Case 3:20-cv-07182-JCS Document 367 Filed 08/17/22 Page 1 of 23
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`ANDY R. O’LAUGHLIN (pro hac vice)
`andy.olaughlin@wilmerhale.com
`60 State Street
`Boston, MA 02109
`Telephone: (617) 526-6220
`Facsimile: (617) 526-5000
`
`CINDY PAN (pro hac vice)
`cindy.pan@wilmerhale.com
`250 Greenwich Street
`New York, NY 10007
`Telephone: (212) 937-7275
`Facsimile: (212) 230-8888
`
`
`
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`SONAL N. MEHTA (SBN 222086)
`Sonal.Mehta@wilmerhale.com
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`Telephone: (650) 858-6000
`Facsimile: (650) 858-6100
`
`ARI HOLTZBLATT (pro hac vice)
`Ari.Holtzblatt@wilmerhale.com
`ALLISON SCHULTZ (pro hac vice)
`Allison.Schultz@wilmerhale.com
`ROBIN C. BURRELL (pro hac vice)
`robin.burrell@wilmerhale.com
`1875 Pennsylvania Ave, NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`Facsimile: (202) 663-6363
`
`Attorneys for Plaintiff/Counterclaim Defendant
`Meta Platforms, Inc.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`META PLATFORMS, INC., a Delaware
` Case No. 3:20-cv-07182-JCS
`corporation,
`
`META PLATFORMS’ NOTICE OF
`
`MOTION AND MOTION FOR
`PERMANENT INJUNCTION, AND
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT THEREOF
`
`Hon. Joseph C. Spero
`Courtroom F – 15th Floor
`Date: September 30, 2022
`Time: 2:00 p.m.
`
`
`
`
`
`BRANDTOTAL, LTD., an Israel
`corporation, and UNIMANIA, INC., a
`Delaware corporation,
`
`
`Defendants/Counterclaim
`Plaintiffs.
`
`Plaintiff/Counterclaim
`Defendant,
`
`
`
`v.
`
`Case No. 3:20-cv-07182-JCS
`
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`Case 3:20-cv-07182-JCS Document 367 Filed 08/17/22 Page 2 of 23
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`
`
`TABLE OF CONTENTS
`NOTICE OF MOTION AND MOTION FOR PERMANENT INJUNCTION ............................. 1
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 
`INTRODUCTION .......................................................................................................................... 1 
`FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2 
`A.  BrandTotal Scrapes Data Using Automated Means In Violation Of Meta’s
`Terms And Uses Various Technical Measures To Obfuscate That
`Scraping ....................................................................................................................... 2 
`B.  BrandTotal Continued To Scrape Data Knowing It Is Unlawful ................................ 4 
`C.  Procedural History ....................................................................................................... 6 
`ARGUMENT .................................................................................................................................. 6 
`I. 
`META IS ENTITLED TO INJUNCTIVE RELIEF ........................................................... 8 
`A.  Meta Suffers Irreparable Harm From BrandTotal’s Violations of Law For
`Which Monetary Damages Are Insufficient ............................................................... 8 
`B.  The Balance Of Hardships Weighs In Favor Of Injunctive Relief ........................... 14 
`C.  An Injunction Is In The Public’s Interest .................................................................. 15 
`META’S PROPOSED INJUNCTION IS TAILORED TO PREVENT
`CONTINUING VIOLATIONS OF THE LAW AND ITS TERMS ................................ 16 
`CONCLUSION ............................................................................................................................. 17 
`
`
`II. 
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`
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Allen v. Campbell, 2021 WL 737123 (D. Idaho Feb. 25, 2021) ....................................................16
`
`Brighton Collectibles, Inc. v. Coldwater Creek, Inc., 2009 WL 10671767 (S.D.
`Cal. Jan. 23, 2009) .............................................................................................................13
`
`Clear-View Technologies, Inc. v. Rasnick, 2015 WL 13298075 (N.D. Cal. Aug.
`31, 2015) ..............................................................................................................................7
`
`Deckers Outdoor Corp. v. Ozwear Connection Pty Ltd., 2014 WL 4679001 (C.D.
