E.K.D. ex rel. Dawes v. Facebook, Inc.

885 F. Supp. 2d 894, 2012 WL 3242392, 2012 U.S. Dist. LEXIS 113761
CourtDistrict Court, S.D. Illinois
DecidedMarch 8, 2012
DocketCivil No. 11-461-GPM
StatusPublished
Cited by8 cases

This text of 885 F. Supp. 2d 894 (E.K.D. ex rel. Dawes v. Facebook, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.K.D. ex rel. Dawes v. Facebook, Inc., 885 F. Supp. 2d 894, 2012 WL 3242392, 2012 U.S. Dist. LEXIS 113761 (S.D. Ill. 2012).

Opinion

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. Introduction

This case is before the Court on the motion to transfer brought by Defendant Facebook, Inc. (“Facebook”) (Doc. 57). Plaintiffs E.K.D., by her next friend Melissa K. Dawes, and C.M.D., by his next friend Jennifer E. Deyong, who bring this action individually and on behalf of all others similarly situated, have responded to the motion to transfer. Having considered the matter carefully, the Court now rules as follows.

II. Background

According to the record of this case, Facebook operates facebook.com, a free, Internet-based social networking site with over 153 million members in the United States; over fourteen million facebook.com users in the United States are under the age of eighteen. To join facebook.com, a user must provide his or her name, age, gender, and a valid e-mail address, and click a button leading to a message stating that “By clicking Sign Up, you are indicating that you have read and agree to” Face-book’s Terms of Service (“TOS”), with a hyperlink to Faeebook’s TOS. Doc. 63 at 2 ¶ 6. Once registered, a facebook.com user receives a “profile” page, may upload a “profile photo” of himself or herself, and may connect with other facebook.com users by approving them as “friends.” Also, facebook.com allows users to share information with friends. Users may “post” by adding text, images, videos, and hyperlinks to their own profile page, “check-in” by announcing their geographi[897]*897cal location using the website’s “places” feature, and “like” content by clicking on a thumbs-up button that appears next to certain items on the Internet, both within facebook.com and on external sites. When facebook.com users take one of these actions, facebook.com generates a “story,” which appears on their friends’ “news feed.”

Facebook earns revenue primarily through the sale of targeted advertising that appears on facebook.com users’ profile pages. Plaintiffs challenge one of Facebook’s advertising services in particular, known as “sponsored stories,” which Face-book launched on January 25, 2011, and which was enabled for all facebook.com users by default. A sponsored story is a form of paid advertisement that appears on a facebook.com user’s profile page and that generally consists of another friend’s name, profile picture, and an assertion that the person “likes” the advertiser. A sponsored story may be generated whenever a facebook.com user utilizes the website’s post, like, or check-in features, or uses an application or plays a game that integrates with facebook.com, and the content relates to an advertiser in some way determined by Facebook. Thus, if a facebook.com user clicks on the “like” button on a company’s website, the facebook.com user’s user name and profile picture, which bears the user’s likeness, will appear on the face-book.com pages of the user’s friends in a sponsored story advertisement stating that the user likes the company, operating in effect as an endorsement by the face-book.com user of the company or its products and services to the facebook.com user’s friends. Such sponsored story advertisements are more valuable than standard facebook.com advertisements, and Facebook profits from selling this added value to advertisers.

Users of facebook.com can modify the commercial use of their names and likenesses by Facebook, but they cannot opt out of the sponsored stories feature of the website entirely. Specifically, Facebook’s TOS advise facebook.com users that “You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.” Doc. 63-1 at 4 § 10(1). Plaintiffs, who are minors residing in Illinois and users of faeebook.com, allege that Facebook’s practice of misappropriating their names and likenesses for commercial endorsements without their consent violates their right of privacy under the laws of various states. Federal subject matter jurisdiction is proper in this case on the basis of 28 U.S.C. § 1332, as amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).1 Plaintiffs seek class certification:

The proposed class is defined as follows:

All facebook users, who during a time that facebook records identified them to be under the age of 18, had their name used in connection with a facebook advertisement. (the “Class” or “Class Members”).
Alternatively, Plaintiffs seek certification of a class defined as follows:
[898]*898All facebook users, who during a time that facebook records identified them to be under the age of 18 and a resident of California, Ohio, Nevada, Illinois, or Indiana and had their name used in connection with a facebook advertisement. (the “Class” or “Class Members”).

Doc. 2 at 7 ¶ 24. Facebook in turn has moved for transfer of this case to the United States District Court for the Northern District of California pursuant to a forum-selection clause in Facebook’s TOS. The clause advises users of face-book.com:

You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to [these TOS] or Facebook exclusively in a state or federal court located in Santa Clara County[, California]. The laws of the State of California will govern [these TOS], as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of-the courts located in Santa Clara County, California for the purpose of litigating all such claims.

Doc. 63-1 at 5 § 15(1). Having set out the relevant background of this case, the Court will turn next to the merits of Face-book’s motion for transfer of the case.

III. Analysis

A. Disaffirmance of the Contract

Before reaching the issue of the forum-selection clause in Facebook’s TOS and the enforceability of the clause, the Court first must determine whether Face-book is barred from enforcing the forum-selection clause against Plaintiffs, who, as noted, are minors, by the doctrine of infancy. Certain categories of persons are held by the law to have no capacity, or only a limited capacity, to contract:

(1) No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties. Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.
(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is
(a) under guardianship, or
(b) an infant, or
(c) mentally ill or defective, or
(d) intoxicated.

Restatement (Second) of Contracts § 12 (1981).

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Cite This Page — Counsel Stack

Bluebook (online)
885 F. Supp. 2d 894, 2012 WL 3242392, 2012 U.S. Dist. LEXIS 113761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ekd-ex-rel-dawes-v-facebook-inc-ilsd-2012.