Dangaard v. Instagram, LLC

Background

Dawn Dangaard, Kelly Gilbert, Jennifer Allbaugh, and other similarly situated plaintiffs brought a proposed class action against Instagram, LLC, Facebook Operations, LLC, Meta Platforms, Inc., and John Does 1–10. The opinion refers to Instagram, Facebook, and Meta collectively as the Meta defendants. The plaintiffs alleged that the defendants participated in a scheme to increase OnlyFans’s popularity by harming adult-entertainment websites that competed with it.

The alleged scheme involved two theories: bribery and blacklisting. Plaintiffs initially alleged that defendants associated with OnlyFans paid Meta defendants to delete or reduce the visibility of plaintiffs’ accounts and posts. Plaintiffs later withdrew the bribery allegations after stating that they could no longer certify that the allegations would likely have evidentiary support after a reasonable investigation.

Plaintiffs then focused on alleged blacklisting through Meta’s dangerous-individuals-and-organizations list and a shared database maintained by the Global Internet Forum to Counter Terrorism. They alleged that these tools caused their social-media content to be demoted or removed and reduced traffic to websites competing with OnlyFans. The court had previously allowed the case to proceed because the allegations about a sharp drop in web traffic and the alleged bribery and blacklisting were then considered sufficiently supported at the pleading stage.

Summary Judgment

Summary judgment is a decision entered without a trial when the record shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. Meta defendants argued that plaintiffs lacked evidence supporting their claims and that the claims were also barred by the Communications Decency Act and the First Amendment.

The court granted summary judgment on all three claims because plaintiffs had not produced sufficient evidence to allow a reasonable jury to rule in their favor. The court criticized Meta’s failure to preserve daily copies of its dangerous-individuals-and-organizations list, which meant the parties could not determine whether any plaintiff appeared on that list during 2018 or 2019. But the court held that this recordkeeping problem did not supply the missing evidence needed to proceed to trial.

For the intentional-interference-with-contract claim, the court found that plaintiffs had not shown a qualifying contract during the relevant period. Gilbert produced two contracts from 2011–2012, Allbaugh produced a contract signed in 2020, and Dangaard produced no contracts. The court also found that plaintiffs had not shown Meta’s knowledge of any relevant contracts.

For the intentional-interference-with-business-relationships claim, the court found that plaintiffs had not provided evidence of an economic relationship with a probable future benefit. The court also found insufficient evidence of Meta’s knowledge, an intentional act that disrupted a relationship, and actual economic damages. It noted that the alleged blacklisting could not be determined from the available evidence and that plaintiffs had not responded to some of the defendants’ arguments.

For the unfair-competition claim under California Business and Professions Code section 17200, the court treated the claim as based on allegedly unfair business practices. It found that plaintiffs had presented no admissible proof that defendants caused adult-entertainment content to be classified or falsely represented as originating from terrorists or dangerous individuals or organizations. The court therefore granted summary judgment on the third claim as well.

Because summary judgment resolved all three claims, the court did not decide Meta defendants’ additional arguments under the Communications Decency Act or the First Amendment.

Motion to Strike Expert Testimony

The defendants also moved to exclude Dangaard and Gilbert as experts and to strike their declarations. Both were named plaintiffs in the case. The court explained that expert testimony must be relevant and reliable, but that testimony based on specialized personal knowledge is not always governed strictly by the scientific factors commonly associated with expert-evidence review.

The court struck three categories of opinions from both declarations: opinions that Meta enforced content from non-OnlyFans competitors more often than OnlyFans content, opinions that this alleged preferential treatment reduced performers’ income, and opinions that at least 90 percent of OnlyFans content was pornographic. The court found that these opinions depended on data or statistical analysis, but neither plaintiff explained the basis for reaching them.

The court did not strike Dangaard’s fourth opinion, concerning the economics of the adult-entertainment industry, because it was based on her specialized personal knowledge. The order therefore granted in part and denied in part the motion to strike.

Disposition

Judge William Alsup granted the defendants’ motion for summary judgment and granted in part and denied in part the motion to strike. The court stated that no claim remained for trial, ordered judgment to be entered accordingly, and vacated all hearing dates.