Susman Godfrey, Dechert square off in case against online porn giant

4 minute read

Dechert LLP in Washington, D.C. REUTERS/Andrew Kelly

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  • MindGeek faces class action lawsuit stemming from underage porn videos posted on Pornhub and other sites
  • MindGeek called recent ruling "disappointing and inconsistent with precedent"

(Reuters) - Susman Godfrey partners Davida Brook, Krysta Kauble Pachman and Arun Subramanian have cleared an early hurdle in their lawsuit against the "YouTube of porn" after a federal judge refused to toss their core claims against MindGeek USA Inc, which owns Pornhub, YouPorn and other websites.

But standing between them and a potential victory – as well as significant damages for Mindgeek – is a defense team of Dechert attorneys, including Mark Cheffo, co-chair of the firm's product liability and mass torts practice, and Kathleen Massey, a securities and commercial litigator who serves as managing partner of the firm's New York office.

At issue are class action claims that MindGeek has violated federal sex trafficking and child pornography laws by allowing – and profiting from – its users posting pornographic videos featuring people under the age of 18, including children. A tentative trial date is set for the summer of 2023.

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The lawsuit was brought in February by Susman Godfrey's client, a woman who has alleged that videos of her having sex while she was 16 years old were posted on Pornhub by her ex-boyfriend. The plaintiff, who is not identified in the pleadings, said the videos' circulation has caused her anxiety, distress and sleeplessness.

Santa Ana, California U.S. District Judge Cormac Carney on Friday denied MindGeek's motion to dismiss the lawsuit "in substantial part." Carney, among other things, found that MindGeek is not immune from liability because the plaintiff alleged that the company "has materially contributed to the creation of child pornography on its platforms."

"We were very encouraged by the ruling," Pachman said.

MindGeek in a statement said Carney's ruling was "disappointing and inconsistent with precedent," but noted the litigation is still in its early stages. The company said it is confident the claims will be dismissed without merit once the court considers that "MindGeek did not contribute to the creation of the content at issue or knowingly participate in or benefit from any alleged trafficking."

The company, which also owns adult film production companies, said it takes allegations of non-consensual or child sexual abuse material extremely seriously, "and any suggestion that we allow illegal content on our platform is categorically and factually inaccurate."

"We are vehemently opposed to the posting of any illegal content, and have instituted a comprehensive, industry-leading trust and safety policy to identify and eradicate illegal material from our community," MindGeek said.

A representative for Dechert declined to say how the firm was tapped for the lawsuit. Dechert is also representing MindGeek in a similar lawsuit filed in June by a group of alleged sex trafficking victims represented by Brown Rudnick. MindGeek has not yet formally responded to that lawsuit, according to court records.

Susman Godfrey's Pachman, who was a part of a trial team that secured a $43.5 million settlement from music streaming service Spotify in 2017, declined to estimate how much financial exposure MindGeek could face if the case wins class certification. But even individual claims could be costly for MindGeek because of the potential for punitive damages, she said.

"In terms of the exposure MindGeek faces, that will turn on the documents we receive in discovery," Pachman said.

Apart from damages, Subramanian, a member of Susman Godfrey's executive committee, said they are seeking injunctive relief, like a court order requiring MindGeek to implement an age-verification policy for its sites. But that relief hasn't been fully spelled out and would be informed by the discovery process, Subramanian added.

"So much of this case turns on what has been happening behind the scenes," Subramanian said. The lawsuit cites a Pornhub employee's Reddit post suggesting that an age-verification policy would result in a 50% reduction in web traffic.

Pachman said the size of the proposed class isn't certain, but the lawsuit notes that Pornhub deleted millions of videos after a December New York Times report found that many videos posted on the adult website depicted sexual assault of children. That report led Visa and Mastercard to stop processing payments on Pornhub.

"That’s the only data point we have right now. It’s definitely very significant," Pachman said, regarding the potential class.

Rounding out Susman Godfrey's leadership on this case is Brook, who is also representing Dominion Voting Systems in its multi-billion defamation lawsuits against a group of defendants that includes Rudy Giuliani, Donald Trump's former personal lawyer, for spreading false claims about the November 2020 presidential election being rigged.

The plaintiff is also represented by Susman Godfrey partner Tamar Lusztig and Steve Cohen of New York-based Pollock Cohen. MindGeek is also represented by Dechert counsel Benjamin Sadun.

Read more:

Susman Godfrey joins Dominion legal team in defamation cases

Mastercard, Visa halt payments on Pornhub over allegations of child sex-abuse content

Spotify reaches $43.5 million settlement in unpaid royalty class action

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Reporting by David Thomas

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David Thomas reports on the business of law, including law firm strategy, hiring, mergers and litigation. He is based out of Chicago. He can be reached at d.thomas@thomsonreuters.com and on Twitter @DaveThomas5150.