Appeal filed in tracking antitrust suit against Facebook

By David Hutton | Jan 11, 2018

Attorney David Krueger says the case against Facebook has the potential to be precedent-setting as it hits on a lot of hot-button issues facing courts today.

David Krueger is an attorney with the Benesch Law Firm’s Litigation Practice Group.   File photo

A group of plaintiffs has appealed to the U.S. 9th Circuit Court of Appeals a lower court ruling dismissing litigation alleging that Facebook tracks users’ internet movements even after they have logged out of the social media site.

In a June 30 decision, U.S. District Judge Edward Davila in the U.S. District Court Northern District of California San Jose Division ruled the plaintiffs failed to demonstrate they had any reasonable expectation of privacy or they sustained any economic loss or harm.

According to the appeal, the plaintiffs allege that Facebook violated federal and California privacy and wiretapping laws by storing cookies on their browsers that tracked when they visited outside websites containing Facebook “like” buttons.

It is a case that has drawn intense interest from legal professionals.

David Krueger is an attorney with the Benesch Law Firm’s Litigation Practice Group and represents businesses in commercial and business disputes, consumer disputes, transportation/aviation, and class action litigation. He has written on similar issues and believes the 9th Circuit will accept the case because the plaintiffs have the right to appeal the orders now that the case and all claims have been dismissed.

“The case certainly has the potential to be precedent-setting as it hits on a lot of hot current issues, particularly relating to class actions and the issue of standing post-Spokeo,” Krueger said. “While the district court’s last order only involved issues of alleged breach of contract and breach of the duty of good faith and fair dealing, the court had previously dismissed a multitude of state and federal claims on the grounds that the plaintiffs did not allege any real injury owing to Facebook’s alleged tracking.”

Moreover, Krueger noted that the appeal also will give the 9th Circuit to weigh directly in on what types of allegations are necessary to standing for online tracking claims — even if the 9th Circuit affirms the dismissal, the decision may provide guidance to plaintiffs’ attorneys on future cases on what they need to allege.

The class-action suit seeks $15 billion in damages, which has raised some eyebrows, particularly with the lower court’s ruling that the plaintiffs have come up short in their efforts to prove any “damage” Facebook has caused them.

Krueger noted the purported damages, on a supposed per-class member basis, were relatively nominal.

“But given the sheer volume of how many people use (or at least have) Facebook, it is not unsurprising that the supposed theoretical damages in the aggregate would reach that high — though that assumes the accuracy of the supposed value per class member, for which there are many reasons to be skeptical both of the alleged damage figure in the first place, let alone the value with respect to different supposed class members,” he said. “So, in a vacuum, that number may be theoretically valid. Outside of that vacuum, that damages figure is most likely unreasonable.”

David Straite of the Kaplan Fox & Kilsheimer LLP law firm is the court-appointed lead counsel for the proposed class.  Additional attorneys from Kaplan include Frederic Fox, Laurence King and Mario Choi. They are joined by Stephen Grygiel of Silverman Thompson Slutkin White LLC.

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