Doe 1 v. MG Freesites LTD

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

JANE DOE, )

on behalf of herself and all )

others similarly situated, )

)

Plaintiff, )

)

vs. ) 7:21-cv-00220-LSC

)

MG FREESITES, LTD, d/b/a )

“PORNHUB”, a foreign entity; )

MG FREESITES II LTD, a foreign )

entity; MINDGEEK, S.A.R.L., a )

foreign entity; MINDGEEK USA, )

INCORPORATED, a Delaware )

corporation; MG CY HOLDINGS )

LTD, a foreign entity; MINDGEEK )

CONTENT RT LIMITED, a )

foreign entity; 9219-1568 QUEBEC )

INC. d/b/a MINDGEEK, a foreign )

entity; MG BILLING LTD, a )

foreign entity, )

)

Defendants. )

MEMORANDUM OF OPINION AND ORDER

GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

I. Introduction

The Court has for consideration Plaintiff Jane Doe’s motion, filed on

September 13, 2023, to certify a class under Federal Rule of Civil Procedure 23.

(Doc. 95.) Plaintiff describes the class as follows:

All persons, who were under eighteen years of age at the time they were

depicted in any video or image, (1) in any commercial sex act as defined

under 18 U.S.C. §§ 1591 and 1595, or (2) in any child pornography as

defined under 18 U.S.C. § 2252A, that has been made available for

viewing on any website owned or operated by the Defendants.

(Id. at 2.) Defendants—MG Freesites, LTD, d/b/a “Pornhub”; MG Freesites II,

LTD; Mindgeek S.A.R.L.; Mindgeek USA Incorporated; MG CY Holdings LTD;

Mindgeek Content RT Limited; 9219-1568 Quebec, Inc., d/b/a Mindgeek; and MG

Billing LTD—oppose class certification (doc. 102; see also docs. 132 & 137), and

Plaintiff has replied in support of her motion. (Doc. 129; see also doc. 126).1 For the

following reasons, Plaintiff’s motion will be granted.

II. Background

The Court assumes that the parties are familiar with Plaintiff’s complaint

allegations. This Court described them in detail in its Memorandum of Opinion and

Order denying Defendants’ Motion to Dismiss. (Doc. 42; Doe #1 v. MG Freesites,

1 The parties originally filed redacted motions and briefs and were then

permitted to file unredacted versions under seal. This Court believes that this

opinion should be in the public domain to the extent possible. Thus, some portions

of this opinion are redacted, and an unredacted version will be filed under seal

contemporaneously. Additionally, Doc. 126, which is Plaintiff’s motion for a status

conference to discuss an expedited ruling on the pending class certification motion,

is hereby DENIED as MOOT.

LTD, 2022 WL 407147 (N.D. Ala. Feb. 9, 2022)). In short, the allegations—and

evidence submitted by the parties in conjunction with this motion—show the

following.

Plaintiff, an Alabama woman proceeding pseudonymously, is a victim of

childhood sex trafficking, and she brings this putative class action against

Defendants, who are a network of related companies that own or operate several of

the most-visited pornographic websites in the world, including www.Pornhub.com.

Pornhub is a tube site, meaning much of the site’s content comes from individual

users who create pornographic videos or images and upload them to Pornhub

themselves, subject to Pornhub’s terms and conditions. But the content is not

publicly available until Defendants allow it to be so. Defendants actively review all

content before it appears on their websites, create thumbnails, tags, and titles for that

content, and determine which uploaded content will and will not appear on their

websites. Defendants then offer the uploaders the opportunity to share in the

advertising revenue from the content they upload, through, among other things,

their Content Partner and ModelHub programs. Defendants also monetize the

content on their sites by selling premium subscriptions and harvesting user data that

they share with advertisers.

Plaintiff alleges that Defendants have constructed and continue to use a

business model that enables them to profit from sex trafficking ventures involving

tens of thousands of children, and in so doing have also received and distributed vast

amounts of child sexual abuse material (“CSAM”) on their pornography websites.

Defendants’ business model is predicated on maximizing views and traffic to their

websites, and Plaintiff alleges that they edit the titles, tags, and keywords of content

that violates or potentially violates their terms of service so that such content can

remain live and publicly available. According to Plaintiff, this active role has not only

allowed Defendants to profit from content with tags commonly associated with

CSAM, such as “young,” “teenager,” and “tiny teen,” it has also led to the

proliferation of CSAM on their websites. For instance, Plaintiff’s abuser—who has

since been convicted of displaying obscene material depicting a minor and sexual

abuse—filmed her engaging in sexual acts while she was still a minor and uploaded

the videos to Pornhub. The videos, one of which contained the diminutive term

“Lil” in the title, were publicly available for over two years, despite several take

down requests, until law enforcement intervened.

Plaintiff brings this case on behalf of herself and all other victims whose

CSAM appeared on Pornhub and Defendants’ other sites as a result of Defendants’

business practices. Her Amended Complaint contains two counts: one alleging that

Defendants knowingly benefitted from participation in what they knew or should

have known was a sex trafficking venture, in violation of the Trafficking Victims

Protection Reauthorization Act (“TVPRA”), 18 U.S.C. §§ 1591 and 1595 (Count I),

and the other that Defendants received and distributed child pornography in

violation of 18 U.S.C. §§ 2252 and 2252A (Count II). Plaintiff requests that the

Court award damages and issue injunctive and equitable relief, including requiring

Defendants to identify and remove CSAM and implement corporate-wide policies

to prevent continued dissemination of CSAM on their platforms. Indeed, although

Defendants describe a variety of technological tools that they now use that were

developed in recent years that were designed to detect CSAM before it is viewable

to the public, Plaintiff contends that these new moderation practices and tools

remain ineffective in eliminating CSAM on Pornhub and the other sites.

III. Legal Standards

Class actions, in which representative litigants may bring claims on behalf of

absent class members, are “an exception to the usual rule that litigation is conducted

by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442

U.S. 682, 700–01 (1979). The class representative must be a part of the class and

“possess the same interest and suffer the same injury” as the class members. Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011).

Federal Rule of Civil Procedure 23 governs class certification. Id. at 345. The

class representative has the burden of proof. Valley Drug Co. v. Geneva Pharm., Inc.,

350 F.3d 1181, 1187 (11th Cir. 2003). The class representative must do three things:

1) satisfy an implied ascertainability requirement, 2) show that the class meets each

of the requirements specified in Rule 23(a), and 3) show that the class falls under at

least one of Rule 23(b)’s categories of class actions. Little v. T-Mobile USA, Inc., 691

F.3d 1302, 1304 (11th Cir. 2012).

Rule 23(a) “ensures that the named plaintiffs are appropriate representatives

of the class whose claims they wish to litigate.” Wal-Mart Stores, 564 U.S. at 349.

The four requirements found in Rule 23(a) are that:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of

the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a). Courts and litigants refer to these requirements as numerosity,

commonality, typicality, and adequacy of representation. Valley Drug Co., 350 F.3d

at 1188.

Plaintiff is moving for class certification pursuant to Rule 23(b)(2) and (3). A

Rule 23(b)(3) class action must satisfy two additional requirements: (1) the

“questions of law or fact common to class members [must] predominate over any

questions affecting only individual members” and (2) a class action must be

“superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). On the other hand, Rule 23(b)(2) allows class

treatment where “the party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2).

“Rule 23 does not set forth a mere pleading standard. A party seeking class

certification must affirmatively demonstrate [her] compliance with the Rule—that

is, [she] must be prepared to prove that there are in fact sufficiently numerous

parties, common questions of law or fact, etc.” Wal-Mart Stores, 564 U.S. at 351.

