Court filing

Request for Judicial Notice re 78 MOTION to Dismiss Plaintiffs' Consolidated Amended… — Plaid Privacy (Dkt. 81)

No. 4:20-cv-03056-DMR · Doc. 81 · Docket on CourtListener

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Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 1 of 7

1 GIBSON, DUNN & CRUTCHER LLP
ETHAN D. DETTMER, SBN 196046
2 edettmer@gibsondunn.com
ABIGAIL A. BARRERA, SBN 301746
3 abarrera@gibsondunn.com
ASHLEY J. HODGE, SBN 287653
4 ahodge@gibsondunn.com
ANTHONY D. BEDEL, SBN 324065
5 tbedel@gibsondunn.com
555 Mission Street, Suite 3000
6 San Francisco, CA 94105
Telephone: 415.393.8200
7 Facsimile: 415.393.8306
8 GIBSON, DUNN & CRUTCHER LLP
ALEXANDER H. SOUTHWELL (pro hac vice)
9 asouthwell@gibsondunn.com
200 Park Avenue, 48th Floor
10 New York, NY 10166
Telephone: 212.351.4000
11 Facsimile: 212.351.4035
12 Attorneys for Defendant PLAID INC.
13 UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA

15 OAKLAND DIVISION

16 IN RE PLAID INC. PRIVACY LITIGATION Master Docket No. 4:20-cv-03056-DMR
17 REQUEST FOR JUDICIAL NOTICE IN
______________________________________ SUPPORT OF DEFENDANT PLAID INC.’S
18 MOTION TO DISMISS PLAINTIFFS’
THIS DOCUMENT RELATES TO: CONSOLIDATED AMENDED COMPLAINT
19
ALL ACTIONS ORAL ARGUMENT REQUESTED
20
Action Filed: May 4, 2020
21
Judge: Hon. Donna M. Ryu
22

Gibson, Dunn &
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 2 of 7

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE THAT, pursuant to Federal Rule of Evidence 201, Defendant Plaid
3 Inc. (“Defendant”) hereby requests that the Court take judicial notice of the following documents
4 listed below. The authenticity of the exhibits is established through the Declaration of Ethan D.
5 Dettmer in Support of Defendant Plaid Inc.’s Motion to Dismiss Plaintiffs’ Consolidated Amended
6 Complaint (“Dettmer Declaration”), which is filed concurrently with this Request for Judicial Notice.
7 1. Exhibit A – Plaid’s End User Privacy Policy.
8 2. Exhibit B – Venmo’s Privacy Policy.
9 3. Exhibit C – Cash App’s Additional Cash Terms of Service - Annotated.
10 4. Exhibit D – Coinbase’s Global Privacy Policy.
11 5. Exhibit E – Screenshots that show the consumer experience when connecting a bank
12 account to Venmo using Plaid Link.
13 The Court may take judicial notice of the above-listed documents pursuant to Federal Rule of
14 Evidence 201 because they are “capable of accurate and ready determination by resort to sources
15 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). When ruling on a
16 motion to dismiss, the Court may look beyond the four corners of the complaint to documents subject
17 to judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018);
18 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the
19 complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule
20 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference,
21 and matters of which a court may take judicial notice.”) (emphasis added); Fed. R. Evid. 201(b).
22 Courts regularly take judicial notice of a company’s privacy notice in privacy disputes and “if
23 a party requests [judicial notice] and the court is supplied with the necessary information[,]” then the
24 Court “must take judicial notice.” Fed. R. Evid. 201(c)(2) (emphasis added); see also Gonzales v.
25 Uber Techs., Inc., 305 F. Supp. 3d 1078, 1094 (N.D. Cal. 2018) (taking judicial notice of another
26 company’s (Lyft’s) app terms of service in dismissing invasion of privacy claims against Uber
27 because Lyft disclosed that it may share the data of which the plaintiff claimed an expectation of
28 privacy); Garcia v. Enter. Holdings, Inc., 78 F. Supp. 3d 1125, 1136 (N.D. Cal. 2015) (taking judicial

