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PLAINTIFFS’ REPLY MPA IFSO MOT. FOR CLASS CERTIFICATION RE PATH APP

Case No. 13-cv-00453-JST

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David M. Given (SBN 142375) Nicholas A. Carlin (SBN 112532) Conor H. Kennedy (SBN 281793) PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 39 Mesa Street, Suite 201 The Presidio San Francisco, CA 94129 Tel: 415-398-0900 Fax: 415-398-0911 Email: [email protected] [email protected] [email protected] James M. Wagstaffe (State Bar No. 95535) Michael J. von Loewenfeldt (State Bar No. 178665) Frank Busch (State Bar No. 258228) KERR & WAGSTAFFE LLP 100 Spear Street, 18th Floor San Francisco, CA 94105 Tel: 415-371-8500 Fax: 415-371-0500 Email: [email protected]

[email protected] [email protected]

Interim Co-Lead Counsel for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MARK OPPERMAN, et al.,

Plaintiffs,

v. PATH, INC., et al.,

Defendants.

Case No. 13-cv-00453-JST PLAINTIFFS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER SUPPORT OF MOTION FOR CLASS CERTIFICATION RE PATH APP Honorable Jon S. Tigar Date: June 14, 2016 Time: 2:00 p.m. Ctrm: 9, 19th Floor THIS DOCUMENT RELATES TO ALL CASES

Case 3:13-cv-00453-JST Document 709 Filed 05/05/16 of 39

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TABLE OF CONTENTS

PAGE

I. INTRODUCTION .............................................................................................................. 1

II. CLASS CERTIFICATION DOES NOT CONSIDER WHICH SIDE IS CORRECT ON

THE MERITS ..................................................................................................................... 2

III. COMMONALITY AND PREDOMINANCE ARE SATISFIED ..................................... 3

A. California Law Applies to the Class Claims .......................................................... 4

1. Application of California law satisfies due process ................................... 4

2. Defendants chose California law, and advocated for it here ...................... 5

3. California has the paramount governmental interest here .......................... 7

a. Step One: No Material Difference .......................................................... 8

b. Step Two: No True Conflict of Interest ................................................ 11

c. Step Three: Comparative Impairment .................................................. 12

d. Apple’s Aiding and Abetting ............................................................... 12

B. Liability Is Established Objectively Not Based on How Each

Person Feels .......................................................................................................... 13

C. The Specific Contents of Each Phone Are Irrelevant ........................................... 16

D. Damages Can Be Proven Classwide and Do Not Defeat Certification ................ 18

1. Individualized damage questions do not defeat certification ................... 18

2. Plaintiffs’ proposed conjoint model satisfies Rule 23 .............................. 19

3. Plaintiffs’ unjust enrichment theory of recovery does not require a

complex model ......................................................................................... 23

4. Plaintiffs’ nominal damages and punitive damages theories of recovery

require no model ....................................................................................... 24

IV. BOTH PROPOSED CLASSES ARE APPROPRIATE ................................................... 26

V. TYPICALITY IS SATISFIED HERE ............................................................................. 27

VI. CONCLUSION ................................................................................................................ 30


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TABLE OF AUTHORITIES

PAGE(S)

Cases

Abbit v. ING, 2015 WL 7272220 (S.D. Cal. Nov. 16, 2015) .................................................................. 19 Abdullah v. U.S. Sec. Assocs., 731 F.3d 952 (9th Cir. 2013) .............................................................................................. 3

Ades v. Omni Hotels, 2014 WL 4627271 (C.D. Cal. Sept. 8, 2014) ............................................................. 27, 28

Akaosugi v. Benihana, 282 F.R.D. 241 (N.D. Cal. 2012) ..................................................................................... 29 Allen v. McMillion, 82 Cal.App.3d 211 (1978) ................................................................................................ 25 Amgen v. Connecticut Retirement, etc., 133 S.Ct. 1184 (2013) ........................................................................................................ 2 Apple v. Samsung, 2014 WL 794328 (N.D. Cal. Feb. 25, 2014) .................................................................... 21 Arizona v. ASARCO, 773 F.3d 1050 (9th Cir. 2014) .......................................................................................... 26 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) ............................................................................................ 18 Broderick v. Dept. of Envir. Qual., 761 So.2d 713 (La.App. 2000) ......................................................................................... 10 Comcast v. Behrend, 133 S.Ct. 1426 (2013) ...................................................................................................... 18 Cox Broad. v. Cohn, 420 U.S. 469 (1975) ........................................................................................................... 8 CRS Recovery v. Laxton, 600 F.3d 1138 (9th Cir. 2010) .................................................................................... 10, 11 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ........................................................................................................... 3


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Ellis v. Costco, 285 F.R.D. 492 (N.D. Cal. 2012) ............................................................................... 26, 28 Falco v. Nissan, 2016 WL 1327474 (C.D. Cal. Apr. 5, 2016) .................................................................... 18 Fischer v. Mt. Olive Lutheran Church, 207 F.Supp.2d 914 (W.D. Wis. 2002) .......................................................................... 9, 10 Forcellati v. Hyland’s, 2014 WL 1410264 (C.D. Cal. Apr. 9, 2014) .............................................................. 11, 12 Greywolf v. Carroll, 151 P.3d 1234 (Alaska 2007) ........................................................................................... 15 Guido v. L'Oreal, 2014 WL 6603730 (C.D. Cal. July 24, 2014) .................................................................. 20 Hanlon v. Chrysler, 150 F.3d 1011 (9th Cir. 1998) .......................................................................................... 27 Harris v. Bingham McCutchen, 214 Cal.App.4th 1399 (2013) ............................................................................................. 6 Hernandez v. Hillsides, 47 Cal.4th 272 (2009) ................................................................................................. 14, 27 Hill v. NCAA, 7 Cal. 4th 1 (1994) ...................................................................................................... 14, 15 In re Apple, 2016 WL 783565 (E.D.N.Y. Feb. 29, 2016) .................................................................... 11 In re iPhone App. Litig., 844 F.Supp.2d 1040 (N.D. Cal. 2012) .............................................................................. 14 In re Pizza Time, 112 F.R.D. 15 (N.D. Cal. 1986) ......................................................................................... 4 In re Rail Freight Fuel, 287 F.R.D. 1 (D.D.C. 2012), vacated on other grounds, 725 F.3d 244 (D.C. Cir. 2013) ......................................................................................... 29 In re Yahoo Mail, 308 F.R.D. 577 (N.D. Cal. 2015) ............................................................................... 11, 12


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Jackson v. Los Angeles, 60 Cal.App.4th 171 (1997) ................................................................................................. 5 Jimenez v. Allstate, 765 F.3d 1161 (9th Cir. 2014) .......................................................................................... 18 Kearney v. Salomon Smith Barney, 39 Cal.4th 95 (2006) ......................................................................................................... 11 Lilly v. Jamba Juice Co., 308 F.R.D. 231 (N.D. Cal. 2014) ..................................................................................... 19 Lisnoff v. Stein, 925 F.Supp.2d 233 (D.R.I. 2013) ..................................................................................... 10 Maxim Crane Works v. Tilbury Constructors, 208 Cal.App.4th 286 (2012) ............................................................................................... 7 Mazza v. Am. Honda. Motor Co., 666 F.3d 581 (9th Cir. 2012) ........................................................................................ 5, 12 Med. Lab. Mgmt. v. ABC, Inc., 306 F.3d 806 (9th Cir. 2002) ............................................................................................ 14 Mullins v. Premier Nutrition, 2016 WL 1535057 (N.D. Cal. Apr. 15, 2016) .................................................................. 18 Nedlloyd Lines v. Superior Court, 3 Cal.4th 459 (1992) ........................................................................................................... 6 Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ......................................................................................................... 25 Pulaski & Middleman v. Google, 802 F.3d 979 (9th Cir. 2015) ..................................................................................... passim Rakas v. Ill., 439 U.S. 128 (1978) ......................................................................................................... 19 Riley v. California, 134 S.Ct. 2473 (2014) .......................................................................................... 14, 15, 16 Roach v. T.L. Cannon, 778 F.3d 401 (2d Cir. 2015) ............................................................................................. 18


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Robinson v. Open Top Sightseeing, 2015 WL 9304041 (N.D. Cal. Dec. 22, 2015) ................................................................. 19 Rodman v. Safeway, 2014 WL 988992 (N.D. Cal. Mar. 10, 2014) ..................................................................... 7 Rodriguez v. W. Publ'g Corp., 563 F.3d 948 (9th Cir. 2009) ............................................................................................ 30 Rutledge v. Hewlett-Packard, 238 Cal.App.4th 1164 (2015) ....................................................................................... 5, 11 San Bernardino v. Walsh, 158 Cal.App.4th 533 (2007) ............................................................................................. 24 Sanders v. ABC, Inc., 20 Cal. 4th 907 (1999) .......................................................................................... 10, 17, 18 Shersher v. Superior Court, 154 Cal. App. 4th 1491 (2007) ......................................................................................... 24 Shulman v. Group W, 18 Cal.4th 200 (1998) ....................................................................................................... 14 Stirling Intern. Realty v. Soderstrom, 2015 WL 403318 (M.D. Fla. Jan. 28, 2015) .................................................................... 10 Tabata v. Charleston Area Med. Ctr., 233 W. Va. 512 (2014) ....................................................................................................... 1 Taus v. Loftus, 40 Cal. 4th 683 (2007) .......................................................................................... 14, 16, 17 Thayer Corp. v. Reed, 2011 WL 2682723 (D. Maine July 11, 2011) .................................................................. 10 Thomas v. Gordon, 85 Cal.App.4th 113 (2000) ................................................................................................. 5 Todd v. Tempur-Sealy, 2016 WL 344479 (N.D. Cal. Jan. 28, 2016) .................................................................. 8, 9 TV Interactive Data v. Sony, 929 F. Supp. 2d 1006 (N.D. Cal. 2013) ............................................................................ 20


