MOTION for Leave to File PLAINTIFFS NOTICE OF MOTION AND MOTION FOR… — Brooks v. Thomson Reuters Corporation (Dkt. 123)

Summary

The plaintiffs' notice of motion and motion for leave to file a First Amended Class Action Complaint, filed 11/09/22 as Document 123 in Brooks v. Thomson Reuters Corporation, Case No. 3:21-cv-01418-EMC-KAW in the U.S. District Court for the Northern District of California. Plaintiffs Cat Brooks and Rasheed Shabazz noticed the motion for January 19, 2023 before the Honorable Edward M. Chen. They say the amendment would seek class treatment for their injunction claim under California's Unfair Competition Law, update the class definition, revise some factual allegations based on discovery and conform class allegations to Rule 23. They say they do not seek to add parties or claims. The background notes the case was filed in state court on December 3, 2020 with four causes of action, including misappropriation of likeness and unjust enrichment.

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           Case 3:21-cv-01418-EMC            Document 123   Filed 11/09/22    Page 1 of 9




 1   Eric H. Gibbs (SBN 178658)                        Geoffrey A. Graber (SBN 211547)
     Andre M. Mura (SBN 298541)                        Karina G. Puttieva (SBN 317702)
 2
     Amy M. Zeman (SBN 273100)                         COHEN MILSTEIN SELLERS & TOLL
 3   Mark H. Troutman (pro hac vice)                   PLLC
     Ezekiel S. Wald (SBN 341490)                      1100 New York Ave. NW, Fifth Floor
 4                                                     Washington, DC 20005
     Hanne Jensen (SBN 336045)
 5   GIBBS LAW GROUP LLP                               Telephone: (202) 408-4600
     1111 Broadway, Suite 2100                         Facsimile: (202) 408-4699
 6   Oakland, CA 94607                                 ggraber@cohenmilstein.com
 7   Telephone: (510) 350-9700                         kputtieva@cohenmilstein.com
     Facsimile: (510) 350-9701
 8   ehg@classlawgroup.com
 9   amm@classlawgroup.com
     amz@classlawgroup.com
10   mht@classlawgroup.com
11   zsw@classlawgroup.com
     hj@classlawgroup.com
12
     Attorneys for Plaintiffs and the Proposed Class
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15                         UNITED STATES DISTRICT COURT FOR THE
                             NORTHERN DISTRICT OF CALIFORNIA
16                               SAN FRANCISCO DIVISION
17
      CAT BROOKS and RASHEED                           Case No. 3:21-cv-01418-EMC-KAW
18    SHABAZZ, individually and on behalf of
      all others similarly situated,                   PLAINTIFFS’ NOTICE OF MOTION AND
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                                                       MOTION FOR LEAVE TO FILE FIRST
20                             Plaintiffs,             AMENDED CLASS ACTION COMPLAINT
            v.
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                                                       Date: January 19, 2023
22    THOMSON REUTERS CORPORATION,                     Time: 1:30 p.m.
                                                       Place: Courtroom 5, 17th Floor
23                                                     Judge: Hon. Edward M. Chen
                             Defendant.
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                                  PLAINTIFFS’ MOTION FOR LEAVE
                                   Case No. 3:21-cv-01418-EMC-KAW
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 1                  NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE
 2   TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
 3          PLEASE TAKE NOTICE THAT on January 19, 2023 at 1:30 p.m., or as soon thereafter
 4   as the matter may be heard, via videoconference or in Courtroom 5 of the United States District
 5   Court, Northern District of California, San Francisco Division, located at 450 Golden Gate
 6   Avenue, San Francisco, California 94102, before the Honorable Edward M. Chen, Plaintiffs Cat
 7   Brooks and Rasheed Shabazz will, and hereby do, move this Court, pursuant to Rule 15(a)(2)
 8   of the Federal Rules of Civil Procedure, for leave to file a First Amended Class Action
 9   Complaint, a copy of which is submitted with this motion.
10          The proposed First Amended Class Action Complaint updates Plaintiffs’ UCL
11   injunctive relief claim in line with the motion to certify a class, clarifies the proposed class
12   definition, modifies certain factual allegations based on evidence produced by Defendant
13   during discovery, and conforms Plaintiffs’ class allegations to Rule 23 of the Federal Rules of
14   Civil Procedure.
