Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-1

Page: 1 of 1

Office of the Clerk United States Court of Appeals for the Ninth Circuit Post Office Box 193939 San Francisco, California 94119-3939 415-355-8000
Molly C. Dwyer Clerk of Court

April 27, 2012

No.: D.C. No.: Short Title:

12-80104 4:09-cv-03045-PJH Fox Test Prep, et al v. Facebook, Inc.

Dear Appellant/Counsel This is to acknowledge receipt of your Petition for Permission to Appeal under 23(f). All subsequent letters and requests for information regarding this matter will be added to your file to be considered at the same time the cause is brought before the court. The file number and the title of your case should be shown in the upper right corner of your letter to the clerk's office. All correspondence should be directed to the above address pursuant to Circuit Rule 25-1.

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 1 of 30

No. _______________ ________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________________________________________ In re: FACEBOOK PPC ADVERTISING LITIGATION _________________________________________________________ Appeal from the United States District Court for the Northern District of California Honorable Phyllis J. Hamilton CASE No. C 09-3043 PJH _________________________________________________________ PLAINTIFFS PETITION FOR PERMISSION TO APPEAL DENIAL OF CLASS CERTIFICATION PURSUANT TO FED. R. CIV. P. 23(f) __________________________________________________________

Jonathan Shub (SBN 237708) jshub@seegerweiss.com SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 Facsimile: (215) 851-8029

Rosemary M. Rivas (SBN 209147) rrivas@finkelsteinthompson.com FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, CA 94104 Telephone: (415) 398-8700 Facsimilie: (415) 398-8704

Counsel for Plaintiffs-Petitioners Fox Test Prep and Steven Price

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 2 of 30

CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. Proc. 26.1, Plaintiffs and Petitioners state that no Petitioner is a nongovernmental corporate party.

ii

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 3 of 30

TABLE OF CONTENTS I. II. III. IV. INTRODUCTION ..........................................................................................1 RELIEF SOUGHT ..........................................................................................2 QUESTIONS PRESENTED ...........................................................................2 STATEMENT OF THE CASE ....................................................................... 3 A. The Contract Between Advertisers and Facebook .................................... 3 B. A Plausible Method Exists for Determining Liability and Damages on a Class-wide Basis Using Facebooks Click Data........................................ 5 C. The Named Plaintiffs Experiences Exemplify Facebooks Liability and the Damages Suffered ................................................................................ 6 V. VI. THE DISTRICT COURTS CLASS CERTIFICATION ORDER ................. 6 THIS COURT SHOULD REVIEW THE MANIFESTLY ERRONEOUS CERTIFICATION ORDER9 A. The District Court Improperly Evaluated the Merits of the Case in Deciding Class Certification10 B. The District Court Manifestly Erred in Failing to Consider Objective Extrinsic Evidence and Instead Considered Plaintiffs Subjective Intent..14 C. The District Court Failed to Apply the Correct Standard of Proof With Respect to Plaintiffs Methodologies for Establishing Class-Wide Liability and Damages................17 D. The Named Plaintiffs Are Adequate ..19 VII. CONCLUSION .............................................................................................20

iii

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 4 of 30

TABLE OF AUTHORITIES Cases Page(s)

Atlanta Cancer Care, P.C. v. Amgen, Inc., 359 Fed. Appx. 714 (9th Cir. 2009) .....................................................................15 Ballew v. Matrixx Initiatives, Inc., 2008 WL 4831481 (E.D. Wash. Oct. 31, 2008) ...................................................11 Berrien v. New Raintree Resorts Intl, LLC, 276 F.R.D. 355 (N.D. Cal. 2011) .........................................................................15 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) ................................................................................12 Brazil v. Dell Inc., No. C-07-01700 RMW, 2010 WL 5387831 (N.D. Cal. Dec. 21, 2010) ..............19 Cal. Lettuce Growers v. Union Sugar Co., 45 Cal. 2d 474 (1955) ..........................................................................................13 Carma Developers (Cal.), Inc. v. Marathon Dev. of California, Inc., 2 Cal. 4th 342 (1992) ............................................................................................14 Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) ..................................................................................9 Ewert v. eBay, Inc. 2010 WL 4269259 (N.D. Cal. Oct. 25, 2010) ......................................................15 Fireman's Fund Ins. Cos., v. Ex-Cell-O Corp., 702 F. Supp. 1317 (E.D. Mich. 1988) ..................................................................14 In re Aftermarket Auto. Lighting Prod. Antitrust Litig., 2011 WL 3204588 (C.D. Cal. July 25, 2011) ......................................................10 In re Checking Account Overdraft Litig., 275 F.R.D. 666 (S.D. Fla. 2011) ..........................................................................14
iv

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 5 of 30

In re Conseco Life Ins. Sales & Marketing Litig., 270 F.R.D. 521 (N.D. Cal. 2010) .........................................................................15 In re Cooper Cos. Sec. Litig., 254 F.R.D. 628 (C.D. Cal. 2009)..........................................................................11 In re Med. Capital Sec. Litig., 2011 WL 5067208 (C.D. Cal. July 26, 2011)......................................................14 In Re Online DVD Rental Antitrust Litig., 2010 WL 5396064 (N.D. Cal. Dec. 23, 2010) ....................................................18 In re Western Asbestos Co., 416 B.R. 670 (N.D. Cal. 2009) .............................................................................15 Marlo v. United Parcel Service, Inc., 639 F.3d 942 (9th Cir. 2011) ................................................................................13 Menagerie Prods. v. Citysearch, 2009 WL 3770668 (C.D. Cal. Nov. 9, 2009) ................................................ 16, 18 Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983) ................................................................................13 Pina v. Con-Way Freight, Inc., 2012 WL 1278301 (N.D. Cal. Apr. 12, 2012)......................................................10 Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d 1159 (11th Cir. 2010) ............................................................................14 Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 41 (1st Cir. 2003)............................................................................14 Toll Bros. v. Chang Su-O Lin, 2011 WL 3839761 (9th Cir. Aug. 31, 2011) ........................................................13 United Steel v. Conoco Phillips, 593 F.3d 802 (9th Cir. 2010) ..................................................................................9
v

