOW, NOT SURPRISINGLY SO, BECAUSE THE

THE COURT:

AND THEY SIMPLY HAVEN'T ALLEGED IT.

OKAY.

THANK YOU VERY MUCH.

UNITED STATES COURT REPORTERS

24

09:32:53

1

YOU RISE TO CONCEDE THE MOTION.

09:32:54

2

09:32:57

3

09:32:58

4

09:33:02

5

MAJOR POINTS STRUCK ME.

09:33:07

6

LOT ABOUT JUMBLING AND TIMING AND THE DIFFICULTY OF SORTING

09:33:10

7

THINGS OUT.

09:33:11

8

09:33:14

9

09:33:18

10

BRIEFING AND THEY ARE FULLY ON NOTICE OF THAT WHICH WE CLAIM.

09:33:22

11

THE ISSUES HE'S RAISING ARE FACTUAL ISSUES THAT REQUIRE

09:33:25

12

DISCOVERY.

09:33:28

13

JUDGEMENT OR TRIAL COURT CASES DEALING WITH THE VERY ISSUES IN

09:33:31

14

THIS CASE.

09:33:33

15

09:33:37

16

CAN THINK OF IS, THEY TAKE THE POSITION THAT IS ARTICULATED SO

09:33:42

17

WONDERFUL IN LOSE CARROLL'S THROUGH THE LOOKING GLASS, HUMPTY

09:33:46

18

DUMPTY.

09:33:48

19

NOTHING LESS.

09:33:52

20

ALL."

09:33:53

21

09:33:55

22

GOVERNING LAW, THIS COURT AND THE CALIFORNIA CIVIL CODE, ALL OF

09:33:59

23

WHICH SHOW THAT BOTH OF THESE CLAIMS SHOULD BE SUSTAINED.

09:34:03

24

09:34:05

25

MR. GRYGIEL:

YOUR HONOR, ANYTHING BUT.

ANYTHING

BUT.
IN FACT, AFTER LISTENING TO MR. BROWN'S ARGUMENT, TWO
THE FIRST ONE IS HE TALKED AN AWFUL

WE ARE HERE ON A 12(B)(6) MOTION, RULE 8(A) IS THE TEST.
ARE THEY NOT ON NOTICE OF THAT WHICH WE CLAIM?

I LOOK AT THEIR

IN FACT, THEY CITE NO FEWER THAN 19 SUMMARY

I ADMIT THAT, POINT NUMBER ONE.

NUMBER TWO, I COULDN'T HELP IT, AS I HEAR HIM SPEAK, ALL I

"A WORD MEANS WHAT I SAY IT MEANS, NOTHING MORE AND
THE QUESTION IS WHO IS TO BE MASTER.

WELL, THE MASTER ISN'T FACEBOOK.

THAT IS

THE MASTER IS THE

LET'S START WITH SOMETHING I'VE HEARD NOTHING ABOUT FROM
MR. BROWN, SOMETHING WE'VE TALKED ABOUT MANY TIMES IN THIS CASE

UNITED STATES COURT REPORTERS

25

09:34:08

1

AND IT'S IN FRONT OF YOUR HONOR IN ALL OF THE EXHIBITS.

09:34:11

2

CRUCIALLY IMPORTANT POINT.

09:34:13

3

09:34:19

4

HAD NEVER BEEN DISCLOSED IN ANY OF THE SRR'S IN THE PRIVACY

09:34:24

5

POLICY OR IN THE DATA USE POLICY OR IN ANY OF THE HELP CENTER

09:34:27

6

PAGES, WHEN IT WAS DISCLOSED, FACEBOOK DID NOT RESPOND WITH,

09:34:32

7

WELL, WAIT A MINUTE, WHAT'S THE UPROAR, WE ARE ENTITLED TO DO

09:34:35

8

THIS, WE HAVE GOTTEN CONTRACTURAL UNDERTAKING THAT PERMITS US

09:34:39

9

TO DO THIS.

09:34:40

10

09:34:44

11

09:34:45

12

09:34:47

13

TO FIX IT UNLESS ONE, YOU HADN'T PREVIOUSLY DISCLOSED IT; AND

09:34:52

14

TWO, YOU THOUGHT IT WAS MATERIAL TO FIX.

09:34:55

15

09:34:58

16

COMPLAINT THAT SHOW TWO VERY IMPORTANT THINGS -- THREE VERY

09:35:03

17

IMPORTANT THINGS.

09:35:03

18

ONE, THAT FACEBOOK WAS DOING THIS BECAUSE THEY WERE UNDER

09:35:06

19

PRESSURE TO KEEP USERS LOGGED IN BECAUSE THAT'S WHERE THE MONEY

09:35:10

20

COMES FROM.

09:35:14

21

09:35:14

22

09:35:16

23

APPROPRIATE.

09:35:19

24

ALREADY HAD THIS CONVERSATION ON THE RECORD BEFORE MR. GRYGIEL

09:35:24

25

GOT UP TO SPEAK.

IT'S A

WHEN FACEBOOK'S TRACKING OF ITS LOGGED OUT USERS, WHICH

NO, WHAT WE HAD WAS, WE HAVE A PROBLEM AND WE ARE GOING TO
FIX IT.
NOW WHY WOULD YOU SAY YOU HAD A PROBLEM AND YOU WERE GOING

THERE IS AN ABUNDANCE OF QUOTES IN THE THIRD AMENDED

MR. BROWN:

EXCUSE ME, EXCUSE ME.

THAT'S NOT

THAT'S A DOCUMENT THAT'S UNDER SEAL, AND WE

UNITED STATES COURT REPORTERS

26

09:35:25

1

AND I'M SORRY, THAT'S NOT APPROPRIATE.

09:35:26

2

09:35:29

3

09:35:31

4

09:35:32

5

09:35:35

6

ENGINEERS GOING TO BACK AND FORTH WITH, THIS NEEDS TO BE FIXED

09:35:39

7

IMMEDIATELY.

09:35:43

8

TOLD WE SAID WE DON'T DO THIS AND WE CAN'T DO THIS.

09:35:49

9

09:35:52

10

AMENDED COMPLAINT, "FACEBOOK DIDN'T SAY WE ARE ENTITLED TO DO

09:35:55

11

THIS, OUR CONTRACT PERMITS US TO DO THIS.

09:35:58

12

SAID WE DON'T DO IT," AND THIS IS A PUBLIC STATEMENT, "AND WE

09:36:02

13

COULDN'T DO IT WITHOUT SOME FORM OF DISCLOSURE AND CONSENT."

09:36:06

14

YOUR HONOR, THE CONTRACT CASE AND THE IMPLIED COVENANT

09:36:10

15

CASE COULD STOP RIGHT THERE BECAUSE WE HAVE INTERNAL ADMISSIONS

09:36:14

16

DEMONSTRATING THAT A CONTRACT EXISTED OR THEY WOULDN'T HAVE

09:36:17

17

SAID THE THINGS THEY SAID, THAT THEY UNDERSTOOD THE CONTRACT

09:36:20

18

WAS MATERIAL.

09:36:21

19

09:36:22

20

09:36:24

21

MR. GRYGIEL:

09:36:27

22

QUESTION, YOUR HONOR.

09:36:28

23

BECAUSE THAT SHOWS THAT OUR THEORY OF THE CONTRACT, THE

09:36:30

24

STATEMENT OF RIGHTS AND RESPONSIBILITIES, INCORPORATED IN THE

09:36:35

25

PRIVACY POLICY, AND THEN THE HELP CENTER PAGES, IS CORRECT.

THE COURT:

SO IF YOU CAN MAKE YOUR ARGUMENTS WITHOUT

REFERENCING, I THINK WE ARE IN AGREEMENT THAT WE DO THAT.
MR. GRYGIEL:

FAIR ENOUGH.

AND THEN WE HAVE, TO GENERALIZE, A NUMBER OF ITERATIONS OF

THE PRIVACY PEOPLE ARE ON THIS.

WE HAVE BEEN

AND WE QUOTE, AND IT'S AT PARAGRAPH 91 IN THE THIRD

THE COURT:

FACEBOOK SAID, WE'VE

LET ME STOP YOU THERE.

HOW DOES THAT CREATE CONTRACT?
BECAUSE THAT SHOWS -- EXACTLY THE RIGHT

UNITED STATES COURT REPORTERS

27

09:36:38

1

THE COURT:

EXCUSE ME.

09:36:39

2

09:36:43

3

IN THE MORNING HERE, BUT THE PIECE I'M MISSING IS THE

09:36:46

4

STATEMENTS OF OTHER ENGINEERS, WOULD THOSE BE INCORPORATED BY

09:36:49

5

REFERENCE TO THIS --

09:36:51

6

09:36:51

7

09:36:54

8

STATEMENTS ARE THE INTERPRETATIVE GLOSS THAT CONSTITUTED

09:36:58

9

ADMISSIONS -- I CAN'T HELP IT, I'M AN OLD TRIAL LAWYER -- THAT

09:37:01

10

CONSTITUTE ADMISSIONS BY THE OTHER PARTY THAT THEIR OWN PEOPLE

09:37:05

11

UNDERSTOOD THAT THEY HAD SAID THEY WOULDN'T DO THIS.

09:37:08

12

THE COURT:

09:37:10

13

MR. GRYGIEL:

09:37:11

14

09:37:13

15

09:37:13

16

09:37:17

17

SEE ANYTHING ABOUT WHAT THE STATEMENTS OF RIGHTS AND

09:37:19

18

RESPONSIBILITIES SAY.

09:37:23

19

PRIVACY," THIS IS A QUOTE, "YOUR PRIVACY IS VERY IMPORTANT TO

09:37:27

20

US.

09:37:31

21

UNDERSTAND HOW WE COLLECT AND HOW WE USE YOUR DATA."

09:37:38

22

09:37:41

23

WILL ALLOW YOU TO MAKE INFORMED DECISIONS CONCERNING THESE

09:37:46

24

ISSUES OF PRIVACY THAT ARE SO CENTRAL TO THE SRR.

09:37:49

25

I GUESS THE PIECE I'M MISSING, AND I'M SORRY, IT'S 9:30

MR. GRYGIEL:

NO, YOUR HONOR.

THOSE STATEMENTS AREN'T INCORPORATED BY REFERENCE, THOSE

SO FIT THAT INTO THE CONTRACT ANALYSIS.
SURE.

