Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 1 of 31
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`
`
`Katrina Carroll (admitted pro hac vice)
`CARLSON LYNCH LLP
`111 West Washington Street, Suite 1240
`Chicago, IL 60602
`Tel.: 312-750-1265
`kcarroll@carlsonlynch.com
`[ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE]
`Counsel for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
` KELLY WHALEN, individually and on behalf
`Case No. 4:20-cv-06361-JST
`of all others similarly situated, and S.M., a
`PLAINTIFF’S OPPOSITION TO
`minor, by and through her guardian, Tachah
`FACEBOOK’S MOTION TO COMPEL
`Wade, individually and on behalf of all others
`ARBITRATION AND STAY LITIGATION
`similarly situated,
`Plaintiffs,
`Date:
`TBD
`Time:
`TBD
`Judge:
`Hon. Jon S. Tigar
`Courtroom 6, 2nd Floor
`Place:
`
`v.
`
`FACEBOOK, INC.,
`
`Defendant.
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`OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
`Case No. 4:20-cv-06361-JST
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`Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 2 of 31
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`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ................................................................................................................................. 1
`FACTUAL BACKGROUND ................................................................................................................ 2
`A.
`EVIDENCE PRODUCED IN ARBITRATION-RELATED DISCOVERY ................ 3
`1.
`Facebook’s Evidence ......................................................................................... 3
`2.
`Plaintiffs’ Evidence .......................................................................................... 12
`1.
`Ms. Whalen .......................................................................................... 12
`2.
`Minor Plaintiff S.M. ............................................................................. 12
`ARGUMENT ....................................................................................................................................... 13
`A.
`ARBITRATION IS A MATTER OF CONTRACT AND NO CONTRACT WAS
`ENTERED INTO BY THE PARTIES ........................................................................ 13
`THERE IS NO COMPETENT EVIDENCE ESTABLISHING THAT EITHER
`PLAINTIFF AGREED TO ARBITRATE ................................................................... 14
`1.
`FACEBOOK’S DECLARATIONS ARE INADMISSIBLE AND
`SHOULD BE DISREGARDED ALTOGETHER OR ENTITLED TO
`LITTLE WEIGHT ........................................................................................... 14
`FACEBOOK SHOULD NOT BE PERMITTED TO INTRODUCE
`FURTHER EVIDENCE OF AN AGREEMENT TO ARBITRATE .............. 18
`ANY PURPORTED AGREMEENT IS AN UNENFORCEABLE
`“BROWSEWRAP” .......................................................................................... 19
`FACEBOOK HAS FAILED TO ESTABLISH THAT S.M. AGREED TO
`ARBITRATE WHEN REGISTERING HER ACCOUNT IN 2014 ............... 24
`CONCLUSION .................................................................................................................................... 25
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`
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`B.
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`2.
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`3.
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`4.
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`Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 3 of 31
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Apple Inc. v. Samsung Elecs. Co.,
`2015 WL 3863249 (N.D. Cal. June 19, 2015) ................................................................................. 23
`Applebaum v. Lyft, Inc.,
`263 F. Supp. 3d 454 (S.D.N.Y. 2017) ............................................................................................. 31
`AT&T Techs., Inc. v. Commc’ns Workers of Am.,
`475 U.S. 643 (1986) ......................................................................................................................... 13
`Barrowman v. Wright Med. Tech. Inc.,
`No. C15-0717JLR, 2017 WL 4161688 (W.D. Wash. Sept. 19, 2017) ............................................ 17
`Berkson v. Gogo LLC,
`97 F. Supp. 3d 359 (E.D.N.Y. 2015) ............................................................................................... 31
`Billups,Inc. v. Ambassador Techs., Inc.,
`No. 3:20-CV-00891-BR, 2021 WL 2939934 (D. Or. July 13, 2021) .............................................. 21
