Full text
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
Amy M. Zeman (SBN 273100)
Mark H. Troutman (pro hac vice)
Ezekiel S. Wald (SBN 341490)
Hanne Jensen (SBN 336045)
GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100
Oakland, CA 94607
Telephone: (510) 350-9700
Facsimile: (510) 350-9701
ehg@classlawgroup.com
amm@classlawgroup.com
amz@classlawgroup.com
mht@classlawgroup.com
zsw@classlawgroup.com
hj@classlawgroup.com
Geoffrey A. Graber (SBN 211547)
Karina G. Puttieva (SBN 317702)
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Ave. NW, Fifth Floor
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
ggraber@cohenmilstein.com
kputtieva@cohenmilstein.com
Attorneys for Plaintiffs and the Proposed Class
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CAT BROOKS and RASHEED
SHABAZZ, individually and on behalf of
all others similarly situated,
Plaintiffs,
v.
THOMSON REUTERS CORPORATION,
Defendant.
Case No. 3:21-cv-01418-EMC-KAW
PLAINTIFFS’ NOTICE OF MOTION AND
MOTION FOR LEAVE TO FILE FIRST
AMENDED CLASS ACTION COMPLAINT
Date: January 19, 2023
Time: 1:30 p.m.
Place: Courtroom 5, 17th Floor
Judge: Hon. Edward M. Chen
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 1 of 9
1
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE
TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT on January 19, 2023 at 1:30 p.m., or as soon thereafter
as the matter may be heard, via videoconference or in Courtroom 5 of the United States District
Court, Northern District of California, San Francisco Division, located at 450 Golden Gate
Avenue, San Francisco, California 94102, before the Honorable Edward M. Chen, Plaintiffs Cat
Brooks and Rasheed Shabazz will, and hereby do, move this Court, pursuant to Rule 15(a)(2)
of the Federal Rules of Civil Procedure, for leave to file a First Amended Class Action
Complaint, a copy of which is submitted with this motion.
The proposed First Amended Class Action Complaint updates Plaintiffs’ UCL
injunctive relief claim in line with the motion to certify a class, clarifies the proposed class
definition, modifies certain factual allegations based on evidence produced by Defendant
during discovery, and conforms Plaintiffs’ class allegations to Rule 23 of the Federal Rules of
Civil Procedure.
This motion is based on this Notice of Motion; the accompanying memorandum in
support; the proposed First Amended Class Action Complaint, Ex. A; the Proposed Order, Ex.
B; the Declaration of Andre M. Mura in Support of Plaintiffs’ Motion for Leave to Amend, Ex.
C; the complete files and records in this action; and on such other written and oral argument
as may be presented to the Court.
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 2 of 9
2
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM IN SUPPORT
I.
INTRODUCTION
Plaintiffs timely move for leave to amend their complaint. Plaintiffs originally filed the
operative class complaint in state court, and now seek leave to amend for four reasons: (1)
seeking class treatment for the UCL injunction claim, (2) updating the class definition, (3)
revising select factual allegations to account for certain information learned in discovery, and
(4) conforming class allegations to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs
do not seek to add parties or claims.
II.
BACKGROUND
Plaintiffs filed this action in state court on December 3, 2020, bringing four causes of
action against Thomson Reuters: (1) common law right to publicity/misappropriation of
likeness, (2) monetary relief under § 17200 of California’s Unfair Competition Law, (3) unjust
enrichment, and (4) public injunctive relief under § 17200 of California’s Unfair Competition
Law. ECF No. 1-1 at ¶¶81-118. Plaintiffs asserted their class allegations under California’s
procedural rules for class cases. See id. at ¶¶70-80. Thomson Reuters removed the case to this
Court in February 2021, see ECF No. 1, and moved to dismiss the Complaint in its entirety.
ECF No. 28. The Court dismissed Plaintiffs’ common law privacy claims and request for
monetary relief under the UCL,1 but permitted Plaintiffs’ standalone unjust enrichment and
public injunctive relief claims to proceed. ECF No. 54.
Per the operative scheduling order in this case, Plaintiffs’ deadline to file an amended
complaint is November 9, 2022, the same date as their motion to certify the class. ECF No. 84
at 2. The close of fact discovery is set for June 14, 2023, more than seven months from now. Id.
at 3. Before filing this motion, Plaintiffs sought Thomson Reuters’ written consent to amend
1 Because the dismissal order did not expressly state whether dismissal was with or without
prejudice, Plaintiffs reallege the dismissed claims in their proposed amended complaint solely
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
require that they be repled in a subsequent amended complaint to preserve them for appeal.”).
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 3 of 9
3
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
their complaint pursuant to Rule 15(a)(2), which Thomson Reuters declined to provide. See
Mura Decl., Ex. C, at ¶3.
Plaintiffs seek to leave to amend to make four general changes that would bring their
pleading in line with their class certification motion. The first change would clarify that
Plaintiffs seek class treatment for their UCL injunction claim, and request representative public
injunctive relief in the alternative. The original claim, by contrast, stated only that Plaintiffs
were seeking a representative public injunction.
