Facebook Wins Round Two in the Small Claims Battle of the Century
Last week, the guy who beat Facebook in small claims court got trounced by a former attorney general who’s now a lawyer for the social media giant. Rob McKenna, once the Republican AG for Washington state, appeared by Zoom on Facebook’s behalf and convinced a small claims commissioner that the strange matter of Wurtz v. Facebook should be tossed, “with prejudice.”
I’d billed this case as the small claims judgment battle of the century because it was so compellingly odd, a wild mismatch of legal firepower that, in its first round, had produced a victory of the David v. Goliath sort. Zach Wurtz, a political operative with no legal training and no lawyer, had walked away with an order for Facebook to pay him $999 to make up for alleged damages to his political ad-tracking business. Those damages, Wurtz said, stemmed from Facebook’s ongoing lack of political ad transparency.
Fundamentally, Wurtz has the same beef with Facebook as attorneys for Washington state, who are presently in a higher court arguing that Facebook has “repeatedly” violated state law that requires the company to disclose detailed information about its local political ads to any person who asks. Democrat Bob Ferguson, the current Washington AG, brought the case. His office is asking a Superior Court judge in Seattle to fine Facebook for its lack of political ad disclosure and force the social media giant to follow the law going forward. On February 24, Ferguson filed a similar lawsuit against Google.
Wurtz, obviously, took a different route. Rather than lodge his complaint with election regulators who could investigate and then potentially hand his case over to the AG for prosecution—the path state code offers for handling such issues—Wurtz decided to head for small claims court. He thought it might lead to a speedier outcome than the slow-moving, state-prescribed route. He also thought he had a way of resolving the matter that didn’t involve disclosure law. Instead, he would come at the issue from a different direction: business law.
Remarkably, Wurtz convinced Commissioner Kevin Eilmes of Yakima County small claims court to issue an order on January 11 requiring Facebook to pay Wurtz $999. Wurtz had argued in front of Commissioner Eilmes that this amount was necessary to make up for harms Facebook allegedly caused his political ad-tracking business, but Wurtz’s case was helped considerably by the fact that Facebook failed to show up for that hearing. “Maybe Facebook has bigger things going on today,” Commissioner Eilmes commented on January 11.
On February 16, I reported on Wurtz’s small claims win. That same day, McKenna filed motions on Facebook’s behalf seeking to get the decision reversed.
That led to Wurtz, who’d previously tracked McKenna at public appearances for the Democratic Party, facing off against his former political foe on March 8 in a second Wurtz v. Facebook hearing before Commissioner Eilmes.
Wurtz showed up in person wearing a gray blazer and a “Go Cougs!” bandana as a face mask. (He’s a proud graduate of the Edward R. Murrow College of Communication at Washington State University, where he had a job dressing up as the school’s mascot, Butch T. Cougar.) McKenna, wearing a suit, appeared by Zoom from what looked like a large, well-lit home office.
“Credit where it’s due,” Wurtz said afterward. “I got bested in court by the former attorney general. I did everything I could with my very limited training, resources, and knowledge. But bringing in Rob McKenna did exactly what Facebook intended it to, which is completely outmatch me. You hire Rob McKenna against an unrepresented person, this is hopefully the outcome you’re gonna get.”
McKenna has not responded to a request for comment.
At the March 8 hearing, Commissioner Eilmes said he continued to find the case “very interesting.” Arguing for Facebook, McKenna said the commissioner should reverse his previous decision because Wurtz did something dodgy when it came to serving Facebook with notice of the case. Rather than serve Facebook “promptly,” as required by law, Wurtz filed his small claims case on November 24, 2020 and then waited more than a month, until New Year’s Eve, to serve Facebook notice.
That, in McKenna’s telling, was “not fair” and predictably led to the large company not having someone at the January 11 hearing.
“Why did you wait so long?” Commissioner Eilmes asked Wurtz.
Wurtz offered a few excuses, such as the Thanksgiving holiday intervening and other obligations. He also noted that technically, he’d met the requirement that Facebook be served at least 10 days before the scheduled hearing. (He’d given the company 11 days notice.) Plus, Wurtz said, a company with such vast resources and highly capable attorneys should have been able to appear at the January 11 hearing even on short notice. The excuses offered by McKenna, Wurtz said, “are no better than ‘my dog ate my homework,’ and this court should treat them accordingly.”
