1297986_1 

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MORGAN & MORGAN 

COMPLEX LITIGATION GROUP 

John A. Yanchunis (Admitted Pro Hac Vice) 

201 N. Franklin Street, 7th Floor 

Tampa, FL 33602 

Telephone: 813/223-5505 

813/223-5402 (fax) 

jyanchunis@ForThePeople.com 

ROBBINS GELLER RUDMAN 

 & DOWD LLP 

Stuart A. Davidson (Admitted Pro Hac Vice) 

120 East Palmetto Park Road, Suite 500 

Boca Raton, FL 33432 

Telephone: 561/750-3000 

561/750-3364 (fax) 

sdavidson@rgrdlaw.com 

CASEY GERRY SCHENK FRANCAVILLA 

 BLATT & PENFIELD LLP 

Gayle M. Blatt (122048) 

110 Laurel Street 

San Diego, CA 92101 

Telephone: 619/238-1811 

619/544-9232 (fax) 

gmb@cglaw.com 

MILBERG LLP 

Ariana J. Tadler (Admitted Pro Hac Vice) 

One Pennsylvania Plaza, 50th Floor 

New York, NY 10119 

Telephone: 212/594-5300 

212/868-1229 (fax) 

atadler@milberg.com 

LOCKRIDGE GRINDAL NAUEN P.L.L.P.

Karen Hanson Riebel (Admitted Pro Hac Vice) 

100 Washington Ave. South, Suite 2200 

Minneapolis, MN 55401 

Telephone: 612/339-6900 

612/339-0981 (fax) 

khriebel@locklaw.com

Attorneys for Plaintiffs and the Class

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION 

In re YAHOO! INC. CUSTOMER DATA 

BREACH SECURITY LITIGATION 

) 

) 

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No. 16-md-02752-LHK 

PLAINTIFFS’ ADMINISTRATIVE 

MOTION FOR LEAVE TO FILE SURREPLY AS TO NEW ARGUMENT MADE 

IN DEFENDANTS’ REPLY BRIEF 

Case 5:16-md-02752-LHK Document 126 Filed 08/15/17 Page 1 of 6
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Pursuant to Local Civil Rules 7-11(a) and 7-3(d), Plaintiffs respectfully move for leave of 

Court to file a sur-reply to address a new argument Defendants Yahoo! Inc. and Aabaco Small 

Business, LLC (collectively, “Yahoo”) included in its Reply in Support of Defendants Yahoo! 

Inc. and Aabaco Small Business, LLC’s Motion to Dismiss, Dkt. No. 121 (“Reply”). Attached 

hereto as Exhibit 1 is Plaintiffs’ proposed Sur-Reply (“Plaintiffs’ Sur-Reply”). The Declaration 

of Stuart A. Davidson in Support of Plaintiffs’ Administrative Motion for Leave to File SurReply as to New Argument Made in Defendants’ Reply Brief (“Davidson Decl.”), is attached 

hereto as Exhibit 2. The Stipulation of the parties and [proposed] Order is attached hereto as 

Exhibit 3. 

On August 1, 2017, Yahoo filed its Reply, Dkt. No. 121, in which Yahoo advances a new 

argument in support of dismissal of the Foreign Plaintiffs’ negligence claim, which it did not 

make in its motion to dismiss: “The Foreign Plaintiffs expressly agreed to a ‘close relationship’

with Yahoo in the [Additional Terms of Service (“ATOS”)] and [Terms of Service (“TOS”)], 

and Yahoo can enforce the forum selection and choice-of-law provisions in those agreements.”1

 

Reply at 13:22-24. In connection with its new “close relationship” argument, Yahoo also makes 

at least two factual errors. See Davidson Decl., ¶4. The erroneous statements in the Reply are 

summarized as follows: 

First, relying on the ATOS, attached as Exhibit C to Yahoo’s Request for Judicial Notice 

(“RJN”), Dkt. No. 95-3, Yahoo states that “each and every Yahoo user—foreign and domestic—

is bound by the same ATOS to which Yahoo also is a party....” Reply at 13:13-14. However, 

