Gould v. Facebook, Inc., No. 5:2010cv02389 - Document 69 (N.D. Cal. 2010)

Court Description: ORDER DENYING DEFENDANT FACEBOOK'S MOTION TO CONSOLIDATE; GRANTING DEFENDANT ZYNGA'S MOTION TO CONSOLIDATE; APPOINTING INTERIM CO-LEAD CLASS COUNSEL. In sum, the Court DENIES Facebook's Motion to Consolidate and GRANTS Zynga's Motion to Consolidate: (1) The Court consolidates the Zynga ActionsCV 10-04680, CV 10-04902, CV 10-04723, CV 10-04793, CV 10-04794, CV 10-04930, CV 10-04935 and CV 10-05192into one action. The Clerk of Court shall consolidate these actions such that the earliest filed action, CV 10-04680, is the lead case. All future filings shall be in CV 10-04680 and bear the caption: "In re Zynga Privacy Litigation." All future related cases shall be automatically consolidated and administratively closed. Since the later actions are now consumed in first filed action, the Clerk shall administratively close CV 10-04902, CV 10-04723, CV 10-04793, CV 10-04794, CV 10-04930, CV 10-04935 and CV 10-05192. The Court appoints Adam J. Levitt of Wolf, Halderstein, Adler, Freeman and Herz, LLC; Jonathan Shub of Seeger Weiss, LLP; and Michael Aschenbrener of Edelson McGuire, LLC as Interim Co-Lead Class Counsel. On or before January 10, 2011, Plaintiffs in the In re Zynga Privacy Litigation shall file a Consolidated Amended Class Action Complaint. The Court sets a Case Management Conference for January 31, 2011 at 9 a.m. for both In re Facebook Privacy Litigation and In re Zynga Privacy Litigation to discuss coordination of the two Actions. On or before January 14, 2011, In re Facebook Privacy Litigation and In re Zynga Privacy Litigation shall file a Joint Case Management Statement. The Statement shall include a good faith plan for coordination and contain, among other things, a proposed schedule for coordinated discovery. Signed by Judge James Ware on 12/10/2010. (ecg, COURT STAFF) (Filed on 12/10/2010) (Entered: 12/10/2010)

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Gould v. Facebook, Inc. Doc. 69 Case5:10-cv-02389-JW Document69 Filed12/10/10 Page1 of 7 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 In Re: Facebook Privacy Litigation, 11 For the Northern District of California United States District Court / 12 Nancy Graf, ___________________________________/ 13 Shelly Albini, ___________________________________/ 14 15 Valeria Gudac, et al., ___________________________________/ 16 Howard L. Schreiber, ___________________________________/ 17 18 John Swanson, ___________________________________/ 19 NO. C 10-02389 JW NO. C 10-04680 JW NO. C 10-04902 JW NO. C 10-04723 JW NO. C 10-04793 JW NO. C 10-04794 JW NO. C 10-04930 JW NO. C 10-04935 JW NO. C 10-05192 JW ORDER DENYING DEFENDANT FACEBOOK’S MOTION TO CONSOLIDATE; GRANTING DEFENDANT ZYNGA’S MOTION TO CONSOLIDATE; APPOINTING INTERIM CO-LEAD CLASS COUNSEL Carmel-Jessup, ___________________________________/ 20 21 Iris Phee, et al., ___________________________________/ 22 Karen Bryant, et al., Plaintiffs, 23 v. 24 Zynga Game Network, Inc., et al., 25 26 Defendants. ___________________________________/ 27 28 Dockets.Justia.com Case5:10-cv-02389-JW Document69 1 A. Filed12/10/10 Page2 of 7 Introduction 2 Presently before the Court are Defendant Facebook, Inc.’s (“Facebook”) Motion to 3 Consolidate Cases for All Purposes1 and Defendant Zynga Game Network’s (“Zynga”) Motion to 4 Consolidate.2 5 On November 5, 2010, Zynga filed its Administrative Motion to Consider Whether Cases 6 Should be Related.3 In its Motion, Zynga noted that the substantial overlap of factual and legal 7 issues would be appropriate for consolidation of the Zynga Actions.4 On November 15, 2010, the 8 Court granted Zynga’s Motion to Relate and requested Supplemental Briefing from the parties on 9 whether the Zynga Actions should be consolidated into the existing In re Facebook Privacy Litigation or into another separate action. Following the Court’s Order requesting Supplemental 11 For the Northern District of California United States District Court 10 Briefing, Facebook filed a separate Motion to Consolidate CV 10-02389 (“In re: Facebook Privacy 12 Litigation”) and CV 10-04902, CV 10-04723, CV 10-04793, CV 10-04794, CV 10-04930, CV 10- 13 04935 and CV 10-05192 (“Zynga Actions”). (See Facebook Motion at 1.) 14 15 16 The Court addresses each Motion in turn. B. Standards A district court has broad discretion to consolidate actions involving “common issues of law 17 or fact.” Fed. R. Civ. P. 42(a); Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 877 18 F.2d 777, 777 (9th Cir. 1989). In exercising its broad discretion to order consolidation, a district 19 court “weighs the saving of time and effort consolidation would produce against any inconvenience, 20 delay, or expense that it would cause.” Huene v. U.S., 743 F.2d 703, 704 (9th Cir. 1984). 