Markowitz et al v. Facebook, Inc., No. 5:2010cv00430 - Document 8 (N.D. Cal. 2010)
Court Description: Memorandum in Opposition re 6 MOTION Relation of Cases Administrative Motion Defendant Facebooks Opposition To Plaintiffs Administrative Motion To Consider Whether Cases Should Be Related; [Proposed] Order Denying Plaintiffs Administrative Motion To Consider Whether Cases Should Be Related filed byFacebook, Inc.. (Attachments: # 1 Proposed Order)(Brown, Matthew) (Filed on 2/9/2010)
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Markowitz et al v. Facebook, Inc. Doc. 8 Case5:10-cv-00430-JF Document8 1 2 3 4 5 Filed02/09/10 Page1 of 8 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MATTHEW D. BROWN (196972) (brownmd@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Fax: (415) 693-2222 Attorneys for Defendant FACEBOOK, INC. 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 DONALD SILVERSTRI, DAWN KEER, KIMBERLY MANCELLA, JILL SILVERMAN STRELZIN, and CHRISTOPHER LEMOLE, on behalf of themselves and others similarly situated, Plaintiff, 16 17 18 v. FACEBOOK, INC., Defendant. 19 20 21 Case No. C10-cv-00429 (JF) ERIC MARKOWITZ, FRANK BLUEMENTHAL, LAUREN REESE, and BILLY STERN, on behalf of themselves and all others similarly situated, Case No. C10-cv-00430 (JF) 22 Plaintiff, 23 v. 24 DEFENDANT FACEBOOK’S OPPOSITION TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED FACEBOOK, INC., 25 Defendant. 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162727/SF DEF.’S OPP. TO PLAINTIFFS’ ADMIN. MOTION C10-CV-00429 (JF); C10-CV-00430 (JF) Dockets.Justia.com Case5:10-cv-00430-JF Document8 1 INTRODUCTION 2 Defendant Facebook, Inc. opposes the administrative motion filed by Plaintiffs in the 3 above-captioned cases (Donald Silverstri, et al. v. Facebook, Inc., No. C10-cv-00429 (JF), and 4 Eric Markowitz, et al. v. Facebook, Inc., No. C10-cv-00430 (JF)) (“Plaintiffs”) to relate those 5 cases to the case captioned Sean Lane, et al. v. Facebook, Inc., et al., No. C08-cv-3845. Under 6 the criteria set forth in Civil Local Rule 3-12, the Silverstri and Markowitz cases are not related to 7 the Lane case. The cases involve different issues and arise from wholly distinct events separated 8 by two years. 9 networking website, and third-party websites that participated in Facebook’s Beacon program. 10 The key events in Lane took place between November 2007 and December 2007, which was also 11 the putative class period. In contrast, the Silverstri and Markowitz complaints concern specific 12 changes to users’ privacy settings made on November 19, 2009 and December 9, 2009, two years 13 later. Indeed, Plaintiffs appear to recognize this when they concede that “[t]he Lane matter 14 involves discrete privacy issues from an earlier time.” (Motion 2.) In addition to a lack of factual 15 commonality, there is only limited overlap in the legal theories alleged in the cases. Because of 16 the substantial differences between the two actions, the criteria of Civil Local Rule 3-12 are not 17 met, and coordination of Plaintiffs’ newly filed cases with Lane is unwarranted. Moreover, the 18 Lane case may soon be resolved, with the motion for final approval of the proposed class action 19 settlement scheduled to be heard before Judge Seeborg on February 26, 2010. 20 although Plaintiffs’ motion states that Lane is pending before District Judge James Ware, the case 21 actually is assigned to District Judge Richard Seeborg, with discovery matters referred to 22 Magistrate Judge Patricia Trumbull.) 23 II. Lane arises from certain interactions between Facebook, the popular social (Note that BACKGROUND 24 The Lane complaint was filed on August 12, 2008 against Facebook and several other 25 defendants—Blockbuster, Inc., Fandango, Inc., Hotwire, Inc., STA Travel, Inc., Overstock.com, 26 Inc., Zappos.com, Inc., Gamefly, Inc., and John Does 1-40 (who are referred to as the “Facebook 27 Beacon Activated Affiliates” or “FBAAs”). In Lane, the plaintiffs alleged that Facebook and the 28 FBAAs engaged in a program to solicit, advertise, and market business transactions to Facebook COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO I. Filed02/09/10 Page2 of 8 1162727/SF 1. DEF.’S OPP. TO PLAINTIFFS’ ADMIN. MOTION C10-CV-00429 (JF) ; C10-CV-00430 (JF) Case5:10-cv-00430-JF Document8 Filed02/09/10 Page3 of 8 1 users and the users’ friends without sufficient consent. According to the Lane complaint, under 2 agreements between Facebook and the FBAAs, when a user accessed one or more of the FBAAs’ 3 websites and a certain type of triggering event occurred (for example, making a travel reservation 4 or online purchase), the website relayed information about the user’s activity to Facebook. In 5 certain circumstances, the user’s activity was shared with the Facebook user’s network of friends 6 on the Facebook website. The Lane plaintiffs alleged that by doing so, Facebook and the FBAAs 7 violated their rights. The key events in Lane took place between November 2007 and December 8 2007, the putative class period. The Lane complaint alleged that the actions of the defendants 9 under the Beacon program gave rise to claims under the Electronic Communications Privacy Act, 10 the Computer Fraud and Abuse Act, the Video Privacy Protection Act, the California Consumer 11 Legal Remedies Act, the California Computer Crime Law, civil conspiracy, and unjust 12 enrichment. The Lane case has resulted in a proposed class action settlement, final approval of 13 which will be sought at a hearing before Judge Seeborg on February 26, 2010. 