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Tyson Foods v. Bouaphakeo, 136 S.Ct. 1036 (2016) .................................................................................................. 3, 21 USW v. ConocoPhillips, 593 F.3d 802 (9th Cir. 2010) .............................................................................................. 3 Varnado v. Midland Funding, 43 F.Supp.3d 985 (N.D. Cal. 2014) .................................................................................. 14 Wash. Mut. v. Superior Court, 24 Cal.4th 906 (2001) ..................................................................................................... 7, 8 Wershba v. Apple, 91 Cal.App.4th 224 (2001) ........................................................................................... 8, 11 Wolph v. Acer Amer., 272 F.R.D. 477 (N.D. Cal. 2011) ................................................................................. 7, 11 Yokoyama v. Midland Nat., 594 F.3d 1087 (9th Cir. 2010) .......................................................................................... 18 Zedner v. U.S., 547 U.S. 489 (2006) ........................................................................................................... 5 Statutes 1899 Cal. Stat. 28 (repealed 1915) ................................................................................................. 9 Cal. Civ. Code §3360 ................................................................................................................... 25 Communications Decency Act, 47 U.S.C. § 230 ......................................................................... 13 La. Const. of 1974, Art. 1 § 5 ....................................................................................................... 10 Treatises Restatement (Third) of Restitution and Unjust Enrichment § 3 ................................................... 24 Rules Federal Rules of Civil Procedure, Rule 23, et seq. ................................................................ passim Other Authorities Eli A. Meltz, No Harm, No Foul?: “Attempted” Invasion of Privacy and the Tort of Intrusion

Upon Seclusion, 83 Fordham L. Rev. 331, 340 et seq. (2015) ........................................... 8


PLAINTIFFS’ REPLY MPA IFSO MOT. FOR CLASS CERTIFICATION RE PATH APP Case No. 13-cv-00453-JST

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I. INTRODUCTION

Path and Apple spend considerable time trying to avoid class certification by raising

merits arguments aimed at convincing the Court neither did anything wrong. But Plaintiffs’

class certification motion does not ask whether these defendants are liable. It asks whether the

Court can determine their liability based on evidence that is predominantly the same for the

proposed classes. Neither Apple nor Path make a single argument that any evidence about

Apple’s or Path’s conduct is unique to any class member or sub-group of class members.

Nor do Apple or Path raise a single question about what either did that cannot be

answered in one stroke for the entire proposed class. As the Supreme Court of West Virginia

held in reversing the denial of certification in a similar data privacy case, “Simply put, all of the

proposed class members are in the same position. Their causes of action are the same and they

arise from the same event.” Tabata v. Charleston Area Med. Ctr., 233 W. Va. 512, 520 (2014).

Defendants ignore the common nature of their conduct, and instead resort to raising

distinctions among class members. First, Defendants argue that class members live in different

states – though they don’t reveal to the Court who lives where – and that the law of the location

of each class member when the data was taken should govern. In this, they ignore their own

choice of California law in their relationship with their users, California’s substantial connection

to the facts giving rise to this dispute, and the nature of mobile device use (i.e., that the iDevice

could be anywhere when the Path App was downloaded or activated).

Second, Defendants insist that a privacy violation turns on how each class member uses

social media, how each feels about Path’s conduct, and what specific contact data were on each

phone. These arguments misstate the law. If accepted, they would make it impossible to certify

any privacy class action for data intrusion.

Third, Defendants argue that no class can be certified that includes people whose data

was not taken. Whether class members in the “Intrusion Class” subjected to the risk of data

theft are entitled to relief is a common question, not one that depends on any individual’s facts.

Fourth, Defendants insist that Plaintiffs must identify specifically the common damages

they seek. Here, too, Defendants misstate the law. The Ninth Circuit recently affirmed its long-



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standing rule that individual questions as to damages cannot defeat class certification. Pulaski &

Middleman v. Google, 802 F.3d 979, 986-88 (9th Cir. 2015).

Finally, Defendants argue that the class representatives are not typical because of

“individual defenses” to their claims, based on the mistaken legal arguments Defendants make

against predominance. These supposed defenses provide no basis to deny certification on

typicality grounds.

This motion is simple. With Apple’s substantial assistance, Path created and distributed

an App (a “mobile device application”) that harvested without notice or permission the Contacts

database of class members. Defendants’ actions had nothing to do with the identity of the class

members, their philosophies, or what specifically was on their phones. These facts present the

quintessential class action: Common litigation of claims all arising from a single course of

conduct by Apple and Path.

II. CLASS CERTIFICATION DOES NOT CONSIDER WHICH SIDE IS CORRECT

ON THE MERITS

Both Apple and Path spend a chunk of their opposition presenting their view of selected

classwide evidence that they believe excuses them from liability. See Path Opp. at 2-6; Apple

Opp. at 3-6. They also present declarations purporting to explain what they did and why it was

not wrongful.1 These arguments and evidence are pertinent to class certification only to the

extent they demonstrate that the predominant issues to be determined in this litigation are

common. None of the facts presented by Apple or Path about their conduct differs among class

members.

“Merits questions may be considered to the extent – but only to the extent – that they are

relevant to determining whether Rule 23 prerequisites for class certification are satisfied.”

Amgen v. Connecticut Retirement, etc., ___ U.S. ___, 133 S.Ct. 1184, 1195 (2013). “We find

1 Neither Path nor Apple properly disclosed in their initial disclosures or otherwise in discovery the percipient witnesses (Haun, Kisloff, Paine) they now present in opposition to the current certification motion; thus, not only are these merits issues not now before the Court, but the Court should exclude this evidence on this motion pursuant to Rule 37(c)(1). See Kennedy Reply Decl. at ¶¶ 2-3 & Exs. A & B.



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nothing in either the language or history of Rule 23 that gives a court any authority to conduct a

preliminary inquiry into the merits of a suit in order to determine whether it may be maintained

as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).

“Although certification inquiries such as commonality, typicality, and predominance

might properly call for some substantive inquiry, ‘[t]he court may not go so far [] as to judge the

validity of these claims.’” USW v. ConocoPhillips, 593 F.3d 802, 808 (9th Cir. 2010) (internal

citation omitted). “When [] the concern about the proposed class is not that it exhibits some

fatal dissimilarity but, rather, a fatal similarity – [an alleged] failure of proof as to an element of

the plaintiffs’ cause of action – courts should engage that question as a matter of summary

judgment,” Tyson Foods v. Bouaphakeo, ___ U.S. ___, 136 S.Ct. 1036, 1047 (2016) (citation

omitted), as Apple has asked the Court to do (see ECF No. 694).

Defendants do not dispute that their conduct applied equally to every class member.

Path offered the same software designed to harvest address book data to each class member.

Apple’s conduct relates to the development and distribution of that software and its interaction

with Path, not class members. Even Defendants’ attempt on this motion to prove they

committed no legal wrong proves that those key facts are common to class members.

III. COMMONALITY AND PREDOMINANCE ARE SATISFIED

Defendants make no attempt to dispute that numerosity, ascertainability and adequacy

requirements are met. Nor do Defendants make any argument that another proceeding would be

superior or dispute that the Court could effectively and efficiently handle notice and

administration for the proposed classes.

Defendants focus their opposition to class certification on purported individual issues

that they claim defeat predominance. (Apple makes a half-hearted assertion that the

commonality requirement is not met, but that requirement is satisfied by a “single significant

question of law or fact.” Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 957 (9th Cir. 2013).)

Apple and Path make four arguments in this regard: (A) that the Court must apply the common

law of each of the 50 states to this case which law, they say, is materially different, (B) that how

each and every individual in the class feels about privacy and what Path did is dispositive, (C)



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that the precise contents of each and every individual Contacts database taken must be

separately analyzed, and (D) that damages must be determined individually based primarily on

the above two subjective inquiries.

If the Court accepts these theories, none supported by citation to an analogous data-

privacy case, then no privacy class action could ever be certified for coordinated theft of data

from a group of individuals. Fortunately, for basically everyone in society who now uses

iDevices or similar mobile devices to store their private data, these arguments lack merit.

A. California Law Applies to the Class Claims.

Defendants’ primary argument against class certification is that this case must be

governed by the law of each separate state. This position is contrary to their own respective

terms of use with their customers – where each designated California law (the only sensible

choice given these parties’ substantial connection to this State as well as the nature of portable

handheld devices) – and their advocacy for application of California law in this case.

1. Application of California law satisfies due process.

Apple and Path both have their principal place of business here—Apple is also a

California corporation. See ECF Nos. 551, at ¶ 8 (Apple’s Answer to Plaintiff’s Second

Consolidated Amended Complaint (“SCAC”)) & 558, at ¶ 29 (Path Answer to SCAC). Both

Apple and Path therefore “reside” in this State. See 28 U.S.C. § 1332(c)(1). California residents

like Apple and Path should “have no cause to be surprised by application of California law” to

their conduct. In re Pizza Time, 112 F.R.D. 15, 18 (N.D. Cal. 1986).