LET'S START WITH THE STATEMENT OF RIGHTS AND
RESPONSIBILITIES.
WE CITED AT PARAGRAPH 24 AND 57, MR. BROWN SAYS WE DON'T

IT SAYS, AMONG OTHER THINGS, "YOUR

WE HAVE DESIGNED OUR PRIVACY POLICY SO THAT YOU CAN

WE ENCOURAGE YOU TO READ THE PRIVACY POLICY, BECAUSE IT

IT'S IN PARAGRAPH 1 OF EVERY ONE OF THE STATEMENTS OF

UNITED STATES COURT REPORTERS

28

09:37:52

1

RIGHTS AND RESPONSIBILITIES.

SO TO TIE BACK WHAT I WAS SAYING

09:37:56

2

ABOUT THE INTERNAL ADMISSIONS, IT SHOWS THAT THEIR

09:37:59

3

UNDERSTANDING, AND IF IT DOESN'T, IT'S A FACT QUESTION, TIES

09:38:03

4

BACK TO THAT PARAGRAPH IN THE SRR SAYING WE CAN'T DO THIS.

09:38:07

5

HAVE SAID WE WON'T DO IT.

09:38:09

6

09:38:13

7

STATEMENT OF RIGHTS AND RESPONSIBILITIES.

09:38:16

8

RIGHTS AND RESPONSIBILITIES BEGINS WITH THAT CENTRAL PARAGRAPH.

09:38:30

9

09:38:32

10

09:38:34

11

SAYS, ITSELF, IN ITS RESPONSE TO CONGRESS, THE PRIVACY POLICY

09:38:38

12

THEN BECOMES, ITSELF, A LAYERED DOCUMENT.

09:38:40

13

09:38:43

14

STATEMENT OF RIGHTS AND RESPONSIBILITIES, HERE IS THE STATEMENT

09:38:45

15

OF RIGHTS SPECIAL RESPONSIBILITIES, WE HYPERLINK TO IN TELLING

09:38:47

16

YOU TO READ THE PRIVACY POLICY.

09:38:50

17

09:38:54

18

IT'S PRETTY IMPORTANT WHEN ONE DOCUMENT SAYS YOU SHOULD READ

09:38:58

19

ANOTHER, IT'S VERY STRONG INDICIA THAT THIS IS A DOCUMENT

09:39:01

20

THAT'S INCORPORATED.

09:39:03

21

09:39:05

22

CONTRACT.

09:39:10

23

THIS CONTRACT, AND DECIDED WHAT WENT IN IT.

09:39:14

24

LIKE THE MANY THEY CITED, LIKE CHAN COMES TO MIND, WHERE A POOR

09:39:21

25

PERSON SIGNS AN AGREEMENT AND DOESN'T HAVE ANY WAY OF

LET ME MAKE THE CHAIN FOR YOUR HONOR.

THE COURT:

WE

SO WE'VE GOT THE
THE STATEMENT OF

THE GENERAL PRIVACY POLICY.

MR. GRYGIEL:

THE PRIVACY POLICY.

WHICH FACEBOOK

ESSENTIALLY, WHAT FACEBOOK SAYS IS WHEN YOU LOOK AT

THINK OF THE WOLSCHLAGER CASE WHERE THE COURT SAID GHEE,

NO MAGICAL BUZZ WORDS ARE REQUIRED.

SECOND POINT THERE, YOUR HONOR, THIS IS FACEBOOK'S
FACEBOOK DESIGNED THE COMPONENTS OF, CONSTRUCTED
THIS ISN'T A CASE

UNITED STATES COURT REPORTERS

29

09:39:23

1

UNDERSTANDING SHE HAS SIGNED UP FOR ARBITRATION AND FORFEITS

09:39:26

2

HER JURY TRIAL RIGHTS UNDER THE 7TH AMENDMENT BECAUSE SHE'S A

09:39:30

3

BROKER NOW SUBJECT TO A BROKER ARBITRATION AGREEMENT.

09:39:32

4

09:39:35

5

09:39:38

6

09:39:41

7

READILY ACCESSIBLE TO FACEBOOK.

09:39:45

8

DESIGNED THE CONTRACTS, THAT CLAUSE IS DINE.

09:39:45

9

TO THE OTHER PARTY AND CALLED IT TO THEIR ATTENTION, THEY ARE

09:39:48

10

THE VERY ONES WHO CALLED THESE DOCUMENTS TO THE PLAINTIFF'S

09:39:51

11

ATTENTION.

09:39:52

12

09:39:55

13

EXHIBIT T SAYS A COUPLE OF THINGS THAT ARE IMPORTANT ENOUGH

09:39:57

14

THAT I WOULD LIKE TO MAKE SURE THAT I GET THEM EXACTLY RIGHT.

09:40:01

15

09:40:04

16

CHALLENGE WHAT FACEBOOK WAS DOING.

09:40:07

17

POLICY ALSO PROVIDES A LINK TO OUR HELP CENTER WHERE WE ANSWER

09:40:11

18

FREQUENTLY ASKED QUESTIONS ABOUT A VARIETY OF TOPICS, INCLUDING

09:40:15

19

QUESTIONS AROUND SOCIAL PLUG-INS."

09:40:17

20

09:40:21

21

"LIKE" BUTTON FOR THE MOST PART.

09:40:25

22

AMORPHOUS, THIS ISN'T VAPOROUS, THIS IS THE DATA USE POLICY

09:40:28

23

SAYING, OUR HELP CENTER POLICY IS INCORPORATED HERE, THAT'S

09:40:31

24

EXACTLY WHAT IT SAYS.

09:40:32

25

THIS ISN'T LIKE ST. PAUL MERCURY WHERE THE DOCUMENT
ALLEGED TO BE INCORPORATED IS FULL OF BLANKS.
OUR CASE IS VERY DIFFERENT.

HOW DO THEY DO THAT?

THE DOCUMENTS WERE A,
THEY ARE THEIR DOCUMENTS, THEY
THEY WERE KNOWN

LOOK AT EXHIBIT T, YOUR HONOR.

EXHIBIT T, PUBLIC LETTER TO THE CONGRESS PEOPLE WHO WOULD
IT SAYS, "OUR DATA USE

PRECISELY WHAT WE ARE DEALING WITH HERE, THE FACEBOOK

THE COURT:

SOCIAL PLUG-INS.

IS THAT WHAT IT SAYS?

UNITED STATES COURT REPORTERS

THIS ISN'T

30

09:40:33

1

MR. GRYGIEL:

WELL, REALLY, YOUR HONOR, YES,

09:40:35

2

ABSOLUTELY.

09:40:38

3

CASES.

09:40:43

4

THE CASES SAY THE STANDARD NUMBER ONE IS YOU HAVE TO HAVE A

09:40:46

5

CLEAR AND UNEQUIVOCAL REFERENCE.

09:40:47

6

BUT THEN IT SAYS NO BUZZ WORDS ARE REQUIRED, AND IT IS

09:40:52

7

SUFFICIENT, SEE WOLSCHLAGER, SEE SHAW, SEE VIRTUALLY EVERY CASE

09:40:55

8

THAT RECITES THE DOCTRINE.

09:40:58

9

"GUIDES," THAT'S THE OPERATIVE TERM FOR CONTRACTURAL

09:41:01

10

INTERPRETATION HERE.

09:41:04

11

DOCUMENT, THAT'S SUFFICE FOR CLEAR AND UNEQUIVOCAL.

09:41:08

12

09:41:11

13

09:41:13

14

MR. GRYGIEL:

09:41:15

15

ANSWER THAT QUESTION.

09:41:17

16

THE COURT:

09:41:19

17

MR. GRYGIEL:

09:41:21

18

09:41:25

19

AGAIN BECAUSE I HAVE AN ANSWER FOR IT, BUT I JUST WANTED TO

09:41:29

20

POINT OUT THAT NOT ONLY DOES EXHIBIT T TALK ABOUT THE DATA USE

09:41:34

21

POLICY INCORPORATING A LINK TO THE HELP CENTER, IT SAYS

09:41:36

22

SOMETHING FURTHER, "WE PROVIDE LINKS TO OUR HELP CENTER PAGES

09:41:40

23

IN THE DROP DOWN MENU OF EVERY PAGE OF OUR SITE TO SEARCH FOR

09:41:47

24

ANSWERS TO PRIVACY-RELATED QUESTIONS."

09:41:50

25

BECAUSE IT'S ATTENTION IN THE LANGUAGE IN THE

THE CASES SAY, AND MR. BROWN SAYS YES, THE LANGUAGE OF

THE COURT:

AS LONG AS IT GUIDES THE USER.

AS LONG AS IT GUIDES THE USER TO THE NEXT

SO WHAT ARE THE SPECIFIC PAGES AND

STATEMENTS IN THE HELP PAGES THAT FORM THIS CONTRACT?
IF I COULD, YOUR HONOR, I'M GOING TO
BUT JUST TO GIVE IT -YOU JUST DON'T WANT TO ANSWER IT NOW.
NO, I WAS GOING TO PUT CONTEXT IN IT.

BECAUSE UNDERNEATH WHAT I WAS SAYING, AND YOU CAN ASK ME

COULD FACEBOOK REALLY BE SURPRISED THAT THIS IS

UNITED STATES COURT REPORTERS

31

09:41:52

1

CONSIDERED, THE PRIVACY-RELATED PAGES ARE PART OF THE CONTRACT?

09:41:55

2

WHEN GOING RIGHT BACK TO THE FUNDAMENTAL FOUNDATIONAL DOCUMENT,

09:41:58

3

THE STATEMENT OF RIGHTS AND RESPONSIBILITIES, IT STARTS WITH

09:42:02

4

PARAGRAPH 1 IN BOLD FACE, "YOUR PRIVACY IS VERY IMPORTANT TO

09:42:05

5

US."

09:42:05

6

09:42:07

7

OF RIGHTS AND RESPONSIBILITIES.

09:42:11

8

DOCUMENTS YOU SHOULD READ, THE PRIVACY POLICY," AFTER THEY HAVE

09:42:14

9

ALREADY TOLD YOU IN THE BODY OF IT TO READ IT.

09:42:17

10

09:42:19

11

09:42:22

12

09:42:25

13

OUR EXHIBITS.

09:42:27

14

EXAMPLE TO, IT IS EXHIBIT J.

09:42:35

15

RECEIVE ABOUT ME WHEN I VISIT A WEBSITE WITH A SOCIAL PLUG-IN?"

09:42:39

16

AND HERE IS WHERE THE ESSENTIAL FAILURE TO DISCLOSE WHERE

09:42:43

17

THE BREACH OF CONTRACT COMES IN.