Accordingly, this Court may consider the merits of Plaintiffs’ claims “to the extent

[ ] that they are relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455,

466 (2013). This Court resolves any factual disputes by a preponderance of the

evidence standard. Wal-Mart Stores, 564 U.S. at 350–51.

IV. Discussion2

A. The Implied Ascertainability Requirement

Plaintiff’s first hurdle is to establish that the proposed class is “adequately

defined and clearly ascertainable.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302

(11th Cir. 2021) (“Class representatives . . . must satisfy this requirement before the

district court can consider whether the class satisfies the enumerated prerequisites

of Rule 23(a).”). The Eleventh Circuit has traditionally “collapsed class definition

and ascertainability into one inquiry.” Id. The proposed class cannot be defined

“through vague or subjective criteria.” Id. Instead, class membership must be

capable of being determined through objective criteria so that the Court is able to

ascertain who belongs in the class. Id. at 1303–04. Importantly, “membership can be

capable of determination without being capable of convenient determination.” Id.

2 “[A]nalysis of class certification must begin with the issue of standing.”

Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). See also Wooden v. Bd. of

Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1283 n. 20 (11th Cir. 2001) (“[T]he

fact that this suit was brought as a class action does not alter [the proposed class

representative’s] obligation to show that [s]he individually satisfies the

constitutional requirements of standing.”). Defendants do not challenge Plaintiff’s

standing to pursue the present action as a general matter, although they do argue that

she lacks standing to seek injunctive relief, an argument that is addressed infra. The

Court, in independently reviewing the record, has not identified any standing

problems or other “case or controversy” concerns (e.g., ripeness or mootness) that

would prevent this case from proceeding as a class action.

This means that, at least in the Eleventh Circuit, “[a]dministrative feasibility is not

an inherent aspect of ascertainablity.” Id. Administrative feasibility refers to whether

identifying class members is a “‘a manageable process that does not require much,

if any, individual factual inquiry.’” Id. at 1304 (quotation omitted).

As noted, Plaintiff defines the proposed class as follows:

All persons, who were under eighteen years of age at the time they were

depicted in any video or image, (1) in any commercial sex act as defined

under 18 U.S.C. §§ 1591 and 1595, or (2) in any child pornography as

defined under 18 U.S.C. § 2252A, that has been made available for

viewing on any website owned or operated by the Defendants.

(Doc. 95 at 2.) From this definition, it appears that the following objective criteria

can be used to ascertain who belongs in the class: 1) the age of class members at a

specific point in time; 2) the type of media depicting the class members; 3) the

specific acts or circumstances in which the class members are depicted; and 4) the

availability of the videos or images on specific websites. Indeed, none of these criteria

is subject to opinion or interpretation.

Defendants contend that Plaintiff’s class definition is impermissibly vague for

several reasons, but their arguments overcomplicate the ascertainably inquiry. First,

they say that it will be difficult to determine the identities of class members from

images or videos on Pornhub or Defendants’ other sites, since faces depicted in

pornographic videos are often obscured. They also say that it will be nearly

impossible to determine, by merely viewing the images or videos, whether class

members were underage at the time the content depicting them was created,

especially if they were post-pubescent minors at the time of creation.

However, Plaintiff has already established her minority at the time her CSAM

was created through direct evidence, without anyone having to resort to attempting

to determine her age from a video or photo. (Ex. 18 to Doc. 95 [Plaintiff’s declaration

in which she confirms her age at the time of the creation of her CSAM]; Ex. 20 to

Doc. 95 [Defendants’ records showing date of upload of CSAM depicting Plaintiff

to Pornhub].) Class members can similarly self-identify.

In any event, Defendants’ arguments pertain more to the administrative

feasibility of the class, which the Eleventh Circuit has instructed courts not to

consider as a part of the ascertainability analysis. See Cherry, 986 F.3d at 1304. See

also Morris v. Walmart Inc., 2022 WL 1590474, at *6 (N.D. Ala. Mar. 23, 2022)

(finding ascertainability and explaining that a fact “may complicate the identification

of class members and even necessitate some self-identification, but it does not make

identification impossible”). Certainly, class members may be required to establish

their minority during any future claims administration processes in order to qualify

as members of the class and participate in any class monetary relief. But for class

certification purposes, the CSAM content documented in Defendants’ own records

shows who the class members are. They are the people in those CSAM images on

Defendants’ websites—20,000 of which Defendants have reported to the National

Center for Missing and Exploited Children (“NCMEC”) since 2020. (Exs. 1 & 22

to Doc. 95).

Defendants also say that Plaintiff’s inclusion of references to 18 U.S.C. §§

1591, 1595, and 2252A in the class definition makes it a prohibited “fail-safe” class.

A fail-safe class is “a class whose membership can only be ascertained by a

determination of the merits of the case because the class is defined in terms of the

ultimate question of liability.” Rodriguez v. Countrywide Home Loans, Inc., 695 F.3d

360, 369–70 (5th Cir. 2012) (citation omitted); accord Messner v. Northshore Univ.

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (defining a fail-safe class as “one

that is defined so that whether a person qualifies as a member depends on whether

the person has a valid claim”). The Eleventh Circuit has suggested in dicta that fail-

safe classes are disfavored, while not outright prohibiting them. See Cordoba v.

DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019).

However, even if the wording of Plaintiff’s class definition runs the risk of

making it a fail-safe class, the Court needn’t deny class certification on this basis.

Rather, this Court can redefine the class to more clearly describe the class of

individuals affected by Defendants’ conduct. See Moody v. Circle K Stores, Inc., 2023

WL 404018, at *4 (N.D. Ala. Jan. 25, 2023) (the Court has discretion to “revise the

class on its own, or permit the plaintiff to cure the flawed definition”) (citing

Messner, 669 F.3d at 825 (“the fail-safe problem is “more of an art than a science . .

. and often should be resolved by redefining the class definition rather than flatly

denying class certification on that basis.”) (quotation omitted)); Cox v. Community

Loans of Am., Inc., 2014 WL 1216511, at *14 (M.D. Ga. Mar. 24, 2014) (explaining

that the court may “redefine the class to bring it within the scope of Rule 23”); 5

James W. Moore et al., Moore’s Federal Practice § 23.24[7] (3d ed. 2007).

Plaintiff has already suggested an alternative class definition, which is:

All persons who were under the age of 18 when they appeared in a video

or image that has been made available for viewing on any website owned

or operated by [Defendants] anytime from February 12, 2011 through

the present.

(Doc. 129 at 56 n.35.) The Court finds that this alternative definition adequately

defines the class and avoids putting it in the fail-safe category and will thus use it

going forward.

Finding that the class is ascertainable, the Court now turns to the four

requirements found in Rule 23(a).

B. The Rule 23(a) Requirements

1. Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all

members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is “generally [a]

low hurdle,” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009), and

a class of “more than forty” members is “generally” adequate, Cox v. Am. Cast Iron

Pipe Co., 784 F.2d 1546, 1153 (11th Cir. 1986). Here, Plaintiff contends that the

proposed class numbers at least in the thousands. As noted, Defendants’ own

records indicate that they have made over 20,000 reports to NCMEC of apparent

CSAM on their websites. (Exs. 1 & 22 to Doc. 95.) The Court finds that the

numerosity requirement is met.

2. Commonality

To satisfy the commonality requirement, a party seeking class certification

must demonstrate “there are questions of law or fact common to the class.” Fed. R.

