Israel-based BrandTotal has asked for more time to respond to two motions filed by Meta Platforms Inc., claiming that Meta is using its “limitless resources to further strong-arm BrandTotal into an unfavorable settlement.” Last week’s opposed motion explains that BrandTotal was blindsided by Meta’s requests for a permanent injunction and approximately $2.7 million in attorneys’ fees, and now needs time to prepare meaningful responses.
Meta sued BrandTotal, an advertising analytics company, in 2020. Its suit argued that since 2017, BrandTotal created at least 13 browser extensions and mobile applications that scraped data from Facebook and Instagram in violation of their terms of use. The civil action claimed that BrandTotal knew its conduct was illegal and thus tried to evade detection by using fake accounts and other technical strategies.
In May, the court ruled on the parties’ partial summary judgment motions, granting some requests and denying others. In relevant part, the court sided with Meta on its breach of contract claim, but said that damages had to be proven at trial.
Following that order, BrandTotal met and conferred with Meta to resolve the outstanding issues and plan for appeal without expending resources on a trial. BrandTotal further explains that it has been focused on “winding down” operations and preparing for an August 29 mediation with Meta.
Yet, Meta filed the two motions in mid-August, seemingly out of the blue, asking for a permanent injunction, claiming irreparable harm from BrandTotal’s allegedly ongoing misconduct.
BrandTotal now responds that Meta’s motions seek “to impose massive new financial penalties, conduct restrictions, and property disgorgements upon BrandTotal based on theories and evidence that were not previously disclosed to BrandTotal—all before any judgment has even been entered in this matter.”
BrandTotal points out that it was only recently that Meta first expressed its intent to seek attorneys’ fees under the California State Penal Code. The motion argues that there is no reason why BrandTotal should not be given extra time to respond to the “incredibly impactful motions that seek to impose lifelong and invasive conduct restrictions on BrandTotal and its officers and agents, in addition to financial penalties that are almost twenty times larger than the actual damages Meta has claimed.”
Meta is represented by Wilmer Cutler Pickering Hale and Dorr LLP and BrandTotal by Husch Blackwell and Kronenberger Rosenfeld.
