ANALYSIS: Schools Repurpose Juul Claims Against Meta, TikTok

Two Washington school districts filed separate lawsuits against major social media platforms this month in an ostensibly novel attempt to put a halt to the deteriorating mental health of their students.

The Seattle and Kent school districts filed the suits against several companies including Meta, Tiktok, and YouTube in the US District Court for the Western District of Washington, pursuing an innovative claim: They allege that the social media platforms, through their harmful and exploitative marketing and operational practices, violated the state’s public nuisance law by creating a mental health crisis in the school districts.

The school districts had to divert their limited resources to address the crisis, which includes an increase in suicides, attempted suicides, and students experiencing anxiety and depression, they allege.

While on the surface, the public nuisance lawsuits appear to be the first of their kind against social media platforms, they actually mirror the lawsuits the Seattle and Kent school districts filed against e-cigarette company Juul Labs Inc. in 2019.

Juul recently agreed settle their claims for billions, and although the Washington school districts aspire for a similar outcome in the current cases, they face a different road ahead against the social media platforms.

The Case Against Juul

Among the several thousand plaintiffs in the Juul multi-district litigation were a number of school districts, which alleged that Juul and other defendants worked together to grow the e-cigarette market by actively attracting young users. This was done through targeted marketing of the highly addictive product, the school districts alleged. As a result of the defendants’ false and misleading statements, young users identified the product as a fun and safe alternative to cigarettes.

The plaintiff school districts claimed that the defendants’ misconduct led to the youth e-cigarette crisis, and the school districts were compelled to respond, using significant time and resources to address the pervasiveness of youth e-cigarette use and to combat the problem.

One of the many claims pursued by the school districts was that Juul and others violated state public nuisance laws. Specifically, the school districts alleged that the defendants’ design, manufacture, production, marketing, distribution, and sale of highly addictive and harmful e-cigarettes and nicotine pods were targeted at youths; created and maintained a condition dangerous to the public’s health; and unlawfully obstructed the public in free use of public property.

The school districts sought injunctive relief and the costs that they incurred when responding to the youth e-cigarette crisis, among other damages.

Juul reportedly agreed in December to settle all of the personal injury, class action, and school district claims for $1.2 billion.

In a separate suit, Juul agreed last September to pay $438.5 million to settle claims from 33 US states alleging that the company marketed addictive nicotine products to children. As part of the settlement, Juul agreed to accept strict limitations on its marketing campaigns and sales practices, including to refrain from all youth marketing.

The Fight Against Social Media

Taking a page from their Juul playbook, the Washington school districts are pursuing a similar public nuisance claim against the social media platforms. In their respective 91-page complaints, the school districts lay out how the use of the defendants’ social media platforms has increased significantly among youths—due to the social media platforms’ marketing, design, and manipulative algorithm.

The school districts further claim that the defendants’ dangerous social media platforms led to the current mental health crisis in the youth community. This crisis has directly impacted the public-school system, which was forced to divert its limited time and resources to combat the crisis, the districts allege. This line of argument mirrors that made by the school districts in the Juul MDL.

Likewise, the Washington school districts are seeking injunctive relief, as well as actual and compensatory damages. In addition, the school districts are asking for equitable relief to fund prevention education and treatment for excessive and problematic use of social media.

Will Socials Get Schooled?

Whether the Washington school districts will succeed in the same manner as the plaintiffs in the Juul litigation remains to be seen. It’s certainly a novel approach against the social media platforms, which are facing an influx of lawsuits, including claims of product liability and personal injury.

One thing is for sure—unlike Juul, the social media platforms enjoy broad immunity under 47 USC §230 of the Communications Decency Act

But this isn’t a run-of-the-mill lawsuit against social media platforms, and the school districts have a fighting chance.

First, there’s no specific third-party content that’s alleged to be the culprit of the mental health crisis. The school districts don’t claim that the defendants are liable as publishers or speakers of information provided by others, an allegation that would confer immunity onto the defendants under Section 230. Rather, the school districts allege that the social media platforms’ own misconduct—in their marketing and design—led to the crisis and public nuisance.

Second, the Western District of Washington is in the Ninth Circuit, which is well-acquainted with the scope of Section 230, and is willing to limit its application where third-party content isn’t involved.

For example, the Ninth Circuit reversed the lower court’s decision to grant the defendant Section 230 immunity in Lemmon v. Snap, Inc., and allowed the plaintiffs’ product liability claim against Snap Inc. to proceed. The plaintiffs alleged that the defendant negligently designed a feature on its social media platform, SnapChat, that recorded the real-time speed of drivers or passengers.

The Ninth Circuit is also home to Gonzalez v. Google, currently before the US Supreme Court for the question of whether Section 230 shields social media platforms from suits when they make targeted recommendations, via their algorithms, of information provided by a third-party.

The high court may very well decide to limit the scope of Section 230 before the end of this term, which would be a huge boost for the Washington school districts, as it would help them overcome defendants’ Section 230 immunity defense and go after the social media platforms for their alleged misconduct.

Bloomberg Law subscribers can find related content on our Litigation Practical Guidance Library page.

If you’re reading this on the Bloomberg Terminal, please run BLAW OUT <GO> in order to access the hyperlinked content, or click here to view the web version of this article.