Campbell et al v. Facebook Inc.

Filing 144

RESPONSE (re 143 MOTION for Leave to File Excess Pages for Facebook's Opposition to Plaintiffs' Motion for Class Certification ) Plaintiffs' Opposition to Facebook's Motion for Leave to File Excess Pages filed byMatthew Campbell, Michael Hurley. (Attachments: # 1 Proposed Order Proposed Order)(Sobol, Michael) (Filed on 1/6/2016)

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008

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Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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

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v.

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FACEBOOK, INC.,

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Defendant.

Case No. C 13-05996 PJH (MEJ)
PLAINTIFFS’OPPOSITION TO
FACEBOOK INC.’S ADMINISTRATIVE
MOTION TO ENLARGE THE PAGE
LIMIT FOR ITS OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION DUE ON
JANUARY 15, 2016
Judge:

Hon. Phyllis J. Hamilton

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Facebook’s request for a 60 percent increase in the length of its opposition to Plaintiffs’

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motion for class certification (Dkt. No. 143) should be denied. The pleadings and previous

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Orders in this case have long put Facebook on notice of the breadth of Plaintiffs’ claims, and

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therefore Facebook’s feigned surprise at the scope of the requested class certification is simply

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not believable. Facebook’s motion evinces the intent to engage, improperly on class certification,

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in extensive merits briefing of the common issues. As such, Facebook’s request is revealed as an

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attempted end-run around this Court’s scheduling order, which required Facebook to submit any

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summary judgment briefing at the same time Plaintiffs filed their class certification motion. See

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Dkt. No. 62 (approving filing of early motion for summary judgment concurrently with

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Plaintiffs’ motion for class certification).

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Courts within this district routinely deny motions for excess pages where the parties failed

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to “articulate specific reasons why the parties cannot file briefs in compliance with the local

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rules.” Elec. Frontier Found. v. C.I.A., No. C 09-03351 SBA, 2012 WL 1123529, at *1 (N.D.

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Cal. Apr. 3, 2012) (Armstrong, J.) (denying request for 10-page extension where the party “failed

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to sufficiently explain how this case is ‘complex’ such that additional pages beyond the page

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limits set forth in Civil Local Rule 7–4(b) are needed to adequately brief the legal issues before

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the Court.” ). Facebook fails to make this showing.

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Facebook’s assertion that Plaintiffs’ motion addresses “new practices and functionalities

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that were not mentioned anywhere in the operative complaint” is false. Dkt. No. 143 at 1:14-15.

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As Facebook has had to be reminded by this Court and the Magistrate Judge several times,

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Plaintiffs’ allegations go beyond scanning private messages to improperly increment the “Like”

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counter, but also extends to “us[ing] the data it collects during a scan of a private message for

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other purposes including, among others, enhancing its targeted advertising efforts.” See October

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14, 2015 Discovery Order (Dkt. No. 130) at 2:14-15. 1 Not surprisingly, Plaintiffs’ motion sets

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Facebook’s repeated argument that Plaintiffs have strayed from the controversy articulated in
the operative complaint has been rejected on multiple occasions. See Dkt. No. 43 at 10-11
(rejecting Facebook’s argument that the current complaint does not contain operational
allegations of targeted advertising); No. 83 at 6 (rejecting Facebook’s argument that Plaintiffs’
allegations were a “moving target”); No. 130 at 5-7 (rejecting Facebook’s contention that the
scope of Plaintiffs’ claims is limited to the scanning and use of URLs to increment the “Like”
counter).
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forth extensive evidence, consisting mostly of discovery obtained in the litigation, including

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review of Facebook’s source code. Facebook mischaracterizes this evidence as “new

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allegations,” but this evidence simply comprises aspects of the common proof showing how

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Facebook has enhanced its targeted advertising by harvesting private message content—as

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already alleged in the complaint. That “new functionalities,” as Facebook puts it, of the targeted

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advertising scheme are described in the motion, cannot be any surprise to Facebook because it has

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been the subject of extensive discovery and discovery disputes for over a year (and of course it is

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part of Facebook’s own practices).