`Cal. Sept. 18, 2014)............................................................................................................15
`
`Disney Enterprises, Inc. v. Delane, 446 F.Supp.2d 402 (D. Md. 2006) ..........................................9
`
`eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).....................................................7, 8, 13
`
`Elohim EPF USA, Inc. v. Aceplus, Inc., 2015 WL 13753299 (C.D. Cal. Jan. 2,
`2015) ..................................................................................................................................10
`
`Facebook, Inc. v. Power Ventures, Inc., 252 F. Supp. 3d 765 (N.D. Cal. 2017) ....9, 10, 11, 12, 13,
`14, 15, 16, 17
`
`Facebook, Inc. v. Zaghar, No. 20-cv-4054, Dkt. 22 ......................................................................16
`
`Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) .......................9
`
`General Motors LLC v. Santa Monica Group, Inc., 2010 WL 2740166 (C.D. Cal.
`July 9, 2010).......................................................................................................................16
`
`Google, Inc. v. Jackman, 2011 WL 3267907 (N.D. Cal. July 28, 2011) .......................................10
`
`Guaranty Trust Co. of New York v. York, 326 U.S. 99 (1945) ........................................................7
`
`Haas Automation, Inc. v. Denny, 2014 WL 2966989 (C.D. Cal. July 1, 2014) ............................13
`
`I-Flow Corp. v. Apex Medical Technologies, Inc., 2010 WL 141402
`(S.D. Cal. Jan. 8, 2010) ......................................................................................................14
`
`Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197
`(C.D. Cal. 2007) ...............................................................................................................8, 9
`
`Perlmutter v. Lehigh Hanson, Inc., 2021 WL 4033029 (N.D. Cal. Sept. 3, 2021) .........................7
`
`Phillip Morris USA Inc. v. Shalabi, 352 F. Supp. 2d 1067 (C.D. Cal. 2004) ................................15
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`
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`Pyro Spectaculars North, Inc. v. Souza, 861 F. Supp. 2d 1079 (E.D. Cal. 2012) .........................11
`
`Rocawear Licensing, LLC v. Branco Enterprises, Inc., 2009 WL 10703523 (C.D.
`Cal. July 22, 2009) ...............................................................................................................7
`
`Sims Snowboards, Inc. v. Kelly, 863 F.2d 643 (9th Cir. 1988) ........................................................7
`
`Stackla, Inc. v. Facebook Inc., 2019 WL 4738288 (N.D. Cal. Sept. 27, 2019) .............................11
`
`Tagged, Inc. v. Does 1 through 10, 2010 WL 370331 (N.D. Cal. Jan. 25. 2010) ...................12, 14
`
`United National Maintenance, Inc. v. San Diego Convention Center Corp., 2012
`WL 3861946 (S.D. Cal. Sept. 5, 2012) ......................................................................6, 7, 14
`
`United States v. Holtzman, 762 F.2d 720 (9th Cir. 1985) ..............................................................15
`
`Wilderness Watch v. Iwamoto, 853 F. Supp. 2d 1063 (W.D. Wash. 2012) ...................................11
`
`Wilshire Commerical Capital, LLC v. Instant Financing, Inc., 2016 WL
`11760801 (C.D. Cal. Dec. 6, 2016) ...................................................................................13
`
`STATUTES, RULES, AND REGULATIONS
`
`Cal. Bus. & Prof. Code § 17203 ....................................................................................................12
`
`Cal. Civil Code § 3422.....................................................................................................7, 8, 13, 14
`
`California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code
`§ 502.........................................................................................................................1, 12, 13
`
`Federal Rule of Civil Procedure 65(d)(2) ........................................................................................1
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`NOTICE OF MOTION AND MOTION FOR PERMANENT INJUNCTION
`PLEASE TAKE NOTICE THAT, on September 30, 2022 at 2:00 p.m. or as soon thereafter
`as the matter may be heard, in Courtroom F of the U.S. District Court for the Northern District of
`California, San Francisco Division, at 450 Golden Gate Avenue, San Francisco, California,
`Plaintiff/Counterclaim Defendant Meta Platforms, Inc. (“Meta”) will and hereby does move for
`entry of a permanent injunction against Defendants/Counterclaim Plaintiffs BrandTotal, Ltd. and
`Unimania, Inc. (together, “BrandTotal” or “Defendants”), and all other individuals who are
`described in Federal Rule of Civil Procedure 65(d)(2). This Motion is based upon this Notice of
`Motion, the Memorandum of Points and Authorities filed herewith.
