United States District Court, N.D. California
IN RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION THIS DOCUMENT RELATES TO ALL ACTIONS
ORDER RE REQUEST FOR STAY RE: DKT., 364
DONATO United States District Judge
Facebook, Inc., has requested a complete stay of this case
pending the Ninth Circuit's decision on whether to accept
interlocutory review of this Court's order certifying a
class for trial. Dkt. No. 364. The request is in an unusual
procedural posture. Facebook filed it on May 7, 2018, and
noticed a hearing on it for June 14, 2018 under the usual
35-day notice period provided for in Civil Local Rule 7-2(a).
Plaintiffs filed an opposition under that timeline on May 21,
2018. Dkt. No. 387. Facebook then filed a short reply on May
22, 2018, Dkt. No. 394, along with a request to advance the
stay hearing to May 24, 2018, Dkt. No. 396. It appears
Facebook filed a stay request directly with the Ninth
Circuit, too, without the benefit of the Court's
disposition of this request.
the propriety of Facebook's conduct can be questioned,
the Court addresses the substance of the stay request in this
order. A stay is denied.
initial matter, Facebook misapprehends the governing
standards for a stay. The Court's analysis is controlled
by Nken v. Holder, 556 U.S. 418 (2009), and
Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011).
In Nken, the Supreme Court held that four factors
determine the propriety of a stay: “(1) whether the
stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.” 556 U.S. at 426 (internal quotation
omitted). In Leiva-Perez, our circuit found that
Nken “raised the minimum permissible showing
of irreparable harm necessary to justify a stay, ” and
underscored “the bedrock requirement that stays must be
denied to all petitioners who did not meet the applicable
irreparable harm threshold, regardless of their showing on
the other stay factors.” 640 F.3d at 965.
Leiva-Perez also made clear that “even
certainty of irreparable harm has never entitled one
to a stay, ” and so “a proper showing regarding
irreparable harm was, and remains, a necessary but not
sufficient condition for the exercise of judicial discretion
to issue a stay.” Id. (emphasis in original).
departs from these standards by focusing almost exclusively
on the merits of the Court's class certification decision
and making virtually no showing at all on the critical
element of irreparable harm. Its main arguments about harm
are that a trial might be expensive, and sending notice to
the class in advance of the trial will embarrass it and
inflict “reputational” injury. Dkt. No. 394 at 3.
Neither point comes close to warranting a stay.
concerns about the expense of trial are particularly thin.
The sum total of this argument is the unadorned statement
that a trial could cost a lot of money and might result in a
substantial award of damages. These generalizations are not
developed or supported by any showing that trying this case
is likely to inflict anything other than the usual and
ordinary expenses. To the contrary, the well-developed record
in this case indicates that the jury will be asked to decide
relatively straightforward disputes of fact. While the case
has a certified class, that is not a complicating factor. The
Court knows from experience that trying a class action is
virtually identical to trying a case brought by an individual
plaintiff. There is no practical difference between the two
in terms of time and expense. And looking at the action as a
whole, the Court has no reason to believe this will be a
“monster” trial that imposes crippling costs on
either side. Nor would the Court let that happen. As the
Court's Standing Order for Civil Jury Trials indicates,
it works with the parties to ensure that jury time is used
efficiently and without waste. Among other measures, that
entails the imposition of strict time limits on opening
statements, closing statements, and trial testimony, early
resolution of evidence disputes and jury instructions, and
other time-management tools, all of which will be thoroughly
discussed at the pre-trial conference on June 21, 2018.
Facebook has not identified anything that would make this
case stand out in terms of trial duration or costs.
broadly, Facebook's trial expense argument is based on a
faulty proposition. In effect, it suggests that the ordinary
costs of trying a case are grounds for a stay. It is
certainly true that trials cost litigants money, but that is
hardly a reason in itself to push them off, particularly in a
case like this, where all the pre-trial motions have been
decided, summary judgment has been denied to both sides, and
all that remains is for the jury to resolve the disputes of
fact. Every party going to trial faces the same cost issue
Facebook raises, albeit typically without Facebook's deep
financial resources, and Facebook offers no reason why it
should be treated differently and afforded a stay. The risk
of a large judgment does not change that conclusion. Many
litigants go to trial with the same or greater risk to
themselves in the outcome. Facebook's speculation on a
possible damages verdict is just that. It is entirely
possible that Facebook will prevail and that plaintiffs will
take nothing, or win a damages award far smaller than
concern about reputational injury is equally unpersuasive.
The parties have advised the Court in other contexts about
the wide media coverage nationally and in Illinois of the
case as a whole, the claims and defenses the parties have
raised, and the orders issued over the course of the
litigation. See, e.g., Dkt. No. 370 at 8. It is
hardly a secret that Facebook is being sued for alleged
violations of the Biometric Information Privacy Act and that
a jury trial has been set. Facebook also appears to believe
that notifying class members via two of its user notification
channels, see Dkt. No. 402, would cause untoward
embarrassment. That goes too far. Facebook is an online
business that routinely communicates with users through
online notifications about a myriad of topics. It ill suits
Facebook to complain about sticking with that routine
communication protocol to give class notice and opt-out
information. Many cases have held that a defendant's
online channels constitute the best practicable notice to
individual class members. See, e.g., Schulte v.
Fifth Third Bank, 805 F.Supp.2d 560, 596 (N.D. Ill.
2011); Shurland v. Bacci Cafe & Pizzeria on Ogden,
Inc., 271 F.R.D. 139, 147 (N.D. Ill. 2010); Jermyn
v. Best Buy Stores, L.P., No. 08 CIV. 00214 CM, 2010 WL
5187746, at *8 (S.D.N.Y. Dec. 6, 2010). The same applies
here, as the Court has held. See Dkt. No. 390. It is
also worth noting that Facebook took an active role with
plaintiffs in negotiating the form and content of the
notices, with substantial participation by the Court. The
notices are fair, neutral and unburdened by anything remotely
embarrassing to Facebook.
concern that notifying class members now might cause
confusion later is also overblown. Facebook has not proffered
any evidence indicating that class members would be left in a
state of disarray and befuddlement, as it suggests, if
developments during trial or post-trial appellate review
resulted in a change to or decertification of the class.
Common sense strongly advises to the contrary. It is highly
doubtful any class member would be unable to understand
subsequent changes in the case, or be thrown into confusion
by such an event.
points are the only things Facebook offers as possible
irreparable harm, and their insufficiency necessitates the
denial of their stay request. Leiva-Perez, 640 F.3d
at 965 (citing Nken, 556 U.S. at 432-34).
Facebook's merits arguments are only slightly rewarmed
versions of the arguments made against class certification.
They are no more persuasive the second time around. In
addition, the Court expressed its concern in the order
denying summary judgment that Facebook's challenge to the
certification order is based upon a misrepresentation of the
Court's reasoning and analysis. Dkt. No. 372 at 2. The
merits discussion in the stay request makes the same mistake.
case has been pending since 2015 and is one of the
Court's oldest open matters. The parties have litigated
it heavily, and the Court has heard and decided two motions
to dismiss, three motions for summary judgment, a class
certification motion, multiple discovery disputes, and other
matters. Discovery closed many months ago and the expert
witness work is done. The case is ripe for trial, and
Facebook's last-minute request to derail that is denied.