09:42:47

18

CERTAIN LIMITED INFORMATION.

09:42:48

19

09:42:52

20

LONG TIME TO GO THROUGH ALL OF THEM, THE REST OF THE EXHIBITS

09:42:55

21

SAY THIS, YOUR HONOR, FACEBOOK IS SAYING TO ITS USERS, WHEN YOU

09:42:57

22

GO TO THESE HELP CENTER PAGES, WHEN YOU ARE LOGGED OUT OF

09:43:00

23

FACEBOOK, WE RECEIVE CERTAIN INFORMATION, BUT THAT INFORMATION

09:43:04

24

IS TECHNICAL AND IT IS LIMITED.

09:43:09

25

FACEBOOK, WE GET ADDITIONAL INFORMATION.

IN FACT, I THINK IT'S PARAGRAPH 18 OF ALL THE STATEMENTS
AT THE BOTTOM IT SAYS, "OTHER

NOW TO COME BACK TO YOUR QUESTION, YOUR HONOR, WHICH HELP
CENTER PAGES ARE INCORPORATED.
WE CITE THEM -- IN FACT, WE CITE THEM IN SERIAL FASHION IN
BUT WHAT I WOULD LIKE TO DO IS POINT, FOR
"WHAT INFORMATION DOES FACEBOOK

TECHNICAL INFORMATION.

THE REST OF THE EXHIBITS, TO SUMMARIZE, IT WOULD TAKE A

IF YOU ARE LOGGED INTO

UNITED STATES COURT REPORTERS

32

09:43:14

1

IN OTHER WORDS, THE SORT OF INFORMATION THAT CAN LINK A

09:43:17

2

09:43:21

3

09:43:24

4

IN THE REASONABLENESS OF -- A REASONABLE USER'S UNDERSTANDING

09:43:26

5

IS WHAT'S AT ISSUE HERE.

09:43:29

6

POLICY AND UNDERSTAND FACEBOOK TO HAVE DISCLOSED THAT WHICH IT

09:43:33

7

SHOULD HAVE DISCLOSED.

09:43:35

8

THAT LOOK, WHEN YOU GO TO THIRD-PARTY SITES AND YOU ARE

09:43:40

9

LOGGED OUT, WE ARE STILL GETTING THE SAME INFORMATION THAT WE

09:43:43

10

09:43:45

11

09:43:48

12

ANY REASONABLE USER LOOKING AT THEIR FACEBOOK CONTRACT,

09:43:51

13

UNDERSTAND THAT WHEN THEY LOG OUT OF FACEBOOK, THAT FACEBOOK IS

09:43:54

14

STILL TRACKING THEM ACROSS THIRD-PARTY SITES, JUST THE WAY IT

09:43:58

15

WAS DOING WHEN THEY WERE LOGGED IN?

09:44:00

16

09:44:05

17

TO QUOTE THE LA QUINTA CASE, WHO ARE INFLICTED WITH LAW

09:44:09

18

DEGREES, COULD CONJURE UP AND HAVE IT BE REALISTIC.

09:44:12

19

09:44:16

20

THAT ESSENTIALLY, CLEARLY, GOES RIGHT TO THE PRIVACY POLICY.

09:44:22

21

THE STATEMENT OF RIGHTS AND RESPONSIBILITIES GOES RIGHT TO THE

09:44:23

22

PRIVACY POLICY.

09:44:24

23

09:44:28

24

ON ALMOST EVERY PAGE OF FACEBOOK'S WEBSITE.

09:44:33

25

A CASE WHERE A COUNTER PARTY IN THE CONTRACT CAN SAY THE

USER AND A USER'S ACTIVITIES ON A SITE TO A USER ID.
THAT'S A VERY IMPORTANT DISTINCTION.

NO REASONABLE USER

NO REASONABLE USER COULD READ THAT

WOULD GET WHEN YOU ARE LOGGED IT IN.
AND AS A MATTER OF COMMON SENSE, YOUR HONOR, I ASK WOULD

I DON'T THINK, YOUR HONOR, BY ANY STRETCH OF EVEN PEOPLE,

SO TO SUMMARIZE THERE, WHAT WE HAVE IS A PRIVACY POLICY

THE PRIVACY POLICY, ACCORDING TO EXHIBIT T, ITSELF APPEARS
THIS IS SIMPLY NOT

UNITED STATES COURT REPORTERS

33

09:44:37

1

INFORMATION, THE CONTRACTURAL PROVISIONS WERE NOT CLEARLY

09:44:41

2

ACCESSIBLE TO ME, THEY WEREN'T DRAWN TO MY ATTENTION, THEY

09:44:44

3

CREATED THEM, AND THAT THE USER WASN'T GUIDED TO THEM.

09:44:47

4

09:44:50

5

THE USER GUIDED TO THEM, FACEBOOK SAID YOU SHOULD READ THESE

09:44:53

6

THINGS.

09:44:55

7

09:44:58

8

THE COURT'S ORDER, ON PAGE 13 AT LINE 16, THERE WAS -- I

09:45:05

9

INDICATED THE CLAIMANTS DIDN'T IDENTIFY THE TRAIL OF LINKS

09:45:09

10

LEADING TO THE SRR AND THE STATEMENTS THAT IT IDENTIFIED.

09:45:12

11

AND I THINK MR. BROWN WAS REFERENCING, PERHAPS THIS,

09:45:15

12

EARLIER, BUT THERE WERE SPECIFIC CONTRACTURAL PROVISIONS, I

09:45:19

13

THINK, THAT I KNOW THAT WAS A DEFICIENCY.

09:45:25

14

TO MY EARLIER QUESTION, WHAT PART OF THE THIRD AMENDED

09:45:27

15

COMPLAINT ANSWERS THE QUESTION THAT I LEFT?

09:45:32

16

09:45:33

17

09:45:36

18

COMPLAINT, SAYS THAT THE HELP CENTER PAGES, THE PRIVACY POLICY

09:45:39

19

REFERS TO THE HELP CENTER PAGES.

09:45:43

20

THE BRIEFING, BUT WHEN ONE LOOKS AT THAT, IT'S TO THE FIRST

09:45:47

21

PAGE OF THE HELP CENTER PAGES, AND THAT TENDS TO DEMONSTRATE

09:45:54

22

THAT THE HELP CENTER FOR PARTICULAR REQUESTS IS INCORPORATED BY

09:45:56

23

REFERENCE.

09:45:56

24

09:45:58

25

IN FACT, THE EXHIBITS WE ATTACHED SHOW THAT NOT ONLY WAS

THIS IS IMPORTANT.
THE COURT:

SO IN DOCUMENT 148, WHICH WAS THE ORDER,

MR. GRYGIEL:

AND I GUESS RELATED

PARAGRAPH 44, YOUR HONOR.

I BELIEVE IT'S PARAGRAPH 44 OF THE THIRD AMENDED

THE COURT:

I DON'T KNOW THAT THIS WAS IN

IS THIS WHERE THE INCORPORATION BY

REFERENCE ANALYSIS BEGINS THEN?

UNITED STATES COURT REPORTERS

34

09:46:00

1

MR. GRYGIEL:

IT REALLY DOES, YOUR HONOR.

09:46:01

2

THE COURT:

09:46:03

3

09:46:04

4

09:46:05

5

09:46:09

6

AND KEEP IN MIND A POINT I MADE BEFORE, BUT I DO THINK IT BEARS

09:46:14

7

EMPHASIS, THIS IS FACEBOOK'S CONTRACT.

09:46:16

8

09:46:20

9

09:46:23

10

CHANGED ALL THE TIME, THAT HAD DIFFERENT DATES ON THEM -- AND

09:46:25

11

BY THE WAY, ALL OF OUR EXHIBITS HAVE DATES AT THE VERY TOP, AS

09:46:29

12

I THINK YOU GATHERED WHEN MR. BROWN READ FROM THEM, IT'S VERY

09:46:33

13

ODD TO THINK THAT WHEN THE DOCTRINE OF INCORPORATION BY

09:46:36

14

REFERENCE IS ESSENTIALLY INTERPRETED TO PREVENT UNFAIR SURPRISE

09:46:39

15

TO SOMEBODY, THAT FACEBOOK COULD SAY WE ARE UNFAIRLY SURPRISED

09:46:42

16

BY BEING HELD TO THE SPECIFIC STATEMENTS WE MADE ABOUT HOW WE

09:46:46

17

USE COOKIES, HOW WE COLLECT INFORMATION, HOW WE USE INFORMATION

09:46:50

18

AND WHAT THE DIFFERENCES ARE BETWEEN LOGGED IN AND LOGGED OUT

09:46:53

19

USERS.

09:46:54

20

09:46:58

21

WITH RESPECT, IS A LAWYER'S ARGUMENT.

09:47:01

22

THAT ANY REASONABLE USER WOULD NOT.

09:47:02

23

AND THEY CITED THIS CASE, KASHMIRI V. UNIVERSITY OF

09:47:05

24

CALIFORNIA REGENTS, AND I WAS GLAD THEY DID, THEY CITED IT FOR

09:47:08

25

A LIMITED POINT, BUT NATURALLY I READ THE WHOLE THING.

TO GO BEYOND, WE NEED TO INCORPORATE BY

REFERENCE, THAT DOCUMENT.
MR. GRYGIEL:

RIGHT.

IT'S -- I THINK IT'S VERY IMPORTANT TO STEP BACK THOUGH,

AND WHAT WE HAVE HERE IS LAWYER CONJURING SAYING, WELL, WE
COULDN'T POSSIBLY KNOW THAT OUR HELP CENTER PAGES, WHICH

THIS JUST DOES NOT FIT THAT PARADIGM.

THAT, YOUR HONOR,

THAT IS NOT AN ARGUMENT

UNITED STATES COURT REPORTERS

35

09:47:12

1

AND WHAT THE COURT BASICALLY SAID THERE WAS LOOK, YOU'VE

09:47:14

2

GOT TO INTERPRET CONTRACTS IN A WAY THAT A REASONABLE PERSON

09:47:17

3

WOULD DO THEM.

09:47:20

4

IN ORDER TO RECOGNIZE THAT REASONABLENESS IS THE TOUCHSTONE.

