United States v. Facebook, Inc.

456 F.Supp.3d 105

UNITED STATES of America, Plaintiff,

v.FACEBOOK, INC., Defendant.

Civil Action No. 19-2184 (TJK)

United States District Court, District of Columbia.

Signed April 23, 2020

Patrick Raymond Runkle, Jason Lee, Lisa K. Hsiao, U.S. Department of Justice, Washington, DC, for Plaintiff.

Joshua S. Lipshutz, Thomas G. Hungar, Gibson, Dunn & Crutcher, LLP, Washington, DC, Olivia Arden Adendorff, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Dallas, TX, Orin Samuel Snyder, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, New York, NY, for Defendant.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

In this action, the United States and Facebook request that the Court enter a stipulated order resolving allegations that Facebook violated both the Federal Trade Commission Act and an eight-year-old FTC administrative order governing Facebook's privacy practices.¹ Before the Court are motions to intervene filed by the Electronic Privacy Information Center and Leonid Goldstein, who is proceeding pro se. For the reasons discussed below, the Court will deny both motions.

I. Legal Standard

Federal Rule of Civil Procedure 24 sets out several paths by which a nonparty may intervene in an action. A nonparty may intervene as of right under Rule 24(a)(2) if it satisfies "four requirements: (1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests." SEC v. Prudential Sec. Inc. , 136 F.3d 153, 156 (D.C. Cir. 1998). Such a nonparty must also possess an independent basis for Article III standing. Campaign Legal Ctr. v. FEC , 334 F.R.D. 1, 4 (D.D.C. 2019). For that reason, a party seeking to intervene as of right must show an "actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision." Nat'l Fair Hous. All. v. Carson , 330 F. Supp. 3d 14, 40 (D.D.C. 2018) (internal quotation omitted).

Rule 24(b)(1)(B) allows the Court to permit intervention where a nonparty "has a claim or defense that shares with the main action a common question of law or fact." The nonparty "must present the Court with: (1) an independent ground for subject matter jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question of law or fact in common with the main action."² United States v. Morten , 730 F. Supp. 2d 11, 16 (D.D.C. 2010) (citation and internal quotation omitted). As its name reflects, "permissive intervention is an inherently discretionary enterprise." EEOC v. Nat'l Children's Ctr., Inc. , 146 F.3d 1042, 1046 (D.C. Cir. 1998). Thus, district courts may deny permissive intervention even where a putative intervenor satisfies the requisite requirements. Id. at 1048 ("District courts have the discretion ... to deny a motion for permissive intervention even if the movant established an independent jurisdictional basis, submitted a timely motion, and advanced a claim or defense that shares a common question with the main action."). Before allowing a nonparty to permissively intervene, the Court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights." Fed. R. Civ. P. 24(b)(3).

II. Analysis

A. Intervention of Right

1. Electronic Privacy Information Center

The parties oppose the motion filed by the Electronic Privacy Information Center (EPIC) to intervene as of right on several grounds, including that EPIC lacks standing to bring any of its claims, ECF No. 11 at 4–9; ECF No. 29 at 3–6. The Court agrees that EPIC lacks standing and will deny its request to intervene as of right for that reason.

An organization may assert standing "on its own behalf, on behalf of its members or both." People for the Ethical Treatment of Animals (PETA) v. U.S. Dep't of Agric. , 797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal quotation omitted). Because EPIC asserts standing on its own behalf, ECF No. 13 ("EPIC Reply") at 11, it must allege that it suffered a "concrete and demonstratable injury to [its] activities—with [a] consequent drain on [its] resources—[that] constitutes far more than simply a setback to the organization's abstract social interests." Havens Realty Corp. v. Coleman , 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). Thus, EPIC must allege that the challenged conduct "perceptibly impair[s] [its] ability to provide services," and that it "used its resources to counteract [the alleged] harm." Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 919 (D.C. Cir. 2015).