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 6 of 30

Vedachalam v. Tata Consultancy Services, Ltd, 2012 WL 1110004 (N.D. Cal. Apr. 2, 2012)........................................................15 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 .....................................................................................................10 Wolf v. Sup. Ct., 114 Cal. App. 4th 1343 (2005) .............................................................................15 Wolin v. Jaguar Land Rover North America, 617 F.3d 1168 (9th Cir. 2010) ..........................................................................9, 12 Woods v. Google, Inc., 2011 WL 3501403 (N.D. Cal. Aug. 10, 2001) .....................................................16 Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) ................................................................................9 Statutes Cal. Bus. & Prof. Code 17200, et seq. ..................................................................6 Rules FED. R. CIV. P. 23 .......................................................................................... passim FED. R. CIV. P. 23(a)(4)...........................................................................................2 FED. R. CIV. P. 23(b)(3).....................................................................................2, 12 FED. R. CIV. P. 23(f) ................................................................................. 1, 2, 8, 21 Other Restatement (Second) of Contracts.........................................................................15

vi

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 7 of 30

I.

INTRODUCTION Plaintiffs petition meets the requirements for review, under Fed. R. Civ.

Proc. 23(f), of the district court's manifestly erroneous decision denying class certification. At the core of this case is Facebooks online click-through agreement with thousands of large and small advertisers (the proposed Class members or advertisers) who posted advertisements for display to Facebook users on the well-known website, www.facebook.com. Under the standardized online contract, advertisers agreed to pay Facebook on a cost-per-click basis, i.e., when a Facebook user clicks on a Class members advertisement. The district court abused its discretion by failing to recognize that the predominant issue at trial would be whether, under the form contract, Facebook breached the contract with its advertisers by overcharging for clicks. The court instead erroneously concluded that Plaintiffs failed to establish a contract imposing a duty on Facebook to charge only for valid clicks. Even assuming the courts decision could be read to find the existence of a contract, its holding that the contract gives Facebook unbridled discretion to charge for every click (such as numerous repeated clicks in rapid succession by a Facebook user who is impatient with the speed of his or her Internet browser), is wrong. It is black letter law in California that there is an implied covenant

-1-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 8 of 30

of good faith and fair dealing in every contract that requires Facebook here to exercise its discretion in good faith. Moreover, the industry custom requires such good faith on the part of the sellers of Internet advertising. Finally, the ruling was plain error because the court held Plaintiffs to a higher (and incorrect) standard under Ninth Circuit law regarding adequacy under Rule 23(a)(4) and with regard to their proposed damages methodology under Rule 23(b)(3). Thus, review under Rule 23(f) is necessary to correct the district courts manifest errors in denying class certification. II. RELIEF SOUGHT Plaintiffs seek leave to appeal the order denying class certification. (Exh. A) III. QUESTIONS PRESENTED 1. Whether the district court erred in denying class certification because

it determined that Plaintiffs failed to prove either the existence of a contract or a contract obligating Facebook to charge only for valid clicks; 2. Whether the district court misapplied the standard of proof to

Plaintiffs liability and damages methodology; and 3. Whether the district court erred in finding that Plaintiffs were

inadequate under Rule 23(a)(4).

-2-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 9 of 30

IV.

STATEMENT OF THE CASE A. The Contract Between Advertisers and Facebook

Online contracts are commonplace and are subject to the same rules of interpretation as traditional paper contracts. This is a class action arising out of an alleged breach of an online contract. Facebook used a standardized, nonnegotiable Internet form contract to sell advertising whereby advertisers agreed to pay Facebook on a cost-per-click basis. The contract consisted of a simple, electronic click-through agreement whereby advertisers assent by completing and clicking on a series of Internet pages on the Facebook website. The meaning of a click is at the heart of the agreement as it is the event that triggers the obligation to pay Facebook; yet it is not a defined term set out on the web pages that comprise the contract. Facebook, however, has defined the term "click elsewhere on its website in a glossary as follows: Clicks are counted each time a user clicks through your ad to your landing page. We [Facebook] have a variety of measures in place to ensure that we only report and charge advertisers for legitimate clicks, and not clicks that come from automated programs, or clicks that may be repetitive, abusive, or otherwise inauthentic. Due to the proprietary nature of our technology, were not able to give you more specific information about these systems. (emphasis added).

Facebook, like the rest of the online advertising industry (which includes -3-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 10 of 30

Google and Microsoft), implements algorithmic-based rules that serve as a proxy for determining a Facebook users intent to view an advertisement. These algorithmic rules, known in the industry as click filters, determine on a per-click basis the objective characteristics of a click that show whether a click should be billed or not. Thus, if a click violates a rule because of certain characteristicsi.e., clicks were made repeatedly in rapid succession the click is categorized by the algorithm as invalid and is not billed to advertisers. The rules that Facebook uses to determine which clicks are legitimate or valid (and thus billable) are identical for all advertisers irrespective of their size, industry, or any factor unique to a particular advertiser. Facebook, however, never informs advertisers of the specific rules that it uses to determine what it considers a legitimate click because to do so would expose Facebook to potential fraud and compromise the rules it has devised. Thus, advertisers trust Facebook to implement its rules in good faith. Plaintiffs presented significant evidence showing that Facebook abused that trust by charging advertisers for invalid clicks. The evidence made clear that Facebook breached the contract in two different, but related ways: (1) by setting and modifying its secret click rules in a manner designed to enhance revenue rather than protect advertisers from paying for invalid clicks; and (2) by failing to employ

