Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 1 of 6
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`SONAL N. MEHTA (SBN 222086)
` Sonal.Mehta@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`Telephone: (650) 858-6000
`Facsimile: (650) 858-6100
`
`DAVID Z. GRINGER (pro hac vice)
`David.Gringer@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`Facsimile: (202) 663-6363
`Attorneys for Defendant
`FACEBOOK, INC.
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`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`
`MAXIMILIAN KLEIN and SARAH GRABERT,
`individually and on behalf of all others similarly
`situated,
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`Plaintiffs,
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`v.
`FACEBOOK, INC., a Delaware Corporation
`headquartered in California,
`
`Defendant.
`
` Case No. 5:20-cv-08570-LHK
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`DEFENDANT FACEBOOK, INC.’S
`RESPONSE TO MOTION FOR
`ADMINISTRATIVE RELIEF TO
`CONSIDER WHETHER
`CONSUMER CASES SHOULD BE
`RELATED PURSUANT TO CIVIL
`LOCAL RULE 3-12
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`Judge: Hon. Lucy H. Koh
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`No. 5:20-cv-08570-LHK FACEBOOK’S RESP. TO ADMIN. MOTION TO RELATE CASES
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`Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 2 of 6
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`The Klein plaintiffs’ latest motion is little more than a thinly-veiled, procedurally-
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`improper attempt to avoid relation between this case and Reveal Chat. Klein—like all seven
`antitrust cases pending against Facebook in this District—challenges Facebook’s acquisitions of
`Instagram and WhatsApp, and its supposed imposition of restrictions on developer use of
`Platform APIs, as violations of Section 2 of the Sherman Act. The Klein Complaint levels these
`allegations in scores of paragraphs quoted verbatim from the operative Complaint in Reveal
`Chat. Reveal Chat Dkt. No. 85 at 2-4 (also filed at Klein Dkt. No. 16-1 at 2-4).1 Thus, the Klein
`plaintiffs should not be able to avoid relation with Reveal Chat.
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`At the outset, relitigating the Reveal Chat motion in the guise of a motion to relate
`different cases is procedurally improper, and this Court should not rule on plaintiffs’ motion,
`unless and until Judge Freeman denies Facebook’s pending motions to relate Klein, Kupcho,
`Dames, and Steinberg to Reveal Chat. See Civil L.R. 3-12(f)(2).
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`On the merits, the Klein plaintiffs’ position—that their case is unrelated to Reveal Chat,
`and, more broadly, that the seven relevant cases should be grouped into two or possibly three
`categories, Mot. at 1-2 (also filed at Reveal Chat Dkt. No. 105-1 at 1-2)—appears to rest on two
`fundamentally incorrect premises. First, they assert that the cases are unrelated because the
`plaintiffs in some of the cases are “consumers” and the plaintiffs in others are app developers or
`advertisers (each of whom are also themselves likely “consumers”). Mot. at 1. This position
`finds no support in the law. Though the “plaintiffs differ and their relationship to the defendant
`also differs …. , each case stems from the use of the exact same technology and the economics
`regarding that same technology.” Pepper v. Apple, Inc., 2019 WL 4783951, at *1 (N.D. Cal.
`Aug. 22, 2019). In these circumstances, “Local Rule 3-12(a)(1) allows for relation of actions
`even where plaintiff classes differ, including classes of consumers,” “content creators,” and,
`here, app developers and advertisers. Id. The two sets of Google cases plaintiffs cite (at 1-2)
`involve entirely different lines of business and thus, unlike the cases at issue here, do not involve
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`1 The Complaint in Kupcho does the same. Compare Klein Compl. ¶¶ 142-201 with Kupcho
`Compl. ¶¶ 143-203 (filed at Klein Dkt. No. 17-1 at 73-173 and at Reveal Chat Dkt. No. 87-3).
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`Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 3 of 6
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`the same technology or products, and as a result do not meet the requirements of the rule.
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`Equally without support is the Klein plaintiffs’ similar contention that different relevant
`market allegations in some of the complaints render the cases unrelated. Reveal Chat Dkt. No.
