J "_ 9’5 V DURIE TANGRI LLP 1 SONAL N. MEHTA (SBN 222086) 2 smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com 3 LAURA E. MILLER (SBN 271713) 4 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) 5 ckim@durietangri.com F E E3 E fl SAN MATFG CGUNTY NOV 2 6 7 ZACHARY G. F. ABRAHAMSON (SBN 3 1095 1) zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 11 415—362—6666 Telephone: Facsimile: 41 5—236-6300 6 7 B 2 < g 8 #~-~ -* f y $ a E E g E E _='——=__ I Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 9 \ I if; 10 v 2018 g f" SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 go, 8 COUNTY OF SAN MATEO 12 13 SIX4THREE, LLC, a Delaware limited liability 5f m gE ES E '—: Er} Case No. CIV 533328 company, Assigned for all purposes to Hon. V. Swope, Dept. 23 Plaintiff, V. FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; ‘ SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, DOES an individual; 1-50, inclusive, and Raymond DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE. Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 Defendants. DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDICTED RELIEF RE CONTEMPT / CASE NO. CIV 533328 Defendant Facebook, (“Facebook”) files Inc. this show cause as to why terminating issue against Plaintiff Six4Three LLC (“Six4Three”) and including an order to (1) ex parte application for expedited sanctions and mon\etary sanctions should not its counsel. Specifically, Facebooks requests: An Order to Show Cause Why terminating sanctions and monetary sanctions against Six4Three and protective and sealing its counsel in light its relief, should not issue repeated and willfiJI Violations of this Court’s orders. N0 (2) An order that Six4Three Thursday, a. its counsel produce the following categories 0f documents on 29, 2018: A11 written or recorded communications between Six4Three, including without Ted Kramer, Thomas Scaramellino, David Godkin, James Kruzer, 10 limitation 11 Gross, and any other agent or representative of Six4Three, on the one hand, and any 12 other individual or entity (other than this Court 0r Facebook) 13 regarding Facebook’s confidential information. For the avoidance of doubt, this 14 includes but 15 the Digital, Culture, 16 ._ November and b. Documents is Stuart on the other hand, not limited to media organizations and governmental entities, including (e.g., Media and Sport Committee of the House of Commons. phone logs) sufficient to show all telephonic and/or Video conference 17 communications between Six4Three, including without limitation Ted Kramer, 18 Thomas 19 or representative 0f Six4Three, and any individual or entity (other than this Court or 20 Facebook) regarding Facebook’s confidential information. For the avoidance of 21 doubt, this includes but 22 entities, 23 Commons. 24 c. Scaramellino, David Godkin, James Kruzer, Stuart Gross, and any other agent is not limited to media organizations and governmental including the Digital, Culture, Document sufficient to show the Media and Sport Committee of the House of identity of all individuals or entities With whom Ted 25 Kramer, David Godkin, James Kruzer, and Stuart Gross, or any other agent or 26 representative of Six4Three, discussed Facebook’s confidential information. 27 28 (3) An order that depositions 0f the following individuals take place in San Mateo County by Wednesday, December 2018: 5, 1 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF / CASE NO. CIV 533328 a. Ted Kramer b. David Godkin c. Stuart Gross d7 Thomas Scaramellino Following the depositions, Facebook proposes that Six4Three file an opening brief in response to an Order to Show Cause by Friday, December 7, 201 8. Facebook’s responsive brief would then be due QON on Tuesday, December briefing at the 11, 2018. Facebook requests that the Court set a hearing following the close of Court’s earliest convenience. Notice of this application was provided to Six4Three through the Court’s correspondence of 10 November 19, 2018. This application 11 is based upon the memorandum ofpoints and authorities, the declaration of 12 Laura E. Miller, and such additional evidence and argument as 13 on 14 may be presented at or before any hearing this matter. Dated: November DURIE TANGRI LLP 26, 201 8 15 16 sz ONAL N. MEHTA JOSHUA H. LERNER LAURA E. MILLER CATHERINE Y. KIM 17 18 ZACHARY ABRAHAMSON 19 20 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and 21 Ilva Sukhar ‘ 22 23 24 25 26 27 28 2 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INTRODUCTION I. These are extraordinary circumstances. Six4Three and litigation rules its counsel have knowingly violated basic and procedures, not to mention multiple orders 0f this Court directing Six4Three not misuse or leak confidential documents produced by Facebook in Indeed, in the last week, we have to this case.1 learned that Six4Three’s principal Ted Kramer traveled to the United Kingdom with a thumb drive of confidential, sealed materials, including materials he never should have had access t0 in the first place under the Stipulated Protective Order. This collection of documents apparently included the sealed Declaration of Six4Three’s lawyer David Godkin—a 76-page document full of mischaracterizations of documents and speculation about events and intentions that 10 counsel never could have testified to under oath. Then, notwithstanding the requirements of the 11 Stipulated Protective Order 12 express order last 13 Kramer did exactly what the Court ordered him not t0 the Court’s prior order sealing these documents, and the Court’s week that Mr. Kramer not produce the More than two 14 itself, sealed documents in the United Kingdom, Mr. do. la years ago, as is standard in similar cases, the Court entered Stipulated Protective 15 Order that prohibits the use and disclosure of confidential and highly confidential documents produced in 16 this litigation. 17 in discovery. 18 discovery in good faith and produced documents, including ones containing confidential and highly 19 confidential material, subj ect to the protections of the Stipulated Protective Order. 20 Throughout the litigation, Six4Three and its counsel sought internal Facebook documents Although the Court denied a number of Six4Three’s requests, Facebook participated in In an effort to create media interest, Six4Three attached hundreds of internal confidential and 21 highly confidential documents to Mr. Godkin’s declaration in support of Six4Three’s opposition t0 the 22 Individual Defendants’ anti-SLAPP motion. Six4Three and a 23 Six4Three was communicating then sought to unseal the documents. The Court, however, rejected 24 Six4Three’s gamesmanship. The Court carefully reviewed and sealed most of the number of media outlets with Whom documents—many of 25 26 1 27 When Facebook initially brought this issue to the Court’s attention, it sought to address Six4Three and counsels’ misuse of documents produced in this case to sue Facebook in another recently filed matter. Since then, Facebook has learned of an even more egregious violation of the Court’s various protective and sealing orders, which we also address herein. its 28 1 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF / CASE NO. CIV 533328 INTRODUCTION I. These are extraordinary circumstances. Six4Three and litigation rules its counsel have knowingly violated basic and procedures, not to mention multiple orders 0f this Court directing Six4Three not misuse or leak confidential documents produced by Facebook in Indeed, in the last week, we have to this case.1 learned that Six4Three’s principal Ted Kramer traveled to the United Kingdom with a thumb drive of confidential, sealed materials, including materials he never should have had access t0 in the first place under the Stipulated Protective Order. This collection of documents apparently included the sealed Declaration of Six4Three’s lawyer David Godkin—a 76-page document full of mischaracterizations of documents and speculation about events and intentions that 10 counsel never could have testified to under oath. Then, notwithstanding the requirements of the 11 Stipulated Protective Order 12 express order last 13 Kramer did exactly what the Court ordered him not t0 the Court’s prior order sealing these documents, and the Court’s week that Mr. Kramer not produce the More than two 14 itself, sealed documents in the United Kingdom, Mr. do. la years ago, as is standard in similar cases, the Court entered Stipulated Protective 15 Order that prohibits the use and disclosure of confidential and highly confidential documents produced in 16 this litigation. 17 in discovery. 18 discovery in good faith and produced documents, including ones containing confidential and highly 19 confidential material, subj ect to the protections of the Stipulated Protective Order. 20 Throughout the litigation, Six4Three and its counsel sought internal Facebook documents Although the Court denied a number of Six4Three’s requests, Facebook participated in In an effort to create media interest, Six4Three attached hundreds of internal confidential and 21 highly confidential documents to Mr. Godkin’s declaration in support of Six4Three’s opposition t0 the 22 Individual Defendants’ anti-SLAPP motion. Six4Three and a 23 Six4Three was communicating then sought to unseal the documents. The Court, however, rejected 24 Six4Three’s gamesmanship. The Court carefully reviewed and sealed most of the number of media outlets with Whom documents—many of 25 26 1 27 When Facebook initially brought this issue to the Court’s attention, it sought to address Six4Three and counsels’ misuse of documents produced in this case to sue Facebook in another recently filed matter. Since then, Facebook has learned of an even more egregious violation of the Court’s various protective and sealing orders, which we also address herein. its 28 1 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF / CASE NO. CIV 533328 BACKGROUND FACTS AND ARGUMENT II. A.’ Ted Kramer and Six4Three’s Counsel Violated Multiple Court Orders. The Court has been notified of Ted Kramer’s disclosure of Facebook’s confidential information November through a series of communications beginning on that 19, 2018.3 the facts we already know: In accordance With the terms of the Stipulated Protective Order, OONON To briefly summarize on May 30, 2018, Facebook filed a motion to seal confidential information contained in several hundred internal Facebook documents that Six4Three’s counsel, Mr. Godkin, attached t0 his declaration filed in opposition to Facebook’s anti- \O SLAPP motions. Six4Three opposed Facebook’s motion to seal. On November 1, 201 8, after extensive 10 briefing and a hearing, the Court issued a detailed order sealing the vast maj ority of these documents 11 (and striking others from the record entirely). Less than a month 12 later, it appears that Six4Three has devised a On November 13 protective and sealing orders. 14 hours’ notice, that one of its founders, 15 the United 16 “DCMS 17 Mr. Godkin, the Committee ordered Mr. Kramer t0 turn over the 18 United Kingdom, purportedly on other business. Id. 19 explanation as to 20 sealed documents, 21 Protective Order. 22 Kingdom Digital, Culture, 19, way around the Court’s 201 8, Mr. Godkin advised Facebook, with less than 24 Ted Kramer, had been asked to disclose the sealed documents to Media and Sport Committee of the House of Commons (the Committee”). Miller Decl. Ex. 2 (Letter from Godkin to Mehta (Nov. 19, 201 8)). According to But neither Six4Three nor how the Committee knew Mr. Kramer was many pages of which he is documents While he was traveling in the in the U.K. or its counsel offered any why he was traveling with not permitted to even have access to undef the Stipulated Facebook immediately responded, reminding Six4Three and its counsel that any disclosure of 23 Facebook’s confidential information would be a Violation of the Stipulated Protective Order and the 24 Court’s 25 the Stipulated Protective Order because Mr. November 1, 201 8 sealing order, and that it appeared that there had already been a violation of Godkin should not have allowed Mr. Kramer access to 26 27 28 3 Order of November 20, 2018, the Court requested briefing on a specific set of questions regarding Facebook will address those specific issues in its submission this Wednesday, November 28, 201 8. In the its DCMS Committee request. 3 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S Facebook’s Highly Confidential Information. See Miller Decl. Ex. 3 (Letter from Miller to Godkin (Nov. 4 (October 25, 2016 Protective Order 19, 2018)); Ex. at 5 (prohibiting disclosure of Highly Confidential Information to “individual parties or directors, officers or employees of a pfirty”)). m.gtnN That evening, Facebook also contacted the Court, copying Six4Three’s counsel, requesting an immediate teleconference regarding the impending disclosure of Facebook’s confidential information to the DCMS Committee. See Miller Decl. Ex. 5 (Email from Miller to Court (Nov. 19,.201 8); Email from QQ Court to Miller (Nov. 20, 201 8)). The Court responded Via email early the next morning expressly _stating that “[n]o documents shall be transmitted/released approximately the same time, Mr. Godkin sent a until letter to the fufiher order of this Court.” DCMS Committee informing 10 Facebook was “seeking appropriate 11 that his “client” 12 Miller Decl. Ex. 6 (Letter from Godkin to Collins (Nov. 20, 2018)). was “unable to relief frém the Superior it At that Court of California, San Mateo County” and comply With the Order unless and until the Superior Court permits.” The Court’s Order of November 13 Id. 20, 2018, acknowledged the'receipt of the correspondence 14 provided by the parties, and requested briefing on a set of specific legal and factual questions. The Court 15 further specified: No unredacted 16 Motion to copies of Plaintiff s opposition to either Facebook’s Special Strike or Individual Defendants’ Special Motion to Strike shall be transmitted, released or submitted, until filrther order of the Court. Failure t0 comply will be considered an act 0f contempt. 17 18 Following the Court’s November 20, 201 8 Order and further correspondence from the 19 DCMS Committee on November 21, 2018, again 20 Committee, Mr. Godkin sent another 21 stating that 22 EX. 7 (Letter from Godkin to Collins (Nov. 21, 2018)). letter to the Mr. Kramer was not authorized to disclose Facebook’s confidential information. Miller Decl. Unbeknownst to Facebook, however, on or around November 23 21, 201 8, we understand that Mr. 24 Kramer disclosed an as-of—yet-unidentified 25 to the 26 Godkin to Miller (Nov. 23, 2018)). Facebook was not notified of this disclosure 27 the afternoon of Friday, 28 holiday. set of Facebook’s confidential information, via a thumb drive, DCMS Committee in direct violation of this Court’s orders. November DCMS 23, 2018, after the Court Miller Decl. Ex. 8 (Email from was already closed until two days for the Thanksgiving 4 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S later, 0n BACKGROUND FACTS AND ARGUMENT II. A.’ Ted Kramer and Six4Three’s Counsel Violated Multiple Court Orders. The Court has been notified of Ted Kramer’s disclosure of Facebook’s confidential information November through a series of communications beginning on that 19, 2018.3 the facts we already know: In accordance With the terms of the Stipulated Protective Order, OONON To briefly summarize on May 30, 2018, Facebook filed a motion to seal confidential information contained in several hundred internal Facebook documents that Six4Three’s counsel, Mr. Godkin, attached t0 his declaration filed in opposition to Facebook’s anti- \O SLAPP motions. Six4Three opposed Facebook’s motion to seal. On November 1, 201 8, after extensive 10 briefing and a hearing, the Court issued a detailed order sealing the vast maj ority of these documents 11 (and striking others from the record entirely). Less than a month 12 later, it appears that Six4Three has devised a On November 13 protective and sealing orders. 14 hours’ notice, that one of its founders, 15 the United 16 “DCMS 17 Mr. Godkin, the Committee ordered Mr. Kramer t0 turn over the 18 United Kingdom, purportedly on other business. Id. 19 explanation as to 20 sealed documents, 21 Protective Order. 22 Kingdom Digital, Culture, 19, way around the Court’s 201 8, Mr. Godkin advised Facebook, with less than 24 Ted Kramer, had been asked to disclose the sealed documents to Media and Sport Committee of the House of Commons (the Committee”). Miller Decl. Ex. 2 (Letter from Godkin to Mehta (Nov. 19, 201 8)). According to But neither Six4Three nor how the Committee knew Mr. Kramer was many pages of which he is documents While he was traveling in the in the U.K. or its counsel offered any why he was traveling with not permitted to even have access to undef the Stipulated Facebook immediately responded, reminding Six4Three and its counsel that any disclosure of 23 Facebook’s confidential information would be a Violation of the Stipulated Protective Order and the 24 Court’s 25 the Stipulated Protective Order because Mr. November 1, 201 8 sealing order, and that it appeared that there had already been a violation of Godkin should not have allowed Mr. Kramer access to 26 27 28 3 Order of November 20, 2018, the Court requested briefing on a specific set of questions regarding Facebook will address those specific issues in its submission this Wednesday, November 28, 201 8. In the its DCMS Committee request. 3 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S The Styleform Complaifit First, it is knowledge of the clear violates the Stipulated Protective on the face of the Styleform Complaint internal Order in at least two primary ways. that Styleform does not Facebook communications, decisions, or strategies it have any personal alleges.4 Instead, it appears that, as counsel for both Six4Three and Styleform, Mr. Godkin, Mr. Kruzer, and Mr. Gross inappropriately drafted the Stylefofi Complaint that, While mischaracterizing Facebook’s confidential documents, improperly relies on them nonetheless. That is a direct violation of our Stipulated Protective Order, which states that the confidential information produced by Facebook in the Six4Three litigation KOOOQON used by the party or parties to “shall be case,” and “shall not be whom the information is produced solelyfor the purpose ofthis usedfor any commercial, competitive, personal, 0r other purpose.” Second, in addition to the improper use of Facebook’s confidential information in drafting the 10 11 Styleform Complaint, Six4Three’s counsel also disclosed certain confidential information contained in 12 the documents 13 ordered sealed by this Court. These disclosures are a direct Violation of the Stipulated Protective Order 14 and the Court’s various sealing orders, and provide additional evidence of the improper use of 15 Facebook’s confidential documents in drafting the Styleform Complaint. Facebook produced in this litigation, subj ect to the Stipulated Protective Order and For example, Styleform alleges that “Tinder provided highly valuable unrelated financial 16 Facebook in exchange 17 consideration, including intellectual property, to 18 Styleform Compl. 19 testified under oath, this allegation 20 chain produced by Facebook. Nothing in the public domain addresses this alleged transfer of intellectual 21 property from Tinder to Facebook as consideration for special access to 22 ever occurred. Furthermore, this Court has granfed multiple motions sealing the underlying document 23 that 24 1, 11 68. As Facebook has is false stated and for on multiple occasions and relies its special access to APIs.” as Facebook’s witnesses have on the continued misreading of a confidential email APIs— because no Six4Three continues to mischaracterize and related discussions in the briefing. See, 201 8 Amended Order re: Motion to such transfer e.g., November Seal (sealing Exhibit 97 and striking paragraph 98 of the Godkin 25 4 26 27 28 See Cal. Code Civ. Proc. § 128.7(b)(3) (“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an is certifying that to the best of the person’s knowledge, information, and belief, formed after attorney an inquiry reasonable under the circumstances,” certain conditions are met, including “[t]he allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery”). . . . 6 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S Declaration in Support of Six4Three’s Opposition to the Individual Defendants’ Special Motion to Strike). As A another example, the Styleform Complaint alleges that Facebook paid a $50,000 a month” to “disseminate allegation is order. See, e.g. , January 11, Motion Styleform Compl. 1] 165. This again untrue, and appears to rely on yet another mischaracterization 0f a confidential document produced by Facebook \OOOVONU] this fraudulent pro-privacy narrative.” PR firm “almost in this litigation. This 2018 Order re: Motion document was similarly to seal (granting in full subj ect to a sealing Facebook’s January 8, 2018 to Seal). As a final example, Styleform on their promise 0f a alleges: “[I]n 2009, Facebook executives discussed backing down back down on 10 publicly 11 these promises, but concealed this decision from Developers, including Styleform, and continued t0 12 misrepresent Facebook Platform as a level competitive playing field.” Styleform Compl. 13 the only possible source for Styleform’s false allegation about internal 14 repeated mischaracterization 0f the confidential information that Facebook produced, the disclosure and 15 use of which level competitive playing field. internally to 11 7. As Facebook communications above, is the barred by the Stipulated Protective Order. is When Facebook brought these Violations to the 16 They decided attention of Six4Three and Styleform’s counsel, 17 requesting that they immediately Withdraw the Styleform Complaint and immediately identify 18 individuals and entities t0 19 was a categorical 20 Letter 21 identify 22 above. whom they disclosed Facebook’s denial. Miller Decl. Exs. 10 from Godkin & 11 (Letter all confidential informatiqn, the only response from Miller to Miller (Nov. 15, 201 8)). Notably, Six4Three to Godkin (Nov. 13, 201 8); and Styleform’s counsel could not any public sources for the specific factual allegations in the three exemplary violations identified 23 C. 24 It is An Order to Show Cause, and Expedited Discovery, Are Necessary. apparent that in just the last few weeks, Six4Three and 25 violate their obligations as litigants 26 importantly the Court, have no 27 sealed materials without disclosure from Six4Three and 28 the Court issue: and officers of the Court. way of knowing the full It is its counsel have repeatedly elected to also apparent that Facebook, extent of Six4Three’s disclosure of confidential, its counsel. Accordingly, Facebook requests 7 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S and most that As the Court noted in its November events and circumstances that led to the 20, 201 8 Order, Six4Three’s counsel has failed to explain the DCMS Committee’s request and Mr. Kramer’s eventual disclosure of Facebook’s confidential information Why did Mr. include, for example: 0n November 21, 201 8. The unresolved questions Kramer even have Why did he travel to the United Kingdom with them? had the documents? Did Mr. Kramer and where to reach tell the the sealed documents? Who Did Mr. Kramer tell the DCMS Committee that he gave them to him? DCMS Committee that he would be‘ in the United Kingdom him? What exactly did Mr. Kramer provide to the Committee? \DOONON At this point, Facebook, and importantly the Court, cannot determine the scope of the violations of this Court’s orders Without disclosure of the documents and records revealing what happened here, 1'0 cross examination 0f the relevant players (Via deposition and/or evidentiary hearing), and a live hearing 11 before the Court. 12 B. Six4Three’s Counsel Also Violated the Stipulated Protective Order by Improperly Using Confidential Material in Another Case. 13 14 The knowing and intentional breach of the Court’s orders described above would, standing alone, 15 warrant a contempt finding and severe sanctions. But the concerns raised as to Six4Three and 16 counsels’ disrespect for the Court’s orders are only exacerbated because this breach appears to be part of 17 a broader pattern. 18 It has recently come to Facebook’s attention that Six4Three’s counsel, its David Godkin, James 19 Kruzer, and Stuart Gross, further violated the Stipulated Protective Order and this Court’s sealing orders 20 through the filing of a new complaint in San Francisco County Superior Court, Styleform IT v. Facebook, 21 Ina, Case No. 22 23 24 25 26 27 CGC 18-571075 (the “Styleform Complaint”). See Miller Decl. Ex. 9. Paragraph 3 of the Stipulated Protective Order reads as follows: A11 Confidential Information or Highly Confidential Information produced or exchanged in the course of this Case (not including information that is publicly available) shall be used by the party or parties to whom the information is produced solelyfor the purpose 0fthis case. Confidential Information or Highly Confidential Information shall not be usedfor any commercial competitive, personal, 0r other purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited t0 the persons authorized under this Stipulated Protective Order. 28 5 DEFENDANT FACEBOOK, INC.’SIEX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 a. Ted Kramer b. David Godkin c. Stuart Gross d. Thomas Scaramellino ! Following the depositions, Facebook proposes that Six4Three file an opening brief in response to an Order to Show Cause by Friday, December 7, on Tuesday, December 11,, 2018. Facebook’s responsive brief would then be due 201 8. Facebook requests that the Cc-urt set a hearing following the close 0f \OOONON briefing 11 Court’s earliest convenience. CONCLUSION III. 10 at the For the foregoing reasons, Facebook requests that the Court grant Dated: November 26, its ex parte application. DURIE TANGRI LLP 2018 12 Bv: 13 L N. MEHTA 14 JOSHUA H. LERNER LAURA E. MILLER CATHERINE Y. KIM 15 ZACHARY G.F. ABRAHAMSON 16 Attorneys for Defendants Facebook, Inc. ,Mark Zuckerberg, Christopher Cox, Javier Olivan. Samuel Lessin, Michael Vernal, and 17 Ilva Sukhar 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S PROOF OF SERVICE I am a citizen of the United States and resident of the State of California. Francisco County, State of California, in the office of a direction the service was made. I member of the am over the age of eighteen years, My business address is 217 Leidesdorff Street, San Francisco, CA I am employed in San bar of this Court, at whose and not a party t0 the within 941 1 action. 1. OOQONUILWN On November 26, 201 8, served the following documents in the manner described below: I DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE BY ELECTRONIC SERVICE: By electronically mailing a true and correct copy through Durie Tangri’s electronic mail system from 1miller@durietangri.com to the email addresses set forth below. \O 10 11 OI} the following part(ies) in this action: Stuart G. Gross 12 GROSS & KLEIN LLP The Embarcadero, 13 San Francisco, Pier 9, Suite 100 CA 941 11 Telephone: '41 5-671-4628 sgross@grosskleinlaw.com iatkinsonyoung@grosskleinlaw.corn 14 15 16 David S. Godkin James Kruzer 17 BIRNBAUM & GODKIN, LLP 280 Summer Street MA 02210 Boston, Telephone: 6 1 7—3 07-6 1 00 18 godkin@bimbaumgodkin.com 19 kru'zer@bimbaumgodkin.com 20 Attorneysfor Plaintiff Six4Three, 21 22 23 I LLC declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 26, 201 8, at San Francisco, California. 24 25 aura E. Miller 26 27 28 10 DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF / CASE NO. CIV 533328 Declaration in Support of Six4Three’s Opposition to the Individual Defendants’ Special Motion to Strike). As A another example, the Styleform Complaint alleges that Facebook paid a $50,000 a month” to “disseminate allegation is order. See, e.g. , January 11, Motion Styleform Compl. 1] 165. This again untrue, and appears to rely on yet another mischaracterization 0f a confidential document produced by Facebook \OOOVONU] this fraudulent pro-privacy narrative.” PR firm “almost in this litigation. This 2018 Order re: Motion document was similarly to seal (granting in full subj ect to a sealing Facebook’s January 8, 2018 to Seal). As a final example, Styleform on their promise 0f a alleges: “[I]n 2009, Facebook executives discussed backing down back down on 10 publicly 11 these promises, but concealed this decision from Developers, including Styleform, and continued t0 12 misrepresent Facebook Platform as a level competitive playing field.” Styleform Compl. 13 the only possible source for Styleform’s false allegation about internal 14 repeated mischaracterization 0f the confidential information that Facebook produced, the disclosure and 15 use of which level competitive playing field. internally to 11 7. As Facebook communications above, is the barred by the Stipulated Protective Order. is When Facebook brought these Violations to the 16 They decided attention of Six4Three and Styleform’s counsel, 17 requesting that they immediately Withdraw the Styleform Complaint and immediately identify 18 individuals and entities t0 19 was a categorical 20 Letter 21 identify 22 above. whom they disclosed Facebook’s denial. Miller Decl. Exs. 10 from Godkin & 11 (Letter all confidential informatiqn, the only response from Miller to Miller (Nov. 15, 201 8)). Notably, Six4Three to Godkin (Nov. 13, 201 8); and Styleform’s counsel could not any public sources for the specific factual allegations in the three exemplary violations identified 23 C. 24 It is An Order to Show Cause, and Expedited Discovery, Are Necessary. apparent that in just the last few weeks, Six4Three and 25 violate their obligations as litigants 26 importantly the Court, have no 27 sealed materials without disclosure from Six4Three and 28 the Court issue: and officers of the Court. way of knowing the full It is its counsel have repeatedly elected to also apparent that Facebook, extent of Six4Three’s disclosure of confidential, its counsel. Accordingly, Facebook requests 7 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S and most that I, Laura E. Miller, hereby declares as follow: am an attorney I 1. at law licensed to practice in the State record in this matter for Defendant Facebook, Inc. (“Facebook”). knowledge, and counsel for Plaintiff Six4Three, I am counsel 0f make this Declaratiofi from personal could and would testify competently thereto. Attached hereto Exhibit 2. OONQUl-b if called to testify, I I 0f California. 1 is a true and correct copy 0f an email from David Godkin, LLC (“SiX4Three”) to Saira Salimi and others, copying counsel for Facebook, dated November 23, 201 8. Attached hereto Exhibit 2 3. \O Sonal Mehta and others dated 10 11 James Kruzer dated November 13 for a Protective 14 20 1 6. November 17 18 19, Collins, MP, dated 19 8. 20 Collins, 21 9. 23 10. 11. is a true and correct copy of my is a true and correct copy of the Order on Six4Three’s Motion letter t0 David Godkin and this matter 0n October 25, is a true and correct copy of my email to the Court dated is a true and correct copy of David Godkin’s letter to Damian is a true and correct copy of David Godkin’s Damian 8. MP, dayed November 21, 21, 201 letter to 2018. me is a true and correct copy of David Godkin’s email to is a true and correct copy of the Complaint in Styleform IT v. dated 8. Attached hereto Exhibit 9 Facebook, Ina, 25 20, 201 Attached hereto Exhibit 8 November 24 November Attached hereto Exhibit 7 22 to 201 8 (Without attachment). Attached hereto Exhibit 6 7. from David Godkin Order and Facebook’s Motion for a Protective Order, issued in Attached hereto Exhibit 5 6. letter 20 1 8. Attached hereto Exhibit 4 5. 15 19, a true and correct copy of a 19, 2018. Attached hereto Exhibit 3 4. 12 16 November is et a1., Case No. CGC-18-571075, filed November Attached hereto Exhibit 10 is 2, 2018. a true and correct copy 0f my letter to David Godkin and I 26 others dated 27 28 12. dated November 13, 201 8. Attached hereto Exhibit 11 November 15, is a true and correct copy of David Godkin’s letter to me 201 8. 1 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, 1NC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 I is true declare under the penalty 0f perjury under the laws of the State 0f California that the foregoing and correct. Executed 0n this 26th day 0f November, 2018. LAURA E. MILLER £0 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 a. Ted Kramer b. David Godkin c. Stuart Gross d. Thomas Scaramellino ! Following the depositions, Facebook proposes that Six4Three file an opening brief in response to an Order to Show Cause by Friday, December 7, on Tuesday, December 11,, 2018. Facebook’s responsive brief would then be due 201 8. Facebook requests that the Cc-urt set a hearing following the close 0f \OOONON briefing 11 Court’s earliest convenience. CONCLUSION III. 10 at the For the foregoing reasons, Facebook requests that the Court grant Dated: November 26, its ex parte application. DURIE TANGRI LLP 2018 12 Bv: 13 L N. MEHTA 14 JOSHUA H. LERNER LAURA E. MILLER CATHERINE Y. KIM 15 ZACHARY G.F. ABRAHAMSON 16 Attorneys for Defendants Facebook, Inc. ,Mark Zuckerberg, Christopher Cox, Javier Olivan. Samuel Lessin, Michael Vernal, and 17 Ilva Sukhar 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT FACEBOOK, EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING SCHEDULE / CASE NO. CIV 533328 INC.’S MA 022 1 0 Boston, Telephone: 6 1 7-307-6 1 00 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneysfor Plaintiff Six4Three, .5 I LLC declare under penalty of perjury under the laws of the United States of America that the flak)! foregoing is true and correct. Executed on November 26, 201 8, at San Francisco, California. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF LAURA E. MILLER 1N SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) zabrahamson@durietangri.com 2 1 7 Leidesdorff Street San Francisco, CA 941 11 4 1 5—3 62—6666 Telephone: \OOONQ 415—236—6300 Facsimile: 10 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERI‘OR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 12 13 SIX4THREE, LLC, a'Delaware limited liability Case No. CIV 533328 ' company, , 14 Plaintiff, 15 V. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; SAMUEL LES SIN, an individual; 19 MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1—50, inclusive, 20 Assigned for all purposes t0 Hon. V. Swope, Dept. 23 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: 21 Defendants. Raymond TRIAL DATE: April 10, 2015 April 25, 2019 22 23. 24 25 26 27 28 r DECLARATION OF LAURA E. MILLER 1N SUPPORT OF DEFENDANT FACEBOOK, PARTE APPLICATION / CASE NO. CIV 533328 INC.’S EX DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com LAURA E MILLER (SBN 271713) 1miller@durietangri. com ' CATHERINE Y. KIM (SBN 308442) ckim@durietangri. com ZACHARY G. F. ABRAHAMSON (SBN 310951) zabrahamson@durietangri.com 2 1 7 Leidesdorff Street San Francisco, CA 941 11 4 1 5-362-6666 Telephone: Facsimile: 4 1 5-236—6300 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case N0. CIV 533328 company, 14 Plaintiff, 15 v. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 19 20 SAMUEL LESSTN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1—50, inclusive, 21 Defendants. Assigned for all purposes t0 Hon. V. Swope, Dept. 23 Raymond DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE ' Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, PARTE APPLICATION / CASE NO. CIV 533328 J INC. ’S EX I is true declare under the penalty 0f perjury 'under the laws 0f the State of California that the foregoing and correct. Executed on this 26th day of November, 2018. LAURA E. MILLER QQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 PROOF OF SERVICE I am a citizen of the United States and resident 0f the State of California. Francisco County, State of California, in the office of a .p. direction the service was made. I am over the age of eighteen years, My business address is 217 Leidesdorff Street, On November 26, 2018, I member of the San Francisco, CA I am employed in San bar of this Court, at whose and not a party to the within action. 941 1 1. served the following documents in the manner described below: OOONONLII DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING (BY U.S. MAIL) I am personally and readily familiar With the business practice of Durie Tangri LLP for collection and processing of correspondence for mailing with the United States Postal Service, and I caused such envelope(s) with postage thereon fully prepaid t0 be placed in the United States Postal Service at San Francisco, California. ' 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 Q " (BY MESSENGER SERVICE) by consigning the document(s) to an authorized courier and/or process server for hand delivery on this date. (BY FACSIMILE) I am personally and readily familiar With the business practice of Durie Tangri LLP for collection and processing of document(s) t0 be transmitted by facsimile andI caused such document(s) on this date to be transmitted by facsimile to the offices of addressee(s) at the numbers listed below. OVERNIGHT MAIL) I am personally and readily familiar with the business (BY practice of Durie Tangri LLP for collection and processing of correspondence for overnight delivery, andI caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained by Federal Express for overnight delivery. BY ELECTRONIC SERVICE: By electronically mailing a true and correct copy through Durie Tangri’s electronic mail system from 1miller@durietangri.com to the email addresses set forth below. (BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand t0 the offices of each addressee below. On the following part(ies) in this action: Stuart G. Gross GROSS & KLEIN LLP 24 The Embarcadero, Pier 9, San Francisco, CA 941 1 1 25 Telephone: 415-671-4628 sgross@grossklein1aw.com iatkinsonyoung@grosskleinlaw.com 26 Suite 100 27 David S. Godkin James Kruzer 28 BIRNBAUM & GODKIN, LLP 280 Summer Street 3 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 I is true declare under the penalty 0f perjury under the laws of the State 0f California that the foregoing and correct. Executed 0n this 26th day 0f November, 2018. LAURA E. MILLER £0 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 DURIE TANGRI LLP SONAL N. NLEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) \OOOQQ 1o zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 11 4 1 5-3 62-6666 Telephone: 4 1 5-236-6300 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Assigned for all purposes to Hon. V. Swope, Dept. 23 Plaintiff, Raymond 15 V. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; 20 21 DOES and EXHIBIT I TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTENIPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: . April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SU?PORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 MA 022 1 0 Boston, Telephone: 6 1 7-307-6 1 00 godkin@birnbaumgodkin.com kruzer@birnbaumgodkin.com Attorneysfor Plaintiff Six4Three, .5 I LLC declare under penalty of perjury under the laws of the United States of America that the flak)! foregoing is true and correct. Executed on November 26, 201 8, at San Francisco, California. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECLARATION OF LAURA E. MILLER 1N SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) ‘ jlerner@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com QONUI-h ZACHARY G. F. ABRAHAMSON (SBN 3 1095 1) zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 1 1 415-362-6666 Telephone: 415-236-6300 Facsimile: 10 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case N0. CIV 533328 company, 14 Plaintiff, 15 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; SAMUEL LES SIN, an individual; 19 MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and 20 21 DOES Raymond EXHIBIT 2 TO THE DECLARATION OF V. 16 17 Assigned for all purposes t0 Hon. V. Swope, Dept. 23 LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 I, Laura E. Miller, hereby declares as follow: 1. I am an attorney at law licensed to practice in the State record in this matter for Defendant Facebook, Inc. (“Facebook”). knowledge, and if called to testify, I counsel for Plaintiff Six4Three, OONON 14 20 1 6. 15 a frue and correct copy of an email from David Godkin, November 19, MP, 20 Collins, 21 9. is a true and correct copy of my is a true and correct copy 0f the Order on SiX4Three’s Motion letter to David Godkin and this matter 0n October 25, is a true and correct copy of my email to the Court dated is a true and correct copy of David Godkin’s letter to Damian is a true and correct copy of David Godkin’s letter to Damian 20, 201 8. MP, dayed November 21, 201 8. Attached hereto Exhibit 8 10. me dated is a true and correct copy of David Godkin’s email to is a true and correct copy of the Complaint in Styleform IT v. 21, 2018. Attached hereto Exhibit 9 Facebook, Ina, 25 November Attached hereto Exhibit 7 23 201 8. Order and Facebook’s Motion for a Protective Order, issued in dated 8. November from David Godkin to 201 8 (without attachment). 19 22 letter 201 8. Attached hereto Exhibit 6 7. Collins, 19, a true and correct copy of a 19, Attached hereto Exhibit 5 6. 17 is Attached hereto Exhibit 4 5. for a Protective 24 November James Kruzer dated November 13 18 Declaration from personal (“Six4Three”) t0 Saira Salimi and others, copying counsel for Attached hereto Exhibit 3 4. 12 16 LLC is Attached hereto Exhibit 2 Sonal Mehta and others dated 10 11 am counsel of Facebook, dated November 23, 201 8. 3. \O make this I could and would testify competently thereto. Attached hereto Exhibit 1 2. I of California. 11. et a1., Case N0. CGC-18-571075, filed November Attached hereto Exhibit 10 is 2, 2018. a true and correct copy of my letter to David Godkin and ‘ 26 others dated 27 28 12. dated November 13, 2018. Attached hereto Exhibit 11 November 15, is a true and correct copy of David Godkin’s letter to me 201 8. 1 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 Sonal Mehta, Esq. Joshua Lerner, Esq. Laura Miller, Esq. November 19, 2018 Page 2 If the designating party timely seeks a protective order, the party served with the subpoena or coufl order shall not produce any Confidential Information Confidential or Information Highly before a determination by the court from which the subpoena 0r order issued, unless the party has obtained the designating party’s permission. The designating party shall protection in that court 0f its bear the burden and expense 0f seeking confidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action t0 disobey a lawful directive from another court. Facebook intends to seek relief in the Parliament of the United Kingdom, which is the entity “from which the subpoena or order issued,” we request that you please d0 so prior t0 the deadline imposed by Protective Order, Section l6. Thus, if the Order. V’fytruly fouls 4&0 \fl’xu ?éwi‘”) ml DSGzcam Attachments Cc: Catherine Kim, Esq. (By email) Service-Six4Three (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) S. Godkin EXHIBITA - PROOF OF SERVICE I am a citizen of the United States and resident 0f the State of California. Francisco County, State of California, in the office of a .p. direction the service was made. I am over the age of eighteen years, My business address is 217 Leidesdorff Street, On November 26, 2018, I member of the San Francisco, CA I am employed in San bar of this Court, at whose and not a party to the within action. 941 1 1. served the following documents in the manner described below: OOONONLII DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR AN ORDER SETTING AN EXPEDITED BRIEFING (BY U.S. MAIL) I am personally and readily familiar With the business practice of Durie Tangri LLP for collection and processing of correspondence for mailing with the United States Postal Service, and I caused such envelope(s) with postage thereon fully prepaid t0 be placed in the United States Postal Service at San Francisco, California. ' 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 Q " (BY MESSENGER SERVICE) by consigning the document(s) to an authorized courier and/or process server for hand delivery on this date. (BY FACSIMILE) I am personally and readily familiar With the business practice of Durie Tangri LLP for collection and processing of document(s) t0 be transmitted by facsimile andI caused such document(s) on this date to be transmitted by facsimile to the offices of addressee(s) at the numbers listed below. OVERNIGHT MAIL) I am personally and readily familiar with the business (BY practice of Durie Tangri LLP for collection and processing of correspondence for overnight delivery, andI caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained by Federal Express for overnight delivery. BY ELECTRONIC SERVICE: By electronically mailing a true and correct copy through Durie Tangri’s electronic mail system from 1miller@durietangri.com to the email addresses set forth below. (BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand t0 the offices of each addressee below. On the following part(ies) in this action: Stuart G. Gross GROSS & KLEIN LLP 24 The Embarcadero, Pier 9, San Francisco, CA 941 1 1 25 Telephone: 415-671-4628 sgross@grossklein1aw.com iatkinsonyoung@grosskleinlaw.com 26 Suite 100 27 David S. Godkin James Kruzer 28 BIRNBAUM & GODKIN, LLP 280 Summer Street 3 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 Digital, Cul‘tUre ‘ Media and Sport Committee House of Commons, London SW1A 0AA Tel 020 7219 6120 Emafl cmscom@parliamen't. uk Website www.parliarfignugklcmg 19 November 2918‘ ~ Extract from formal minutes, ofthe Committee of 19 November-2018: Ordered, Thai Committee'm Mr ‘ I Theodore 'Kfamer éubmit the following docfimenfs to the relation to its inquiry into Disinformation and ‘fake DCMS news, by 5pm on V ‘ 20th November 20 18: Unredacted copies of Six4Three's opposition I to _the anti- SLAPP (strategic ' 'lawsuits against public participation) motion, filed in the. California cO'urts, _ ‘ . company’s dispute with Facebook, along with any documents or notes relating Six4Th'ree's opposition toAthe 'anti-SLAPP motion. relating to the DAMIAN COLLINS MP ' CHAIR'DCMS CQMMITTEE 1'. EXHIBIT 59:25), 5C, p?sn?nl?ar-aI?r?nr?I i?Iu?n oo~J Julie E. Schwartz, Bar No. 260624 Schwartz@pcrkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304-1212 I Telephone: 650.838.4300 SAN MATEO COUNTY Facsimile: 650.838.4350 0T 2015 James R. McCullagh, admitted pro hac vice . 3,1 . ,4 .lMcCullagh@perkinscoie.com . - .-. . .. PERKINS COIE LLP I201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Defendant Facebook, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, a Delaware limited Case No. CIV533328 liability company, STIPULATED Plaintiff, PROTECTIVE ORDER v. FACEBOOK, a Delaware corporation and DOES 1-50, inclusive, Defendant. In order to protect con?dential information obtained by the parties in connection with this case, the parties, by and through their respective undersigned counsel and subject to the approval of the Court, hereby agree as follows: ?irt One: Use Of Con?dential Materials In Discoverv 1. Any party or non?party may designate as Con?dential Information (by stamping the relevant page or as otherwise set forth herein) any document or response to discovery which that party or non?party considers in good faith to contain information involving trade secrets, or assas? .. 1 BED Order STIPULATED PROTECTIVE ORDER 231729 CASE NO. CIV533328 i DURIE TANGRI LLP SONAL N. NLEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) \OOOQQ 1o zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 11 4 1 5-3 62-6666 Telephone: 4 1 5-236-6300 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Assigned for all purposes to Hon. V. Swope, Dept. 23 Plaintiff, Raymond 15 V. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; 20 21 DOES and EXHIBIT I TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTENIPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: . April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SU?PORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 designation until the matter below, and counéel for U.) makes original resolved according to the procedures described in Paragraph 9 parties shall all ofthe designated material that is be responsible for marking in their possession or control \l previously unmarked copies with the specified designation. A party documents or materials available for inspection need not designate them as Confidential Information or Highly Confidential Information indicated all which materials designation and copying, it all would like until after the inspecting party has copied and produced. During the inspection and before the of the material made available for inspection shall be considered Highly Confidential Information. ' All Confidential Information or Highly Confidential Information produced or 3. exchanged course of this Case (not including information that in the used by the party or parties to whom the information is is publicly available) shall be produced solely for the purpose of this case. Confidential Information or Highly Confidential Information shall not be used for any commercial competitive, personal, or other purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and secure manner that ensures that access Protective Order. The is in a limited to the persons authorized under this Stipulatcd protections conferred by this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this any information copied or extracted from or reflecting the Confidential case, but also (1) Information or Highly Confidential Information; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal Confidential Information or Highly Confidential Information. However, the protections conferred by this Stipulated Protective Order do not cover the following information: (a) any information that is in part 0f the public the public domain after domain its at the time of disclosure to a receiving party or becomes disclosure to a receiving party as a result of publication not involving a violation of this Stipulated Protective Order, including becoming part ofthe public record through trial or otherwise; and (b) any information known t0 the receiving party prior to _3_ STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the disclosure or obtained by the receiving party after the disclosure from a source N who obtained the information lawfully and under no obligatiofn of confidentiality to the designating party. 