Civ. P. 23(a)(2). The class members’ claims must “depend upon a common

contention . . . of such a nature that it is capable of classwide resolution—which

means that determination of its truth or falsity will resolve an issue that is central to

the validity of each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S. at

350. “For purposes of Rule 23(a)(2) even a single common question will do.” Id. at

359. See also Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009)

(“Commonality requires ‘that there be at least one issue whose resolution will affect

all or a significant number of the putative class members.’”) (quoting Stewart v.

Winter, 669 F.2d 328, 335 (5th Cir. 1982)).

Plaintiff seeks to certify a class based on the violations of the federal child

pornography prohibitions and the TVPRA. To establish liability under the federal

child pornography statutes, Plaintiff must prove that Defendants knowingly received

or distributed child pornography in interstate or foreign commerce. 18 U.S.C. §

2252A(a)(2). To prevail under the TVPRA, Plaintiff must show that Defendants

knowingly benefitted financially or by receiving anything of value from participation

in a venture that Defendants knew or should have known has engaged in child sex

trafficking. 18 U.S.C. § 1595(a). Plaintiff has identified the following common

questions that she says will be relevant to her claims and that are susceptible to class-

wide proof:

• Whether CSAM has appeared on Defendants’ websites;

• How Defendants obtain content for their websites;

• How Defendants review and moderate content that appears on their websites;

• Whether Defendants’ policies and practices allowed CSAM to appear on

their websites or were inadequate to stop CSAM from appearing on

their websites;

• How Defendants monetize content on their websites and whether they

profited from CSAM appearing on their websites;

• Whether Defendants knew or should have known that CSAM has appeared

on their websites;

• Whether Defendants knowingly benefitted from sex trafficking ventures;

• Whether Defendants’ conduct constitutes sex trafficking, dissemination of

videos depicting minors in commercial sex acts or child pornography, or child

exploitation in violation of 18 U.S.C. §§ 1591, 1595, and 2252A.

(Doc. 95-1 at 14–15).

The Court agrees with Plaintiff that these questions and issues all relate to the

same practices and policies that Defendants have used to operate their websites that

have resulted in Plaintiff’s and the putative class members’ CSAM being distributed

to the public in violation of federal sex trafficking and child pornography laws, and,

therefore, all are susceptible of being resolved by class-wide proof. See Menocal v.

GEO Grp., Inc., 882 F.3d 905, 916–17 (10th Cir. 2018) (commonality requirement

satisfied where “all members of the TVPA [forced labor] class based their claims on

the [same] Policy” of defendants). Defendants have failed to persuade the Court that

there is not “at least one issue whose resolution will affect all or a significant number

of the putative class members.” Mohawk, 568 F.3d at 1355.3 Thus, the commonality

requirement is met.

3 Although Defendants vigorously argue that sex trafficking crimes are highly

individualized in their circumstances and that making the determination as to

3. Typicality

The third Rule 23(a) requirement, typicality, “measures whether a sufficient

nexus exists between the claims of the named representatives and those of the class

at large.” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322–23 (11th Cir. 2008)

(quotation omitted). “A sufficient nexus is established if the claims or defenses of

the class and the class representative arise from the same event or pattern or practice

and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741

F.2d 1332, 1337 (11th Cir. 1984). “Typicality, however, does not require identical

claims or defenses. A factual variation will not render a class representative’s claim

atypical unless the factual position of the representative markedly differs from that

of other members of the class.” Id. (citation omitted).

The court easily finds that a “sufficient nexus” exists between Plaintiff’s

claims and those of the putative class. See id. Plaintiff and the class contend that

Defendants’ websites hosted pornographic videos depicting them when they were

minors. Plaintiff alleges that Defendants’ policies and practices made dissemination

of this CSAM, both of her and the putative class members, possible. In other words,

whether a particular individual was trafficked cannot be done on group basis, their

arguments are better addressed when the Court discusses the predominance

requirement found in Rule 23(b)(3), infra.

she alleges the same conduct of Defendants caused injuries common to all class

members. See Menocal, 882 F.3d at 917 (typicality requirement satisfied where “the

claims of all the class members—including the representatives—share the same

theory: that GEO knowingly obtained class members’ labor by means of the

Sanitation Policy . . . . The class representatives allege that they—just like all other

Aurora Facility detainees in the relevant period—performed ‘mandatory,

uncompensated work . . . under [GEO’s] Housing Unit Sanitation policy.’”).

Defendants argue that Plaintiff is not typical of the class because her claims

may be subject to “unique defenses” that other class members may not have. (Doc.

102 at 43–44 (citing Bryant v. Southland Tube, 294 F.R.D. 633, 648 (N.D. Ala.

2013))). Specifically, Defendants argue that because Plaintiff suffered many

injustices in her life prior to learning that videos of her had been uploaded onto

Pornhub, including parental abuse, sexual assaults, attempted suicides and

institutionalization at a residential mental health treatment facility,4 it would be

4 Defendants submitted the declaration of a trauma psychologist who reviewed

records pertaining to Plaintiff. (Ex. 4 to Doc. 102.) The psychologist opined that the

mental disorders that Plaintiff has been diagnosed with “do not arise solely from

exposure to one or two stressful events such as the nonconsensual posting of

pornographic material [Plaintiff] described.” (Id. at 1.) The psychologist did not

examine Plaintiff, nor did she “draw diagnostic conclusions about her mental status,

diagnoses, and/or psychological functioning.” (Id. at 2.)

difficult for the trier of fact to determine what injury is attributable to the uploading

of content to Pornhub versus what injury would be attributable to these other life

events.

This argument ignores that each CSAM victim suffers a personal injury due

to the very fact that CSAM of them exists, regardless of whether that injury

manifests in emotional distress, physical symptoms, or in some other fashion. See

New York v. Ferber, 458 U.S. 747, 758-59 (1982) (“[T]he use of children as subjects

of pornographic materials is harmful to the physiological, emotional, and mental

health of the child. . . . and the harm to the child is exacerbated by their

circulation.”); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002) (“[A]s a

permanent record of a child’s abuse, the continued circulation itself would harm the

child who had participated. Like a defamatory statement, each new publication . . .

would cause new injury to the child’s reputation and emotional well-being.”); St.

Louis v. Perlitz, 176 F. Supp. 3d 97, 99 (D. Conn. 2016) (“Congress has recognized

that distribution of child pornography on the Internet inflicts an injury on the minor

victims depicted in the pornographic material.”). As a result, Plaintiff and every

other minor whose CSAM appeared on Defendants’ websites suffered at least this

same injury.

Further, the case on which Defendants rely is an employment discrimination

case where the court found typicality lacking because each named class

representative had different factual circumstances surrounding the defendant’s

failure to promote them: they were employed in different positions; they desired

different training and promotions; some asked for a promotion while others never

did; some had issues with their job performance or attendance that made them

unlikely candidates for promotion or merit raises; yet others were promoted

numerous times. Bryant, 294 F.R.D. at 648. Additionally, the defendant in Bryant

stated that its reasons for awarding promotions were specific to the individual and

not based on a policy of race discrimination. Id. This case bears no similarity to

Bryant, or to any discrimination case, because Plaintiff’s claims concern Defendants’

common business practices and policies.

Finally, any differences in the emotional distress suffered by class members

could be addressed during any future claims administration process as individuals

participate in any monetary relief award, or even in separate actions brought by class

members who might choose to opt out of this class action to pursue their own

individual damages claims. See In re Checking Account Overdraft Litig., 2022 WL

472057, at *5 (11th Cir. Feb. 16, 2022) (rejecting the argument that the named

plaintiff “lacks the typicality needed for Rule 23(a)(3) because he has a unique

defense” and noting that even if the “defense would be dispositive as to most class

members if they attempted to sue individually, there is still a ‘sufficient nexus’ . . .

between [the plaintiff’s] claims and the class’s claims to render [the plaintiff] typical

under Rule 23(a)(3).”). As such, the typicality requirement is satisfied.