-4-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 11 of 30

reasonable measures used in the industry to determine and audit its click rules. This is akin to where a purchaser contracts to buy apples with the understanding that the purchaser will purchase them sight unseen. If the evidence showed that the apple seller abused its discretion and knowingly sold non-edible apples because it knew that the buyer agreed to buy them without a prior inspection, the buyer could proceed with a breach of contract action. This case is about the parties differing interpretation of what constitutes an edible apple, i.e. a valid (and billable) click. B. A Plausible Method Exists for Determining Liability and Damages on a Class-wide Basis Using Facebooks Click Data

Plaintiffs expert, Dr. Markus Jakobsson, Ph.D., a computer scientist, opined that algorithms could be written reclassifying, on a click by click basis, whether a particular click should have been billable or not. The reclassification would reflect the rules Facebook should have used had it exercised good faith in making click validity determinations. As Dr. Jakobsson described, he would use Facebooks historical click data by inputting it into rule-based algorithms created to reflect objectively reasonable filtration rules. The resulting damages involve a simple arithmetic equation reflecting the difference between what advertisers paid and what they should have paid if Plaintiffs rules governed click validity.

-5-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 12 of 30

C.

The Named Plaintiffs Experiences Exemplify Facebooks Liability and the Damages Suffered

Plaintiff Fox Test Prep (Fox) offers LSAT and GMAT instruction and tutoring in San Francisco. Fox started buying cost-per-click advertising from Facebook in July 2009 and paid Facebook a total of $1,058.13. While Fox continues to buy cost-per-click advertising, it stopped buying it from Facebook after Fox suspected charges for invalid clicks based on tracking software. Plaintiff Steven Price has a website offering services to car buyers and sellers. He started buying cost-per-click advertising from Facebook in May 2009 and paid Facebook a total of $697.12. Based on tracking software, Price determined that two-thirds of the clicks from Facebook were invalid. Plaintiffs expert testified that both Plaintiffs were charged for invalid clicks. Plaintiffs attached to their class certification motion expert analysis demonstrating that they were charged for invalid clicks. V. THE DISTRICT COURTS CLASS CERTIFICATION ORDER The court denied class certification of Plaintiffs breach of contract and unfair business practices claims under Cal. Bus. & Prof. Code 17200, et seq. Exhibit A hereto (the Order). Despite Plaintiffs unrebutted evidence that all Class members using Facebooks self serve Internet process were subject to

-6-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 13 of 30

identical online contracts, the court leaped beyond the requirements of Rule 23. The court stated, [a]s an initial matter, it is still not clear exactly what comprises the contract, despite a prior motion to dismiss ruling that Plaintiffs did in fact, state a claim for breach of contract for invalid clicks. (Order at 14.) The court denied certification of the contract claim, finding that Plaintiffs failed to establish that the terms of the contract that were allegedly breached by Facebook are part of any contract between CPC advertisers and Facebook[.] (Id.) The district court engaged in further contract interpretation, rejecting Plaintiffs alternative argument that, if Facebooks click definition was not part of the contract, it should be considered objective extrinsic evidence of the meaning of a click under the uniform cost-per-click contract. The court concluded, [i]f the contract at issue were truly a standardized form contract, plaintiffs argument would have more merit. But where, as here, the contract presents such a moving target, the court cannot find that class certification is appropriate. (Order at 16.) The court then rejected the proposition that extrinsic evidence may be used to interpret the term click, ruling that Plaintiffs were attempting to add additional terms to the contract as opposed to defining an ambiguous term. 1 In rejecting

The district courts order was contrary to a prior ruling by a different judge denying Facebooks motion to dismiss on the ground that the online contract was ambiguous. In the order denying the motion to dismiss, Judge Jeremy Fogel held that Plaintiffs stated a claim for breach of contract based on invalid click charges -7-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 14 of 30

Plaintiffs position that Facebooks click definition was extrinsic evidence of the types of clicks billable under the contract, the court again engaged in merits-based contract interpretation, erroneously finding that Facebooks integration clause preclude[d] a finding that the click definition statements outside of the SRR can be used to impose additional contract obligations on Facebook. (Order at 16.) Despite Dr. Jakobssons expert report proffering a methodology for analyzing liability and determining damages on a class wide basis, the district court ruled that Plaintiffs experts methodology did not demonstrate that common issues predominated. Finally, the court ruled that Plaintiffs were inadequate, finding that they were subject to unique defenses and failed to show any concrete injury from specific invalid clicks even though Plaintiffs submitted an expert report demonstrating charges for such clicks. (Order at 10). VI. THIS COURT SHOULD REVIEW THE MANIFESTLY ERRONEOUS CERTIFICATION ORDER Rule 23(f) of the Federal Rules of Civil Procedure provides for interlocutory appeal of class certification orders. Interlocutory appeals are ordinarily granted where, as here, one or more of the following factors have been established:

notwithstanding a provision disclaiming liability for click fraud or other improper actions. According to Judge Fogel, the contract was susceptible to Plaintiffs interpretation that Facebook did not disclaim liability for all invalid clicks, such as double-clicks occurring within a certain time frame, especially in light of Facebooks click definition. -8-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 15 of 30

(1) the district courts class certification decision is manifestly erroneous in some way; (2) the certification decision presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review; or (3) there is a death-knell situation for either the plaintiff or defendant that is independent of the merits of the underlying claims. Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005). A class certification order is manifestly erroneous where the district court applies an incorrect Rule 23 standard or ignores a directly controlling case. Id. at 962 (citations omitted). If the district court's determination was premised on a legal error, that is a per se abuse of discretion. Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010). Finally, a district court abuses its discretion when its class certification order is based on a conclusion that the plaintiff will not prevail on the legal theories. See United Steel v. Conoco Phillips, 593 F.3d 802 (9th Cir. 2010); Wolin v. Jaguar Land Rover North America, 617 F.3d 1168, 1173 (9th Cir. 2010). As Plaintiffs show, the Order is manifestly erroneous and conflicts with the decisions of its sister courts finding that extrinsic evidence of the defendants intent can be used in interpreting ambiguous terms in a standardized online contract. Thus, review is warranted and appropriate.

