In Re FACEBOOK INTERNET TRACKING LITIGATION

Filing 60

Transcript of Proceedings held on 10/05/2012, before Judge Davila. Court Reporter/Transcriber Irene L. Rodriguez, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/7/2012. Redacted Transcript Deadline set for 11/19/2012. Release of Transcript Restriction set for 1/15/2013. (Rodriguez, Irene) (Filed on 10/17/2012)

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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IN RE: FACEBOOK INTERNET
TRACKING LITIGATION.

CASE NO.

MD-12-02314-EJD

SAN JOSE, CALIFORNIA
OCTOBER 5, 2012

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PAGES 1 - 58

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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 PLAINTIFFS:

KEEFE BARTELS
BY:
STEPHEN G. GRYGIEL
170 MONMOUTH STREET
RED BANK, NEW JERSEY 07701
STEWARTS LAW
BY: DAVID A. STRAITE
535 FIFTH AVENUE
NEWS YORK, NEW YORK 10017
KIESEL BOUCHER LARSON
BY: PAUL R. KIESEL
8648 WILSHIRE BOULEVARD
BEVERLY HILLS, CALIFORNIA 90211

(APPEARANCES CONTINUED ON THE NEXT PAGE.)
OFFICIAL COURT REPORTER:

IRENE L. RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8074

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY,
TRANSCRIPT PRODUCED WITH COMPUTER.

UNITED STATES COURT REPORTERS

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A P P E A R A N C E S: (CONT'D)

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FOR THE DEFENDANTS:

COOLEY
BY: MATTHEW D. BROWN
101 CALIFORNIA STREET, 5TH FLOOR
SAN FRANCISCO, CALIFORNIA
94111

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UNITED STATES COURT REPORTERS

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SAN JOSE, CALIFORNIA

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OCTOBER 5, 2012
P R O C E E D I N G S

(COURT CONVENED.)

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THE CLERK:

CALLING MDL-12-2314, IN RE:

FACEBOOK

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MR. BROWN:

MATTHEW BROWN WITH COOLY FOR FACEBOOK.

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THE COURT:

THANK YOU.

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MR. GRYGIEL:

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THE COURT:

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MR. STRAITE:

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STRAITE FROM STEWARTS LAW U.S., CO-LEAD COUNSEL FOR THE

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PLAINTIFFS.

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THE COURT:

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MR. KIESEL:

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MY ATTENTION ON, JUST FOR ALL OF YOUR BENEFITS, IS REALLY THE

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STANDING ISSUE AND THAT JURISDICTIONAL QUESTION AND THAT SEEMS

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THAT'S REALLY THE PARAMOUNT TOPIC OF DISCUSSION HERE.

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AND I'M EAGER TO HEAR FROM THE PLAINTIFFS.

INTERNET TRACKING LITIGATION.
ON FOR MOTION TO DISMISS AND PLAINTIFF'S CORRECTED FIRST
AMENDED CONSOLIDATED CLASS ACTION.
COUNSEL, PLEASE COME FORWARD AND STATE YOUR APPEARANCES.

GOOD MORNING.

GOOD MORNING, YOUR HONOR.

STEVE

GRYGIEL FROM KEEFE BARTELS FOR THE CLASS PLAINTIFFS.
THANK YOU.

GOOD MORNING.

GOOD MORNING, YOUR HONOR.

THANK YOU.

DAVID

GOOD MORNING.

AND, YOUR HONOR, LAST BY NOT LEAST PAUL

KIESEL FROM KIESEL BOUCHER LARSON FOR PLAINTIFFS.
THE COURT:

THANK YOU.

GOOD MORNING.

MR. BROWN, I BELIEVE THIS IS YOUR MOTION, AND WHAT I FOCUS

UNITED STATES COURT REPORTERS

BUT,

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MR. BROWN, I'D ALSO LIKE TO HEAR FROM YOU AS TO YOUR THOUGHTS

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ADDITIONALLY AS TO THE WIRETAP STATUTE AND THE SCA STATUTE AND

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YOUR THOUGHTS ABOUT THAT AND WHETHER OR NOT THIS CASE --

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WHETHER OR NOT PLAINTIFFS HAVE STATED SUFFICIENT GROUNDS TO

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ALLOW THE CASE TO REMAIN.

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HAVE BROUGHT THAT UP BECAUSE THAT'S WHERE I WAS GOING TO BEGIN

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IN ANY EVENT.

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COMPLAINT IS JUST THE UTTER LACK OF ALLEGATIONS OF ANY SORT OF

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INJURY TO THESE PARTICULAR NAMED PLAINTIFFS.

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AND AS WE KNOW, EVEN THOUGH IT'S PLED AS A PUNITIVE CLASS

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ACTION, THE NAMED PLAINTIFFS THEMSELVES HAVE TO ALLEGE INJURY,

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AND, IN FACT, THAT WAS PROXIMATELY CAUSED BY THE ALLEGED

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CONDUCT, AND HERE THEY HAVE NOT DONE ANYTHING CLOSE TO THAT LET

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ALONE FOR CLASS MEMBERS.

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THEY HAVEN'T ALLEGED WHAT SORT OF DATA OR INFORMATION WAS

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ACTUALLY COLLECTED.

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WHETHER FACEBOOK USED THIS IN SOME WAY OR DISCLOSED IT TO

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ANYBODY ELSE AND ANY THIRD PARTY.

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THEY HAVE A CONCLUSORY ALLEGATION THAT THEIR PERSONAL

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INFORMATION OR THE BROWSING HISTORY HAS VALUES AND SOME SORT OF

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ECONOMIC VALUE.

SO I'M HAPPY TO HEAR FROM YOU.
MR. BROWN:

THANK YOU.

WELL, I'M HAPPY THAT YOU

AND ONE OF THE MOST STRIKING THINGS, I THINK, ABOUT THE

PLAINTIFFS HAVEN'T ALLEGED WHAT WEBSITES THEY VISITED,

THEY DON'T HAVE ANY ALLEGATIONS AS TO

UNITED STATES COURT REPORTERS

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THE COURT:

WELL, IT HAS VALUE TO FACEBOOK.

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MR. BROWN:

WELL, IT MAY.

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MEAN, OUR BRIEFS ARE REPLETE WITH CITATIONS TO CASE LAW WHERE

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THIS VERY CLEARLY HAS BEEN REJECTED.

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I CAN THINK OF CASES IN JUST THE LAST THREE YEARS WHERE THIS

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THEORY HAS PROBABLY BEEN REJECTED TEN TIMES.

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THAT THEY HAVEN'T ALLEGED WHATSOEVER THAT THEY HAVE EVER BEEN

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OFFERED BY ANYONE TO BE PAID FOR THIS INFORMATION AND THAT

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THERE'S ANY SORT OF MARKET THAT THEY PERSONALLY CAN TAKE

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ADVANTAGE OF AND IT'S A LOT OF HIGH THEORY ABOUT THINGS LIKE

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VALUE-FOR-VALUE EXCHANGE, BUT I WAS ACTUALLY SURPRISED TO SEE

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LANGUAGE LIKE THAT IN THE COMPLAINT BECAUSE THERE ARE CASES

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THAT LITERALLY USE THAT SAME LANGUAGE BECAUSE IT'S BEEN ALLEGED

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IN OTHER COMPLAINTS IN OTHER CASES LIKE THE LACOURT VERSUS

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SPECIFIC MEDIA CASE, LIKE THE IPHONE APPLICATION CASE THAT IS

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PENDING BEFORE JUDGE KOH, AND THAT THEORY HAS BEEN REJECTED

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TIME AND TIME AGAIN.

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ACT AND THE SCA, JUST LOOKING AT SORT OF THE BIG PICTURE AT THE

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CASE, THERE'S JUST AN UTTER LACK OF ANY ALLEGATION IN THE

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COMPLAINT THAT THESE SPECIFIC PLAINTIFFS WERE HARMED PERSONALLY

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AND IN A WAY THAT WAS TETHERED TO THE ALLEGED CONDUCT.

THE COURT:

BUT THERE HAVE BEEN -- I

THIS THEORY NOW.

I MEAN,

THIS THEORY BEING THE INDIVIDUAL VALUE

OF PERSONAL IDENTITY IN AN INDIVIDUAL CAPACITY.
MR. BROWN:

YEAH, THAT'S RIGHT.

AND THE FACT IS

SO IN TERMS OF JUST BRACKETING FOR A SECOND THE WIRETAP

UNITED STATES COURT REPORTERS

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AND, AGAIN, BEFORE GETTING TO THAT SCA AND WIRETAP ACT,

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PORTIONS OF THE ANALYSIS I WOULD HIGHLIGHT THAT WE HAVE

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OBVIOUSLY HIGHLIGHTED MANY CASES IN OUR BRIEFS THAT STAND ON

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THOSE BUT TO DRAW OUT A FEW CITATIONS, THE LOW VERSUS LINKEDIN

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CASE WHICH JUDGE KOH ISSUED A DECISION ON NOVEMBER 11TH, 2011.

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COOKIES ON THE PLAINTIFF'S COMPUTERS AND PERMITTED THIRD

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PARTIES TO VIEW THE BROWSER HISTORY AND LINKED TO THE USER I.D.

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FAIRLY ANALOGOUS.

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PROPERTY WITH THE MARKET VALUE THAT WAS TAKEN WITHOUT

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COMPENSATION AND YET THAT COMPLAINT WAS DISMISSED ON ARTICLE

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III GROUNDS BECAUSE JUDGE KOH HELD IT WAS TOO ABSTRACT AND

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HYPOTHETICAL AND PLAINTIFF HAD NOT YET ARTICULATED OR ALLEGED A

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PARTICULARIZED AND CONCRETE HARM, AND I THINK THAT'S EXACTLY

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WHAT WE HAVE HERE.

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LOOKING SPECIFICALLY AT THE DECISION OF SEPTEMBER 20TH, 2011,

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ALSO BY JUDGE KOH.

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DIFFERENT ASPECTS OF THE ANALYSIS.

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RISK OF INJURY THAT THE PLAINTIFFS ALLEGE WAS NOT CONCRETE AND

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PARTICULARIZED TO THEMSELVES.

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AND SHE HELD THERE THAT PLAINTIFFS DO NOT IDENTIFY WHAT

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I-DEVICES THEY USE, DO NOT IDENTIFY WHICH DEFENDANT, IF ANY,

THAT WAS A CASE WHERE IT WAS ALLEGED LINKEDIN HAD PLACED

THEY ALLEGE THAT THE RELEVANT HISTORY WAS PERSONAL

THE ANALOGIES ARE STRIKING.

SIMILARLY IN THE IPHONE APPLICATION LITIGATION, AND I'M

AND IN THAT DECISION, JUDGE KOH IDENTIFIED SORT OF TWO
AND THE FIRST WAS THAT THE

UNITED STATES COURT REPORTERS

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ACCESSED OR TRACKED THEIR PERSONAL INFORMATION, DO NOT IDENTIFY

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WHICH APPS THEY DOWNLOADED THAT ACCESS OR TRACK THEIR PERSONAL

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INFORMATION -- I'LL SLOW DOWN -- AND DO NOT IDENTIFY WHAT HARM,

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IF ANY, RESULTED FROM THE ACCESS OR TRACKING OF THEIR PERSONAL

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INFORMATION.

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INFORMATION HAS BEEN ACCESSED OR TRACKED, BUT YOU HAVE TO SHOW

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SOME RESULTING HARM.

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STILL HAVE TO SHOW SOME HARM THAT IS PROXIMATELY CAUSED BY THAT

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THAT THERE WAS NO ARTICLE III STANDING WAS THAT THE PLAINTIFFS

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HAD NOT IDENTIFIED A CONCRETE HARM FROM THE ALLEGED COLLECTION

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AND TRACKING OF THEIR PERSONAL INFORMATION.

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IS ARE THE ALLEGATIONS PARTICULARIZED AS TO THE PLAINTIFFS

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THEMSELVES AND THE OTHER IS, IS THERE TRULY A CONCRETE HARM?

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THAT I MENTIONED BEFORE AND SAID -- AND NORMALLY I DON'T USE

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LONG QUOTES FROM CASES IN ORAL ARGUMENT, BUT I THINK IT'S

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IMPORTANT TO EMPHASIZE THIS POINT.

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IN SPECIFIC MEDIA PLAINTIFFS ACCUSED AN ONLINE THIRD-PARTY

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ADMIN, SPECIFIC MEDIA, IN SELLING COOKIES ON THEIR COMPUTERS TO

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CERTAIN USER PRIVACY CONTROLS AND TRACK INTERNET USE WITHOUT

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KNOWLEDGE OR CONSENT.

SO, IN OTHER WORDS, IT'S NOT ENOUGH TO ALLEGE JUST

THAT'S THE ALLEGED VIOLATION.

BUT YOU

VIOLATION, AND THOSE ARE TWO DISTINCT THINGS.
THE SECOND AND SORT OF DISTINCT GROUND ON WHICH SHE HELD

AND IT'S SLIGHTLY DIFFERENT.

IT SOUNDS SIMILAR, BUT ONE

AND JUDGE KOH CITED LACOURT VERSUS SPECIFIC MEDIA CASE

UNITED STATES COURT REPORTERS

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THE COURT, HOWEVER, HELD THAT THE PLAINTIFFS LACKED

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ARTICLE III STANDING BECAUSE THEY HAD NOT ALLEGED THAT ANY

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NAMED PLAINTIFF WAS ACTUALLY HARMED BY DEFENDANT'S ALLEGED

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CONDUCT; AND, TWO, THEY HAD NOT ALLEGED ANY PARTICULARIZED

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EXAMPLE OF ECONOMIC INJURY OR HARM TO THEIR COMPUTERS BUT

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INSTEAD ONLY OFFERED ONLY ABSTRACT CONCEPTS SUCH AS OPPORTUNITY

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COSTS, VALUE-FOR-VALUE EXCHANGES, CONSUMER CHOICE, AND

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DIMINISHED PERFORMANCE.

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THE DOUBLECLICK CASE AND THE JETBLUE CASE, WHICH WE'VE ALSO

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CITED IN OUR PAPERS.

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LITIGATION, THE PLAINTIFFS HAVE NOT YET ARTICULATED A COHERENT

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AND FACTUALLY SUPPORTIVE THEORY OF INJURY.

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STATED GENERAL ALLEGATIONS ABOUT IN THAT CASE THE MOBILE

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INDUSTRY DEFENDANTS, THE MARKET FOR APPS, AND SIMILAR ABSTRACT

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CONCEPTS, E.G., OPPORTUNITY COSTS, VALUE-FOR-VALUE EXCHANGES,

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BUT PLAINTIFFS HAVE NOT IDENTIFIED ANY ACTUAL INJURY TO

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THEMSELVES FOR ARTICLE III STANDING.

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DECISION THAT I CITED EARLIER, THE IPHONE APPLICATION DECISION

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THAT I JUST READ FROM, WHICH ITSELF CITES THE SPECIFIC MEDIA

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CASE, DOUBLECLICK, AND JETBLUE, THE PARALLELS ARE QUITE

OTHER CASES HAVE HELD THE SAME AND THE COURT ALSO CITES

THE SAME IS TRUE HERE.

THE COURT HELD IN THE IPHONE

THE PLAINTIFFS HAVE

AND THANKS FOR YOUR INDULGENCE IN ALLOWING ME TO SPIT ALL
OF THAT OUT.
BUT THE PARALLELS HERE BETWEEN THE LOW VERSUS LINKEDIN

UNITED STATES COURT REPORTERS

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STRIKING.

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I WOULD BRING TO THE COURT'S ATTENTION AND REMIND THE

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COURT SINCE THIS COURT IS FAMILIAR WITH THE GAOS VERSUS GOOGLE

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DECISION.

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TO THIRD PARTIES THESE URL'S THAT CONTAINED WITHIN THEM THE

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SEARCH QUERIES THAT PEOPLE ENTERED AND IN THAT CASE THE

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PLAINTIFFS HAD ACTUALLY ALLEGED THAT THEY HAD DONE SEARCHES FOR

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THEIR OWN NAMES, FOR FAMILY MEMBER NAMES, THAT THEY THEMSELVES

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CLICKED ON THE LINKS ON THE SEARCH RESULTS PAGE, THAT GOOGLE

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SENT URL'S TO THIRD PARTIES AND THIS PLAINTIFF DID NOT

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AUTHORIZE ANY OF THAT.

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THAT WAS THE STATE OF THE PLEADINGS IN THAT CASE.

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HONOR RULED THERE THAT -- AGAIN, BACK JUST FOR A SECOND, THE

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SCA CLAIMS, AS TO ALL OTHER CLAIMS, SIX COMMON LAW CLAIMS,

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THERE WAS NO STANDING BECAUSE THAT EVEN WASN'T SUFFICIENTLY

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PARTICULARIZED OR CONCRETE ENOUGH TO CONSTITUTE ARTICLE III

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STANDING AND THERE WERE CLAIMS FOR FRAUD, PUBLIC DISCLOSURE OR

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PRIVATE FACTS SOMEWHAT SIMILAR TO THE CLAIMS IN THIS CASE AND

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THERE WERE OTHER CLAIMS AS WELL.

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ACT CLAIM, AS AN INITIAL MATTER, WE WOULDN'T CONCEDE THAT THE

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ADWORDS VERSUS FIRST AMERICAN DECISION IN THE NINTH CIRCUIT WAS

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CORRECTLY DECIDED BUT WE ACKNOWLEDGE THAT THAT CASE LAW IS OUT

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THERE IN THE NINTH CIRCUIT.

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IN THERE THE ALLEGATIONS WERE THAT GOOGLE DISCLOSED

YOUR

TURNING THEN TO THE SCA CLAIM AND HERE ALSO THE WIRETAP

AND THERE HAVE BEEN SOME DECISIONS FOLLOWING FROM THAT

UNITED STATES COURT REPORTERS

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THAT HAVE HELD ON THE PARTICULAR FACTS OF THOSE CASES, THAT

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THERE WAS STANDING DUE TO THE ALLEGATIONS OF WIRETAP ACT

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VIOLATIONS OR SCA VIOLATIONS, BUT, AGAIN, THE GAOS VERSUS

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GOOGLE CASE, I THINK IS AN INTERESTING COUNTERPOINT.

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YOUR HONOR THERE HELD THAT THERE WAS STANDING FOR THAT

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PARTICULAR CLAIM, NOT FOR THE REST OF THE CLAIMS, BUT THE FACTS

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WERE DIFFERENT THERE, AND I SET THEM FORTH JUST A FEW MINUTES

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AGO.

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SEARCHES THEY DID, INCLUDING THEIR NAME AND THEIR FAMILY'S

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NAMES, THAT THEY ACTUALLY CLICKED ON THE LINKS.