Yahoo is not a party to the ATOS as it pertains to the Foreign Plaintiffs, as the ATOS very 

clearly states that the “Contracting Party” in the ATOS is “the Applicable Yahoo Company,” 

which is defined earlier in the ATOS as “the Yahoo company that provides you with the 

Services....” See Ex. C to RJN, Dkt. No. 95-3, Sections 1.1 & 10. Put simply, Yahoo is not a 

party to the ATOS with the Foreign Plaintiffs, and Yahoo’s statement to the contrary is factually 

incorrect. 

 

1

 Here, and throughout, internal citations and quotation marks are omitted and emphasis is 

supplied, unless otherwise noted. 

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Second, relying on the Australia TOS, attached as Exhibit B to the RJN, Dkt. No. 95-2, 

Yahoo states: “Even more fundamental, the Foreign Plaintiffs expressly agreed to ‘transfer’ their 

information ‘to the United States and/or other countries for storage, processing and use by 

Yahoo!...” Reply at 13:15-17 (emphasis in original). This is also incorrect, as that provision of 

the Australia TOS clearly states that Foreign Plaintiffs agreed to “transfer” their information “to 

the United States and/or other countries for storage, processing and use by Yahoo7 and its 

affiliates.” See Ex. B to RJN, Dkt. No. 95-2, Section 4. 

As a professional courtesy, Plaintiffs’ counsel contacted counsel for Yahoo to discuss 

both of the incorrect statements in the Reply and to request that Yahoo file papers with the Court 

correcting them. Davidson Decl., ¶6. 

Plaintiffs’ counsel and counsel for Yahoo conferenced on August 4, 2017 during which 

Plaintiffs’ counsel explained the incorrect statements and errors in Yahoo’s Reply. Yahoo’s 

counsel confirmed they would investigate the matter and advise Plaintiffs’ counsel of their plans 

to address the issues raised, if any. Davidson Decl., ¶7. Counsel spoke again on August 9, 2017 

to further attempt to resolve these issues. Davidson Decl., ¶8. 

On August 10, 2017, Yahoo filed an Errata to their Reply, correcting the second error 

(i.e., concerning the language in the Australian TOS). See Dkt. No. 124. However, Yahoo 

declined to correct the first erroneous statement, thus requiring Plaintiffs to seek leave to file a 

sur-reply in order to address the same. 

This Court, and others in this Circuit, have disregarded new arguments that are raised for 

the first time in reply briefs, considering them waived. See In re Yahoo Mail Litig., 7 F. Supp. 

3d 1016, 1035 (N.D. Cal. 2014) (“Yahoo did not argue in its opening brief that there was consent 

for a § 2702(a) violation and only focused on how Yahoo had consent to a § 2701(a) violation 

pursuant to § 2701(c)(2). Thus, the Court does not consider Yahoo’s consent argument in its 

Reply because arguments raised for the first time in Reply briefs are waived.”) (Koh, J.) (citing 

Sealant Sys. Int’l, Inc. v. TEK Global S.R.L., No. 5:11–cv–00774–PSG, 2014 WL 1008183, at 

*14 (N.D. Cal. Mar. 7, 2014)); see also Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) 

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(“Issues raised for the first time in the reply brief are waived.”); Architectureart, LLC v. City of 

San Diego, No. 15-cv-1592-BAS-NLS, 2016 WL 1077124, at *3 (S.D. Cal. Mar. 18, 2016) (“In 

its Reply, the City raises several arguments not mentioned in its initial Motion to Dismiss, 

including the argument that the allegations in the FAC, if not time-barred, fail to state a violation 

of federal or state constitutional rights. Because these arguments were not made in the initial 

Motion to Dismiss, the arguments are waived.”); Dytch v. Yoon, No. C 10–02915 MEJ, 2011 

WL 839421, at *3 (N.D. Cal. Mar. 7, 2011) (“As to Defendant’s reply, the Court finds that it 

raises new arguments not raised in Defendant’s motion. ‘It is improper for a moving party to 

introduce new facts or different legal arguments in the reply brief than those presented in the 

moving papers.’”). 

