Facebook law issues 'not yet ripe' for decision, Tillery lawyer says

Steve Korris Sep. 8, 2011, 6:21am


EAST ST. LOUIS – Aaron Zigler of Korein Tillery class action law firm claims owners of Facebook break state law when they publish product endorsements of adolescents, but he hasn't identified the law he believes they break.

"In this case, the reason plaintiffs have not specified a particular statute is simple: this case may involve many state statutes and common law claims, but these raise choice of law issues that are not yet ripe for decision," he wrote on Sept. 6.

He opposed a motion from Facebook for a more definite statement in a federal class action he proposes on behalf of mothers Melissa Dawes and Jennifer DeYong.

Dawes and DeYong claim Facebook collected personal information from their children and used it to produce advertisements without their consent.

"These allegations make it clear that plaintiffs are pursuing claims of misappropriation of their identity and accordingly put Facebook on notice of their claim," Zigler wrote.

"Nothing more is required," he wrote.

He wrote that rules of civil procedure discourage drafting of complaints with multiple counts that specify statutes.

He also rejected Facebook's argument that his clients lack standing because they suffered no injury.

He wrote that they don't have to show any monetary, emotional or physical injury.

"Plaintiffs properly allege that Facebook's conduct infringed on plaintiffs' statutory right to be free of misappropriation of their identity," he wrote.

"The judiciary can redress that injury by ordering Facebook to pay actual or statutory damages to the victims," he wrote.

He also disputed Facebook's plea for First Amendment protection of free speech.

"Facebook is simply incorrect in claiming that through its use of names and likenesses, Facebook is simply republishing the plaintiffs' statements," he wrote.

"When Facebook takes that user information and turns it into a predesigned marketing tool to sell to the highest bidder, it is not simply assisting children in expressing themselves," he wrote.

In August, Facebook lawyer Matthew Brown of San Francisco described the complaint as a conglomeration of legal theories.

"Plaintiffs do not allege which advertisements their names or likenesses were purportedly used in connection with, nor when the advertisements appeared," Brown wrote.

He wrote that users provided the content Facebook was accused of improperly publishing.

"Facebook provides a forum for authentic endorsements by persons who, without pecuniary motive, have expressed their approval of a particular product, service or cause," he wrote.

He wrote that the information is republished only to a user's friends.

"Plaintiffs' vague references to unspecified state law render their claims unintelligible, prejudice Facebook's ability to prepare its defense, and will hinder the court's efforts to evaluate the sufficiency of plaintiffs' claims," he wrote.

Facebook's motion remains pending before U.S. District Judge Patrick Murphy.

His wife, lawyer Patricia Murphy of Energy, currently works in association with Korein Tillery leader Stephen Tillery in litigation against Syngenta Crop Protection.

District Judge Phil Gilbert of Benton presides over the Syngenta litigation.

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