Campbell et al v. Facebook Inc.

Filing 147

Administrative Motion to File Under Seal Documents in Support of Facebook's Opposition to Plaintiffs Motion for Class Certification filed by Facebook Inc.. *** ATTACHMENTS 1, 2, 6 LOCKED AT FILER'S REQUEST. SEE DOCUMENT 162 *** (Attachments: # 1 Declaration Declaration of Nikki Stitt Sokol In Support Of Defendant Facebook, Inc.s Administrative Motion to File Documents in Support of its Opposition to Plaintiffs Motion for Class Certification Under Seal, # 2 Proposed Order [Proposed] Order Authorizing the Filing of Documents Under Seal, # 3 Exhibit Exhibit 1 (Unredacted), # 4 Exhibit Exhibit 2 (Redacted), # 5 Exhibit Exhibit 3 (Unredacted), # 6 Exhibit Exhibit 4 (Redacted), # 7 Exhibit Exhibit 5 (Unredacted), # 8 Exhibit Exhibit 6 (Redacted), # 9 Exhibit Exhibit 7 (Unredacted), # 10 Exhibit Exhibit 8 (Redacted))(Chorba, Christopher) (Filed on 1/15/2016) Modified on 1/22/2016 (ewn, COURT STAFF). Modified on 1/22/2016 (vlkS, COURT STAFF).

EXHIBIT 2
REDACTED VERSION OF DOCUMENT(S)
SOUGHT TO BE SEALED

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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 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 DIVISION

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MATTHEW CAMPBELL and MICHAEL
HURLEY,

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Case No. C 13-05996 PJH
PUTATIVE CLASS ACTION

Plaintiffs,
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v.
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DEFENDANT FACEBOOK, INC.’S
OPPOSITION TO PLAINTIFFS’ MOTION
FOR CLASS CERTIFICATION

FACEBOOK, INC.,
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Defendant.
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APPENDIX OF EVIDENCE (INCLUDING
SUPPORTING DECLARATIONS AND
REBUTTAL EXPERT REPORTS)
SUBMITTED CONCURRENTLY

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HEARING:
Date: March 16, 2016
Time: 9:00 a.m.
Place: Courtroom 3, 3rd Floor
The Honorable Phyllis J. Hamilton

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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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TABLE OF CONTENTS
Page

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................... 1

II.

FACTUAL AND PROCEDURAL BACKGROUND............................................................ 4

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A.
B.

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6

The Named Plaintiffs And Their Action .................................................................... 4
Facebook And The Technology At Issue In This Action ............................................ 4

III.

THE LEGAL STANDARDS GOVERNING THIS MOTION ............................................ 10

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IV.

STATEMENT OF ISSUE TO BE DECIDED PURSUANT TO RULE 7-4(a)(3) ................ 10

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V.

AN INDIVIDUALIZED ANALYSIS IS REQUIRED TO DETERMINE WHETHER
PUTATIVE CLASS MEMBERS WERE SUBJECTED TO THE CHALLENGED
PRACTICES....................................................................................................................... 10

VI.

PLAINTIFFS CANNOT MEET THE REQUIREMENTS OF RULE 23(a) ........................ 13

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A.

Plaintiffs’ Proposed Class Is Not Ascertainable ....................................................... 13

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B.

Plaintiffs And Their Counsel Are Not Adequate Under Rule 23(a)(4) ...................... 15

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C.

Plaintiffs Have Not Met Their Burden To Show Common Legal Or Factual
Issues ...................................................................................................................... 17

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VII.

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PLAINTIFFS CANNOT SATISFY THE REQUIREMENTS OF RULE 23(b)(3) ............... 18
A.

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Individualized Factual And Legal Issues Regarding Liability Predominate
Over Any Alleged “Common” Issues (Which Plaintiffs Do Not Identify) ................ 18

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1.

Implied Consent. .......................................................................................... 19

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2.

Elements of Wiretap Act/CIPA Claims. ....................................................... 22

B.

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20

1.

VIII.

Statutory Damages. ...................................................................................... 25

3.

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Actual Damages. .......................................................................................... 23

2.

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Plaintiffs Also Have Not Met Their Burden To Prove A Reliable, Classwide
Damages Methodology ............................................................................................ 23

The Court Should Exclude Mr. Torres’s Expert Opinion .............................. 27

PLAINTIFFS CANNOT CERTIFY AN ALTERNATE RULE 23(b)(2) CLASS ................ 28

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A.

Injunctive Relief Would Not Impact All Class Members The Same Way ................. 28

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B.

The Primary Relief Sought By Plaintiffs Is Monetary Relief, Not Injunctive
Relief ...................................................................................................................... 29

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IX.

CONCLUSION .................................................................................................................. 30

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Case No. C 13-05996 PJH

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TABLE OF AUTHORITIES

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Page(s)

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Cases

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Ades v. Omni Hotels, No. 13-02468, 2014 WL 4627271 (C.D. Cal. Sept. 8, 2014)........................... 19

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Algarin v. Maybelline, LLC, 300 F.R.D. 444 (S.D. Cal. 2014) ......................................................... 30

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Allied Orthopedic Appl., Inc. v. Tyco Health. Grp. LP, 247 F.R.D. 156 (C.D. Cal. 2007) ................. 25

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Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013) ...................................................... 10

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Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387-PJH, 2014 WL 60097 (N.D.
Cal. Jan. 7, 2014)............................................................................................................... 13, 24

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10

Backhaut v. Apple, Inc., No. 14-2285-LHK, 2015 WL 4776427 (N.D. Cal. Aug. 13,
2015) ....................................................................................................................................... 19

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12
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Bateman v. AMC, Inc., 623 F.3d 708 (9th Cir. 2010) ....................................................................... 26
Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014) ..................................................... 18
Bodner v. Oreck Direct, LLC, No. 06-4756-MHP, 2007 U.S. Dist. LEXIS 30408 (N.D.
Cal. Apr. 25, 2007) .................................................................................................................. 15
Bohn v. Pharmavite, LLC, No. 11-10430, 2013 WL 4517895 (C.D. Cal. Aug. 7, 2013) ................... 16

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Bouaphakeo v. Tyson Foods Inc., cert granted, 135 S. Ct. 2806 (2015) ........................................... 30
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Building Ind. Ass’n of Wash. v. WSBCC, 683 F.3d 1144 (9th Cir. 2012) .......................................... 27

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Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ............................................................... 10, 22, 23
Connelly v. Hilton Grand Vacations Co., 294 F.R.D. 574 (S.D. Cal. 2013) ...................................... 29

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Daniel F. v. Blue Shield of Cal., 305 F.R.D. 115 (N.D. Cal. 2014) ............................................. 17, 24

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Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993) ............................................................ 27

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Davis v. Astrue, 250 F.R.D. 476 (N.D. Cal. 2008)............................................................................ 15

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DirecTV, Inc. v. Huynh, No. 04-3496-CRB, 2005 WL 5864467 (N.D. Cal. May 31,
2005), aff’d, 503 F.3d 847 (9th Cir. 2007) ............................................................................... 24

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Dish Network LLC v. Gonzalez, No. 13-107, 2013 WL 2991040 (E.D. Cal. June 14,
2013), rec. adopted by, 2013 WL 4515967 (E.D. Cal. Aug. 26, 2013) ..................................... 26
Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304 (9th Cir. 1977) ............................................ 10, 20, 22
Dysthe v. Basic Res. LLC, 273 F.R.D. 625 (C.D. Cal. 2011) ............................................................ 16
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Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ........................................................ 17

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Fraley v. Facebook, Inc., No. 11-1726-LHK, 2012 WL 555071 (N.D. Cal. Feb. 21,
2012) ....................................................................................................................................... 17

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4
5

Fraley v. Facebook, Inc., No. 14-15595, 2016 U.S. App. LEXIS 518 (9th Cir. Jan. 6,
2016) ....................................................................................................................................... 26

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Gannon v. Network Tel. Servs., No. 13-56813, 2016 WL 145811 (9th Cir. Jan. 12,
2016) ....................................................................................................................................... 19

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Gonzales v. Comcast Corp., No. 10-1010, 2012 WL 10621 (E.D. Cal. Jan. 3, 2012) ........................ 30

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Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ................................................................ 18

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Hansberry v. Lee, 311 U.S. 32 (1940) .............................................................................................. 15

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Hebrew Univ. of Jerusalem v. GM, No. 10-03790, 2012 WL 12507522 (C.D. Cal.
May 31, 2012) ......................................................................................................................... 27

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In re ConAgra Foods, Inc., 302 F.R.D. 537 (C.D. Cal. 2014)........................................................... 27

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In re Facebook Internet Tracking Litig., No. 12-02314-EJD, 2015 WL 6438744 (N.D.
Cal. Oct. 23, 2015) .................................................................................................................. 23

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In re Facebook, Inc., PPC Adv. Litig., 282 F.R.D. 446 (N.D. Cal. 2012).................................... 15, 24

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In re Gmail Litig., No. 13-02430-LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014) ... 19, 20, 21, 22

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In re Google, Inc. Privacy Policy Litig., No. 12-001382-PSG, 2015 WL 4317479 (N.D.
Cal. July 15, 2015) .................................................................................................................. 27

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In re Graphics Processing Units Antitrust Litig., 253 F.R.D. 478 (N.D. Cal. 2008).......................... 27
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In re Nickelodeon Consumer Privacy Litig., MDL No. 2443, 2014 WL 3012873 (D.N.J.
July 2, 2014)............................................................................................................................ 23