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APPARENTLY UNDER RULE 11 WERE ABLE TO ALLEGE THAT GOOGLE HAD

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TRANSMITTED THOSE PARTICULAR URL'S TO THIRD PARTIES.

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KNOW ENOUGH ABOUT THE CASE TO KNOW EXACTLY HOW THEY COULD DO

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THAT, BUT APPARENTLY THEY COULD CONSISTENT WITH RULE 11 AND

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THAT THAT PARTICULAR PLAINTIFF DID NOT AUTHORIZE IT.

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THAT'S DISTINCT FROM THE SITUATION THAT WE HAVE HERE.

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JUST BECAUSE YOU HAVE AN SCA AND YOU ALLEGE AN SCA VIOLATION TO

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THROW IT INTO YOUR COMPLAINT OR YOU THROW A WIRETAP ACT CLAIM

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INTO YOUR CLAIM OR INTO YOUR COMPLAINT, DOESN'T MEAN YOU GET A

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FREE PASS IN ARTICLE III STANDING.

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ANALYSIS ENDS THERE.

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THE COURT:

WHAT IS LACKING?

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MR. BROWN:

WELL, YOU STILL HAVE TO SHOW THAT, YOU

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I MEAN, VERY DETAILED ALLEGATIONS ABOUT WHAT KIND OF

THEY

I DON'T

AND

IT'S NOT AS THOUGH THE

HAVE TO HAVE ENOUGH FACTS IN YOUR COMPLAINT THAT SHOW THAT THAT

UNITED STATES COURT REPORTERS

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VIOLATION IS SOMEHOW TETHERED TO YOU.

IT CAN'T JUST BE A

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GENERALIZED SORT OF POLICY COMPLAINT ABOUT THE CONDUCT AT

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ISSUE.

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OR LETTERS TO THE EDITOR OR THERE ARE A LOT OF OTHER DIFFERENT

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FORUMS THAT YOU CAN EXPRESS YOUR OPINIONS ON THOSE THINGS BUT

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HERE IN FEDERAL COURT YOU'RE SUPPOSED TO HAVE A CASE OR

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CONTROVERSY, AND IF YOU DON'T HAVE A CASE OR CONTROVERSY THAT

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DEALS WITH THIS SPECIFIC NAMED PLAINTIFF IN THE CASE, THEN

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THERE'S NO STANDING AND THE COURT DOESN'T EVEN HAVE SUBJECT

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MATTER JURISDICTION, AND I THINK THAT THAT IS LACKING HERE AND

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ALTHOUGH THERE HAVE BEEN SOME OTHER CASES THAT HAVE HELD ON THE

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PARTICULAR FACTS ALLEGED IN THE COMPLAINT THAT THERE WAS

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STANDING, BUT I THINK THIS CASE IS DISTINCT.

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ADDRESSING THE STANDING ISSUE AND WIRETAP ACT AND MY COLLEAGUE,

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MR. STRAITE, WILL ADDRESS THE STORED COMMUNICATIONS ACT.

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MOTION TO DISMISS AS WELL AS A MOTION FOR A LACK OF STANDING,

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12(B)(1) AND 12(B)(6).

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RULE 56 ARGUMENT, AND I WOULD SUBMIT TO THE COURT IT'S ONE RULE

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AT A TIME.

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12(B)(6), WHICH IS A VERY DIFFERENT STANDARD FROM RULE 56.

THAT'S APPROPRIATE FOR LETTERS TO THE COMPANY, PERHAPS,

THE COURT:

THANK YOU VERY MUCH.

MR. STRAITE OR

MR. GRYGIEL.
MR. GRYGIEL:

GOOD MORNING, YOUR HONOR.

LET ME START WITH A COUPLE OF POINTS.

I'LL BE

WE ARE HERE ON A

NOW, WHAT I JUST HEARD IS ESSENTIALLY THE EQUIVALENT OF A

12(B)(1) IS A VERY DIFFERENT STANDARD FROM

UNITED STATES COURT REPORTERS

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LET'S START THEN WITH WHAT WE ACTUALLY PLEADED IN OUR

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COMPLAINT, AND I DIDN'T HEAR ANY MENTION OF IT.

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PARAGRAPH 19 OF OUR COMPLAINT.

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COMPLAINT, AND PARAGRAPH 26 OF OUR COMPLAINT.

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ALLEGE?

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THAT HAD IT HAD BEEN DOING PRECISELY THAT WHICH IT PROMISED IT

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WOULD NOT DO, THAT IS, TO TRACK ITS USERS AFTER THEY HAD LOGGED

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OUT, A VERY SIMPLE PARAGRAPH, WHEN THEY DISCOVERED TO HAVE BEEN

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DOING THAT, WHAT WE DIDN'T HEAR IS ANY OF THE LAWYER CONGERIES

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WE HAVE READ IN THE PAPERS, WHAT EVERYONE KNEW, IT WAS

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CONSENTED TO, WE DISCLOSED IT.

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FOLLOWS:

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ADDRESSING THAT TODAY.

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DISCOVERED THIS, HAS RAISED A LOT OF IMPORTANT ISSUES.

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APPEARS THAT THE A USER COOKIE WAS NOT DELETED UPON LOGOUT AS

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IT WOULD SUPPOSED TO HAVE BEEN.

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QUITE CLOSE.

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TRACKING YOU, WE INTENDED TO DO IT, WE KNEW WE WERE DOING IT,

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AND WE HAVE NOT DISCLOSED IT.

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THE COURT:

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MR. GRYGIEL:

LET'S LOOK AT

PARAGRAPH 19 OF OUR COMPLAINT, PARAGRAPH 16 OF OUR
WHAT DO WE

IT WENT WHEN THIS COMPANY WAS CONFRONTED WITH EVIDENCE

NO.

AN ENGINEER, GREGG STEFANCIK, FOR THE COMPANY SAID AS
WE DIDN'T EXPLAIN IT WELL ENOUGH.

WE WILL BE

YOUR POST, HE WROTE TO THE BLOGGER WHO
IT

I'M PARAPHRASING, BUT THAT'S

WE WILL BE FIXING THAT TODAY.

LET'S PAUSE RIGHT THERE.

WHAT HE SAID WAS THAT WE WERE

AND THIS MUST BE A HARM OTHERWISE THERE WOULD BE NO -SAY AGAIN.
THIS MUST BE A HARM BECAUSE OTHERWISE

UNITED STATES COURT REPORTERS

13

09:57AM

1

THERE WOULD BE NO NEED TO, QUOTE, FIX IT BOTH AS TO POLICY OF

09:58AM

2

DISCLOSURE AND AS TO THE FACT THAT WE HAVE THESE TRACKING

09:58AM

3

COOKIES IN THE PROGRAM THAT WERE SUPPOSED TO HAVE BEEN DELETED.

09:58AM

4

09:58AM

5

THINK SHAPES EVERYTHING THE COURT NEEDS TO DO IN TERMS OF

09:58AM

6

LOOKING AT THE SUFFICIENCY OF THE ALLEGATIONS.

09:58AM

7

PARTICULARLY TRUE UNDER THE NINTH CIRCUIT'S VIEW OF THE

09:58AM

8

PLEADING RULES AS SET OUT BY TWOMBLY.

09:58AM

9

09:58AM

10

THE DEFENDANTS ABOUT IT AND THAT DOESN'T SURPRISE ME.

09:58AM

11

THAT?

09:58AM

12

NOTICE PLEADING IS THE WAY WE LOOK AT THESE CASES.

09:58AM

13

NEED TO DO IS TO PROVIDE FAIR NOTICE OF THE CLAIM AND THE

09:58AM

14

GROUNDS UPON WHICH IT IS BASED AND THEN WE MOVE TO DISCOVERY.

09:58AM

15

ALL OF THOSE RULES BETWEEN 12 AND 56 ACTUALLY HAVE SOME IMPORT,

09:58AM

16

AND THAT'S WHAT THAT CASE SAYS.

09:58AM

17

09:58AM

18

AND IN TERMS OF WHAT THE DEFENDANT HAS ADMITTED, AND WE GET A

09:58AM

19

VERY LONG WAY HOME TOWARDS, A, THE SUBSTANTIVE ELEMENTS OF ALL

09:58AM

20

OF THE CLAIMS, EASILY CLEAR THE STANDING HURDLES, WHICH I'LL

09:59AM

21

COME TO IN A MOMENT, AND COME VERY FAR DOWN TO PLEADING

09:59AM

22

ESSENTIALLY ALL OF THE ELEMENTS OF OUR CAUSES OF ACTION.

09:59AM

23

09:59AM

24

09:59AM

25

SO WE START OUT WITH SOME VERY SERIOUS ADMISSIONS THAT I

WE LOOK AT STARR VERSUS BACA.

THAT'S

I DON'T HEAR ANYTHING FROM
WHY IS

BECAUSE STARR VERSUS BACA SAYS THAT TWOMBLY SAID THAT
ALL YOU

WE FRAME OUR ANALYSIS IN TERMS OF WHAT WE ACTUALLY PLEADED

LET'S TALK ABOUT THE PERSONALLY IDENTIFIABLE INFORMATION
IF I CAN DIGRESS TO THAT FOR A MOMENT.
THE COURT:

DOES THIS RELATE TO STANDING?

UNITED STATES COURT REPORTERS

14

09:59AM

1

MR. GRYGIEL:

YES, IT DOES.

ONE OF THE POINTS, AND

09:59AM

2

IN FACT, WHAT YOU HEAR IS PII, PERSONALLY IDENTIFIABLE

09:59AM

3

INFORMATION, THAT HAS NO VALUE AND LOTS OF COURTS HAVE SAID SO.

09:59AM

4

09:59AM

5

DISMISS ON 12(B)(1), CONSTITUTIONAL LAW TEACHES US FROM THE

09:59AM

6

DAYS OF WARTH VERSUS SELDIN FROM THE HOUSING CASES OF THE '60S

09:59AM

7

AND THE '70S, GLADSTONE REALTY, HAVENS, LUJAN V. NATIONAL

09:59AM

8

WILDLIFE, THAT GENERALIZED ALLEGATIONS OF HARM, I REPEAT,

09:59AM

9

GENERALIZED ALLEGATIONS OF HARM SUFFICE BECAUSE THEY ARE DEEMED

09:59AM

10

TO INCLUDE SPECIFIC ALLEGATIONS OF THE HARM THAT GO TO THE

09:59AM

11

CAUSE OF ACTION.

09:59AM

12

09:59AM

13

Y, AND Z AS TO THEMSELVES, THE SHORT ANSWER, AND NOT TO BE FLIP

10:00AM

14

IS, THE LAW OF THE LAND SAYS THAT WE NEED NOT.

10:00AM

15

12(B)(1) GIVING NOTICE OF OUR CLAIM.

10:00AM

16

10:00AM

17

IT TO THEMSELVES SOMEHOW?

10:00AM

18

OTHER STATUTORY CLAIM.

10:00AM

19

10:00AM

20

SATISFACTORILY ALLEGED IS THAT WE WERE USERS; WE USED THE

10:00AM

21

COMPUTERS IN THE WAY THAT WE THOUGHT WE WERE ENTITLED TO; THERE

10:00AM

22

WAS NO DISCLOSURE REGIME THAT TOLD US THAT WE WOULD BE TRACKED

10:00AM

23

POST LOGOUT, AND THAT IS A VIOLATION OF OUR RIGHTS UNDER THE

10:00AM

24

STORED COMMUNICATIONS ACT AND THE WIRETAP ACT, AND THAT'S

10:00AM

25

ENOUGH.

THE FIRST THING IS THAT FOR PURPOSES OF A MOTION TO

SO WHEN I HEAR MY COLLEAGUE SAY THAT THEY DON'T PLEAD X,

WE ARE AT

TO THE SECOND POINT WHEN HE SAYS THAT THEY HAVE TO TETHER
WE DO FOR PURPOSES OF GAOS AND ANY

WHAT WE HAVE TO ALLEGE AND WHAT WE HAVE MORE THAN

UNITED STATES COURT REPORTERS

15

10:00AM

1

THE COURT:

THOSE STATUTES THAT PROTECT YOUR

10:00AM

2

10:00AM

3

MR. GRYGIEL:

10:00AM

4

THE COURT:

10:00AM

5

MR. GRYGIEL:

10:00AM

6

THE COURT:

10:00AM

7

MR. GRYGIEL:

10:00AM

8

10:00AM

9

10:00AM

10

THE COURT:

10:00AM

11

MR. GRYGIEL:

10:00AM

12

WIRETAP ACT AND THE STORED COMMUNICATIONS ACT PROVIDES ME TO BE

10:01AM

13

FREE FROM UNCONSENTED TO, UNDISCLOSED INTERCEPTION OF MY

10:01AM

14

COMMUNICATIONS WITH SOMEBODY ELSE, THAT BY ITSELF THE UNITED

10:01AM

15

STATES CONGRESS IN ITS WISDOM HAS DECIDED IS A HARM SUFFICIENT

10:01AM

16

TO GRANT STATUTORY STANDING WITH NOTHING MORE.

10:01AM

17

10:01AM

18

MEAN TO SUGGEST AND GO INTO THE MERITS, BUT DO I NEED TO DRILL

10:01AM

19

DOWN AS TO WHETHER OR NOT THERE WAS A PURPOSE OF INTERCEPTION?

10:01AM

20

MR. GRYGIEL:

10:01AM

21

THE COURT:

10:01AM

22

MR. GRYGIEL:

10:01AM

23

TWOMBLY; MAYA VERSUS CENTEX, A NINTH CIRCUIT CASE; JEWEL,

10:01AM

24

ANOTHER NINTH CIRCUIT CASE, THEY DON'T JUST SAY THAT YOU CAN

10:01AM

25

JUST SAY IT, BUT THEY DO SAY THAT IT'S SUFFICIENT IF YOU GIVE

CLIENT'S INTERESTS THAT HAVE BEEN VIOLATED.
ON THE WIRETAP ACT, YOUR HONOR?

AND THE SCA.
YOU'RE ASKING ME WHAT IS THE HARM?

RIGHT.
THE HARM IS THE INVASION OF THE

STATUTORILY PROTECTED RIGHT THAT BELONGS TO ME PERSONALLY.
NOW, WHAT I HEAR --

THE COURT:

TELL ME WHAT THAT MEANS.
SURE.

THAT I HAVE THE RIGHT AS THE

DO I NEED TO DRILL DOWN, AND I DON'T

FOR PURPOSES OF STANDING, YOUR HONOR?

YES.
I THINK IT'S WRONG, TO GO BACK TO

UNITED STATES COURT REPORTERS

16

10:01AM

1

ENOUGH FACTUAL SPECIFICITY TO RAISE THE CLAIM, TO QUOTE

10:01AM

2

TWOMBLY, ABOVE THE LEVEL OF SPECULATION, OR TO QUOTE TWOMBLY

10:01AM

3

AGAIN, IN THE TEST THAT REALLY DOES APPLY, WHETHER YOU HAVE

10:01AM

4

ALLEGED FACTS SUFFICIENT SO THAT IT IS REASONABLE TO BELIEVE

10:01AM

5

THAT DISCOVERY WOULD REVEAL THE EVIDENCE THAT YOU NEED TO PROVE

10:02AM

6

THE CLAIM.

10:02AM

7

10:02AM

8

10:02AM

9

10:02AM

10

ENGAGE IN SOME TYPE OF A DISCUSSION ABOUT INTERCEPTION AND

10:02AM

11

WHETHER OR NOT THERE WAS -- THIS -- WHAT YOU HAVE ALLEGED

10:02AM

12

CONSTITUTES AN INTERCEPTION?

10:02AM

13

10:02AM

14

NOW, YOUR HONOR.

10:02AM

15

THIS COMPLAINT, OBVIOUSLY I THINK THAT IT'S CLEAR, BUT I

10:02AM

16

BELIEVE WE HAVE MORE THAN SUFFICIENTLY ALLEGED, LOOK AT

10:02AM

17

PARAGRAPHS 71 THROUGH 84, NOT JUST WHO DO DID IT, FACEBOOK; NOT

10:02AM

18

JUST WHY THEY DID IT, LOOK AT PARAGRAPH 12 AND 13, THEIR VALUE

10:02AM

19

PROPOSITION IS INFORMATION.

10:02AM

20

ADVERTISERS, AND THAT'S HOW THEY GET INVESTMENTS.

10:02AM

21

10:02AM

22

AMERICA AND THESE CYBERSPACE EXCHANGES WHICH FACEBOOK IS AN

10:02AM

23

UNINVITED PARTY AND CAME IN THROUGH THE BACKDOOR.

10:02AM

24

10:02AM

25

AND AS YOUR HONOR SAID IN GAOS, IT'S ONE THING TO ALLEGE A
CLAIM, AND IT'S ANOTHER THING TO PROVE THAT CLAIM FOR RELIEF.
THE COURT:

SO FOLLOWING ON THAT, DO I NEED TO THEN

MR. GRYGIEL:

SURE.

AND I'M HAPPY TO DO IT RIGHT

I THINK, FRANKLY, WHAT WE HAVE ALLEGED IN

THAT'S WHAT THEY SELL TO

WHEN THEY GET IT, THE CLASS PERIOD; WHERE THEY GET IT, IN

THE COURT:

WELL, LET'S TALK ABOUT THAT BECAUSE I

THINK THAT REALLY CUTS TO THE INTERCEPTION, DOESN'T IT?

UNITED STATES COURT REPORTERS

17

10:03AM

1

MR. GRYGIEL:

YES, IT DOES.

10:03AM

2

THE COURT:

10:03AM

3

10:03AM

4

10:03AM

5

EXPLAIN WHY IF I CAN.

10:03AM

6

OBVIOUSLY INTERCEPTION.

10:03AM

7

10:03AM

8

ABOUT THIS, BUT LET'S TAKE THE WORD OF KONOP, K-O-N-O-P, ROMAN

10:03AM

9

NUMERAL II.

10:03AM

10

10:03AM

11

INTERCEPTION HAS TO BE CONTEMPORANEOUS.

10:03AM

12

AT OUR COMPLAINT PARAGRAPHS 68 AND 80, WHAT YOU SEE IS THAT WE

10:03AM

13

ALLEGE EXACTLY THAT CONTEMPORANEOUS INTERCEPTION OR OUR

10:03AM

14

COMMUNICATION TO A THIRD-PARTY WEBSITE TO WHICH FACEBOOK HAS

10:03AM

15

MADE ITSELF THROUGH A TRICK, AN UNINVITED PARTICIPANT, AND GETS

10:03AM

16

A COPY OF THAT COMMUNICATION BEFORE IT EVEN COMES TO THE

10:03AM

17

PLAINTIFFS.