4. Adequate Representation

“Adequacy of representation” is the final Rule 23(a) requirement. “The

adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between

named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 625 (1997). The adequacy-of-representation requirement thus

“encompasses two separate inquiries: (1) whether any substantial conflicts of

interest exist between the representatives and the class; and (2) whether the

representatives will adequately prosecute the action.” Valley Drug, 350 F.3d at 1189

(quotations omitted).

There is no evidence that Plaintiff or her counsel has any conflict of interest

with other class members. Rather, Plaintiff’s claims are consistent with those of the

class members, who would all allege to have suffered the same type of injury because

of Defendants’ conduct. See Amchem Prods., Inc., 521 U.S. at 625–26 (to satisfy the

adequacy of representation requirement, the class representative “must be part of

the same class and possess the same interest and suffer the same injury as the class

members”) (quotation omitted); Valley Drug, 350 F.3d at 1189 (for the adequacy of

representation requirement, conflicts of interest exist only “where some party

members claim to have been harmed by the same conduct that benefitted other

members of the class”).

Further, Plaintiff has already demonstrated her commitment to prosecuting

her claims by making a large discovery production, including being deposed, and she

has declared her intention to see this litigation through to its conclusion. (Ex. 18 to

Doc. 95.) The same is true of Plaintiff’s counsel, who are qualified, experienced, and

financially able to prosecute this case, and who have already invested significant

resources into it. (Ex. 19 to Doc. 95 [Plaintiff’s counsel’s declaration discussing

counsel’s experience representing victims of sex trafficking, sexual abuse, and sexual

exploitation, as well as extensive experience with complex litigation, including class

actions and criminal cases involving sex crimes].)

Defendants argue that Plaintiff is not an adequate representative because, by

suggesting that this Court could, in its discretion, certify a class for statutory

liquidated damages only,5 she has constructively abandoned pursuit of actual

5 Under 18 U.S.C. § 2255, a victim may choose to recover liquidated damages

of $150,000, as an alternative to actual damages, for both a child pornography claim

(i.e., a violation of 18 U.S.C. § 2252A) and for a sex trafficking beneficiary liability

claim (i.e., a violation of 18 U.S.C. § 1591).

compensatory damages to the detriment of absent class members who may wish to

seek them. To the contrary, the Court does not read Plaintiff’s motion as abandoning

any type of damages. Plaintiff clearly seeks all forms of damages on behalf of the

class—statutory, compensatory, and punitive. (Doc. 95-1 at 40.) Accordingly,

Plaintiff is an adequate representative of the class.

Finding that Plaintiff has met the four requirements for a class action under

Rule 23(a), the Court now turns to the two categories of classes found in Rule 23(b)

that Plaintiff requests be certified.

C. Categories of Class Actions Under Rule 23(b)

In addition to the Rule 23(a) requirements, Plaintiff must also establish one or

more of the grounds for maintaining a class action under Rule 23(b). Klay v. Humana,

Inc., 382 F.3d 1241, 1250 (11th Cir. 2004) (every putative class must meet “at least

one of the requirements set forth in Rule 23(b)”). Plaintiff seeks certification under

Rule 23(b)(3) and 23(b)(2).

1. Rule 23(b)(3) Common Questions Class

Rule 23(b)(3) allows certification when the court finds that (1) “questions of

law or fact common to the members of the class predominate over any questions

affecting only individual members,” and (2) “a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Fed. R.

Civ. P. 23(b)(3). The Court will address predominance and superiority in turn,

finding that Plaintiff meets both requirements.

i. The Predominance Requirement

“Common issues of fact and law predominate if they ‘ha[ve] a direct impact

on every class member’s effort to establish liability and on every class member’s

entitlement to injunctive and monetary relief.’” Williams, 568 F.3d at 1357 (quoting

Klay, 382 F.3d at 1255). Assessing predominance requires “a pragmatic assessment

of the entire action and all the issues involved.” Id. (quoting 5 James Wm. Moore et

al., Moore’s Federal Practice § 23.45[1] (3d ed. 2008)). “Where, after adjudication of

the classwide issues, plaintiffs must still introduce a great deal of individualized proof

or argue a number of individualized legal points to establish most or all of the

elements of their individual claims, such claims are not suitable for class certification

under Rule 23(b)(3).” Id. (quoting Klay, 382 F.3d at 1255). Rule 23(b)(3)’s

predominance inquiry is “far more demanding” than Rule 23(a)’s commonality

requirement. Id. (quoting Amchem Prods., 521 U.S. at 623–24).

In this circuit, the predominance inquiry involves three steps. See Brown v.

Electrolux Home Prods., Inc., 817 F.3d 1225, 1234–35 (11th Cir. 2016). First, the court

“must . . . identify the parties’ claims and defenses and their elements.” Id. at 1234

(citing Klay, 382 F.3d at 1254 & n.7). Second, the court “should . . . classify these

issues as common questions or individual questions by predicting how the parties

will prove them at trial.” Id. (citing Klay, 382 F.3d at 1255). “Common questions are

ones where ‘the same evidence will suffice for each member,’ and individual

questions are ones where the evidence will ‘var[y] from member to member.’” Id.

(quoting Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)). Third, “[a]fter

identifying the common and individual questions, the district court should

determine whether the common questions predominate over the individual ones.”

Id. at 1234–35. Predominance is a “qualitative assessment, too;” meaning that the

“relative importance” of the common versus individual questions is also a

consideration. Id. at 1235 (quotation omitted).

The Court will consider whether common questions of law or fact

predominate as to each of Plaintiff’s claims.

a. Common Questions Predominate Over

Individual Ones on Plaintiff’s Sex Trafficking

Beneficiary Liability Claim under 18 U.S.C. §§

1591(a)(2) and 1595(a)

Count I of Plaintiff’s Amended Complaint alleges that Defendants knowingly

benefitted from participation in what they knew or should have known was a sex

trafficking venture, in violation of the TVPRA, 18 U.S.C. §§ 1591(a)(2) & 1595(a).6

To prove “beneficiary liability” under the TVPRA, Plaintiff must prove that 1)

Defendants knowingly participated in a venture, 2) they knowingly received a benefit

from their participation in the venture, 3) the venture violated the TVPRA as to

Plaintiff, and 4) Defendants knew or should have known that the venture violated

the TVPRA as to Plaintiff. See Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 723 (11th

Cir. 2021) (TVPRA beneficiary liability claim against a hotel franchisor). See also Doe

v. Twitter, 2021 WL 3675207, at *25 (N.D. Cal. Aug. 19, 2021) (defining the elements

of a TVPRA beneficiary liability claim similarly, in a case against an electronic

services provider).

Before turning to whether common questions predominate over individual

ones as to each of these four elements, the Court notes that Plaintiff argued for the

first time in her reply brief that she is also claiming that Defendants committed direct

sex trafficking in violation of 18 U.S.C. § 1591(a)—every time they allowed CSAM

of a victim to be viewed by the public. (See doc. 129 at 24–25.) Arguments raised for

6 Section 1591(a) defines the violations (both direct and beneficiary), 18 U.S.C.

§ 1591(a), and section 1595 permits a party to bring a civil claim against perpetrators

of sex trafficking and against persons or entities who, although not the direct

perpetrator, knowingly benefitted from participating in what they knew or should

have known was a sex trafficking venture. See 18 U.S.C. § 1595(a).

the first time in a reply memorandum are ordinarily not considered. See Herring v.