`Chevron Corp. v. Pennzoil Co.,
`974 F.2d 1156 (9th Cir. 1992) ......................................................................................................... 23
`Colgate v, JUUL Labs, Inc.,
`402 F. Supp. 3d 728 (N.D. Cal. 2019) ....................................................................................... 31, 32
`Comer v. Micor, Inc.,
`436 F.3d 1098 (9th Cir. 2006) ......................................................................................................... 16
`Cullinane v. Uber Techs., Inc.,
`893 F.3d 53 (1st Cir. 2018) .............................................................................................................. 31
`Doe v. Xytex Corp.,
`No. C 16-02935 WHA, 2016 WL 3902577 (N.D. Cal. July 19, 2016) ........................................... 27
`Erichsen v. RBC Capital Markets, LLC,
`883 F. Supp. 2d 562 (E.D.N.C. 2012) ............................................................................................. 18
`First Options of Chic., Inc. v. Kaplan,
`514 U.S. 938 (1995) ......................................................................................................................... 14
`Gonzalez v. Citigroup, Inc.,
`2011 WL 4374997 (E.D.Cal.2011) .................................................................................................. 15
`Granite Rock Co. v. Int’l Bhd. of Teamsters,
`561 U.S. 287 (2010) ......................................................................................................................... 13
`Hagen v U.S.,
`486 F. Supp. 2d 622 (D. Md. 2007) ................................................................................................. 21
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`
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`TABLE OF AUTHORITIES (cont.)
`
`Page(s)
`
`Cases (cont.)
`Hal Roach Studios, Inc. v. Richard Feiner & Co.,
`896 F.2d 1542 (9th Cir.1990) .......................................................................................................... 16
`Hill v. Quicken Loans Inc.,
`No. ED CV 19-0163 FMO (SPx), 2020 WL 5358394 (C.D. Cal. Aug. 5, 2020) ............................ 15
`Ho v. Postmaster Gen.,
`No. C 09-1600 MEJ, 2010 WL 309037 (N.D. Cal. Jan. 25, 2010) ................................................. 17
`Hoffman v. Citibank (South Dakota), N.A.,
`546 F.3d 1078 (9th Cir. 2008) ......................................................................................................... 23
`In re Henson,
`869 F.3d 1052 (9th Cir. 2017) ......................................................................................................... 13
`In re TFT-LCD (Flat Panel) Antitrust Litig.,
`No. C 10-3517 SI, 2011 WL 4345316 (N.D. Cal. Sept. 15, 2011) .................................................. 18
`Kilgore v. KeyBank Nat’l Ass’n,
`718 F.3d 1052 (9th Cir. 2013) ......................................................................................................... 14
`Knutson v. Sirius XM Radio Inc.,
`771 F.3d 559 (9th Cir. 2014) ........................................................................................................... 14
`Long v. Provide Commerce, Inc.,
`245 Cal. App. 4th 855 (2016) .......................................................................................................... 27
`Los Angeles Times Comm., LLC v. Dep't of Army,
`442 F. Supp. 2d 880 (C.D. Cal. 2006) ............................................................................................. 20
`Martin v. Wells Fargo Bank, N.A.,
`No. 12-cv-06030, 2013 WL 6236762 (N.D. Cal. Dec. 2, 2013) ..................................................... 30
`McKee v. Audible, Inc.,
`No. CV 17-1941-GW(Ex), 2017 WL 4685039 (C.D. Cal. July 17, 2017) ................................ 26, 31
`Mitchell v. U-Haul Co. of Cal.,
`No. 16-cv-04674-JD, 2017 U.S. Dist. LEXIS 79064 (N.D. Cal. May 23, 2017) ...................... 14, 27
`Mulvany v. Live Nation Ent., Inc.,
`No. 15-CV-04371-BLF, 2016 WL 7230898 (N.D. Cal. Dec. 14, 2016) ......................................... 18
`Nguyen v. Barnes & Noble Inc.,
`763 F.3d 1171 (9th Cir. 2014) .................................................................................................. passim
`Nicosia v. Amazon.com, Inc.,
`834 F.3d 220 (2d Cir. 2016) ............................................................................................................ 32
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`TABLE OF AUTHORITIES (cont.)
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`Page(s)
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`Cases (cont.)