Apple has told the Court that “the Northern District of California [] is the judicial district

in which a substantial part of the events or omissions giving rise to the claim occurred” (see

ECF No. 147, at 33 [internal quotations omitted]) and represented under oath that “nearly all of

the individuals that review apps, including all of the executives that oversee that process, are

based in Santa Clara County, California” (see ECF No. 147-1, at ¶ 5). Path told the Court that

its Apps were “principally researched, designed or developed in Northern California” (see ECF

No. 124, at 16) and represented under oath that “all data held by Path” including, presumably,



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the illicitly uploaded address book data, was “managed by employees based at Path’s San

Francisco headquarters.” (See ECF No. 131, at ¶ 4).

The State of California therefore has a constitutionally sufficient aggregation of contacts

to each putative class member in this case (Mazza v. Am. Honda. Motor Co., 666 F.3d 581, 590

(9th Cir. 2012)), and “California ha[s] sufficient contacts with the claims such that California

has an interest in applying its laws to nonresident plaintiffs satisfying constitutional principles”

(Rutledge v. Hewlett-Packard, 238 Cal.App.4th 1164, 1189 (2015)).

2. Defendants chose California law, and advocated for it here.

Given the above, Apple and Path must “demonstrate that foreign law, rather than

California law, should apply to [the] class claims” against them. Mazza, supra, 666 F.3d at 590.

Stated another way, Apple and Path must “demonstrate that the interests of other state’s laws

[are] greater than California’s interests.” Rutledge, supra, 238 Cal.App.4th at 1188.

Before embarking on that inquiry, Apple and Path must first overcome the California

choice of law provisions of their respective agreements with their customers—and their

advocacy for those provisions and those agreements in this case. Principles of judicial and

equitable estoppel bar both Apple and Path from contesting the application of California law at

this stage of the litigation. Zedner v. U.S., 547 U.S. 489, 504 (2006) (“judicial estoppel

generally prevents a party from prevailing in one phase of a case on an argument and then

relying on a contradictory argument to prevail in another phase”); Thomas v. Gordon, 85

Cal.App.4th 113, 118 (2000) (“the essential function and justification of judicial estoppel is to

prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a

forum provided for suitors seeking justice”); Jackson v. Los Angeles, 60 Cal.App.4th 171, 183 &

191 (1997) (“doctrine of judicial estoppel ensures that [party] will not speak out of both sides of

[its] mouth”).

Both Apple (see ECF No. 551, at 42, ¶ 16) and Path (see ECF No. 558, at 35, ¶ 7)

asserted identical verbatim affirmative defenses to Plaintiffs’ claims: “The claims of Plaintiffs

and the purported class[es] are barred in whole or in part by contracts and/or agreements they

entered into with Path [Apple].” All of those contracts and/or agreements call for application of



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California law. Even the agreements between Apple and Path call for California law to apply.

See ECF No. 670-1, at 21 (Bates No. APL-PATH_00022164).

Because both Apple and Path reside here, these California choice-of-law provisions are

presumptively enforceable. Nedlloyd Lines v. Superior Court, 3 Cal.4th 459, 467 (1992) (choice

of law is reasonable if one party resides in chosen state). This is so even if the rest of their

respective adhesion contracts fail. Harris v. Bingham McCutchen, 214 Cal.App.4th 1399, 1404

(2013) (while weaker party to adhesion contract may avoid enforcement of choice-of-law

provision when enforcement would result in substantial injustice, stronger party attacking its

own contract does not avoid enforcement of its chosen state law).

One of the grounds on which Apple obtained transfer from the Western District of Texas

was that its terms of use apply California law. See ECF No. 147-1 at ¶ 6 & Ex. A at 20. Those

same terms of use also state: “You [meaning Plaintiffs and the Putative Class] expressly agree

that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use

of the iTunes Service resides in the courts in the State of California.”2 Id.

Path told Judge Sparks that “many of the Defendants’ choice of law provisions

[including its own] require that Plaintiffs bring their claims under California law.” See ECF No.

145, at 8 & n. 6; Kennedy Reply Decl. at ¶ 4 & Ex. C, at 4. Judge Sparks accepted the argument

that “familiarity of the forum with the law that will govern the case [] favors transfer.” See ECF

No. 217, at 7. “The Northern District of California,” Judge Sparks continued (as urged by

Apple and Path), “is obviously more familiar with California law than is this Court.” Id. at 7.

2 Apple proffers a different set of purportedly applicable Terms and Conditions in opposition to the present motion (see ECF No. 675-22), authenticated by its attorney of record Mr. Hawk, but highlights only one of two choice of law provisions (see ECF No. 675-22, at 13 (Bates No. APL-PATH_00011272)) contained in that document. That second, broader catch-all choice-of-law provision (at ECF No. 675-22, at 25 (Bates No. APL-PATH_00011284)) states: “The laws of the State of California, excluding conflicts of law rules, govern this license and your use of the Licensed Application.” Apple defined “Licensed Application” to include “any App Store Product.” See ECF No. 675-22, at 22 (Bates No. APL-PATH_00011281). Thus, both versions of Apple’s Terms and Conditions and both clauses in those agreements call for application of California law to the parties’ relationship.



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That should end the discussion. Apple and Path succeeded in moving this case to

California in part because, they told Judge Sparks, California law applied. Therefore, they

cannot be heard to argue otherwise.

To defeat certification, Apple and Path now resort to repudiating their own user

agreements. See Path Opp. at 9; Apple Opp. at 23 & n. 12. But these parties drafted those

documents, foisted them on their users and then advocated for enforcement of their choice of

law and choice of forum provisions. See, e.g., ECF Nos. 124 at 1-6; 147 at 8-9; 206 at 1-5; &

211 at 8-9. Apple and Path cannot reverse course simply to defeat certification of a nationwide

class on choice-of-law principles. Maxim Crane Works v. Tilbury Constructors, 208

Cal.App.4th 286, 295 & n.5 (2012) (rejecting drafting party’s argument that its choice-of-law

provision should not apply and noting “courts have rejected attempts by parties to avoid choice-

of-law provisions in their own form contracts when their chosen laws prove adverse in a given

case”). Just as no party may invalidate a choice-of-law provision for the sake of preserving

class integrity, no party (and especially the drafting party) may invalidate such a provision for

the sake of disrupting class integrity. Wash. Mut. v. Superior Court, 24 Cal.4th 906, 918 (2001).

Whether their respective user agreements are binding and enforceable is beside the point.

Given that both Apple and Path reside in this State, these parties’ uniform choice of California

law in their dealings with the public and with one another evinces an unequivocal intention that

(1) those dealings will be governed by this State’s law, and (2) their customers will come to

expect as much. Wolph v. Acer Amer., 272 F.R.D. 477, 484-85 (N.D. Cal. 2011). As this Court

recognized, there is a certain “poetic justice” where, as here, corporate defendants are forced to

countenance the consequences of their own standard form adhesion contracts. Rodman v.

Safeway, No. 11-cv-03003, 2014 WL 988992 at *8 (N.D. Cal. Mar. 10, 2014).

3. California has the paramount governmental interest here.

Not only did Apple and Path choose and urge California law, they have admitted that

California’s contacts and relationship to the parties, the claims, and the conduct at issue here are

paramount. As they told the Court, substantially all of the conduct directly relevant to this case

transpired in this State. Wershba v. Apple, 91 Cal.App.4th 224, 241 (2001). Under the



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circumstances, Wershba and its post-Mazza progeny provide ample basis to apply California law

to the class claims asserted here.

In deciding whether to upset the application of California law to those claims, the Court

must (a) first evaluate the existence of any “material” differences between California and

foreign state law, (b) assuming such differences, evaluate each state’s interests to determine if a

“true conflict” exists, and finally (c) compare relative impacts to California and the foreign

states with whom a “true conflict” exists. Todd v. Tempur-Sealy, No. 13-cv-04984, 2016 WL

344479 at *6 (N.D. Cal. Jan. 28, 2016) (assessing law of unjust enrichment). Under each prong,

Apple and Path must “shoulder the burden of demonstrating that foreign law, rather than

California law, should apply to class claims.” Wash. Mut., supra, 24 Cal.4th at 921.

a. Step One: No Material Difference

The Supreme Court recognized in 1975 that “the century has experienced a strong tide

running in favor of the so-called right of privacy.” Cox Broad. v. Cohn, 420 U.S. 469, 488

(1975). The Supreme Court favorably cited 30-plus states plus the District of Columbia for their

recognition of the privacy tort, adding “these are impressive credentials for a right of privacy.”

Forty years later, 48 of the 50 states recognize a common law claim for intrusion upon

seclusion; 37 (including California) follow the Second Restatement’s formulation. Meltz, No

Harm, No Foul? “Attempted” Invasion of Privacy and the Tort of Intrusion Upon Seclusion, 83

Fordham L. Rev. 331, 340 et seq. (2015).

As the Court may recall, in the Tempur-Sealy case (Dkt. No. 160-3), the materiality

analysis began with a 50-page chart prepared by defendant detailing the pertinent law on a state-

by-state basis. Defendants proffer nothing of the sort here. Apple and Path are further

constrained in this argument given that both have failed and refused to identify absent class

members or their locations. See Kennedy Reply Dec. at ¶ 5 & Exs. D (Path’s Resp. to Requests

for Admission Nos. 1 and 2) & E (Apple’s Resp. to Interrogatory No. 14). The Court should

therefore decline to consider any argument in opposition to class certification based on the

location of class members. See Todd, supra, 2016 WL 344479, at *6.



