Connectu, Inc. v. Facebook, Inc. et al

Filing 340

MOTION to Dismiss - Motion to Reassert Previous Motions to Dismiss (Docket Nos. 232, 233 and 243) by Facebook, Inc., Andrew McCollum, Dustin Moskovitz, Thefacebook LLC, Mark Zuckerberg. (Attachments: #1 Affidavit M. Cooper Declaration ISO Motion)(Cooper, Monte)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

CONNECTU, INC., CAMERON
WINKLEVOSS, TYLER WINKLEVOSS,
AND DIVYA NARENDRA,

Civil Action No. 1:07-CV-10593-DPW
Related Action No. 1:04-CV-11923 (DPW)

Plaintiff,
v.
FACEBOOK, INC., MARK ZUCKERBERG,
EDUARDO SAVERIN, DUSTIN
MOSKOVITZ, ANDREW MCCOLLUM,
and FACEBOOK, LLC,
Defendants.

DEFENDANTS’ MOTION IN ACCORDANCE WITH COURT ORDER (DKT. NO. 275)
REASSERTING PREVIOUS MOTIONS TO DISMISS (DKT. NOS. 232, 233 AND 243)

This motion seeks to reassert two motions to dismiss previously denied without prejudice
by this Court pending appellate review of a decision of a sister court located in the Northern
District of California. As the decision of the Northern District of California has been affirmed,
the two motions to dismiss should now be granted, and this case should be dismissed with
prejudice.
These motions to dismiss were originally submitted pursuant to a decision in the
Northern District of California enforcing a settlement agreement covering these proceedings.
Specifically, the motions to dismiss sought dismissal of this action with prejudice pursuant to an
Amended Judgment from the Northern District of California enforcing the terms of the
settlement agreement. Declaration of Monte M.F. Cooper in Support of Motion in Accordance
With Court Order Reasserting Previous Motions to Dismiss (“Cooper Decl.”) Ex. 1, at 2. At the
time the previously filed motions to dismiss were filed, Plaintiffs advised the Court that they
intended to appeal.
During the pendency of the appeal, this Court entered two Orders in which it “direct[ed]
the Clerk to stay these cases and terminate all outstanding motions without prejudice to the
motion of any party to reassert them no later than 30 days after the issuance of any mandate of
the [Ninth Circuit] concerning the judgment entered by the United States District Court for the
Northern District of California in Civil Action No. 07-01389-JW.” See Dkt. No. 274, at 2-3. See
also Dkt. No. 275.
On May 16, 2011, the Ninth Circuit affirmed the decision of the Northern District of
California and found that the District Court properly enforced the Settlement Agreement.
Cooper Decl. Exs. 2-3 (June 24, 2011 Mandate & May 16, 2011 Amended Opinion). As the
Ninth Circuit emphasized:

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The Winklevosses are not the first parties bested by a competitor
who then seek to gain through litigation what they were unable to
achieve in the marketplace. And the courts might have obliged,
had the Winklevosses not settled their dispute and signed a release
of all claims against Facebook. With the help of a team of lawyers
and a financial advisor, they made a deal that appears quite
favorable in light of recent market activity. See Geoffrey A.
Fowler & Liz Rappaport, Facebook Deal Raises $1 Billion, Wall
St. J., Jan 22, 2011, at B4 (reporting that investors valued
Facebook at $50 billion – 3.33 times the value the Winklevosses
claim they thought Facebook’s shares were worth at the
mediation). For whatever reason, they now want to back out. Like
the district court, we see no reason for allowing them to do so. At
some point, litigation must come to an end. That point has now
been reached.
Cooper Decl. Ex. 3, slip op. at 6292 (emphasis added). Subsequently, on June 24, 2011, the
Ninth Circuit entered its mandate in The Facebook, Inc. v. Cameron Winklevoss, et al.,
Consolidated Appeals Nos. 08-16745, 08-16873 & 09-15021 (9th Cir. June 24, 2011). Cooper
Decl. Ex. 2.
In light of the Ninth Circuit’s decision affirming the Northern District of California, this
Court should grant the motions to dismiss, and issue Orders dismissing these proceedings with
prejudice and entering a judgment of dismissal with prejudice as to all Plaintiffs and Defendants.
///
///

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Dated: July 7, 2011

/s/ Monte M.F. Cooper /s/
I. Neel Chatterjee (admitted pro hac vice)
Monte M.F. Cooper (admitted pro hac vice)
Theresa A. Sutton (admitted pro hac vice)
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, California 94025
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Steven M. Bauer
Jeremy P. Oczek
PROSKAUER ROSE, LLP
One International Plaza, 14th Floor
Boston, Massachusetts 02110-2600
Telephone:
[phone]
Facsimile:
[phone]
ATTORNEYS FOR DEFENDANTS
MARK ZUCKERBERG, DUSTIN MOSKOVITZ,
ANDREW MCCOLLUM, FACEBOOK, INC.,
and FACEBOOK LLC.

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CERTIFICATE OF SERVICE
I hereby certify that this document(s) filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non registered participants on July 7, 2011.
Dated: July 7, 2011

Respectfully submitted,
/s/ Monte M.F. Cooper /s/
Monte M.F. Cooper

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