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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1 8 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: (415) 693-2000 Facsimile: (415) 693-2222 9 Attorneys for Defendant Facebook, Inc. 2 3 4 5 6 7 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND 13 14 15 ANTHONY DITIRRO, KATYA BRESLER, AND MICHELLE SHUMATE, individually and on behalf of all others similarly situated, 16 Plaintiffs, 17 v. 18 F ACEBOOK, INC., 19 Defendant. 20 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. 3 Hon. Phyllis J. Hamilton None Set 21 22 23 24 25 26 27 28 CooLEYLLP ATTORNEYS AT LAW SAN FRANCISCO SOLANKI DECL. ISO MOTION TO DISMISS FAC CASE No. 5:14-CV-00132-PJH 1 I, Sandeep N. Solanki, hereby declare as follows: 2 1. I am employed as Associate General Counsel with Defendant Facebook, Inc. 3 ("Facebook"). Based on my overall experience working for Facebook, I have knowledge of 4 Facebook's current and historical terms of use, as well as the sign-up (registration) process for 5 new users. Except as otherwise noted, I have personal knowledge of the following facts and, if 6 called to testify, could and would testify competently thereto. 7 2. To register for an account on Facebook, a user must agree to Facebook's terms of 8 use, currently called the Statement of Rights and Responsibilities ("SRR"). Facebook has revised 9 its terms of use at various times. 10 3. Attached hereto as Exhibit A is a true and correct copy of the current terms of use 11 (SRR) that went into effect for all Users on or about November 15, 2013. These terms were in 12 place when Plaintiffs filed their original complaint on January 9, 2014 (Dkt. No. 1) and remain in 13 effect today. 14 4. Attached hereto as Exhibit B is a true and correct copy of the terms of use (SRR) 15 that went into effect for all users on or about September 23, 2008 and remained in place until 16 approximately February 4, 2009. 17 5. Attached hereto as Exhibit Cis a true and correct copy of the terms of use (SRR) 18 that went into effect for all users on or about February 4, 2009 and remained in place until 19 approximately May 1, 2009. 20 6. Attached hereto as Exhibit D is a true and correct copy of the terms of use (SRR) 21 that went into effect for all Users on or about May 1, 2009. Between May 1, 2009 and December 22 31, 2009, Facebook revised the terms of use, but did not revise the text of any of the provisions 23 cited in the Motion to Dismiss, i.e., the limitation-of-remedies provision or integration clause 24 (sections 14.3 and 16.1, respectively, in the May 1, 2009 terms). 25 7. I understand from Plaintiffs' First Amended Complaint ("F AC") that Plaintiff ~ 26 Katya Bresler alleges that she registered for an account on Facebook in 2008. (FAC 27 on publicly available information on Facebook, the user who 'appears to be Plaintiff Bresler 28 appears to have registered for her Facebook account on or about December 11, 2008. The version COOLEYLLP A TTOJHU~ 'Y f AT L ~~ow SAN FRANC1SCO 1. 19.) Based SOLANKI DECL. ISO MOTION TO DISMISS FAC CASE No. 5:14-cv-00132-PJH 1 of the terms of use in place on December 11, 2008 were those that went into effect on September 2 23, 2008 (Exhibit B). 3 8. I understand from the FAC that Plaintiff Michelle Shumate alleges that she 4 registered for an account on Facebook in 2008. 5 information on Facebook, the user who appears to be Plaintiff Shumate appears to have registered 6 for her Facebook account on or about October 22, 2008. The version of the terms of use in place 7 on December 11, 2008 were those that went into effect on September 23, 2008 (Exhibit B). 8 9 9. (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 10 Facebook in 2009, as alleged, Exhibit B would have been the version of the terms in place if he 11 registered prior to February 4, 2009. 12 February 4, 2009 and May 1, 2009, Exhibit C would have been the version of the terms in place 13 at the time. lfPlaintiffDiTirro registered for Facebook between May 1, 2009 and December 31, 14 2009, he would have been subject to the versions of the limitation-of-remedies provision and 15 integration clause contained in the May 1, 2009 terms of use (Exhibit D). 16 10. If Plaintiff DiTirro registered for Facebook between Notwithstanding Plaintiff DiTirro's allegation that he registered for Facebook in 17 2009 (FAC ,-r18), publicly available information on Facebook suggests that the user who appears 18 to be Plaintiff DiTirro actually registered for his account on or about July 22, 2008. 19 DiTirro registered on that date, he would have been subject to a version of the terms that went 20 into effect on June 7, 2008, which contained a limitation-of-remedies provision and integration 21 clause identical to that contained in the September 23, 2008 version of the terms (Exhibit B). 22 23 If Plaintiff I declare under penalty of perjury that the foregoing is true and correct. Executed on April 15, 2014 in Menlo Park, California. 24 25 26 Sandeep Solanki 27 28 COOLEYLLP ATTORNEYS AT LAW SAN FRANCISCO 2. SOLANKI DECL. ISO MOTION TO DISMISS FAC CASE No. 5:14-cv-00132-PJH

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