EXHIBIT 1 

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Basil P. Fthenakis, Esq. (88399)

CRITERION LAW

2225F.. Bayshore Road, Suite 200

Palo Alto, California 94303

Tel. (650) 3s2-8400

Fax. (650) 352-8408

bpf@criterionlaw.com

Of counsel:

David S. Godkin (admittedpro hac vice)

BIRNBAUM & GODKIN, LLP

280 Summer Street

Boston, MA02210

(617) 307-6t00

godkin@birnbaum godkin. com

James E. Kruzer (admittedpro hac vice)

BIRNBAUM & GODKIN, LI.P

280 Summer Street

Boston, MA02210

(617) 307-6100

krvzer @birnbaum go dki n. co m

Attorneys for Plaintiff,

SIX4'|HREE, LLC, a Delaware

limited liability company

SIX4THREE, LLC, a Delaware limited

liability company,

Plaintiff,

V

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN MATEO

Case No. CIV533328

PT,AINTIF'F' SIX4THREE LI.,C'S THIRD

SUPPLEMENTAL RESPONSE TO

DEFENDANT FACEBOOK, INC.'S

SPECIALLY PREPARED

INTERROGATORIES

FACEBOOK, INC., a l)elaware

corporation and DOES l-50, inclusive,

Defendant.

CASC NO, 533328 643 TI-IIRD SUPPLEMENTAL RESPONSTJ TO FACEBOOK'S SPECIAt, INTERROGATORIES

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Developers. On January 5,2014, Facebook sent yet anotherooPlatform Status" update regarding a

change to the Insights feature of Facebook Platform. See Exhibit E.

In sum, Facebook sent dozens and dozens of emails to 643 from April 30,2014 through

January 20,2015. Not one of these emails ever provided notice to 643 of the changes to Graph

API thqf would shut down 643's App. Infact, these emails provided notices o/'many other

changes and also encouraged 643 to /ìnd more users for its App and to make money on engaging

those users after the point in time Facebook claims it provided notice to 643 that the App would

no longer function. This is particularly curious given that many of the emails describe many other

changes to Graph API and Facebook Platform but never describe the massive change of closing

completely all the content Facebook had promised for many years. Facebook had multiple

avenues to communicate this major change, including its Weekly Developer Blog and its regular

Platform Status updates. Facebook provided 643 with notice of many different changes through

these avenues and yet not until January 20,2015 did Facebook send notice to 643 of the major

change that would cause 643's App to shut down. Finally, during this period between which

Facebook told a small group of Developers at a conference about this change and notified 643 of

the change (April 30,2014 to January 20,2015), Facebook sent numerous emails fo 643 helping

643 gain more users for its App, engage those users better in the App, and monetize the

engagement of those users for 643 to make money with the App.

SPECIAL INTERROGATORY NO. 9:

STATETHE COMPLETE FACTUAL BASIS that you contend suppor{s YOUR claim

for violation of Business and Professions Code $ 17200 et seq'

RESPONSE SPECIAL INTERROGA TORY NO. 9:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (1) is vague and ambiguous; (2) is overly broad and unduly

burdensome in seeking "THE COMPLETE FACTUAL BASIS"; (3) calls for information

coveled by the attorney-client privilcgc and work product privileges; (4) calls for confidential

information in the absence of the entry of a suitable protective order; (5) seeks documents that are

not relevant to the subject matter of this litigation and not reasonably calculated to lead to the

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Case No. 533328 643 THIRD SUPPLEMENTAL RESPONSE'I'O FACEBOOK'S SPECIAL INTERROGATORIES

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discovery of admissible evidence; (6) seeks information equally available to Defendant; (7) seeks

the content of electronic communications that 643 is prohibited from producing under the SCA'

643 will supplement its response to this interrogatory upon the entry of a protective order,

SUPPLEMENTAL RESPONSE TO SPECIAL INTEBROGATQRY NO. 9:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome; (3) calls for information covered by the attorney-client privilege and work product

privileges; (4) seeks documents that are not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defendant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA.

Subject to and without waiving the foregoing objections, 643 responds that Facebook's

representations and conduct were designed to, and did, entice 643 and other Developers to create

applications for Facebook with promises of, among other things, a level playing field, fair

competition, and a chance to build a business. Facebook decided to open certain endpoints, and

not others, precisely to induce l)evelopers to build certain types of applications, including

advanced photo-searching applications. Facebook promised Developers that their own advanced

photo-searching applications would be treated on a level playing freld with any photo-searching

applications Facebook decided to launch in the future. Iìacebook also promised l)evelopers it was

committed over the long term to enable Developers to build businesses using advanced photosearching applications.

