DiTirro v. Facebook, Inc.

Filing 20

MOTION to Dismiss First Amended Complaint; Memorandum of Points and Authorities filed by Facebook, Inc.. Motion Hearing set for 6/11/2014 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 4/29/2014. Replies due by 5/6/2014. (Attachments: # 1 Declaration of Sandeep N. Solanki, # 2 Exhibit A to Declaration of Sandeep N. Solanki, # 3 Exhibit B to Declaration of Sandeep N. Solanki, # 4 Exhibit C to Declaration of Sandeep N. Solanki, # 5 Exhibit D to Declaration of Sandeep N. Solanki, # 6 Proposed Order Granting Motion to Dismiss First Amended Complaint)(Gutkin, Jeffrey) (Filed on 4/15/2014)

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COOLEYLLP
MICHAEL G. RHODES (116127)
(rhodesmg@cooley .com)
MATTHEW D. BROWN (196972)
(brownmd@cooley .com)
JEFFREY M. GUTKIN (216083)
(gutkinjm@cooley .com)
BENJAMIN H. KLEINE (257225)
(bkleine@cooley .com)
CANDACE A. JACKMAN (267599)
(cjackman@cooley .com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
[phone]
Facsimile:
[phone]

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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

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ANTHONY DITIRRO, KATYA BRESLER,
AND MICHELLE SHUMATE, individually
and on behalf of all others similarly situated,

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Plaintiffs,
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v.
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F ACEBOOK, INC.,
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Defendant.
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Case No. 5:14-cv-00132-PJH
DECLARATION OF SANDEEP N. SOLANKI
IN SUPPORT OF DEFENDANT FACE BOOK,
INC.'S MOTION TO DISMISS FIRST
AMENDED COMPLAINT

Date:
Time:
Courtroom:
Judge:
Trial Date:

June 11, 2014
9:00a.m.
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Hon. Phyllis J. Hamilton
None Set

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CooLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO

SOLANKI DECL. ISO
MOTION TO DISMISS FAC
CASE No. 5:14-CV-00132-PJH

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I, Sandeep N. Solanki, hereby declare as follows:

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1.

I am employed as Associate General Counsel with Defendant Facebook, Inc.

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("Facebook"). Based on my overall experience working for Facebook, I have knowledge of

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Facebook's current and historical terms of use, as well as the sign-up (registration) process for

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new users. Except as otherwise noted, I have personal knowledge of the following facts and, if

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called to testify, could and would testify competently thereto.

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2.

To register for an account on Facebook, a user must agree to Facebook's terms of

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use, currently called the Statement of Rights and Responsibilities ("SRR"). Facebook has revised

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its terms of use at various times.

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3.

Attached hereto as Exhibit A is a true and correct copy of the current terms of use

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(SRR) that went into effect for all Users on or about November 15, 2013. These terms were in

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place when Plaintiffs filed their original complaint on January 9, 2014 (Dkt. No. 1) and remain in

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effect today.

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4.

Attached hereto as Exhibit B is a true and correct copy of the terms of use (SRR)

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that went into effect for all users on or about September 23, 2008 and remained in place until

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approximately February 4, 2009.

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5.

Attached hereto as Exhibit Cis a true and correct copy of the terms of use (SRR)

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that went into effect for all users on or about February 4, 2009 and remained in place until

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approximately May 1, 2009.

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6.

Attached hereto as Exhibit D is a true and correct copy of the terms of use (SRR)

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that went into effect for all Users on or about May 1, 2009. Between May 1, 2009 and December

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31, 2009, Facebook revised the terms of use, but did not revise the text of any of the provisions

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cited in the Motion to Dismiss, i.e., the limitation-of-remedies provision or integration clause

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(sections 14.3 and 16.1, respectively, in the May 1, 2009 terms).

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7.

I understand from Plaintiffs' First Amended Complaint ("F AC") that Plaintiff
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Katya Bresler alleges that she registered for an account on Facebook in 2008. (FAC

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on publicly available information on Facebook, the user who 'appears to be Plaintiff Bresler

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appears to have registered for her Facebook account on or about December 11, 2008. The version

COOLEYLLP
A TTOJHU~ 'Y f

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SAN FRANC1SCO

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19.) Based

SOLANKI DECL. ISO
MOTION TO DISMISS FAC

CASE No. 5:14-cv-00132-PJH

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of the terms of use in place on December 11, 2008 were those that went into effect on September

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23, 2008 (Exhibit B).

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8.

I understand from the FAC that Plaintiff Michelle Shumate alleges that she

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registered for an account on Facebook in 2008.

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information on Facebook, the user who appears to be Plaintiff Shumate appears to have registered

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for her Facebook account on or about October 22, 2008. The version of the terms of use in place

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on December 11, 2008 were those that went into effect on September 23, 2008 (Exhibit B).

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(F AC ,-r 20.) Based on publicly available

I understand from the FAC that Mr. DiTirro alleges that he registered for an

account on Facebook in 2009.

(F AC ,-r 18.) Assuming that Plaintiff DiTirro registered for

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Facebook in 2009, as alleged, Exhibit B would have been the version of the terms in place if he

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registered prior to February 4, 2009.

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February 4, 2009 and May 1, 2009, Exhibit C would have been the version of the terms in place

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at the time. lfPlaintiffDiTirro registered for Facebook between May 1, 2009 and December 31,

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2009, he would have been subject to the versions of the limitation-of-remedies provision and

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integration clause contained in the May 1, 2009 terms of use (Exhibit D).

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10.

If Plaintiff DiTirro registered for Facebook between

Notwithstanding Plaintiff DiTirro's allegation that he registered for Facebook in

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2009 (FAC ,-r18), publicly available information on Facebook suggests that the user who appears

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to be Plaintiff DiTirro actually registered for his account on or about July 22, 2008.

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DiTirro registered on that date, he would have been subject to a version of the terms that went

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into effect on June 7, 2008, which contained a limitation-of-remedies provision and integration

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clause identical to that contained in the September 23, 2008 version of the terms (Exhibit B).

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If Plaintiff

I declare under penalty of perjury that the foregoing is true and correct. Executed on April
15, 2014 in Menlo Park, California.

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Sandeep Solanki

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COOLEYLLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

SOLANKI DECL. ISO
MOTION TO DISMISS FAC
CASE No. 5:14-cv-00132-PJH