10:03AM

18

THE COURT:

10:03AM

19

MR. GRYGIEL:

10:03AM

20

INTERCEPTED IN TRANSIT A COMMUNICATION BEFORE IT GETS TO THE

10:03AM

21

INTENDED RECIPIENT, WHO IS US, AND THAT'S CLEARLY INTERCEPTION

10:03AM

22

UNDER KONOP.

10:03AM

23

THE COURT:

10:04AM

24

MR. GRYGIEL:

10:04AM

25

THE COURT:

IS THIS AN INTERCEPTION OR IS THIS ONE

CONTINUOUS COURSE OF COMMUNICATION?
MR. GRYGIEL:

THIS IS AN INTERCEPTION, AND LET ME
UNDER THE WIRETAP ACT WE HAVE TO SHOW

THE LAW OF THE LAND BASICALLY HAS BEEN SOMEWHAT MUDDLED

WELL, THE FIRST THING THAT KONOP SAYS IS THAT THIS
WHEN YOUR HONOR LOOKS

IS THAT AN INTERCEPTION?
YES, IT IS, YOUR HONOR.

THEY HAVE

LET'S PARSE THAT OUT.
SURE.

SO YOU PUSH THE BUTTON TO GO TO WHEREVER

UNITED STATES COURT REPORTERS

18

10:04AM

1

IT IS YOU WANT TO GO?

10:04AM

2

MR. GRYGIEL:

10:04AM

3

THE COURT:

10:04AM

4

MR. GRYGIEL:

10:04AM

5

10:04AM

6

10:04AM

7

10:04AM

8

10:04AM

9

10:04AM

10

10:04AM

11

OF FACEBOOK, WHICH IS A VERY IMPORTANT POINT SINCE FACEBOOK

10:04AM

12

NOWHERE EVER DISCLOSED UNTIL THREE DAYS BEFORE THE END OF THE

10:04AM

13

CLASS PERIOD THAT THEY JUST MIGHT BE DOING THE TRACKING.

10:04AM

14

10:04AM

15

LET'S SAY THAT WEBSITE, IN WHICH OBVIOUSLY I HAVE AN EXPECTANCY

10:04AM

16

OF CONFIDENTIALITY BECAUSE IT'S JUST ME IN MY HOUSE REACHING

10:04AM

17

OUT TO THAT WEBSITE, I'M NOT LOOKING FOR FACEBOOK TO BE A PARTY

10:04AM

18

TO THIS.

10:04AM

19

IN THE COMPLAINT, AND USING CNN AS AN EXAMPLE, A SPACE FOR

10:05AM

20

ESSENTIALLY SOCIAL NETWORK PLUG-IN MATERIAL FROM FACEBOOK.

10:05AM

21

ACTUAL FACEBOOK CONTENT, YOUR HONOR, IS NOT IN THE WEBSITE I

10:05AM

22

VISITED.

10:05AM

23

CONTENT, THE CODE.

10:05AM

24

10:05AM

25

RIGHT.

I WANT TO FIND FANCY BOW TIES.
THERE'S ACTUALLY A WEBSITE CALLED

B-A-U-T-I-E-S, THAT IS IN VERMONT, DON'T BUY THEM THERE.
THE COURT:
OUT.

YOU PUSHED A BUTTON AND THE SIGNAL GOES

AND WHAT HAPPENS NEXT?
MR. GRYGIEL:

LET ME SEE IF I CAN EXPLAIN THIS AS

CLEARLY AS I CAN FOLLOWING PARAGRAPH 71 THROUGH 84.
I'M SITTING THERE IN THE PRIVACY OF MY HOME.

I LOGGED OUT

I PUNCH THE BUTTON, AND I GO TO WWW.ABUSEDBYPRIESTS.COM.

LET'S SAY THAT WEBSITE HAS, AND THIS IS AN ALLEGATION

THE

THERE IS INSTEAD THIS IMBEDDED HTML CODE, NOT THE
FACEBOOK USES THE CODE.

THE INFERENCE UNDER TWOMBLY IS CLEAR BECAUSE THAT ALLOWS
THEM TO BE A PARTICIPANT TO THE COMMUNICATION.

UNITED STATES COURT REPORTERS

I HIT THE

19

10:05AM

1

BUTTON.

THE WEBSITE STARTS ON ITS WAY TO ME BUT AS IT COMES TO

10:05AM

2

ME, THERE'S A PROBLEM.

10:05AM

3

10:05AM

4

AN OLD GUY LIKE ME A SPACE BOARD AND THAT SPACE IS HELD BY A

10:05AM

5

PLACE HOLDER CODE.

10:05AM

6

IS MY COMPUTER IN MY LITTLE KITCHEN, AND WHAT HAPPENS THEN IS

10:05AM

7

THAT THAT TRIGGERS MY BROWSER TO REACH TO FACEBOOK TO GET THE

10:05AM

8

CONTENT FROM FACEBOOK'S SERVER.

10:05AM

9

THIS CONVERSATION, UNBEKNOWNST TO ME.

10:05AM

10

IF I'M A FACEBOOK USER, WHICH WE ALLEGE ALL OF THE

10:06AM

11

PLAINTIFFS WERE, FACEBOOK HAS PREVIOUSLY DEPOSITED COOKIES,

10:06AM

12

WHICH ARE SMALL TEXT FILES THAT ALLOWS CERTAIN INTERFACES.

10:06AM

13

THE COURT:

10:06AM

14

STORAGE IN THE OTHER.

10:06AM

15

10:06AM

16

MY BROWSER GETS THIS CODE AND SAYS, WHOOPS, GO TO THE FACEBOOK

10:06AM

17

SERVER AND GET THIS CONTENT.

10:06AM

18

AND FACEBOOK INTERACT.

10:06AM

19

WHO WE HAVE BEEN IN COMMUNICATION WITH.

10:06AM

20

AND SO THAT MEANS MY COOKIE ALSO GOES TO FACEBOOK.

10:06AM

21

10:06AM

22

DEVICE OF THE IMBEDDED CODE IN THE THIRD-PARTY WEBSITE,

10:06AM

23

UNDISCLOSED TO THE PLAINTIFF, HAS BECOME A PARTICIPANT TO THIS

10:06AM

24

CONVERSATION AND OPERATIVELY.

10:06AM

25

IT DOESN'T HAVE THAT FACEBOOK MATERIAL.

IT HAS WHAT STATES FOR PURPOSES OF PLAIN ENGLISH LIKE FOR

THAT CODE COMES TO THE USER COMPUTER, THAT

NOW FACEBOOK IS GROUPED INTO

WE'LL TALK ABOUT WHETHER OR NOT THAT'S

MR. GRYGIEL:

RIGHT.

EXACTLY.

WHAT HAPPENS THEN IS

THAT ALSO MEANS THAT MY BROWSER

FACEBOOK REALIZES, OH, THIS IS SOMEBODY
HE'S A FACEBOOK USER

NOW, TO SUM UP THE CONNECTION HERE, FACEBOOK BY THIS

THE COURT:

IN WHAT WAY?

UNITED STATES COURT REPORTERS

20

10:06AM

1

MR. GRYGIEL:

IN THIS WAY, YOUR HONOR, THEY GET A

10:06AM

2

COPY.

10:06AM

3

PARAGRAPHS 82 AND 83.

10:06AM

4

WEB PAGE, AND THEY GET A COPY OF WHAT I LOOKED FOR AND WHAT

10:07AM

5

CONTENT I VISITED ON THOSE PAGES.

10:07AM

6

10:07AM

7

YORK OR ABUSED BY PRIESTS IN KENTUCKY, THEY CAN GET THAT.

10:07AM

8

ALSO GET THROUGH THE COOKIE CERTAIN USER IDENTIFYING

10:07AM

9

CHARACTERISTICS THAT ARE PERSONALLY IDENTIFIABLE INFORMATION,

10:07AM

10

UNLIKE DOUBLECLICK, THIS IS NOT JUST THE COMPUTER, THIS IS THE

10:07AM

11

USER WHO IS BEING IDENTIFIED.

10:07AM

12

10:07AM

13

HYPOTHETICAL EXPLANATION, ONCE THAT GOES TO FACEBOOK, THEY THEN

10:07AM

14

HAVE ACCESS TO EVERYTHING YOU DO ON THAT PARTICULAR WEBSITE?

10:07AM

15

10:07AM

16

10:07AM

17

THE COURT:

10:07AM

18

MR. GRYGIEL:

10:07AM

19

LOOKED AT, WHAT OTHER PAGES I WENT TO, WHAT CONTENT WAS THERE,

10:07AM

20

AND IF I WENT AROUND THAT SITE, WHERE I WENT ON THAT SITE.

10:07AM

21

I WENT TO SOME PLACE SPECIFIC.

10:07AM

22

COUNSELING HELP OR THINGS LIKE THAT, THAT'S WITHIN THE AMBIT OF

10:07AM

23

OUR PARAGRAPHS 82 AND 83.

10:07AM

24

10:07AM

25

THEY DUPLICATE A COPY OF MY REQUEST, AND THIS IS IN
THEY GET A COPY OF MY REQUEST TO THAT

FOR EXAMPLE, IF YOU WERE ABUSED BY PRIESTS IN UPSTATE NEW

THE COURT:

THEY

SO YOU'RE SAYING THAT IN YOUR

MR. GRYGIEL:

THEY GET ALL OF THE INFORMATION THAT I

HAVE ON THAT PARTICULAR WEBSITE, AND THAT'S WHAT WE ALLEGE.

THE COURT:

THE INFORMATION THAT YOU HAVE?
THE INFORMATION, YOUR HONOR, WHAT WE

SAY

IF YOU'RE LOOKING FOR

AND YOU'RE SAYING THAT FORMS THE BASIS

OF AN INTERCEPTION WHICH, THEREFORE, ALLOWS YOU TO PURSUE THIS

UNITED STATES COURT REPORTERS

21

10:08AM

1

CAUSE OF ACTION UNDER THE WIRETAP STATUTE?

10:08AM

2

10:08AM

3

SHELL, THE PROVERBIAL NUT, THERE IT IS, BUT THERE ARE A COUPLE

10:08AM

4

OF OTHER THINGS THAT FACEBOOK SAYS ABOUT THE INTERCEPTION.

10:08AM

5

10:08AM

6

BE IN FLIGHT.

10:08AM

7

AND THERE'S A GOOD FACTUAL BASIS FOR, PARAGRAPHS 82 AND 83 ARE

10:08AM

8

HIGHLY SPECIFIC OF EXACTLY HOW THAT HAPPENED, AND WE PASS ANY

10:08AM

9

SPECIFICITY TEST.

10:08AM

10

10:08AM

11

SPECIFICITY TEST IS TOTALLY INAPPLICABLE AS MAYA VERSUS CENTEX,

10:08AM

12

THE NINTH CIRCUIT CASE, SAYS, SAYING THAT TWOMBLY AND IQBAL

10:08AM

13

WITH THEIR SPECIFICITY REQUIREMENTS ARE ILL-SUITED TO THE

10:08AM

14

12(B)(1) CONTEXT.

10:08AM

15

ARGUMENT.

10:08AM

16

10:08AM

17

THEY SAY THAT, WELL, KONOP SAYS THAT THIS JUST HAS TO BE

10:08AM

18

COMPLETELY IN TRANSIT.

10:08AM

19

WHAT WE ALLEGE.

10:08AM

20

NUMBER TWO, KONOP WAS A SUMMARY JUDGMENT CASE; AND,

10:08AM

21

NUMBER THREE, KONOP, VERY MUCH LIKE CHANCE, ANOTHER ONE OF

10:09AM

22

THE CASES THAT THEY CITE, AND VERY MUCH LIKE BUNNELL, ANOTHER

10:09AM

23

CASE THAT THE DEFENDANTS CITE, IN THOSE CASES, YOUR HONOR, THE

10:09AM

24

FACTUAL SCENARIO OF THE INTERCEPTION IS VERY DIFFERENT.

10:09AM

25

YOU HAVE A STACK OF COMMUNICATION THAT SOMEONE COMES AND GETS.

MR. GRYGIEL:

CORRECT.

YES, YOUR HONOR.

A NUT

THEIR FIRST ARGUMENT ABOUT THE INTERCEPTION IS IT HAS TO
WE ALLEGE, AND WHICH IS ALL WE NEED TO DO HERE,

AND BY THE WAY, FOR STANDING IN PARTICULAR, THAT

THAT BASICALLY TAKES CARE OF THEIR STANDING

THE SECOND POINT I WOULD MAKE THERE, YOUR HONOR, IS THAT

IT CAN NEVER BE IN STORAGE.

THAT'S WHAT WE ALLEGE.

THAT'S

IT'S IN TRANSIT.

UNITED STATES COURT REPORTERS

THERE

22

10:09AM

1

THEY'RE NOT INTERCEPTING IT IN THE WAY THAT WE CONCEIVE OF A

10:09AM

2

WIRETAP OR THE INTERCEPTION.

10:09AM

3

10:09AM

4

DEFENDANT'S CASES, SAYS IT IS NOT INTERCEPTION.

10:09AM

5

LIKE SOMEONE COMES IN AND LOOKS OVER YOUR SHOULDER ON SOMETHING

10:09AM

6

THAT IS ALREADY ON YOUR SCREEN.

10:09AM

7

SIMULTANEOUS INTERCEPTION OF SOMETHING CONTEMPORANEOUSLY OF THE

10:09AM

8

USER ACTUALLY RECEIVING IT.

10:09AM

9

10:09AM

10

MR. WONG AND GARDNER, AND THEY WERE PILOTS FOR HAWAIIAN

10:09AM

11

AIRLINES AND WHAT THEY DID WAS GET PERMISSION TO GO ONTO A

10:09AM

12

WEBSITE OF MR. KONOP.

10:10AM

13

THE COMPANY, AND HE POSTED HIS VARIOUS VITRIOLIC SCREAM ABOUT

10:10AM

14

THE COMPANY'S DOINGS WITH RESPECT TO LABOR.

10:10AM

15

10:10AM

16

BE A GOOD IDEA TO LET THEIR SUPERVISOR, MR. DAVIS, TAKE A LOOK.

10:10AM

17

SO EVERY NOW AND THEN MR. DAVIS COMES IN AND HE TAKES A LOOK AT

10:10AM

18

THIS WEBSITE.

10:10AM

19

QUESTION IS WHETHER IT'S AUTHORIZED OR NOT.

10:10AM

20

MR. STRAITE.

10:10AM

21

SCREEN.

10:10AM

22

RECIPIENTS, WONG AND GARDNER, GIVING AUTHORITY TO A THIRD PARTY

10:10AM

23

TO TAKE A LOOK AT IT.

10:10AM

24

10:10AM

25

WE HAVE SOMEONE DOING WHAT THE CONDE CASE, ONE OF THE
HOW?

IT'S

THAT'S DIFFERENT FROM THE

IN FACT, IN KONOP, WHAT WE HAVE THERE WERE TWO EMPLOYEES,

MR. KONOP WAS A DISGRUNTLED EMPLOYEE OF

WELL, THESE TWO GUYS, WONG AND GARDNER, DECIDED IT WOULD

HE GETS UNAUTHORIZED -- HE GETS ACCESS.

THE

I'LL LEAVE THAT TO

BUT HE COMES IN AND HE LOOKS AT WHAT IS ON THE

THAT'S ENTIRELY DIFFERENT.

WE HAVE THERE INTENDED

VERY DIFFERENT FROM OUR CASE WHERE WHAT WE ALLEGE IS THE
FIRST INFORMATION IS NOT STATIC, IT'S IN TRANSIT, AND IT'S

UNITED STATES COURT REPORTERS

23

10:10AM

1

BEING INTERCEPTED IN TRANSIT.

AND THE SECOND THING WE ARE

10:10AM

2

ARGUING IS THAT WE HAD NO POSSIBLE WAY OF KNOWING ABOUT IT

10:10AM

3

BECAUSE FACEBOOK AFFIRMATIVELY DECLARED WE HAD NOT BECOME A

10:10AM

4

PARTICIPANT IN THESE COMMUNICATIONS.

10:10AM

5

10:10AM

6

DEFINITION WHAT OUR CASE IS NOT AND WHY WE HAVE AN

10:11AM

7

INTERCEPTION.

10:11AM

8

10:11AM

9

10:11AM

10

10:11AM

11

10:11AM

12

ARGUE ABOUT THE COMPUTERS AND THE ROUTERS, AND THE POINT IS

10:11AM

13

LET'S LOOK AT THE DEFINITION OF 18 U.S.C. 2510.

10:11AM

14

OF A DEVICE IS ANY, ESSENTIALLY, APPARATUS THAT ALLOWS THE

10:11AM

15

INTERCEPTION WITH TWO EXCLUSIONS.

10:11AM

16

TELEPHONE EQUIPMENT.

10:11AM

17

10:11AM

18

EQUIPMENT.

10:11AM

19

ABOUT HEARING AIDS HERE.

10:11AM

20

BROAD.

10:11AM

21

THE DEFENDANT SAYS THAT WE'RE NOT -- WE'RE NOT GETTING ANY

10:11AM

22

CONTENTS SO EVEN IF YOU HAVE THE OTHER ELEMENTS, YOU CAN'T HAVE

10:11AM

23

THE WIRETAP IN THAT CLAIM.

10:11AM

24

SPECIFICALLY WHAT THE CONTENTS ARE, AND WE'RE ALLEGING IT AS TO

10:11AM

25

ALL OF THE COMMUNICATIONS THAT WE HAVE WITH THESE THIRD-PARTY

SO THE KONOP CASE, I THINK, ESSENTIALLY SHOWS BY

FINALLY ON THE WIRETAP ISSUE, THE DEFENSE SAYS THERE'S NO
DEVICE AND THE ANSWER TO THAT IS I THINK THAT'S EASILY
RECOGNIZABLE.
WE'D ARGUE ABOUT THE EMBEDDED CODE, THE SERVERS, AND WE'D

THE DEFINITION

ONE OF THE EXCLUSIONS IS FOR

NOBODY HERE IS ALLEGING ANYTHING ABOUT TELEPHONE
THE OTHER IS FOR HEARING AIDS.

WE'RE NOT TALKING

THE DEVICE CONCEPT IS EXTREMELY

WE ALLEGE IN PARAGRAPHS 82 AND 83

UNITED STATES COURT REPORTERS

24

10:11AM

1

WEBSITES TO WHICH FACEBOOK HAS PLAYED THE IMBEDDED CODE GAME.

10:11AM

2

FACEBOOK FINALLY SAYS, WELL, YOU CONSENTED THAT FACEBOOK

10:12AM

3

WOULD BECOME A PARTY AND YOU CONSENTED THAT FACEBOOK WOULD KNOW

10:12AM

4

ABOUT THIS STUFF.

