Campbell v. Facebook Inc.
315 F.R.D. 250
N.D. Cal.2016Background
- Plaintiffs (Campbell and Hurley) challenge Facebook’s practice of scanning private Messages for URLs and using that data ("EntShare"/"EntGlobalShare" records and URL previews) to (a) increase third‑party Like counters, (b) feed recommendation algorithms, and (c) share with third parties for targeting.
- The asserted statutory claims are violations of the Electronic Communications Privacy Act (ECPA/Wiretap Act) and California’s Invasion of Privacy Act (CIPA). Plaintiffs amended their class definition in the certification motion to limit the class to messages "from which Facebook generated a URL attachment."
- Plaintiffs sought certification under Rule 23(b)(3) (damages) and alternatively under Rule 23(b)(2) (injunctive/declaratory relief). They also moved to amend the complaint to add allegations about third‑party sharing based on discovery/source code. The court allowed a limited amendment.
- Key factual dispute relevant to certification: whether class membership is ascertainable via Facebook databases (EntShare/Titan) and whether individualized issues (especially implied consent and damages calculation) predominate.
- The court found the proposed class ascertainable (for (b)(3) purposes) based on plaintiffs’ expert showing a feasible database query, but denied (b)(3) certification because individualized damages and consent issues would predominate. The court certified a Rule 23(b)(2) class for injunctive/declaratory relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ascertainability of class (for (b)(3)) | Class can be identified by querying Facebook records (EntShare + Titan) to get senders/recipients/timestamps | Class cannot be reliably identified because not every URL created a share object, deletions, race conditions, blocked URLs, and DB variability | Class is ascertainable: plaintiffs’ database‑query approach is adequate; defendant’s general reliability arguments insufficient to defeat ascertainability |
| Commonality/typicality/adequacy under Rule 23(a) | Facebook’s uniform system and code produced common questions; named plaintiffs’ claims align with class | N/A (Facebook mainly attacked other requirements) | Rule 23(a) requirements met: numerosity, commonality, typicality, adequacy satisfied |
| Predominance under Rule 23(b)(3) — liability and implied consent | Liability issues (whether interceptions occurred and were in ordinary course of business) are susceptible to class‑wide proof (source code); implied consent can be addressed generally | Implied consent requires individualized inquiries (users may have seen disclosures, used features after learning of practice); media reports (2012) show some users could have known, raising individual issues | Predominance not met for (b)(3) as to at least the Like‑counter practice (media disclosures create individual implied‑consent issues); for the other two alleged uses (recommendations, third‑party sharing) common issues survive but damages problems remain |
| Predominance under Rule 23(b)(3) — damages model | Statutory damages and profit‑based damages are available; expert can estimate Facebook’s value derived from interceptions and apportion classwide awards | Profit attribution to individual interceptions is speculative; plaintiffs’ expert assumes equal profit per interception; statutory damages would yield disproportionate awards for many class members | Predominance not met: individualized damages questions (and inability to tie profits to specific interceptions) defeat a (b)(3) damages class; thus (b)(3) certification DENIED |
| Rule 23(b)(2) certification for injunctive/declaratory relief | Facebook’s uniform practices support (b)(2) relief; consent/individual preference do not render relief indivisible | Individual consent and differing desires for scanning to continue make injunctive relief not appropriate classwide | (b)(2) certification GRANTED: injunctive/declaratory relief sought challenges a single practice and is sufficiently indivisible despite some class members possibly not wanting relief |
Key Cases Cited
- Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir.) (Rule 23 rigorous analysis and commonality discussion)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S.) (class commonality standard)
- Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (U.S.) (no preliminary merits inquiry at certification)
- Noel v. Hall, 568 F.3d 743 (9th Cir.) (definition of "interception" and acquisition of contents)
- In re Zynga Privacy Litigation, 750 F.3d 1098 (9th Cir.) (distinguishing content from non‑content header/record information)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S.) (predominance and class cohesion analysis)
- Comcast Corp. v. Behrend, 133 S.Ct. 1426 (U.S.) (damages model must be capable of classwide measurement)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.) (relationship of commonality and typicality; Rule 23 standards)