Campbell et al v. Facebook Inc.

Filing 138

MOTION to Certify Class filed by Matthew Campbell, Michael Hurley. Motion Hearing set for 3/16/2016 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 1/15/2016. Replies due by 2/19/2016. (Attachments: # 1 Declaration of Michael W. Sobol, # 2 Declaration of Hank Bates, # 3 Declaration of David T. Rudolph, # 4 Declaration of Melissa Gardner, # 5 Proposed Order)(Sobol, Michael) (Filed on 11/13/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13

MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,

14

Plaintiff,

15

[PROPOSED] ORDER GRANTING
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

v.

16

Case No. C 13-05996 PJH (MEJ)

FACEBOOK, INC.,

17

Defendant.

18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)

1

Plaintiffs’ Motion for Class Certification (hereinafter “Motion”), pursuant to Federal Rule

2

of Civil Procedure 23 came on regularly for hearing on March 16, 2016 in the United States

3

District Court for the Northern District of California, the Honorable Phyllis J. Hamilton presiding.

4

All parties were represented by counsel.

5

Plaintiffs move for certification of the following Class:

6

All natural-person Facebook users located within the United States
who have sent, or received from a Facebook user, private messages
that included URLs in their content (and from which Facebook
generated a URL attachment), from within two years before the
filing of this action up through the date of the certification of the
class.

7
8
9

Having considered the memoranda and declarations filed by all parties, oral argument of
10
counsel, and the relevant statutory and case law, the Court GRANTS Plaintiffs’ Motion and
11
FINDS as follows:
12
Certification of the Class is appropriate under Federal Rule of Civil Procedure 23(a)
13
1.

The proposed Class is so numerous that joinder of all members is impracticable.

14
Fed. R. Civ. P. 23(a)(1). “In order to satisfy this requirement, plaintiffs need not state the ‘exact’
15
number of potential class members, nor is there any specific magic number that is required.” In re
16
Dynamic Random Access Memory (DRAM) Antitrust Litig., No. 2-md-1486-PJH, 2006 WL
17
1530166, at *3 (N.D. Cal. June 5, 2006); In re Yahoo Mail Litig., 308 F.R.D. 577, 590 (N.D. Cal.
18
2015). Although the precise size of the class is unknown, Plaintiffs estimate that the class
19
members number in the millions.
20
2.

There are issues of law and fact common to the Class. Fed. R. Civ. P. 23(a)(2).

21
Common questions include: (1) whether Facebook’s conduct was intentional; (2) whether private
22
messages were “intercept[ed]” within the meaning of ECPA and CIPA, including whether
23
Facebook acquired or endeavored to acquire “contents” of electronic communications, and
24
whether such interceptions occurred by means of a “device”; (3) whether such interceptions
25
occurred during transmission; (4) whether such interceptions occurred in the “ordinary course” of
26
an electronic communications service provider’s business; (5) whether any public disclosure
27
regarding Facebook’s practices was sufficiently specific to establish implied consent for those
28
1

[PROPOSED] ORDER GRANTNG PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)

1

who viewed it; (6) whether generation of a “URL preview” establishes implied consent; and (7)

2

how, and to what extent, Facebook profited from the alleged ECPA violations.

3

3.

The claims of named Plaintiffs Matthew Campbell and Michael Hurley are typical

4

of the Class members’ claims. Fed. R. Civ. P. 23(a)(3). The named Plaintiffs’ claims are

5

“reasonably co-extensive with those of absent class members” because they stem from “the same

6

course of conduct.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998); see also

7

Ades v. Omni Hotels Mgmt. Corp., No. 13-cv-02468, 2014 WL 4627271, at *9 (C.D. Cal. Sept. 8,

8

2014) (finding class representatives’ claims typical where “course of conduct . . . common to the

9

class, and privacy invasions typical to those of the class generally” were alleged).

10

4.

The representative parties fairly and adequately protect the interests of the class.

11

Fed. R. Civ. P. 23(a)(4). No discernable conflicts of interest exist between the named plaintiffs

12

and the absent class members. The evidence and the history of the instant litigation demonstrate

13

that plaintiffs have retained skilled and experienced counsel to represent them in these

14

proceedings. See Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas

15

Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001).