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In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014).......................................................... 22, 23

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Jones v. ConAgra Foods, Inc., No. 12-1633-CRB (MEJ), 2013 U.S. Dist. LEXIS 99336
(N.D. Cal. July 16, 2013) ......................................................................................................... 17

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Kavu v. Omnipak Corp., 246 F.R.D. 642 (W.D. Wash. 2007) .......................................................... 29

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Kline v. Coldwell, Banker & Co., 508 F.2d 226 (9th Cir. 1974) ....................................................... 26

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Kulig v. Midland Funding, LLC, No. 13-4715, 2014 U.S. Dist. LEXIS 137254
(S.D.N.Y. Sept. 26, 2014) ........................................................................................................ 16

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Leyva v. Medline Indus., 716 F.3d 510 (9th Cir. 2013) ..................................................................... 24
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Lightbourne v. Printroom Inc., 307 F.R.D. 593 (C.D. Cal. 2015) ..................................................... 22

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London v. Wal-Mart Stores, Inc., 340 F.3d 1246 (11th Cir. 2003) .................................................... 16

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Mahfood v. QVC, Inc., No. 06-0659, 2008 WL 5381088 (C.D. Cal. Sept. 22, 2008) ........................ 30

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Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) ......................................................... 14
Moeller v. Taco Bell Corp., No. 02-5849 PJH, 2012 WL 3070863 (N.D. Cal. July 26,
2012) ....................................................................................................................................... 29
Moheb v. Nutramax Labs. Inc., No. 12-3633, 2012 WL 6951904 (C.D. Cal. Sept. 4,
2012) ....................................................................................................................................... 16
Mortensen v. Bresnan Commc’n, L.L.C., No. 10-13, 2010 WL 5140454 (D. Mont.
Dec. 13, 2010) ......................................................................................................................... 21
Murray v. Fin. Visions, Inc., 2008 WL 4850328 (D. Ariz. Nov. 7, 2008) ......................................... 19
Murray v. GMAC Mortg. Corp., 434 F.3d 948 (7th Cir. 2006) ......................................................... 26
O’Shea v. Littleton, 414 U.S. 488 (1974) ......................................................................................... 30

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Pecover v. EA Inc., No. 08-2820 VRW, 2010 WL 8742757 (N.D. Cal. Dec. 21, 2010) .................... 25
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Ries v. Arizona Bevs. USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) ................................................... 30
Robins v. Spokeo, Inc., cert granted, 135 S. Ct. 1892 (2015) ............................................................ 30
Sanchez v. Wal-Mart Stores, Inc., No. 06-02573, 2009 WL 1514435 (E.D. Cal. May 28,
2009) ....................................................................................................................................... 15

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Schulken v. Wash. Mut. Bank, No. 09-02708-LHK, 2012 WL 28099 (N.D. Cal. Jan. 5,
2012) ................................................................................................................................. 28, 29

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Schwartz v. Upper Deck Co., 183 F.R.D. 672 (S.D. Cal. 1999) ........................................................ 15

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Serna v. Big A Drug Stores, Inc., No. 07-276, 2007 WL 7665762 (C.D. Cal. Oct. 9,
2007) ....................................................................................................................................... 26

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23

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010) .......................... 26

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Silbaugh v. Viking Magazine Servs., 278 F.R.D. 389 (N.D. Ohio 2012) ........................................... 19

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Soto v. Commercial Recovery Sys., Inc., No. 09-2842-PJH, 2011 WL 6024514 (N.D.
Cal. Dec. 5, 2011).................................................................................................................... 15

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State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003) .................................................... 26
Thomasson v. GC Servs. Ltd. P’ship, 539 F. App’x 809 (9th Cir. 2013) ........................................... 17
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Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ..................... 10, 14, 17, 19, 20, 22, 28, 29, 30

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Welling v. Alexy, 155 F.R.D. 654 (N.D. Cal. 1994) .......................................................................... 15

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Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) ....................................................... 29

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Statutes
18 U.S.C. § 2510, et seq. ................................................................................................................... 4
18 U.S.C. § 2511 .................................................................................................................. 19, 22, 23

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18 U.S.C. § 2520 ............................................................................................................................. 24
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18 U.S.C. § 2701 et seq. .................................................................................................................. 23
Cal. Bus. & Prof. Code § 17200......................................................................................................... 4
Cal. Penal Code § 631 ................................................................................................................. 4, 19

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Cal. Penal Code § 632 ................................................................................................................. 4, 24

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Rules

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Fed. R. Civ. P. 23 ...................................................................................................................... 10, 13

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Fed. R. Civ. P. 23(a)(1).................................................................................................................... 14

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Fed. R. Civ. P. 23(a)(4).................................................................................................................... 15

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Fed. R. Civ. P. 23(b)(2) ............................................................................................................. 28, 29

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Fed. R. Civ. P. 23(b)(3) .................................................................................................. 18, 22, 23, 25

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Fed. R. Civ. P. 23(g) ........................................................................................................................ 17
Fed. R. Evid. 702 ............................................................................................................................. 27

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiffs’ lawsuit challenges a simple feature—called “URL preview”—that enables people

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who receive and send messages on Facebook to see a thumbnail or snapshot of a website link (called

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a URL) that is being shared. Instead of having to decipher a string of characters in a URL (such as

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http://www.website.com/abc!123?), Facebook, like many other online services, provides a

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convenient, and entirely optional, way for people to preview what information appears on the website

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to which the link points so they can confirm they want to send the link or whether they want to click

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on it. Plaintiffs claim that this feature somehow infringes upon people’s privacy rights and violates a

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litany of federal and state laws, including criminal laws that prohibit wiretapping. Plaintiffs are

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wrong. No one’s “private message content” was ever shared with, or disclosed to, any third party by

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Facebook, or used in the allegedly unauthorized ways that Plaintiffs challenge.

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Instead, this lawsuit has devolved into a technical attack on basic elements of computer

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programming, such as the use of data structures (“objects”) to efficiently manage the sharing of

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information across Facebook’s service, and the internal “logging” of these processes. Plaintiffs also

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challenge the use of these objects to tabulate anonymous, aggregate information about the number of

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times people across Facebook have shared a particular link on Facebook. Far from “reading its users’

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personal, private Facebook messages” (Dkt. 1 ¶ 1) and “divin[ing] the … messages content” (Mot.

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at 3), the information at issue in this case is more akin to The New York Times publishing a list of

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bestselling books, Nielsen publishing TV ratings, and Billboard charting the top 100 songs—in each

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instance, the anonymized and aggregated data is used to indicate the popularity of information.

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Not only is there no merit to their claims, but Plaintiffs also have failed to satisfy the

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requirements of Rule 23 to certify a proposed nationwide class of anyone on Facebook who has ever

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sent or received Facebook messages “that included URLs in their content (and from which Facebook

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generated a URL attachment)”1 from December 2011 to the present. Plaintiffs’ Motion for Class

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Certification repeatedly misstates the underlying Facebook technology, and it ignores the significant

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1

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A URL preview is an attachment to the message that was sometimes generated if a message
containing a URL was sent under a specific set of conditions, described in detail below.
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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amount of variability surrounding the challenged practices. Notably, Plaintiffs departed from the class

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definition included in the operative complaint, now adding the language “(and from which Facebook

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generated a URL attachment)” because they learned in discovery that Facebook’s systems did not

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operate in the way alleged in their complaint, or in a way that is amenable to classwide adjudication.

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But Plaintiffs cannot solve their problems by revising the class definition, and they have failed to carry

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their evidentiary burden to establish any of the Rule 23 requirements:

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First, an individualized inquiry would be necessary to ascertain the proposed class. Plaintiffs’

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own Facebook messages—which are conspicuously absent from their Motion and accompanying

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expert reports—demonstrate that the proposed class is not ascertainable without individual proof. For

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example, even the cherry-picked set of their own messages that Plaintiffs selected for further discovery

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revealed that Facebook could not determine whether several messages were part of the new class

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definition, and that determining class membership would be a laborious person-by-person, browser-

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by-browser, URL-by-URL, and message-by-message inquiry. Contrary to Plaintiffs’ suggestion, there

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is no computerized “short cut” to overcome these hurdles, because Plaintiffs’ technical expert

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acknowledged in her deposition that her proposals (write new “code” or a “database query”) would not

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reliably identify putative class members. Self-identification also is not an option, because, among

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other things, Plaintiffs admitted in discovery that

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Second, Plaintiffs cannot demonstrate that they (or their counsel) are adequate to represent a

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putative class, because counsel recruited their close, longtime friends to bring this action—an

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approach to class litigation that courts in this District have rejected as putting the “cart before the

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horse.” Plaintiffs also have deferred all decision-making in this case to their close friends, which

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further undermines their adequacy. Further, counsel’s mistreatment of Plaintiff David Shadpour—

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—independently precludes a finding of adequacy.
Third, Plaintiffs have not even attempted to meet their burden of showing common issues
pursuant to Rule 23(a)(2); instead, they misstate Facebook’s position in a case management statement,
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Case No. C 13-05996 PJH

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without citing (much less carrying their burden of proving) alleged “common” issues. In light of the

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inherently individualized nature of putative class members’ experiences with Facebook’s messages

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product—
—it is impossible to develop “common”

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questions (much less common answers) that will “drive the resolution of the litigation.”
Fourth, Plaintiffs cannot meet the requirements of Rule 23(b). For starters, no court has

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certified a Rule 23(b)(3) class in these “message scanning” suits. Judge Koh rejected such an attempt

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in the Gmail case because she concluded that implied consent—which is a full defense to Plaintiffs’

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claims here—is an inherently factual inquiry that takes into account the individual knowledge and

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understanding of each party to each alleged “interception”—not only the named plaintiffs, but their

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message correspondents. This is why the plaintiffs in the other “email scanning” lawsuit that inspired

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this case (Yahoo Mail) did not even seek certification under Rule 23(b)(3). Those same problems exist

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here: (a) as in Gmail, many public sources disclosed the challenged practices; (b) the “URL preview”

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feature put senders on notice that the URL was being processed; (c) by defining the class to the present

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day, Plaintiffs have included people (including themselves) who knew about the challenged practices

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and consented by continuing to send messages; and (d)

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. These issues predominate and defeat certification here.

