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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`KELLY WHALEN, et al.,
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`Plaintiffs,
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`v.
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`FACEBOOK, INC.,
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`Defendant.
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`Case No. 20-cv-06361-JST
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`ORDER INVITING SUPPLEMENTAL
`BRIEFING RE: MOTION TO COMPEL
`ARBITRATION
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`Re: ECF No. 45
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`Before the Court is Defendant Facebook, Inc.’s motion to compel arbitration. ECF No. 45.
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`The parties engaged in discovery after Facebook filed its motion. During that process, Facebook
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`learned that Plaintiff S.M. created a second Instagram account and now contends that she agreed
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`to arbitration as part of that sign-up process. ECF No. 87 at 8-10. Plaintiffs have not had an
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`opportunity to respond to that argument or the evidence submitted in support. Nor have Plaintiffs
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`had an opportunity to respond to other evidence submitted by Facebook with its reply, including
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`evidence that Facebook contends supports a finding that Plaintiffs agreed to arbitration by
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`continuing to use Instagram after the terms of use were updated in 2020.1 See, e.g., id. at 11
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`(citing Exhibits 5-6 to the Duffey Supplemental Declaration and Exhibit 5 to the Provance
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`Supplemental Declaration); id. at 13 (citing Exhibits 9-11 to the Provance Supplemental
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`Declaration).
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`Plaintiffs are invited to file a supplemental brief responding to the evidence presented with
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`Facebook’s reply on or before October 1, 2021. If they file a supplemental brief, Facebook may
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`1 Some, but not all, of this evidence was in Facebook’s possession, and it appears that Facebook
`could have submitted it with its moving papers. While the Court might ordinarily decline to
`consider such evidence, it will do so in this instance given its potential materiality.
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`Northern District of California
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`United States District Court
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`Case 4:20-cv-06361-JST Document 92 Filed 09/21/21 Page 2 of 2
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`file its own supplemental brief in response on or before October 15, 2021. The matter will then be
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`deemed submitted on the papers unless otherwise ordered.
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`IT IS SO ORDERED.
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`Dated: September 21, 2021
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`______________________________________
`JON S. TIGAR
`United States District Judge
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`Northern District of California
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`United States District Court
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