Judge Garaufis (NYLJ/Rick Kopstein)
A prominent Brooklyn federal judge lambasted Facebook and law firm Kirkland & Ellis for sending a junior associate to court to defend the social media company against allegations that it facilitated communication among terrorists.
“It is outrageous and irresponsible and insulting, and you’re not the person doing the insulting. It’s whoever sent you here,” Eastern District Judge Nicholas Garaufis told Kirkland associate Thomas Aulden Burcher-DuPont.
“You tell your folks back at Kirkland & Ellis that I don’t much like the idea that they think so little of this court that they didn’t send a partner here to talk about this kind of a problem which implicates international terrorism and the murder of innocent people in Israel and other places,” Garaufis added.
The judge was also critical of Facebook for waiting for litigation to address the complaints by plaintiffs, asking, ‘”Don’t you have a social responsibility as a public citizen of the world to find solutions to these plaintiffs’ problems without having these plaintiffs come here to me in Brooklyn?”
Read the transcript of the judge’s remarks.
The conference on Thursday involved two cases, one brought by the estates and family members of American citizens killed in attacks, and the other brought by 20,000 Israelis.
Both suits claim Facebook provided support and resources to terrorists. The plaintiffs allege Facebook’s algorithms connect the terrorists with posts that incite them to kill Jews and that Facebook has refused to take down the posts.
After questioning the plaintiffs’ attorney about whether the cases are barred by a statute, Garaufis asked Burcher-DuPont whether Facebook had a “moral obligation” to help curtail some dangerous communications among its users.
“Let us put the law aside a minute and talk about reality here,” the judge said, adding social media “has the potential of hooking people up to do very, very dangerous, bad and harmful things to other people in terms of international and domestic terrorism. So shouldn’t you be like working this out as opposed to litigating it?“
Burcher-DuPont responded, “I believe our position is that terrorism is an extremely unfortunate circumstance—”
The judge cut in, “It’s not unfortunate. It’s dangerous and killing a lot of people and courts have very limited ability to thwart it.”
Garaufis, after learning that Burcher-DuPont had been at Kirkland for a year, then remarked that Kirkland sent a “first-year associate” to address a federal judge, and he wanted to speak with a partner who talks to Facebook senior management.
Burcher-DuPont explained that a lead attorney was called away for an emergency hearing in Texas. According to court records, Kirkland partners Shireen Barday and Kenneth Winn Allen are also defending Facebook in the cases.
But Garaufis wasn’t satisfied.
“It’s not a good start,” Garaufis said. “You can tell your exalted partners over there, that they put you here and I’ve got to lecture you. I want to lecture them. I’ve been a lawyer for 41 years, and I’ve been a judge for 16 years, and I’m not having this discussion with you.”
The judge scheduled a Sept. 27 conference. “Maybe Kirkland & Ellis can scrounge up a partner who is not busy with working on some project in Texas to come see a lowly United States district judge in the Eastern District of New York,” he added.
A Kirkland spokeswoman declined to comment.
In a statement,Facebook said it was committed to providing a service where people feel safe. “Our community standards make clear that there is no place on Facebook for groups that engage in terrorist activity or for content that expresses support for such activity, and we take swift action to remove this content when it’s reported to us. We sympathize with the victims of these horrible crimes,” Facebook said in a statement.
A Facebook representative noted that Burcher-DuPont is actually a fourth-year associate, having worked at another law firm, Mayer Brown, earlier in his career. The representative also noted that the discussion was a conference to schedule briefing, not an oral argument.
A lawyer for the plaintiffs, Robert Tolchin of the Berkman Law Office, declined to comment on Kirkland. He said Thursday’s conference “was a very positive sign that the judge wants to get to the substance of the case” and the questions of “morality and responsible corporate citizenship” it raised.