Fight Against Facebook

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Yesterday, I was astonished to see that Facebook’s lawyers had sent a letter to the Court asking “for guidance as to how and when the Court would like Facebook to respond to the papers filed by” me.  Instead of stopping there though, the letter proceeds opposing me joining the case.  Needless to say, Facebook’s arguments that follow are meritless.

Based on their request for guidance, Facebook with an army of highly paid corporate attorneys does not know how to handle a couple of immigrants whose first language is other than English, appearing without a lawyers, in a court that Facebook has chosen (the case was actually moved from State court, where Mustafa had originally filed it, to Federal court after Facebook asked for the change).  Obviously, this letter is pretentious as I am well within my rights to join the action, at least as far as Facebook’s Motion to enforce an invalid Forum Selection Clause.  As a Pro Se litigant, I have made all reasonable efforts to meet the Court’s existing time guidelines.  My pleading and motion were presented timely.  Further and contrary to Facebook’s claims in the letter, I have raised an identical claim of Discrimination with Mustafa. Under Rule 20(a), I will probably be granted my motion.

But interestingly, in that letter I noticed a surprisingly pre-mature first crack in Facebook’s defense, as Facebook apparently, has revealed that Facebook has no interest in justice whatsoever.  While originally in its motion to transfer the case in California Facebook was asking the Court to consider that “[t]ransferring this case will therefore maximize judicial resources,” (Facebook’s Memorandum, April 4, 2011, p. 8), now Facebook has come to argue essentially in favor of me filing a duplicate action in New Jersey, being that I am a New Jersey resident, instead of joining Mustafa.

But I am wondering, besides being contrary to the interest of justice, would this letter bear any connection with the fact that Facebook’s own lawyers also having an office in New Jersey perhaps (and I emphasize PERHAPS), would defend Facebook in that hypothetical action in New Jersey, with another motion to enforce a invalid forum selection clause thus resulting in more billable hours? Perhaps perhaps?  I am just saying…

The bottom line is suddenly Facebook appears to contradict itself.  Strike one for the good english-as-a-second-language guys!

And although it is not my place to advice highly compensated aspiring white shoe counsel, in response to their inquiry about how to proceed, I would say “just do your job.”  But I may be wrong.  I am neither the Pope nor a lawyer.

Mitch Fatouros

Signing up on Facebook does not necessarily mean agreeing to  Facebook’s Terms of Policy (ToP) as Facebook’s agreement with its members is presently called.  Absent further proof, allegations of having a binding agreement by clicking an internet button are absurd and judicially, the absurdity was expressed best by U.S. Supreme Court Associate Justice Sonia Sotomayor, who wrote the unanimous opinion in Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir.2002) while Justice Sotomayor still sat at the Court of Appeals:

“[A] consumer’s clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms, see Windsor Mills, 25 Cal.App.3d at 992, 101 Cal.Rptr. at 351 (‘[W]hen the offeree does not know that a proposal has been made to him this objective standard does not apply.’). California’s common law is clear that ‘an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious.’”  Specht, 29-30.

Reasoning on California law, Specht‘s decision held that a consumer clicking on a Netscape button did not agree to Netscape’s contract.  In Specht, Justice Sotomayor offered an anthology of cases Facebook ought to take notice on how Facebook’s ToP out to be presented without ambiguity, yet it is not:

“See, e.g., Hotmail Corp. v. Van$ Money Pie Inc., 47 U.S.P.Q.2d 1020, 1025 (N.D.Cal. 1998) (granting preliminary injunction based in part on breach of ‘Terms of Service’ agreement, to which Facebooks had assented); America Online, Inc. v. Booker, 781 So.2d 423, 425 (Fla.Dist.Ct. App.2001) (upholding forum selection clause in ‘freely negotiated agreement’ contained in online terms of service); Caspi v. Microsoft Network, L.L.C., 323 N.J.Super. 118, 732 A.2d 528, 530, 532-33 (N.J.Super.Ct.App.Div.1999) (upholding forum selection clause where subscribers to online software were required to review license terms in scrollable window and to click ‘I Agree’ or ‘I Don’t Agree’); Barnett v. Network Solutions, Inc., 38 S.W.3d 200, 203-04 (Tex.App.2001) (upholding forum selection clause in online contract for registering Internet domain names that required users to scroll through terms before accepting or rejecting them); cf. Pollstar v. Gigmania, Ltd., 170 F.Supp.2d 974, 981-82 (E.D.Cal.2000) (expressing concern that notice of license terms had appeared in small, gray text on a gray background on a linked webpage, but concluding that it was too early in the case to order dismissal).”

The implementation of Facebook’s ToP disregards these sensible suggestions for an on-line binding agreement.  Facebook’s ToP is invalid.

Bottom line, if you can cast a doubt on Facebook’s claims that you saw Facebook’s ToP and Facebook takes the case to the Supreme Court of the United States, you will already have one vote in your favor!  You only need to convince the other 8 Justices, while Facebook has to work on all 9 judges of the Court!

Mitch Fatouros (greekmitch at g mail, without spaces)

Justice Sotomayor’s opinion can be found at http://scholar.google.com/scholar_case?case=9587085159184835436&q=Specht+v.+Netscape+Communications+Corp.,+306+F.3d+17+%282d+Cir.2002%29&hl=en&as_sdt=2,31

I am Mitch Fatouros and I have filed a motion with the U.S. Federal Court in New York, NY to join the lawsuit under the Court’s Rule 20(a) which permits people to join the lawsuit as Plaintiffs, or Defendants. I believe Facebook administrators discriminate on the basis of ethnicity and religion, as Mustafa has already alleged.

Further, I believe it is absurd for Facebook to claim in its defense that by clicking a virtual button members verify they have read Facebook’s agreement which spans over 100s of types pages, once related links included in the agreement are taken into account. Social networks must not give agreements that span over 100s of pages of yada yada and expect courts to uphold them.

Finally, I believe Facebook’s claim of a single litigation Forum Selection Clause in California for 600,000,000 members spanned throughout the globe is fundamentally unfair and cannot be enforced.  Facebook claims they have members throughout the world, thus, they should permit litigation throughout the world.

In my court motion, I have described all the above in detail, providing a factual foundation for Mustafa’s and my allegations.

I am not a lawyer. But that does not mean I am moron. I know what my rights are and so should you!

Fight against the notion that by clicking a virtual button on line, you make a contract before you are told that you have signed your life away and your bonds to Facebook’s slavery.

Mitch Fatouros