-9-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 16 of 30

A.

The District Court Improperly Evaluated the Merits of the Case in Deciding Class Certification

When deciding a motion for class certification, courts must conduct a rigorous analysis to determine the capacity of a class wide proceeding to generate common answers apt to drive the resolution of the litigation. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 255152 (2011); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir. 2011). Frequently, that rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. Ellis, 657 F.3d at 980 (citing Dukes, 131 S. Ct. at 2551). As this Court recently explained in Ellis, to the extent the merits do not overlap with class certification issues, they should not be considered. Id., 657 F.3d at 983 (emphasis added). This distinction between analyzing the merits of the claim to determine the Rule 23 criteria and pre-judging plaintiffs ability to prove his case must be maintained to comply with Dukes while at the same time respecting that Rule 23 does not require a plaintiff to prove his causes of action. Nothing in Dukes changes the basic principle that in reviewing a motion for class certification, the court generally is bound to take the substantive allegations of the complaint as true. Pina v. Con-Way Freight, Inc., No. C 10-00100 JW, 2012 WL 1278301, at *2 (N.D. Cal. Apr. 12, 2012) (citation omitted). Moreover, -10-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 17 of 30

courts are not permitted to turn the Rule 23 certification motion into a summary judgment exercise. See In re Aftermarket Auto. Lighting Prod. Antitrust Litig., No. 09 MDL 2007-GW (PJWx), 2011 WL 3204588, at *3, n.2 (C.D. Cal. July 25, 2011) (interpreting Dukes and explaining that plaintiff is not required to prove class-wide injury at class certification); In re Cooper Cos. Sec. Litig., 254 F.R.D. 628, 641, n. 7 (C.D. Cal. 2009) (courts must consider evidence relating to the Rule 23 determination, but [a]t the same time, the inclusion of evidence that may speak to the merits of a case does not mean that a district court should mistake class action certification for summary judgment); Ballew v. Matrixx Initiatives, Inc., No. CV-07-267, 2008 WL 4831481, at *2 (E.D. Wash. Oct. 31, 2008) (the Court is not resolving whether Plaintiff can establish that she can prove her case. Rather, the narrow question before the Court is whether, under Fed. R. Civ. P. 23, a class action is a proper vehicle for litigating the products liability claims[.]). Here, however, the court below ignored these basic principles and made manifestly erroneous factual and legal findings that prejudged Plaintiffs claims. Plaintiffs class certification motion was based on a breach of a standardized online contract between advertisers and Facebook to charge Plaintiffs for a certain type of click, i.e., one that Facebook determined in its discretion to be legitimate. Plaintiffs proffered undisputed evidence that Facebook used identical

-11-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 18 of 30

rules in determining a legitimate click for each advertiser pursuant to the standard contract. Plaintiffs also proffered unrebutted evidence that the data required to identify invalid clicks was in Facebooks possession. In denying Plaintiffs motion under Rule 23(b)(3), the court concluded that Plaintiffs proffered insufficient evidence to establish that under the form contract Facebook was obligated to charge advertisers only for legitimate clicks. (Order at 10-13) (The court finds that the proposed class cannot be certified under Rule 23(b(3)In particular, plaintiffs have failed to establish that the terms of the contract allegedly breached by Facebook are part of any contract between CPC advertisers and Facebook.). In several other parts of the courts decision, the court raised doubts about the existence of the contract and Facebooks obligations under it. (Order at 18) (it is unclear that the contract is ). Thus, the courts rejection of the motion was driven by its view that Plaintiffs had failed to establish that the contract obligated Facebook to charge only for legitimate clicks, contrary to a prior ruling denying Facebooks motion to dismiss. The court committed manifest error by prejudging Plaintiffs ability to prove that the contract obligated Facebook to charge only for certain types of clicks. See Wolin, 617 F.3d at 1173 (citing Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975) (that plaintiff will be unable to prove allegations is not a basis for

-12-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 19 of 30

declining to certify a class)); Marlo v. United Parcel Service, Inc., 639 F.3d 942, 949 (9th Cir. 2011) (citing Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (noting that a decision on the merits was an improper basis to adjudge class certification)). Rather than analyzing whether the contract at issue was indeed a form contract imposing the identical obligations on Facebook and Class members, the court engaged in a summary judgment analysis of the contractual provisions. Id. Moreover, the courts interpretation of Facebooks obligations (or lack thereof) failed to apply the hornbook principle that, where, as here, one contracting party is given discretion to determine the obligations of the other party, it must be exercised reasonably and in good faith. See Toll Bros. v. Chang Su-O Lin, No. 0916955, 2011 WL 3839761, at *4 (9th Cir. Aug. 31, 2011) ([e]very contract [under California law] imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement) (citing Restatement (Second) of Contracts 205); Cal. Lettuce Growers v. Union Sugar Co., 45 Cal. 2d 474, 484 (1955) ([W]here a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing.).2 Further, had the court properly analyzed

See also Carma Developers (Cal.), Inc. v. Marathon Dev. of California, Inc., 2 Cal. 4th 342, 373 (1992) (stating that breach of a specific contract provision is not -13-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 20 of 30

the contract and found it uniform and standardized, it would have followed the many decisions holding that breach of such a contract is a paradigmatic claim for class action treatment. 3 B. The District Court Manifestly Erred in Failing to Consider Objective Extrinsic Evidence and Instead Considered Plaintiffs Subjective Intent

