Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 1 of 8
`
`Rudolph A. Telscher, Jr.*
`rudy.telscher@huschblackwell.com
`Kara R. Fussner*
`kara.fussner@huschblackwell.com
`HUSCH BLACKWELL LLP
`190 Carondelet Plaza, Suite 600
`St. Louis, MO 63105
`314-480-1500 Telephone
`
`David E. Anderson*
`david.anderson@huschblackwell.com
`HUSCH BLACKWELL LLP
`120 South Riverside Plaza Suite 2200
`Chicago, IL 60606
`312-655-1500 Telephone
`
`Dustin L. Taylor*
`dustin.taylor@huschblackwell.com
`David Stauss*
`david.stauss@huschblackwell.com
`HUSCH BLACKWELL LLP
`180 1 Wewatta Street, Suite 1000
`Denver, CO 80202
`303-749-7200 Telephone
`
`
`Stephen P. Bosco*
`stephen.bosco@huschblackwell.com
`HUSCH BLACKWELL LLP
`750 17th Street, NW, Suite 900
`Washington, DC 20006
`202-378-2300 Telephone
`
`*admitted pro hac vice
`
`Karl Kronenberger (CA Bar No. 226112)
`karl@krinternetlaw.com
`Jeffrey M. Rosenfeld (CA Bar No. 222187)
`jeff@krinternetlaw.com
`KRONENBERGER ROSENFELD, LLP
`150 Post Street, Suite 520
`San Francisco, CA 94108
`415-955-1155 Telephone
`415-955-1158 Facsimile
`
`Attorneys for Defendants/Counterclaim
`Plaintiffs BrandTotal, Ltd. and Unimania,
`Inc.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO/OAKLAND DIVISION
`
`META PLATFORMS, INC., a Delaware
`corporation,
`
`
`Plaintiff/Counterclaim
`Defendant,
`
`v.
`
`BRANDTOTAL, LTD., an Israeli
`corporation, and
`UNIMANIA, INC., a Delaware
`corporation,
`
`
`Defendants/Counterclaim
`Plaintiffs.
`
`
`Case No.: 3:20-CV-07182-JCS
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
`Judge: The Hon. Joseph C. Spero
`Ctrm.: Courtroom F – 15th Floor
`
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
`
`
`Case No. 3:20-CV-07182-JCS
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`Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 2 of 8
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`I.
`
`INTRODUCTION
`Not content that BrandTotal has made the strategic decision to cease all business activity
`and wind down its operations, Meta is now attempting to use its limitless resources to further
`strong-arm BrandTotal into an unfavorable settlement by forcing it to respond to premature, pre-
`judgment motions seeking attorneys’ fee and injunctive relief without allowing BrandTotal a full
`and fair opportunity to respond. These motions seek to impose massive new financial penalties,
`conduct restrictions, and property disgorgements upon BrandTotal based on theories and evidence
`that were not previously disclosed to BrandTotal—all before any judgment has even been entered
`in this matter. In view of the new theories, evidence, and draconian relief sought in Meta’s
`motions, and given that BrandTotal has been focused on winding down its operations and
`preparing for a scheduled mediation on August 29 intended to resolve the parties’ dispute without
`further judicial intervention, BrandTotal requested a modest-under-the-circumstances 30-day
`extension to the deadline for its response.
`Meta’s response—which it has refused to budge from even after further compromise offers
`from BrandTotal— was a miserly nine-day extension that was conditional upon BrandTotal
`accepting Meta’s arbitrary and unilateral decision that the hearing on these motions should be held
`on September 30. BrandTotal cannot reasonably evaluate and respond to Meta’s new theories,
`evidence, and argument in that time frame and should not have to agree to these unacceptable
`conditions. There is no urgent need to resolve these issues—to the contrary, as is explained in
`more detail below, many are likely not even ripe for adjudication—and Meta had more than 2.5
`months to develop its arguments after entry of the Court’s Order on the parties’ partial summary
`judgment motions. There is no reason that BrandTotal should be prohibited from using a fraction
`of that time to respond to incredibly impactful motions that seek to impose lifelong and invasive
`conduct restrictions on BrandTotal and its officers and agents, in addition to financial penalties that
`are almost twenty times larger than the actual damages Meta has claimed. Accordingly, and for all
`the reasons set forth below and in the accompanying declaration of Kara Fussner, BrandTotal files
`this opposed motion under Local Civil Rule 6-3 and asks the Court to enlarge the time for
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
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`Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 3 of 8
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`BrandTotal’s opposition to the following motions—(1) Plaintiff Meta Platforms, Inc.’s Motion for
`Attorney’s Fees (ECF No. 368, “Fee Motion”) and (2) Plaintiff Meta Platforms, Inc.’s Motion for
`Permanent Injunction (ECF No. 367, “Injunction Motion) (collectively, “the Motions”)—to
`September 30 or a date to be determined after the Court enters judgment.