That said, to the extent the Court intends to consider Yahoo’s new “close relationship” 

argument, Plaintiffs seek leave to file the attached Plaintiffs’ Sur-Reply, as Plaintiffs have not 

had an opportunity to explain why Yahoo’s statements regarding the parties to the ATOS are 

false. 

Good cause exists to grant Plaintiffs’ request. See Provenz v. Miller, 102 F.3d 1478, 

1483 (9th Cir. 1996) (“[W]here new evidence is presented in a reply to a motion for summary 

judgment, the district court should not consider the new evidence without giving the [non-

]movant an opportunity to respond”); Jordan v. Terhune, No. CIV S-03-1820 LKK KJM P, 2009 

WL 276764, at *3 (E.D. Cal. Feb. 5, 2009) (“[W]hen a party has raised new arguments or 

presented new evidence in a reply to an opposition, the court may permit the other party to 

counter the new arguments or evidence.”) (citing El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-

41 (9th Cir. 2003)); see also Landmark Screens, LLC v. Morgan, Lewis & Bockius, No. 08-cv2581 (JF), 2010 WL 3629816, at *2 (N.D. Cal. Sept. 14, 2010) (sur-reply permitted where 

authority cited for first time in reply papers). 

Plaintiffs and Yahoo have stipulated to the filing of a sur-reply. See Davidson Decl., ¶9. 

WHEREFORE, for the foregoing reasons, Plaintiffs respectfully request that the Court 

enter the Order accompanying the parties’ Stipulation, granting plaintiffs leave to file the 

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attached Plaintiffs’ Sur-Reply, and granting such other and further relief as the Court deems just 

and proper. 

DATED: August 15, 2017 MORGAN & MORGAN 

COMPLEX LITIGATION GROUP

John A. Yanchunis 

s/ John A. Yanchunis

 John A. Yanchunis

201 N. Franklin Street, 7th Floor 

Tampa, FL 33602 

Telephone: 813/223-5505 

813/223-5402 (fax) 

 ROBBINS GELLER RUDMAN 

 & DOWD LLP 

Stuart A. Davidson

s/ Stuart A. Davidson

 Stuart A. Davidson

120 East Palmetto Park Road, Suite 500 

Boca Raton, FL 33432 

Telephone: 561/750-3000 

561/750-3364 (fax)

CASEY GERRY SCHENK FRANCAVILLA 

 BLATT & PENFIELD LLP 

Gayle M. Blatt 

110 Laurel Street 

San Diego, CA 92101 

Telephone: 619/238-1811 

619/544-9232 (fax)

MILBERG LLP 

Ariana J. Tadler 

One Pennsylvania Plaza, 50th Floor 

New York, NY 10119 

Telephone: 212/594-5300 

212/868-1229 (fax)

LOCKRIDGE GRINDAL NAUEN P.L.L.P.

Karen Hanson Riebel 

100 Washington Ave. South, Suite 2200 

Minneapolis, MN 55401 

Telephone: 612/339-6900 

612/339-0981 (fax)

Attorneys for Plaintiffs and the Class

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CERTIFICATE OF SERVICE 

I hereby certify that on August 15, 2017, I authorized the electronic filing of the 

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of 

such filing to the e-mail addresses denoted on the attached Electronic Mail Notice List, and I 

hereby certify that I caused to be mailed the foregoing document or paper via the United States 

Postal Service to the non-CM/ECF participants indicated on the attached Manual Notice List. 

I certify under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct. Executed on August 15, 2017. 

s/ Stuart A. Davidson 

 STUART A. DAVIDSON 

ROBBINS GELLER RUDMAN 

 & DOWD LLP 

120 East Palmetto Park Road, Suite 500 

Boca Raton, FL 33432 

Telephone: 561/750-3000 

561/750-3364 (fax) 

E-mail: sdavidson@rgrdlaw.com

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