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Reply in Support of Plaid Inc.s Request for Judicial Notice in Support of 78 Motion to… — Plaid Privacy (Dkt. 112)

No. 4:20-cv-03056-DMR · Doc. 112 · Docket on CourtListener

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Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 1 of 6

1 COOLEY LLP
MICHAEL G. RHODES (116127)
2 (rhodesmg@cooley.com)
WHITTY SOMVICHIAN (194463)
3 (wsomvichian@cooley.com)
KYLE C. WONG (224021)
4 (kwong@cooley.com)
LAUREN J. POMEROY (291604)
5 (lpomeroy@cooley.com)
ELLIE BARCZAK (329180)
6 (ebarczak@cooley.com)
101 California Street, 5th Floor
7 San Francisco, CA 94111-5800
Telephone: +1 415 693 2000
8 Facsimile: +1 415 693 2222
9 Attorneys for Defendant
Plaid Inc.
10

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 OAKLAND DIVISION

15 Case No. 4:20-cv-03056-DMR

16 IN RE PLAID INC. PRIVACY LITIGATION REPLY IN SUPPORT OF PLAID INC.’S
REQUEST FOR JUDICIAL NOTICE IN
17 SUPPORT OF MOTION TO DISMISS
_____________________________________ PLAINTIFFS’ CONSOLIDATED AMENDED
18 COMPLAINT
THIS DOCUMENT RELATES TO:
19 Date: TBA
Time: 1:00 p.m.
20 ALL ACTIONS Dept: Courtroom 4 – 3rd Floor
Judge: Donna M. Ryu
21
Trial Date: None Set
22 Date Action Filed: May 4, 2020

28
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ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR
Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 2 of 6

1 I. ARGUMENT
2 A. Plaid’s Documents are Proper for Judicial Notice
3 Plaintiffs argue this Court should decline to take judicial notice of Exhibits A-E to Mr.
4 Dettmer’s Declaration (ECF Nos. 79-1, 79-2, 79-3, 79-4, 79-5) because (1) Plaid submitted the
5 current version of its End User Privacy Policy rather than versions in place when Plaintiffs linked
6 their payments apps to their financial institutions, (2) websites are not proper for judicial notice,
7 and (3) the documents were not property authenticated. None of these arguments has merit.
8 1. Plaid’s Current Privacy Policy is Relevant and Incorporated By
Reference in Plaintiffs CAC
9
Plaintiffs ask the Court to ignore Plaid’s current End User Privacy Policy (“Privacy Policy”)
10
by claiming they are irrelevant to their individual claims. But this argument is disingenuous given
11
the heavy emphasis that Plaintiffs place on the current Privacy Policy in the Consolidated Amended
12
Complaint (“CAC”). Indeed, Plaintiffs’ Opposition to this motion acknowledges that the CAC
13
repeatedly refers to, and directly quotes from, the current Privacy Policy and current Venmo link
14
process.1 Opp. 1. These references include selected screenshots of parts of the Plaid Link process
15
in the Venmo app (e.g., CAC ¶¶ 67, 72), and alleging that the Policy is “deceptive” (e.g., CAC ¶¶
16
74(h), 74(i) 74(j)). For example, the CAC alleges that “[b]y stating in its privacy policy that the
17
company collects ‘[i]nformation about account transactions’. . . Plaid deceives consumers’” as to
18
Plaid’s role in applications like Venmo. CAC ¶ 74(j). See, also, e.g., CAC ¶¶ 264, 280, 308, 331,
19
334, 360. The current Privacy Policy thus forms a key part of the foundation for Plaintiffs’ claims
20
and judicial notice is appropriate because Plaintiffs “necessarily rel[y]” on its terms. 2 Neilson v.
21
Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1114 (C.D. Cal. 2003) (quoting Parrino v.
22
FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)) (quotation marks omitted). See also Khoja v.
23
1
24 Plaintiffs’ difficulty in forming their argument on this point is immediately notable. First,
Plaintiffs claim the CAC “does not refer” to Plaid’s documents, yet concedes the opposite just two
25 sentences later. Opp. at 5. Plaintiffs’ attempt to walk the line between “refer to” and “rely on” is
belied by the CAC. See, e.g., CAC ¶101.
2
26 Moreover, each of the named Plaintiffs admits that to the extent that they recall the details of
linking their bank accounts with participating apps like Venmo, “those details are consistent with
27 the discussion of Plaid’s interface” in the CAC. ¶¶ 101, 112, 122, 131, 140, 151, 131, 160, 169,
179, 190, 200. By their own account, the CAC “necessarily relies” on the “discussion of Plaid’s
28 interface” within the complaint, explicitly including the Privacy Policy and the screenshots of the
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Plaid link process in the Venmo application.
ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO 1 CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR
Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 3 of 6