Facebook caused substantial harm to 643 and other Developers when it then decided to

terminate Developers' ability to build advanced photo-searching applications, while retaining its

own ability to create these kinds of applications, because 643,like other Developers, had invested

considerable time and resources in developing this kind of application for Facebook'

This type of conduct and the harm it causcd 643 is by no me&ns isolated. It is reflective of

apatlernof behavior on Facebook's part over many years in which it induces investment around

certain applications with promises of serving as a neutral platform provider, and then once certain

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Case No. 533328 643 THIRD SUPPT,EMENTAL IìT]SPONSE TO ITACEBOOK'S SPECIAL INTERROGATORIES

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applications become big enough markets, it shuts off that platform and monopolizes the market

for itself. Indeed, the inherent conflict of interest and anti-competitive behavior associatecl with

multi-billion dollar app economies like Facebook Platform has become the locus of increasing

antitrust scrutiny.

Just as recently as October 19,2016, U.S. Representative Henry Johnson, the Ranking

Member of the Antitrust Subcommittee of the House Judiciary Committee, called on the Federal

Trade Commission (FTC) to investigate concerns around anti-competitive activity in app

marketplaces. Representative Johnson's letter to the FTC reads in part:

It is our understanding that some independent and small technology

developers have raised ooncerns with the Federal Trade Commission that

the increasing difficulty that app developers have in reaching and

communicating with customers in some app ecosystems may undermine

competition in digital services and products distribution. 'We 

are concerned

that these practices will stifle innovation and decrease channels for

distributing the products of application and service developers, resulting in

fewer and less cost-effective choices for consumers. As Members of the

United States House of Representatives serving on the Committee on the

Judiciary, we are committed to ensuring a competitive marketplace for all

companies online, including new entrants and small competitors.

Accordingly, we ask that the Commission carefully consider these

concerns, (See Exhibit D.)

643 contends that the type of repeated "bait and switch" behavior Facebook has engaged in over

many years and in many contexts is precisely the type of activity that California's Unfair

Competition Act is intended to regulate. To accept that Facebook can make repeated promises of

neutrality and then decide to violate those promises when they run counter to Facebook's

business interests is to permit anti-competitive activity that places smaller companies at a

dramatic disadvantage in the app economy. 643 reserves the right to supplement its response to

this Special Interrogatory as new information is discovered.

SECOND SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 9;

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome; (3) calls for information covered by the attorney-client privilege and work product

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Case No, 533328 643 TI,IIRD SUPPT,EMENTAL RESPONSTJ'TO }'ACEBOOK'S SPECIAL INTERIìOGATORIES

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privileges; (4) seeks documents that arc not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defendant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA,

Subject to and without waiving the foregoing objections, 643 responds that Facebook

claims it provided one year notice to 643 of the closing of Graph API that shut clown 643's App.

However, Facebook did not in fact provide such notice fo 643 until January 20,2015, Facebook

claims that because it told select Developers that attended a conference on April 30, 2014 and

wïote a blog post on its website that included one line buried at the bottom of the blog post

mentioning that Facebook was removing some "rarely used" endpoints, and which never

specified the content actually being removed, that this somehow constitutes notice to 643 that the

App would no longer function on April 30,2015. However, Representatives of 643 did not attend

the F8 Annual Conference in which this was announced, did not watch the conf'erence online, and

did not proactively search the Facebook blog on a daily basis to uncover this announcement on

that date,

Facebook did not notify 643 of the shutting down of Graph API and the cleprecating of the

FRIENDS' PHOTOS ENDPOINT until January 20,2015 (FB_0000005), Between April 30,

2014 and January 20,2015, 643 received numerous emails from Facebook, none of which ever

mentioned that 643's App would be shut down on April 30,2015. In fact, many of the emails sent

by Facebook provided updates on Facebook Platform to ensure that 643 could continue to use

Facebook Platform for its App. Many other emails provided assistance to 643 on how to increase

the users in its App, See Exhibit E.

