In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 56

Request for Judicial Notice re # 55 Reply to Opposition/Response, # 44 MOTION to Dismiss PLAINTIFFS CORRECTED FIRST AMENDED CONSOLIDATED CLASS ACTION COMPLAINT (FED. R. CIV. P. 12(b)(1) & 12(b)(6)) filed byFacebook Inc.. (Attachments: # 1 Proposed Order)(Related document(s) # 55 , # 44 ) (Brown, Matthew) (Filed on 8/22/2012)

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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]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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Case No. 5:12-md-02314 EJD

In re: Facebook Internet Tracking Litigation

DEFENDANT FACEBOOK, INC.’S REQUEST
FOR JUDICIAL NOTICE IN SUPPORT OF
ITS REPLY IN SUPPORT OF ITS MOTION
TO DISMISS PLAINTIFFS’ CORRECTED
FIRST AMENDED CONSOLIDATED CLASS
ACTION COMPLAINT (FED. R. EVID. 201)

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DATE:
TIME:
COURTROOM:
JUDGE:
TRIAL DATE:

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October 5, 2012
9:00 a.m.
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Edward J. Davila
None Set

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT pursuant to Federal Rule of Evidence 201, Defendant

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Facebook, Inc. (“Facebook”) hereby requests that the Court take judicial notice of the following

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documents in support of its Reply in support of its Motion to Dismiss Plaintiffs’ Corrected First

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Amended Consolidated Complaint (the “Complaint”):

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

Facebook’s Privacy Policy, last revised December 22, 2010 (“December 22, 2010

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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REQUEST FOR JUDICIAL NOTICE I/S/O DEF.
FACEBOOK’S REPLY I/S/O MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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Privacy Policy”), attached as Exhibit A to the concurrently-filed Declaration of

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Sandeep Solanki (“August 22, 2012 Solanki Declaration”).


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The California Senate Judiciary Committee’s Analysis of Senate Bill No. 1016

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(1996-1996 Reg. Sess.) as amended May 9, 1995, attached as Exhibit A to the

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concurrently-filed Declaration of Kyle C. Wong (“Wong Declaration”).


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Exhibit B to the Wong Declaration.


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The California Senate Committee on Public Safety’s Analysis of Senate Bill No.
1428 (2009-2010 Reg. Sess.) as introduced, attached as Exhibit C to the Wong

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California Senate Bill No. 1016 (1996-1996 Reg. Sess.) as chaptered, attached as

Declaration.
POINTS AND AUTHORITIES IN SUPPORT OF JUDICIAL NOTICE

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The documents listed above are proper subjects for judicial notice and the Court should

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consider them when ruling on Facebook’s Reply in Support of its Motion to Dismiss the

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Complaint (the “Reply”).

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I.

LEGAL STANDARDS

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When ruling on a motion to dismiss, a court may consider any matter that is subject to

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judicial notice. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (judicially

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noticing court documents on motion to dismiss); see also Tellabs, Inc. v. Makor Issues & Rights,

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Ltd., 551 U.S. 308, 322-23 (2007) (When ruling on a 12(b)(6) motion to dismiss “courts must

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consider the complaint in its entirety, as well as . . . documents incorporated into the complaint by

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reference, and matters of which a court may take judicial notice.”). Judicial notice is appropriate

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for facts “not subject to reasonable dispute” that are either generally known within the jurisdiction

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of the trial court or “can be accurately and readily determined from sources whose accuracy

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cannot reasonably be questioned.” Fed. R. Evid. 201(b).

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Additionally, in ruling on a motion to dismiss, a court may consider a document “not

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explicitly refer[red] to” in a complaint but which “the complaint necessarily relies upon.” Coto

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Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). This rule exists “in order to

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‘[p]revent [] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting . . .
REQUEST FOR JUDICIAL NOTICE I/S/O DEF.
2.
FACEBOOK’S REPLY I/S/O MOTION TO DISMISS

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

CASE NO. 5:12-MD-02314 EJD

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documents upon which their claims are based . . . .’” Swartz v. KPMG LLP, 476 F.3d 756, 763

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(9th Cir. 2007) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (judicially

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noticing insurance terms of service and administrative documents because the claim necessarily

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relied on plaintiff having been a member of the insurance plan)); see also Coto Settlement, 592

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F.3d at 1038 (judicially noticing Billing Agreement where complaint necessarily relied upon its

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terms).

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Because relevant documents in certain types of cases are found only online, “as a general

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matter, websites and their contents may be proper subjects for judicial notice,” provided that the

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party provides the court with a copy of the relevant web page. Caldwell v. Caldwell, No. C-05-

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4166 PJH, 2006 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006); see also Caldwell v. Caldwell, 420

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F. Supp. 2d 1102, 1105 n.3 (N.D. Cal. 2006) (noticing webpages); Kinderstart.com, LLC v.

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Google, Inc., No. C 06-2057 JF (RS), 2007 WL 831806, at *21 n.20 (N.D. Cal. Mar. 16, 2007)

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(noticing content on defendant’s website). If there is no dispute as to a document’s relevance, it

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can be judicially noticed as long as its authenticity may not be questioned. Coto Settlement, 593

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F.3d at 1038.

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II.