Sec’y, Dep. of Corr., 397 F.3d 1338, 342 (11th Cir. 2005). The Court did allow

Defendants to submit a sur-reply, in which they responded in opposition to this

argument. (See doc. 137.) Nonetheless, Plaintiff never alleged a direct trafficking

claim in her Amended Complaint, nor did she argue that theory in opposition to

Defendants’ motion to dismiss. A complaint may not be amended through

responsive briefing. See Huls v. Llabona, 437 F. App’x 830, 832 n.5 (11th Cir. 2011)

(finding that a claim is not properly raised where asserted for the first time in

response to a motion to dismiss). Accordingly, the Court will not entertain Plaintiff’s

direct sex trafficking allegation at this time.

To prove section 1591(a)(2) beneficiary liability, Plaintiff must first prove that

Defendants knowingly participated in a venture. The Eleventh Circuit has defined

“participation in a venture” for purposes of TVPRA beneficiary liability as “taking

part in a common undertaking or enterprise involving risk and potential profit.” Red

Roof Inns, 21 F.4th at 726. The beneficiary must be shown to have associated with

Plaintiff’s trafficker in order to serve the beneficiary’s business objective. Id. (citing

Ricchio v. McLean, 853 F.3d 553, 555 (1st Cir. 2017)). Plaintiff may prove a “direct

association” or a “continuous business relationship” between the beneficiary and

the plaintiff’s trafficker. J.G. v. Northbrook Indus., Inc., 619 F. Supp. 3d 1228, 1235

(N.D. Ga. 2022).

Plaintiff can easily use evidence common to all class members to try to prove

that Defendants participated in a venture with her sex trafficker and class members’

sex traffickers. Plaintiff can show that Defendants obtained CSAM through their

direct association and contractual relationships with sex traffickers. Defendants’

own business records demonstrate that uploaders submit content to Defendants’

websites pursuant to the same terms and conditions, that Defendants actively review

all content before it appears on their websites, that they create thumbnails, tags, and

titles for that content, and they determine what uploaded content will and will not

appear on their websites. Defendants’ entire business model is premised on their

contractual relationship with individuals who submit pornographic content to be

uploaded, some of whom sadly are sex traffickers as the TVPRA defines that term.

Plaintiff must next demonstrate that Defendants “knew [they were] receiving

some value from participating in the alleged venture.” Red Roof Inns, 21 F.4th at 724.

Plaintiff can easily attempt to prove this element through generalized evidence

common to all class members from Defendants’ own business records of how

Defendants profited from uploaded videos and images. CSAM is a commodity and a

“thing of value” under the TVPRA. United States v. Cook, 782 F.3d 983, 989 (8th

Cir. 2015) (child pornography “photographs and videos” are “things of value”

within the meaning of “commercial sex act” under 18 U.S.C. § 1591). Evidence that

would be the same for all class members shows that advertisements appear next to

all videos on Defendants’ websites; Defendants share in advertising revenue with

uploaders based on the advertisements that appear next to their content; uploaders,

like Plaintiff’s trafficker, have uploaded CSAM onto Defendants’ websites; and

Defendants generate revenue from tags commonly associated with CSAM found on

their websites, like “young,” “teenager,” “teen,” and “petite.” (Ex. 2 to Doc. 95

[listing tags]; Ex. 6 to Doc. 95 [listing the highest-to-lowest revenue generating tags

on Defendants’ websites in November 2019, with “young” ranked second,

“teenager” ranked third, “teen” ranked 13th, “petite” ranked 18th, and various

combinations thereof, such as “young tiny teen” ranking in the top hundreds].)

Third, Plaintiff must also prove that the venture violated the TVPRA as to

her—and as to the other class members. See Northbrook Indus., 619 F. Supp. 3d at

1238 (citing Red Roof Inns, 21 F.4th at 725). With regard to herself, Plaintiff alleges

that she was trafficked in violation of 18 U.S.C. § 1591(a), which makes it a crime to

cause a person under 18 years old to “engage in a commercial sex act.” 18 U.S.C. §

1591(a). Consequently, Plaintiff must [prove] that the venture in which [Defendants]

participated caused Plaintiff to engage in a commercial sex act.” Northbrook Indus.,

619 F. Supp. 3d at 1238 (quoting 18 U.S.C. § 1591(a)). Under the TVPRA, the “term

‘commercial sex act’ means any sex act, on account of which anything of value is

given to or received by any person.” 18 U.S.C. § 1591(e)(3). Accordingly, the

TVPRA makes it illegal to benefit from the dissemination of videos or images of

minors engaging in sex acts for which anyone received something of value. In this

case, the exposure, platform, and financial incentives provided to Defendants’

uploaders and the profits Defendants’ themselves reap from traffic on their websites

constitute things of value. With regard to the absent class members, independent of

how each class member was trafficked in the first place, Plaintiff can certainly

attempt to demonstrate through the evidence that would be the same for all class

members that Defendants violated the TVPRA as to Plaintiff and the class members

by the fact that their CSAM has appeared on Defendants’ websites, and someone

received something of value from the CSAM.

Finally, Plaintiff must prove, at the least, that Defendants should have known

that she—and the other class members—were victims of sex trafficking.

Constructive knowledge has been defined as “that knowledge which ‘one using

reasonable care or diligence should have.’” Red Roof Inns, 21 F.4th at 725 (quoting

Black’s Law Dictionary (11th ed. 2019)). As to Plaintiff specifically, she has already

submitted evidence showing that her trafficker uploaded her CSAM onto Pornhub,

where it remained publicly available for viewing for over two years and—despite

several requests that were submitted to Defendants in February 2020 that it be taken

down—it was not removed until law enforcement contacted Defendants in July

2020. (Exs. 21 & 15 to Doc. 95.) Plaintiff has sufficiently alleged that Defendants had

constructive knowledge of her CSAM on Pornhub.

But Plaintiff must also prove that Defendants had constructive knowledge that

the absent class members were sex trafficking victims. Defendants argue that

Plaintiff will not be able to use common evidence to demonstrate this because each

class member’s circumstances are unique, and a general awareness of CSAM being

present on Defendants’ sites is not enough. However, Plaintiff has come forward

with evidence regarding Defendants’ policies and practices that could be used to

meet this element of the TVPRA claim. For instance, Defendants’ internal content

moderation policies, until recently, directed moderators to give “significant

leniency” to Content Partner and ModelHub members in terms of moderating their

content for CSAM. (Ex. 7 to Doc. 95.) Defendants’ records show that tags such as

“infant,” “kiddy,” “preteen,” and “underage” were not banned on their websites

until 2019. (Ex. 29 to Doc. 95.) Defendants’ corporate representative testified that

they still do not verify the ages of co-performers in videos. (Ex. 30 at 33 to Doc. 95.)

Email and chat feature conversations among Defendants’ employees demonstrate

instances where they knew that CSAM has appeared on their websites. (See, e.g., Ex.

31 to Doc. 95 [employees discussing a 15-year-old whose CSAM was on websites].)

Defendants’ records showed 252 legal requests, 24 of which explicitly involved

CSAM, that Defendants received between May and July 2020. (Ex. 32 to Doc. 95.)

Evidence such as this, which is common to all class members, can demonstrate that

Defendants have participated in a venture that they knew or should have known

violated the TVPRA as to the class members. This issue will obviously be vigorously

litigated, but importantly, Rule 23(b)(3) requires a showing only that “questions

common to the class predominate, not that those questions will be answered, on the

merits, in favor of the class.” Amgen, 568 U.S. at 459.

The Court is also not persuaded by Defendants’ argument that individual

issues as to how each absent class member was trafficked will bog the Court down.