The court also committed manifest error with respect to its legal conclusion that extrinsic evidence, namely, Facebooks own explanation of the types of clicks for which advertisers would be charged, could not be used to interpret the parties obligations under the contract. While the court was correct that extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written [integrated] contract, Plaintiffs did not offer extrinsic evidence for that purpose; rather, they proffered extrinsic evidence only to aid in interpreting the ambiguous necessary to a breach of the implied covenant of good faith and fair dealing; the covenant can be breached for objectively unreasonable conduct, regardless of the actors motive.). See, e.g., Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d 1159, 1171 (11th Cir. 2010); Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 41 (1st Cir. 2003); In re Med. Capital Sec. Litig., No. SAML 10-2145 DOC, 2011 WL 5067208, at * 3 (C.D. Cal. July 26, 2011); Ewert v. eBay, Inc., Nos. C-07-02198 RMW, C-07-04487-RMW, 2010 WL 4269259, at *1 (N.D. Cal. Oct. 25, 2010); In re Checking Account Overdraft Litig., 275 F.R.D. 666, 674 (S.D. Fla. 2011) Berrien v. New Raintree Resorts Intl, LLC, 276 F.R.D. 355, 362 (N.D. Cal. 2011); Firemans Fund Ins. Cos., v. Ex-Cell-O Corp., 702 F. Supp. 1317, 1326 (E.D. Mich. 1988) (citing Restatement 211, holding that [s]tandarized agreements should be interpreted similarly). -143

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 21 of 30

term click. Moreover, the courts observation that class members would have had to be exposed to or reviewed the extrinsic evidence is manifest error. 4 As numerous courts have explained, under California law, a contract is interpreted whenever reasonable treating alike all similarly situated, without regard to their knowledge or understanding of the standard terms of the writing. Restatement (Second) of Contracts, 211(2); Vedachalam v. Tata Consultancy Services, Ltd, No. C 06-0963 CW, 2012 WL 1110004, at *9 (N.D. Cal. Apr. 2, 2012); Ewert v. eBay, 2010 WL 4269259, at *7; see also Berrien, 276 F.R.D. at 362; In re Conseco Life Ins. Sales & Marketing Litig., 270 F.R.D. 521, 530 (2010) (contract claim would not be proved based on each policyholders understanding of the terms of the policies, but based on the face of the policy documents themselves.). 5 The district court ignored a case directly on point involving a breach of standardized cost-per-click contract, Menagerie Prods. v. Citysearch, No. 08-4263

In re Western Asbestos Co., 416 B.R. 670, 694 (N.D. Cal. 2009) (The mutual intention to which the courts give effect is determined by the objective manifestations of the parties intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters surrounding the circumstances under which the parties negotiated or entered the contract; the object, nature, and subject matter of the contract; and the subsequent conduct of the parties.).

See also Atlanta Cancer Care, P.C. v. Amgen, Inc., 359 Fed. Appx. 714, 716 (9th Cir. 2009) (Indeed, it is reversible error for a trial court to refuse to consider extrinsic evidence on the basis of the trial courts own conclusion that the language of the contract appears to be clear and unambiguous on its face.) (citing Wolf v. Sup. Ct., 114 Cal. App. 4th 1343, (2005)). -155

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 22 of 30

CAS (FMO), 2009 WL 3770668 (C.D. Cal. Nov. 9, 2009). In Citysearch, the district court certified the class over the defense arguments that extrinsic evidence of which clicks should be billed under the contract made the case inappropriate for class treatment. As here, the parties disputed whether advertisers were charged for invalid clicks pursuant to a form cost-per-click contract. As the Citysearch court concluded: [E]xtrinsic evidence that the Court would consider in making this determination, such as representations on Citysearch's website [about which clicks are billable], can be established on a class wide basis. Id. at *10. Thus, the courts consideration of whether a particular class member was exposed to or reviewed the extrinsic evidence, or their understanding of it, is an improper basis for denying certification of a breach of contract claim. See Rodman v. Safeway, Inc., No. C 1103003 JSW, 2011WL 5241113, at *4-5 (N.D. Cal. Nov. 1, 2011) (in breach of contract case, FAQ was relevant extrinsic evidence regarding the terms of the online contract without consideration of plaintiffs review or exposure to FAQ); Woods v. Google, Inc., No. 05:11cv1263JF, 2011 WL 3501403, at *3-4 (N.D. Cal. Aug. 10, 2001) (analyzing issue of extrinsic evidence and incorporation by reference of an alleged breach of an online advertising contract without reference to whether advertisers read or reviewed the evidence). It is clear the district court improperly reviewed the evidence as if Plaintiffs were pursuing a fraud claim.

-16-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 23 of 30

C.

The District Court Failed to Apply the Correct Standard of Proof With Respect to Plaintiffs Methodologies for Establishing Class-Wide Liability and Damages

The District Court also erred in failing to apply the correct standard of proof with respect to demonstrating that liability can be established on a class wide basis. Plaintiffs expert opined that he would construct algorithms that would reflect the rules that Facebook should have employed during the class period had it been exercising its discretion in good faith. 6 This algorithmic approach for determining whether a click should be billed is identical to how Facebook makes its determinations of click validity, the only difference being that Plaintiffs would change certain rule parameters to reflect the proper exercise of discretion in determining click validity. Thus, Dr. Jakobsson opined that he could develop algorithms that would distinguish between valid and invalid clicks, using reliable and generally accepted principles in the computer science community, to determine the extent to which Facebook charged advertisers per click in conformity with its obligations. He further opined that he could design algorithms to identify clicks based on fraud (referred to as click fraud and not part of the case) and invalid