15          This motion is based on this Notice of Motion; the accompanying memorandum in
16   support; the proposed First Amended Class Action Complaint, Ex. A; the Proposed Order, Ex.
17   B; the Declaration of Andre M. Mura in Support of Plaintiffs’ Motion for Leave to Amend, Ex.
18   C; the complete files and records in this action; and on such other written and oral argument
19   as may be presented to the Court.
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                                 PLAINTIFFS’ MOTION FOR LEAVE
                                  Case No. 3:21-cv-01418-EMC-KAW
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 1                                   MEMORANDUM IN SUPPORT
 2      I.       INTRODUCTION
 3            Plaintiffs timely move for leave to amend their complaint. Plaintiffs originally filed the
 4   operative class complaint in state court, and now seek leave to amend for four reasons: (1)
 5   seeking class treatment for the UCL injunction claim, (2) updating the class definition, (3)
 6   revising select factual allegations to account for certain information learned in discovery, and
 7   (4) conforming class allegations to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs
 8   do not seek to add parties or claims.
 9      II.      BACKGROUND
10            Plaintiffs filed this action in state court on December 3, 2020, bringing four causes of
11   action against Thomson Reuters: (1) common law right to publicity/misappropriation of
12   likeness, (2) monetary relief under § 17200 of California’s Unfair Competition Law, (3) unjust
13   enrichment, and (4) public injunctive relief under § 17200 of California’s Unfair Competition
14   Law. ECF No. 1-1 at ¶¶81-118. Plaintiffs asserted their class allegations under California’s
15   procedural rules for class cases. See id. at ¶¶70-80. Thomson Reuters removed the case to this
16   Court in February 2021, see ECF No. 1, and moved to dismiss the Complaint in its entirety.
17   ECF No. 28. The Court dismissed Plaintiffs’ common law privacy claims and request for
18   monetary relief under the UCL,1 but permitted Plaintiffs’ standalone unjust enrichment and
19   public injunctive relief claims to proceed. ECF No. 54.
20            Per the operative scheduling order in this case, Plaintiffs’ deadline to file an amended
21   complaint is November 9, 2022, the same date as their motion to certify the class. ECF No. 84
22   at 2. The close of fact discovery is set for June 14, 2023, more than seven months from now. Id.
23   at 3. Before filing this motion, Plaintiffs sought Thomson Reuters’ written consent to amend
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     1 Because the dismissal order did not expressly state whether dismissal was with or without
26   prejudice, Plaintiffs reallege the dismissed claims in their proposed amended complaint solely
27   to preserve their right to any appeal. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
     2012) (en banc) (“For claims dismissed with prejudice and without leave to amend, we will not
28   require that they be repled in a subsequent amended complaint to preserve them for appeal.”).

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                                    PLAINTIFFS’ MOTION FOR LEAVE
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 1   their complaint pursuant to Rule 15(a)(2), which Thomson Reuters declined to provide. See
 2   Mura Decl., Ex. C, at ¶3.
 3          Plaintiffs seek to leave to amend to make four general changes that would bring their
 4   pleading in line with their class certification motion. The first change would clarify that
 5   Plaintiffs seek class treatment for their UCL injunction claim, and request representative public
 6   injunctive relief in the alternative. The original claim, by contrast, stated only that Plaintiffs
 7   were seeking a representative public injunction.
 8          The second change would be to the class definition, which was written without the
 9   benefit of discovery. As changed, the class definition would be co-extensive with, if not
10   narrower than, the previous definition. The original class definition states:
11          All persons residing in the state of California whose name, photographs, personal
            identifying information, or other personal data is or was included in the CLEAR
12
            database during the limitations period.
13
     ECF No. 1-1 at 14 By contrast, the proposed amended class definition states:
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            All persons who, during the limitations period, both resided in the state of California
15          and whose personal information Thomson Reuters made available for sale through
16          CLEAR without their consent.

