Experts say early social media bellwether outcomes reveal strategy, not destiny

One plaintiff verdict and one bellwether dismissal have offered an early look at the Los Angeles social media addiction litigation, but legal observers say the results reveal more about litigation strategy than the ultimate trajectory of thousands of pending cases.

In March, a jury awarded the first bellwether plaintiff, Kaley G.M., $6 million against Meta Platforms Inc. and Google after finding the companies' social media platform design features substantially contributed to her mental health struggles.

On Wednesday, the second plaintiff, a Florida minor identified as R.K.C., voluntarily dismissed similar claims against Meta without payment days before jury selection. He had reached confidential settlements with Google, TikTok and Snap Inc. but Meta held out for trial and said the plaintiff got no payment from them.

TikTok and Snap also settled Kaley's claims days before trial.

The cases are before Superior Court Judge Carolyn B. Kuhl, who has scheduled trials for three more bellwether plaintiffs beginning Oct. 28, with another wave expected next year. Social Media Cases, JCCP5255 (L.A. Super. Ct., filed Oct. 24, 2022).

Eric Goldman, a Santa Clara University law professor who studies internet law and is not part of the litigation, said the two outcomes reveal more about how the parties are managing the coordinated cases rather than the strength of the underlying claims.

"To me, the settlement/dismissal process seems unusual," Goldman wrote in an email Thursday.

"Both sides are carefully trying to curate the bellwether trials to maximize the odds of favorable outcomes for themselves, but settlements partially defeat the point of having bellwether trials in the first place."

Goldman also cautioned against drawing broad conclusions from R.K.C.'s dismissal or the first bellwether verdict, saying neither meaningfully predicts how the coordinated litigation will ultimately unfold.

Asked whether R.K.C.'s dismissal suggested the plaintiffs had faltered in selecting bellwether cases, Goldman said no.

"The point of bellwether trials is to try cases involving range of plaintiffs. The court and the parties have used many criteria to select the plaintiffs for bellwether trials, and I don't see anything about R.K.C.'s outcomes that suggest those mechanisms didn't work as intended," he wrote.

Likewise, Goldman said he was "not putting a lot of stock in any bellwether trial outcomes until we hear from the appellate courts," noting appeals involving Section 230 of the Communications Decency Act and the First Amendment could ultimately reshape or even undermine the litigation.

Section 230 is a federal law that generally shields online platforms from liability for content posted by users. The defendant companies argue the statute also bars claims challenging platform features that organize, recommend or display that user-generated content.

Goldman said he does not expect the latest developments to significantly alter litigation strategy until those legal questions are resolved.

For Goldman, the most significant takeaway from R.K.C.'s dismissal was that Meta paid nothing to resolve the case.

"It was shocking that R.K.C. didn't get any cash from Meta. Meta must have been willing to bear the very significant trial costs solo rather than write a small check to avoid those costs," he wrote.

Meta's litigation posture reflected arguments it had already previewed in its summary judgment motion last year.

The company's counsel at Covington & Burling LLP contended discovery showed R.K.C. created his Instagram and Facebook accounts about six months before filing suit and averaged just 8.5 minutes per day on Instagram and 1.9 minutes per day on Facebook.

The company argued those facts, combined with the plaintiff's testimony, undermined his ability to prove Meta's platforms caused his alleged injuries.

Jessica Nall, a technology litigation partner at Withers, viewed the sequence of verdicts, settlements and dismissal as largely consistent with how mass tort litigation often develops.

"I don't think it's that unusual," Nall said in a phone interview. While the settlement amounts remain confidential, she said bellwether trials are designed to establish a benchmark that informs future negotiations.

She also said Meta's decision not to settle aligns with its broader effort to obtain appellate guidance on unresolved legal issues, including Section 230 and First Amendment defenses.

Nall said that, assuming the facts Meta alleged about the plaintiff were supported by the evidence, they would have presented a significant causation challenge once Meta became the only remaining defendant.

"If that's true ... it's much harder for the plaintiff to prove that caused whatever their damages are, especially [that] it was a design feature that caused it," she said.

Nall said limited use alone would not necessarily defeat causation, but proving injury becomes more difficult unless plaintiffs can tie that use to harmful content -- an argument she said risks shifting the case toward the companies' Section 230 defense.

"Is it really an infinite scroll, or is it really some addictive product feature? If the person's only using it ... for a few minutes a day, it gets a lot harder for the plaintiff to establish that."

She also suggested the dismissal may have reflected a practical litigation decision after settlements with the other defendants rather than a broader statement about the merits.

"This dismissal that we just saw is indicative of the larger chess game," Nall said.

She described both sides as strategically managing early bellwether cases to influence the thousands of remaining claims while awaiting appellate decisions that could define the litigation's legal framework.

"Dismissing the case, on the plaintiff's side, was an effort to try and avoid a potentially negative jury verdict. And I think we'll continue to see that kind of thing happen, that kind of management of this bellwether on both sides. Each side is fighting to have these first few cases come out in the best way possible towards their side."