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Apple and Path contend that the lack of specifically analogous digital intrusion cases in

any given state ipso facto establishes a material difference in the common law, calling special

attention to the States of Wyoming (.18% of the U.S. population) and North Dakota (.22% of the

U.S. population). From this, Apple speculates that Wyoming, North Dakota and other states

have made an affirmative determination or “elected” that any legal remedy for digital invasion

of privacy “should be established by legislature” or “ballot initiative” and not developed in the

common law. See Apple Opp. at 22-23. Any number of conclusions can be drawn from the

absence of a given state’s ruling on the subject—perhaps, as is more likely, the question hasn’t

reached an appellate court in those states (after all, the Supreme Court only decided Riley in

2014). None of it is in any event dispositive.

Defendants next float the theory that any state’s statutory recognition of some type of

intrusion claim eliminates that state’s common law privacy laws. While a state can reserve

questions of intrusion for its legislature, it is far more likely that state legislatures expect and

intend their state courts to harmonize privacy statutes with common law precedent. See, e.g.,

Fischer v. Mt. Olive Lutheran Church, 207 F.Supp.2d 914, 928 (W.D. Wis. 2002) (“Wis. Stat. §

895.50(3) states that “[t]he right of privacy recognized in this section shall be interpreted in

accordance with the developing common law of privacy”). California enacted a privacy statute

in 1899, over a decade before the development of a common law privacy tort became

established under state law. 1899 Cal. Stat. 28, codified as Cal. Penal Code § 258 (1899), as

repealed by 1915 Cal. Stat. 761.

Finally, Defendants suggest various states’ common law prohibit intrusion claims for the

type of interest present in this case—the same exaggerated and unsupported legal arguments

Apple and Path once made about California’s common law. See, e.g., ECF No. 145, at 11-14.

Apple and Path collectively make four separate arguments about Florida law in four different

sections of their briefs (see Path Opp. at 12-13 & 19; Apple Opp. at 24)—none of which are

organized, material, or even true, and all of which lack a principled basis for contending that

these same legal arguments have more weight or credibility outside of this State.



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Defendants argue that some states require “physical invasion” of property, but they cite

no cases considering and rejecting the type of digital intrusion at issue here.3 See Path Opp. at

13; Apple Opp. at 24-25, 33 and n.14 & 17. Federal courts sitting in diversity in the states of

Florida, Rhode Island, Maine and Wisconsin have all rejected such a requirement. Stirling

Intern. Realty v. Soderstrom, No. 6:14-cv-1109-ORL, 2015 WL 403318 at *6 (M.D. Fla. Jan.

28, 2015); Lisnoff v. Stein, 925 F.Supp.2d 233, 240 (D.R.I. 2013); Thayer Corp. v. Reed, No.

2:10-cv-00423-JAW, 2011 WL 2682723 at *10 (D. Maine July 11, 2011); Fisher, supra, 207 F.

Supp. 2d at 928 (denying summary judgment because “it is disputed whether accessing

plaintiff’s email account is highly offensive to a reasonable person and whether plaintiff’s email

account is a place that a reasonable person would consider private”).

Defendants also cite non-analogous cases for the overly-broad proposition that the

contents of iDevices are not private if the information on them has ever been shared. Research

discloses no case holding that an individual’s choosing to share information with some people

means that anyone else in the world can take that information at will. Privacy is a situational

concept, not an absolute one. Sanders v. ABC, Inc., 20 Cal. 4th 907, 915-16 (1999).

The Court should decline the invitation to manufacture material differences in state law

by reading any foreign state’s case law “more broadly than its text requires.” CRS Recovery v.

Laxton, 600 F.3d 1138, 1143 (9th Cir. 2010) (admonishing defendants’ creating of material

differences). The common law claim of intrusion upon seclusion is well-established among the

50 states, its orders of proof are uniformly simple, and the claim applies with a certain elegance

post-Riley to the digital mobile computing age. In this, Defendants have failed to show that any

state’s law materially differs from California’s law in protecting the privacy of address book

data on a class member’s personal digital device.

3 Louisiana’s constitutional right to privacy is not circumscribed by the physical “quarters” language Path quotes (see Path Opp. at 11) but instead protects “varied interests from invasion” including each individual’s “seclusion or solitude, or [] private affairs.” La. Const. of 1974, Art. 1 § 5; Broderick v. Dept. of Envir. Qual., 761 So.2d 713, 715 (La.App. 2000).



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b. Step Two: No True Conflict of Interest

The Court reaches the second step of the “governmental interest test” if and only if

Apple and Path meet their burden to show materiality in the first step. See Rutledge, supra, 238

Cal.App.4th at 431; Wershba, supra, 91 Cal.App.4th at 242-43; Wolph, supra, 272 F.R.D. at

486. While the Court need not reach this issue, no “true conflict” exists because “under the

circumstances of this particular case,” foreign states have no true interest in enabling or

protecting Apple or Path to secretly harvest data from their residents. CRS Recovery, supra, 600

F.3d at 1143 (rejecting imprecise or incorrect characterizations of foreign state’s interest as

presenting “classic false conflict”); Forcellati v. Hyland’s, No. 12-cv-1983, 2014 WL 1410264

at *2-3 (C.D. Cal. Apr. 9, 2014) (same).

Apple cites just one case to establish a true conflict, In re Yahoo Mail, 308 F.R.D. 577,

604-05 (N.D. Cal. 2015). But the decision there stands for the narrow choice-of-law principle

that each foreign state has an interest in “shielding” out-of-state companies, via its state statutory

wiretap laws, from liability for secretly scanning the emails of their residents. That interest in

turn derived from Yahoo’s argument, accepted by the court there, that nationwide application of

California state statutory law would “set [] back email services for decades.” Id. at 600 & n.10.

No such interest is present here. In fact, just the opposite is so, if Apple’s more recent

statements about data privacy are to be believed. See In re Apple, No. 15-mc-01902, 2016 WL

783565 at *21 & n.34 (E.D.N.Y. Feb. 29, 2016) (quashing federal law enforcement subpoena

because, in part, court must “take into account the extent to which the compromise of privacy

and data security that Apple promises its customers affects not only its financial bottom line, but

also its decisions about the kind of corporation it aspires to be”). Without identifying any

discernably “true” reason why any single state has any interest specific to restricting California’s

nationwide application of common law intrusion, Apple and Path fail to meet their conflict of

law burden here.4

4 Path cites to a single case, Kearney v. Salomon Smith Barney, 39 Cal.4th 95 (2006), for the proposition that, as a matter of law, “California has no government interest in the privacy interests of nonresidents.” But Kearney held no such thing; it dealt with the conflict between



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c. Step Three: Comparative Impairment

Assuming Apple and Path met their burden to proceed beyond the first two steps of the

relevant choice-of-law test, which they have not, the Court then “must carefully evaluate and

compare the nature and strength of the interest of each jurisdiction in the application of its own

law to determine which state’s interest would be more impaired if its policy were subordinate to

the policy of the other state.” Forcellati, supra, 2014 WL 1410264, at *2-3. Defendants cite

Yahoo Mail, but they fail to show how any state’s interests are impaired by enforcing California

common law on the data collection efforts of California residents like Path and Apple.

d. Apple’s Aiding and Abetting

By its own admission, California is the nexus of Apple’s substantial assistance to Path as

well as its own alleged misconduct, independent of Path. The aiding and abetting authority

Apple cites has no tie to “the circumstances of this particular case” and on that basis alone

cannot possibly meet the burden articulated in Mazza. Id.

Conclusory assertions that differences in state aiding and abetting law are “critical” from

a theoretical standpoint do not satisfy the pertinent test. Apple must shoulder its burden to

establish that California’s interest is properly “subordinated” to those foreign states enforcing a

“materially” different standard. See id.

Apple fails to show that any state has expressed any particular interest in limiting out-of-

state entities’ liability for their role in “substantially assisting” the intrusion at issue here. Apple

makes the utterly meaningless statement, in a single sentence and without citation, that in toto

state law reflects “profoundly different social and policy judgments.” See Apple Opp. at 26.

Apple’s reliance on Yahoo Mail as a cure-all is inapposite for all of the reasons discussed above

(not to mention that no aiding and abetting claim was at issue in that case).

The remainder of Apple’s choice of law showing on aiding and abetting is confined to

the merits. As an example, Apple mischaracterizes Plaintiffs’ aiding and abetting argument as

falling under the second prong of Section 230 of the Communications Decency Act, 47 U.S.C. §

one-party and two-party consent states over recording of telephone calls. See id. Unlike in both Kearney and Yahoo Mail, no such clear statutory conflict exists here.



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230. See Apple Opp. at 5 & n.3. For present purposes, Plaintiffs need only remind the Court

that the CDA is a federal law that would apply nationwide and enforce any policy judgments on

a common basis as to each class member’s claims against Apple that arise from Apple’s

assistance to Path. The balance of Apple’s merits argument is for another day.

* * *

Application of California law is consistent with the Defendants’ own terms of use, their

prior admissions to obtain transfer of this case, due process, and California’s choice of law

principles. The Court should apply California law to the class claims and, thus, choice of law

presents no predominance issue.

B. Liability Is Established Objectively Not Based on How Each Person Feels.

At the same time that Apple broadcasts to the world that the contents of its customers’

phones are so sacred to it that the privacy interests of a dead terrorist outweigh the federal

government’s interest in prosecuting (and, potentially, preventing) acts of terror, Apple and Path

argue here that Plaintiffs’ phones and their data are not really private at all.5 Instead, they seek

to condition Plaintiffs’ privacy interests upon proof that each and every person subjectively

believed their Contacts database was private and that they were offended by Path’s conduct.

