Shout-Out: Kirkland Wins Dismissal of Suits Blaming Facebook for Terror Attacks

A team from Kirkland & Ellis led by partner Craig Primis persuaded a federal judge in New York to toss a pair of suits alleging that Facebook Inc. supports terrorist organizations by allowing the groups to use its platform.  

One suit was brought by 20,000 people who live in Israel and say they "have been and continue to be targeted by" attacks by Palestinian terrorist organizations. The other was brought by the estates and family members of U.S. citizens victims (and, in one case, the surviving victim) of past attacks by the Palestinian terrorist organization Hamas and sought $3 billion in damages.

Both claimed that Palestinian terrorists use Facebook to incite, organize and dispatch would be killers to attack Jews.

U.S. District Judge Nicholas Garaufis of the Eastern District of New York dismissed the first suit, filed by name plaintiff Racheli Cohen, for lack of standing, and the second, by name plaintiff Stuart Force, because he found Facebook was shielded by the Communications Decency Act.

It was a nice save for the firm in case where Garaufis initially lambasted Kirkland for sending a first-year associate to cover a status conference.

“You tell your folks back at Kirkland & Ellis that I don't much like the idea that they think so little of this court that they didn't send a partner here to talk about this kind of a problem which implicates international terrorism and the murder of innocent people in Israel and other places,” he said, according to a transcript of the proceedings.

Facebook sent five lawyers including Primis and deputy general counsel Paul Grewal for the next status conference and the matter blew over.

The Cohen plaintiffs didn’t seek damages, but rather declarative and injunctive relief “based on their allegation that Facebook's actions increase their risk of harm from future terrorist attacks. This claimed harm relies on multiple conjectural leaps,” Garaufis wrote in his decision.

“While the court does not question the sincerity of the Cohen Plaintiffs' anxieties, their subjective fears cannot confer standing absent a sufficient showing of the risk of future harm,” he wrote.

Garaufis found the court did have jurisdiction to hear the Force complaint. The real question was whether the claims fell under Section 230(c)(1) of the Communications Decency Act, which shields defendants who operate certain internet services from liability based on content created by a third party.

They do, the judge found. “While the Force Plaintiffs attempt to cast their claims as content-neutral, even the most generous reading of their allegations places them squarely within the coverage of Section 230(c)(l)'s grant of immunity.”

The plaintiffs also argued that the provision cannot be applied to conduct that occurs wholly outside of the United States.

Garaufis rejected the argument. “The court concludes that the relevant location is that where the grant of immunity is applied, i.e. the situs of the litigation.”

Robert Tolchin, a lawyer for both sets of the plaintiffs, told Reuters he plans to appeal the decision.

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