Adult Performers Seek to Dismiss Lawsuit, Meta Wants Summary Judgment

The plaintiffs, Alana Evans, Ruby and Kelly Pierce, filed a motion to dismiss for lack of subject matter jurisdiction, while the defendants, collectively referred to here as the “Meta defendants,” filed a motion for summary judgment. Both filings suggest the plaintiffs have come up short in the discovery process of finding evidence to support the claims made in the complaint, offering somewhat different explanations for why such evidence wasn’t found.

The lawsuit was filed in February of 2022. In the 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.”

“Up until late 2018 or early 2019, the online adult entertainment industry was a vibrant, competitive market,” the plaintiffs asserted. “That is when (adult entertainment providers) that had promoted competitors of OnlyFans suddenly began to experience a drop-off in traffic and user engagement on social media platforms. The deletion and hiding of posts, and reduction in social media traffic for certain providers, started to occur suddenly and was so substantial and so dramatic that it could not have been the result of filtering by human reviewers of social media content.”

The complaint further alleged that the defendants “orchestrated a scheme through which they caused (adult entertainment performers) associated with OnlyFans’ competitors to be ‘blacklisted’ by certain social media platforms for the purpose of reducing competition with OnlyFans.” Last summer, the court dismissed the claims against the OnlyFans defendants, leaving just the Meta defendants in the case.

In the motion to dismiss filed Monday, the plaintiffs wrote that during a court-ordered meeting held March 8 to discuss discovery disputes, they “learned from the Meta Defendants that they lack the data or documents with necessary evidence of the following key element of Plaintiffs’ case theory and class definition: whether any of the listed competitor plaintiffs or lead plaintiffs were treated as a dangerous organization or individual in the key 2018-2019 time period due to improper manipulation of Meta’s system.”

The defendants further informed the plaintiffs “they found no evidence that any competitor platform or named plaintiff was currently on the list or had been nominated for inclusion or removal as part of the normal process for administering the DIO/DOI (“Dangerous Individual or Organization” later renamed “Dangerous Organizations and Individuals”) list. Meta Defendants informed Plaintiffs they were unable to determine whether or not the list was manipulated in the 2018-2019 time frame as alleged by Plaintiffs.”

The motion to dismiss references what the plaintiffs appear to consider nonresponsive answers from the defendants and limitations of how Meta tracks changes made to the DIO/DOI lists referenced above.

During the court-ordered meeting last week, “the parties conferred about Plaintiffs’ position that Meta Defendants provided ambiguous and incomplete responses to interrogatories regarding whether any of the competing platforms or named plaintiffs had ever been designated as a dangerous organization or individual,” the plaintiffs wrote. “The information obtained during this discussion prompted the instant motion.”

The motion also presents the plaintiffs’ understanding of the way data related to the DIO/DOI lists is maintained, including that there “is no archived version of the DOI list” which “changes over time.”

Quoting from notes taken by plaintiffs’ counsel at the meeting, the motion stated “the only way to search that database is as of a particular date, which provides a contemporaneous snapshot as of that date… there is no automated process for making additions to the DOI list; it occurs through a nomination process that goes through a review process. ‘Tasks’ are used by Meta for nominations, additions and subtractions as to the DOI list. Meta thus ran search terms associated with the named plaintiffs’ names and IG accounts to see whether there were ‘tasks’ (which is an ESI source) associated with adding or subtracting them from the DOI list starting from October 1, 2018.”

“Due to this lack of data, along with the interrogatory responses Meta Defendants provided, Plaintiffs are unable to move for certification of the class defined in the operative complaint,” the motion to dismiss states. The motion calls for the case to be dismissed without prejudice.

For their part, the Meta defendants offered a different perspective on the lack of data sought by the plaintiffs, asserting the court has been “sold a bill of goods” by the plaintiffs.

“Not a single piece of this purported scheme is supported by evidence,” the Meta defendants asserted. “There were no bribes. There is no evidence any terrorism-related tools were misused. And plaintiffs produced no verifiable records or internal Meta documents supporting their far-fetched theories. The actual facts are far more mundane: Meta engaged in normal-course enforcement of its policies, which sometimes involve removing or reducing the visibility of content of people like plaintiffs, whose entire business model is built on driving traffic to pornographic websites.”

The Meta defendants further cast the lawsuit as “an attack on classic content moderation activity that is protected twice over by both the Communications Decency Act (CDA) § 230 and the First Amendment.”

“As plaintiffs readily admitted in their depositions, their disagreement is with how Meta is applying its policies concerning what content is and is not allowed on Meta’s services,” the motion for summary judgement continued. “Plaintiffs therefore seek to hold Meta liable for decisions to remove certain content from its services which is protected under section 230(c)(1) of the CDA.”

The Meta defendants also argued section 230(c)(2) of the CDA “independently protects from civil liability good-faith action ‘to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’”

“One of Congress’s express purposes in enacting the CDA was to encourage websites to remove obscene material,” the Meta defendants added. “Actions to prevent plaintiffs from linking to websites with names like Chaturbate, SextPanther, and AmateurPorn readily qualify for protection. For similar reasons, decisions to remove or deprioritize content posted by others are also protected by Meta’s First Amendment right to exercise editorial discretion over its online services.”

The bottom line, the Meta defendants asserted, is the plaintiffs have failed to provide enough support for their claims to survive the motion for summary judgment.

“Throughout the more than two years that this case has been pending, plaintiffs have talked a big game,” the defendants wrote. “But when the Court gave plaintiffs the opportunity to take discovery, they balked and utterly failed to build any factual basis for allowing this case to proceed past summary judgment. No documents support plaintiffs’ fanciful theories. There is no evidence that any bribes were paid or any terrorism databases misused. Following the initial bribery-related discovery, plaintiffs took no depositions at all of any Meta witnesses, uncovered no evidence supporting their claims in documentary discovery, and did not bother to update an expert report they served with their complaint over two years ago.”

The defense added that the plaintiffs’ “lack of diligence in discovery suggests that they have never believed their own claims.”

“This is a case that should never have been brought, and it is time to put an end to plaintiffs’ prejudicial and categorically false allegations,” the Meta defendants added. “Plaintiffs have not established any dispute of material fact, and the Court should grant summary judgment.”

For U.S. District Judge William Alsup, the question now becomes which motion to grant. According to a clerk’s note entered in the case yesterday, the motion hearing for the plaintiffs’ motion to dismiss and the Meta defendants’ motion for summary judgment has been scheduled for April 24 in Alsup’s San Francisco courtroom.

Courtroom photo by Zachary Caraway from Pexels