[00:00:01] Speaker 04: So we'll go ahead and hear argument now in the final argument set for the this morning Doe versus Metaplatforms case number 24-1672. [00:00:16] Speaker 04: Mr. Perlstad. [00:00:18] Speaker 05: Good morning, Your Honors. [00:00:20] Speaker 05: May it please the Court? [00:00:21] Speaker 05: My name is Roger Perlstadt. [00:00:22] Speaker 05: I represent Plaintiff's Appellants Jane Doe I and Jane Doe II. [00:00:26] Speaker 05: I'm going to try to reserve about five minutes of time for rebuttal. [00:00:29] Speaker 05: I thought I would start with the statute of limitations discovery rule and then move on to some of the alternative grounds for affirmance proffered by META, although I'm happy to proceed however this Court wants to proceed. [00:00:41] Speaker 05: So with respect to the statute of limitations. [00:00:43] Speaker 00: I just have one question. [00:00:44] Speaker 00: Is your ultimate position as to the alternative grounds that we should simply remand to the district court? [00:00:48] Speaker 05: Yes, it's this court's practice to not... It's a practice sometimes, but that's what you're... That's our present. [00:00:57] Speaker 05: Reverse on the statute of limitations ground, send it all back to the district court. [00:01:03] Speaker 05: And with respect to the statute of limitations, California's discovery rule exists to protect the, quote, blamelessly ignorant. [00:01:11] Speaker 05: And I think you'd be hard pressed to find two more blamelessly ignorant, two plaintiffs more blamelessly ignorant of their claims than Jane Doe 1 and 2 here. [00:01:19] Speaker 04: Where does the blamelessly ignorant come from? [00:01:21] Speaker 05: That's from Kernan, California Appellate Court, Kernan, 2022. [00:01:26] Speaker 05: Plaintiffs here are members of a persecuted ethnic and religious minority, long denied education and other basic resources. [00:01:34] Speaker 05: Their villages were attacked by government forces and civilian militias. [00:01:38] Speaker 05: They escaped, embarking on a harrowing years-long journey to resettle in the United States, which included for Jane Doe II a three-year stay in a tied detention facility. [00:01:47] Speaker 05: They are unable to read and write in their own language, unable to speak or understand English. [00:01:52] Speaker 04: What does that mean? [00:01:55] Speaker 04: Say the lawyers didn't go down there and talk to them until 10 years from now, 20 years from now. [00:02:02] Speaker 04: The statute of limitations would have been told that entire time? [00:02:05] Speaker 05: I think if it's reasonable for these plaintiffs not to have discovered their cause of action against Metta, then yes, or at least that gets to a jury. [00:02:14] Speaker 04: This court is repeating- That doesn't apply to anyone else. [00:02:20] Speaker 04: I mean, if I have a claim, [00:02:22] Speaker 04: And I just don't know about the claim an attorney comes to me after the statute of limitations and tells me I have it I Would have a claim You don't get told is there a case in California that says that it's told that [00:02:38] Speaker 05: uh... just because you didn't i mean you knew the facts well use some of the facts that's right so is a question so let me let me let me get at it this way there there are two things that meta points to that they say trigger the statute of limitations or at least inquiry notice here one of which one of the first one they say is the attacks on the villages you knew that you were attacked you knew that that was wrongdoing [00:02:58] Speaker 05: But claims against different tort feesers based on different legal theories can arise at different times. [00:03:04] Speaker 05: And so that's cases like Fox v. Ethicon, for example. [00:03:06] Speaker 05: That's California Supreme Court, where a plaintiff is injured by their surgeon's malpractice, and that doesn't trigger inquiry notice that maybe a medical device manufacturer's negligence was also a substantial factor in their injury. [00:03:19] Speaker 05: E-Fab, Evans, those are two similar cases. [00:03:21] Speaker 04: E-Fab accompanies knowledge of an employee's... I'm just trying to parse this out. [00:03:27] Speaker 04: It's not really the claim that they... Your argument isn't so much that they didn't know that they had a legal claim, but they didn't even understand that these other comments were being made on the internet. [00:03:38] Speaker 04: such that that could have... Are you talking about the 2018 public? [00:03:43] Speaker 05: Yeah. [00:03:44] Speaker 05: Right. [00:03:45] Speaker 05: Those don't trigger inquiry notice to these plaintiffs either, because under California law, there's no rule of constructive suspicion. [00:03:52] Speaker 05: So the statute of limitations doesn't begin to run when some members of the public might know of something. [00:03:59] Speaker 05: It's only when, once the plaintiff has suspicion of wrongdoing. [00:04:02] Speaker 00: That's cases like... The only thing, I mean, all of your arguments, I think, [00:04:06] Speaker 00: do match up with California case law. [00:04:09] Speaker 00: The problem is, I guess, the one that Judge Nelson alluded to, that for these particular plaintiffs, I'm assuming that they never went to a lawyer. [00:04:19] Speaker 00: A lawyer came to them. [00:04:21] Speaker 00: And if the lawyer had come five years later, would that still be the case? [00:04:26] Speaker 00: And yet there seems to be no stopping point. [00:04:28] Speaker 00: That's the problem. [00:04:30] Speaker 05: I think maybe that's where the jury question comes in. [00:04:34] Speaker 05: We've alleged facts that we suggest made it reasonable for these... Well, but I'm sure they're all true, actually. [00:04:40] Speaker 00: And there's no way these... I mean, if they can't read and write in any language, how would they know what's going on in the internet? [00:04:45] Speaker 00: They never would know unless somebody told them. [00:04:49] Speaker 05: I think perhaps statutes of repose would be the answer to your question. [00:04:52] Speaker 05: If there are statutes of repose, at some point, meta gets reposed whether or not the discovery rule applies. [00:04:56] Speaker 00: But this isn't a statute of repose. [00:04:57] Speaker 05: I'm sorry? [00:04:57] Speaker 05: No, statute of limitations. [00:04:59] Speaker 00: I know. [00:04:59] Speaker 00: It's not a statute of repose. [00:05:01] Speaker 00: It could be, but you could write one. [00:05:04] Speaker 04: Yes, you could have one. [00:05:06] Speaker 04: But you're saying California currently doesn't have that, and they could be facing these claims 50 years from now. [00:05:12] Speaker 05: If that's my answer is the answer to your concerns about couldn't could this be 50 years later is statute of repose but under California law So you're just saying it's California law. [00:05:24] Speaker 00: Well, what about latches? [00:05:25] Speaker 00: There might be a latches issue. [00:05:27] Speaker 04: There may be latches Well, but how would latches apply if the theory is we didn't know about it until an attorney came and sat down with us and [00:05:35] Speaker 04: I mean, I don't know how you would apply. [00:05:37] Speaker 04: I mean, I don't know. [00:05:38] Speaker 04: Maybe you would apply latches to the attorneys. [00:05:40] Speaker 03: But the tail end of latches is reliance by the person now being sued 50 years later. [00:05:44] Speaker 03: So there's a reliance issue that comes in in latches that doesn't exist if you're just doing statute of limitations. [00:05:52] Speaker 00: I'm just going with, as you said, I'm- Because in fact, I mean, in terms of prejudice to Metta, there probably isn't any. [00:05:59] Speaker 00: I mean, although usually limitations are about the lapse of access to evidence and so on. [00:06:10] Speaker 00: I mean, all this evidence is sitting there on the internet. [00:06:12] Speaker 00: It's not going to be a problem accessing it. [00:06:14] Speaker 00: So in that way, in a latches sense, there's probably not a problem as to Metta. [00:06:21] Speaker 05: And we're not talking about long periods of time here. [00:06:25] Speaker 05: These are a few years. [00:06:27] Speaker 04: Well, it's still a pretty long period of time, depending on how you look at it. [00:06:32] Speaker 04: So the basics is the Facebook post, right? [00:06:37] Speaker 04: You sort of suggested that it wasn't just that. [00:06:39] Speaker 04: I thought the basis for their claims or how the claims here are really the faith. [00:06:43] Speaker 04: I mean, isn't your point that that the introduction of Facebook was such a significant inflection point that you know, and they couldn't understand that. [00:06:53] Speaker 04: And then when that was explained to them, that's what [00:06:57] Speaker 05: That's when they have their villages are attacked. [00:06:59] Speaker 05: They're in the middle of the night. [00:07:00] Speaker 05: They're fleeing for their lives. [00:07:02] Speaker 05: They have no clue that a U.S. [00:07:04] Speaker 05: social media company may have some responsibility. [00:07:08] Speaker 04: I mean, but I think lying claims are. [00:07:11] Speaker 04: a little attenuated. [00:07:14] Speaker 04: I guess my point is, all they knew was they were being attacked and that was going on. [00:07:21] Speaker 04: That's been happening long before Facebook ever came on. [00:07:26] Speaker 04: These tensions, this isn't something new that's been fomented by Facebook. [00:07:31] Speaker 05: Am I right about that? [00:07:34] Speaker 05: Meta overstates our complaint on that ground. [00:07:37] Speaker 05: We do allege that there's been sort of longstanding persecution and some sporadic violence. [00:07:46] Speaker 05: But as you noted, we allege that Facebook's introduction into Burma was a key inflection point in the treatment of the Rohingya, turning sporadic violence into widespread mob action, widespread genocide. [00:07:58] Speaker 05: That's paragraphs 14 through 27 of the First Amendment. [00:08:02] Speaker 04: But if Facebook was so integral to that, if the Facebook posts were so integral to this change, as you suggest, don't you think that even if they were illiterate that they would have, I mean, the discussion would have gotten around that, oh, yeah, we wouldn't have done this except that, you know, we coordinated and they would have heard that their enemies were, you know, coordinating through Facebook and being driven by that? [00:08:26] Speaker 05: No, I don't think so. [00:08:27] Speaker 05: And again, not to sound like a broken record, but I think that's the kind of thing that a jury gets to decide. [00:08:32] Speaker 05: That a jury gets to decide, yeah, of course, maybe they should have heard it somewhere, somehow. [00:08:36] Speaker 05: But I think we get to get there to a jury. [00:08:39] Speaker 05: There's no dispute that they didn't learn of this until shortly before filing their suit. [00:08:43] Speaker 05: There's no dispute on that. [00:08:44] Speaker 05: Actual discovery is not an issue. [00:08:46] Speaker 05: So the question is, when was it reasonable for them to have discovered? [00:08:49] Speaker 05: Or were they reasonably diligent? [00:08:53] Speaker 05: And this court has repeatedly said that that's a jury question. [00:08:55] Speaker 05: Trimble v. Moss, Nevada Power Company. [00:08:57] Speaker 00: And the California case law is clear that it depends on the individual's circumstances. [00:09:03] Speaker 00: Is that right? [00:09:04] Speaker 05: Correct. [00:09:05] Speaker 05: What the individual knows. [00:09:07] Speaker 00: So things like- The point here seemed to be that [00:09:12] Speaker 00: Metta came into Burma and flooded and sold all these these and put their Facebook on all the cell phones and just flooded the market with it. [00:09:28] Speaker 00: So most of the people in Burma would at least know that Metta was there and that it was and that Facebook was there and that [00:09:35] Speaker 05: I think most of the ethnic Burmese majority would know that. [00:09:40] Speaker 05: I'm not sure that the ethnic minority Rohingya would know that. [00:09:43] Speaker 03: It's a bit of a stretch to say that we can say without any doubt that illiterate village women would have understood how the computer system works, that meta is now available on the Internet. [00:09:57] Speaker 03: It seems a stretch to say that they would have known. [00:09:59] Speaker 03: And I agree with you that that's a factual question. [00:10:02] Speaker 03: Sure. [00:10:02] Speaker 03: Thank you. [00:10:03] Speaker 05: And we specifically allege that. [00:10:04] Speaker 05: We specifically allege that this connection between Facebook and the violence was not well known within the Rohingya community. [00:10:10] Speaker 04: So let's say that we agree with you that there's a problem on the statute of limitations. [00:10:17] Speaker 04: Your position is to send it back. [00:10:19] Speaker 04: On the 230 question, I mean, that's a purely legal question. [00:10:25] Speaker 04: And so I'm wondering why we wouldn't just grapple with it now. [00:10:29] Speaker 04: and so I guess I'm asking you to address the merits of the 230 because I mean you may have read some of my opinions and know that I'm very skeptical of 230 and what it's done but this and I want you to respond to this because but this seems to fit right within the sweet spot of what 230 was intended to protect and so why don't you tell me why that's not true absolutely your honor so with respect to 230 I think it's important to understand in this case this is not a typical 230 case because of our [00:10:59] Speaker 05: to section 230 arguments. [00:11:01] Speaker 05: The first being, we don't believe the CDA immunizes metas conduct here. [00:11:06] Speaker 05: And I can address that in a second. [00:11:07] Speaker 05: But just to be clear, our second argument is that even if the CDA does immunize metas conduct, that creates a conflict with Burmese law. [00:11:15] Speaker 05: California choice of law inquiry would point to the application of Burmese nonimmunity law. [00:11:20] Speaker 05: That's a really complicated, fact-intensive inquiry, which is why I think this court should not address it in the first place. [00:11:27] Speaker 00: It's a legal question. [00:11:30] Speaker 05: Well, determining the content of foreign law is sort of this flexible inquiry. [00:11:34] Speaker 00: I mean, we haven't really been given too much help on that. [00:11:37] Speaker 00: So if we were to do that, maybe we'd have to have more briefing on it. [00:11:40] Speaker 00: And it does seem interesting to me, and possible at least. [00:11:46] Speaker 00: The response seems to be that because it's federal law, that California choice of law can't eliminate the [00:11:57] Speaker 00: operation of federal law, but doesn't that happen all the time? [00:12:00] Speaker 05: Does California choice of law trump US law? [00:12:02] Speaker 05: Yeah, it does happen all the time. [00:12:03] Speaker 05: It happened. [00:12:04] Speaker 05: We cite the Besigi case, and we cite the Stud case. [00:12:08] Speaker 05: And in the Besigi case, for example, this court engaged in a California choice of law inquiry to determine whether US or Hong Kong law applied to a contract involving investments in Iran that US law would bar. [00:12:21] Speaker 05: And the court did not, as Metta suggested, should do here. [00:12:24] Speaker 05: The court didn't simply say that, well, California choice of law rules can't trump US law. [00:12:28] Speaker 05: We have to apply the US sanctions law. [00:12:30] Speaker 05: the court engaged in a California choice of law analysis. [00:12:32] Speaker 00: I mean, it could be that the California choice of law analysis would take into account a strong federal interest. [00:12:42] Speaker 05: Absolutely. [00:12:42] Speaker 00: And we exhibited in 230. [00:12:46] Speaker 05: Absolutely. [00:12:47] Speaker 05: And we did brief that below. [00:12:48] Speaker 05: And it's docket 35 below. [00:12:50] Speaker 05: It's actually in the supplemental excerpts of record, SER 109, our brief on the California choice of law analysis, if this court wanted to look at it. [00:12:58] Speaker 05: But again, I think that's another reason why this court shouldn't weigh in on it. [00:13:02] Speaker 05: There's a lot going on. [00:13:03] Speaker 05: It's not a pure question of, does the CDA law apply here? [00:13:06] Speaker 05: Should we apply Dyerhoff? [00:13:07] Speaker 00: Without that question, yes. [00:13:14] Speaker 00: Leaving aside Judge Nelson's suggestion, and as you probably also know, I just entered or concurred in Google, but I concurred because it seemed to me clear that dry-off and other cases and now later ones since then in this circuit seem, although I disagree with it, to regard the [00:13:43] Speaker 00: what you call the enhancement aspects of Facebook's communication system as part of the Roll 230 immunity. [00:13:54] Speaker 00: So, I mean, what room, what daylight is there between Google and the post-Google cases and this one in that regard? [00:14:05] Speaker 05: In that regard, I think the material contribution point is our strongest distinction there. [00:14:11] Speaker 05: And we allege that Metta materially contributed to what made these third-party posts harmful, tortious, unlawful. [00:14:18] Speaker 00: But that was true. [00:14:19] Speaker 00: And in Google, Google was about the terrorists, ISIS terrorists and other terrorists. [00:14:25] Speaker 00: And the allegation was that YouTube