10:12AM

5

10:12AM

6

TRUE, YOU CAN BE SURE THAT WHEN CONGRESS ASKED FACEBOOK JUST

10:12AM

7

WHAT THE HECK ARE WE DOING WITH THESE INTERCEPTIONS POST

10:12AM

8

LOGOUT, YOU NEVER HEARD FACEBOOK COMING BACK AND SAYING, WELL,

10:12AM

9

THEY CONSENTED.

10:12AM

10

AS WE SAY IN OUR COMPLAINT, PARAGRAPHS 35 THROUGH 37,

10:12AM

11

CONGRESSMAN MARKEY AND BARTON SAY FACEBOOK BASICALLY IS SAYING,

10:12AM

12

WELL, WE'RE NOT DOING IT ANY MORE, BUT THEY'RE NOT OBJECTING TO

10:12AM

13

WHAT WENT ON BEFORE.

10:12AM

14

10:12AM

15

VIOLATE THE STATUTE AS WE CLEARLY ALLEGE THAT FACEBOOK DID AND

10:12AM

16

THROUGH THAT VERY VIOLATION OF THE LIABILITY CREATING STATUTE

10:12AM

17

IN THE FIRST INSTANCE, DEVOLVE UPON YOURSELF, ARROGATE FOR

10:12AM

18

YOURSELF AN EXCEPTION TO THAT LIABILITY.

10:12AM

19

LITIGATION CASE SAYS THAT WE CITE, AND THERE'S NO WAY THAT YOU

10:12AM

20

CAN MANUFACTURE AN EXCEPTION TO LIABILITY FOR THE VERY CRIMES

10:12AM

21

YOU COMMITTED OR THE CIVIL CLAIM THAT YOU HAVE GIVEN RISE TO BY

10:12AM

22

DOING THAT ACTION.

10:13AM

23

THE COURT:

10:13AM

24

MR. GRYGIEL:

10:13AM

25

TWO QUICK POINTS ON THAT, YOUR HONOR.

FIRST, IF THAT WERE

YOU DIDN'T HEAR ANYTHING ABOUT CONSENT.

THAT'S NUMBER ONE.

AND THE SECOND POINT THERE ON CONSENT IS THAT YOU CANNOT

THAT'S WHAT THE APPLE

NOW, ARE YOU GOING TO SPEAK ABOUT SCA?
I AM NOT, YOUR HONOR.

SPEAK ABOUT -- IF I COULD TAKE ONE MORE MOMENT.

UNITED STATES COURT REPORTERS

I'M GOING TO
WE HAVE HEARD

25

10:13AM

1

ABOUT THE ECONOMIC HARM, AND I WANT TO COME BACK TO THAT FOR

10:13AM

2

JUST A SECOND.

10:13AM

3

10:13AM

4

10:13AM

5

10:13AM

6

OF THE INFORMATION THAT WE ALLEGE WAS WRONGFULLY TAKEN,

10:13AM

7

DEMOGRAPHIC, PERSONAL, BROWSING HISTORIES.

10:13AM

8

COMPLAINT WITH DOLLAR VALUES.

10:13AM

9

NUMBER TWO, WE ALLEGE --

10:13AM

10

THE COURT:

10:13AM

11

MR. GRYGIEL:

10:13AM

12

ACTUALLY AND AGGREGATES THAT COME FROM VARIOUS SOURCES IN THE

10:13AM

13

INDUSTRY WHICH FOR PURPOSES OF THE COMPLAINT HAVE TO BE TAKEN

10:13AM

14

AS FACTUALLY WELL PLED.

10:13AM

15

10:13AM

16

10:13AM

17

MR. GRYGIEL:

10:13AM

18

THE COURT:

10:13AM

19

MR. GRYGIEL:

10:13AM

20

THE COURT:

10:13AM

21

MR. GRYGIEL:

10:13AM

22

10:13AM

23

10:14AM

24

10:14AM

25

THE CASES THAT THE DEFENDANTS RELY ON ARE NOT LIKE OUR
CASE FOR A COUPLE OF QUICK REASONS.
NUMBER ONE, WE SPECIFICALLY ALLEGE THAT THE DOLLAR VALUES

THE COURT:

THAT'S IN OUR

THOSE DOLLAR VALUES ARE BASED ON WHAT?
INDUSTRY STUDIES.

I HAVE A CHART

BUT DOLLAR VALUE, AND I'M SORRY, BUT THE

DOLLAR VALUE ARE VALUES TO CORPORATIONS?
THAT'S OKAY.

YES.

AS OPPOSED TO THE INDIVIDUALS?
YES.

THE VALUES OF INFORMATION.

TO CORPORATIONS, NOT THE INDIVIDUALS.
THAT'S MY UNDERSTANDING, YOUR HONOR,

YEAH.
THE COURT:

AND THERE'S A DISTINCTION FOR SOME

REASON?
MR. GRYGIEL:

OH, ABSOLUTELY.

UNITED STATES COURT REPORTERS

26

10:14AM

1

I MEAN, MR. BROWN SAID, WELL, IT HAS VALUE TO FACEBOOK,

10:14AM

2

DOESN'T IT, BECAUSE IF WE WERE HAVING THIS CONVERSATION OVER A

10:14AM

3

CUP OF COFFEE, WHY WOULD FACEBOOK SPEND ALL OF ITS MONEY TO GET

10:14AM

4

THIS INFORMATION IF IT DIDN'T HAVE SOME VALUE?

10:14AM

5

THE COURT:

10:14AM

6

MR. GRYGIEL:

10:14AM

7

QUESTION IS WE ALLEGE THAT NOT ONLY DO WE HAVE SPECIFIC DOLLAR

10:14AM

8

VALUES AND THE INDUSTRY CONSENTS IT'S $5 ON CERTAIN KINDS OF

10:14AM

9

INFORMATION USING THIS GOOGLE CARD, WHAT WE ARGUE IS THAT

10:14AM

10

10:14AM

11

10:14AM

12

I CAN'T GO OUT DOWN TO A KIOSK IN DOWNTOWN SAN JOSE AND SAY WHO

10:14AM

13

WANTS TO BUY -- I KNOW PEOPLE BUY WHOLESALE PHONES AND THAT

10:14AM

14

KIND OF THING, BUT I DON'T KNOW IF THERE'S A KIOSK THAT BUYS

10:14AM

15

PERSONAL INFORMATION.

10:14AM

16

10:14AM

17

MAY, IF THE COURT WILL INDULGE ME, I'LL GO BACK TO CASES LIKE

10:14AM

18

KATZ AND HOMESTEAD, AND, THAT IS, AND THEY'RE REALLY REFLECTED,

10:14AM

19

I THINK, IN THE LANGUAGE AND IN THE IMPETUS BOTH IN THE WIRETAP

10:14AM

20

ACT AND THE STORED COMMUNICATIONS ACT AS WELL AS IN THE

10:15AM

21

AMENDMENTS IN 1986 WHICH WERE MEANT TO PROTECT THE ELECTRONIC

10:15AM

22

COMMUNICATIONS AND THAT IS THIS:

10:15AM

23

RIGHT IN KNOWING WHO KNOWS WHAT ABOUT ME.

10:15AM

24

WELL WANT FACEBOOK OR ANYONE TO WHOM IT SELLS INFORMATION OR

10:15AM

25

HELPS IN THE TARGETED AD PROGRAM TO KNOW THAT I VISITED

RIGHT, THAT'S PROBABLY COMMON KNOWLEDGE.
RIGHT, EXACTLY.

BUT THEN THE NEXT

FACEBOOK ITSELF ADMITS THIS STUFF HAS REAL VALUE.
THE COURT:

I GUESS I'M LOOKING AT AN INDIVIDUAL AND

MR. GRYGIEL:

I THINK, YOUR HONOR, ON THAT, IF I

I HAVE A RIGHT, A VALUABLE
AND I MIGHT NOT VERY

UNITED STATES COURT REPORTERS

27

10:15AM

1

WWW.PEDOPHILE.COM OR SUPPORTFORALCOHOLICS.COM, I HAVE A VALUE

10:15AM

2

IN THAT, AND THAT'S WHY THE STATUTORY STANDING TESTS, WHICH IS

10:15AM

3

SIMPLY WAS IT YOUR RIGHT THAT WAS VIOLATED AND THEN YOU HAVE

10:15AM

4

SUFFICIENT HARM BECAUSE CONGRESS SAID SO IS THE LAW OF THE

10:15AM

5

LAND, AND IT'S THE SAME THING.

10:15AM

6

THE COURT:

10:15AM

7

AND I'M JUST, IN LIGHT OF MY TORTURED QUESTION, IS THERE A

10:15AM

8

KIOSK WHERE I CAN SELL THIS INFORMATION?

10:15AM

9

10:15AM

10

BUT THERE ARE PEOPLE THAT YOU CAN PROTECT PEOPLE FROM GETTING

10:15AM

11

THAT INFORMATION FROM YOU, AND WE ALLEGE THAT IN OUR COMPLAINT.

10:15AM

12

10:15AM

13

THAT HAS CROPPED UP BECAUSE OF A RESULT OF ALL OF THIS AND IT'S

10:15AM

14

CALLED THE MUSHROOM EFFECT.

10:16AM

15

10:16AM

16

DEAL WITH THINGS AND NOW WE MAKE ARGUMENTS LIKE THE ONE I'M

10:16AM

17

MAKING TODAY.

10:16AM

18

10:16AM

19

VALUE.

10:16AM

20

WE PLEAD SPECIFIC VALUES OF THIS;

10:16AM

21

10:16AM

22

10:16AM

23

NUMBER THREE, FACEBOOK IS TELLING ITS INVESTORS AND

10:16AM

24

ADVERTISERS, THIS IS WHAT WE'RE OUT THERE GETTING AND THIS IS

10:16AM

25

WHAT OUR VALUE PROPOSITION IS.

BUT WE'RE TALKING ABOUT THE VALUE PART,

MR. GRYGIEL:

THE COURT:

YOUR HONOR, MY UNDERSTANDING IS, NO,

AND THAT'S A WHOLE DIFFERENT INDUSTRY

MR. GRYGIEL:

RIGHT.

WELL, WE USED TO MAKE CONGRESS

BUT THE ISSUE THERE IS THAT ITSELF IS REFLECTIVE OF THE
TO SUMMARIZE ON THE VALUE ISSUE, WE PLEAD DIFFERENTLY.

NUMBER TWO, FACEBOOK OBVIOUSLY RECOGNIZES THAT VALUE OR IT
WOULDN'T BE DOING WHAT IT DOES TO GET THAT INFORMATION; AND,

UNITED STATES COURT REPORTERS

28

10:16AM

1

NOW, FOR PURPOSES OF 12(B)(1) AND 12(B)(6), YOUR HONOR,

10:16AM

2

THAT STATES A CLAIM.

10:16AM

3

DEFENDANTS ARE VERY BIG ON TRYING TO CREATE, I THINK, A

10:16AM

4

SPECIFICITY TEST FOR THE PLEADINGS AND IT DOESN'T EXIST.

10:16AM

5

MAYA CASE TELLS US THAT AND THE JEWEL CASE THAT THEY CITE TELLS

10:16AM

6

US THAT.

10:16AM

7

THE COURT:

10:16AM

8

MR. GRYGIEL:

10:16AM

9

THE COURT:

10:16AM

10

TO GIVE MR. BROWN AN OPPORTUNITY TO RESPOND TO YOUR COMMENTS IF

10:16AM

11

HE WISHES.

10:16AM

12

10:16AM

13

OF THINGS TO ADDRESS HERE.

10:17AM

14

THOUGHT WE WERE GOING TO LIMIT IT TO ARTICLE III STANDING.

10:17AM

15

10:17AM

16

10:17AM

17

10:17AM

18

SECOND KIND OF BIG PICTURE AND MAJOR STRIKING POINT ABOUT THE

10:17AM

19

COMPLAINT IN MY VIEW IS THAT LACK OF CONSENT IS REALLY THE

10:17AM

20

GRAVAMEN OF THEIR COMPLAINT.

10:17AM

21

CAUSES OF ACTION IF NOT EVERY SINGLE ONE.

10:17AM

22

10:17AM

23

POINT.

10:17AM

24

THOUGH THEY HAVE DONE THEIR JOB IN THE PLEADINGS, BUT IT'S JUST

10:17AM

25

SIMPLY NOT TRUE.

MR. BROWN:

THE COURT:

WE NEED NOT GO ANY FARTHER.

THE

THE

I READ YOUR COMMENTS.
ANYTHING ELSE?

NO.

I WANT TO MOVE TO SCA, BUT I WANT

YES, YOUR HONOR.

SO THERE ARE A NUMBER

STARTING WITH THE CONSENT ISSUE, I

THAT'S WHERE I STARTED AND THEN IT

DRIFTED A LITTLE.
MR. BROWN:

SO ON THE CONSENT ISSUE, REALLY, THE

IT'S FUNDAMENTAL TO MANY OF THEIR

AND THERE'S JUST AN UTTER FAILURE OF PLEADING ON THAT
AND THEY SAY A LOT OF THINGS AND MAKE IT SOUND AS

UNITED STATES COURT REPORTERS

29

10:17AM

1

WELL, FIRST OFF LET ME SAY THIS, THE PLAINTIFFS ALLEGE AND

10:17AM

2

THEY ACKNOWLEDGE IN THE COMPLAINT THAT THE GOVERNING DOCUMENTS

10:17AM

3

FOR THE FACEBOOK CITE ARE THE TERMS OF USE, WHICH FACEBOOK ALSO

10:17AM

4

STATES IN THEIR RIGHTS AND RESPONSIBILITIES, AND THE PRIVACY

10:17AM

5

POLICY, AND THAT'S FROM THE PLAINTIFF'S COMPLAINT.

10:18AM

6

10:18AM

7

WHICH WAS IN EFFECT AT THE BEGINNING OF THE CLASS PERIOD IN

10:18AM

8

THIS CASE, HAD AN ENTRY TITLED IN BOLD FACE "COOKIE

10:18AM

9

INFORMATION" AND IT SAID WE USE COOKIES, SMALL PIECES OF DATA,

10:18AM

10

AND WE STORE FOR AN EXTENDED PERIOD OF TIME ON YOUR COMPUTER TO

10:18AM

11

MAKE FACEBOOK EASIER TO USE, TO MAKE OUR ADVERTISING BETTER AND

10:18AM

12

TO PROTECT YOU AND FACEBOOK.

10:18AM

13

10:18AM

14

THIS IS IN THE PRIVACY POLICY, BUT NEVER YOUR PASSWORD TO MAKE

10:18AM

15

IT EASIER TO LOG IN WHEN YOU RETURN BACK TO FACEBOOK.

10:18AM

16

ALSO USE THEM TO CONFIRM THAT YOU WERE LOGGED INTO FACEBOOK AND

10:18AM

17

TO KNOW WHEN YOU ARE INTERACTING WITH FACEBOOK PLATFORM

10:18AM

18

APPLICATIONS AND WEBSITES, MEANING THIRD-PARTY WEBSITES ON THE

10:18AM

19

FACEBOOK PLATFORM, OUR WIDGETS AND SHARE BUTTON, LIKE THE LIKE

10:19AM

20

BUTTON THAT APPARENTLY THIS CASE IS ABOUT ON THIRD-PARTY

10:19AM

21

WEBSITE, AND OUR ADVERTISEMENTS.

10:19AM

22

10:19AM

23

BROWSERS BUT IN SOME CASES THAT MAY IMPACT YOUR ABILITY TO USE

10:19AM

24

FACEBOOK.

10:19AM

25

THE PRIVACY POLICY, THE VERSION DATED APRIL 22ND, 2010,

FOR EXAMPLE, WE USE THEM TO STORE YOUR LOGIN I.D., AND

AND WE

YOU CAN REMOVE OR BLOCK COOKIES USING THE SETTINGS IN YOUR

THIS IS RIGHT IN THE PRIVACY POLICY.

THIS DISCLOSURE

UNITED STATES COURT REPORTERS

30

10:19AM

1

RIGHT HERE DISCLOSES THE VERY CONDUCT THAT THEY'RE ALLEGING IS

10:19AM

2

WRONGFUL IN THIS CASE.

10:19AM

3

ARE VERY BRIEF ILLUSIONS TO THE PRIVATE POLICY WHILE

10:19AM

4

ACKNOWLEDGING THAT THEY'RE ONE OF THE GOVERNING DOCUMENTS OF

10:19AM

5

THIS SITE, BUT THERE'S NO REAL ACCOUNTING FOR THIS VERY

10:19AM

6

EXPLICIT DISCLOSURE WHICH COVERS THE VERY CONDUCT THAT THIS

10:19AM

7

CASE IS ALL ABOUT.

10:19AM

8

10:19AM

9

10:19AM

10

10:19AM

11

REGISTER, NOT ONLY IS IT STARING AT THEM IN THE FACE OF THE

10:19AM

12

PRIVACY POLICY BUT WHEN YOU REGISTER FOR THE SITE, YOU ACTUALLY

10:19AM

13

HAVE TO ACKNOWLEDGE THAT YOU READ THE PRIVACY POLICY AND IT'S

10:19AM

14

ALSO REFERENCED IN THE TERMS OF USE.

10:19AM

15

10:20AM

16

10:20AM

17

10:20AM

18

CONCEDE, WHAT THEY SAY IS THAT WE CONCEDE THAT FACEBOOK HAD THE

10:20AM

19

RIGHT TO DO EVERYTHING, WE'RE ALLEGING, IF USERS WERE LOGGED

10:20AM

20

IN.

10:20AM

21

THEY MAKE THAT ADMISSION.

10:20AM

22

10:20AM

23

THERE'S NOTHING THAT I JUST READ TO YOU THAT LIMITS THE

10:20AM

24

DISCLOSURES SOMEHOW TO ONLY LOGGED IN USERS.

10:20AM

25

THE COURT:

AND IF YOU READ THE COMPLAINT, THERE

MR. STRAITE JUST SAID THAT WE HAD NO

KNOWLEDGE, AND I THINK HE SAID THAT SEVERAL TIMES.
MR. BROWN:

WELL, THEY DID, BECAUSE, IN FACT, TO

AND I'M NOT JUST BRINGING THAT UP AS A MATTER OUTSIDE OF
THE PLEADINGS.

THEY ACTUALLY ALLEGE THAT.

WHAT THEY BASICALLY DO, THEIR MANEUVER HERE, BECAUSE THEY

THEY, THEY -- I MEAN, THAT IS RIGHT IN THEIR COMPLAINT.

SO THIS CASE IS ALL ABOUT LOGGED OUT FACEBOOK USERS.