17   See Proposed Amended Complaint, Ex. A at 15. Both the original and proposed amended
18   definitions exclude “any officers and directors of Thomson Reuters; Class Counsel; and the
19   judicial officer(s) presiding over this action and the members of his/her immediate family and
20   judicial staff.” See id.; ECF No. 1-1 at 14. The amended definition simply reflects a more precise
21   understanding of how CLEAR operates and moves “during the limitations period” so that it
22   inarguably applies to both residency and whether information was made available for sale
23   through CLEAR. Although “[t]here is no rule that the definition of a certified class must exactly
24   match the definition contained in a complaint,” Sandoval v. Cnty. of Sonoma, 2015 WL 1926269,
25   at *2 (N.D. Cal. Apr. 27, 2015), it is at least prudent to update the class definition in the
26   operative pleading as the motion for class certification is filed, as that course avoids any
27   dispute over the court’s authority to consider a class beyond the definition provided in the
28   complaint. See also Gold v. Lumber Liquidators Inc., 2017 WL 2688077, at *3 (N.D. Cal. June 22,

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 1   2017) (collecting cases).
 2             The third change would be to make minor adjustments to Plaintiffs’ factual allegations
 3   to account for select information learned through discovery, and the fourth change would be
 4   to update the pleading (originally filed in California state court) to reflect federal procedural
 5   standards.
 6             Again, Plaintiffs do not seek to add new claims or join new parties.
 7      III.      ARGUMENT
 8             Rule 15(a)(2) provides that leave to amend “shall be freely given when justice so
 9   requires.” The rule “is designed ‘to facilitate decision on the merits, rather than on the
10   pleadings or technicalities.’” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1152 (9th Cir.
11   2011) (citation omitted). Courts in this circuit therefore afford “extreme liberality” to plaintiffs
12   seeking to amend their complaints. Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008).
13   Leave to amend should only be denied only upon a showing of: (1) bad faith, (2) undue delay,
14   (3) futility, or (4) undue prejudice to the opposing party. Id. Of these factors, often referred to
15   as the Foman factors, “prejudice to the opposing party carries the greatest weight.” Brown v.
16   Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020). “‘Absent prejudice,’ therefore, ‘or a
17   strong showing of any of the remaining Foman factors, there exists a presumption under Rule
18   15(a) in favor of granting leave to amend.’” Crown Energy Servs., Inc. v. Zurich Am. Ins. Co., 2021
19   WL 2207348, at *2 (N.D. Cal. Jun. 1, 2021) (Chen, J.) (citation omitted, emphasis in original).
20   The party opposing the motion bears the burden of showing prejudice. Id.
21             The Court should grant Plaintiffs leave to file the proposed amended complaint because
22   the changes Plaintiffs seek to make are timely and proper. Fairly understood, the changes do
23   not substantively alter the claims, parties, or scope of the class, and will not require any
24   extension of the close of discovery or other deadlines. But even if Thomson Reuters could show
25   that the amendments are in some sense substantive, there is no basis to deny these
26   amendments, particularly as Thomson Reuters is not prejudiced by them, let alone
27   substantially prejudiced. Because the Foman factors collectively weigh in Plaintiffs’ favor, the
28   Court should grant leave to amend.

