Court filing
JOINT CASE MANAGEMENT STATEMENT filed by Cat Brooks, Rasheed Shabazz.… — Brooks v. Thomson Reuters Corporation (Dkt. 51)
No. 3:21-cv-01418-EMC · Doc. 51 · Docket on CourtListener
Full text
Case 3:21-cv-01418-EMC Document 51 Filed 08/10/21 Page 1 of 14
1 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
2 Amanda M. Karl (SBN 301088)
Jeffrey B. Kosbie (SBN 305424)
3
GIBBS LAW GROUP LLP
4 505 14th Street, Suite 1110
Oakland, California 94612
5 Telephone: (510) 350-9700
Facsimile: (510) 350-9701
6 ehg@classlawgroup.com
amm@classlawgroup.com
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amk@classlawgroup.com
8 jbk@classlawgroup.com
9 Attorneys for Plaintiffs and the Proposed Class
10 [Additional counsel on signature page]
11
12 UNITED STATES DISTRICT COURT FOR THE
13 NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
14
15 CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-1418-EMC
individually and on behalf of all others
16 similarly situated, JOINT CASE MANAGEMENT
17 CONFERENCE STATEMENT
Plaintiffs,
18 v. Judge: Hon. Edward M. Chen
Date: August 17, 2021
19 THOMSON REUTERS CORPORATION, Time: 9:30 a.m.
Courtroom: 5
20 Defendant.
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Case No. 3:21-cv-1418-EMC
Case 3:21-cv-01418-EMC Document 51 Filed 08/10/21 Page 2 of 14
1 The parties submit this joint statement in advance of the case management conference scheduled
2 for August 17, 2021 pursuant to Federal Rule of Civil Procedure 26(f), Civil Local Rule 16-9, the
3 Standing Order for All Judges of the Northern District of California, this Court’s Standing Order for All
4 Civil Cases, and this Court’s March 18, 2021 Order. See ECF No. 26.
5 1. Jurisdiction and Service
6 This Court has jurisdiction under the Class Action Fairness Act of 2005, specifically 28 U.S.C.
7 § 1332(d). See ECF No. 1 (Notice of Removal). There are no issues regarding personal jurisdiction or
8 venue. All parties have been served.
9 2. Facts
10 a. Plaintiffs’ Statement
11 Thomson Reuters procures detailed personal information on millions of California residents
12 from a vast array of sources, uses that information to create dossiers about these individuals, and sells
13 these dossiers to customers. All of these actions are performed without the individuals’ knowledge or
14 consent. Thomson Reuters purports that its dossiers define the individual for customers wanting this
15 information.
16 Plaintiff Cat Brooks is a civil rights activist who has been targeted by white supremacists, so she
17 tries to ensure that her personal information is not available for the public. Nonetheless, Thomson
18 Reuters sells its customers a detailed dossier on Ms. Brooks and her family. Similarly, Plaintiff
19 Rasheed Shabazz is also a civil rights activist who fears retaliation because of his work. Thomson
20 Reuters sells Mr. Shabazz’s information without his consent, including his address, phone number, and
21 partial social security number. Thomson Reuters even sells inaccurate information about him,
22 including that he is divorced when he is married, and that he has been sued for failing to pay child
23 support when he has not.
24 Based upon Thomson Reuters’ sale and collection of data through the CLEAR platform,
25 Plaintiffs seek to certify a class of California residents who claim that Thomson Reuters violates
26 California law by profiting from the non-consensual sale of personal identifying information and data.
27 Plaintiffs seek both monetary compensation to remedy these violations, as well as injunctive relief in a
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
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1 representative capacity to enjoin Thomson Reuters’ continued violation of California’s Unfair
2 Competition Law.
3 b. Thomson Reuters’ Statement
4 Thomson Reuters is a leading provider of worldwide news and business information services,
5 delivering highly specialized information-enabled software and tools for legal, tax, accounting, and
6 compliance professionals. This case targets “CLEAR,” an online search platform that helps streamline
7 investigative research by collecting and organizing information from third party sources. The content
8 made available through CLEAR is not created by Thomson Reuters; rather, it is obtained from other
9 sources, such as public records, government sources, and the Internet. Thomson Reuters offers
10 credentialed, authorized customers subscription plans that allow them to use CLEAR for lawful
11 purposes, including to prevent money laundering, to verify and “know your vendor,” to facilitate
12 commercial lending, to prevent healthcare and insurance fraud, to find absent parents, and to protect
13 victims of human trafficking and sexual exploitation.
14 Plaintiffs do not allege that any Thomson Reuters obtained information unlawfully or that any
15 customer used CLEAR in an unlawful or unauthorized manner; rather, Plaintiffs target Thomson
16 Reuters for including their information in CLEAR without paying them or seeking their advance
17 consent.