Although the court concluded that Dr. Jakobsson's analysis could not predict the rate of false positives, the court failed to consider that Facebook's methodology in charging advertisers presents the same issues. (Order at 19.) Moreover, false positives cannot be predicted until the algorithms are actually drafted. -17-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 24 of 30

clicks that are not. As Dr Jakobsson opined, one can determine for each such click log entry whether it is filtered out due to suspicion of click fraud or is invalid for other reasons. In fact, Dr. Jakobssons opinion clearly stated he would write such algorithms for the merits part of this case. The district court misapplied the standard for considering expert testimony in the context of a Rule 23 motion in the Ninth Circuit. See In Re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2010 WL 5396064, at *10 (N.D. Cal. Dec. 23, 2010) (The court must thus ultimately leave disputes over the results reached and assumptions made with respect to competing methodologies to the trier of fact, and discern only whether the plaintiffs have advanced a plausible methodology to demonstrate that antitrust injury can be proved on a class-wide basis.plaintiffs need not supply a precise damage formula, but must simply offer a plausible method for determining damages that is not so insubstantial as to amount to no method at all.) (citation omitted). In certifying the breach of contract claims in Citysearch, the court there found that the plaintiffs proposed three-step method for establishing liability and calculating damages was at least plausible and thus met the requirements for class certification. Citysearch, 2009 WL 3770668, at *16-17. Dr. Jakobssons methodology is identical to methodology and damages model approved in

-18-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 25 of 30

Citysearch. He proposes to create algorithms to reflect the rules that Plaintiffs claim should have been implemented but were not and, as in Citysearch, to plug Facebooks click log data into these new algorithms to ascertain whether Facebook charged for clicks that were categorized as illegimate pursuant to the new algorithms. Moreover, unlike in Citysearch, Dr. Jakobssons methodology has already been employed in real life conditions by Facebook, which employs a thirdparty entity to perform bi-annual and independent click-by-click analyses of Facebooks clicks to determine their legitimacy. Facebooks commissioned work shows the plausibility of Dr. Jakobssons approach. More is not required at the certification stage. See Brazil v. Dell Inc., No. C-07-01700 RMW, 2010 WL 5387831, at *5 (N.D. Cal. Dec. 21, 2010). The courts detailed criticisms of Plaintiffs experts opinion go to the weight of the expert evidence, not to whether the opinion is plausible in the Rule 23 context. D. The Named Plaintiffs Are Adequate

The courts order was also manifestly erroneous because it found that Plaintiffs were subject to unique defenses, namely, the failure to comply with a provision requiring advertisers to dispute any charges within 60 days. Plaintiffs were no longer advertisers with Facebook when it added that provision to its online contract in 2011. Moreover, the waiver issue is clearly a class-wide one.

-19-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 26 of 30

Further, Plaintiffs deposition testimony showed that each knew about the case and about their duties as class representatives. The courts failure to consider this evidence was a clear abuse of discretion. (Order at 10-11.) Finally, Plaintiffs submitted data and expert analysis showing they were charged for clicks that should have been deemed invalid and not billable. Facebook did not rebut this testimony. Thus, the court erred by concluding that Plaintiffs failed to demonstrate that they suffered a concrete injury. (Order at 10.) VII. CONCLUSION For the foregoing reasons, the Court should grant leave to appeal the denial of class certification on behalf of the Plaintiff. Dated: April 27, 2012 Respectfully submitted,

By: /s/ Jonathan Shub Jonathan Shub SEEGER WEISS 1515 Market Street, Suite 1380 Philadelphia, Pennsylvania 19102 Telephone: 215-564-2300 Facsimile: 215-851-8029

By: /s/ Rosemary M. Rivas Rosemary M. Rivas FINKELSTEIN THOMPSON LLP 100 Bush Street, Suite 1450 San Francisco, California 94104 Telephone: (415) 398-8700 Facsimile: (415) 398-8704

Counsel for Plaintiffs-Petitioners Counsel for Plaintiffs-Petitioners Fox Fox Test Prep and Steven Price Test Prep and Steven Price

-20-

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 27 of 30

CERTIFICATE OF SERVICE I, Bita Assad, declare as follows: I am employed by Finkelstein Thompson, 100 Bush Street, Suite 1450, San Francisco, California 94104. I am over the age of eighteen years and am not a party to this action. On April 27, 2012, I served the following document(s): PLAINTIFFS PETITION FOR PERMISSION TO APPEAL DENIAL OF CLASS CERTIFICATION PURSUANT TO FED. R. CIV. P. 23(f) _X_ BY ELECTRONIC SERVICE: I caused the forgoing to be sent to the persons at the electronic notification addresses listed below. See attached service list. _X_ BY U.S. MAIL: I mailed the foregoing via first-class U.S. mail, postage prepaid, to the participants at the addresses listed below. See attached service list.

I declare under penalty of perjury under the laws of the State of California and the United States of America and that the above is true and correct. Executed this 27th day of April 2012 at San Francisco, California.

/s/ Bita Assad Bita Assad

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 28 of 30

Service List Michael G. Rhodes Whitty Somvichian Matthew Michael Brown Cooley Godward Kronish 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2061 Facsimile: (415) 693-2222 (fax) rhodesmg@cooley.com wsomvichian@cooley.com mmbrown@cooley.com Counsel for Respondent Facebook, Inc. J. Paul Gignac ARIAS OZZELLO & GIGNAC LLP 115 S. La Cumbre, Suite 300 Santa Barbara, California 93105 Telephone: (805) 683-7400 Facsimile: (805) 683-7401 Email: j.paul@aogllp.com Counsel for Petitioners Christopher A. Seeger David R. Buchanan TerriAnne Benedetto SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 Facsimile: (215) 851-8110 cseeger@seegerweiss.com dbuchana@seegerweiss.com tbenedetto@seegerweiss.com Counsel for Petitioners

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 29 of 30

Jeffrey Leon Julie Miller FREED & WEISS LLC 111 West Washington Street, Suite 1311 Chicago, IL 60602 Telephone: (312) 220-0000 Facsimile: (312) 220-7777 jeff@complexlitgroup.com Julie@complexlitgroup.com Counsel for Petitioners Steven Berk BERK LAW PLLC 2002 Massachusetts Ave. NW, Suite 100 Washington, D.C. 20036 Telephone: (202) 232-7500 Facsimile: (202) 232-7566 Email: steven@berklawdc.com Counsel for Petitioners Gordon M. Fauth, Jr. LITIGATION LAW GROUP 1801 Clement Avenue, Suite 101 Alamada, CA 94501 Telephone: (510) 238-9610 Facsimile: (510) 337-1431 Email: gmf@classlitigation.com Counsel for Petitioners Brian S. Kabateck KABATECK BROWN KELLNER LLP 664 S. Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217-5000 Facsimile: (213) 217-5010 Email: bsk@kbklawyers.com Counsel for Petitioners

