Complaint - Khoja v. Orexigen (2020-05-04)

Summary

Plaintiffs' opposition to Plaid's request for judicial notice in In re Plaid Inc. Privacy Litigation, Master Docket No. 4:20-cv-03056-DMR, (N.D. Cal.), filed 11/17/20 as Document 109; the action was filed May 4, 2020. The plaintiffs ask the Court not to consider Plaid's exhibits, privacy policies of Plaid and Participating Apps printed in September 2020 and Venmo app screenshots from August 2020, in deciding Plaid's motion to dismiss. Relying heavily on Khoja v. Orexigen Therapeutics, Inc., they argue the documents post-date the events in the complaint, are irrelevant, are not properly authenticated by Plaid's outside counsel, and are offered to dispute facts, so they qualify neither for judicial notice nor for incorporation by reference. The opposition is signed /s/ by interim co-lead class counsel, including Rachel Geman of Lieff Cabraser Heimann & Bernstein, LLP.

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2059792.5

OPPOSITION TO REQUEST FOR JUDICIAL NOTICE
Case No. 4:20-CV-03056-DMR

HERRERA PURDY LLP
Shawn M. Kennedy (SBN 218472)
skennedy@herrerapurdy.com
Andrew M. Purdy (SBN 261912)
apurdy@herrerapurdy.com
Bret D. Hembd (SBN 272826)
bhembd@herrerapurdy.com
4590 MacArthur Blvd., Suite 500
Newport Beach, CA 92660
Tel: (949) 936-0900
Fax: (855) 969-2050

HERRERA PURDY LLP
Nicomedes Sy Herrera (SBN 275332)
nherrera@herrerapurdy.com
Laura E. Seidl (SBN 269891)
lseidl@herrerapurdy.com
1300 Clay Street, Suite 600
Oakland, CA 94612
Tel: (510) 422-4700
Fax: (855) 969-2050

LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
Rachel Geman (Pro Hac Vice)
rgeman@lchb.com
Rhea Ghosh (Pro Hac Vice)
rghosh@lchb.com
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Tel: (212) 355-9500
Fax: (212) 355-9592
Interim Co-Lead Class Counsel
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
Michael W. Sobol (SBN 194857)
msobol@lchb.com
Melissa Gardner (SBN 289096)
mgardner@lchb.com
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Tel: (415) 956-1000
Fax: (415) 956-1008
BURNS CHAREST LLP
Warren T. Burns (Pro Hac Vice)
wburns@burnscharest.com
Russell Herman (Pro Hac Vice)
rherman@burnscharest.com
900 Jackson Street, Suite 500
Dallas, TX 75202
Tel: (469) 904-4550
Fax: (469) 444-5002

BURNS CHAREST LLP
Christopher J. Cormier (Pro Hac Vice)
ccormier@burnscharest.com
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Tel: (202) 577-3977
Fax: (469) 444-5002
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
IN RE PLAID INC. PRIVACY
LITIGATION
Master Docket No.: 4:20-cv-03056-DMR

OPPOSITION TO PLAID’S REQUEST
FOR JUDICIAL NOTICE

Hon. Donna M. Ryu
Action Filed:
May 4, 2020
Trial Date:
None Set

THIS DOCUMENT RELATES TO:
ALL ACTIONS
Case 4:20-cv-03056-DMR     Document 109     Filed 11/17/20     Page 1 of 9

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2059792.5
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OPPOSITION TO REQUEST FOR JUDICIAL NOTICE
Case No. 4:20-CV-03056-DMR

