In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 4

NOTICE by Facebook Inc. of Pendency of, action, Ung v. Facebook, Inc., No. 112-cv-217244 (Ung), pending in the Superior Court of the State of California, County of Santa Clara Facebook intends to move the Superior Court for a stay of proceedings in Ung pending resolution this matter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gutkin, Jeffrey) (Filed on 3/16/2012) Modified on 3/19/2012 (cv, COURT STAFF).

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COOLEY LLP
MICHAEL G. RHODES (116127)
([e-mail])
MATTHEW D. BROWN (196972)
([e-mail])
JEFFREY M. GUTKIN (216083)
([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

No. 5:12-md-02314-EJD

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Judge:

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TRIAL DATE:

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PERRIN AIKENS DAVIS, PETERSEN
GROSS, DR. BRIAN K. LENTZ,
TOMMASINA IANNUZZI, TRACY SAURO,
JENNIFER SAURO, and LISA SABATO,
Individually and on Behalf of All Others
Similarly Situated,

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Plaintiffs,

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Hon. Edward J. Davila
NOT YET SET

Case No. 5:11-cv-04834-EJD
Related Case Nos.: 5:11-cv-04935-EJD;
5:12-cv-00370-EJD; and 5:12-cv-00807EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

v.
FACEBOOK, INC.,
a Delaware Corporation
Defendant.

Action Filed: September 30, 2011

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

FACEBOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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LANA BRKIC,
Individually and on Behalf of All Others
Similarly Situated,

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v.

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In Re Facebook Internet Tracking
Litigation Case No. 5:12-md-02314-EJD

FACEBOOK, INC., a Delaware Corporation,
and DOES 1-10,
Defendants.
JULIAN CARROLL, On Behalf of Himself and
All Others Similarly Situated,

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Related Case Nos.: 5:11-cv-04834-EJD;
5:12-cv-00370-EJD; and 5:12-cv-00807EJD

Plaintiff,

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Case No. 5:11-04935-EJD

Plaintiff,
v.
FACEBOOK, INC., a Delaware Corporation,

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Action Filed: October 5, 2011
Case No. 5:12-cv-00370-EJD
Related Case Nos.: 5:11-cv-04834EJD; 5:11-cv-04935-EJD; and 5:12-cv00807-EJD
In Re Facebook Internet Tracking
Litigation Case No. 5:12-md-02314-EJD

Defendant.

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Action Filed: January 24, 2012

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LAURA MAGUIRE, ET AL., On Behalf of
Himself and All Others Similarly Situated,

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Related Case Nos.: 5:11-cv-04834EJD; 5:11-cv-04935-EJD; and
5:12-cv-00370-EJD
In Re Facebook Internet Tracking
Litigation Case No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC.,
Defendant.
ALEXANDRIA PARRISH, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

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Case No. 5:12-cv-00807-EJD

Action Filed: February 17, 2012
Case No. 5:12-cv-00667-EJD
In Re Facebook Internet Tracking
Litigation Case No. 5:12-md-02314-EJD

v.
FACEBOOK, INC., and DOES 1 Through 10,

Action Filed: October 7, 2011
Transferred February 8, 2012

Defendants.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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SHARON BEATTY, Individually and on
Behalf of All Others Similarly Situated,

v.
FACEBOOK, INC., and DOES 1 Through 10,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC. and DOES 1 through 10,

Action Filed: October 12, 2011
Transferred February 8, 2012

Defendants.
MICHAEL SINGLEY, Individually and on
Behalf of All Others Similarly Situated,

Civil No. 5:12-cv-00670-EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiffs,
v.
FACEBOOK, INC.,
DOES 1 THROUGH 10,

Action Filed: October 5, 2011
Transferred February 08, 2012

Defendants.

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DANA HOWARD, individually and on Behalf
of All Others Similarly Situated,

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Plaintiffs,

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COOLEY LLP
ATTORNEYS AT LAW

In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

FACEBOOK, INC. and DOES 1 through 10,

Action Filed: October 4, 2011 and
Transferred on February 8, 2012

Defendants.
JOHN GRAHAM, Individually and on
Behalf of All Others Similarly Situated,

Case No. 5:12-cv-00673-EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,

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Case No. 5:12-cv-00671-EJD

v.