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                                    PLAINTIFFS’ MOTION FOR LEAVE
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 1                  1.    Amendment will not prejudice Thomson Reuters.
 2          As prejudice is the most important Rule 15(a) factor, Brown, 953 F.3d at 574, the Court’s
 3   inquiry may begin and end here because Thomson Reuters will not be prejudiced by
 4   permitting amendment. Prejudice to the nonmoving party must be “substantial” to justify
 5   denying leave to amend. Chrimar Sys. Inc. v. Cisco Sys. Inc., 2016 WL 520948, at *3 (N.D. Cal.
 6   Feb. 10, 2016). Often, courts “evaluate prejudice in terms of whether relevant deadlines would
 7   have to be continued as a result of the new pleading”—a showing that cannot be made here,
 8   as seven months remain before the close of discovery. Artemus v. Louie, 2017 WL 747368, at *4
 9   (N.D. Cal. Feb. 27, 2017). And, as is the case here, courts fail to find prejudice to an opposing
10   party when the moving party has made no prior attempt to amend because the opposing party
11   has not been subject to repeated litigation costs involving amendment. See, e.g., Crown Energy
12   Servs., 2021 WL 2207348, at *3.
13          Critically, Thomson Reuters faces no additional burden from the proposed amended
14   complaint. Plaintiffs do not seek to join new parties, state new claims, or expand the class
15   definition. The minor factual clarifications are few and will better inform the Court about
16   CLEAR. Seeking class treatment of the UCL injunction claim, in addition to a representative
17   public injunction in the alternative, in no way substantially prejudices Thomson Reuters: the
18   legal and factual issues significantly overlap between a Rule 23(b)(2) class and representative
19   public injunction, and the Rule 23(a) and 23(b)(3) analysis for Plaintiffs’ unjust enrichment
20   claim remains the same irrespective of the proposed amendments. What’s more, the changes
21   to the class definition merely reflect a better understanding of the case. And the fact that
22   Plaintiffs intend to file an amended complaint along with their motion to certify the class has
23   long been known to both parties—and is contemplated in the parties’ agreed-upon schedule,
24   which sets the same deadline for both events. See ECF No. 84.
25          Because Thomson Reuters will not be substantially prejudiced by Plaintiffs’
26   amendment, “the critical issue” weighs in favor of granting leave to amend. See Staley v. Gilead
27   Scis., Inc., 2021 WL 5906049, at *3 (N.D. Cal. Dec. 14, 2021) (Chen, J.). And, as explained below,
28   there is no countervailing weight from the remaining Foman factors that could overcome the

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                                  PLAINTIFFS’ MOTION FOR LEAVE
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 1   “extreme liberality” courts afford amendment. See Waldrip, 548 F.3d at 732.
 2                 2.    Plaintiffs’ request for amendment is made in good faith.
 3         To find bad faith in a motion for leave to amend, “the adverse party must offer evidence
 4   that shows ‘wrongful motive’ on the part of the moving party.” Misle v. Schnitzer Steel Indus.,
 5   Inc., 2017 WL 661366, at *3 (N.D. Cal. Feb. 17, 2017) (citation omitted). Courts have found bad
 6   faith “where the amendment is introduced to cause a delay in proceedings or for some other
 7   improper purpose,” such as to avoid an adverse summary judgment ruling and requiring
 8   reopening discovery. Artemus, 2017 WL 747368, at *3. Thomson Reuters has no such evidence.
 9   The amendment sought here is fairly “vanilla”—there is no impermissible motive for seeking
10   leave to amend here.
11                 3.    Plaintiffs have not unduly delayed in seeking leave to amend.
12         When considering whether delay is “undue,” courts typically look not just at the timing
13   of the motion but at whether there is some “dilatory motive” for delay. In re Facebook Priv.
14   Litig., 2015 WL 632329, at *2 (N.D. Cal. Feb. 13, 2015). Because Plaintiffs developed the
15   proposed changes in the amended complaint in tandem with the motion to certify the class,
16   earlier amendment would not have been practical, particularly in light of significant discovery
17   received over last several months. Moreover, the parties clearly anticipated that Plaintiffs
18   would seek to revise their complaint at the time they filed the motion to certify class, and
19   routinely stipulated to that schedule. See ECF Nos. 58, 77, 83. Because the changes do not
20   substantially change Plaintiffs’ claims or the parties in this case, Thomson Reuters can show
21   no “dilatory motive” on Plaintiffs’ part for seeking a single amendment at a foreseeable
22   juncture, rather than filing inevitably successive requests for amendment each time new
23   information was learned. In any event, “undue delay by itself is not a reason to deny
24   amendment.” Staley, 2021 WL 5906049, at *3.
25                 4.    Amendment is not futile.
26         Proving futility is a “heavy burden” that requires the nonmoving party to establish that
27   “no set of facts can be proved under the amended complaint that would constitute a valid and
28   sufficient claim or defense.” Microsoft Corp. v. Hon Hai Precision Indus. Co., Ltd., 2020 WL