18 3. Legal Issues
19 a. Plaintiffs’ Statement: The legal issues include, but are not limited to, the following:
20 • Whether Thomson Reuters’ collection and sale of personal data through the CLEAR
21 platform violates California’s common law right of publicity.
22 • Whether Thomson Reuters’ collection and sale of personal data through the CLEAR
23 platform violates California’s Unfair Competition Law, Cal. Bus. & Prof. § 17200, et seq.
24 • Whether Thomson Reuters has a process for obtaining consent before collecting,
25 aggregating, and selling individuals’ personal data in the CLEAR database.
26 • Whether Thomson Reuters’ sale of personal data through the CLEAR platform constitutes a
27 misappropriation for commercial advantage under California law.
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1 • Whether class members’ names, photographs, and other identifying information are directly
2 connected to the commercial purpose of selling access to that information.
3 • The extent to which Thomson Reuters has profited from the non-consensual sale of personal
4 identifying information and data.
5 • Whether this case is suitable for class treatment under Federal Rule of Civil Procedure 23.
6 b. Defendants’ Statement: The legal issues include the following, many of which are
7 discussed in Thomson Reuters’ pending Motion to Dismiss and Motion to Strike (ECF No. 28) and
8 Reply in support thereof (ECF No. 35):
9 • Whether California’s common law or statutory rights of publicity cover conduct that does
10 not involve any use of Plaintiffs’ images, names, or likenesses to draw attention in order to
11 secure a future advantage;
12 • Whether California’s common law or statutory rights of publicity are so broad as to prohibit
13 a company from charging a fee to provide factual information about another.
14 • Whether California’s statutory right of publicity under California Civil Code Section 3344
15 requires a plaintiff to establish all elements of California’s common law Right of Publicity
16 (among others).
17 • Whether Thomson Reuters’ actions are neither an “unlawful” nor an “unfair” practice under
18 California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.
19 • Whether Plaintiffs’ claim for unjust enrichment should be dismissed because it is not a valid
20 claim under California law.
21 • Whether Plaintiffs must show they lack an adequate remedy at law before they may recover
22 equitable relief.
23 • Whether the relief Plaintiffs seek would be a content-based restriction, subject to strict
24 scrutiny, that would contravene free speech protections enshrined by the First Amendment.
25 See Sarver v. Chartier, 813 F.3d 891, 903 (9th Cir. 2016) (“California’s right of publicity
26 law clearly restricts speech based upon its content.”).
27 • Whether the Communications Decency Act (“CDA”), 28 U.S.C. § 230, bars Plaintiffs’
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1 claims because they seek to hold Thomson Reuters, the provider of an interactive computer
2 service, liable as a publisher or speaker of third-party content. See, e.g., Carafano v.
3 Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (section 230 barred
4 misappropriation of right of publicity claim).
5 • Whether the Complaint should be stricken and attorneys’ fees and costs awarded under
6 California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, because Plaintiffs’ claims
7 arise from Thomson Reuters’ exercise of free speech and Plaintiffs cannot show the claims
8 are legally sufficient and factually substantiated.
9 • Whether Plaintiffs can establish any entitlement to injunctive relief.
10 • Whether this case is unsuitable for class treatment under Federal Rule of Civil Procedure 23.
11 4. Motions
12 Thomson Reuters’ Motion to Stay Discovery, see ECF No. 34, is fully briefed and the Court
13 will rule on the motion on the papers, see ECF No. 49. Thomson Reuters’ Motion to Dismiss Pursuant
14 to FRCP 12(b)(6), and Motion to Strike Pursuant to California Code of Civil Procedure § 425.16(b), see
15 ECF Nos. 28, 34, 35, were heard on June 24, 2021.
16 Plaintiffs intend to file a motion for class certification once discovery is substantially underway
17 and may file a motion for summary judgment once discovery has closed.
18 Should the Court grant Thomson Reuters’ Motion to Dismiss but dismiss the Complaint without
19 prejudice, Thomson Reuters anticipates filing a motion to dismiss any amended complaint. As to any
20 claims that survive, Thomson Reuters may file a motion for summary judgment at the appropriate time
21 and will oppose any motion for class certification.
22 5. Amendment of Pleadings
23 a. Plaintiffs’ Statement: Plaintiffs may decide to amend their complaint depending on this
24 Court’s ruling on Thomson Reuters’ motions to dismiss and strike, and they may also decide to amend
25 as discovery moves forward. Plaintiffs propose a deadline for amended pleadings of 270 days after
26 discovery begins. Plaintiffs’ proposed schedule is otherwise keyed to the start of discovery or this
27 Court’s entry of an order on class certification.
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1 b. Defendant’s Statement: Thomson Reuters believes that the Court should defer setting a
2 case schedule, including a deadline for amendment of pleadings, until the pleadings are set (i.e., a
3 Complaint and an Answer are filed).
4 6. Evidence Preservation
5 The parties reviewed the District’s ESI Guidelines. They are taking steps to ensure all
6 potentially relevant evidence is preserved.