The Court should deny Plaid’s request for judicial notice in support of its motion to dismiss. Dkt.
81. Plaid attempts to introduce a set of irrelevant, factually disputed, incomplete, and improperly
authenticated exhibits to defeat Plaintiffs’ adequately stated claims. “[U]nscrupulous use of extrinsic
documents [by defendants] to resolve competing theories against the complaint risks premature
dismissals of plausible claims that may turn out to be valid after discovery.” Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). If anything, Plaid’s extrinsic documents show the
need for discovery rather than a premature dismissal.
I.
ARGUMENT
Plaid’s request for judicial notice fails because no exception allows Plaid to escape the general
rule that a court should not consider extrinsic documents at the pleading stage.
A. Legal Standard: Only Two Narrow Exceptions Allow Consideration of Extrinsic
Documents at the Pleading Stage
When ruling on a motion to dismiss, a court generally may not consider “any material beyond
the pleadings.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quotation omitted). There
are two exceptions: judicial notice under Federal Rule of Evidence 201 and the incorporation-by-
reference doctrine. Khoja, 899 F.3d at 998. Plaid argues that both exceptions apply here.
Judicial notice applies to a limited set of adjudicative facts that are “not subject to reasonable
dispute” because they are “generally known” or “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). An “undisputed matter
of public record” may be judicially noticed; “disputed facts stated in public records” cannot. Lee, 250
F.3d at 690 (emphasis in original).
The second exception, incorporation by reference, is a “judicially created doctrine that treats
certain documents as though they are part of the complaint itself.” Khoja, 899 F.3d at 1002. This
doctrine, however, is narrow. It applies only to documents that a plaintiff refers to “extensively” in the
complaint or those that “form[] the basis of” a claim. Id. at 1002. Further, a court may only incorporate
documents “whose authenticity no party questions.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125-26 (9th
Cir. 2002); see also Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (listing as a
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requirement for incorporation by reference that “no party questions the authenticity of the copy attached
to the 12(b)(6) motion.”). In addition, there must be “no disputed issues as to the document’s relevance.”
Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).
With respect to both exceptions, the Ninth Circuit has recently cautioned against their “overuse
and improper application.” Khoja, 899 F.3d at 999. “If defendants are permitted to present their own
version of the facts at the pleading stage—and district courts accept those facts as uncontroverted and
true—it becomes near impossible for even the most aggrieved plaintiff to demonstrate a sufficiently
‘plausible’ claim for relief.” Id. (citations omitted).
B. The Court Need Not Analyze the Two Exceptions Here Because Plaid’s Extrinsic
Documents Are Irrelevant to the Court’s Inquiry
As explained in more detail below, Plaid has failed to show that either incorporation by reference
or judicial notice applies. But Plaid’s request fails for another reason: the documents it seeks to include
are irrelevant to its motion to dismiss. See e.g., Fairbairn v. Fid. Investments Charitable Gift Fund, No.
18-04881, 2018 WL 6199684, at *4 (N.D. Cal. Nov. 28, 2018) (declining to take judicial notice of
NASDAQ trading volumes because “Plaintiffs dispute the relevance of the document to the complaint
allegations and what inferences can be drawn from it.”).
Plaid attempts to use these documents—Plaid’s own privacy policy, three others from
Participating Apps, and a set of Venmo screenshots—to argue that Plaintiffs consented to Plaid’s
privacy intrusions and other misconduct. Although that argument roundly disregards the detailed
allegations in the Complaint, these documents also date from well after Plaid first accessed Plaintiffs’
information. Compare Exs. A–D to Dettmer Decl. to CAC ¶¶ 100, 111, 121, 130, 140, 150, 159, 168,
178, 188, 199.
Indeed, it is clear that Plaid’s outside counsel accessed and printed the privacy policies months
after Plaintiffs filed the Complaint. See, e.g., Ex. A to Dettmer Decl. at 1 (showing a print date of
September 12, 2020 in the upper left-hand corner). Plaid’s screenshots of a single app’s enrollment
process similarly date from August 2020. See id., Ex. E. Rather than systematically compile and
authenticate the privacy policies and enrollment screens in effect during the relevant time period—a
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fact-intensive inquiry ill-suited for a motion to dismiss—Plaid submits only the most recent versions that
its outside counsel could find on the web.
In light of the discretion given to courts to consider extrinsic documents at all, see, e.g., Khoja,
899 F.3d at 998 (“Both of these procedures permit district courts to consider materials outside a
complaint [but they do not require it].”) (emphasis added), the Court should deny Plaid’s request to
notice or incorporate the irrelevant set of documents submitted here.
C. Plaid Has Not Met the Requirements for Judicial Notice
As previously stated, Plaid’s outside materials consist of privacy policies downloaded from the
web in September 2020 (Exhibits A through D) and a set of application screenshots taken by outside
counsel in August 2020 (Exhibit E). None of these documents are properly subject to judicial notice.
First, privately maintained websites and applications do not qualify as “sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).1 “[A] document is not judicially noticeable
simply because it appears on a publicly available website, regardless of who maintains the website or the
purpose of the document.” Resolute Forest Prods., Inc. v. Greenpeace Int’l, 17-02824, 2019 WL
281370, at *1 (N.D. Cal. Jan. 22, 2019) (quoting Rollins v. Dignity Health, 338 F. Supp. 3d 1025, 1032
(N.D. Cal. 2018)). That is so because webpages are “changed, modified, and revised over time.” In re
Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1168 (S.D. Cal. 2010).
Assuming that post-Complaint privacy policies are relevant at all, the accuracy concerns raised
by submitting screenshots of dynamic webpages make key facts about them subject to reasonable
dispute. When these particular policies came into effect and whether Plaintiffs had the opportunity to
view them are not resolved by Plaid’s documents without dispute. Thus, they are ineligible for judicial
notice. See id. (refusing to judicially notice screenshots of online policies because whether plaintiffs
viewed them was subject to reasonable dispute); see also Moorer v. Stemgenex Med. Group, Inc., No.
16-02816, 2017 WL 1281882, at *4 (S.D. Cal. Apr. 6, 2017) (refusing to judicially notice screenshots of