THE MANEUVER THAT THEY HAVE TO MAKE IS THAT THEY HAVE GONE

UNITED STATES COURT REPORTERS

31

10:20AM

1

AND FOUND ONE SENTENCE IN THE HELP CENTER, THE HELP CENTER OF

10:20AM

2

THE WEBSITE THAT, YOU KNOW, THAT SAYS THAT CERTAIN TYPES OF

10:20AM

3

COOKIES WILL BE DELETED WHEN YOU LOG OUT.

10:20AM

4

10:20AM

5

ANY OF THESE NAMED PLAINTIFFS EVER SAW THAT HELP CENTER

10:20AM

6

STATEMENT, LET ALONE ANY ALLEGATION THAT THESE NAMED PLAINTIFFS

10:20AM

7

RELIED ON IT.

10:21AM

8

LACK OF CONSENT.

10:21AM

9

EITHER IN THEIR PLEADING OR THEIR PAPERS OR ARGUMENT TODAY TO

10:21AM

10

10:21AM

11

10:21AM

12

MENTION THAT I SAY THAT'S FUNDAMENTAL TO MANY OF THEIR CAUSES

10:21AM

13

OF ACTION, AND IT'S FUNDAMENTAL TO THEIR WIRETAP CLAIM AND SCA

10:21AM

14

CLAIMS IN PARTICULAR.

10:21AM

15

THEIR COMMENT EARLIER ABOUT FACEBOOK ENGINEERS MAKING

10:21AM

16

CERTAIN STATEMENTS, I WOULD SUBMIT IT'S SMOKE AND MIRRORS.

10:21AM

17

JUST BECAUSE FACEBOOK SAID THAT THEY DIDN'T INTEND TO NOT

10:21AM

18

DELETE CERTAIN TYPES OF COOKIES UPON LOGOUT AND THEY DIDN'T

10:21AM

19

COMPLY WITH WHAT THEY INTENDED TO DO IS MUCH DIFFERENT THAN

10:21AM

20

SAYING THAT THERE IS LEGAL LIABILITY FOR DOING THAT.

10:22AM

21

TWO VERY DISTINCT THINGS.

10:22AM

22

10:22AM

23

LACK OF CONSENT.

10:22AM

24

INTENDED TO DO A CERTAIN THING OR NOT AND LATER CHARACTERIZED

10:22AM

25

IT AS A MISTAKE IS A VERY DIFFERENT THING FROM WHETHER THAT'S

BUT THERE'S ABSOLUTELY NO ALLEGATION IN THE COMPLAINT THAT

THAT'S FATAL TO ALL OF THEIR CLAIMS THAT RELY ON
IT'S FATAL.

AND THERE'S BEEN NO ACCOUNTING

DEAL WITH THAT MAJOR FAILURE OF PLEADING.
I'D LIKE TO MOVE FROM THERE THEN TO -- SO I SHOULD JUST

THOSE ARE

THEY HAVE ALLEGED CERTAIN CAUSES OF ACTION THAT REQUIRE
FACEBOOK HAD THE CONSENT.

UNITED STATES COURT REPORTERS

WHETHER IT

32

10:22AM

1

AN ADMISSION THAT THEY WERE SOMEHOW LEGALLY LIABLE UNDER

10:22AM

2

PARTICULAR STATUTES OR UNDER TORT LAW.

10:22AM

3

THINGS.

10:22AM

4

MOVING NOW TO THE ISSUE OF VALUE, GETTING BACK TO ONE OF

10:22AM

5

THE CORE ARTICLE III CONCEPTS, I WAS LISTENING VERY CAREFULLY

10:22AM

6

WHEN YOU WERE HAVING THE COLLOQUY WITH COUNSEL AND THE DIRECT

10:22AM

7

QUESTION WAS, WAS THERE ANY ALLEGATION THAT THIS PARTICULAR

10:22AM

8

INFORMATION HAS DEMONSTRABLE VALUE TO THESE NAMED PLAINTIFFS?

10:22AM

9

AND THE ANSWER REALLY IS, NO, THERE IS NO ALLEGATION IN THE

10:22AM

10

10:23AM

11

10:23AM

12

THAT WE HAVE ALLEGED SPECIFIC VALUES OF THIS.

10:23AM

13

WELL, IT'S NOT A SPECIFIC VALUE OF THIS.

10:23AM

14

THERE IN THE WORLD BASED ON SOME STUDY THAT HAS BEEN DONE OR

10:23AM

15

VALUE TO WHO KNOWS WHAT CORPORATION AND WHERE.

10:23AM

16

10:23AM

17

PLAINTIFFS AND OUR PAPERS ARE JUST FILLED WITH CITATIONS TO

10:23AM

18

CASES THAT ARE ON POINT.

10:23AM

19

ALL RIGHT NOW, WHICH WOULD BE PROBABLY A FOOL'S ERRAND.

10:23AM

20

10:23AM

21

QUICKLY TO MIND.

10:23AM

22

THIS DISTRICT BEFORE JUDGE WARE, AND JUDGE WARE HELD THAT

10:23AM

23

FACEBOOK WAS FREE, AND, THEREFORE, PLAINTIFFS COULD NOT ALLEGE

10:23AM

24

THAT THEY LOST ANY MONEY OR PROPERTY AS A RESULT OF THE CONDUCT

10:23AM

25

THERE.

TWO VERY DIFFERENT

COMPLAINT.
AND, YOU KNOW, THE PHRASE THAT WAS USED A FEW TIMES WAS

SOME ARE OUT

IT HAS TO BE DEMONSTRABLE VALUE SHOWN TO THESE NAMED

I'M NOT GOING TO TRY TO RECITE THEM

BUT I WOULD JUST POINT OUT THAT THERE'S A COUPLE THAT CAME
ONE IS IN RE:

FACEBOOK PRIVACY LITIGATION IN

AND IT'S PRECISELY THE SAME DEFENDANT AND THE SAME

UNITED STATES COURT REPORTERS

33

10:24AM

1

WEBSITE AND THE FACT IS THAT FACEBOOK IS FREE, THERE'S NO MONEY

10:24AM

2

PAID TO JOIN THE SITE AND THEY HAVE TO TIE THEMSELVES IN KNOTS

10:24AM

3

IN THESE SORT OF VALUE-FOR-VALUE EXCHANGE THEORIES, WHICH I

10:24AM

4

HAVE SAID BEFORE HAVE BEEN REJECTED REPEATEDLY BY THE COURTS.

10:24AM

5

AND, FURTHERMORE, IN THE IPHONE APPLICATION LITIGATION

10:24AM

6

BEFORE JUDGE KOH, AGAIN, A PLAINTIFF'S PERSONAL INFORMATION

10:24AM

7

DOES NOT SUBSTITUTE MONEY OR PROPERTY.

10:24AM

8

EXAMPLES, AND WE HAVE CITED MANY OTHERS.

10:24AM

9

REALLY BE THE END.

10:24AM

10

10:24AM

11

10:24AM

12

MR. BROWN:

10:24AM

13

THEORY OF INJURY IS.

10:24AM

14

SPEAK BROADLY BECAUSE I DON'T KNOW IT'S NECESSARY TO DISPOSE OF

10:24AM

15

THIS CASE TO TAKE SOME BROAD POSITION ON THAT.

10:24AM

16

IT'S CERTAINLY IN A LOT OF THESE PRIVACY CLASS ACTIONS

10:24AM

17

THAT HAVE BEEN BROUGHT IN THE LAST COUPLE OF YEARS, MANY OF THE

10:25AM

18

COMPLAINTS HAVE GOTTEN DISMISSED ON THIS VERY GROUND.

10:25AM

19

DOESN'T MEAN THAT EVERY ONE HAS, AND IT DOESN'T MEAN THAT THERE

10:25AM

20

COULDN'T BE CERTAIN FACT PATTERNS.

10:25AM

21

10:25AM

22

POSSIBLY, IT DEPENDS ON THE FACTS, AND IT DEPENDS ON WHETHER

10:25AM

23

THE FEE FOR THE USE OF THE WEBSITE IS SOMEHOW TETHERED TO THE

10:25AM

24

USE OF THE ALLEGED WRONGFUL CONDUCT.

10:25AM

25

THE COURT:

AND THOSE ARE TWO
AND SO THAT SHOULD

DOES THAT PUT THE END TO ALL OF THESE

KINDS OF CASES IN YOUR OPINION IF YOU CAN'T SHOW VALUE?
WELL, IT DEPENDS ON EXACTLY WHAT THE
I DON'T WANT TO SAY -- I DON'T WANT TO

IT

FOR INSTANCE, YOU KNOW, A WEBSITE THAT CHARGES A FEE,

THE COURT:

SURE.

I THINK WE CAN ALL HYPOTHECATE

UNITED STATES COURT REPORTERS

34

10:25AM

1

ALL KINDS OF DIFFERENT FACTS, AND I DIDN'T MEAN TO PUT YOU IN A

10:25AM

2

POSITION TO ARGUE AGAINST YOURSELF, BUT I'M JUST CURIOUS

10:25AM

3

WHETHER OR NOT IF YOU CAN'T SHOW THE INJURY AND THERE'S NO

10:25AM

4

VALUE TO ANY OF THIS INFORMATION TO AN INDIVIDUAL, THEN WHAT IS

10:25AM

5

THE INDIVIDUAL'S REDRESS?

10:25AM

6

GET INTO COURT?

10:25AM

7

MR. BROWN:

10:25AM

8

STATUTORY VIOLATIONS.

10:26AM

9

TETHERING TO THE ALLEGED STATUTORY VIOLATION AND SOME SORT OF

10:26AM

10

PARTICULARITY TO THE USERS -- I'M SORRY -- TO THE PLAINTIFF.

10:26AM

11

10:26AM

12

DOWN THAT SLIPPERY SLOPE.

10:26AM

13

THAT COMES BEFORE YOU AND THEN THERE ARE GOING TO BE PLENTY OF

10:26AM

14

CASES THAT YOU CAN SHOW ACTUAL INJURY, IT'S JUST THAT, FRANKLY,

10:26AM

15

THERE HAVE BEEN A LOT, IN MY PERSONAL VIEW, THERE HAVE BEEN A

10:26AM

16

LOT OF CLASS ACTIONS BROUGHT IN THE PAST FEW YEARS WHERE IT IS

10:26AM

17

A HOT AREA AND WHERE THERE REALLY ISN'T AN INJURY.

10:26AM

18

COMPENSATE FOR WHAT THEY'RE LACKING IN THE REAL WORLD WITH

10:26AM

19

ACTUAL FACTS, PEOPLE HAVE COME UP WITH TORTURED THEORIES OF

10:26AM

20

INJURY AND SO YOU ARE SEEING A LOT OF COURTS THROWING THESE

10:26AM

21

CASES OUT.

10:26AM

22

10:27AM

23

SORT OF, WE'VE MORE THAN INCHED, I THINK, INTO THE MERITS OF

10:27AM

24

THAT CLAIM.

10:27AM

25

WHAT DO THEY DO?

HOW DO THEY EVER

WELL, YOU KNOW, YOU OFTEN DO HAVE THESE
AGAIN, THERE HAS GOT TO BE SOME

BUT, NO, I DON'T ACTUALLY THINK OUR POSITION LEADS YOU
I THINK YOU HAVE TO TAKE EVERY CASE

AND SO TO

MOVING NOW, IF I COULD, TO THE WIRETAP ACT, BECAUSE WE ARE

JUST TO GIVE YOU AN OVERVIEW OF OUR ARGUMENT, AND IT WAS

UNITED STATES COURT REPORTERS

35

10:27AM

1

DEALT WITH QUITE THOROUGHLY IN OUR PAPERS, BUT THERE ARE REALLY

10:27AM

2

IN MY MIND SIX DIFFERENT REASONS WHY THIS CLAIM SHOULD FAIL,

10:27AM

3

ALL OF THEM INDEPENDENT.

10:27AM

4

ONE OF THOSE IS BECAUSE THERE'S NO INTERCEPTION;

10:27AM

5

TWO, WE'RE NOT TALKING ABOUT CONTENTS OF COMMUNICATIONS AS

10:27AM

6

10:27AM

7

10:27AM

8

10:27AM

9

10:27AM

10

10:27AM

11

10:27AM

12

10:27AM

13

10:27AM

14

10:27AM

15

10:28AM

16

PARTY AND THE INTERCEPTION.

10:28AM

17

WAS A PARTY TO THE COMMUNICATION, WHICH IT SEEMS LIKE IT WOULD

10:28AM

18

THEN DO AWAY WITH AN INTERCEPTION ARGUMENT.

10:28AM

19

THAT WORKS OUT.

10:28AM

20

10:28AM

21

PROBLEM HERE, AGAIN, I DON'T MEAN TO BE IMPRECISE, AND I'LL GET

10:28AM

22

VERY PRECISE IN A SECOND, BUT THE PROBLEM IS THEY'RE TRYING TO

10:28AM

23

FIT A SQUARE PEG INTO A ROUND HOLE AND THIS IS NOT A STATUTE

10:28AM

24

THAT IS EVER DESIGNED TO COVER CONDUCT LIKE THAT.

10:28AM

25

WIRETAP ACT.

THAT'S UNDERSTOOD UNDER THE STATUTE; AND,
THREE, THERE WAS NO DEVICE ALLEGED, WHICH IS A REQUIREMENT
FOR A CLAIM UNDER THE STATUTE;
FACEBOOK WAS A PARTY TO THE COMMUNICATION, WHICH
ABSOLUTELY DECIMATES THEIR CLAIM;
THE PLAINTIFFS CONSENTED TO THE USE OF COOKIES, AS I JUST
MENTIONED, BECAUSE OF THE PRIVACY POLICY DISCLOSURE; AND,
FINALLY, THIRD-PARTY WEBSITES ALSO CONSENTED AND THAT CAN
BE A DEFENSE AS WELL UNDER THE WIRETAP ACT.
THE COURT:

MR. BROWN:

LET ME EXPLORE JUST FOR A MOMENT THE
YOU INDICATED THE PARTY, FACEBOOK,

AND TELL ME HOW

IT DOES DO AWAY WITH IT.

UNITED STATES COURT REPORTERS

AND THE

THIS IS THE

36

10:28AM

1

THE COURT:

THIS WAS DEVELOPED WAY BEFORE.

10:28AM

2

MR. BROWN:

WAY BEFORE.

10:28AM

3

THE COURT:

BEFORE OUR FORMER VICE PRESIDENT

10:28AM

4

10:28AM

5

10:28AM

6

GOING TO STRUGGLE TO TRY TO APPLY A STATUTE LIKE THIS TO A SET

10:28AM

7

OF FACTS LIKE THIS.

10:28AM

8

10:28AM

9

10:29AM

10

HERE THERE IS NO INTERCEPTION.

10:29AM

11

SEPARATE AND CONSECUTIVE TRANSMISSIONS.

10:29AM

12

COMPLAINT, WE'RE TAKING THE NONCONCLUSORY FACTUAL ALLEGATIONS

10:29AM

13

OF THEIR COMPLAINT AS TRUE FOR PURPOSES OF THIS MOTION.

10:29AM

14

10:29AM

15

ONE IS A COMMUNICATION.

10:29AM

16

COMMUNICATION, AND I WOULDN'T CONCEDE THAT.

10:29AM

17

10:29AM

18

USED, THE CLICKING OF WHEREVER IT WAS AND THAT'S NOT A

10:29AM

19

COMMUNICATION?

10:29AM

20

COMMUNICATION?

10:29AM

21

10:29AM

22

NOT THE CONTENTS OF THE COMMUNICATION, BUT I DON'T THINK THAT

10:29AM

23

WE NEED TO GET THERE TO DISPOSE OF THE CLAIM.

10:29AM

24

THE COURT:

SURE.

10:29AM

25

MR. BROWN:

SO LET'S TAKE CNN.COM AS AN EXAMPLE.

INVENTED THE INTERNET.
MR. BROWN:

YEAH.

I MEAN, AND SO NATURALLY YOU'RE

AND WHEN YOU START FINDING YOURSELF SEARCHING FOR HOW YOU
CAN MAKE THESE PROVISIONS WORK, IT OUGHT TO BE A RED FLAG.
WHAT WE HAVE HERE IS TWO
AND THIS IS FROM THE

NOW, THERE ARE TWO SEPARATE AND CONSECUTIVE TRANSMISSIONS.

THE COURT:

FIRST OF ALL, IF YOU ASSUME THERE'S A

THE CLICKING AND THE HYPOTHETICAL THAT I

SENDING THAT REQUEST TO A WEBSITE IS NOT A

MR. BROWN:

I WOULDN'T CONCEDE THAT, NO.

UNITED STATES COURT REPORTERS

CERTAINLY

37

10:29AM

1

THE FIRST COMMUNICATION WOULD BE A GET REQUEST TO DISPLAY THAT

10:30AM

2

PARTICULAR CNN WEB PAGE TO THE USER AND PLUS ANY INFORMATION

10:30AM

3

CONTAINED IN THE CNN.COM WEB PAGE TO THE BROWSER.

10:30AM

4

10:30AM

5

GET REQUEST TO FACEBOOK SERVERS IN ORDER TO GET THE FACEBOOK

10:30AM

6

LIKE BUTTON IMAGE THAT NEEDS TO BE DISPLAYED BY THE CNN SITE

10:30AM

7

AND ALONG WITH THAT ANY INFORMATION THAT WAS IN THE FACEBOOK

10:30AM

8

COOKIE THAT WAS ON THE USER'S BROWSER.

10:30AM

9

COMMUNICATIONS.

10:30AM

10

10:30AM

11

LOOK, THE READING OF THE STATUTE.

10:30AM

12

STATUTE AND IT'S A CERTAIN SET OF FACTS THAT HAVE BEEN BROUGHT

10:30AM

13

BEFORE THE COURT, AND IT DOESN'T FIT.

10:30AM

14

10:30AM

15

COMMUNICATIONS AS OPPOSED TO ONE COMMUNICATION THAT WAS THEN

10:30AM

16

INTERCEPTED BY THE FACEBOOK PROCESS, WHATEVER THAT IS?

10:30AM

17

10:31AM

18

DISTINCT GROUND IN WHICH THIS CLAIM FAILS AND A DISTINCT GROUND

10:31AM

19

FROM THAT, A SECOND GROUND, IS THAT FACEBOOK, AS I JUST SET

10:31AM

20

FORTH, IS ACTUALLY A PARTY TO THE COMMUNICATION.

10:31AM

21

10:31AM

22

PARTY TO THE USER AT HOME AND IN YOUR COLLEAGUE'S KITCHEN WHEN

10:31AM

23

HE WISHES TO GET, HOW ARE THEY A PARTY TO THAT?