1 Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (materials are incorporated by
2 reference and subject to judicial notice where a party relies on them to “form[] the basis” of their
3 claims).3
4 2. Judicial Notice is Proper for Privacy Policies Listed on Websites
5 Plaintiffs fare no better with their suggestion that private websites cannot be the province
6 of judicial notice. Courts routinely consider the contents of parties’ websites and the policies
7 contained therein. See, e.g., Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1197 & n.1 (N.D. Cal.
8 2014) (taking judicial notice of Apple’s iOS License Agreements and granting in part motion to
9 dismiss based on those agreements); Opperman v. Path, Inc., 84 F. Supp. 3d 962, 976 (N.D. Cal.
10 2015) (taking judicial notice of, inter alia, Apple’s privacy policy, because it was “publicly
11 available, standard documents that [were] capable of ready and accurate determination”) (citations
12 omitted); Datel Holdings Ltd. v. Microsoft Corp., 712 F. Supp. 2d 974, 983, 985 (N.D. Cal. 2010)
13 (taking judicial notice of Microsoft’s software license, Terms of Use, and website printouts,
14 because they were standard documents that were publicly available online and thus capable of
15 accurate and ready determination); Caldwell v. Caldwell, No. 05-cv-4166 PJH, 2006 WL 618511,
16 at *4 (N.D. Cal. Mar. 13, 2006), order clarified, 2006 WL 734405 (N.D. Cal. Mar. 20, 2006)
17 (agreeing that “as a general matter, websites and their contents may be proper subjects for judicial
18 notice”). Moreover, Plaintiffs’ CAC quotes from and cites directly to the URL containing Plaid’s
19 current Privacy Policy that their Opposition seeks to exclude. CAC ¶ 91 n.71. Plaintiffs should
20 not be permitted to cherry-pick sections of Plaid’s policy but preclude the Court from reviewing it
21 in its entirety.
22 Plaintiffs’ additional argument questioning the accuracy of the websites is similarly
23 unavailing for two reasons. First, because the materials at issue are publicly accessible, their
24
3
Though Plaintiffs do not expressly mention the Privacy Policies from Venmo, CashApp and
25 Coinbase (what Plaintiffs call the “Participating Apps”), the CAC discusses the apps themselves at
length. See e.g., CAC § 5.A, ¶¶ 32, 38, 66, 90, 213. As noted in Plaid’s opening motion – but
26 ignored in Plaintiffs’ opposition – the disclosures within these policies are fatal to Plaintiffs’
invasion of privacy claims and undermine the entire complaint. Mot. at 3 citing Gonzales v. Uber
27 Techs., Inc., 305 F. Supp. 3d 1078, 1094 (N.D. Cal. 2018). The policies of the Participating Apps
are therefore “crucial” to the Plaintiffs’ claims and should be judicially noticed to “prevent[]
28 plaintiffs from surviving a 12(b)(6) motion by deliberately omitting references to [these]
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documents.” Parrino, 146 F.3d at 706.
ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO 2 CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR
Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 4 of 6

1 contents can be “accurately and readily determined from sources whose accuracy cannot reasonably
2 be questioned.” Fed. R. Evid. 201(b)(2). Second, Plaintiffs’ purported concern regarding the
3 accuracy of these documents because the particular policies came into effect after Plaintiffs
4 allegedly connected to their financial institutions through Plaid is nothing more than a second bite
5 at the relevance argument discussed above. Opp. 3.
6 Plaintiffs’ own cases do not help their argument. In In re Easysaver Rewards Litig., the
7 court denied judicial notice but because it was “confident” doing so would not prejudice the
8 defendant because “Defendants [did] not cite[] any language from their proposed exhibits that
9 contradicts a quotation from the Complaint.” 737 F. Supp. 2d 1159, 1169 (S.D. Cal. 2010). In
10 Moorer v. Stemgenex Medical Group, Inc. the court denied plaintiffs’ request for judicial notice of
11 defendant’s website because plaintiff did not attach screenshots of the website or provide specific
12 webpage addresses for the content. No. 16-02816, 2017 WL 1281882, at *4 (S.D. Cal. Apr. 6,
13 2017). Plaid’s request for judicial notice suffers no such deficits. Plaid offers complete versions
14 of the documents at issue, therefore providing the full context for considering Plaintiffs’ selective
15 quotations and characterizations in the CAC. See e.g., ¶¶ 74(i), 74(j). Moreover, Plaid attached a
16 true and correct copy of each exhibit to the motion, stated that each document was publicly
17 available, and provided a direct website link to the documents’ location on the internet. Mot. at 3-
18 4. All exhibits are therefore proper for judicial notice.4
19 3. The Documents Are Properly Authenticated
20 Finally, Plaintiffs argument that Plaid’s documents lack proper authentication because they
21 are attached to an attorney declaration is unsupported. This court has granted requests for judicial
22 notice regarding similar materials based on attorney declarations on numerous occasions. See e.g.,
23
4
Plaintiffs also argue that Plaid seeks judicial notice to improperly establish facts subject to dispute.
24 Opp. at 4. Not so. Plaid’s request for judicial notice seeks to give the Court the ability to read the
document in its entirety rather than rely on the Plaintiff’s cherry-picked sections. This is a
25 legitimate purpose for judicial notice. See Knievel v ESPN, 393 F.3d 1068, 1076 (9th Cir.
2005)(finding it was proper to take notice of defendant’s entire webpage because “a viewer
26 accessing the Knievels photograph must also access the surrounding pages on the EXPN.com
website”)(sic); In re New Century, 588 F. Supp. 2d 1206, 1221 (C.D. Cal. 2008) citing In re Enron
27 Corp. Secs. Litig., No. MDL-1446, 2005 WL 3504860, at *11, n. 20 (S.D. Tex. Dec. 22,
2005)(where a complaint refers to a document subject to a request for judicial notice, “the Court
28 can view any statement selectively quoted or referenced in the context from which it was drawn to
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protect against any misrepresentation or misinterpretation.”).
ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO 3 CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR
Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 5 of 6