There is no requirement of subjective intent or offense. Under California law, the

common law tort of “intrusion on seclusion” has only two elements: “(1) intrusion into a private

place, conversation, or matter, (2) in a manner highly offensive to a reasonable person.” See

Case No. 12-cv-01529-JST, ECF No. 67, at 42. Contrary to Apple’s contention (see Apple Opp.

at 13), for an “intrusion on seclusion” claim, the invasion also does not need to be “an egregious

5 Apple has spent the last several months telling the world in a very public and coordinated way – engaging in what the U.S. Department of Justice views as a massive public relations campaign to burnish its “brand” in a manner reminiscent of the “buzz marketing” and “earned media” Plaintiffs contend are at issue in other parts of the present case – that it has dedicated itself as a company to user privacy and that it treats the data contained on a user’s iDevice as personal and private. Away from the media onslaught engendered by Apple’s battle with federal law enforcement, however, Apple insists just the opposite here and elsewhere in this case. See, e.g., ECF No. 653, at 3-4 (nothing shows address book data “to be highly sensitive, or indeed, private at all” and users have not “articulated a colorable argument for why such data could be considered private”).



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breach of a social norm.” The authority Apple cites, In re iPhone App. Litig., 844 F.Supp.2d

1040, 1063 (N.D. Cal. 2012), dealt with California’s constitutional and not common law privacy

protections. The elements of the claims are different.

For the first element of the common law claim, there is no real dispute that Apple and

Path intruded into a private place, i.e., Plaintiffs’ and class members’ iDevices. But to the extent

there is a dispute, Apple and Path’s conduct was the same for all the class members, creating a

common question for resolution on a classwide basis. “[T]he plaintiff must have an objectively

reasonable expectation of seclusion or solitude in the place, conversation, or data source.”

Varnado v. Midland Funding, 43 F.Supp.3d 985, 992 (N.D. Cal. 2014). The “reasonableness” of

an expectation of privacy is “an objective entitlement founded on broadly based and widely

accepted community norm.” Hill v. NCAA, 7 Cal. 4th 1, 36 (1994).

There is no additional subjective component for each class member to satisfy. The only

case Apple cites, Med. Lab. Mgmt. v. ABC, Inc., 306 F.3d 806, 812 (9th Cir. 2002), considered

Arizona law and discussed the plaintiff’s “subjective expectation of seclusion or solitude in the

place, conversation, or matter” specifically at issue in that case. Here, it is now settled law that

individuals have an objectively reasonable expectation of seclusion on their cellphone. Riley v.

California, ___ U.S. ___, 134 S.Ct. 2473 (2014).

The second element also requires no subjective inquiry. Taus v. Loftus, 40 Cal. 4th 683,

705 (2007) (citing Shulman v. Group W, 18 Cal.4th 200 (1998)). This is a “‘policy’

determination as to whether the alleged intrusion is ‘highly offensive’ under the circumstances.”

Hernandez v. Hillsides, 47 Cal.4th 272, 287 (2009). The important inquiry is the “intruder’s

motive and objectives,” not the victim’s subjective level of offense. Id. at 287. Apple and Path’s

motive and objective are classwide questions, not particularized to any individual class member.

The resulting question – would a reasonable person find Apple and Path’s conduct

highly offensive? – is thus necessarily a classwide question that can be answered on a classwide

basis. To the extent Defendants contend their invasion of Plaintiffs’ privacy was “accidental,

misguided, or excusable,” Hernandez, supra, 47 Cal. 4th at 295, this too is a perfect question for

classwide resolution.



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Even Defendants’ case law emphasizes the objective character of the inquiry. In the

same paragraph Apple cites from Hill, supra, 7 Cal. 4th at 25-26, the court recognizes the

limiting principle in the privacy torts is “the importance of the objective context of the alleged

invasion.” (Emphasis in original.)

Defendants cite only one case describing a subjective component of the claim, Greywolf

v. Carroll, 151 P.3d 1234 (Alaska 2007), but that decision – never cited outside of Alaska –

considers whether a psychiatric patient has an expectation that her doctor will not report

menacing behavior to the police and therefore has nothing to do with the expectation of privacy

in mobile device data. Cf. Riley, supra, 134 S.Ct. at 2495 (“modern cell phones [] with all they

contain and all they may reveal [] hold for many Americans the privacies of life”) (internal

citations omitted). The reason why police cannot conduct warrantless searches is the arrestee’s

reasonable expectation of privacy in the information contained on modern cellphones. Id. at

2490 (“many of the more than 90% of American adults who own a cell phone keep on their

person a digital record of nearly every aspect of their lives”).

Each of the Plaintiffs testified they were, in fact, subjectively offended by Apple and

Path’s conduct. See Kennedy Reply Decl. at ¶ 6 & Ex. F, Carter Depo. Tr. at 186:13-15 (“my

information being taken without my permission is the issue, is the thing that offends me”); at ¶ 7

& Ex. G, Cooley Depo. Tr. at 70:2-3 (“I think it’s offensive for them to have taken contacts

from my personal device.”); and at ¶ 8 & Ex. H, Green Depo. Tr. at 50:20-25 (“it is offensive.

My contact data is very private to me”). This testimony is consistent with the reasonable

expectation that an iDevice App is not going to secretly upload or copy data from one’s phone,

all that is required for both certification and to prove the claim.

The same is true with respect to how each class member uses social media. Consent

matters. (Defendants in this case who sought some form of consent focus on it. See, e.g., ECF

No. 706, at 8-10.) Just as holding a private party at one’s home does not excuse a subsequent

trespass, consenting to share contacts data with some apps does not excuse unauthorized

harvesting by others. Defendants cannot defeat certification by claiming that the Court must



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examine how each class member feels about social media and the precise lines of permission

and restriction that person applies when other apps ask to copy or otherwise use their data.

C. The Specific Contents of Each Phone Are Irrelevant.

Defendants also argue – as if this were a trade secret case – that the specific contents of

each address book are relevant to determine liability. According to Defendants, only secret

phone numbers are protected, and there is no right of privacy preventing an app developer from

copying the contents of one’s address book without permission if the phone numbers in the

address book are known to anyone (for instance, listed in the White Pages). Defendants make

up a lot of “rules” around these arguments, claiming that business numbers cannot be private,

numbers in the phone book cannot be private, etc.

It is not the numbers themselves that are private. It is the phone, and specific collection

of data therein, that is private. Defendants cite no case, as there is none, holding that people

have no expectation of privacy in data on their phones unless the data itself is secret and unique

to that person.

While Defendants’ argument presents a clever way to defeat class certification, it is

otherwise nonsensical. There is nothing secret about the way the Golden Gate Bridge looks.

Does that mean that if one takes pictures of the bridge with their phone, their privacy is not

violated if the phone is hacked and the pictures copied? Does the fact people have specific

medicines or other items in their purses or bedside tables become non-private because those

same items are sold in drug stores? Defendants conflate the privacy of the phone with whether

each piece of data on the phone is separately private and akin to a trade secret. The Riley

decision would have little meaning if the privacy recognized by the Supreme Court was limited

to data or images uniquely appearing on an individual’s phone.

Nor is it the law that private data may only be known by the owner, or that once some

data has been publicly disclosed there can be no privacy violation with future disclosure. The

facts in Taus are instructive; there, plaintiff sued a pseudo-academic journal that investigated her

claims she had been sexually abused as a child, and recovered the memories after speaking with

a therapist. Taus, supra, 40 Cal. 4th at 691. The journal obtained information from plaintiff’s



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foster mother—information that, under Defendants’ theory, was non-private by virtue of its

disclosure to the foster mother. Id. at 729-30.

The California Supreme Court specifically rejected Path and Apple’s theory that “no

violation of a person’s reasonable expectation of privacy occurs when a third party” – such as

Path and Apple – “obtains access to personal information about the person from his or her

relatives or friends by utilizing improper and unanticipated means.” Id. at 731-32. The court

correctly reasoned that “there is a significant difference between the disappointment one feels

when a relative or friend reveals one’s personal secrets, and the affront to one’s personal

integrity and individual dignity that results when a third party, with whom one has no personal

relationship, uses improper and unauthorized means to obtain access to such personal, private

information.” Id. (internal citations omitted).

Likewise, the court’s decision in Sanders, supra, 20 Cal. 4th at 913-16, holds that

voluntarily disclosing private information does not vitiate an intrusion claim. In Sanders, a

reporter posed as a “tele-psychic” to gain employment with the Psychic Marketing Group, then

secretly recorded private conversations with her fellow “psychics.” The Court held “to be

reasonable for purposes of the intrusion tort” an expectation of privacy need not be “absolute or

complete.” Id. at 913. Thus, “privacy, for purposes of the intrusion tort, is not a binary, all-or-

nothing characteristic.” Id. at 913-14. Further,

There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Although the intrusion tort is often defined in terms of “seclusion,” the seclusion referred to need not be absolute. Like “privacy,” the concept of “seclusion” is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.

Id. at 915-16 (internal citations omitted). That the unwitting psychic discussed his personal

feelings and beliefs with his presumed co-worker did not eliminate his right to privacy. “Privacy

for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged



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intruder and the nature of the intrusion.” Id. at 917-18. And here, the identities of the intruders

and the nature of the intrusions are common across the class.

There is no law suggesting that one’s cell phone or similar device is only private if the

contents of the device are independently secret. None of the cases cited by Defendants holds, or

even implies, that Path had the right to copy the contacts from all iDevices that used the Path

App so long as the same information could be found elsewhere in the world or had been shared

with other people.