`II.
`RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
`The Court issued its Order on the parties’ partial summary judgment motions on May 27.
`In that Order, the Court granted aspects of both parties’ summary judgment motions, denied other
`aspects, and expressly deferred resolution of substantial legal and factual issues for subsequent
`proceedings. Specifically, on Meta’s breach of contract claim, the Court granted Meta summary
`judgment as to BrandTotal’s liability, but made clear that “the amount of any actual damages [is]
`to be proven at trial.” ECF No. 339 at 41. As to Meta’s Computer Fraud and Abuse Act (“CFAA”)
`claim and Penal Code § 502 claim (sometimes called the “CDAFA” claim), the Court granted
`BrandTotal’s request for summary judgment that its UpVoice 2021 data collection does not violate
`the CFAA, holding that “the statute does not encompass UpVoice 2021’s data collection, at least
`where it is installed by individuals who are not subject to any sort of direction by BrandTotal.” Id.
`at 43. The Court also held that BrandTotal’s accessing of non-password protected Facebook and
`Instagram pages did not violate the CFAA. Id. at 43-44. The Court applied both of these holdings
`in full to Facebook’s Penal Code claim, which the Court recognized as substantially “co-
`extensive” with Meta’s CFAA claim. Id. at 45.
`As to Meta’s motion for summary judgment on its CFAA and Penal Code claims, the Court
`denied it as to CFAA entirely based on disputed issues of fact relating to damages and denied
`summary judgment on the merits as to substantial aspects of both of Meta’s CFAA and Penal Code
`claims. For example, the Court denied Meta’s summary judgment claim on the CFAA and Penal
`Code “[t]o the extent it seeks judgment that BrandTotal’s collection of data from panelists using
`UpVoice 2021, or its direct access to non-password-protected portions of Meta’s platforms violates
`those statutes.” Id. at 47. Further, the Court held that “Meta’s motion for summary judgment is
`DENIED as to the question of whether BrandTotal’s use of the RPE violates the CFAA or the
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
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`CDAFA.” Id. at 57. Indeed, the Court only granted summary judgment in Meta’s favor on a
`narrow subset of the conduct for which Meta sought relief, and even as to that conduct made clear
`that “relief [is] to be determined at trial”:
`
`Meta’s motions for summary judgment is GRANTED as to the question of whether active
`collection of data from password-protected portions of Meta’s services by BrandTotal’s
`legacy programs, and by BrandTotal directly, violated the CFAA and the CDAFA. Meta’s
`motion is otherwise DENIED as to these claims. Meta will be entitled to judgment in its
`favor on the CDAFA claim based on its legacy programs and direct access to password-
`protected material, with relief to be determined at trial. Meta’s CFAA claim remains
`contingent on showing at trial at least $5,000 in loss caused by BrandTotal’s violations.
`Id. at 57 (emphasis added). The Court’s grant of summary judgment as to Meta’s UCL claim was
`narrowly circumscribed to the same limited conduct, and the Court granted BrandTotal summary
`judgment “as to a finding that its use of UpVoice 2021 does not violate the UCL.” Id. at 59.
`Critically, the Court has not entered judgment in this action as to any of the parties’ claims.
`Following the Court’s Order, BrandTotal repeatedly met and conferred with Meta in good
`faith to resolve the outstanding issues and allow the parties to proceed with an appeal without
`requiring the expenditure of resources required by a trial. While no comprehensive agreement was
`reached, substantial progress was made regarding the scope of a proposed an injunction—an
`agreement that Meta seemingly ignores in filing its motion for a permanent injunction that fails to
`include many of BrandTotal’s revisions—the parties have been unable to agree on the scope of
`damages. BrandTotal maintains that Meta’s request for millions in “unjust enrichment” is legally
`improper, depends on improper methodology, and factually absurd considering that BrandTotal
`was never profitable. BrandTotal’s motion to exclude the opinions of Meta’s damages expert
`remains pending. ECF No. 249.