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Nor have Plaintiffs met their burden of offering a classwide damages methodology under

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Rule 23(b)(3). Their proposed damages expert (Fernando Torres) does not even offer a methodology

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that aligns with Plaintiffs’ theory of injury (a basic and disqualifying flaw under Supreme Court

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precedent), or that tracks the remedies available under either statute at issue. The Court should strike

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his report for this reason, as well as the other methodological and evidentiary flaws described below.

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Finally, Plaintiffs cannot meet the requirements for Rule 23(b)(2) certification for injunctive

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relief. Their alternate request for such relief is an afterthought, relegated to a short paragraph at the

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end of their brief. (Mot. at 24:9–25.) But the extraordinary relief that Plaintiffs seek—“cessation of

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

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declaration that such conduct violates” federal and state law (id. at 24:20–21)—is an improper class-

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wide remedy, because they do not and cannot show, as they must under binding precedent, (1) that the
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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conduct “can be enjoined or declared unlawful only as to all of the class members or as to none of

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them” (both because many people consented to the conduct, and because putative class members

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disagreed

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merely “incidental” to their requested injunction, because Plaintiffs seek a massive damages award.
In sum, Plaintiffs have not met their evidentiary burden of showing—through a “rigorous

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analysis”—the requirements for certification, and the Court should deny their Motion.

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); and (2) that monetary relief is

II.
A.

FACTUAL AND PROCEDURAL BACKGROUND

The Named Plaintiffs And Their Action

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As discussed in detail below, Plaintiffs’ Consolidated Amended Complaint (Dkt. 25) focuses

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on a basic feature—the URL preview—that many Internet services, including Facebook, use to make

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it easier for people to know what is being shared when they send or receive a link. Plaintiffs claim that

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Facebook’s use of this feature violates (1) the federal Wiretap Act (18 U.S.C. § 2510, et seq.), (2) the

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California Invasion of Privacy Act (“CIPA”)/ Cal. Penal Code § 631, (3) CIPA/Cal. Penal Code § 632,

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and (4) California’s Unfair Competition Law (Cal. Bus. & Prof. Code § 17200; “UCL”).2

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B.

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Facebook And The Technology At Issue In This Action
1. Facebook And Its Messages Product. Facebook operates a social networking service that

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aims to make the world more open and connected. Its services enable people to post and share text,

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2
The Court dismissed the UCL and CIPA § 632 claims with prejudice (because, inter alia, Plaintiffs
had not lost any money/property), but it allowed the Wiretap Act and CIPA § 631 claims to proceed
because it was unable to resolve several of Facebook’s challenges on the pleadings. (Dkt. 43 at 4–17.)

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photos, video, links, and other information with one another. (Dkt. 25 ¶ 15.) Facebook provides its

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service, and hosts all the information that people share, for free.

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There are many different ways for people to share information on Facebook. One way is by

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posting on their personal profile page (a “Timeline”), which is viewable by the audience they select

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(specific individuals, all friends, the public, or many other options in between). People also can share

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information directly to their Timelines by affirmatively clicking on “Like” or “Share” buttons (“social

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plugins”) that appear on other websites (e.g., The New York Times or ESPN). Another way to share

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information is by sending a Facebook message to one or more people (similar to email), which can be

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viewed in the sender’s and recipient’s messages folder.
2. URL Previews And “Share Objects” That Store Them On Facebook’s System.3 Plaintiffs

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challenge the core functionality of Facebook’s “URL preview” feature in messages, and the

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subsequent logging and use of data derived from that feature. In simple terms, when a person shares a

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link or URL (which may look like this: http://www.website.com/abc!123?) in a message, Facebook’s

14

systems may provide a “preview” of the actual information found via that link (for example, the title

15

of a news article along with a picture that appears in the article). This is done for two main reasons:

16

(i) the sender may have shared the wrong link, in which case the preview will make that clear to the

17

sender; and (ii) the recipient will have some sense of what the link is about so she can determine

18

whether she wants to click on it. The “URL preview” feature is optional. If the sender does not want

19

to include a preview, she can delete the preview by clicking an “x” at the top right of the preview (“x

20

out”). If the sender clicks “x”, the recipient will only see the link (http://www.website.com/abc!123?).

21

On the other hand, once the preview appears, the sender may remove the URL itself from the message

22

and send only the preview, in which case the recipient will see only the preview.

23
24
25
3

26
27
28

Plaintiffs have presented this Court with a superficial description of complex, technical material,
which Facebook has rebutted here and in its concurrently-filed Declarations of Facebook Engineering
Director Alex Himel, Engineering Manager Dan Fechete, and Engineering Manager Michael Adkins,
as well as the rebuttal expert report of Dr. Benjamin Goldberg of New York University. To the extent
the Court finds it necessary or helpful, Facebook can make any of these declarants available for live
testimony at the hearing pursuant to Local Rule 7-6.
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2
3

Facebook also may use

4

data from its internal systems to display aggregate and anonymous statistics about how many times

5

people have interacted with a particular link, so that people can see what links are popular with other

6

Facebook users. This appears in the form of a number (e.g., “573”) next to the “Share” or “Like”

7

button on third-party websites. The number may be incremented (e.g., from “573” to “574”) when

8

someone interacts with the URL in a specified way—for example, by sharing it in a post, or, for a

9

period of time that ended over a year before this lawsuit was filed, in a Facebook message. (Id. 1520.)

10

Importantly, during the class period, no other person or website ever learned about the specific links

11

shared between two specific people in a Facebook message. (Id. 1522, 1527, 1529, 1695, 1977.)

12

Everything described above (and below) occurred internal to Facebook’s systems. (Id.)
The creation of the “share object” and how Facebook has used it in aggregate ways is at the

13
14

core of Plaintiffs’ claims. (Mot. at 5–6; Dkt. 138-4 [Golbeck Report] at 9–12.) For these reasons, it is

15

important to understand from a technical perspective exactly how these systems and features work. A

16

summary follows below, and is expanded upon in Facebook’s declarations and expert report. (Supra

17

n.3.)

18
19
20
21

Here is an example of a draft message including a URL preview:

22
23
24
25
26
27
28

4
URLs entered into messages sent from Facebook’s stand-alone Messenger mobile application do
not generate URL previews. (App.1516.)

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

To prevail, Plaintiffs must show with common proof that every person who sent a message

18

with a URL was impacted by the challenged practice. But as described above, the circumstances will

19

vary person-by-person, browser-by-browser, URL-by-URL, and message-by-message. As detailed

20

below, discovery confirmed that Plaintiffs

21
22
23

had varied experiences with these practices.
3. The “Like” Button Social Plugin. Facebook also provides “social plugins,” such as the

24

“Like” and “Share” buttons, to third-party websites so people can easily share links to Facebook.

25

Sometimes, but not always, these plugins may include a number (or counter) that reflects the number

26

of times Facebook users have interacted with that link, and that is incremented when other people

27

interact with the same link, for example by sharing that link in a post. The following is an example:

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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blog post titled “How Private Are Your Private Facebook Messages?” (Id. 122.) Plaintiffs admit that

2

this post made “national news” (Dkt. 31 at 3), and the post reported that Facebook “scans the links

3

you’re sending—registering them as though you ‘Like’ the page you sent. It’s just one example of

4

how online messages that seem private are often actually examined by computers for data” (App. 122).

5

The blog post specifically acknowledged that Facebook’s developer guidance disclosed this practice:

6

“The company’s guidance for developers also says that ‘the number of inbox messages containing’ a

7

link to a page will count as ‘Likes’ ….” (Id.) Dozens of other articles describing Facebook’s message

8

processing practices appeared both before and after this article. (Id. 39-376.)

9
10

In December 2012, Facebook stopped incrementing its social plugin counters based on share
objects created from URL attachments in messages.5

11
12
13
14
15

5. The New Conduct Challenged In Plaintiffs’ Motion. Because their complaint focused on a

16

practice that ceased more than three years ago, Plaintiffs have now shifted gears in their Motion to

17

challenge the core computer programming practices that are basic to the operation of services like

18

Facebook that enable people to share information, including (i) the very creation of share objects,

19

(ii) the incrementing of the anonymous, aggregate internal counter

20

(iii) various basic forms of internal “logging.” (Mot. at 5–10.) But as discussed above and detailed in

21

Facebook’s declarations, the creation of share objects and the incrementing of internal counters

22

involve a host of individualized information

23

user-specific information has ever been disclosed. (App. 1515-19, 1523-26, 1967-74.) And the same

24

thing is true of Plaintiffs’ new “logging” allegations. (Id. 1523-26, 1975-76.)