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ARGUMENT
A.
Because Plaintiffs’ Claims Rely Upon Facebook’s Governing Documents, the
Court Can and Should Take Judicial Notice of the December 22, 2010 Privacy
Policy.
Plaintiffs cannot reasonably dispute the authenticity or relevance of Facebook’s December

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22, 2010 Privacy Policy.1 Moreover, the Complaint references and relies upon the December 22,

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2010 Privacy Policy. Facebook’s Request for Judicial Notice should therefore be granted as to
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this document.
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As explained in further detail in the concurrently-filed declaration of Facebook in-house
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counsel, Sandeep Solanki (August 22, 2012 Solanki Decl. ¶ 2), the December 22, 2010 Privacy
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Policy contains Facebook disclosures during the class period regarding how Facebook collects
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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Indeed, Plaintiffs have not disputed the authenticity or relevance of the similar documents
Facebook sought judicial notice of in its July 2, 2012 Request for Judicial Notice (Dkt. 45), or
otherwise opposed that request. Plaintiffs quote from and rely upon those documents
(Facebook’s April 22, 2010 Privacy Policy and Data Use Policy) in their Opposition. (Opp. (Dkt.
No. 52), at 4 & n.6, 19.)
REQUEST FOR JUDICIAL NOTICE I/S/O DEF.
3.
FACEBOOK’S REPLY I/S/O MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD

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and uses content and information provided by Facebook Users that were in effect. Plaintiffs

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identify the December 22, 2010 Privacy Policy in their Opposition to Facebook’s Motion to

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Dismiss (Dkt. 54) (“Opposition”) as the policy “that governed Facebook’s relationship with its

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members between December 22, 2010 and September 23, 2011.” (Opp. 19.)

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Plaintiffs reference and rely upon Facebook’s Privacy and Data Use Policies in the

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Complaint. Plaintiffs allege that they are Facebook Users (Compl. ¶¶ 103-106) and that “[u]se of

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Facebook is governed by the Statement of Rights and Responsibilities and several other

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documents and policies, including a Data Use Policy and a Privacy Policy . . .” (id. ¶ 16).

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Additionally, Plaintiffs rely heavily on Facebook’s alleged contravention of Facebook’s Privacy

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and Data Use Policies throughout the Complaint and in support of their claims against Facebook.

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(See, e.g., id. ¶¶ 16, 103-06, 112, 140-41, 149, 160, 181, 220.)

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Because it is referenced and relied upon repeatedly throughout the Complaint, the

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December 22, 2010 Privacy Policy is appropriate for judicial notice. See Harris v. Cnty. of

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Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (judicially noticing five memoranda of

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understanding referenced in complaint); Coto Settlement, 593 F.3d at 1038. In fact, courts in this

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district have previously noticed Facebook’s SRR in connection with other actions brought against

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the company. See Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 795 (N.D. Cal. 2011); In re

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Facebook PPC Adver. Litig., No. 5:09-cv-03043-JF, 2010 WL 5174021, at *4 (N.D. Cal. Dec. 15,

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2010).

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Moreover, although the December 22, 2010 Privacy Policy is expressly referenced in

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Plaintiffs’ Complaint, they have not attached it. Notice is therefore also appropriate “in order to

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prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon

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which their claims are based . . . .” See Swartz, 476 F.3d at 763 (punctuation omitted).

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For these reasons, the Court should grant Facebook’s Request for Judicial Notice as to the
December 22, 2010 Privacy Policy.

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B.

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Plaintiffs also cannot reasonably dispute the authenticity or relevance of Exhibits A

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through C to the Wong Declaration (the “Legislative Documents”). Facebook’s Request for
REQUEST FOR JUDICIAL NOTICE I/S/O DEF.
4.
FACEBOOK’S REPLY I/S/O MOTION TO DISMISS

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

The Court Can and Should Judicially Notice the Legislative Documents.

CASE NO. 5:12-MD-02314 EJD

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Judicial Notice should therefore also be granted as to the Legislative Documents.

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The Legislative Documents relate to the legislative history of California Penal Code

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Section 629, reflecting amendments to that statute intended to encompass certain forms of

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electronic communications. These amendments were not made to the statute Plaintiffs rely upon,

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California Penal Code Section 631. Legislative history is a proper subject of judicial notice. See

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Chaker v. Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005) (noticing legislative history of

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California statute); Louie v. McCormick & Schmick Rest. Corp., 460 F. Supp. 2d 1153, 1156

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(C.D. Cal. 2006) (same); Joseph v. J.J. MacIntyre Cos., LLC, 238 F. Supp. 2d 1158, 1165 n.5

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(N.D. Cal. 2002) (noticing California Legislative Counsel’s analysis of legislative bill). The

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Court should therefore grant Facebook’s Request for Judicial Notice as to the Legislative

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Documents.

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III.

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CONCLUSION
For the foregoing reasons, Facebook respectfully requests that the Court notice the

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December 22, 2010 Privacy Policy and the Legislative Documents.

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Dated: August 22, 2012

COOLEY LLP

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/s/ Matthew D. Brown
Matthew D. Brown (196972)
Attorneys for Defendant
Facebook, Inc.

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2637321/ST

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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REQUEST FOR JUDICIAL NOTICE I/S/O DEF.
FACEBOOK’S REPLY I/S/O MOTION TO DISMISS
CASE NO. 5:12-MD-02314 EJD