`Norcia v. Samsung Telecomms. Am., LLC,
`No. 14-cv-00582-JD, 2014 WL 4652332 ............................................................................ 15, 16, 24
`Opperman v. Path, Inc.,
`205 F. Supp. 3d 1064 (N.D. Cal. 2016) ........................................................................................... 27
`Pearson v. United Debt Holdings, LLC,
`No. 14 C 10070, 2015 WL 4960315 (N.D. Ill. Aug. 19, 2015) ....................................................... 18
`Rushing v. Viacom Inc.,
`No. 17-CV-04492-JD, 2018 WL 4998139 (N.D. Cal. Oct. 15, 2018)............................................. 30
`Snow v. Eventbrite, Inc.,
`No. 3:20-cv03698, 2020 WL 6135990 (N.D. Cal. Oct. 19, 2020) ............................................ 32, 33
`Specht v. Netscape Commc’ns Corp.,
`306 F.3d 17 (2d Cir. 2002) ........................................................................................................ 24, 28
`Texaco Antilles Ltd. v. Creque,
`273 F. Supp. 2d 660 (D.V.I. 2003) .................................................................................................. 21
`Totten v. Kellogg Brown & Root, LLC,
`152 F. Supp. 3d 1243 (C.D. Cal. 2016) .......................................................................................... 15
`Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ.,
`489 U.S. 468 (1989) ......................................................................................................................... 13
`Wicker v. Oregon ex rel. Bureau of Lab.,
`543 F.3d 1168 (9th Cir. 2008) ......................................................................................................... 17
`Wilson v. Huuuge, Inc.,
`944 F.3d 1212 (9th Cir. 2019) ......................................................................................................... 26
`Windsor Mills, Inc. v. Collins & Aikman Corp.,
`25 Cal. App. 3d 987 (1972) ............................................................................................................. 24
`Statutes
`740 ILCS 14/1 ........................................................................................................................................ 2
`Rules
`Federal Rule of Evidence 602 .................................................................................................. 16, 17, 20
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`INTRODUCTION
`This case does not involve a traditional agreement to arbitrate contained in a contract signed by
`the parties. Because of that, Facebook had to introduce intensely fact-based declarations to make a
`circumstantial case that Plaintiffs1 must have, or would have, been presented with arbitration
`agreements upon registration and when Facebook purportedly sent notices relating to its Terms of Use
`(“Terms”) in 2013, 2018, and December 2020 (after this lawsuit was filed). However, as Plaintiffs
`previously pointed out, Facebook’s declarants never explicitly state that any agreement was ever
`actually presented or agreed to by either Plaintiff. They do not because they cannot: Facebook has no
`proof whatsoever establishing any agreement to arbitrate.
`Over Facebook’s objection, the parties conducted arbitration-related discovery into the facts
`supporting its motion to compel arbitration. That discovery confirms what Plaintiffs previously
`surmised: Facebook does not maintain business records relating to the purported formation of its
`arbitration agreements. In particular, Plaintiffs learned that Facebook’s key witness, Michael Duffey
`(a paralegal who works as an “eDiscovery and litigation case manager”) knows that Facebook
`maintains a repository of the company’s historic Terms. But Mr. Duffey has no personal knowledge
`at all regarding whether any Terms were ever sent, displayed, received by, or ever agreed to by
`Plaintiffs or anyone else, and readily admitted at his deposition that he is not the person with the most
`knowledge on this topic.
`In fact, the universe of Mr. Duffey’s information concerning the sending, display, or receipt of
`the Terms is based exclusively on hearsay learned secondhand from Facebook engineers, particularly
`Caleb Nguyen, Shawn Xu, and Max Yuan. These engineers reviewed source code and prepared and
`compiled the documents attached to Mr. Duffey’s Declaration that were purportedly viewed by
`Instagram users. But Facebook never submitted supporting Declarations from Nguyen, Xu, or Yuan
`to explain this evidence. To date, Plaintiffs do not know where the documents came from, what records
`were used to create them, and how they were created. Incredibly, despite the engineers’ supplying
`critical information that Mr. Duffey admits he heavily relied on for his Declaration, counsel for
`
`
`1 On March 12, 2021, Plaintiff Victoria Edelstein voluntarily dismissed her claims. Dkt. No. 55.
