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Facebook Attorneys Improperly Penned Chamber Brief, Users Say

Nov. 2, 2018, 8:54 PM

Facebook Inc. lawyers improperly wrote a top business-advocacy group’s brief in a high-stakes consumer privacy case in a bid to evade court rules and echo the company’s arguments, the plaintiffs told a federal appeals court.

The U.S. Chamber of Commerce failed to disclose that two of the authors behind its supporting brief represented the social media company on some of the same issues involved in the underlying biometric-data class suit, according to the class representatives.

The filing repeats many of Facebook’s main points and appears aimed at getting around strict word limits on appellate arguments, the Facebook users say, asking the court to not allow it.

Normally friend-of-the-court briefs are unopposed, and the filing tussle shows how much is at stake for both sides in the underlying suit. The social media platform’s Illinois users allege Facebook’s photo-scanning technology violates a new law by gathering and storing biometric data without users’ consent.

The suit could expose the company to billions of dollars in liability because it allows damages of $1,000 to $5,000 each time someone’s image is used without consent.

The U.S. Court of Appeals for the Ninth Circuit is currently weighing the company’s challenge to the suit’s class status. The class could include upwards of 6 million members.

Lawyers Defend Filing

Reginald J. Brown and Patrick J. Carome are the attorneys accused of improperly writing the brief. They didn’t directly respond to requests for comment, but their firm, Wilmer Hale, denied anything untoward.

“We have complied with all applicable Federal Rules of Appellate Procedure,” WilmerHale said in a statement emailed to Bloomberg Law Nov. 1.

The rule at issue “obviously requires disclosure as to whether a party’s counsel in the case in which the amicus brief is being submitted authored the amicus brief in whole or in part,” the business group also told the court in its request for permission to submit the filing

And the chamber isn’t aware of court opinions interpreting the rule differently, it said.

The plaintiffs said the rule, which is aimed at preventing ghostwritten briefs, limits each party’s brief to 5,000 words and allowing the chamber’s brief would essentially double the length of Facebook’s arguments.

Edelson PC and others represent the plaintiffs.

Mayer Brown LLP represents Facebook.

The case is Patel v. Facebook, Inc., 9th Cir., No. 18-15982, brief 10/26/18.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com