Gibson, Dunn & 1
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 3 of 7

1 notice of terms of service and a privacy policy that disclosed the practices of which plaintiff
2 complained and granting motion to dismiss).
3 “Necessary information” includes the source from which the fact to be noticed may be
4 ascertained and information from which the court can conclude that it is a source “whose accuracy
5 cannot reasonably be questioned.” Charles Alan Wright, et al., 21B Fed. Prac. & Proc. Evid. § 5108
6 (2d ed. 2020) (Discretionary Judicial Notice—Necessary Information). Here, Plaid has provided the
7 necessary information by supplying the Court with copies of the relevant privacy policies and terms
8 of service, and has indicated where they are publicly available. The screenshots that show the
9 consumer experience when connecting a bank account to Venmo using Plaid Link are publicly
10 available using the Venmo app.
11 Additionally, the Court may consider the documents through incorporation by reference,
12 which allows a court to consider a document if its authenticity is not contested and the complaint
13 “necessarily relies” upon it. Neilson v. Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1114
14 (C.D. Cal. 2003) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)) (quotation marks
15 omitted). This policy prevents a plaintiff from surviving a motion to dismiss by intentionally
16 “omitting references to documents upon which their claims are based.” Id. (citation and quotation
17 marks omitted). The Privacy Policy (Exhibit A) is repeatedly referenced by Plaintiffs throughout the
18 CAC (Plaintiffs’ Consolidated Amended Complaint, ECF No. 61). Similarly, Plaintiffs include
19 screenshots of the consumer experience when linking a bank account to Venmo with Plaid Link.
20 With respect to the other documents (Exhibits B, C, and D), Plaintiffs’ CAC depends on the contents,
21 and they are thus subject to judicial notice. For example, in Knievel v. ESPN the Ninth Circuit held
22 that the “incorporation by reference doctrine” may be extended to “situations in which the plaintiff’s
23 claim depends on the contents of a document, the defendant attaches the document to its motion to
24 dismiss, and the parties do not dispute [its] authenticity,” even if “the plaintiff does not explicitly
25 allege the contents of that document in the complaint.” 393 F.3d 1068, 1076 (9th Cir. 2005) (citation
26 omitted).
27 There, “[t]he Knievels attached to their complaint only the photograph and caption that they
28 argue[d] was defamatory, and they d[id] not allege or describe the contents of the surrounding pages

Gibson, Dunn & 2
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 4 of 7

1 in their complaint.” Id. The Ninth Circuit held it was proper to take into account the defendant’s
2 attachment of the surrounding web page and additional photos because “a viewer accessing the
3 Knievels photograph must also access the surrounding pages on the EXPN.com website ….” Id.
4 Here, Plaintiffs similarly allege the use of apps but omit the privacy policies and terms disclosed by
5 those apps, which disclose the activities that form the basis of the CAC and would, as a matter of
6 course, immediately precede any connection via Plaid. See, e.g., CAC ¶¶ 100-01. They also allege
7 and portray only a subset of screens in the series of screens that a user sees in linking their chosen
8 financial app to a financial account through Plaid Link (CAC ¶¶ 38, 67, 72), but do not allege or
9 portray the other screens that an end user necessarily sees in these circumstances. As in Knievel, this
10 Court should not allow such selective and misleading presentation of the facts.
11 Indeed, the content of these documents threaten survival of Plaintiffs’ claims on a motion to
12 dismiss. The Northern District holds that in an invasion of privacy litigation, the disclosures in
13 privacy policies of apps may eviscerate an individual’s reasonable expectation of privacy, when other
14 parties obtain information about the user through the app. See Gonzales, 305 F. Supp. 3d at 1091.
15 Attached to the Dettmer Declaration as Exhibit A is a true and correct copy of Plaid’s End
16 User Privacy Policy. This is a publicly available document (available at https://plaid.com/legal/#end-
17 user-privacy-policy) that is not subject to reasonable dispute. Further, Plaintiffs’ claims depend on
18 the contents of the privacy policy. See, e.g., CAC ¶¶ 101, 112, 122, 131, 141, 151, 160, 169, 179,
19 190, 200 (alleging ignorance of the details in any “privacy policy from Plaid when [he/she] linked
20 [his/her] bank account.”); ¶ 360 (alleging that Plaid’s privacy policy conceals and fails to disclose
21 material facts and otherwise makes false statements).
22 Attached to the Dettmer Declaration as Exhibit B is a true and correct copy of Venmo’s
23 Privacy Policy. This is a publicly available document (available at https://venmo.com/legal/us-
24 privacy-policy) that is not subject to reasonable dispute. Plaintiffs claim to have used Venmo but
25 conspicuously omit their knowledge of Venmo’s Privacy Policy and its disclosures that undermine
26 their CAC. See, e.g., CAC ¶¶ 100-01, 111-12, 121-22, 130-31, 140-41, 150-51, 159-60, 168-69, 178-
27 79, 188-90, 199-200. The content of this privacy policy specifically refutes Plaintiffs’ alleged
28 ignorance of Venmo’s data collection and third-party involvement. See, e.g., Ex. B at 2, 6

