Civil Justice Association of California leader sounds off on Facebook tagging class-action suit

By Carol Ostrow | May 31, 2016

SAN FRANCISCO – A Northern California case involving three young men whose privacy violation allegations against Facebook were recently upheld has spurred a practical response from a legal expert who cautions consumers and companies alike against “meritless” cases.

SAN FRANCISCO – A Northern California case involving three young men whose privacy violation allegations against Facebook were recently upheld has spurred a practical response from a legal expert who cautions consumers and companies alike against “meritless” cases.

District Judge James Donato of the U.S. District Court for the Northern District of California ruled on May 5 that three Illinois citizens may proceed with a class-action lawsuit against Facebook on the grounds that its facial recognition software violated their privacy.

Adam Pezen, Carlo Licata and Nimesh Patel – all from the Chicago area – each sued Facebook separately last year. The cases were combined into one class action and transferred to the Northern District of California Court.

The complaint referenced allegations that Facebook illegally collected biometric data from “tagged” photographs posted by other users, in violation of Illinois' Biometric Information Privacy Act of 2008.

“California probably has the most pro-plaintiff class-action rules in the country,” Kim Stone, president of the Sacramento-based Civil Justice Association of California (CJAC), told the Northern California Record. “We are home to hundreds of class-actions, particularly consumer class-action lawsuits, many of which are lawyer-driven and result in millions of dollars for the lawyers, and coupons – or little else – for the supposedly aggrieved class members.”

In plenty of cases, class-action plaintiffs don’t actually benefit from the outcome. Following New York’s 2015 Subway foot-long sandwich case, for example, the sub shop can no longer advertise foot-long subs, but no actual monetary award was allotted.

“What did the class members get?” she asked rhetorically, citing the 2013 class-action grievance alleging that the sandwich chain “engaged in deceptive marketing … and served customers less food than they were paying for,” as described by USA Today in October 2015. When a photo depicted one of the company’s foot-long subs as measuring approximately 11 inches in 2013, the image went viral, ultimately leading to the suit. 

Despite the objection that not every bread loaf is identical, the court found for the plaintiffs. Subway was ruled accountable and literally made to measure its loaves going forward, and yet the plaintiffs received no monetary compensation. Subway merely agreed to pay attorneys’ fees.

How authentic is the Facebook case, and what do the plaintiffs hope to gain from it? Without direct access to court documents, Stone said, it’s not easy to determine whether the case is a frivolous one. Nevertheless, the bottom line still focuses on whether they were put in harm’s way, and if so, what their damages were.

“Class-action suits rarely go to trial,” Stone said. “Class-action lawsuits settle. The potential exposure to the defendant company for a class-action lawsuit is usually so high that they will settle even if they feel they didn’t do anything wrong because … it would just be cheaper to pay the plaintiffs’ lawyers off.” 

Many class actions involve claims against manufacturers for statements made about products. A 2014 class action suit filed in California involved charges against the Lowe’s hardware store chain for labeling practices because the items commonly referred to as "two-by-fours” are not literally 2 inches by 4 inches, but actually 1.5 inches by 3.5 inches.

“Everyone who buys two-by-fours knows that!” Stone said. “It’s a common understanding … and nobody was actually harmed or deceived in any way, shape or form! The hardware store could have gone to trial and won; but they settled because they didn’t want to run the risk of making the wrong choice and losing... . In that case, they actually changed their labeling.”

Would settlement be a false admission on the company’s part?  It’s more like taking a plea bargain because one’s risks are lower, Stone said.

"In this case, I wonder what the harm was; and is the company going to feel like it has to settle because there are so many Facebook users and if they lost, the money would be so high," Stone said. 

A former criminal prosecutor, Stone turned to civil work, lobbying for the tort reform group starting in 2005 and becoming its president in 2011. CJAC tracks bills in the state legislature to keep professionals and consumers informed about how measures could impact the civil justice system.

"We take positions and lobby on a number of bills, mostly in the civil litigation area. We are the people who fight the trial lawyers," she said. "We … make it harder to bring meritless class actions in California and easier for the legitimate ones to go through." 

The organization presents annual leadership awards recognizing commitment to balance and fairness toward consumers, taxpayers and businesses. Its staff is called upon regularly to testify before the California legislature, and CJAC takes pride in having stopped “hundreds of dangerous bills” in their tracks.

 “The reason I do what I do is because I think things are unfair,” Stone said. “It’s not like big companies don’t do bad things. Certainly they do, and they deserve to be held accountable.”

Facebook is headquartered in Menlo Park. The plaintiffs’ attorney Jay Edelson could not be reached for comment.


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Civil Justice Association of California U.S. District Court for the Northern District of California

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