10:31AM

24

10:31AM

25

THEN AFTER THAT, THE USER OF THE BROWSER SENDS A DIFFERENT

TWO DIFFERENT

AND, YOU KNOW, PEOPLE MIGHT SAY THIS IS A HYPER TECHNICAL

THE COURT:

MR. BROWN:

THE COURT:

MR. BROWN:

WELL, IT'S A TECHNICAL

SO YOU'RE SAYING IT'S TWO SEPARATE

THAT'S CORRECT.

AND SO THAT'S ONE

AND HOW DOES THAT WORK?

HOW ARE THEY A

WELL, AGAIN, IF YOU ASSUME IT'S A

COMMUNICATION, FIRST OF ALL, AS OPPOSED TO JUST THE PROCESS OF

UNITED STATES COURT REPORTERS

38

10:31AM

1

HOW THE INTERNET WORKS AND HOW IT HAS WORKED FOR A LONG TIME, I

10:31AM

2

MIGHT ADD, THEN EITHER THEY'RE A RECIPIENT OF THE COMMUNICATION

10:31AM

3

BETWEEN THE USER OR THE USER'S BROWSER, REALLY TECHNICALLY, AND

10:31AM

4

FACEBOOK, OR THIS IS NOT THE WAY THAT I READ THEIR COMPLAINT OR

10:31AM

5

IF THEY WANT TO CHARACTERIZE THEIR COMPLAINT AS BEING SOMEHOW A

10:31AM

6

COMMUNICATION FROM CNN.COM AND FACEBOOK IS STILL A PARTY TO

10:31AM

7

THAT COMMUNICATION AS WELL.

10:31AM

8

THE COURT:

BY VIRTUE OF?

10:31AM

9

MR. BROWN:

THE COMMUNICATION, IF WE'RE CALLING IT

10:32AM

10

THAT, HAS TO GO TO FACEBOOK, BECAUSE IN ORDER TO POPULATE THE

10:32AM

11

CNN WEBSITE WITH THE FACEBOOK LIKE BUTTON, THERE HAS TO BE A

10:32AM

12

COMMUNICATION WITH THE FACEBOOK SERVER IN ORDER FOR THAT LIKE

10:32AM

13

BUTTON TO GET DISPLAYED.

10:32AM

14

10:32AM

15

10:32AM

16

10:32AM

17

JUST THE WAY THAT THE INTERNET WORKS AND IT'S NOT AS IF CNN.COM

10:32AM

18

CAN JUST POPULATE THAT LIKE BUTTON WITHOUT THIS SERVER REQUEST

10:32AM

19

GOING TO FACEBOOK.

10:32AM

20

10:32AM

21

PARTY TO THE COMMUNICATION.

10:32AM

22

ACTUALLY JUST ON INTERCEPTION FOR A MOMENT, STICKING WITH THAT,

10:32AM

23

PLAINTIFF'S COUNSEL AT ONE POINT SAID ASSUMING THAT KONOP

10:32AM

24

VERSUS HAWAIIAN AIRLINES IS GOVERNING LAW.

10:32AM

25

WELL, WE DON'T HAVE TO ASSUME IT.

THE COURT:

EITHER WAY.

AND THAT LIKE BUTTON WILL BE DISPLAYED

IF THEY LOGGED OFF?
MR. BROWN:

THAT'S RIGHT.

THAT'S RIGHT.

AND THAT'S

SO WE TALK THERE ABOUT NO INTERCEPTION AND FACEBOOK WAS A
THE PLAINTIFF'S COUNSEL -- OH,

WE ARE IN THE NINTH

UNITED STATES COURT REPORTERS

39

10:33AM

1

CIRCUIT.

IT IS THE GOVERNING LAW.

AND THE PLAINTIFFS AGAIN

10:33AM

2

WENT OUT OF THEIR WAY TO ARGUE FIRST CIRCUIT AUTHORITY AND

10:33AM

3

SEVENTH CIRCUIT AUTHORITY, AND THEY SEEMED TO LIKE THAT BETTER,

10:33AM

4

BUT WE ARE IN THE NINTH CIRCUIT AND IT IS GOVERNING LAW.

10:33AM

5

10:33AM

6

BE DURING TRANSMISSION, AND THAT'S WHAT INTERCEPTION MEANS, AND

10:33AM

7

THEY DESCRIBE THAT AS THE VERY SHORT PERIOD WHERE TRAVELS

10:33AM

8

ACROSS THE WIRES OF THE SPEED OF LIGHT.

10:33AM

9

10:33AM

10

10:33AM

11

10:33AM

12

OTHERWISE, THAT ACTUALLY TELL US WHAT A COMMUNICATION IS, WHAT

10:33AM

13

AN INTERCEPTION IS, WHAT A TRANSMISSION IS VIS-À-VIS THE USE OF

10:33AM

14

THE INTERNET AND THE USER'S USE OF THEIR COMPUTER TRYING TO

10:34AM

15

ACCESS INFORMATION ON THE INTERNET?

10:34AM

16

US THAT'S WHAT THAT IS, AND, IF NOT, ISN'T THAT WHAT YOU'RE

10:34AM

17

ASKING THE COURT TO DEFINE?

10:34AM

18

10:34AM

19

10:34AM

20

COURT, I'M A LITTLE BIT ON THE SPOT ON THIS ONE AND I'M FELLING

10:34AM

21

ON THE SPOT.

10:34AM

22

THE COURT:

THAT'S WHY WE ASK THIS QUESTION.

10:34AM

23

MR. BROWN:

AND I SHOULD, FRANKLY, BE PREPARED TO

10:34AM

24

ANSWER IT AND I SAY THAT SHEEPISHLY.

10:34AM

25

COUPLE OF THOSE CASES IN OUR PAPERS, AND I'LL HAVE TO GO BACK

AND UNDER KONOP, THE NINTH CIRCUIT HAS HELD THAT IT MUST

SO HAVING TWO SEPARATE COMMUNICATIONS THAT ARE CLOSE IN
TIME OR SOMETHING LIKE THAT DOESN'T CUT IT.
THE COURT:

ARE THERE ANY CASES, NINTH CIRCUIT OR

IS THERE ANY CASE TELLING

THAT'S A QUESTION FOR BOTH OF YOU.
MR. BROWN:

I'M GOING TO BE TOTALLY FRANK WITH THE

AND I THINK WE ADDRESS A

UNITED STATES COURT REPORTERS

40

10:34AM

1

AND LOOK.

10:34AM

2

ONE THAT COMES TO MIND ACTUALLY, AND IT'S CLOSE, I'M NOT

10:34AM

3

SURE IF IT'S EXACTLY WHAT YOU'RE GETTING AT, BUT I THINK IT'S

10:34AM

4

CLOSE, IS THE FACEBOOK PRIVACY LITIGATION.

10:34AM

5

CASE WHERE YOU HAD THE ALLEGATION WAS THAT WHEN A FACEBOOK USER

10:34AM

6

CLICKED ON A THIRD-PARTY ADVERTISEMENT THAT APPEARED IN THE

10:34AM

7

FACEBOOK WEBSITE AND THE STANDARD FUNCTIONING OF THE INTERNET,

10:35AM

8

AGAIN, WHAT HAPPENS IS A REFERRER GETS TRANSMITTED FROM THE

10:35AM

9

USER'S BROWSER TO THE KIND OF RECEIVING WEBSITE OR THE

10:35AM

10

10:35AM

11

10:35AM

12

THE INTERNET, BUT THERE JUDGE WARE HELD THAT ESSENTIALLY

10:35AM

13

FACEBOOK IS A PARTY TO THAT COMMUNICATION ONE WAY OR THE OTHER,

10:35AM

14

AND, THEREFORE, THERE CAN'T BE ANY CLAIM UNDER EITHER THE

10:35AM

15

WIRETAP ACT OR THE SCA.

10:35AM

16

10:35AM

17

DEVICE, THE WIRETAP ACT REQUIRES THAT THE INTERCEPTION BE

10:35AM

18

ACCOMPLISHED USING AN ELECTRONIC, MECHANICAL OR OTHER DEVICE.

10:35AM

19

10:35AM

20

DISTRICT OF CALIFORNIA CASE, EXPLAINED THAT IT HAD TO BE

10:35AM

21

SOMETHING OTHER THAN THE TOOLS THAT ARE USED IN THE ORDINARY

10:35AM

22

COURSE OF COMMUNICATION.

10:36AM

23

10:36AM

24

WIRETAP ACT.

10:36AM

25

PHONE LINE, YOU TAKE A DEVICE, AND THERE'S A PHONE LINE AND ONE

ADVERTISER'S WEBSITE.

AND SO THAT WAS A

AND THEN, YOU'RE RIGHT.

AND THERE JUDGE WARE -- AND THAT'S A STANDARD FUNCTION OF

IN TERMS OF THE ELEMENT OF THE WIRETAP ACT, RELATING TO

THE CROWLEY VERSUS CYBERSOURSE CASE, ANOTHER NORTHERN

SO -- AND THAT MAKES SENSE, RIGHT?

I MEAN, THIS IS THE

THE QUINTESSENTIAL EXAMPLE IS THAT YOU TAP A

UNITED STATES COURT REPORTERS

41

10:36AM

1

PERSON IS TALKING TO ANOTHER PERSON AND YOU USE IT AND YOU TAP

10:36AM

2

THIS DEVICE, AND YOU STICK IT ON THE PHONE LINE, AND THAT'S THE

10:36AM

3

DEVICE.

10:36AM

4

10:36AM

5

BUT I THINK IT'S USEFUL TO THINK ABOUT WHERE THIS STATUTE CAME

10:36AM

6

FROM.

10:36AM

7

SO IF YOU'RE SIMPLY POINTING TO ALL OF THE TYPICAL TOOLS

10:36AM

8

THAT ARE USED IN STANDARD INTERNET USAGE THE WAY THE INTERNET

10:36AM

9

WORKS, THAT'S NOT SUFFICIENT.

10:36AM

10

TO BE SOMETHING BEYOND THAT.

10:36AM

11

10:36AM

12

THEY'RE ALL OVER THE PLACE AND YOU HAVE TO GO BACK AND LOOK

10:36AM

13

CAREFULLY AT THE COMPLAINT TO LOOK AT WHAT THEY ALLEGED THERE

10:36AM

14

TO SEE WHAT THEY BROUGHT INTO THEIR OPPOSITION BRIEF, WHICH IS

10:36AM

15

A DIFFERENT STORY.

10:36AM

16

10:37AM

17

BROWSERS, THEIR COMPUTERS, FACEBOOK SERVERS, THOSE ARE ALL

10:37AM

18

TOOLS THAT WOULD BE USED ORDINARILY TO ACCOMPLISH WHAT IS

10:37AM

19

TRYING TO BE ACCOMPLISHED, WHICH IS TO PULL UP A WEB PAGE AND

10:37AM

20

SHOW THE FACEBOOK LIKE BUTTON.

10:37AM

21

THE COURT:

10:37AM

22

TECHNOLOGY, AND I MEANT NO DISRESPECT TO OUR FORMER VICE

10:37AM

23

PRESIDENT, BUT SINCE THE ADVENT OF THE INTERNET AND ALL OF THE

10:37AM

24

IMPROVEMENTS THAT IT HAS TAKEN, YOU'RE SAYING THAT THE GROWTH

10:37AM

25

OF THE TECHNOLOGY, THE EQUIPMENT TO ACCESS THAT.

SO, FINE, OR MAYBE WE'RE NOT IN THAT WORLD IN THIS CASE,

THOSE CAN'T BE DEVICES.

IT HAS

AND THE ONLY THING THAT THEY REALLY POINTED TO, AND

BUT ANYTHING THAT THEY POINTED TO, THE COOKIES THEMSELVES,

SO THOSE ARE NOT UNUSUAL IN THE CURRENT

UNITED STATES COURT REPORTERS

42

10:37AM

1

MR. BROWN:

YEAH.

I MEAN, THIS IS THE WAY THAT THE

10:37AM

2

MODERN INTERNET WORKS AND IT NEEDS ALL OF THESE TOOLS AND SO

10:37AM

3

THAT CAN'T BE SORT OF THE, YOU KNOW, EXTERNAL DEVICE, IF YOU

10:37AM

4

WILL, THAT IS BEING EMPLOYED TO UNDERTAKE THIS ALLEGED

10:37AM

5

INTERCEPTION WHILE IN TRANSIT.

10:37AM

6

FASHIONED PHONE WIRETAP.

10:38AM

7

10:38AM

8

HAVE OFTEN INFERRED CONSENT WHERE IT'S CLEAR FROM THE BUSINESS

10:38AM

9

ARRANGEMENT?

10:38AM

10

10:38AM

11

TRANSMISSION TO FACEBOOK BECAUSE CNN OBVIOUSLY WANTS ITS OWN

10:38AM

12

WEB PAGE TO BE POPULATED WITH THE LIKE BUTTON.

10:38AM

13

AGAIN, AND WE HAVE CITED SOME CASES, TOYS 'R' US PRIVACY

10:38AM

14

LITIGATION, DOUBLECLICK, THE CHANCE CASE THAT SUPPORT THAT

10:38AM

15

PROPOSITION AS WELL.

10:38AM

16

THE COURT:

10:38AM

17

MR. GRYGIEL IS GOING TO SPEAK TO THAT, BUT WHY DON'T YOU TELL

10:38AM

18

ME YOUR THOUGHTS ABOUT THAT.

10:38AM

19

THING.

10:38AM

20

10:39AM

21

10:39AM

22

10:39AM

23

10:39AM

24

10:39AM

25

IT'S NOT ANALOGOUS TO THE OLD

FINALLY, THIRD-PARTY WEBSITES ALSO CONSENTED AND COURTS

OBVIOUSLY CNN IS CONSENTING TO THE GET REQUEST AND THE

AND SO ONCE

WHY DON'T WE MOVE TO THE SCA, AND I KNOW

I WAS THINKING ABOUT THE COOKIES

YOU'LL HAVE A CHANCE.
MR. GRYGIEL:

NO, ACTUALLY, YOUR HONOR, MR. STRAITE

IS GOING TO.
THE COURT:

THAT'S RIGHT.

I BEG YOUR PARDON.

MR. STRAITE, YOU'RE GOING TO DO THAT.
MR. GRYGIEL:

BUT IF HE DOES A GOOD JOB, I'D RATHER

BE HIM.

UNITED STATES COURT REPORTERS

43

10:39AM

1

THE COURT:

SO THIS COOKIE STORAGE, I GUESS THAT'S

10:39AM

2

10:39AM

3

10:39AM

4

FOUR MAIN POINTS TO MAKE ON THE SCA, AND, AGAIN, I'LL TRY NOT

10:39AM

5

TO REGURGITATE THE BRIEFING THAT WE SUBMITTED.

10:39AM

6

10:39AM

7

PLEADINGS ARE FANTASTIC.

10:39AM

8

IT.

10:39AM

9

FRONT OF THE JUDGE, AND I APPRECIATE THAT.

10:39AM

10

MR. GRYGIEL:

10:39AM

11

MR. BROWN:

10:39AM

12

UNDER THE STATUTE MEANS EITHER TEMPORARY, INTERMEDIATE STORAGE

10:39AM

13

OF A WIRE OR ELECTRONIC COMMUNICATION INCIDENTAL TO AN

10:39AM

14

ELECTRONIC COMMUNICATION OR STORAGE OF SUCH COMMUNICATION BY AN

10:39AM

15

ELECTRONIC COMMUNICATION SURFACE FOR PURPOSES OF BACKUP

10:39AM

16

PROTECTION.

10:39AM

17

I'LL GET INTO THIS IN A LITTLE MORE DETAIL, BUT I THINK,

10:40AM

18

YOU KNOW, JUST LINGERING FROM ON THAT TECHNICAL DEFINITION OF

10:40AM

19

THE STATUTE LEADS YOU TO WONDER HOW THAT DEFINITION COULD EVER

10:40AM

20

BE SATISFIED IN THIS CASE.

10:40AM

21

PROBLEM ALL OVER AGAIN.

10:40AM

22

10:40AM

23

NOT AN ELECTRONIC STORAGE.

10:40AM

24

COOKIE IS JUST A TEXT FILE THAT RESIDES ON THE PLAINTIFF'S

10:40AM

25

COMPUTER AND IS PART OF THE BROWSER.

ONE OF THE FIRST QUESTIONS, THE COOKIE STORAGE.
MR. BROWN:

THE COURT:

SO LET'S START WITH THAT.

AND LET ME STOP YOU THERE.
THEY'RE VERY HELPFUL.

THERE ARE

BOTH OF YOUR
I APPRECIATE

IT'S ALWAYS A PLEASURE TO HAVE WONDERFUL PLEADINGS IN

THANK YOU, YOUR HONOR.

SO THE DEFINITION OF ELECTRONIC STORAGE

IT'S A SQUARE PEG, ROUND HOLE

AND THE DATA STORED ON PLAINTIFF'S PERSONAL COMPUTERS IS
AND AS THE COMPLAINT ALLEGES,

UNITED STATES COURT REPORTERS

44

10:40AM

1

AND NONTEMPORARY DATA, AND PARTICULARLY DATA STORED ON A

10:40AM

2

PERSONAL COMPUTER HAS BEEN HELD NOT TO BE ELECTRONIC STORAGE

10:40AM

3

UNDER THE SCA, AGAIN, TOYS 'R' US PRIVACY LITIGATION; IPHONE

10:40AM

4

APPLICATION LITIGATION, THE SECOND OPINION; AND THE COUNCIL ON

10:40AM

5

AMERICAN-ISLAMIC RELATIONS, ALL CASES THAT WE CITED IN OUR

10:40AM

6

BRIEFS.

10:41AM

7

10:41AM

8

THAT FACEBOOK IS AN ELECTRONICS COMMUNICATION SERVICE, LET

10:41AM

9

ALONE ONE THAT STORES THEIR DATA FOR BACKUP PROTECTION

10:41AM

10

10:41AM

11

10:41AM

12

DEFINITION, BUT THERE'S SIMPLY NO -- I MEAN, IT'S HARD TO GET

10:41AM

13

YOUR HEAD AROUND HOW THAT CAN BE THE CASE ON THESE FACTUAL

10:41AM

14

ALLEGATIONS, BUT THERE'S ABSOLUTELY NO ALLEGATION IN THE

10:41AM

15

COMPLAINT THAT FACEBOOK IS SOMEHOW STORING THEIR -- THE

10:41AM

16

PLAINTIFF'S DATA FOR BACKUP PROTECTION PURPOSES.

10:41AM

17

THE CASE IS ABOUT.

10:41AM

18

CAN'T BE SATISFIED.

