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OPPOSITION/RESPONSE (re 130 MOTION to Certify Class ) (and Dkt.… — Brooks v. Thomson Reuters Corporation (Dkt. 192)

Summary

Document 192, filed 03/31/23 in Case No. 3:21-cv-01418-EMC, is Thomson Reuters' Objection to New Reply Evidence, a redacted publicly filed version made pursuant to a Court order dated March 28, 2023. Thomson Reuters says Plaintiffs' reply brief on class certification introduces a new allegation about CLEAR, redacted here, which it calls false, and that it is improper to introduce new argument and evidence on reply and is irrelevant and unfairly prejudicial. It also asserts that earlier allegations about abortion records and sale to the Church of Scientology were false. It asks the Court to strike lines 11-14 of page 1 of the reply or, alternatively, to allow Thomson Reuters to respond.

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“OPPOSITION/RESPONSE (re 130 MOTION to Certify Class ) (and Dkt.… — Brooks v. Thomson Reuters Corporation (Dkt. 192).” Original at ecf.cand.uscourts.gov, No. 3:21-cv-01418-EMC, Doc. 192. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-brooks-thomsonreuters-cand-374304/2023-03-31-gov-uscourts-cand-374304-192-0-gov-uscourts-cand-374304-192-0/, SHA-256 07c4499362cc3ddf99f432c5ed85d4888eac739a9ec12dd1a9de36768d1863c9.

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Case 3:21-cv-01418-EMC Document 192 Filed 03/31/23 Page 1 of 5

1 Susan D. Fahringer, Bar No. 21567 Gabriella Gallego, Bar No. 324226
SFahringer@perkinscoie.com GGallego@perkinscoie.com
2 Nicola C. Menaldo, pro hac vice PERKINS COIE LLP
3 NMenaldo@perkinscoie.com 3150 Porter Drive
Erin K. Earl, pro hac vice Palo Alto, CA 94304-1212
4 EEarl@perkinscoie.com Telephone: 650.838.4300
Anna M. Thompson, pro hac vice Facsimile: 650.838.4350
5 AnnaThompson@perkinscoie.com
PERKINS COIE LLP Hayden M. Schottlaender, pro hac vice
6
1201 Third Avenue, Suite 4900 HSchottlaender@perkinscoie.com
7 Seattle, WA 98101-3099 PERKINS COIE LLP
Telephone: 206.359.8000 500 N. Akard Street, Suite 3300
8 Facsimile: 206.359.9000 Dallas, TX 75201-3347
Telephone: 214.965.7700
9 Attorneys for Defendant Facsimile: 214.965.7799
Thomson Reuters Corporation
10

11 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13 CAT BROOKS and RASHEED SHABAZZ, Case No. 3:21-cv-01418-EMC
individually and on behalf of all others similarly
14 situated, THOMSON REUTERS’
OBJECTION TO NEW REPLY
15
Plaintiffs, EVIDENCE
16
v. REDACTED - PUBLICLY FILED
17 VERSION OF DOC. 174-2
THOMSON REUTERS CORPORATION, PURSUANT TO COURT ORDER,
18 DATED MARCH 28, 2023 (DOC. 185)
Defendant.
19

Case No. 3:21-cv-01418-EMC THOMSON REUTERS’ OBJECTION
TO NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 192 Filed 03/31/23 Page 2 of 5