4. this Except with‘the pri‘or written consent of the other parties, or upon prior order of Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: \quaLh-bw (a) counsel for the respedtive parties to this litigation, including in-house counsel and co-counsel retained for this litigation; counlsel; (b) employees of such (c) individual parties or officers or employees necessary by counsel 10 for. of a party, to the extent the prosecution or defense of this deemed litigation; (d) consultants or expert wifnesses retained for the prosecution or defense 11 of provided that each such person shall execute a copy of the 12 this litigation, 13 Certification annexed to this Order (which shall be retained by counsel to 14 the party so disclosing the Confidential Information and 15 for inspection 16 termination of the action only upon good cause 17 the Court) before being 18 provided that 19 opposing party or one of its competitors, the party shall notify the 20 Opposing 21 Confidential Information to that individual and shall give the opposing 22 party an opponunity to 23 such disclosure; made by opposing counsel during the pendenéy or after the shown and upon order of shown or given any Confidential Information, and if the party' pa'rty, available chooses a consultant or expert employed by the or designating non-party, before disclosing any move for a protective order preventing or limiting 24 (e) any authors or recipients of the Confidential Information or a custodian; 25 (f) the Court, court personnel, and court reporters; and 26 (g) witnesses (other than persons described in Paragraph 4(a)). 27 sign the Certification before being 28 Confidential Information A witness shall shown a confidential document. may be disclosed to a witness who will not sign .-4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIVS33328 NGM-PUJN the Certi?cation only in a deposition at which the party who designated the Con?dential Information is represented or has been given notice that Con?dential Information produced by the party may be used. At the request of any party, the portion of the deposition transcript involving the Con?dential Information shall be designated ?Con?dential? pursuant to Paragraph 2 above. Witnesses shown Con?dential Information shall not be allowed to retain copies. 5. Except with the prior written consent of the other parties, or upon prior order of this Court obtained after notice to opposing counsel, Highly Con?dential Information shall be treated in the same manner as Con?dential Information pursuant to Paragraph 4 above, except that it shall not be disclosed to individual parties or directors, of?cers or employees of a party, or to witnesses (other than persons described in Paragraph 4(a) or 6. Any persons receiving Con?dential Information or Highly Con?dential Information shall not reveal or discuss such information to or with any person who is not entitled to receive such information, except as set forth herein. If a party or any of its representatives, including counsel, inadvertently discloses any Con?dential Information or Highly Con?dential Information to persons who are not authorized to use or possess such material, the party shall provide immediate written notice of the disclosure to the party whose material was inadvertently disclosed. If a party has actual knowledge that Con?dential Information or Highly Con?dential Information is being used or possessed by a person not authorized to use or possess that material, regardless of how the material was disclosed or obtained by such person, the party shall provide immediate written notice of the unauthorized use or possession to the party whose material is being used or possessed. No party shall have an af?rmative obligation to inform itself regarding such possible use or possession. 7. In connection with discovery proceedings as to which a party submits Con?dential Information or Highly Con?dential Information, all documents and chamber copies containing Con?dential Information or Highly Con?dential Information which are submitted to the Court shall be ?led with the Court in sealed envelopes or other appropriate sealed containers. On the -5. STIPULATED PROTECTIVE ORDER CASE NO. CIV533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) ‘ jlerner@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com QONUI-h ZACHARY G. F. ABRAHAMSON (SBN 3 1095 1) zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 1 1 415-362-6666 Telephone: 415-236-6300 Facsimile: 10 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case N0. CIV 533328 company, 14 Plaintiff, 15 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; SAMUEL LES SIN, an individual; 19 MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and 20 21 DOES Raymond EXHIBIT 2 TO THE DECLARATION OF V. 16 17 Assigned for all purposes t0 Hon. V. Swope, Dept. 23 LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 10. Notwithstanding any challenge to the designation of material as Confidential Information 0r Highly Confidential Information, be subject to the provisions hereof unless and (a) the party or non-party documents all until who shall be treated as such and shall one of the following occurs: claims that the material is Confidential Information or Highly Confidential Information withdraws such designation in writing; or (b) the party or non-party who claims that the material Information or Highly Confidential Information is Confidential fails to apply to the Court for an order designating the material confidential within the time period . specified above after receipt of a written challenge to such designation; or (c) the Court rules the material not Confidential Information or Highly is Confidential Information. 11. All provisions of this Order restricting the communication or use of Confidential Information or Highly Confidential Information shall continue to be binding after the conclusion of this action, unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the possession of Confidential Information or Highly Confidential Information shall within sixty (60) days either (a) return such décuments to counsel for the party or non-party information, or (b) destroy such documents. Confidential Information is such Whether the Confidential Information or Highly retumed or destroyed, the receiving party must submit a written certification to the producing party (and, if not the by the 60 day deadline that who provided (1) all the same person or entity, to the designating party) Confidential Information or Highly Confidential Information that was returned or destroyed, and (2) affirms that the receiving party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information or Highly Confidential Information. _ Notwithstanding this provision, deposition, and hearing transcripts, legal motion papers, trial, deposition and trial exhibits, work product, even counsel are entitled t0 retain an archival copy of all pleadings, expert reports, attorney if such materials memoranda, correspondence, work product, and consultant and expert contain Confidential Information 0r Highly Confidential -7- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Any Information. such archival copies that contain or constitute Confidential Information or .Highly Confidential Information remain subject to this Stipulated Protective Order. The conclusion of the litigation shall be deemed to be the later of (l) dismissal of all claims and defenses in this action, with 0r without prejudice; and (2) final judgment herein after the OOVONUi-PUJN completion and exhaustion of all appeals, rehearings, remands, trials, 0r reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. After the conclusion ofthis action, this Court will retainjurisdiction to enforce the terms of this Order. Nothing herein 12. \o shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure 0f material protected by privilege or from which discovery by written advice is work product protection. Any witness or other person, firm sought may be informed of and may to the parties’ respective counsel or by or entity obtain the protection of this Order oral advice at the time of any deposition or similar proceeding. In the event that 13. is any Confidential Information or Highly Confidential Information inadvertently produced without such designation, the party or non—party that inadvertently produced the information without designation shall give written notice of such inadvertent production promptly after the party or non-party discovers the inadveflent failure to designate (but no later than fourteen (14) calendar days after the party or non—party discovers the inadvertent failure to designate), together with a further copy of the subject information designated as Notice”). “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Upon receipt of such Inadvenent Production Notice, (the “Inadvertent Production the party that received the information that was inadvertently produced without designation shall promptly destroy the inadvertently produced information and all copies thereof, or, at the expense of the producing party or non-party, retum such together with All copies of such information to counsel for the producing party and shall retain only the newly-produced versions of that information that are designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” This provision is not intended to apply to any inadvertent production of any information or materials protected by -8- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Sonal Mehta, Esq. Joshua Lerner, Esq. Laura Miller, Esq. November 19, 2018 Page 2 If the designating party timely seeks a protective order, the party served with the subpoena or coufl order shall not produce any Confidential Information Confidential or Information Highly before a determination by the court from which the subpoena 0r order issued, unless the party has obtained the designating party’s permission. The designating party shall protection in that court 0f its bear the burden and expense 0f seeking confidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action t0 disobey a lawful directive from another court. Facebook intends to seek relief in the Parliament of the United Kingdom, which is the entity “from which the subpoena or order issued,” we request that you please d0 so prior t0 the deadline imposed by Protective Order, Section l6. Thus, if the Order. V’fytruly fouls 4&0 \fl’xu ?éwi‘”) ml DSGzcam Attachments Cc: Catherine Kim, Esq. (By email) Service-Six4Three (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) S. Godkin If a palty, in reviewing discovery material (d) it has received from any other party or any non-party, finds anything the reviewing party believes in good faith Inadvertent Production Material, the reviewing party shall: (i) refrain identify the material in question to the producing party (by precise description); and producing party will (iii) make be from any further examination or disclosure of the potentially Inadvertent Production Material; OONQU‘I-FUJN may (ii) promptly document number or other equally give the producing party seven (7) days to respond as to whether the a claim of inadvertent production. Ifthe producing party makes such a claim, the provisions of Paragraphs 14(a)-(c) above shall apply. \O 15. The parties agree that should the production amend or supplement the terms of this Order. 10 they will need to ll source code becomes necessary 12 amendments 13 16. to this Order If a party of source code become necessary, is to in this case, the parties will To the extent production of work expeditiously to propose cover any production of source code. served with a subfioena or a court order issued in other litigation that 14 compels disclosure of any Confidential Information or Highly Confidential Information, the 15 receiving party must: 16 17 (a) promptly notify in writing the designating party. Such notification shall include a copy of the subpoena or court order; 18 (b) promptly notify some in writing the pany who caused the subpoena or order to of the material covered by the subpoena or order 19 issue in the other litigation that 20 subject to this Stipulated Protective Order. Such notification shall include a copy ofthis 21 Stipulated Protective Order; and 22 (c) 23 the designating party 24 affected. 01' all cooperate with respect to all is reasonable procedures sought to be pursued by whose Confidential Information or Highly Confidential Information If the designating party timely seeks a protective order, the party served with the may be subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before a determination by the court from which the subpoena or order issued, unless the party has 28 obtained the designating party’s permission. The designating patty shall bear the burden and -10- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 expense of seeking protection in that court of its cénfidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. .hUJN 17. The following additional terms apply t0 non-party discovery material: The terms of this Order are applicable (a) party in this action and designated as \DOONQUI “CONFIDENTIAL” Such information produced by non-parties remedies and relief provided by this Order. in or to information “HIGHLY CONFIDENTIAL.” connection with this litigation Nothing produced by a non- in these provisions is protected by the should be construed as prohibiting a non—party from seeking additional protections. 10 11 In the event that a party (b) is produce a non—pany’s confidential information required, by a valid discovery in its possession, and the party request, to is subject to an agreement with the non—party not to produce the non-party‘s confidential information, then the 13 party shall: 14 promptly notify i. some or 15 that I6 Party; all of the information requested 17 in writing the requesting party is and the non-party subject to a confidentiality agreement with a non- promptly provide the non-party with a copy of the Stipulated ii. 18 Protective Order in this litigation, the relevant discovery rmuest(s), and a reasonably specific l9 description ofthe infonnation requested; and 20 21 22 make iii. the information requested available for inspection by the non- party. (c) If the non-party fails to object or seek a protective order from this Court may 23 within 28 days of receiving the notice and accompanying information, the receiving party 24 produce the non-party’s confidential information responsive to the discovery request. If the nonparty timely seeks a protective order, the receiving party shall not produce any information in subject to the confidentiality agreement with the non—party before a 26 possession or control that 27 determination by the Court. Absent a court order t0 the comtraly, the non—party shall bear the is its 28 -11- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Culture Media and Sport Committee“ Digital House ' o_f_ SW1AOAA Commons, London :5 ,. gag; a'mgn gym; mg TéIOZO 72196120 Emallcmscom@parllament uk WebSIte MrTheodore Kramer London MarriottHotelCountyHall » ; ‘ ‘ l: . I . ...... . " ‘:' '.'..,: .n 5: _ w I-I v: ,‘ I A. - . ‘f’ 'E»".WéStminster Bridge Rd._ :. :H J‘ ‘g: 5;; ‘1, _ I ' r ' ‘ -.’ London SE1 _7pB ‘- “ ‘ ‘ * - - ‘r f ' ' . > :’-': ‘ 19th November2018-r:.s~ {De'arrMI‘t Kramér, documents .Orde‘r for ’ V- The ‘;.:under _ to H, compel :‘Z'On u Media and Sport Committee has been given the power by the H'ouse _of Commons Standing Order No. 152(4) ”_to send fo_r persons, papers;a'nd records This Includes the power 1 Digital, CultUre, t_he production _of Monday 19 November ~ papers by people within UKjurlsdictIon made the Committee -~ ~ i: - " the followmg order (which will ’ gjg I be published in ' its‘- ’ ’ formalmlnutesm due Ordered That in relation ‘ - course): Mr Theodore » - - Kram‘er submit the following documents to the to Itsmquury into: Dlsmformatlon and ’fake Unredacted copies of SIx4Three s news by 5pm on opposmon to the antI-SLAPP (str_ DCMS _Committee Q .I 20th. November 2018 . egic lawsunts against ‘5‘: _ 1 public particupatlon)mot on filéd in the California cgurt‘s, relating. to: companysf the.- ' " n dispute with Facebo‘Ok, along with any documents or notés relating Slx4Three knew about concerns relating to Facebook users’ data_ priVacy, a_nd developers The Committee s request made for these reasons, and"x_n no way suggests any' executives at Facebook ?Iaccess We‘ t_o user data. reqUIre‘ ithe . is_ documents by 5pm. on. Tuesday 20th November 2018 >comp iance withthis Order. VDAMIAN COLLINS MP V g I » 7 ,_CHAIR DIGITAL CULTURE I'ook. forward to ' - ‘ ‘ opposmonv“ s ‘ MEDIAAND sP‘ 3f». ‘ I - - you_r:_ ~ , , i 7 I " materials as Confidential Information or Highly Confidential Information hJ pursuant to this Order, of the submitting party’s intention to file or use the DJ Confidential Information or Highly Confidential Information, including $> specific identification ofthe Confidential Information or Highly Ln Confidential Information. O\ motion ~J (b) Any affected party t0 seal, pursuant to or non-party may then file a Califomia Rule of Court 2.55 1 (b); or At the time 0f filing or desiring use the Confidential Information or t0 submitting party shall submit the 0° Highly Confidential Information, VD materials pursuant to the lodging-under-seal provision of California Rule of Any the. 10 Court 2.55 1(d). 11 seal, 12 business days after such lodging. 13 Rule of Court 2.551(d) 14 be unsealed upon expiration of ten 15 motion to 16 21. affected party cr non-party may then file a motion to pursuant to the California Rule of Court 2.55 I(b), within ten Dccuments lodged pursuant shall bear a lsgend stating that seal pursuant to (1 0) (l 0) to California such materials shall business days, absent the filing of a Rule 2.55 I(b) or Court order. In connection with a request to have materials sealed pursuant to Paragraph 12 or 17 Paragraph 13, the requesting party’s declaration pursuant t0 California Rule of Court 2.55 1(b)(1) 18 shall contain sufficient particularity 19 Highly Confidential Information and the basis for sealing :o enable the Court to make the findings 20 required by California Rule of Court 2.550(d). 21 IT IS with respect to the panicular Confidential Information or SO STIPULATED. 22 23 DATED: , 2016 _ PERKINS COIE LLP 24 25 By: Julie E. 26 Schwartz Attorneysfor Defendant Facebook, Inc. 27 28 -13- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DATED: , 2016 BIRNBAUM & GODKIN, LLP By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC IT IS SO ORDERED.’ DATED: ”[37 gm ,2016 C. (Uw1\\ JUWE 0F THE SUPERIOR COURT -14- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 CERTIFICATION I hereby certify my understanding that Con?dential Information or Highly Con?dential Information is being provided to me pursuant to the terms and restrictions of the Stipulation and Protective Order Regarding Con?dential Information ?led on 2016, in Six4 Three, LLC v. Facebook, Inc., San Mateo County Superior Court Case No. CIV533328 (?Order?). I have been given a copy of that Order and read it. I agree to be bound by the Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I will not reveal the Con?dential Information or Highly Con?dential Information to anyone, except as allowed by the Order. I will maintain all such Con?dential Information or Highly Con?dential Information, including copies, notes, or other transcriptions made therefrom, in a secure manner to prevent unauthorized access to it. No later than thirty (30) days after the conclusion of this action, I will return the Con?dential Information or Highly Con?dential Information, including copies, notes, or other transcriptions made therefrom, to the counsel who provided me with the Con?dential Information or Highly Con?dential Information. I hereby consent to thejurisdiction of the San Mateo County Superior Court for the purpose of enforcing the Order, even if such enforcement proceedings occur aftertermination of this action. I hereby appoint located at the address of as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. I declare under penalty of perjury that the foregoing is true and correct and that this certi?cate is executed this day of 2016, at By: Address: Phone: .15- STIPULATED PROTECTIVE ORDER CASE NO. CIV533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 27 1 7 1 3) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) OONON \O 10 zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 11 Telephone: 4 1 5-362-6666 4 1 5-23 6—63 00 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 20 21 Raymond EXHIBIT 3 TO THE DECLARATION OF V. 16 19 Assigned for all purposes to Hon. V. Swope, Dept. 23 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 confidential business, financial, or personal information, including personal financial information about any individual 0r entity; information regarding any individual’s or entity’s banking U) relationship With any banking institution, including information regarding financial transactions or financial accounts, and afiy information regarding any individual or entity that is not otherwise available to the public, subject to protection under Rules 2.550, 2.55 1, 2.580, 2.585, 8.160, and 8.490 of the California Rules of Coun or under other provisions of California law. non—party may Any party or designate as Highly Confidential Information (by stamping the relevant page or as \DOOQON otherwise set forth herein) any document or response to discovery Which that party or non-party considers in good faith to contain information involving highly sensitive trade secrets or 10 confidential business, financial, or personal information, the disclosure of which would result 11 the disclosure of trade secrets or other highly sensitive research, development, production, 12 personnel, commercial, market, financial, or business information, or highly sensitive personal l3 information, subject to protection under Rules 2.550, 2.55 1, 2.580, 2.585,8.160, and 8.490 ofthe l4 California Rules of Court or ufider other provisions of California law. 15 response consists of more than one page, the first page and each page on which confidential 16 information appears shall be so designated. 17 in Where a document or A party or non-party may designate information disclosed during a deposition or in 2. 18 response to written discovery as Confidential Infonnation or Highly Confidential Information by l9 so indicating in said responses or 20 a separate transcript of such material. In addition, a party or non-party 21 within thirty (30) days after receipt of said responses or of the deposition transcript for which the designation is on the record at the deposition and requesting the preparation of may designate in writing, proposed, that specific pages of the transcript and/or specific responses be treated Any may 23 as Confidential Information or Highly Confidential Information. 24 such proposal, in writing or on the record. 25 procedures described in Paragraph 9 below. Until the thirty (3 0) day period for designation has 26 lapsed, the entirety of each deposition transcript shall be treated as Confidential Information. 2.7 After the thirty (3 0) day period for designation has lapsed, any documents or information 28 designated pursuant to the procedure set forth Upon such in this other party object to objection, the parties shall follow the paragraph shall be treated according to the -2- STIPULATED [PROPOSED] PROTECTIVE ORDER - CASE NO. CIV533328 November 19, 201 8 Page 2 Accordingly, Mr. Kramer does not have the authority to review Committee requests, let many of the documents that the alone the authority to disclose them. The facts suggest that Six4Three may have already violated the protective order by disclosing portions of the record containing confidential information. The protective order makes clear that “[a]11 Confidential Information or Highly Confidential Information produced or exchanged in the course of shall be used by the parties t0 Whom the information is produced solelyfor the purpose this case . . . . 0fthz's case.” . . October 25, 2016 Protective Order Facebook reserves its 11 3. rights t0 pursue all available remedies for any production by Six4Three of designated Confidential 0r Highly Confidential Information in Violation of the Stipulated Protective Order entered in Six4Three, LLC v. Facebook, Ina, as well as the San Mateo County Superior Court’s November 1, 2018 Order sealing 0r striking this very material. See generally Cal. Civ. Proc. Code § 1209(a). Although we do not agree that the provisions of Paragraph 16 of the Stipulated Protective Order apply Facebook intends t0 seek appropriate relief. Accordingly, SiX4Three is required to “cooperate With respect to all reasonable procedures sought t0 be pursued by” Facebook. here, to the extent that they do, Facebook is willing to meet and confer to negotiate a reasonable schedule for the relief it intends to seek. confirm that neither Mr. Kramer nor Six4Three will disclose Facebook’s confidential information in response to the DCMS Committee letter, dated November 19, 2018. Please Very truly yours, Laura Miller the disclosure or obtained by the receiving party after the disclosure from a source N who obtained the information lawfully and under no obligatiofn of confidentiality to the designating party. 4. this Except with‘the pri‘or written consent of the other parties, or upon prior order of Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: \quaLh-bw (a) counsel for the respedtive parties to this litigation, including in-house counsel and co-counsel retained for this litigation; counlsel; (b) employees of such (c) individual parties or officers or employees necessary by counsel 10 for. of a party, to the extent the prosecution or defense of this deemed litigation; (d) consultants or expert wifnesses retained for the prosecution or defense 11 of provided that each such person shall execute a copy of the 12 this litigation, 13 Certification annexed to this Order (which shall be retained by counsel to 14 the party so disclosing the Confidential Information and 15 for inspection 16 termination of the action only upon good cause 17 the Court) before being 18 provided that 19 opposing party or one of its competitors, the party shall notify the 20 Opposing 21 Confidential Information to that individual and shall give the opposing 22 party an opponunity to 23 such disclosure; made by opposing counsel during the pendenéy or after the shown and upon order of shown or given any Confidential Information, and if the party' pa'rty, available chooses a consultant or expert employed by the or designating non-party, before disclosing any move for a protective order preventing or limiting 24 (e) any authors or recipients of the Confidential Information or a custodian; 25 (f) the Court, court personnel, and court reporters; and 26 (g) witnesses (other than persons described in Paragraph 4(a)). 27 sign the Certification before being 28 Confidential Information A witness shall shown a confidential document. may be disclosed to a witness who will not sign .-4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIVS33328 ?ELED MATEO COUNW SAN UCT_2'5 2016 l/ RECEflVED 0CT20 2016. CLERK OF THE SUPERIOR COURT SAN MATEO COUNTY \DOONQUI-P SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO IO II SD(4THREE, LLC liability a Delaware limited Case No. CIV 5333328 b~ company, 12 l3 v. PW] ORDER ON SIX4THREE’S MOTION FOR PROTECTIVE ORDER AND FACEBOOK’S MOTION FOR PROTECTIVE ORDER [ Plaintiff, 14 FACEBOOK, 15 l6 INC., a Delaware corporation and DOES 1-50, inclusive, Date: October Time: Dept: 9:00 a.m. l3, 2016 Law and Motion Defendant. 17 18 19 20 21 22 23 '24 WNiamQ 25 26 DAH [ Order After Hearing ' 231 344 27 28 'k IIHIHlllllllllll __ I [PROPOSED] ORDER ON MOTIONS FOR PROTECTIVE ORDER CASE NO. CIV533328 I Piaintiff Six4Three, LLC’s (“Plaintiff”) Motion for Protective Order and Defendant Facebook, Inc.’s (“Facebook”) Motion for Protective Order came on regularly for hearing before the Court on October 13, 2016 Law and Motion in the The Court, having reviewed the Department. moving papers and all opposing and reply papers filed with the Court, and having heard the arguments of counsel, hereby and DENIES Plaintiff’s Motion GRANTS Defendant’s Motion in part, as set out below. WOOQmUI-h Pursuant to Code of Civil Procedure Section 2031.060, the Court finds good cause to enter a two-tier protective order. Defendant indicates that Defendant’s proposed protective order 10 model protective ll confidentiality to Defendant’s proposed protective order, the Court to Defendant’s 13 order. After is similar to the Court’s comparing the Court’s model protective order for double proposed protective order (all makes level of the following changes paragraph, page and line references arc to Defendant’s proposed protective order): l4 Paragraph 2, p.2z25: Delete “Highly Confidential” and replace with “Confidential” 15 Add to Paragraph 4(d), p.4‘:15 (which was omitted from Court’s model protective order): 16 “and provided that l7 one of its competitors, the party 18 disclosing any Confidential Information to that individual and shall give the opposing party an l9 opportunity to party chooses a consultant or expert employed by the opposing party or shall notify the move for a protective opposing party, or designating non-party, before order preventing or limiting such disclosureg” Delete Paragraph 4(6), p.4: l 6-1 7: “or other person 20 2] if the who otherwise possessed or knew the information” Paragraph 8, p.6:9: Delete “Highly Confidential” and replace with “Confidential” 23 Delete Paragraph 24 Delete entire Paragraph 18, p.1 1 :24-12z7. 25 Delete entire Paragraph 1 l, p.7215 only as to “identifies (by category, l_9, where appropriate)” p.1228-16. / / / 26 /// 28 /// -1- [PROPOSED] ORDER 0N MOTIONS FOR PROTECTIVE ORDER CASE NO. CIV533328 outside of the envelopes, a cop'y of the first page offhe document Confidential Information or Highly Confidential Informaticn to the outside of the envelopes, “CONFIDENTIAL” it may be is be attached. If shall included in the first page attached deleted from the outside copy. The word be stamped on the envelope and a statement substantially shall in the following form shall also be printed on the envelope: “This envelope is Information and sealed pursuant to Order ofthe Court, contains Confidential is not to Se opened or the contents revealed, except by Order of the Court or agreement by the parties.” \OOOQQ A 8. party may designate as Confidential Information or Highly Confidential 10 Information documents or discovery materials produced by a non-party by providing written 11 notice to 12 days after receiving such documents or discovery materials. Until the thirty (30) day period for 13 designation has lapsed, any documents or discovery materials produced by a non-party shall be 14 treated at Confidential Information. 15 without restriction any information designated by that party or nonparty as Confidential 16 Information or Highly Confidential Information, although a document; 17 status if 18 Highly Confidential Information 19 to 20 state or federal laws. 21 all it is parties of the relevant made public. document numbers or other identification within Any party or non-pany may thirty (30) voluntarily disclose to others may lose its confidential If a party produces materials dem'gnated Confidential Information or in compliance with this C-rder, that production shall be deemed have been made consistent with any confidentiality or privacy requirements mandated by 9. If a party contends that any material is not entitled to confidential treatment, such 22 party'_may at any time give written notice'to the party or non~party 23 The party or non-party who designated 24 of such written 25 The party or non-party seeking 26 entitled to protection. notic‘e to local, who designated the material. the material shall kmve twenty (20) days from the receipt apply to the Court for an order designating the material as confidential. the order has the burden of establishing that the document is 27 28 -6- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 EXHIBIT A Bar N0. 260624 JSchwartz@perkinscoie.com Julie E. Schwartz, N PERKINS COIE LLP FELED COUNTY 3150 Pomer Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 \DOONQU‘I-bb.) SAN MATEO LT 2‘5' James R. McCullagh, admitted pro hac vice JMcCullagh@perkinscoie.com PERKINS COIE LLP ayA 4 2015 .. _‘ 1201 Third Avenue, Suite 4900 WA 98101-3099 Seattle, Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Defendant Facebook, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, Case No. CIV533328 a Delaware limited ‘ liability company, STIPULATED [PROPOSED] PROTECTIVE ORDER Plaintiff, v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, Defendant. In order to protect confidential information obtained by the pafiies in connection with this case, the parties, by and through their respective undersigned counsel and subject to the approval ofthe Coun, hereby agree as follows: Part One: Use , 1. Any party or non-party Of Confidential may designate the relevant page or as otherwise set forth herein) any that paxty or non-party considers in good Materials In Discoverv as Confidential Information (by stamping document or response to discovery which faith to contain information involving trade secrets, or -1- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Any Information. such archival copies that contain or constitute Confidential Information or .Highly Confidential Information remain subject to this Stipulated Protective Order. The conclusion of the litigation shall be deemed to be the later of (l) dismissal of all claims and defenses in this action, with 0r without prejudice; and (2) final judgment herein after the OOVONUi-PUJN completion and exhaustion of all appeals, rehearings, remands, trials, 0r reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. After the conclusion ofthis action, this Court will retainjurisdiction to enforce the terms of this Order. Nothing herein 12. \o shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure 0f material protected by privilege or from which discovery by written advice is work product protection. Any witness or other person, firm sought may be informed of and may to the parties’ respective counsel or by or entity obtain the protection of this Order oral advice at the time of any deposition or similar proceeding. In the event that 13. is any Confidential Information or Highly Confidential Information inadvertently produced without such designation, the party or non—party that inadvertently produced the information without designation shall give written notice of such inadvertent production promptly after the party or non-party discovers the inadveflent failure to designate (but no later than fourteen (14) calendar days after the party or non—party discovers the inadvertent failure to designate), together with a further copy of the subject information designated as Notice”). “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Upon receipt of such Inadvenent Production Notice, (the “Inadvertent Production the party that received the information that was inadvertently produced without designation shall promptly destroy the inadvertently produced information and all copies thereof, or, at the expense of the producing party or non-party, retum such together with All copies of such information to counsel for the producing party and shall retain only the newly-produced versions of that information that are designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” This provision is not intended to apply to any inadvertent production of any information or materials protected by -8- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 designation \) DJ until' the matter below, and counsel for makes resolved according to .the procedures described in Paragraph 9 all parties shall 0f the designated material that is be responsible for marking in their possession or control inspectio‘n Confidential Information or Highly Confidential Information indicated Which materials designation and copying, it all would like previously unmarked copies with the specified designation. docfiments or materials available for original all A patty need not designate them as until after the inspecting party has copied and produced. During the inspection and before the ofthe material made available for inspection shall be considered Highly Confidential Information. All Confidential Information or Highly Confidential Information produced or 3. exchanged in the course ofthis case (not including information that used by the party or parties to whom the case. Confidential Information or information is is publicly available) shall be produced solely for the purpose of this Highly Confidential Information shall not be used for any commercial competitive, personal, or othér purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and secure manner that ensures that access is a limited to the persons authorized under this 'Stipulated The protections conferred-by Protective Order. in this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this case, but also (l) any information copied or extracted from or reflecting the Confidential Information or Highly Confidefitial Infmmation; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversatiohs, or presentations by parties or their counsel that might reve'al Confidential Information or Highly Confidential Infofination. However, the protections conferred by this Stipulated Protective Order do not cover the following information: infonnation that part is in the public of the public domain after domain its at the (a) any time of disclosure to a receiving party or becomes disclosure to a receiving pany as a result of publication not involving a violation of this Stipulated Protective Order, including becoming part of the public record through trial or othelwise; and (b) any information known to the receiving party prior to -3- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 the disclosure or obtained by the receiving party after the disclosure from a source who obtained the infonnation lawfully and under no obligation of confidentiality to the designating party. 4. this Except with the prior written consent of the other parties, or upon prior order 0f Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: (a) counsel for the respective parties to this litigation, including in-house counsel and co-counsel retained for this litigation; OONON (b) employees of such counsel; (C) individual parties or officers or employees of a party, to the extent deemed 00 necessary by counsel for the prosecution or defense 0f this ._. litigation; (d) consultants or expert witnesses retained for the prosecution or defense this litigation, of provided that each such person shall execute a copy of the Certification annexed to this Order (Which shall be retained by counsel to the party sodisclosing the Confidential Infonnation and for inspection by opposing counsel during the pendency or termination of the action only upon good cause the Court) before being provided that made if the shown available after the shown and upon order of or given any Confidential Information, and party chooses a consultant 0r expert employed by the opposing party or one of its competitors, the patty shall notify the opposing party, or designating non-party, before disclosing any Confidential Information party an opponunity to to that individual move and shall give the opposing for a protective order preventing or limiting such disclosure; (e) any authors or recipients of the Confidential Information or a custodian; (f) the Court, (g) witnesses (other than persons described in Paragraph 4(6)). coum personnel, and court reporters; and sign the Celtification before being Confidential Information may shown A witness shall a confidential document. be disclosed to a witness who will not sign -4- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 If a palty, in reviewing discovery material (d) it has received from any other party or any non-party, finds anything the reviewing party believes in good faith Inadvertent Production Material, the reviewing party shall: (i) refrain identify the material in question to the producing party (by precise description); and producing party will (iii) make be from any further examination or disclosure of the potentially Inadvertent Production Material; OONQU‘I-FUJN may (ii) promptly document number or other equally give the producing party seven (7) days to respond as to whether the a claim of inadvertent production. Ifthe producing party makes such a claim, the provisions of Paragraphs 14(a)-(c) above shall apply. \O 15. The parties agree that should the production amend or supplement the terms of this Order. 10 they will need to ll source code becomes necessary 12 amendments 13 16. to this Order If a party of source code become necessary, is to in this case, the parties will To the extent production of work expeditiously to propose cover any production of source code. served with a subfioena or a court order issued in other litigation that 14 compels disclosure of any Confidential Information or Highly Confidential Information, the 15 receiving party must: 16 17 (a) promptly notify in writing the designating party. Such notification shall include a copy of the subpoena or court order; 18 (b) promptly notify some in writing the pany who caused the subpoena or order to of the material covered by the subpoena or order 19 issue in the other litigation that 20 subject to this Stipulated Protective Order. Such notification shall include a copy ofthis 21 Stipulated Protective Order; and 22 (c) 23 the designating party 24 affected. 01' all cooperate with respect to all is reasonable procedures sought to be pursued by whose Confidential Information or Highly Confidential Information If the designating party timely seeks a protective order, the party served with the may be subpoena 26 or court order shall not produce any Confidential Information or Highly Confidential Information 27 before a determination by the court from which the subpoena or order issued, unless the party has 28 obtained the designating party’s permission. The designating patty shall bear the burden and -10- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 outside of the efivelopes, a copy ofthe first page of the document Confidential Information or Highly Confidential Information to the outside of the envelopes, “CONFIDENTIAL” it may is shall be attached. If included in the first page attached be deleted from the outside copy. The word be stamped on the envelope and a statement substantially shall in the following form shall also be printed on the envelope: “This envelope OKOOOQQUI-PUJN is Information and sealed pursuant to Order of the is Coun, contains Confidential not to be opened or the contents revealed, except by Order of the ‘ Court or agreement by the parties.” A party may designate as Confidential Information or Highly Confidential 8. Information documents p—n >-- »—‘ 01- discovery materials produced by a non-party by providing written parties of the relevant document numbers or other identification within thirty (30) H notice to [\J days after receiving such documents or discovery materials. Until the thirty (30) day period for DJ designation has lapsed, any documents or discovery materials produced by a non—party shall be 4; treated at Confidential Information. LII without restriction any information designated by that party or nonpany as Confidential O\ Information or Highly Confidential Information, although a document N status if 00 Highly Confidential Information KO to O state or federal laws'. — r—I v—‘ v-—- b—I l\) N all it is made Any party or non-party may voluntarily disclose to others may lose its confidential public. If a party produces materials designated Confidential Information or in compliance with this Order, that prodfiction shall be deemed have been made consistent with any confidentiality or privacy requirements mandated by If a patty contends that 9. D—I may any material any time give written notice is local, not entitled to confidential treatment, such to the party or non-pany who designated the material. N 10 party N DJ The party 0r non-pany who designated the N $4 of such written notice to apply to the Court for an order designating the material as confidential. IQ UI N O\ at The party or non-party seeking material shall have twenty (20) days the order has the burden of establishing that the from the receipt document is entitled to protection. N \l N oo _6_ STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 Notwithstanding any challenge to the designation of material as Confidential 10. Information or Highly Confidential Information, be subject to the provisions hereof unless and the (a) documents all until shall be treated as such and shall one 0f the following occurs: pafly or non-party who claims that the material is Confidential Information or Highly Confidential Information withdraws such designation in writing; or the (b) pafly or n0n~party who claims that the material Information or Highly Confidential Information is Confidential fails to apply to the Court for an order designating the material confidential within the time period specified above afier receipt of a written challenge to such designation; or the Court rules the material (c) not Confidential Information or Highly is Confidential Information. A A11 provisions ofthis Order restricting the communication or use of Confidential 11. Information or Highly Confidential Information shall continue to be binding after the conclusion ofthis action, unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the possession of Confidential Information or Highly Confidenfial Information shall within sixty (60) days either (a) return such documents to counsel for the party or non-party who provided such infmmation, or (b) destroy such documents. Whether the Confidential Information or Highly Confidential Information is returned or destroyed, the receiving party certification to the producing party (and, if not the by the 60 day deadline same person or that (l) all the Confidential Information or must submit a written entity, to the designating party) Highly Confidential Information that was returned or destroyed, and (2) affirms that the receiving patty has not retained an'y copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information or Highly Confidential Information. Notwithstanding this provision, motion papers, trial, deposition and trial exhibits, work product, even counsel are entitled to retain an archival copy of all pleadings, deposition, and hearing transcripts, legal if expen reports, attorney memoranda, correspondence, work product, and consul‘tant and expel“: such materials contain Confidential Information or Highly Confidential -7- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 burden and expense of seeking protection in this Court of its Confidential Information or Highly Confidential Information. 18. Nothing Order in this Stipulated Protective shall be construed to preclude any party from asserting in good faith that certain Confidential Information or Highly Confidential \IONUI-PUJN Information requires additional protections. The parties shall meet and confer to agree upon the terms of such additional protection. waives any right it to object stipulating to the entry of this Protective Order no palty otherwise would have to object to disclcsing or producing any information or item on any ground not addressed any right By on any ground in this Stipulated Protective to use in evidence Order. Similarly, no party waives of any of the material covered by this Stipulated Protective Order. Nothing in this Stipulated Prozective Order abridges the right 0f any person to seek its modification by the Court in the future. Part Two: Use of Confidential Material_s in Court The following provisions govern the treatment of Confidential Information Confidential Information used at trial or Highly or submitted as a basis for adjudication of matters other than discovery motions or proceedings. These provisions ate subject t0 Rules 2.550, 2.551, 2.580, 2.585, 8.160, and 8.490 of the Califomia Rules of Court and must be construed in light of those Rules. l9. A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information, and who seeks to have the record containing such information sealed, shall submit to the Court a motion or an application to pursuant to California Rule of Court 2.55 l 20. seal, . A party that files with the Court, or seeks to use at trial, materials designated as Confidential Information or Highly Confidential Information by anyone other than itself, and who does not seek to have the record containing such information sealed: shall comply with either of the following requirements: (a) At least ten (1 0) business days prior :o the filing or use of the Confidential Information or Highly Confidential Information, the submitting party shall give notice to all other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 attorney-cljent or work product privileges, which inadvertent production is governed by Section 14 beiow. In the event that any party l4. 01‘ non—party inadvertently produces information that is privileged or otherwise profected from disclosure during the discovery process (“Inadvertent Production Material”), the following shall apply: (a) Such inadvenent production or disclosure otherwise constitute a waiver work product of, or estoppel as to, shall in no way prejudice 0r any claim of attorney—client privilege, attorney protection, or other applicable protection in this case or any other federal or state proceeding, provided that the producing party shall notify the receiving party in writing of such 10 protection or privilege promptly after the producing party discovers such materials have been 11 inadvertently produced. (b) If a claim of inadvertent production is made, pursuant to this Stipulated 13 Protective Order, with respect to discovery material then in the custody 0f another party, that l4 party shall: 15 Production Material; 16 Production Material and l7 producing party, or destroy 18 summaries and excerpts) and 19 claimed Inadvertent Production Material for any pulpose 2O authorizing such use. (i) 21 refrain (c) from any furthér examination or disclosure of the‘claimed Inadvenent (ii) promptly make a good-faith effort to return the claimed Inadvertent all copies thereof (including summaries and excerpts) tQ counsel for the all such claimed Inadvertent Production Material (including certify in writing to that fact; until (iii) not disclose or use the funher order of the Coun éxpressly A pamy may move the Court for an order compelling production of the 22 Inadvenent Production Material on the ground that 23 motion shall and be filed under seal and it is shall not assert as a not, in fact, privileged or protected. The ground for entering such an order the fact 0r circumstance of the inadvertent production. The producing party retains the burden of 25 establishing the privileged or protected nature of any inadvertently disclosed or produced 26 information. While such a motion 27 be treated in is pending, the Inadvertent Production Material at issue shall accordance with Paragraph 14(b) above. 