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`Facebook foreclosed any inquiries into the content of Mr. Duffey’s communications with the engineers
`on attorney-client privilege and work product grounds.
`Having made the strategic decision to withhold this evidence – from the only employees with
`any knowledge about the purported formation of agreements to arbitrate – Facebook cannot introduce
`any new evidence now. Privilege cannot be used as both a shield and sword and, in any event, the time
`for arbitration-related discovery has lapsed. On the record before it, this Court should find that neither
`Plaintiff ever agreed to arbitrate, it should deny Facebook’s motion, and this case should proceed in
`the normal course.
`
`FACTUAL BACKGROUND
`On August 10, 2020, Plaintiffs filed this biometric privacy case in the Superior Court of
`California, San Mateo County, against Facebook regarding Instagram, a social networking service
`owned by Facebook, on behalf of a class of Illinois users alleging violations of the Illinois Biometric
`Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. Facebook removed the case to this Court
`on September 9, 2020. Dkt. 1. As alleged in the operative complaint (the Consolidated Class Action
`Complaint filed on January 26, 2021 (Dkt. 37), Facebook engaged in the unauthorized collection,
`storage, and disclosure of biometrics belonging to millions of users of its Instagram app across the state
`of Illinois, and illegally profited from these acts in violation of applicable laws. On February 25, 2021,
`in lieu of filing an answer, Facebook moved to compel arbitration and stay this litigation. Dkt. 45.
`Defendant did not move to dismiss on any ground enumerated in Rule 12(b)(6) and consequently,
`Facebook’s time to raise such defenses has now expired.
`Having reviewed Facebook’s motion, Plaintiffs apprised the Court of the existence of factual
`disputes regarding the formation of their purported agreements to arbitrate. Dkt. 57. Thereafter, over
`Facebook’s objection, the Court permitted the parties to conduct arbitration-related discovery,
`including limited document discovery, depositions of three of Facebook’s Declarants (Messrs. Duffey,
`Yoo, and Freitas), and depositions of the two plaintiffs (Ms. Whalen and S.M.). Dkt. 58. Discovery
`closed on June 30, 2021, and the results are discussed below.
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`A.
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`EVIDENCE PRODUCED IN ARBITRATION-RELATED DISCOVERY
`Facebook’s Evidence
`1.
`
`There is no competent record evidence that Ms. Whalen was sent, saw, or ever received the
`purported 2013 notices of updated Terms, that Plaintiffs were sent, saw, or received the purported 2018
`notices of updated Terms, or that they clicked the “Agree” button in the purported 2018 update notice
`emails, or clicked the “Back to Instagram” button in the purported 2018 full-screen update notice. Nor
`is there any competent proof that either Plaintiff interacted with the purported 2020 update notices (sent
`after this lawsuit was filed).
`Michael Duffey
`Mr. Duffey is Facebook’s chief witness with respect to the Terms and various notices Facebook
`may have sent to users. He is a paralegal and currently works as an “eDiscovery and litigation case
`manager.” See Declaration of Katrina Carroll (“Carroll Decl.”), Ex. A (Duffey Dep. Tr.), at 7:5-9;
`18:7-10. Mr. Duffey has no personal knowledge of any Terms predating his employment with
`Facebook in 2017, and in his Declaration (presumably drafted by counsel2), Mr. Duffey did not say
`that he has personal knowledge of either Plaintiff actually receiving any of the various notices that
`Facebook claims to have sent. Id., at 41:19-42:1. Rather, Mr. Duffey’s carefully worded Declaration
`relies heavily on hypotheticals to create a circumstantial case for arbitration. Dkt. No. 45-1, Duffey
`Decl., ¶ 3 (stating generally that users received “up to four separate notifications,” without mention of
`either Plaintiff), ¶ 6 (“if users interacted with the activity feed notice,” without mention of Plaintiffs’
`interactions, if any), ¶ 8 (no mention of whether either Plaintiff opened any full-screen notice), ¶ 16
`(“users could respond … in one of three ways,” without details as to Plaintiffs).