1 Plaid does not argue that the existence and contents of these documents are “generally known within
the trial court’s territorial jurisdiction.” Fed. R. Evid. 201(b)(1). Plaintiffs therefore focus on the second
prong of Rule 201.
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webpages because “the ever-changing content” made the pages’ accuracy incapable of “ready
determination”).
That is equally true of the app screenshots in Exhibit E. Phone apps are updated on a regular
basis. Apps vary by phone operating system (e.g., iOS versus Android). Plaid offers no version history
or other contextual information that would allow the Court to readily determine accuracy.
Second, even if ever-changing websites and applications could be considered accurate sources,
Plaid has not shown the accuracy of these particular websites and applications through proper
authentication. The supporting declarant is Plaid’s former outside counsel for this lawsuit.
Notwithstanding a conclusory statement to the contrary, his declaration includes no facts to support
personal knowledge of even Plaid’s own privacy policy, such as how the policy has been implemented,
revised, and published (not to mention how one could determine who accessed it, when). Moreover,
Plaid’s outside counsel omits all but a recent version of that policy even though that version references
prior ones.
The declarant’s lack of personal knowledge is even clearer for the documents within the control
of Participating Apps (Exhibits B through E). See, e.g., In re Easysaver Rewards Litig., 737 F. Supp. at
1167 n.4 (doubting whether an employee of one company “has the personal knowledge to authenticate
webpages controlled by” a different company). There too he submits only a recent version. In short,
without proper authentication, the accuracy of Plaid’s sources is open to reasonable dispute, and judicial
notice of these documents is not appropriate.
Third, Plaid improperly seeks to use judicial notice to establish purported “facts” that are subject
to dispute. Whether any version of Plaid’s privacy policy was disclosed to Plaintiffs, and (if so), whether
that version of the policy, or any other disclosure, would inform a reasonable consumer of Plaid’s
conduct, are factual questions that cannot be resolved in Plaid’s favor with reference to Exhibits A
through E alone. They are ineligible for judicial notice for this reason as well. Khoja, 899 F.3d at 1000
(holding that it is improper to judicially notice a document when the substance “is subject to varying
interpretations, and there is a reasonable dispute as to what [it] establishes”) (citation omitted).
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Case No. 4:20-CV-03056-DMR

D. Plaid Has Not Met the Requirements for Incorporation by Reference
The argument that the Complaint incorporated Plaid’s outside materials by reference also fails.
First, the Complaint does not refer to the documents that Plaid included in its request. Nor could it. The
Complaint centers on privacy violations that arose well before the effective date of the policies and app
registration process captured in Plaid’s screenshots.
Although Plaintiffs referred to Plaid’s privacy policy and provided some paradigmatic
screenshots of a Participating App’s registration process, they did not refer or otherwise rely on the
policy in Exhibit A or the registration process in Exhibit E, both of which plainly post-date the
Complaint. Relatedly, even if reference to a prior version were sufficient to introduce later versions (and
leave out all others), incorporation by reference is not permitted if there are “disputed issues as to [a]
document’s relevance.” Coto Settlement, 593 F.3d at 1038. Plaintiffs dispute the relevance of each of
Plaid’s extrinsic documents.
The privacy policies of Participating Apps are particularly unsuitable for incorporation by
reference: Plaintiffs never mention them at all. And even if there had been a passing reference or an
inference that such policies exist, that would not allow their wholesale incorporation. See id. (“[T]he
mere mention of the existence of a document is insufficient to incorporate the contents of a document.”).
Indeed, Plaid attempts to use these policies as a defense, not because they form the basis for any of
Plaintiffs’ claims. This Plaid cannot do. See Khoja, 899 F.3d at 1003 (“Submitting documents not
mentioned in the complaint to create a defense is nothing more than another way of disputing the factual
allegations in the complaint.”).
Second, Plaid seeks to employ the doctrine of incorporation by reference for an impermissible
purpose. Even if Exhibits A through E formed the basis of the Complaint (which they do not), it would
be improper to assume the truth of these documents in order to conclude, as Plaid requests, that
Plaintiffs’ expectation of privacy was unreasonable and/or that Plaintiffs consented to Plaid’s alleged
conduct here. Khoja, 899 F.3d at 1003 (noting that consistent with the prohibition against resolving
factual disputes on the pleadings, “it is improper to assume the truth of an incorporated document if such
assumptions only serve to dispute facts stated in a well-pleaded complaint”).
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Case No. 4:20-CV-03056-DMR