Gibson, Dunn & 3
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 5 of 7

1 (explaining that Venmo collects: “Identification Information - your name, street address, email
2 address, date of birth, and SSN (or other governmental issued verification numbers)[,]” “Financial
3 Information - bank account online login information, bank account and routing numbers and credit
4 cards linked to your Venmo account[,]” and “[i]f you connect your Venmo account to other financial
5 accounts … [Venmo] may have access to your account balance and account and transactional
6 information, such as purchases and funds transfers.”); Ex. B at 5, 6 (explaining that Venmo may
7 share user information with “[t]hird party service providers who assist us in providing services to you
8 or who provide fraud detection or similar services on our or any vendor’s behalf[,]” and
9 “[i]nformation that we share with a third-party based on an account connection will be used and
10 disclosed in accordance with the third-party’s privacy practices. Before authorizing an account
11 connection, you should review the privacy notice of any third party that will gain access to your
12 personal information as part of the account connection.”).
13 Attached to the Dettmer Declaration as Exhibit C is a true and correct copy of Cash App’s
14 Additional Cash Terms of Service - Annotated. This is a publicly available document (available at
15 https://cash.app/legal/us/en-us/legal/us/en-us/tos) that is not subject to reasonable dispute. Plaintiffs
16 Anderson, Mitchell, and Umali claim to have used Cash App but conspicuously omit their knowledge
17 of Cash App’s Additional Cash Terms of Service and its disclosures that undermine their complaint.
18 See, e.g., CAC ¶¶ 100-01, 140-41, 188-89. The content of this document specifically refutes
19 Plaintiffs’ alleged ignorance of Cash App’s data collection and Plaid’s involvement. See, e.g., Ex. C
20 at 10 (“If you choose to link your Eligible Bank Account to your Cash App by providing the
21 username and password you use to access your bank information online, you acknowledge your
22 personal and financial information is being provided to Plaid Inc., that your personal and financial
23 information will be collected, processed, transferred, or stored in accordance with Plaid Inc.’s Privacy
24 Policy, and that you acknowledge and agree to Plaid Inc’s Privacy Policy.”).
25 Attached to the Dettmer Declaration as Exhibit D is a true and correct copy of Coinbase’s
26 Global Privacy Policy. This is a publicly available document (available at
27 https://www.coinbase.com/legal/privacy) that is not subject to reasonable dispute. Plaintiff Umali
28 claims to have used Coinbase (“CB”) but conspicuously omits his knowledge of Coinbase’s Global

Gibson, Dunn & 4
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 6 of 7

1 Privacy Policy and its disclosures that undermine his complaint. See, e.g., CAC ¶¶ 188-89. The
2 content of this privacy policy specifically refutes Plaintiff Umali’s alleged ignorance of Coinbase’s
3 data collection and third-party involvement. Ex. D at 3 (“We may collect the” “Full name, date of
4 birth, nationality, gender, signature, utility bills, photographs, phone number, home address, and/or
5 email.” “Transaction Information: Information about the transactions you make on our Services,
6 such as the name of the recipient, your name, the amount, and/or timestamp.”); Ex. D at 7-8 (“If you
7 are based in the US, CB may use Plaid, Inc. (‘Plaid’) to connect your Coinbase account with your
8 bank account, verify your bank account and confirm your bank account balance prior to approving a
9 transaction. Information shared with Plaid is treated by Plaid in accordance with its Privacy Policy,
10 available at https://plaid.com/legal/#end-user-privacy-policy.”).
11 Attached to the Dettmer Declaration as Exhibit E is a true and correct copy of a series of
12 screenshots captured from the Venmo application on August 31, 2020 that show the complete
13 consumer experience when connecting a bank account to Venmo using Plaid Link. Bank account
14 balance information has been redacted. This is a publicly available set of images (available through
15 the Venmo app, which may be downloaded from the Apple App Store at
16 https://apps.apple.com/us/app/venmo/id351727428)) that is not subject to reasonable dispute.
17 Plaintiffs include a subset of these screenshots of the consumer experience when linking a bank
18 account to Venmo with Plaid Link in their CAC. CAC ¶¶ 38, 67, 72. Plaintiffs claim they “would
19 not have connected” their bank accounts had they known about Plaid’s role. CAC ¶¶ 105, 116, 126,
20 135, 145, 155, 164, 173, 183, 194, 204. The complete set of screenshots, however, specifically
21 refutes these allegations, as the screen Plaintiffs do not include in the CAC also explains in plain
22 language what Plaid does, explains that end users can choose to link their accounts to Venmo without
23 Plaid, and that they can always “turn off Venmo’s use of Plaid.” Dettmer Declaration ¶ 6. For these
24 reasons, Plaid respectfully requests that the Court take judicial notice of the above-referenced
25 documents.
26

Gibson, Dunn & 5
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR
Case 4:20-cv-03056-DMR Document 81 Filed 09/14/20 Page 7 of 7

1 Dated: September 14, 2020 Respectfully submitted,
2 GIBSON, DUNN & CRUTCHER LLP
3
/s/ Ethan D. Dettmer
4 By: Ethan D. Dettmer
5 Attorneys for Defendant Plaid Inc.
6

Gibson, Dunn & 6
Crutcher LLP
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT PLAID INC.’S MOTION TO DISMISS
CONSOLIDATED AMENDED COMPLAINT - MASTER DOCKET NO. 4:20-CV-03056-DMR

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