Ninth Circuit Judge Richard Tallman
Ninth Circuit Judge Richard Tallman ()

SAN FRANCISCO — Plaintiffs attorneys hope to make groundbreaking new law when they face off with social media titans Facebook and Zynga in two privacy class actions set for argument next week before the U.S. Court of Appeals for the Ninth Circuit.

But Kassra Nassiri of Nassiri & Jung and Adam Levitt of Grant & Eisenhofer appear to be facing an uphill battle. They’ve drawn two of the court’s more conservative judges, and last week the panel issued an order consolidating arguments in the two cases and shortening overall time from 60 minutes to 40.

Nassiri and Levitt filed a joint motion Friday asking that their separate arguments be restored. “While In re: Facebook Privacy Litigation and In re: Zynga Privacy Litigation share several factual similarities, they are separate cases, alleging claims based on many different facts, and seeking certification of different classes,” they wrote.

The two cases were filed in 2010 shortly after the Wall Street Journal revealed that Facebook user IDs were being transferred to advertisers via HTTP referers when Facebook users clicked on ads or used Facebook apps like Zynga. Plaintiffs argue that advertisers could use the unique IDs contained in the referers to identify individual users.

“Facebook broke its agreement not to disclose its users’ personally-identifiable information to advertisers, in violation of federal and state law,” Nassiri wrote in briefs in the Facebook case.

Facebook and Zynga argue that their users haven’t suffered any injury, that Facebook has made clear that user IDs are public information, and they could not have broken federal privacy laws because users were intending to communicate with Facebook, Zynga or the advertisers.

U.S. District Judge James Ware dismissed both cases in 2011.

One key difference between the cases is that Nassiri alleges Facebook breached its contract and violated California’s Unfair Competition Law. Ware dismissed on the ground that users didn’t lose any money or property. But Nassiri argues that personal identifying information has substantial value to advertisers, and that consumers could sell it themselves if social networking companies weren’t deceiving them into giving it away.

“I think by now everyone understands this is how Facebook has reached the astronomical valuation that it has,” he said. “I hope it’s time a circuit court says, ‘Wait a second, this personal information is valuable.’”

He’ll be making that argument to Judges Richard Tallman, Sandra Ikuta and Arthur Alarcon. Tallman and Ikuta tend toward the conservative side of the Ninth Circuit spectrum. It was Ikuta who led the Ninth Circuit dissenters in the Dukes v. Walmart class action, with the Supreme Court ultimately adopting her view.

If the court were prepared to take that groundbreaking step, one might expect more argument time, rather than less. But, Nassiri points out, the Ninth Circuit skips oral argument altogether in many cases.

If the court doesn’t allow redress, he says, “it has the effect of making these privacy policies worthless.”

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