The Architect: Bergman And The 10-Year Build
“ Every lawyer in America has benefited from the hard work Matt has put into this project,” said Mike Papantonio, senior partner at Levin Papantonio law firm and co-founder of MTMP, a national conference for mass tort attorneys.“ I’ m pretty sure he will be remembered as the architect of one of the most important cases in the country.”
Before Bergman’ s involvement in these cases, courts were dismissing most social media harm claims under Section 230 before the cases even got started. Bergman took note. From BackPage facilitating child sex trafficking to drug dealing, child abuse, and child sexual abuse material( CSAM), Bergman believed that Big Tech was getting away with what he described as“ the most egregious facts you can imagine.”
“ It was completely contrary to basic principles of tort law,” he said.
Section 230 of the Communications Decency Act states:“ No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The provision has served as a stalwart protector for social media platforms, shielding them from accountability for harmful content. But in May 2021, something interesting happened, exposing a chink in the Section 230 armor. An opinion out of the Ninth Circuit( Lemmon v. Snap) stated that Section 230 could not shield social media platform Snap from litigation related to negligent product design.
Bergman took note. He now spotted a viable workaround and the path to moving these cases forward. He leaned a little further into his research.
Just a few months later, another crack— a big one— surfaced with Facebook whistleblower Frances Haugen’ s testimony to Congress. According to Haugen, the tech company was well aware that its product posed mental-health risks to kids.
Now Bergman was really paying attention. However, it took surviving a car accident that should have killed him for that interest to trigger action. He emerged from this experience with a renewed sense of purpose.“ It was a spiritual kind of thing. I’ d already decided to move on from asbestos, but this experience also convinced me there was another calling for me.”
The last piece had fallen into place. Bergman knew his purpose.“ I could not accept that a legal system could permit this kind of carnage to go on without any sense of accountability,” he said. One month later, he established the SMLVC.
“ I felt the same sense of purpose I believe I would have felt if I had been fortunate enough to have litigated the civil rights cases in the‘ 60s,” he said, explaining that lawyers don’ t often get the opportunities to work in a situation where the good and the bad, the right and the wrong are so crystal clear.
68 The Trial Lawyer
“ To me, this has the same moral resonance as the Civil Rights Movement,” he added.“ How can you ever justify a legal system that codifies Black people sitting in the back of a bus? How can you ever justify a legal system that immunizes a company from sending suicide videos to a 16-year-old boy, telling him specifically to step in front of a train, and when he steps in front of a train, the company claims complete, total, and absolute immunity?
“ So, it really became, and continues to be, the most important, meaningful thing I’ ve done on earth, except for having kids,” Bergman added.
Reviving Asbestos Product Liability
“ We resurrected the 1950s and 1960s product liability theory, pouring old wine into new bottles.”
Before the social media addiction litigation, Bergman had been an asbestos lawyer for 30 years, representing mesothelioma victims and working in the trenches to develop new theories of liability as the cast of defendants changed over time. He persisted hard at the appellate court level to ensure that the courts remained open. In this process, he learned a lot about product liability.
Spurred by a new sense of purpose, Bergman decided to take a page out of his asbestos history and explore similarities between product liability theory in the context of asbestos and social media. He found several strong unifying factors.
First, you have a“ wildly popular” product, Bergman explained.“ Everyone loved asbestos. They put it on their Christmas trees. And the same with social media. When it came out, people thought it was going to bring the world together.‘ We’ re going to have the Arab Spring.’ It was going to lead to a democratic transformation of the world.”
Then there was the cause-and-effect relationship between social media and a burgeoning mental health crisis among young people, not only across the United States but throughout the world. The crisis manifested as skyrocketing rates of eating disorders, anxiety, depression, and an almost tripling of the youth suicide rate.
The final commonality between asbestos and social media addiction, according to Bergman, was outrageous corporate misconduct.“ The social media companies make the asbestos companies look like choirboys, given the level of knowledge they had,” he said, adding that this knowledge surfaced even more in the trial.
“ They knowingly subject kids to material promoting suicide, eating disorders, and racist violence. They’ re pimping children. That’ s really what they’ re doing,” Bergman added.
And so, he decided to harness his experience as a product liability lawyer, his victories and his defeats, to explore the Trojan horse that could get him around Section 230.“ We resurrected the 1950s and 1960s product liability theory, pouring old wine into new bottles,” Bergman explained.