Mr. T and Rule 23: How Not to File a Class Action Against Facebook

Jocelyn D. Larkin, Executive Director, The Impact Fund

Here at the Impact Fund, it’s our mission to help ordinary people use class actions to challenge corporate wrongdoing or bureaucratic indifference. While class actions are a remarkable legal innovation that have and continue to provide compensation and reform every day, there is no way to sugarcoat it — they are just plain hard to do. The standards are exacting and judges — following the Supreme Court’s lead — aren’t making it any easier.   

A set of recently filed class actions against three big social media platforms are getting a lot of press and, of course, caught our eye.

Constitutional scholars have already had lots to say about the legal theory in those cases but, as we said, we’re all about complex civil procedure – so we asked, “can these class actions fly?” We thought these new cases might offer some teachable moments for would-be class action lawyers who may be thinking they are ready to run the gauntlet of Federal Rule of Civil Procedure 23, the rule that governs class actions in federal court. 

What Are the Claims in the Case? 

The lead class representative, Mr. Donald Trump, says that he has been “censored” and “deplatformed” because of Facebook’s “self-imposed” Community Standards regulating “Hate Speech,” “Incitement of Violence,” and “Praising Violence.” And Mr. Trump, a politician and media hound, claims that Facebook has done the same thing to the accounts of lots of other people just like him. He doesn’t know how many but, on information and belief, “hundreds of thousands of members.” OK, this all sounds very important. But, is it a class action? 

Donald Trump says that he has been “censored” and “deplatformed” because of Facebook’s “self-imposed” Community Standards regulating “Hate Speech,” “Incitement of Violence,” and “Praising Violence.”

How is the Class Defined in the Complaint? 

The bedrock of any class action – and often the hardest thing to get right – is the definition of the class. So, how did Mr. Trump do?  

All Facebook platform users who have resided in the United States between June 1, 2018, and today, and had their Facebook account censored by Defendants and were damaged thereby.  

Oh dear!  The class definition isn’t limited to censorship based on political speech. So the “overbroad” class includes sex traffickers, hackers, pornographers, spammers, the guy who announced he’s planted a bomb at the police station, and the other guy who convinced your grandmother to send him money. I guess Mr. Trump is going for the big tent here. 

For the civil procedure nerds, this is also a “failsafe” class, a no-no in the class definition business. This one is a bit technical – a class like this, which is defined as those who have been damaged by the allegedly wrongful acts, would include no one if the jury finds that the defendant did nothing wrong, since no one would be damaged. The defendant would have no protection from any of these class members turning around and filing the same case the next day. 

Readers, all is not lost class definition-wise because – on page 40 of the complaint – Mr. Trump’s lawyers included a different definition of the class than the one on page 5. Sort of like a “Choose Your Own Adventure” lawsuit – I’m sure the judge will love this.  

Mr. Trump’s complaint alleges that his Facebook account was “an instrument of his presidency” and “a digital town hall,” thereby becoming “a public forum for speech by, to, and about government policy.”

All Facebook platform Members who reside in the United States, and between June 1, 2018, and today, had their access to their social media accounts wrongly restricted or curtailed by these Defendants and were damaged thereby. 

Alas, still scammers and spammers, and another failsafe class.   

Let’s dig in on some of the Rule 23 requirements. 

Are Mr. Trumps’s Claims Typical of the Claims of the Class Members? 

Rule 23 requires that Mr. Trump’s claims be typical of those of the class. This means that if the claims are largely the same, Mr. Trump will be highly motivated to win the case for himself and for the class. So here’s our first problem.  Mr. Trump’s complaint alleges that his Facebook account was “an instrument of his presidency” and “a digital town hall,” thereby becoming “a public forum for speech by, to, and about government policy.” He posits that his political enemies in Congress coerced Facebook to take away his mouthpiece.  

Hmmm. This would seem to be a claim unique to Mr. Trump and not one shared with the rest of the class, who mostly use Facebook to swap family photos, cat videos, and recipes, and maybe some vaccine disinformation or AR-15 selfies.   

At first, Twitter and other social media platforms attempted to restrain Donald Trump, but ultimately ended up banning him.

Will Mr. Trump Be an Adequate Class Representative? 

Under Rule 23, Mr. Trump must show that he is an “adequate” class representative. While we are fairly certain that Mr. Trump would scoff at the notion that he was merely “adequate,” and would insist that he was the “best” class representative to ever appear in an American courtroom, the judge is unlikely to accept this claim on its face.   

Mr. Trump will have to demonstrate that he is committed to pursuing the interests of the class even if at the expense of his own interests. Sometimes it can be hard for a proposed class representative to prove this, but Mr. Trump is in luck. He has recently held a job that required him to do exactly that – you know, put the interests of Americans ahead of his own and those of his family.  

Uh-oh.  Facebook may have some arguments here.  

Has Mr. Trump Hired Lawyers Capable of Litigating a Big and Complicated Class Action? 

The complaint says so. Mr. Trump has “retained counsel highly experienced in complex consumer class action litigation.” That’s certainly impressive and would be especially useful if this were a consumer class action, which it isn’t. 

And, more curious still, none of the eight lawyers on the complaint included any of that class action experience on their websites. Media accounts do describe one of the lawyers as “a retired, once-flamboyant trial lawyer who made millions off the tobacco wars” and owns a private jet. Enough said. 

Is There Any Reason to Think that Mr. Trump’s Interests Are in Conflict with Those of the Class? 

Rule 23 requires that judges determine whether there are any conflicts of interest between the named representative and the class. Judges rarely find such conflicts  -- there would have to be a very blatant conflict like Mr. Trump using the class action to raise money for his own personal ends. Something like this or this.

The judge would also want to ensure that Mr. Trump is making his own decisions about the case, without being unduly influenced by outside parties or foreign actors. Sigh. 

It’s not a pretty picture. Mr. Trump may want to give some thought to hiring different class action lawyers. He might start with the ones who successfully sued Trump University and obtained a $25 million settlement.