14 (http://www.cand.uscourts.gov/CAND/Calendar.nsf/572d47d88520f842882566a2007f2b59/cd0a 15 5c0f181b8b5988256a01005e0eeb?OpenDocument.) 16 In contrast, the Silverstri and Markowitz complaints were filed against Facebook on 17 January 29, 2010, and arise from events in late 2009 that have no relationship to the Beacon 18 program. These complaints assert that two changes made by Facebook to its privacy settings 19 system decreased user privacy and resulted in wider access to personal information that users had 20 included in their profiles and had previously been accessible to a more limited number of other 21 Facebook users. 22 announcement accompanying these changes was misleading and confusing. 23 complaints do not allege two of the legal theories alleged in Lane—namely, the Computer Fraud 24 and Abuse Act and the Video Privacy Protection Act—and, moreover, allege four causes of 25 action which are not in the Lane complaint: violation of the statutory right of publicity, violation 26 of California Business and Professions Code section 17200, the common law tort of 27 appropriation, and injunctive relief. The Silverstri and Markowitz complaints allege that Facebook’s privacy Plaintiffs’ 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162727/SF 2. DEF.’S OPP. TO PLAINTIFFS’ ADMIN. MOTION C10-CV-00429 (JF) ; C10-CV-00430 (JF) Case5:10-cv-00430-JF Document8 Filed02/09/10 Page4 of 8 1 Although the parties agree that Silverstri and Markowitz are related to each other and 2 should be consolidated, Facebook does not agree that Silverstri and Markowitz are related to 3 Lane. 4 III. 5 ARGUMENT: PLAINTIFFS’ ADMINISTRATIVE MOTION SHOULD BE DENIED BECAUSE SILVERSTRI AND MARKOWITZ ARE NOT RELATED TO LANE. 6 This Court should deny Plaintiffs’ administrative motion because the recently filed 7 Silverstri and Markowitz cases are not related to Lane. Under Civil Local Rule 3-12(a), “[a]n 8 action is related to another when (1) The actions concern substantially the same parties, property, 9 transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication 10 of labor and expense or conflicting results if the cases are conducted before different Judges.” 11 Under these criteria, Plaintiffs’ cases are not related to Lane and should not be transferred. 12 A. 13 Plaintiffs’ Cases do not Substantially Concern the Same Parties, Property, Transaction, or Event as Lane. 14 Plaintiffs’ cases and Lane do not concern the same transaction or event as required by 15 Rule 3-12(a)(1). The facts upon which Plaintiffs base their claims bear no relationship to the 16 facts upon which the Lane complaint is based. Lane arises from aspects of the Facebook Beacon 17 program and, specifically, events which occurred over two years ago. 18 Plaintiffs’ claims in Silverstri and Markowitz are not connected to the Beacon program, and 19 instead arise from unrelated changes that Facebook made to its privacy settings in late 2009. See 20 id. Although Plaintiffs make the generalized contention that that their cases relate to Lane 21 because they “concern common legal issues of privacy” (Motion 2), Plaintiffs fail to point to any 22 substantially similar transaction or event. 23 conceding that “[t]he Lane matter involves discrete privacy issues from an earlier time.” (Id.) See supra part II. In fact, Plaintiffs undermine their conclusion by 24 Further, the Silverstri and Markowitz cases do not substantially concern the same parties 25 as Lane. Facebook is the only party common to the three cases. While Facebook is the sole 26 defendant in Plaintiffs’ cases, Lane names several additional parties as defendants, none of whom 27 are named or mentioned in the Silverstri or Markowitz complaints. 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162727/SF 3. DEF.’S OPP. TO PLAINTIFFS’ ADMIN. MOTION C10-CV-00429 (JF) ; C10-CV-00430 (JF) Case5:10-cv-00430-JF Document8 1 B. Filed02/09/10 Page5 of 8 Keeping Plaintiffs’ Cases Before This Court Will Not Cause Unduly Burdensome Duplication of Labor and Expense or Conflicting Results. 