10:41AM

19

10:41AM

20

THE SCA, AND PLAINTIFF'S AND CLASS MEMBER'S COMPUTERS ARE THE

10:42AM

21

FACILITIES THROUGH WHICH THE ELECTRONICS COMMUNICATION SERVICE

10:42AM

22

IS PROVIDED.

10:42AM

23

SO, AGAIN, IT APPEARS, I DON'T THINK THAT THEY HAVE

10:42AM

24

ACTUALLY ALLEGED WHO THE ELECTRONICS COMMUNICATION SERVICE IS

10:42AM

25

IN THIS CONTEXT, BUT IT'S THE MOST THAT THEY HAVE DONE IS KIND

SECONDLY, FOR THESE PURPOSES, PLAINTIFFS HAVEN'T ALLEGED

PURPOSES.
SO, LIKE I SAID, THERE ARE TWO DIFFERENT ASPECTS OF THE

IT'S NOT WHAT

SO THAT PORTION OF THE DEFINITION CERTAINLY

AT SOME POINT THEY ACTUALLY ALLEGED A SINGLE PARAGRAPH IN

UNITED STATES COURT REPORTERS

45

10:42AM

1

OF MENTIONED IT OFFHANDLY WITHOUT ACTUALLY IDENTIFYING WHO THE

10:42AM

2

ECS WOULD BE UNDER THE SCA.

10:42AM

3

10:42AM

4

COMPUTERS ARE FACILITIES UNDER THE SCA AND THERE ARE MANY

10:42AM

5

DECISIONS THAT HAVE HELD THAT PERSONAL COMPUTERS CAN'T BE

10:42AM

6

FACILITIES UNDER THE SCA.

10:42AM

7

10:43AM

8

IPHONE APPLICATION LITIGATION, 844 F.SUPP. 2D, 1040 AND THERE

10:43AM

9

JUDGE KOH COLLECTED A NUMBER OF CASES AND HELD THAT THE COURTS

10:43AM

10

HAVE TAKEN A CLOSER ANALYTICAL LOOK AND HAVE CONSISTENTLY

10:43AM

11

CONCLUDED THAT AN INDIVIDUAL'S PERSONAL COMPUTER DOES NOT

10:43AM

12

PROVIDE AN ELECTRONICS COMMUNICATION SERVICE SIMPLY BY VIRTUE

10:43AM

13

OF ENABLING USE OF ELECTRONIC COMMUNICATION SERVICES.

10:43AM

14

10:43AM

15

COMPUTERS THAT ACTUALLY RENDER PARTS OF THE STATUTE ILLOGICAL,

10:43AM

16

AND WE HAVE CITED SOME CASES IN THAT REGARD THAT HAVE MADE THAT

10:43AM

17

VERY POINT AND HAVE USED THAT AS A REASON TO INTERPRET THE

10:43AM

18

STATUTE IN THE WAY THAT WE'RE SUGGESTING IT SHOULD BE

10:43AM

19

INTERPRETED.

10:43AM

20

10:44AM

21

AGAIN, MANY OF THEM HAVE ALREADY BEEN MADE IN THE BRIEFING BUT

10:44AM

22

IT SEEMS LIKE THE ONE YOU WERE MOSTLY INTERESTED IN WAS THE

10:44AM

23

ELECTRONICS STORAGE POINT, AND I DON'T THINK THAT WE'RE IN THE

10:44AM

24

SAME UNIVERSE FACTUALLY AS WHAT YOU NEED TO BE IN FOR THAT

10:44AM

25

DEFINITION TO BE SATISFIED.

THE THIRD POINT IS REGARDING PLAINTIFF'S THEORY THAT THEIR

AGAIN, THIS SEEMS TO BE A POPULAR DECISION TODAY, THE

AND, IN FACT, INTERPRETING FACILITIES TO MEAN PERSONAL

SO THOSE ARE -- SO I THINK THOSE ARE THE MAIN POINTS, AND,

UNITED STATES COURT REPORTERS

46

10:44AM

1

THE COURT:

THANK YOU.

10:44AM

2

10:44AM

3

10:44AM

4

10:44AM

5

BEFORE WE TURN TO THE SCA, MAY I JUST CORRECT ONE MISSTATEMENT

10:44AM

6

EARLIER MADE?

10:44AM

7

10:44AM

8

VALUE OF PERSONALLY IDENTIFIABLE INFORMATION TO THE USER AND

10:44AM

9

ACTUALLY WE DO IN OUR COMPLAINT PARAGRAPHS 117, 118, 122, ET

10:44AM

10

CETERA, IN OUR COMPLAINT WHERE WE ALLEGE THAT THERE IS NOW,

10:44AM

11

IT'S A NEW DEVELOPMENT, THERE IS A MARKET FOR THE USER TO SELL

10:44AM

12

HIS OR HER PERSONAL INFORMATION.

10:44AM

13

10:45AM

14

AND THE ANSWER IS NOW THERE IS, YES, THERE IS.

10:45AM

15

DEVELOPMENT.

10:45AM

16

GOOGLE STREETWISE TRENDS WHERE THEY'RE ANALYZING PRECISELY WHAT

10:45AM

17

IS HAPPENING HERE IN THIS CASE, WHERE YOU GO ON THE INTERNET.

10:45AM

18

AND THEY WILL PAY USERS UP TO $5, VARIOUS COUPONS, GO TO

10:45AM

19

RETAILERS SUCH AS BARNES AND NOBLE AND WALMART AND

10:45AM

20

OVERSTOCK.COM AND YOU CAN USE YOUR $5 GIFT CARD.

10:45AM

21

INFORMATION THAT FACEBOOK, WE ALLEGE, IS ILLEGALLY INTERCEPTING

10:45AM

22

OR STEALING IS WORTH $5 TO EACH USER.

10:45AM

23

STARTING AT PARAGRAPH 117.

10:45AM

24

10:45AM

25

I'LL ASK, MR. STRAITE, DID YOU WANT TO COMMENT ON THE SCA
ISSUES?
MR. STRAITE:

SURE.

GOOD MORNING, YOUR HONOR.

YOU HAD ASKED WHETHER WE HAD PLED ANY FACTS RELATED TO THE

YOU ASKED IS THERE A KIOSK I CAN GO TO, TO SELL MY PII?
A NEW

AND ONE EXAMPLE, GOOGLE NOW HAS A PANEL CALLED

SO THIS

WE MAKE THAT ALLEGATION

ADDITIONALLY, THERE ARE NOW COMPANIES, THERE ARE
ELECTRONIC KIOSKS.

ONE COMPANY IS CALLED ALLOW LIMITED.

UNITED STATES COURT REPORTERS

IT'S

47

10:45AM

1

A U.K.

COMPANY, THEY ALSO WILL PAY USERS FOR THEIR PII

10:45AM

2

PRECISELY SO THAT THEY CAN LEARN WHERE YOU PERSONALLY ARE GOING

10:45AM

3

ON THE INTERNET AND THEN THEY WILL TARGET IT AND ADVERTISE TO

10:45AM

4

YOU.

10:45AM

5

10:45AM

6

MONTHS THIS IS NO LONGER A SITUATION.

10:46AM

7

UNIVERSE WHICH HAS SORT OF DEVELOPED IN THE CASE LAW WHERE PII

10:46AM

8

HAS NO VALUE TO YOU BUT IT HAS VALUE TO SOMEBODY WHO STEALS IT

10:46AM

9

FROM YOU.

10:46AM

10

NOW, WE HAVE GONE TO A MORE SENSIBLE SITUATION WHERE

10:46AM

11

PEOPLE REALIZE I CAN PAY PEOPLE FOR THEIR DATA AND FOR THE PII

10:46AM

12

AND I CAN MAKE MONEY BY SIMPLY TAKING IT.

10:46AM

13

EARLIER STATEMENT, WE DO ALLEGE IT AND THIS, I THINK, PERHAPS,

10:46AM

14

DISTINGUISHES THIS CASE FROM CASES THAT HAVE GONE BEFORE WHERE

10:46AM

15

COURTS MAY HAVE RULED THAT PII HAS NO VALUE, AND, THEREFORE,

10:46AM

16

THERE'S NO ARTICLE III HARM BECAUSE THE INDUSTRY HAS CHANGED

10:46AM

17

AND WE FEEL THAT THOSE CASES ARE NOW DISTINGUISHABLE AND THAT'S

10:46AM

18

JUST A CORRECTION THERE.

10:46AM

19

10:46AM

20

ARTICLE III STANDING FOR THE THEFT OF PII, I SHOULD NOTE THAT

10:46AM

21

THE SCA DOES NOT REQUIRE THAT.

10:46AM

22

EARLIER, BUT IF THE INJURY IS THE -- RELATES TO A STATUTORY

10:46AM

23

PROTECTED RIGHT, WE DON'T NEED TO ACTUALLY SHOW ACTUAL

10:47AM

24

OUT-OF-POCKET LOSS, AND WE ONLY NEED TO SHOW THESE OTHER TYPES

10:47AM

25

OF HARMS.

SO THE UNIVERSE HAS NOW CHANGED AND JUST IN THE PAST FEW
THERE'S AN ALTERNATIVE

AND TO CORRECT AN

MORE SPECIFICALLY ON THE SCA, SINCE I JUST SPOKE ABOUT

AS WE HEARD THE CONCESSION

UNITED STATES COURT REPORTERS

48

10:47AM

1

THE COURT:

YOU HAVE TO SHOW THAT WHATEVER THE

10:47AM

2

CONDUCT IS THAT RELATES TO YOU IN THAT STATUTE, RIGHT, YOU HAVE

10:47AM

3

TO DRILL DOWN A LITTLE FURTHER TO SHOW THAT THIS IS WHY WE

10:47AM

4

CHOSE THIS PARTICULAR STATUTE?

10:47AM

5

10:47AM

6

COMPLAINT, FOR INSTANCE, WHAT THE NATURE OF THE HARM WAS.

10:47AM

7

CAN'T JUST SAY FACEBOOK IS SPYING ON PEOPLE.

10:47AM

8

THIS PARTICULAR LEAD PLAINTIFF IS A MEMBER OF FACEBOOK, AND WE

10:47AM

9

HAVE TO SAY AND THIS PERSON LOGGED OUT AND POST LOGOUT INTERNET

10:47AM

10

10:47AM

11

10:47AM

12

10:47AM

13

MR. STRAITE:

10:47AM

14

THE COURT:

10:47AM

15

MR. STRAITE:

10:47AM

16

ABOUT GAOS V. GOOGLE AND IN THERE BECAUSE THERE WERE SOME

10:47AM

17

COMMUNICATIONS THAT MAY OR MAY NOT HAVE CONTAINED IMPORTANT

10:47AM

18

INFORMATION THAT MAY NOT HAVE BEEN PROTECTED THAT PLAINTIFF

10:47AM

19

SHOWS ACTUALLY ALLEGED WHICH WEBSITE TO VISIT.

10:48AM

20

10:48AM

21

CHASTISED FOR NOT ACTUALLY PLEADING EXACTLY WHICH WEBSITES WERE

10:48AM

22

VISITED AND WHAT INFORMATION WAS TRANSMITTED AND HOW FROM

10:48AM

23

FACEBOOK AND THEN THE SENTENCE FOR COUNSEL FOR FACEBOOK SAYS,

10:48AM

24

I'M NOT SURE HOW UNDER RULE 11 YOU CAN ACTUALLY PLEAD THESE

10:48AM

25

FACTS AND HOW COULD YOU POSSIBLY KNOW THAT?

MR. STRAITE:

YES, WE WOULD HAVE TO ALLEGE IN THE
WE

WE HAVE TO SAY

TRACKING WAS PERFORMED WITHOUT HIS OR HER CONSENT.
THE COURT:

AND THAT'S WHAT YOU HAVE TO HAVE FOR THE

SCA?
ABSOLUTELY, YOUR HONOR.

RIGHT.

NOTHING MORE?
RIGHT.

I KNOW WE TALKED AT LENGTH

I FIND IT INTERESTING THAT HERE THE PLAINTIFFS ARE BEING

UNITED STATES COURT REPORTERS

WELL, THAT'S

49

10:48AM

1

ACTUALLY THE POINT, WE DON'T ACTUALLY KNOW IT.

10:48AM

2

10:48AM

3

CIRCUIT, WE DON'T HAVE TO ALLEGE PRECISELY WHICH WEBSITES WERE

10:48AM

4

VISITED ON WHICH DAY BECAUSE EVERY WEBSITE VISITED WAS

10:48AM

5

INTERCEPTED BY FACEBOOK BECAUSE ALL POST LOGOUT INTERNET

10:48AM

6

BROWSING DURING THE CLASS PERIOD WE PROPOSE WAS, IN FACT,

10:48AM

7

TRACKED.

10:48AM

8

CONVERSATION WHERE THERE WAS STATED FUNCTIONALITY THERE WAS

10:48AM

9

FACEBOOK ON THE BACK END.

10:48AM

10

10:48AM

11

10:48AM

12

10:48AM

13

ALLEGE THAT THE NAMED PLAINTIFFS WERE HARMED, AND WE DO ALLEGE

10:48AM

14

THAT IN SUFFICIENT DETAIL.

10:48AM

15

10:48AM

16

OTHER CASES SUGGESTED GREATER, LIKE GAOS AND SOME OTHERS,

10:48AM

17

GREATER SPECIFICITY.

10:49AM

18

THE EDWARDS CASE TALKED ABOUT THE RESPA AND YOU LOOK AT

10:49AM

19

THAT AND, WELL, MY GOSH, THERE WASN'T EVEN -- THAT PLAINTIFF

10:49AM

20

WAS NOT EVEN HARMED AND THERE WAS NOT FINANCIAL HARM BUT IN

10:49AM

21

RESPA, THE COURT, AS YOU RECALL, WENT THROUGH AND PARSED OUT

10:49AM

22

EXACTLY WHAT THE CONDUCT WAS THAT ALLOWED THE RESPA CLAIM TO GO

10:49AM

23

FORWARD.

10:49AM

24

WHEN I LOOKED AT THIS CLAIM, I WAS CURIOUS WHETHER OR NOT

10:49AM

25

YOU HAD DONE THAT SAME TYPE OF ANALYSIS WITH YOUR ALLEGATIONS,

AND, FURTHERMORE, BASED ON THE PLEADINGS STANDARDS IN THIS

AND SO EVERY SINGLE WEBSITE AND EVERY SINGLE

THE COURT:

AND THAT'S SUFFICIENT YOUR PLEADING

SUGGESTS FOR SCA COVERAGE?
MR. STRAITE:

THE COURT:

ABSOLUTELY.

I DO AGREE WE HAVE TO

I GUESS I WAS LOOKING AT SOME OF THESE

UNITED STATES COURT REPORTERS

50

10:49AM

1

AND THE COURT ACTUALLY DID IN THE EDWARDS CASE AND I'M CURIOUS

10:49AM

2

WHETHER YOU HAVE DONE THAT.

10:49AM

3

10:49AM

4

PARAGRAPH BY PARAGRAPH BY PARAGRAPH EXPLAINING IN OBVIOUSLY

10:49AM

5

VERY TECHNICAL DETAIL HOW GET REQUESTS WORK AND WHAT SORT OF

10:49AM

6

INFORMATION AND WHAT SORT OF HTML CODES ARE TRANSMITTED BACK

10:49AM

7

AND FORTH.

10:49AM

8

BETWEEN THE THIRD-PARTY WEBSITE AND YOUR COMPUTER AND YOU GET

10:49AM

9

REQUESTS AND SOMETIMES VERY REVEALING WEB SEARCHES THAT ARE

10:49AM

10

INCLUDED AND IT'S NOT SIMPLY IT'S PAGES YOU CLICKED THROUGH,

10:49AM

11

AND IT SHOWS WHAT YOU'RE INTERESTED IN, WHEN YOU'RE INTERESTED

10:50AM

12

IN THEM, WHAT YOU CLICK ON AND WHAT YOU SEARCH FOR.

10:50AM

13

10:50AM

14

CHAINS OF INFORMATION, INCLUDING YOUR NAME AND SEARCH TERMS AND

10:50AM

15

SOMETHING THAT MY LEARNED COLLEAGUE SAID IT WOULD BE VERY

10:50AM

16

DISTURBING IF OTHER PEOPLE KNEW YOU WERE MAKING THESE SEARCHES.

10:50AM

17

THAT INFORMATION IS CONTENT AND THERE IS COMMUNICATION IN THESE

10:50AM

18

SEARCHES, AND WE ALLEGE THAT IN SUFFICIENT DETAIL.

10:50AM

19

10:50AM

20

EVERY SINGLE CONVERSATION POST LOGOUT WITH WEBSITES THAT HAVE

10:50AM

21

FACEBOOK FUNCTIONALITY, THERE'S NO NEED TO ACTUALLY GO THROUGH

10:50AM

22

AND REINSTRUCT THE SEARCH HABITS OF EACH NAMED PLAINTIFF.

10:50AM

23

YOU CAN DO THAT, BUT IT'S NOT NEEDED.

10:50AM

24

10:50AM

25

MR. STRAITE:

ABSOLUTELY, YOUR HONOR.

WE GO THROUGH

AND IT REALLY IS A CONVERSATION BACK AND FORTH

AND SOME OF THESE ARE, YOU KNOW, THESE CAN BE VERY LONG

BECAUSE FACEBOOK'S ALLEGED ACTIVITIES INVOLVE TRACKING

THE COURT:

AND

IS THE CRUX OF THE LAWSUIT THEN THE FACT

THAT THE CONDUCT OCCURRED AFTER LOGOUT?

UNITED STATES COURT REPORTERS

51

10:50AM

1

MR. STRAITE:

YES, YOUR HONOR.

YES, YOUR HONOR.

10:50AM

2

10:50AM

3

THE COURT:

10:51AM

4

MR. STRAITE:

10:51AM

5

THE LANDSCAPE FOR ARTICLE III STANDING FOR THEFT OF PII IS

10:51AM

6

CHANGING, NOW THAT WE HAVE THIS NEW MARKETPLACE, IT'S NOT

10:51AM

7

NEEDED FOR SCA PURPOSES FOR STANDING BECAUSE THERE IS A

10:51AM

8

STATUTORY PROTECTIVE RIGHT THAT HAS BEEN INFRINGED UPON.

10:51AM

9

10:51AM

10

CASES THAT SAY THAT A PC IS NOT A FACILITY, I'M NOT SURE

10:51AM

11

ACTUALLY THAT'S WHAT THE IPHONE CASE AND OTHER CASES HELD.

10:51AM

12

BELIEVE THOSE CASES HELD THAT IT WAS NOT SUFFICIENTLY PLED THAT

10:51AM

13

A COMPUTER WAS A FACILITY.

