Over the last few years, there have been a ton of lawsuits, pretty much all of them dubious, arguing that social media is inherently harmful to children (something the research does not show) and that therefore there is some sort of magic product liability claim that will hold social media companies responsible. A bunch of those lawsuits have been rolled up into a massive single multidistrict litigation case in California, under the catchy name: “In re: social media adolescent addiction/personal injury products liability litigation.”
The docket is massive, currently with well over 750 documents on the docket, and I’m sure many more are to come. At least some of the cases tried to put personal liability on Mark Zuckerberg himself, as if he were somehow directly gleefully looking to harm children with Facebook and Instagram.
The court has now dismissed those claims (though with leave to amend). Eric Goldman brought my attention to this latest ruling in the case on his blog (honestly there are so many documents on the docket I had completely missed this one).
As you might expect in a case this massive, with a bunch of personal injury attorneys jumping in with the hope of scoring some massive multi-billion dollar settlement, they’re willing to throw every stupid theory they can come up with against the wall to see if any one gets by an inattentive judge. Goldman’s summary is a bit more diplomatic: “the plaintiff lawyers are in total war mode, throwing seemingly inexhaustible resources at the case to explore every possible issue and angle of liability, no matter how arcane or tangential.”
Anyway, some of the plaintiffs argued that Zuck should be personally liable based on a wacky theory that Zuck concealed and misrepresented how safe Meta’s various platforms were in a negligent manner. The judge takes the various claims against Zuck and uses this example from one of the complaints to summarize them:
In Zuckerberg’s testimony before Congress and in other public statements alleged in paragraphs 364 through 391 of the Master Complaint, Defendants Meta and Zuckerberg disclosed some facts but intentionally failed to disclose other facts, making their disclosures deceptive. In addition, Meta and Zuckerberg intentionally failed to disclose certain facts that were known only to them, which Plaintiff and their parents could not have discovered. Had the omitted information been disclosed, the injuries that Plaintiff suffered would have been avoidable and avoided. Plaintiff reasonably would have been on alert to avoid an ultimately dangerous activity. Plaintiff asserts that she has always valued her health, and makes conscious choices to avoid other common dangerous activities teenagers and pre-teens often fall victim to, such as drinking and vaping. Because Plaintiff was unaware of the dangers of Instagram, she could not take those same healthy steps to avoid a dangerous situation. Plaintiff repeats and realleges against Zuckerberg each and every allegation against Meta contained in Count 8 (paragraphs 976 through 987) and Count 9 (paragraphs 988 through 999) in the Master Complaint.
In short, the argument is that Zuck knew Meta was inherently dangerous for kids (which is nonsense, not supported by the data). If only he had said that publicly, they claim, the plaintiff kids in this case would be good little kids and no longer would use Instagram, because Zuck told them it was dangerous.
If this seems absolutely preposterous, that’s because it is.
The plaintiffs also argue that Zuckerberg is personally liable for this due to reports of how much input he has into the design of the various products:
Plaintiffs build out their theory of liability as to Zuckerberg in their opposition to defendant’s motion to dismiss. … They focus primarily on two aspects of Zuckerberg’s role in Meta. First, plaintiffs allege that, from Meta’s inception to the present, Zuckerberg has maintained tight control over design decisions, including those relating to developing user engagement that are at issue in this litigation. Second, emphasizing Zuckerberg’s role as a public figure and given his alleged knowledge of Meta’s platforms’ dangers, plaintiffs allege that his statements about Meta’s platforms’ safety—including some of those excerpted above—form a pattern of concealment that is actionable under theories of fraudulent and negligent misrepresentation and concealment.
The court, impressively, has to look at this question under various different state laws, given that the case rolls up cases from different states, and where different state laws apply to different aspects (multidistrict litigation can be nuts). And, thus, it notes that in many of the states where this claim was brought, there’s a problem: a bunch of them don’t even recognize the tort of “negligent misrepresentation by omission.” So, it’s easy to dismiss such claims against him in those states.
But, even in the states where they do have such a tort, it doesn’t go well. The court notes that various states have different standards for a “duty to disclose” but basically finds all of them wanting.
Plaintiffs propose three bases for this Court to find Zuckerberg owed a duty to disclose the information he purportedly withheld: (i) Zuckerberg’s “exclusive and superior knowledge” of how Meta’s products harm minors; (ii) Zuckerberg’s “public, partial representations concerning the safety of Meta’s products”; and (iii) Zuckerberg’s fame and public notoriety. (Dkt. No. 538 at 7– 11.) None of these approaches is supported by any state’s law. In short, plaintiffs cannot rely on Zuckerberg’s comparative knowledge alone to establish the kind of “confidential” or otherwise “special” relationship with each plaintiff that these states’ laws require. The Court sets forth the analysis supporting this conclusion as to each of plaintiffs’ three theories below.
The “exclusive and superior knowledge” is laughable, as the court points out. That only applies to duties between transacting parties, like if you’re selling someone a car and fail to disclose that the engine fell out or whatever. That’s clearly not the case here:
No plaintiff here pleads they were transacting or were otherwise engaged with Zuckerberg personally. Thus, plaintiffs fail to establish a duty to disclose based on “superior knowledge.”
Again, no luck for the supposed “public partial representations.” As the court notes, in the states that have such a concept, it involves transactions (again) between people with a “special relationship,” between the parties, where such a disclosure would make sense. That does not exist:
Again, plaintiffs have not pled any relationship—let alone a “special” one—between themselves and Zuckerberg. This theory fails
And, finally, the “fame and public notoriety” doesn’t cut it either. Indeed, the court notes that if the plaintiffs’ theory made sense here, we’d see an absolute flood of lawsuits, any time anyone who was a public figure didn’t “disclose” random information.
Plaintiffs use this broad language to extrapolate a claim here. They argue, on the one hand, that Zuckerberg “was the trusted voice on all things Meta” and “remained an approachable resource to the public,” and, on the other hand, that he accepted Meta’s duty to its customers “[b]y cultivating his roles in public life as both the embodiment of Meta and Silicon Valley’s approximation of a philosopher king.” (Dkt. No. 538 at 9–10.) Specious allusions to Plato aside, plaintiffs have not provided case law to support this interpretation of the Berger standard, nor have they meaningfully grappled with the expansion of state tort law that would result were the Court to recognize the duty they identify. To that end, plaintiffs’ theory would invert the states’ “confidential” or “special” relationship requirements by creating a duty to disclose for any individual recognizable to the public. The Court will not countenance such a novel approach here.
And thus, the claims are dismissed. The court gives the plaintiffs leave to amend based on a theory they apparently tossed in at the last minute about corporate officer liability. However, the court only notes that it wasn’t fully briefed on that issue, and thus allows the plaintiffs to file an amended complaint on that issue. Normally, if you throw in a claim super late like that, a court will say “too late, too bad,” but here it admits that because the case is so complicated, with so many moving parts, it will let it slide.
Given the aggressive nonsense of the lawyers here, it seems likely that they’ll push forward with their theory and file an amended complaint, but it seems unlikely to survive.
Unfortunately, though, this is the dumb world we live in today. Product liability claims are being used against internet companies (and their executives) because any time anything bad happens, people want to find someone to blame. And, of course, there are sketchy bottom-feeder lawyers willing to bring such cases to court, in hopes of cashing in.