Facebook Successfully Questions MDL Guardrails

Meta Platforms Inc. convinced the Texas Supreme Court to remove a sex trafficking lawsuit from the state’s multidistrict litigation court system, where the social media platform Facebook was named a defendant.

Counsel for Meta, Hunton Andrews Kurth, noted in its petition that the Supreme court had never exercised its exclusive jurisdiction to review multidistrict litigation panel decisions.

“As a result, it has neither approved nor rejected the standards the MDL panel adopted in scores of written opinions before 2016, and the panel has almost stopped explaining its decisions since that date,” according to in Meta’s brief on merits.

Novel Theory

Since 2016, the MDL panel issued 61 opinions on transfers— and only seven are more descriptive than three sentences, noted Hunton attorney Kelly Sandill. Sandill argued the case before the supreme court.

Meta emphasized the “novel theory in this case—that a social media company is liable for alleged knowing participation in sex trafficking … can’t be lumped together with different claims based on Salesforce’s different services with no explanation by any court.”

Bland concluded the case involving Facebook as a defendant did not meet the commonality requirements necessary to include it in the MDL that Jane Doe defendants brought to sue Salesforce Inc.

“Accordingly, we conditionally grant relief and direct the MDL panel to remand the tag-along case to its original trial court,” Bland wrote.

The case involving Facebook concerns a Jane Doe plaintiff. She alleges the trafficker groomed her through Facebook, and that the social media platform lacked sufficient guardrails for access to minors’ accounts. She was convinced to meet the trafficker in person.

Within hours of their online conversation, the trafficker advertised Doe for prostitution on the social media website Backpage, which is unaffiliated with Facebook, according to the suit.

“As the result of the trafficker’s activities, Doe was sexually assaulted by multiple perpetrators,” the Bland opinion recounts. The assaults occurred at the Texas Pearl Hotel in Houston, which is also a named defendant.

The Difference

Three years after the lawsuit was filed in a Harris County district court, Texas Pearl filed a notice of transfer of tag-along case, adding it to a class of existing lawsuits brought against Salesforce, a provider of customer-relationship management software. Doe joined Texas Pearl’s request.

The MDL cases against various hotels and Salesforce generally allege that Salesforce sold software to Backpage that facilitated the latter company’s involvement in human trafficking. They also allege Salesforce failed to take steps to prevent use of its software for illegal purposes.

The MDL plaintiffs also allege the hotel defendants facilitated trafficking.

However, Bland noted that in none of the other cases are Facebook or Texas Pearl named as defendants.

The Jane Doe in the Facebook lawsuit is represented by Bracewell attorneys Warren W. Harris and Walter A. Simons. Doe contends in her brief that a common pattern of criminal conduct suffices to establish removal to the MDL. She alleged that as in the other cases, sex-trafficking victims were criminally exploited through Backpage at various hotels.

“Doe further contends that Backpage’s website and industry standards designed to prevent sex trafficking will be common areas of discovery,” the plaintiff asserted.

Bland acknowledged that evidence of industry standards and the activity of the unnamed third party, Backpage, might be relevant. However, she continued, “The application of this evidence to any fact question will be different because none of the criminal activity alleged in the MDL involves either Facebook or Texas Pearl.”

At a general level, Bland found, the cases involve criminal exploitation of minors that took place in Texas hotels through the use of social media— but that’s where the commonality ends.

“The MDL … does not involve similar incidents of trafficking, premises, time periods, or fact witnesses,” Bland found.

Doe pointed to discovery of industry policies on standard of care and observed each hotel defendant was involved in a sex-trafficking scheme that resulted in similar monetary benefits.

In response, Bland noted the standard of care evidence did not present a common fact issue that resolves a given hotel owner’s duty or breach, which requires an intentional or knowing benefit.

Attorneys for the opposing sides did not immediately respond to requests for comment.

‘Rabbit Hole’

Meanwhile, four of the Jane Doe cases now in federal court led to a U.S. Court of Appeals for the Fifth Circuit ruling on Dec. 19 upholding a district court’s denial of a Salesforce motion for summary judgment.

The heart of Salesforce’s argument is that section 230 of the Communications Decency Act grants Salesforce broad immunity in all cases arising from the publication of third-party content.

According to Salesforce, if the only link between a plaintiff’s harm and the defendant is third-party content, the Fifth Circuit noted. But what if the defendant’s conduct fell squarely within section 230’s text? To say that in such situations section 230 would not provide immunity “taxes the credulity of the credulous,” the court said.

The Fifth Circuit found, “Because neither the text of section 230 nor our precedent requires such a meandering analytical framework—that in any event leads right back to the proper framework—we decline Salesforce’s invitation to go down the rabbit hole.”