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Declaration of J ohn C. Torjesen in Further Support of Motion to Intervene; Case No. CV11-01726
LHK
JOHN C. TORJESEN &ASSOCIATES, PC
J ohn C. Torjesen (Cal. Bar No. 141664)
Email: torjesen@lainjurylaw.com
612 N. Sepulveda Boulevard, 2
nd
Floor
Los Angeles, California 90049
Telephone: (310) 440-0005
Facsimile: (310) 440-0006
[Additional Counsel Appear on last Page]
Attorneys for Moving Parties
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ANGEL FRALEY; PAUL WANG; SUSAN
MAINZER; J AMES H. DUVAL, a minor, by
and through J AMES DUVAL, as Guardian ad
Litem; and W.T., a minor, by and through
RUSSELL TAIT, as Guardian ad Litem;
individually and on behalf of all others
similarly situated,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.
Case No. CV 11-01726 LHK (PSG)
DECLARATION OF JOHN C. TORJESEN
IN FURTHER SUPPORT OF MOTION TO
INTERVENE
Date: J uly 12, 2012
Time: 1 :30 p.m.
Courtroom: 8
J udge: Hon. Lucy H. Koh
Courtroom: 8
Trial Date: December 3, 2012
DECLARATION OF JOHN C. TORJESEN
1. I am an attorney at law, licensed to practice before all of the courts of the State of
California, and am admitted to practice before this Court. I am one of the attorneys representing
the Plaintiffs in the action C.M.D. v. Facebook, No. 3:12-cv-01216 LHK. I make the following
declaration in reply to the Opposition to Motion to Intervene. These statements are based on my
own personal knowledge.
2. I am a past President of the Consumer Attorneys Association of Los Angeles,
Fraley et al v. Facebook, Inc. Doc. 203
Dockets.J ustia.com
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Declaration of J ohn C. Torjesen in Further Support of Motion to Intervene; Case No. CV11-01726
LHK
which is the nations largest trial lawyers local bar association. I am known as an attorney who
will take innovative cases that have been overlooked by others, and thereby often confront new
issues in law and litigation. My pre-law background includes many years of graduate study in
economics. This background has carried over to my current law practice which focuses heavily on
financial issues relating to individuals rather than businesses. For example, in one case I
recovered 1,292 acres of Malibu property abutting 2.7 miles of coastline for an 83 year old man,
valued at over $300 million. The case had been overlooked by eight prior attorneys for the
plaintiff, but its result has stimulated many law firms to advertise that they handle financial elder
abuse cases.
2. The first legal action alleging Facebooks commercial use of name likeness
without legal consent was Cohen v. Facebook, Los Angeles Superior Court Case No. BC 444482,
filed on August 26, 2010 by me and my co-counsel, Antony Stuart.
3. The genesis of the litigation dates to early 2010, when Facebook changed some of
its privacy practices. These changes generated considerable public discussion. I became
involved in some of those discussions and found many people asking me about the legal
implications of Facebooks practices. My research into and further discussion of the issue with
parents of teens led me to realize that the privacy rights of children had a greater need for
protection than the privacy rights of adults. As discussions with other parents progressed, I
associated with attorney Antony Stuart, an expert on First Amendment and privacy law who
secured the landmark California Supreme Court decision recognizing the privacy rights of
individuals over the claimed First Amendment rights of news organizations, Shulman v. Group W
Productions (1998) 18 Cal. 4th 200.
4. For months, Mr. Stuart and I worked together to research the basis for a class
remedy for children. We investigated and tested the process within Facebook for the purchase of
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Declaration of J ohn C. Torjesen in Further Support of Motion to Intervene; Case No. CV11-01726
LHK
endorsement advertisements. We met with parents and their children who were Facebook users.
Because Los Angeles is the center of the entertainment industry, we were able to consult with
entertainment lawyers who secure performance and publicity agreements for minors. We
discussed with these attorneys the law and procedure governing permissible means of entering in
to such agreements with children. We looked at patents relied on by Facebook and found that the
word Like was a change from the more neutral terminology used in the patent for the
mechanism, showing a clear intent by Facebook to use the childrens conduct as an endorsement.
We looked at what other internet companies were doing with respect to generating actions by
third parties to promote the companies product or web site, and found that these third parties
were regularly compensated. We drew on past contacts who had expertise on valuation of
personal endorsements, and we researched what was available in pricing algorithms for on-line
advertisements. We researched the law pertaining to commercial use of name and likeness. This
research and investigation was done as we spoke with the parents and children, listened to their
concerns and shared our findings with them. Ultimately, some of those parents retained us to take
legal action on behalf of their teenage children.
