Facebook's Response in Court Less Conciliatory Than Zuckerberg's Planned Congressional Testimony
As Facebook CEO Mark Zuckerberg has prepared to apologize this week on Capitol Hill over security issues, the social media giant's lawyers struck a…
April 09, 2018 at 05:03 PM
4 minute read
As Facebook CEO Mark Zuckerberg has prepared to apologize this week on Capitol Hill over security issues, the social media giant's lawyers struck a less conciliatory tone in court, where about 20 consumer class actions are pending over the Cambridge Analytica debacle.
In prepared testimony released ahead of Wednesday's hearing before the U.S. House of Representatives Committee on Energy and Commerce, Zuckerberg apologized for Cambridge Analytica and other lapses that led to fake news, foreign interference in elections and hate speech on Facebook. “We didn't take a broad enough view of our responsibility, and that was a big mistake,” Zuckerberg said. “It was my mistake, and I'm sorry.” Zuckerberg also faces a joint hearing of the U.S. Senate Commerce and Judiciary committees on Tuesday.
But in court papers filed on Friday before the U.S. Judicial Panel on Multidistrict Litigation, which plaintiffs lawyers have asked to coordinate the consumer cases over Cambridge Analytica, Facebook lead counsel Orin Snyder of Gibson, Dunn & Crutcher in New York took a much more forceful stance in defending his client.
“Facebook is strongly committed to protecting users' information, and it has already taken and continues to take substantial actions to address the conduct that gave rise to these cases,” he wrote. “But the lawsuits that have been filed against Facebook are misguided: Facebook broke no laws and violated no legal duties. And although Cambridge Analytica and other related actors used data for purposes that Facebook and its users never authorized, there was no data breach—no unauthorized access to Facebook's systems and no hacking of user data.”
Orin Snyder.
He went on to say that third parties, such as Aleksandr Kogan, the developer of the app that collected data through a personality test, violated Facebook's terms of service in sharing the information with Cambridge Analytica, a political consulting firm with ties to Trump's presidential campaign in 2016. He also claimed Kogan and his company assured Facebook the information had been deleted.
The suits primarily name Facebook and Cambridge Analytica, but Kogan or his company, Global Science Research, were defendants in at least five cases. Zuckerberg, Cambridge Analytica investor Robert Mercer and former Trump campaign aide Steve Bannon also were defendants in a handful of cases.
Snyder and Facebook did not respond to requests for comment. Zuckerberg has previously given assurances of change, stating that Facebook would begin verifying identities of political advertisers and is simplifying its privacy and security settings.
Plaintiffs attorney Michael Sobol of San Francisco's Lieff Cabraser Heimann & Bernstein and Hank Bates of Carney, Bates & Pulliam in Little Rock, Arkansas, have moved to coordinate all the consumer cases to U.S. District Judge Vince Chhabria in the Northern District of California. Those cases, which are among numerous lawsuits and legal probes in the United States and the United Kingdom over the scandal, allege Facebook violated consumer fraud and privacy laws in allowing Cambridge Analytica to use data from 87 million users. They are pending in five states, including California, Texas and New Jersey.
Facebook supports the move but requested U.S. District Judge Edward Davila, to whom the MDL panel last week assigned 61 lawsuits against Apple Inc. brought over alleged defects in iPhone batteries. Facebook noted that Davila is overseeing two related shareholder cases and that many relevant witnesses, and its headquarters, would be in Silicon Valley.
But in supporting an MDL, Snyder noted that each case suffered “from similar deficiencies,” primarily involving certification of a nationwide class and failure to assert that anyone was injured from the alleged breach.
“And all of the putative classes suffer from the same weaknesses that, in Facebook's view, will make class certification impossible, including the common struggle to identify any cognizable theory of injury or damages, and the myriad individualized issues, including issues of consent, that will predominate over any classwide concerns,” he wrote.
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