For instance, on April 30,2014,the date Facebook announced that it was shutting down

Graph API to a select group of Developers at a conference, Facebook sent 643 an email entitled

"lnsights on Pikinis," showing analytics on the likes, reach and user engagement of Pikinis on

Facebook, with the goal of helping Pikinis increase its adoption on Facebook Platform. On Junc

76,2014, Facebook sent an email to 643 with an update on Facebook Platform around

"Upcoming Changes to App Ads," showing how Pikinis could use advertisements to monetize the

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Case No. 533328 643 TFIIRD SUPPLEMENTAT. RESPONSË TO FACEBOOK'S SPECIAL INTEIIIìOGATORIES

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App on Facebook Platform. On July 15,2014, Facebook sent 643 an email "Build an Audience,"

providing suggestions on how to increase the App's users by leveraging Facebook Platform, On

August 26,2014, Facebook sent 643 an email ooMeasure App Events," providing suggestions on

how to measure engagement in the App to gain greater insight into user behavior. On September

l,2Ol4,Facebook sent 643 an email"Mobile App Custom Audiences," providing suggestions on

how to segment App users to target those segments more effectively. On September 7,2014,

Facebook sent 643 an email ooReach Your High Value fJsers," providing suggestions on how to

get more App users for Facebook Platform. On October 28,2074, Facebook sent three different

"Platform Status" updates providing information to l)evelopers around some bugs that Facebook

was working on that temporarily affected Developers' ability to use Facebook Platfonn. On

November 4,2014, F'acebook sent another "Platform Status" update to 643 describing a change to

Platform related to Messaging APIs. On December 8, 2014, Facebook sent an email to 643,

'oDeveloper Blog Weekly Digest," which is one of many weekly emails Facebook sent to 643

describing updates to Facebook Platform and Graph APL On December 14,2014, Facebook sent

another ooPlatform Status" update to 643 describing a change to Graph API that affected

Developers. On January 5,2014, Facebook sent yet another o'Platform Status" update regarding a

change to the Insights feature of Facebook Platform. See Exhibit E.

In sum, Facebook sent dozens and dozens of emails to 643 from April 30,2014 through

January 20,2015. Not one of these emails ever provided notice to 643 of the changes to Graph

API that would shut down 643's App. Infact, these emails provided notices of many other

changes and also encouraged 643 to find more users for its App and to make money on engaging

those users after the point in time Facebook claims it provided notice to 643 that the App would

no longer function. This is particularly curious given that many of the emails describe many other

changes to Graph API and Facebook Platform but never describe the massive change of closing

completely all the content Facebook had promised for many years, Facebook had multiple

avenues to cornrnunicate this major change, including its Weckly Dcvcloper Blog and its regular

Platform Status updates. Facebook provided 643 with notice of many different changes through

these avenues and yet not until January 20,2015 did Facebook send notice to 643 of the major

aa

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change that would cause 643's App to shut down. Finally, during this period between which

Facebook told a small group of Developers at a conference about this change and notified 643 of

the change (April 30,2014 to January 20,2015), Facebook sent numerous emails to 643 helping

643 gainmore users for its App, engage those users better in the App, and monetize the

engagement of those users for 643 to make money with the App.

That Facebook continued to entice 643 to invest in Facebook Platform while deliberately

withholdin g any updates to 643 of perhaps the most significant change to Facebook Platform

since it was launched in 2007, is direct evidence in support of 643's claim that Facebook violated

Business and Professions Code $ 17200 et seq.

Facebook made a promise to certain Developers that attended a conference on April 30,

2014|haïthe Open Graph content would be available for 2 years to all Developers. Facebook

then gave Developers only one year, contrary to its 2 year promise. And, what is more, Facebook

then deliberately avoided notifying 643 until nine months later so 643 would continue its

investment of time, capital and resources in Facebook Platform, including any contracts 643

entered into with App users during this time. To summarize: Facebook promised certain

Developers that all Developers would have two years to access the Open Graph content, then

produced a blog post that, hidden under various links, gave Developers one year, and then only

provided notice to 643 a few months in advance of shutting down the App. This course of

conduct is itself strong evidence that Facebook intended to interfere with 643's contracts.

Otherwise, why would Facebook not have sent an email on April 30,2014 Ío 643 at the time it

made the announcement to a select group of Developers at a conference? The lack of a plausible

explanation for this behavior provides strong evidence in support of deceptive and anticompetitive conduct designed to disrupt the existing and prospective contractual relations of

Developers, including 643,inviolation of Business and Professions Code $ 17200 et seq.