1 In re Facebook, Inc. Sec. Litig. No. 5:18-cv-01725-EJD (N.D. Cal. Aug. 7, 2020) (granting RJN of
2 publicly available information supported by attorney declaration); In re Google Assistant Priv.
3 Litig. No. 19-cv-04286-BLF (same).
4 Moreover, Plaintiffs’ cited cases do not aid their argument. In both cases, the courts
5 “declined to infer that the [parties’] attorney could attest to the authenticity of the exhibits attached
6 to his affidavit solely on the basis of his status as [] counsel.” Garcia v. Fannie Mae, 794 F. Supp.
7 2d 1155, 1163 (D. Or. 2011) citing Blount v. Conn. Gen. Life Ins. Co., No. CV 01-1341-BR, 2002
8 WL 31974405, at *4 (D. Or. July 2, 2002) (emphasis added). Likewise, in both those cited cases,
9 the attorney affidavits sought to authenticate documents or facts expressly within the personal
10 control of the parties – in Garcia, a contract between the plaintiff and defendant, and in Blount, a
11 personal fact about the plaintiff. Garcia, 794 F. Supp. 2d at 1163 (striking notices of cancellation
12 of loan between plaintiff and defendant attached to attorney declaration); Blount, 2002 WL
13 31974405, at *4 (holding an attorney affidavit insufficient to authenticate the single fact that
14 “[d]uring his lifetime, neither Mr. Blount nor Plaintiff returned the converted policy to CGLIC.”)
15 This is not at all the situation here. Mr. Dettmer did not authenticate the document “solely” based
16 his role as outside counsel, but rather as an attorney in this case and as a member of the public,
17 with access to the Internet. Unlike in Plaintiffs’ cited cases, Plaid seeks only notice of publicly
18 available information. RJN at 1. The Dettmer Declaration identifies the publicly available domain
19 Exhibits A-D and states that Exhibit E, a login process in a publicly available application, was
20 created under his supervision. Declaration of Ethan P. Dettmer (EFC No. 79) at 1. This is sufficient
21 personal knowledge to support a request for judicial notice of documents generally available to the
22 public at large. Johns v. Bayer Corp., No. 09CV1935 DMS (JMA), 2010 WL 2573493, at *2 (S.D.
23 Cal. June 24, 2010) (denying motion to strike parts of complaint supported by an attorney
24 declaration discussing publicly available information.)
25
II. CONCLUSION
26
For the foregoing reasons, this Court should grant Plaid’s request to judicially notice
27
Exhibits A through E, and consider Mr. Dettmer’s declaration in full.
28
COOLEY LLP
ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO 4 CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR
Case 4:20-cv-03056-DMR Document 112 Filed 12/11/20 Page 6 of 6

1 Dated: December 11, 2020 COOLEY LLP
2

3 By: /s/ Whitty Somvichian
Whitty Somvichian
4
Attorneys for Defendant
5 Plaid Inc.
6

10 239552312

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COOLEY LLP
ATTORNEYS AT LAW REPLY ISO RJN ISO MOT. TO DISMISS PLS’
SAN FRANCISCO 5 CONSOLIDATED AMENDED COMPLAINT
4:20-CV-3056-DMR

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