7 a. Plaintiffs’ Statement: In connection with the parties’ Rule 26(f) conference, Plaintiffs
8 asked Thomson Reuters to provide additional preservation information in line with the Northern
9 District’s ESI Checklist. Thomson Reuters declined to provide any details concerning the scope or
10 nature of its litigation hold. Plaintiffs have been instructed to preserve all potentially relevant evidence.
11 b. Defendant’s Statement: During the parties’ Rule 26(f) conference, Thomson Reuters
12 informed Plaintiffs of steps it has taken to preserve potentially relevant information. Thomson Reuters
13 expects that the parties will continue to have discussions regarding their ESI obligations and believes
14 that both discovery and detailed discussions regarding its scope should be deferred until after the
15 pleadings are set.
16 7. Disclosures
17 a. Plaintiff’s Statement: Plaintiff proposes that the parties exchange Initial Disclosures on
18 August 24, 2021, two weeks from the date of the submission of this Joint Statement.
19 b. Defendant’s Statement: During the parties’ Rule 26(f) conference, pursuant to Federal
20 Rule of Civil Procedure 26(a)(1)(C), Thomson Reuters objected that initial disclosures are not
21 appropriate at this time in light of Thomson Reuters’ pending Motion to Dismiss and Motion to Stay
22 Discovery. Thomson Reuters proposes that the parties exchange Rule 26(a) disclosures 14 days after
23 there is no longer a pleading challenge that would result in the Court dismissing the case.
24 8. Discovery
25 • Discovery taken to date: No discovery has been taken to date.
26 • Scope of anticipated discovery: Each of the parties anticipates taking discovery concerning, at a
27 minimum, the factual and legal issues they identified in sections 2 and 3, above. In addition,
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1 Thomson Reuters anticipates that it will seek discovery regarding its defenses, including
2 Plaintiffs’ allegations of damage, their consent to the sharing of their personal information, the
3 extent to which Plaintiffs’ information is available through other sources, whether anyone other
4 than Plaintiffs and their representatives accessed Plaintiffs’ information, and the extent to which
5 Plaintiffs have placed themselves in the public eye.
6 • Proposed limitations or modifications of the discovery rules: The parties do not propose
7 limitations or modifications of the discovery rules at this time but will continue to meet and
8 confer on these issues as appropriate.
9 • Brief report on stipulated e-discovery order: The parties anticipate moving this Court to enter an
10 ESI stipulation and protective order, based on this Court’s model orders and stipulations. The
11 parties disagree on whether this process should begin now or wait until such time that there is
12 no longer a pleading challenge that would result in the Court dismissing the case.
13 • Date for completion of discovery: The parties’ respective positions regarding a schedule for
14 discovery are set forth in the scheduling table in Section 17.
15 • Preservation of ESI: The parties are not currently aware of any issues regarding disclosure,
16 discovery, or preservation of ESI, including the form or forms in which it should be produced,
17 and the parties will cooperate to attempt to resolve any such issues that may arise. During the
18 parties’ meet and confer on this CMC Statement, Thomson Reuters declined to provide specific
19 details about preservation efforts. Consequently, Plaintiffs reserve the right to raise concerns
20 once more is disclosed about Thomson Reuters’ preservation efforts.
21 • Privilege or work product protection: The parties are not currently aware of any issues
22 regarding claims of privilege or of protection as trial-preparation materials, and the parties will
23 cooperate to attempt to resolve any such issues that may arise.
24 • Changes or limitations on discovery: The parties do not currently propose any changes in the
25 limitations on discovery imposed under these rules or by local rule, but the parties reserve the
26 right to propose additional changes following resolution of Thomson Reuters’ pleadings-based
27 challenges (e.g., in response to any amended complaint).
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1 • Discovery disputes: As noted above, Thomson Reuters has moved for a protective order
2 pursuant to Federal Rule of Civil Procedure 26(c) staying discovery pending resolution of its
3 Motion to Dismiss or until there is no longer a pleading challenge that would result in the Court
4 dismissing the case.
5 There are no other issues under Rules 26(c) or 16(b) or 16(c) at this time.
6 9. Class Actions
7 All attorneys of record for the parties have reviewed the Procedural Guidance for Class Action
8 Settlements.
9 a. Plaintiffs’ Statement: Plaintiffs propose filing a motion for class certification 270 days
10 after discovery begins. Plaintiffs anticipate certifying a California class of all persons residing in the
11 state of California whose name, photographs, personal identifying information, or other personal data is
12 or was included in the CLEAR database during the limitations period. Plaintiffs may seek certification
13 under Federal Rules of Civil Procedure 23(b)(2), 23(b)(3), and/or 23(c)(4).
