Did Facebook Commit Tortious Interference Against BrandTotal?–Facebook v. BrandTotal
BrandTotal installs (with the users’ consent) researchware that collects data from Facebook, including automated pings for data that the user has the right to view but never requested to browse. BrandTotal bypasses Facebook’s API so it can obtain information not available via the API. BrandTotal then uses the collected data to prepare advertising analytics. Facebook cracked down on BrandTotal, including terminating its online accounts, tipping off Google to get BrandTotal kicked out of the Chrome web store, reconfiguring its service to cut off the data flows to BrandTotal, and suing BrandTotal.
BrandTotal counterclaimed for Facebook’s crackdown and unsuccessfully sought a TRO. This lawsuit has turned into a messy (and expensive) case that resembles the hiQ case. In both cases, an analytics service is essentially seeking a court-compelled data collection right despite possible privacy invasions. In this ruling, the court rejects many of BrandTotal’s amended counterclaims, but the tortious interference claim (and dependent claims) survives Facebook’s motion to dismiss.
Regarding interference with contract, Facebook said it legitimately cut off BrandTotal due to its consent decree with the FTC. BrandTotal repleaded this claim to say that its activities aren’t governed by the FTC consent decree at all, because the users are doing the relevant data collection from Facebook. The court says it will need extrinsic evidence to construe the FTC consent decree and analyze BrandTotal’s technological operations, so it can’t grant Facebook’s motion to dismiss.
Facebook also said it had no idea who BrandTotal’s customers are. BrandTotal’s advertisements claimed that it had many of the most recognizable brands as its customers, and the court says that’s good enough for notice pleading. (Seriously?) The court says that it needs more facts to figure out why Google kicked BrandTotal out of the Chrome web store, including the possibility that was Google’s independent decision.
Motion-to-dismiss rulings like this are frustrating because they give false hope to plaintiffs. Is there any doubt that Facebook will eventually win the interference with contract claims? Tortious interference claims are notoriously hard to win, and Facebook hasn’t been allowed yet to introduce all of the evidence legitimizing its decisions. Unless BrandTotal finds some new smoking-gun evidence showing Facebook’s maliciousness, its case seems inevitably doomed. Still, the fact that BrandTotal has gotten this far shows the perniciousness of the Ninth Circuit’s hiQ ruling, which has inhibited judges from smacking down data snarfers who play by their own rules.
Case citation: Facebook, Inc. v. BrandTotal LLC, 2021 WL 2354751 (N.D. Cal. June 9, 2021)