Campbell et al v. Facebook Inc.
Filing
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Reply in Support of re 33 Request For Judicial Notice In Support Of Its Motion to Dismiss Plaintiffs' Consolidated Amended Complaint by Facebook Inc.. (Jessen, Joshua) (Filed on 8/28/2014) Modified on 8/29/2014 (vlkS, COURT STAFF).
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GIBSON, DUNN & CRUTCHER LLP
JOSHUA A. JESSEN, SBN 222831
JJessen@gibsondunn.com
JEANA BISNAR MAUTE, SBN 290573
JBisnarMaute@gibsondunn.com
JESSICA S. OU, SBN 280534
JOu@gibsondunn.com
1881 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 849-5300
Facsimile: (650) 849-5333
GIBSON, DUNN & CRUTCHER LLP
GAIL E. LEES, SBN 90363
GLees@gibsondunn.com
CHRISTOPHER CHORBA, SBN 216692
CChorba@gibsondunn.com
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
Attorneys for Defendant
FACEBOOK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISON
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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.
Case No. C 13-05996 PJH
CONSOLIDATED CLASS ACTION
DEFENDANT FACEBOOK, INC.’S
REPLY IN SUPPORT OF ITS REQUEST
FOR JUDICIAL NOTICE IN SUPPORT
OF ITS MOTION TO DISMISS
PLAINTIFFS’ CONSOLIDATED
AMENDED COMPLAINT
HEARING:
Date: September 17, 2014
Time: 9:00 a.m.
Place: Courtroom 3, 3rd Floor
The Honorable Phyllis J. Hamilton
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Gibson, Dunn &
Crutcher LLP
DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH
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Plaintiffs oppose Facebook’s Request for Judicial Notice (“RJN,” Dkt. No. 30) with an absurd
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accusation that some of the documents have been “altered to reflect Facebook’s position” or that
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some of the documents cannot be “verifi[ed].” (Pls.’ Opp. to Facebook’s Req. for Judicial Notice
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(“RJN Opp.”), Dkt. No. 33, at 1, 4.) Plaintiffs’ arguments lack any merit and are a waste of this
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Court’s time:
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First, Facebook has not “altered” the documents. Rather, Facebook has included the original,
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full-text documents and simply highlighted relevant provisions to aid this Court’s review. Facebook
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never represented that any highlighting appeared in the underlying documents, and it is silly for
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Plaintiffs to oppose the RJN on this basis.
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Second, Plaintiffs do not have any substantive basis for opposing judicial notice of Exhibits A
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and D to the Jordan Declaration (the current versions of Facebook’s Statement of Rights and
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Responsibilities (“SRR”) and Data Use Policy (“DUP”)) and Exhibit 1 of Facebook’s Request for
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Judicial Notice (Senate Report No. 99-541), because Plaintiffs request judicial notice for the same
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documents. (Pls.’ Req. for Judicial Notice, Dkt. No. 32; RJN Opp. at 3.)
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Third, Plaintiffs further object to Exhibits B, C, E, and F to the Jordan Declaration (versions
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of Facebook’s SRR and DUP in effect during the alleged class period), and assert that these
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documents “purport to be versions of [the relevant user agreements]” and that Facebook does not
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“identify any source from which to verify these documents.” (RJN Opp. at 3-4.) Plaintiffs fail to
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note that the authenticity of these documents has indeed been verified with a signed affidavit from a
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Facebook employee with knowledge who certified each document to be a “true and correct” copy.
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(See Jordan Declaration, Dkt. No. 29-1 at 1-2 (attaching Exhibits B, C, E, and F).) As Facebook has
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attested to the authenticity of these documents, their veracity “is not subject to reasonable dispute.”
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Fed. R. Evid. 201(b); RJN at 3; see also In re Copper Mountain Sec. Litig., 311 F. Supp. 2d 857, 864
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(N.D. Cal. 2004) (plaintiff disputed accuracy of document for which defendant sought judicial notice;
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after defendant “attest[ed]” to measures taken to verify the document’s accuracy, the court took
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judicial notice). Accordingly, this court may properly take judicial notice of Exhibits B, C, E, and F.
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Gibson, Dunn &
Crutcher LLP
Further, “[e]ven if the Court [could not] properly take judicial notice of [the documents],
given [P]laintiffs’ reliance on the documents, the Court may consider them under the incorporation
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DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH
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by reference doctrine.” In re Silicon Graphics, Inc. Sec. Litig., 970 F. Supp. 746, 758 (N.D. Cal.
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1997). As explained in the RJN, Plaintiffs’ Complaint repeatedly insists that “Facebook [did] not
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disclose anywhere in its Privacy Policy its practice [during the class period,] . . . nor has such a
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practice ever been announced in any of Facebook’s disclosures to its users.” (RJN at 2-3.) As these
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claims “necessarily rel[y]” on the prior versions of the SRR and DUP, Facebook submits the prior
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versions to show that the relevant disclosures were indeed present during the proposed class period
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(and Plaintiffs do not dispute this). (Id.) Plaintiffs cannot use these documents as both a sword and a
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shield, using the unsubstantiated contention that they have not been sufficiently “verified” to
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Plaintiffs’ liking. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (plaintiffs not
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permitted to “surviv[e] a Rule 12(b)(6) motion by deliberately omitting . . . documents upon which
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their claims are based”) (citation and internal quotation marks omitted); see also In re Silicon
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Graphics, 970 F. Supp. at 759 (“Having raised questions about defendants’ [practices] . . . plaintiffs
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can hardly complain when defendants refer to the same information in their defense.”).
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Facebook respectfully requests that the Court take judicial notice of Exhibits A, B, C, D, E,
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and F attached to the Jordan Declaration and Exhibit 1 attached to Facebook’s Request for Judicial
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Notice.
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Dated: August 28, 2014
Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By:
/s/
Joshua A. Jessen
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Attorneys for Defendant FACEBOOK, INC.
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Gibson, Dunn &
Crutcher LLP
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DEFENDANT FACEBOOK, INC.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED AMENDED COMPLAINT; Case No. C 13-05996 PJH
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