14 b. Defendant’s Statement: Thomson Reuters does not believe this case is suitable for
15 class treatment and intends to oppose any motion seeking class certification. Thomson Reuters believes
16 that the Court should defer setting a deadline for class certification until after the pleadings are set.
17 10. Related Cases
18 To the parties’ knowledge, there are no related cases pending in this District or another court or
19 administrative body.
20 11. Relief
21 a. Plaintiff’s Statement: Plaintiffs seek damages, restitution, and disgorgement in an
22 amount yet to be determined; declaratory and injunctive relief, including public injunctive relief; costs
23 and attorneys’ fees; and such other relief as the Court may deem necessary and proper.
24 b. Defendant’s Statement: Plaintiffs are not entitled to relief in any form, and Thomson
25 Reuters opposes Plaintiffs’ prayer for relief.
26 12. Settlement and ADR
27 The parties have filed an ADR Certification as required by ADR Local Rule 3-5(b).
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1 19. Disclosure of Non-Party Interested Entities or Persons
2 a. Plaintiffs’ Statement: Plaintiffs know of no persons or entities that have a financial
3 interest in the subject matter in controversy or in a party to the proceeding, or any other kind of interest
4 that could be substantially affected by the outcome of the proceeding. See ECF No. 45.
5 b. Defendant’s Statement: Thomson Reuters filed its Corporate Disclosure Statement and
6 Certificate of Interested Entities or Persons on February 26, 2021. See ECF No. 26. Thomson Reuters
7 has no parent corporation. Westlaw and CLEAR, products referenced in the Complaint, are products
8 offered by Thomson Reuters’ subsidiary, West Publishing Corporation. See ECF No. 28 n.1. As of this
9 date, Thomson Reuters is unaware of any other person or entity, other than West Publishing
10 Corporation and the named parties, with a financial or other interest that could be substantially affected
11 by the outcome of this proceeding.
12 20. Professional Conduct
13 All attorneys of record for the parties have reviewed the Guidelines for Professional Conduct
14 for the Northern District of California.
15 21. Other Matters
16 The parties are not presently aware of any other matters that may facilitate the just, speedy, and
17 inexpensive disposition of this action.
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Dated: August 10, 2021 Respectfully submitted,
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/s/ Andre M. Mura
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21 Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
22 Amanda M. Karl (SBN 301088)
Jeffrey B. Kosbie (SBN 305424)
23 GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
24
Oakland, California 94612
25 Telephone: (510) 350-9700
Facsimile: (510) 350-9701
26 ehg@classlawgroup.com
amm@classlawgroup.com
27 amk@classlawgroup.com
jbk@classlawgroup.com
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Case No. 3:21-cv-1418-EMC
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1 Jennifer D. Bennett (SBN 296726)
Neil K. Sawhney (SBN 300130)
2 GUPTA WESSLER PLLC
100 Pine Street, Suite 1250
3
San Francisco, CA 94111
4 Telephone: (415) 573-0336
jennifer@guptawessler.com
5 neil@gutawessler.com
6 Benjamin Elga (pro hac vice)
Alice Buttrick (pro hac vice)
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JUSTICE CATALYST LAW INC.
8 123 William Street, 16th floor
New York, NY 10038
9 Telephone: (518) 732-6703
belga@justicecatalyst.org
10 abuttrick@justicecatalyst.org
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Albert Fox Cahn (pro hac vice)
12 SURVEILLANCE TECHNOLOGY
OVERSIGHT PROJECT
13 40 Rector Street, 9th Floor
New York, NY 10006
14 albert@stopspying.org
15
Attorneys for Plaintiffs Cat Brooks and
16 Rasheed Shabazz and the Proposed Class
17
DATED: August 10, 2021 PERKINS COIE LLP
18
Susan D. Fahringer
19
Susan D. Fahringer, Bar No. 21567
20 Nicola C. Menaldo, pro hac vice
Anna M. Thompson, pro hac vice
21 PERKINS COIE LLP
1201 Third Avenue, Suite 4900
22 Seattle, WA 98101-3099
Telephone: (206) 359-8000
23
Facsimile: (206) 359-9000
24 SFahringer@perkinscoie.com
NMenaldo@perkinscoie.com
25 AnnaThompson@perkinscoie.com
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Gabriella Gallego, Bar No. 324226
1 PERKINS COIE LLP
2 3150 Porter Drive
Palo Alto, CA 94304-1212
3 Telephone: (650) 838-4300
Facsimile: (650) 838-4350
4 GGallego@perkinscoie.com
5 Attorneys for Defendant
6 Thomson Reuters Corporation
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1 ATTESTATION
2 Pursuant to Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this document
3 has been obtained from the other signatory.
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5 /s/ Andre M. Mura
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
Case No. 3:21-cv-1418-EMC
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