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-2

Page: 30 of 30

Melissa Meeker Harnett WASSERMAN, COMDEN & CASSLEMAN, LLP 5567 Reseda Boulevard, Suite 330 Tarzana, CA 91357-7033 Telephone: (818) 705-6800 Facsimile: (818) 996-8266 Email: mharnett@wccelaw.com Counsel for Petitioners

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 1 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 2 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 3 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 4 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 5 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 6 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 7 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 8 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 9 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 10 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 11 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 12 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 13 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 14 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 15 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 16 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 17 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 18 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 19 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 20 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 21 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 22 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 23 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 24 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-3

Page: 25 of 25

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 1 of 7

UNITED STATES COURT OF APPEALS for the NINTH CIRCUIT Office of the Clerk After Opening a Case Counseled Cases (revised November 2011)

Court Address San Francisco Headquarters Mailing Address for U.S. Postal Service Office of the Clerk James R. Browning Courthouse U.S. Court of Appeals P.O. Box 193939 San Francisco, CA 94119-3939 Mailing Address for Overnight Delivery (FedEx, UPS, etc.) Office of the Clerk James R. Browning Courthouse U.S. Court of Appeals 95 Seventh Street San Francisco, CA 94103-1526 Street Address

95 Seventh Street San Francisco, CA 94103

Court Addresses Divisional Courthouses Pasadena Portland Seattle William K. Nakamura Courthouse 1010 Fifth Avenue Seattle, WA 98104

Richard H. Chambers Pioneer Courthouse Courthouse 700 SW 6th Ave, Ste 110 125 South Grand Avenue Portland, OR 97204 Pasadena, CA 91105 Court Website www.ca9.uscourts.gov

The Courts website contains the Courts Rules and General Orders, information about electronic filing of documents, answers to frequently asked questions, directions to the courthouses, forms necessary to gain admission to the bar of the Court, opinions and memoranda, recordings of oral arguments, links to practice manuals, and an invitation to join our Pro Bono Program.

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 2 of 7

Court Phone List Main Phone Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8000 14-day Telephone Extension for Briefs Northern & Eastern California, Hawaii, Arizona, Nevada, Guam, Northern Mariana Islands (San Francisco) . . . . . . . . . . . . . . (415) 355-7853 Central & Southern California (Pasadena).. . . . . . . . . . . . . . . . (626) 229-7261 Eastern & Western Washington, Idaho, Montana, Oregon, Alaska (Seattle). . . . . . . . . . . . . . . . . . . . . (206) 224-2210 Attorney Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7800 Calendar Unit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8190 CJA Matters (Operations Unit) . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7920 Docketing.. . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7830 or (415) 355-7840 Death Penalty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8197 Electronic Filing Appellate ECF. . . . . . . . . . . . . . . . . . . . . . . . Send email to cmecf_ca9help@ca9.uscourts.gov Library. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8650 Mediation Unit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7900 Motions Attorney Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8020 Procedural Motions Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7860 Records Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7820 Divisional Court Offices: Pasadena.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (626) 229-7250 Portland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (503) 833-5300 Seattle.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (206) 224-2200

After Opening a Case Counseled Appeals

Page 2

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 3 of 7

Electronic Case Filing The Ninth Circuits Appellate ECF (Electronic Case Files) system is mandatory for all attorneys filing in the Court, unless they are granted an exemption. All non-exempted attorneys who appear in an ongoing case are required to register for and to use the Appellate ECF system. Registration and information about ECF is available on the Courts website at www.ca9.uscourts.gov under Electronic FilingECF. Read the Circuit Rules, especially Ninth Circuit Rule 25-5, for guidance on Appellate ECF, including which documents can and cannot be filed electronically. Rules of Practice The Federal Rules of Appellate Procedure (Fed. R. App. P.), the Ninth Circuit Rules (9th Cir. R.) and the General Orders govern practice before this Court. The rules are available on the Courts website at www.ca9.uscourts.gov under Rules. Practice Resources The Court has prepared a practice guide video entitled Perfecting Your Appeal. The video may be viewed for free on the Courts website at www.ca9.uscourts.gov under FAQs, Forms and Instructions -> Guides and Legal Outlines, and may be purchased through the Clerks office in San Francisco for $15.00. Continuing legal education credit for viewing this videotape is available in most jurisdictions. Admission to the Bar of the Ninth Circuit All attorneys practicing before the Court must be admitted to the Bar of the Ninth Circuit. Fed. R. App. P. 46(a); 9th Cir. R. 46-1.1 & 46-1.2. To apply for admission, obtain an application (on the Courts website at www.ca9.uscourts.gov under Forms or by calling (415) 355-7800) and submit it to the Clerks Office in San Francisco with the admission fee of $230.00. Your check or money order must be included with the application. If you are registered for the 9th Circuit's Appellate ECF system, you may upload your application via ECF and pay with a credit card by logging into Appellate ECF and clicking on Utilities > Attorney Admission.
After Opening a Case Counseled Appeals Page 3

