Every now and then a story is so big that reporters are unable to understand the potential repercussions of its implications. Another factor, the gutting of print media newsrooms, has depleted reporting staffs at newspapers, causing a major void in what should be routine reporting.
Either way, the story goes unreported until one day everyone wakes up and realizes the story is of such magnitude that it has the very real potential to affect a wide swath of the nation’s economy by attacking established corporate giants like big tobacco and pharmaceutical companies.
That’s precisely what has happened in Livingston Parish where the parish school board has quietly filed what may well turn out to be the next big – really big – courtroom battle. And even though the Livingston Parish School Board is the only plaintiff for now, you can look for this to mushroom into a gigantic class-action battle between legions of high-powered lawyers on both sides. And it’s most likely going to get quite bloody before all is said and done.
A Baton Rouge TV station had a SUPERFICIAL STORY, four paragraphs long, which never brushed up against the lawsuit’s potential implication and to date, has done no follow-up. The Baton Rouge Advocate likewise had a sketchy story but said precious about the matter. Rest assured, before the dust has settled on this, there will be similar actions filed in every state and the national media will eventually catch on to the fact that there’s a big story brewing – and when that happens, just remember it first started bubbling in Livingston Parish, Louisiana.
The school board has rolled the dice in naming two social media platforms as defendants in a FEDERAL LAWSUIT in which the board claims, among other things, that TikTok and Instagram are designed to make their platforms “addictive to all users, and to children in particular.” Also named as defendants were Meta Platforms, Inc., Bytedance, Inc. cable and Wifi providers Charter Communications and Cox Communications. Instagram is a subsidiary of Meta and TikTok is a subsidiary of Bytedance.
The lawsuit reads suspiciously like the work of a boilerplate petition that is almost certain to pop up in most other states, if not all 50. In fact, if I didn’t know better, I’d say it almost appears to be the work of the American Legislative Exchange Council (ALEC), which drafts model legislation for lawmakers in every state. Whatever, the 105-page petition almost certainly did not originate in Denham Springs, Louisiana.
The petition quotes “disillusioned former Silicon Vallen executive” Tristan Harris as saying, “It’s (social media) seducing you; it’s manipulating you. It wants things from you… social media isn’t a tool waiting to be used. It has its own goals, and it has its own means of pursuing them by using your psychology against you. If you’re not paying for the product, then you are the product” she said.
Another interviewee, the petition says, put it even more bluntly: “There are only two industries that call their customers ‘users’: illegal drugs and software.”
But even more ominous was the concern voiced that many who follow children on social media “are adult males that have a sexual interest in children,” according to Jon Rouse, a 38-year police veteran whom the petition said heads a group targeting child sex offenders for Interpol. “Child sex offenders will gravitate toward where there are children. Pedophiles prefer looking at videos,” he said.
An official with the Department of Homeland Security who once led the agency’s child-exploitation unit, cited TikTok as a platform often used by predators to meet children. He was quoted by the petition as saying, “It is a perfect place for predators to meet, groom and engage children,” adding that TikTok was the “platform of choice” for predators.
Teenage girls, the lawsuit said, “who are particularly vulnerable to online sexual interactions, have the majority of these experiences of sexually explicit messages on Instagram and Snapchat.”
The lawsuit cites internal documents which said defendants Meta and Instagram conducted internal studies that determined that Instagram was harmful to its child users. “Rather than coming clean, defendants kept this information hidden from the public, and doubled down on making the Instagram platform as addictive as possible.” (Can you say “shades of the ‘SEVEN DWARFS’” of the tobacco litigation?)
One local teacher – and parent of a teenager – was more than a little skeptical about the wisdom of the lawsuit. “Instagram,” she said, “is the social medial choice of millennials, NOT of those who are currently enrolled in grade school. The kids use Snapchat. So, they’re suing the wrong platform. [It] shows their age and how clueless and out of touch they are.” She also pointed out that the school district communicates school closures, registrations, etc., “and school teams communicate with players and schools communicate with parents all via Facebook, which is owned by Meta.”
One of the giveaways that the lawsuit is boilerplate to be adapted to individual states was the wording that the Livingston Parish School Board is a “quasi-government body” under Louisiana law. In truth, there is nothing “QUASI” about it – it’s a full-fledged public body in every legal sense.
That aside, the school board claims that while the Internet “holds tremendous potential to benefit children and their families,” the defendants, TikTok and Instagram, employ tactics of “intentional manipulation of children” and that they do so “with full knowledge that their products cause profound mental and physical harm to children.”
“Because Instagram views its users as its product, and because it can only monetize its users while they are on the Instagram platform, Instagram is incentivized to keep its users on the platform as long as possible and as often as possible, the lawsuit said. “Competition for users’ attention is fierce,” and social media platforms – like defendant’s – “are purposely designed to addict their users. Defendant has both in-house and external research initiatives designed to document and improve engagement reporting and have project that use neuromarketing and virtual reality techniques to measure effectiveness.”
The petition claims that the mobilization of those resources “indicates that the platform is built not for user experience, but for maximization of profit. And this maximization of profit is achieved through addiction.”
Even worse, attorney Blayne Honeycutt said in the petition that Instagram’s own internal research has shown that fostering addiction is harmful to its adolescent user base. “Yet defendant ignores this information and continues to add features to keep children hooked,” he said.