D. Damages Can Be Proven Classwide and Do Not Defeat Certification.

Defendants’ next predominance argument – that individual issues exist as to damages

and defeat certification – suffers from numerous flaws, the first of which is that Ninth Circuit

law holds that individual damage calculations cannot defeat class certification.

1. Individualized damage questions do not defeat certification.

In late 2015, the Ninth Circuit reaffirmed its long-standing holding that individual

damage calculations do not defeat class certification. Pulaski, supra, 802 F.3d, at 987-88;

Yokoyama v. Midland Nat., 594 F.3d 1087, 1094 (9th Cir. 2010) (citing Blackie v. Barrack, 524

F.2d 891, 905 (9th Cir. 1975)). In so doing, the Ninth Circuit rejected the extreme view of

Comcast v. Behrend, __ U.S. __, 133 S.Ct. 1426 (2013), urged by the defense bar.

The Pulaski court held that Comcast “did not hold that proponents of class certification

must rely upon a class-wide damages model to demonstrate predominance.” Id. at 988 (citing

Roach v. T.L. Cannon, 778 F.3d 401, 407 (2d Cir. 2015)). Five other circuits have joined the

Second and Ninth Circuits in rejecting the more expansive view of Comcast. Jimenez v.

Allstate, 765 F.3d 1161, 1167 (9th Cir. 2014) (citing cases from the Fifth, Sixth, and Seventh

Circuits); Roach, supra, 778 F.3d at 407 (citing cases from the First and Tenth Circuits).

Defendants ignore this controlling authority, as well as the subsequent district court

cases citing it and rejecting the type of damage challenges to predominance Defendants make

here. Mullins v. Premier Nutrition, No. 13-cv-01271, 2016 WL 1535057 at *6 (N.D. Cal. Apr.

15, 2016) (granting certification on a “full refund” liability theory); Falco v. Nissan, No. 13-cv-

686, 2016 WL 1327474 at *12 (C.D. Cal. Apr. 5, 2016) (granting certification where “Plaintiffs



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explain that their damages expert, after further discovery, can perform a class-wide remedies

analysis”); Robinson v. Open Top Sightseeing, No. 14-cv-00852, 2015 WL 9304041 at *4 (N.D.

Cal. Dec. 22, 2015) (granting certification in employment overtime case where liability involves

no individualized determination); Abbit v. ING, No. 13-cv-2310, 2015 WL 7272220, at *14

(S.D. Cal. Nov. 16, 2015) (granting certification where “the Court entertains concerns as to the

methodology” proposed, but nevertheless “finds at this time that the damage model is plausible

and that individualized issues do not defeat certification”).

Defendants urge the Court to adopt the exact misreading of Comcast the Ninth Circuit

rejected in Pulaski. See Apple Opp. at 27; Path Opp. at 20-21. Neither cites the Pulaski

decision, or acknowledges that there was no dispute in Comcast – an antitrust case – that

Plaintiffs were required to present a damage model showing the economic impact of the claimed

anticompetitive behavior to establish liability.

Amongst other pre-Pulaski law, Defendants cite Lilly v. Jamba Juice Co., 308 F.R.D.

231, 244 (N.D. Cal. 2014). In Lilly, this Court concluded that plaintiffs had some obligation to

“demonstrate that their damages models were feasible [though] often,” the Court wrote, “this

will impose only a very limited burden.” Id. For example, the Court proposed that “in a wage-

and-hour case [] producing a payroll database will likely suffice.” Id.

Plaintiffs respectfully submit that the Lilly decision is inconsistent with the subsequent

Pulaski case. (As the Court is no doubt aware, its Lilly decision is on appeal.) Yet, even if the

Court were to apply the same limited burden here, Plaintiffs meet it.

2. Plaintiffs’ proposed conjoint model satisfies Rule 23.

Plaintiffs allege that Path, aided and abetted by Apple, programmed its application to

automatically harvest contact information on every Path user’s iDevice. Path neither sought nor

obtained consent to take this data. This intrusion cost Plaintiffs their inherent privacy interest in

protecting the harvested data by violating their right to exclude Path from that data, as “one of

the main rights attaching to property is the right to exclude others.” Rakas v. Ill., 439 U.S. 128,

143 & 163 & n.12 (1978).



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Plaintiffs proposed to calculate that harm for the putative classes by performing a

conjoint analysis isolating the value of this right. See ECF No. 651, at 20. Path challenges this

model on the basis that the survey has not been conducted and, with no authority of any kind,

that Plaintiffs’ inherent privacy interest is not compensable. See Path Opp. at 21. Apple does

not challenge the compensability of the lost privacy interest, arguing that it depends upon

individual strength of feeling and cannot be measured by a conjoint survey. See Apple Opp. at

27-30. Apple provides testimony from two previously-undisclosed experts to opine that any

such model would be unreliable.

Under Pulaski, none of these objections are relevant. Each argument – the

compensability of objective damages, the sufficiency of a conjoint survey, and the merits of the

survey – can be resolved on a classwide basis. Neither Path nor Apple contends that such a

survey would not be related to their challenged conduct. Pulaski, supra, 802 F.3d at 987-88

(plaintiffs need only “show that their damages stemmed from the defendant's actions that created

the legal liability”).

Plaintiffs’ analysis also satisfies the pre-Pulaski standard this Court adopted in Lilly.

Under Lilly, this Court examined three factors: (1) did Plaintiffs meet their limited burden of

showing damages can “feasibly and efficiently be calculated once the common liability

questions are adjudicated;” (2) did Defendants make “at least a prima facie showing that

damage calculations are likely to be more complex;” and (3) if so, do Plaintiffs lay “at least

some evidentiary foundation” that can “establish the feasibility and fairness of damage

assessments.”

Plaintiffs’ motion met the first factor by proposing a straightforward conjoint analysis to

isolate the value of Plaintiffs’ objective privacy interests. “Conjoint analysis has been used for

decades as a way of estimating the market's willingness to pay for various product features.”

Guido v. L'Oreal, No. 2:11-cv-01067-CAS, 2014 WL 6603730 at *5 (C.D. Cal. July 24, 2014).

See also TV Interactive Data v. Sony, 929 F. Supp. 2d 1006, 1022 (N.D. Cal. 2013) (holding

conjoint analysis “is accepted by the relevant community”). Apple has relied upon conjoint

analysis to isolate the value of specific smartphone features. Apple v. Samsung, No. 12-cv-



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00630, 2014 WL 794328 at *16 (N.D. Cal. Feb. 25, 2014) (approving Apple’s use of “a choice-

based conjoint survey to quantify decrease in demand for the product absent the patented

feature”). Plaintiffs further proffered objective evidence of who was harmed, akin to a payroll

database. See ECF No. 651, at 17 (databases of Path users whose data was harvested).

Path fails to make a prima facie showing that the damage calculations will require

anything more complex than the proposed conjoint analysis. Only Apple provides evidence

supporting its assertion that “conjoint analysis cannot calculate the effect of myriad factors that

could bear on the dollar value any particular individual would assign to an intrusion” in the form

of two declarations from non-economists. See Apple Opp. at 29.

But Plaintiffs’ proposed use is directly analogous to the use Apple made of a conjoint

survey in its Samsung litigation, where it sought to calculate a single number representing the

impact of removing patented features from Samsung’s devices. Apple, supra, 2014 WL 794328

at *13. Given this use of conjoint analysis to analyze large-scale consumer behavior, it is not

clear what Apple’s complaint that “conjoint surveys are designed to assess individual valuation,

not societal values” means. See Apple Opp. at 29. Individual survey responses can be

aggregated to provide meaningful data; Apple has done so in other litigation.

Apple’s other contention – that the resulting evidence is representative rather than

individualized – provides no basis to deny certification. Representative evidence can be used

where it “is relevant in proving a plaintiff’s individual claim.” Tyson Foods, supra, 136 S. Ct. at

1046. In this case, an individual plaintiff would rely on the same conjoint analysis proposed by

the class to measure the objective value of her lost privacy interest.

Not only do Defendants fail to present the prima facie showing identified in Lilly,

Plaintiffs here satisfy any obligation they have to lay at least some evidentiary foundation

establishing the feasibility and fairness of damage assessments. Notably, the record does not

reflect that Plaintiffs in Lilly responded to defendants’ prima facie showing with any evidence

regarding their proposed damages analysis.

While Plaintiffs’ motion has already satisfied the burden under Comcast, Path and Apple

raise expert arguments in opposition calling for some form of rebuttal, tailored to the contours of



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class certification. Apple offers one expert to assert summary judgment arguments styled as an

opposition to certification, asserting through that expert that sharing conduct varies between

users once they enjoy the opportunity to consent or not consent to specific third party collection

and use of their address book data. See ECF No. 701, at 16-18.

Plaintiffs stipulated to this fact for a reason. See Apple Opp. at 17. The interest at issue

is the inherently valuable privacy interest of requiring informed choice in the first place.

Plaintiffs’ expert will administer a methodologically-sound “Willingness to Pay” conjoint

analysis to establish a reliable, uniform classwide measure for this interest.

In the accompanying rebuttal declaration, Professor Hank Fishkind, Ph.D., describes

how economists regularly measure the value present in this case. Dr. Fishkind cites to prior

studies that have successfully evaluated the privacy value at issue in equivalent circumstances

and identifies that he has used this same approach in other cases. See Fishkind Decl. at ¶ 9.0.