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`For at least five years, BrandTotal intentionally engaged in an extensive and unauthorized
`data scraping operation to collect user and advertising data from Facebook and Instagram.
`BrandTotal made a calculated business decision to develop and use multiple apps and extensions
`to scrape data from Meta in violation of Facebook’s Terms of Service and Instagram’s Terms of
`Use (collectively the “Terms”). And it went to great lengths to conceal its conduct, including by
`using fake accounts and technical measures to evade detection by Meta. BrandTotal engaged in
`this conduct willfully, continuing to scrape data using its apps and extensions and developing and
`using multiple new scraping tools, even after Meta filed this lawsuit and unambiguously revoked
`any access to its platforms.
`On May 27, 2022, this Court held that all of BrandTotal’s conduct breached the Facebook
`and Instagram Terms and that BrandTotal had also violated the California Comprehensive
`Computer Data Access and Fraud Act (“CDAFA”), Cal. Penal Code § 502 and California’s unfair
`competition law (“UCL”). The Court therefore granted Meta’s motion for partial summary
`judgment as to liability on Meta’s breach of contract, CDAFA, and UCL claims. Dkt. 344 at 41
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`(the “MSJ Op.”).1 Meta now requests that the Court enter a permanent injunction.
`BrandTotal remains in possession of the data that it scraped and sold to its customers, and
`the software code that it designed to collect that data from Meta’s platforms. BrandTotal’s
`willingness to continually violate the law and attempts to conceal its illegal activities are well
`documented. And BrandTotal has shown throughout this litigation that it is prepared to continue
`scraping data in violation of the law and Meta’s Terms even when it is clear that doing so is
`unlawful. Given those undisputed facts about BrandTotal’s conduct before and throughout this
`litigation, the irreparable and serious nature of the harm, and the public’s interest in preventing the
`deceptive conduct that BrandTotal has carried out, injunctive relief is necessary.
`As set forth in the attached proposed permanent injunction, Meta seeks prospective relief
`that prevents BrandTotal from (1) accessing Facebook or Instagram or scraping data from those
`platforms, including from users while they are interacting with those platforms, Proposed Order
`¶ 1(a), (b), (e); (2) selling or distributing the code that it has used to scrape data from Facebook
`and Instagram, Proposed Order ¶ 1(c), (d); and (3) selling or distributing the data that it has illegally
`scraped from Facebook and Instagram, Proposed Order ¶ 1(f), (g). The injunction would also
`require that BrandTotal delete the code it has used to scrape data and the data it has scraped and
`desist from further attempts to access Meta’s platforms. In light of the Court’s holding at summary
`judgment, BrandTotal has no legitimate interests in engaging in any of these activities.
`FACTUAL AND PROCEDURAL BACKGROUND
`The Court is familiar with the facts and procedural history of this case, so Meta provides
`below only a brief summary of the facts and events relevant to this motion.
`A.
`BrandTotal Scrapes Data Using Automated Means In Violation Of Meta’s
`Terms And Uses Various Technical Measures To Obfuscate That Scraping
`Since October 2017, BrandTotal has developed, promoted, and distributed at least thirteen
`browser extensions and mobile applications that scraped data from Facebook and Instagram. MSJ
`
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`1 The Court entered its order provisionally under seal on May 27, 2022, see Dkt. 339, and
`entered a redacted public version of that order on June 6, 2022, see Dkt. 344. Citations to the
`Order refer to that redacted public order.