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SAN FRANCISCO

Action Filed: October 7, 2011
Transferred February 8, 2012
Case No. 5:12-cv-00669-EJD

Defendants.
BROOKE RUTLEDGE, Individually and on
Behalf of All Others Similarly Situated,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,

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Case No. 5:12-cv-00668-EJD

v.
FACEBOOK, INC., and DOES 1 Through 10,

Action Filed: October 5, 2011
Transferred February 8, 2012

Defendants.
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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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DAVID M. HOFFMAN, Individually and on
Behalf of All Others Similarly Situated,

Case No. 5:12-cv-00674-EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.

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FACEBOOK, INC. and DOES 1 through 10,
Defendants.

Action Filed: October 7, 2011
Transferred February 8, 2012

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JANET SEAMON, Individually and on Behalf
of All Others Similarly Situated,

Case No. 5:12-cv-00675-EJD

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC. and DOES 1 through 10,

Action Filed: October 10, 2011
Transferred February 8, 2012

Defendants.

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CHANDRA L. THOMPSON, Individually and
on Behalf of All Others Similarly Situated,

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Plaintiff,

In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

FACEBOOK, INC. and DOES 1 through 10,

Action Filed: September 30, 2011
Transferred February 8, 2012

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Case No. 5:12-cv-00676-EJD

v.

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Defendants.

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STEPHANIE CAMPBELL, Individually and on
Behalf of All Others Similarly Situated,

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Plaintiff,

In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

FACEBOOK, INC. and DOES 1 through 10,

Action Filed: November 21, 2011
Transferred February 17, 2012

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v.

Defendants.

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CYNTHIA D. QUINN, Individually and on
Behalf of All Others Similarly Situated,

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Case No. 5:12-cv-00796-EJD

Case No. 5:12-cv-00797-EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC. and DOES 1 through 10,

Action Filed: October 18, 2011
Transferred February 17, 2012

Defendants.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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JEANNE M. WALKER,Individually and on
Behalf of All Others Similarly Situated,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC. and DOES 1 through 10,

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Case No. 5:12-cv-00798-EJD

Action Filed: October 20, 2011
Transferred February 17, 2012

Defendants.

JACQUELINE BURDICK,Individually and

Case No. 5:12-cv-00799-EJD

on Behalf of All Others Similarly Situated,

In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,
v.
FACEBOOK, INC. and DOES 1 through 10,

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Action Filed: October 25, 2011
Transferred February 17, 2012

Defendants.

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EDWARD STRAVATO,

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Plaintiff,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

v.
FACEBOOK, INC.; JOHN DOE 1-10,

Action Filed: December 14, 2011
Transferred February 17, 2012

Defendants.

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Case No. 5:12-cv-00800-EJD

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Case No. 5:12-cv-00801-EJD

MATTHEW J. VICKERY, and Other Persons
Similarly Situated,
Plaintiff,

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v.

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Defendants.
PATRICK K. MALONEY, Individually and on
Behalf of All Others Similarly Situated
Plaintiff,

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Action Filed: November 14, 2011
Transferred February 17, 2012

FACEBOOK, INC., DOES 1 thru 10,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Case No. 5:12-cv-00824-EJD
In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

v.
Action Filed: January 25, 2012
Transferred February 21, 2012

FACEBOOK, INC., DOES 1 THROUGH 10,
Defendants.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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JOON KHANG, Individually and On
Behalf of All Others Similarly Situated,

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In Re Facebook Internet Tracking
Litigation No. 5:12-md-02314-EJD

Plaintiff,

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Case No. 5:12-cv-00825-EJD

v.
FACEBOOK, INC.,

Action Filed: February 1, 2012
Transferred February 21, 2012

Defendant.