2 3 Plaintiffs suggest that there might be duplication of labor and expense if this Court were to 4 relate their cases to Lane. But in addition to an absence of common transactions, events, and 5 parties, there is only minimal overlap of the legal theories alleged in the cases. See supra part II. 6 Thus, keeping the case before this Court would not cause an unduly burdensome duplication of 7 labor and expense. For the same reasons, there is no risk of conflicting results. Moreover, the 8 Lane case is at a more advanced stage and may soon be resolved. The motion for final approval 9 of the proposed class action settlement is scheduled to be heard before Judge Seeborg on 10 February 26, 2010. 11 IV. 12 13 CONCLUSION Silverstri and Markowitz are not related to Lane under the criteria of Civil Local Rule 3- 12, and therefore Plaintiffs’ administrative motion should be denied. 14 15 Dated: February 9, 2010 16 17 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) MATTHEW D. BROWN (196972) /s/ Matthew D. Brown Matthew D. Brown Attorneys for Defendant FACEBOOK, INC. 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162727/SF 4. DEF.’S OPP. TO PLAINTIFFS’ ADMIN. MOTION C10-CV-00429 (JF) ; C10-CV-00430 (JF) Case5:10-cv-00430-JF Document8 1 Filed02/09/10 Page6 of 8 PROOF OF SERVICE (FRCP 5) 2 3 I am a citizen of the United States and a resident of the State of California. I am 4 employed in San Francisco County, State of California, in the office of a member of the bar of 5 this Court, at whose direction the service was made. I am over the age of eighteen years, and 6 not a party to the within action. My business address is Cooley Godward Kronish LLP, 101 7 California Street, 5th Floor, San Francisco, California 94111-5800. On the date set forth below 8 I served the documents described below in the manner described below: 9 DEFENDANT FACEBOOK’S OPPOSITION TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; [PROPOSED] ORDER DENYING PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 10 11 12 13 ELECTRONIC MAIL) I am personally and readily familiar with the business (BY practice of Cooley Godward Kronish LLP for the preparation and processing of documents in portable document format (PDF) for e-mailing, and I caused said documents to be prepared in PDF and then served by electronic mail to the parties listed below. 14 15 16 17 18 19 20 on the following part(ies) in this action: Michael James Aschenbrener Edelson McGuire, LLC 350 N. LaSalle Street, Suite 1300 Chicago, IL 60654 312-589-6379 312-589-6378 (fax) maschenbrener@edelson.com Michael Graham Rhodes Michael Lambert Emily Fawne Burns Maria Ostrovsky Cooley Godward LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 650-843-5000 650-857-0663 (fax) mrhodes@cooley.com mlambert@cooley.com burnsef@cooley.com mostrovsky@cooley.com 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162953 v1/SF 1. PROOF OF SERVICE: DEFENDANT FACEBOOK’S OPPOSITION TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case5:10-cv-00430-JF Document8 Filed02/09/10 Page7 of 8 1 2 3 4 Mark Andrew Chavez Chavez & Gertler LLP 42 Miller Avenue Mill Valley, CA 93941 415-381-5599 415-381-5572 (fax) mark@chavezgertler.com Thomas Mathew Corea Jeremy Reade Wilson Corea Firm 1201 Elm Street Suite 4150 Dallas, TX 75270 214-953-3900 tcorea@corealaw.com jwilson@corealaw.com John William Davis Law Office of John W. Davis 4445 Eastgate Mall Second Floor San Diego, CA 92121 858-812-2976 858-658-0072 (fax) john@johnwdavis.com Marc A. Fuller Frank C. Brame Michael L Raiff Vinson & Elkins L.L.P. 2001 Ross Ave. Suite 3700 Dallas, TX 75201 214-220-7881 214-999-7881 (fax) mfuller@velaw.com Shawn Hanson Jones Day 555 California Street 26th Floor San Francisco, CA 94104 415 626 3939 415 875 5700 (fax) shanson@jonesday.com David Christopher Parisi Suzanne L. Havens Beckman Parisi & Havens, LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 818-990-1299 818-501-7852 (fax) dparisi@parisihavens.com shavens@parisihavens.com Alan Himmelfarb Edelson McGuire LLC 2757 Leonis Blvd Vernon, CA 90058 323- 585-8696 323-585-8696 (fax) Consumerlaw1@earthlink.net Scott A Kamber David A. Stampley KamberLaw, LLC 11 Broadway 22nd Floor New York, NY 10004 646-964-9600 212-920-3081 (fax) skamber@kamberlaw.com dstampley@kamberlaw.com Joseph H Malley Law Office of Joseph H. Malley, PC 1045 North Zang Boulevard Dallas, TX 75208 214-943-6100 malleylaw@gmail.com Thomas J. Moses Brydon Hugo & Parker 135 Main Street, 20th Floor San Francisco, CA 94105 (415) 808-0300 (415) 808-0333 (fax) tmoses@bhplaw.com 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162953 v1/SF 2. PROOF OF SERVICE: DEFENDANT FACEBOOK’S OPPOSITION TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case5:10-cv-00430-JF Document8 Filed02/09/10 Page8 of 8 1 5 George A. Otstott, Jr. Ericksen, Arbuthnot, et al. 111 Sutter Street Suite 575 San Francisco, CA 94104 415-362-7126 415-362-6401 (fax) gotstott@eakdl.com 6 Executed on February 9, 2010, at San Francisco, California. 2 3 4 7 _________/s/_Linda A. Nafey_________________ Linda A. Nafey 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN FRANCISCO 1162953 v1/SF 3. PROOF OF SERVICE: DEFENDANT FACEBOOK’S OPPOSITION TO PLAINTIFFS’ ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
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