`After several such meet and confers, Meta raised—for the first time in this litigation—its
`intent to seek attorneys’ fees under the Penal Code. Meta did not even include a claim under the
`California State Penal Code in its original State court complaint. Nor did Meta plead any
`entitlement to attorneys’ fees in either its original or amended Federal complaint.
`
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
`Case No. 3:20-CV-07182-JCS
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`Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 5 of 8
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`III. THERE ARE NO EXIGENT CIRCUMSTANCES JUSTIFYING META’S
`REFUSAL TO GRANT THE REQUESTED EXTENSION AND ITS DEMAND FOR
`COMPRESSED BRIEFING AND HEARING SCHEDULE
`Until Meta unilaterally altered the status quo by filing the Motions, there were no
`significant upcoming pre-trial deadlines on the case calendar apart from the August 29 mediation.
`Negotiations were ongoing on remaining disputes and BrandTotal at least was optimistic that the
`mediation could lead to amicable resolution of the remaining issues. Trial is not set to begin until
`October 31. In short, BrandTotal’s requested extension would have no negative impact on the case
`schedule, and there is no basis in the schedule for Meta’s sudden insistence that its pre-judgment
`demands for attorney’s fees and injunctive relief be heard on September 30.
`Meta’s proffered reasons for its sudden urgency and its refusal to grant the requested
`extension—(1) that BrandTotal might somehow restart its business in the interim and (2) that it
`might not have funds to pay Meta the attorneys’ fees to which it is purportedly “entitled”—are
`illogical and internally contradictory. It is undisputed and indisputable that BrandTotal has ceased
`all operations. See Injunction Motion at 13 (quoting unequivocal BrandTotal notice on website
`stating that “BrandTotal has ceased operating and has shut down all operations, including
`UpVoice, effective June 29, 2022”). Indeed, in its Fee Motion Meta flatly represented that “Meta’s
`summary judgment victories on the merits of its claims have…caused BrandTotal to shut down its
`entire scraping operation” and argued that Meta qualifies as a “prevailing party” on that basis
`alone. ECF No. 368 at 8 n.3. Meta’s purported concern that granting BrandTotal a modest 30-day
`extension for its Response to the Motions creates a risk that BrandTotal will resume operations is
`disingenuous and unserious.
`As to the notion that BrandTotal might not have the funds sufficient to cover the attorneys’
`fees to which Meta claims it is “entitled” merely because it “prevailed on its CDAFA claim,” ECF
`No. 368 at 7, Meta knows better. BrandTotal has shared its insurance policy with Meta and there
`are ample funds available (i.e., several million remaining on the policy). Further, it would be
`fundamentally unjust if Meta were permitted to use the very financial difficulties it created as a
`sword to deny BrandTotal a full and fair opportunity to respond to Meta’s Fee Motion, which is
`based on a previously undisclosed legal theory and relies on over 4,000 fee entries which Meta
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
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`never provided to BrandTotal during prior negotiations. And while Meta apparently thinks
`BrandTotal’s opportunity to be heard and the Court’s ultimate decision on the Fee Motion are mere
`formalities that will inevitably result in a full award of the fees to which Meta is “entitled,” under
`the statutory provision Meta relies on Meta is not “entitled” to anything. Penal Code § 502(e)(2)
`merely states that “the court may award reasonable attorney’s fees,” and courts interpreting the
`provision have made it clear that such awards are only appropriate when a party’s litigation
`positions in Penal Code § 502 litigation are unreasonable or frivolous—which Meta has not even
`alleged. See Mfg. Automation & Software Sys., Inc. v. Hughes, No. 2:16-CV-08962-CAS-KSx,
`2019 WL 2396308, at *4 (C.D. Cal. June 3, 2019), aff'd, 833 F. App'x 147 (9th Cir. 2021) (“…the
`Court nonetheless finds that plaintiff's section 502 claim was neither frivolous nor unreasonable
`and declines to award attorneys’ fees to defendants under section 502(e)”).
`Finally, Meta’s refusal to grant BrandTotal’s modest schedule extension is particularly
`improper since BrandTotal’s preliminary investigation indicates that most courts would deem its
`pre-judgment Fee Motion to be premature as matter of law. See, e.g., Use Techno Corp. v. Kenko
`USA, Inc., No. C-06-02754 EDL, 2007 WL 3045996, at *2 (N.D. Cal. Oct. 18, 2007) (denying
`motion for attorney’s fees because “there is no entry of judgment and the case remains open and
`active on the Court’s docket.”); Ondersma v. Metro. Life Ins. Co., No. 06-cv-0258 MMC, 2007
`WL 4371422, at *9 (N.D. Cal. Dec. 12, 2007) (“To the extent plaintiff seeks fees and costs, the
`request is premature because judgment has not been entered.”); Unicolors Inc. v. H & M Hennes &
`Mauritz, L.P., No. 2:16-CV-02322-AB-SKx, 2018 WL 10321879, at *1 (C.D. Cal. Apr. 25, 2018)
`(“Plaintiff's motion is premature under Rule 54 because no judgment has been entered in this case.