The second change would be to the class definition, which was written without the
benefit of discovery. As changed, the class definition would be co-extensive with, if not
narrower than, the previous definition. The original class definition states:
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
database during the limitations period.
ECF No. 1-1 at 14 By contrast, the proposed amended class definition states:
All persons who, during the limitations period, both resided in the state of California
and whose personal information Thomson Reuters made available for sale through
CLEAR without their consent.
See Proposed Amended Complaint, Ex. A at 15. Both the original and proposed amended
definitions exclude “any officers and directors of Thomson Reuters; Class Counsel; and the
judicial officer(s) presiding over this action and the members of his/her immediate family and
judicial staff.” See id.; ECF No. 1-1 at 14. The amended definition simply reflects a more precise
understanding of how CLEAR operates and moves “during the limitations period” so that it
inarguably applies to both residency and whether information was made available for sale
through CLEAR. Although “[t]here is no rule that the definition of a certified class must exactly
match the definition contained in a complaint,” Sandoval v. Cnty. of Sonoma, 2015 WL 1926269,
at *2 (N.D. Cal. Apr. 27, 2015), it is at least prudent to update the class definition in the
operative pleading as the motion for class certification is filed, as that course avoids any
dispute over the court’s authority to consider a class beyond the definition provided in the
complaint. See also Gold v. Lumber Liquidators Inc., 2017 WL 2688077, at *3 (N.D. Cal. June 22,
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 4 of 9
4
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2017) (collecting cases).
The third change would be to make minor adjustments to Plaintiffs’ factual allegations
to account for select information learned through discovery, and the fourth change would be
to update the pleading (originally filed in California state court) to reflect federal procedural
standards.
Again, Plaintiffs do not seek to add new claims or join new parties.
III.
ARGUMENT
Rule 15(a)(2) provides that leave to amend “shall be freely given when justice so
requires.” The rule “is designed ‘to facilitate decision on the merits, rather than on the
pleadings or technicalities.’” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1152 (9th Cir.
2011) (citation omitted). Courts in this circuit therefore afford “extreme liberality” to plaintiffs
seeking to amend their complaints. Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008).
Leave to amend should only be denied only upon a showing of: (1) bad faith, (2) undue delay,
(3) futility, or (4) undue prejudice to the opposing party. Id. Of these factors, often referred to
as the Foman factors, “prejudice to the opposing party carries the greatest weight.” Brown v.
Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020). “‘Absent prejudice,’ therefore, ‘or a
strong showing of any of the remaining Foman factors, there exists a presumption under Rule
15(a) in favor of granting leave to amend.’” Crown Energy Servs., Inc. v. Zurich Am. Ins. Co., 2021
WL 2207348, at *2 (N.D. Cal. Jun. 1, 2021) (Chen, J.) (citation omitted, emphasis in original).
The party opposing the motion bears the burden of showing prejudice. Id.
The Court should grant Plaintiffs leave to file the proposed amended complaint because
the changes Plaintiffs seek to make are timely and proper. Fairly understood, the changes do
not substantively alter the claims, parties, or scope of the class, and will not require any
extension of the close of discovery or other deadlines. But even if Thomson Reuters could show
that the amendments are in some sense substantive, there is no basis to deny these
amendments, particularly as Thomson Reuters is not prejudiced by them, let alone
substantially prejudiced. Because the Foman factors collectively weigh in Plaintiffs’ favor, the
Court should grant leave to amend.
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 5 of 9
5
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1.
Amendment will not prejudice Thomson Reuters.
As prejudice is the most important Rule 15(a) factor, Brown, 953 F.3d at 574, the Court’s
inquiry may begin and end here because Thomson Reuters will not be prejudiced by
permitting amendment. Prejudice to the nonmoving party must be “substantial” to justify
denying leave to amend. Chrimar Sys. Inc. v. Cisco Sys. Inc., 2016 WL 520948, at *3 (N.D. Cal.
Feb. 10, 2016). Often, courts “evaluate prejudice in terms of whether relevant deadlines would
have to be continued as a result of the new pleading”—a showing that cannot be made here,
as seven months remain before the close of discovery. Artemus v. Louie, 2017 WL 747368, at *4
(N.D. Cal. Feb. 27, 2017). And, as is the case here, courts fail to find prejudice to an opposing
party when the moving party has made no prior attempt to amend because the opposing party
has not been subject to repeated litigation costs involving amendment. See, e.g., Crown Energy
Servs., 2021 WL 2207348, at *3.
Critically, Thomson Reuters faces no additional burden from the proposed amended
complaint. Plaintiffs do not seek to join new parties, state new claims, or expand the class
definition. The minor factual clarifications are few and will better inform the Court about
CLEAR. Seeking class treatment of the UCL injunction claim, in addition to a representative
public injunction in the alternative, in no way substantially prejudices Thomson Reuters: the
legal and factual issues significantly overlap between a Rule 23(b)(2) class and representative
public injunction, and the Rule 23(a) and 23(b)(3) analysis for Plaintiffs’ unjust enrichment
claim remains the same irrespective of the proposed amendments. What’s more, the changes
to the class definition merely reflect a better understanding of the case. And the fact that
Plaintiffs intend to file an amended complaint along with their motion to certify the class has
long been known to both parties—and is contemplated in the parties’ agreed-upon schedule,
which sets the same deadline for both events. See ECF No. 84.