`When subject to cross-examination, Plaintiffs learned that Mr. Duffey has no personal
`knowledge at all regarding the sending or display of the Terms or the various updates, whether to
`Plaintiffs or any other Instagram user. Nor does he have any personal knowledge concerning
`Plaintiffs’- or any other Instagram user’s- receipt of the Terms or updates via email or viewing
`notifications via the app. As an employee in Facebook’s legal department, Mr. Duffey’s knowledge is
`
`
`2 Facebook’s counsel instructed the witness not to answer questions concerning the drafter of the
`Declaration, asserting attorney-client privilege. Carroll Decl., Ex. A, at 48:15-53:25.
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`limited to the unsurprising fact that Facebook changedits Terms several times and maintains records
`ofits historical policies. Carroll Decl., Ex. A, at 58:11-19.7
`Plaintiffs learned that Facebook does not maintain any records of emails sent to its users and
`
`Mr.
`
`or
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`display of the various updates
`
`to Terms is based
`
`Duffey’s information concerning the sending
`on
`
`exclusively
`
`hearsay learned secondhand from Facebook engineers, including Caleb Nguyen, Shawn
`
`Xu and Max Yuan. /d., at 20:24-21:7; 24:19-25:2.
`
`to Mr.
`
`activity,” including
`
`Duffey, Facebook’s data scientists
`According
`and engineers maintain “structured data tables that track different aspects of user
`whatusers lookedat orclicked on.
`Jd., at 124:25-125:5. But Mr.
`Duffey admitted that Facebook only
`was filed,
`has structured data for the 2020 notice purportedly sent after this litigation
`
`P|
`128113
`
`3.
`Duffey has no involvementat all with this data and does not have any independent
`Mr.
`Regardless,
`was
`knowledgeapart from what wastold to him by the engineers (Mr. Nguyen
`to the 2020
`notice). Jd., at 154:14-155:13, 159:15-160:18. Mr.
`Duffey
`knowledge of changes of the Terms of use and sending of
`to those changes. Jd., at 57:1-8.
`
`relating
`
`is not the person at Facebook with the most
`
`notices relating
`
`responsible for the data
`even admitted that he
`
`an
`
`understanding of the updates that were
`Before signing his Declaration, and to
`gain
`Duffey had to discuss with Xu and Yuan “the process and procedures that were
`purportedly sent, Mr.
`implemented with the various terms of use
`updates that Instagram had over time.” /d., at 32:12-15,
`the engineers compiled the documents attached to Mr.
`users.
`
`56:15-57:21. On their own,
`
`Declaration, including the screenshots and notifications purportedly viewed by Instagram
`
`Duffey’s
`
`/d., at
`
`32:17-25; 54:14-21; 57:6-21; 81:9-14.
`
`Repeatedly,
`
`Mr.
`
`Duffey testified that he would haveto
`
`rely
`
`on
`
`3
`As he readily admitted, Mr. Duffey is not the person with the most
`knowledge concerning the
`
`substance of any of the various Terms. Carroll Decl., Ex. A, at 56:15-57:2; 174-175; 178-179.
`did state that. since he has a personal Instagram account. the “terms
`get
`updated.” Jd. at 58:14-18.
`:
`
`searched
`for
`the
`email notification in
`wn accountandtestified that he did notfind it. Id., at
`
`his
`59:5-8; 65:5-19. He did find the 2018 and 2020 emails and reviewed them in preparing for his
`deposition. Jd., at 85:20-25. But these emails were never
`produced, and whenPlaintiffs’ counsel asked
`follow-up questions, Facebook’s counsel instructed the witness not to answer.
`Id., at 71:12-76:13;
`105:18-110:14. Because Facebook impermissibly interfered with discovery, it should not be permitted
`use of Instagram
`to introduce new evidence concerning
`to support statements
`Mr.
