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Facebook: Cook County data mining lawsuit designed to benefit only county government, its hired lawyers

Thursday, May 10, 2018
Cook County Record
by Jonathan Bilyk

Saying only the county and its hired trial lawyers would stand to benefit from any settlement or judgment, Facebook has pushed back against the Cook County State’s Attorney’s attempt to send back to more friendly legal turf the pending legal fight over how much blame Facebook should shoulder for data mining conducted by another firm, ostensibly to benefit the 2016 election campaign of President Donald Trump.

On May 9, Facebook asked a federal judge to reject the county’s request to send Cook County’s lawsuit back to Cook County Circuit Court, as the social media giant argued against the county lawyers’ assertions that, because the lawsuit was filed by a county state’s attorney, it should be considered to have been filed on behalf of the entire state of Illinois, and not just for the gain of the county government and the lawyers to whom the county has promised 20 percent of whatever the county wins from its lawsuit.

Nathan Eimer
Nathan Eimer | Eimer Stahl LLP

“Although it is unclear who would receive penalties imposed at the conclusion of this case (if any), one thing is certain: A group of six private attorneys employed by Edelson P.C. would receive twenty percent of any such recovery,” Facebook’s attorneys wrote in its May 9 brief. “That arrangement - which gives private attorneys a direct and substantial financial interest in this … action - destroys any pretense that the State is to be the exclusive beneficiary of the recovery, and thus destroys any argument that the State is the real party in interest.”

In late March, Cook County State’s Attorney Kim Foxx, in partnership with a group of trial lawyers hired from the Chicago-based Edelson firm and deputized as “special state’s attorneys,” had filed suit against Facebook and data firm Cambridge Analytica, ostensibly on behalf of millions of Illinoisans, alleging the companies violated state consumer fraud laws. Specifically, the lawsuit alleges Cambridge Analytica mined data from Facebook users, and then distributed it with the goal of manipulating voting behavior of Illinois residents, and millions of other voters throughout the country during the 2016 U.S. presidential election.

While the lawsuit accuses Cambridge Analytica had harvested and misused the data, the county’s lawsuit accuses the Facebook of knowing what the other firm was doing and turning a blind eye, or agreeing to allow Cambridge Analytica to continue to operate under the purported guise of “academic research, granting the firm the ability to violate “mandatory user privacy protections” and access “Facebook user data under false pretenses.” The lawsuit asks the court to order Facebook and Cambridge to pay at least $50,000 per violation, plus attorney fees.

While not replying to the allegations yet, Facebook in April removed the case to federal court, and asked the judge to place the proceedings on hold, to allow time for a federal judicial panel to decide if the county’s claims should be combined with those of dozens of other class action lawsuits over the same claims brought against Facebook and Cambridge Analytica in federal courts across the country.

However, the county, through the Edelson attorneys, responded to that request with a motion to remand, arguing the case should be returned to Cook County court because cases brought by a state or on behalf of state defeat what is known as “diversity” – or the requirement that cases brought in federal court include litigants from different parts of the country.

In this case, Facebook had asserted the case should belong in federal court because Cook County is the only litigant from Illinois.

Cook County, however, said because the Cook County State’s Attorney brought the case on behalf of the “people of the state of Illinois, legal precedents dictate the case belongs in a state court, and not in federal jurisdiction.

In its motion, however, Facebook asserted this represented a ridiculous assertion, arguing the Cook County State’s Attorney is a county official, and only the Illinois Attorney General is empowered under state law, the Illinois state constitution and legal precedents from the Illinois Supreme Court and U.S. Supreme Court to bring such actions on behalf of the entire state.

Facebook noted the duties of the Cook County State’s Attorney dictate the state’s attorney represents and advises county officials, not state officials, and the office is established by state law and the constitution as autonomous and distinct from the state government.

“… The fact that an Illinois statute authorizes the State’s Attorney to bring suit to enforce state law does not mean that the State is the plaintiff,” Facebook wrote.

Further, Facebook noted there is no guarantee any money paid by Facebook or Cambridge Analytica as a result of the lawsuit would even make its way to the Illinois state treasury, for the benefit of anyone outside Cook County.

Rather, according to the agreement between Cook County and the Edelson firm, the county would be the beneficiary of any settlement or judgment the Edelson attorneys secure on its behalf, and the Edelson firm would then get 20 percent of the county’s take.

“… This case was not brought by the State of Illinois; it was brought by the Cook County State’s Attorney, a locally elected official who is ‘separate and distinct from the state’ and therefore a citizen of Illinois for diversity purposes,” Facebook wrote. “Indeed, the case is being directed and financed by private attorneys with no accountability to the State or Illinois voters, pursuant to a contract of questionable validity that awards them a significant contingent interest in any recovery.”

Facebook is represented in the action by attorneys Nathan P. Eimer and Susan M. Razzano, of Eimer Stahl LLP, of Chicago; and Orin Snyder, Joshua P. Lipshutz, Kristin A. Linsley and Brian M. Lutz, of Gibson Dunn & Crutcher LLP, with offices in New York, Washington, D.C., and San Francisco.

Edelson attorneys representing Cook County include Jay Edelson, Ari J. Scharg, Alfred K. Murray II and Benjamin H. Richman.

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