Facebook 'Like' litigation transferred to California via Murphy order

Ann Maher Apr. 4, 2012, 12:39pm


EAST ST. LOUIS - U.S. District Judge Patrick Murphy has pulled the plug on Facebook "Like" litigation in the Southern District of Illinois.

Last month he granted the social network's motion to transfer a class action lawsuit to the Northern District of California and denied plaintiff attorney Stephen Tillery's motion to reconsider the order.

"Because the Court has entered an order transferring this case to the Northern District of California, and the Clerk of Court has transmitted the record of this case to the Northern District of California, the Court no longer has jurisdiction of the case," Murphy wrote on March 12. "Plaintiffs are ordered to make no further filings in this case in this Court."

Seeking to assess billions of dollars in fines, Tillery filed suit against Facebook last June on behalf of parents of two teenagers, claiming Facebook misappropriated their names and likenesses for commercial purposes without consent.

The suit alleged Facebook improperly advertised what the teens liked. Among other things, the suit claimed 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.

Korein Tillery attorney Aaron Zigler, in opposition to Facebook's motion to transfer, argued that his clients would be "significantly" 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.

But, Murphy wrote in his order that plaintiffs had been put on notice through Facebook's Terms of Service (TOS) that any claims against Facebook would be litigated exclusively in a state or federal court located in Santa Clara County, Calif. He also wrote that the time for plaintiffs to have considered whether a forum selection clause in Facebook's TOS would disadvantage them was when they agreed to the TOS.

"Whether or not Plaintiffs actually read Facebook's TOS is irrelevant, of course, to the matter of the conspicuousness of the TOS and thus Plaintiffs' constructive knowledge of the TOS, and Plaintiffs are bound by Facebook's TOS whether Plaintiffs read them or not," Murphy wrote in his transfer order.

"[T]he selected forum does not make it so gravely difficult and inconvenient that [Plaintiffs] will for all practical purposes be deprived of [their] day in court.

"Plaintiffs' counsel, the Court is well aware, are sophisticated class-action attorneys who are accustomed to litigating throughout the United States."

He also wrote that "additional expense" does not necessarily invalidate a forum-selection clause.

"Whatever inconvenience [Plaintiffs] would suffer by being forced to litigate in a court in [California] was foreseeable at the time that [they] agreed to" the forum-selection clause in Facebook's TOS, Murphy wrote.

Facebook is represented by Matthew Brown of Cooley LLP in San Francisco and locally by Charles J. Swartwout of Boyle Brasher in Belleville, and others.

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