5. On August 26, 2010, Mr. Stuart and I filed the first lawsuit against Facebook
alleging commercial use of name and likeness without legal consent, representing minors
exclusively, and applying California law David Cohen, et al. v. Facebook, Los Angeles
Superior Court Case No. BC 444482.
6. In the midst of litigating the Cohen case, on April 20, 2011, both Mr. Stuart and I
were sent an e-mail from attorney J onathan J affe, now one of the Fraley plaintiffs attorneys, who
represented himself as an expert in internet litigation matters and who reported that he had been
watching [our] case against Facebook from the sidelines. A copy of this email from Mr. J affe is
attached as Exhibit A. Both Mr.Stuart and I had separate discussions with Mr. J affe about the
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Declaration of J ohn C. Torjesen in Further Support of Motion to Intervene; Case No. CV11-01726
LHK
Cohen case. He never revealed that he had just filed his own case asserting similar claims.
7. The Plaintiffs opposition to the pending motion strongly implies that Fraley was
the first case to charge Facebook with unauthorized commercial appropriation of name and
likeness, and that all others were tag-along cases. In fact the Fraley case was the fifth such
lawsuit against Facebook. This is the relevant history:
8. The next case to make similar allegations to Cohen v. Facebook was filed in this
Court by attorneys at Spillane Weingarten LLP on November 22, 2010. This was Robyn Cohen
[no relation to David] v. Facebook, No. 10- CV-5282.
9. The next such case was filed more than five months after our David Cohen case,
on February 9, 2011, by attorneys at Wexler Wallace LLP. That case was entitled Meth v.
Facebook, Los Angeles Superior Court Case No. BC 454799, and its allegations were
substantially similar to those of the David Cohen case.
10. On March 2, 2011, the firm Squitieri & Fearon filed Nastro v. Facebook in the
Eastern District of New York, Case No. 11-cv-2128. The Nastro complaint asserted a putative
class of minors within the state of New York and alleged misappropriation of name and likeness
in violation of New York law.
11. The Fraley case became the fifth such lawsuit asserting similar claims, and was
filed more than six months after the David Cohen case, on March 11, 2011.
12. The original complaint filed in Fraley did not mention minors and was initially
directed only to adults. A first amended complaint was later filed adding two minors as plaintiffs,
and asserting a subclass of minors, but no attempt was made in that complaint to assert the legal
restrictions on obtaining enforceable consent from a minor. Instead, minors were treated as adults
for liability purposes. Fraley was then removed from Santa Clara County Superior Court to this
Court on April 8, 2011.
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Declaration of J ohn C. Torjesen in Further Support of Motion to Intervene; Case No. CV11-01726
LHK
13. As the litigation of the David Cohen case progressed, it became apparent to Mr.
Stuart and me that the issues of the case were of national scope. We then decided to associate the
Korein Tillery law firm because of its experience and record of success in the prosecution of
national class action cases.
14. Mr. Stuart and I worked with the Korein Tillery firm to develop a class action
complaint to be filed in Illinios which would complement the David Cohen case. The Korein
Tillery firm subsequently filed in the Southern District of Illinois, on J une 1, 2011, E.K.D. v.
Facebook, Case No. 3:11-cv-00461-GPM-SCW (now known as C.M.D. v. Facebook).
15. All of the attorneys on the various cases except Fraley entered into discussions
about coordinating the cases, and this resulted in David Cohen v. Facebook being consolidated
withMeth v. Facebook, and the dismissal of other cases including Nastro v. Facebook in the
Eastern District of New York.
16. Contrary to the representation of Mr. Arns at paragraph 17 of his declaration that
inDavid Cohen v. Facebook the attorneys did not file an amended complaint after a demurrer
was sustained, the complaint was amended on October 12, 2011. A copy of that First Amended
Consolidated Class Action Complaint is attached as Exhibit B.
17. California state courts have been hit with massive budget cuts for several years
now, and this has caused significant delays in the rate at which cases, especially complex cases,
are administered. After much discussion counsel and clients came to agreement to dismiss
without prejudice David Cohen v. Facebook and allow its claims to be subsumed by the national
case, E.K.D. v. Facebook, which was then pending in the Southern District of Illinois. That case
was proceeding much faster than the Cohen case, and was viewed as the most expeditious path to
a fair resolution of the claim that Facebook was unlawfully appropriating the names and
likenesses of children. A copy of the Declaration of Antony Stuart in Support of Plaintiffs