09:47:25

5

09:47:28

6

REASONABLE TO SAY THAT THE STATEMENT OF RIGHTS AND

09:47:30

7

RESPONSIBILITIES, WHICH EXPRESSLY REFERS TO THE PRIVACY POLICY,

09:47:37

8

WHICH EXPRESSLY INCLUDES THE HELP CENTER PAGES, WHERE THE HELP

09:47:41

9

CENTER PAGES ARE ON EVERY PAGE OF THE WEBSITE, AND THE PRIVACY

09:47:46

10

POLICY IS, BY FACEBOOK'S ADMISSION, IT JUST DOESN'T DO TO SAY

09:47:48

11

WHEN YOU'VE GOT PRIVACY POLICY PAGES ON VIRTUALLY EVERY PAGE OF

09:47:53

12

THE FACEBOOK'S WEBSITE, WHICH WOULD INCLUDE THE SRR, WHEN

09:47:56

13

YOU'VE GOT HELP CENTER PAGES ON EVERY PAGE OF THE WEBSITE,

09:47:58

14

WHICH CERTAINLY INCLUDES THE SRR, THAT FACEBOOK IS SOMEHOW

09:48:01

15

UNFAIRLY SURPRISED TO BEING HELD TO ITS CONTRACTUAL

09:48:04

16

UNDERTAKING.

09:48:05

17

09:48:08

18

WORDS MR. BROWN USE WAS A DAISY CHAIN, BUT I WILL JUST SAY IT

09:48:12

19

SOUNDS LIKE THERE'S A MULTIPLE CHAIN OF INCORPORATION BY

09:48:15

20

REFERENCE THAT'S REQUIRED TO FIND CONTRACT UNDER YOUR ANALYSIS.

09:48:18

21

09:48:20

22

YOUR HONOR, I WOULD SUBMIT THAT WE CAN SIMPLY SUE ON STATEMENT

09:48:24

23

OF RIGHTS AND RESPONSIBILITIES.

09:48:28

24

IS VERY IMPORTANT TO US AND YOU DO AN AWFUL LOT OF THINGS THAT

09:48:31

25

ARE DESIGNED, AS THEY'VE ALREADY ADMITTED, TO CIRCUMVENT

AND SOMETIMES THE RULES REQUIRE SOME MOVEMENT

NOW I'M SUMMARIZING, BUT THAT'S WHAT IT SAID.

THE COURT:

IT IS NOT

IS IT REASONABLE TO ASSUME, I THINK THE

MR. GRYGIEL:

WELL, TO FIND CONTRACT HERE,

THAT WHEN YOU SAY YOUR PRIVACY

UNITED STATES COURT REPORTERS

36

09:48:32

1

PRECISELY THAT PROMISE, THAT THAT BY ITSELF SUFFICES FOR A

09:48:34

2

BREACH OF CONTRACT, PARTICULARLY UNDER RULE 8(A).

09:48:37

3

09:48:38

4

09:48:39

5

MR. GRYGIEL:

09:48:39

6

THE COURT:

09:48:42

7

09:48:48

8

09:48:49

9

09:48:51

10

09:48:55

11

09:48:57

12

REFERRING SPECIFICALLY HERE TO THEIR PRIVACY POLICY, FACEBOOK

09:49:01

13

DESCRIBED THE WAY IT WAS STRUCTURED IN PRECISELY THE WAY WE ARE

09:49:06

14

MAKING THE INCORPORATION BY REFERENCE ARGUMENT.

09:49:09

15

CONGRESS WE USE A LAYERED APPROACH.

09:49:11

16

WHAT THEY SAID WAS WE ESSENTIALLY, I'M PARAPHRASING, WE

09:49:17

17

GIVE BULLET POINTS, BROAD CATEGORICAL POINTS, IN THE PRIVACY

09:49:21

18

POLICY.

09:49:25

19

THE SPECIFICS OF HOW THAT OPERATES, IN OTHER WORDS TO

09:49:27

20

UNDERSTAND HOW THE PRIVACY POLICY ACTUALLY WORKS, AND WHAT IT

09:49:30

21

REALLY MEANS IN TERMS OF WHEN YOU GO TO THE THIRD-PARTY CITE,

09:49:33

22

THEN YOU GO TO THE HELP CENTER.

09:49:34

23

09:49:36

24

MANUAL IN YOUR TESLA THAT YOU MIGHT DRIVE?

09:49:41

25

OWNER'S MANUAL?

THE COURT:

THAT'S NOT THE ALLEGATION THAT'S BEFORE

THE COURT NOW.
RIGHT.

BUT, I GUESS, IS IT REASONABLE TO GO

THROUGH THAT SERIATUM INCORPORATION BY REFERENCE BY CONTRACT?
MR. GRYGIEL:

I THINK IT IS, YOUR HONOR.

AND ONE OF THE REASONS I THINK IT IS, IS NOT JUST BECAUSE
IT HELPS MY CASE, BUT BECAUSE FACEBOOK, ITSELF, SAID THAT.
WHEN FACEBOOK WAS RESPONDING TO CONGRESS AND THEY WERE

THEY TOLD

AND IF SOMEONE WANTS TO READ ON FURTHER AND UNDERSTAND

THE COURT:

IS THAT THE SAME THING AS AN OWNERS
IS IT IN THE

UNITED STATES COURT REPORTERS

37

09:49:42

1

MR. GRYGIEL:

YOU KNOW, YOUR HONOR, I AM GLAD YOU

09:49:44

2

BROUGHT THAT UP BECAUSE YESTERDAY IN OUR MOOT COURT, I USED

09:49:47

3

THAT EXAMPLE.

09:49:48

4

SAY --

09:49:49

5

09:49:51

6

09:49:51

7

09:49:53

8

09:49:55

9

09:49:58

10

AUTOMOBILE DEALERSHIP AND I SIGN MY PURCHASE CONTRACT, AND

09:50:00

11

UNDERNEATH THAT THEY STICK A BUNCH OF DOCUMENTS THAT HAVE TO

09:50:04

12

DEAL WITH WARRANTIES AND REVISITS IN THE CASE OF RECALLS, AND

09:50:06

13

THAT SORT OF THING, AND IT REFERS TO THEM, YOU'VE GOT

09:50:09

14

INCORPORATION BY REFERENCE.

09:50:10

15

09:50:14

16

09:50:16

17

09:50:17

18

09:50:17

19

09:50:19

20

09:50:19

21

YOU ARE SAYING, GEE, IF YOU NEED MORE HELP WITH THIS HELP

09:50:22

22

CENTER, PERHAPS HOW DO I DO THIS, HOW DO I MOVE THIS, HOW DO I

09:50:26

23

CHANGE PROFILE, WHATEVER IT IS, ISN'T THE HELP CENTER AN

09:50:29

24

OWNER'S MANUAL?

09:50:30

25

AND IT WAS SLIGHTLY DIFFERENT, I SAID, LET'S

THE COURT:

IT WASN'T A TESLA, IT WAS PROBABLY A FORD

OR SOMETHING.
MR. GRYGIEL:

IN MY CASE, YOUR HONOR, IT WAS A BEAT

UP FORD F150.
AND MY ARGUMENT WOULD BE LIKE THIS, IF I GO TO AN

YOU DON'T HAVE IT IF THEY ALSO GAVE ME A COUPLE OF
BROCHURES TO BUY A NEW CAR IN TEN YEARS.
OUR CASE IS NOT LIKE THAT.

WHAT WE ARE TALKING ABOUT HERE

IS -THE COURT:

WELL, I'M TALKING ABOUT AN OWNER'S

MANUAL.

MR. GRYGIEL:

I SUPPOSE, YOUR HONOR, TO SOME EXTENT

UNITED STATES COURT REPORTERS

38

09:50:32

1

IT IS, BUT IT CONTAINS PROMISES, IT CONTAINS COMMITMENTS.

09:50:36

2

09:50:39

3

FACEBOOK DO WITH THE INFORMATION IT GETS FROM ME?

09:50:42

4

FACEBOOK COMES BACK AND TELLS YOU, THAT IS A CONTRACTURAL

09:50:45

5

REPRESENTATION IN RESPONSE TO A FREQUENTLY ASKED QUESTION ABOUT

09:50:48

6

WHAT WE DO WITH YOUR INFORMATION.

09:50:49

7

09:50:52

8

AND I'M TRYING TO FASHION A SITUATION WHERE IT ALMOST SOUNDS

09:50:57

9

LIKE WHATEVER FACEBOOK SAYS THEN, THEY WOULD CONTRACT, WHATEVER

09:51:02

10

THEY SAY IN WHATEVER PAGE, WHEREVER IT IS, A CONSUMER COULD

09:51:06

11

SAY, WELL, YOU SAID THIS AND THEREFORE WE ARE IN CONTRACT.

09:51:10

12

09:51:13

13

BEFORE THE COURT TODAY, ON SOCIAL PLUG-INS, I THINK THE ANSWER

09:51:17

14

IS UNEQUIVOCALLY, YES.

09:51:18

15

09:51:21

16

RATIONAL CONTRACTURAL UNIVERSE WHERE PEOPLE CAN PREDICT

09:51:24

17

BEHAVIOR AND UNDERSTAND THE ECONOMIC CONSEQUENCES OF BEHAVIOR,

09:51:27

18

A PURELY CONTRACTURAL REGIME, WHERE ONE PARTY CAN SAY HERE IS

09:51:32

19

WHAT WE GET WHEN YOU ARE LOGGED OUT.

VERY DIFFERENTLY, HERE IS

09:51:35

20

WHAT WE GET WHEN YOU ARE LOGGED IN.

AND THEN HAVE THEM BE ABLE

09:51:38

21

TO SAY, WE DIDN'T MEAN ANY OF IT.

09:51:41

22

SAY.

09:51:42

23

09:51:43

24

09:51:46

25

WHAT YOU HAVE THERE WHEN YOU READ THE EXHIBITS, WHAT DOES

THE COURT:

AND THEN

SO THAT'S -- I HEAR WHAT YOU ARE SAYING,

MR. GRYGIEL:

AS IT DEALS WITH WHAT WE ARE HERE

YOU CAN'T POSSIBLY -- IT SEEMS TO ME YOU CAN'T CONSTRUCT A

THE COURT:

THE CONTRACT MEANS WHAT I

I UNDERSTAND THAT PART.

BUT THE FLIP SIDE OF THAT IS A CONSUMER SAYING GHEE, MY
INTERPRETATION OF THE HELP PAGES, THE OWNER'S MANUAL IS THIS,

UNITED STATES COURT REPORTERS

39

09:51:52

1

AND IF I GO BACK TO THE SRR, WHATEVER IT IS, THE STATEMENT OF

09:51:57

2

RIGHTS SPECIAL RESPONSIBILITIES, I THINK I'M IN CONTRACT WITH

09:51:59

3

THEM AND I CAN HOLD THEM TO CONTRACT.