21 22 23 24 1 (Defendant Facebook, Inc.’s Motion to Consolidate Cases for All Purposes and to Address Related Issues in Response to Court’s November 12, 2010 and November 19, 2010 Orders, hereafter, “Facebook Motion,” Docket Item No. 58.) 25 2 (See Docket Item No. 41.) 26 3 (hereafter, “Zynga Motion,” Docket Item No. 41.) 27 4 (Zynga Motion at 4.) 28 2 Case5:10-cv-02389-JW Document69 1 C. 2 3 Filed12/10/10 Page3 of 7 Facebook’s Motion to Consolidate Facebook moves to consolidate In re: Facebook Privacy Litigation and the Zynga Actions. (Facebook Motion at 1.) 4 Upon review of the Complaints in the Actions, the Court finds that while each case presents sufficient commonality to justify consolidation. Plaintiffs in the respective Actions present distinct 7 factual scenarios that involve the alleged transmission of personal information. Plaintiffs in In re: 8 Facebook Privacy Litigation allege that Facebook transmitted user information to third parties 9 when users clicked on third party advertisements,5 while Plaintiffs in the Zynga Actions allege that 10 Zynga transmitted user information when users interacted with Zynga’s third party applications on 11 For the Northern District of California similar facts and some overlapping legal theories, the factual issues in the Zynga Actions lack 6 United States District Court 5 facebook.com.6 In none of the In re Facebook Privacy Litigation Actions is Zynga named as a 12 Defendant or even mentioned in the Complaints. Further, the factual and temporal differences 13 between the respective Actions would cause inconvenience and delay in both litigations. Given the 14 lack of similarities between the actions and the inconvenience and delay that would result from 15 consolidating the cases, the Court finds that consolidation of the Zynga Actions into the existing In 16 re Facebook Privacy Litigation is inappropriate. 17 18 19 20 21 Accordingly, the Court DENIES Facebook’s Motion to Consolidate. D. Zynga’s Motion to Consolidate Zynga moves to consolidate the Zynga Actions into a single In re Zynga Privacy Litigation action. (Zynga Motion at 4.) Upon review of the Complaints in the Zynga Actions, the Court finds that each case presents 22 virtually identical factual and legal issues. Plaintiffs in each Action allege that Defendant’s 23 applications, or registration with their applications, resulted in Zynga transmitting their user 24 information without their knowledge or authorization. The Actions are also at similarly early stages 25 26 5 (Consolidated Class Action Complaint at 7, Docket Item No. 36.) 27 6 (See CV 10-04680-JW, Docket Item No. 1.) 28 3 Case5:10-cv-02389-JW Document69 Filed12/10/10 Page4 of 7 1 of litigation, as Zynga is yet to file an Answer in any of the related Zynga Actions. Further, as each 2 case involves the same alleged activity by Zynga, discovery issues will be substantially duplicative. 3 Given these similarities and the lack of any apparent inconvenience, delay or expense that would 4 result from consolidating the cases, the Court finds that consolidation of the Actions is appropriate. Accordingly, the Court GRANTS Zynga’s Motion to Consolidate. 5 6 7 E. Appointment of Interim Class Counsel Separately named Plaintiffs in the Zynga Actions have moved to appoint their respective 8 attorneys as interim class counsel. Plaintiffs O’Hara and Bryant move to appoint Milberg and 9 Girard Gibbs, LLP as Interim Lead Class Counsel.7 Plaintiffs Beiles, Graf, Schreiber and Swanson move to appoint Adam J. Levitt of Wolf, Halderstein, Adler, Freeman and Herz, LLC; Jonathan 11 For the Northern District of California United States District Court 10 Shub of Seeger Weiss, LLP; and Michael Aschenbrener of Edelson McGuire, LLC as Interim Co- 12 Lead Class Counsel.8 13 Under Fed. R. Civ. P. 23(g)(3), a court “may designate interim counsel to act on behalf of a 14 putative class before determining whether to certify the action as a class action.” Although Rule 15 23(g)(3) does not provide any guidance for selecting interim class counsel, a court may consider the 16 factors enumerated in Rule 23(g)(1). Under Rule 23(g)(1), a court considers “(i) the work counsel 17 has done in identifying or investing potential claims in the action; (ii) counsel’s experience in 18 handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) 19 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to 20 representing the class.”9 21 22 Millberg and Girard Gibbs, LLP, have identified and investigated the claims brought against Facebook and Zynga and have interviewed a number of Facebook and Zynga users in preparation 23 24 7 (See Docket Item No. 59 at 8.) 