was sending out [00:14:31] Speaker 00: suggestions saying, if you like this terrorist video, you'll probably like that terrorist video. [00:14:39] Speaker 00: And some of them were even more disturbing than the ones that they got you to begin with. [00:14:48] Speaker 00: So how was that different from what you're saying? [00:14:52] Speaker 05: This court in Gonzalez v. Google said, quote, the complaint does not allege that Google's algorithms prompted ISIS to post unlawful content. [00:15:01] Speaker 05: And that's the distinction. [00:15:02] Speaker 05: We allege that Metta's algorithms prompted the posting of unlawful content. [00:15:08] Speaker 05: That's the information that came mostly from the Francis Haugen memo and the Francis Haugen testimony. [00:15:15] Speaker 00: That's sort of a causation problem. [00:15:16] Speaker 00: That's not a section 230 problem. [00:15:19] Speaker 05: Well, but the point is that our allegation is that these algorithms, this dopamine feedback loop that we talk about, where Metta encourages the posting, people to create more and more violent posts, that that is a material contribution to what made the content unlawful. [00:15:39] Speaker 05: I think it's very similar to a case out of the Seventh Circuit, who on? [00:15:42] Speaker 05: where in Wuhan, the Seventh Circuit said, a company can be liable for inducing another to post a defamatory statement in a form that the company maintains. [00:15:51] Speaker 05: So in Wuhan, the plaintiff had sued a website for defamation based on third-party comments on the website. [00:15:57] Speaker 05: And the Seventh Circuit said, no CDA immunity, because the plaintiff had alleged that the website had, among other things, encouraged the most defamation-prone commenters to post more comments and continue to escalate the dialogue. [00:16:10] Speaker 00: Perhaps I just know too much about the Google case because I was there, but that's how I understood it. [00:16:16] Speaker 04: You're fomenting the... I think it's a very nuanced distinction, but I don't think the fact... The problem is this case just does not seem like the case to move the ball against 230. [00:16:34] Speaker 04: I mean, it just seems so attenuated here. [00:16:38] Speaker 05: are you talking about the causation issue? [00:16:40] Speaker 05: I think the causation, again broken record, causation is generally a jury question. [00:16:48] Speaker 05: And I agree, it's not [00:16:52] Speaker 05: necessarily direct but we we allege two main steps in the causal chain we allege that uh... first first principle step back to algorithm stuff though right yeah it goes back to the algorithm you're not claiming that there was somebody back at facebook saying oh this would be good of course we don't think mark zuckerberg wants to foment [00:17:12] Speaker 05: Right genocide. [00:17:13] Speaker 04: So in and so your claim is really at some point they knew about this and didn't step in to correct the algorithm that was going out. [00:17:26] Speaker 05: They know these algorithms are dangerous, and they didn't step in. [00:17:30] Speaker 05: And had they not used these algorithms, and they weren't using these algorithms before 2009. [00:17:36] Speaker 00: I'm sorry? [00:17:38] Speaker 00: It's not that the, as I understand your argument, it's not that the algorithms themselves were dangerous, but that in this context, they were creating a dangerous situation. [00:17:51] Speaker 05: Respectfully, our allegation is that the algorithms are dangerous. [00:17:54] Speaker 05: In general? [00:17:55] Speaker 04: Because the algorithm was actually substantively highlighting dangerous posts? [00:18:03] Speaker 00: Yes. [00:18:04] Speaker 00: In this instance, but presumably the algorithms were operating on, they were promoting more attractive or more invigorating posts, but that could be sexually or it could be something else that's not dangerous to anybody. [00:18:22] Speaker 00: But this is, you're saying, but this, as it operated in this circumstance, it was dangerous. [00:18:28] Speaker 05: Our allegation is that the way Metta's algorithms work, and we're operating clearly without the kind of information that Metta has about how their algorithms work, but based on the Haugen leaked memo and the Haugen testimony, our understanding is that these algorithms are dangerous in that if a post or posts two posts, one about Rohingya genocide and one about puppies, that the algorithms will promote, favor the [00:18:53] Speaker 04: Yeah, but I understand the outcome. [00:18:56] Speaker 04: I think what we're getting at is the input. [00:18:58] Speaker 04: It's not because the substance of of genocide. [00:19:05] Speaker 04: It's because apparently, if at all, because more people are clicking on it than the puppies. [00:19:12] Speaker 04: I mean, if more people are clicking on the puppies, they're going to they're going to push puppies out. [00:19:17] Speaker 04: I mean, it's not because they have an algorithm that says, hey, when you see genocide, let's give that an extra bump. [00:19:24] Speaker 05: These algorithms work, and again, this isn't how the algorithms worked prior to 2009. [00:19:29] Speaker 05: These are new algorithms. [00:19:31] Speaker 05: These algorithms are not neutral. [00:19:34] Speaker 05: They do not promote harmless content in the same way that they promote dangerous content. [00:19:39] Speaker 05: That's our allegation. [00:19:40] Speaker 05: Maybe we're wrong about that, but those are our allegations. [00:19:43] Speaker 04: Because you think there's actually something inherently, substantively built into the algorithm that promotes the dangerous activity. [00:19:51] Speaker 05: The way they work, the way they train users to create more and more dangerous content, as opposed to more and more puppy content, because dangerous content gets more clicks, likes, reactions than puppy content does. [00:20:02] Speaker 00: Well, if it does. [00:20:03] Speaker 00: Those are our allegations. [00:20:08] Speaker 00: So there's also the dry-off opinion, which [00:20:12] Speaker 00: disturbs me a great deal, but how do you distinguish that one? [00:20:16] Speaker 00: I know you tried to, but it seemed to me, well, tell me why that's not controlling here. [00:20:23] Speaker 05: It's the same distinction as I suggested on Gonzalez. [00:20:27] Speaker 05: This court in Dyerhoff said, quote, plaintiff cannot and does not plead that defendant made suggestions regarding the content of potential user posts or contributed to making unlawful or objectionable user posts. [00:20:38] Speaker 05: So I think it goes back to the material contribution point. [00:20:40] Speaker 05: I think our strongest. [00:20:41] Speaker 00: I don't understand that statement, because the whole case was about the fact that they were referring [00:20:49] Speaker 00: the person asked to be referred or asked something about how do you buy heroin and they referred him to a group in which [00:21:01] Speaker 00: heroin was being sold. [00:21:02] Speaker 00: So there was a message that was communicated through the algorithms that if you want this, go there. [00:21:09] Speaker 00: And I don't understand what it means to say that they didn't do that. [00:21:12] Speaker 05: I think a recommendation, and if I'm over my time. [00:21:14] Speaker 00: It's a recommendation. [00:21:15] Speaker 05: I think there's a difference between recommendation algorithms saying you might like this person who wants to sell heroin in Jacksonville as opposed to algorithms that encourage [00:21:29] Speaker 05: drug dealers in Jacksonville to post about their wares on the site. [00:21:34] Speaker 05: I don't think Dirof alleged that the Experience Project website there encouraged drug dealers to post, encouraged criminals to post, but it matched people up. [00:21:46] Speaker 00: If people were referred to them and they there forgot to sell their wares, that was encouraging them. [00:21:52] Speaker 05: It wasn't encouragement in the same way that we alleged that the meta-algorithms train users. [00:21:57] Speaker 00: Can I ask one other question? [00:21:58] Speaker 00: Please. [00:22:00] Speaker 00: as an alternative way of looking at this case, what about the probable cause, the, oh yeah, the probable cause, proximate cause question. [00:22:10] Speaker 05: Proximate cause. [00:22:11] Speaker 05: Again, I think the, with respect to proximate cause, I think in Aletto, I think this case, or this court said that proximate cause is generally, [00:22:24] Speaker 05: is generally a question for the jury. [00:22:27] Speaker 05: And I think this case is even less attenuated than the causal chain in Aletto. [00:22:35] Speaker 00: But as to the connection of these postings and algorithms to these people in their towns, [00:22:50] Speaker 