Campbell et al v. Facebook Inc.

Filing 143

MOTION for Leave to File Excess Pages for Facebook's Opposition to Plaintiffs' Motion for Class Certification filed by Facebook Inc.. (Attachments: # 1 Declaration of Christopher Chorba ISO Facebook's Administrative Motion to Enlarge Page Limit for Its Opposition to Plaintiffs' Motion for Class Certification, # 2 Proposed Order)(Jessen, Joshua) (Filed on 1/4/2016)

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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
PRIYANKA RAJAGOPALAN, SBN 278504
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FACEBOOK, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISON

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MATTHEW CAMPBELL and MICHAEL
HURLEY,
Plaintiffs,

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v.
FACEBOOK, INC.,
Defendant.

Case No. C 13-05996 PJH (MEJ)
PUTATIVE CLASS ACTION
FACEBOOK, INC.’S ADMINISTRATIVE
MOTION TO ENLARGE THE PAGE
LIMIT FOR ITS OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION DUE ON JANUARY 15,
2016
The Honorable Phyllis J. Hamilton

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FACEBOOK’S ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMIT OF OPP. TO MOT.FOR CLASS CERTIF.
Case No. C 13-05996 PJH (MEJ)

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RELIEF SOUGHT

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Pursuant to Civil Local Rule 7-11, Defendant Facebook, Inc. (“Facebook”) respectfully

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requests an enlargement of the page limits for its Opposition to Plaintiffs’ Motion for Class

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Certification (Dkt. 138), which is due on January 15, 2016. Specifically, Facebook requests an

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additional 15 pages for its Opposition, beyond the 25 pages provided by Local Rule 7-3(a), for a total

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of 40 pages. Pursuant to Local Rule 7-11(a), Facebook sought Plaintiffs’ agreement to the requested

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relief (subject to the Court’s approval), and offered Plaintiffs a corresponding enlargement for their

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reply brief, but Plaintiffs would not agree. (See Declaration of Christopher Chorba ¶ 2 & Ex. A.)
ARGUMENT

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Local Rule 7-3(a) provides that an opposition to a motion “may not exceed 25 pages of text.”

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Civil Local Rule 7-3(a) (rev. Sept. 15, 2015). Although Facebook will continue to strive to present

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its arguments in the fewest number of pages possible, after careful consideration, it requests 15

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additional pages for two principal reasons:

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First, Plaintiffs’ Motion discusses several new practices and functionalities that were not

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mentioned anywhere in the operative complaint. In particular, the operative complaint challenged the

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alleged incrementing of the “Like Button Count” on a third party website when a URL to that website

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was included in a Facebook message. (Consol. Am. Compl. (Dkt. 25) ¶¶ 2, 27-39.) The complaint

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also alleged that Facebook had used this information for “targeted advertising,” a theory that this

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Court credited in allowing Plaintiffs’ claims to advance beyond the pleading stage. (Dkt. 43.)

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Although Plaintiffs’ Motion discusses the first of these practices (and references, but cites no

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evidence supporting, the second), the Motion and accompanying documents are replete with a

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lengthy discussion of functionalities that were never mentioned in—and certainly were not fully and

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fairly framed by— the complaint, including the “Recommendations Plugin,” the “Activity Plugin,”

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“Insights API,” and “Graph API,” among others. (See, e.g., Dkt. 138 at 5:1-8; 7:22-8:25; see also

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Golbeck Report [Dkt. 137-6; 137-7] ¶¶ 44-81.) Without any notice to Facebook, Plaintiffs also

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revised their proposed class in material ways, including changing the date range for, and definition

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of, the class.

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Crutcher LLP

These significant revisions to the practices Plaintiffs now challenge and the class they seek to
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FACEBOOK’S ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMIT OF OPP. TO MOT.FOR CLASS CERTIF.
Case No. C 13-05996 PJH (MEJ)

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certify warrant an enlargement of Facebook’s Opposition brief. Facebook already intended to

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address the practices challenged in the complaint (alleged incrementing of the “Like Button Count”

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on third party websites when a URL to that website was included in a Facebook message). But now,

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it also must explain the functionality (and variability) of several new functionalities

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(“Recommendations Plugin,” the “Activity Plugin,” “Insights API,” “Graph API,” and others) that

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are not mentioned in the complaint. Plaintiffs’ new allegations (like their old ones) fundamentally

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misstate the operations of Facebook’s technology in several critical but complex ways, and Facebook

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now must address these new practices in its Opposition. Unfortunately, Facebook requires more

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pages to do so in a satisfactory way.1

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Allowing adequate space to fully address each of Plaintiffs’ allegations and theories

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(including the new assertions) will not prejudice Plaintiffs in any way. As counsel for Facebook

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explained to Plaintiffs’ counsel, it does not oppose a corresponding extension of Plaintiffs’ reply

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brief. See N.D. Cal. Civ. L.R. 7-3(c) (authorizing 15 pages for reply briefs).

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Second, Facebook also requests additional pages because it intends to move to strike the

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report submitted by Plaintiffs’ proposed damages expert, Fernando Torres. (See Dkt. 137-8; 137-9.)

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Civil Local Rule 7-3(a) requires that “[a]ny evidentiary and procedural objections to the motion must

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be contained within the [opposition] brief or memorandum.” Accordingly, Facebook intends to

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address its objections to Mr. Torres’ report in its Opposition brief, and it requests additional pages to

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do so.

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For the foregoing reasons, Facebook respectfully requests that the Court enlarge the page
limit for its Opposition to Plaintiffs’ Motion for Class Certification from 25 to 40 pages. As noted

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Facebook reserves its remaining objections to Plaintiffs’ new theories, which it never had the
opportunity to address through a Rule 12 Motion. In addition, it is because of Plaintiffs’ shifting
theories that Facebook ultimately refrained from filing its early Motion for Summary Judgment
directed at the claims of the named Plaintiffs in this case. As a result of that decision, even if it were
to grant the requested enlargement sought in this Administrative Motion, this Court will have far less
briefing before it than originally contemplated by the schedule that it ordered at the March 12, 2015,
Case Management Conference (Dkt. 62), because it is just presented with Plaintiffs’ Motion for Class
Certification and not an early Motion for Summary Judgment directed at the claims of the named
Plaintiffs.

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FACEBOOK’S ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMIT OF OPP. TO MOT.FOR CLASS CERTIF.
Case No. C 13-05996 PJH (MEJ)

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above, Facebook will endeavor to present its arguments in as few pages as necessary.

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Dated: January 4, 2016

Respectfully submitted,

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/ Joshua A. Jessen
Joshua A. Jessen
Attorneys for Defendant FACEBOOK, INC.

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FACEBOOK’S ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMIT OF OPP. TO MOT.FOR CLASS CERTIF.
Case No. C 13-05996 PJH (MEJ)