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`Op. at 2. Those tools scraped data from Facebook and Instagram in several ways. BrandTotal
`used at least ten extensions and applications prior to the filing of this lawsuit that scraped data by
`(1) monitoring logged-in users on Facebook and Instagram and surreptitiously scraping data while
`the user browsed those platforms and (2) sending unauthorized automated requests for
`demographic data of the Meta user using the user’s log-in credentials. See MSJ Op. at 2; Meta’s
`Motion for Summary Judgment, Dkt. 272 (“MSJ”), Ex. 22 at 108:10-14; MSJ Ex. 1 ¶¶ 34-35, 99-
`102. As this Court put it, BrandTotal “hikjack[ed] a user’s logged-in session with Facebook or
`Instagram to manipulate Meta’s servers to divulge further information.” MSJ Op. at 52.
`BrandTotal has referred to these tools as its “legacy” extensions and applications. BrandTotal also
`collected data more “proactively” by sending requests for data directly from its servers to Meta’s
`computer (“Server-Side Collection”), including by creating and purchasing accounts solely to
`generate access credentials to scrape data through these direct server requests (scraping accounts
`which it referred to as “the Muppets”). MSJ Op. at 2-3; MSJ Ex. 1 ¶¶ 108-110; Ex. 13 at 216:4-
`218:1, Ex. 14 at 94:7-102:9. As discussed further below, BrandTotal continued using its legacy
`extensions and applications, and Server-Side Collection after Meta filed this lawsuit.
`In addition, during the course of this lawsuit, BrandTotal developed several new extensions
`it used to scrape data from Meta. In February 2021, months after Meta filed this lawsuit and
`thereby unambiguously revoked BrandTotal’s access to its platforms, BrandTotal launched
`another scraping tool that targeted Meta called UpVoice 2021. UpVoice 2021 relied on logged-in
`users’ access to Facebook to automatically scrape data from password-protected areas of
`Facebook. MSJ Op. at 2; MSJ Ex. 21 at 2-3. BrandTotal also developed a Spanish-language
`equivalent product called Calix in connection with a third-party around August 2021. MSJ Op. at
`2; MSJ Ex. 20 ¶ 102. And in late 2021, BrandTotal launched its “Restricted Panel” extension,
`through which it pays individuals in India to log in to a Facebook account, provides those
`individuals a list of “restricted” Facebook pages to access (e.g., pages accessible only to logged-
`in users of a certain age), and then uses the extension to scrape data from those password-protected
`areas of Facebook while a VPN obscures the source location of the request. MSJ Op. at 2; MSJ
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`Ex. 14 at 178:9-16, 183:13-185:11.
`BrandTotal employed various technical measures to attempt to evade detection by Meta.
`BrandTotal purchased and created Instagram and fake Facebook accounts to generate access
`credentials and it used access tokens and cookies to trick Meta into thinking requests sent as part
`of its Server-Side Collection were coming from a real logged-in user (rather than from
`BrandTotal), it used proxies to disguise its true IP address when connecting to Meta’s computers,
`and it manipulated user-agent headers to make a request appear as it was coming from an
`individual’s phone, rather than from a BrandTotal server. MSJ Ex. 13 at 213:17-214:4; 216:4-
`218:4, 218:2-4.
`B.
`BrandTotal Continued To Scrape Data Knowing It Is Unlawful
`BrandTotal used its extensions, applications, and Server-Side collection knowing that the
`Facebook and Instagram Terms prohibited such automated collection of data. It received express
`legal advice that its scraping practices are prohibited under the Facebook and Instagram Terms, or
`at best operate in “a grey area.” As this Court described in its order on Meta’s motion to dismiss:
`In March of 2019, BrandTotal received legal advice from its Israeli counsel
`concluding that to the extent its products passively collected data served to users
`during their browsing, that did not implicate Facebook’s terms of service, based in
`part on a dubiously narrow interpretation of the word “Products” in those terms to
`exclude advertisements …. BrandTotal’s attorneys determined that with respect to
`“active” collection through “calls” initiated by BrandTotal’s products, BrandTotal
`was in a “grey area” because on one had the data collected might not implicate the
`terms of service if it was not part of Facebook's “Products,” but on the other hand
`that method of collection could be considered as misuse of Facebook's APIs to
`access data for which BrandTotal lacked permission.