10:51AM

14

AFTER PARAGRAPH AFTER PARAGRAPH EXPLAINING PRECISELY HOW

10:51AM

15

FACEBOOK HAS TAKEN OVER THESE USER'S COMPUTERS BY PUTTING THE

10:51AM

16

COOKIE ONTO THE COMPUTER, WITH CONSENT WHILE YOU'RE LOGGED IN,

10:51AM

17

NOT EXPIRING THE COOKIE UPON LOGOUT, AND HAVING THESE

10:51AM

18

COMMUNICATIONS WITH THIRD-PARTY WEBSITES THEN COMBINED WITH THE

10:52AM

19

INFORMATION THAT IS IN THAT TEXT FILE AND THEN SENDING IT BACK

10:52AM

20

TO FACEBOOK WITHOUT THE KNOWLEDGE OR THE CONSENT OF THE USER,

10:52AM

21

THAT MEANS THAT THIS COMPUTER IS THE DEVICE, IT IS A FACILITY

10:52AM

22

FOR ACCOMPLISHING THE TASK THAT FACEBOOK IS USING IT FOR.

10:52AM

23

10:52AM

24

THAT HAVE HELD THAT A PERSON'S PERSONAL COMPUTER MAY NOT BE A

10:52AM

25

FACILITY IN THOSE CASES, HERE OUR FACTS ARE DIFFERENT AND THOSE

RIGHT.
ALL RIGHT.
BACK TO THE SCA, WHILE WE BELIEVE THAT

A COUPLE ISSUES THAT WERE RAISED.

DISTINGUISHING THE

I

HERE BECAUSE WE HAVE PARAGRAPH

SO WHILE THERE ARE CASES OUT THERE AND WE ACKNOWLEDGE THEM

UNITED STATES COURT REPORTERS

52

10:52AM

1

FACTS REALLY HELD THAT IT WAS NOT PLED AS PROPERLY AS A

10:52AM

2

FACILITY UNDER THE STATUTE WHERE WE HAVE.

10:52AM

3

THE COURT:

OKAY.

10:52AM

4

MR. BROWN:

AGAIN, GOING BACK TO THIS ISSUE ABOUT

10:52AM

5

THE VALUE OF THE PERSONAL INFORMATION AND MR. STRAITE MENTIONED

10:52AM

6

SOME OF THESE STUDIES OUT THERE AND THESE COMPANIES LIKE ALLOW

10:52AM

7

LIMITED.

10:53AM

8

10:53AM

9

10:53AM

10

THAT THEIR ALLEGATIONS IN THIS COMPLAINT DISTINGUISH THEMSELVES

10:53AM

11

FROM THESE OTHER CASES.

10:53AM

12

10:53AM

13

ACKNOWLEDGE.

10:53AM

14

EXERCISE, SHALL I SAY, TO PULL UP THE COMPLAINTS AND IN THE

10:53AM

15

LACOURT COURT VERSUS SPECIFIC MEDIA CASE AS WELL AS THE IPHONE

10:53AM

16

APPLICATION LITIGATION BECAUSE IT MAY NOT BE -- I THINK

10:53AM

17

ACTUALLY IN THOSE CASES IT IS.

10:53AM

18

THEMSELVES, BUT I THINK IT'S EVEN MORE INTERESTING WHEN YOU

10:53AM

19

PAIR UP THOSE COMPLAINTS WITH THE OPINIONS, AND I THINK YOU

10:53AM

20

WILL FIND THAT THESE VERY THEORIES HAVE ALREADY BEEN ALLEGED IN

10:53AM

21

OTHER CASES AND SOUNDLY REJECTED.

10:53AM

22

ON THE ISSUE OF STATUTORY HARM, YOU KNOW, THE LACK OF

10:53AM

23

CONSENT REQUIREMENT OF THE STATUTE BOTH THE UCL AND THE WIRETAP

10:54AM

24

ACT, I'M SORRY, THE SCA AND THE WIRETAP ACT, REALLY START TO

10:54AM

25

MERGE INTO THE ARTICLE III ANALYSIS AS I THINK THE COURT IS

GREAT.

THANK YOU.

MR. BROWN.

THESE THEORIES HAVE ALREADY BEEN TRIED IN A NUMBER OF
OTHER CASES, AND THEY HAVE BEEN REJECTED.

SO IT'S NOT TRUE

AND I'M DOING THIS OFF THE TOP OF MY HEAD, I MUST
BUT I WOULD -- I THINK IT MIGHT BE AN INTERESTING

YOU CAN TELL FROM THE OPINIONS

UNITED STATES COURT REPORTERS

53

10:54AM

1

GETTING AT, AND HERE IT WAS VERY INTERESTING.

10:54AM

2

SO THE PLAINTIFFS HAVE SAID THAT ALL YOU NEED TO DO IS

10:54AM

3

ESSENTIALLY SHOW THAT THEY LOGGED OUT AND THEN THEY WENT TO

10:54AM

4

ACCESS THE WEBSITE THAT HAD THE FACEBOOK LIKE BUTTON.

10:54AM

5

BE SIMPLIFYING A LITTLE BIT, BUT THAT'S ESSENTIALLY WHAT

10:54AM

6

THEY'RE SAYING.

10:54AM

7

THE INQUIRY ENDS BECAUSE THEY HAVE NOT ALLEGED IN THEIR

10:54AM

8

COMPLAINT SUFFICIENTLY LACK OF CONSENT.

10:54AM

9

ABOUT THE POST-LOGOUT WORLD.

10:54AM

10

10:54AM

11

COOKIES AND DOESN'T DISTINGUISH BETWEEN LOG IN AND LOGOUT

10:54AM

12

USAGE.

10:54AM

13

WHAT THE ENTIRE THEORY OF THEIRS COMES DOWN TO IS THE ONE

10:55AM

14

SENTENCE IN THE HELP CENTER WHICH, FRANKLY, I THINK THAT IS A

10:55AM

15

PROBLEMATIC BASIS FOR THEM TO BASE THIS ENTIRE THEORY ON ANYWAY

10:55AM

16

BECAUSE THEY HAVE ALREADY ACKNOWLEDGED THAT THE GOVERNING

10:55AM

17

DOCUMENTS, THEIR WORDS, ON THE SITE ON THE TERMS OF USE AND THE

10:55AM

18

PRIVATE POLICY, BUT EVEN IF THAT WEREN'T PROBLEMATIC

10:55AM

19

FUNDAMENTALLY, THEY HAVE NOT ALLEGED THAT THEY ACTUALLY SAW

10:55AM

20

THAT HELP CENTER CONTENT OR RELIED ON IT BEFORE TAKING THE

10:55AM

21

ACTIONS THAT FORM THE BASIS OF THE COMPLAINT.

10:55AM

22

YOU CAN --

10:55AM

23

10:55AM

24

10:55AM

25

THAT'S ABSOLUTELY WRONG.

I MIGHT

THAT CAN'T BE WHERE

THE ENTIRE CASE IS

AS WE HAVE SEEN, THE PRIVACY POLICY DISCLOSES THE USE OF

THE ONLY THING THAT THEY POINT TO -- THIS IS REALLY

I DON'T SEE HOW

THE COURT:

AND YOU THINK THAT'S FATAL TO THEIR

MR. BROWN:

I DO.

CLAIM?
IT'S FATAL TO THE CLAIMS IF YOU

UNITED STATES COURT REPORTERS

54

10:55AM

1

WERE LOOKING AT IT FROM A 12(B)(6) PERSPECTIVE BUT EVEN FROM A

10:55AM

2

12(B)(1) STANDING PERSPECTIVE, IN TERMS OF THE UCL, THE SCA AND

10:55AM

3

THE WIRETAP ACT, EVEN FROM JUST THAT PERSPECTIVE UNDER

10:55AM

4

12(B)(1), I ALSO THINK IT'S FATAL TO THAT BECAUSE THAT'S WHAT

10:55AM

5

WOULD GIVE YOU THE TETHERING BETWEEN THESE NAMED PLAINTIFFS AND

10:55AM

6

THE TYPE OF HARM THAT THE SCA AND THE WIRETAP ACT WERE INTENDED

10:56AM

7

TO PREVENT.

10:56AM

8

10:56AM

9

10:56AM

10

10:56AM

11

10:56AM

12

10:56AM

13

10:56AM

14

10:56AM

15

PROMISE NOT TO TROUBLE THE COURT LONG.

10:56AM

16

POINTS.

10:56AM

17

10:56AM

18

NOT THE PLAINTIFF'S JOB TO CARRY THE BURDEN ON THE CONSENT

10:56AM

19

DEFENSE, THAT IS THE DEFENDANT'S.

10:56AM

20

THE SAME SPECIFICITY THAT THEY ARGUE THAT THE PLAINTIFFS SHOULD

10:56AM

21

CARRY IN THEIR CASE IN CHIEF.

10:56AM

22

10:56AM

23

ABOUT THE GOVERNING DOCUMENTS.

10:56AM

24

IN THIS ROOM CAN SPEND FROM NOW UNTIL THE END OF NEXT WEEK

10:56AM

25

READING THEM AND UNDERSTANDING THEM AND YOU WILL COME AWAY WITH

AND THAT IS THE STANDARD.

YOU CAN'T SIMPLY JUST ALLEGE

THOSE VIOLATIONS KIND OF ON THE FACE OF IT AND HOPE TO, YOU
KNOW, PRESENT A CASE FOR CONTROVERSY TO THE COURT.
THE COURT:

OKAY.

THANK YOU VERY MUCH.

COUNSEL, MR. BROWN IS GOING TO HAVE THE LAST WORD HERE BUT
DO YOU WANT TO -MR. GRYGIEL:

I DO, YOUR HONOR, IF I MIGHT.

I

JUST A COUPLE OF BRIEF

NUMBER ONE, WE HAVE HEARD ABOUT THE CONSENT ISSUE.

IT IS

THEY SHOULD CARRY THAT WITH

THEY HAVEN'T BEGUN TO DO THAT.

NUMBER TWO, THE GOVERNING DOCUMENTS.

I WILL SAY THIS

I WOULD SUBMIT THAT EVERYBODY

UNITED STATES COURT REPORTERS

55

10:56AM

1

ONE THEME FOR SURE, NOWHERE DOES FACEBOOK AFFIRMATIVELY SAY TO

10:57AM

2

ANY USER, WE ARE INVOLVED IN YOUR COMMUNICATIONS WITH

10:57AM

3

THIRD-PARTY WEBSITES AFTER YOU LOG OUT.

10:57AM

4

10:57AM

5

DECLARATION IN THE FIRST BRIEF, WHAT YOU WILL SEE IS FACEBOOK

10:57AM

6

SAYING DOWNLOAD THOSE SOFTWARE AND APPELLATES, BASICALLY SAYING

10:57AM

7

WE DO CERTAIN THINGS THAT CAN TRIGGER INFORMATION COMING TO US

10:57AM

8

FROM THIRD PARTIES.

10:57AM

9

10:57AM

10

BRIEF, WE DON'T DISTINGUISH BETWEEN PRE AND POST LOGOUT AS TO

10:57AM

11

COOKIES.

10:57AM

12

10:57AM

13

DON'T THINK THAT WE HAVE DISCLOSED TO YOU THAT WE WILL BE

10:57AM

14

GETTING, WE'LL ALERT YOU THE FIRST TIME WE GET IT.

10:57AM

15

ITSELF PUTS PAID TO THE IDEA THAT THERE WAS ANY CONSENT BECAUSE

10:57AM

16

THERE'S NO ALLEGATION ANYWHERE IN THIS CASE THAT THAT HAPPENED

10:57AM

17

AND THEIR FINAL CHANGE IN THE LAST ROUND OF BRIEFING SHOWING

10:57AM

18

THAT THREE DAYS BEFORE THE END OF THE CLASS PERIOD THEY GOT A

10:57AM

19

LITTLE MORE SPECIFIC IS A READILY ADMISSION THAT THEY NEVER HAD

10:58AM

20

DONE SO BEFORE.

10:58AM

21

10:58AM

22

COUNSEL FOR FACEBOOK COULD BE MORE WRONG.

10:58AM

23

IS LOOK AT THE SENATE REPORTS PRE-AMENDMENTS TO THE WIRETAP ACT

10:58AM

24

IN 1986, AND LOOK AT IT AGAIN WITH THE PATRIOT ACT AMENDMENT

10:58AM

25

AND WHAT YOU WILL SEE IS CONGRESS'S DESIRE LUMBERING, AND

WHAT YOU WILL SEE, AND THIS IS IN EXHIBIT C TO THE SOLINKY

SO FAR SO GOOD.

AND AS MR. BROWN'S BRIEF POINTS OUT, PAGE 11 OF HIS FIRST

AND WHAT THAT SAYS IS THAT WHEN WE GET INFORMATION THAT WE

THAT BY

ON THE WIRETAP ACT NOT FITTING MISCONDUCT, I DON'T THINK
ALL YOU NEED TO DO

UNITED STATES COURT REPORTERS

56

10:58AM

1

UNARTFUL IN SOME PLACES, TO PROTECT ELECTRONICS COMMUNICATIONS

10:58AM

2

IN THE SAME WAY THAT THE TELEPHONE AND OTHER ORAL

10:58AM

3

COMMUNICATIONS WERE PROTECTED.

10:58AM

4

THE COURT:

10:58AM

5

10:58AM

6

10:58AM

7

THERE ARE OTHER WAYS TO DO IT, BUT THE DEFINITION OF ELECTRONIC

10:58AM

8

INTERCEPT OF ELECTRONIC COMMUNICATIONS IS ACTUALLY QUITE BROAD.

10:58AM

9

SO WHAT IT SHOWS IS CONGRESS MEANT TO PROTECT THOSE THINGS.

10:58AM

10

ON THE FACEBOOK PRIVACY ACT, I'M NOT DOING THIS IN ANY

10:58AM

11

SEQUENCE.

10:58AM

12

FACEBOOK PRIVACY LITIGATION, THE PLAINTIFFS THERE PLEADED THAT

10:58AM

13

FACEBOOK IS FREE.

10:58AM

14

OPPOSITE AS MR. STRAITE HAS POINTED OUT.

10:58AM

15

NUMBER TWO, THERE WHEN THE PLAINTIFF WENT ON A WEBSITE

10:59AM

16

WHAT HE GOT WAS AN ADVERTISER'S DESIGN AND SO HE'S DEALING WITH

10:59AM

17

FACEBOOK AND HE'S ALSO DEALING WITH AN ADVERTISER AT THE SAME

10:59AM

18

TIME.

10:59AM

19

DIFFERENT WHEN YOU REALIZE YOU'RE DEALING WITH FACEBOOK AND AN

10:59AM

20

ADVERTISER.

10:59AM

21

10:59AM

22

SHOW THAT WE KNEW THAT WE WERE INTERACTING WITH FACEBOOK WHEN

10:59AM

23

WE WERE GOING TO THE THIRD PARTY WEBSITES.

10:59AM

24

DIFFERENCE.

10:59AM

25

ELECTRONICS COMMUNICATIONS MEANING

INTERNET?
MR. GRYGIEL:

YES, THAT'S RIGHT, AMONG OTHER THINGS.

THAT WAS A VERY DIFFERENT CASE.

WE DON'T PLEAD THAT.

FOR ONE THING, THE

WE PLEAD EXACTLY THE

YOUR EXPECTATIONS I THINK, YOUR HONOR, ARE QUITE

OUR CASE, TO MAKE A LARGE FACTUAL DISTINCTION, DOESN'T

THAT'S A VERY BIG

AND FINALLY UNDER THE LACOURT CASE ABOUT WHICH WE HAVE

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HEARD SO MUCH, THERE THE COURT IS CHARACTERIZING THE

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PLAINTIFF'S ALLEGATIONS OF FINANCIAL HARM AS FOLLOWS:

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HALF-HEARTED, ESSENTIALLY ADOPTED THE DEFENDANT'S FRAMING OF

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THE ISSUE, AND THE COURT WENT ON TO SAY, BUT I WON'T

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CATEGORICALLY SAY THAT THEY COULDN'T MAKE OUT A CAUSE OF ACTION

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FOR THIS PARTICULAR VALUE, THEY JUST HAVEN'T DONE SO HERE.

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THANK YOU, YOUR HONOR.

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THE COURT:

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LITIGATION, WHILE THE PLAINTIFFS THERE MAY HAVE GIVEN LIP

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SERVICE TO THE UNDENIABLE REALITY THAT FACEBOOK IS FREE, THEY,

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TOO, ARGUED THAT YOU EFFECTIVELY PAY FOR FACEBOOK WITH YOUR

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PERSONAL INFORMATION AND SO THAT CASE IS NOT DISTINGUISHABLE IN

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THAT RESPECT.

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OR NOT, BUT I THINK I MAY HAVE HEARD A SUGGESTION THAT

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SUGGESTING THAT IT'S FACEBOOK'S JOB TO PROVE CONSENT HERE ON

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THE MOTION TO DISMISS.

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DISMISS AND LOOKING AT THEIR COMPLAINT AND WHETHER THEIR

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COMPLAINT IS WELL PLED AND IT'S THEIR BURDEN TO ALLEGE LACK OF

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CONSENT UNDER THE SCA AND WIRETAP ACT AND NOT TO REPEAT MYSELF,

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BUT THEY HAVE NOT ALLEGED THAT ANY OF THE NAMED PLAINTIFFS SAW

TEPID,

MR. BROWN, IT'S YOUR MOTION SO YOU'LL

HAVE THE LAST WORD HERE.
MR. BROWN:

THANK YOU.

IN THE FACEBOOK PRIVACY

AND I ARGUED BEFORE JUDGE WARE IN THAT CASE AND I KNOW IT
AND THAT THEORY WAS REJECTED.
AND THEN SECONDLY, I DON'T KNOW IF I HEARD THIS CORRECTLY

AND, IN FACT, WE ARE ON A MOTION TO

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THE HELP CENTER CONTENT THAT FORMS THE ENTIRE BASIS OF THAT

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THEORY OR RELIED ON.

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THE COURT:

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COUNSEL.

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AND, AGAIN, I WANT TO CONGRATULATE YOU ON THE PLEADINGS AND THE

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MATTER IS UNDER SUBMISSION.

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MR. GRYGIEL:

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MR. BROWN:

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THANK YOU VERY MUCH.

I HAVE ENJOYED THIS.

THANK YOU,

IT'S BEEN VERY HELPFUL TO ME

THANK YOU, YOUR HONOR.

THANK YOU, YOUR HONOR.

(COURT CONCLUDED.)

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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

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STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,

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280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

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CERTIFY:
THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

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A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

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ABOVE-ENTITLED MATTER.

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______________________________
IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8076

DATED: OCTOBER 17, 2012

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UNITED STATES COURT REPORTERS