`86 at 3 (also filed at Klein Dkt. No. 16-2 at 3). This is particularly true because whatever label
`the plaintiffs apply to the market at issue, each case involves “[the] same technology.” Pepper,
`2019 WL 4783951, at *1. A plaintiff cannot escape relation—and it remains unclear why
`plaintiffs doth protest so much—simply by alleging that the same product is part of a different
`relevant market.
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`Second, the Klein plaintiffs assert that some of the cases are unrelated simply because
`they also challenge other conduct in addition to the Instagram and WhatsApp acquisitions and
`Facebook’s Platform policies. Reveal Chat Dkt. No. 86 at 3-4 (also filed at Klein Dkt. No. 16-2
`at 3-4). This position is again without support in law or logic. As the Court knows, antitrust
`cases that advance beyond the pleadings are “massive factual controvers[ies].” Feitelson v.
`Google Inc., 80 F. Supp. 3d 1019, 1025 (N.D. Cal. 2015) (quoting Associated Gen. Contractors
`of Calif., Inc. v. Carpenters, 459 U.S. 519, 528 n. 17 (1983)). That is particularly true where, as
`here, the challenged conduct includes two mergers and a purported scheme to exclude
`competitors from an entire segment of the economy. It would certainly involve “an unduly
`burdensome duplication of labor” for two or potentially three different Judges in this District to
`preside over separate cases—potentially including separate summary judgment briefing and
`trials—concerning the exact same complex “transaction[s] [and] event[s],” Civil L.R. 3-12(a),
`just because some cases have an additional (but still related) theory of competitive effects.
`Tellingly, plaintiffs cite no authority for their novel theory.
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`The best plaintiffs have been able to muster throughout their month-long campaign to
`oppose relation of this case to Reveal Chat is their insistance that the “gravamen” of their
`Complaint is alleged user deception. Reveat Chat Dkt. No. 86 at 3 (also filed at Klein Dkt. No.
`16-2 at 3). Even setting aside that this is little more than a dressed-up state law consumer
`protection claim, and not a cognizable antitrust theory, plaintiffs have consistently ignored the
`nearly sixty paragraphs of allegations in their Complaint challenging the same conduct at issue in
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`Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 4 of 6
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`Reveal Chat. Compl. ¶¶ 142-201. In light of these (often identically worded) allegations, the
`Klein plaintiffs do not and cannot provide any explanation of why proceeding on separate tracks,
`arbitrarily divided by plaintiff constituencies, is the more efficient method for resolving these
`cases. Plainly, it is not.
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`The government plaintiffs who have brought lawsuits against Facebook have
`acknowledged in filings in the District Court in Washington, D.C. that these cases—Reveal Chat
`included—are related. Gringer Decl. Exs. 1-2. The Reveal Chat plaintiffs themselves and
`Facebook agree as well. And relation is apparent on the face of the (at times identical)
`complaints themselves.
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`CONCLUSION
`Klein, Kupcho, Dames, and Steinberg (along with Sherman and Affilious2) are all related
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`to Reveal Chat. Because Reveal Chat is the lower-numbered related case, this Court should not
`rule on the Klein plaintiffs’ instant motion unless and until Judge Freeman denies Facebook’s
`pending motions to relate Klein, Kupcho, Dames, and Steinberg to Reveal Chat.
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`2 The Affilious plaintiffs also agree that their case is related to Reveal Chat.
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`Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 5 of 6
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`Dated: January 6, 2021
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`Respectfully submitted,
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`By: /s/ Sonal N. Mehta
`SONAL N. MEHTA (SBN 222086)
`sonal.mehta@wilmerhale.com
`WILMER CUTLER PICKERING HALE
`AND DORR LLP
` 2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`Telephone: (650) 858-6000
`
`DAVID Z. GRINGER (pro hac vice)
`david.gringer@wilmerhale.com
`WILMER CUTLER PICKERING HALE
`AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`Telephone: (202) 663-6000
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`Case 5:20-cv-08570-LHK Document 35 Filed 01/06/21 Page 6 of 6
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`CERTIFICATE OF SERVICE
`I hereby certify that on this 6th day of January 2021, I electronically transmitted the
`foregoing document to the Clerk’s Office using the CM/ECF System. And I hereby certify that I
`have served the foregoing document on counsel for the plaintiffs in the actions in which relation
`is sought pursuant to agreement between the parties.
`
`/s/ Sonal N. Mehta
`Sonal N. Mehta
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