`Dkt. 154 at 4. “BrandTotal did not change its practices in response to that opinion.” Id. Instead,
`BrandTotal scraped data from Facebook and Instagram at a massive scale, without asking for
`permission to use automated means to collect data. MSJ Ex. 7 at 90:11-20.
`After detecting BrandTotal’s scraping operation, Meta took various technical and legal
`enforcement measures that unambiguously put BrandTotal on notice that its conduct violated
`Meta’s Terms and was otherwise unlawful. Meta disabled BrandTotal’s known Facebook and
`Instagram accounts, reported two of BrandTotal’s extensions to Google, and filed suit against
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`BrandTotal in the Superior Court of California. MSJ Op. at 3; MSJ Karve Decl. ¶ 5. When
`BrandTotal nonetheless created new Facebook and Instagram accounts and republished one of its
`scraping extensions on the Google Chrome Web Store—after that extension was suspended by
`Google—Meta dismissed its state-court case and filed this federal action, adding claims under the
`CFAA, CDAFA, and UCL. Dkt. 1; see also MSJ Ex. 27 ¶¶ 14, 34. Throughout the litigation,
`Meta likewise reiterated to BrandTotal that it did not have permission to collect data from
`Facebook or Instagram and that continuing to do so was unlawful. For example, in a March 4,
`2021 letter responding to BrandTotal’s request for permission to scrape using UpVoice 2021,
`counsel for Meta emphasized that “BrandTotal’s access to Facebook” (including via UpVoice
`2021) “remains revoked.” MSJ Ex. 78. And again during the hearing on BrandTotal’s motion for
`preliminary injunction, counsel explained: “And I want to make clear that Facebook's position
`remains, of course, that access to our systems is revoked.” May 28, 2021 Hearing Transcript, Dkt.
`156 at 16.
`Early in the litigation, the Court even warned BrandTotal that its scraping likely violated
`Meta’s Terms. As the Court concluded in denying BrandTotal’s motion for temporary restraining
`order, “[b]ecause BrandTotal used ‘automated means’ to access and collect data from Facebook’s
`website without obtaining Facebook’s permission as required by the terms of service …
`BrandTotal ha[d] not shown a likelihood of success, or even serious issues, on its claim for
`declaratory judgment that it did not breach those terms.” Dkt. 63 at 29. Put another way: “[T]he
`UpVoice extension very likely breached Facebook’s terms of use.” Id. at 26 n.13.
`BrandTotal nonetheless continued its unauthorized scraping operation throughout the
`course of this lawsuit. BrandTotal knowingly continued to collect and monetize data through its
`legacy extensions and applications after Meta filed this lawsuit and unambiguously revoked
`access, including from the extensions that Google had removed from its store. MSJ Ex. 22 at
`91:19-94:5, Ex. 47 at 23:23-24:12. Most troublingly, BrandTotal made no effort to stop collecting
`data from versions of two of its applications that had been programmed to exfiltrate user access
`credentials. MSJ Op. at 2; MSJ Ex. 25 at 40:18-45:21. And BrandTotal also launched at least
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`three new scraping apps and extensions since Meta filed its lawsuit, see supra p. 3; MSJ Op. at 2-
`3, and maintained two ready-to-launch extensions as “back-up(s)” in case it has other extensions
`taken down. MSJ Ex. Ex. 81. Despite this Court’s warning that the legacy apps and extensions
`likely violated Meta’s Terms, BrandTotal continued to willingly disregard those Terms and
`develop new ways to violate them.
`C.
`Procedural History
`On May 27, 2022, the Court granted Meta’s motion for partial summary judgment, holding
`that Meta was entitled to judgment as to liability on its claim for breach of contract. MSJ Op. at
`41. The Court concluded that BrandTotal was bound by Meta’s Terms, Meta had performed under
`the contract, Meta’s Terms were not unconscionable or void on public policy grounds, and
`BrandTotal had breached Meta’s Terms when it scraped data from Meta without authorization.
