Users pursue class action against Facebook under California advertising law

A class-action suit against Facebook is underway in the District Court for the Northern District of California.  On February 21, 2012, Magistrate Judge Paul S. Grewal denied a motion for a protective order to prevent the deposition of a plaintiff who is seeking to be dismissed from the case.  Fraley v. Facebook, No. C 11–1726 LHK (PSG), 2012 WL 555071 (N.D. CA Feb. 21, 2012) (Fraley II).

The case concerns the social networking site’s use of members’ names and photos in advertisements as part of its “Sponsored Stories” feature.  Plaintiffs claimed that Facebook misappropriated their images in violation of California’s Right of Publicity Statute (CRPS), Unfair Competition Law (UCL), and the doctrine of unjust enrichment, by using their names and photos in paid advertisements without their consent.  See Fraley v. Facebook, No. 11–CV–01726–LHK, 2011 WL 6303898 (N.D. CA Dec. 16, 2011) (Fraley I).

On December 16, 2011, District Judge Lucy Koh granted in part, and denied in part, Facebook’s motion to dismiss the plaintiffs’ claims.  Fraley I., 2011 WL 6303898. In upholding the claims under the CRPS and UCL, Judge Koh wrote that the plaintiffs “articulated a coherent theory of how they were economically injured by the misappropriation of their names, photographs, and likenesses for use in paid commercial endorsements.” Id. at 14.

In doing so, Judge Koh distinguished the current case from Cohen v. Facebook. No. 10-cv-5282-RS, 2011 WL 3100565 (N.D. Cal. June 28, 2011).  In Cohen, the plaintiffs were unable to show how they had suffered damages when Facebook used their names and images to promote its “Friend Finder” service.  However, in the current case, Judge Koh found that the plaintiffs “made specific allegations that their personal endorsement of Facebook advertisers’ products are worth two to three times more than traditional advertisements on Facebook.”  Fraley I, 2011 WL 6303898, at 29. Their evidence included statements from Facebook executives extolling the effectiveness of using members’ images to promote products to friends who would value their endorsement. Id. at 14–15.

As to the claim for unjust enrichment, California courts have recently held that unjust enrichment is not a stand-alone cause of action in the state.  See, e.g., Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295, 1307 (2011) (“Unjust enrichment is not a cause of action, just a restitution claim.”).  Therefore, Judge Koh granted Facebook’s motion to dismiss on the third cause of action. Fraley I, 2011 WL 6303898, at 36.

Then, in February 2012, two of the named plaintiffs in the case, Angel Fraley and Paul Wang, sought to withdraw as class representatives.  Fraley based her motion “on privacy concerns and potential embarrassment” from details that could emerge during the proceedings. Fraly II, 2012 WL 555071, at 1.  In addition, Fraley asked for a protective order barring Facebook from conducting her deposition. Id.

Judge Grewal ruled on February 21 that Fraley failed to show good cause for issuing the protective order, holding that her “legitimate desire to protect her privacy does not outweigh the relevance or propriety of [a deposition].” Id. at 3.  Moreover, “by agreeing to be a class representative, she understood that she would have to participate in discovery and provide testimony.” Id.  Following Judge Grewal’s ruling, Judge Koh granted Fraley and Wang’s motion for dismissal on March 13, leaving three plaintiffs remaining as class representatives.  See Fraley v. Facebook, No. 11–CV–01726–LHK, 2012 WL 893152 (N.D. CA Mar. 13, 2012).

The plaintiffs’ brief in support of a motion for class-certification was submitted in early March.  Keep checking this blog for updates on the case, as they develop.

Nicholas Turner is a third year law student at New York Law School.  He is a Notes & Comments editor of Law Review and a John Marshall Harlan Scholar.  Mr. Turner came in second in the 2011 ABA Torts, Insurance, and Compensation Law Section Writing contest.  He was a 2011 Review Editor of the school’s Global Human Rights Bulletin.  Mr. Turner is proficient in French.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.