`Without a judgment, Plaintiff cannot possibly ‘specify the judgment . . . entitling [it] to the
`award.’” BrandTotal should not be forced to engage in expedited briefing on a claim that is not
`even ripe.
`For all the foregoing reasons, BrandTotal respectfully asks the Court to grant its requested
`enlargement of time for its response to the Motions.
`
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
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`Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 7 of 8
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`Date: August 26, 2022
`
`
`
`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
`
`Respectfully submitted,
`
`By: /s/ Kara R. Fussner
`Rudolph A. Telscher, Jr.*
`rudy.telscher@huschblackwell.com
`Kara R. Fussner*
`kara.fussner@huschblackwell.com
`HUSCH BLACKWELL LLP
`190 Carondelet Plaza, Suite 600
`St. Louis, MO 63105
`314-480-1500 Telephone
`
`David E. Anderson*
`david.anderson@huschblackwell.com
`HUSCH BLACKWELL LLP
`120 South Riverside Plaza Suite 2200
`Chicago, IL 60606
`312-655-1500 Telephone
`
`Dustin L. Taylor*
`dustin.taylor@huschblackwell.com
`David Stauss*
`david.stauss@huschblackwell.com
`HUSCH BLACKWELL LLP
`180 1 Wewatta Street, Suite 1000
`Denver, CO 80202
`303-749-7200 Telephone
`
`Stephen P. Bosco*
`stephen.bosco@huschblackwell.com
`HUSCH BLACKWELL LLP
`750 17th Street, NW, Suite 900
`Washington, DC 20006
`202-378-2300 Telephone
`
`*admitted pro hac vice
`
`Karl Kronenberger (CA Bar No. 226112)
`karl@krinternetlaw.com
`Jeffrey M. Rosenfeld (CA Bar No. 222187)
`jeff@krinternetlaw.com
`KRONENBERGER ROSENFELD, LLP
`150 Post Street, Suite 520
`San Francisco, CA 94108
`415-955-1155 Telephone
`415-955-1158 Facsimile
`
`Attorneys for Defendants/Counterclaim Plaintiffs
`BrandTotal, Ltd. and Unimania, Inc.
`
`6
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`Case No. 3:20-CV-07182-JCS
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`Case 3:20-cv-07182-JCS Document 369 Filed 08/26/22 Page 8 of 8
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`
`CERTIFICATE OF SERVICE
`I hereby certify that on this 26th day of August, 2022, I caused the foregoing to be filed
`
`electronically with the Clerk of Court and to be served via the Court’s Electronic Filing System
`upon all counsel of record:
`
`SPENCER LLP
`BRANDON L BOXLER
`BBoxler@spencerllp.com
`6802 Paragon Place, Suite 230
`Richmond, VA 23230
`Telephone: (804) 285-5236
`
`
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`SONAL N. MEHTA (SBN 222086)
`sonal.mehta@wilmerhale.com
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`Telephone: (650) 858-6000
`
`ARI HOLTZBLATT
`Ari.Holtzblatt@wilmerhale.com
`ALLISON SCHULTZ
`Allison.Schultz@wilmerhale.com
`ROBIN C. BURRELL
`robin.burrell@wilmerhale.com
`1875 Pennsylvania Ave, NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`Facsimile: (202) 663-6363
`
`CINDY PAN
`cindy.pan@wilmerhale.com
`250 Greenwich Street
`New York, NY 10007
`Telephone (212) 937-7275
`
`ANDRES ROSSO O’LAUGHLIN
`andy.olaughlin@wilmerhale.com
`60 State Street
`Boston, MA 02109
`Telephone (617) 526-6220
`
`Attorneys for Plaintiff/Counterclaim
`Defendant Meta Platforms, Inc.
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`/s Kara R. Fussner
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`Case No. 3:20-CV-07182-JCS
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`DEFENDANTS’ OPPOSED MOTION TO
`ENLARGE TIME PURSUANT TO
`LOCAL CIVIL RULE 6-3
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`HB: 4891-6862-9551
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`