engagement among young users. At the same time, some lawsuits contend the platforms publicly portrayed themselves as safe or benign while privately studying and optimizing the very behaviors critics now describe as addictive.
Bergman anticipated the courts greeting these arguments with“ a tremendous amount of hostility” and said,“ We knew we’ d be paddling upstream.” He was attempting to initiate an evolution in judicial thinking, and that required an innovative strategy.
For starters, Bergman’ s team focused on filing complaints that were scholarly and carefully sourced.“ I had never before put footnotes in a complaint,” Bergman said.“ I think courts were intrigued by it.”
Under the standard of notice pleading, claims consist of a short and plain statement of the facts.“ You don’ t lay it all out,” Bergman explained,“ but we knew that getting past the motion to dismiss was going to be a huge hurdle. That’ s usually not the case in most plaintiffs’ litigation, where the typical challenge lies in getting past summary judgment.”
He described filing 160-page complaints that were exhaustively factually detailed and contained a plethora of scholarly notes as Bergman’ s legal team developed evidence. The body of the complaint included the corporate documents that had been leaked to the press.“ We wanted to make sure that the complaint was compelling to a court,” Bergman said.
The team also carefully studied previous cases that had gone against them, considering all the factors that led to their dismissal. In the helpful cases, Bergman tried to incorporate the
language the courts had used into the body of his complaint. And he took it a step further.
“ We included photographs of the clients and photographs of the social media posts that had, for instance, told the kid to stand in front of a train. We wanted to make sure that any court looking at that motion to dismiss would appreciate the gravity of what was at issue and also the kind of new path and the new approach that we were undertaking,” Bergman said.
But he still had his work cut out for him. He knew it was important to prominently publicize the cases and change the public narrative, and parents were an integral part of telling that story.“ These parents were so very brave,” Bergman said.“ They went above and beyond, and that was a huge part of the effort.
Internal Documents Powered The Narrative
Internal documents represent the moral core of these social media addiction cases. What struck Bergman most was how the documents belied the“ bad parent / bad kid” narrative his team had been confronting. Under their account of events, the parents should have done a better job of keeping their kids off social media, or the kids were“ messed up” ahead of time and would have experienced adverse outcomes with or without the effects of social media.
Contrary to the tech companies’ preferred narrative, Bergman sees parents as the first to experience absolute helplessness as their children fall prey to the injuries of addiction.
70 The Trial Lawyer