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DEFENDANT FACEBOOK, INC.’S NOTICE OF PENDENCY OF OTHER
ACTIONS OR PROCEEDINGS (CIVIL L.R. 3-13)

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Defendant Facebook, Inc. (“Facebook”), by and through its undersigned counsel of

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record, hereby notifies the Court and all parties, pursuant to Civil Local Rule 3-13, that the instant

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matter, In re Facebook Internet Tracking Litigation, No. 5:12-md-02314, involves overlapping

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subject matter and the same defendant as another action, Ung v. Facebook, Inc., No. 112-cv-

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217244 (“Ung”), pending in the Superior Court of the State of California, County of Santa Clara.1

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Facebook intends to move the Superior Court for a stay of proceedings in Ung pending resolution

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of this matter.
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The Ung complaint was filed on January 24, 2012 in Santa Clara Superior Court.2

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Facebook is the sole defendant. The Ung Plaintiffs purport to represent a putative class of

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Facebook users and non-Facebook users residing in the State of California who visited third-party

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websites displaying the Facebook “Like” button. (Ung Compl. ¶¶ 4-6.) Facebook’s deadline to

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respond to the Ung complaint is March 23, 2012.

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ATTORNEYS AT LAW
SAN FRANCISCO

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The California state courts have a similar rule to Civil Local Rule 3-13. California Rule of
Court 3.300 requires a notice to be filed “whenever a party in a civil action knows or learns that
the action or proceeding is related to another action or proceeding pending, dismissed, or
disposed of by judgment in any state or federal court in California,” and requires that notice be
served on all parties in the related cases. Accordingly, attached hereto as Exhibit A is a true and
correct copy of Facebook’s filing of a notice of related cases in the Superior Court of California,
County of Santa Clara, filed March 16, 2012 in Ung v. Facebook, Inc., 112-cv-217244.
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Attached hereto as Exhibit B is a true and correct copy of the Ung complaint.
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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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The Ung Plaintiffs allege that Facebook used the Like button to collect individual users’

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browsing history using “cookies.” (Id. ¶¶ 4-6, 14-16.) The Ung Plaintiffs allege that Facebook

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uses, among other mechanisms, a “datr tracking cookie” to “record web browsing of its members

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and non-members whenever they visit web pages enabled with the Like button or Facebook

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Connect.” (Id. ¶ 14.) The Ung Plaintiffs also cite the blog of Nik Cubrilovic (“Cubrilovic”),

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whose research, they claim, allegedly revealed “that Facebook collects Facebook members’ web

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browsing data, even after they have logged out of Facebook, by placing cookies on their computer

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and sharing their browsing data whenever the user visits a Facebook-enabled webpage.” (Id.

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¶ 15.) The Cubrilovic blog entry that forms the basis of these allegations states, “[w]ith my

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browser logged out of Facebook, whenever I visit any page with a Facebook like button, or share

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button, or any other widget, the information, including my account ID, is still being sent to

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Facebook.” (New Web Order, http://nikcub.appspot.com/posts/logging-out-of-facebook-is-not-

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enough (Sept. 25, 2011).) Facebook denies these allegations.

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The matter pending before this Court, In re Facebook Internet Tracking Litigation (the

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“MDL Actions”), is comprised of numerous putative class actions on behalf of Facebook users

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that were filed in various districts across the United States between September 2011 and February

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2012. Facebook is the sole defendant in these actions. Between February 8, 2012 and February

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22, 2012, they were transferred to this District by the United States Judicial Panel on Multidistrict

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Litigation to “eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with

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respect to class certification; and conserve the resources of the parties, their counsel, and the

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judiciary.” In re Facebook Internet Tracking Litig., MDL No. 2314 (Dkt. 45) (J.P.M.L. Feb. 8,

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2012). This Court has scheduled a case management conference for the MDL Actions on March

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30, 2012.

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Like Ung, the MDL Actions involve the same core set of allegations—that through the use

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of “cookies” (and one specific cookie, called the “datr cookie”), Facebook collected the Internet

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browsing history of individual users. (Compare Davis Compl. ¶¶ 22-23 with Ung Compl. ¶¶ 4-6,

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ATTORNEYS AT LAW
SAN FRANCISCO

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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14, 16.)3 The MDL Actions rely on the same September 2011 blog posts by Cubrilovic about

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Facebook cookies, including the datr cookie. (Compare Davis Compl. ¶¶ 21-23 with Ung Compl.

