As Facebook goes public, attorneys wrangle in class action

Ann Maher Feb. 2, 2012, 7:46am

Facebook CEO and co-founder Mark Zuckerberg

EAST ST. LOUIS – While Facebook hopes to raise as much as $10 billion when it begins selling shares, attorneys pursuing a class action against the social network seek to assess billions of dollars in fines.

St. Louis attorney Stephen Tillery sued Facebook last year in the Southern District of Illinois for parents of two teenagers, claiming Facebook misappropriated their names and likenesses for commercial purposes without consent.

The class action suit alleges Facebook improperly advertised what the teens liked. Plaintiffs argue that state law prohibits children from giving Facebook permission to use their names and pictures in advertisements as Facebook does in its social ads and sponsored stories.

Facebook is trying to get the case filed here transferred to the Northern District of California.

Korein Tillery attorney Aaron Zigler, in opposition to Facebook's motion to transfer, argues that his clients would be inconvenienced by traveling to California to pursue a class action against Facebook.

Zigler wrote that costs of litigation would "needlessly increase" if the case were transferred.

"Transfer of this action to California would significantly inconvenience the guardians and effectively prevent them from adequately supervising the litigation: California counsel would be required; the guardians would be unable to attend pre-trial hearings and would be burdened to attend any trial," Zigler wrote last month in opposition to Facebook's motion to transfer.

"The cost for the hotels, food, transportation, and local counsel fees that would be required to litigate this matter in San Francisco far exceeds the expense of comparable services in St. Louis."

Zigler also argued that the interests of justice do not favor transfer.

"The most recent Federal Judicial Caseload Statistics show the docket conditions of the Northern District of California to be no better – in fact slightly worse – than this Court," Zigler wrote. "The median time to trial in the Northern District of California is 25.3 months; here it is 23.0."

Zigler argues that under California law, "minors are statutorily forbidden from entering into a contract that purports to 'give a delegation of power' or that relates to 'any personal property not in the immediate possession or control of the minor'."

"...Facebook devotes significant attention to the argument that Plaintiffs are bound by the forum-selection clause found in its Statement of Rights and Responsibilities (SRR)," Zigler wrote. "But Facebook's argument deserves little in the way of a response as it is based on a fundamental misunderstanding of the nature of the purported contract."

Facebook attorney Matthew D. Brown of San Francisco fired back at Zigler's argument saying that plaintiffs cannot disaffirm the SRR for two reasons:

"1) Their use of Facebook since filing this lawsuit is irreconcilable with the 'unequivocal intent to repudiate' the SRR that would be required to disaffirm it; and 2) Their longstanding receipt of the SRR's benefits, before and after the lawsuit, precludes disaffirmance."'

Brown wrote in December that one of the plaintiffs logged into Facebook 185 times since the parents sued, and the other logged in 94 times.

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