`Duffey’s personal
`madein his Declaration or otherwise.
`
`y
`
`
`
`¢o
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`Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 10 of 31
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`the data scientists in making factual statements relating to Plaintiffs’ interactions with Instagram. Id.,
`at 133:13-20 (Mr. Duffey could not explain what information is captured in the structured data table
`for the 2020 notice to show that Plaintiffs viewed the notification); 154:14-155:23
`
` and created the document Duffey relied on); 159:25-
`160:18 (relevant information for the 2020 notification came from the data scientists, not Mr. Duffey,
`and he could not explain whether similar data is maintained for all Instagram users); 188:1-6 (activity
`feed notification attached to the Declaration is a “mock up” prepared by the engineers). But Facebook
`never submitted supporting Declarations from Nguyen, Xu, or Yuan and Plaintiffs only learned of their
`identities at Mr. Duffey’s deposition.
`Despite the engineers’ supplying critical information relied on by Mr. Duffey, counsel for
`Facebook foreclosed any inquiries into the content of their communications. Id., at 26:14-29:22. And
`despite Mr. Duffey’s admission that he has emails and relevant communications with the engineers
`which would not be difficult to produce, Facebook chose to withhold them on privilege grounds. Id.,
`at 33:17-34:5. Facebook’s counsel even refused to permit Mr. Duffey to answer the most basic
`questions concerning the documents reviewed in preparing for his deposition. Id., at 97:10-100:14.
`Plaintiffs were prejudiced by this. For example, when questioned about a spreadsheet prepared
`by the data scientists purporting to be Facebook’s evidence that arbitration agreements were formed in
`2020 and asked to explain what appears to be a questionable coincidence, Mr. Duffey could not explain
`the anomaly or discuss why the entries were typical of user behavior. Id., at 157:9-159:14. That
`spreadsheet curiously reflects that both Plaintiffs interacted with the notifications in exactly the same
`way: both viewed it twice and did a dismiss click at the exact minute of the second view). Id., at 157:17-
`158:1. But Facebook robbed Plaintiffs of the opportunity to explore this further by refusing to allow
`Mr. Duffey to answer questions regarding his discussions with the engineers.
`Putting obstructionist tactics aside, Mr. Duffey confirmed (presumably with the help of his
`undisclosed conversations with the engineers) that
`
`. Id., at 128:12-16, 130:3-131:3. With
`respect to the December 2020 Terms update sent three months after this lawsuit was filed, Mr. Duffey
`testified that Plaintiffs received the update, but the relevant documentation prepared by Facebook’s
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`OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
`Case No. 4:20-cv-06361-JST
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`Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 11 of 31
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`data scientists does not reflect that the notification was ever viewed by either Plaintiff. Id., at 161:8-
`21. Irrespective of the particular update purportedly sent, however, Mr. Duffey testified that Instagram
`has never required users to click on the link for the Terms in order to continue using the app, whether
`at registration or for any subsequent update or change. Id., at 121:9-122:14.
`Mr. Duffey confirmed that the relevant Terms in effect when Ms. Whalen signed up in
`November of 2011 did not contain any arbitration provision, and that there was no arbitration until the
`2013 Terms update. Id., at 164:21-166:17.4 With respect to the emails Facebook purportedly sent after
`Ms. Whalen and S.M. created their accounts, Mr. Duffey testified that he has never seen copies of the
`actual emails because Facebook does not maintain these records. Id., at 181:9-182:1. Then Plaintiffs’
`counsel learned that none of the emails attached to Mr. Duffey’s Declaration came from Facebook’s
`business records. Rather, the January 18, 2013 email attached as Exhibit 3 to Mr. Duffey’s Declaration
`as an example of the email purportedly sent to Ms. Whalen is actually an email sent to an unidentified
`person’s Yahoo! address, which was “pulled” from the personal email of Facebook’s counsel. Id., at
`179:21-180:7. Putting aside issues relating to source, the January 18, 2013 email advises that the Terms
`have been updated, but says nothing about arbitration. Nor does the email require the user to assent or
`click “agree” anywhere to continue using Instagram.