28 -9- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 1f a party, in (d) reviewing discovery material it has received from any other bJ party or any non-pany, finds anything the reviewing party believes in good DJ Inadvertent Production Materiél, the reviewing party shall: from any examination or disclosure of; the (i) refrain faith patentially Inadvertent Production Material; may be further (ii) promptly document number or other equally Ln identify the material in question to the producing party (by Ch precise description); and ‘4 producing party will make a claim 0f inadvertent production. If the producing party makes such a 0° claim, the provisions of Paragraphs 14(a)—(c) above shall apply. VD 15_. The (iii) give the producing party seven (7) days parties agree that should the production amend they will need to 11 source code becomes necessary in this case, the parties will amendments 13 16. to this respond as to whether the of source code become necessary, or supplement the terms of this Order. 10 to- To the extent production of work expeditiously to propose Order to cover any production of spurce code. If a party is served with a subpoena or a court order issued in other litigation that 14 compels disclosure of any Confidential Information or Highly Confidential Information, the 15 receiving party must: 16 (a) promptly notify in writing the designating party. Such notification shall I include a copy of the subpoena or court order; 17 18 (b) promptly notify in writing the patty some or who caused the subpoena or order ofthe material covered by the subpoena or order 19 issue in the other litigation that 20 subject to this Stipulated Protective Order. Such notification shall include a copy ofthis all to is Stipulated Protective Order; and 22 (c) 23 the designating party 24 affected. cooperate with respect to all reasonable procedures sought to b-e pursued by whose Confidential Information or Highly Confidential Information may be If the designating party timely seeks a protective order, the party sewed with the subpoena or court order shall not produce any Confidential Information or Highly Confidential Information 26 . 27 before a determination by the coum from which the subpoena or order issued, unless the party has 28 obtained the designating party’s permission. The designating party shall bear the burden and -10- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DATED: , 2016 BIRNBAUM & GODKIN, LLP By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC IT IS SO ORDERED.’ DATED: ”[37 gm ,2016 C. (Uw1\\ JUWE 0F THE SUPERIOR COURT -14- STLPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 burden and expense of seeking protection in this Court of its Confidential Information or Highly Confideniial Information. 18. Nothing in this Stipulated Protective Order shall be construed f0 preclude any party from asserting in good faith that certain Confidential Information or Highly Confidential Information requires additional protections. The parties shall meet and confer to agree upOn the By terms of such additional protection. waives any right it stipulating to the entry of this Protective Order no party otherwise would have to object to disclosing or producing any information or \OOO\10\ item on any ground not addressed in any right to object on any ground th'is Stipulated Protective Order. Similarly, to use in evidence no party waives of any of the material covered by this 10 Stipulated Protective Order. Nothing in this Stipulated Protective Order abridges the right of any 11 person to seek its modification by the Court in the future. Part Two: Use of Confidential Materials in Court The following provisions govern the treatment of Confidential Information 13 or Highly submitted as a basis for adjudication of matters other 14 Confidential Information used 15 than discovery motions or proceedings. These provisions are subject to Rules 2.550, 2.55 l, 2.530, 16 2.585, 8.160, and 8.490 of the California Rules of Court and 17 Rules. at trial or must be construed in light ofthose - 18 19. A party that files with the Court, or seeks to use at trial, materials designated as who seeks to have the record 19 Confidential Information or Highly Confidential Information, and 20 containing such information sealed, shall submit to the Court a motion or an application to seal, pursuant to California Rule of Count 2.551. 22 20. A party that; files with the Coult, or seeks to use at trial, materials designated as and who 23 Confidential Information or Highly Confidential Information by anyone other than 24 does not seek to have the record containing such information sealed, shall comply with either of itself, the following requirements: 26 (a) At least ten (1 0) business 27 Information 28 give notice to 01' days prior t0 the filing or use of the Confidential Highly Confidential Information, the submitting patty all shall other parties, and to any non-party that designated the -12- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 materials a5 Confidential Information or Highly Confidential Information pursuant [\J to this Order, of the submitting party’s intention t0 or use the file Confidential Inforrriation or Highfy Confidential Information, including specific identification of the Confidential Information or Highly Confidential Information. motion to WOOQQMAUJ '(b) Any affected party or non-party may then file a pursuant to California Rule of Court 2.551(b); or seal, At the time of filing or desiring to use the Confidential Information or Highly Confidential Information, the submitting party shall submit the materials pursuant to the Iodging—under—sea! provision of California Rule of Court 2.55 1 (d). seal, Any affected party or non-party may then file a motion to pursuant to'the California Rule of Court 2.55 I(b), within ten (10) business days after such lodging. Documents lodged pursuant to Rule of Court 2.55 1(d) a legend stating that such materials shall shall bear California be unsealed upon expiration of ten (IO) businesé days, absent the filing of a motion 21. to seal pursuant to Rule 2.55 I(b) or Court order. In connection with a request to have materials sealed pursuant to Paragraph 12 or Paragraph 13, the requésting party’s declaration pursuant to California Rule of Court 2.551(b)(1) shall contain sufficient particularity with respect to the particular Confidential Information or Highly Confidential Information and the basis for sealing t0 enable the Court to make the findings required by California Rule of Court 2.550(d). IT IS DATED: SO STIPULATED. , 2016 PERKINS COIE LLP By: Julie E. Schwartz Attorneysfor Defendant Facebook, Inc. -13- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 b) Ch Ln 43 be DATED: 2016 IT IS SO ORDERED. DATED: ?/61 ,2016 an. BIRNBAUM GODKIN, LLP By: David Godkin Attorneys for Plaintiff SIX4THREE, LLC (. (cw/R IUIWEE OF THE SUPERIOR COURT -14- STIPULATED PROTECTIVE ORDER CASE NO. CIV533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 27 1 7 1 3) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) OONON \O 10 zabrahamson@durietangri.com 217 Leidesdorff Street San Francisco, CA 941 11 Telephone: 4 1 5-362-6666 4 1 5-23 6—63 00 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 20 21 Raymond EXHIBIT 3 TO THE DECLARATION OF V. 16 19 Assigned for all purposes to Hon. V. Swope, Dept. 23 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) zabrahamson@durietangri.com \OOOQON 2 1 7 Leidesdorff Street San Francisco, CA 941 11 415-3 62-6666 Telephone: Facsimile: 10 415—236-6300 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 20 21 Raymond EXHIBIT 5 TO THE DECLARATION OF V. 16 19 Assigned for all purposes t0 Hon. V. Swope, Dept. 23 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 November 19, 201 8 Page 2 Accordingly, Mr. Kramer does not have the authority to review Committee requests, let many of the documents that the alone the authority to disclose them. The facts suggest that Six4Three may have already violated the protective order by disclosing portions of the record containing confidential information. The protective order makes clear that “[a]11 Confidential Information or Highly Confidential Information produced or exchanged in the course of shall be used by the parties t0 Whom the information is produced solelyfor the purpose this case . . . . 0fthz's case.” . . October 25, 2016 Protective Order Facebook reserves its 11 3. rights t0 pursue all available remedies for any production by Six4Three of designated Confidential 0r Highly Confidential Information in Violation of the Stipulated Protective Order entered in Six4Three, LLC v. Facebook, Ina, as well as the San Mateo County Superior Court’s November 1, 2018 Order sealing 0r striking this very material. See generally Cal. Civ. Proc. Code § 1209(a). Although we do not agree that the provisions of Paragraph 16 of the Stipulated Protective Order apply Facebook intends t0 seek appropriate relief. Accordingly, SiX4Three is required to “cooperate With respect to all reasonable procedures sought t0 be pursued by” Facebook. here, to the extent that they do, Facebook is willing to meet and confer to negotiate a reasonable schedule for the relief it intends to seek. confirm that neither Mr. Kramer nor Six4Three will disclose Facebook’s confidential information in response to the DCMS Committee letter, dated November 19, 2018. Please Very truly yours, Laura Miller CompIeXCivil [complexcivi[@sanmateocourt.org] Tuesday, November 20, 2018 7:34 AM Laura Miller; ComplexCivil; Rebecca Huerta From: Sent: To: Cc: Subject: SERVICE-SIX4THREE; David Godkin; James RE: Six4Three High Importance: The Court Kruzer; Stuart Gross Facebook (CIV533328) v. is in receipt and receipt this email and the attached letter proffered of Mr. Godkin and is reviewing it. No documents shall be transmitted/released From: Laura Miller 19, 2018 8:12 PM To: ComplexCiviI ; Rebecca Huerta SERVICE-SIX4THREE ; David Godkin ; James Cc: Kruzer ; Stuart Gross Subject: Six4Three v. Facebook (CIV533328) Ms. Huerta, Iwrite with an urgent request for an ex parte hearing regarding Six4Three’s imminent violation of the protective order. This is in addition but related to Facebook’s request for an ex parte from earlier today. Six4Three’s counsel sent us the attached letter this morning at 11:33 a.m., purporting to put Facebook on notice that Six4Three is planning to provide to the Digital, Culture, Media and Sport Committee (the ”DCMS Committee”) of the UK House of Parliament: Unredacted copies of Six4Three’s opposition to the anti—SLAPP (strategic lawsuits against public participation) motion, filed in the California courts, relating to the company’s dispute with Facebook, along with any documents or notes This the is relating to Six4Thre’s opposition to the anti-SLAPP motion. precisely the information that the Court ordered sealed and/or struck DCMS Committee’s letter is neither a subpoena nor a court order disclose Facebook’s confidential information We in its Order of November 1, related litigation, Six4Three has 2018. And as no basis to under the Stipulated Protective Order. have informed Six4Three of Facebook’s position and asked them not to disclose Facebook’s confidential information, under both to the Stipulated Protective Order and a response, this this Court’s Order of November 1, and may disclose Facebook’s confidential information as early as 9 a.m. Understanding the extraordinary nature of on in matter as soon as possible. In its 2018. Six4Three has not provided pacific request, Facebook asks the Court to schedule an ex parte teleconference the event that Six4Three agrees to delay any disclosure opportunity to address this matter, Facebook requests that this matter proceed along the forth in tomorrow. until same the Court has had an briefing schedule as set the Court’s email of3:25 p.m. today regarding Facebook’s ex parte application for expedited briefing on a motion for sanctions and contempt related to other violations of the Protective Order. Best rega rds, 4 Laura Miller I Attorney Durie Ta?gn 415-362-6666 lmiiler@durietangri.wun ?ELED MATEO COUNW SAN UCT_2'5 2016 l/ RECEflVED 0CT20 2016. CLERK OF THE SUPERIOR COURT SAN MATEO COUNTY \DOONQUI-P SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO IO II SD(4THREE, LLC liability a Delaware limited Case No. CIV 5333328 b~ company, 12 l3 v. PW] ORDER ON SIX4THREE’S MOTION FOR PROTECTIVE ORDER AND FACEBOOK’S MOTION FOR PROTECTIVE ORDER [ Plaintiff, 14 FACEBOOK, 15 l6 INC., a Delaware corporation and DOES 1-50, inclusive, Date: October Time: Dept: 9:00 a.m. l3, 2016 Law and Motion Defendant. 17 18 19 20 21 22 23 '24 WNiamQ 25 26 DAH [ Order After Hearing ' 231 344 27 28 'k IIHIHlllllllllll __ I [PROPOSED] ORDER ON MOTIONS FOR PROTECTIVE ORDER CASE NO. CIV533328 I ‘ IRNBAUM 8C GODKINj LL13W T T 0 R N E Y A T 5 L _ ' give: Isjig??gig)307—6110 godkin@birnbaumgodkin.com A November 20, 201 8 BY EMAIL (damian.collins.mp@parliament.uk) Mr. Damian Collins MP Chair, Digital, Culture, Media and Sports Committee House of Commons London SWIA 0AA Re; Orderfor Documents Served on Six4Three November 19, 201 8 ’s Principal, Ted Kramer, on Dear Mr. Collins: Following up on my letter sent yesterday regarding this matter, we have been informed by counsel for Defendants that they are seeking appropriate relief from the Superior Court of California, San Mateo County with respect to the Order served yesterday on Mr. Kramer. Insofar as my client is subj ect to and bound by Protective Order and other orders issued by the California Superior Court, my client is unable to comply with the Order unless and until the Superior Court permits, 0r unless Defendants documents you seek include internal Facebook records, I suggest obtain them directly from Facebook. Facebook’s counsel in the consent. Insofar as the that you seek to California litigation is copied below. / ”Ma {/Vpry tr W fiyours, fl yaw g odkiu 1 avid S. L] DSGzcam cc: Ms. Chloe Challender (By email t0 challenderc@parliarnent.uk) Culture, Media & Sport Committee (By email to CMSCOM@parliament.uk) Joshua Lerner, Esq. (By email) Sonal Mehta, Esq. (By email) Catherine Kim, Esq. (By email) Service-Six4Three (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) 280 SUMMER STREET, BOSTON, MA 02210 ° TEL: (617) 307—6100 ' FAX: (617) 307—6101 ° www.bimbaumgodkin.com The ‘Cour't'hereby enters the protective order attachedas' Exhibit A here'tq, which reflects H the afdrementionedmodifications. ITIS so ORDERED. . ~ @CT 2 4 w DATED: 2016 . ‘ . _ HOWRABLE JONATHAN KARES Approved as- toform by: BIRNBAUM & comm, LLP PERKINS. COIE,-LLP r Julie E. Schwartz - I James-E. Kruzef. <" muamhwmwgz‘asafizas‘ZS NNNNNNMN .'.2_ [PROPOSED] ORDER 0N. MOTIONS FOR PROTECTIVE 0111373?" CASEINo. cwsssazs GODKIN, . 3 A I g 0 ‘ I“ i Y 5 ‘ T David LLP N‘ S. Godkin DirectDial: (617) 307-61 10 W godkin@birnbaumgodkin.com November 21, 201 8 BY EMAIL (damian.collins.mp@parliament.uk) MP Mr. Damian Collins Chair, Digital, Cuiture, Media and Sports Committee House of Commons London SWIA 0AA Ordersfor Documents Served on Re: November 19, Six-siThree 2018 and November 21, ’s Principal, Ted Kramer, on 2018 Dear Mr. Collins: Following up on my letter sent yesterday regarding this matter, I have attached for your information an Order for Briefing and Staying Submission of Unredaoted Copies of Sealed Documents entered by the San Mateo Superior Court yesterday evening. As we have previously informed you, Mr. Kramer is bound by the Protective Order and has no choice but t0 comply with it. In addition, the attached Order further prevents Mr. Kramer from transmitting, releasing or submitting unredacted copies 0f Plaintiff‘s opposition to either Facebook’s Speciai Motion to Strike or Individual Defendants’ Special Motion to Strike untii further order of the Coufi, and provides that failure to comply will be considered an act of contempt. Accordingly, the various orders for documents that your committee has served on Mr. Kramer on November 19 and this morning have placed Mr. Kramer in an impossible position. He would subject himself to contempt sanctions in San Mateo Superior Court he complies with your orders, and you have reported his non-compiiance with your Committee’s orders to the House of Commons and requested that it take action against if him. Per the attached Order, the San Mateo Superior Court has asked the parties to the Six4Three iitigation to brief a number of issues, including what authority your to overruie the Superior Court’s orders without first seeking rekief from the Superior Court, what is the legal effect under United Kingdom Iaw of the DCMS letter to Mr. Kramer, is the DCMS letter different from a summons, what are the procedures for Mr. Kramer, who is visiting the United Kingdom on business, to respond or object to the DCMS Eetter, and what are the contempt procedures for DCMS for noncompliance by Mr. Kramer. Insofar as these are questions of United Kingdom iaw and concern yeur committee, Six4Three’s attorneys in the Uniied States are not quaiified to Committee has address them, and Six4Three 280 SUMMER S't'msm‘, BORON, is MA 02210 not abie to engage United - TEL: (617) 307-6100 ' Kingdom counsei FAX: (617) 307-6E01 ' to assist. www.bimbaumgodkin.c0m Mr. Damian Collins November MP 21, 20} 8 Page 2 In addition, as Facebook records, and I indicated yesterday, the documents I you seek include internal suggest that you seek t0 obtain them directly from Facebook. In Facebook is subj ect t0 the of your committee, whether DCMS 0r another committee has served a simiiar unredacted copies of sealed documents 0n Facebook and if so, how has the attached order, the Superior Court has also asked whether jurisdiction demand for Facebook responded. As the answers to the questions raised by the Superior Court implicate your committee, I urge you or someone on your behalf to provide answers to the Superior Court’s questions directiy to the Superior Court by Monday, November 26, 201 8 at 12 pm. Pacific Time. m1" / x David I’y yours, gg g Q S. I - = Godkin DSGzcam cc: Ms. Chloe Challender (By email to challenderc@pariiament.uk) Culture, Media & Sport Committee (By email to CMSCOM@parliament.uk) Joshua Lerner, Esq. (By email) Sonal Mehta, Esq. (By emaii) Catherine Kim, Esq. (By emaii) Service—SixliThree (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) Bar N0. 260624 JSchwartz@perkinscoie.com Julie E. Schwartz, N PERKINS COIE LLP FELED COUNTY 3150 Pomer Drive Palo Alto, CA 94304-1212 Telephone: 650.838.4300 Facsimile: 650.838.4350 \DOONQU‘I-bb.) SAN MATEO LT 2‘5' James R. McCullagh, admitted pro hac vice JMcCullagh@perkinscoie.com PERKINS COIE LLP ayA 4 2015 .. _‘ 1201 Third Avenue, Suite 4900 WA 98101-3099 Seattle, Telephone: 206.359.8000 Facsimile: 206.359.9000 Attorneys for Defendant Facebook, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, Case No. CIV533328 a Delaware limited ‘ liability company, STIPULATED [PROPOSED] PROTECTIVE ORDER Plaintiff, v. FACEBOOK, INC., a Delaware corporation and DOES 1-50, inclusive, Defendant. In order to protect confidential information obtained by the pafiies in connection with this case, the parties, by and through their respective undersigned counsel and subject to the approval ofthe Coun, hereby agree as follows: Part One: Use , 1. Any party or non-party Of Confidential may designate the relevant page or as otherwise set forth herein) any that paxty or non-party considers in good Materials In Discoverv as Confidential Information (by stamping document or response to discovery which faith to contain information involving trade secrets, or -1- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com .bUJN LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 310951) zabrahamson@durietangri.com \OOOQQUI 10 2 1 7 Leidesdorff Street San Francisco, CA 941 11 Telephone": 4 1 5-3 62-6666 41 5-23 6-63 00 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 V. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, 20 21 DOES an individual; and Assigned for all purposes t0 Hon. V. Swope, Dept. 23 Raymond EXHIBIT 8 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 DCMS 11/25/2918 DCMS Orders Served on Ted Krax Orders Served on Ted Kramer ,9 2% m ad'- é 1'1: & REPLY 9 FORWARD REPLY ALL Mark David Godkin 11/23/2018 3:36 Fri as unread PM SERVICE—SIX4THREE; SonalMehta; Josh Lerner; Catherihe Kim; To: Laura Miller; Cc: Stuart Gross ; [l]; ‘“ James Kruzer ; 1 attachment ‘ ’ 21334301.pdf Counsel: l received the attached correspondence from the House of my letter to response to Mr. Collins sent on Wednesday. understanding that Mr. Kramer would comply with When Commons 21, 2018. did not in was my that he obey the orders of the San Mateo sent my letter on Wednesday, my instructions DCMS Committee Superior Court and decline to produce anything to the November 19 and Speaker’s Counsel this morning, in response to communicate further with Mr. Kramer again its it orders served on him on after instructing him to comply with the Superior Court orders, until this afternoon. learned this afternoon that Mr. Kramer did Parliament on Wednesday evening, in fact November 21, 2018, produce certain documents to the United Kingdom after being repeatedly informed by the over the course of several hours of the consequences of his failure to comply with three was served with on November 19 and that he as he did not review them, but copied a reviewing the file and my names I it number of files onto a is thumb drive that he gave to them. He does not know whether any am about to write to the DCMS Committee to exhibits to my declaration were He believes from included. inform again that the materials Mr. Kramer produced are Mateo Superior Court ordered producing them to the Committee. DCMS to drive Orders appears that the material he provided included information subject to the protective order. subject to the Protective Order and that the San thumb DCMS Committee not certain what documents he turned over that the files included 643’s opposition to the individual defendants’ anti-Slapp motion declaration in support. Regardless, 21, 2018. Mr. Kramer DCMS Committee and any copies either to We will will me ask the refrain from reviewing the materials, and to return the or to you. lwill copy you on provide you with further updates as we obtain Mr. Kramer to refrain from my email. additional information, and will inform the Superior Court of these developments with our filing on Monday. Sincerely, David Godkin https:l/mail.durietangri.com/owa/#viewmodel=ltemAttach ment&Attachmentltem D=AAMkADNhNTM4ngzLTg3ZthN D-JjZi1 thMLTFmOGQ1 NzMOZjI3. .. 1/1 designation \) DJ until' the matter below, and counsel for makes resolved according to .the procedures described in Paragraph 9 all parties shall 0f the designated material that is be responsible for marking in their possession or control inspectio‘n Confidential Information or Highly Confidential Information indicated Which materials designation and copying, it all would like previously unmarked copies with the specified designation. docfiments or materials available for original all A patty need not designate them as until after the inspecting party has copied and produced. During the inspection and before the ofthe material made available for inspection shall be considered Highly Confidential Information. All Confidential Information or Highly Confidential Information produced or 3. exchanged in the course ofthis case (not including information that used by the party or parties to whom the case. Confidential Information or information is is publicly available) shall be produced solely for the purpose of this Highly Confidential Information shall not be used for any commercial competitive, personal, or othér purpose. Confidential Information or Highly Confidential Information must be stored and maintained by a receiving party at a location and secure manner that ensures that access is a limited to the persons authorized under this 'Stipulated The protections conferred-by Protective Order. in this Stipulated Protective Order cover not only the Confidential Information or Highly Confidential Information produced or exchanged in this case, but also (l) any information copied or extracted from or reflecting the Confidential Information or Highly Confidefitial Infmmation; (2) all copies, excerpts, summaries, or compilations of Confidential Information or Highly Confidential Information; and (3) any testimony, conversatiohs, or presentations by parties or their counsel that might reve'al Confidential Information or Highly Confidential Infofination. However, the protections conferred by this Stipulated Protective Order do not cover the following information: infonnation that part is in the public of the public domain after domain its at the (a) any time of disclosure to a receiving party or becomes disclosure to a receiving pany as a result of publication not involving a violation of this Stipulated Protective Order, including becoming part of the public record through trial or othelwise; and (b) any information known to the receiving party prior to -3- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 bodies 01‘ individuals, provided that such papers are relevant to the committee’s as defined by its order of reference. [A copy 0f the terms of reference 0f the ”Fake News” inquiry is annexed t0 this 1etter.] Select committees have formally work ordered papers to be produced by the Chairman of a nationalized‘industry and a private society. Solicitors have been ordered to produce papers relating to a client.” 'I'he Committee made an order within Parliament’s own jurisdiction, at a time when Mr Kramer was present within the jurisdiction, for the production of papers that were present in the jurisdiction. 1t would have been wholly inappropriate for it to make prior application to a court in California, which does not exercise authority over Parliament’s exercise of By self—denyingordinance its functions in tho United (the subjudicv resolution Kingdom; made in: 200] and annexed to its Standing Orders) the louse 0f Commons and its committees do not in general make reference to proceedings that are active in UK. courts, but there is nothing as a matter of Iaw to prevent them from doing so, and there is no equivalent resolution or requirement in relation to proceedings of courts outside the United Kingdom. l What is the legal effect, under United Kingdom law, of the 'DCMS letter t0 Mr Kramgfi 'l‘hc 0r de1 contained in the letter to Mr Kramer dated 19 November 2019 imposes an produce the documents lefelred to in the Older. M1 obligation on Mr Kramel Kramel had previously been asked t0 plovide the material voluntarily, and had refused to d0 so by leason 0f t-he Older of the Court 1n Califmnia. Failme to comply with the Order 0f the Committee would have been capable of constituting a contempt of Parliament (as to which, see below). t0 Hmnww By virtue 0f Article IX 0f the Bill 0f Rights 1689, which states (in modern spelling) that "freedom of speech in debate and proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament”, the courts United Kingdom have not been able to consider the legal effect of an order by I'louse 0f Parliament, and therefore there is no case lawon this issue. Is the in the either DCMS letter different from a summons? has an effect similar to that 0f a summons, but is nota summons as it is not issued 'I'he Committee also has the power to require the by a court but by Parliament. attendance 0f witnesses, in the exercise 0f it's power to call For ”persons, papers and It records", and sometimes witness in person is personal attendance 0f power to require the attendance 0f a summons. 'l'he Committee did not require the the exercise of that referred to as a Mr Kramer in this case. What are 319:1de .w .. Mr Kramer to respond or obiect to the DCMS letter no procedure for an appeal against an order 0F a committee, 0r to enable a person who receives an order to respond t0 it. Once made, it must be complied with. Mr Kramer was placed in a position where he was required to obey the order or risk being found in contempt of Parliament. There Mm. the procedures for is .. vmmw- What are the contempt procedures for DCMS for non—compliance bV Mr Kramer? . H. q Mr Kramer had produce the documents after being ordered 'to do soby the Committee, the Committee would have reported that failure to the House of Commons as a matter of potential contempt 0f Parliament. ”Contempt” is not anywhere defined, but Erskine May says (p.837), ”Acts or omissions which obstruct or If failed to committee or any of its members or officers, or which tend, produce such results, may be treated as a contempt: of the House and investigated and punished, as appropriate”. May lists disobedience to an ordeg‘ of a committee as a contempt of the House (p.839). impede the work of a directly or indirectly, f0 ’ louse would then have considered a motion to refer Mr Kramer’s case to the Committee of Privileges. 1f the motion were passed the Committee of Privileges would have considered the matter and would, if it considered it appropriate, have proposed a sanction on Mr Kramer for his contempt. 'l‘he powers 0f the House Of Commons t0 punish for contempt are not defined by statute, and have in the past included imprisonment, fines and admonishment either at the bar 0f the House or in absentia: In modern times the powers have been'exercised sparingly. 'I‘he I I Yours faithfully Speaker’s Coufisel the Certification only in a deposition at the Confidential Information N is which the party who designated represented or has been given notice that Confidenfitial Information produced by the palty may be used. At the request of any party, the portion of the deposition transcript involving the Confidential Infomlation shall be designated "‘C'onfidential” pursuant NmM-hw to Paragraph 2 above. Witnesses shown Confidential Information shall not be allowed to retain copies. Except with the prior written consent of the other 5. this Court obtained 10 treated in the 11 that it after notice to same manner shall not as Confidential Infoxmation pursuant to be disclosed to individual parties or directors, Any persons receiving 6. upon prior order of opposing counsel, Highly Confidential Information to witnesses (other than persons describ'ed in l3 parties, or shall be Paragraph 4 above, except officers or employees of a party, or Paragraph 4(a) or 4(6)). Confidential Information or Highly Confidential who 14 Information shall not reveal or discuss such information to or with any person 15 to receive 16 including counsel, inadvertently discloses any Confidential Information or Highly Confidential 17 Information to persons l8 provide immediate written notice ofthe disclosure to the party whose material was inadvertently 19 disclosed. If a party has actual 20 Information 21 regardless of how the material such information, except as set forth herein. is who If a party or is not entitled any of its representatives, are not authorized to use or'possess such material, the party shall knowledge that Confidential Information or Highly Confidential being used or possessed by a person not afithorized to use or possess that material, was disclosed 0r obtained by such person, the party shall provide immediate written notice of the unauthorized use or possession to the party whose material No 23 being used or possessed. 24 such possible use or possession. 25 7. is party shall have an affirmative obligation t0 inform itself regarding In conncc'tion With discovery proceedings as to which a palty éubmits Confidential 26 Information or Highly Confidential Information, 27 Confidential Information or Highly Confidential Information which are submitted to the Count 28 shall be filed with the Court in sealed all documents and chamber copies containing envelopes or other appropriate sealed containers. On the .5- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM ('SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 1 095 1) zabrahamson@durietangri.com KOOOQON 2 1 7 Leidesdorff Street San Francisco, CA 941 11 4 1 5-3‘62-6666 Telephone: Facsimile: 415-236-6300 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier 10' Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 V. 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 20 21 Raymond 9 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE EXHIBIT 16 19 Assigned for all purposes to Hon. V. Swope, Dept. 23 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23‘ 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 Notwithstanding any challenge to the designation of material as Confidential 10. Information or Highly Confidential Information, be subject to the provisions hereof unless and the (a) documents all until shall be treated as such and shall one 0f the following occurs: pafly or non-party who claims that the material is Confidential Information or Highly Confidential Information withdraws such designation in writing; or the (b) pafly or n0n~party who claims that the material Information or Highly Confidential Information is Confidential fails to apply to the Court for an order designating the material confidential within the time period specified above afier receipt of a written challenge to such designation; or the Court rules the material (c) not Confidential Information or Highly is Confidential Information. A A11 provisions ofthis Order restricting the communication or use of Confidential 11. Information or Highly Confidential Information shall continue to be binding after the conclusion ofthis action, unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the possession of Confidential Information or Highly Confidenfial Information shall within sixty (60) days either (a) return such documents to counsel for the party or non-party who provided such infmmation, or (b) destroy such documents. Whether the Confidential Information or Highly Confidential Information is returned or destroyed, the receiving party certification to the producing party (and, if not the by the 60 day deadline same person or that (l) all the Confidential Information or must submit a written entity, to the designating party) Highly Confidential Information that was returned or destroyed, and (2) affirms that the receiving patty has not retained an'y copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information or Highly Confidential Information. Notwithstanding this provision, motion papers, trial, deposition and trial exhibits, work product, even counsel are entitled to retain an archival copy of all pleadings, deposition, and hearing transcripts, legal if expen reports, attorney memoranda, correspondence, work product, and consul‘tant and expel“: such materials contain Confidential Information or Highly Confidential -7- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 9. 10. PROFESSIONS CODE §§ 17500 VIOLATION 0F BUSINESS AND PROFESSIONS CODE §§ 16720 VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 17200 A JURY TRIAL DEMANDED QO‘xUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for Injunction and Damages ii N II. TABLE OF CONTENTS OVERVIEW OF THE FACEBOOK PLATFORM EXTORTION SCHEME THE PARTIES III. FACTS I. ................... 1 ................................................................................................................... 12 ................................................................................................................................ 1 9 ZUCKERBERG LAUNCHES FACEBOOK PLATFORM IN MAY 2007, PROMISING EQUAL ACCESS AND A LEVEL PLAYING FIELD 27 V. DEVELOPERS RESPOND ENTHUSIASTICALLY TO FACEBOOK PLATFORM, BUT BY 2009, ZUCKERBERG IS ALREADY IDENTIFYING WAYS TO WEAPONIZE THEIR RELIANCE 33 VI. FACEBOOK LAUNCHES GRAPH API IN 2010 TO CONTINUE TO INDUCE DEVELOPERS TO RELY ON FACEBOOK PLATFORM 40 VII. THE FTC FINDS IN 2011 AND 2012 THAT FACEBOOK HAS DESIGNED ITS PLATFORM IN A MANNER THAT VIOLATES PRIVACY AND ORDERS FACEBOOK TO FIX ITS FLAWED DESIGN 44 VIII. INSTEAD OF FIXING THE FLAWED DESIGN, ZUCKERBERG IMPLEMENTS AN EXTORTION SCHEME THAT WEAPONIZES USER DATA TRANSMITTED 1N OVER 50 PUBLIC APIS, SHUTTING DOWN TARGETED COMPANIES UNLESS THEY MAKE MINIMUM PURCHASES IN FACEBOOK’S NEW MOBILE ADVERTISING PRODUCT 48 IX. FROM 2012 ON, DEFENDANTS ENGAGE IN AN ACTIVE CONCEALMENT CAMPAIGN TO INDUCE FURTHER RELIANCE ON THESE 50 APIS IN ORDER TO GAIN MORE EXTORTION LEVERAGE 51 X. FROM 2012 TO 2015, FACEBOOK ENGAGES IN NUMEROUS PROJECTS THAT WILLFULLY VIOLATE USER PRIVACY TO ENHANCE THE EFFICACY OF ITS ANTI- COMPETITIVE EXTORTION SCHEME 58 XI. IN 2013 AND 2014, DEFENDANTS FABRICATE A FRAUDULENT PRO-PRIVACY NARRATIVE WHICH THEY INTERNALLY NAME THE “SWITCHAROO PLAN” TO COVER UP THE EXTORTION SCHEME 62 COUNT I: BREACH OF CONTRACT 70 COUNT II: CONCEALMENT 73 COUNT III: INTENTIONAL MISREPRESENTATION 78 COUNT IV: NEGLIGENT MISREPRESENTATION 82 COUNT V: INTENTIONAL INTERFERENCE WITH CONTRACT 84 COUNT VI: INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC IV. .................................................... \OOOQONU‘IAU.) ................................................................................... ............................................. ................................................................ 10 11 12 ............................................................................................. 13 14 15 16 17 ....................................................................... ............................................................. ................................................................ 18 ......................................................................................... 19 20 ...................................................................................................... ............................................................. ................................................................. 21 ......................................... 22 RELATIONS 23 24 .......................................................................................................................... COUNT VII: NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS ................................................................................................. COUNT VIII: VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 17500 COUNT IX: VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 16720...........; COUNT X: VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 17200 ............ 25 26 27 85 88 89 ...... 9O ................... 92 JURY TRIAL DEMAND .............................................................................................................. PRAYER FOR RELIEF ................................................................................................................. 95 95 28 Complaint for Injunction and Damages i attorney-cljent or work product privileges, which inadvertent production is governed by Section 14 beiow. In the event that any party l4. 01‘ non—party inadvertently produces information that is privileged or otherwise profected from disclosure during the discovery process (“Inadvertent Production Material”), the following shall apply: (a) Such inadvenent production or disclosure otherwise constitute a waiver work product of, or estoppel as to, shall in no way prejudice 0r any claim of attorney—client privilege, attorney protection, or other applicable protection in this case or any other federal or state proceeding, provided that the producing party shall notify the receiving party in writing of such 10 protection or privilege promptly after the producing party discovers such materials have been 11 inadvertently produced. (b) If a claim of inadvertent production is made, pursuant to this Stipulated 13 Protective Order, with respect to discovery material then in the custody 0f another party, that l4 party shall: 15 Production Material; 16 Production Material and l7 producing party, or destroy 18 summaries and excerpts) and 19 claimed Inadvertent Production Material for any pulpose 2O authorizing such use. (i) 21 refrain (c) from any furthér examination or disclosure of the‘claimed Inadvenent (ii) promptly make a good-faith effort to return the claimed Inadvertent all copies thereof (including summaries and excerpts) tQ counsel for the all such claimed Inadvertent Production Material (including certify in writing to that fact; until (iii) not disclose or use the funher order of the Coun éxpressly A pamy may move the Court for an order compelling production of the 22 Inadvenent Production Material on the ground that 23 motion shall and be filed under seal and it is shall not assert as a not, in fact, privileged or protected. The ground for entering such an order the fact 0r circumstance of the inadvertent production. The producing party retains the burden of 25 establishing the privileged or protected nature of any inadvertently disclosed or produced 26 information. While such a motion 27 be treated in is pending, the Inadvertent Production Material at issue shall accordance with Paragraph 14(b) above. 28 -9- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 intended by Defendants t0 be relied on by Developers, including Styleform. Styleform relied upon these misrepresentations and misleading its partial disclosures when deciding whether to build business on Facebook Platform. 4. These misrepresentations and misleading partial disclosures fraudulently induced tens of thousands of Developers, including Styleform, to enter into identical adhesion contracts with Facebook that placed a host of costly obligations and conditions on Developers in exchange for access to Facebook Platform’s software APIs (known “Social Graph”). Access to the Graph that generated increased user as the API enabled Developers “Graph API,” “Open Graph,” or f0 build more useful applications engagement and revenues for both Developers and Facebook while 10 giving consumers a choice as to which companies would meet their needs for various products 11 and 12 organically due to features Facebook offered that 13 Developer applications without requiring that the Developer purchase advertisements. This 14 organic growth Facebook promised Developers on 15 equivalent of word-of—mouth business. 16 services. 5. They also offered the opportunity for Developers to However, Facebook at grow their applications made Facebook users prospective customers of its Platform could be described as the Internet- no time provided access Graph API on an equal to the Developers unfair competitive advantages and special access to 17 basis, but rather offered large 18 data in repeated Violation 0f user privacy and 19 playing field, in exchange for unrelated advertising purchases or other in—kind consideration at the 20 expense 0f small or 21 Facebook Platform. Further, from 2007 through 2015, Facebook intentionally made 22 difficult for small Developers to continue t0 maintain their products in a 23 cost—prohibitive, while giving larger Developers 24 Facebook special access 25 same products and 26 6. new Developers, to APIs that its public commitment to a like Styleform, that made it level competitive were attempting who made unrelated less costly for them to compete it in more manner that was not advertising purchases from to release and maintain the very features. At Zuckerberg’s personal direction, as early as 2009, Facebook used Facebook 27 Platform as a weapon to gain leverage against competitors in the Developer community in a host 28 of ways by threatening any company that crossed Facebook’s radar that Complaint for Injunction and Damages it would shut down its 2 access t0 publicly available APIs unless: (1) the Developer, purchase price below its fair market value; (2) the itself, was sold t0 Facebook for a Developer purchased large amounts of unrelated advertising from Facebook; (3) the Developer transferred intellectual property over to Facebook; and/or (4) the Developer fed all of its data back to Facebook, Where it would then be available to the Developer’s competitors, placing the Developer’s business at great risk. At the personal 7. its direction of Zuckerberg, perverse incentives in serving as both the referee world’s largest software economies. misrepresentations, of, By making a series by 2009, Facebook took and largest participant full in, advantage of one 0f the of misleading partial disclosures and Facebook irreparably damaged tens of thousands of Developers in order t0 Facebook executives discussed backing down 10 unjustly enrich Defendants. Further, in 2009, 11 publicly on their promise 0f a level competitive playing field. 12 down on these promises, 13 continued to misrepresent Facebook Platform as a level competitive playing field. They decided internally to back but concealed this decision from Developers, including Styleform, and In 2011 and 2012, Zuckerberg extended this concealment campaign and decided 14 8. 15 would be 16 shut 17 APIs, including the 18 (“Graph API endpoints”). Styleform’s business and the business of many Developers depended 19 on these APIs. Working 20 Developers that were close partners, Zuckerberg implemented a plan to deny access to 21 applications 22 competitive With current or future products offered by Facebook or Facebook’s close partners. 23 Defendants’ anti-competitive conduct was undertaken in concert with other large Developers to 24 oligopolize various software markets that Defendants continued to represent 25 fair 26 in Facebook’s best interest to no longer compete with down their businesses by restricting their access full friends list, friends to many Developers and to, it instead, dozens of the most popular Platform permissions, newsfeed APIs, and other endpoints in concert with other Facebook executives and employees and other large on Facebook Platform on the primary or exclusive basis many that these applications were would operate on and equal terms and a level competitive playing field. 9. Specifically, in 2011 and 2012, Zuckerberg held discussions With Facebook 27 executives Chris Cox, Javier Olivan, Samuel Lessin, Sheryl Sandberg, 28 Stretch and others in Andrew Bosworth, Colin which Zuckerberg made a decision t0 weaponize Facebook Platform using a Complaint for Injunction and Damages 3 expense of seeking protection in that court of its confidential material—and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from an.other court. The following 17. The terms of this Order (a) ONUX$ additional terms apply to patty in this action and designated as N this Order. in material: are applicable to information produced “CONFIDENTIAL” Such information produced by non-parties remedies and reliefprovided by non—pany discovery or “HIGHLY CONFIDENTIAL.” connection with this litigation Nothing by a non- is protected by the in these provisions shofild be construed as prohibiting a non-party from seeking additional protections. 10 11 In the event that a (b) pany is produce a non-party’s confidential informatiofi required, by a valid discovery in its possession, and the party request, to is subject to an agreement with the non-party not to produce the non-party’s confidential information, then the 13 party shall: 14 promptly notify i. some or 15 that l6 Party; all of the information requested 17 in writing the requesting party is subjecthto a confidentiality and the non-party agreement with a non- promptly provide the non-party with a copy of the Stipulated ii. 18 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 19 description of the information requested; and 20 21 make iii. the information requested available for inspection by the non- pany. Ifthe non-party (c) fails to object or seek a protective order from this Coun I 23 within 28 days of receiving the notice and accompanying information, the receiving party 24 produce the non-palty’s confidential infomxation responsive may to the discovexy request. Ifthe non- party timely seeks a protective order, the receiving party shall not produce any information in subject to the confidentiality agreement with the non-pany before a 26 possession or control that 27 determination by the Court. Absent a court order to the contraly, the non-party shall bear the is its 28 -11- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 bait-and-switch scheme while enabling Facebook t0 have a pretext to begin enforcing the scheme. Had Facebook made a full disclosure that the API endpoints from the public Reciprocity policy entailed removal of the Graph Platform, then Styleform would not have invested in or continued to invest in its business. Facebook’s failure to make a 12. intentional act to ensure the policy permitted Defendants t0 shut was as full disclosure of the Reciprocity Policy was an vague as possible. The vagueness of the policy down any company under a policy—based pretext for any arbitrary or punitive reason Defendants desired. Once Defendants decided to remove competing Developers’ access 13. to the Graph of competing Developers that only 10 API, Zuckerberg personally maintained an ever-growing 11 he could authorize blacklisting from the Graph API. Once a Developer was blacklisted from the 12 Graph API, any applications the Developer 13 that 14 often included the 15 newsfeed APIs. Facebook made misleading 16 Developers had their API access restricted but claimed these restrictions were due to clear policy 17 and privacy Violations when in no 18 numerous other 19 competitive data restrictions while concealing the announcement of these restrictions. 20 Facebook made a full disclosure 21 considered them competitive, then Styleform would not have invested in or continued to invest in 22 their businesses. 23 Facebook purportedly provided 0n fair built could cases, full all fiiends Developers. Blacklisted APIs list, friends permissions and partial public disclosures that certain blacklisted no legitimate policy or privacy violation had occurred. In Facebook manipulated that no longer use any of the blacklisted APIs and neutral terms to Graph API endpoints, including the fact list its own policy as a pretext to enforce anti- Had Developers were being blacklisted because Facebook Zuckerberg’s blacklist first contained only a handful of large competitors in 201 14. 24 but then was quickly expanded in 2012 to include maj or messaging applications, professional 25 services, 26 management 27 repository apps, 28 lifestyle apps, 1, and photo or video sharing applications. By 2013, the blacklist included contact apps, reputation apps, gifting apps, sharing economy apps, utility apps, file payment apps, birthday reminder apps, photo and Video apps, calendar apps, and health and fitness apps. Facebook Complaint for Injunction and Damages at various times shut down data access t0 5 apps in these categories and made misleading partial disclosures and/or misrepresentations that many of these apps these apps were in Violation of policies. However, policy. Rather, policy was used violated no published as a pretext for anti-competitive data restrictions. fully disclosed its reasons for shutting down access to these apps in its Had Facebook public statements, Styleform would not have invested in or continued to invest in théir businesses. Facebook’s misleading partial disclosures and/or misrepresentations around access to these app categories, made Facebook by making room its at various its down API reasons for shutting times from 2012 through 2015, greatly enriched \DOOVON for own products 0n mobile phones — as most popular apps worldwide across 10 all a maj or smartphone platforms are now Facebook-owned apps (see https://thenextweb.com/apps/ 2017/04/1 8/facebook-downloaded—app-netflixl). During time Facebook maintained a public “size policy” whereby Developers 11 15. 