00: There are some statements in the complaint, but there's no spinning out of how that happened. [00:23:00] Speaker 00: It just says something about the meta promotion of the Rohingya genocide, you know, came to this town. [00:23:12] Speaker 05: We alleged the algorithms incentivize people to create incitements to violence. [00:23:16] Speaker 05: And then the second prong of our causation chain is that incitements to violence were posted, and they were posted in Jane Doe One's community at the time that her village was attacked, in Jane Doe Two's community at the time her village was attacked. [00:23:30] Speaker 05: Oh, I think we do. [00:23:32] Speaker 05: I would urge you to look at paragraphs 50 to 59 with respect to Jane Doe 1 and paragraph 68 to 83 with respect to Jane Doe 2. [00:23:39] Speaker 05: Jane Doe 1, we alleged that there were posts offering money to those who would rape and kill Rohingya in Jane Doe 1's community. [00:23:46] Speaker 05: With respect to Jane Doe II, we talk about comments on the feeds of soldiers that were operating in Jane Doe II's area in 2017, saying, shoot the KLR, which is a derogatory term for Rohingya, shoot the KLR, shoot them all, don't even let one of them escape, smash them all. [00:24:02] Speaker 05: And yes, this is circumstantial evidence. [00:24:06] Speaker 05: But this is the best we can do at the pleading stage. [00:24:09] Speaker 05: MEDA is uniquely in possession of the kind of evidence relevant to causation. [00:24:14] Speaker 05: They will have granular information about their users, about their users' locations, about the posts they were making, the posts they were reading. [00:24:20] Speaker 05: And we hope to be able to tie all that together. [00:24:22] Speaker 05: But I think this is just another illustration of why we should get the district court's view on causation before this court tries to do that. [00:24:32] Speaker 04: OK, thank you. [00:24:33] Speaker 04: We'll give you some time. [00:24:34] Speaker 05: Thank you, Your Honor. [00:24:43] Speaker 02: May it play to the court. [00:24:44] Speaker 02: Excuse me. [00:24:47] Speaker 02: Kristin Linslie for Metta. [00:24:51] Speaker 02: First, I'll start with statute of limitations, and I can address the other issues as well. [00:24:56] Speaker 02: The court should affirm the judgment because the district court was correct in holding the plaintiff's claims. [00:25:01] Speaker 02: which were filed in 2022, were barred based on the attacks in their village in 2012 and 2017. [00:25:08] Speaker 02: The parties agree that we're applying. [00:25:11] Speaker 00: I should say that I would appreciate your getting to the choice of law question. [00:25:14] Speaker 00: Not necessarily now, but getting to the choice of law question. [00:25:19] Speaker 02: the choice of law on the 230. [00:25:22] Speaker 02: I can start right there, I don't mind doing that. [00:25:25] Speaker 02: I was actually, I know that Gonzales case, I was arguing Tamna the same day on that crazy lengthy Zoom argument, so I have vivid memories of that. [00:25:37] Speaker 02: But, yes, the choice of law, of course, the court did address it in Gonzales, although that's not a presidential opinion anymore. [00:25:45] Speaker 02: The district, I mean, I'm sorry, both the district court and the Second Circuit addressed it in the Forrest v. Facebook case as well. [00:25:52] Speaker 02: And the district court, of course, addressed the issue in Gonzales as well. [00:25:57] Speaker 02: Magistrate Judge Ryu addressed it there. [00:26:00] Speaker 02: Every court that's addressed this issue has come out the same way. [00:26:03] Speaker 02: that no, California choice of law principles do not interfere with the fact that section 230 is a domestic application of US law that is applicable to and binding in US courts, including federal courts and state courts. [00:26:21] Speaker 02: It's an admonition that courts shall not treat a person that's covered by the statute as a publisher or speaker of third party content, and that C2 as well applies where it applies in both sets of courts, federal US courts and [00:26:41] Speaker 02: state US courts. [00:26:42] Speaker 02: So there's no room for application of California choice of law principles to override that because it is a command of federal law that is applicable via the supremacy clause in both federal and state courts in the United States. [00:26:57] Speaker 02: It doesn't matter what law [00:26:58] Speaker 02: underlying law is being applied in the Forrest v. Facebook case. [00:27:04] Speaker 02: The plaintiffs were arguing Israeli law. [00:27:06] Speaker 02: That was their underlying substantive law and they only made the argument as to those claims. [00:27:12] Speaker 02: They said the claims that are, they didn't make the argument as to their claims under U.S. [00:27:18] Speaker 02: law. [00:27:19] Speaker 02: They made the argument as to their claims under Israeli law that those claims somehow were not subject to Section 230. [00:27:26] Speaker 02: And the court said no, because under the Kyobel and other line of cases, the RJR case, Supreme Court extraterritoriality cases, that was not an extraterritorial application of the law, because it's step two of Kyobel. [00:27:42] Speaker 02: First is, does it apply? [00:27:43] Speaker 02: Is it meant to apply to overseas conduct? [00:27:46] Speaker 02: No. [00:27:47] Speaker 02: Step two, is this a domestic application? [00:27:50] Speaker 02: And the answer is yes, it's a domestic application because the focus of the law. [00:27:56] Speaker 02: is on the treatment of ICS providers in US courts with causes of action alleged against them in US courts, regardless of the source of law. [00:28:07] Speaker 02: So I think that's a correct analysis that this court engaged in, the Second Circuit engaged in. [00:28:13] Speaker 03: And I don't think there's any room in there for- How extensive was the argument on this point to the district court? [00:28:20] Speaker 02: In Gonzalez? [00:28:21] Speaker 02: In this case? [00:28:22] Speaker 02: Oh, in this case. [00:28:23] Speaker 02: I don't remember it being extensive. [00:28:26] Speaker 02: I think it was mostly in the briefs. [00:28:28] Speaker 01: I don't remember if it came up at the oral argue. [00:28:31] Speaker 02: We had only one argument before Judge Gonzalez-Rogers. [00:28:34] Speaker 02: In this case, there was the original motion to dismiss, which she granted on both statute of limitations and causation. [00:28:42] Speaker 02: And she also said that she was skeptical of some of the other elements of their claim as well. [00:28:47] Speaker 02: There was that hearing, and then she didn't hold the hearing the second time around. [00:28:50] Speaker 02: She just granted our motion on the papers. [00:28:53] Speaker 02: So I don't recall the first hearing was some time ago, but I don't think we recall whether this particular issue was talked about at argument, but it was definitely briefed below. [00:29:05] Speaker 03: Yeah. [00:29:06] Speaker 03: Where I'm headed with this, obviously, is wondering whether we should remand, as suggested by your friend on the other side. [00:29:12] Speaker 02: I don't think for that issue, no, because it's a pure question of law. [00:29:16] Speaker 02: I don't think there's any reason why this court can't address it. [00:29:19] Speaker 02: It's fully briefed. [00:29:23] Speaker 04: But we would have to address the trace of law question in conjunction if we were to rule on the alternative grounds. [00:29:30] Speaker 04: address the choice of law question in conjunction with the 230 question? [00:29:34] Speaker 02: Sure, sure. [00:29:35] Speaker 02: But I don't think it, I mean, I think like... It's a question of law. [00:29:38] Speaker 02: Yeah. [00:29:38] Speaker 02: And, you know, going back to the Planned Parenthood criteria for reaching issues at this level that weren't the subject of the court's decision below, we think that the court, there's every reason for the court, if it wishes to not rule on the statute of limitations, [00:29:56] Speaker 02: Address the alternative grounds Planned Parenthood sets up You know a few criteria for doing that where it makes sense and it's more efficient for this court to just go ahead and decide the issue One is the issues purely legal and we think most of the issues that we're presenting section 230 Causation is really something that oftentimes is decided as a matter of law It can be a question of fact but but court after court after court including the California Supreme Court has said if [00:30:24] Speaker 02: If it's apparent on the face of the complaint that the links between the chain of causation pieces are too attenuated, the court can and should rule as a matter of law on