09:52:02

4

09:52:06

5

09:52:09

6

MR. GRYGIEL:

09:52:15

7

REDUCTIO AD ABSURDUM.

09:52:16

8

TOO FAR?

09:52:19

9

09:52:22

10

CAREFULLY TO ITS USERS ABOUT HOW IT USES ITS DATA.

09:52:27

11

NOTHING TO ME THAT STRIKES ME AS, GHEE WHIZ, THAT'S A REAL

09:52:32

12

PROBLEM TO HOLD FACEBOOK TO THAT, IF THEY SAY IT AND IT IS IN

09:52:35

13

THE HELP CENTER, WHICH IS IN THE PRIVACY POLICY, WHICH IS IN

09:52:38

14

THE STATEMENT OF RIGHTS AND RESPONSIBILITIES, THEN IT'S IN.

09:52:40

15

09:52:45

16

BUT LET'S ANALYZE THAT.

09:52:48

17

INTERESTED IN IS THAT TRAIL.

09:52:52

18

TRAIL, OR DO YOU HAVE TO HACK?

09:52:55

19

CUT YOUR WAY THROUGH BRUSH TO MAKE THAT CONNECTION?

09:52:58

20

09:53:00

21

I THINK IT'S NOT ONLY PAVED, BUT LIGHTED AND GUIDED.

09:53:03

22

BECAUSE HERE WE HAVE FACEBOOK, ITSELF, SAYING NO QUESTION, SRR

09:53:06

23

GOES RIGHT TO THE PRIVACY POLICY; READ IT, IT'S IMPORTANT, IT

09:53:09

24

DEALS WITH HOW WE COLLECT THE DATA.

09:53:11

25

DOES THAT OPEN UP A WHOLE DIFFERENT LAYER, THEN, OF
INTERPRETATION THAT WE HAVE TO WORRY ABOUT?
YOUR HONOR IS MAKING THE ARGUMENT OF
MR. GRYGIEL, DOESN'T YOUR ARGUMENT GO

AND I THINK THE ANSWER IS NO, IT DOESN'T.

HERE WE HAVE A LEVIATHAN OF A COMPANY, SAYING THINGS

THE COURT:

THERE IS

THAT GETS BACK TO THAT TRAIL.

MR. GRYGIEL:

I THINK THAT'S WHAT I'M REALLY
HOW DO YOU HACK THROUGH THAT
IS IT PAVED, OR DO YOU HAVE TO

THAT'S A GOOD ANALOGY.

SO THAT PART OF THE "DAISY CHAIN" IS EASY.

UNITED STATES COURT REPORTERS

THERE'S NO

40

09:53:15

1

QUESTION ABOUT THAT.

LOADS OF CASES CAN SAY YOU CAN

09:53:16

2

INCORPORATE ANOTHER DOCUMENT BY REFERENCE.

09:53:18

3

09:53:21

4

PRIVACY POLICY ITSELF SAYS, WE INCORPORATE, IN SO MANY WORDS,

09:53:24

5

WE ARE INCORPORATING --

09:53:26

6

09:53:29

7

SAY "WE INCORPORATE."

09:53:29

8

MR. GRYGIEL:

09:53:32

9

09:53:42

10

09:53:44

11

MR. BROWN:

09:53:47

12

MR. GRYGIEL:

09:53:48

13

09:53:51

14

CENTER WHERE WE ANSWER FREQUENTLY ASKED QUESTIONS ABOUT A

09:53:54

15

VARIETY OF TOPICS, INCLUDING QUESTIONS AROUND SOCIAL PLUG-INS."

09:53:57

16

THE COURT:

09:54:00

17

MR. GRYGIEL:

09:54:02

18

BEYOND PER ADVENTURE THAT YOU DON'T NEED TO USE ANY BUZZ WORDS

09:54:07

19

OF INCORPORATION.

09:54:07

20

09:54:09

21

09:54:12

22

09:54:15

23

09:54:16

24

09:54:17

25

THE PROBLEM COMES WITH THE HELP CENTER PAGES.

THE COURT:

WAIT, WAIT.

IN SO MANY WORDS?

BUT THE

DOES IT

LET ME GET THE LANGUAGE FOR YOUR HONOR.

"OUR DATA USE POLICY ALSO PROVIDES A LINK."

THAT SOUNDS

LIKE IT SATISFIES THE TEST FOR ME
WHICH EXHIBIT ARE WE LOOKING AT?
THIS IS EXHIBIT T.

"OUR DATA USE POLICY ALSO PROVIDES A LINK TO OUR HELP

THE COURT:
WORK OUR WAY DOWN.

IS THE WORD "INCORPORATE" IN ANY OF THAT?
NO, YOUR HONOR.

BUT IT IS ABSOLUTELY

WELL, WE START WITH INCORPORATION AND
SO THERE'S NO INCORPORATION.

WHAT IS IT IN THAT LANGUAGE, THEN, THAT WOULD SUGGEST THAT
INCORPORATION IS APPROPRIATE?
MR. GRYGIEL:

TWO THINGS.

ONE, THE EXACT WORDS FACEBOOK CHOSE TO USE.

UNITED STATES COURT REPORTERS

"LINK."

41

09:54:23

1

TWO, THE WORDS FACEBOOK NOWHERE, IN ANY OF THESE

09:54:26

2

09:54:29

3

THE COURT:

09:54:30

4

MR. GRYGIEL:

09:54:32

5

09:54:36

6

POLICY, AND THAT'S HOW YOU GO TO THE HELP CENTER BECAUSE THAT

09:54:39

7

TALKS ABOUT IT.

09:54:44

8

DIRECT LINK.

09:54:45

9

09:54:48

10

FACEBOOK EVER, IN ANY OF THESE UNDERTAKINGS, TELL ITS USERS, BY

09:54:52

11

THE WAY, THIS STATEMENT OF RIGHTS AND RESPONSIBILITIES, IT

09:54:55

12

DOESN'T INCLUDE THE PRIVACY POLICY OR DATA USE POLICY, AND IT

09:55:00

13

DOES NOT INCLUDE THE HELP CENTER PAGES.

09:55:03

14

THE COURT:

09:55:04

15

MR. GRYGIEL:

09:55:06

16

YOUR HONOR.

09:55:09

17

AGREEMENTS, SOMETHING I'VE LOOKED AT.

09:55:12

18

QUESTION WHAT ARE YOU INTEGRATING, SO THAT DOESN'T GET YOU VERY

09:55:15

19

FAR.

09:55:16

20

09:55:20

21

DECLARATIVE SENTENCE TO PROTECT ITSELF FROM ANY CLAIMS IT MADE

09:55:23

22

IN THE HELP CENTER BEING CONTRACTURAL, OR THE PRIVACY POLICY

09:55:24

23

BEING CONTRACTURAL, BY DISCLAIMING THOSE AS PART OF ANY

09:55:24

24

CONTRACT.

09:55:24

25

DOCUMENTS, CHOSE TO USE.
LINK IS A PATH.
YES, YES.

AND DEALING WITH THE VERY ISSUE, PRIVACY POLICY, DATA USE

THAT IS NOT AT ALL A DAISY CHAIN, THAT IS A

AND YOUR HONOR, IT BEARS MENTION HERE, NOWHERE DID

DO THEY NEED TO DO THAT?
I DON'T THINK THEY NEED TO DO THAT,

THEY HAVE AN INTEGRATION CLAUSE IN THOSE
BUT THEN IT BEGS THE

BUT FACEBOOK COULD HAVE SIMPLY CHOSEN AS A SIMPLE

THE COURT:

WELL, ISN'T THAT A STATEMENT THAT THEY

UNITED STATES COURT REPORTERS

42

09:55:30

1

DIDN'T BELIEVE THEY WERE IN CONTRACT?

09:55:30

2

09:55:31

3

09:55:34

4

YOU'VE GOT THE PEOPLE INSIDE THE COMPANY SAYING EXACTLY THE

09:55:37

5

OPPOSITE, THAT WOULD BE AN AWFULLY EASY QUESTION FOR A JURY TO

09:55:39

6

RESOLVE IN MY FAVOR.

09:55:41

7

09:55:44

8

DATA USE POLICY, IS THE VERY PRESENCE OF EVERY ONE OF THE -- ON

09:55:51

9

EVERY FACEBOOK WEB PAGE, OF THE HELP CENTER PAGES, AND ON

09:55:55

10

VIRTUALLY EVERY PAGE OF FACEBOOK'S WEBSITE OF THE PRIVACY

09:55:59

11

POLICY.

09:55:59

12

THOSE ARE THEIR WORDS TO CONGRESS.

09:56:02

13

SO WHAT THEY ARE SAYING IN THE PRIVACY POLICY IS THAT WE

09:56:05

14

USE A LAYERED APPROACH, WE GIVE YOU SOME GENERAL INFORMATION IN

09:56:09

15

THE PRIVACY POLICY, AND WHEN YOU REALLY WANT TO KNOW WHAT WE

09:56:11

16

ARE DOING WITH YOUR DATA THAT WE ARE COLLECTING UP ACROSS THE

09:56:15

17

INTERNET, THEN YOU GO TO THE HELP CENTER AND THAT WILL TELL

09:56:17

18

YOU.

09:56:17

19

09:56:21

20

WHAT THE CLAIM IS, THE KINDS OF ALLEGATIONS AND PROOF THEY

09:56:24

21

WOULD NEED TO DEFEND IT.

09:56:27

22

THE QUESTION OF "BORROWED" FROM TWOMBLY, HAVE WE GENERATED A

09:56:32

23

REASONABLE INFERENCE THAT DISCOVERY WOULD YIELD EVIDENCE TO

09:56:36

24

SUPPORT THE ELEMENTS OF THE CLAIM.

09:56:38

25

MR. GRYGIEL:

WELL, YOUR HONOR, THAT MIGHT BE.

ON THE OTHER HAND, WHEN, AS I'VE MENTIONED BEFORE, WHEN

AND THE THIRD WAY I THINK WE GET TO THIS LINK FROM THE

THOSE AREN'T MY WORDS.

AND IT'S FAIR ENOUGH TO SAY THAT FACEBOOK IS ON NOTICE OF

AND I THINK WE MORE THAN SATISFIED

AND A COUPLE OF OTHER POINTS THERE, YOUR HONOR, THAT I

UNITED STATES COURT REPORTERS

43

09:56:40

1

THINK ARE IMPORTANT.