`MSJ Op. at 21-41. The Court also held that BrandTotal violated the CDAFA, UCL, and CFAA
`(provided that Meta could show a resulting loss of at least $5,000) when BrandTotal scraped
`password-protected data from Meta’s platforms using its legacy apps and extensions and Server-
`Side Collection method. Id.
`The Court also granted Meta’s motion for summary judgment as to all of BrandTotal’s
`counterclaims. MSJ Op. at 67-68. Finally, the Court held that BrandTotal’s use of UpVoice 2021
`and its restricted panel extension, and its Server-Side Collection from non-password-protected
`pages did not violate the CFAA, CDAFA, or UCL.
`Since that decision, the parties have attempted to negotiate the terms of a stipulated
`injunction, but they have not yet reached a resolution. Meta remains hopeful that an agreement
`can be reached. But given BrandTotal’s historic conduct, and the risk that BrandTotal might
`attempt to transfer or sell its data and scraping technology to others, Meta now moves for a
`permanent injunction to enjoin future violations of its Terms and of the CDAFA and UCL.
`ARGUMENT
`“Where the underlying claim is based on state law, the applicability of injunctive relief
`must also be based on state law in order to avoid the risk of different outcomes in federal and state
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`court.” United Nat’l Maint., Inc. v. San Diego Convention Ctr. Corp., 2012 WL 3861946, at *4
`(S.D. Cal. Sept. 5, 2012) (citing Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109 (1945)).
`“Thus, in the Ninth Circuit, the availability of injunctive relief is a substantive issue and is therefore
`governed by state law.” Id. (citing Sims Snowboards, Inc. v. Kelly, 863 F.2d 643, 647 (9th Cir.
`1988). California law permits entry of a permanent injunction “to prevent the breach of an
`obligation” if the plaintiff can demonstrate one of four circumstances: “(1) [w]here pecuniary
`compensation would not afford adequate relief; (2) [w]here it would be extremely difficult to
`ascertain the amount of compensation which would afford adequate relief; (3) [w]here the restraint
`is necessary to prevent a multiplicity of judicial proceedings; or (4) [w]here the obligation arises
`from a trust.” Cal. Civil Code § 3422. As set forth below, the first and third circumstances entitle
`Meta to an injunction here. Damages would not afford Meta adequate relief and injunctive relief
`is necessary to avoid the burden of relitigating the issue each time BrandTotal scrapes data.
`While California law governs the availability of injunctive relief, some federal courts also
`apply the federal standard for an injunction in this context to determine whether the court should
`exercise discretion to grant an injunction that is authorized under state law. See Clear-View Techs.,
`Inc. v. Rasnick, 2015 WL 13298075, at *12 (N.D. Cal. Aug. 31, 2015) (holding that state law
`governed availability of injunctive relief and federal standard governed the court’s “exercise of
`discretion”); see also Perlmutter v. Lehigh Hanson, Inc., 2021 WL 4033029, at *5 n.4 (N.D. Cal.
`Sept. 3, 2021) (noting that several courts within in this Circuit have concluded that federal
`equitable principles govern appropriateness of injunctive relief). Under federal law, a prevailing
`plaintiff is entitled to a permanent injunction if it can show: “that (1) it has suffered an irreparable
`injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for
`that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a
`remedy in equity is warranted; and (4) the public interest would not be ‘disserved’ by a permanent
`injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Because the
`“irreparable injury requirement for a permanent injunction overlaps with lack of an adequate
`remedy at law,” courts often discuss these first two factors together. Rocawear Licensing, LLC v.
`
`Case No. 3:20-cv-07182-JCS
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`7 META’S MOT. FOR PERMANENT INJUNCTION
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`Branco Enters., Inc., 2009 WL 10703523, at *9 (C.D. Cal. July 22, 2009) (citation omitted). Meta
`satisfies all four of the federal factors for granting permanent injunctive relief.
`I.
