PHILADELPHIA – An antitrust lawsuit filed against Facebook and other media entities by the members of an online group promoting Hydroxychloroquine as a treatment for COVID-19, has been transferred to a federal court in Northern California.
Sally Loveland of Los Angeles, Calif., Sharon Cheatle of St. John’s County, Fla. Janine Cortese of Hendersonville, N.C., Tyler Boyle of Philadelphia and Steve McCann of Wallingford collectively first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Dec. 11, 2020 versus Facebook and its CEO Mark Zuckerberg of Menlo Park, Calif., FactCheck.Org of Philadelphia, The Poynter Institute of St. Petersburg, Fla. and Lead Stories, LLC, of Colorado Springs, Colo.
The plaintiffs allege that they are or were members of a Facebook group called “Hydroxychloroquine Access Now” (HAN). The complaint describes Hydroxychloroquine Access Now as a Facebook group formed in May of 2020 which now has about 4,300 members to provide a forum for discussion and exchange of information related to COVID-19, with a focus on various treatment strategies.
Prior to filing the complaint, members of HAN promoted the benefits of various treatments like Hydroxychloroquine, Ivermectin and Vitamin-D in combating the COVID-19 pandemic.
However, the plaintiffs alleged that “the defendants began a campaign of censorship and suppression against many of the concepts that they espoused in relationship to HAN, and that this campaign began as early as May 2020 when the group was formed.”
“They allege that defendants covertly demoted and/or banned content that they posted, administered, or plaintiffs aver, for example, that defendants censored their posts by removing search features for HAN so that the group was buried in Facebook’s platform where the public could not find its content,” U.S. District Court for the Eastern District of Pennsylvania Judge John M. Younge said.
“They further allege that their posts were subject to a fact-checking process through which they were marked with ‘warning labels’ identifying the content as ‘false,’ ‘fake,’ ‘misinformation,’ or ‘hoax.’ These warning labels were visible to the public when viewing plaintiffs’ Facebook posts.”
The plaintiffs filed a sprawling antitrust suit against Facebook, seeking various forms of relief, including damages of no less than $5 million.
Facebook filed a motion to transfer the case to a California court on March 10, citing a forum selection clause contained in its Terms of Agreement, which state that any claims against the social media company must be litigated either in the U.S. District Court for the Northern District of California or a state court located in San Mateo County.
The plaintiffs “attacked the validity of the forum selection clause by arguing that it is a contract of adhesion, procured by overreach and fraud, which should be strictly construed against Facebook,” according to Younge.
“The forum selection clause as it appears in Facebook’s user agreement and as cited by the defendants in their motion to transfer venue is valid and enforceable. On the issue of validity and enforceability, several district courts have previously addressed this issue and unequivocally reached the conclusion that Facebook’s forum selection clause is valid and enforceable,” Younge said.
“Any potential argument that the forum selection clause should be set aside based on plaintiffs’ purported failure to read or understand the ramifications of its terms would be unpersuasive.”
Younge explained that the plaintiffs’ claims and the factual allegations on which they are based arise entirely from their use of Facebook’s platform.
Furthermore, Younge stated that the lead plaintiff being based in California and other practical considerations suggest that a case transfer would be a proper course of action.
“Plaintiffs…have offered no basis to suggest, much less establish, that the Court in the Northern District of California is incapable of addressing the purported constitutional violations averred in this matter,” Younge said.
“Likewise, there is nothing to show that the Northern District of California Court is under any improper influence based on Facebook’s local presence. Any argument that the COVID-19 pandemic is or was a regional problem with geographic ties to Pennsylvania is inaccurate; COVID-19 is a global pandemic.”
The plaintiffs are represented by Bradford L. Geyer in Cinnaminson, N.J.
The defendants are represented by Seamus C. Duffy and Ellen L. Pierce of Akin Gump Strauss Hauer & Feld in Philadelphia, Malcolm J. Gross and Samuel E. Cohen of Gross McKinley in Allentown, Carol Jean LoCicero and Mark R. Caramanica of Thomas & LoCicero in Miami, Fla., plus Joseph A. O’Keefe and Justin T. Bailey of Sanders Law Firm, in Colorado Springs, Colo.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-06260
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com