that. [00:30:34] Speaker 02: So I think that criteria of planned parenthood is met. [00:30:38] Speaker 02: There's an effect of a delay. [00:30:40] Speaker 02: The facts of this case happened a long time ago. [00:30:44] Speaker 02: There's no real reason for delay. [00:30:45] Speaker 04: Let me go back to the statute of limitations. [00:30:48] Speaker 04: I mean, when I first read this, the district court opinion seemed fairly intuitive that there's no claim here. [00:30:57] Speaker 04: You start digging into the California cases, and that becomes a little less clear. [00:31:03] Speaker 04: California has some nuances here, and I guess I'd be interested in your position on [00:31:10] Speaker 04: I assume your answer is yes to this question, but maybe explain why. [00:31:14] Speaker 04: Did the district court adequately look at California law specifically as opposed to just a general understanding of, you know, statute of limitations more generally? [00:31:27] Speaker 02: Yeah, the court did apply, correctly apply California law. [00:31:31] Speaker 02: And I think there's two key pieces that I would highlight for the court on that. [00:31:36] Speaker 02: And this, the court below did get this correct. [00:31:39] Speaker 02: is that the statute of limitations is subject to tolling under the discovery rule. [00:31:44] Speaker 02: It's not really tolling. [00:31:45] Speaker 02: It's just the claim doesn't accrue until the discovery occurs. [00:31:49] Speaker 02: Discovery occurs when you, and this is under Fox, but it's also under Jolly. [00:31:53] Speaker 02: Those are kind of the two bedrock California Supreme Court cases. [00:31:57] Speaker 02: If you've suffered an injury and the [00:32:05] Speaker 02: And you're aware that there's a wrongful cause. [00:32:09] Speaker 02: So you've suffered an injury and you're aware that there's a wrongful cause, you have a duty to investigate. [00:32:14] Speaker 02: Then you're charged with whatever the duty. [00:32:16] Speaker 04: But how would their duty to investigate here be implicated when they didn't even know about the internet? [00:32:25] Speaker 02: Well, under Jolly, Jolly's probably the case I would point to most clearly says this, is that if you've suffered an injury and there was wrongful conduct involved, it doesn't matter that you didn't have knowledge of facts underlying a cause of action. [00:32:43] Speaker 02: It didn't matter if you didn't know what wrongful conduct might have happened. [00:32:47] Speaker 02: It didn't matter if you didn't know who the defendant was. [00:32:51] Speaker 02: In that case, it was a DES baby. [00:32:53] Speaker 02: Her mother had ingested DES. [00:32:55] Speaker 02: to avoid miscarriage, and that led to a series of well-documented illnesses. [00:33:04] Speaker 00: When was that case decided? [00:33:05] Speaker 02: Jolly? [00:33:07] Speaker 02: Jolly was back in, I want to say 1998, I think. [00:33:12] Speaker 02: I'm sorry, 1988, yes, right. [00:33:14] Speaker 00: 1988. [00:33:15] Speaker 00: And then that- Then we've had a fair amount of explication of California law, which does seem to say that you can have different start dates for different [00:33:30] Speaker 02: sources of injury. [00:33:32] Speaker 02: But I don't think that is consistent with what triggers the duty to investigate. [00:33:40] Speaker 02: In Fox, what the court held was that the plaintiff had a duty to investigate, which was triggered by her initial surgery and the problems with that surgery. [00:33:50] Speaker 02: She then did attempt to allege that she had investigated. [00:33:55] Speaker 02: She said it wouldn't have yielded anything. [00:33:57] Speaker 02: And the court said that was an insufficient complaint and upheld the dismissal of that complaint. [00:34:02] Speaker 04: Well, that seems different than what we have here, if I'm understanding. [00:34:05] Speaker 04: Because here, their claim is we never even knew. [00:34:09] Speaker 04: I mean, why would we even assume that we had a duty to investigate? [00:34:12] Speaker 02: But the difference is that they knew [00:34:16] Speaker 02: The triggering event was that the exact same injury that they're currently complaining about, which was the attack on their village. [00:34:25] Speaker 02: Our village was attacked. [00:34:26] Speaker 02: We witnessed people being brutally treated. [00:34:29] Speaker 02: We had to flee the country because of our fear of similar violence happening toward us and other family members. [00:34:37] Speaker 02: We fled. [00:34:38] Speaker 02: That's the exact injury they're now complaining about. [00:34:41] Speaker 02: They knew about that injury when it happened in 2012 and 2017. [00:34:47] Speaker 04: I agree with you. [00:34:49] Speaker 04: What they didn't know, allegedly, was what brought on that injury. [00:34:57] Speaker 04: And I don't know that they would have had any reason to know what brought [00:35:01] Speaker 04: Fox says, until the plaintiff discovers or has reason to discover the cause of action. [00:35:09] Speaker 04: But again, I don't know why that wouldn't apply here to say that, I mean, they knew they had a cause of action against the people who perpetrated violence, but they wouldn't have had any reason to suspect that they had a cause of action against [00:35:25] Speaker 02: But they had a duty to investigate, and that's clear under Jolly and under Fox. [00:35:30] Speaker 00: What Fox says- Well, if they had a duty to investigate, and there's no way they would have found this if they investigated. [00:35:36] Speaker 02: But see, I don't think that is correct, nor is it supported by what's in the complaint. [00:35:41] Speaker 02: The complaint, nothing in these cases says that you have to personally know [00:35:46] Speaker 02: or personally conduct investigation. [00:35:48] Speaker 02: You need to ask somebody. [00:35:49] Speaker 02: You maybe find a lawyer. [00:35:51] Speaker 02: The fact that you don't speak English. [00:35:52] Speaker 02: In Burma, in this little village, why they're fleeing the Burmese? [00:35:55] Speaker 02: Well, no. [00:35:56] Speaker 02: Jane Doe, one, came to the United States. [00:35:58] Speaker 02: She doesn't allege she was in a village. [00:36:00] Speaker 02: The other one, Jane Doe, two, alleges that she was in a refugee camp with other people in her community. [00:36:06] Speaker 02: There's no allegation that she spoke with people in her community. [00:36:08] Speaker 00: Are you saying that it should have been [00:36:10] Speaker 00: The limitations period, which was two years, I don't think she was in the United States by then, but I don't remember. [00:36:19] Speaker 00: In any event, are you saying it should have been sooner at least, even if it wasn't within the limitations period? [00:36:24] Speaker 00: Is that what you're saying? [00:36:25] Speaker 00: I'm saying she had a duty to investigate. [00:36:28] Speaker 02: that was triggered by her witnessing the events that she witnessed. [00:36:34] Speaker 02: As of when? [00:36:35] Speaker 02: As of 2017, there was a duty to investigate. [00:36:38] Speaker 02: As of 2012, in the case of Jane Doe I, but she was a minor, she became 18 in 2014. [00:36:44] Speaker 02: So in her case, the duty to investigate. [00:36:47] Speaker 00: And why 2017? [00:36:50] Speaker 02: Well, the second Plaintiff Jane Doe II, her village was attacked in 2017. [00:36:54] Speaker 02: So the duty was triggered by the witnessing of the injury. [00:37:00] Speaker 02: We're not arguing constructive suspicion. [00:37:03] Speaker 02: We're arguing actual suspicion of injury. [00:37:06] Speaker 02: And what Fox says is, and this is only the duty to investigate, the court doesn't say, and the Supreme Court of California has made this clear, you don't have to discover [00:37:17] Speaker 02: your cause of action. [00:37:18] Speaker 02: You just have to conduct a reasonable investigation and plead what you did and plead that you didn't find anything at that time. [00:37:26] Speaker 02: They don't plead that. [00:37:28] Speaker 02: They just plead, oh, it would have been futile. [00:37:30] Speaker 02: It would have been worthless to even try. [00:37:32] Speaker 02: That's what they allege. [00:37:34] Speaker 04: Fox, I mean, this is what gives me some pause is the Fox language because Fox [00:37:38] Speaker 04: It says when the duty to investigate is triggered, when the plaintiff has reason to suspect an injury and some wrongful cause. [00:37:49] Speaker 04: I mean, obviously, when you're attacked, again, you know that they attacked, but I'm not sure you always think, oh, I need to go find out who instigated that. [00:38:00] Speaker 04: I need to find out what the conspiracy is behind this. [00:38:03] Speaker 02: The wrongful cause was the soldiers and other people who