`META IS ENTITLED TO INJUNCTIVE RELIEF
`A. Meta Suffers Irreparable Harm From BrandTotal’s Violations of Law For
`Which Monetary Damages Are Insufficient
`Meta has established irreparable injury for which money damages are inadequate for four
`reasons. First, it is likely that Meta would need to bring serial lawsuits to enforce its Terms to stop
`BrandTotal from scraping without a permanent injunction. Second, BrandTotal’s history of
`concealing its scraping activity would force Meta to spend resources policing against further
`scraping absent an injunction. Third, BrandTotal still possesses the data that it scraped and the
`software (in the form of apps, extensions, and Server-Side Collection code) that it used to scrape
`that data and has shown that it is willing to continue to use or monetize it absent an injunction.
`And finally, without an injunction, it is likely that Meta would continue to suffer irreparable injury
`in the form of continuous statutory violations. Each of these factors independently satisfies the
`first two factors governing a court’s exercise of equitable discretion under eBay—the need to show
`irreparable harm and that remedies available at law are inadequate to compensate for the injury.
`eBay, 547 U.S. at 391. In addition, Meta’s showing that an injunction is necessary to prevent a
`multiplicity of lawsuits and that damages would not afford adequate relief each independently
`satisfy the substantive state law test for an injunction under Section 3422. See Cal. Civil Code §
`3422(1), (3).
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` Meta Would Likely Be Forced To File Multiple Lawsuits To Stop BrandTotal’s
`Scraping Without An Injunction
`First, Meta faces irreparable injury because absent a permanent injunction, it is likely that
`it would be forced to sue again and again to stop BrandTotal from continuing to scrape. As the
`court in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. explained, “the very need to file
`multiple lawsuits as a consequence of [defendant’s misconduct] is itself supporting of an
`irreparable harm finding.” 518 F. Supp. 2d 1197, 1219 (C.D. Cal. 2007). This is substantial
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`concern here. BrandTotal developed and used its scraping tools after receiving legal advice that
`those tools likely violated Meta’s Terms. See supra p. 4. Throughout this litigation and despite
`Meta’s unequivocal revocation of access to any of its platforms, BrandTotal continued to scrape
`data using its legacy applications and extensions. See supra pp. 4-6. And BrandTotal has
`demonstrated its propensity to develop and use new tools to scrape data from Facebook and
`Instagram, knowing that its conduct breached Meta’s Terms, including using contractors in India
`to scrape data. See supra p. 9. Given that conduct, Meta has shown it is likely to suffer irreparable
`harm absent an injunction. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989,
`998 (9th Cir. 2011) (holding that a “plaintiff must demonstrate a likelihood of irreparable harm as
`a prerequisite for injunctive relief, whether preliminary or permanent”).
`The necessity to bring multiple lawsuits also makes monetary damages an insufficient
`remedy. “[A] legal remedy is inadequate if it would require a ‘multiplicity of suits.’” Metro-
`Goldwyn, 518 F. Supp. 2d at 1220 (citation omitted). In Metro-Goldwyn, the court concluded that
`it would be “untenable for Plaintiffs to track and proceed against every infringer who continues to
`illegally reproduce and distribute elsewhere the files originally obtained through StreamCast’s
`inducement.” Id. This is especially true here where, because of the nature of BrandTotal’s
`scraping, there is often no way for Meta to know when BrandTotal is violating its Terms. See
`e.g., Disney Enters., Inc. v. Delane, 446 F.Supp.2d 402, 408 (D. Md. 2006) (“[T]here is no way to
`know how many times this content has been accessed and downloaded. … [B]ecause of the nature
`of his Web site and trackers, further infringements are a continuing threat, making remedies at law
`insufficient to compensate for Plaintiffs’ injuries.”). Because BrandTotal employs tactics that
`make it difficult to detect its behavior, it would be especially inequitable to require Meta to file a
`new lawsuit each time BrandTotal violates its Terms.
`The court granted a permanent injunction under similar circumstances in another data
`scraping case, Facebook, Inc. v. Power Ventures, Inc., 252 F. Supp. 3d 765 (N.D. Cal. 2017).
`There, the court concluded that Facebook had met its burden to show irreparable harm because the
`defendant’s his