MDL status denied in Facebook 'like' class actions

Steve Korris Oct. 20, 2011, 2:10am




EAST ST. LOUIS – California lawyers who set out to compete against Stephen Tillery of St. Louis for leadership of a class action against Facebook have joined Tillery's team.

Mark Tamblyn and Ian Barlow, of Wexler Wallace in Sacramento, entered their appearances in Tillery's case at federal court in East St. Louis on Oct. 7 and Oct. 12.

Tillery filed suit in June, on behalf of two mothers alleging Facebook uses names and likenesses of minors without consent of their parents.

Tamblyn and Barlow filed a similar suit for a New Jersey father at federal court in San Francisco in July, but voluntarily dismissed it in August.

Two class actions against Facebook remain pending at federal court in San Francisco.

Facebook sought to consolidate Tillery's case with those at San Francisco, but the U.S. Judicial Panel on Multi District Litigation denied consolidation on Oct. 13.

Los Angeles lawyers started the litigation last November, on behalf of adults alleging Facebook misappropriated names and likenesses through its Friend Finder service.

Facebook moved to dismiss the complaint, arguing it alleged no injury.

District Judge Richard Seeborg dismissed it in June but granted leave to amend it, telling lawyers they must at a minimum allege mental anguish.

They amended the complaint in July, and Facebook lawyer Matthew Brown of San Francisco moved to dismiss it in August.

"Plaintiffs do not allege any hurt feelings or other actual injury," he wrote.

"Nor do they allege that the right to use their names or likenesses has any readily ascertainable value or was impaired in any way," he wrote.

Jay Spillane and Eric Carlson, of Spillane Weingarten in Los Angeles, answered that they adequately pleaded violation of rights of publicity.

"The tort in question, originally conceived as an aspect of the multi faceted law of privacy, over time also became known as a right of publicity, wherein name and likeness is seen as a form of property, misappropriation of which results in economic loss," they wrote on Aug. 23.

"The right of publicity is available to all, celebrity and non celebrity alike, each of whom may plead economic loss, regardless of whether mental anguish is also alleged," they wrote.

They wrote that they pleaded that a property right having value was taken.

"Plaintiffs should be given an opportunity to adduce evidence of such value," they wrote.

Brown replied in September that they squandered an opportunity to fix the complaint and presented what was, in reality, a motion for reconsideration.

He wrote that they alleged no economic injury and no emotional harm.

"Plaintiffs' plea for discovery is a tacit acknowledgement that the first amended complaint fails to adequately allege injury and does not state a claim for relief," Brown wrote.

Seeborg held a hearing on Sept. 15, and took it under submission.

Two weeks later, District Judge Lucy Koh held a hearing and took under submission a motion to dismiss a suit San Francisco and Sacramento lawyers filed in March.

The suit alleges misappropriation through Facebook's Sponsored Stories service.

The complaint stated, "Sponsored Stories is a deceptive phrase; Sponsored Stories are neither sponsored in the sense that a benefit is being conveyed free of charge, nor are they stories in the customary sense of the word."

In response, Facebook invoked constitutional protection of free speech.

"Plaintiffs' claim puts at issue the right of users to communicate with their friends, and Facebook's right to republish content in which users' friends have a legitimate interest," Brown wrote.

"Plaintiffs also have not alleged that they lost any money or property, nor could they because Facebook is, and always has been, a free service."

Facebook also raised a free speech defense in the Illinois case, and Tillery associate Aaron Zigler disputed it.

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

"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.

District Judge Patrick Murphy has not set a hearing.

He presides over Tillery's case while his wife, Patricia Murphy of Energy, teams with Tillery in a lawsuit over weed killer atrazine before District Judge Phil Gilbert.

District Judge Lucy Koh held a hearing on Sept. 29, on a motion to dismiss the Sponsored Stories action.

Action in all three cases slowed while multi district judges considered consolidation.

They denied it, finding that "centralization does not appear necessary, given the limited overlap among the three putative classes."

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