12 that acquired large 13 throttling restrictions, 14 a secretive but effective component, undisclosed to Styleform, whereby 15 large 16 “size policy” published 17 Facebook had 18 from the public policy. Facebook employees would even encourage Developers 19 rely 20 the Developer to 21 obtained a certain size, Facebook would shut the Developer down. Facebook thus 22 misleading partial disclosure that 23 qualify this disclosure with material information that the size of a 24 Facebook’s position on whether to remain 25 related to 26 its 27 28 of the five result, four numbers of users could be potentially be and successful, on certain its this Which is standard in the industry. would go on Zuckerberg’s it However, the “size policy” blacklist and have its if also included a company became too API access shut on the Facebook website would have been materially qualified fully disclosed its oWn internal in reliance its on Facebook with it size policy, Styleform off. The if definition of the “size policy” that was different APIs or avoid telling the Developer grow subj ect to rate limiting or data full was maintaining a fair and access t0 continue to would be shut off in order to induce knowledge that once the company fair neutral. made a and neutral platform but failed to company would Had Facebook shared affect all material facts would never have invested 0r continued to invest in building business. 16. Starting in mid—to-late 2012, Zuckerberg, Olivan, communicating the decision Complaint for Injunction and Damages to restrict Graph API endpoints Cox and Lessin began in order to restrain competition for 6 materials a5 Confidential Information or Highly Confidential Information pursuant [\J to this Order, of the submitting party’s intention t0 or use the file Confidential Inforrriation or Highfy Confidential Information, including specific identification of the Confidential Information or Highly Confidential Information. motion to WOOQQMAUJ '(b) Any affected party or non-party may then file a pursuant to California Rule of Court 2.551(b); or seal, At the time of filing or desiring to use the Confidential Information or Highly Confidential Information, the submitting party shall submit the materials pursuant to the Iodging—under—sea! provision of California Rule of Court 2.55 1 (d). seal, Any affected party or non-party may then file a motion to pursuant to'the California Rule of Court 2.55 I(b), within ten (10) business days after such lodging. Documents lodged pursuant to Rule of Court 2.55 1(d) a legend stating that such materials shall shall bear California be unsealed upon expiration of ten (IO) businesé days, absent the filing of a motion 21. to seal pursuant to Rule 2.55 I(b) or Court order. In connection with a request to have materials sealed pursuant to Paragraph 12 or Paragraph 13, the requésting party’s declaration pursuant to California Rule of Court 2.551(b)(1) shall contain sufficient particularity with respect to the particular Confidential Information or Highly Confidential Information and the basis for sealing t0 enable the Court to make the findings required by California Rule of Court 2.550(d). IT IS DATED: SO STIPULATED. , 2016 PERKINS COIE LLP By: Julie E. Schwartz Attorneysfor Defendant Facebook, Inc. -13- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 purchase in Facebook’s became the fastest new Mobile App Install Ads advertising product. growing business in the history of advertising as a Mobile App Install Ads direct result 0f Zuckerberg’s concealment and extortion campaign. 19. Zuckerberg and other Facebook executives and employees actively, intentionally, recklessly, maliciously, oppressively, fraudulently and/or negligently concealed the public and certain internal employees this decision to restrict the to \DOOQQ make Graph API, While continuing misrepresentations and misleading partial disclosures that enticed Developers to investments in Facebook Platform until at least on Graph API would no longer function and any investments made by Developers in such applications, particularly 10 that 11 would be make 2015, notwithstanding that Facebook had a duty to disclose this material fact that applications relying 12 from Developers, after 2011 and 2012, irreparably damaged. 20. Facebook had a duty standard adhesion contract Which to disclose for a number of independent reasons, and Developers including: “SRR” 13 its 14 “Agreement") and Which specifies the commercial terms of a Developer’s integration; the 15 that 16 information of consumers under the Agreement; the fact that Developers were required to share 17 their source 18 request under the Agreement; and the fact that Facebook 19 fact to the public 20 omitting material facts that would undermine and often contradict 21 disclosures. Facebook’s duty to disclose also arises out of the fact that the 22 most entered—into contract 23 businesses entrusting Facebook to 24 under the terms of the Agreement, and therefore greatly implicates the public 25 it enters into with all users Facebook and Developers shared confidential and highly 21. code and other confidential intellectual property and Developers regarding in human history, With manage with Facebook stores, at Facebook’s partial disclosures its of misleading partial Agreement is the single over 2 billion people and tens 0f millions of until 201 5, at and private information interest. Zuckerberg’s personal direction, 26 Facebook executives instructed 27 be considered competitive and to develop a plan to remove access to 28 these applications to function, thereby eliminating competition across entire categories of Complaint for Injunction and Damages fact and transmits user data while their confidential, personal Beginning in 2011 and continuing 0r sensitive 'and pri§ate personal made misleading how it collects, (the their subordinates to identify categories of applications that would critical APIS necessary for 8 software applications, like the ones Styleform had been developing and maintaining continuously from 2007 through 2015, after Zuckerberg had already decided to restrict access to the Graph API necessary for Styleform’s technology to function. Defendants actively, maliciously, oppressively and fraudulently concealed the fact 22. that to it would be restricting access to the make such investments for at least Graph API endpoints and continued two years. Had Defendants to entice Developers disclosed this fact within a KOOOQONUI-P reasonable time after making its decision, Styleform would not have made investments 0f capital and resources in Facebook Platform. Instead, Defendants unjustly enriched themselves through 10 this fraudulent and anti-competitive conduct by enticing investments that generated revenues for Facebook with full 23. 11 knowledge that those investments would be irreparably damaged. Further, While actively suppressing this material information and continuing t0 Facebook Platform, Zuckerberg instructed 12 entice Developers to invest in building applications for 13 certain 14 collusive and anti-competitive schemes with other large companies. 15 Facebook offering these Developers unfair advantages Via private API access 16 markets in exchange for unrelated advertising payments and/or other forms 0f cash or in—kind 17 consideration that benefited Facebook. In doing so, Facebook and these large Developers held 18 hostage APIs that Facebook previously promised would be available to 19 and equal terms. 20 Facebook executives 24. to require or encourage their subordinates to This practice systematically disadvantaged small or engage in a number of The schemes involved all in various software Developers on neutral new Developers, including 21 Styleform, that had been competing in Facebook’s purportedly fair and neutral operating system. 22 Smaller Developers like Styleform could no longer participate in one of the largest application 23 and advertising economies globally, providing an immense advantage to large Developers that 24 combined and conspired with Facebook to control the Graph API 25 promised would be accessible on equal terms. The conduct 0f the Facebook executives who 26 participated in these schemes 27 who benefited from the 28 markets, and make it that Facebook was undertaken in combination and concert with for years large Developers decision to restrict data access, eliminate competition in various software more difficult for small Developers to maintain their products and Complaint for Injunction and Damages grow on 9 CERTIFICATION I hereby certify Information is my understanding that Confidential Information or Highly Confidential being provided to me pursuant to the terms and restrictions of the Stipulation and Protective Order Regarding Confidential Information filed 001$ LLC v. Six4Three, (“Order”). I I Facebook, Inc., on comply could expose me fiié 2016, in San Mateo County Superior Court Case No. CIV533328 have been given a copy of that Order and read agrée to'be b'ou'hd by , Order and to sanctions I it. understand and acknowledge that failure to so and punishment in the nature of contempt. I will not reveal the Confidential Information or Highly Confidential Information to anyone, except as allowed will maintain all such Confidential Information or 10 the Order. ll including copies, notes, or other transcriptions I unauthorized access to it. No later than made by Highly Confidential Information, therefrom, in a secure manner to prevent thiny (30) days after the conclusion of this action, I will 13 return the Confidential Information or Highly Confidential Information, including copies, notes, 14 or other transcriptions 15 Information or Highly Confidential Information. 16 Mateo County Superior Court 17 proceedings occur after termination 0fthis action. 18 I made therefrom, to the counsel I hereby appoint 21 Order. to executed this if such enforcement _ day of , in enforcement of this Stipulated Protective declare under penalty ofperjury that the foregoing is even my California agent for sgwice of process connection with this action or any proceedings related cenificate the Confidential located at the address of 20 23 me with hereby consent to thejurisdiction ofthe San as I provided for the purpose of enforcing the Order, 19 22 who 20 is l true and correct and that this 6, at 24 By: 26 Address: 27 28 Phone: -15- STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. CIV533328 information exclusively in its own possession fraudulently contract and to continue to contract with induced Styleform to enter into Facebook by maintain products and building its its business on Facebook Platform at significant cost t0 Styleform. 28. Facebook, at Zuckerberg’s personal direction, deliberately suppressed material information and shared only partial information in its communications regarding Facebook Platform from 2007 through 201 8, and, in particular, during Zuckerberg’s April 30, 2014 announcement at F8, causing further harm to Styleform in a malicious and fraudulent attempt to OOQQ cover up Defendants’ bait-and-switch schemes. For instance, Zuckerberg partially disclosed that \O Facebook was versioning the Graph API, but then misrepresented that Developers would be able choose the version they build against, while concealing material facts Zuckerberg 10 to 11 time contradicted this representation. 12 29. knew at the Defendants conspired With and instructed their subordinates to conspire With other 13 Developers to engage in fraudulent bait—and—switch schemes and repeatedly acted negligently, 14 fraudulently and maliciously in Violation of California law to the detriment 0f consumers and tens 15 of thousands of small Developers, whose investments unjustly enriched Defendants. Defendants’ 16 conduct amounts t0 a classic bait-and-switch tactic barred by California’s Unfair Competition 17 Law. Further, Defendants’ knowingly 18 users and Developers Violate California’s False Advertising 19 representations for years that 20 tying access to these purportedly public 21 textbook tying scheme in Violation of California’s Cartwright Act. 22 30. Around false representations and misleading Law. Graph API would be offered on APIs the time Zuckerberg to fair partial disclosures to Finally, Defendants’ and neutral terms while secretly an unrelated mobile advertising product made this is a decision to engage in the Facebook more than half from 23 Platform Extortion Scheme, Facebook’s stock price had dropped by 24 public offering (“IPO”) in 25 Zuckerberg personally 26 implement the fraudulent and anti-competitive schemes alleged herein. After Zuckerberg decided 27 upon and implemented the alleged fraudulent and anti—competitive schemes, the downward 28 traj ectory its ‘initial May 2012, reaching a 10w of $37 billion in September 2012. lost approximately $10 billion in the period during Which he decided to of Facebook’s stock reversed course and began Complaint for Injunction and Damages its rapid climb t0 an approximate $445 11 billion 10W it other market capitalization as of October 19, much more 201 8, a than ten—fold increase from the had reached prior to Zuckerberg engaging in the alleged conduct. Zuckerberg and certain Facebook executives were greatly enriched as a result 0f the alleged conduct on the order of millions or billions of dollars. The alleged conduct was a substantial factor in the turnaround of Facebook’s stock price and the growth of its business. 3 1. Facebook’s entire business up u_nti1 2013 was built for desktop computers. However, by 2012, people began accessing the Internet‘more frequently from from their computers. This their phones than was the primary reason Facebook’s business was collapsing by mid- 2012. In order to save Facebook’s business, Sheryl Sandberg, Dan Rose, Samuel Graph API Lessin and 10 others convinced Zuckerberg to weaponize user data and 11 had devastating impacts across the 12 medium businesses 13 employees and the families that depended upon them. 14 exercising any reasonable degree 0f choice in 15 products and services, resulting in the dominant market position Facebook maintains over 16 consumer software experiences today. to shut down entire in an extortion scheme consumer software industry and caused 35,000 that small-to- or pivot at a substantial loss, wreaking havoc on their investors, It further prevented how their needs are met consumers from across a wide range of many 17 18 19 20 21 22 23 II. 32. Plaintiff Styleform IT is THE PARTIES a sole proprietorship registered in Sweden With a principal place of business at Tussmotevagen 192b, 8—12264 Enskede, Sweden. 33. Defendant Facebook, principal place of business at 34. Inc. (“Facebook”) One Hacker Way, Menlo Defendant Facebook Ireland Limited 24 owned by Facebook, 25 Canal Harbour, Dublin is is a Delaware Corporation With a Park, California. an Irish limited liability company Wholly with a principal place of business at 4 Grand Canal Square, Grand Defendant Mark Zuckerberg (“Zuckerberg”) is an individual residing in Palo Alto, Inc. 2. 26 35. 27 California. 28 Which the alleged conduct occurred and personally made the decisions comprising the alleged Zuckerberg was the Chief Executive Officer of Facebook during the time during Complaint for Injunction and Damages 12 conduct, including: (1) the decision to use Facebook Platform as a ‘bait and switch’ scheme to unjustly enrich Facebook and the individual Defendants from 2007 through present; (2) the decision to fraudulently, negligently, intentionally, maliciously and oppressively misrepresent Facebook’s plans regarding Facebook Platform before and after Facebook had already decided to restrict Graph API in 2011 and 2012; (3) the decision t0 actively conceal material information to tens of thousands of Developers, including Styleform, for years, notwithstanding that was under a duty to disclose such information; (3) the decision to conspire Facebook with large Developers OOQO to restrict access to data that Facebook promised for seven years would be available to all \O Developers on neutral and equal terms in exchange for large cash payments in advertising and/or 10 other in—kind consideration that greatly benefited Facebook; and (4) the decision in late 2013 and 11 early 12 around 13 employees to make, 14 through at least 201 5, regarding Facebook’s management of Facebook Platform with the intention 15 of inducing investment from Developers to build applications on Facebook Platform. Zuckerberg 16 did so 17 statements were false at the time they were 18 materially qualified the misleading partial disclosures he authorized or personally made. 19 Zuckerberg engaged in 20 With 21 including Styleform’s applications, (collectively, “Apps”), to fulfill his primary goals of 22 removing competitive 23 mobile advertising business by holding Developers hostage. Zuckerberg was aware that these 24 40,000 or more apps, including Styleform’s Apps, had contracts With their end customers that 25 would be breached or otherwise 26 oppressive, fraudulent and negligent conduct because the adhesion contract Developers, including 27 Styleform, entered into With Facebook required 28 Customers 2014 t0 concoct an entirely fabricated narrative in order t0 mask Facebook’s true intentions deceptive and anti-competitive schemes. Zuckerberg made, and directed Facebook its false statements and to maliciously suppress material facts knowing these investments would be full this irreparably damaged. Zuckerberg made and that the facts suppressed from 2007 was aware these would have wrongful and malicious conduct precisely in order to damage (and knowledge of the proximate damage threats to to) these 40,000 or more software applications, Facebook’s planned products and propping up Facebook’s interrupted by Zuckerberg’s intentional, wrongful, malicious, them t0 maintain such contracts with their end . Complaint for Injunction and Damages 13 From: Laura Sent: To: Cc: Subject: 19, 2018 8:12 PM complexcivil@sanmateocourt.org; Rebecca Huerta SERVICE—SIX4THREE; David Godkin; James Kruzer; Stuart Gross SiX4Three v. Facebook (CIV533328) 201 8—1 1-19 Godkin letter‘to DT re Order from Parliamentpdf Miiler Monday, November Attachments: Ms. Huerta, write with an urgent request for an ex parte‘ hearing regarding Six4Three’s imminent violation of the protective order. This is in addition but related to Facebook’s request for an ex parte from earlier today. Six4Three’s counsel sent us the attached letter this morning at 11:33 a.m., purporting to put Facebook on notice that Six4Three is planning to provide to the Digital, Culture, Media and Sport Committee (the ”DCMS Committee”) of the UK House of Parliament: Unredacted copies ofSix4Three’s opposition to the anti—SLAPP (strategic lawsuits against public participation) filed in the California courts, relating to the company’s dispute with Facebook, along with any motion, documents or notes This the is relating to Six4Thre’s opposition to the anti-SLAPP motion. precisely the information that the Court ordered sealed and/or struck in DCMS Committee’s letter is neither a subpoena nor a court order disclose Facebook’s confidential information in its Order of November 1, related litigation, Six4Three has 2018. And as no basiS‘to under the Stipulated Protective Order. We have informed Six4Three of Facebook’s position and asked them not to disclose Facebook’s confidential information under both to the Stipulated Protective Order and thisCourt’s Order of November 1, 2018. Six4Three has not provided a response, and may disclose Facebook’s confidential information as early as 9 a.m. Understanding the extraordinary nature of on this matter as soon as possible. In its Qacific tomorrow. request, Facebook asks the Court to schedule an ex parte teleconference the event that Six4Three agrees to delay any discloSure opportunity to address this matter, Facebook requests that this matter proceed along the until the Court has had an same briefing schedule as set the Court’s email of 3:25 p.m. today regarding Facebook’s ex parte application for expedited briefing on a motion for sanctions and contempt related to other violations of the Protective Order. forth in Best regards, Laura Miller Attorney Durie ”Fang? LLP I 415-362—6666 I Imil!er@durietangri.com I down to shut applications on the exclusive further required the Platform more team basis that they to re-architect the difficult for other Developers to compete with were competitive with Facebook and APIs Facebook made available Facebook on a to make it level playing field, including .pw removal of the friends list API, friends permissions APIS, newsfeed APIs, user ID APIs, and Olivan directed numerous proj ects others. at Facebook that intentionally violated user privacy in order to give Facebook’s products an unfair competitive advantage relative to other Platform apps. Olivan made, and directed Facebook employees t0 make, false statements and to KOOOQON maliciously suppress material facts from at least 2007 through 2015 regarding Facebook’s management 0f Facebook Platform with the intention of inducing investment from Developers to 10 build applications on Facebook Platform. Olivan did so 11 irreparably damaged. Olivan was aware 12 and that the would have materially qualified the misleading partial disclosures he 13 authorized or personally made. Olivan engaged in this wrongfill and malicious conduct precisely 14 in order to 15 applications, including Styleform’s Apps, to fulfill his primary goals 16 threats to 17 by holding Developers hostage. Olivan was aware 18 applications, including Styleform’s Apps, 19 breached or otherwise interrupted by Olivan’s intentional, wrongful, malicious, oppressive, 20 fraudulent and negligent conduct because the adhesion contract Developers, including Styleform, 21 entered into With Facebook required 22 Further, Zuckerberg directed Olivan (along With Lessin) in 23 team 24 threats 25 API 26 mobile advertising product. to facts suppressed damage (and With full knowing that these investments would be these statements were false at the time they knowledge of the proximate damage to) these were made 40,000 software of removing competitive Facebook’s planned products and propping up Facebook’s mobile advertising business make had contracts with them to maintain such sure Facebook properly executed its by privatizing Graph API While continuing in order to gain leverage over Developers 27 38. 28 California. Lessin that these 40,000 or more software their end customers that would be contracts with their 2012 end customers. to oversee Vernal’s Platform goal of removing thousands 0f competitive to represent the public availability of Graph and extort them into purchasing Facebook’s new Defendant Samuel Lessin (“Lessin”) is an individual residing in San Francisco, was the Director of Product and/or Vice President of Product Management of Complaint for Injunction and Damages 15 Facebook, Inc. during the period in question and was responsible for deciding upon and implementing key components of Zuckerberg’s fraudulent and anti-competitive schemes. Lessin actively approved, participated, ratified, directed and acquiesced in the conspiracies and schemes alleged herein, including directing subordinates t0 increasingly expand the definition of competitive applications Whose access to data would be removed. In the summer and fall 0f 2012, Lessin worked with Zuckerberg and other Facebook executives like Sheryl Sandberg, Bosworth and Dan Rose \OOOQG to break many to Andrew weaponize developers’ reliance on Facebook Platform by threatening software applications unless the developer advertising using Facebook’s new mobile made significant purchases in unrelated advertising product. Lessin was instrumental in 10 developing the plan whereby Facebook approached Developers to buy advertising under the 11 threat that if they did not 12 public Platform data. Lessin made, and directed Facebook employees t0 make, false statements 13 and 14 Platform with the intention of inducing investment from Developers to build applications on 15 Facebook Platform. Lessin did so knowing these investments would be irreparably damaged. 16 Lessin was aware these statements were false 17 suppressed would have materially qualified the misleading partial disclosures he authorized or 18 personally made. Lessin engaged in this wrongful and malicious conduct precisely in order to 19 damage (and With 20 applications, including Styleform’s 21 threats to 22 by holding Developers hostage. Lessin was aware 23 Styleform’s Apps, had contracts With their end customers that would be breached or otherwise 24 interrupted 25 conduct because the adhesion contract Developers, including Styleform, entered into with 26 Facebook required them 27 directed Lessin (along with Olivan) in 28 Facebook properly executed do so, Facebook would break their applications by removing access to maliciously suppress material facts regarding full at the Facebook’s management of Facebook time they were knowledge of the proximate damage Apps, to to fulfill his made and that the to) these facts 40,000 software primary goals of removing competitive Facebook’s planned products and propping up Facebook’s mobile advertising business by Lessin’s that these 40,000 or more apps, including intentional, wrongful, malicious, oppressive, fraudulent to maintain such contracts With their Complaint for Injunction and Damages its 2012 end customers. Further, Zuckerberg to oversee Vernal’s Platform goal of propping up its and negligent team to make sure mobile advertising business by privatizing 16 Graph API while continuing to represent the public availability of Graph API in order to gain leverage over Developers and extort them into purchasing Facebook?s new mobile advertising product. 39. Defendant Michael Vernal (?Vernal?) is an individual residing in San Francisco, California. Vernal was the Vice President of Engineering of Facebook during the period in question and was charged with direct oversight of Facebook Platform. As such, Vernal was responsible for deciding upon and implementing key components of Zuckerberg?s fraudulent and anti?competitive schemes. Vernal actively approved, participated, rati?ed, directed and acquiesced in the conspiracies and schemes alleged herein, including architecting and overseeing the implementation plan to cause tens of thousands of software applications to cease functioning in order to oligopolize various software markets for the bene?t of Facebook and acebook?s close partners. Zuckerberg directed Vernal to be the front man internally for this bait and switch scheme with full responsibility for its design and implementation such that many employees at Facebook were for years under the impression that the API restrictions were Vernal?s idea. Vernal made, and directed Facebook employees to make, false statements and to maliciously suppress material facts from at least 2009 through 2015 regarding Facebook?s management of Facebook Platform with the intention of inducing investment from Developers to build applications on Facebook Platform. Vernal did so knowing these investments would be irreparably damaged. Vernal was aware these statements were false at the time they were made and that the facts suppressed would have materially quali?ed the misleading partial disclosures he authorized or personally made. Vernal engaged in this wrong?ll and malicious conduct precisely in order to damage (and with full knowledge of the proximate damage to) these 40,000 or more apps, including Styleform?s Apps, to ful?ll his primary goals of removing competitive threats to Facebook?s planned products and propping up Facebook?s mobile advertising business by holding Developers hostage. Vernal was aware that these 40,000 or more apps, including Styleform?s App, had contracts with their end customers that would be breached or otherwise interrupted by Vernal?s intentional, wrongful, malicious, oppressive, fraudulent and negligent conduct because the adhesion contract Developers, including Styleform, entered into with Facebook required them Complaint for Injunction and Damages 17 such contracts with their end customers. to maintain Defendant Ilya Sukhar (“Sukhar”) 40. is an individual residing in San Francisco, California. Sukhar was the Vice President of Developer Products 0f Facebook during the period in question and was responsible for deciding upon and implementing key components of Zuckerberg’s fraudulent and anti-competitive schemes. Sukhar actively approved, participated, and acquiesced in the conspiracies and schemes alleged herein, including ratified, directed architecting and overseeing the plan to achieve support among Facebook employees and Developers around the fabricated narrative Zuckerberg manufactured to conceal his various anti— competitive schemes. Zuckerberg directed Sukhar in the second half of 2013 and early 2014 to man externally for the bait and switch scheme in light of Sukhar’s respected 10 serve as the front 11 reputation 12 employees to make, false statements and 13 through 2015 regarding Facebook’s management of Facebook Platform With the intention of 14 inducing investment from Developers to build applications 0n Facebook Platform. Sukhar did so 15 knowing these investments would be 16 were 17 qualified the misleading partial disclosures he authorized 0r personally made. Sukhar engaged in 18 this 19 proximate damage to) these 40,000 or more apps, including Styleform’s Apps, to fulfill his 20 primary goals of removing competitive threats to Facebook’s planned products and propping up 21 Facebook’s mobile advertising business by holding Developers hostage. Sukhar was aware that 22 these 40,000 or 23 that 24 oppressive, fraudulent and negligent conduct because the adhesion contract Developers, including 25 Styleform, entered into with Facebook required 26 customers. Sukhar 27 trust in late 28 to among the false at the software developer community. Suléqar made, and directed Facebook t0 maliciously suppress material facts irreparably damaged. Sukhar from at least 2013 was aware these statements time they were made and that the facts suppressed would have materially wrongful and malicious conduct precisely in order t0 damage (and With more full knowledge of the apps, including Styleform’s Apps, had contracts with their end customers would be breached or otherwise interrupted worked With Zuckerberg 2013 and early 2014 intentional, wrongful, malicious, them to maintain such contracts With their end directly to concoct a fabricated narrative that intentionally Facebook’s anti-competitive data Complaint for Injunction and Damages by Sukhar’s and maliciously concealed restrictions in order to avoid legal around user critical facts related and public relations 18 ramifications for Zuckerberg’s bait and switch scheme. 41. herein as .b Styleform Does 1 ignorant 0f the true that this for the events 1 10 capacities 0f the Defendants sued is When the true names and capacities of informed and believes and thereon alleges, through 50, inclusive, and each of them, are legally responsible in some and happenings referred the injuries to Styleform as hereinafter alleged. subj ect complaint have been ascertained. Styleform Defendants Does manner names and through 50, inclusive, and each of them, and therefore sues said Defendants by such fictitious names. Styleform Will amend said Defendants \DOONQLI] is t0 herein and proximately caused or contributed to Wherever of any charging allegation by Styleform, it shall in this complaint any Defendant is the be deemed that said Defendants Does 1 through 50, inclusive, and each of them, are likewise the subj ects of said charging allegation. 42. 11 At all times herein mentioned, each of the Defendants was the agent and employee 12 of each of the remaining Defendants and, in doing the things herein alleged, was acting within the 13 course and scope of said agency and employment and in particular from direction authorized and 14 required by Zuckerberg. 15 16 III. 17 43. Styleform is FACTS a software consulting business that builds applications for clients and own account on Facebook Platform using Graph API. Beginning 18 for 19 and maintained a variety of applications 0n Facebook Platform. Styleform has continuously 20 maintained applications on Facebook Platform to the present day and has an active Facebook 21 Developer account. Further, the principal of Styleform has been a registered Facebook user 22 continuously from 2007 thfough the present day. its 23 44. In order to develop 24 enter 25 “Agreement”). The 26 users and others 27 agree[d] to this Statement. 28 Facebook Platform, since and did in fact enter into its Apps on Facebook Platform, Styleform was of service that governs [Facebook’s] relationship with interact with Facebook. ...” all Complaint for Injunction and Damages required to Facebook’s Statement of Rights and Responsibilities (“SRR” or SRR is the “terms who in 2007, Styleform built By using or accessing Facebook, Styleform was subject to the same [Styleform] SRR as all Developers on Developers are required to agree to the SRR before accessing any 19 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 1095 1) zabrahamson@durietangri.com 2 1 7 Leidesdorff Street San Francisco, CA 941 11 4 1 5-3 62-6666 Telephone: Facsimile: 41 5-236-63 00 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin; Michael Vernal, and Ilya Sukhar SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, Plaintiff, V. JAVIER OLIVAN, an individual; SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; DOES Raymond 6 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED EXHIBIT FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; ILYA SUKHAR, Assigned for all purposes to Hon. V. Swope, Dept. 23 an individual; and RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 Styleform further agreed that Facebook could “create applications that offer 49. similar features and services to, or otherwise compete With, [Styleform’s] applications”; that Facebook Platform may not always be impose additional and free t0 use; that Facebook could limit access to data or data-throttling restrictions if Styleform’s user bases increased substantially. Styleform reasonably concluded that these requirements meant that Styleform in the future may be charged a fee to access data or otherwise participate in Facebook’s economy, which fees would be charged \DOONQ that the in consistently across all Developers based on publicly established pricing, and amount of data Styleform could access managing its at any time costs in maintaining the API. Rate-limiting may be rate-limited to is assist Facebook common across most software APIs an API user can only access a certain amount of data over a specified period of 10 to ensure that 11 time. This assists the 12 maintaining the API. Further, Styleform understood Facebook to 13 compete With Styleform on a level playing field where the consumer decides Which products 14 succeed in the market. 15 50. API provider, Nowhere in the in this case Facebook, to Agreement did Facebook manage costs associated with mean that Facebook could could be state that access to data 16 provided on an unequal basis or that Facebook reserved 17 privileged, punitive or arbitrary basis. 18 reserved 19 Platform for over seven years and induced Developers, including Styleform, to build applications 20 on Facebook Platform instead of other operating systems 21 or Apple. 22 its 5 1. rights to remove Nowhere entirely the in the its Agreement did Facebook Graph API, the core APIs 24 entirely 25 to data 26 entire categories 28 on an unequal, state that it defined Facebook by Google, Microsoft Facebook’s public representations for seven years affirmed the reasonableness of Styleform’s interpretation of its Agreement with Facebook. by Facebook, if Facebook on unequal, privileged or 52. that like those offered 23 27 rights to provide data this day, its terms to convey that arbitrary terms, or that of Graph API endpoints, To data, stating that had intended by it As the Agreement was it could shut still could provide access down entirely could have and should have done Facebook’s Platform Policies access to so. include obligations around social Developers can “Only use friend data (including friends Complaint for Injunction and Damages it drafted list) in the person’s 21 experience in your app.” (See developers.facebook.com/policy, Section 3.3). This demonstrates that some Developers Who have entered into special t0 this social data notwithstanding that the data has agreements with Facebook been notwithstanding that it have access restricted to all other Developers. Certaifi large Developers with close relationships to Facebook and sums of cash or other financial consideration continue still to Who paid Facebook substantial have access t0 this data in some form, has been restricted t9 at least 35,000 other Developers. Before and during the time Styleform was considering investing in Facebook 53. \OOONON Platform, Facebook repeatedly stated that its it intended to have an open governance process around terms of use and that Developers would participate in the evolution of their agreements With 10 Facebook. For instance, on April 22, 2009, Zuckerberg released a Video to Developers and users 11 in 12 process, and a voice in governance. That’s 13 and democratic approach 14 around the world have read and offered comments on the documents that we’ve proposed, the 15 Facebook Principles and the Statement of Rights and Résponsibilities. We’ve read 16 comments and we’ve created new 17 with us which documents vou think should govern Facebook. 18 vote and also to fan the Facebook Site Governance Page’” (see https://Www.facebook.com/ 19 fbsitegovernance/Videos/Vb.69 1 78204322/71 8903 0953 73/?type=2&theater). These various 20 representations led Styleform reasonably to conclude that 21 enforcing 22 ability to gain 23 which the Agreement was implemented. 24 25 Which he its 54. stated that a community to as “large and engaged Facebook] needs a more open th a month ago, we announced a more transparent governing the Facebook drafts [as site. Since that time, users and experts from 0f the documents. . .. all of these Now we want you to vote and share I hope vou take a minute or two Facebook intended Agreement with Styleform, would not take actions that would to to be a good actor in frustrate Styleform’s benefits under the agreement, and would not unilaterally change the manner in In entering into the Agreement, Styleform reasonably relied on the various official statements, announcements, policy documents and verbal representations 0f Facebook employees, 26 27 1 In the quoted text here and elsewhere in the Complaint, official public representations its employees have been underlined for emphasis. by Facebook or 28 Complaint for Injunction and Damages 22 and, in particular, of Zuckerberg, and the Facebook Platform FAQ document Facebook had produced. Styleform could not have known that Zuckerberg decided to restrict access to the data necessary for Styleform?s technology to work, as Facebook had exclusive access to this information and had taken measures to actively conceal this fact from Styleform, other Developers, and the public. 55. As a result of Defendants? public representations regarding acebook Platform, Styleform began building Facebook applications for clients and embraced a business strategy whereby Facebook Platform became an important part of its overall business beginning in 2007. Styleform built the ?rst Swedish Facebook App in partnership with a Swedish advertising agency, Pronto Communications. The application, ?Rosa Bandet,? or ?Pink Ribbon? (?Pink Ribbon App?) was sponsored by the client, Cancer Fonden, a leading Swedish cancer awareness foundation. The purpose of the Pink Ribbon App was to support breast cancer awareness and research by encouraging Facebook users to donate and display a pink ribbon on their Facebook pro?les. The Pink Ribbon App required the full friends list API and other Graph API endpoints in order to function. The Pink Ribbon App raised over 200,000 Euro to support breast cancer research and spread to more than 250,000 Facebook users. 56. As a result of Defendants? public representations regarding acebook Platform, Styleform developed another application with a Swedish advertising agency. This application was called ?Klimatsmart,? or ?Climate Smart? (?Climate Smart App?). The purpose of the Climate Smart App was to support solutions to address climate change and improve the health of the planet. The Climate Smart App required the full friends list API and other Graph API endpoints in order to function. The Climate Smart App spread to more than 17,000 Facebook users. The Climate Smart App remains an approved Facebook App that Facebook considers active to this day, and thus Styleform continues to be harmed by Defendants? fraudulent and malicious weaponization of the Facebook Platform economy. 57. As a result of Defendants? public representations regarding Facebook Platform, Styleform developed another application called ?Nyarsloften? or ?New Year Resolutions? (?New Year Resolutions App?). The purpose of the New Year Resolutions App was to suggest New Complaint for Injunction and Damages 23 v" DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com LAURA E. MILLER (SBN 271 713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 10951) \OOONON 10 zabrahamson@durietangri.com 2 1 7 Leidesdorff Street San Francisco, CA 941 11 415-3 62-6666 Telephone: 415-236—6300 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case N0. CIV 533328 company, 14 Plaintiff, 15 V. 16 FACEBOOK, INC., a Delaware corporation; 17 MARK ZUCKERBERG, an individual; 18 CHRISTOPHER COX, an individual; JAVIER OLIVAN, an individual; 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; 20 21 ILYA SUKHAR, DOES an individual; and 1-50, inclusive, Defendants. Assigned for all purposes to Hon. V. Swope, Dept. 23 Raymond EXHIBIT 7 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC. ’S EX PARTE APPLICATION / CASE NO. CIV 533328 partner Developers. N 61. Further, had Styleform‘ been aware of Zuckerberg’s decision to on the Platform beginning in 2012 late to transition-his advertising business extort Developers from desktop computers to mobile phones, and further to privatize thé very APIs that Styleform relied upon in NONUl-bw order to effectuate the extortion scheme, Styleform would have ceased Facebook Platform economy. Had Styleform been aware of these and its closest partner Developers, Styleform would not have facts altogether operating in the known only to Facebook built applications on Facebook Platform or continued to maintain them until the present day. On April 30, 2015, Facebook required all applications to 62. Which had the 10 V. 2.0, 11 access, to the 12 function at 13 Styleform “upgrade” 14 knew it was not realistic 15 notices to “upgrade” 16 effect “upgrade” t0 Graph API of eliminating the access of most Developers, including Styleform’s most widely used and important Graph API endpoints. Styleform’s Apps would not all 63. Without access t9 these Graph its Apps to Graph API or possible. API endpoints, so Facebook’s requirement that was not realistic or possible, and Facebook V. 2.0 The Developer dashboard When Facebook knew “upgrading” was for Styleform’s Apps included not feasible or possible. By deciding to end access to Graph API, Facebook made it impossible for 17 Styleform to build a Viable business with 18 purchase terms entered into by Styleform With 19 Styleform to recoup any of its investment 0f capital, 20 Styleform had 21 late 22 never would have invested capital and resources in building applications on Facebook Platform. 23 Apps, to abide by the license agreements and its clients known that Facebook had made the 2012 but remarkably waited 64. its until April 2015 and the Apps” end human labor, users, and for time, effort and energy. If decision to remove access to the Graph to actually Each one of Styleform’s Apps’ users entered end such access, into a license agreement With Styleform. Facebook requires Developers to enter into license agreements With users of 25 applications for Facebook. These license agreements must, 26 users of these applications adhere to Facebook’s terms of service. A11 Developers 27 these terms prior to accessing any 28 65. in then. Styleform 24 among API ‘ other things, require that the must agree to Graph API endpoints. Accordingly, Defendants knew, or should have known, about the existence of Complaint for Injunction and Damages 25 Styleform’s license agreements with its users, since Facebook required Styleform to enter into such license agreements. Further, Defendants circulated spreadsheets containing over 40,000 businesses Who would Violate their license agreements With their end users as a result of the Facebook Platform Extortion Scheme. These spreadsheets were shared and prepared at his request. directly with Zuckerberg The overwhelming maj ority of the businesses on these spreadsheets were laW—abiding businesses Who did not Violate user privacy or trust and to Which Facebook had never sent any notice of any policy 0r privacy Violation. \OOONON On or about April 30, 66. endpoints, including friend list 2015, Facebook ended Developer access to the Graph and friend permissions data, to all Developers except those that 10 entered into separate agreements with Facebook for special access, Which 11 granted once those Developers also agreed to 12' other valuable consideration. Styleform 13: Facebook and thus had no opportunity 14 As a result, it became impossible On September 21, make API was typically only unrelated advertising purchases or provide was never given the opportunity to be extorted by to continue to access the privatized for Styleform t0 build a business from its Graph API endpoints. Apps. 2015, the Wall Street Journal reported that Facebook’s decision 15 67. 16 to restrict access t0 17 down a voter-registration tool used by the 2012 Obama campaign, and decommissioned an App 18 designed to help first generation college students connect with one another (see Deepa 19 Seetharaman 20 Curbs disrupt ‘startups, academic research and even political strategy”,” The Wall Street Journal, 21 Sept. 22, 2015, at B1, available at http://Www.wsj.com/articles/facebooksrestrictionsonuser 22 datacastalong shadow1442881332). They Wall Street Journal also reported in the 23 Facebook reached an unspecified compromise with dating App Tinder that permitted some form 24 of access to photos 0f mutual friends. 25 68. Graph API caused a drug addiction researcher to halt his research efforts, shut & Elizabeth Dwoskin, “Facebook’s Restrictions on User Data Cast a Long Shadow; In all, same article that over 5,000 businesses entered into special agreements with Facebook while 26 35,000 businesses had no opportunity t0 d0 27 unrelated financial consideration, including intellectual property, to Facebook in exchange for 28 special access to APIs. Tinder Complaint for Injunction and Damages so. For instance, Tinder provided highly valuable was one of seven dating apps that Facebook agreed to give its special 26 Mr. Damian Collins November MP 21, 20} 8 Page 2 In addition, as Facebook records, and I indicated yesterday, the documents I you seek include internal suggest that you seek t0 obtain them directly from Facebook. In Facebook is subj ect t0 the of your committee, whether DCMS 0r another committee has served a simiiar unredacted copies of sealed documents 0n Facebook and if so, how has the attached order, the Superior Court has also asked whether jurisdiction demand for Facebook responded. As the answers to the questions raised by the Superior Court implicate your committee, I urge you or someone on your behalf to provide answers to the Superior Court’s questions directiy to the Superior Court by Monday, November 26, 201 8 at 12 pm. Pacific Time. m1" / x David I’y yours, gg g Q S. I - = Godkin DSGzcam cc: Ms. Chloe Challender (By email to challenderc@pariiament.uk) Culture, Media & Sport Committee (By email to CMSCOM@parliament.uk) Joshua Lerner, Esq. (By email) Sonal Mehta, Esq. (By emaii) Catherine Kim, Esq. (By emaii) Service—SixliThree (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) creating Facebook Platform in this operatingvstem so you can run internet-equivalent to way: “We want to make Facebook into full applications,” something 0f an specifying that this development was the What Microsoft did with Windows, which allowed other developers t0 build applications for PCS. (See http://archive.fortune.com/2007/05/24/technology/facebook.fortune/ index.htm.) In fact, Zuckerberg’s first demonstration of Facebook Platform 71. Bill Gates in early May 2007. was purportedly Microsoft and Facebook had reached an agreement for Microsoft to purchase banner ads on Facebook in which Microsoft had guaranteed Facebook a minimum 0f $100 million per year through 201 1. Facebook Platform was positioned by Facebook to Microsoft 10 as the driving force behind meeting Facebook’s ambitious 11 announcement, Facebook had just exceeded 20 million active users and had raised only $37.7 12 million in venture capital investment. 13 sharing application 14 own internal 15 the time of the 16 72. was the statistics, to Even at this growth metrics. At the time of this modest point in Facebook’s growth, largest photo application on the Internet, and according drew more than twice the traffic of the next three photo sites t0 its photo Facebook’s combined at May 24, 2007 announcement of Facebook Platform. Zuckerberg announced that the three key elements of Facebook Platform were 17 “deep integration, mass distribution, and 18 would repeat throughout the day and 19 presentations. (See https://gigaom.¢om/2007/05/24/1ive—at—the-facebook-launchl.) Thus, 20 Zuckerberg made three 21 integration With Facebook’s social graph; (2) Developers 22 achieving mass distribution 0f their applications; and (3) Developers would have an opportunity 23 to build a business 24 73. new opportunity.” These were three key themes he for years t0 distinct representations come of fact: in numerous public conversations and (1) Developers would have deep would have Facebook’s support in on Facebook. By 8PM that evening, these key elements were memorialized 0n Facebook’s 25 website With the official announcement “Facebook Platform Launches”, stating 26 build applications that have the 27 applications, such as photos, notes, 28 hands. same access t0 integration into the social and events. . .. The power of mass You can gain distribution for your applications throth the Complaint for Injunction and Damages “You can now graph as Facebook distribution is now in vour social graph like never before. 