Likewise, a TikTok internal document obtained by the New York Times confirmed that the goal was to “get people addicted” so that in a relative short time, [the] platform’s algorithm can detect user’s musical tastes, his physical attraction, whether he’s depressed, if he might be into drugs, and other sensitive information.”
But TikTok, unlike other social media companies, has direct ties – and fealty – to a foreign government which, through data collection, creates “unique problems, not just from a national security standpoint, but even from a privacy/ethics vie,. the lawsuit says.”
Past examples of landscape-altering lawsuits include class action litigation case settlements involving tobacco ($206 billion), opioids ($26 billion), and the BP Deep Horizon oil spill of Aug. 20, 2010 ($20.8 billion). Closer to home, there was the 1982 train derailment in the town of Livingston (a paltry $39 million).
One other attempt at a class-action lawsuit involved Hurricane Katrina in 2005 and the US Army Corps of Engineers that was tossed on a technicality in plaintiff attorneys’ first attempt and then thwarted by the involvement of the Louisiana Attorney General’s office on the second try.
What do all these cases have in common with the latest litigation against the two social media platforms? A relatively small firm (only five attorneys, according to one online service; three, according to another, four, according to a sign in front of the firm’s offices) in Denham Springs was involved in each and every one of those cases and took a share of the massive legal fees the cases generated.
Attorney fees for the opioid lawsuit totaled $2.3 billion. For the tobacco settlement, attorneys shared a pot of $8.2 billion and for the BP oil spill settlement, lawyers divvied up $680 million – and the firm Fayard & Honeycutt was right there to share in the fee disbursements. Fayard’s cut in the BP settlement alone was $35 million.
But you’d never know it by looking at the nondescript offices of Calvin Fayard and partner Blayne Honeycutt on Florida Boulevard in Denham Springs, especially when compared to a couple of personal injury law firms in nearby Baton Rouge. But then, looks can be deceiving because make no mistake, Fayard & Honeycutt are major players on a stage that transcends day-to-day goings-on in the Livingston Parish Courthouse.
Tucked back from Florida Boulevard, aka U.S. 190, in Denham Springs is the law firm of Fayard & Honeycutt.
A sign standing vigil in front of the the Fayard-Honeycutt firm lists only four staff attorneys. Two of those are named Honeycutt.
Through the years, they have made only one major misstep. They attempted to sue the US Army Corps of Engineers for its shoddy work on the levee system that was breached during Hurricane Katrina in 2005, causing flooding of much of New Orleans.
They enlisted Louisiana Attorney General Charles Foti as co-plaintiff on behalf of the State of Louisiana but the suit was thrown out when it was ruled that they could not sue the corps. So, the obvious solution was to sue the State of Louisiana for the general ineptitude of the levee boards.
But wait. Because Foti was working with the plaintiff attorneys, they were legally barred from suing the state since Foti’s job was to defend the state, thereby creating an inconvenient conflict of interest.
Not that the full effort was not put forth by Fayard, who hosted US District Judge Stanwood R. Duval, Jr. at the LSU-Alabama football game in Tuscaloosa in 2005 even as Fayard was in the process of formulating his ill-fated class-action lawsuit to be heard by that same Judge Duval. Things get a bit intertwined here because:
- Fayard’s daughter Caroline, who had recently graduated from the University of Michigan was, coincidentally – and conveniently – Duval’s law clerk.
- Fayard had married attorney Frances East Gray, in 2003 in a high-dollar ceremony on Nantucket Island and had fetched Judge Duval along as his guest (they were, after all, old law school classmates and good buddies).
- About that same time, Judge Duval also got married – to his longtime law clerk, Janet Daley, who, along with Caroline Fayard, was in a unique position of influence.
- Two months earlier, on September 15, 2005, Fayard, together with a couple other attorneys, had already filed a class action lawsuit, Chehardy v. Wooley, in the 19th Judicial District state court in Baton Rouge but that case was later subdivided and eventually transferred to Federal District Court for the Eastern District of Louisiana in New Orleans, where it was incorporated into the Katrina Canal Breaches Consolidated Litigation. With upwards of $200 billion at stake, the case was assigned to (wait for it)… Judge Duval. Certainly, that Tuscaloosa trip in November was only to watch a football game and not an opportunity for Calvin Fayard, to plan ex-parte the management of these and other cases that were flooding (no pun intended) into the court. You can read all about it in more detail by going HERE.
But then came the ruling giving the Corps immunity and the involvement of the Louisiana Attorney General which prevented filing an action against the state. Another attorney, not beholding to the original cluster of attorneys, Ashton O’Dwyer of New Orleans, then began his own class-action against the state but powerful sources in state government saw to it that O’Dwyer would encounter not only powerful political resistance but the forces aligned against him would retaliate in such a way that he would eventually be arrested and be disbarred despite decades of near flawless legal practice as a partner in one of New Orleans’ more prestigious law firms.
So, now the firm of Fayard and Honeycutt is back for another bite of the apple. And remember where you heard it: this legal action is not going to be acted out in a vacuum. The Livingston Parish School Board may stand as the only plaintiff for now, but the smart money says there will be others – many, many others – who will be jumping on this litigious bandwagon. The payout is far too big for one relatively small law firm – or school board – to tilt at this windmill alone.
It’s the kind of opportunity that can bring political foes like Gov. John Bel Edwards and Attorney General – and current gubernatorial candidate – Jeff Landry together in a common cause. Oh, wait. That’s already BEEN DONE in the BP spill litigation, hasn’t it?
Louisiana Voice 