`None of the subsequent emails attached to Mr. Duffey’s Declaration came from Facebook’s
`business records. Mr. Duffey could not even explain where the April 25, 2018 email (Exhibit 7 to his
`Declaration) came from; nor could he identify the gmail user who received it or recall how it came into
`his possession. Id., at 189:10-190:20, 192:11-15. Again, putting origin aside, the substance of this
`email is just as vague as the one from 2013. It advises users of updates to Instagram’s Terms, but
`assures them that the “Instagram experience isn’t changing” and that “[t]he Instagram app and the way
`we process data are not changing.” And though the email describes certain new app features, just like
`
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`4 Notably, Exhibit 1 attached to Mr. Duffey’s Declaration, purporting to represent the 2011 Terms in
`effect when Whalen opened her account, is not accurate. That exhibit contains a reference to a future
`update on January 19, 2013 and thus, was presumably created much later. Mr. Duffey admitted that
`Facebook does not have the original Terms from 2011 and the exhibit is the only version in Facebook’s
`possession. Carroll Decl., Ex. A, at 169:5-171:22.
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`OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
`Case No. 4:20-cv-06361-JST
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`Case 4:20-cv-06361-JST Document 91 Filed 09/01/21 Page 12 of 31
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`its predecessor email, it says nothing about arbitration that would alert the consumer as to the formation
`of a binding agreement.5
`Though the 2018 email contains an “agree” box at the bottom, consumers were not required to
`click on it and Mr. Duffey said he had no knowledge of whether either Plaintiff ever clicked that box.
`Mr. Duffey further testified that he has no information “one way or the other” to confirm or deny
`Plaintiffs’ statements that they did not click it. Id., at 191:13-16. Facebook’s June 12, 2018 email
`(Exhibit 9 to the Declaration) is also silent regarding arbitration and does not even have an “agree”
`box.
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`Similarly, Mr. Duffey could not identify how he came into possession of the November 11,
`2020 email (Exhibit 11 to his Declaration), sent to a mystery gmail account three months after this
`lawsuit was filed. Id., at 192:17-193:2. Like all the others, this email did not come from Facebook’s
`business records and it contains no references to arbitration. Rather, the email just states that Instagram
`is making “a few updates” to make it “easier to understand what is allowed on Instagram and how our
`service works.” Though the email says that continuing to use the app constitutes acceptance of the new
`Terms, there is no “agree” button anywhere seeking assent from the user or confirming the user’s
`receipt or review of the notice.
`Mr. Duffey also offered testimony about the activity feed notifications, through which Plaintiffs
`learned that Facebook does not have any actual copies of these notifications in its business records. He
`further testified that Exhibit 5 to his Declaration is a “mock up,” prepared by Instagram’s engineers
`and not Mr. Duffey. Id., at 188:1-19. Again, Facebook’s counsel would not permit any questions
`concerning Mr. Duffey’s communications with the engineers and, as such, Plaintiffs have no idea how
`the notification was recreated or by whom. In any event, the reconstructed notification simply states,
`“Review changes to our Terms and Data Policy,” in the same size font as other notifications, without
`any hyperlinks or mention of arbitration.
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`5 The same is true for the notification attached as Exhibit 8 to the Declaration, which is silent as to
`arbitration. This notification is even less effective than the email since it does not even contain an
`optional “agree” box.
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`OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
`Case No. 4:20-cv-06361-JST
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`Nor could Mr. Duffey offer any guidance with respect to the feed notification attached to his
`Declaration as Exhibit 12. He testified that he does not remember how he came into possession of the
`document. Id., at 193:10-12. Presumably, and though Plaintiffs’ counsel was not permitted to ask, it
`was created by Facebook’s engineers and is not a true copy of how the notification actually appeared.
`Regardless, that notification is also silent as to arbitration, says that “[c]ontinuing to use the app means
`you accept these updates” in the same color and font as the regular text, and does not have an “agree”
`button to alert users that an agreement is bei