28 Applications can be Virallv engineered to reach millions 0f Facebook users quickly and efficiently throth mass the profile, news feed, and mini-feed. distribution through the social graph with your application. transactions that you . With access .. t0 deep integration into the comes a new opportunity for you You are free t0 monetize your canvas pages through control.” (See site, and to build a business advertising 0r other “Facebook Platform Launches,” http://Web.archive.0rg/Web/ 20070706002021/http:l/developers.facebook.com/news.php?blog=1 &story=21). Facebook’s announcement thus represented that (1) Developers applications such as photos and notes as distribute applications through 10 applications through 11 have the “same access t0 integration” for Facebook employees; Facebook Platform; and (3) Developers are able t0 Developers are able to monetize Facebook Platform. Zuckerberg went 0n to say: “The social graph 74. (2) is our base, and we’ve built a 12 framework 13 environment. 14 applications 15 This 16 to 17 integration 18 information and together 19 long term to serving as a platform that enables Developers to build applications on a level playing 20 field because 21 is that is completelv optimized for developing social applications Within our . .. We believe that there is more value for everyone in letting other people develop on top 0f the base we’ve good could ever possibly provide 0n our own. . .. This is a big opportunity. and distribution and developers provide the applications. it is we benefit.” We help users share more Zuckerberg thus represented that Facebook was committed a big opportunity for everyone. Zuckerberg then announced that Facebook had been working With over 70 developers in anticipation 0f the launch of Facebook Platform, including 23 Lending Club, Microsoft, 24 Mobile USA, Warner Bros, Washington Post and many 25 leading Internet blogger, Mashable, at http://mashable.com/2007/05/24/facebook—f8- 26 live/#CIfbgFfPV5q.O.) 28 76. .. We provide the 22 27 . for us because if developers build great applications then they’re providing a service our users and strengthening the social graph. 75. we built than Around Obama for America, Photobucket, Red Bull, Amazon, Forbes, iLike, Twitter, Uber, Virgin others. (See live blog 0f F8 event from 4PM during Zuckerberg’s presentation, he announced five case studies from these early developer partners aimed Complaint for Injunction and Damages at showing how easy it was for all developers to 29 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com .bUJN LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 310951) zabrahamson@durietangri.com \OOOQQUI 10 2 1 7 Leidesdorff Street San Francisco, CA 941 11 Telephone": 4 1 5-3 62-6666 41 5-23 6-63 00 Facsimile: Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 V. 16 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, 20 21 DOES an individual; and Assigned for all purposes t0 Hon. V. Swope, Dept. 23 Raymond EXHIBIT 8 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope 1-50, inclusive, Defendants. FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 What is Facebook Platform? Facebook Platform is a development system that enables companies and developers to build applications for the Facebook website. where 0f Facebook’s 24 million active users can interact with them. Facebook all Platform offers deep integration in the Facebook website, distribution through the social graph and an opportunitv t0 build a business. * * * \OOONQUl-h What’s new in Facebook Platform? We’ve been adding functionality since Facebook Platform first shipped in beta in August 2006. With the latest evolution of Facebook Platform however, third-partv developers can now create applications on the Facebook site with the same level of integration as applications built bV internal Facebook developers. Now developers everywhere have the Facebook applications as well as the potential for mass ability to create Facebook site, graph and new business that deeply integrate into the distribution through the social opportunities. * * * 10 11 Whv did Facebook launch Facebook Platform? Our engineers have created great applications for Facebook, but help us we reco Qnized that third—partv make Facebook an even more powerful social utilitv. gives developers everywhere the tools to create applications that 12 13 14 15 16 17 18 19 21 22 we iust wouldn’t have the resources to build in-house, and those applications make Facebook an even better way for our users to exchange information. Developers also benefit from the Facebook Platform as it gives them the potential to broadly distribute their applications and even build new business opportunities. >I= * * What kinds 0f applications can be built on Facebook Platform? The kinds of applications developers can build on Facebook Platform are limited only by their imaginations. Because applications are based on the Facebook social graph they can be more relevant to users, keeping people in touch with what and Whom they care about. We’ve already seen a variety of applications built bV our developer partners, including those for sharing media files, book reviews, slideshows and more. Some of the possibilities of Facebook applications are illustrated in the Facebook Platform Application Directory, available >l< 20 developers can Facebook Platform >X< at http://facebook.com/apps. >X€ Are there anv restrictions on what developers can build? Developers are encouraged to exercise their creativity when building applications. Of course, all gpplications are subiect to the Terms of Service that every developer agrees to, which include basic requirements such as not storing anV sensitive user information, not creating any offensive or illegal applications, and not building 23 24 >x< 25 26 27 =1: :1: How will Facebook deal with applications that compete with one another 0r even compete with Facebook—built applications? We welcome developers with competing applications, including developers whose applications might compete With Facebook—built applications. features. 28 And users will alwavs have the power t0 Facebook’s report any applications that compromise trusted environment, keeping our users’ information safe. anything that phishes or spams users. ManV applications are likelv to offer similar We’ve designed Facebook Platform so that applications from third-partv developers are on a level playing field With applications built bV Facebook. Complaint for Injunction and Damages 31 Ultimatelv, our users Will decide Which applications thev is >l< these applications that Will * become find most useful, and it the most popular. >X< Can Facebook applications include ads? We want to enable developers to build a business 0n their Facebook applications, so we’re giving developers the freedom monetize their applications as theV like. Developers can include advertising 0n their applications’ canvas pages, though n0 advertising Will be allowed Within the application boxes that appear Within user profiles. to * * * OONQUI-P Are vou going t0 share revenue with developers? While revenue sharing is not ways to share advertising revenue with developers. The version of Facebook Platform already lets developers monetize their applications as they like, Whether they choose t0 offer it for free 0r to build a business on their application. available at launch, we are looking into \O 10 11 79. In sum, these representations by Facebook reflected the following explicit promises to Developers: 12 a. Developers would have “deep integration”; 13 b. Developers would have access t0 the “social grap 14 c. Developers would have “an opportunitv to build a business.” 15 d. Developers would have the same level of integration and ability to develop apps in the same manner as internal Facebook developers; 16 17 e. f. 20 21 Facebook shall provide adequate tools necessary for Facebook shall help Developers achieve broad distribution of their applications; g. So long as applications abide by Facebook’s Terms of Service, Developer 22 Policies and other binding 23 participate in 24 applications built 25 h. 0n its 27 Facebook Platform; its Competing applications to the agreement With Facebook, phish or users, contain offensive material, or break the Complaint for Injunction and Damages in order to operating system; Any application that does not Violate spam i. commitments Developers make Facebook Platform, Facebook will remain neutral as 26 28 Developers to build their applications; 18 19 ”; are law shall be accepted in welcome on Facebook’s operating system, 32 HOUSE David 01: Godkin, Esq. S. Birmbaum Godkin 280 COMMONS LIJP Summer Street Boston Mn“ MA 02210 .m w United Sta tes 0f America ,mwxwmw. Bv email onlv w 23 Dear November 2018 Mr Godkin RE: Orders for documents served by the Digital, Culture, Media and Sport Committee of the House of Commons on 19 and 21 N0vember 2018 ‘ We have been instructed to respond f0 your letter 0f 21 November 2018 to Damian Collins MP, Chair 0f the Digital, Culture, Media and Sport Committee, which raises a number of questions 0f United Kingdom law andParliamentary procedure. We regret that we are unable to brief the courf directly; it would be improper for us to do so as standing in the case and the l-louse 0f Commons is not within the However, we address your questions below, in the hope that will be of assistance in- preparing Six4'I'hree's brief. We do not address we have no jurisdiction of the court. this letter those matters that- are clearly questions 0f US law, 01‘ which are matters of fact. DCMS have to overrule the Coart’s orders without fii‘st seeking What nuthorif? does Lelief from the courfi l ' DCMS is a select committee of the House of Commons, the elected House of the United Kingd om Parliament. The House 0f Commonshas unfettered powers t0 call for ”persons, papers and records” t0 ‘enable it effectively to exercise its core functions and debate. By the Standing Orders 0f the louse 0f Commons, that power ['0 call for persons, papers and records is delegated t0 a number 0f Select Committees, including the DCM'S Committee. [Irskz'ne Mny‘ says (p.81 9), ”There is no restriction 0n the power 0f committees t0 require the production 0f papers by priva te of scrutiny ' l Erskine May’s Treatise on the Law, Privilege, Proceedings and Usage of'ParJiament. References are lo [he 24‘“ edition (20! House T: l), of Cd. Sir Malcolm Jack KCB PhD. Commons Ribhmond House London SW1A 0AA 020 7219 3776 F: 020 7219 2479 E: salimis@parliament.uk , room, including 65 companies that have spent the launch of Facebook Platform. Facebook on top of what Mark — the their real connections to few weeks developing applications anyone to develop applications for inviting calls their ‘social graph’ and track of real people is last its own few simple each other. given Facebook twice as applications (like many photos their users core 0f their service Which basically keeps . .. [Facebook’s] growth will be dramatically accelerated by the Platform announcement. If Facebook per day with for the its is adding 100,000 new users photo sharing, a very simple service that has what as all other photo sharing sites combined), happen when thousands 0r tens of thousands of developers start will building apps in Facebook and marketing them to more users? Facebook will reach 50 million, then 100 million, then 200 own 10 million users, and beyond. Rather than continue to try to develop features Within 11 proprietary, closed network, basically keeping all of its users to itself. 12 the concepts that are so brilliantly discussed in 13 school business types), and has chosen to open up 14 in. 15 and user connections, Hand even publishing 16 0f Facebook users. .When Facebook has 100 million users, in the not too distant future, having 17 the ability to develop an 18 Google’s 19 largest-social-network-in—the-wor1d/.) 20 . Application developers can now have . its .Facebook intuitively gets Wikinomics (which are so non-intuitive its network for all to to old participate access to core Facebook features, such as user profiles to the News Feed, all With the control and permission . App own home page.” in their system will almost be like being able to get a link (See http://Www.paulallen.net/prediction—facebook-will-be-the- T0 Developers, Facebook Platform 81. 21 system, but an 22 the dominant on economy that could reorganize represented not just an entirely new operating the entire Internet (potentially replacing form of organizing the World Wide Web Google as and replacing Windows and Macintosh as ‘ The sentiment among 23 the primary operating system for developing software applications). 24 Developers, as widely held throughout the industry and reported by popular sites like TechCrunch 25 and the Wall Street Journal, was that 26 going to be 27 p1atform-they—are-the-anti-myspace/ and http://Www.wsj .com/public/article/ 28 SBl 1797 1 397890009 1 77—wj dKijAqS_9ZwaiRp_CoSqva_20070620.htm1). left if you weren’t building for Facebook Platform, you were behind (see http://techcrunch.com/2007/051’24/facebook—launches-facebook- Complaint for Injunction and Damages 34 Facebook and the Developers Who were selected to 82. of Facebook Platform quickly and create a level of comfort instance, set out to to induce participate in the private beta make Developers comfortable With this them to on May 29, 2007, just five_days after participate in this entirely grandiose Vision new industry. For Zuckerberg’s announcement 0f Facebook Platform, Venture Beat, the popular tech blog, interviewed iLike founder, Ali Partovi, also an early advisor Who was and shareholder of Facebook: me about your experiences With Platform so far. You’ve been working on putting iLike on Facebook for several months now. Yet on the integration since Friday morning, there have been bugs and other issues on iLike’s end. What’s the status? Interviewer: Tell KOOOQQ 10 Partovi: So, first to give you the back—story 0n 11 how we got involved. Over the past several months, we’ve pushed and pushed with Facebook asking for some of exclusive relationship. They repeatedly said they won’t do an exclusive relationship but would rather create a level playing field where we could compete With other third parties. We then gave up a bit, and we were actually a bit late to sort 12 13 the 14 game learning about the platform in detail. But When we finally did get access, our President, Hadi Partovi (my twin brother) took very little time to decide this strategic priority. That was a month ago. We re-prioritized everything was a huge 15 16 else, and moving our people off other proj ects onto this. First two 0r three few more, and by the end it was a huge group of engineers pulling started people, then a back—to~back all-nighters for a week-long sprint to the launch. 17 Interviewer: What made iLike think that Facebook Platform would be a big deal? 18 What 19 Partovi: Hadi has a strong background in the concept of platforms...at 24 he became the head of product management in the IE group at Microsoft, and was a 20 21 22 stood out about it? key player in the browser wars. A month ago, even though the Facebook Platform wasn’t fully fleshed out, he saw just from the early beginnings of it that this could redefine web development. What he said was, ‘in the history of computing, there 24 was the personal computer, there was Windows, there was the web, and now the Facebook Platform’. You can imagine that I and most our company was pretty skeptical. But he makes these calls so we followed him. As to What stood out, it’s a combination of three things: (1) the technology itself — Facebook Platform, like 25 any platform, offers the developer building blocks to build apps faster than they could if they were starting from scratch, and to tap into a rich source Of data & 23 would never otherwise be available; (2) the potential for Viral to the way the Facebook news feed works, an app can spread across the community entirely by Viral spread, as friends get notified when one person capabilities that 26 27 28 spread — due adopts it. . .this essentially bypasses the idea of trying to standalone, because Facebook Complaint for Injunction and Damages is itself make your app ‘Viral’ as naturally viral; (3) the rhetoric a from the 35 What are 319:1de .w .. Mr Kramer to respond or obiect to the DCMS letter no procedure for an appeal against an order 0F a committee, 0r to enable a person who receives an order to respond t0 it. Once made, it must be complied with. Mr Kramer was placed in a position where he was required to obey the order or risk being found in contempt of Parliament. There Mm. the procedures for is .. vmmw- What are the contempt procedures for DCMS for non—compliance bV Mr Kramer? . H. q Mr Kramer had produce the documents after being ordered 'to do soby the Committee, the Committee would have reported that failure to the House of Commons as a matter of potential contempt 0f Parliament. ”Contempt” is not anywhere defined, but Erskine May says (p.837), ”Acts or omissions which obstruct or If failed to committee or any of its members or officers, or which tend, produce such results, may be treated as a contempt: of the House and investigated and punished, as appropriate”. May lists disobedience to an ordeg‘ of a committee as a contempt of the House (p.839). impede the work of a directly or indirectly, f0 ’ louse would then have considered a motion to refer Mr Kramer’s case to the Committee of Privileges. 1f the motion were passed the Committee of Privileges would have considered the matter and would, if it considered it appropriate, have proposed a sanction on Mr Kramer for his contempt. 'l‘he powers 0f the House Of Commons t0 punish for contempt are not defined by statute, and have in the past included imprisonment, fines and admonishment either at the bar 0f the House or in absentia: In modern times the powers have been'exercised sparingly. 'I‘he I I Yours faithfully Speaker’s Coufisel Platform, it launched a Developer Feed and Wiki on its website to educate the Developer community on the benefits of Facebook Platform and help them more seamlessly capital invest their and resources towards building applications on the Facebook Platform. Facebook also held contests with prizes for developers. Zuckerberg continued to emphasize the revolutionary impact Facebook Platform would have 0n the 17, Internet as a whole during this time. For instance, on July 2007, Zuckerberg was interviewed by Time Magazine: Time: the frenzy surrounding Facebook seems dramatically over the past several months. to have What do you intensified think quite behind the is company’s newfound cachet? Zuckerberg: I think the most recent surge, at least in the press, is around the launch of Facebook Platform. For the first time we’re allowing developers who don’t work at Facebook to develop applications iust as if theV were. That’s a big deal because it means that all developers have a new of doing business if they choose to take advantage of it. There are Whole companies that are forming Whose only product is a Facebook Platform application. That provides an opportunity for them, it provides an opportunity for people who want to make money by investing in those companies, and I think that’s something that’s pretty community” (see http://content.time.com/time/ exciting the t0 business 10 11 an 12 13 14 business/article/O,8599,1644040,00.htm1). 15 86. 16 In these public statements t0 Time Magazine, Zuckerberg made Facebook would allow developers at least four were 17 distinct promises: (1) 18 developers employed by Facebook; (2) Facebook would offer developers on Facebook Platform a 19 new way of doing 20 could be formed Whose sole business activity was within the Facebook Platform ecosystem; and 21 (4) 22 make money by 23 business; (3) to build applications as if they Facebook would support an ecosystem where Facebook would support an ecosystem where investors could reasonably 87. entire rely companies on Facebook to investing in companies solely devoted t0 the Facebook Platform ecosystem. Then on September 17, 2007, Facebook went even fithher by setting up a $10 24 million fund exclusively devoted to providing grants t0 Developers t0 build on Facebook 25 Platform. Facebook and 26 were offering free money t0 build applications on Facebook Platform with the only commitments 27 being that the grantee use the 28 would have the opportunity t0 invest first its partners in the Complaint for Injunction and Damages money to fimd would not even take equity in the Developer; they build 0n Facebook Platform and that Facebook’s partners if they were interested in doing s0. When asked why 37 Facebook was forming this fund, application ecosystem. By it replied: “We are forming this fund to help decreasing the barrier to start a company, grow the Facebook we hone to entice an even mgr @0133 0f people to become entrepreneurs and build a compelling business on Facebook Platform. We hope this is also a funding model that other venture capitalists Will follow” (see http://500hats.typepad.com/500blogs/2007/09/facebook-announ.html). OONONU‘I-b Facebook’s conduct in providing free money to Developers to build applications 88. on Facebook Platform implies a specific promise build a compelling business \O stability it Will support Developers’ opportunity to on Facebook Platform and that it is committed Iong-term to the 0f Facebook Platform as an ecosystem that can support substantial investment and Where who participate in that ecosystem can expect a level playing field 10 investors 11 generate a return on that investment. 12 that 89. Indeed, others were quick to follow Facebook’s lead in upon which to making investors new industry with large sums of capital. Numerous 13 comfortable with supporting this 14 capital 15 September 2007, Wired Magazine reported the following: “And by turning 16 for 17 industry, just like Bill Gates did with 18 for their wares or collect the advertising revenue they generate, Zuckerberg set 19 every programmer t0 get paid for their 20 scrambling to fund almost anyone 21 https://archive.Wired.com/techbiz/startups/news/ZO07/09/ff_facebook?currentPage=all). firms new 22 or fimds were soon established that invested applications, 90. solely in applications. In itself into a platform Facebook has launched a whole new branch 0f the software development MS-DOS who efforts. in the 19805. By allowing applications 24 terms, 25 distribution system ever.” 26 the announcement. 27 of the announcement to 58 million, a 28 100,000 Facebook Platform quickly became, The up a system for has an idea for a Facebook application” (see efforts in inducing on Facebook Platform and promising them access 23 developers to charge Now venture capitalists like Bay Partners are As a result of Facebook’s tremendous new users Facebook venture in the overall traffic t0 to the Developers to build Graph on neutral and equal words ofAdWeek, “the most Facebook increased by Viral software 33% Within three weeks of By December, the Facebook user base had grown from 24 million at the time 141% increase. Where Facebook had been adding about per day prior to Facebook Platform and the input of Developers Complaint for Injunction and Damages it catalyzed, it 38 was now adding more than 250,000 users per day (see 1540). 91. While it touted Facebook Platform to Developers around the world, Facebook did not state or even imply that access to Facebook Platform might later be rescinded or provided on an unequal basis. In fact, Facebook repeatedly promised that access would be provided on an equal basis relative to Facebook and other developers. However, during this time, Facebook, in fact, provided special, unequal access to the Social Graph to large Developers who were close partners of Facebook and made substantial unrelated advertising payments to Facebook to the systematic disadvantage of smaller Developers. This fact was not made known to or reasonably discoverable by the Developer community at large, including Styleform, at the time preferential access was being given as early as 2007. 92. By the end of 2009, in large part due to acebook Platform?s success in inducing Developers to make investments in this new ecosystem, Facebook?s user growth had skyrocketed from 24 million active users at the time of the announcement of Facebook Platform in May 2007 to over 350 million users in December 2009. 93. In late 2009, Facebook released a document Look Back on the App Economy of Facebook in 2009,? in which it cited numerous success stories. For instance, Facebook app Play?sh was acquired by Electronic Arts that year for no less than $275 million. Watercooler, a leading fantasy sports application on the Facebook Platform, successfully raised $5.5 million to fuel its growth. Weardrobe was acquired by Like.com for an undisclosed sum. The document, published by the Director of the Facebook Developer Network, ended: ?We?d like to say thank you to the developers and entrepreneurs who make up the Facebook Platform ecosystem and congratulations on your accomplishments in 2009? (see 20091223 05 5 629/http &story=3 51). 94. Because acebook?s user growth skyrocketed from 2007 to 2009 and Facebook was becoming the dominant Platform on the Internet due to its Developer ecosystem, Facebook executives began secretly to discuss ways to undermine the success of Developers by promoting Facebook?s own products to users and give Facebook?s own products a competitive advantage Complaint for Injunction and Damages 39 DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlemer@durietangri.com LAURA E. MILLER (SBN 271713) lmiller@durietangri.com CATHERINE Y. KIM ('SBN 308442) ckim@durietangri.com ZACHARY G. F. ABRAHAMSON (SBN 3 1 095 1) zabrahamson@durietangri.com KOOOQON 2 1 7 Leidesdorff Street San Francisco, CA 941 11 4 1 5-3‘62-6666 Telephone: Facsimile: 415-236-6300 Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier 10' Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 SIX4THREE, LLC, a Delaware limited liability Case No. CIV 533328 company, 14 Plaintiff, 15 V. 17 FACEBOOK, INC., a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 18 JAVIER OLIVAN, an individual; 20 21 Raymond 9 TO THE DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE EXHIBIT 16 19 Assigned for all purposes to Hon. V. Swope, Dept. 23 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, Defendants. Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 22 23‘ 24 25 26 27 28 DECLARATION OF LAURA E. MILLER IN SUPPORT OF DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION / CASE NO. CIV 533328 some cases access user data With the consent of users. Facebook represented 98. that Developers could only access capabilities (referred to as “endpoints”) With explicit permission from Facebook users. Examples 0f endpoints include a user’s birthdate, favorite songs, or photos. touted several features 0f Graph API During the announcement of Graph API, Facebook endpoints in order to increase its appeal to Developers, including Styleform. N0 Specifically, at the F8 Conference 2010, Zuckerberg announced: “The open graph 99. W puts people at the center of the web — it means that the web can become a meaningfully semantic connections between people. .Three years ago . at set of personally and we launched our first F8 10 Facebook Platform, and together we 11 today will be the most transformative thing we’ve ever done for the web. .Use the open graph to 12 make 13 We’re gonna be announcing a few pieces of new technology that make 14 the 15 graph. implemented on top of an open standard” (see https://WWW.youtube.com/watch? 16 v=4SOcRKINiSM). 17 100. all started an industry. .We think what . we have to show you . it so that people can have instantly social and personalized experiences everywhere they Graph API — makes it this possible completely simple to read connections to Facebook’s — the first ,qo. is map of the . After Zuckerberg completed his keynote at F8 2010, Bret Taylor, a Facebook what Graph API meant “With Graph API every 18 executive, further explained 19 obiect in 20 need 21 download 22 single obiect in Facebook. 23 gonna make you download a new SDK. You 24 download a connection With a new name. A11 of the code vou alreadV wrote 25 perfectly. This is a really significant 26 appreciate. 27 the capability to search over 28 bunch of cool new applications and I’m to for Developers: Facebook has a unique ID, whether that obiect is a user profile, event. etc.. . .Vou iust download an obiect With a new ID or download a connection With a new name. So mv friends you iust need to So let’s download /btavlor /friends. say Facebook launches a iust .. And this t0 applies for every new feature next year. We’re not need to download an obiect with a new ID or change for our new platform that I’m will continue to sure work you can For the first time Via the search capability of the Graph API, we’re giving developers Complaint for Injunction and Damages all the public updates on Facebook. Ithink this really excited t0 see is gonna lead where people go with this. . .. to a We’ve 41 built our core of the Facebook Platform from the ground up With simplicity, stabilitVLand the graph in mind. This graph that for the first time we’re building together” (see https://www.you tube.com/watch?v=4SOcRKINiSM). Facebook executive Bret Taylor thus promised 101. Graph API obj ects in a simple the accessible obj ects manner (“you were ubiquitous iust need to (“this applies for that: (1) Developers could access download an obiect with a new ID”); (2) every single obiect in Facebook”); (3) the “a access would be sustained and could be relied upon by developers (“A11 of the code vou already wrote will continue to work perfectly. .We’re not gonna . Software Development Kit (or “SDK”) make vou download a new SDK”) (a a set of software development tools that allows for the is 10 creation of applications for a particular operating system); (4) Developers could search over all 11 obj ects for all public updates 12 stability and the on Facebook; and ability to access (5) Facebook Platform guaranteed simplicity, and help build the Graph with Facebook. The software industry uses a common and well—known convention of referring 13 102. 14 software by version 15 versions of software and to identify a particular version of the software. 16 announced the launch of Graph API, 17 and did not specify a term for the 18 term for Graph API in order to give Developers the impression that 19 available to 20 industry. 21 change or that 22 respect to 23 part to continue to entice developers 24 money and them number (e.g., version 1.0, 2.0, it etc.) to signify did not refer to Graph availability to build a Viable business, API t0 the existence of separate When Facebook as having different versions of Graph API. Facebook did not specify a version or it which takes many years would indefinitely remain to do in the software Facebook thereby signified that Graph API’S open, equal and neutral nature would not all if it did change, such change would occur 0n neutral, equal and fair terms With Developers. This representation was of course a deliberate decision on Facebook’s by conveying a sense 0f security around effort building applications on Facebook did not represent its investing time, revolutionary platform. had reserved the 25 103. 26 of the social data in 27 competitive terms. In fact, Facebook repeatedly represented that the unique value of its operating 28 system relative to Microsoft or Apple was that its Graph API or that Complaint for Injunction and Damages that it it right to terminate access to all could provide such access 0n unequal or anti- it was inherently social and open. The idea that 42 9. 10. PROFESSIONS CODE §§ 17500 VIOLATION 0F BUSINESS AND PROFESSIONS CODE §§ 16720 VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 17200 A JURY TRIAL DEMANDED QO‘xUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for Injunction and Damages ii things: the first is filling out your timeline, and the second through your friends.” Facebook thus made September 24, 2011 announcement: (1) is helping vou discover at least four distinct representations Facebook has a long-term commitment new things of fact in to the this Facebook Platform and ensuring a fair playing field for developers and has had such a commitment for over four years now; (2) Facebook is committed to extending the Facebook Platform to provide developers with more ways t0 innovate and build businessas; (3) in keeping with this long term ' commitment, Facebook will continue make new kinds of social apps possible; and to help (4) \OWNON Facebook is in particular focused Facebook Platform 10 106. 0n helping you discover new things through your will enable developers seeking to Facebook stated that the extension do friends and so. of the Graph API at F8 2011 was simply the 11 next step in Facebook’s stated long-term commitment t0 serve as a platform for other developers, 12 a commitment that every statement and action 13 years) reaffirmed without a 14 to accelerate the 15 created 232,000 jobs in the 16 economy. 17 day 18 TV show in the history of television). By April 2012, 19 Apple App Store were 20 -developer-p1atform—infographic/#fDCquCag5qr). 21 reliance 23 1 24 25 26 May 2007 (a period of well over 4 The extension of the Facebook Platform continued built. EU alone, amounting to By February 2012, 250 107. doubt. took since massive economy Facebook had (that is 12 times 22 shadow of a it By January 2012, Facebook Platform had $15.3 billion of value to the European million people were playing games on Facebook Platform each more people than the average viewership of American built on Facebook Platform In large part due to the 0n Facebook’s Idol, the highest-rated 7 0fthe 10 highest grossing apps in the (see http://mashable.com/2012/05/24/facebook work of Developers, including Styleform, performed stated long—term in commitment to Facebook Platform, Facebook exceeded billion users in 2012. VII. THE FTC FINDS IN 2011 AND 2012 THAT FACEBOOK HAS DESIGNED ITS PLATFORM IN A MANNER THAT VIOLATES PRIVACY AND ORDERS FACEBOOK TO FIX ITS FLAWED DESIGN 108. On or about July 27, 2012, the United States Federal Trade Commission (“FTC”) 27 entered a Decision and Order against Facebook (the 28 following a consent agreement between Complaint for Injunction and Damages FTC “FTC Order”). and Facebook. The The FTC Order was entered FTC Order stated that the . . FTC 44 had reason to believe Facebook has violated the Federal Trade Commission Act. The FTC Order provided, among 109. other things, that Facebook and its I representatives “shall not misrepresent in any mannér, expressly or Which it maintains the privacy or security of covered information. . “covered information” to include an individual consumer’s photos, Order also provided that Facebook and expressly or its implication...the extent to by by . implication, the extent to The FTC Order defined .” among other things. The FTC representatives “shall not misrepresent in any manner, Which [Facebook] makes or has made covered OOQQ information accessible to third parties.” The FTC Order was based on a complaint the FTC filed 110. \O in 2011 against Facebook 10 (“FTC Complaint”) 11 three ways: (1) 12 user downloaded (“user data”), with the privacy settings for data the user shared With friends in 13 apps (“Apps Others Use” settings) the friends downloaded (“friend data”) (see, 14 Complaint, 15 were not aware 16 and 17 Facebook could funnel more data to Developers under the guise of user consent (see 18 (3) that alleged by separating the privacy at 4-7); (2) settings for data a user shared by hiding the Apps Others Use that these settings by making the default 111. Facebook Platform violated user privacy by design were distinct setting for sharing data At this time during 2011 and 2012 and with friends in apps the settings to ensure from the main privacy in at least e.g., FTC most Facebook users settings (see Id. , at 4-9); with Apps Others Use set to “on” so at all Id. , at 7—1 1). times thereafter, there existed a fourth flaw unidentified by the FTC that significantly exacerbated the damage caused 19 intentional design 20 by the three flaws identified 21 privacy settings for data transmitted Via Facebook’s APIs to Developers, implicitly signaling to 22 Developers that 23 problematic design features identified by the FTC, this turned Facebook Platform into an 24 unregulated firehose of data transfers without any ability for users to consent 25. manage, the privacy 26 firehose that violated user privacy was in Facebook’s business interest since 27 to attract 28 had no control over all in the friend data settings more Developers this FTC Complaint: namely, Facebook deliberately failed to pass was public and could be treated Combined with the to, or Developers t0 of users in a responsible fashion. Setting up the Platform as a initially to expand its design by Facebook and Complaint for Injunction and Damages as such. user base more many were it enabled Facebook rapidly. Importantly, Developers not aware of this design until they 45 Plaintiff, Styleform IT (“Styleform” or “P1aintiff’), alleges as follows based on information and belief, except Where based 0n personal knowledge: OVERVIEW OF THE FACEBOOK PLATFORM EXTORTION SCHEME I. 1. This matter concerns a series of fraudulent and anti—competitive schemes designed and effectuated by Defendant Facebook, OOQQUI-P Inc.’s (“Facebook”) Chief Executive Officer Mark Zuckerberg (“Zuckerberg”), with the intentibn of deliberately misleading tens of thousands of software companies, including Styleform, (collectively, “Developers”) into developing applications that generated substantial user growth and revenues for KO 10 11 grow from 20 million active users in 2007 Facebook to approximately 2.23 billion in order to help by the second quarter of 201 8. 2. From May 2007 May 2015, Facebook executed until at least a series of malicious 12 anti-competitive bait-and-switch schemes in which 13 misrepresentations, misleading partial disclosures, and false inducements to Developers, 14 including Styleform, to induce 15 Facebook’s operating system, Facebook Platform (“Facebook Platform Extortion Scheme”). 16 These misrepresentations and misleading 17 statements, announcements, Videos and policies announced 18 executives and were posted 19 conferences, hackathons and other events. In 20 Developers would have the opportunity, inter 21 applications organically, to compete 22 offered in 23 These representations and misleading 24 field were made repeatedly over seven years in private and public 25 releases 26 Facebook employees, and conferences, such 27 28 it them to it engaged in a campaign of invest capital and resources in building applications partial disclosures by Fabebook on on a its Facebook Platform on terms equal were made in the form of official by Zuckerberg and other Facebook official website, as well as training sessions, sum and substance, alia, to build level on and fair it was thereby represented that a business and distribute their playing field, and to access the APIs to all other Developers partial disclosures and to Facebook itself. around equal access and a level playing settings, such as official press and announcements on Facebook’s website, Developer training sessions managed by 3. as Facebook’s annual Developer conference, F8. These misrepresentations and misleading Developers, including Styleform, were widely partial disclosures were directed at known in the Developer community, and were business from collapsing in late 2012 and early 2013. In short, Zuckerberg weaponized the data of one-third 0f the planet’s population in order to cover up his failure to transition Facebook’s business from desktop computers to mobile ads before the market 2012 and 2013 financial represented QOUI-b proj ections were false, due to became aware Facebook’s that Facebook having not accurately how quickly users were transitioning their time on the Internet from desktop computers t0 mobile phones. Contrary to 116. 2015, it its public representations, When Facebook restricted the Graph API in did not do so for the purpose of enhancing user privacy. Rather, Facebook had previously hid privacy controls and set the default sharing setting to “on” in Violation 0f the more data to Developers FTC Order in Facebook’s extortion scheme that tied 10 order t0 funnel 11 Platform 12 could have complied with the'FTC Order, in 2012, by: (1) not hiding the “Apps Others Use” 13 privacy page; (2) turning the default setting to “off”; and (3) by passing privacy information along 14 With the data 15 and Which management willfully and deliberately decided not to fix in Violation of the 16 Order. Instead, Facebook expanded the very Violations at the center of the 17 leading up t0 the 18 Developers various attractive software markets. 19 API that agreed to access to unrelated purchases in Facebook’s mobile advertising products. Facebook it sent through FTC its APIS, an issue reported by Facebook employees for many years FTC ' FTC’S complaint Order for the purpose of improperly oligopolizing for itself and other large Thus, the true purposes of restricting Graph API, in 201 5, were t0 distract from 117. 20 Facebook’s previous four years of willful privacy Violations, by casting 21 Victim along With users of wrongful Developers, and to provide cover for the last step in 22 extortion scheme: shutting 23 extortionary 24 Facebook off for the continued access 25 actions, users 26 applications they trust, but only with 27 Facebook large sums of money 28 of strategic value to Facebook. down the apps 0f Developers Who had itself as an unwitting either not agreed t0 its demands 0r Who,71ike Styleform, had not even been given the “opportunity” now have to data that they less control over this data. Complaint for Injunction and Damages its to pay had been promised. As a result of these They are not permitted t0 share Facebook and a small group of Developers it that With other pay in unrelated advertising purchases or other financial consideration 47 118. Not only does FTC this situation Violate the Data Protection Regulations 0f the European Union. And, conduct, it Will constitute a Violation 0f a privacy Order, it is in Violation 0f the General if Facebook is not enj oined from this law enacted in the summer of 201 8 by the State of California which takes effect in 2020. VIII. 119. INSTEAD OF FIXING THE FLAWED DESIGN, ZUCKERBERG IMPLEMENTS AN EXTORTION SCHEME THAT WEAPONIZES USER DATA TRANSMITTED IN OVER 50 PUBLIC APIS, SHUTTING DOWN TARGETED COMPANIES UNLESS THEY MAKE MINIMUM PURCHASES IN FACEBOOK’S NEW MOBILE ADVERTISING PRODUCT Beginning in 201 1, Zuckerberg held discussions and meetings With Cox, Olivan, Facebook executives Andrew 10 and Lessin 11 Bosworth, and Colin Stretch) to determine 12 the time, 13 using them instead 0f their desktop computers. Facebook’s user engagement and advertising 14 revenue began t0 plummet by the middle of 2012 as a result 0f this transition to mobile phones. (in addition to other Sandberg, Daniel Rose, build a business model for mobile phones. At Facebook generated no revenues from mobile phones, but people were increasingly 120. 15 how to like Sheryl By the middle of 2012, Zuckerberg asked his executives to prepare multiple with corresponding financial models regarding how to leverage Facebook Platform, the 16 strategies 17 Developer ecosystem, and user data to transition Facebook’s business model t0 mobile phones. 18 Sandberg, Lessin, Rose, Cox, Olivan, Purdy and others collaborated 0n this strategy and 19 modeling 20 (Twitter’s model); taking a revenue share 21 and a model that would formalize the Reciprocity Policy Zuckerberg had been testing informally 22 With certain companies since 201 1. effort, 121. 23 Which included: charging Developers for access to from Developers’ sales APIs with a public price (Apple and Google’s models); Zuckerberg, Sandberg, Cox, Lessin and others presented these various options to Board of Directors August 2012, which time was already them and 24 the 25 neutral mobile platform 26 quickly enough to save Fac‘ebook’s advertising business from experiencing significant long-term 27 damage. 28 Policy formally, and this decision was communicated t0 the top Platform executive, Vernal, By the fall in at it clear to that the fair models of Twitter, Apple and Google would not accelerate revenues of 2012, Zuckerberg had chosen the option of implementing the Reciprocity Complaint for Injunction and Damages who 48 access t0 publicly available APIs unless: (1) the Developer, purchase price below its fair market value; (2) the itself, was sold t0 Facebook for a Developer purchased large amounts of unrelated advertising from Facebook; (3) the Developer transferred intellectual property over to Facebook; and/or (4) the Developer fed all of its data back to Facebook, Where it would then be available to the Developer’s competitors, placing the Developer’s business at great risk. At the personal 7. its direction of Zuckerberg, perverse incentives in serving as both the referee world’s largest software economies. misrepresentations, of, By making a series by 2009, Facebook took and largest participant full in, advantage of one 0f the of misleading partial disclosures and Facebook irreparably damaged tens of thousands of Developers in order t0 Facebook executives discussed backing down 10 unjustly enrich Defendants. Further, in 2009, 11 publicly on their promise 0f a level competitive playing field. 12 down on these promises, 13 continued to misrepresent Facebook Platform as a level competitive playing field. They decided internally to back but concealed this decision from Developers, including Styleform, and In 2011 and 2012, Zuckerberg extended this concealment campaign and decided 14 8. 15 would be 16 shut 17 APIs, including the 18 (“Graph API endpoints”). Styleform’s business and the business of many Developers depended 19 on these APIs. Working 20 Developers that were close partners, Zuckerberg implemented a plan to deny access to 21 applications 22 competitive With current or future products offered by Facebook or Facebook’s close partners. 23 Defendants’ anti-competitive conduct was undertaken in concert with other large Developers to 24 oligopolize various software markets that Defendants continued to represent 25 fair 26 in Facebook’s best interest to no longer compete with down their businesses by restricting their access full friends list, friends to many Developers and to, it instead, dozens of the most popular Platform permissions, newsfeed APIs, and other endpoints in concert with other Facebook executives and employees and other large on Facebook Platform on the primary or exclusive basis many that these applications were would operate on and equal terms and a level competitive playing field. 9. Specifically, in 2011 and 2012, Zuckerberg held discussions With Facebook 27 executives Chris Cox, Javier Olivan, Samuel Lessin, Sheryl Sandberg, 28 Stretch and others in Andrew Bosworth, Colin which Zuckerberg made a decision t0 weaponize Facebook Platform using a Complaint for Injunction and Damages 3 https://web.archive.org/web/2OI30216042126/https://developers.facebook.com/policy/). Vernal had in fact planned to announce the API from doing so in order restrictions but t0 induce further reliance Zuckerberg explicitly prevented him and gain additional extortion leverage over Developers from 2013 through 2015. From 2012 125. on, Defendants actively concealed material facts, misleading partial disclosures, and Zuckerberg had in fact made in enforcing all made materially late made only false statements regarding the decisions 2012 concerning the Reciprocity Policy. Defendants began aspects 0f Zuckerberg’s decision, despite Facebook having only announced certain aspects of the decision While misleadingly withholding others. Defendants’ conduct in this regard 10 11 was undertaken 126. in concert With certain large Developers who would benefit from such changes. Zuckerberg sought the guidance and active assistance of the other individual 12 Defendants t0 execute key components of the extortion scheme. Zuckerberg tasked Vernal with 13 implementing an engineering plan to remove API access to tens of thousands of potentially 14 competitive applications and to manage a Whitelisting and blacklisting software system that 15 automated 16 this capability. 127. Zuckerberg tasked Lessin, Cox and Olivan With engaging other departments at plan to show which categories of applications were competitive 17 Facebook around executing 18 with Facebook’s current or future products in an effort t0 ’expand the extent to which Facebook 19 could consider a broad range 0f applications to be directly competitive with Facebook and 20 Facebook’s close partners. 21 128. this In the spring of 2013, Zuckerberg and Lessin tasked Archibong and others to 22 oversee audits by Facebook employees Simon Cross, Jackie Chang and Konstantinos 23 Papamiltiadis, 24 the type of app they built and their level of competitiveness to Facebook. Defendants instructed 25 Archibong and others 26 networks, as publicly represented, and far beyond messaging, Video and photo applications, 27 which Facebook had been shutting down 28 that Virtually every kind among others, that identified over to 40,000 Developers and ranked them based on expand the definition of a competitive app in 2012. Defendants to g0 far beyond social now instructed their subordinates of consumer software application would be considered competitive Complaint for Injunction and Damages 50 (except games and dating subj ect to the arbitrary apps). App categories that Facebook now considered competitive and and malicious Reciprocity Policy included sharing economy apps, apps, birthday apps, contact management apps, utilify apps, any apps .bUJN lifestyle Where the user had a profile or a reputation score or ranking, and a Wide range of others. Based upon befendants’ preferences, Facebook employees: 129. Developers right away Without notice; extorted and purchase a \OOOQQUI consideration, they (2) in fact be shut down in the Install Ads or provide other exorbitant filture; 0r (3) continued to induce Developers to rely on Graph API endpoints Zuckerberg had decided in late down 11 entered into whitelist agreements With Facebook that enabled Facebook to extract 12 from them in early and mid—2015 because they had 13 Platform in the intervening two years. 14 In 130. all, scheme had run its course. Many built of the Developers in up e‘ven more reliance by 2014 and 2015 over 5,000 Developers had entered still this third category more revenues upon Facebook into whitelist 15 agreements with Facebook in order to benefit from the dramatic restriction of the consumer 16 software industry that occurred 17 on April 30, 2015, making 18 the 5,000 Who had been it When Facebook shut down all the popular other 2012 would be shut 10 after the extortion down some notified other Developers that unless they agreed to be minimum amount of Mobile App would (1) shut Graph API endpoints impossible for more than 35-,000 other Developers to compete with extorted to enter into agreements With Facebook. 