Campbell et al v. Facebook Inc.

Filing 230

Statement in Support re 227 MOTION for Preliminary Approval of Class Action Settlement by Facebook Inc.. (Attachments: # 1 Exhibit 1)(Jessen, Joshua) (Filed on 4/12/2017) Modified on 4/13/2017 (vlkS, COURT STAFF).

1
2
3
4
5
6
7

GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
[e-mail]
JEANA BISNAR MAUTE, SBN 290573
[e-mail]
ASHLEY M. ROGERS, SBN 286252
[e-mail]
1881 Page Mill Road
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]

10

GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER CHORBA, SBN 216692
[e-mail]
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]

11

Attorneys for Defendant Facebook, Inc.

8
9

12
13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

OAKLAND DIVISION

16

MATTHEW CAMPBELL and MICHAEL
HURLEY,

17
Plaintiffs,
18

Case No. C 13-05996 PJH-SK
CLASS ACTION
FACEBOOK’S STATEMENT IN SUPPORT
OF PLAINTIFFS’ MOTION FOR
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT

v.
19
FACEBOOK, INC.,
20
Defendant.
21
22
23

Hearing
Date: April 19, 2017
Time: 9:00 a.m.
Judge: Hon. Phyllis J. Hamilton
Place: Courtroom 3, 3rd Floor

24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

FACEBOOK’S STATEMENT IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
Case No. 13-05996 PJH-SK

1
2
3
4
5

Defendant Facebook, Inc. supports Plaintiffs’ request for preliminary approval (Dkt. 227) of
the proposed class settlement as fair, reasonable, and adequate.
Among other relief provided by the Settlement Agreement, Facebook confirmed that the three
practices at issue in the case had ceased (as well as the dates of cessation):
(1)

next to the “Like” button on third-party web pages (December 2012),

6
7

including counts of shares of links in messages in the anonymous, aggregate counts

(2)

including counts of shares of links in messages (and related demographic information

8

regarding senders of such messages) in the anonymous, aggregate counts in its

9

“Insights” interface (October 2012), and

10

(3)

considering anonymous, aggregate counts of shares of links in messages as part of its

11

backup algorithm to determine links to include in its “Recommendations Feed” on

12

third-party websites (July 2014).

13

(See Settlement Agreement and Release (Dkt. 227-3) ¶ 40(a).)

14

Additionally, Facebook provides advertisers a range of options for targeting advertisements to

15

people using Facebook, and, as Facebook has contended throughout this litigation, none of the above

16

practices permitted advertisers to target advertisements to people based on links shared in

17

messages. As part of the Settlement Agreement, Facebook also confirmed that, as of the date of

18

executing the Settlement Agreement, Facebook was not using data regarding links shared in

19

messages for four identified practices, including targeted advertising. (See id. ¶ 40(b).)

20

Furthermore, because consent is a complete defense to claims asserted under the Wiretap Act

21

(18 U.S.C. §§ 2510, et seq.) and California Invasion of Privacy Act (CIPA, Cal. Penal Code § 631)—

22

the sole remaining claims in this action—one of the central contentions that motivated the filing of

23

Plaintiffs’ lawsuit in December 2013 was that Facebook’s disclosures allegedly were inadequate to

24

obtain consent. (See Dkt. 25 ¶¶ 1, 2, 38, 48.) Indeed, in ruling on Facebook’s Motion to Dismiss in

25

December 2014, the Court declined to dismiss Plaintiffs’ claims based on the provisions in

26

Facebook’s then-existing disclosures without a further factual record. (See Dkt. 43 at 14-16.) As the

27

Settlement Agreement makes clear, since that time (specifically, in January 2015), Facebook revised

28

its Data Policy to state, inter alia, that Facebook collects the “content and other information” that

Gibson, Dunn &
Crutcher LLP

1
FACEBOOK’S STATEMENT IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
Case No. 13-05996 PJH-SK

1

people provide when they “message or communicate with others,” and to further explain the ways in

2

which Facebook may use that content. (Dkt. 227-3 ¶ 40(c) (emphasis added); Facebook Data Policy,

3

§§ I-II.)1 These enhanced disclosures—enacted after the filing of this action and after the Court’s

4

ruling on the Motion to Dismiss—are among the benefits to class members. (See id.)

5

Finally, pursuant to the Settlement Agreement, Facebook has agreed to display additional

6

explanatory language on its website regarding its internal processing of URLs shared in messages—

7

specifically, the fact that Facebook “use[s] tools to identify and store links shared in messages,

8

including a count of the number of times links are shared.” (Id. ¶ 40(d).)

9

In short, the relief provided by the Settlement Agreement achieves the core non-monetary

10

relief sought by the action and relevant to the Rule 23(b)(2) injunctive-relief only class certified by

11

the Court.

12

As the Court is aware, this litigation was hard-fought and spanned several years. The parties

13

engaged in almost two years of extensive discovery, including the production of tens of thousands of

14

pages of documents and other electronic discovery, fact and expert depositions of 18 witnesses

15

(spanning 19 days of testimony), informal conferences and discussions, substantial discovery motion

16

practice, and the exchange of hundreds of pages of written discovery requests and responses. (Id.

17

¶ 7.) Last year, the Court refused to certify a Rule 23(b)(3) damages class, stating that it was

18

“persuaded by the fact that many class members appear to have suffered little, if any, harm,” and

19

noting that “the question of ‘whether or not there was actual damage to the plaintiff’ . . . would be

20

answered in the negative for many class members.” (Dkt. 192 at 26.) The Court did, however,

21

///

22

///

23

///

24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

1

A true and correct copy of Facebook’s current Data Policy (available at
https://www.facebook.com/about/privacy/your-info) is attached to this Statement as Exhibit 1.
2
FACEBOOK’S STATEMENT IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
Case No. 13-05996 PJH-SK

1

certify an injunctive-relief only class under Rule 23(b)(2). The settlement achieves considerable

2

benefits for that class (as modified slightly by the Settlement Agreement to bring it current),2 and

3

Facebook respectfully requests that the Court grant preliminary approval to the settlement.

4
5

Respectfully submitted,
Dated: April 12, 2017

GIBSON, DUNN & CRUTCHER LLP

6
7

By:

/s/
JOSHUA JESSEN

8

Attorneys for Defendant Facebook, Inc.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

2

Facebook agrees to provisional certification of the proposed class for settlement purposes only.
In particular, Facebook reserves all of its objections to class certification for litigation purposes,
and does not consent to certification of the proposed class for any purpose other than to effectuate
the settlement. Facebook continues to deny any allegations of wrongdoing.
3
FACEBOOK’S STATEMENT IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL
Case No. 13-05996 PJH-SK