Facebook Must Face Message Scanning Class Action

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By Jimmy H. Koo

May 19 — Facebook Inc. May 18 failed to shake off a class action alleging that it scanned private messages for any reference to websites and then added a user's “like” to those pages as part of a targeted advertising campaign.

Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California, however, trimmed down the class by declining to certify plaintiffs seeking statutory monetary relief, and granting class certification for plaintiffs seeking injunctive relief.

According to the complaint, Facebook systematically scanned users' private messages, and if there is a link to a website in the message, Facebook treated it as a “like” of the page, and used the data to compile user profiles (13 PVLR 94, 1/13/14). In December 2014, Facebook lots its bid to dismiss the class action (14 PVLR 23, 1/5/15).

Involves Individual Questions

Moving for class certification—under Federal Rule of Civil Procedure Rule 23(b)(2), for injunctive relief, and Rule 23(b)(3), for statutory relief—plaintiffs added allegations that Facebook shared data derived from the scanning with third parties. The court allowed the plaintiffs to add the new allegations because they are “based on a review of discovery that was not available at the time of the complaint's filing.”

Under the Electronic Communications Privacy Act, courts have the discretion to award statutory damages or nothing at all, the court said. In this case, “many class members appear to have suffered little, if any, harm, such that a statutory damages award would be a disproportionate penalty,” the court held.

Declining to certify a class seeking statutory damages, the court held that the varying levels of harm “would necessarily involve individual questions about whether specific class member's award was excessive,” thereby making individual issues regarding damages predominate over common ones.

Conversely, the court granted class certification for injunctive relief, finding that the fact that a class member's relief might differ from other class members doesn't make the requested injunctive relief improper.

Lieff Cabraser Heimann & Bernstein, LLP; Carney Bates & Pulliam, PLLC; and Pomerantz, LLP represented the plaintiffs. Gibson, Dunn & Crutcher LLP represented Facebook.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: George R. Lynch at glynch@bna.com