TO THE EXTENT THERE'S ANY AMBIGUITY ABOUT

09:56:44

2

THIS, AS NUMEROUS CASES SAY, IT'S BLACK LETTER LAW, WE CITED

09:56:49

3

SANDQUIST, YOU CONSTRUE THAT AMBIGUITY AGAINST THE PARTY THAT

09:56:52

4

CREATED IT.

09:56:55

5

THE SAME THING.

09:56:56

6

09:56:58

7

09:56:59

8

09:57:03

9

09:57:08

10

09:57:11

11

CLASS PERIOD, LARGELY CONSISTENT WITH THE REPRESENTATIONS, IN

09:57:14

12

TERMS OF THEIR THEME, THE STRUCTURE IS A LITTLE DIFFERENT AND

09:57:17

13

THE WORDS ARE DIFFERENT, BUT THE THEME IS THE SAME AS THE

09:57:20

14

PREVIOUS PRIVACY POLICIES; ESSENTIALLY, A DISCLOSURE TO THE

09:57:23

15

USERS, HERE IS WHAT WE COLLECT, HERE IS HOW WE USE IT, HERE IS

09:57:27

16

WHAT WE DO WITH IT, HERE'S HOW WE PROTECT IT OR DO NOT PROTECT

09:57:30

17

IT, WITH ALL KINDS OF DISCLOSURES.

09:57:32

18

09:57:35

19

ISSUE IS ESSENTIALLY ONE OF A PIECE.

09:57:39

20

MAKING A NUMBER OF ITERATIONS, WHICH ISN'T A DEFENSE TO

09:57:41

21

CONTRACT, THAT'S SIMPLY SOMETHING FOR DISCOVERY, I'M SUPPOSED

09:57:46

22

TO UNDERSTAND WHAT EXACTLY PEOPLE ARE RELYING ON.

09:57:49

23

NEED RELIANCE, IT'S CONTRACT.

09:57:52

24

THE RELEVANT TIME FOR A PARTICULAR USER.

09:57:54

25

IN FACT, THE CALIFORNIA CIVIL CODE SAYS PRECISELY

THE COURT:

WELL, WHAT'S YOUR POSITION ON THE DATA

USE POLICY?
AND I ASK THE TIMING QUESTION, THE SEPTEMBER 7TH DATE AND
THE APRIL 26TH DATE.
MR. GRYGIEL:

DO YOU HAVE A THOUGHT ABOUT THAT?
CERTAINLY WITHIN THE ORIGINAL PLEADED

MY VIEW IS IT IS ONE OF A PIECE.

THIS ENTIRE PRIVACY
YOU'VE GOT FACEBOOK

YOU DON'T

WHAT EXACTLY WAS THE CONTRACT AT

BUT THAT'S SOMETHING YOU DO IN DISCOVERY.

UNITED STATES COURT REPORTERS

AND AS

44

09:57:56

1

MR. BROWN WAS UNKIND ENOUGH TO POINT OUT, WE ARE DOWN TO TWO

09:57:59

2

CLAIMS.

09:57:59

3

09:58:03

4

09:58:04

5

09:58:07

6

MANUFACTURING WAS ONE, GUIDOTTI WAS ONE OF THE OTHERS THAT SAY,

09:58:11

7

LOOK, TYPICALLY INCORPORATE BY REFERENCE IS A QUESTION OF LAW

09:58:15

8

FOR THE COURT, BUT THERE ARE CIRCUMSTANCES WHERE IT'S DIFFICULT

09:58:18

9

ENOUGH THAT THIS IS A QUESTION OF FACT.

09:58:21

10

09:58:24

11

IT'S CERTAINLY A QUESTION FOR FACT.

09:58:27

12

MATTER TO GO TO FACEBOOK, GET SOME FURTHER DISCOVERY, TAKE A

09:58:31

13

COUPLE OF DEPOSITIONS AND SAY, WHY DIDN'T YOU INCLUDE, FOR

09:58:33

14

EXAMPLE, A DISCLAIMER?

09:58:36

15

CAN'T DO THIS AND WE DON'T DO THIS WITHOUT DISCLOSURE AND

09:58:40

16

CONSENT, DIDN'T YOU UNDERSTAND YOU WERE ALREADY PROMISED

09:58:42

17

ELSEWHERE YOU WERE NOT TO DO THIS?

09:58:45

18

THAT PROMISE WAS MATERIAL?

09:58:45

19

I SEE THAT AS A VERY FINITE MATTER.

09:58:47

20

THE POINT FOR TODAY, YOUR HONOR, IS THAT THAT IS A FACTUAL

09:58:52

21

QUESTION, NOT SOMETHING THAT CAN BE RESOLVED ON LAWYERS

09:58:55

22

CHARACTERIZING DOCUMENTS, PARTICULARLY WHEN YOU HAVE AS CLEAR A

09:58:58

23

CHAIN AS YOU DO HERE.

09:58:58

24

09:59:01

25

SO WE'VE GOT A CONTRACT CLAIM AND IMPLIED COVENANT CLAIM.
THAT WOULD NOT BE TERRIBLY DIFFICULT TO SORT OUT.
AND WE CITED SOME CASES, YOUR HONOR, I THINK WEBER

I THINK WE ABSOLUTELY PASS MUSTER HERE.

BUT IF WE DON'T,

IT WOULD BE SIMPLE ENOUGH

DIDN'T YOU UNDERSTAND WHEN YOU SAID WE

AND DIDN'T YOU UNDERSTAND

THE FACT THIS INCLUDES THREE DOCUMENTS IS, FRANKLY, A
MATTER OF SUPREME INDIFFERENCE.

AS LONG AS THE ROAD, TO USE

UNITED STATES COURT REPORTERS

45

09:59:04

1

YOUR HONOR'S ANALOGY, IS PAVED, AND WE THINK IT'S LIGHTED,

09:59:06

2

THAT'S GOOD ENOUGH, YOU GET THERE.

09:59:08

3

THE COURT:

09:59:10

4

MR. GRYGIEL:

09:59:13

5

09:59:14

6

09:59:17

7

09:59:20

8

MR. GRYGIEL:

09:59:21

9

THE COURT:

09:59:22

10

09:59:24

11

IT'S IMPORTANT TO SUPPLEMENT THE RESPONSE, IF I MAY, WITH ONE

09:59:27

12

SENTENCE HERE.

09:59:28

13

THE COURT:

09:59:28

14

MR. STRAITE:

09:59:31

15

INCORPORATE THE SEPTEMBER 7TH, 2011 DATA USE POLICY, WHICH IS

09:59:35

16

THE NEW NAME FOR THE PRIVACY POLICY, IT'S THE SAME DOCUMENT,

09:59:38

17

BUT NEW NAME, WHETHER IT'S PERMISSIBLE TO INCORPORATE THAT INTO

09:59:41

18

THE EARLIER DATE OF SRR.

09:59:45

19

09:59:47

20

QUESTION IS WHEN IS THE DATE OF THE CONTRACT?

09:59:49

21

DATE IT WAS ISSUED, IT'S THE DATE THAT WAS AGREED TO BY THE

09:59:52

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USER.

09:59:53

23

09:59:55

24

09:59:59

25

OKAY.

THANK YOU VERY MUCH.

ANYTHING ELSE?

BECAUSE I'VE GOT PLENTY

OF OTHER THINGS I WOULD LIKE TO SAY, YOUR HONOR.
THE COURT:
PLEADINGS.

OH, I'M SURE YOU DO, BUT I'VE READ THE

THIS WAS THE ISSUE I WAS CURIOUS ABOUT.
EXCUSE ME, YOUR HONOR.

YES.

MR. STRAITE:

IS IT OKAY -- YOU ASKED A QUESTION, AND

OF COURSE.
YOU ASKED WHETHER IT'S PERMISSIBLE TO

KIND OF GO BACKWARDS IN TIME.

THAT'S ACTUALLY -- PROBABLY NOT THE RIGHT QUESTION.

THE

IT'S NOT THE

THE CONTRACT SAYS, THIS IS THE SRR, "BY USING OR ACCESSING
FACEBOOK, YOU AGREE TO THIS STATEMENT."
SO EVERY TIME THE USER ACCESSES THE FACEBOOK WEBSITE, THEY

UNITED STATES COURT REPORTERS

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10:00:02

1

AGREE TO THE SRR.

10:00:04

2

10:00:05

3

10:00:09

4

10:00:10

5

10:00:12

6

10:00:12

7

10:00:18

8

INDUSTRY-WIDE IF THAT WEREN'T THE CASE, BUT UNFORTUNATELY THE

10:00:18

9

LAW SAYS OTHERWISE.

10:00:18

10

10:00:21

11

THE CONTRACT IS NOT RE-AGREED TO EVERY TIME WHEN USERS USE THAT

10:00:25

12

SERVICE, BUT THAT'S THE LANGUAGE HERE OF THE CONTRACT.

10:00:27

13

SO IF A SUBSCRIBER OF PLAINTIFF ACCESSES THE SERVICE ON

10:00:31

14

SEPTEMBER 7TH, SEPTEMBER 8TH, 9TH OF 2011, AT THAT POINT THEY

10:00:34

15

ARE RE-AGREEING, ACCORDING TO THE TERMS OF THE CONTRACT, AND

10:00:38

16

THEREFORE WE DON'T HAVE TO GO BACK IN TIME, AND THE DATA USE

10:00:40

17

POLICY --

10:00:40

18

10:00:43

19

10:00:43

20

10:00:46

21

10:00:47

22

10:00:50

23

10:00:52

24

THE COURT:

10:00:53

25

MR. STRAITE:

SO SAY -THE COURT:

EVERY TIME YOU ACCESS, YOU ARE IN A NEW

CONTRACT?
MR. STRAITE:

THAT'S FACEBOOK'S POSITION, YES, YOUR

HONOR.
THAT'S WHAT THE CONTRACT SAYS.

I WOULD BE HAPPY

I HAVE MANY, MANY CASES WHERE I WOULD BE MUCH HAPPIER IF

THE COURT:

IT'S A CONTINUOUS CONTRACT THEN, ISN'T

IT?
MR. STRAITE:

NO, IT'S ONLY EACH TIME SOMEONE

ACCESSES FACEBOOK.
IF SOMEONE ACCESSES THE SERVICE EVERY MONTH, ONCE A MONTH,
THEN THEY AGREE TO THE CONTRACT EACH TIME.
EVERY DAY.
MANY PEOPLE ACCESS IT MORE THAN ONCE

UNITED STATES COURT REPORTERS

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10:00:56

1

PER DAY, YES.