25

, and

and no

Additionally, Plaintiffs now challenge Facebook’s alleged use of the anonymous, aggregate

26

information from

27

5
Facebook believed the practice ceased in October 2012 (which was the company’s understanding,
and the information Facebook’s counsel had at the time of the last hearing), but subsequent
investigation revealed that the practice was completely stopped in December 2012. (Id. 1615.)

28

or other internal counters for analytics purposes and to help

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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identify trends in what information people are sharing on Facebook and may find interesting. 6 None of

2

these practices is mentioned in the complaint, and Plaintiffs are wrong about many of the particulars of

3

these challenged “uses.” (See, e.g., id. 1705.) Regardless, whether or not a particular URL in a

4

message sent by a particular person was ever “used” in one of the innocuous ways Plaintiffs now

5

challenge remains a highly variable inquiry (including, but not only, because the practices changed

6

over time and have been discontinued), and there is no administratively feasible way to determine

7

whether a given URL was ever used in a specific way. (Infra pp. 11–13.)

8

III.

THE LEGAL STANDARDS GOVERNING THIS MOTION

A “class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of

9
10

individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011);

11

Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (same). Rule 23 “imposes stringent

12

requirements for certification that in practice exclude most claims.” Am. Express Co. v. Italian Colors

13

Rest., 133 S. Ct. 2304, 2310 (2013). Specifically, it “does not set forth a mere pleading standard,”

14

Dukes, 131 S. Ct. at 2551, and “[m]ere invocation of the language of Rule 23 … is no mystical legal

15

talisman guaranteeing class treatment,” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1312 (9th Cir.

16

1977). Instead, the plaintiff “must affirmatively demonstrate his compliance with the Rule—that is, he

17

must be prepared to prove that there are in fact sufficiently numerous parties, common questions of

18

law or fact, etc.” “and that certification is proper only if ‘the trial court is satisfied, after a rigorous

19

analysis,” that plaintiff met its burden. Dukes, 131 S. Ct. at 2551; Comcast, 133 S. Ct. at 1432 (same).

20

IV.

STATEMENT OF ISSUE TO BE DECIDED PURSUANT TO RULE 7-4(a)(3)

Have Plaintiffs met their burden to affirmatively demonstrate through a “rigorous analysis”

21
22

that each of the Rule 23 requirements has been satisfied in this case?

23

V.
AN INDIVIDUALIZED ANALYSIS IS REQUIRED TO DETERMINE WHETHER
PUTATIVE CLASS MEMBERS WERE SUBJECTED TO THE CHALLENGED PRACTICES

24

As a threshold matter, whether a particular person was impacted by the challenged practices

25
6

26
27
28

In their Motion, Plaintiffs take issue with use of aggregated and anonymous statistics about share
objects to (i) display information on third-party websites about what URLs are popular (“Activity” and
“Recommendation” feeds), (ii) provide anonymous and aggregate demographic data to third-party
website administrators about the types of people interacting with their sites, and (iii) provide basic
statistics about the number of times URLs were shared. (Mot. at 5–6.) All of these practices varied
over time and with different user behavior, and none continue to involve URLs shared in messages.
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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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depends on a variety of factors specific to each

2

This individualized inquiry precludes a finding of ascertainability, commonality, or predominance.

and time period.

3
4
5
6
7
8
9
10
11
12

. Many people who send Facebook messages do

13

not send messages containing URLs, such as Plaintiffs’ proposed damages expert. (Id. 1037-38.)

14

Second, URLs entered into messages sent from Facebook’s stand-alone Messenger mobile

15

application (e.g., on a smartphone or other mobile device) do not generate URL previews. (Id. 1516.)

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19
20
21
22
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Case No. C 13-05996 PJH

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5

2. Incrementing The Social Plugin Count. With respect to the primary practice challenged in

6

the complaint—alleged “scanning” of Facebook messages to detect a URL and increment the social

7

plugin counter (Dkt. 25 ¶¶ 2, 4, 25, 27, 31)—there is additional variability arising from the fact that

8

many third-party websites did not display Facebook social plugins (or ones with counters). (App.

9

1521.)

10
11
12
13
14
15
16
17
18

Further, some counters in social plugins displayed unrelated information like the number of
people who “liked” a particular page on Facebook (a “fan count”) (id. 1520).

19
20
21
22
23

There also is variability over time, because, as explained above, URL attachments shared in Facebook

24

messages have not been included in any social plugin counters since December 2012. (Id. 1520-21.)

25

3. Other Challenged Practices. The foregoing variability also impacts Plaintiffs’ new

26

challenges to the various logs and internal counters

27

see Mot. at 5) and “uses” (Recommendations/Activity Feeds, Insights, and various APIs) (see id. at 5,

28

8; Dkt. 138-4 [Golbeck Report] at 12–22).
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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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5
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8
9
10

In addition, there was considerable variability over time in the challenged practices (as explained

11

in detail in the Goldberg Report, the Fechete and Himel Declarations, and Exhibits D & PP (id. 30-37,

12

1508-33, 1693-1710, 1939-92)), and some of the practices were discontinued before the proposed

13

class period. (Id. 1520-21, 1523, 1527, 1530, 1703, 1706.)

14
15
16

VI.
A.

PLAINTIFFS CANNOT MEET THE REQUIREMENTS OF RULE 23(a)

Plaintiffs’ Proposed Class Is Not Ascertainable
Plaintiffs concede (Mot. at 14–15), and this Court has held, that ascertainability is a Rule 23

17

requirement. See Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387-PJH, 2014 WL 60097, at *3

18

(N.D. Cal. Jan. 7, 2014) (“Because plaintiff has not shown that a method exists for determining

19

who … fits within the proposed class, the class is not ascertainable.”). Plaintiffs cannot satisfy their

20

burden to show that the class is objectively ascertainable.

21

In their Motion, Plaintiffs contend that “any Facebook user can readily determine whether she

22

sent or received a Facebook message containing a URL within the relevant time period.” (Mot. at 15.)

23

But that overly simplistic suggestion sidesteps the technical complexities described above, while

24

simultaneously ignoring Plaintiffs’ own class definition, which is not limited to individuals who “sent

25

or received a Facebook message containing a URL,” but rather everyone who sent or received

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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Facebook messages (1) “that included URLs in their content” and (2) “from which Facebook

2

generated a URL attachment.” (Id. at 10, 15 n.48.) As detailed above, however, there are several

3

individualized circumstances in which a “URL attachment” would not have been created or would not

4

have been sent with the message

5

. (Supra pp. 11–12.)

To overcome these barriers, Plaintiffs attempt to shift their evidentiary burden to Facebook,

6

suggesting in Dr. Golbeck’s report that Facebook could use a “database query” or write new “code” to

7

identify putative class members. (Dkt. 137-6, ¶¶ 103–105.) But these proposals are not only

8

speculative, they would be futile: Dr. Golbeck’s subsequent deposition testimony confirmed that the

9

proposals in her report would not produce a reliable, much less accurate, list of putative class

10

members. For example, her proposals would not identify (i) message recipients, (ii)

11
12

(iii) senders who had deleted URL attachments, or (iv) senders who had deleted URLs in

13

the body of the message. She also admitted that her proposals would not distinguish between

14

(v) people “located within the United States” and people in other countries, (vi) people who sent

15

messages before or during the proposed class period, or (vii) individuals who indisputably knew about

16

and consented to Facebook’s practices. (App. 1324-26, 1329-34, 1340-42.) Nor could she identify

17

individuals whose URLs were “logged” (id. 1334-36) or whether any given share object was “used” in

18

any of the aggregate, anonymous ways discussed in her report—she admitted that

19
20

and in fact it is unascertainable. Facebook has submitted evidence to
confirm these and other barriers to identifying the putative class. (Id. 1511-12.)
Nor is self-identification an option, as Plaintiffs admit that

21
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(Id. 563, 694.)8

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Because the proposed class is not ascertainable, Plaintiffs also do not meet their burden of showing
Rule 23(a)(1) numerosity. They offer only conclusory assumptions on this element—they “assum[e]
an even distribution among active message users worldwide,” and speculate that “as many as tens of
millions of [putative class] members exist in the United States.” (Mot. at 11–12.) But “Rule 23 does
not set forth a mere pleading standard,” Dukes, 131 S. Ct. at 2551, and assumptions and speculation
are cannot satisfy numerosity. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 597 (3d Cir. 2012) (by
relying on “common sense,” district court “crossed the line separating inference and speculation,”
“[g]iven the complete lack of evidence” of numerosity); Davis v. Astrue, 250 F.R.D. 476, 486 (N.D.
[Footnote continued on next page]
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Case No. C 13-05996 PJH

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B.

Plaintiffs And Their Counsel Are Not Adequate Under Rule 23(a)(4)

2

Rule 23(a)(4) also requires that “the representative parties will fairly and adequately protect the

3

interests of the class,” and class representatives have a strict fiduciary duty to represent and protect the

4

interests of absent class members, Hansberry v. Lee, 311 U.S. 32, 43 (1940). This factor is paramount

5

in a class action, because in order “[t]o satisfy constitutional due process concerns, unnamed class

6

members must be afforded adequate representation before entry of a judgment which binds them.”