Specifically, Defendants contend that the Court will have to determine whether each

class member was a minor when the content was created; the specific manner in

which they were trafficked as described in section 1591(a); whether their trafficker

had knowledge or reckless disregard that they were a minor; and whether their

trafficker intended to profit from the videos at the time they were made. Each

contention is addressed in turn.

First, Defendants say that each class member will have to establish that he or

she was a minor at the time the content was created, which is in most cases nearly

impossible to do by just inspecting a video or image. However, as already discussed,

class members may self-identify, as Plaintiff has done. Absent class members may

have to establish that they were minors at the time their CSAM was created, which

they can do as part of the claims administrative process to participate in any class

monetary relief. At that time, Defendants may challenge these claims. And contrary

to Defendants’ suggestion, Defendants’ due process right to ensure that each class

member prove his or her claim to relief is not offended by the class certification

process. See In re Takata Airbag Prod. Liability Lit., -- F. Supp. 3d --, 2023 WL

4925368, at *12 (S.D. Fla. June 20, 2023) (“[S]o long as the defendant is given a fair

opportunity to challenge the claim to class membership and to contest the amount

owed each claimant during the claims administration process, its due process rights

have been protected.”) (quoting Mullins v. Direct Digital, LLC, 795 F.3d 654, 671

(7th Cir. 2015)).

Second, Defendants argue that determining whether a class member was

recruited, enticed, harbored, transported, provided, obtained, advertised,

maintained, patronized, or solicited—taking the language from 18 U.S.C. §

1591(a)(1) that describes the different ways a victim may be sex trafficked—will differ

from class member to class member, will require investigation, and would not be

information that is even available to Defendants. But regardless of how the person

who uploaded the CSAM to Defendants’ websites or committed sexual abuse

committed the direct sex trafficking, the fact remains that the CSAM somehow made

its way onto Defendants’ websites. The very fact that Plaintiff’s CSAM and

thousands of other CSAM videos have appeared on Defendants’ websites

demonstrates that the people who uploaded the videos “obtained,” “maintained,”

or “provided” minors for “commercial sex acts” within the meaning of 18 U.S.C. §

1591(a).

Third, Defendants assert that proving whether the trafficker “knew or

recklessly disregarded” the age of a person is an individualized inquiry that is not

susceptible to a common method of proof.7 But regardless of the state of mind of the

perhaps thousands of third-party direct sex traffickers, this case is about what

Defendants knew or should have known, and as discussed, Plaintiff can show that

7 Plaintiff makes another argument for the first time in her reply brief, which is

that she need not prove the mens rea of either the uploader or of Defendants because

she can utilize section 1591(c) of the TVPRA, which removes that requirement as

long as the defendant “had a reasonable opportunity to observe the [minor].” 18

U.S.C. § 1591(c). The Court is not considering this argument because it was raised

for the first time in Plaintiff’s reply brief. See Herring, 397 F.3d at 342. In any event,

the Court is not convinced that this section of the TVPRA applies to in this case

factually or legally.

CSAM was prevalent on Defendants’ sites, Defendants allowed titles and tags

associated with CSAM on uploaded content, they knew uploaders were posting

significant amounts of CSAM to their websites and, despite that knowledge,

Defendants did not implement sufficient policies and practices to prevent that from

occurring over and over again. Defendants’ policies certainly show their

constructive knowledge.

Finally, Defendants argue that each class member would have to prove that

their uploader intended to make money from the videos at the time they were made,

and the circumstances and motives behind the creation of each video vary

considerably. However, there is no such requirement in the TVPRA. Section 1591(a)

does not require evidence of such intent but only requires that the sex trafficker have

“knowledge” or “reckless disregard of the fact” that the victim “will be caused to

engage in a commercial sex act.” 18 U.S.C. § 1591(a). “The term ‘commercial sex

act’ means any sex act, on account of which anything of value is given to or received

by any person.” Id. § 1591(e)(3). And Defendants’ own business records and entire

business model shows that they certainly monetize all of the content on their

websites through advertisements and have contractual relationships with uploaders

in which Defendants place a monetary value of the content each uploader provides.

In sum, Plaintiff is not required to establish that every single element of her

claims is susceptible to class-wide proof. Rather, “[t]he predominance inquiry asks

whether the common, aggregation-enabling, issues in the case are more prevalent or

important than the non-common, aggregation-defeating, individual issues.” Tyson

Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (internal quotation marks and

citation omitted). To “require a plaintiff to show that no individual issues exist . . .

would be an impossibly high standard.” Doe 1 v. JPMorgan Chase Bank N.A., 2023

WL 3945773, at *8 (S.D.N.Y. Jun. 12, 2023). Here, the Court will not need to

consider the individual actions and circumstances of every class member or every

underlying sex trafficker to resolve the question of Defendants’ liability on Plaintiff’s

sex trafficking claims on a class wide basis. The focus of Plaintiff’s claims is what

Defendants did with the class members’ CSAM, their failure to prevent CSAM from

appearing on their sites, and that can be proven from Defendant’s own business

records regardless of how each piece of CSAM was created and uploaded. Failure to

prevent the CSAM affects every class member the same, and it predominates over

every other issue.

Further, while the TVPRA cases against hotel franchisors may be instructive

in espousing the elements of a beneficiary liability claim, they are factually

distinguishable from this case. In Red Roof Inns, relied upon by Defendants, the

plaintiffs alleged that they were trafficked in Atlanta-area hotels and that the

defendant hotel franchisors were liable as TVPRA beneficiaries by knowingly

allowing criminals to use their hotels for prostitution and profiting from renting

rooms to them. 21 F.4th at 719–20, 726. In support, they alleged that the defendants

sent inspectors to the hotels who “would have seen signs of sex trafficking” and that

they had “received [online] reviews mentioning sex work occurring at the hotels.”

Id. at 727. The Eleventh Circuit found no liability, explaining that the TVPRA

requires proof the defendant “participated in a common undertaking . . . that

violated the TVPRA—i.e., the alleged sex trafficking ventures” and that even if the

defendants knew of and profited from the trafficking, “observing something is not

the same as participating in it.” Id. at 726-27.

However, the evidence discussed above demonstrates that Plaintiff can

attempt to show that Defendants have done much more in this case than simply

“observ[e] something.” See id. Indeed, Defendants are more like the hotel

franchisees (who owned and operated the local hotels at issue) upon which liability

was established based on the hotel franchisees’ direct “ongoing business relationship

with known pimps and prostitutes in which they rented rooms to be used for

commercial sex.” See Does 1–4 v. Red Roof Inns, Inc., 2023 WL 5444261, at *3 (N.D.

Ga. Aug. 10, 2023). In light of that direct relationship between the hotel franchisee

and the traffickers who rented its rooms, evidence that the hotel franchisee regularly

observed the traffickers and the victims (including some who appeared “young or

underage”), had received complaints about prostitution, and booked the traffickers

into remote rooms that were less visible to others, presented genuine issues of

material fact regarding whether the hotel franchisee “knowingly participated in a sex

trafficking venture.” Id. Similarly, Defendants here permitted traffickers to have

space on their platforms, were able to regularly observe both the traffickers and

victims through the upload and review process, and participated in and facilitated

the trafficking by creating thumbnails, tagging, titling, otherwise altering,

disseminating, and then monetizing the CSAM.