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 4 of 7

Notice of Change of Address Counsel who are registered for Appellate ECF must update their personal information, including street addresses and/or email addresses, online at: https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl 9th Cir. R. 46-3. Counsel who have been granted an exemption from using Appellate ECF must file a written change of address with the Court. 9th Cir. R. 46-3. Motions Practice Following are some of the basic points of motion practice, governed by Fed. R. App. P. 27 and 9th Cir. R. 27-1 through 27-13. Neither a notice of motion nor a proposed order is required. Fed. R. App. P. 27(a)(2)(C)(ii), (iii). Motions may be supported by an affidavit or declaration. 28 U.S.C. 1746. Each motion should provide the position of the opposing party. Circuit Advisory Committee Note to Rule 27-1(5); 9th Cir. R. 31-2.2(b)(6). A response to a motion is due 10 days from the service of the motion. Fed. R. App. P. 27(a)(3)(A). The reply is due 7 days from service of the response. Fed. R. App. P. 27(a)(4); Fed. R. App. P. 26(c). A response requesting affirmative relief and/or relief by a date certain must include that request in the caption. Fed. R. App. P. 27(a)(3)(B). A motion filed after a case has been scheduled for oral argument, has been argued, is under submission or has been decided by a panel, must include on the initial page and/or cover the date of argument, submission or decision and, if known, the names of the judges on the panel. 9th Cir. R. 25-4. Emergency or Urgent Motions All emergency and urgent motions must conform with the provisions of 9th Cir. R. 27-3. Note that a motion requesting procedural relief (e.g., an extension of time to file a brief) is not the type of matter contemplated by 9th Cir. R. 27-3. Circuit Advisory Committee Note to 27-3(3). Prior to filing an emergency motion, the moving party must contact an attorney in
After Opening a Case Counseled Appeals Page 4

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 5 of 7

the Motions Unit in San Francisco at (415) 355-8020. When it is absolutely necessary to notify the Court of an emergency outside of standard office hours, the moving party shall call (415) 355-8000. Keep in mind that this line is for true emergencies that cannot wait until the next business day (e.g., an imminent execution or removal from the United States). Briefing Schedule The Court issues the briefing schedule at the time the appeal is docketed. Certain motions (e.g., a motion for dismissal) automatically stay the briefing schedule. 9th Cir. R. 27-11. The opening and answering brief due dates (and any other deadline set for a date certain by the Court) are not subject to the additional time described in Fed. R. App. P. 26(c). The early filing of appellants opening brief does not advance the due date for appellees answering brief. 9th Cir. R. 31-2.1. Extensions of Time to file a Brief A party may seek either an oral or written extension of time. Oral Extension If good cause is shown, the clerk may grant a single extension of no more than 14 days to file an opening, answering or reply brief. 9th Cir. R. 31-2.2(a). You must inform opposing counsel of your plan to request an extension of time before contacting the clerk. If an oral extension is granted, the moving party will not receive any further extensions of time unless the moving party can demonstrate extraordinary circumstances. You may apply for an oral extension by calling: Northern & Eastern California, Hawaii, Guam, Arizona, Northern Mariana Islands, Nevada: (415) 355-7853 Central & Southern California: (626) 229-7261 Eastern & Western Washington, Idaho, Montana, Oregon, Alaska: (206) 2242210

After Opening a Case Counseled Appeals

Page 5

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 6 of 7

Written Extension Requests for extensions of more than 14 days will be granted only upon a written motion supported by a showing of diligence and substantial need. This motion shall be filed at least 7 days before the due date for the brief. The motion shall be accompanied by an affidavit or declaration that includes all of the information listed at 9th Cir. R. 31-2.2(b). The Court will ordinarily adjust the schedule in response to an initial motion. Circuit Advisory Committee Note to Rule 31-2.2. The Court expects that the brief will be filed within the requested period of time. Id. Contents of Briefs The required components of a brief are set out at Fed. R. App. P. 28 and 32, and 9th Cir. R. 28-2, 32-1 and 32-2. Excerpts of Record The Court requires excerpts of record rather than an appendix. 9th Cir. R. 301.1(a). Appellant shall file 4 separately-bound excerpts of record with white covers at the time the Opening Brief is filed, and shall serve one copy on each party. 9th Cir. R. 30-1.3. Please review 9th Cir. R. 30-1.3 through 30-1.6 to see a list of the specific contents and format. For excerpts that exceed 75 pages, the first volume must comply with 9th Cir. R. 30-1.6(a). Excerpts exceeding 300 pages must be filed in multiple volumes. 9th Cir. R. 30-1.6(b). Appellee may file supplemental excerpts and appellant may file further excerpts. 9th Cir. R. 30-1.7 and 30-1.8. If you are an appellee responding to a pro se brief that did not come with excerpts, then your excerpts need only include the contents set out at 9th Cir. R. 30-1.7. Mediation Program Mediation Questionnaires are required in all civil cases except cases in which the appellant is proceeding pro se, habeas cases (28 U.S.C. 2241, 2254 and 2255)
After Opening a Case Counseled Appeals Page 6

Case: 12-80104

04/27/2012

ID: 8158000

DktEntry: 1-4

Page: 7 of 7

and petitions for writs (28 U.S.C. 1651). 9th Cir. R. 3-4. They are not required in criminal cases. The Mediation Questionnaire is available on the Courts website at www.ca9.uscourts.gov under Forms. The Mediation Questionnaire should be filed within 7 days of the docketing of a civil appeal. The Mediation Questionnaire is used only to assess settlement potential. If you are interested in requesting a conference with a mediator, you may call the Mediation Unit at (415) 355-7900, email ca09_mediation@ca9.uscourts.gov or make a written request to the Chief Circuit Mediator. You may request conferences confidentially. More information about the Courts mediation program is available at http://www.ca9.uscourts.gov/mediation. Oral Hearings Notices of the oral hearing calendars are distributed approximately 4 to 5 weeks before the hearing date. The Court sits monthly in San Francisco, Pasadena and Seattle. The Court sits in Portland every other month, depending on caseload. The Court also hears cases 3 times a year in Honolulu and once a year in Anchorage. The Court will change the date or location of an oral hearing only for good cause, and requests to continue a hearing filed within 14 days of the hearing will be granted only upon a showing of exceptional circumstances. 9th Cir. R. 34-2. Oral hearing will be conducted in all cases unless all members of the panel agree that the decisional process would not be significantly aided by oral argument. Fed. R. App. P. 34.

After Opening a Case Counseled Appeals

Page 7