1 INTRODUCTION
2 Plaintiffs again play fast and loose with the facts to attempt to fearmonger their way into
3 class certification. Plaintiffs’ Complaint contained allegations about CLEAR containing abortion
4 records. That was false.1 Plaintiffs’ motion for class certification contained allegations about
5 CLEAR being sold to the Church of Scientology. That was false.2 And now Plaintiffs’ reply brief
6 includes allegations about CLEAR having .3 Again, that allegation is false. And,
7 as new, irrelevant evidence introduced for the first time in a reply brief, the Court should strike it
8 and refuse to rely on it.
9 TR objects to Plaintiffs’ new argument and evidence about under Local
10 Rule 7-3(d)(1) because it is improper to introduce new argument and evidence on reply. TR
11 further objects that is irrelevant to Plaintiffs’ case or to class certification and is
12 substantially outweighed by a danger of unfair prejudice or confusing the issues. Neither the
13 Amended Complaint nor Plaintiffs’ motion for class certification contain a single reference to
14 or anything of the sort.4 Alternatively, if the Court intends to credit Plaintiffs’ new
15 argument or evidence, then TR should be permitted an opportunity to respond. Dutta v. State
16 Farm Mut. Auto Ins. Co., 895 F.3d 1166, 1172 (9th Cir. 2018). TR would respond by showing
17 that the witness Plaintiffs quote in connection with their purported “new evidence” stated that he
18 had “no knowledge one way or the other” whether was ever indexed in CLEAR.
19 Doc. 169-4, 258:4-13. And, in fact, was never made available to any CLEAR
20 customers or integrated into the CLEAR product; it was merely a TR idea that was explored but
21 never launched. Third Sealing Declaration of Kevin Appold (“Appold Decl.”), Doc. 173-2, ¶ 2.
22 The Court should sustain TR’s objection and strike lines 11-14 of page 1 of Plaintiffs’
23 Reply In Support of Plaintiffs’ Motion for Class Certification, Doc. 169-3, as well as the
24
1
See Doc. 150-4, 2 n.2.
25 2
Id. at 3 n.9.
3
Doc. 169-3, at 1.
26 4
To the extent the allegation is relevant at all, the introduction of another variable data type to
27 this case would only bolster TR’s position: a class cannot be certified here because each putative
class member had different types of data collected, in differing quantities, and that data was
28 accessed in highly variable ways by a highly variable customer base.

Case No. 3:21-cv-01418-EMC -1- THOMSON REUTERS’ OBJECTION
TO NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 192 Filed 03/31/23 Page 3 of 5

1 accompanying evidence, Doc. 169-4, and otherwise decline to review or rely on Plaintiffs’ newly-
2 introduced evidence.
3 PLAINTIFFS’ REPLY INTRODUCED NEW ARGUMENT AND NEW EVIDENCE
4 In reductively and inaccurately characterizing TR’s arguments in opposition to class
5 certification as an argument about CLEAR being “benign,”5 Plaintiffs claim that discovery has
6 told “a different story,” because in their recent deposition of a TR engineer, that engineer testified
7 “that, for at least a limited time, CLEAR had –which includes potentially
8 and information that cannot be accessed through normal internet channels.” Doc.
9 169-3, at 1. They introduce transcript excerpts in purported support for that statement. Id.; see
10 also id., Ex. 1.
11 The phrase does not appear once in either Plaintiffs’ Complaint or their
12 Amended Complaint. See generally Doc. 1-1; Doc. 145. It is not referenced in Plaintiffs’ motion
13 for class certification. See generally Doc. 124-03.
14

17
5
18 Plaintiffs cannot claim that they have introduced this new evidence “to rebut arguments raised in
the opposition brief.” See Applied Materials, Inc. v. Demaray LLC, No. 5:20-cv-05676-EJD, 2020
19 WL 8515132, *2 ((N.D. Cal. Dec. 16, 2020). What Plaintiffs term TR’s “benign” CLEAR
argument is instead TR’s argument that determining the “unjustness” or “unfairness” of TR’s
20
operation of CLEAR will depend on individualized determinations, because Plaintiffs’ two
21 remaining claims necessitate equitably evaluating CLEAR’s benefits for each class member
against the harms that any class member experienced. See generally Doc. 150-4, at Part III.C.1.a.
22 Plaintiffs recognized this requisite balancing of benefits and harms even in the introduction to
their motion for class certification. See Doc. 124-03, at 1-2 (arguing that Plaintiffs should prevail
23 in UCL analysis because the “harms [] far outweigh any benefit”). TR never discusses
in its opposition because was never offered through CLEAR and has never
24
been mentioned in any pleading to date. Nor can Plaintiffs claim that the concept of
25 is new to them and that they could not have discovered the issue sooner. Documents related
to TR’s consideration of functionality (including those that were presented to Mr.
26 Gerhard at his deposition) were produced to them at least as far back as May 2022. Declaration of
Hayden M. Schottlaender, ¶ 2. And Plaintiffs themselves delayed in deposing Mr. Gerhard. They
27 stated their intent to depose Mr. Gerhard as far back as June 2022, and then unilaterally withdrew
28 from an agreed deposition date in October 2022. Id. ¶ 3.