Commissioner Eilmes disagreed, noting that while the law required Wurtz to give Facebook at least 10 days notice, it also required him to be prompt with the service. “I don’t think it’s any accident that service occurred on December 31st,” Commissioner Eilmes said.
With that, he turned to the merits of Wurtz’s case. In McKenna’s telling, the claim was “entirely frivolous” and “improperly pled.” Wurtz’s initial filings had been vague as to the exact legal theory he was pursuing in small claims court, and so Commissioner Eilmes had Wurtz clarify that he was, in fact, alleging Facebook had committed tortious interference with a business expectancy—Wurtz’s business expectancy, to be exact—by declining to give him political ad data. After Wurtz confirmed this, Commissioner Eilmes told him that tortious interference “is not something you can bring in a small claims action.”
With that, the commissioner vacated the $999 judgment against Facebook and dismissed Wurtz’s case. Later, Wurtz told me he’d been under the impression that he could argue tortious interference in small claims court. He’s considering an appeal.
Just before he lost to McKenna, Wurtz recalled, he’d sat in a gallery with other small claims litigants and watched a video about the basics of the court’s operations. “None of the instructions alluded to the fact that if you lost once, you could elicit the help of the former attorney general and get your case vacated,” Wurtz said bitterly. He’d walked back through that gallery after the arguments in front of Commissioner Eilmes and gotten the distinct sense no one there had expected a former statewide elected official to beam into court that day. “People were looking around like, ‘What just happened?’” Wurtz said.
In addition to highlighting the perils of taking Facebook to court without a lawyer on one’s side, Wurtz’s small claims case offers a window onto a much larger issue in the nationwide battles over tech regulation. The issue is whether regulators and elected officials, when drafting laws that could be used to reign in the mostly unchecked power of America’s tech giants, should provide individuals like Wurtz with a “private right of action” against companies like Facebook.
There’s no “private right of action” when it comes to Washington state’s political ad disclosure law. Under that law, it’s first up to state election regulators or the state attorney general to impose consequences if they believe the disclosure law has been broken. This made it extra weird that one man thought he’d found a creative way to haul Facebook directly into small claims court as a result of alleged violations of that law.
But look beyond Wurtz v. Facebook and far outside of Washington state, and you’ll find the “private right of action” issue swirling everywhere. It’s one of the “hottest terms in tech policy,” Shira Ovide of The New York Times wrote recently. Granting a “private right of action,” Ovide explained, basically means that “anyone can sue a tech company — not just government officials.” She continued:
Broadly, politicians on the left (and lawyers) say that private lawsuits are an effective measure for accountability. Lawmakers on the right and many businesses say they’re a waste of time and money.
Right now, this fight is playing out most prominently in debates over new state laws related to digital privacy. In the absence of any movement on a federal data privacy law, California in 2018 passed a landmark law that protects the privacy of digital consumers. That California law gives individuals a private right of action to use in the event of privacy violations. In Virginia, a very different data privacy law was just adopted. It does not grant a “private right of action” and because of this, The Washington Post reported, “the Virginia law is widely viewed as more industry friendly than the California provision.”
Similar laws are being considered in a number of other states, including Washington state, where lawmakers are presently debating a data privacy law that’s failed in past years, in part, because of fights over whether it should include a “private right of action.”
One could easily imagine Facebook pointing to Wurtz’s case as an example of the sort of small, “frivolous,” resource-draining court fights the company would constantly have to engage in if every state in the nation (or the federal government) granted every individual in America a “private right of action” to enforce tech regulations.
But to Wurtz, the idea that only attorneys general and other select regulators can take tech giants to court seems misguided.
“There should be another mechanism to hold them accountable,” he said. Otherwise, given the slow pace of state-led litigation and the relatively small fines involved, “they’re going to keep breaking the law.”
Some of the things I’ve been reading this week:
• On Vanita Gupta — She’s been an advocate for change in the way major tech platforms operate, she’s up for a top Justice Department position in the Biden administration, and she’s in trouble over supposedly mean tweets.
• On Lina Khan — Biden wants to appoint her to the Federal Trade Commission as part of what’s being called his “Big Tech Antitrust All-Star Team.”
• “Mark Zuckerberg on Mind Reading” — And other things, including virtual reality, in an interview with The Information.
• The man who built Facebook’s AI has a problem — Which means we all have a problem. And unfortunately, he can’t fix it.