8 (See Docket Item No. 64 at 11.) 25 26 9 27 28 The court may also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). 4 Case5:10-cv-02389-JW Document69 Filed12/10/10 Page5 of 7 1 for the case. (Docket Item No. 59 at 8.) They also have extensive experience in class actions and 2 complex litigation in consumer protection areas. (Id.) 3 Wolf, Halderstein, Adler, Freeman and Herz, LLC; Seeger Weiss, LLP; and Edelson 4 McGuire, LLC were pioneers in the electronic privacy class action field, having litigated some of the 5 largest consumer class actions in the country on this issue. (Docket Item No. 64 at 12.) They were 6 also the first to file a class action relating to Zynga’s alleged transmission of user information to 7 third parties. (Id.) They have continued to communicate with Zynga’s counsel in efforts to reach 8 agreements, preserve evidence and establish discovery protocols. (Id.) Further, they have met with 9 Zynga’s counsel in San Francisco to address these matters and are in the process of coordinating the research and preparation of a Consolidated Amended Complaint in anticipation of the Court’s 11 For the Northern District of California United States District Court 10 consolidation of the Zynga Actions. (Id.) Upon review of the proposed interim class counsel, the Court finds that the nomination of the 12 13 Wolf, Halderstein, Adler, Freeman and Herz, LLC, Seeger Weiss, LLP and Edelson McGuire, LLC 14 is appropriate given the firm’s extensive experience in privacy litigation and commitment to the 15 present action. Accordingly, the Court appoints Adam J. Levitt of Wolf Halderstein Adler Freeman 16 and Herz, LLC; Jonathan Shub of Seeger Weiss, LLP; and Michael Aschenbrener of Edelson 17 McGuire, LLC as Interim Co-Lead Class Counsel. 18 F. 19 20 21 Conclusion In sum, the Court DENIES Facebook’s Motion to Consolidate and GRANTS Zynga’s Motion to Consolidate: (1) The Court consolidates the Zynga Actions–CV 10-04680, CV 10-04902, CV 22 10-04723, CV 10-04793, CV 10-04794, CV 10-04930, CV 10-04935 and CV 23 10-05192–into one action. The Clerk of Court shall consolidate these actions such 24 that the earliest filed action, CV 10-04680, is the lead case. All future filings shall be 25 in CV 10-04680 and bear the caption: “In re Zynga Privacy Litigation.” All future 26 related cases shall be automatically consolidated and administratively closed. Since 27 the later actions are now consumed in first filed action, the Clerk shall 28 5 Case5:10-cv-02389-JW Document69 Filed12/10/10 Page6 of 7 1 administratively close CV 10-04902, CV 10-04723, CV 10-04793, CV 10-04794, CV 2 10-04930, CV 10-04935 and CV 10-05192. 3 (2) The Court appoints Adam J. Levitt of Wolf, Halderstein, Adler, Freeman and Herz, 4 LLC; Jonathan Shub of Seeger Weiss, LLP; and Michael Aschenbrener of Edelson 5 McGuire, LLC as Interim Co-Lead Class Counsel. 6 7 8 9 (3) On or before January 10, 2011, Plaintiffs in the In re Zynga Privacy Litigation shall file a Consolidated Amended Class Action Complaint. The Court sets a Case Management Conference for January 31, 2011 at 9 a.m. for both In re Facebook Privacy Litigation and In re Zynga Privacy Litigation to discuss coordination of the two Actions. On or before January 14, 2011, In re Facebook Privacy Litigation and In re Zynga 11 For the Northern District of California United States District Court 10 Privacy Litigation shall file a Joint Case Management Statement. The Statement shall include a 12 good faith plan for coordination and contain, among other things, a proposed schedule for 13 coordinated discovery. 14 Dated: December 10, 2010 15 JAMES WARE United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case5:10-cv-02389-JW Document69 Filed12/10/10 Page7 of 7 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 Benjamin Harris Richman brichman@edelson.com Charles Hyunchul Jung cjung@nassiri-jung.com Christopher Lilliard Dore cdore@edelson.com Eric H. Gibbs ehg@girardgibbs.com Francis M. Gregorek gregorek@whafh.com Harris Lee Pogust hpogust@pbmattorneys.com James M. Penning jpenning@cooley.com Jay Edelson jedelson@edelson.com Jordan L. Lurie jlurie@weisslurie.com Kassra Powell Nassiri knassiri@nassiri-jung.com Matthew Dean Brown mbrown@cooley.com Matthew Joseph Zevin mzevin@stanleyiola.com Michael James Aschenbrener maschenbrener@edelson.com Richard L. Seabolt rlseabolt@duanemorris.com Robert Joseph Drexler rdrexler@kpalawyers.com Sean Patrick Reis sreis@edelson.com Shawn Khorrami skhorrami@kpalawyers.com Suzanne R. Fogarty srfogarty@duanemorris.com 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 Dated: December 10, 2010 Richard W. Wieking, Clerk 13 By: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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