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¶ 15.) These allegations directly mirror the alleged conduct in Ung.4 (See, e.g., Ung Compl. ¶

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14.) Further, although the Ung action purports to assert claims on behalf of Facebook users and

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non-Facebook users, virtually all of the Facebook user sub-class in Ung is encompassed by the

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proposed Facebook user class in several of the MDL Actions. (E.g., Davis Compl. ¶ 31 (seeking

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certification of a putative class of “all persons who had active Facebook accounts and used

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Facebook between May 27, 2010 and September 26, 2011, both dates inclusive, and whose

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privacy was violated by Facebook”).) Moreover, Facebook will likely assert similar legal and

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factual defenses in the Ung action and the MDL Actions and discovery will likely involve similar

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documents and data.

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The Court need not review every complaint in the MDL Actions to see the clear overlap and
connection between those actions and Ung and may look to one of the two first-filed cases, Davis
v. Facebook, No. 11-cv-04834-EJD (N.D. Cal.) (“Davis”). It was the Davis plaintiffs who
initiated proceedings before the MDL Panel, and the Davis case that the MDL Panel determined
involved the same core, operative facts as the other MDL Actions.
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SAN FRANCISCO

The current complaint is the Ung Plaintiffs’ second attempt to pursue an action in state court.
They originally filed a significantly less-detailed complaint in state court last year, a true and
correct copy of which is attached hereto as Exhibit C. (Ung v. Facebook, Inc., No. 111-cv200467 (filed May 9, 2011).) Notably, that earlier case did not discuss the “datr tracking cookie,”
which now figures prominently in the current complaint. (Compare Ung v. Facebook, Inc., No.
111-cv-200467, Compl. ¶¶ 4-6 (claiming that Facebook used the Like button and Facebook
Connect to “collect” plaintiffs’ “browsing history” but not mentioning the datr cookie) with Ung
Compl. ¶¶ 4-6 (claiming that each plaintiff found the datr cookie on his or her computer after
having visited specific third-party websites and that Facebook used the Like button and Facebook
Connect to “track and collect” plaintiffs’ “browsing history”).) The original Ung complaint also
did not contain a single reference to Cubrilovic or his blog, which details how the datr cookie
allegedly works, as the current complaint does. (Ung Compl. ¶ 14.) Nor did Plaintiffs’ original
complaint allege a violation of California’s wiretap law as the current complaint does. (Id. ¶¶ 4249.)
Facebook subsequently removed the first Ung case to federal district court. After briefing on
Facebook’s motion to dismiss and on jurisdictional issues was filed, the Ung Plaintiffs voluntarily
dismissed their federal action on December 14, 2011. (Ung v. Facebook, Inc., 3:11-cv-02829JSW (N.D. Cal.), Dkt. 41.) On January 24, 2012, the current complaint was filed with the
significant revisions and new detailed factual allegations concerning the datr cookie and the
Cubrilovic blog posts.
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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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Accordingly, Facebook has moved the California Superior Court before which Ung is
pending to stay those proceedings pending resolution of this matter.

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Dated: March 16, 2012

COOLEY LLP

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/s/ Jeffrey M. Gutkin
Jeffrey M. Gutkin (216083)

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Attorneys for Defendant FACEBOOK, INC.

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD

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CERTIFICATE OF SERVICE
(FRCP 5)

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The undersigned certifies that the foregoing document was served on all counsel who are

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deemed to have consented to electronic service. Civil L.R. 5-5. The counsel of record not

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deemed to have consented to electronic service, listed below, were served with a true and correct

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copy of the foregoing by U.S. First Class Mail on March 16, 2012.

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Attorney for Plaintiffs
Ryan Ung, Chi Chen and
Alice Rosen (Ung v. Facebook, Inc. matter)
Jeffrey S. Westerman
David E. Azar
MILBERG LLP
300 S. Grand Ave., Suite 3900
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
/s/ Amy E. Nash
Amy E. Nash

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1016296 /HN

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FACEOOK’S NOTICE OF PENDENCY OF ACTION
5:11-CV-04834 –EJD AND
ALL CASES IN 5:12-MD-02314-EJD