« on: June 22, 2006, 09:14 PM »
Jeez, I'm about as shyster as they come, and I wouldn't touch this case with a ten foot pole.
Adam Loewy, the plaintiffs' attorney, is a real estate and corporate attorney who dabbles in a little bit of bankruptcy. He's no "trial lawyer," as we're called by the media. My guess is he's doing this case strictly for the PR.
I'd love to get a copy of that complaint to see what theories are alleged. But according to Loewy, the web site is being sued for its "failure to protect her online when they knew sexual predators were on that site."
Let's break it down:
When distilled, there are only so many reasons you can sue--they're called "causes of action." If you don't have a cause of action, a court can't grant you relief, and the other side is entitled to dismissal of the case.
Unless there's some sort of statutory cause of action with which I'm unfamiliar, these plaintiffs have no cause of action.
To state a claim in tort, you (generally) either have to have an intentional tort (which the girl undeniably has against the perpetrator), or negligence. To establish negligence, you have to show 1) the existence of a duty of care; 2) the defendant breached the duty; 3) the defendant's breach proximately caused the plaintiff's injuries; and 4) damages.
She isn't even close to being able to show the existence of a duty--MySpace does not, and indeed, cannot, owe its users a duty of care "to protect [users] online when [MySpace] knew sexual predators were on that site."
(Sidenote: that obviously presupposes MySpace knew, or should have known, that sexual predators were on the site. It's a long shot, but I can see why a lawyer would at least attempt to make that argument).
Even if it did owe such a duty, it's obligation to reasonably perform that duty goes away the instant the user voluntarily enters false information in accessing the site and its contents.
Furthermore, even if MySpace did owe such a duty, it has no duty to affirmatively protect the users from voluntarily meeting each other out in the real world. What the claim amounts to is that if MySpace is going to run the way it runs, it should appoint a full-time babysitter to each user to monitor their offline behavior.
I suppose there are other theories out there, but I have a tough time conjuring them up. For instance, MySpace's user agreement does not include a contractual obligation to protect its users from online predators, much less the actions of online predators with whom users voluntarily choose to meet up with in the real world. Thus, there's no claim in contract, i.e., no cause of action.
Even if you can establish a cause of action, i.e., state a claim for which relief can be granted, there are so many defenses to this (subsequent intervening cause; failure to join an indespensible party (the molestor), etc.), it's not even funny.
This lawyer's capitalizing on his clients because he doesn't want to shell out for Yellow Pages ads.