19 FROM 2012 ON, DEFENDANTS ENGAGE IN AN ACTIVE CONCEALMENT CAMPAIGN TO INDUCE FURTHER RELIANCE ON THESE 50 APIS IN ORDER TO GAIN MORE EXTORTION LEVERAGE IX. 20 21 22 13 1. From late 2012 on, Defendants required that Facebook employees actively conceal scheme even from other Facebook employees and especially from Developers and 23 the extortion 24 the public. Defendants 25 know basis periodically from late 2012 26 to actively conceal and/or made various layers of management until late 2013 and, make only misleading partial aware of this decision on a need—toat all times, required such employees disclosures of these material facts. Atr ' 27 28 times, Defendants required secrecy 132. During this time, Complaint for Injunction and Damages upon the threat of being fired. Facebook sent many dozens 0f communications directly t0‘ 51 bait-and-switch scheme while enabling Facebook t0 have a pretext to begin enforcing the scheme. Had Facebook made a full disclosure that the API endpoints from the public Reciprocity policy entailed removal of the Graph Platform, then Styleform would not have invested in or continued to invest in its business. Facebook’s failure to make a 12. intentional act to ensure the policy permitted Defendants t0 shut was as full disclosure of the Reciprocity Policy was an vague as possible. The vagueness of the policy down any company under a policy—based pretext for any arbitrary or punitive reason Defendants desired. Once Defendants decided to remove competing Developers’ access 13. to the Graph of competing Developers that only 10 API, Zuckerberg personally maintained an ever-growing 11 he could authorize blacklisting from the Graph API. Once a Developer was blacklisted from the 12 Graph API, any applications the Developer 13 that 14 often included the 15 newsfeed APIs. Facebook made misleading 16 Developers had their API access restricted but claimed these restrictions were due to clear policy 17 and privacy Violations when in no 18 numerous other 19 competitive data restrictions while concealing the announcement of these restrictions. 20 Facebook made a full disclosure 21 considered them competitive, then Styleform would not have invested in or continued to invest in 22 their businesses. 23 Facebook purportedly provided 0n fair built could cases, full all fiiends Developers. Blacklisted APIs list, friends permissions and partial public disclosures that certain blacklisted no legitimate policy or privacy violation had occurred. In Facebook manipulated that no longer use any of the blacklisted APIs and neutral terms to Graph API endpoints, including the fact list its own policy as a pretext to enforce anti- Had Developers were being blacklisted because Facebook Zuckerberg’s blacklist first contained only a handful of large competitors in 201 14. 24 but then was quickly expanded in 2012 to include maj or messaging applications, professional 25 services, 26 management 27 repository apps, 28 lifestyle apps, 1, and photo or video sharing applications. By 2013, the blacklist included contact apps, reputation apps, gifting apps, sharing economy apps, utility apps, file payment apps, birthday reminder apps, photo and Video apps, calendar apps, and health and fitness apps. Facebook Complaint for Injunction and Damages at various times shut down data access t0 5 concert. .people can see that right there [0n Ticketmaster] . Which incidentally 0n average and then post back that they’re going, creates six extra dollars 0f spend on Ticketmaster.” (https://www.youtube.c0m/watch?v=R2kkaDMAJmA). Such statements by Cox were deliberately misleading, reckless and/or negligent in enticing Developers to build similar applications t0 achieve the kinds of benefits Cox attributed to Ticketmaster, since discussions With the Defendants t0 restrict this data. Cox’s June 20, Cox was in 2012 speech disclosed that Ticketmaster dramatically increased revenues by incorporating friend data, disclosing that friend data was valuable full friends list t0 businesses, and yet Cox made no mention that Facebook was removing the and friend data would only apply to existing 10 new Developers 11 representation inducing developers to use friend data 12 fact that 13 Cox 137. t0 build applications that already knew that friend By way app users, making it impossible for compete With incumbents. This misleading partial would have been materially qualified by the data would be severely restricted. 0f a further example, on October 20, 2012, Zuckerberg gave a speech in 14 which he 15 pretty crazy,” 16 Zuckerberg omitted any mention that he had already decided to 17 Developers. (https://www.youtube.com/watch?v=5in7k-y1Lo). Further, on January 15, 2013, 18 Zuckerberg described searching for photos extensively and noted that Facebook had over 240 19 billion photos, the largest online repository, conveniently omitting that access to 2O would be 21 (https://Www.youtube.com/watch?v=c-E3cfPHjeY). Zuckerberg’s October 20, 2012 speech 22 disclosed that Facebook maintained the largest and highest quality photos database 23 Internet, 24 Withheld that he had already decided to dramatically 25 had already begun 26 inducing developers to build businesses using Facebook’s photos database would have been 27 materially qualified 28 this stated that Facebook had “over 300 or 400 million photos shared per day now, which and implied restricted when implying that that is photo sharing was a huge monetization opportunity 0n Facebook. restrict this data from certain such photos enticing listeners around the opportunity of Facebook’s photo platform. this data was extremely valuable fact that and yet Zuckerberg restrict access to this arbitrarily restricting access to this by the to developers, 0n the photos database and photos database. This partial representation Zuckerberg already knew (since he made the decision) that database was going t0 be severely restricted. Complaint for Injunction and Damages 53 By way of example, on February 28, 138. its official 2013, Facebook published a training Video on Facebook Developer YouTube Channel (https://www.youtube.com/user/ FacebookDevelopeIS/about), Which has over 80,000 subscribers and 9.8 million Views. The training session, “Getting started With SDK for iOS,” was hosted by Facebook Facebook Employee Eddie O’Neil. O’Neil teaches Developers how t0 build applications data by building one With the Developers in the audience. that access friend He shows how to make a request t0 \OOOflQUI-b “get back photo albums for stating: “Here are all pictures in vet, but as five friends” and then towards the end mv friends. . .As I scroll here, we bring them in we’ll stick you see them that shows the finished application, we haven’t brought all the in that cache and hold on to them. friend . .When 10 we come back to 11 photos in a single request to 12 (https://www.youtube.com/watch?v= t51szDCYM4). Eddie O’Neil’s February 28, 2013 training 13 session teaching developers 14 disclosure of the availability of the full friends 15 to 16 developers to build businesses using the full friends list 17 the fact that O’Neil 2012 (and therefore already knew) 18 going to be severely restricted. O’Neil’s false statements and misleading partial disclosures were 19 made 20 to friend data 21 training session. 22 he was teaching and encouraging Developers to invest capital and resources in building 23 applications that 24 Via their subordinates to actively conceal this information from Developers. Styleform reasonably 25 relied 26 Facebook Platform. 27 139. display this it’s instantaneous,” make it how to spend time and money using the was informed at the direction meaning that the App can show all the friends” very easy for Developers t0 use this data in their applications build applications using the full friends list that clearly full friends list. in late of the Defendants. In fact, list was intended to induce developers This partial representation inducing would have been materially qualified by that this database Zuckerberg had already decided to many months prior, and Mr. O’Neil was aware of this fact at the As a result, Mr. O’Neil must have known at the time of this would soon no longer on many training Videos like this function. was a partial restrict time he held was access this training session that The Defendants instructed Mr. O’Neil directly 0r one When making decisions to continue investment in ' 28 Video on its By way of efiample, on February 28, official 2013, Facebook published another training Facebook Developer YouTube Channel. This training video was hosted by Complaint for Injunction and Damages 54 Facebook’s new products and t0 prop up Facebook’s new mobile executives on the Platform team, including Michael Vernal Doug Purdy scheme. (Director of Engineering for Platform), From late 2012 to advertising business to senior (VP Engineering for Platform) and Who were tasked with implementing the mid-2013, Vernal and Purdy made additional senior members of the Platform team aware of the scheme, including Vladimir Federov (Senior Platform Engineering Leader), Eddie O’Neil (Product Partnerships), Manager for Platform), Simon Cross (Product Manager Ime Archibong (Head of Platform for Platform), Jackie Chang (Senior Partnerships OOQQ Leader), Ilya Sukhar (Head of Developer Products), and other senior \O 10 members of the Platform and Developer teams. At no time did any Facebook employees communicate Defendants” scheme publicly or disclose the 11 17. scheme Starting in late directly to Styleform. 2012 and throughout 2013, at Zuckerberg’s instruction, Vernal, API 12 Purdy, O’Neil, Sukhar and others began implementing Zuckerberg’s decision to restrict 13 access for anti—competitive reasons under the Reciprocity Policy framework. 14 managed by Vernal, was working on a public announcement of these changes 15 before the end of 2012. However, Zuckerberg directed Vernal not to disclose these changes but to 16 instead extract 17 Platform APIs. In other words, Zuckerberg directed Vernal t0 privately and secretly enforce these 18 changes while continuing to mislead the general public and Developers, including Styleform. 19 Had Facebook made the public announcement Vernal had planned in late 2012, 20 would have invested 21 fairness 22 advertising product, Mobile 23 transition 24 90% 25 payments from Developers upon threat 0f being shut in or continued t0 invest in building its Install t0 be released down from the public business. By Styleform never continuing to represent and neutrality publicly while privately requiring unrelated payments App The Platform team, in Facebook’s Ads, Facebook was able to rapidly accelerate from desktop computer advertising to new its mobile advertising, Which makes up more than of its revenues today. 18. In mid—2013, Zucke'rberg directed Defendants to expand their efforts at extracting 26 payments from Developers upon 27 special agreements that provided special access to data that violated user privacy in exchange for 28 financial consideration from the Developer, typically in the form of a threat 0f being shut down, eventually entering into over 5,000 minimum required annual ' Complaint for Injunction and Damages 7 show Developers “how to build up deep graph queries Which dive several layers deep into the mm.” The instructions also reference Developer documentation that continued to show Developers how to access data that the Defendants had already decided t0 restrict at: https://developers.facebook.com/docs/graph—api/overview. In the Video, Cross walks Developers from start to finish through the process of requesting friend data permissions, enticing Developers with statements like the following: “Graph API Explorer makes it really easy to get QON started. .Places, . Pages, Photos, Events and Newsfeed stories as well as Users are obiects in the graph. picture connection . .. all considered We can go deeper and deeper into the graph. We can also request the on each returned User obiect. This would allow me to show the profile picture 10 of each of mV friends and to get 11 watch?v= WteK95AppF4). Developers watched 12 Cross’ June 20, 2013 training session teaching developers 13 and profile pictures was a partial disclosure of the 14 profile pictures that clearly was intended to induce developers to spend time and 15 friends’ photos in their applications. This partial representation inducing developers to build 16 businesses using friends’ photos would have been materially qualified by the fact that Cross had 17 already been informed 18 businesses around was going to be 19 partial disclosures were made 20 decided to 21 and Mr. Cross was aware of this 22 Cross must have 23 Developers t0 invest capital and resources in building applications that would soon no longer 24 function. Mr. Cross actively concealed and omitted material facts around restrictions 25 that 26 directly 0r Via their subordinates t0 actively conceal this information 27 reasonably relied on this training Video and others like 28 investment in Facebook Platform. by his all 0fthis data in a single request” (https://www.youtube.com/ this Video 238,665 times as of March how t0 availability superiors that the data he 7, 2017. access a user’s friends’ photos of a user’s friends’ photos and money using was inducing these developers t0 build severely restricted. Cross’ false statements and misleading at the direction restrict access to friend data of the Defendants. In many months prior to fact at the time he held known at the time of this training fact, Zuckerberg had already the video’s creation in June of 2013; this training session. session that he As a result, Mr. was teaching and encouraging on this data Facebook already decided upon around one year prior. The Defendants instructed Mr. Cross Complaint for Injunction and Damages it from Developers. Styleform when making decisions to continue 56 By way of example, on June 26, 141. Case Study — Fab.com” on partner Fab.com, an operating system. its 2013, Facebook published a “Facebook Platform official Facebook Developer YouTube Channel. Facebook and its e-commerce app, touted the benefits of building on Facebook’s social A Fab.com employee stated that with Graph API they can “take everyghing they have in the catalog and narrowly target to a customer” to “see a product on Facebook and then share with their friends.” Facebook enticed Developers to access social data in this Video but conveniently omitted all reference to the fact that the Defendants had decided many, many \OOOQON months ago to cease providing this data 0n fair and neutral terms. (https://www.youtube.com/watch?v=vaq5BshZLo). 10 By way 142. of another example, on September 18, 2013, Zuckerberg gave a speech 11 during one of Facebook’s Developer Days to over 600 attendees from 17 countries. Facebook 12 published the speech on 13 “A 14 built. 15 apps that have identity, friends and 16 (https://Www.youtube.com]watch?v=rnnj prCJec). Zuckerberg’s September 18, 2013 speech in 17 Which he 18 friends 19 availability 20 induce developers to spend time and 21 Facebook’s friends data and other valuable Graph API data. This partial representation inducing 22 developers to build these businesses using this data would have been materially qualified by the 23 fact that 24 inducing developers to use to build their businesses. 25 lot its official Facebook Developer of people think about Facebook Platform as a But we want to help stated that and all way to vou do even more than that. all Facebook wants the stuff that the stuff that to “make you want built it YouTube Channel. Zuckerberg get distribution for apps that you’ve We want to make it simple to build great vou want built in really easily.” simple t0 build great apps that have identity, in really easily” was a partial disclosure of the of friend data and the other valuable Graph API data that clearly was intended t0 money building their products and businesses around Zuckerberg had decided more than a year prior to severely 143. states: restrict the data he was In fact, Zuckerberg had decided approximately a year earlier to restrict access to 26 friend data, identity data 27 intentionally, recklessly and/or negligently 28 period of time to induce Developers, including Styleform, to build applications that benefited and Complaint for Injunction and Damages “all the stuff that [Developers] want[ed] built in.” Zuckerberg made this statement and many others like it during this 57 software applications, like the ones Styleform had been developing and maintaining continuously from 2007 through 2015, after Zuckerberg had already decided to restrict access to the Graph API necessary for Styleform’s technology to function. Defendants actively, maliciously, oppressively and fraudulently concealed the fact 22. that to it would be restricting access to the make such investments for at least Graph API endpoints and continued two years. Had Defendants to entice Developers disclosed this fact within a KOOOQONUI-P reasonable time after making its decision, Styleform would not have made investments 0f capital and resources in Facebook Platform. Instead, Defendants unjustly enriched themselves through 10 this fraudulent and anti-competitive conduct by enticing investments that generated revenues for Facebook with full 23. 11 knowledge that those investments would be irreparably damaged. Further, While actively suppressing this material information and continuing t0 Facebook Platform, Zuckerberg instructed 12 entice Developers to invest in building applications for 13 certain 14 collusive and anti-competitive schemes with other large companies. 15 Facebook offering these Developers unfair advantages Via private API access 16 markets in exchange for unrelated advertising payments and/or other forms 0f cash or in—kind 17 consideration that benefited Facebook. In doing so, Facebook and these large Developers held 18 hostage APIs that Facebook previously promised would be available to 19 and equal terms. 20 Facebook executives 24. to require or encourage their subordinates to This practice systematically disadvantaged small or engage in a number of The schemes involved all in various software Developers on neutral new Developers, including 21 Styleform, that had been competing in Facebook’s purportedly fair and neutral operating system. 22 Smaller Developers like Styleform could no longer participate in one of the largest application 23 and advertising economies globally, providing an immense advantage to large Developers that 24 combined and conspired with Facebook to control the Graph API 25 promised would be accessible on equal terms. The conduct 0f the Facebook executives who 26 participated in these schemes 27 who benefited from the 28 markets, and make it that Facebook was undertaken in combination and concert with for years large Developers decision to restrict data access, eliminate competition in various software more difficult for small Developers to maintain their products and Complaint for Injunction and Damages grow on 9 Facebook 148. Onavo failed to disclose that acquisition and further that beyond Facebook’s own suite was accessing Onavo data from prior to the used Onavo data to measure what people do on their phones of apps, including detailed information on things such as which apps people generally are using, men use an app it it how frequently, in a specific country. Facebook for how long, and Whether more women than failed to disclose that it used this data for competitive intelligence of numerous apps. Facebook’s decision to purchase a large competitive application (WhatsApp) was 149. OOQO heavily influenced by Olivan’s ability to obtain this non—public information from Onavo. At KO times, the employees involved in this proj ect, including Olivan, all were acting under the direction 10 and approval of Zuckerberg. Had Facebook 11 users and Developers 12 update to Onavo’s Terms of Service, then Styleform would not have invested in or continued to 13 invest in building 14 150. its When it made public fully disclosed this deceptive practice publicly to disclosures regarding applications and business Further, at least its purchase of Onavo and its on Facebook Platform. by 2012 or 2013, Facebook collected various content and metadata 15 regarding communications on Android phones without fully disclosing this to Facebook’s users. 16 Facebook used 17 advantage over other social applications on Facebook Platform. Facebook disclosed publicly that 18 it 19 https://Www.facebook.com/help/210676372433246). This partial disclosure failed to 20 accurately the type of data Facebook 21 and the reasons for accessing the data of these Android 22 information 23 communicated With Facebook users Who owned Android phones. These consumers never 24 consented to have Facebook collect this information. At 25 proj ect 26 Facebook 27 communications on Android phones, Styleform would not have invested in or continued 28 in building was reading it this data to give certain text messages in order Facebook products and features an unfair competitive to authenticate users was more easily (see, e.g., accessing, the timeframe over users. Facebook which it had accessed it, also actively collected did not fully disclose from non—Facebook and non—Android users all state Who times, the employees involved in this were acting under the direction and approval 0f Zuckerberg, Cox, Lessin and Olivan. Had fully disclosed its its practices regarding collection applications and business Complaint for Injunction and Damages and use of metadata and content of t0 invest on Facebook Platform. 59 15 1. friend list Further, in order to Facebook made disclosed, Facebook deliberately ignored the privacy settings of a Facebook user’s improve a certain prominent feature in the Facebook app and website. partial public disclosures of this practice While withholding material facts would have materially qualified Facebook’s public statement that, if (see, e.g., https ://gizmod0.com/facebook-figured-out-my—family-secrets-and-it-wont-tel- 1 797696 1 63). all At times, the employees involved in this proj ect were acting under the direction and approval of Zuckerberg, Cox, Lessin and Olivan. Had Facebook made a full public disclosure regarding \OOOQON whether respected user privacy settings for all Facebook features, then Styleform would not it have invested in or continued 10 to invest in building its applications and business 0n Facebook Platform. Facebook implemented a proj ect to turn on the Bluetooth 11 152. 12 background in order 13 and when 14 fillly disclose 15 involved in this proj ect were acting under the direction and approval of Zuckerberg, Cox, Lessin 16 and Olivan. 17 153. it Further, to locate users. Facebook made misleading would turn on the Bluetooth how this feature and collect partial disclosures regarding and store information would be used by Facebook. At Further, in setting in the this data. all Facebook did not times, the employees 2013 and 2014 Facebook deliberately implemented code t0 18 user’s privacy setting lapse after a period 0f time, requiring the user to 19 effort in order to 20 disclosures around this time regarding privacy settings, but did not fillly disclose that 21 caused certain settings to lapse after a period of time. At 22 proj ect 23 Facebook 24 invested in or continued t0 invest in 25 have the user’s privacy have a g0 through additional Facebook made misleading settings respected. all how it partial had times, the employees involved in this were acting under the direction and approval 0f Zuckerberg, Cox, Lessin and Olivan. Had fully disclosed 154. its handling of this and related privacy issues, Styleform would not have its From 2007 through at applications and business least 2015, Facebook on Facebook Platform. willfully, intentionally, recklessly, 26 maliciously and negligently failed to pass privacy or age information 27 Graph API 28 to When sending Developers data. This required Developers, including Styleform, to incur comply with user privacy Complaint for Injunction and Damages settings and age restrictions. enormous costs in order Facebook made repeated public 60 information exclusively in its own possession fraudulently contract and to continue to contract with induced Styleform to enter into Facebook by maintain products and building its its business on Facebook Platform at significant cost t0 Styleform. 28. Facebook, at Zuckerberg’s personal direction, deliberately suppressed material information and shared only partial information in its communications regarding Facebook Platform from 2007 through 201 8, and, in particular, during Zuckerberg’s April 30, 2014 announcement at F8, causing further harm to Styleform in a malicious and fraudulent attempt to OOQQ cover up Defendants’ bait-and-switch schemes. For instance, Zuckerberg partially disclosed that \O Facebook was versioning the Graph API, but then misrepresented that Developers would be able choose the version they build against, while concealing material facts Zuckerberg 10 to 11 time contradicted this representation. 12 29. knew at the Defendants conspired With and instructed their subordinates to conspire With other 13 Developers to engage in fraudulent bait—and—switch schemes and repeatedly acted negligently, 14 fraudulently and maliciously in Violation of California law to the detriment 0f consumers and tens 15 of thousands of small Developers, whose investments unjustly enriched Defendants. Defendants’ 16 conduct amounts t0 a classic bait-and-switch tactic barred by California’s Unfair Competition 17 Law. Further, Defendants’ knowingly 18 users and Developers Violate California’s False Advertising 19 representations for years that 20 tying access to these purportedly public 21 textbook tying scheme in Violation of California’s Cartwright Act. 22 30. Around false representations and misleading Law. Graph API would be offered on APIs the time Zuckerberg to fair partial disclosures to Finally, Defendants’ and neutral terms while secretly an unrelated mobile advertising product made this is a decision to engage in the Facebook more than half from 23 Platform Extortion Scheme, Facebook’s stock price had dropped by 24 public offering (“IPO”) in 25 Zuckerberg personally 26 implement the fraudulent and anti-competitive schemes alleged herein. After Zuckerberg decided 27 upon and implemented the alleged fraudulent and anti—competitive schemes, the downward 28 traj ectory its ‘initial May 2012, reaching a 10w of $37 billion in September 2012. lost approximately $10 billion in the period during Which he decided to of Facebook’s stock reversed course and began Complaint for Injunction and Damages its rapid climb t0 an approximate $445 11 AND 2014, DEFENDANTS FABRICATE A FRAUDULENT PROPRIVACY NARRATIVE, WHICH THEY INTERNALLY NAME THE “SWITCHAROO PLAN,” TO COVER UP THE EXTORTION SCHEME IN 2013 XI. Whenever the media reported that a Developer was shut out of Facebook Platform 157. from 2013 to 201 5, Facebook’s public relations department would the Reciprocity Policy and that Facebook could not comment further decisions. This evasive approach provided sufficient cover long t0 transition state the on specific enforcement enough Facebook’s advertising business t0 mobile phones, but it Developer violated for the extortion could not scheme last forever. \DOONON Zuckerberg’s scheme was wreaking havoc within Facebook, with employees aware 0f the scheme decrying 10 droves as a 11 Facebook that 12 APIs 13 years. result. that the 158. 14 is After all, its Who had become immoral and unethical charécter and leaving the company Zuckerberg had required the Platform team, the department supposed t0 be a fair company continued to and neutral policeman, Remarkably, he found way at to secretly treat as private over represent as publicly and freely available for Thus, Zuckerberg needed a in 50 more than two out of the predicament his extortion scheme had in the Violations of user privacy that his own firehose Platform 15 created. 16 design had created. Because the decision to shut 17 coincided with reports in the media of rampant privacy Violations (and because Developers were 18 often the face of these privacy violations, since users learned of them inside the Developers’ 19 apps), Zuckerberg 20 Violations 21 privacy Violations gave 22 with one of the most devastating anti-competitive acts in the history of the software industry: 23 Graph API 24 30, 2015, 25 privacy justification that played no role whatsoever in Facebook’s internal decision—making. 26 was were the 2.0, it down Developers for anti-competitive reasons able to tie these two media narratives together result of various by arguing that the privacy bad actor Developers. Remarkably, Zuckerberg’s own him a pro-privacy cover to Which was announced on April 30, tie up the loose ends of his extortion scheme 2014 and took effect one year later on April and which shut down more than 35,000 small-to—medium businesses under a pro- 159. In mid—2013, Zuckerberg, Vernal and Facebook Director of Engineering 27 Purdy, aggressively sought to 28 narrative that make Sukhar the was eventually peddled t0 Complaint for Injunction and Damages front the public man, Doug externally, for this pro-privacy on April 30, 2014, through the announcement 62 of “The New Facebook Login and Graph API 2.0.” (Facebook Login a tool that lets users login name and password.) This apps or websites using their Facebook user to other Developers’ is is because Sukhar was widely respected in the Developer community and would more likely be Viewed as having genuine good late faith intentions. Sukhar resisted being placed in 2013 because he knew the conduct was wrongful and malicious. However, in Sukhar conceded and from that time on actively ratified, acquiesced OOQON this position until components necessary t0 the cover in, late 2013, and advanced key up and final execution of the extortion scheme from late 2013 through 20 1 5. 160. \O From late 2013 through early 2014, Zuckerberg, Sukhar, Vernal, 10 constructed a fraudulent narrative around ‘user trust’ designed to 11 Zuckerberg was shutting 12 Developers with in 13 50 APIs being restricted behind the announcement of Facebook’s 14 easier to provide a pro-privacy narrative around. 15 161. late down the same 50 Graph API Purdy and others mask the true reasons endpoints he had begun extorting 2012. The core strategy behind the fraudulent narrative was to conceal the The new version of the login product, new Login product, Which was starting in April 2014 required Developers Graph API endpoints before they release 16 to ask permission to use certain 17 previously once a Developer had agreed to Facebook’s terms, 18 manual approval process 19 enabled Facebook to create another layer of privacy protection to ensure no bad actors accessed 20 user data they did not need or were not supposed to access in violation 0f consumer privacy. In 21 fact, the internal rationale for this 22 before 23 take this option, but 24 162. it grew large to access certain APIs. The public it their apps, Whereas did not require any additional rationale for this change was that it change was to give Facebook the option to stymie a competitor enough to be competitive with Facebook. Facebook did not always want to it always wanted to have Nonetheless, it it. was very easy to Facebook could say that position this change t0 Facebook Login as pro- 25 privacy, since 26 privacy issues that had been reported (which, unbeknownst t0 the public, were in fact Facebook’s 27 own doing caused by 28 to pass privacy settings in its APIs). its shirking the Complaint for Injunction and Damages it wanted another layer of policing in FTC The light of the rampant Order while simultaneously, and intentionally, failing fact that over 50 APIs had been shut down with Graph 63 conduct, including: (1) the decision to use Facebook Platform as a ‘bait and switch’ scheme to unjustly enrich Facebook and the individual Defendants from 2007 through present; (2) the decision to fraudulently, negligently, intentionally, maliciously and oppressively misrepresent Facebook’s plans regarding Facebook Platform before and after Facebook had already decided to restrict Graph API in 2011 and 2012; (3) the decision t0 actively conceal material information to tens of thousands of Developers, including Styleform, for years, notwithstanding that was under a duty to disclose such information; (3) the decision to conspire Facebook with large Developers OOQO to restrict access to data that Facebook promised for seven years would be available to all \O Developers on neutral and equal terms in exchange for large cash payments in advertising and/or 10 other in—kind consideration that greatly benefited Facebook; and (4) the decision in late 2013 and 11 early 12 around 13 employees to make, 14 through at least 201 5, regarding Facebook’s management of Facebook Platform with the intention 15 of inducing investment from Developers to build applications on Facebook Platform. Zuckerberg 16 did so 17 statements were false at the time they were 18 materially qualified the misleading partial disclosures he authorized or personally made. 19 Zuckerberg engaged in 20 With 21 including Styleform’s applications, (collectively, “Apps”), to fulfill his primary goals of 22 removing competitive 23 mobile advertising business by holding Developers hostage. Zuckerberg was aware that these 24 40,000 or more apps, including Styleform’s Apps, had contracts With their end customers that 25 would be breached or otherwise 26 oppressive, fraudulent and negligent conduct because the adhesion contract Developers, including 27 Styleform, entered into With Facebook required 28 Customers 2014 t0 concoct an entirely fabricated narrative in order t0 mask Facebook’s true intentions deceptive and anti-competitive schemes. Zuckerberg made, and directed Facebook its false statements and to maliciously suppress material facts knowing these investments would be full this irreparably damaged. Zuckerberg made and that the facts suppressed from 2007 was aware these would have wrongful and malicious conduct precisely in order to damage (and knowledge of the proximate damage threats to to) these 40,000 or more software applications, Facebook’s planned products and propping up Facebook’s interrupted by Zuckerberg’s intentional, wrongful, malicious, them t0 maintain such contracts with their end . Complaint for Injunction and Damages 13 others worked directly with Zuckerberg to suppress announcement and to disseminate this material this fabricated narrative information in the around user trust. Zuckerberg tasked Sukhar and Vernal, among others, with propagating 167. this fraudulent narrative internally to Facebook employees and externally t0 Developers and the public. Sukhar, Vernal and the other Defendants actively participated and conspired in the propagation 0f this fraudulent narrative. 168. data — all Issues like user trust, user control, privacy and the rare use of certain Graph API of which Zuckerberg and other Facebook employees stated publicly as reasons for restricting data access and breaking tens of thousands of applications — were not, in fact, the made, and the Defendants 10 actual reasons for restricting data access at the time Zuckerberg 11 participated in, the decision. 12 build Facebook’s mobile advertising business were the primary or exclusive reasons for closing 13 the 14 With other large Developers and exceptions were made for certain applications that are more 15 susceptible to violating user trust or 16 applications, such as applications that require payments. 17 trust 18 Open Graph. Removing potential competitive Further, decisions were not made and leveraging Platform unilaterally but in trust is in fact to combination and concert more important than in normal These exceptions demonstrate that user could not have been the actual reason for Facebook’s decision to restrict Graph API data. Zuckerberg and the Defendants directed 169. reporters, false information 20 disseminate this fabricated narrative stories team t0 feed themselves in order to among the public and Developer community. In his announcement at 170. their public relations and in certain cases drafted reporters’ 19 21 Where user threats F8 on April 30, 2014, Zuckerberg continued to conceal 22 material facts, misleadingly reveal only partial information, and deliberately mislead Developers 23 and the public. Zuckerberg announced during his keynote: “This 24 F8. In the past we’ve had F8 25 were going 26 building a stable mobile platform. You’re trying t0 build great mobile apps and businesses. 27 we want to 28 doing to support you. We’ve heard from you that you want to use Facebook Platform t0 do 3 in. is gonna be a When we’ve had a big product announcement This always meant a lot of different changes for your apps. bring this community together once per year to talk about Complaint for Injunction and Damages all or different kind of new direction we Now we’re focused on And the different things were 65 things. Help you 171. build, grow and monetize vour apps.” Thus, Zuckerberg reiterated the representation that Facebook had expressed to Developers, including Styleform, unequivocally for over seven years now: that Facebook committed over the long—term to helping them build, grow and monetize 172. OOQO’NUI-PUJN platform. Zuckerberg continued: “As I And one thing vou mav not know, said we’re really focused is that all very same platform and APIs that you guys use ngneers use the same tools and read KO important for vou and for all vou can all the their apps. on building a of our mobile apps are when you’re of our teams internally that on for the long term. So built that you do. . stable mobile on top of the writing Facebook and same documentation is our all It’s really .. we build stable and efficient has been a really big focus for us. 10 infrastructure that 11 I 12 stable 13 something and know that 14 we’re introducing a 2-year 15 change these core APIs in the future, we’re guaranteeingthat we’re going to keep supporting 16 them 17 gonna experiment With new features and 18 you know What’s gonna be 19 versioning. This is 20 working. This something 21 is want to start and relv this as is for at least is you t0 build, it’s grow and monetize your gonna be stability You want to be able t0 build apps. able to work for a while. So today for the first time guarantee for all of our core API platforms. two years and mavbe longer from the time we make different things but we’re part of this core stable platform. something we want to make sure that we wanted internally as all We’re . .so even that change. gonna mark them also introducing the apps so 173. Accordingly, Zuckerberg made at least four representations we We’re ago keep now everything of fact: against.” (1) Facebook 23 continued to provide a level playing field to Developers, including the ability to use the same 24 tools as 25 committed 26 promised that for 27 years going forward; (4) Facebook promised that 28 the Facebook employees to develop their applications; (2) to providing developer access “that all API they would of its Core API endpoints like to access as Complaint for Injunction and Damages it you can rely 0n it introduces Facebook continued it would let to for the long term”; (3) would guarantee still as beta so we wrote two vears we build on this platform, if API gonna be versioned so vou get to decide Which version of the API vou get t0 build 22 .. make our platform even more today bvgoing throth a few thinggwe’re doing to reliable for . be Facebook their stability fof at least two Developers choose Which version of API versioning (“This is something we want to 66 down to shut applications on the exclusive further required the Platform more team basis that they to re-architect the difficult for other Developers to compete with were competitive with Facebook and APIs Facebook made available Facebook on a to make it level playing field, including .pw removal of the friends list API, friends permissions APIS, newsfeed APIs, user ID APIs, and Olivan directed numerous proj ects others. at Facebook that intentionally violated user privacy in order to give Facebook’s products an unfair competitive advantage relative to other Platform apps. Olivan made, and directed Facebook employees t0 make, false statements and to KOOOQON maliciously suppress material facts from at least 2007 through 2015 regarding Facebook’s management 0f Facebook Platform with the intention of inducing investment from Developers to 10 build applications on Facebook Platform. Olivan did so 11 irreparably damaged. Olivan was aware 12 and that the would have materially qualified the misleading partial disclosures he 13 authorized or personally made. Olivan engaged in this wrongfill and malicious conduct precisely 14 in order to 15 applications, including Styleform’s Apps, to fulfill his primary goals 16 threats to 17 by holding Developers hostage. Olivan was aware 18 applications, including Styleform’s Apps, 19 breached or otherwise interrupted by Olivan’s intentional, wrongful, malicious, oppressive, 20 fraudulent and negligent conduct because the adhesion contract Developers, including Styleform, 21 entered into With Facebook required 22 Further, Zuckerberg directed Olivan (along With Lessin) in 23 team 24 threats 25 API 26 mobile advertising product. to facts suppressed damage (and With full knowing that these investments would be these statements were false at the time they knowledge of the proximate damage to) these were made 40,000 software of removing competitive Facebook’s planned products and propping up Facebook’s mobile advertising business make had contracts with them to maintain such sure Facebook properly executed its by privatizing Graph API While continuing in order to gain leverage over Developers 27 38. 28 California. Lessin that these 40,000 or more software their end customers that would be contracts with their 2012 end customers. to oversee Vernal’s Platform goal of removing thousands 0f competitive to represent the public availability of Graph and extort them into purchasing Facebook’s new Defendant Samuel Lessin (“Lessin”) is an individual residing in San Francisco, was the Director of Product and/or Vice President of Product Management of Complaint for Injunction and Damages 15 two. In other words, the 2-year stability guarantee turned out not to apply to the original Graph API and only to future APIs, a critical fact that Zuckerberg omitted in his announcement. Thus, Facebook pulled the rug out from under the Developer community and took advantage 0f the ecosystem Developers had built, full economic but Zuckerberg’s keynote address still generated sound bites consistent with his previous representations that Facebook was maintaining a fair at the and level playing field for Developers. Zuckerberg was forced to make statements he knew time to be false precisely because it was obvious everyone in the Developer community, to GONG especially Zuckerberg, that \O 10 Facebook had for seven years been making clear and unambiguous promises t0 Developers that they could rely on Facebook Platform over the long term t0 provide a fair playing field that offers data on equal and neutral terms. Facebook’s behavior 0f intentionally inducing Developers to build Facebook’s 178. 11 its 12 business and then pulling the rug out from under them 13 story, further 14 conduct. 15 and the thousands of developers, 16 and-switch 17 is a repeated pattern in Facebook’s growth demonstrating the malicious, oppressive and fraudulent nature of Facebook’s The alleged conduct is not an isolated incident simply related to Graph like Styleform, API versioning Whose businesses were destroyed by this bait- tactic. 179. By way of example, Facebook executed another bait-and—switch tactic that caused 18 thousands of Developers to go out 0f business and lose countless millions of dollars of enterprise 19 value and capital investment. At the same time that Zuckerberg pulled the rug out from 20 Developers using Graph API data 21 reliance 22 was a popular development platform 23 back—end functionality of such apps, allowing Developers to focus on features that matter to 24 users. 25 things we’re really excited about offering 26 thing that will get 27 Facebook employee who followed Zuckerberg on stage went on to note that they had expanded 28 the free tier to on Parse as its at F8 2014, he new preferred tool also announced Facebook’s acquisition and for developers to build on Facebook Platform. Parse for creating apps for Facebook, which handled much of the Zuckerberg stated in the same keynote where he announced the Graph API is Parse. . .We make it make it easier to Complaint for Injunction and Damages “One of the easy to focus on your app, the you users and make you money. .and Parse takes care of all . 2.0: the rest.” A grow on Parse, giving developers “unlimited requests, unlimited 68 Zuckerberg then finished his thoughts on Parse by saying “We’re recipients, free analytics”. excited, we’re aligned with your app, As 180. hww a result of this and and we hope that it does many get huge.” other similar statements and actions by Facebook, hundreds of thousands of Developers began using Parse to build applications on Facebook on Facebook Platform. Parse’s platform states: “From startups to the Fortune 500, hundreds of QQUI thousands of developers trust us.” Then, abruptly, on January 28, 2016, Facebook announced that Parse would be 181. shutting down: “We have a difficult announcement to make. Beginning today we’re Winding down the Parse service, and Parse will be fully retired after a year—long period ending on January 1o 28, 2017. We’re proud that we’ve been able 11 we need to 12 won’t be an easy 13 striving to 14 focus many of you build great mobile apps, but 6m resources elsewhere.” The statement continues: “We understand that this transition. make this 182. to help so . .We know that many 0f you have come to rely on Parse, and we transition as straightforward as possible.” Many developers immediately commented 0n the devastating effect this would 15 have on their app, business and investment in the Facebook Platform. One developer wrote: 16 “@ParseIt 17 now this. 18 little bit 19 users 20 Wow. '.. .. Have spent months optimizing my app With your service to launch soon, Seems sudden. .. #utterlydisappointed.” Another: “@Parselt more about the need 0n your platform. 183. The are . to focus .this is it and would be nice to hear a your resources elsewhere.” “@ParseIt my app had 2.5M sickening.” incident with Parse demonstrates a continued clear pattern, on the part 0f 21 Facebook, t0 make clear and unambiguous representations to developers, to engage in conduct 22 that induces developers to 23 make Facebook one of the most valuable companies 24 from under these Developers 25 184. Facebook make is substantial investments of time to reap the financial in the and money (all of Which helped world today), and then pull the rug out benefits for itself. currently undertaking another bait—and-switch scheme, this time for 26 the 27 Facebook 28 messaging service the most popular text messaging service in the world. Facebook made a Facebook Messenger Platform. This scheme was designed by Zuckerberg is currently in the process of baiting developers into helping Complaint for Injunction and Damages in 2013, and make Facebook’s 69 Graph API while continuing to represent the public availability leverage over Developers and extort them into purchasing of Graph API in order t0 gain Facebook’s new mobile advertising product. 39. Defendant Michael Vernal (“Vernal”) California. Vernal OOQQUI-P question and is an individual residing in San Francisco, was the Vice President 0f Engineering of Facebook during the period was charged with responsible for deciding direct oversight of Facebook Platform. As such, Vernal in was upon and implementing key components of Zuckerberg’s fraudulent and anti-competitive schemes. Vernal actively approved, participated, ratified, directed and \O acquiesced in the conspiracies and schemes alleged herein, including architecting and overseeing 10 the implementation plan to cause tens of thousands of software applications to cease functioning 11 in order to oligopolize various software markets for the 12 partners. 13 scheme With full responsibility 14 Facebook were for years under the impression that the API 15 made, and directed Facebook employees to make, 16 material facts from at least 17 Platform with the intention of inducing investment from Developers to build applications on 18 Facebook Platform. Vernal did so knowing these investments would be irreparably damaged. 19 Vernal was aware these statements were false 20 suppressed would have materially qualified the misleading partial disclosures he authorized or 21 personally made. Vernal engaged in this wrongfill and malicious conduct precisely in order to 22 damage (and with 23 including Styleform’s Apps, t0 fulfill his primary goals of removing competitive threats to 24 Facebook’s planned products and propping up Facebook‘s mobile advertising business by holding 25 Developers hostage. Vernal was aware that these 40,000 or more apps, including Styleform’s 26 App, had contracts With their end customers that would be breached 0r otherwise interrupted by 27 Vernal’s intentional, wrongful, malicious, oppressive, fraudulent and negligent conduct because 28 the adhesion contract Developers, including Styleform, entered into with benefit of Facebook and Facebook’s close Zuckerberg directed Vernal to be the front man internally for full for its this bait design and implementation such that restrictions false statements and and switch many employees were Vernal’s idea. at Vernal to maliciously suppress 2009 through 2015 regarding Facebook’s management of Facebook at the time they were knowledge 0f the proximate damage Complaint for Injunction and Damages made and that the to) these facts 40,000 or more apps, Facebook required them 17 data’ . . .We mean any retrieve data, including a user’s content or information that from Facebook or provide t0 Facebook through Platform. . .. By you or third parties can ‘application’ we mean any application or website that uses or accesses Platform.” In exchange, Plaintiff provided a host of rights t0 Facebook, including but not limited to a right to analyze and generate advertising revenues from Plaintiff s applications (Section 9.17), place content around Plaintiff’s applications (Section 9.16) and issue press releases around Plaintiff s applications (Section Plaintiff agreed to undertake a host 9. 12). Further, 0f obligations under the agreement around which it incurred substantial cost. 189. Plaintiff did all or substantially all to do. Plaintiff abided of its contractual obligations 10 required 11 Facebook ever contact 12 potential violation of its 13 Facebook’s performance under the agreement. 14 it 190. by all of the significant things that the contract Plaintiff to notify Plaintiff that Agreement with Facebook. Facebook entered at all times. Facebook believed Plaintiff met all into identical adhesion contracts At no time did Plaintiff was in of the conditions required for with all of the Developers on Platform. This necessarily entailed that Facebook provide a level playing field and guarantee a 15 its 16 minimum 17 and business. However, beginning 18 representation and promise 19 Developers. 