7

Soto v. Commercial Recovery Sys., Inc., No. 09-2842-PJH, 2011 WL 6024514, at *6 (N.D. Cal.

8

Dec. 5, 2011). Plaintiffs and their counsel are inadequate for several reasons.

9

1. This Lawsuit Was Initiated And Is Driven By Class Counsel. Plaintiffs admitted that

10

interim class counsel recruited them to bring this action and none of them contemplated suing

11

Facebook before speaking with counsel. (App. 391-92, 485-87, 507-08.) As another court in this

12

District observed, “such a ‘cart before the horse’ approach to litigation is not the proper mechanism for

13

the vindication of legal rights.” Bodner v. Oreck Direct, LLC, No. 06-4756-MHP, 2007 U.S. Dist.

14

LEXIS 30408, at *5–6 (N.D. Cal. Apr. 25, 2007) (“It is clear from the record that plaintiff’s counsel,

15

and not plaintiff, is the driving force behind this action.”). Plaintiffs have

16

let counsel direct the course of the litigation, and have not been involved in strategy

17

and decision-making. (App. 398-400, 403, 454-55, 544.) These facts alone warrant denial of the

18

Motion. See, e.g., In re Facebook, Inc., PPC Adv. Litig., 282 F.R.D. 446, 454 (N.D. Cal. 2012);

19

Sanchez v. Wal-Mart Stores, Inc., No. 06-02573, 2009 WL 1514435, at *3 (E.D. Cal. May 28, 2009);

20

Welling v. Alexy, 155 F.R.D. 654, 659 (N.D. Cal. 1994).

21

2. Plaintiffs’ Close Relationships With Class Counsel. Plaintiffs’ close relationships with

22

class counsel also undermine their independence as class representatives. In fact, all of the Plaintiffs

23

were recruited to join this lawsuit by their longtime friends:

24
25
26
27
28

[Footnote continued from previous page]
Cal. 2008) (plaintiff “failed to put forth non-speculative evidence of the number of members included
in the proposed class”); Schwartz v. Upper Deck Co., 183 F.R.D. 672, 681–82 (S.D. Cal. 1999) (“Mere
speculation as to satisfaction of this numerosity requirement does not satisfy Rule 23(a)(1).”).
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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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Several courts have held that these close relationships render the named plaintiffs inadequate.
See, e.g., Bohn v. Pharmavite, LLC, No. 11-10430, 2013 WL 4517895, at *3 (C.D. Cal. Aug. 7, 2013);
Moheb v. Nutramax Labs. Inc., No. 12-3633, 2012 WL 6951904, at *5 (C.D. Cal. Sept. 4, 2012);
London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1255 (11th Cir. 2003).

9

3. Counsel’s Mistreatment Of Shadpour. Finally, counsel’s mistreatment of former plaintiff

10

Shadpour “creates a serious doubt that counsel will represent the class loyally [and] requires denial of

11

class certification.” Kulig v. Midland Funding, LLC, No. 13-4715, 2014 U.S. Dist. LEXIS 137254,

12

at *8–9 (S.D.N.Y. Sept. 26, 2014). During the deposition that Plaintiffs’ counsel actively sought to

13

prevent (see Dkt. 89, 94, 96, 105), Mr. Shadpour testified that:

14
15
16
17
18
19
20
21
22
23
24
Plaintiffs’ counsel will cite Mr. Shadpour’s dismissal from the case (see Dkt. 123), but this

25
26

dismissal resulted from his

27

putative class representatives remains relevant to the certification inquiry.9 Rule 23(g)(1)(B)

28
Gibson, Dunn &
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9

with interim class counsel, and evidence from dismissed

See, e.g., Dysthe v. Basic Res. LLC, 273 F.R.D. 625, 629–30 (C.D. Cal. 2011) (even if plaintiff’s
[Footnote continued on next page]
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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authorizes the Court to “consider any other matter pertinent to counsel’s ability to fairly and

2

adequately represent the interests of the class,” and the misconduct here should disqualify counsel

3

from representing any putative class in this action. Fed. R. Civ. P. 23(g)(1)(B).

4

C.

Plaintiffs Have Not Met Their Burden To Show Common Legal Or Factual Issues

5

As this Court explained, “[w]hat matters to class certification … is not the raising of common

6

‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common

7

answers apt to drive the resolution of the litigation.” Daniel F. v. Blue Shield of Cal., 305 F.R.D. 115,

8

126 (N.D. Cal. 2014) (quoting Dukes, 131 S. Ct. at 2551). Plaintiffs “must pose a question that ‘will

9

produce a common answer to the crucial question’” in the litigation. Ellis v. Costco Wholesale Corp.,

10

657 F.3d 970, 981 (9th Cir. 2011); Dukes, 131 S. Ct. at 2551 (the “common contention … must be of

11

such a nature that it is capable of class wide resolution—which means that determination of its truth or

12

falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”). All

13

of the variability discussed above defeats any finding of commonality here. See, e.g., Thomasson v.

14

GC Servs. Ltd. P’ship, 539 F. App’x 809, 810 (9th Cir. 2013) (reversing certification order for lack of

15

commonality, because “[t]o establish the claim at issue here [alleged monitoring of phone calls

16

without consent] would require an individualized inquiry into hundreds of phone calls in order to

17

determine whether and when any warning was given in each call”).

18

Plaintiffs’ Motion does not bother to identify any questions that will produce common answers

19

apt to drive the resolution of this lawsuit. Instead, Plaintiffs rely on Facebook’s portion of a Joint

20

Case Management Statement filed in March 2015, and contend (falsely) that Facebook has conceded

21

that there are “common” questions in this case. (Mot. at 12 & n.45 (“In the Joint Case Management

22

Conference Statement, Facebook itself identifies relevant common issues which track the elements to

23

establish Facebook’s violations of ECPA and CIPA.”).) Alleged statements in a case management

24

statement, however, do not satisfy Plaintiffs’ burden. See, e.g., Dukes, 131 S. Ct. at 2551 (moving

25
26
27
28

[Footnote continued from previous page]
claims are dismissed, “[h]is testimony regarding his experience … is … highly likely to be relevant to
class certification issues, including commonality and the typicality of the class representative’s claims,
even if he no longer wishes to be burdened with this litigation”); Jones v. ConAgra Foods, Inc., No. 121633-CRB (MEJ), 2013 U.S. Dist. LEXIS 99336, at *4–5 (N.D. Cal. July 16, 2013) (same); Fraley v.
Facebook, Inc., No. 11-1726-LHK, 2012 WL 555071, at *3 (N.D. Cal. Feb. 21, 2012) (same).
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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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party must “affirmatively … prove” commonality; “Rule 23 does not set forth a mere pleading

2

standard”). But more importantly, Plaintiffs affirmatively misstate Facebook’s portion of the Joint

3

Statement. At no point did Facebook concede that Plaintiffs’ claims are amenable to common proof;

4

to the contrary, Facebook stated repeatedly that this action is not appropriate for class treatment.

5

(Dkt. 60 at 5 (“Finally, putting the merits to the side, no class could be certified here for several

6

reasons …”); id. at 6 (“Plaintiffs’ claims are … not amenable to class certification”).) Plaintiffs’

7

citations relate to the portion of the Joint Statement about Facebook’s anticipated merits and summary

8

judgment defenses (which would be directed against the named Plaintiffs based upon the facts

9

applicable to each), and the issues that this Court was unable to resolve on the pleadings.
Plaintiffs hint that whether allegedly unlawful “interceptions” and “uses” occurred may be

10
11

common questions (Mot. at 12–13), but they are mistaken on both counts:

12

First, Plaintiffs identify several purported “interceptions,” but these “interceptions” did not

13

occur in all cases, nor did they apply uniformly. For any particular Facebook message, it would be

14

necessary to determine whether

15
16

(Id. 151626, 1972-77; see also Dkt. 138-4 at 25-30.)

17

Second, it is impossible to determine on a classwide basis (to the extent it can be determined at

18

all) whether the various “uses” Plaintiffs allege of shared URLs occurred in any given case. Dr.

19

Golbeck admitted that

20

would be necessary (although still insufficient) (supra pp. 12-13).

21
22
23
24
25

VII.
A.

(id. 1337), and a message-by-message inquiry

PLAINTIFFS CANNOT SATISFY THE REQUIREMENTS OF RULE 23(b)(3)

Individualized Factual And Legal Issues Regarding Liability Predominate Over Any
Alleged “Common” Issues (Which Plaintiffs Do Not Identify)
To satisfy Rule 23(b)(3), Plaintiffs must demonstrate that the alleged common questions are “a

significant aspect of the case … [that] can be resolved for all members of the class in a single
adjudication.” Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014) (quoting Hanlon

26
v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998)). Individualized inquiries surround each issue
27

that Plaintiffs identify (Mot. at 15–22), defeating any finding of “predominance” here:

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1. Implied Consent. The class action procedure cannot be used to abrogate Facebook’s due

1
2

process right “to litigate its statutory defenses to individual claims.” Dukes, 131 S. Ct. at 2561. As the

3

Court recognized (Dkt. 43 at 14), express or implied consent is a complete defense to a claim under

4

the Wiretap Act and CIPA. See 18 U.S.C. § 2511(2)(d); Cal. Penal Code § 631(a). But to determine

5

whether an individual putative class member impliedly consented to the alleged practice will require a

6

highly specific, class member-by-class member inquiry.

