Campbell et al v. Facebook Inc.
Filing
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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)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW CAMPBELL and MICHAEL
HURLEY, on behalf of themselves and all
others similarly situated,
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Plaintiff,
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[PROPOSED] ORDER GRANTING
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION
v.
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Case No. C 13-05996 PJH (MEJ)
FACEBOOK, INC.,
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Defendant.
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[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)
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Plaintiffs’ Motion for Class Certification (hereinafter “Motion”), pursuant to Federal Rule
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of Civil Procedure 23 came on regularly for hearing on March 16, 2016 in the United States
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District Court for the Northern District of California, the Honorable Phyllis J. Hamilton presiding.
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All parties were represented by counsel.
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Plaintiffs move for certification of the following Class:
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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.
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Having considered the memoranda and declarations filed by all parties, oral argument of
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counsel, and the relevant statutory and case law, the Court GRANTS Plaintiffs’ Motion and
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FINDS as follows:
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Certification of the Class is appropriate under Federal Rule of Civil Procedure 23(a)
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1.
The proposed Class is so numerous that joinder of all members is impracticable.
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Fed. R. Civ. P. 23(a)(1). “In order to satisfy this requirement, plaintiffs need not state the ‘exact’
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number of potential class members, nor is there any specific magic number that is required.” In re
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Dynamic Random Access Memory (DRAM) Antitrust Litig., No. 2-md-1486-PJH, 2006 WL
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1530166, at *3 (N.D. Cal. June 5, 2006); In re Yahoo Mail Litig., 308 F.R.D. 577, 590 (N.D. Cal.
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2015). Although the precise size of the class is unknown, Plaintiffs estimate that the class
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members number in the millions.
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2.
There are issues of law and fact common to the Class. Fed. R. Civ. P. 23(a)(2).
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Common questions include: (1) whether Facebook’s conduct was intentional; (2) whether private
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messages were “intercept[ed]” within the meaning of ECPA and CIPA, including whether
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Facebook acquired or endeavored to acquire “contents” of electronic communications, and
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whether such interceptions occurred by means of a “device”; (3) whether such interceptions
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occurred during transmission; (4) whether such interceptions occurred in the “ordinary course” of
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an electronic communications service provider’s business; (5) whether any public disclosure
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regarding Facebook’s practices was sufficiently specific to establish implied consent for those
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[PROPOSED] ORDER GRANTNG PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)
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who viewed it; (6) whether generation of a “URL preview” establishes implied consent; and (7)
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how, and to what extent, Facebook profited from the alleged ECPA violations.
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3.
The claims of named Plaintiffs Matthew Campbell and Michael Hurley are typical
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of the Class members’ claims. Fed. R. Civ. P. 23(a)(3). The named Plaintiffs’ claims are
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“reasonably co-extensive with those of absent class members” because they stem from “the same
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course of conduct.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998); see also
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Ades v. Omni Hotels Mgmt. Corp., No. 13-cv-02468, 2014 WL 4627271, at *9 (C.D. Cal. Sept. 8,
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2014) (finding class representatives’ claims typical where “course of conduct . . . common to the
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class, and privacy invasions typical to those of the class generally” were alleged).
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4.
The representative parties fairly and adequately protect the interests of the class.
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Fed. R. Civ. P. 23(a)(4). No discernable conflicts of interest exist between the named plaintiffs
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and the absent class members. The evidence and the history of the instant litigation demonstrate
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that plaintiffs have retained skilled and experienced counsel to represent them in these
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proceedings. See Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas
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Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001).
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Certification of the Class is appropriate under Federal Rule of Civil Procedure 23(b)(3)
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5.
Certification of the Class is appropriate under Fed. R. Civ. P. 23(b)(3) because
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common issues predominate over individual issues and the class action device is superior to all
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other available methods for fairly and efficiently resolving this matter. Fed. R. Civ. P. 23(b)(3);
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In re Wells Fargo Home Mortgage, 571 F.3d 953, 958–59 (9th Cir. 2009); Wang v. Chinese Daily
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News, Inc., 737 F.3d 538, 545 (9th Cir. 2013).
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a.
The predominance analysis “focuses on the relationship between the
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common and individual issues in the case and tests whether proposed classes are sufficiently
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cohesive to warrant adjudication by representation.” Wang, 737 F.3d at 545 (citations and
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internal quotation marks omitted). “The test for predominance is met ‘when there exists
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generalized evidence which proves or disproves an [issue or element] on a simultaneous, class-
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wide basis, since such proof obviates the need to examine each class members’ individual
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[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)
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position.’” In re Online DVD Rental Antitrust Litig., No. 09-md-2029-PJH, 2010 WL 5396064, at
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*5 (N.D. Cal. Dec. 23, 2010) aff’d 779 F.3d 934 (9th Cir. 2015) (citation omitted).
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b.
Here, the predominate legal question is whether Facebook obtained or
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sought to obtain the content of Class members’ private messages in violation of ECPA and CIPA.
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Here, the record shows that each element of both ECPA and CIPA liability, as well as to damages
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and appropriate equitable relief, may be established with common proof. The Court therefore
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finds that the Class is sufficiently cohesive to warrant adjudication of their claims on a class-wide
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basis, and that a class action is the most efficient way to proceed.
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Certification of the Class is appropriate under Federal Rule Civil Procedure 23(b)(2)
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6.
Certification of the Class is appropriate under Federal Rule of Civil Procedure
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23(b)(2) because the alleged “pattern or practice” at issue in these proceedings “is generally
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applicable to the class as a whole.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010)
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(quoting Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998)). The relief sought—cessation of
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the practice, destruction of any records created from illegally-obtained private message content,
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and a declaration that such conduct violates ECPA and CIPA—is significant, and would benefit
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the Class as a whole. In re Yahoo Mail Litig., 308 F.R.D. 577, 598 (N.D. Cal. 2015).
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7.
The firms Lieff, Cabraser, Heimann & Bernstein, LLP, and Carney Bates &
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Pulliam PLLC will fairly and adequately represent the interests of the class. Fed. R. Civ. P.
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23(g). Both firms are substantially experienced in prosecuting consumer class actions, have been
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appointed lead counsel in many such cases, and have demonstrated that they will commit the
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necessary resources to vigorously represent the Class here.
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Accordingly, the Court ORDERS as follows:
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1.
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The Class, as defined above, is certified pursuant to Federal Rule of Civil
Procedure 23(b)(3).
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The claims, issues, and defenses herein certified are those relating to Facebook’s
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liability to the Class members for intercepting their private messages containing URLs, and for
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using and retaining information thus obtained.
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[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)
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3.
Named Plaintiffs Matthew Campbell and Michael Hurley are appointed as
representatives of the Class.
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The firms Lieff, Cabraser, Heimann & Bernstein, LLP, and Carney Bates &
Pulliam PLLC are appointed as Class Counsel to represent the Class.
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Class Counsel shall prepare and submit, within ____ days from the date of this
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Order, proposed forms of notice to be sent to members of the Class. Defendant may file any
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comments to the forms of notice within ___ days, and Class Counsel may reply within ___ days
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thereafter.
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6.
Defendant shall prepare and submit to Class Counsel, within ____ days from the
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date of this Order, a list of the name, e-mail address, and mailing address of all Class members
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who can be identified with reasonable and diligent effort.
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It is so ORDERED.
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Dated: March ____, 2016
Phyllis J. Hamilton
United States District Judge
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[PROPOSED] ORDER GRANTING PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
CASE NO. 13-CV-05996-PJH (MEJ)
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