Because Thomson Reuters will not be substantially prejudiced by Plaintiffs’
amendment, “the critical issue” weighs in favor of granting leave to amend. See Staley v. Gilead
Scis., Inc., 2021 WL 5906049, at *3 (N.D. Cal. Dec. 14, 2021) (Chen, J.). And, as explained below,
there is no countervailing weight from the remaining Foman factors that could overcome the
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 6 of 9
6
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“extreme liberality” courts afford amendment. See Waldrip, 548 F.3d at 732.
2.
Plaintiffs’ request for amendment is made in good faith.
To find bad faith in a motion for leave to amend, “the adverse party must offer evidence
that shows ‘wrongful motive’ on the part of the moving party.” Misle v. Schnitzer Steel Indus.,
Inc., 2017 WL 661366, at *3 (N.D. Cal. Feb. 17, 2017) (citation omitted). Courts have found bad
faith “where the amendment is introduced to cause a delay in proceedings or for some other
improper purpose,” such as to avoid an adverse summary judgment ruling and requiring
reopening discovery. Artemus, 2017 WL 747368, at *3. Thomson Reuters has no such evidence.
The amendment sought here is fairly “vanilla”—there is no impermissible motive for seeking
leave to amend here.
3.
Plaintiffs have not unduly delayed in seeking leave to amend.
When considering whether delay is “undue,” courts typically look not just at the timing
of the motion but at whether there is some “dilatory motive” for delay. In re Facebook Priv.
Litig., 2015 WL 632329, at *2 (N.D. Cal. Feb. 13, 2015). Because Plaintiffs developed the
proposed changes in the amended complaint in tandem with the motion to certify the class,
earlier amendment would not have been practical, particularly in light of significant discovery
received over last several months. Moreover, the parties clearly anticipated that Plaintiffs
would seek to revise their complaint at the time they filed the motion to certify class, and
routinely stipulated to that schedule. See ECF Nos. 58, 77, 83. Because the changes do not
substantially change Plaintiffs’ claims or the parties in this case, Thomson Reuters can show
no “dilatory motive” on Plaintiffs’ part for seeking a single amendment at a foreseeable
juncture, rather than filing inevitably successive requests for amendment each time new
information was learned. In any event, “undue delay by itself is not a reason to deny
amendment.” Staley, 2021 WL 5906049, at *3.
4.
Amendment is not futile.
Proving futility is a “heavy burden” that requires the nonmoving party to establish that
“no set of facts can be proved under the amended complaint that would constitute a valid and
sufficient claim or defense.” Microsoft Corp. v. Hon Hai Precision Indus. Co., Ltd., 2020 WL
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 7 of 9
7
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
836712, at *15, *14 (N.D. Cal. Feb. 20, 2020). Thomson Reuters cannot meet this burden, as
evidenced by the Court’s order allowing Plaintiffs’ unjust enrichment and UCL injunctive
relief claim to go forward. See ECF No. 54. But even if the Court had not already denied
Thomson Reuters’ motion to dismiss as to the remaining claims in the proposed amended
complaint, granting leave would still be proper because courts typically avoid resolving claims
on the merits under a futility analysis. See Microsoft Corp., 2020 WL 836712, at *14. Plaintiffs
replead the dismissed claims only to preserve their right to appeal, see Ex. A at 18 n. 19, 19 n.
20, and because Plaintiffs’ unjust enrichment and UCL injunctive relief claims survived the
motion to dismiss, amendment is not futile.
IV.
CONCLUSION
Because Thomson Reuters will not be substantially prejudiced by the amendment and
can show no other countervailing reason, Plaintiffs respectfully request that the Court grant
their motion for leave to file their proposed First Amended Class Action Complaint.
Dated: November 9, 2022
Respectfully submitted,
By: /s/ Andre M. Mura
Eric H. Gibbs (SBN 178658)
Andre M. Mura (SBN 298541)
Amy M. Zeman (SBN 273100)
Mark H. Troutman (pro hac vice)
Ezekiel S. Wald (SBN 341490)
Hanne Jensen (SBN 336045)
GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100
Oakland, California 94607
(510) 350-9700
ehg@classlawgroup.com
amm@classlawgroup.com
amz@classlawgroup.com
mht@classlawgroup.com
zsw@classlawgroup.com
hj@classlawgroup.com
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 8 of 9
8
PLAINTIFFS’ MOTION FOR LEAVE
Case No. 3:21-cv-01418-EMC-KAW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Geoffrey A. Graber (SBN 211547)
Karina G. Puttieva (SBN 317702)
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Ave. NW, Fifth Floor
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
ggraber@cohenmilstein.com
kputtieva@cohenmilstein.com
Attorneys for Plaintiffs and the Proposed Class
Case 3:21-cv-01418-EMC Document 123 Filed 11/09/22 Page 9 of 9