7

This barrier is one of the reasons why no court anywhere has agreed to certify a Rule 23(b)(3)

8

class in these “message scanning” lawsuits. As Judge Koh held in Gmail, “[i]mplied consent is an

9

intensely factual question that requires consideration of the circumstances surrounding the interception

10

to divine whether the party whose communication was intercepted was on notice that the

11

communication would be intercepted.” In re Gmail Litig., No. 13-02430-LHK, 2014 WL 1102660,

12

at *16 (N.D. Cal. Mar. 18, 2014).10 Here, as in Gmail, “[s]ome Class members likely viewed some

13

[Facebook and non-Facebook] disclosures, but others likely did not.” Id. at *18. To differentiate, “[a]

14

fact-finder … would have to evaluate to which of the various sources each individual user [i.e.,

15

individuals who sent and received Facebook messages with URLs] had been exposed and whether

16

each individual ‘knew about and consented to the interception’ based on the sources to which she was

17

exposed.” Id. This analysis “will lead to numerous individualized inquiries that will overwhelm any

18

common questions.” Id. As in Gmail, there are a “panoply of sources” from which people who sent

19

or received Facebook messages would have learned of the challenged conduct:

20
21
22
23
24
25
26
27
28

10

See also Backhaut v. Apple, Inc., No. 14-2285-LHK, 2015 WL 4776427, at *14 (N.D. Cal.
Aug. 13, 2015) (“[I]ndividualized issues with respect to consent would predominate” because
“proposed class members could have been put on notice of the alleged interceptions from Defendant’s
own disclosures, numerous online postings and websites, or third-party news articles.”); Murray v.
Fin. Visions, Inc., 2008 WL 4850328, at *4 (D. Ariz. Nov. 7, 2008) (“The question of consent, either
express or implied, is often a fact-intensive inquiry and may vary with the circumstances of the
parties.”); see also Gannon v. Network Tel. Servs., No. 13-56813, 2016 WL 145811, at *1 (9th Cir.
Jan. 12, 2016) (“The district court appropriately determined that it would be extremely difficult to
ascertain the identities of the individuals who had not consented to receive the messages.”).
Plaintiffs reach out-of-circuit to cite Silbaugh v. Viking Magazine Servs., 278 F.R.D. 389, 393 (N.D.
Ohio 2012) (Mot. at 19), but that case did not involve the Wiretap Act, CIPA, or “implied consent”
issues, and the defendant “admitted at deposition that he did not have consent from any person” and
that he did not “take steps to confirm that consent was made.” Likewise, Ades v. Omni Hotels, No. 1302468, 2014 WL 4627271 (C.D. Cal. Sept. 8, 2014) (Mot. at 13, 19), distinguished Gmail on the basis
that the defendant also did not have any evidence of consent. Id. at *12. Gmail is on point here.
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

“First, Class members could have learned of the interceptions from various [Facebook]

1
2

sources.” Id. at *17. As early as March 7, 2011, Facebook’s publicly-available developer guidance

3

disclosed that the number shown next to a “Like” button “is the sum of” several items, including “[t]he

4

number of inbox messages containing this URL as an attachment.” (App. 141 (emphasis added).)

5
6
“Second, Class members may have learned about the alleged interceptions from various media

7
8

sources” (Gmail, 2014 WL 1102660, at *17), including the 77 sources Facebook produced regarding

9

alleged message “scanning” (or variations of it) from 2009 to 2013. These sources, which do not even

10

include media coverage of the instant lawsuit, are summarized in Exhibits F-K (App. 39-376).11 As in

11

Gmail, “[s]ome Class members likely viewed some of these [Facebook] and non-[Facebook]

12

disclosures, but others likely did not.” Id. at *18.

13
Third, the “URL preview” alerted people before a message was sent that the URL had been

14
15

“processed,” providing further evidence of implied consent. (App. 1514.) This is especially true

16

given that the new class definition includes only messages that generated “URL attachments” (Mot.

17

at 10), which never occurred without URL previews.

18
19
20
21

The preview also appears in their inboxes after send, and they are therefore on notice that
the preview was stored by Facebook.

22

Fourth, by re-defining the putative class to extend to the present day (Mot. at 10), rather than

23

2012 (see Dkt. 25 ¶ 59 n.3), Plaintiffs have included even more individuals (including themselves)

24

who knew about the challenged practices and continued to send Facebook messages. By definition,

25
26
27
28

Facebook produced these documents at the outset of discovery, belying Plaintiffs’ assertion that
“Facebook has not produced relevant evidence from which actual notice can be reasonably implied.”
(Mot. at 19:12–13.) In any event, it is Plaintiffs’ burden on this Motion to show common proof; not
Facebook’s burden to prove a lack of common evidence of implied consent. See Dukes, 131 S. Ct.
at 2551; Doninger, 564 F.2d at 1312.
11

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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

the proposed class includes people who were aware of the alleged practices and continued to use

2

Facebook’s messaging service, evidencing their consent. See, e.g., Mortensen v. Bresnan Commc’n,

3

L.L.C., No. 10-13, 2010 WL 5140454, at *4–5 (D. Mont. Dec. 13, 2010). Plaintiffs contend that the

4

challenged practices made “national news” (Dkt. 31 at 3) when “exposed by The Wall Street Journal

5

in early October 2012” (Mot. at 9; Dkt. 25 ¶ 39). See Gmail, 2014 WL 1102660, at *7, *17 (consent

6

can be implied from “various media sources,” and citing “media coverage of the instant … and related

7

litigation”).

8
9
10

Fifth, in addition to assessing whether each Plaintiff and each putative class member

11

consented, “the ultimate merits inquiry [also] requires … consideration of whether … their

12

correspondents consented.” Gmail, 2014 WL 1102660, at *14. Plaintiffs’ technical expert (Dr.

13

Golbeck) conceded that users of social media have “vastly different understandings” regarding the

14

collection and processing of their data; she agreed that it is “true that there [are] varying levels of

15

understanding that people have on how that works.” (App. 1092a-92b.)

16
17
18
19
20
21

Plaintiffs offer no basis—and there is none—for
presuming that these people did not consent.12
Plaintiffs also assert that they “will present common evidence that rather than disclose its
practices …, Facebook actively sought to conceal its practices from users” (Mot. at 20:5–7), but they
have not offered that evidence in support of their Motion, as they were required to do. And more
importantly, these accusations are false. Plaintiffs have taken documents out of context to mislead the
Court:
12

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25
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Moreover, in response to the October 2012 Wall Street Journal blog post,
Facebook explained that “the system is working as expected. ‘Many websites that use Facebook’s
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21
DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

In sum, “[a] fact-finder, in determining whether Class members impliedly consented, would

2

have to evaluate … whether each individual ‘knew about and consented to the interception’ based on

3

the sources to which she was exposed.” Gmail, 2014 WL 1102660, at *18, 21 (denying certification).

4

2. Elements Of Wiretap Act/CIPA Claims. Next, Plaintiffs contend that the elements of their

5

Wiretap Act and CIPA claims are subject to “common” proof. (Mot. at 16–18.) Once again, their

6

conclusory assertions fail to meet their burden. See Dukes, 131 S. Ct. at 2551; Doninger, 564 F.2d

7

at 1312. Notably, the only case that Plaintiffs cite in support of their argument—In re Yahoo Mail

8

Litig., 308 F.R.D. 577 (N.D. Cal. 2015)—involved Rule 23(b)(2), and not Rule 23(b)(3). As the

9

Supreme Court has explained, Rule 23(b)(3)’s predominance criterion is “even more demanding than

10

Rule 23(a).” Comcast, 133 S. Ct. at 1432. Plaintiffs also ignore that the same District Court (Judge

11

Koh) rejected an attempt to certify a Rule 23(b)(3) class for Wiretap Act/ CIPA claims for lack of

12

predominance. See Gmail, 2014 WL 1102660, at *10. Plaintiffs cannot show predominance here:

13

First, their conclusory claim that “proof of the elements of [the Wiretap Act] and CIPA is

14

necessarily common because it will focus upon Facebook’s uniform conduct” (Mot. at 12) ignores the

15

individualized inquiries necessary to determine who was exposed to the challenged practices. (Supra

16

pp. 11–13.) See Lightbourne v. Printroom Inc., 307 F.R.D. 593, 602 (C.D. Cal. 2015) (the need to

17

conduct a “photo-by-photo inquiry” “weigh[ed] against a finding of predominance”).