His declaration describes a comparable survey design for the interest at issue in this case, and he

supports his proposed design as consistent with established econometric techniques and

principles. Id. at ¶ 54.0. Dr. Fishkind concludes that a large sample of qualified survey

respondents will allow a credentialed expert to conduct a properly screened survey to measure

the value of protecting personal address book data (in his words, “the value of a lock”) in the

acquisition of a mobile device social networking application. Id. at ¶ 21.0.

There is no “might” (see Apple Opp. at 27) or “speculation” (see Path Opp. at 21) about

it. As Plaintiffs stated in their motion, and now reiterate, Plaintiffs expect to provide a

methodologically-sound survey to establish a classwide, uniform measure for the inherent value

of the privacy interest that Path and Apple invaded during the class period.

Because Plaintiffs have proposed a damage analysis that stems directly from the

Defendants’ actions, they have sufficiently demonstrated that damages can be dealt with on a

classwide basis.



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3. Plaintiffs’ unjust enrichment theory of recovery does not require a complex

model.

Plaintiffs also expect to prove that Path was unjustly enriched by its harvesting of over

662 million private address book records. Plaintiffs’ theory is simple: Because Path had no right

to harvest these records without Plaintiffs’ consent, any benefit it obtained is unearned and must

be disgorged. While discovery is ongoing on these claims, Plaintiffs expect to obtain documents

allowing the fact-finder to measure the benefit Path obtained from this massive collection of

data. See ECF No. 705.

Defendants’ objections show that this theory of recovery depends entirely upon

questions subject to classwide determination. Path (but not Apple) suggests unjust enrichment

is unavailable because neither Plaintiffs nor Path sold their contact data to a third party and

further argues that its increase in valuation was not influenced by the hundreds of millions of

records it harvested. See Path Opp. at 24-25. Apple (but not Path) argues that unjust

enrichment is not available as a remedy for intrusion or where the money a defendant receives

does not come directly from the Plaintiff. See Apple Opp. at 33-34. Each of these merits

questions will be answered the same way for the entire class.6

Defendants also attack Plaintiffs for not providing a detailed unjust enrichment damages

model, but those damages are an inherently common question. The Court can determine on a

classwide basis whether unjust enrichment (1) is a viable remedy in intrusion cases (it is, as set

6 When it does come time for the Court to consider the merits of this case, the evidence will refute Defendants’ self-serving positions. For example, Path and the other Defendants repeatedly urge the Court to accept the proposition that they collected contacts as a “service” to users, with no profit to themselves in so doing. Yet less than a year before stealing the class members’ contacts, Path’s owners filed a patent claiming detailed data-mining methods for utilizing user contacts to weigh for relationship strength and leveraging this information to manipulate each user’s interaction with the entire app. Path’s patent teaches that “When applied to all of a user’s contacts, the RelationshipRank process helps identify the user’s current most relevant contacts.” See U.S. Patent No. 8589491, col.6 l.24-26 (filed July 7, 2011). This and other evidence (as well as common sense) will show that Path copied Plaintiffs’ contacts (and Apple supported Path in that endeavor) because both Defendants could and did leverage that data in the conduct of their respective businesses, not out of the goodness of Defendants’ hearts or some desire to dole out “free” services to their customers.



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forth in Restatement (Third) of Restitution and Unjust Enrichment § 3 cmt. b (2011) (restitution

appropriate to “protect[] the owner’s right to insist that any use of property by another – whether

or not it diminishes the property’s value – be made with the owner’s consent and on the owner’s

terms”)); (2) is available for money received by a third party (it is, as set forth in Shersher v.

Superior Court, 154 Cal. App. 4th 1491, 1500 (2007) (“it is not essential that money be paid

directly to the recipient by the party seeking restitution”)); (3) can be had without a direct sale of

the data (it is, as set forth in San Bernardino v. Walsh, 158 Cal.App.4th 533, 542 (2007) (“a

person acting in conscious disregard of the rights of another should be required to disgorge all

profit”)); and (4) can be attributed to Path’s illegal data harvesting, based upon a complete

review of all admissible evidence on a dispositive motion or at trial.

Furthermore, Pulaski is directly applicable to Defendants’ assertion that some model is

required at this preliminary stage. There, Plaintiffs sought certification of a claim for restitution

damages based upon allegations that Google’s AdWords program “misled them as to the types

of websites on which their advertisements could appear.” Pulaski, supra, 802 F.3d at 981-82.

The Ninth Circuit acknowledged that calculating restitution damages can be difficult, but also

that “the amount of damage may not be susceptible of exact proof or may be uncertain,

contingent or difficult of ascertainment does not bar recovery.” Id. at 989. It was therefore

satisfied by Plaintiffs’ description of a proposed model, without any reference to expert

testimony. Id.

Here, Plaintiffs’ theory is even simpler. If Plaintiffs prove that Path was enriched as a

result of its data harvesting (immediately following which its private market valuation increased

by an order of magnitude), the amount must be distributed evenly to the class. What’s complex

about that? Common questions therefore predominate as to Plaintiffs’ unjust enrichment theory.

4. Plaintiffs’ nominal damages and punitive damages theories of recovery

require no model.

Plaintiffs also do not need any damage model to show that Path’s unauthorized upload of

their contact data was an unlawful intrusion, that Apple aided and abetted in that intrusion, and



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that Plaintiffs are, at minimum, entitled to nominal and punitive damages. Defendants

committed torts regardless of the economic consequences for any involved party.

Defendants argue that Plaintiffs’ nominal damage theory is unavailable because the class

includes plaintiffs who have not been injured. Each Plaintiff in the “Intrusion Upload Subclass”

(as defined) suffered the same intrusion (access and upload of their contacts data) while

receiving no notice the upload would happen and providing no consent. No individual Plaintiff

could have changed this objectively-offensive result.

Similarly, each Plaintiff in the “Intrusion Class” (as defined) suffered the unintended

download of invasive software. Thus, Plaintiffs have made a prima facie showing that each

Plaintiff suffered a “real, actual injury.” Cal. Civ. Code §3360; Allen v. McMillion, 82

Cal.App.3d 211, 219 (1978) (“if the forcible intruder were not the owner of the property, the

party in peaceable possession would be entitled to an award of at least nominal damages”).

Path (but not Apple) maintains that even nominal damages are subject to individualized

proof because the amount of data collected from the tortious intrusion differs by Plaintiff. See

Path Opp. at 22. If true, Path’s objection merely invites another simple damage calculation: a

nominal amount per contact rather than per plaintiff. While Path also criticizes Plaintiffs for not

specifying the specific amount of nominal damages, that is not a question to be resolved now.

Path also misconstrues the nature of its own intrusion: It would not have uncovered the number

of contacts on any class member’s device without first committing a tortious intrusion.

Finally, Apple (but not Path) asserts that nominal damages are inappropriate because

some class members may be able to prove individual damages. See Apple Opp. at 32-33.

Absent class members who believe they have suffered individualized “emotional distress”

damages are protected by the opt-out provisions under Rule 23(c)(2)(B), and the Court should

not “sacrifice the obvious advantages in judicial efficiency resulting from the ‘opt out’ approach

for the protection of [Apple’s purported] somewhat rare species of class member who is

unwilling to execute an ‘opt out’ form, but whose claim is nonetheless so important that he

cannot be presumed to consent to being a member of the class by his failure to do so.” Phillips

Petroleum v. Shutts, 472 U.S. 797, 813-14 (1985).



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Neither Path nor Apple disputes the availability of punitive damages under California’s

intrusion upon seclusion tort. Apple Opp. at 30 (agreeing that Ellis v. Costco, 285 F.R.D. 492

(N.D. Cal. 2012) held “the availability of punitive damages could be decided on the basis of

class-wide evidence centering on defendant’s conduct”); Path Opp. at 23 (acknowledging

California’s punitive damage standard). Instead, Defendants make three irrelevant arguments.

First, Defendants challenge the different standards provided by other states’ law, but

California law applies to the asserted claims for all members of the class.

Second, Defendants challenge the merits of Plaintiffs’ punitive damage showing by

presenting premature argument asserting that Plaintiffs will not prevail upon their punitive

damage theory (see Apple Opp. at 31-32; Path Opp. at 23-24), but the argument each presents is

precisely the sort of classwide dispute that the Court need not resolve at the certification phase.

Third, Apple (but not Path) argues that the amount of any punitive damage award must

be individually determined, which it contends is an additional bar on certification. See Apple

Opp. at 31 (citing no Northern District authority in support of contention that “courts routinely

find punitive damage calculations inappropriate for class treatment”). This last argument fails

because, in fact, “(b)(3) certification of [] punitive damages claims is appropriate.” Ellis, supra,

285 F.R.D., at 544. It also fails because, unlike the cases Apple cites, Plaintiffs here include a

nominal damages theory requiring no individualized calculation and allowing for punishment of

Defendants’ conduct. Arizona v. ASARCO, 773 F.3d 1050, 1058-60 (9th Cir. 2014) (en banc

approval of $300,000 punitive damage award on $1 in nominal damage) (“when only nominal

damages are awarded, application of a Gore ratio analysis is not appropriate”).

Defendants’ damage arguments thus also pose no barrier to predominance. The common

questions posed by Defendants’ uniform course of conduct predominate over any individual

issues in this case.

IV. BOTH PROPOSED CLASSES ARE APPROPRIATE

Apple (but not Path) challenges the proposed classes on the basis that each contains

uninjured people. See Apple Opp. at 20-22. It argues that, as a matter of law, those who

downloaded Path’s invasive software could not have been harmed unless their contacts were



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harvested. It further argues that even “many” of those whose data was harvested without

permission were uninjured merely because they suffered no identifiable pecuniary injury or

mental anguish. See Apple Opp. at 21.

