Claims that fentanyl dealers use Snapchat to sell pills is true, judge says

A Los Angeles County judge on Wednesday denied Snap Inc.'s sanctions motion to strike "false" and "inflammatory" claims from a lawsuit accusing the social media company of causing thousands of teenagers to die from fentanyl-laced pills sold by drug dealers on Snapchat.

"I don't know how you move to strike something that's false when the court is obligated to accept something is true, which suggests to me, maybe that's why Snap did not bring motions to strike false allegations, but instead sought to do it under 128.7," Judge Lawrence P. Riff told the parties.

Code of Civil Procedure §128.7 is intended to prevent parties from filing frivolous lawsuits or motions.

Snap's attorneys sought an order for sanctions under C.C.P. §128.7, saying 35 of the 991 paragraphs in the second amended complaint crossed the line from "zealous advocacy into alleging false statements."

The 216 page lawsuit asserts 16 causes of action and seeks to hold Snap accountable under product liability theory rather than Section 230 of the Communications Decency Act. Seven cases have been filed in Los Angeles County Superior Court on behalf of 65 decedents and/or surviving individuals who allegedly overdosed on pills laced with fentanyl. Amy Neville et al. v. Snap Inc., 22STCV33500 (L.A. Super. Ct., filed Oct. 13, 2022).

"Some of these are extremely serious and inflammatory, especially to allege ... that we promote and advertise illegal drugs to children. That's absolutely false," said Snap's attorney, Jessica L. Grant of Shook, Hardy & Bacon LLP.

"Saying that we refuse to cooperate with law enforcement or otherwise frustrate law enforcement's activities. That's 100% false," Grant continued.

Riff pushed back on her argument: "So your proposition to me is that without making any credibility determinations if I simply look at the evidence submitted in favor of and in opposition to this motion it will be apparent to me that there is nothing, nothing of substance to support, plaintiffs' factual assertions, that you would bring to the court's attention," he said.

"Here, no reasonable attorney would allege that Snap advertises drugs to kids on information and belief. And then when you're provided with a sworn declaration that says 'no, that is absolutely not accurate at all.' Where's the evidence? Where's the factual basis? That is what is required under 128.7," Grant replied.

Plaintiffs' attorney Glenn S. Draper from Social Media Victims Law Center told Riff he was surprised by Grant's statement that she had argued only two 128.7 motions in her career, saying that Snap files those motions regularly.

"And the reason they do this, I think, is because they know that on a demurrer, the allegations in the complaint have to be taken as true. But they don't want the court to think that they're true so by filing a concurrent section 128.7 motion, they can say to the court, 'Oh yeah, you have to take the allegations as true, but wink, wink, nudge, nudge, they're really not, don't worry about it," he said.

Draper said he and his colleagues conducted nearly 1,000 interviews over "countless hours" with parents and children about their Snapchat and social media use, and spent hundreds of hours researching and drafting the complaint.

Riff said he wants fact sheets for the first round of discovery. He ordered the parties to meet and confer on the proposed forms of their respective documents as well as a protective/confidentiality order. Each side is to select plaintiffs from each of the seven lawsuits that they believe are representative samples.

In January, Riff mostly overruled Snap's demurrer but declined to rule whether Snapchat is a tangible product or service. Plaintiffs said Snapchat is a product under California law. Snap demurred, saying the platform is a service.