10:00:57

2

10:00:59

3

10:00:59

4

10:01:01

5

10:01:04

6

10:01:08

7

TERMS OF THE CONTRACT, AND SO IF THERE'S A PROBLEM WITH THE

10:01:11

8

TIMING, THIS SOLVES THAT TIMING.

10:01:13

9

10:01:13

10

MR. STRAITE:

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11

THE COURT:

10:01:18

12

MR. GRYGIEL:

10:01:21

13

THE COURT:

MR. BROWN.

10:01:22

14

MR. BROWN:

WELL, THE DAILY CONTRACTING POINT JUST

10:01:25

15

MAKES THE MIND RACE WHEN THINKING ABOUT CLASS CERTIFICATION,

10:01:27

16

BUT WE WILL PUT THAT ASIDE FOR TODAY.

10:01:33

17

10:01:39

18

UNIVERSE," AND I WOULD SUBMIT THAT THE POSITIONS THAT THEY'VE

10:01:44

19

TAKEN HERE ARE FAR FROM RATIONAL.

10:01:48

20

10:01:52

21

IT CORRECTLY, THAT EVERY STATEMENT ON THE WEBSITE, THE FACEBOOK

10:01:57

22

WEBSITE, IS PART OF THE CONTRACT, UNLESS FACEBOOK SPECIFICALLY

10:02:02

23

DISCLAIMS IT WITHIN THE STATEMENT OF RIGHTS AND

10:02:04

24

RESPONSIBILITIES.

10:02:05

25

THE COURT:

AND SO THERE'S CONTINUAL CONTRACT GOING

ON.
MR. STRAITE:

IT'S AGREED TO EVERY SINGLE TIME

SOMEONE ACCESSES, ACCORDING TO THE TERMS OF THE CONTRACT.
THAT'S IN PARAGRAPH 23 OF THE COMPLAINT.

THE COURT:

SO THAT'S THE

OKAY.
I JUST WANTED TO POINT THAT OUT.

OKAY.

GREAT.

THANK YOU VERY MUCH.

THANK YOU, YOUR HONOR.

SO PLAINTIFF'S COUNSEL SPOKE OF A "RATIONAL CONTRACTURAL

PLAINTIFFS HAVE LITERALLY TAKEN THE POSITION, IF I HEARD

I HAVE NEVER EVER HEARD ANYBODY TAKE THAT POSITION ABOUT

UNITED STATES COURT REPORTERS

48

10:02:11

1

HOW WHEN TWO PARTIES DECIDE AND WHAT TERMS ARE GOING TO BE

10:02:15

2

INCLUDED IN A CONTRACT.

10:02:18

3

OBVIOUSLY, IT CAN'T BE THE CASE.

10:02:22

4

10:02:29

5

THAT THE SRR INCORPORATES BY REFERENCE THE PRIVACY POLICY,

10:02:34

6

BECAUSE ESSENTIALLY THE STATEMENT OF RIGHTS AND

10:02:37

7

RESPONSIBILITIES SAYS READ THE PRIVACY POLICY.

10:02:41

8

ESSENTIALLY THEIR POSITION.

10:02:42

9

10:02:49

10

DIFFERENT WAYS THAT PARTIES CAN DO THIS.

10:02:58

11

THE TIME THAT WE ARE TALKING ABOUT HERE, THE PRIVACY POLICY WAS

10:03:00

12

NOT INCORPORATED INTO THE STATEMENT OF RIGHTS AND

10:03:02

13

RESPONSIBILITIES, WHICH IS THE POSITION THAT I TOOK EARLIER.

10:03:05

14

10:03:08

15

10:03:11

16

BUT I ALSO WANTED TO JUST PROVIDE BY WAY OF EXAMPLE, AND

10:03:15

17

THIS WAS ATTACHED AS EXHIBIT 6 TO MY DECLARATION IN SUPPORT OF

10:03:23

18

THE MOTION, THIS IS A STATEMENT OF RIGHTS AND RESPONSIBILITIES.

10:03:27

19

IT'S DATED JANUARY 30TH, 2015, SO QUITE A BIT LATER THAN THE

10:03:33

20

TIME PERIOD THAT WE ARE TALKING ABOUT HERE.

10:03:38

21

AND AT THE END OF THAT STATEMENT OF RIGHTS AND

10:03:40

22

RESPONSIBILITIES IN BOLD FACE FONT, IT SAYS, "BY USING OR

10:03:45

23

ACCESSING FACEBOOK SERVICES, YOU AGREE THAT WE CAN COLLECT AND

10:03:49

24

USE SUCH CONTENT AND INFORMATION IN ACCORDANCE WITH THE DATA

10:03:53

25

POLICY, AS AMENDED FROM TIME TO TIME."

THAT'S AN ABSURD PROPOSITION.

THE PLAINTIFFS HAVE TOLD YOU THAT, HAVE TAKEN THE POSITION

THAT'S

WHAT I WANTED TO POINT OUT IS, YOU KNOW, THERE ARE
AND AT THE TIME, AT

AND THE MERE SORT OF REFERENCES AND ENCOURAGEMENT TO READ
IT DOESN'T SOMEHOW MAKE IT A CONTRACTURAL TERM.

UNITED STATES COURT REPORTERS

49

10:03:57

1

SO HERE WE HAVE A VERY SPECIFIC STATEMENT WITHIN THE SRR

10:04:04

2

WHEREBY USERS ARE VERY CLEARLY AND UNEQUIVOCALLY AGREEING THAT

10:04:10

3

THE TERMS OF THE DATA POLICY NEED TO BE COMPLIED WITH.

10:04:15

4

10:04:18

5

THREE PRIVACY POLICIES THAT ARE ATTACHED TO THE COMPLAINT, OR

10:04:22

6

THE DATA USE POLICY ATTACHED TO THE COMPLAINT.

10:04:31

7

10:04:38

8

REALLY POINTED QUESTIONS ABOUT WHAT LANGUAGE IN THE DATA USE

10:04:44

9

POLICY THEY WERE RELYING ON FOR THEIR PROPOSITION THAT THESE

10:04:48

10

PARTICULAR HELP PAGES THAT THEY ARE RELYING ON ARE

10:04:52

11

INCORPORATED.

10:04:53

12

10:04:59

13

PULL UP THE DATA USE POLICY AND POINT YOUR HONOR TO ANY

10:05:02

14

LANGUAGE IN THE DATA USE POLICY, WHICH IS WHAT ONE WOULD EXPECT

10:05:05

15

IN RESPONSE TO A QUESTION LIKE THAT, BUT RATHER TO GO TO THIS

10:05:10

16

LETTER DATED JANUARY 6, 2012 A LITTLE BIT LATER, BY THE WAY,

10:05:18

17

THAN THE CLASS PERIOD HERE, AND THIS IS ATTACHED AS EXHIBIT T,

10:05:23

18

AS IN TOM, TO THE COMPLAINT.

10:05:28

19

CLARIFICATION WHAT HE WAS READING FROM BECAUSE IT DIDN'T SOUND

10:05:33

20

LIKE THE DATA USE POLICY.

10:05:35

21

10:05:38

22

USE THIS LETTER TO SOMEHOW ESTABLISH THAT THE HELP CENTER WAS

10:05:41

23

INCORPORATED INTO THE DATA USE POLICY, RATHER THAN POINTING TO

10:05:45

24

THE LANGUAGE IN THE DATA USE POLICY ITSELF, WHICH I THINK IS

10:05:48

25

VERY, VERY TELLING.

AND THAT IS DIFFERENT FROM WHAT WE HAVE IN ANY OF THE

LET'S SEE, THE NEXT POINT IS THAT YOU ASK A NUMBER OF

AND I FOUND IT VERY STRIKING BECAUSE THE ANSWER WAS NOT TO

YOU RECALL I ASKED FOR

AND ESSENTIALLY, WHAT THEY ARE DOING IS THEY ARE TRYING TO

UNITED STATES COURT REPORTERS

50

10:05:53

1

AND I MIGHT JUST MAKE ONE ADDITIONAL POINT WHILE WE ARE

10:05:56

2

10:05:58

3

10:06:03

4

LAYERED APPROACH.

10:06:08

5

WOULD SUGGEST MISREPRESENT, IS THAT FACEBOOK IS SOMEHOW BOUGHT

10:06:13

6

INTO THIS CHAIN OF INCORPORATION THEORY THAT THEY ARE PUSHING

10:06:16

7

HERE IN THIS THIRD AMENDED COMPLAINT.

10:06:22

8

NOTHING TO DO WITH THAT.

10:06:23

9

10:06:27

10

POLICY.

10:06:32

11

ECF NUMBER 157-20, AND PAGE 9 OF THE LETTER, BATES NUMBER

10:06:39

12

ENDING 248.

10:06:41

13

10:06:46

14

A LAYERED APPROACH.

10:06:51

15

PAGE, AND THEN ALLOWING PEOPLE TO CLICK THROUGH THE POLICY FOR

10:06:54

16

MORE DETAILS.

10:06:55

17

10:06:59

18

USE POLICY, SIMPLY THAT YOU'VE GOT A SUMMARY OF THE DATA USE

10:07:03

19

PRACTICES ON THE FIRST PAGE, AND THEN YOU CAN HYPERLINK TO MORE

10:07:07

20

THOROUGH DESCRIPTIONS OF THOSE GENERAL PRACTICES.

10:07:10

21

10:07:14

22

THERE IS NO SORT OF ADMISSION IN THIS LETTER OF JANUARY 2012

10:07:20

23

THAT FACEBOOK WAS SOMEHOW ENDORSING THIS DAISY CHAIN THEORY OF

10:07:25

24

INCORPORATION WITH RESPECT TO ITS STATEMENT OF RIGHTS AND

10:07:28

25

RESPONSIBILITIES.

TALKING ABOUT EXHIBIT T, AS IN TOM.
THEY MAKE A LOT OUT OF THIS LANGUAGE IN THE LETTER ABOUT A
AND WHAT THEY ARE TRYING TO SUGGEST, AND I

AND IT HAS ABSOLUTELY

WHAT IT SAYS HERE IS THEY ARE TALKING ABOUT THE DATA USE
THIS IS ON PAGE 9 OF THE LETTER.