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Moreover, Facebook fails to provide any explanation for why these issues are so

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“complex” that they cannot be satisfactorily addressed in 25 pages of briefing in addition to

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Facebook’s technical expert report, which may be of any length. Plaintiffs were effectively able

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to describe and explain the functionality at issue within the 25-page limit, and in fact engaged in

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significant efforts to do so. Facebook provides no meaningful reason why it cannot provide

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reciprocally concise briefing, supplemented with expert opinion. Nor does Facebook provide any

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explanation for why Plaintiffs’ minor revision to the class definition contained in the complaint

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warrants additional pages of briefing. Likewise, Facebook provides no explanation for why its

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intended objections to Mr. Torres’ expert report regarding damages (which objections are

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standard fare in class certification briefing) necessitate any departure from the 25-page rule here.

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Facebook’s requested page extension is really a belated attempt to proffer summary

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judgment arguments that it had an opportunity—but declined— to bring in separate briefing,

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concurrent with the class certification motion. Facebook’s deadline for an early motion seeking

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to attack the factual bases and merits of Plaintiffs’ claims was November 13, 2015, and Facebook

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should not now be allowed additional pages to make arguments that it should have made two

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months ago in separate briefing in a separate context. Moreover, Facebook fails to provide any

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explanation why the additional pages are necessary to address Plaintiffs’ claims within the context

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of Rule 23, rather than to simply attack the merits of Plaintiffs alleged “misstate[ments of] the

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operations of Facebook’s technology” to Facebook’s “satisfact[ion]” (Dkt. No. 143 at 2:7-9). See

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Garcia v. Johnson, No. 14-CV-01775-YGR, 2014 WL 6657591, at *13 (N.D. Cal. Nov. 21, 2014)
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(“When reviewing a motion for class certification, a court should only analyze the portions of the

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merits of a claim that overlap with Rule 23's requirements.”) (citing Eisen v. Carlisle & Jacquelin,

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417 U.S. 156 (1974)); Ridgeway v. Wal-Mart Stores, Inc., No. C 08-05221 SI, 2014 WL 4477662,

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at *2 (N.D. Cal. Sept. 10, 2014) (“Rule 23 ‘grants courts no license to engage in free-ranging

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merits inquiries at the certification stage.’ …[F]actual question[s] should be addressed at trial or

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summary judgment.”) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184,

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1194-1195 (U.S. 2013)). Moreover, the increased page limits Facebook seeks here is hardly the

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“bargain” to the Court that Facebook suggests in its footnote; Facebook specifically reserves its

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rights to seek additional summary judgment briefing in addition to the increased page limits it

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seeks here to attack the merits of Plaintiffs’ claims. See Dkt. No. 143, fn. 1.

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Facebook should not be allowed to present extended, unfocused and unhelpful merits

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briefing—based on an incomplete factual record 2 —to this Court at this stage. As Plaintiffs

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explained to Facebook last week, Plaintiffs were not amenable to Facebook’s request in part

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because Plaintiffs made significant efforts to stay within this Court’s well-considered page

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limitations. Facebook’s requested extension, which would necessitate a concomitant extension

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for Plaintiff’s reply brief, would simply allow Facebook to present less concise and less focused

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arguments, which are helpful neither to the Court nor to the parties. As the court observed in

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Elec. Frontier Found., “‘[i]t is typically the shorter briefs that are the most helpful, perhaps

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because the discipline of compression forces the parties to explain clearly and succinctly what has

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happened, the precise legal issue, and just why they believe the law supports them’” 2012 WL

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1123529 at *1 (quoting In re M.S.V., Inc., 892 F.2d 5, 6 (1st Cir.1989)); see also Fleming v.

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County of Kane, State of Ill., 855 F.2d 496, 497 (7th Cir.1988) ( “Overly long briefs, however,

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may actually hurt a party's case, making it ‘far more likely that meritorious arguments will be lost

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amid the mass of detail.’”) (citation omitted). Facebook has provided no reason why this standard

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should be departed from here.

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Accordingly, Facebook’s requested extension should be denied. However, in the event
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There is currently no fact or expert discovery deadline in this case, and the parties continue to
dispute the adequacy of Facebook’s production. Plaintiffs anticipate this Court will need to
adjudicate multiple further discovery disputes before discovery concludes in this matter.
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that the Court determines that an extension in the page limits is warranted, Plaintiffs respectfully

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request a concomitant extension of 15 pages for their reply brief.

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Dated: January 6, 2016

Lieff Cabraser Heimann & Bernstein, LLP
By:

/s/ Michael W. Sobol
Michael W. Sobol

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
David T. Rudolph (State Bar No. 233457)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592
Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505
Attorneys for Plaintiffs and the Proposed Class

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