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                                 PLAINTIFFS’ MOTION FOR LEAVE
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 1   836712, at *15, *14 (N.D. Cal. Feb. 20, 2020). Thomson Reuters cannot meet this burden, as
 2   evidenced by the Court’s order allowing Plaintiffs’ unjust enrichment and UCL injunctive
 3   relief claim to go forward. See ECF No. 54. But even if the Court had not already denied
 4   Thomson Reuters’ motion to dismiss as to the remaining claims in the proposed amended
 5   complaint, granting leave would still be proper because courts typically avoid resolving claims
 6   on the merits under a futility analysis. See Microsoft Corp., 2020 WL 836712, at *14. Plaintiffs
 7   replead the dismissed claims only to preserve their right to appeal, see Ex. A at 18 n. 19, 19 n.
 8   20, and because Plaintiffs’ unjust enrichment and UCL injunctive relief claims survived the
 9   motion to dismiss, amendment is not futile.
10      IV.      CONCLUSION
11            Because Thomson Reuters will not be substantially prejudiced by the amendment and
12   can show no other countervailing reason, Plaintiffs respectfully request that the Court grant
13   their motion for leave to file their proposed First Amended Class Action Complaint.
14
15   Dated: November 9, 2022                         Respectfully submitted,
16
                                                     By: /s/ Andre M. Mura
17
                                                     Eric H. Gibbs (SBN 178658)
18                                                   Andre M. Mura (SBN 298541)
19                                                   Amy M. Zeman (SBN 273100)
                                                     Mark H. Troutman (pro hac vice)
20                                                   Ezekiel S. Wald (SBN 341490)
21                                                   Hanne Jensen (SBN 336045)
                                                     GIBBS LAW GROUP LLP
22                                                   1111 Broadway, Suite 2100
23                                                   Oakland, California 94607
                                                     (510) 350-9700
24                                                   ehg@classlawgroup.com
25                                                   amm@classlawgroup.com
                                                     amz@classlawgroup.com
26                                                   mht@classlawgroup.com
27                                                   zsw@classlawgroup.com
                                                     hj@classlawgroup.com
28

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                                  PLAINTIFFS’ MOTION FOR LEAVE
                                   Case No. 3:21-cv-01418-EMC-KAW
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 1                                     Geoffrey A. Graber (SBN 211547)
                                       Karina G. Puttieva (SBN 317702)
 2
                                       COHEN MILSTEIN SELLERS & TOLL
 3                                     PLLC
                                       1100 New York Ave. NW, Fifth Floor
 4                                     Washington, DC 20005
 5                                     Telephone: (202) 408-4600
                                       Facsimile: (202) 408-4699
 6                                     ggraber@cohenmilstein.com
 7                                     kputtieva@cohenmilstein.com

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                                       Attorneys for Plaintiffs and the Proposed Class
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                       PLAINTIFFS’ MOTION FOR LEAVE
                        Case No. 3:21-cv-01418-EMC-KAW


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