SPECIAL INTERROGATORY NO. 10:

STATE THE COMPLETE FACTUAL BASIS that you contcnd supports YOUR claim

for negligent misrepresentation,

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Case No. 533328 643 THIRD SUPPLEMENTAL RESPONSE'IO FACEBOOK'S SPECIAL INI'ERROGATORIES

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In addition to its actual damages, 643 seeks an award of its costs and attorneys' fbes, prejudgment interest, and punitive/multiple damages in amounts to be determined at ttial, 643

reserves the right to supplement its response to this Special Interrogatory as new information is

discovered.

SPECIAL INTERROGATORY NO. 20:

For each date on which YOIJ sold fhe 643 APP in Apple's App store, separately

IDENTIFY the total number of customers who purchased the 643 APP on that date for $ I .99, as

referenced in paragraph 65 of the SAC,

RESPONSE SPECIAL INTERROGA RY NO. 20:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome in seeking ooeach date" and "IDENTIFY the total number of customers"; (3) calls for

information covered by the attorney-client privilege and work product privileges; (4) calls for

confidential information in the absence of the entry of a suitable protective order; (5) seeks

documents that are not relevant to the subject matter of this litigation and not reasonably

calculated to lead to the discovery of admissible evidence; (6) seeks information equally available

to Defendant; (7) seeks the content of electronic communications thaI643 is prohibited from

producing under the SCA. 643 will supplement its response to this interrogatory upon the entry of

a protective order.

SUPPLEMENTAL RESPONSE TO SPEçIAL INTERROGATORY NO. 20:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome; (3) calls for information covered by the attorney-client privilege and work product

privileges; (4) seeks documents that are not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defenclant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA.

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Case No. 533328 643'IHIRD SUPPLTJMEN'TAI, RËSPONSE TO FACEBOOK'S SPTJCIAL INI'ERROGATORIF,S

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Subject to and without waiving the foregoing objections, 643 responds that its financial

model includes this information, and additionally that 4,481 users had downloaded the App, of

whom 3,963 had subscriptions to premium content (See Exhibit C).643 reserves the right to

supplement its response to this Special Interrogatory as new information is discovered.

SNCONN SUPPT,NMBNTAL RESPONSE TO SPECIAL INTERROGATORY NO. 20:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome; (3) calls for information covered by the attorney-client privilege and work product

privileges; (4) seeks documents that are not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defendant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA.

Subject to and without waiving the foregoing objections, 643 responds that it provided the

requested information in its production of 5 December (Six4Three 000014761-Six4Three

000015136). This document shows the specific Facebook User ID, exact timestamp of the user

signing up for the App, the access token that was used to authorize the user connecting to

Facebook Platform via the App, whether a premium subscription was authorizecl, and when that

subscription was last updated. With this information, Facebook can identify the specifrc

individual who signed up, the exact time they signed up, whether the user had a premium

subscription, when that subscription was last updated, and how the user was authorized to access

the Facebook Platform. Each row of the document includes, for a given user, their Facebook II)

fid), whether they have admin privileges (admin), when the user signed up (created-at), the

access token that was used to authorize the Facebook Platform connection

(facebook_access_token), the settings the user signed up with for the App, including the user's

App preferences, the last time the user's subsoription was updated and when that subscription was

created, (settings), the existence of a premium accourtt (pretnium-account), and whcn it was last

updated (updated_at).643 has agreed to provide the information Facebook requested;643 has, in

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Case No. 533328 643 THIRD SUPPLEMENTAL RESPONSE 1'O FACEBOOK'S SPECIAI, INTEIìROGATORIES

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fact, produced such information; and 643 is willing to work with Facebook to clarify any further

lssues.

643 held in its possession a file that it has previously provided to Facebook indicating a

total of 4,481 App users. Facebook stated that this file was not sufficient and that Facebook

required the specific date of each user signup and the period of the subscription.643

reconstructed from a database file a CSV file (Six4Three 000014761-Six4'Ihree 000015136)

showing 3,944 App users. 643 provides these files øs they are and only with the modifications

necessary to enable Facebook to acçess the information. 643 is under no obligation to correct

these files as it has provided the information Facebook requested after a reasonable, good faith

search ofits records,

In an abundance of caution, 643 corrects its prior statement of 4,481 App users with the

updated information of 3,944 App users. The inf'ormation provided in Six4Three 000014761-

Six4Three 000015136 is sufficient to meet Facebook's request as to the specific date of each

download, the presence of premium subscription and term of such subscription. 643 is not under

any obligation to undertake the cost of preparing the information in a particular manner that best

meets Facebook's preferences. Notwithstanding the foregoing,643 continues to seek to identify

additional material and will work with Facebook to provide additional information as part of its

ongoing production.