attacked the village. [00:38:07] Speaker 02: That's a wrongful cause under Fox. [00:38:10] Speaker 04: That seems to go to a causation. [00:38:11] Speaker 04: That doesn't go to some... I mean, the wrongful cause of this happening here is the allegation [00:38:20] Speaker 04: you know, however attenuated it may be, that Facebook actually put this into play. [00:38:25] Speaker 02: There's no dispute that the cause of the injuries, the immediate cause of the injuries, was the soldiers attacking the village and committing violence. [00:38:34] Speaker 02: They can't allege that. [00:38:35] Speaker 02: They don't allege that that's not the root cause. [00:38:37] Speaker 03: Yes, but of course that's not the cause that they're alleging is the wrongful cause. [00:38:43] Speaker 03: That is to say what they're alleging is that [00:38:46] Speaker 03: What brought this about was the facilitation by Facebook. [00:38:53] Speaker 03: So, of course they knew they were attacked. [00:38:56] Speaker 03: They got that. [00:38:57] Speaker 03: What they did not know was that Facebook's role in this. [00:39:00] Speaker 03: And what they're alleging is that the wrongful conduct of which they're complaining is Facebook's conduct, of which they had no knowledge. [00:39:07] Speaker 02: I understand that that's what they're saying, but the fact that they knew about, and there's issues with causation over that argument and that theory. [00:39:19] Speaker 02: But what they are saying is that Facebook, in some fashion or another, caused these bad people to do these bad things. [00:39:28] Speaker 02: So if you know about the bad people that did the bad things, under Jolly, you have a duty to investigate what other bad people might have contributed. [00:39:36] Speaker 02: And in Jolly, the court overruled a case that was called Kensinger. [00:39:41] Speaker 02: And in Kensinger, the court had said that the statute of limitations didn't start to run until the plaintiff had knowledge of the facts of a cause of action against the defendant. [00:39:52] Speaker 02: And until that happened, the statute didn't run. [00:39:55] Speaker 02: You had to know the facts constituting the wrongful conduct by the defendant. [00:40:00] Speaker 02: The court in Jolly said that is not California law. [00:40:02] Speaker 02: That goes too far. [00:40:04] Speaker 02: that it actually, you don't have to know. [00:40:08] Speaker 02: And in Jolly itself, the Court of Appeals, the California Court of Appeal in Jolly adopted the Kensinger Review in Jolly in the DES case and said the plaintiff there had to know facts establishing the wrongdoing that she was suing on, the failure to test or the failure to warn. [00:40:26] Speaker 02: That was what the court below and Jolly said. [00:40:29] Speaker 02: The plaintiff would have to know for the statute to run. [00:40:31] Speaker 02: And Jolly said, no. [00:40:33] Speaker 02: You just have to know you were injured in some fashion. [00:40:36] Speaker 02: You don't have to know who did it. [00:40:38] Speaker 02: But if you suspected you were wrong, that was enough to start the statute running. [00:40:42] Speaker 02: Then you had a duty to investigate. [00:40:44] Speaker 02: And again, you don't have a duty to find the cause of action necessarily. [00:40:49] Speaker 02: But our position here is had she investigated, whether by talking to people in her community, [00:40:55] Speaker 02: And there's two people. [00:40:56] Speaker 04: And what would she have found out by talking to people in her community? [00:40:58] Speaker 02: What would she have found out? [00:40:59] Speaker 02: Yeah. [00:40:59] Speaker 04: I mean, do you think that she would have found out that, hey, it turns out that there's this group on Facebook that is fomenting this? [00:41:09] Speaker 02: There's two things. [00:41:10] Speaker 02: One, yes. [00:41:11] Speaker 02: There's no allegation that if either of these plaintiffs, this is why you're supposed to have to allege what investigation you did. [00:41:19] Speaker 02: Because there's no allegation that if she had asked in her community, say Jane Doe, [00:41:23] Speaker 02: who's in a refugee camp on her way out of the country. [00:41:28] Speaker 02: Then she moved further. [00:41:30] Speaker 02: that she didn't ask around and say, hey, we just, you know, oh my gosh, we just got out of that horrible situation. [00:41:36] Speaker 02: Why did that happen? [00:41:37] Speaker 02: How did that happen? [00:41:38] Speaker 02: And as Your Honor noted earlier, the complaint repeatedly alleges that both in 2012 and 2017, Facebook was alive with posts about this issue. [00:41:52] Speaker 02: And some of them were directed, I think it's paragraph 84 in the complaint. [00:41:55] Speaker 04: The point is, if they had done some investigation, they would have discovered this. [00:41:59] Speaker 02: Yes, someone would have said, I heard that the posts were on Facebook. [00:42:03] Speaker 04: How do we decide that, though? [00:42:04] Speaker 02: Because they don't allege it. [00:42:05] Speaker 02: I think it's sufficient that they failure to allege. [00:42:08] Speaker 04: And that is somewhat consistent with what the district court did. [00:42:11] Speaker 04: The district court just said you didn't allege any investigation that you did. [00:42:16] Speaker 02: And then the other piece is that if they done further investigation most people would consult the lawyer now that you know You don't know but I mean you don't the California law is clear that there's not a different standard for people who have [00:42:31] Speaker 02: language issues, or that are in motion, or that are in Burma. [00:42:37] Speaker 00: Pardon me? [00:42:37] Speaker 03: An illiterate person in a refugee camp has an obligation to consult an American lawyer. [00:42:42] Speaker 03: Yeah, right. [00:42:43] Speaker 02: Well, Jane Doe One was not in a refugee camp. [00:42:46] Speaker 02: She was here in the United States. [00:42:47] Speaker 02: Within the statute of limitations period? [00:42:49] Speaker 02: Yes. [00:42:50] Speaker 02: She was here, I think, beginning. [00:42:52] Speaker 02: She doesn't allege when she landed, but she said she left in 2012 and came to the United States. [00:43:00] Speaker 02: There's no reason why she could not have consulted someone who might have referred her to a lawyer. [00:43:05] Speaker 02: And yes, the law in California doesn't create a different standard for that. [00:43:09] Speaker 02: It doesn't have a lower standard if you don't speak English. [00:43:13] Speaker 02: That's a case we cited. [00:43:14] Speaker 04: He referenced opposing counsel the Kernan case about the blame. [00:43:19] Speaker 04: It's to protect the blamelessly ignorant. [00:43:21] Speaker 04: I had not focused on that case. [00:43:23] Speaker 04: Are you aware of that? [00:43:24] Speaker 04: Do you have a response to that? [00:43:26] Speaker 02: I don't have the facts of that case in front of me. [00:43:31] Speaker 02: That was not a case that was prominently featured in the brief. [00:43:34] Speaker 02: As far as that quote goes, I don't think it proves anything. [00:43:39] Speaker 02: I didn't hear him say anything about the facts of that case that suggested there's a lower standard for people who allegedly don't have the wherewithal. [00:43:48] Speaker 02: But these are people who were in a community [00:43:50] Speaker 02: And they could have asked people in their community. [00:43:52] Speaker 02: There's no allegation that there weren't people around that they could have consulted to say, hey, what happened here? [00:43:58] Speaker 02: How did this happen? [00:44:00] Speaker 02: And I think my friend in the prior argument said, off the record, if you Google, you find people in [00:44:09] Speaker 02: who were in this community writing about it in the press. [00:44:13] Speaker 02: People are not illiterate in this entire community. [00:44:17] Speaker 02: There's no allegation that that's true. [00:44:19] Speaker 02: I think that plaintiff alleges the illiteracy rate is lower in this community, but there certainly is not, nor could there be any allegation that this entire community was illiterate. [00:44:30] Speaker 04: And there were some in 2012 and 13, there were some [00:44:34] Speaker 02: Writing I saw something later, but it was a person that had been clearly watching the post as they were happening He said he was 11 years old. [00:44:43] Speaker 02: He was looking on Facebook. [00:44:45] Speaker 02: He was seeing these posts and And he was you know upset about it And so I just I didn't want to go off the record in an inappropriate way but I'm just saying there's no allegation that I [00:45:00] Speaker 02: there wouldn't have been people that they could talk to about this. [00:45:05] Speaker 