Case No. 3:21-cv-01418-EMC -2- THOMSON REUTERS’ OBJECTION
TO NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 192 Filed 03/31/23 Page 4 of 5

1 THOMSON REUTERS’ OBJECTIONS
2 TR objects to Plaintiffs’ introduction of Doc. 169-4 and to their reply brief’s new
3 references to and arguments about under Local Rule 7-3(d)(1). Where a reply brief
4 “presents new information, it is improper.” Tovar v. U.S. Postal Service, 3 F.3d 1271, 1273 n.3
5 (9th Cir. 1993); see also Lam Research Corp. v. Schunk Semiconductor, No. C-03-1335-EMC,
6 2014 WL 1995799, at *2 (N.D. Cal. May 15, 2014) (Chen, J.) (“new evidence cannot be attached
7 to a reply”) (citing Tovar, 3 F.3d at 1273 n.3). Because anything regarding is new
8 information and new evidence, its introduction on reply is improper and should be stricken.
9 TR also objects that the new evidence regarding is irrelevant. At class
10 certification, plaintiffs must rely on “admissible evidence” that “must meet all the usual
11 requirements of admissibility [including] Rules 401, 403, and 702 of the Federal Rules of
12 Evidence.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 665
13 (9th Cir. 2022) (citing Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 454-55 (2016)). Evidence
14 is relevant under Federal Rule of Evidence 401 only if: (a) it has any tendency to make a fact
15 more or less probable than it would be without the evidence; and (b) the fact is of consequence in
16 determining the action. More, even relevant evidence ought to be excluded where “its probative
17 value is substantially outweighed by a danger of…unfair prejudice [or] confusing the issues.”
18 Fed. R. Evid. 403.
19 has no connection to this litigation. To TR’s knowledge, Plaintiffs’ reply
20 brief is the first time they have ever mentioned the topic in any filing. Plaintiffs do not mention
21 what types of may be at issue, what even is, why TR explored
22 using it, the types of persons or entities for whom TR might possess such data, to whom that
23 information might be offered, whether that offering was during the period of time covered by this
24 lawsuit, or any other information that might connect their incendiary allegation to this litigation.
25 Instead, Plaintiffs merely lob the allegation in the hopes of eliciting a “decision on an improper
26 basis, commonly…an emotional one.” U.S. v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998) (quoting
27 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 403.04[1][b] (Joseph
28 M. McLaughlin, ed., Matthew Bender 2d ed.1997)). The Court should reject that attempt.

Case No. 3:21-cv-01418-EMC -3- THOMSON REUTERS’ OBJECTION
TO NEW REPLY EVIDENCE
Case 3:21-cv-01418-EMC Document 192 Filed 03/31/23 Page 5 of 5

1 Finally, “the practice rules recognize the potential inequities that might flow from the
2 injection of new matter at the last round of briefing.” Dutat, 895 F. 3d at 1171-72. As a result, if
3 the new evidence and argument is not stricken from consideration, TR should be permitted leave
4 to file a sur-reply. Id. If granted that leave, TR would show the witness that Plaintiffs cite for this
5 point testified that he did not know whether Thomson Reuters ever acquired or made available to
6 customers . See, e.g., Doc. 169-4, 258:4-13. Rather, his testimony reveals that
7 CLEAR does not include currently, Doc 169-4, 268:17-23; that several years ago
8 he was asked to work on a “development environment” to test integrating certain data into
9 CLEAR, id. at 262:5-263:8; and he had “no knowledge” whether was ever made
10 available to customers at some prior point in time, id. at 258:1-13. Indeed, the TR Vice President
11 responsible for the integration and ongoing design of CLEAR since 2008 avers that CLEAR has
12 never made available to customers. Appold Decl., ¶ 2. That functionality was
13 briefly explored by the company, internally, as a potential product feature, but was never
14 launched or actually integrated into the CLEAR product available to customers. Id
15

16 Dated: March 16, 2023 PERKINS COIE LLP

18 By: /s/ Hayden M. Schottlaender
Hayden M. Schottlaender
19 Admitted pro hac vice
20 HSchottlaender@perkinscoie.com

21 Attorneys for Defendant Thomson Reuters
Corporation
22

Case No. 3:21-cv-01418-EMC -4- THOMSON REUTERS’ OBJECTION
TO NEW REPLY EVIDENCE

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