Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D.C. Cir.: Facebook to face D.C. consumer law claims on reversal of summary judgment, (Aug 6, 2025)

By Justin Marcus Smith, J.D.

Allegations about unintentional misrepresentations under the D.C. consumer protection statute do not call for proof under the clear and convincing standard of evidence.

Consumer protection claims filed by the District of Columbia Attorney General’s Office against Facebook only required proof by a preponderance of the evidence, held the U.S. Court of Appeals for the District of Columbia, reversing summary judgment for Facebook. The preponderance standard applied because the claims were based on unintentional misrepresentations. Conversely, had the claims been based on intentional misrepresentations, the clear and convincing standard would apply. The Circuit reversed summary judgment and remanded for further proceedings. The court also reversed and remanded on the trial court decision to exclude expert testimony where the trial court did not appear to have engaged in any meaningful analysis with respect to readability and mental models (District of Columbia v. Facebook, Inc., No. 23-CV-0550 (D.C. App. July 31, 2025)).

Background. The widely publicized Cambridge Analytica data leak prompted the District of Columbia (District) to investigate and then assert this action against Facebook for violating the District of Columbia Consumer Protection Procedures Act (CPPA). The District alleged Facebook violated the CPPA by unintentionally misleading consumers, through a Byzantine web of privacy settings and disclosures, about which of their data third-party applications could access through a Facebook user’s friends. The District alleged Facebook materially omitted disclosure to users that third parties obtained their data in violation of Facebook policies. The District also took issue with Facebook auditing of third-party applications.

The trial court granted summary judgment for Facebook after observing the District needed to prove its CPPA claims by clear and convincing evidence. The trial court concluded Facebook made accurate disclosures about friend sharing that would not have misled reasonable consumers. As for auditing and policy enforcement, the trial court concluded Facebook never guaranteed how it would proceed. Last, the court concluded Facebook did not have any duty to disclose the Cambridge Analytica data leak, so its omissions were not misrepresentations.

Pertinent to this appeal, the Circuit, nearly two decades ago, held that CPPA violations may be unintentional. However, it did not resolve the standard of proof. It did not revisit an earlier decision that required the clear and convincing standard of proof for any CPPA violation.

The question on appeal was whether unintentional violations call for proof under the clear and convincing standard or the preponderance standard. Applying de novo review to summary judgment, the Circuit held a preponderance of the evidence would be sufficient to prove a CPPA violation for unintentional misrepresentation.

Unintentional misrepresentation. The common law required clear and convincing evidence for claims of intentional misrepresentation. That was the rationale for the earlier prevailing clear and convincing standard under the CPPA. A 2020 opinion did not decide the burden of proof applicable to claims of unintentional misrepresentations under the CPPA. That case was not binding.

Although claims for common law fraud require clear and convincing evidence, claims based on unintentional misrepresentations are, by definition, not subject to the intentional misrepresentation exception to the general rule that civil claims only require proof by a preponderance of the evidence.

The court said it was not clear the trial court would have reached the same summary judgment decision for Facebook under the preponderance of the evidence standard. Where a trial court’s articulations are in serious tension with the preponderance standard, the court cited that is enough to justify remand for the trial court to clarify its ruling.

Expert testimony. The court reversed and remanded the trial court’s decision to exclude certain expert testimony. The exclusion was an abuse of discretion because the trial court did not address admissibility substantively. The trial court’s written order merely referred to reasons stated on the record complicating appellate review. Although trial court comments reflected general doubt about expert application of the scientific method, the trial court did not appear to have engaged in any meaningful analysis with respect to readability and mental models. The only thing the court could conclude was that the record did not support a conclusion that the testimony was inadmissible in its entirety.

The Case is No. 23-CV-0550.

Judge: Shanker, V.

Attorneys: Jeremy R. Girton, Office of Attorney General, for District of Columbia. Joshua S. Lipshutz (Gibson, Dunn & Crutcher LLP) for Facebook, Inc.

Companies: Facebook, Inc.

Cases: StateUnfairTradePractices DistrictofColumbiaNews