02: And also, if they had gone further and done even have somebody do a simple Google search, they would have popped up all this 2018 stuff, which is why we say the statute begins to run at the latest in 2018, because there was a UN report in their native language. [00:45:21] Speaker 02: that made a link between military use of Facebook in these atrocities. [00:45:29] Speaker 02: And there were statements by people at Facebook acknowledging that the Facebook, I'm sorry, at Metta that the Facebook platform was used by the military in these ways. [00:45:40] Speaker 02: And so that was again sufficient to trigger the statute and the need to bring a lawsuit in a timely way within the statutory period. [00:45:52] Speaker 00: Do you want to briefly address the merits of the Section 230 issue, and in particular the distinctions that your opponent gave, the suggestion with regard to the most relevant precedents? [00:46:06] Speaker 02: Yes, Your Honor, of course. [00:46:09] Speaker 02: The, I mean, this case, I think, is a textbook case of the application of Section 230. [00:46:16] Speaker 02: It's squarely within Dirof. [00:46:19] Speaker 02: It's squarely within a state of bride. [00:46:21] Speaker 02: And, you know, to the extent even that some of the cases have suggested it all turns on a duty to moderate. [00:46:28] Speaker 02: which is something that's in Calise, and that's something that HomeAway says, and Lemon as well, I think. [00:46:35] Speaker 02: It obviously is true of their claims. [00:46:37] Speaker 02: They're saying there shouldn't have been these algorithms recommending content. [00:46:40] Speaker 02: There shouldn't have been the ability to post likes and shares and to have comments that were of this incendiary nature. [00:46:48] Speaker 02: You should have had more monitors. [00:46:50] Speaker 02: They literally allege there should have been more Burmese-speaking monitors to be looking at this content as it was going by. [00:46:56] Speaker 02: So there couldn't be a more textbook case. [00:47:00] Speaker 02: Now, I do want to level set a bit on what counsel is saying about [00:47:08] Speaker 02: about this, I think his answer to Section 230 and to some of the causation issues and other issues as well is, well, Metta was inciting people to post this harmful content. [00:47:22] Speaker 02: Metta was encouraging people to post this harmful content. [00:47:26] Speaker 02: So that is just not borne out by the allegations of the complaint, nor could it be borne out. [00:47:34] Speaker 00: And that wasn't saying they were inciting them in some intentional way, directed at the [00:47:38] Speaker 00: Rohingya in particular, but if I can understand the distinction he was trying to make it is that the algorithms here were not neutral in the sense that they promoted and directed people towards the more inciting content over less inciting content and in that way [00:48:06] Speaker 00: sort of blew up the communication system so that it was focusing on the hateful and terrorist promoting material. [00:48:21] Speaker 00: because of the way the algorithm was structured, not simply because they were referring people and prioritizing communications based on their insightfulness, essentially. [00:48:38] Speaker 02: That's right. [00:48:38] Speaker 02: That's what they're saying in the brief, and I don't think that's really what they allege, but let me just speak to that directly. [00:48:45] Speaker 02: First of all, there's two things that they seem to be saying. [00:48:48] Speaker 02: One is the algorithms are serving content on people in a disproportionate way based on engagement. [00:48:55] Speaker 02: then they say because harmful content is stickier and more engaging, more people engage with harmful content, therefore the algorithms serve more of that on those people and maybe on other people as well, that there's more engagement. [00:49:10] Speaker 00: The question is whether that's a sufficiently distinct allegation from the ones in dry-off and [00:49:16] Speaker 00: Gubel versus Gonzalez and estate of bride that the section 230 determinations in those cases are not binding. [00:49:28] Speaker 02: Yes, because in our view, it is not. [00:49:31] Speaker 02: It is the same basic thing that was being alleged in Dirof, which is that the algorithms were steering people, including this young man, toward groups, recommending groups that had to do with heroin, either because someone had expressed an interest in heroin or otherwise, and were giving harmful recommendations to people and then serving on him. [00:49:51] Speaker 00: I'm trying to work with this distinction to see if it works. [00:49:55] Speaker 00: And I guess the distinction would say, [00:49:57] Speaker 00: But dry off was not a situation in which you were more likely to get directed to a heroin salesman if he asked for a heroin salesman than to a [00:50:10] Speaker 00: you know, puppy salesman if he asked for a puppy salesman. [00:50:14] Speaker 00: Right. [00:50:14] Speaker 02: But they don't allege that here either. [00:50:16] Speaker 02: That's the problem. [00:50:17] Speaker 02: All they allege is the same thing. [00:50:19] Speaker 02: Francis Haugen said, oh, engaging content is more sticky and more people engage with engaging content and therefore the algorithm favors that content over others. [00:50:28] Speaker 02: If, as we had the hypothetical before, if more people were engaging with puppies, the algorithm would do exactly that with the puppies. [00:50:36] Speaker 02: So it is not different from Dirof and there is no allegation that the algorithm was directly engaged with any of the posts that are alleged in the complaint. [00:50:45] Speaker 02: So just even that is not alleged that the algorithm recommended any of these posts to anybody or otherwise directed that any of these posts be created. [00:50:55] Speaker 02: The other thing that is relied on in the complaint is likes. [00:51:00] Speaker 02: So this is the incentive and the encouraging and the inciting argument. [00:51:05] Speaker 02: Well, you're inciting the bad posts because you're encouraging people to post them because the system rewards people who post these things. [00:51:16] Speaker 02: How does it reward them? [00:51:17] Speaker 04: It's a neutral system. [00:51:18] Speaker 02: Yes, it's not only neutral, but it's entirely third-party rewards. [00:51:22] Speaker 02: Every single like and comment and share is coming from another third-party user. [00:51:28] Speaker 02: Those are not coming. [00:51:29] Speaker 00: If you like this, you like that. [00:51:33] Speaker 00: It just seems so clear to me that that's outside communication and shouldn't be covered by the 230 that I get extremely frustrated. [00:51:43] Speaker 00: But I understand that that is the law of the circuit. [00:51:45] Speaker 00: But clearly there are communications coming from MEDA, two people. [00:51:53] Speaker 00: that are telling people who look at one insightful post that you should look at these other insightful posts. [00:52:05] Speaker 00: Is that not right? [00:52:05] Speaker 02: I mean, most of it pops up on your feed. [00:52:08] Speaker 02: It doesn't pop up on my feed, because I don't look at terrorist stuff. [00:52:12] Speaker 02: So what does pop up on my feed? [00:52:13] Speaker 00: A lot of innocuous stuff pops up on my feed. [00:52:16] Speaker 00: But if people are looking- Things you didn't ask for. [00:52:18] Speaker 02: If people are looking at terrorist content, and this is the premise of the Supreme Court, you know, assumed it was true for purposes of Tomna, that if you like terrorist content, you're going to get more of it. [00:52:30] Speaker 02: If you like puppies, you're going to get more of them. [00:52:33] Speaker 02: And that's certainly my experience. [00:52:34] Speaker 02: I get couches from Pottery Barn. [00:52:37] Speaker 00: From the meta, I don't understand because they're telling you if you like this. [00:52:41] Speaker 02: But there's no allegation in this case that any of the posts that are featured in the complaint were recommended by anybody. [00:52:48] Speaker 02: These are posts that people posted and then someone else liked or commented on them. [00:52:55] Speaker 02: And the posting and the comments are all third party. [00:52:58] Speaker 02: They're not coming from Metta and they're not generated by the algorithms. [00:53:02] Speaker 02: They're generated by the people who wrote them or posted the likes or posted the comments. [00:53:07] Speaker 00: That's true. [00:53:08] Speaker 00: I'd have to read the complaint very carefully and then it's an easy case. [00:53:12] Speaker 02: I think it's an easy case, because if you dig down beneath the rhetoric, and there's a lot of rhetoric in there, but I don't think the court