SAN FRANCISCO, Calif. – In an order issued Monday, US District Judge William Alsup granted summary judgement to Instagram, Facebook Operations and Meta Platforms, Inc. (collectively, the “Meta Defendants”) in a proposed class action brought by adult performers Alana Evans, Ruby and Kelly Pierce.
The lawsuit was initially filed in February of 2022. In the original complaint, the plaintiffs wrote the case “is about a corrupt business gaining an enormous advantage over its competitors by wrongfully manipulating behind-the-scenes databases, and in the process, harming thousands of small entrepreneurs who rely on social media to promote sales of their product and earn a living.”
Throughout the ensuring legal wranglings, the plaintiffs have had difficulty obtaining and presenting evidence to support their claims, in part because the Meta Defendants simply didn’t archive or store certain data which might have been useful to the plaintiffs, a fact noted by Alsup in his decision.
Even without the Meta data retention practices (which Alsup found “disturbing,” per his order), the judge found the plaintiffs’ complaint deficient, however.
Referring to himself, Alsup wrote in his order that the “undersigned judge expressed both concern towards Meta’s recordkeeping practices and a degree of skepticism that neither side was able to ascertain whether any of the plaintiffs appeared on Meta’s DOI (“dangerous individuals or organizations”) List during the relevant period.”
“Among other questions, the undersigned judge asked Meta defendants: (1) where in the summary judgment record there is anything under oath explaining that the DOI List is a “living document” and (2) if there was or is now any way to retrieve an archived version of the DOI List,” Alsup noted. “Counsel for Meta defendants repeated that the DOI List is a “living document” but they did not provide a declaration or a sworn statement stating such in the record. Moreover, counsel for Meta defendants confirmed that because they do not have a practice of archiving copies of the DOI List, they are unable to determine who was included in the List during the relevant period. They were, however, able to review versions of the list in August 2022, November 2023, and January 2024 and confirmed that none of the plaintiffs or their platforms appeared on the List as of those searches.”
Alsup also observe that he had “asked plaintiffs what evidence they have to prove that they experienced a precipitous drop off in web traffic.”
“Counsel for plaintiffs responded that they could not provide a clear answer because Meta does not keep referral traffic for more than forty days, nor does it retain engagement metrics data for more than ninety days,” Alsup wrote. “On both of these issues—the DOI List and plaintiffs’ referral traffic data—plaintiffs’ counsel had taken zero depositions. Characterizing it as a deliberate and strategic decision, plaintiffs’ counsel maintained that they did not wish to give Meta defendants an opportunity to change their responses to interrogatories or document requests through depositions.”
Alsup also noted that the lawsuit “began with spectacular allegations that OnlyFans had bribed Meta to blacklist adult entertainers who also used other competing sites.”
“This was, in a way, to ‘monopolize’ the adult entertainment market,” Alsup wrote. “After hearing this allegation at least twice, the Court instructed plaintiffs’ counsel to go present proof of such a bribe and to specifically subpoena the banks that were allegedly involved in laundering the bribe. Plaintiffs’ counsel were given the opportunity and eventually reported that they could find no proof of the bribe and withdrew the allegation. The complaint then shifted to claiming that Meta, for its own reasons, had discriminated against plaintiffs by blacklisting them. Again, the judge gave ample opportunities to plaintiffs’ counsel to prove up this claim. Again, plaintiffs’ counsel failed to find any poof. This is the basic reason that summary judgment, at long last, must be GRANTED to Meta defendants.”
Alsup clearly was dissatisfied with Meta’s data retention practices, writing that it is “disturbing that Meta failed to archive a daily copy of the DOI List so that in future litigation (or consultations with federal or state law enforcement) it could identify when someone was on the list. It would have been easy to save the list at the end of each day.”
That deficiency alone couldn’t rescue the plaintiffs’ complaint, however.
“Nevertheless, this order has no choice but to grant Meta defendants’ motion for summary judgment; it does so in spite of and not because of the questionable recordkeeping,” Alsup wrote. “Plaintiffs have failed to demonstrate a genuine issue of material fact with respect to their three claims for relief.”
Click here to read Judge Alsup’s order in its entirety.
Gavel image by Sora Shimazaki from Pexels