Apple’s first argument, that members of the Intrusion Class are uninjured because they

downloaded invasive software but did not use it to the point where it harvested their contacts,

presents the sort of merits question that the Court should not resolve on class certification.

Plaintiffs’ theory is not unprecedented. The California Supreme Court has held that even where

an employer “never viewed or recorded plaintiffs inside their office,” “did not intend or attempt

to do so,” and “took steps to avoid capturing them on camera and videotape,” those factors do

not preclude a finding of intrusion. Hernandez, supra, 47 Cal. 4th at 292.

While the Hernandez court ultimately found that the employer’s conduct in that case was

not offensive, that finding bears no factual similarity to this case, as an employer was recording

his employees to uncover suspected misuse of its computers. Id. at 298. Path, of course, had no

similarly legitimate concern. More significantly, as demonstrated above, the issue of whether

the classwide download of identical software into identical operating environments constitutes

an actionable invasion of privacy is the sort of question that the Court should certify and a jury

should resolve on a classwide basis.

Apple’s argument that members of the Intrusion Upload Subclass were not injured is

also flawed. As discussed above, whether Path’s conduct constitutes an invasion of privacy, and

the available remedies, are common questions where the answer will not differ amongst class

members.

V. TYPICALITY IS SATISFIED HERE

“Typicality is satisfied if the plaintiffs’ claims are reasonably co-extensive with those of

absent class members; they need not be substantially identical.” Ades v. Omni Hotels, No. 13-

cv-02468, 2014 WL 4627271, *8 (C.D. Cal. Sept. 8, 2014) (citing Hanlon v. Chrysler, 150 F.3d

1011, 1020 (9th Cir. 1998)). (Path’s after-the-fact consent arguments, see Path Opp. at 17, again

present common questions about whether allowing a subsequent version of the Path app to

access a user’s address book data retroactively authorizes the prior intrusion.) Ades certified a



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consumer privacy class action where the plaintiffs alleged a “course of conduct by [defendant]

common to the class, and privacy violations typical to those of the class generally.” Id.

In a last-ditch effort to avoid certification, Apple uses the last few pages of its opposition

to spin Plaintiffs’ deposition testimony into a typicality defense to certification. See Apple Opp.

at 34-35; Path Opp. at 25. The primary thrust of this argument is that Plaintiffs have given

deposition testimony that, selectively quoted, suggests Plaintiffs support Defendants’ theories

regarding subjective opinion and its relation to the intrusion tort. As set forth above,

Defendants’ liability will be determined based upon objective factors and the only relevant

actions by any class member are downloading the Path App (for the Invasion Class) and using

the Path App until it harvested the class member’s private contact data (for the Invasion Upload

Subclass). Nothing about Plaintiffs’ responses makes them atypical of these classes, or provides

any unusual defense.7

Apple complains that Plaintiffs are atypical because, instead of hermetically sealing their

phones when the cases were filed, they continued to use their devices (on which Apple has

found no relevant information), upgraded, or lost those devices. Apple calls this “spoliation.”

See Apple Opp. at 35. This baseless assertion does not defeat typicality for two reasons. First,

the specific contents of plaintiffs’ devices are irrelevant. The phones have no log that shows

contact book uploads, and Apple has never pointed to anything stored on the phone that would

prove whether contacts were uploaded or what permissions were asked.

Second, defenses only defeat typicality where they require a Plaintiff to “meet defenses

that [were] not typical of the defenses which may be raised against other members of the

proposed class.” Ellis v. Costco, 657 F.3d 970, 984 (9th Cir. 2011). Apple does not contend

7 Apple misrepresents Plaintiffs’ testimony by ignoring the crucial parts of it (a/k/a, “cherry-picking”). For instance, Plaintiff Carter properly pinpointed the source of offense: “my information being taken without my permission is the issue, is the thing that offends me.” See Kennedy Reply Decl. at ¶ 6 & Ex. F (Carter Tr. 186:13-15). Plaintiff Cooley stated “actually uploading my contacts to somewhere else without asking me for permission to do so is highly offensive.” See id. at ¶ 7 & Ex. G (Cooley Tr. 127:16-19). Plaintiff Green expressed the same sentiment this way: “My contact data is very private to me and it's very valuable to me, and I don't want it to be accessed without my permission, period.” See id. at ¶ 8 & Ex. H (Green Tr. 50:20-25).



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that any Plaintiff engaged in the sort of bad faith behavior shown in Apple’s only authority,

Akaosugi v. Benihana, 282 F.R.D. 241, 257 (N.D. Cal. 2012), where the sole representative

plaintiff downloaded nearly 6,500 files, then deleted them before returning the storage media to

defendant.

Apple’s spoliation accusation is, at best, “hypothetical and speculative” and can also

“readily be resolved by the Court without skewing the focus of the litigation.” In re Rail

Freight Fuel, 287 F.R.D. 1, 33 (D.D.C. 2012), vacated on other grounds, 725 F.3d 244 (D.C.

Cir. 2013). Apple’s business model is based on people upgrading and replacing its phones; most

class members are likely in the exact same position. Few, if any, class members would have

created a forensic image satisfactory to Defendants, and even when one (Plaintiff Carter) did,

Apple told her that image was unsatisfactory, as it did not meet Apple’s preferred (but

unannounced) protocol. See ECF No. 620. Defendants have proffered nothing from the

extensive evidence they have received, confirming its irrelevance, and therefore presenting no

challenge to typicality.

Apple also complains that “counsel” “offered to compensate [Mr. Green] for his time”

and “bought a new iPhone for Green’s personal use” See Apple Opp. at 35. This is a

misrepresentation of the facts reeking of desperation. Mr. Green’s iPhone was purchased in

exchange for his then-current device so that Plaintiffs could satisfy Judge Spero’s discovery

order by imaging Mr. Green’s old phone. See ECF No. 635, at 2 (requiring forensic imaging of

“the Apple device currently used by Mr. Green”). Mr. Green required access to a smartphone

for his job, and therefore required a replacement to allow sufficient time for his then-current

phone to be used.

Apple and Path offer no evidence that Mr. Green has received any compensation besides

reimbursement (by Apple and Path themselves) for deposition-related travel expenses. See ECF

No. 635, at 1. Apple cites deposition excerpts that simply do not support Apple’s insinuation.

See Apple Opp. at 35 & ECF No. 667-17 at 6. Reimbursement payments and the post-litigation

purchase of a new phone have nothing to do with the improper structured incentives criticized in

Apple’s sole authority, Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 959 (9th Cir. 2009). If



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Apple had not uselessly demanded discovery of Mr. Green’s phone’s contents, there would have

been no need to buy him a new phone. That presents no reason to challenge Mr. Green as a

plaintiff.8 The class representatives’ claims are plainly “reasonably co-extensive with those of

absent class members,” satisfying Rule 23(a)(3).

VI. CONCLUSION

This is not a case where Plaintiffs are complaining about a series of events with some

similarity but that can be argued to be distinct transactions each with its own factual details. All

of the conduct by Path and Apple forming the basis for this case applied equally to the class as a

whole. There is not a single relevant thing that Path or Apple did that was different for some

class members than others (aside from whether the Path App was triggered and took the data,

which is dealt with by sub-classing). Common issues do not only predominate in this action,

they overwhelm it.

That predominant commonality is not overcome by arguments that individual class

members use their phones differently, have different feelings about privacy, live in different

states, or had different specific names, telephone numbers, and/or emails copied from their

phones. These distinctions are without a difference for present purposes. They provide no basis

to deny certification.

Dated: May 5, 2016 /s/ David M. Given

David M. Given Nicholas A Carlin Conor H. Kennedy PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 39 Mesa Street, Suite 201 San Francisco, CA 94129 Tel: (415) 398-0900 Fax: (415) 398-0911

8 Apple complains that Mr. Green discussed possible class representative incentive awards with another lawyer (not counsel in this case) before joining this case. The Court has discretion to grant such awards to class representatives, and commonly does. Someone informing Mr. Green of those facts does not make him an atypical representative.



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Michael von Loewenfeldt James M. Wagstaffe Frank Busch KERR & WAGSTAFFE LLP 101 Mission Street, 18th Floor San Francisco, CA 94105 Tel: (415) 371-8500 Fax: (415) 371-0500 Interim Co-Lead Counsel for Plaintiffs Carl F. Schwenker (admitted pro hac vice) LAW OFFICES OF CARL F. SCHWENKER The Haehnel Building 1101 East 11th Street Austin, TX 78702 Tel: (512) 480-8427 Fax: (512) 857-1294 Plaintiffs’ Liaison Counsel Jeff Edwards (admitted pro hac vice) EDWARDS LAW The Haehnel Building 1101 East 11th Street Austin, TX 78702 Tel: (512) 623-7727 Fax: (512) 623-7729 Jennifer Sarnelli (SBN 242510) GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10022 Tel: (212) 905-0509 Fax: (212) 905-0508 Plaintiffs’ Steering Committee



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CERTIFICATE OF SERVICE

I certify that on this day, May 5, 2016, I caused a copy of the foregoing document,

PLAINTIFFS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN

FURTHER SUPPORT OF MOTION FOR CLASS CERTIFICATION RE PATH APP, to

be served on all counsel of record via the CM/ECF system.

Dated: May 5, 2016 /s/ David M. Given David M. Given


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