16

Certification of the Class is appropriate under Federal Rule of Civil Procedure 23(b)(3)

17

5.

Certification of the Class is appropriate under Fed. R. Civ. P. 23(b)(3) because

18

common issues predominate over individual issues and the class action device is superior to all

19

other available methods for fairly and efficiently resolving this matter. Fed. R. Civ. P. 23(b)(3);

20

In re Wells Fargo Home Mortgage, 571 F.3d 953, 958–59 (9th Cir. 2009); Wang v. Chinese Daily

21

News, Inc., 737 F.3d 538, 545 (9th Cir. 2013).

22

a.

The predominance analysis “focuses on the relationship between the

23

common and individual issues in the case and tests whether proposed classes are sufficiently

24

cohesive to warrant adjudication by representation.” Wang, 737 F.3d at 545 (citations and

25

internal quotation marks omitted). “The test for predominance is met ‘when there exists

26

generalized evidence which proves or disproves an [issue or element] on a simultaneous, class-

27

wide basis, since such proof obviates the need to examine each class members’ individual

28
2

[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)

1

position.’” In re Online DVD Rental Antitrust Litig., No. 09-md-2029-PJH, 2010 WL 5396064, at

2

*5 (N.D. Cal. Dec. 23, 2010) aff’d 779 F.3d 934 (9th Cir. 2015) (citation omitted).

3

b.

Here, the predominate legal question is whether Facebook obtained or

4

sought to obtain the content of Class members’ private messages in violation of ECPA and CIPA.

5

Here, the record shows that each element of both ECPA and CIPA liability, as well as to damages

6

and appropriate equitable relief, may be established with common proof. The Court therefore

7

finds that the Class is sufficiently cohesive to warrant adjudication of their claims on a class-wide

8

basis, and that a class action is the most efficient way to proceed.

9

Certification of the Class is appropriate under Federal Rule Civil Procedure 23(b)(2)

10

6.

Certification of the Class is appropriate under Federal Rule of Civil Procedure

11

23(b)(2) because the alleged “pattern or practice” at issue in these proceedings “is generally

12

applicable to the class as a whole.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)

13

(quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). The relief sought—cessation of

14

the practice, destruction of any records created from illegally-obtained private message content,

15

and a declaration that such conduct violates ECPA and CIPA—is significant, and would benefit

16

the Class as a whole. In re Yahoo Mail Litig., 308 F.R.D. 577, 598 (N.D. Cal. 2015).

17

7.

The firms Lieff, Cabraser, Heimann & Bernstein, LLP, and Carney Bates &

18

Pulliam PLLC will fairly and adequately represent the interests of the class. Fed. R. Civ. P.

19

23(g). Both firms are substantially experienced in prosecuting consumer class actions, have been

20

appointed lead counsel in many such cases, and have demonstrated that they will commit the

21

necessary resources to vigorously represent the Class here.

22

Accordingly, the Court ORDERS as follows:

23

1.

24
25

The Class, as defined above, is certified pursuant to Federal Rule of Civil

Procedure 23(b)(3).
2.

The claims, issues, and defenses herein certified are those relating to Facebook’s

26

liability to the Class members for intercepting their private messages containing URLs, and for

27

using and retaining information thus obtained.

28
3

[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)

1
2
3
4
5

3.

Named Plaintiffs Matthew Campbell and Michael Hurley are appointed as

representatives of the Class.
4.

The firms Lieff, Cabraser, Heimann & Bernstein, LLP, and Carney Bates &

Pulliam PLLC are appointed as Class Counsel to represent the Class.
5.

Class Counsel shall prepare and submit, within ____ days from the date of this

6

Order, proposed forms of notice to be sent to members of the Class. Defendant may file any

7

comments to the forms of notice within ___ days, and Class Counsel may reply within ___ days

8

thereafter.

9

6.

Defendant shall prepare and submit to Class Counsel, within ____ days from the

10

date of this Order, a list of the name, e-mail address, and mailing address of all Class members

11

who can be identified with reasonable and diligent effort.

12
13

It is so ORDERED.

14
15
16

Dated: March ____, 2016
Phyllis J. Hamilton
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
4

[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)