18

Second, the Wiretap Act requires the “interception” of the “contents” of a communication. 18

19

U.S.C. § 2511(1). The Ninth Circuit has held that “contents” means “a person’s intended message to

20

another (i.e., the ‘essential part’ of the communication, the ‘meaning conveyed,’ and the ‘thing one

21

intends to convey’).” In re Zynga Privacy Litig., 750 F.3d 1098, 1106 (9th Cir. 2014). Plaintiffs

22

assume, without evidence or authority, that URLs are “contents” (Mot. at 17:6), but courts have held

23

the opposite—with some limited, individualized exceptions such as when the URL is the subject of the

24

communication, is “the intended message conveyed,” or has identifiable embedded terms that reveal

25

the substance, purport, or meaning of the communication. See, e.g., Zynga, 750 F.3d at 1107; In re

26
27
28

[Footnote continued from previous page]
‘Like’, ‘Recommend’, or ‘Share’ buttons also carry a counter next to them. The counter reflects the
number of times people have clicked these buttons and also the number of times people have shared
that page’s link on Facebook,’ including over private messages.” (Id. 123.) (All emphases added).
22

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Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

at 1432–34. In Daniel F., this Court denied class certification and criticized the plaintiff for not

2

“offering any proof that damages can be calculated on a classwide basis” and “suggest[ing] that any

3

inquiry into damages is irrelevant, citing Leyva v. Medline Indus., 716 F.3d 510, 513 (9th Cir. 2013),

4

for the proposition that ‘damages calculations alone cannot defeat certification.’” 305 F.R.D. at 130.14

5

Plaintiffs cite the same authority and make the same improper argument here (Mot. at 21), and they

6

have not carried their burden of establishing a reliable, classwide damages methodology:

7

First, at best, they assert that “[a] reasonable value to Facebook of the intercepted content can

8

be assigned on a per URL basis, and can be allocated to class members on that basis” (id. at 22, citing

9

Torres Report ¶ 60 (emphases added)). Aside from the factual problems with this theory, Plaintiffs

10

must submit a capable model now, not later. Daniel F., 305 F.R.D. at 130. They did not do so.
Second, Mr. Torres focuses exclusively on alleged “benefits to Facebook” (id.), a remedy that

11
12

is not available under the Wiretap Act or CIPA.15 For example, in DirecTV, Inc. v. Huynh, No. 04-

13

3496-CRB, 2005 WL 5864467 (N.D. Cal. May 31, 2005), aff’d, 503 F.3d 847 (9th Cir. 2007), Judge

14

Breyer noted that under the Wiretap Act, “Defendant’s benefit is a poor measure of plaintiff’s actual

15

losses.” Id. at *7. Thus, even if “benefits to a defendant” were “an appropriate measure of actual

16

damages, the Court would still be relying on speculation regarding the amount,” which is “not well-

17

supported.” Id. This flaw undermines Mr. Torres’s entire report.

18

Third, Plaintiffs’ damages model must “measure only those damages attributable to” their

19

liability theory, Comcast, 133 S. Ct. at 1433–34, but Mr. Torres’s first methodology regarding the

20

“Social Graph” (which is just a synonym for a social network) has nothing to do with the practices at

21

issue in this case. Although Mr. Torres devotes a third of his report to this theory (Dkt. 137-8, ¶¶ 35–

22

60), he admitted in his deposition that the value of the Social Graph “is not the amount of damages,”

23
24
25
26
27
28

14

Likewise, in Astiana, 2014 WL 60097, at *13, this Court denied certification—even though
“plaintiff may have established that common questions predominate with regard to some elements of
some of the claims”—because “[m]ore importantly, [plaintiff’s] failure to offer a damages model that
is capable of measurement across the entire class for purposes of Rule 23(b)(3) bars her effort to
obtain certification of the class.” See also In re Facebook PPC, 282 F.R.D. at 459, 461 (same;
analyzing under the superiority prong).
15
Plaintiffs would be entitled to only three types of monetary relief if they prevailed on their claims:
(1) statutory damages, (2) actual damages, and/or (3) “profits” made by Facebook as a result of the
alleged violation of the Wiretap Act. See 18 U.S.C. § 2520(b)–(c); Cal. Penal Code § 632.7(a).
24

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

and that he has not even calculated alleged damages to the putative class. (App. 1074-76.) He also

2

deferred repeatedly on questions about Facebook functionality to Plaintiffs’ “technical” expert (Dr.

3

Golbeck), who conceded that

4
Fourth, even the section of Mr. Torres’s report that is loosely related to Plaintiffs’ claims in

5
6

this case—alleged incrementing of the social plugin counter—succeeds only in confirming the

7

individualized inquiries that render this case inappropriate for class treatment. For example, Mr.

8

Torres testified that if Coca-Cola’s social plugin counter is at 500,000 and it experiences an increment

9

of 1 or 2, “that is a miniscule less than a 1%” increase, and Coca-Cola “won’t be as influenced or as

10

impressed by the increase” as a company with a smaller count. (Id. 1047-48.) His expert report

11

ignores several other individualized issues, including: (1) the economic difference between an

12

individual (i) affirmatively clicking the “Like” button social plugin, and (ii) sending a URL in a

13

message (which at most only may have incremented the counter) (id. 2051-53); (2) that “each Like can

14

be leveraged in different ways so it’s valued differently” (id. 1078-79); (3) the difficulty in

15

determining whether a URL actually incremented the counter, which according to Mr. Torres would

16

require a sampling of “thousands” of individuals’ messages (id. 1083-84); and (4) the different

17

amounts (if any) that each third-party website (or “Marketer”) would be willing to pay to Facebook for

18

advertising (id. 2048-51). Nor may Plaintiffs cure these deficiencies. As explained in the expert

19

rebuttal report of Dr. Catherine Tucker of MIT’s Sloan School of Management, Mr. Torres makes no

20

effort to account for people who were unharmed by the alleged practice or who have actually

21

benefitted from it. (App. 3054.)16

22

2. Statutory Damages. Plaintiffs have not even attempted to argue, much less prove, that an

23

award of statutory damages here would meet Rule 23(b)(3) requirements. Nor can they—in deciding

24

whether to award statutory damages under the Wiretap Act, courts consider several factors: “(1) the

25
16

26
27
28

See, e.g., Pecover v. EA Inc., No. 08-2820 VRW, 2010 WL 8742757, at *9 (N.D. Cal. Dec. 21,
2010) (“A class cannot be certified if class members benefit from the same acts alleged [by plaintiffs]
to be harmful to other members of the class.”); Allied Orthopedic Appl., Inc. v. Tyco Health. Grp. LP,
247 F.R.D. 156, 177 (C.D. Cal. 2007) (“[N]o circuit approves of class certification where some class
members derive a net economic benefit from the very same conduct alleged to be wrongful by the
named representatives of the class, let alone where some named plaintiffs derive such a benefit.”).
25

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

severity or minimal nature of the violation; (2) whether there was actual damage to the victim; (3) the

2

extent of any intrusion into the victim’s privacy; (4) the relative financial burdens of the parties;

3

(5) whether there was a reasonable purpose for the violation; and (6) whether there is any useful

4

purpose to be served by imposing the statutory damages amount.” Dish Network LLC v. Gonzalez,

5

No. 13-107, 2013 WL 2991040, at *8 (E.D. Cal. June 14, 2013), rec. adopted by, 2013 WL 4515967

6

(E.D. Cal. Aug. 26, 2013). Each of these factors turns on individualized issues: (a) Plaintiffs testified

7

that they have not suffered financial harm and many of the putative class members benefited from

8

Facebook (App. 381-85, 4 15,482, 524, 1378-1380, 1414-18); (b) “the extent of any [alleged]

9

intrusion” will vary dramatically based on the number of Facebook messages each putative class

10

member sent or received with URL attachments (compare App. 575-688 (

11

) with id. 707-08 (

12

); (c) the use of

URL previews is

13

beneficial, for the reasons noted above (supra p. 7); and (d) whether “any useful purpose [would] be

14

served by imposing the statutory damages amount” will vary from message-to-message (see

15

App. 2016-28 (explaining that many putative class members were unaffected and others benefited

16

from the alleged practices)).

17

Moreover, permitting a class action where the aggregated statutory damages would result in an

18

excessive and disproportionate penalty (as it certainly would here, where no one was harmed), would

19

raise due process concerns. See Kline v. Coldwell, Banker & Co., 508 F.2d 226, 235 (9th Cir. 1974);

20

State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) (due process requires that a

21

punitive award “have a nexus to the specific harm suffered by the plaintiff”); see also Fraley v.

22

Facebook, Inc., No. 14-15595, 2016 U.S. App. LEXIS 518, at *5 (9th Cir. Jan. 6, 2016) (noting that

23

statutory penalty of $750 per class member “could implicate due process concerns”); but see Bateman

24

v. AMC, Inc., 623 F.3d 708, 711 (9th Cir. 2010).17

25
17

26
27
28

See also Serna v. Big A Drug Stores, Inc., No. 07-276, 2007 WL 7665762, at *5–6 (C.D. Cal.
Oct. 9, 2007) (distinguishing Murray v. GMAC Mortg. Corp., 434 F.3d 948 (7th Cir. 2006) (cited in
Mot. at 21–22), on the ground that its approach of deferring constitutional impediments improperly
creates exorbitant settlement pressures on the defendant); see also Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1465 n.3 (2010) (“[A] court’s decision to certify a class ...
places pressure on the defendant to settle even unmeritorious claims.”) (Ginsburg, J., dissenting).
26

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

3. The Court Should Exclude Mr. Torres’s Expert Opinion. Pursuant to Local Rule 7-3(a),

1
2

the Court should strike Mr. Torres’s report for several reasons. See Fed. R. Evid. 702; Daubert v.

3

Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).