THIRI) AL RESPONSE SPECIAL INTERROGA Y NO. 20:

Responding Party incorporates each of the General Objections and further objects to this

demand to the extent that it: (l) is vague and ambiguous; (2) is overly broad and unduly

burdensome; (3) calls for information covered by the attorney-client privilege and work product

privileges; (4) seeks documents that are not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defendant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA,

Subject to and without waiving the foregoing objections, Responding Party has produced

the date and terms of each user's download of the App that it could locate after a reasonable

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search and using the search terms agreed upon by the Parties in its production of 5 December' As

643 has told Facebook, the data around sales is maintained by another entity, Apple Inc,

("Apple"). 643's membership to Apple's Developer website in which the sales data is maintained

has expired, See Exhibit þ'. F'urther, 643 has learned that the data to which 643 has access on

Apple's Developer website does not go back further than April 2015.It appears Apple

periodically removes older data in order to maintain its platf'orm' Exhibit G Exhibit H, Exhibit I,

and Exhibit J all demonstrate that when 643 attempts to access data prior to April 2015 on

Apple's Developer website, the App Purchase Date field to determine the date range for the data

Apple displays does not go back prior to April 201 5. 643 can neither type in a date range earlier

than April 2015 or use the back arrow in the calendar view to access date ranges earlier than April

2015. Exhibit G, Exhibit H, Exhibit I and Exhibit J span all five interfaces Apple makes available

on its Developer website to view this data. 643 is not aware of another way reasonably to obtain

this data from Apple.

However, 643 was able to identify a screenshot in its files, though it cannot accurately

identify the specific date of the screenshot, fiom its prior access of Apple's Developer website.

See Exhibit K. Exhibit K shows 4,320 basic App downloads, 140 l-month App subscriptions, l4

6-month App subscriptions andT l-year App subscriptions. This data in Exhibit K served as the

basis of 643's original claim of 4,481 downloads. This data demonstrates that 643 had sales of its

App prior to the notice Facebook provided 643 that it was shutting down Graph API on January

20,2015. Further, Exhibit L shows that even in a very short period of time prior to the App

shutting down, the App was able to generate meaningful sales, user sessions, in-app purchases

and page views immediately prior to the shutting down of the App. Finally Exhibit

demonstrates that even after the App was completely broken and no longer functioned at all, after

April 30, 2015 customers tried to access the App 785 times even though the App just displayed a

blank page. It is this strong data in support of user desire for the App and user engagement in the

App that serves as the basis for 643's damages calculations,

SPECIAL INTERROGATORY NO. 2I :

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privileges; (4) seeks documents that are not relevant to the subject matter of this litigation and not

reasonably calculated to lead to the discovery of admissible evidence; (5) seeks information

equally available to Defendant; (6) seeks the content of electronic communications that 643 is

prohibited from producing under the SCA.

Subject to and without waiving the foregoing objections, 643 responds that Ted Kramer

received and responded to user feedback,643 reserves the right to supplement its response to this

Special Interrogatory as new information is discovered'

DATED: December 27,2016 CRITERION LAW

BIRNBAUM & GODKIN

By:

s

David S Godkin (admittedpro hac vice)

James E. Kruzer (admittedpro hac vice)

Attorneys for Plaintiff

Six4Three, LLC

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Case No. 533328 643 SUPPLEMENTAL VERIFICATION

VERIFICATION

I, Ted Kramer, as a certified representative of Plaintiff Six4Three LLC (“643”), certify 

and declare under penalty of perjury under the laws of the state of California that I have read and 

reviewed 643’s (1) Third Supplemental Answers to Facebook’s First Set of Specially Prepared 

Interrogatories; and (2) Third Supplemental Answers to Facebook’s First Set of Requests for 

Production of Documents and believe them to be true and accurate based on the information 

available to 643 at the present time.

Executed December 27, 2016, at San Francisco, California.

By: Ted Kramer

Case 3:17-cv-00359-WHA Document 20-2 Filed 02/06/17 Page 14 of 14