In sum, the Court finds that common questions predominate on Plaintiff’s

TVPRA claim.

b. Common Questions Predominate Over

Individual Ones on Plaintiff’s Receipt or

Distribution of Child Pornography Claim under

18 U.S.C. § 2252A

Plaintiff’s Amended Complaint also alleges that Defendants received and

distributed child pornography in violation of 18 U.S.C. §§ 2252 and 2252A. The

elements Plaintiff must prove under 18 U.S.C. § 2252A are that: (1) the defendant

“receive[d] or distribute[d]” child pornography”; (2) in interstate or foreign

commerce “by any means, including by computer”; and (3) the defendant did so

“knowingly.” 18 U.S.C. § 2252A(a)(2). “Any person aggrieved by reason of the

conduct prohibited under subsection [2252A(a)(2)] may commence a civil action.”

18 U.S.C. § 2252A(f)(1).

Plaintiff can use evidence common to all class members to attempt to prove all

of the elements of the child pornography claims in this case. As to the first element,

receipt or distribution of child pornography, evidence of Defendants’ own practices

and business operations demonstrates that when Defendants receive content from

third parties, that content sometimes constitutes CSAM, and Defendants have

distributed CSAM on their websites. Indeed, since 2020, Defendants have reported

to NCMEC over 20,000 instances of CSAM that had been on their websites. (Ex. 1

to Doc. 95.) As to the second element, “in interstate or foreign commerce,” 18

U.S.C. § 2252A(a)(2), Plaintiff can show that Defendants operate some of the largest

commercial pornography websites in the world, and those websites are available

throughout the United States and worldwide.

With regard to the knowledge element, a person “knowingly receives” child

pornography when he “intentionally views, acquires, or accepts child pornography

on a computer from an outside source.” United States v. Pruitt, 638 F.3d 763, 766

(11th Cir. 2011). A person “knowingly possesse[s]” child pornography when he

“knew the [videos] in question contained a visual depiction of minors engaging in

sexually explicit conduct.” United States v. Dixon, 589 F. App’x 427, 428 (11th Cir.

2014) (citing United States v. Alfaro–Moncada, 607 F.3d 720, 733 (11th Cir. 2010)).

Circumstantial evidence can be used to prove that a defendant knowingly received

or distributed CSAM. See id.; see also Alfaro-Moncada, 607 F.3d at 733 (explaining

that “the jury was free to reject [the defendant’s] testimony” that “he had bought

the DVDs without knowing that they contained child pornography” because the

“the covers of the DVD cases” showed “young girls [of unstated ages] engaging in

sex acts” and the defendant admitted that “he watched a ‘little bit’ of the DVDs

inside” those cases). Here, circumstantial evidence that would be common to all

class members from Defendants’ business records can be used to demonstrate their

knowledge that they received and possessed CSAM on their sites. Indeed,

Defendants have internal procedures for reviewing and identifying CSAM and

reporting it to NCMEC. They have documentation of all CSAM on their websites

including date of upload and documentation of when it was reported. There is also

evidence that almost half of all CSAM identified on Defendants’ sites was removed

after it had already been made publicly available. (Ex. 16 to Doc. 95.) Defendants’

own actions in reporting and removing apparent CSAM is common evidence that all

class members can use to prove that Defendants had knowledge that content on their

websites constituted CSAM.

Finally, though each class member may have to demonstrate that they qualify

to participate in any class monetary judgment at the claims administration stage by

confirming their age when their CSAM was created, this is not an individual issue

that predominates over the many issues common to the class on Plaintiff’s child

pornography claim.

c. Plaintiff’s Request for Damages Does not Defeat

Predominance

Defendants also argue that Plaintiff’s demand for actual and punitive damages

defeats predominance and make class treatment unmanageable. The Court sees no

impediment to class certification based on the issue of damages.

As an initial matter, the availability of statutory liquidated damages for sex

trafficking and child pornography victims means that damages are a common, rather

than an individualized, issue. As noted previously, 18 U.S.C. § 2255 provides

persons who were victims of violations of 18 U.S.C. §§ 1591 and 2252A while a minor

with civil causes of action for which the victims can recover their actual damages or

liquidated damages of $150,000. Accordingly, statutory damages are available in this

case as an alternative remedy on both of Plaintiff’s claims, meaning that

individualized proof of personal injury or actual damages is not necessary for Plaintiff

or the class to prevail. As the Sixth Circuit aptly explained:

The point of [18 U.S.C. § 2255’s] minimum-damages requirement is to

allow victims of child pornography to recover without having to endure

potentially damaging damages hearings. Were it otherwise, a fresh

damages hearing might inflict fresh wounds, increasing the child’s

suffering and increasing the compensatory damages to which she is

entitled. . . . Once a child has shown she was the victim of a sex crime,

there is little point in forcing her to prove an amount of damages, only

to have the court disregard that figure and award the statutory

minimum.

Doe v. Boland, 698 F.3d 877, 882–83 (6th Cir. 2012). Of course, the Court cannot

predict what any class member would do, but it is certainly possible that class

members would accept liquidated damages in lieu of enduring a damages hearing in

which they may be forced to relive past trauma and reveal sensitive personal

information.

Even if some class members choose to pursue their actual damages under the

TVPRA and the child pornography statute pursuant to 18 U.S.C. §§ 1595 and

2255(a) rather than accept liquidated damages, this does not mean that individual

issues predominate. See Brown, 817 F.3d at 1239 (the “presence of individualized

damages issues does not prevent a finding that the common issues in the case

predominate”); see also JPMorgan Chase Bank N.A., 2023 WL 3945773, at *10 (it “is

commonplace in class actions certified under Rule 23(b)(3)” that damages may

“have to be resolved on an individualized basis”). Individualized damages issues

only predominate if “computing them will be so complex, fact-specific, and difficult

that the burden on the court system would be simply intolerable” or if “significant

individualized questions go[ ] to liability.” Green-Cooper v. Brinker International, Inc.,

73 F.4th 883, 893 (11th Cir. 2023) (quoting Brown, 817 F.3d at 1240). In contrast,

“[i]ndividualized damages issues are of course least likely to defeat predominance

where damages can be computed according to some formula, statistical analysis, or

other easy or essentially mechanical methods.” Id. (quoting Sacred Heart Health

Sys., Inc. v. Humana Mil. Healthcare Servs., Inc., 601 F.3d 1159, 1179 (11th Cir. 2010)).

Given the option of liquidated damages for class members on both of Plaintiff’s

claims, the Court simply does not foresee that there will be thousands of mini-trials

on damages. In fact computing damages could be based upon a formula that

calculates the number of instances of CSAM, the length of time the CSAM was

publicly available, and the number of views, among other things.

Nor is the Court concerned by the fact that punitive damages are available for

Plaintiff’s TVPRA and child pornography claims. See Adhikari v. Kellogg Brown &

Root, Inc., 845 F.3d 184, 206 (5th Cir. 2017) (punitive damages available for TVPRA

claims); 18 U.S.C. § 2252A(f)(2)(B). The “focus [of punitive damages] is on the

character of the [defendant’s] conduct.” Hoever v. Marks, 993 F.3d 1353, 1359 (11th

Cir. 2021). Accordingly, a punitive damages award could be a common, rather than

individualized, issue.

Additionally, this Court has various tools at its disposal “to effectively and

efficiently deal with individualized damages issues that may arise in a class action.”

Herman v. Seaworld Parks & Entertainment, Inc., 320 F.R.D. 271, 299 (M.D. Fla.

2017). Such tools include: “(1) bifurcating liability and damage trials with the same

or different juries; (2) appointing a magistrate judge or special master to preside over

individual damages proceedings; (3) decertifying the class after the liability trial and

providing notice to class members concerning how they may proceed to prove

damages; (4) creating subclasses; or (5) altering or amending the class.” Brown, 817

F.3d at 1239 (quotation omitted); 2 Newberg and Rubenstein on Class Actions § 4:54

(6th ed. June 2023 Update) (“a class may also be certified solely on the basis of

common liability, with individualized damages determinations left to subsequent

proceedings”). The Court need not weed through these options at this juncture, but

their availability further persuades the Court that should any manageability issues

arise with regard to damages, the Court will be well-equipped to address them.