4

First, his entire methodology should be excluded as incomplete. Supra p. 24; see, e.g.,

5

Building Ind. Ass’n of Wash. v. WSBCC, 683 F.3d 1144, 1154 (9th Cir. 2012) (excluding incomplete

6

damages report); In re ConAgra Foods, Inc., 302 F.R.D. 537, 552–53 (C.D. Cal. 2014) (same).18
Second, Mr. Torres’s proposed methodology improperly focuses on alleged “benefits to

7
8

Facebook” (App. 1035-36, 1042, 1080), which is not an available remedy under the Wiretap Act or

9

CIPA. This is not the first time Mr. Torres offered a legally unsupported and improper damages

10

model. See, e.g., Hebrew Univ. of Jerusalem v. GM, No. 10-03790, 2012 WL 12507522, at *5–6

11

(C.D. Cal. May 31, 2012) (striking Mr. Torres’s expert opinion as unreliable and lacking academic

12

support).

13

Third, Mr. Torres’s flawed methodology also purports to address many practices that are not

14

challenged in the complaint, such as the “Social Graph” (Dkt. 137-8, ¶¶ 35–60), and once again, his

15

opinions have been called into question on this basis. In re Google, Inc. Privacy Policy Litig., No. 12-

16

001382-PSG, 2015 WL 4317479, at *5 (N.D. Cal. July 15, 2015) (“There is just one problem with

17

Torres’s various conclusions: they are not reflected anywhere in the [operative complaint].”).

18

Fourth, Mr. Torres’s exclusion of research and development costs from his damages model is

19

inconsistent with generally accepted valuation standards, and inflates his damages number by several

20

billion dollars. (App. 2044-47.) His methods also are unreliable under Rule 702(d), judging by the

21

math error in his report. (Id. 1051-64, 2044-45.)

22
23
24
25
26
27
28

18

To complete his analysis, Mr. Torres testified that he needs data that Plaintiffs have not requested
in discovery (App. 9-11, 1029, 1066)—even though they successfully moved to compel very broad
discovery on the basis that it was “critical to establishing” their damages theory, and that “expert
analysis of the [] information sought” would allow them to “accurately model the profits attributable to
the challenged conduct.” (Dkt. 112; Dkt. 130 at 12–13 (crediting these claims in granting “broader
discovery to be able to establish a model or methodology for class-wide relief”).) But their expert now
needs different information to complete his work. This Court should not entertain such a belated
request. See, e.g., In re Graphics Processing Units Antitrust Litig., 253 F.R.D. 478, 506 (N.D. Cal.
2008) (“After eight months of discovery, plaintiffs should have the data to formulate their regression
analyses with more precision,” and they “should be able to provide more than promises at this late
stage of the litigation”).
27

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1

VIII. PLAINTIFFS CANNOT CERTIFY AN ALTERNATE RULE 23(b)(2) CLASS

2

Plaintiffs’ alternative request for a Rule 23(b)(2) class for injunctive relief, which they relegate

3

to a lone paragraph at the end of their brief (Mot. at 24:10–25), also fails for several reasons.

4

A.

5

Injunctive Relief Would Not Impact All Class Members The Same Way
Rule 23(b)(2) certification is permitted only if there is an “indivisible” class and a “single

6

injunction or declaratory judgment would provide relief to each member of the class.” Dukes, 131

7

S. Ct. at 2557. Indeed, “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or

8

declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared

9

unlawful only as to all of the class members or as to none of them.” Id. (emphasis added; quotation

10

omitted). That is not the case here, where individual proof will show that many putative class

11

members impliedly consented to the challenged practices. (Supra pp. 19–22.) A practice to which

12

some percentage of putative class members consented, and to which some unknown percentage of

13

putative class members allegedly did not consent cannot be enjoined or declared unlawful “as to all of

14

the class members or as to none of them.” Dukes, 131 S. Ct. at 2557 (“In other words, Rule 23(b)(2)

15

applies only when a single injunction or declaratory judgment would provide relief to each member of

16

the class. It does not authorize class certification when each individual class member would be

17

entitled to a different injunction or declaratory judgment against the defendant.”).

18

Moreover, where “it isn’t clear that all members of the class feel the same way” about a

19

proposed injunction, “[s]uch injunctive relief for all class members, without notice and the right to opt-

20

out, would raise due process concerns.” Schulken v. Wash. Mut. Bank, No. 09-02708-LHK, 2012 WL

21

28099, at *6 (N.D. Cal. Jan. 5, 2012). There is little doubt that many members of the proposed class

22

here welcome the routine practices challenged here. By way of example, after The Wall Street Journal

23

blog post, one author wrote that Facebook’s practices were not a “privacy invasion” and that “[t]here

24

is no reason for anyone to be upset about Facebook doing this.” (Id. 180-84.) The author observed

25

that “e-mail providers like Gmail scan user e-mails all the time … to show relevant ads, fight spam,

26

and slow down viruses,” and “services across the Internet use whatever method they can to keep track

27

of the popularity of Webpages. Google has a list of trends. The New York Times keeps track of the

28

most e-mailed stories.” (Id. 182-83.) “The truth is, there is nothing to see here. Move along.” (Id.)
28

Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

1
2

Underscoring the point further, the named Plaintiffs and putative class members deposed in
this case themselves disagreed about the appropriate scope of message “scanning” (App. 17):

3
4
5
6
7
8
9
10
11
12
13
14
15

This is only a few opinions from putative class members, but it confirms that a “single injunction”

16

would not impact the class the same way. Schulken, 2012 WL 28099, at *6.

17

B.

The Primary Relief Sought By Plaintiffs Is Monetary Relief, Not Injunctive Relief
“Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is

18
19

declaratory or injunctive.” Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001);

20

Moeller v. Taco Bell Corp., No. 02-5849 PJH, 2012 WL 3070863, at *4 (N.D. Cal. July 26, 2012)

21

(same); see also Dukes, 131 S. Ct. at 2557 (Rule 23(b)(2) “does not authorize class certification when

22

each class member would be entitled to an individualized award of monetary damages.”). Here,

23

Plaintiffs seek a massive damages award, rendering Rule 23(b)(2) treatment inappropriate.
Further, when plaintiffs seek both damages and injunctive relief—as here, but unlike in Yahoo

24
25

(Mot. at 24)—certification under Rule 23(b)(2) is improper unless plaintiffs demonstrate that “[they]

26

would have brought suit to obtain the injunctive relief they seek even if they could not obtain a money

27

recovery.” Kavu v. Omnipak Corp., 246 F.R.D. 642, 649 (W.D. Wash. 2007) (emphasis added).19

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Gibson, Dunn &
Crutcher LLP

19

See also Connelly v. Hilton Grand Vacations Co., 294 F.R.D. 574, 579 (S.D. Cal. 2013) (because
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DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH

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Actions speak louder than words, and by continuing to send Facebook messages containing URLs

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(App. 386-87),

made clear that he has no interest in injunctive relief.20

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illustrating that a plaintiff-by-plaintiff inquiry would be necessary, and that certification of a (b)(2)

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class would be inappropriate here.

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also calls into question his standing under Article III to seek injunctive relief,
see, e.g., O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974), creating another individualized inquiry.21

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IX.

CONCLUSION

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Plaintiffs cannot certify a class in this action because there is significant variability surrounding

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the challenged practices and Plaintiffs’ (and putative class members’) experiences with these practices,

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and Plaintiffs have failed to carry their evidentiary burden to establish any of the Rule 23

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requirements. Facebook respectfully requests that the Court deny Plaintiffs’ Motion.

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Dated: January 15, 2016

Respectfully submitted,

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GIBSON, DUNN & CRUTCHER LLP

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By:

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/s/
Christopher Chorba

Attorneys for Defendant FACEBOOK, INC.

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[Footnote continued from previous page]
“each plaintiff is independently entitled to statutory damages … Plaintiffs’ TCPA claims are ineligible
for Rule 23(b)(2) certification, regardless of Plaintiffs’ parallel request for injunctive relief.”) (citing
Dukes, 131 S. Ct. at 2557); Ries v. Arizona Bevs. USA LLC, 287 F.R.D. 523, 541 (N.D. Cal. 2012)
(“[A]lthough the monetary amount sought may be small per class member, in the aggregate they can
hardly be said to be incidental to the injunctive relief sought.”); Mahfood v. QVC, Inc., No. 06-0659,
2008 WL 5381088, at *3–4 (C.D. Cal. Sept. 22, 2008) (same).
20
See, e.g., Algarin v. Maybelline, LLC, 300 F.R.D. 444, 459–60 (S.D. Cal. 2014) (requested
monetary relief was “not ‘incidental’” and plaintiffs “cannot possibly benefit from injunctive relief as
they are now (or at least should be) fully knowledgeable” of the challenged practice; thus, “monetary
relief is necessarily their ‘primary concern’”); Gonzales v. Comcast Corp., No. 10-1010, 2012 WL
10621, at *17 (E.D. Cal. Jan. 3, 2012) (rejecting Rule 23(b)(2) certification because former customers
“have no interest in the requested injunctive relief” and therefore “[t]he monetary claims are [] the
only claims at issue” for them, and because “individual class members’ damages would differ from
one another” and “will necessarily require ‘individualized determinations’”), rec. adopted by 2012
U.S. Dist. LEXIS 7271 (E.D. Cal. Jan. 23, 2012).
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Facebook also reserves its rights pursuant to Robins v. Spokeo, Inc., cert granted, 135 S. Ct. 1892
(2015), and Bouaphakeo v. Tyson Foods Inc., cert granted, 135 S. Ct. 2806 (2015).
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Gibson, Dunn &
Crutcher LLP

DEFENDANT FACEBOOK, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Case No. C 13-05996 PJH