SO THIS IS DOCUMENT

AND IT SAYS IN IT, MEANING IN THE DATA USE POLICY, WE USE
SUMMARIZING OUR PRACTICES ON THE FRONT

THEY ARE TALKING ABOUT A LAYERED APPROACH WITHIN THE DATA

IT'S A LAYERED APPROACH WITHIN THE DATA USE POLICY ITSELF.

UNITED STATES COURT REPORTERS

51

10:07:33

1

MIGHT I ALSO POINT OUT IN TERMS OF INCORPORATION OF THE

10:07:38

2

HELP CENTER, THERE WAS A LOT OF TIME SPENT TRYING TO CONVINCE

10:07:41

3

YOUR HONOR THAT THE PRIVACY POLICY WAS INCORPORATED INTO THE

10:07:45

4

STATEMENT OF RIGHTS AND RESPONSIBILITIES, BUT OF COURSE

10:07:47

5

ULTIMATELY, THEY NEED ONE MORE LINK IN THE CHAIN AS WELL IN

10:07:50

6

ORDER TO GET TO THE HELP CENTER PAGES.

10:07:51

7

10:07:57

8

BUT I WANTED TO GUIDE THE COURT'S ATTENTION TO THE WOODS V.

10:08:00

9

GOOGLE CASE WHICH WE CITE IN OUR BRIEF, THAT WAS A DECISION BY

10:08:04

10

JUDGE FOGEL IN 2011.

10:08:09

11

CLASS ACTION, AND IT WAS A CLASS OF ADVERTISERS SUING GOOGLE

10:08:13

12

OVER THE AD WORDS IN THE PRODUCT.

10:08:15

13

10:08:22

14

ALL APPLICABLE GOOGLE AND PARTNER POLICIES, INCLUDING THE

10:08:26

15

EDITORIAL GUIDELINES."

10:08:30

16

10:08:33

17

THE AGREEMENT TO INCORPORATION OF ALL APPLICABLE GOOGLE

10:08:36

18

POLICIES IS CLEAR AND UNEQUIVOCAL, IT IS NOT APPARENT THAT THE

10:08:40

19

TERMS OF GOOGLE'S INVALID CLICKS POLICY IN THE AD WORDS HELP

10:08:45

20

CENTER ARE KNOWN OR EASILY AVAILABLE TO THE CONTRACTING

10:08:49

21

PARTIES.

10:08:49

22

10:08:53

23

THE AD WORDS HELP CENTER AND AD SENSE HELP CENTER, THAT

10:08:57

24

ALLEGEDLY IDENTIFIED GOOGLE'S OBLIGATIONS UNDER THE INVALID

10:09:01

25

CLICKS POLICY.

AND WE DON'T NEED TO TALK ABOUT THESE IN TOO MUCH DETAIL,

AND THAT WAS A CASE THAT -- IT WAS A

AND THE AGREEMENT THERE NOTED, "PROGRAM USE IS SUBJECT TO

AND JUDGE FOGEL HELD THERE THAT, "WHILE THE REFERENCE IN

THE COMPLAINT REFERS TO MORE THAN A DOZEN PAGES IN BOTH

UNITED STATES COURT REPORTERS

52

10:09:03

1

THE FACT THAT STATEMENTS ABOUT INVALID CLICKS ARE SPREAD

10:09:10

2

ACROSS A VARIETY OF PAGES IN A VARIETY OF FORMATS, MAKE IT

10:09:13

3

DIFFICULT TO IDENTIFY THE TERMS OF ANY ACTUAL AND UNAMBIGUOUS

10:09:17

4

CONTRACTURAL OBLIGATIONS."

10:09:19

5

STRIKINGLY SIMILAR TO THE SITUATION THAT WE HAVE HERE.

10:09:24

6

AND FURTHER, THERE WAS THE DUNKEL V. EBAY CASE WHICH WAS A

10:09:29

7

10:09:35

8

10:09:40

9

10:09:44

10

PLAINTIFFS ARGUED THAT THE HELP CENTER PAGES THAT THEY ATTACHED

10:09:46

11

TO THE COMPLAINT WERE INCORPORATED INTO THE USER AGREEMENT.

10:09:51

12

BUT THE COURT HELD THAT THE PLAINTIFFS HAD STILL FAILED TO

10:09:54

13

PROPERLY ALLEGE THE EXISTENCE OF AN AGREEMENT, PARTICULARLY IN

10:09:58

14

HOW THE HELP PAGES ARE INCORPORATED INTO THE USER AGREEMENT.

10:10:04

15

AND THAT CLAIM WAS DISMISSED WITHOUT LEAVE TO AMEND.

10:10:07

16

10:10:12

17

I WOULD JUST NOTE THAT THAT WAS ALSO A CONTRACT OF ADHESION AND

10:10:15

18

THAT WAS NOT REALLY RELEVANT TO THE ANALYSIS IN ANY WAY, AND

10:10:19

19

WAS ALSO DECIDED ON THE PLEADINGS.

10:10:23

20

10:10:26

21

REALLY, I DON'T THINK HOLDS ANY WATER.

10:10:31

22

CAN CERTAINLY BE DECIDED AS A MATTER OF LAW AT THE PLEADINGS

10:10:34

23

STAGE.

10:10:37

24

I MIGHT JUST MAKE ONE OTHER POINT TOO, IF I COULD.

10:10:42

25

THAT IS, YOU KNOW, IF THE ENTIRETY OF THE HELP CENTER IS

DECISION BY YOUR HONOR IN 2014, WHICH CITED WOODS V. GOOGLE.
AND THERE, THERE WAS A CAUSE OF ACTION AGAINST EBAY
RELATING TO THE SUSPENSION OF THE PLAINTIFF'S ACCOUNTS.

AND

NOT ONLY DID THAT CASE FAVORABLY CITE WOODS V. GOOGLE, BUT

SO THIS IDEA THAT THERE ARE ALL THESE FACTUAL ISSUES,
THIS IS AN ISSUE THAT

UNITED STATES COURT REPORTERS

AND

53

10:10:44

1

INCORPORATED, YOU KNOW, I DON'T THINK THAT WE'VE EVEN EXTENDED

10:10:50

2

THE LOGIC AS FAR AS IT CAN GO.

10:10:54

3

10:10:57

4

PROPOSITION THAT YOU COULD DO THAT.

10:11:01

5

ARE LINKS IN THE HELP CENTER, FOR INSTANCE, TO A HELP

10:11:04

6

COMMUNITY, AND THE HELP COMMUNITY, THERE ARE ALL SORTS OF

10:11:07

7

USER-GENERATED COMMENTS ABOUT VARIOUS THINGS ON FACEBOOK, USERS

10:11:12

8

HELPING EACH OTHER.

10:11:16

9

IN WITH HELPFUL COMMENTS, YOU KNOW, FACEBOOK TOOLS AND

10:11:22

10

10:11:23

11

10:11:27

12

ENTIRETY OF THE HELP COMMUNITY, WHICH IS LINKED TO IN THE HELP

10:11:30

13

CENTER, BECOME PART OF THE CONTRACT?

10:11:31

14

10:11:35

15

PROBLEMS, AND THAT'S WHY WE HAVE THE STANDARD OF CLEAR AND

10:11:39

16

UNEQUIVOCAL AND NEEDING THE INCORPORATED DOCUMENT TO BE BROUGHT

10:11:45

17

CLEARLY TO THE REFERENCE OF BOTH CONTRACTING PARTIES AND FOR

10:11:48

18

THERE TO BE CLEAR ASSENT TO IT.

10:11:53

19

PRINCIPLE UNDERLYING CONTRACT WHICH IS THAT WE NEED TO ENFORCE

10:11:57

20

THE CONTRACTURAL INTENT OF THE PARTIES.

10:12:00

21

THE COURT:

THANK YOU.

10:12:02

22

MR. BROWN:

THANK YOU, YOUR HONOR.

10:12:03

23

MR. GRYGIEL:

10:12:04

24

THE COURT:

10:12:06

25

I ALREADY THINK THAT THAT IS, FRANKLY, AN ABSURD
BUT WHY STOP THERE?

THERE

AND THEN FACEBOOK REPRESENTATIVES CHIMING

PRACTICES AND THE LIKE.
SO WHY SHOULD WE STOP AT THE HELP CENTER?

DOES THE

YOU CAN SEE WHERE IT JUST CREATES A WHOLE HOST OF MESSY

IT REINFORCES THE FUNDAMENTAL

THANK YOU VERY MUCH.

MAY I HAVE JUST --

OH, I THINK I'VE GOT ENOUGH.

THANK YOU.

I'M REMINDED OF THE MALTESE FALCON, I THINK IT WAS, WHEN

UNITED STATES COURT REPORTERS

54

10:12:11

1

SIDNEY GREENSTREET SPOKE TO SAM SPADE AND SAID, "HERE'S TO

10:12:17

2

PLAIN SPEAKING AND CLEAR UNDERSTANDING."

10:12:19

3

WERE TALKING WITH CONTRACTS, WEREN'T THEY.

10:12:23

4

THE MATTER IS UNDER SUBMISSION.

10:12:24

5

THANK YOU VERY MUCH.

10:12:27

6

MR. GRYGIEL:

10:12:30

7

MR. BROWN:

10:12:31

8

AND I SUPPOSE THEY
I'M SURE THEY WERE.

I APPRECIATE YOUR HELP THIS MORNING.

THANK YOU, YOUR HONOR.

THANK YOU, YOUR HONOR.

(THE PROCEEDINGS WERE CONCLUDED AT 10:12 A.M.)

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UNITED STATES COURT REPORTERS

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CERTIFICATE OF REPORTER

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I, THE UNDERSIGNED OFFICIAL COURT
REPORTER OF THE UNITED STATES DISTRICT COURT FOR

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THE NORTHERN DISTRICT OF CALIFORNIA, 280 SOUTH

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FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:

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THAT THE FOREGOING TRANSCRIPT,

14

CERTIFICATE INCLUSIVE, CONSTITUTES A TRUE, FULL AND

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CORRECT TRANSCRIPT OF MY SHORTHAND NOTES TAKEN AS

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SUCH OFFICIAL COURT REPORTER OF THE PROCEEDINGS

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HEREINBEFORE ENTITLED AND REDUCED BY COMPUTER-AIDED

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TRANSCRIPTION TO THE BEST OF MY ABILITY.

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_________________________
SUMMER A. FISHER, CSR, CRR
CERTIFICATE NUMBER 13185

DATED: 11/21/17