has to take the rhetoric as true. [00:53:21] Speaker 02: If you dig down, what you find when you're looking for the so-called incitement are the likes and the shares and the organic posts to which those likes and shares were attached. [00:53:32] Speaker 04: Okay. [00:53:33] Speaker 04: Thank you. [00:53:34] Speaker 04: We've taken you over, but your time is gone. [00:53:38] Speaker 04: We'll give two minutes for rebuttal. [00:53:47] Speaker 05: Thank you, Your Honors, and I will try to be brief. [00:53:51] Speaker 05: Let me just start again with the statute of limitations and Jolly and Fox. [00:53:55] Speaker 05: And I think [00:53:57] Speaker 05: It's important to note that Metta doesn't cite, in contrast to Fox and EFAB and Evans, Metta doesn't cite any cases where knowledge of someone's wrongdoing triggered an obligation to investigate whether someone else was a substantial factor in the injury. [00:54:10] Speaker 04: Well, but I think that the argument I'm focused on, just to- Sure, please. [00:54:14] Speaker 04: Is sort of where the district court went, which is there was no allegations in the complaint of any attempt to investigate. [00:54:20] Speaker 04: There was no suggestion that they actually went out and said, [00:54:23] Speaker 04: Hey, what happened or or you know that this stuff wouldn't have been available had they done some investigation. [00:54:31] Speaker 04: So why isn't that that that does seem to distinguish this or potentially distinguish this from Fox? [00:54:36] Speaker 05: I don't think it distinguishes it from Fox, but because Fox expressly rejected this idea. [00:54:43] Speaker 05: There had been a previous case, Bristol Myers Squibb, a California appellate court case, that said that it adopted a rule of, quote, imputed simultaneous discovery, that if you are harmed by one person, you're deemed to have, when a plaintiff has cause to sue one defendant, the statute of limitation runs as to all defendants. [00:54:59] Speaker 00: And Fox rejected that rule. [00:55:03] Speaker 00: Where there seems to be a separation between your theory and your opponent's theory is whether there's a duty to investigate to begin with. [00:55:14] Speaker 00: And Fox seemed to, looking at it quickly just now again, say that there is in fact a duty to investigate. [00:55:25] Speaker 00: The question is what you have a duty to have found if there were two defendants and two causes for the injury. [00:55:32] Speaker 00: But at the outset, there is a duty to at least try to find out who's causing your injury. [00:55:37] Speaker 00: Do you disagree with that? [00:55:39] Speaker 05: I disagree somewhat with that in terms of, I don't think there is a, there's only a duty to investigate if you have a reason to investigate. [00:55:49] Speaker 00: So if, if there... He knows that terrible things happen. [00:55:52] Speaker 00: He knows terrible things happen. [00:55:53] Speaker 00: And there was injury and somebody caused it. [00:55:56] Speaker 05: All right, so she has some... She thinks the Burmese military and civilian militias did it. [00:56:01] Speaker 04: period she's not on I don't think I don't I don't think it's reasonable to your view is that she has no further duty even to investigate whether somebody else was responsible to I don't I don't think it's reasonable and again I think the jury I mean you might be true it might be true that she has no duty to investigate further as to the actual harm that she knows of [00:56:23] Speaker 04: Because she knows of that arm. [00:56:25] Speaker 04: But if you're talking about a third party, I mean, you have some duty to investigate. [00:56:30] Speaker 04: Now, the problem here is we don't know exactly what would have come about in that investigation. [00:56:38] Speaker 04: But the district court said the problem here was that there was no allegation in the complaint that any investigation was done. [00:56:45] Speaker 05: Right, but I think that's where the district court got it wrong. [00:56:49] Speaker 00: Fox says, simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused, which presumably she did, must conduct a reasonable investigation of all potential causes of that injury. [00:57:08] Speaker 00: So that's why I'm asking whether there wasn't, once she knew something terrible had happened, [00:57:15] Speaker 00: I mean, this is also in the abstract and silly in one way, because the notion that this person in this, you know, little town fleeing from her life is going to investigate anything is really kind of foolish. [00:57:26] Speaker 05: Exactly. [00:57:27] Speaker 05: And I think that's an important point not to overlook. [00:57:29] Speaker 05: And I will just say that the failure to investigate does not bar a claim. [00:57:32] Speaker 05: It's not a bar on the claim. [00:57:34] Speaker 05: It just, it simply charges the plaintiff with knowledge that they would have found. [00:57:38] Speaker 04: Well, no, it is a bar as to statute of limitations. [00:57:41] Speaker 04: You don't get equitable tolling if you don't investigate. [00:57:45] Speaker 04: I think that's what Fox says. [00:57:47] Speaker 05: I think, to be frank, I think there's some sloppy language in Fox. [00:57:51] Speaker 05: But if you look at what happens in Fox, Fox is, and confirmed by Evans and EFAP, if one person hurts you, that doesn't trigger the statute of limitations on someone else hurting you. [00:58:03] Speaker 00: Well, yes, because maybe you couldn't have found it, but not because you didn't have a duty to investigate. [00:58:08] Speaker 00: That's what I'm trying to separate out. [00:58:10] Speaker 00: Because then Fox goes on to say, more broadly stated, if a plaintiff's reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postponed to the cruel of the statute of limitations on the newly discovered claims. [00:58:29] Speaker 00: So again, [00:58:30] Speaker 00: there is at the outset a duty to investigate as to whether there's another cause. [00:58:36] Speaker 00: You can't find it out at that point and you can only find it out later. [00:58:40] Speaker 00: But, I mean, we don't have any knowledge here at all that [00:58:46] Speaker 00: They weren't looking to sue anybody when they were fleeing to the United States. [00:58:51] Speaker 04: The ultimate question is, what should she have done? [00:58:52] Speaker 04: Ask questions. [00:58:54] Speaker 04: And said, do you know anything about this? [00:58:56] Speaker 04: That seems like, I mean, not too high of a task, even for someone who was illiterate. [00:59:01] Speaker 05: to to ask within the community and we alleged that this connection between meta and the violence wasn't well known in the community and that that allegation was discarded by the district court she just said I'm not going to credit that and I think that's a serious allegation I don't know why I I miss it the district court actually said I'm going to discredit she said I I can find it my house [00:59:21] Speaker 04: Okay, I'll go look at that because I'm not sure what basis she would have to discredit that. [00:59:25] Speaker 05: I agree. [00:59:26] Speaker 05: We believe she discredited, she drew allegations against us or drew inferences against us. [00:59:31] Speaker 05: We alleged specifically that it was not well known. [00:59:33] Speaker 04: Well, yeah, so that means, okay, all right. [00:59:38] Speaker 04: No, this is helpful. [00:59:39] Speaker 04: Anyway, did you have anything else you wanted to say? [00:59:43] Speaker 05: I just want to make one point on causation. [00:59:45] Speaker 05: We're on a motion to dismiss. [00:59:47] Speaker 05: Our theory is plausible. [00:59:49] Speaker 05: The chairman of the United Nations fact-finding mission said so. [00:59:51] Speaker 05: He said MEDA played a, quote, determining role in the genocide. [00:59:54] Speaker 05: Amnesty International said that this is plausible. [00:59:56] Speaker 05: MEDA, quote, substantially contributed to the human rights abuses against the Rohingya. [01:00:00] Speaker 05: And Meta employees said so. [01:00:01] Speaker 05: One of the whistleblowers said, I, working for Facebook, had been a party to genocide. [01:00:05] Speaker 05: So I think our allegations, like I said, causation is we're doing the best we can with circumstantial evidence here. [01:00:11] Speaker 05: But I think these are plausible allegations. [01:00:12] Speaker 04: Meta employees are taking a lot of responsibility on his head. [01:00:15] Speaker 04: But anyway, all right. [01:00:16] Speaker 04: Well, thank you very much. [01:00:17] Speaker 04: And thank you to both parties, all counsel, for your work in this complicated case. [01:00:24] Speaker 04: And I appreciate the help you've given the court. [01:00:28] Speaker 04: We'll submit the case and we're done for the day.