20 191. degree of equal access and opportunity on Facebook Platform to build a stable product Further, at least by 2009, Facebook violated by systematically disadvantaging by April 30, 2015, Facebook Plaintiffs this contractual and other smaller failed to provide Plaintiff With the rights 21 necessary to use Facebook’s code, APIs, data, and tools in filrther breach of the agreement and 22 after Plaintiff had incurred substantial cost in 23 Agreement. 24 192. meeting all of its performance obligations under the Further, at all times after entering into the Agreement, Facebook failed to provide Facebook’s code, APIS, data and tools on terms that were equal and 25 Plaintiff With access to 26 neutral relative t0 the terms provided to all other Developers, in breach of the Agreement. 27 28 193. Facebook’s decision to willfiflly, intentionally and negligently mislead Plaintiff and tens of thousands of other Developers, as well as take other actions that frustrated the Complaint for Injunction and Damages ability 71 of Plaintiff and other Developers to gain the benefits of their contracts With Facebook, violated the implied covenant 0f good faith and fair dealing insofar as Facebook’s alleged conduct unfairly interfered with Plaintiff s right to receive the benefits of its agreement with Agreement fraudulently induced Plaintiff to enter into the Facebook’s decision to 194. Facebook and further in the first place. willfully, intentionally and negligently mislead Plaintiff and tens of thousands of other Developers and take other actions alleged herein violated Facebook’s implied duty t0 perform With reasonable care. Plaintiff was 195. harmed by Facebook’s conduct and Facebook’s breach 0f its agreement with Plaintiff was a substantial factor in Plaintiff s harm. If Facebook had performed 10 and provided 11 done so on an equal basis with respect 12 not have been harmed. 13 Plaintiff rights necessary to access 196. Facebook’s APIs, code, data and Developers and to Facebook t0 other tools, and had itself, Plaintiff Any limitation 0f liability provided for in Facebook’s agreement With Plaintiff is 14 unenforceable in accordance With California Civil Code § 1668, Which declares unlawful 15 contracts exempting persons 16 of the law, whether willful or negligent. 17 197. from the consequences of their own fraud, Any limitation of liability provided for in willful injury or Violation Facebook’s agreement with Plaintiff is 18 unenforceable as the limitation 0f liability clause, as drafted by Facebook, 19 Facebook from 20 198. liability resulting Any limitation fails to insulate from Facebook’s own negligence or fraud. of liability provided for in Facebook’s agreement with Plaintiff is 21 unenforceable as Facebook and Plaintiff had dramatically unequal bargaining strength, the 22 agreement was provided on a “take 23 greatly affects 24 people and tens of millions of businesses. 25 199. would it or leave and implicates the public it” basis and drafted entirely interest as Plaintiff was injured as a result it sets forth the rights by Facebook, and 0f over two billion of Facebook’s breach of the agreement in an 26 unascertained amount in excess of $25,000.00, to be established according to proof at 27 Accordingly, Facebook 28 breach 0f contract include the loss of its investment and time spent in developing is liable Complaint for Injunction and Damages to Plaintiff for trial. damages. Plaintiff s damages as a result of the its technology 72 ramifications for Zuckerberg’s bait and switch scheme. 41. herein as .b Styleform Does 1 ignorant 0f the true that this for the events 1 10 capacities 0f the Defendants sued is When the true names and capacities of informed and believes and thereon alleges, through 50, inclusive, and each of them, are legally responsible in some and happenings referred the injuries to Styleform as hereinafter alleged. subj ect complaint have been ascertained. Styleform Defendants Does manner names and through 50, inclusive, and each of them, and therefore sues said Defendants by such fictitious names. Styleform Will amend said Defendants \DOONQLI] is t0 herein and proximately caused or contributed to Wherever of any charging allegation by Styleform, it shall in this complaint any Defendant is the be deemed that said Defendants Does 1 through 50, inclusive, and each of them, are likewise the subj ects of said charging allegation. 42. 11 At all times herein mentioned, each of the Defendants was the agent and employee 12 of each of the remaining Defendants and, in doing the things herein alleged, was acting within the 13 course and scope of said agency and employment and in particular from direction authorized and 14 required by Zuckerberg. 15 16 III. 17 43. Styleform is FACTS a software consulting business that builds applications for clients and own account on Facebook Platform using Graph API. Beginning 18 for 19 and maintained a variety of applications 0n Facebook Platform. Styleform has continuously 20 maintained applications on Facebook Platform to the present day and has an active Facebook 21 Developer account. Further, the principal of Styleform has been a registered Facebook user 22 continuously from 2007 thfough the present day. its 23 44. In order to develop 24 enter 25 “Agreement”). The 26 users and others 27 agree[d] to this Statement. 28 Facebook Platform, since and did in fact enter into its Apps on Facebook Platform, Styleform was of service that governs [Facebook’s] relationship with interact with Facebook. ...” all Complaint for Injunction and Damages required to Facebook’s Statement of Rights and Responsibilities (“SRR” or SRR is the “terms who in 2007, Styleform built By using or accessing Facebook, Styleform was subject to the same [Styleform] SRR as all Developers on Developers are required to agree to the SRR before accessing any 19 particular in speeches by Defendants and official statements posted on Facebook’s website. Zuckerberg’s decision to close Plaintiffs access t0 APIs in 2012 was material 205. information that was not disclosed to Plaintiff. to Plaintiff, Plaintiff would never maintaining related t9 its apps. Had Facebook disclosed this had made 0r continued to make investments Had Zuckerberg not intentionally misrepresented Facebook Platform and material information in building or a host of material facts related to Zuckerberg’s decision to restrict access to the most valuable information in Facebook Platform, Plaintiff would not have continued to invest in applications and business 206. its on Facebook Platform. Defendants further engaged in misleading partial disclosures of fact related to the mask the anti-competitive scheme. In early 2014, 10 fraudulent narrative they fabricated to 11 Zuckerberg directed Sukhar and Vernal to develop a narrative that disclosed that the Graph API 12 endpoints would be completely removed from Facebook Platform. However, this partial 13 disclosure omitted the fact that, although the data 14 being removed from Facebook Platform. Instead of being removed, the data was being privatized. 15 Zuckerberg deliberately concealed the fact that the Graph API was being privatized in his April 16 30, 17 removed. Facebook had already for over a year or more engaged numerous Developers to enter 18 into special whitelist 19 removed. The Develdpers 20 endpoints were ones 21 mobile ads 0r to provide other valuable consideration, such as intellectual property or data, to 22 Facebook. 23 being privatized in any of its numerous public disclosures regarding Graph API, of Which 24 dozens to 25 Facebook Platform. 26 207. was being removed from public View, 2014 announcement and instead made only a partial disclosure agreements to maintain private access Who Had Facebook Plaintiff, who were to the data after it was being Graph API hundreds of thousands 0f dollars in unrelated disclosed at any time in 2012, 2013, or then Plaintiff would have not invested in certain of its executives its 2014 that the Graph API was it sent applications and business on had a duty to speak truthfully and to 27 disclose material information concerning the closing of access to data arising 28 Agreement With Plaintiff to was not was publicly offered special, whitelist access to the privatized either agreed to purchase Facebook and that the information it from Facebook’s be Developers on Facebook Platform and Plaintiff s Agreement to Complaint for Injunction and Damages 74 abide by Facebook’s policies and procedures, as alleged above. Facebook’s public justification that it was implementing the anti-competitive Graph API restrictions in order to protect user privacy and control only partially disclosed Facebook’s justifications. Facebook concealed the anti-competitive to cloak these Graph API restrictions behind a revamp 0f its Facebook Login product in order changes under a narrative about user control and privacy._The narrative that Facebook removed the Graph API endpoints fact that after the to give users more control is directly on apps other than Facebook. The control users previously had t0 enable their friends t0 access data about them from apps other than Facebook was Facebook. This meant that only Facebook (and not Facebook’s users) could to 11 data a user’s friends could see about 12 instead of these other apps, unless all 13 these other apps. 14 the Login product announcement, Plaintiff would not have continued investing in 15 and business on Facebook Platform. Had Facebook not Further, them on other apps. Everyone Facebook users decided concealed Facebook provided its was forced to use Facebook, to re—upload all their digital data t0 anti-competitive full disclosure transferred over now decide What 10 208. by the changes were implemented, Facebook users could no longer enable their friends t0 access their information 16 belied Graph API restrictions its behind applications of these changes to certain Developers 17 throughout 2012, 2013 and 2014 but did not fillly disclose the nature of these changes to Plaintiff 18 until at least April 30, 19 full disclosure to certain 20 invest in its 2015. Had Facebook made full disclosure t0 Plaintiff at the time it made other Developers, then Plaintiff would not have invested 0r continued to applications and business on Facebook Platform. Further, Facebook’s public disclosure that made these changes out 0f respect for 21 209. 22 user privacy 23 intentionally, recklessly 24 disclosures t0 Developers regarding 25 Beginning 26 direction of Zuckerberg, 27 and negligently violated user privacy in order to effectuate Facebook’s anti—competitive scheme 28 of baiting Developers to rely on Facebook Platform only to shut them is it undermined by numerous Facebook proj ects at least that deliberately, willfully, and negligently violated privacy by only making misleading how Facebook collected, stored partial and transmitted user data. by 2012, Olivan directed a range of proj ects under the supervision and Cox and Lessin that Complaint for Injunction and Damages deliberately, intentionally, maliciously, recklessly down in order to restrain 75 Styleform further agreed that Facebook could “create applications that offer 49. similar features and services to, or otherwise compete With, [Styleform’s] applications”; that Facebook Platform may not always be impose additional and free t0 use; that Facebook could limit access to data or data-throttling restrictions if Styleform’s user bases increased substantially. Styleform reasonably concluded that these requirements meant that Styleform in the future may be charged a fee to access data or otherwise participate in Facebook’s economy, which fees would be charged \DOONQ that the in consistently across all Developers based on publicly established pricing, and amount of data Styleform could access managing its at any time costs in maintaining the API. Rate-limiting may be rate-limited to is assist Facebook common across most software APIs an API user can only access a certain amount of data over a specified period of 10 to ensure that 11 time. This assists the 12 maintaining the API. Further, Styleform understood Facebook to 13 compete With Styleform on a level playing field where the consumer decides Which products 14 succeed in the market. 15 50. API provider, Nowhere in the in this case Facebook, to Agreement did Facebook manage costs associated with mean that Facebook could could be state that access to data 16 provided on an unequal basis or that Facebook reserved 17 privileged, punitive or arbitrary basis. 18 reserved 19 Platform for over seven years and induced Developers, including Styleform, to build applications 20 on Facebook Platform instead of other operating systems 21 or Apple. 22 its 5 1. rights to remove Nowhere entirely the in the its Agreement did Facebook Graph API, the core APIs 24 entirely 25 to data 26 entire categories 28 on an unequal, state that it defined Facebook by Google, Microsoft Facebook’s public representations for seven years affirmed the reasonableness of Styleform’s interpretation of its Agreement with Facebook. by Facebook, if Facebook on unequal, privileged or 52. that like those offered 23 27 rights to provide data this day, its terms to convey that arbitrary terms, or that of Graph API endpoints, To data, stating that had intended by it As the Agreement was it could shut still could provide access down entirely could have and should have done Facebook’s Platform Policies access to so. include obligations around social Developers can “Only use friend data (including friends Complaint for Injunction and Damages it drafted list) in the person’s 21 concerning: around its its handling of user data in these various proj ects; 2009 internal discussions decisions not to provide a level competitive playing field; and decision regarding the anti-competitive Graph A its API restrictions. its 2011 or 2012 This duty arose, inter alia, from Defendants’ misleading partial disclosures of fact and misinformation made t0 Plaintiff and other Developers concerning the manner in Which Facebook collects, stores and transmits data, including that Facebook maintained the data With respect for user privacy and transmitted \OOONONUI developers 6n fair, 10 to equaland neutral terms. Defendants’ duty t0 speak truthfully and to disclose material information concerning Graph API it also arose from the its handling of user data and fact that Plaintiff and its decision to close access to the Facebook had shared confidential and highly sensitive information containing consumers’ private information. Defendants’ duty to speak truthfully and to disclose material information 213. 11 handling of user data and 12 concerning 13 from the 14 Plaintiff each 15 Plaintiff and 16 that Plaintiff permit 17 property. 18 its fact that Plaintiff and decision to close access to the Graph its Facebook had entered expended significant funds gave Plaintiff all rights its also arose commercial agreement in which in order to build businesses using data to use Facebook to audit into a API Facebook sent to under the Agreement. This Agreement filrther required highly confidential source code and intellectual Defendants’ duty to speak truthfillly and to disclose material information 214. handling of user data and Graph API 19 concerning 20 fiom the fact that Defendants made public representations around Facebook’s management of 21 user da_ta that induced tens of thousands of Developers t0 build businesses on Facebook Platform 22 for 23 plans to irreparably 24 2 1 5. its many years, its decision to close access to the greatly enriching Defendants all while also arose Facebook was actively implementing damage these Developers’ investments. The concealment of material Agreement With Facebook, facts by Defendants fraudulently induced as Plaintiff would not Plaintiff to 25 enter into 26 Defendants had disclosed the material 27 Facebook. Defendants benefited materially from their fraudulent, malicious and oppressive 28 conduct, including but not limited t0 financial benefits tied to the growth of Facebook and the its Complaint for Injunction and Damages facts. At no time did have entered into the Agreement Plaintiff rescind its if Agreement with 77 dramatic reversal of its stock price as a result of restraining competition in a Wide range of software markets and weaponizing Facebook Platform t0 force Developers to build Facebook’s new mobile 216. advertising business 0r risk being shut down. Plaintiff invested considerable capital, labor, time, 0r effort into developing its technologies in reliance on Facebook’s misrepresentations and misleading partial disclosures. 217. Plaintiffs reliance was reasonable because Facebook had consistently made these representations and misleading partial disclosures for seven years and tens of thousands of other \OOONQ Developers also relied on these representations and misleading partial disclosures that Facebook was a responsible steward of privacy and a responsible and 10 fair referee of Facebook Platform, one of the largest software economies globally. 21 8. 11 Plaintiff’s reliance was foreseeable by Facebook as Zuckerberg has publicly stated 12 Facebook’s intent was t0 induce Developers t0 help generate revenues for Facebook, and 13 Facebook’s conduct for seven years was designed to induce such reliance. Plaintiff was injured as a result of its reliance on Facebook’s representations and 14 219. 15 material omissions, 16 in 17 In taking the actions alleged herein, Defendants acted with fraud, malice and oppression, and in 18 reckless disregard of the rights of Plaintiff. 220. 20 Accordingly, Defendants are liable to Plaintiff for damages. [Against Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar] 22 and repleads the foregoing paragraphs as though 221. Plaintiff re-alleges 222. Defendants clearly and unambiguously represented to Plaintiff from set forth fully herein. 2015 were maintaining a until at least April 30, 26 Plaintiff to build software applications, including 27 statements, announcements, documents and meetings as alleged herein. 223. that they fair May 2007 and neutral operating system for 25 28 trial. COUNT III: INTENTIONAL MISREPRESENTATION 21 24 false or acted recklessly in representing as true, an unascertained amount in excess 0f $25,000.00, t0 be established according to proof at 19 23 Which Facebook knew to be numerous representations 0f fact in official These represehtations were made repeatedly by Defendants on many occasions Complaint for Injunction and Damages 78 and, in particular, 0f Zuckerberg, and the produced. Styleform could not have Facebook Platform FAQ document Facebook had known that Zuckerberg decided to restrict access to the data necessary for Styleform’s technology t0 work, as Facebook had exclusive access t0 this information and had taken measures to actively conceal this fact from Styleform, other U1'-P Developers, and the public. ON fl As 55. a result of Defendants’ public representations regarding Facebook Platform, Styleform began building Facebook applications for clients and embraced a business strategy whereby Facebook Platform became an important part of its overall business beginning Styleform built the first Swedish Facebook App in partnership with a in 2007. Swedish advertising 10 agency, Pronto Communications. The application, “Rosa Bandet,” or “Pink Ribbon” (“Pink 11 Ribbon App”) was sponsored by the 12 foundation. 13 research by encouraging Facebook users 14 profiles. The Pink Ribbon App required the 15 order t0 function. 16 research and spread to 17 client, Cancer Fonden, a leading Swedish cancer awareness The purpose of the Pink Ribbon App was 56. As The Pink Ribbon App to donate to support breast cancer awareness and display a pink ribbon 0n full friends list API and raised over 200,000 other their and Facebook Graph API endpoints in Euro to support breast cancer more than 250,000 Facebook users. a result of Defendants’ public representations regarding Facebook Platform, 18 Styleform developed another application With a Swedish advertising agency. This application was 19 called “Klimatsmart,” 0r “Climate Smart” (“Climate 20 Smart 21 planet. 22 in order to function. 23 Climate Smart 24 day, 25 weaponization of the Facebook Platform economy. 26 App was to support solutions to address climate change and improve the health of the The Climate Smart App required the full friends list API and other Graph API endpoints The Climate Smart App spread to more than 17,000 Facebook users. The App remains an approved Facebook App that Facebook considers and thus Styleform continues 57. Smart App”). The purpose of the Climate As to active to this be harmed by Defendants’ fraudulent and malicious a result of Defendants’ public representations regarding Facebook Platform, 27 Styleform developed another application called “Nyarsloften” or 28 Year Resolutions App”). The purpose of the Complaint for Injunction and Damages “New Year Resolutions” (“New New Year Resolutions App was to suggest New 23 2012 on that he knew to be Plaintiff to rely false at the time on such statements t0 avoid public relations he made them. Cox intended for Develofiers in order to induce them to generate like revenues for Facebook and and legal ramifications for Cox’s malicious, oppressive, fraudulent, reckless, negligent and/or anti-competitive conduct. Olivan repeatedly made statements and directed employees to make statements 230. from 2012 on that he knew to be like Plaintiff to rely and false at the time on such statements to avoid public relations he made them. Olivan intended for Developers in order t0 induce them to generate revenues for Facebook and legal ramifications for Olivan’s malicious, oppressive, fraudulent, reckless, negligent and/or anti-competitive conduct. 23 1. 10 Lessin repeatedly made statements from 2012 on that he made them. Lessin intended for Developers knew to be false at the on such statements 11 time he 12 order to induce 13 ramifications for Lessin’s malicious, oppressive, fraudulent, reckless, negligent and/or anti- 14 competitive conduct. 15 232. them to generate revenues for like Plaintiff t0 rely Facebook and to avoid public he knew to be false made them. Vernal intended for Developers from 2012 on 17 like Plaintiff to rely 18 and 19 fraudulent, reckless, negligent and/or anti-competitive conduct. that at the on such statements to avoid public relations 233. time he in order to induce them to generate revenues Facebook Sukhar repeatedly made statements and directed employees to make statements from 2012 on that he knew to be 22 like Plaintiff to rely 23 and to avoid public relations and 24 fraudulent, reckless, negligent and/or anti—competitive conduct. 234. for and legal ramifications for Vernal’s malicious, oppressive, 21 25 and or legal Vernal repeatedly made statements and directed employees t0 make statements 16 20 relations in false at the time 0n such statements he made them. Sukhar intended for Developers in order t0 induce them to generate revenues for Facebook legal ramifications for Sukhar’s malicious, oppressive, Facebook’s duty to speak truthfully and to disclose material information 26 concerning the closing of access t0 data also arose from misleading partial disclosures of fact and 27 misinformation 28 access to data. made to Plaintiff Complaint for Injunction and Damages and other Developers concerning the allegedly fair and equal 80 235. from 2012 Further, until 2015 upon Zuckerberg’s personal this facts, Plaintiff scheme \OOONQ restrict data access on Facebook Platform. would never have made an investment still If Defendants had not in the App, and would not have continued and business on Facebook Platform. Even When Zuckerberg announced 2014, Zuckerberg Facebook Platform and to require dozens of employees t0 intentionally misrepresent material t0 invest in its applications 236. Defendants engaged in a scheme to intentionally misrepresent critical facts about about Zuckerberg’s decision to engaged in instruction, the purported closing of the data on April 30, intentionally misrepresented his decision to restrict data access for widely used data in Graph API and only partially revealed misleading material facts While suppressing from many 10 others, resulting in filrther invéstment 11 actively participated, ratified, served as agents 12 intentional misrepresentation in Zuckerberg’s announcement. 13 237. Plaintiff and other Developers. The Defendants and communicated key components of this Defendants made these representations in order to induce Developers to build Facebook and 14 applications that generate revenue for 15 ramifications for their fraudulent, malicious, oppressive and anti-competitive conduct. The 16 Defendants participated, ratified and/or served as agents of Facebook in connection with their 17 material omissions and their actions to conceal material facts from Plaintiff and tens of thousands 18 of other Developers. 19 238. t0 avoid public relations and legal Defendants benefited materially from their fraudulent, malicious and oppressive 20 conduct, including but not limited to financial benefits tied to the growth of Facebook and the 21 dramatic reversal of its stock price as a result 0f oligopolizing for Facebook and 22 the various markets associated With 23 24 25 239. close partners Facebook Platform. Plaintiff invested considerable capital, labor, time or effort into developing its technologies in reliance on Facebook’s representations. 240. Plaintiffs reliance was reasonable because Facebook had consistently 26 representations as to equal access and a fair playing field in 27 and tens 0f thousands of other Developers also relied on these representations. 28 its 241. Plaintiff’s reliance Complaint for Injunction and Damages Facebook Platform was foreseeable by Defendants, made public for seven years as Zuckerberg has publicly 81 partner Developers. N 61. Further, had Styleform‘ been aware of Zuckerberg’s decision to on the Platform beginning in 2012 late to transition-his advertising business extort Developers from desktop computers to mobile phones, and further to privatize thé very APIs that Styleform relied upon in NONUl-bw order to effectuate the extortion scheme, Styleform would have ceased Facebook Platform economy. Had Styleform been aware of these and its closest partner Developers, Styleform would not have facts altogether operating in the known only to Facebook built applications on Facebook Platform or continued to maintain them until the present day. On April 30, 2015, Facebook required all applications to 62. Which had the 10 V. 2.0, 11 access, to the 12 function at 13 Styleform “upgrade” 14 knew it was not realistic 15 notices to “upgrade” 16 effect “upgrade” t0 Graph API of eliminating the access of most Developers, including Styleform’s most widely used and important Graph API endpoints. Styleform’s Apps would not all 63. Without access t9 these Graph its Apps to Graph API or possible. API endpoints, so Facebook’s requirement that was not realistic or possible, and Facebook V. 2.0 The Developer dashboard When Facebook knew “upgrading” was for Styleform’s Apps included not feasible or possible. By deciding to end access to Graph API, Facebook made it impossible for 17 Styleform to build a Viable business with 18 purchase terms entered into by Styleform With 19 Styleform to recoup any of its investment 0f capital, 20 Styleform had 21 late 22 never would have invested capital and resources in building applications on Facebook Platform. 23 Apps, to abide by the license agreements and its clients known that Facebook had made the 2012 but remarkably waited 64. its until April 2015 and the Apps” end human labor, users, and for time, effort and energy. If decision to remove access to the Graph to actually Each one of Styleform’s Apps’ users entered end such access, into a license agreement With Styleform. Facebook requires Developers to enter into license agreements With users of 25 applications for Facebook. These license agreements must, 26 users of these applications adhere to Facebook’s terms of service. A11 Developers 27 these terms prior to accessing any 28 65. in then. Styleform 24 among API ‘ other things, require that the must agree to Graph API endpoints. Accordingly, Defendants knew, or should have known, about the existence of Complaint for Injunction and Damages 25 competitive conduct. ' 250. Cox repeatedly made statements and directed employees to 2012 on without any reasonable grounds #WN for Developers like Plaintiff to rely make for believing the representations t0 on such statements in order to induce be statements from true. Cox intended them to generate revenues for Facebook and to avoid public relations and or legal ramifications for Cox’s malicious, oppressive, fraudulent, reckless, negligent and/or anti-competitive conduct. 25 1. \OOOQQUI Olivan repeatedly made statements and directed employees to make statements fiom 2012 on Without any reasonable grounds for believing the representations to be true. Olivan intended for Developers like Plaintiff to rely on such statements in order to induce them to 10 generate revenues for Facebook and to avoid public relations and or legal ramifications for 11 Olivan’s malicious, oppressive, fi'audulent, reckless, negligent and/or anti-competitive conduct. 12 252. Lessin repeatedly made statements and directed employees to make statements 13 from 2012 on Without any reasonable grounds l4 intended for Developers like Plaintiff to rely on such statements in order to induce them to 15 generate revenues for Facebook and to avoid public relations and or legal ramifications for 16 Lessin’s malicious, oppressive, fraudulent, reckless, negligent and/or anti-competitive conduct. 17 253. Vernal repeatedly made statements and directed employees to ‘ be make from 2012 on without any reasonable grounds for believing the representations 18 19 for believing the representations to t0 Lessin true. statéments be true. Vernal intended for Developers like Plaintiff to rely on such statements in order to induce them to 20 generate revenues for Facebook and to avoid public relations and or legal ramifications for 21 Vemal’s malicious, oppressive, fraudulent, 22 254. reckless, negligent and/or anti-competitive conduct. Sukhar repeatedly made statements and directed employees to make statements 23 from 2012 0n without any reasonable grounds 24 intended for Developers like Plaintiff to rely on such statements in order to induce them to 25 generate revenues for Facebook and to avoid public relations and 0r legal ramifications for 26 Sukhar’s malicious, oppressive, fraudulent, reckless, negligent and/or anti-competitive conduct. 27 28 255. Plaintiff was not for believing the representations to aware that Defendants’ representations were be false, true. and Sukhar Plaintiff developed their technologies in reliance on the truth of Facebook’s representations. Complaint for Injunction and Damages 83 256. Plaintiff s reliance on the because Defendants had consistently stating that 4> was made these representations was justified for seven years Without ever could prevent bevelopers from building the specific kinds 0f applications Facebook it enticing truth of Defendants’ representations them to build all along. Plaintiff was injured as a result 257. 0f its reliance on Defendants’ representations, in an NONU‘I unascertained amount in excess of $25,000.00, to be established according t0 proof at trial. In taking the actions alleged herein, Defendants acted With fraud, malice and 258. oppression, and in reckless disregard of the rights of Plaintiff. Accordingly, Defendants are liable to Plaintiff for damages. 259. 10 COUNT V: INTENTIONAL INTERFERENCE WITH CONTRACT 11 [Against Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal 12 13 and Sukhar] and repleads the foregoing paragraphs as though 260. Plaintiff re-alleges 261. Plaintiff had entered into license agreements, contracts and/or subscriptions With set forth fully herein. 14 - 15 its customers. 16 262. Defendants 17 263. Defendants intentionally interfered With and disrupted these contracts by managing 18 their Platform as a bait 19 knowing 20 knew of these contracts, license and switch extortion scheme from 2007 through that interference with these contracts 264. With end users 22 interference with these contracts 23 Defendants” acts in ending Plaintiff’s access. 265- 25 Defendants. 26 266. 27 amount would be at least When it terminated Plaintiff s would be a certain or substantially certain to occur as a result 0f result, Plaintiff has suffered in excess 0f $25,000.00 to Plaintiff's contracts access to the Graph API, despite knowing that Plaintiffs contracts With users and customers As 2015, despite certain or substantially certain to occur. Defendants further intentionally interfered With and disrupted 21 24 agreements and/or subscriptions. were thereby disrupted by and will suffer damage in an unascertained be established according to proof at trial. 28 Complaint for Injunction and Damages 84 access in order t0 wipe out all other cdmpetitive dating applications from the Platform. dating apps have historically relied heavily on Facebook te identify potential dates. the APIs that enable this access to all but seven dating applications, Many By restricting Facebook gave Tinder and six other dating apps effective control of the entire dating industry. Zuckerberg directed his subordinates to enter into these arrangements in 2014 and 2015 because at the time he did not find the dating market attractive enough for Facebook t0 enter. 69. Philanthropy and lifestyle applications like those built by Styleform were OONQ considered more competitive than dating applications. In own applications related to the Apps built by Styleform fact, Facebook has since launched after shutting down Styleform and its many Had Facebook refrained from the Facebook Platform 10 other businesses in these categories. 11 Extortion Scheme, Styleform could have generated additional significant contracts With paying 12 clients to build its business 13 With a potential acquirer t0 purchase Styleform, a substantial portion of the acquisition plan 14 depended upon Styleform’s business building Facebook applications, and the Facebook Platform 15 Extortion 16 Styleform’s business. Styleform could have been acquired for an amount in the range 0f the 10W 17 seven figures in U.S. dollars but for Facebook’s anti-competitive conduct. In 18 induced due to Defendants’ fraudulent conduct to expend capital and uncompensated labor in 19 developing and maintaining the Pink Ribbon App, the Climate Smart App, the 20 Resolutions App, and other software, from 2007 through at least 201 5 in the 21 U.S. dollars, to be determined at on Facebook Platform. Scheme negatively impacted these Further: Styleform engaged in discussions acquisition discussions and decreased the value of total, Styleform was New Year mid six figures in trial. 22 IV. 23 24 70. ZUCKERBERG LAUNCHES FACEBOOK PLATFORM IN MAY 2007, PROMISING EQUAL ACCESS AND A LEVEL PLAYING FIELD At 3PM PDT 0n May 24, 2007, Zuckerberg made a self—described crowded room 0f software developers in San Francisco. Zuckerberg 25 announcement 26 announced the launch of Facebook Platform, Which he had described weeks 27 interview with Fortune magazine as “the most powerful distribution 28 created in a generation.” to a revolutionary He went on in the Complaint for Injunction and Damages earlier in mechanism that’s an been Fortune interview to describe the motivation for 27 represented for many years that organic growth was business on Facebook Platform. Organic growth U) APIs and full friends list, because these APIs a key reason a developer should build was primarily achieved through the newsfeed let potential new users of an app download the app from existing users Without the app needing reach that new user. Zuckerberg only to restrain competition to its learn about and to purchase advertisemefits t0 decided t0 implement the anti—competitive scheme in 2012 not make way for new Facebook products but also t0 hold hostage the VON tens of thousands of Developers that relied eliminating the full friend list, on Facebook Platform friend permissions for organic growth. By and newsfeed APIs, Zuckerberg placed tens of thousands of Developers in an impossible position: either spend hundreds of thousands of dollars new mobile 10 each year buying ads with Facebook’s 11 or business. For Developers 12 demands, pony up the cash, and stay in business. 273. 13 2014 Based Who could afford in significant part it, upon the Facebook Platform was the most advertising product or shut the choice was down the product clear: give in to representations Defendants effective organic Zuckerberg’s made from 2007 growth and distribution channel 14 until 15 for applications, Plaintiff decided to build its business 16 represented that any friends of Plaintiff’s users were qualified prospective customers 17 enter into license agreements With Plaintiff With a single click or tap 18 friend or a post in their newsfeed. There were on the order of millions of friends of the 267,000 19 end users Styleform had acquired across its 20 reasonable expectation of prospective economic relations with these prospective customers and 21 Defendants interfered With Plaintiffs prospective economic advantage with these customers 22 whenever they decided to hamper or shut down organic growth and 23 occurred from 2009 through 2015. 24 that 274. on Facebook Platform because Facebook on a notification from a distribution channels, which The conduct 0f Defendants was wrongful on a number of independent grounds, including violation of California’s Unfair Competition law, the 26 Advertising Law, California’s Cartwright Act, and the 27 intentional misrepresentation, negligent misrepresentation, 275. could three Apps. Therefore, Plaintiff had an obj ective and 25 28 Who Defendants knew of Plaintiff’s Complaint for Injunction and Damages FTC Order, California’s False common law causes of action for and concealment. relationships with the users or prospective users of 86 its Apps, and knew or should have known of the marketing and advertising activities described herein. 276. Particularly possibility Defendants intentionally disrupted these relationships from 2009 through 2015. by 2012, Plaintiff’s business was operating entirely on borrowed time With no 0f obtaining economic advantage With prospective customers and yet Plaintiff had no way 0f knowing this was 277. the case until at least 2015. , Further, Defendants intentionally disrupted these relationships When they decided \OOOQON from 2007 through at least 2015 to fail to provide proper privacy controls for Graph API endpoints. 10 278. Defendants intentionally disrupted when they ended Plaintiff’s relationships with users and Graph API, despite knowing that interference with 11 prospective users 12 these relationships 13 in ending Plaintiffs access. 14 top executives, including Zuckerberg, identifying Developers that 15 business disruption as a result of the changes. Employees passionately urged Facebook executives 16 not t0 disrupt these businesses, and upon learning that Zuckerberg 17 mind, quit the company or the Platform team in protest. 18 279. would be access to certain 0r substantially certain to occur as a result of Facebook’s act Facebook employees regularly circulated spreadsheets to Facebook’s would experience a maj or was not going t0 change his Defendants further intentionally interfered with and disrupted Plaintiff s users and prospective users When it did terminate 0n April 19 relationships with 20 30, 2015, despite 21 substantially certain to occur as a result 0f Facebook’s conduct in ending Plaintiff‘s access. 22 23 24 25 26 27 28 280. its knowing that interference with these relationships Plaintiff’s relationships With its Plaintiff’ s access would be users and prospective users certain or was thereby disrupted, and Will be further disrupted. 28 1. As a result, Plaintiff suffered damage $25,000.00 to be established according to proof at 282. in an unascertained amount in excess of trial. In taking the actions alleged herein, Defendants acted with fraud, malice and oppression, and in reckless disregard of the rights of Plaintiff. 283. Accordingly, Defendants are liable to Plaintiff for damages. Complaint for Injunction and Damages 87 Applications can be Virallv engineered to reach millions 0f Facebook users quickly and efficiently throth mass the profile, news feed, and mini-feed. distribution through the social graph with your application. transactions that you . With access .. t0 deep integration into the comes a new opportunity for you You are free t0 monetize your canvas pages through control.” (See site, and to build a business advertising 0r other “Facebook Platform Launches,” http://Web.archive.0rg/Web/ 20070706002021/http:l/developers.facebook.com/news.php?blog=1 &story=21). Facebook’s announcement thus represented that (1) Developers applications such as photos and notes as distribute applications through 10 applications through 11 have the “same access t0 integration” for Facebook employees; Facebook Platform; and (3) Developers are able t0 Developers are able to monetize Facebook Platform. Zuckerberg went 0n to say: “The social graph 74. (2) is our base, and we’ve built a 12 framework 13 environment. 14 applications 15 This 16 to 17 integration 18 information and together 19 long term to serving as a platform that enables Developers to build applications on a level playing 20 field because 21 is that is completelv optimized for developing social applications Within our . .. We believe that there is more value for everyone in letting other people develop on top 0f the base we’ve good could ever possibly provide 0n our own. . .. This is a big opportunity. and distribution and developers provide the applications. it is we benefit.” We help users share more Zuckerberg thus represented that Facebook was committed a big opportunity for everyone. Zuckerberg then announced that Facebook had been working With over 70 developers in anticipation 0f the launch of Facebook Platform, including 23 Lending Club, Microsoft, 24 Mobile USA, Warner Bros, Washington Post and many 25 leading Internet blogger, Mashable, at http://mashable.com/2007/05/24/facebook—f8- 26 live/#CIfbgFfPV5q.O.) 28 76. .. We provide the 22 27 . for us because if developers build great applications then they’re providing a service our users and strengthening the social graph. 75. we built than Around Obama for America, Photobucket, Red Bull, Amazon, Forbes, iLike, Twitter, Uber, Virgin others. (See live blog 0f F8 event from 4PM during Zuckerberg’s presentation, he announced five case studies from these early developer partners aimed Complaint for Injunction and Damages at showing how easy it was for all developers to 29 COUNT VIII: VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 17500 [Against Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar] and repleads the foregoing paragraphs as though 293. Plaintiff re-alleges 294. Defendants clearly and unambiguously represented to Plaintiff from set forth fillly herein. until at least April 30, 2015 that they were maintaining a fair May 2007 and neutral operating system for \DOOflQUl-b Plaintiff to build software applications, including, but not limited t0, the specific representations in official statements, Plaintiff believed 10 295. announcements, documents and meetings alleged herein, all of Which and relied upon, along With thousands of other Developers. Facebook further represented to all users and Developers that Facebook would 11 all 12 also respect user privacy settings. Facebook’s representations to users that their data 13 its 14 2007 through 2015 Facebook repeatedly and by design 15 a piece of data Via 16 its 17 employees 18 time respect user privacy and pass privacy settings to Developers to ensure Developers could Platform was false and Defendants its knew these argued against These representations this practice t0 users own failures and were silenced by Facebook executives. and Developers were made repeatedly by Facebook May 2007 until at least April 30, 2015, on many occasions from 20 alleged herein, and in particular in speeches 21 direction of Zuckerberg 0r one of the Defendants 22 website. These representations were false. Defendants 23 made such representations 24 directed other 25 Plaintiff 27 on Platform APIs. Moreover, Facebook deliberately took measures to architect who passionately including Facebook employees to 0n the dates and times by Zuckerberg and other Facebook employees at the and in official statements posted on Facebook’s knew such representations recklessly and Without regard for their truth and any other person 297. in from failed to pass a user’s privacy settings Platform in a manner that would blame Developers for Facebook’s 296. was secure representations to be false. For instance, 19 26 at to be false 0r when they made them or make them. The representations were made to deceive who might encounter the representations. These representations were made to induce Developers to enter Facebook and t0 invest considerable time, capital into contract with and labor in building applications on Facebook 28 Complaint for Injunction and Damages 89 Platform. Plaintiff invested a substantial applications on Facebook Platform 298. sum in the in reliance mid on these figures in capital and labor building false representations. These representations were further made advertising products six to induce from Facebook, which Styleform purchased Developers to purchase at various times, in reliance on these false representations. 299. As a result, Defendants were unjustly enriched at the expense of Plaintiff in an unascertained amount in excess of $25,000.00 to be established according t0 proof at \OOOQO 300. trial. In taking the actions alleged herein, Defendants acted with fraud, malice and oppression, and in reckless disregard 0f the rights of Plaintiff. 301. 1o 11 Accordingly, Defendants are liable to Plaintiff for restitution and/or disgorgement, as well as injunctive relief. 12 CODE IX: VIOLATION OF BUSINESS AND PROFESSIONS §§ 16720 [Against Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar] COUNT 13 14 15 16 and repleads the foregoing paragraphs as though 302. Plaintiff re-alleges 303. From 2007 through set forth fully herein. i7 various APIs at least 2015, Defendants repeatedly represented that would be offered on its 18 Platform and 19 all 20 APIS and other Platform products would not depend 21 agreement to purchase a certain amount of advertising products from Facebook. Thus, for seven 22 years, Defendants represented Platform 23 distinct products that 24 its neutral, equal and level terms With respect t0 Developers, including With respect to Facebook. Defendants further represented that access t0 304. At way on a company’s Willingness or APIs and advertising products as were offered independently least in any entirely separate and to Developers. by 2012, Zuckerberg implemented an extortion scheme whereby he 25 required Defendants to provide the Platform 26 Developers also purchased Facebook’s 27 coerced Developers to purchase Facebook’s 28 shut off from the Platform new mobile API products. At Complaint for Injunction and Damages API products Developers only if the advertising product. Further, Defendants new mobile all to certain advertising product upon threat of being times while Defendants coerced other Developers 90 What is Facebook Platform? Facebook Platform is a development system that enables companies and developers to build applications for the Facebook website. where 0f Facebook’s 24 million active users can interact with them. Facebook all Platform offers deep integration in the Facebook website, distribution through the social graph and an opportunitv t0 build a business. * * * \OOONQUl-h What’s new in Facebook Platform? We’ve been adding functionality since Facebook Platform first shipped in beta in August 2006. With the latest evolution of Facebook Platform however, third-partv developers can now create applications on the Facebook site with the same level of integration as applications built bV internal Facebook developers. Now developers everywhere have the Facebook applications as well as the potential for mass ability to create Facebook site, graph and new business that deeply integrate into the distribution through the social opportunities. * * * 10 11 Whv did Facebook launch Facebook Platform? Our engineers have created great applications for Facebook, but help us we reco Qnized that third—partv make Facebook an even more powerful social utilitv. gives developers everywhere the tools to create applications that 12 13 14 15 16 17 18 19 21 22 we iust wouldn’t have the resources to build in-house, and those applications make Facebook an even better way for our users to exchange information. Developers also benefit from the Facebook Platform as it gives them the potential to broadly distribute their applications and even build new business opportunities. >I= * * What kinds 0f applications can be built on Facebook Platform? The kinds of applications developers can build on Facebook Platform are limited only by their imaginations. Because applications are based on the Facebook social graph they can be more relevant to users, keeping people in touch with what and Whom they care about. We’ve already seen a variety of applications built bV our developer partners, including those for sharing media files, book reviews, slideshows and more. Some of the possibilities of Facebook applications are illustrated in the Facebook Platform Application Directory, available >l< 20 developers can Facebook Platform >X< at http://facebook.com/apps. >X€ Are there anv restrictions on what developers can build? Developers are encouraged to exercise their creativity when building applications. Of course, all gpplications are subiect to the Terms of Service that every developer agrees to, which include basic requirements such as not storing anV sensitive user information, not creating any offensive or illegal applications, and not building 23 24 >x< 25 26 27 =1: :1: How will Facebook deal with applications that compete with one another 0r even compete with Facebook—built applications? We welcome developers with competing applications, including developers whose applications might compete With Facebook—built applications. features. 