Additionally, when a party alleges a procedural injury—such as is reflected in the second count of EPIC's proposed complaint in intervention—courts "relax the redressability and imminence requirements." WildEarth Guardians v. Jewell , 738 F.3d 298, 305 (D.C. Cir. 2013). A plaintiff asserting a procedural claim need not allege that an agency would have acted any differently. Mendoza v. Perez , 754 F.3d 1002, 1010 (D.C. Cir. 2014). Rather, it need only allege "a causal connection between the government action that supposedly required the disregarded procedure and some reasonably increased risk of injury to its particularized interest." Iyengar v. Barnhart , 233 F. Supp. 2d 5, 12–13 (D.D.C. 2002) (quoting Fla. Audubon Soc'y. v. Bentsen , 94 F.3d 658, 664 (D.C. Cir. 1996) ).

a. Count I

EPIC first asserts that it would suffer an injury from the settlement's waiver of liability because that provision would deprive EPIC of a method of redress for Facebook's violations of law. ECF No. 13-1 ("EPIC Compl.") ¶¶ 31, 41. Specifically, EPIC alleges in its proposed complaint in intervention that the settlement reached between the United States and Facebook, ECF No. 4-1 ("Stipulated Order"), "would prevent [it] from seeking relief from the FTC through the administrative complaint process for the violations detailed in [its] prior complaints." Id. ¶ 31; see also id. ¶ 41. But at bottom, these allegations do not amount to a loss of an avenue of redress for EPIC.

Like any other organization or individual, EPIC may submit "[a] complaint or request for [Federal Trade Commission] action" through a web portal, by telephone, or with a signed statement. 16 C.F.R. § 2.2(a). But that is the end of the avenue of redress that EPIC, or anyone else, is entitled to; how those complaints are ultimately resolved is up to the Federal Trade Commission (FTC) or the Department of Justice. The Federal Trade Commission Act ("FTC Act") contains no private right of action, so EPIC must rely on the government to bring enforcement actions for violations of the law. See United States v. Philip Morris Inc. , 263 F. Supp. 2d 72, 78 (D.D.C. 2003). And EPIC is explicitly "not regarded as a party to any proceeding that might result from the investigation." 16 C.F.R. § 2.2(b). Similarly, as for complaints EPIC may have filed alleging violations of the prior administrative order the FTC entered in 2012 ("2012 Order"), the D.C. Circuit "has opted for a bright line rule ... that third parties to government consent decrees cannot enforce those decrees absent an explicit stipulation by the government to that effect." Prudential Sec , 136 F.3d at 158. Because EPIC has already availed itself of "the administrative complaint process for the violations detailed in [its] prior complaints," EPIC Compl. ¶ 31, it has not lost any channel for seeking relief for them. That the Department of Justice and the FTC have decided to settle these allegations through the Stipulated Order and the related amended FTC administrative order is simply the culmination of the redress process.³

EPIC appears to take a slightly different tack elsewhere in its proposed complaint when it suggests that the Stipulated Order would preclude it from filing future complaints reiterating the same claims against Facebook. Id. ¶ 41 (alleging that by "granting Facebook immunity for all complaints filed with the [FTC] between 2012 and 2019, the FTC deprives EPIC of the ability to seek redress for such claims through any future administrative complaint" (emphasis added)). But again, EPIC has not shown a loss of any means of redress. Nothing in the Stipulated Order prevents EPIC from filing whatever complaints it wishes to in the future. To be sure, the Stipulated Order grants Facebook immunity for "complaints filed with the [FTC] between 2012 and 2019" alleging violations of the FTC Act and the 2012 Order. Id. ; see also Stipulated Order at 1–2. As result, the Department of Justice and the FTC would be precluded from taking any additional enforcement action related to any complaint that merely reasserted them. But again, this is hardly the loss of an avenue of redress that would confer standing on EPIC. EPIC and others have already raised "such claims" in administrative complaints between 2012 and 2019. EPIC Compl. ¶ 41. And the Department of Justice and the FTC have seen fit to resolve them as they propose. EPIC is not entitled to any further method of redress, the loss of which would give it standing here.⁴

Whatever residual interest EPIC has in filing additional administrative complaints with the FTC that reiterate the same claims against Facebook might best be understood as part of its advocacy mission, which does not confer standing. See EPIC Compl. ¶¶ 1–2 ("Central to EPIC's mission is advocacy to protect consumer privacy.... An important aspect of EPIC's consumer protection program is submission of complaints to the FTC."). Thus, while the Stipulated Order may, as a practical matter, limit EPIC's ability to advocate for more enforcement action, EPIC does not suffer a cognizable injury if it must expend resources to counteract that alleged harm. See Food & Water Watch , 808 F.3d at 919 ("Our precedent makes clear that an organization's use of resources for litigation, investigation in...