Six4Three, LLC v. Facebook

Six4Three, LLC v. Facebook, Inc. (Cal. Ct. App., Sept. 30, 2019, No. A154890) 2019 WL 4784420

In 2012 Plaintiff Six4Three, LLC, developed an app called “Pikinis,” which searched Facebook for photos of people wearing bikinis. Anyone who downloaded Pinkinis could instantly search images posted not only by Facebook users, but also by friends of users. Noting the obvious privacy concerns such apps pose to Facebook’s users, in 2014 Facebook announced a change in their platform that would prevent these kinds of apps from using content shared by Facebook’s users. After implementing the change, Facebook “depublished friend content” thus preventing apps like Pikinis from accessing content posted to Facebook by Facebook users or user’s friends. This prompted plaintiff Six4Three to file a complaint against Facebook in early 2015. 

Facebook filed a demurrer and plaintiff responded by filing an amended complaint. The process of amended complaints and corresponding demurrers repeated multiple times, resulting in the addition of various individual defendants, a total of five amended complaints, three demurrers by Facebook, and concluded in two anti-SLAPP motions—one filed by the individual defendants and one filed by Facebook.. The trial court denied both Facebook’s anti-SLAPP, as well as Six4Three’s opposition to the individual defendant’s anti-SLAPP.  

Facebook’s Anti-SLAPP Motion Was Deemed Untimely.

The court of appeals affirmed the trial court’s finding that Facebook’s anti-SLAPP was filed far too late for the anti-SLAPP statute to fulfill its purpose – resolution of frivolous litigation in a prompt and inexpensive manner. 

Notably, during the course of this litigation, the California Supreme Court overturned prior precedent in deciding a defendant must file an anti-SLAPP within 60 days of the complaint containing that cause of action. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646. The court would, however, have discretion to permit a late filing, but only if the moving party can show a compelling reason to support a late filing. Id. at 640.

Here, the court acknowledged its newfound discretion for considering Facebook’s late filing, but still concluded the amount of time passed and four amendments outweighed any potential compelling reason. Although Facebook may have felt it was wise to hold an anti-SLAPP in their back pocket, the court found (1) there was no reason to presume the multiple amended complaints would be filed and; (2) all of the amended complaints contained the same allegations against Facebook. 

Further, the new timing requirements stated in Newport Harbor did not compromise the goals of the anti-SLAPP statute, and although applied retrospectively, still gave the court discretion to make an exception for a compelling reason based on “considerations of fairness and public policy.” Perhaps it was a mistaken strategy to repeatedly file demurrers as opposed to an anti-SLAPP from the beginning, but the court here stressed the importance of upholding the purpose of the statute: to prevent time and money from being wasted on frivolous claims.

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