Third, the authenticity of Plaid’s documents is in question. Although courts may incorporate
documents extensively referenced in the pleadings, that is true only if “their authenticity has not been
questioned.” Olivera v. Am. Home Mortg. Servicing, Inc., 689 F. Supp. 2d 1218, 1222–23 (N.D. Cal.
2010) (quoting No. 84 Employer–Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp.,
320 F.3d 920, 925 n. 2 (9th Cir.2003)), disagreed with on other grounds by Beaver v. Tarsadia Hotels,
816 F.3d 1170 (9th Cir. 2016).
Here, Plaintiffs reasonably dispute authenticity. As mentioned previously, Plaid attempts to
authenticate its extrinsic documents with a declaration from Plaid’s prior outside litigation counsel, Mr.
Dettmer. But an attorney’s “conclusory recitation does not satisfy the requirements of F.R.E. 602 that
evidence be introduced sufficient to support a finding that [he] has personal knowledge.” Garcia v.
Fannie Mae, 794 F. Supp. 2d 1155, 1161–62 (D. Or. 2011) (citations and quotation marks omitted).
“Under most circumstances, an attorney has no personal knowledge of and is not competent to testify to
the authenticity of documents generated before the litigation began or merely produced by his client.”
Blount v. Connecticut Gen. Life Ins. Co., No. 01-1341, 2002 WL 31974405, at *3 (D. Or. July 2, 2002).
Mr. Dettmer’s supporting declaration does not reveal any unusual circumstances that would supply the
requisite personal knowledge.
For the documents to be relevant at all, Plaid would need to, among other things, lay a
foundation for asserting that these are the policies and application screens viewed or effective prior to
the filing of the Complaint. Mr. Dettmer’s declaration is devoid of any such details, and it is improbable
that he could provide them absent speculation or hearsay. An attorney “cannot acquire personal
knowledge based on hearsay from his client” or otherwise. Blount, 2002 WL 31974405, at *3 (citing
United States v. Dibble, 429 F.2d 598, 602 (9th Cir.1970)). Mr. Dettmer’s inability to acquire the
requisite knowledge without improper reliance on speculation or hearsay is particularly evident for the
policies and screenshots from Participating Apps—all but one of Plaid’s documents. He does not
represent them and appears to have simply visited their websites. The Court should deny Plaid’s request
to incorporate its improperly authenticated extrinsic documents. See, e.g., Olivera, 689 F. Supp. 2d at
1223 (declining to incorporate signed notices because the plaintiffs took exception to their authenticity).
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II.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court deny Plaid’s request to
judicially notice Exhibits A through E and refuse to consider the accompanying declaration from Mr.
Dettmer.
Dated: November 17, 2020

BURNS CHAREST LLP

/s/ Christopher Cormier

Christopher J. Cormier

Christopher J. Cormier (Pro Hac Vice)
ccormier@burnscharest.com
4725 Wisconsin Avenue, NW
Washington, DC 20016
Tel: (202) 577-3977
Fax: (469) 444-5002

BURNS CHAREST LLP
Warren T. Burns (Pro Hac Vice)
wburns@burnscharest.com
Russell Herman (Pro Hac Vice)
rherman@burnscharest.com
900 Jackson Street, Suite 500
Dallas, TX 75202
Tel: (469) 904-4550
Fax: (469) 444-5002

Dated: November 17, 2020

HERRERA PURDY LLP

/s/ Shawn Kennedy

Shawn M. Kennedy

Shawn M. Kennedy (SBN 218472)
skennedy@herrerapurdy.com
Andrew M. Purdy (SBN 261912)
apurdy@herrerapurdy.com
Bret D. Hembd (SBN 272826)
bhembd@herrerapurdy.com
4590 MacArthur Blvd., Suite 500
Newport Beach, CA 92660
Telephone: (949) 936-0900
Fax: (855) 969-2050

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OPPOSITION TO REQUEST FOR JUDICIAL NOTICE
Case No. 4:20-CV-03056-DMR

HERRERA PURDY LLP
Nicomedes Sy Herrera (SBN 275332)
nherrera@herrerapurdy.com
Laura E. Seidl (SBN 269891)
lseidl@herrerapurdy.com
1300 Clay Street, Suite 600
Oakland, CA 94612
Telephone: (510) 422-4700
Fax: (855) 969-2050

Dated: November 17, 2020

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

/s/ Rachel Geman

Rachel Geman

Rachel Geman (Pro Hac Vice)
rgeman@lchb.com
Rhea Ghosh (Pro Hac Vice)
rghosh@lchb.com
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Tel: (212) 355-9500
Fax: (212) 355-9592

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Michael W. Sobol (SBN 194857)
msobol@lchb.com
Melissa Gardner (SBN 289096)
mgardner@lchb.com
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Tel: (415) 956-1000
Fax: (415) 956-1008

Interim Co-Lead Class Counsel

Case 4:20-cv-03056-DMR     Document 109     Filed 11/17/20     Page 9 of 9

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