28 And users will alwavs have the power t0 Facebook’s report any applications that compromise trusted environment, keeping our users’ information safe. anything that phishes or spams users. ManV applications are likelv to offer similar We’ve designed Facebook Platform so that applications from third-partv developers are on a level playing field With applications built bV Facebook. Complaint for Injunction and Damages 31 purchasing advertising, but also purchasing the ability to gain an unfair competitive advantage against other market participants. Thus, restricting the market for Facebook’s mobile advertising products has actually increased Facebook’s profits in that market. Defendants represented Facebook’s Platform APIS and 307. its advertising products as separate and distinct in order to induce Developers to enter into contract with invest considerable time, capital and labor in building applications Plaintiff invested a substantial applications on Facebook Platform representations 10 sum were further in the in reliance 308. six to on Facebook Platform. figures in capital and labor building on these false representations. made to induce Developers Facebook, Which Styleform purchased 11 mid Facebook and to These purchase advertising products from at various times, in reliance 0n these false representations. Further, Styleform engaged in other marketing activities in preparation for its new 12. public launches, such as purchasing advertising to test various ad campaigns in Facebook’s 13 mobile advertising product. As a result of Facebook’s anti-competitive scheme, Plaintiff was 14 prevented from participating in Facebook’s advertising market since the apps could not properly 15 function. 16 'new mobile advertising market as a result of Facebook’s anti-competitive scheme. 17 18 309. As a result, Plaintiff suffered damage $25,000.00 to be established according to proof at 19 20 Tens of thousands of other Developers were prevented from participating in Facebook’s 3 10. in an unascertained amount in excess of trial. In taking the actions alleged herein, Defendants acted With fraud, malice and oppression, and in reckless disregard of the rights of Plaintiff. Accordingly, Defendants are liable t0 Plaintiff for damages. 21 31 22 COUNT X: VIOLATION OF BUSINESS AND PROFESSIONS CODE §§ 24 26 17200 [Against Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar] 23 25 1. and repleads the foregoing paragraphs as though 3 12. Plaintiff re—alleges 3 13. Defendants” representations and conduct were designed set forth fully herein. to, and 27 and other Developers to create applications for Facebook with representations 28 things, a level playing field, fair competition, Complaint for Injunction and Damages and a chance to build a business. did, entice Plaintiff of, among other Facebook decided 92 to open Graph API and certain types 0f data, and not others, precisely to induce Developers to build certain types of applications, including Styleform’s philanthropy-based applications regarding cancer awareness and climate change. Defendants represented to Developers that their applications would be treated on a level playing field with any applications Facebook decided to launch in the filture. Defendants also represented to developers that Facebook was committed over the long term to enable Developers to build businesses using their Facebook applications. Defendants caused substantial harm to Plaintiff and other Developers When 3 14. it then \OOONON decided to leverage its Platform as a weapon in various bait and switch schemes from 2009 to 201 1, 2012 to 2015 and again in 2018 in response to the Cambridge Analytica data many Developers under 10 Defendants baited, extorted and then eliminated 11 Facebook executives knew to be 12 difficult for Developers t0 adhere to user privacy settings 13 settings to 14 false When it was, in fact, Facebook by crisis. a privacy narrative that itself Who made it extremely willfully failing t0 pass privacy, Developers in its APIs. The 315. by efforts Plaintiff and other Developers helped to drive user adoption of 15 Facebook by enhancing the user experience, increase 16 additional advertising for Facebook, thus creating substantial additional revenue 17 for users’ time 0n Facebook, and create and user growth Facebook’s benefit. 18 Defendants’ decision to 3 16. restrict access t0 Graph API data does not enhance user 19 privacy because and control because the privacy issues With Facebook Platform do not stem from 20 the ability 0f users to control their data and take their data t0 other applications, but rather 21 Facebook’s 22 these users 23 apps other than Facebook; (2) setting the sharing default t0 “0n”; and (3) failing to pass privacy 24 settings 25 own decision by as early as (1) hiding the privacy settings for when transmitting 3 17. 2007 and continuing through 2018 data over By restricting its from to fabricate the consent What data their friends can access about them in APIs. access t0 Graph API, Facebook has oligopolized for itself and other 26 large Developers that entered into special agreements with Facebook the 27 applications competitive With those developed and thousands of other Developers, 28 Which harms consumers, Developers, and competition With no countervailing benefit. Complaint for Injunction and Damages of by Plaintiff ability t0 create 93 including those that compete With Facebook’s Facebook that will own applications; remain neutral among competing applications, including those compete with Facebook; Applications similar in purpose and content will be allowed t0 compete on a . “level playing field,” whereby users Which is defined will ultimately decide as open and fair market competition which applications win the market, not Facebook or other third parties; Implicit in this definition of fairness choice, Facebook represented it and market adoption based on consumer shall take no actions to promote its from Developers Who have a 10 applications, or preferred applications 11 relationship With Facebook, in order to slant the playing field in a 12 makes 13 it less likely for users ultimately to decide the Facebook . 14 shall enable 16 in order t0 access . 18 . manner that winners in the market; their applications on Facebook; Developers shall not be required to purchase advertising on Facebook Platform . 17 special Developers t0 build businesses on their operating system by directly monetizing 15 own Graph API endpoints; Developers will be able to sell ads on their application pages; and Developers will have a choice as to whether they monetize their application 0n Facebook’s operating system. 19 20 DEVELOPERS RESPOND ENTHUSIASTICALLY TO FACEBOOK PLATFORM, BUT BY 2009, ZUCKERBERG IS ALREADY SECRETLY IDENTIFYING WAYS TO WEAPONIZE THEIR RELIANCE 21 22 23 The blogging community went 80. into an immediate and prolonged frenzy over 24 Zuckerberg’s announcement. Paul B. Allen, founder of Ancestry.com and well—known Internet 25 blogger, 26 same day, 27 Facebook F8 Platform launch 28 It summed up “I the general sentiment expressed saw history was a Whopper. . .. in the making today. event. This . .I by countless bloggers When he wrote was lucky enough t0 be announcement was at least in San Francisco an 8.0 on the Richter that for the scale. A huge new opportunity was presented to the few hundred people in the Complaint for Injunction and Damages 33 327. Thus, Defendants were unjustly enriched at the expense of Plaintiff in an unascertained amount in excess of $25,000.00 to be established according to proof at 328. trial. Accordingly, Defendants are liable t0 Plaintiff for restitution and/or disgorgement, as well as injunctive relief. JURY TRIAL DEMAND Plaintiff demands a trial by jury on all claims so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiff asks this Inc., 10 Facebook Ireland Christopher Cox, Javier Olivan, Samuel Lessin, A judgment or order declaring the conduct 0f Defendants Facebook, Inc. and A. 12 Facebook Ireland 13 B. 15 Mark Zuckerberg, Michael Vernal and Ilya Sukhar as follows: 11 14 Ltd., Court to enter judgment against Defendants Facebook, Ltd., as alleged, constitutes breach of contract; A judgment or order declaring that the conduct of Defendants Facebook, Inc., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, constitutes concealment; C. A judgment or order declaring that the conduct of Defendants Facebook, Inc., 16 Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, constitutes intentional 17 misrepresentation; 18 D. A judgment or order declaring that the conduct of Defendants Facebook, Inc., 19 Zuckerberg, Cox, Olivanz Lessin, Vernal and Sukhar, as alleged, constitutes negligent 20 misrepresentation; 21 E. A judgment or order declaring that the conduct 0f Defendants Facebook, Inc., 22 Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, constitutes intentional 23 interference With contract; 24 F. A judgment or order declaring that the conduct of Defendants Facebook, Inc., 25 Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, constitutes intentional 26 interference With prospective 27 28 G. economic relations; A judgment or order declaring that the conduct of Defendants Facebook, 1110., Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, constitutes negligent Complaint for Injunction and Damages 95 interference with prospective business relations; A judgment or order declaring that the conduct of Defendants Facebook, Inc., H. Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, violates California’s False Advertising Law; A judgment or order declaring that the conduct of Defendants Facebook, Inc., I. Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, violates California’s Cartwright OONON Act; A judgment or order declaring the conduct of Defendants Facebook, Inc., A. KO 10 Zuckerberg, Cox, Olivan, Lessin, Vernal and Sukhar, as alleged, unlawful under California’s Unfair Competition Law; 11 B. A judgment, order, 0r award of damages adequate to compensate Plaintiff; 12 C. A permanent injunction requiring Defendants Facebook, Inc., Zuckerberg, Cox Graph API and enable users on 13 and Olivan 14 Facebook and on third party applications; 15 Facebook Platform 16 Graph API V1 .0 endpoints, 17 controls to create a single set of clear and consistent privacy controls, 18 sharing control t0 “off” rather than to “on”; (3) cease 19 the consent of users in order to access data they have not explicitly consented t0 sharing with 20 Facebook, Which harms 21 and California privacy law; 22 all 23 predicated upon any other action 0r the delivery of any consideration which has not been 24 published t0 25 26 t0: (1) restore to the comply with the all practices 0r occurrences D. all (2) FTC implement proper privacy controls and measures in Order, including (a) passing privacy settings for (b) ceasing the practice all of hiding the Apps Others Use privacy all Developers and consumers (4) cease all to fully control data access proj ects in Who rely and (c) set the default which Facebook on Facebook and fabricates violates App Review or Unified Review activities; and on Facebook Platform where access to market participants in an arms—length transaction GDPR (5) cease any product, free or paid, at is standard public pricing terms. A permanent injunction prohibiting Defendants Facebook, Zuckerberg, Cox and Olivan from interfering with Plaintiff’s contracts and those of any other Developer; 27 28 Complaint for Injunction and Damages 96 Facebook and the Developers Who were selected to 82. of Facebook Platform quickly and create a level of comfort instance, set out to to induce participate in the private beta make Developers comfortable With this them to on May 29, 2007, just five_days after participate in this entirely grandiose Vision new industry. For Zuckerberg’s announcement 0f Facebook Platform, Venture Beat, the popular tech blog, interviewed iLike founder, Ali Partovi, also an early advisor Who was and shareholder of Facebook: me about your experiences With Platform so far. You’ve been working on putting iLike on Facebook for several months now. Yet on the integration since Friday morning, there have been bugs and other issues on iLike’s end. What’s the status? Interviewer: Tell KOOOQQ 10 Partovi: So, first to give you the back—story 0n 11 how we got involved. Over the past several months, we’ve pushed and pushed with Facebook asking for some of exclusive relationship. They repeatedly said they won’t do an exclusive relationship but would rather create a level playing field where we could compete With other third parties. We then gave up a bit, and we were actually a bit late to sort 12 13 the 14 game learning about the platform in detail. But When we finally did get access, our President, Hadi Partovi (my twin brother) took very little time to decide this strategic priority. That was a month ago. We re-prioritized everything was a huge 15 16 else, and moving our people off other proj ects onto this. First two 0r three few more, and by the end it was a huge group of engineers pulling started people, then a back—to~back all-nighters for a week-long sprint to the launch. 17 Interviewer: What made iLike think that Facebook Platform would be a big deal? 18 What 19 Partovi: Hadi has a strong background in the concept of platforms...at 24 he became the head of product management in the IE group at Microsoft, and was a 20 21 22 stood out about it? key player in the browser wars. A month ago, even though the Facebook Platform wasn’t fully fleshed out, he saw just from the early beginnings of it that this could redefine web development. What he said was, ‘in the history of computing, there 24 was the personal computer, there was Windows, there was the web, and now the Facebook Platform’. You can imagine that I and most our company was pretty skeptical. But he makes these calls so we followed him. As to What stood out, it’s a combination of three things: (1) the technology itself — Facebook Platform, like 25 any platform, offers the developer building blocks to build apps faster than they could if they were starting from scratch, and to tap into a rich source Of data & 23 would never otherwise be available; (2) the potential for Viral to the way the Facebook news feed works, an app can spread across the community entirely by Viral spread, as friends get notified when one person capabilities that 26 27 28 spread — due adopts it. . .this essentially bypasses the idea of trying to standalone, because Facebook Complaint for Injunction and Damages is itself make your app ‘Viral’ as naturally viral; (3) the rhetoric a from the 35 EXHIBIT 1 Event and Facebook Platform f8 What is f8? f8 was an event FAQ San Francisco Design Center on May 24, 2007, during which Mark Zuckerberg Facebook Platform. The event included an eight—hour “hackathon,” where both Facebook engineers and outside developers collaborated on building new applications on the new Facebook held at the unveiled the next evolution of Platform. is a “hackathon”? hackathon is an aII-night coding event during which Facebook engineers work on any project that interests them. Facebook uses the word “hackathon” to refer to a gathering of engineers, who possess technical expertise and collaborate on innovative projects. Facebook has a tradition of holding frequent developer hackathons, which have spawned some of the most popular features and applications on the site. What A What is Facebook Platform? Facebook Platform is a development system that enables companies and developers to build applications for the Facebook website, where all of Facebook‘s 24 million active users can interact with them. Facebook Platform offers deep integration into the Facebook website, distribution through the social graph and an opportunity to build a business. What is the social graph? The social graph is at the core of Facebook. It is the network of connections and relationships between people on Facebook and enables the efficient spreading and filtering of information. Just as people share information with their friends and the people around them in the real world, these connections are reflected online in the Facebook social graph. What a Facebook application? application uses Facebook Platform to access information from the social graph, offering users an experience that's relevant to them. Facebook applications can plug into the Facebook website in a number of ways: applications can be embedded on users’ profile pages, reside on their own separate pages (called “canvas” pages), or live through desktop applications using data from the Facebook social graph. is A Facebook What’s new in Facebook Platform? We’ve been adding functionality since Facebook Platform first shipped in beta in August 2006. With the latest evolution of Facebook Platform however, third—party developers can now create applications on the Facebook site with the same level of integration as applications built by internal Facebook developers. Now developers everywhere have the ability to create Facebook applications that deeply integrate into the Facebook site, as well as the potential for mass distribution through the social graph and new business opportunities. Why did Facebook launch Facebook Platform? Our engineers have created great applications for Facebook, but we recognized that third-party developers can help us make Facebook an even more powerful social utility. Facebook Platform gives developers everywhere the tools to create applications that we just wouldn’t have the resources to build in—house, and those applications make Facebook an even better way for our users to exchange information. Developers also benefit from Facebook Platform as it gives them the potential to broadly distribute their applications and even build new business opportunities. What kinds of applications can be built on Facebook Platform? The kinds of applications developers can build on Facebook Platform are limited only by their imaginations. Because applications are based on the Facebook social graph they can be more relevant to users, keeping people in touch with what and whom they care about. We’ve already seen a variety of applications built by our developer partners, including those for sharing media files, book reviews, slideshows and more. Some of the 156 University Avenue - Palo Alto, CA 94301 - T: 650-543-4800 - F: 650-543-4801 Platform, it launched a Developer Feed and Wiki on its website to educate the Developer community on the benefits of Facebook Platform and help them more seamlessly capital invest their and resources towards building applications on the Facebook Platform. Facebook also held contests with prizes for developers. Zuckerberg continued to emphasize the revolutionary impact Facebook Platform would have 0n the 17, Internet as a whole during this time. For instance, on July 2007, Zuckerberg was interviewed by Time Magazine: Time: the frenzy surrounding Facebook seems dramatically over the past several months. to have What do you intensified think quite behind the is company’s newfound cachet? Zuckerberg: I think the most recent surge, at least in the press, is around the launch of Facebook Platform. For the first time we’re allowing developers who don’t work at Facebook to develop applications iust as if theV were. That’s a big deal because it means that all developers have a new of doing business if they choose to take advantage of it. There are Whole companies that are forming Whose only product is a Facebook Platform application. That provides an opportunity for them, it provides an opportunity for people who want to make money by investing in those companies, and I think that’s something that’s pretty community” (see http://content.time.com/time/ exciting the t0 business 10 11 an 12 13 14 business/article/O,8599,1644040,00.htm1). 15 86. 16 In these public statements t0 Time Magazine, Zuckerberg made Facebook would allow developers at least four were 17 distinct promises: (1) 18 developers employed by Facebook; (2) Facebook would offer developers on Facebook Platform a 19 new way of doing 20 could be formed Whose sole business activity was within the Facebook Platform ecosystem; and 21 (4) 22 make money by 23 business; (3) to build applications as if they Facebook would support an ecosystem where Facebook would support an ecosystem where investors could reasonably 87. entire rely companies on Facebook to investing in companies solely devoted t0 the Facebook Platform ecosystem. Then on September 17, 2007, Facebook went even fithher by setting up a $10 24 million fund exclusively devoted to providing grants t0 Developers t0 build on Facebook 25 Platform. Facebook and 26 were offering free money t0 build applications on Facebook Platform with the only commitments 27 being that the grantee use the 28 would have the opportunity t0 invest first its partners in the Complaint for Injunction and Damages money to fimd would not even take equity in the Developer; they build 0n Facebook Platform and that Facebook’s partners if they were interested in doing s0. When asked why 37 animation into their profiles. Individual applications visitor to that profile interacts with them. insert may play media, music or animations but only when a How will Facebook deal with applications that compete with one another or even compete with Facebookapplications? We welcome developers with competing applications, including developers whose applications might compete with Facebook-built applications. Many applications are likely to offer similar features. We’ve designed Facebook Platform so that applications from third-party developers are on a level playing field with applications built by Facebook. Ultimately, our users will decide which applications they find most useful, and it is these applications built that will become the most popular. How will Facebook monetize Facebook Platform? the great applications built by our developer partners provide a service to our users and strengthen the social graph. The result is even more engaged Facebook users creating more advertising opportunities. All Can Facebook applications include ads? We want to enable developers to build a business on their Facebook applications, so we’re giving developers the freedom to monetize their applications as they like. Developers can include advertising on their applications’ canvas pages, though no advertising will be allowed within the application boxes that appear within user profiles. Are you going to share revenue with developers? While revenue sharing is not available at launch, we are looking into ways to share advertising revenue with developers. This version of Facebook Platform already lets developers monetize their applications as they like, whether they choose t0 offer it for free or build a business on their application. technical elements of Facebook Platform? Facebook Platform offers several technologies that help developers use data from the social graph. ln addition to the Facebook APl, this recently launched version of Facebook Platform introduces Facebook Markup Language (FBML), which enables developers to build applications that deeply integrate into the Facebook site. Facebook Platform also includes Facebook Query Language (FQL), which lets developers use a SQL-style interface to query the data they can access through the API. What are the key For more details on the technology behind Facebook Platform, check out the Facebook Developer site at http://deve opers.facebook.com. ### 156 University Avenue - Palo Alto, CA 94301 o T: 650-543-4800 o F: 650-543-4801 was now adding more than 250,000 users per day (see http://Www.adweek.com/socialtimes/top- 10-facebook—stories—of—2007/21 1540). While 91. it touted Facebook Platform to Developers around the world, Facebook did not state or even imply that access to Facebook Platform might later be rescinded or provided on an unequal basis. In fact, Facebook repeatedly promised that access would be provided on an equal basis relative t0 Facebook and other developers. However, during this time, Facebook, in £0 fact, provided special, unequal access to the Social Graph to large Developers partners of Facebook and made substantial unrelated advertising systematic disadvantage of smaller Developers. This fact 10 discoverable 11 access by the Developer community was being given as 12 make investments 13 Developers to 14 from 24 million active users 15 to over 16 to Facebook to the was not made known to or reasonably including Styleform, at the time preferential early as 2007. By the end of 2009, 92. at large, payments Who were close in large part in this at the due to Facebook Platform’s success new ecosystem, Facebook’s in inducing user growth had skyrocketed time 0f the announcement of Facebook Platform in May 2007 350 million users in December 2009. In late 2009, Facebook released a document 93. “A Look Back on the App Economy 17 of Facebook in 2009,” in which 18 Playfish was acquired by Electronic Arts that year for n0 19 leading fantasy sports application on the Facebook Platform, successfully raised $5.5 million to 20 fuel 21 published by the Director of the Facebook Developer Network, ended: 22 you to 23 congratulations 24 20091223055629/http://developers.facebook.com/news.php?blog=1&story=35 1). 25 its it cited numerous success stories. less than For instance, Facebook app $275 million. Watercooler, a growth. Weardrobe was acquired by Like.com for an undisclosed sum. The document, the developers “We’d like to say thank and entrepreneurs who make up the Facebook Platform ecosystem and on vour accomplishments in 2009” (see http://web.archive.org/web/ Because Facebook’s user growth skyrocketed from 2007 to 2009 and Facebook 94. 26 was becoming 27 executives began secretly t0 discuss 28 Facebook’s the dominant Platform own products to Complaint for Injunction and Damages 0n the ways to Internet due t0 its Developer ecosystem, Facebook undermine the success of Developers by promoting users and give Facebook’s own products a competitive advantage 39 ‘ ‘ ' 4GODKIN3 Aul‘l'w'i‘ 0““ David LLP W Y. "3 5 A T “ " s. Godkin DirectDial;(617)307-6110 g0dkin@birnbaumgodkin.com W November 15, 20 1 8 BY EMAIL Laura Miiicr, Esq. Durie Tangri 217 Leidcsdorff Street San Francisco, CA 941 11 Re: Szylgform IT v. Facebook, Ina, er a1. Caiifornia Superior Court, San Francisco County Case N0. CGC 18-571075 Dear Laura: 1 write in response to your letter ofNovember 13, 201 8 accusing my firm and Mr. firm of violating the Protective Order in Six4T/1ree, LLC v. Facebook, Ina, et al., Case No. 533328 (“Miner Letter”). We take this accusation extremely seriously, and it is Gross’s entirely without merit. Your Complaint relies “extensively on mischaracterizations ofthe confidential and highly confidential information that letter states that the Style'form Facebook produced through discovery in [the SiX4Three action] in direct violation of our Stipulateé Protective Order in that case.” Miller Letter, at 1. This is false. The allegations of the Stylefonn Complaint rely entirely on information in the personal knowledge of Stylefozm and/or information in the public domain. Your accusation that we have “inappropriately shared with Styleform Facebook’s confidential and highly confidential documenis” is similarly false. At no time did my firm, Mn Gross’s firm or anyone working with our firms produce to Styleform any confidential or highly confidential documents provided by Facebook in the Six4Three this serious, unfounded accusation. As action. You have no basis for making a preliminary matter, the Styleform Complaint track‘s the allegations of Six4’1’hree’s operative complaint, the Fifih Amended Complaint (“SAC”), filed on January 12, 201 8. The complaints use virtually identical language in characterizing Dcfendants’ conduct. The entirety of the SAC has been public since it was filed. For almost a year now, Facebook has raised no concerns regarding potential violations of the Protective Order as a result of the allegations in the SAC. Nor coulci Facebook do so in good That Facebook has decided to make these accusations only afler a new piaintiff has filed a compiaint demonstrates quite clearly that this is a bad faith attempt faith. 280 SUMMER STREET, BOSTON, MA 02210 ° TEL: (617) 3076100 - FAX: (617) 307-6101 - to www.bimbaumgodkin.com Laura Miller, Esq. November 15, 20] 8 Page 2 intimidate us made all You and our state as That Facebook makes clients. more evident the this accusation With unclean hands is fiom the examples you claim as “proof”. proof 0f your accusation that Styleform alleges “Tinder provided highly valuabie unrelated financial consideration, inciuding inteilectual property, to Facebook in exchange for Complaint, fl 68). special access to APIs.” Miller Letter, at 2 (Styleform its You then contend that “[n]othing domain addresses this Facebook as consideration for ever occurred.” Id. This is faise. The in the public aileged transfer of intellectual property from Tinder t0 APIs—because no such transfer special access to SAC alleges: The Wall Street Journal also reported in the same article that Facebook reached an unspecified compromise with dating app Tinder that permitted some form of access to photos of mutual friends. Upon information and belief, "finder to Facebook in provided highly valuable unrelated financial consideration exchange for this special access to data. SAC, 1 167. Indeed, The Wall Street Journal’s reporting of Tinder’s special deal with Facebook published on September 21, 201 5, more than three years ago now.‘ The was SAC further alleges that "Developers were required to share their source code and other confidential intellectualpropergz with Facebook at Facebook’s request" and that “the companies who were offered special, whitelist access to the privatized Graph API Data were ones who either agreed to purchase hundreds of thousands of dollars in unrelated mobile ads, were 0f Zuckerberg, Sandberg or other Facebook executives, or provided other valuable consideration, suck as intellectuai property or data, t0 Facebook." SAC, fl, 6, friends 167. Your next piece of “evidence” fares no better. You contend that Styleform’s Facebook paid a public relations firm to “disseminate this fraudulent proprivacy narrative” relies 0n confidential materials to mischaracterize the PR firm’s work for Facebook. Miner Letter, at 2 (Styleform Complaint, fl 165). Again, the public SAC undermines your accusation entirely: “Zuckerberg and the Conspiring Facebook allegation that Executives directed their public relations team tofeed reportersfalse information and in certain cases drafted reporters’ stories themselves in order to disseminate thisfabricated narrative among Finally, the public and Developer community.” you contend SAC, 1i 129. that confidential information is the “only possible source” for Styieform’s allegation ihat Facebook executives stopped providing a level competitive piaying field for developers in 2009, but concealed this decision from them, Milier Letter, at 3. To conclude that confidential information is the “only possible source” for this allegation requires willful blindness to numerous allegations in the SAC. The compiaint aiieges repeatedly that Defendants failed to operate “a level competitive playing field” and 1 “made and directed Facebook employees to make false statements and See https://www;wsj.com/articies/facebooks-restrictions—on—user-data—cast—a—long- shadow—i44288 1332. some cases access user data With the consent of users. Facebook represented 98. that Developers could only access capabilities (referred to as “endpoints”) With explicit permission from Facebook users. Examples 0f endpoints include a user’s birthdate, favorite songs, or photos. touted several features 0f Graph API During the announcement of Graph API, Facebook endpoints in order to increase its appeal to Developers, including Styleform. N0 Specifically, at the F8 Conference 2010, Zuckerberg announced: “The open graph 99. W puts people at the center of the web — it means that the web can become a meaningfully semantic connections between people. .Three years ago . at set of personally and we launched our first F8 10 Facebook Platform, and together we 11 today will be the most transformative thing we’ve ever done for the web. .Use the open graph to 12 make 13 We’re gonna be announcing a few pieces of new technology that make 14 the 15 graph. implemented on top of an open standard” (see https://WWW.youtube.com/watch? 16 v=4SOcRKINiSM). 17 100. all started an industry. .We think what . we have to show you . it so that people can have instantly social and personalized experiences everywhere they Graph API — makes it this possible completely simple to read connections to Facebook’s — the first ,qo. is map of the . After Zuckerberg completed his keynote at F8 2010, Bret Taylor, a Facebook what Graph API meant “With Graph API every 18 executive, further explained 19 obiect in 20 need 21 download 22 single obiect in Facebook. 23 gonna make you download a new SDK. You 24 download a connection With a new name. A11 of the code vou alreadV wrote 25 perfectly. This is a really significant 26 appreciate. 27 the capability to search over 28 bunch of cool new applications and I’m to for Developers: Facebook has a unique ID, whether that obiect is a user profile, event. etc.. . .Vou iust download an obiect With a new ID or download a connection With a new name. So mv friends you iust need to So let’s download /btavlor /friends. say Facebook launches a iust .. And this t0 applies for every new feature next year. We’re not need to download an obiect with a new ID or change for our new platform that I’m will continue to sure work you can For the first time Via the search capability of the Graph API, we’re giving developers Complaint for Injunction and Damages all the public updates on Facebook. Ithink this really excited t0 see is gonna lead where people go with this. . .. to a We’ve 41 Laura Milier, Esq. November 15, 201 8 Page 4 some scheme, to the Ancillary Defendants supposed agreement to alone specificity as to how they knowingly cam‘ied Ancillary Defendanis’ Demurrer t0 the (citations SAC, filed May it 3: let out together. 2018, at 13-14 and quotations omitted). Facebook cannot intimidate my client against alleging. violations of law With specificity and then cash the check of that intimidation tactic to prevail on demurrer or motion for summary judgment precisely because my client was prevented from alleging the particularities of the conduct, damage and harm caused by Defendants. This intimidation tactic is far outside the bounds of professional decorum and has no basis in the iaw. Thus, regarding your requests: (1) we will not be withdrawing the Styleform Complaint; (2) we have adequately identified all documents relied upon in drafting the Styleform Complaint; and (3) we decline to identify all individuals and entities to whom the public complaint has been distributed. (?fry 11; lfiyogl's, 6am s. Godkin DSG20am cc: Joshua Lerner, Esq. (By email) Sonal Mehta, Esq. (By email) Catherine Kim, Esq. (By email) Service-Six4Three (By email) Stuart G. Gross, Esq. James E. Kruzer, Esq. (By emaii) (By email) ‘ MM fg {,4} 2/ 1/ - ?5 "x Facebook the in the future would remove the “social” part 0f the Social “Open Graph” could not have been reasonably would (and ultimately anticipated Graph or the “opefi” part of by Styleform, as such a decision did) hollow out the entire premise of Graph API. Quite to the contrary, AU) Facebook repeatedly expressed that to it would provide data on a its long—term commitment to Graph level playing one another and to Facebook API and repeatedly expressed field With equal terms to all Developers, relative both itself. V0 This extension 0f the Facebook Platform ecosystem to further expand 104. its reorganization potential for the entire Internet contributed even further to Facebook’s meteoric rise and induced even more investors and Developers By way of example, 0n October 21, to participate in the economy Facebook had 2010, Facebook partnered with Kleiner Perkins 10 created. 11 Caufield 12 Facebook Platform. 13 and $12.19 billion in value to the U.S. economy. Facebook now boasted over 850 million users as 14 of late 201 1. Facebook would 15 access to Graph data after the data had been shut off to other Developers like Styleform. 16 & Byers, Zynga and Amazon to launch a $250 million fund to invest in new apps on the By September 19, 201 1, Facebook Platform had created over 182,000 jobs On September 24, 201 1, 105. With Zynga and later conspire Facebook Amazon to further extended its ensure their continued stated long-term 17 commitment to Facebook Platform by expanding Open Graph to 18 the disparate content 19 platform—infographic/#fDCquCag5qr.) In his keynote address 20 201 1, Zuckerberg stated to a packed auditorium of developers: “The next era 21 apps and depth of engagement that 22 established. 23 relationships 24 as not only the 25 we’re taking the next step: vou can connect to anything you want in 26 any way you want. Sometimes Ithink about what we’re doing With the open graph is helping to 27 define a brand new language 28 some new .. on the accelerate its reorganization of Internet. (See http://mashable.com/2012/05/24/facebook-developer— is at F8 2011 on September 24, is defined bV the now possible now that this whole network has been In 2007 in our verV first F8 I introduced the concept of the social graph, all of the between people in the world. Last year we introduced the concept of the open graph map of all the relationships but all . .. we’re going to for social apps possible. Complaint for Injunction and Damages make how people Open graph it of the connections in the world. so that connect. .everv year . . .. This year, we take the next step and make enables apps that focus primarily on two tvpes of 43 ' " ‘ GQDKINzQ $0 Ami" R N “1 Y 3 MA T David Godkin Direct Dian (617) 307-61 7 £143 h " ‘9" s. m godkin@bimbaumgodkinsom November 15, 20 1 8 BY EMAIL Laura Mii‘ier, Esq. Durie Tangri 217 Leidesdorff Street San Francisco, CA 941 1i Re: Stquform IT v. Facebook, Ina, et al. CaEifomia Superior Court, San Francisco County Case No. CGC 18—571 O75 Dear Laura: I_ Gross’s write in response to your letter of November 13, 201 8 accusing firm of vioiating the Protective Order En Six47hree, Case No. 533328 (“Miner Letter”). entireiy Without merit. my firm and Mr. LLC V. Facebook Ina, er al., We take this accusation extremely seriously, and it is Your letter states that the Styleform CompEaint refies “extensively on mischaracterizations of the confidentiai and highly confidential information that Facebook produced through discovery in [the Six4Threc action} in direct violation of our Stipuiated Protective Order in that case.” MiEEer Letter, at LThis is false. The ailegations of the Styieform Complaint reiy entirely on information in the personal knowledge of Styleform and/or information in the public domain. Your accusation that we have “inappropriateiy shared with Styleform Facebook’s confiéenéial and highly confidential ciocumcnts” “is similariy false. At no time did my firm, Mr. Gross’s firm or anyone working with our firms produce to Styleform (my confidentiai or highiy conficiential documents provided by Facebook in the Six4Three action. You have no basis for making this serious, unfdunded accusation. . As a prefiiminary matter, the Styleform Compiaint tracks the allegations 0f Six4'Fhree’s operative complaint, the Fifth Amended Complaint (“SAC”), filed on January 12, 2018. The complaints use virtuaiiy identical Eanguage in characterizing Defendants’ conduct. The entirety 0fthe SAC has been pubiic since it was fiied. For atmost a year now, Facebook has raised no concerns regarciing potential VioEations of the Protective Order as a result of the allegations in the SAC. Nor couid Facebook do so in That Facebook has decided to make these accusations only after a new piaintiff has flied a compiaint demonstrates quite cleariy that this is a bad faith attempt to good 280 SUMMER faith. STRIiti’I‘, BOSTON, MA 02210 ' "I‘m; (6E7) 307—6100 - FAX: (617) 307-801 - ww.birnbaumgodkin.com Laura Miner, Esq. November 15, 201 8 Page 2 intimidate us made all You and our state as Facebook makes this accusation with unclean hands the examples you claim as “proof”. clients. 'E‘hat more evidené from the proof of your accusation that is Styleform alleges “Tinder provided highly valuable unrefated fiaanciai consideration, including intellectual property, t0 Facebook in exchange for its special access to APIS.” Miller Letter, at 2 (Styleform Complaint, 1i You then contend that “[rflothing in the public domain addresses this propeny from Tinder to Facebook as consideration for APIs—because no such transfer ever occurred.” Id. This is false. The 68). alieged transfer of intellectuak special access t0 SAC aiieges: The Wall Street Journal also reported in the same article that Facebook reached an unspecified compromise with dating app "finder that permitted some form 0f access to photos of mutual friends. Upon information and Tinder provided highly valuable unrelated financial consideration to Facebook in exchange for this special access to data. SAC, ‘fl 167. belief, Indeed, The Wall Street Journal’s repoxfing of Tinder’s special deal with Facebook pubiished on September 21 , 201 5, more than {hree years ago now.‘ The was SAC further alleges that "Developers were required to share their source code and other confidential intellectualpmpenfv with Facebook atlFacebook’s request” and that “the companies who were offered special, whitelist access to the privatized Graph API Data were ones who either agreed to purchase huacirecis of thousands 0f dollars in unrelated mobile ads, were friends of Zuckerberg, Sandberg or other Facebook executives, or provided other vaiuable consideration, such as intellectual property 0r data, to Facebook." SAC, Tm, 6, I 67. Your next piece of “evidence” fares n0 better. You contend that Styleform’s Facebook paid a public relations firm t0 “disseminate this fraudulent proprivacy nanative” relies on confidential materials to mischaracterize the PR firm’s work for Facebook. Miner Letter, at 2 (Styleform Complaint, the public SAC fl} 165)‘ Again, undermines your accusatien entirely: “Zuckerberg and the Conspiring Facebook allegation that Executives directed their pubiic relations team tafeed reportersfalse information and in certain cases drafted reporters' stories themselves in order to disseminate tizisfabrz'cated narrative among the Finally, public and Developer community.” you contend SAC, 1] 129. that confidential information is the “only possible source” for Styleform’s allegation that Facebook executives stoppad providing a Ievel competitive playing field for developers in 2009, but concealed this decision from them. Miller Letter, at 3. To conclude that confidential information is the “only possible source” for this allegation requires willful blindness to numerous allegations in the SAC. The complaint alieges repeatedly that Defendants failed to operate “a levei competitive playing field” and I “made and directed Facebook employees t0 make false statements See https://www.wsj .comlarficEes/facebooks-restrictions-on-user-data—cast—a-Iong- shadow-I442881332. and had reason to believe Facebook has violated the Federal Trade Commission Act. The FTC Order provided, among 109. other things, that Facebook and its I representatives “shall not misrepresent in any mannér, expressly or Which it maintains the privacy or security of covered information. . “covered information” to include an individual consumer’s photos, Order also provided that Facebook and expressly or its implication...the extent to by by . implication, the extent to The FTC Order defined .” among other things. The FTC representatives “shall not misrepresent in any manner, Which [Facebook] makes or has made covered OOQQ information accessible to third parties.” The FTC Order was based on a complaint the FTC filed 110. \O in 2011 against Facebook 10 (“FTC Complaint”) 11 three ways: (1) 12 user downloaded (“user data”), with the privacy settings for data the user shared With friends in 13 apps (“Apps Others Use” settings) the friends downloaded (“friend data”) (see, 14 Complaint, 15 were not aware 16 and 17 Facebook could funnel more data to Developers under the guise of user consent (see 18 (3) that alleged by separating the privacy at 4-7); (2) settings for data a user shared by hiding the Apps Others Use that these settings by making the default 111. Facebook Platform violated user privacy by design were distinct setting for sharing data At this time during 2011 and 2012 and with friends in apps the settings to ensure from the main privacy in at least e.g., FTC most Facebook users settings (see Id. , at 4-9); with Apps Others Use set to “on” so at all Id. , at 7—1 1). times thereafter, there existed a fourth flaw unidentified by the FTC that significantly exacerbated the damage caused 19 intentional design 20 by the three flaws identified 21 privacy settings for data transmitted Via Facebook’s APIs to Developers, implicitly signaling to 22 Developers that 23 problematic design features identified by the FTC, this turned Facebook Platform into an 24 unregulated firehose of data transfers without any ability for users to consent 25. manage, the privacy 26 firehose that violated user privacy was in Facebook’s business interest since 27 to attract 28 had no control over all in the friend data settings more Developers this FTC Complaint: namely, Facebook deliberately failed to pass was public and could be treated Combined with the to, or Developers t0 of users in a responsible fashion. Setting up the Platform as a initially to expand its design by Facebook and Complaint for Injunction and Damages as such. user base more many were it enabled Facebook rapidly. Importantly, Developers not aware of this design until they 45 Laura Miller, Esq. November 15, 2018 Page 4 to the Ancillary Defendants supposed agreement to some scheme, alone specificity as to how they knowingly carried Ancillary Defendants’ Demurrer to the (citations SAC, filed May it 3, let out together. 2018, at 13-14 and quotations omitted). Facebook cannot intimidate my ciient against afieging violations oflaw with specificity and then cash the check of that intimidation tactic to prevail on demurrer or motion for summary judgment precisely because my ciient was prevented from alleging the of the conduct, damage and harm caused by Defendants. This intimidatkm tactic is far outside the bounds of professional decorum and has no basis in the law. particuiarities Thus, regarding your requests: (1) we will not be withdrawing the Styleform Complaint; (2) we have adequately identified all documents relied upon in drafting the Styleform Complaint; and (3) we decline to identify all indiviciuals and entities to whom the pubiic complaint has been distributed. @3113! trL lfiyours. i (‘22 David DSG:cam cc: Joshua Lerner, Esq, (By email) Sonal Mehta, Esq. (By email) Catherine Kim, Esq. (By email) Service—Six4Three (By email) Stuart G. Gross, Esq. (By email) James E. Kruzer, Esq. (By email) . S. Godkm t DURIE TANGRI LLP SONAL N. MEHTA (SBN 222086) smehta@durietangri.com JOSHUA H. LERNER (SBN 220755) jlerner@durietangri.com AU.) LAURA E. MILLER (SBN 271713) 1miller@durietangri.com CATHERINE Y. KIM (SBN 308442) ckim@durietangri.com 2 1 7 Leidesdorff Street San Francisco, CA 941 11 415—362-6666 Telephone: 41 5-236-6300 Facsimile: ‘ KOOOQQ Attorneys for Defendants Facebook, Inc., Mark Zuckerberg, Christopher Cox, Javier Olivan, Samuel Lessin, Michael Vernal, and Ilya Sukhar 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN MATEO 12 SIX4THREE, LLC, a Delaware limited liability Case N0. CIV 533328 company, 13 Assigned for all purposes to Hon. V. Swope, Dept. 23 Plaintiff, 14 V. 15 16 FACEBOOK, INC, a Delaware corporation; MARK ZUCKERBERG, an individual; CHRISTOPHER COX, an individual; 17 JAVIER OLIVAN, an individual; 18 19 SAMUEL LESSIN, an individual; MICHAEL VERNAL, an individual; ILYA SUKHAR, an individual; and DOES 1-50, inclusive, 20 Defendants. Raymond [PROPOSED] ORDER GRANTING DEFENDANT FACEBOOK INC.’S EX PARTE APPLICATION FOR EXPEDITED RELIEF RE SIX4THREE’S CONTEMPT, INCLUDING AN ORDER TO SHOW CAUSE Dept: Judge: 23 (Complex Civil Litigation) Honorable V. Raymond Swope FILING DATE: TRIAL DATE: April 10, 2015 April 25, 2019 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION/ CASE NO. CIV 533328 business from collapsing in late 2012 and early 2013. In short, Zuckerberg weaponized the data of one-third 0f the planet’s population in order to cover up his failure to transition Facebook’s business from desktop computers to mobile ads before the market 2012 and 2013 financial represented QOUI-b proj ections were false, due to became aware Facebook’s that Facebook having not accurately how quickly users were transitioning their time on the Internet from desktop computers t0 mobile phones. Contrary to 116. 2015, it its public representations, When Facebook restricted the Graph API in did not do so for the purpose of enhancing user privacy. Rather, Facebook had previously hid privacy controls and set the default sharing setting to “on” in Violation 0f the more data to Developers FTC Order in Facebook’s extortion scheme that tied 10 order t0 funnel 11 Platform 12 could have complied with the'FTC Order, in 2012, by: (1) not hiding the “Apps Others Use” 13 privacy page; (2) turning the default setting to “off”; and (3) by passing privacy information along 14 With the data 15 and Which management willfully and deliberately decided not to fix in Violation of the 16 Order. Instead, Facebook expanded the very Violations at the center of the 17 leading up t0 the 18 Developers various attractive software markets. 19 API that agreed to access to unrelated purchases in Facebook’s mobile advertising products. Facebook it sent through FTC its APIS, an issue reported by Facebook employees for many years FTC ' FTC’S complaint Order for the purpose of improperly oligopolizing for itself and other large Thus, the true purposes of restricting Graph API, in 201 5, were t0 distract from 117. 20 Facebook’s previous four years of willful privacy Violations, by casting 21 Victim along With users of wrongful Developers, and to provide cover for the last step in 22 extortion scheme: shutting 23 extortionary 24 Facebook off for the continued access 25 actions, users 26 applications they trust, but only with 27 Facebook large sums of money 28 of strategic value to Facebook. down the apps 0f Developers Who had itself as an unwitting either not agreed t0 its demands 0r Who,71ike Styleform, had not even been given the “opportunity” now have to data that they less control over this data. Complaint for Injunction and Damages its to pay had been promised. As a result of these They are not permitted t0 share Facebook and a small group of Developers it that With other pay in unrelated advertising purchases or other financial consideration 47 Court orders that these depositions occur parties, but in 3. no event The Court orders later than December that Six4Three, & Klein LLP and David S. at a time in San Mateo County mutually agreeable‘to the 5, 2018. Ted Kramer, and Six4Three’s counsel Godkin of Bimbaum Stuart G. Gross of Gross & Godkin, LLP show cause why they should not be found in contempt and sanctioned, up to and including terminating sanctions, for multiple \lmm-b Violations of this Court’s orders. Pursuant to this order, the Court orders Plaintiff and to file an opening brief in response to Facebook must be filed by December 10 4. The Court sets the matter for hearing this order 11, by December 7, 201 8. its counsel Any responsive brief by 201 8. on 11 12 IT IS SO ORDERED. 13 14 Dated: Honorable V. Raymond Swope Judge 0f the Superior Court of California 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 [PROPOSED] ORDER GRANTING DEFENDANT FACEBOOK, INC.’S EX PARTE APPLICATION/ CASE NO. CIV 533328