Campbell et al v. Facebook Inc.

Filing 145

REPLY (re 143 MOTION for Leave to File Excess Pages for Facebook's Opposition to Plaintiffs' Motion for Class Certification ) filed byFacebook Inc.. (Jessen, Joshua) (Filed on 1/7/2016)

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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 REQUEST TO
RESPOND IN SUPPORT OF ITS
ADMINISTRATIVE MOTION TO
ENLARGE THE PAGE LIMITS
The Honorable Phyllis J. Hamilton

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Gibson, Dunn &
Crutcher LLP

FACEBOOK’S REQUEST TO RESPOND IN SUPPORT OF ITS ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMITS
Case No. C 13-05996 PJH (MEJ)

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Although a reply is not contemplated by the Rules governing Administrative Motions,

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Facebook requests leave to submit the following brief response to Plaintiffs’ Opposition (Dkt. 144).

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Facebook is well aware of the standards governing class certification, and—contrary to

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Plaintiffs’ speculation—it did not request additional pages “to proffer summary judgment arguments”

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or to “end-run around this Court’s scheduling order.” (Id. at 2.) Indeed, the argument makes no

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sense: How can Facebook seek summary judgment by way of an Opposition to Plaintiffs’ Motion for

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Class Certification? But this does not mean that the “merits” are off limits to the class certification

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inquiry, as Plaintiffs erroneously suggest. (Id. at 2-3.) As the Supreme Court has explained,

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“[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s

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underlying claim. That cannot be helped.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551

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(2011); id. at 2552 n.6 (disapproving of language “sometimes mistakenly cited to the contrary in”

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Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)).

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Plaintiffs assert that it is “false” that their Motion for Class Certification discusses “new

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practices and functionalities that were not mentioned anywhere in the operative complaint.”

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(Dkt. 144 at 1.) But Plaintiffs point to no place in their operative complaint—and there is none—

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where the practices they challenge for the first time in their Motion (including “Recommendations

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Plugin,” “Activity Plugin,” “Insights API,” and “Graph API”) are referenced. Instead, Plaintiffs seek

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to mislead the Court by claiming these newly-challenged practices are part of an already-pled

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“targeted advertising scheme.” (Id. at 2.) This illustrates precisely why Facebook needs additional

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pages to respond to Plaintiffs’ Motion: these newly-challenged practices have nothing to do with

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“targeted advertising,” and it falls to Facebook to explain to the Court—in a clear and comprehensive

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manner—the nature of these newly-challenged practices (something Plaintiffs most assuredly have

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not done in their Motion). Equally important, Facebook also requires additional pages to address the

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variability—which is extensive—surrounding these newly-challenged functionalities (as well as the

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practices already framed by the operative complaint).

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As for moving to strike the report submitted by Plaintiffs’ proposed damages expert,

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Fernando Torres, Facebook is not doing so because it is “standard fare in class certification briefing”

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(id.); rather, it is doing so because Mr. Torres completely failed to undertake the analysis that an
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Gibson, Dunn &
Crutcher LLP

FACEBOOK’S REQUEST TO RESPOND IN SUPPORT OF ITS ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMITS
Case No. C 13-05996 PJH (MEJ)

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expert witness is required to undertake (and his opinions have been excluded on this ground before).

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These arguments require more than one or two paragraphs.

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Facebook appreciates Plaintiffs’ concern that if it files an “overly long brief,” it “may actually

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hurt [Facebook’s] case, making it far more likely that meritorious arguments will be lost amid the

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mass of detail.” (Id. at 3.) But Facebook has no intention of filing an “overly long brief,” or of

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burying its arguments in a “mass of detail.” It does, however, seek to file a brief that provides the

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Court with clear and complete information to describe the practices Plaintiffs now challenge and their

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variability, something Plaintiffs’ Motion has not done. It is telling that Plaintiffs oppose this request.

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Facebook respectfully requests that the Court enlarge the page limit for its Opposition to the

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Motion for Class Certification from 25 to 40 pages. Facebook does not oppose a corresponding

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enlargement of Plaintiffs’ reply brief, which eliminates any possible prejudice to Plaintiffs.

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Dated: January 7, 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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Gibson, Dunn &
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FACEBOOK’S REQUEST TO RESPOND IN SUPPORT OF ITS ADMINISTRATIVE MOTION TO ENLARGE PAGE LIMITS
Case No. C 13-05996 PJH (MEJ)