In sum, given that Plaintiff can attempt to prove Defendants’ liability in this

case through evidence common to all class members from Defendants’ business

practices and operations, and the fact that statutory liquidated damages are available,

the Court finds that the issue of individual damages does not predominate.

ii. The Superiority Requirement

The second requirement of a Rule 23(b)(3) common issues class is that “a

class action [be] superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Four criteria for

consideration are offered:

(A) the class members’ interests in individually controlling the

prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy

already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of

the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3). The superiority inquiry requires the Court to “consider the

relative advantages of a class action suit over whatever other forms of litigation might

be realistically available to the plaintiffs.” Klay, 382 F.3d at 1269. The outcome of

the Court’s predominance analysis “has a tremendous impact on the superiority

analysis” because “the more common issues predominate over individual issues, the

more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’

claims.” Id.

Here, the four factors weigh in favor of finding that a class action is superior

to alternative forms of litigation. As to the first factor, class members would probably

not have a great interest in individually suing Defendants for several reasons.

Discovery would be intrusive and bring to light highly sensitive material and likely

cause CSAM victims to relive past traumas. Defendants have substantial resources,

and their legal team is aggressively defending this case. Thus, CSAM victims, who

may have limited resources themselves, would have a strong interest in joining the

class, not only to avail themselves of Plaintiff’s similarly strong legal representation

and resources but also to take advantage of the fact that Plaintiff is offering to endure

the stressors of litigation on their behalf. Certifying a class also helps more vulnerable

CSAM victims come forward with their claims and potentially receive relief than

might otherwise come forward individually.

The second factor is “intended to serve the purpose of assuring judicial

economy and reducing the possibility of multiple lawsuits.” 7A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1780 at 568–70

(2d ed. 1986) (footnotes omitted). This factor appears to be concerned with the

existence of multiple individual, as opposed to class, actions. See id. (“If the court

finds that several other actions already are pending and that a clear threat of

multiplicity and a risk of inconsistent adjudications actually exist, a class action may

not be appropriate . . . Moreover, the existence of litigation indicates that some of

the interested parties have decided that individual actions are an acceptable way to

proceed, and even may consider them preferable to a class action.”). The Court is

aware of another pending class action against Defendants asserting the same claims

and two individual lawsuits.8 The existence of two individual actions certainly does

not persuade the Court that CSAM victims would prefer individual actions to class

treatment.

Turning to the third factor, this forum certainly seems desirable because

Plaintiff is an Alabama resident, the actions giving rise to the claims occurred in this

state, and at least some Plaintiff’s lawyers are local. Perhaps most importantly, this

Court has already approved of a discovery protocol whereby the Alabama Attorney

General’s office has agreed to serve as a repository for potentially illegal imagery and

videos that may be produced in discovery or may be needed to prove or administer

the class members’ claims. (Doc. 92.) The parties, as well as this Court, have

invested substantial time and resources into crafting this solution to the problem of

how CSAM may be discovered in a civil proceeding, and the Court is not aware of a

similar protocol in any of these other cases.

8 The U.S. District Court for the Central District of California recently certified

a class in Doe v. MindGeek USA Inc., et al., No. 8:21-cv-00338-CJC-ADS (C.D. Cal)),

in which a plaintiff brings identical sex trafficking and child pornography claims

against Defendants, among other state law claims. Individual plaintiffs are also

asserting similar claims only on their own behalf against Defendants in two cases,

Fleites v. MindGeek S.A.R.L., No. 21-cv-04920 (C.D. Cal.) and Mother v. Franklin et

al., No. 2:22-cv-00605-ECM-KFP (M.D. Ala.)).

Finally, the fourth manageability factor is a comparative inquiry that “focuses

on whether a class action ‘will create relatively more management problems than any

of the alternatives.’” Cherry, 986 F.3d at 1304 (quoting Klay, 382 F.3d at 1273).

Here, the difficulties in managing this class action do not outweigh the benefit of

maintaining a class instead of separate lawsuits. Indeed, if this class is not certified,

the individual lawsuits could number in the tens of thousands. See Carnegie v.

Household Intern., Inc., 376 F.3d 656, 660 (7th Cir. 2004) (explaining that class

actions with large number of class members generally satisfy superiority because the

“more claimants there are, the more likely a class action is to yield substantial

economies in litigation” regardless of any individual issues). Class manageability

issues, such as identifying class members or calculating individual damages, still

appear to be more manageable than thousands of individual lawsuits across the

country brought against the same network of companies. “[A]dministrative

difficulties—whether in class-member identification or otherwise—do not alone

doom a motion for certification. Indeed . . . manageability problems will ‘rarely, if

ever, be in [themselves] sufficient to prevent certification.’” Cherry, 986 F.3d at

1304 (quoting Klay, 382 F.3d at 1272); see also Klay, 382 F.3d at 1273 (“[Where a

court has already made a finding that common issues predominate over

individualized issues, we would be hard pressed to conclude that a class action is less

manageable than individual actions.”).

In sum, the Court finds not only that common questions predominate over

individual questions on both of Plaintiff’s claims, but also that all of the relevant

factors support the conclusion that a class action is superior to other available

methods for adjudication of the claims in dispute here. A Rule 23(b)(3) class will thus

be certified. The Court now turns to Plaintiff’s additional request for an injunctive

relief class.

2. Rule 23(b)(2) Injunctive Relief Class

Rule 23(b)(2) allows class treatment when “the party opposing the class has

acted or refused to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate respecting the

class as a whole.” Fed. R. Civ. P. 23(b)(1). “The key to the (b)(2) class is the

indivisible nature of the injunctive or declaratory remedy warranted—the notion

that the conduct is such that it can be enjoined or declared unlawful only as to all of

the class members or as to none of them.” Wal–Mart Stores, 564 U.S. at 360–61. Rule

23(b)(2) “requires common behavior by the defendant towards the class.” Casa

Orlando Apartments Ltd. v. Federal Nat. Mortg. Ass’n, 624 F.3d 185, 198 (5th Cir.

2010).

The Court has no trouble concluding that, should it award declaratory or

injunctive relief, such relief would be the same for all class members. Simply put,

Plaintiff seeks an injunction to change Defendants’ practices and policies to

effectively eliminate CSAM on their websites. This injunction would benefit the

class as a whole, in the same way.

Defendants advance three arguments against certification under Rule

23(b)(2). First, they assert that Plaintiff lacks standing because she is unable to show

a threat of “actual or imminent” future harm, see Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992), because the videos about which she is suing were removed from

Defendants’ sites in July 2020, fingerprinted, and reported to NCMEC to protect

against re-uploading. According to Defendants, any fear Plaintiff may harbor about

the videos being re-uploaded is “conjectural [and] hypothetical,” see id., or an

insufficient expression of future harm that does not confer Article III standing.

The Court could not disagree more with Defendants’ position. Plaintiff has

standing to represent the Rule 23(b)(2) class because her videos appeared on

Defendants’ websites. As a result, and like every other potential class member

would, Plaintiff has a justifiable fear that her CSAM lives forever on the Internet and

could reappear at any moment on Defendants’ websites or elsewhere. Indeed, once

content is posted to public websites like Pornhub, where it can be copied or recorded,

there is no way to ensure it will never reappear again. This is especially true

considering that the effectiveness of identifying an image by “fingerprinting” or

“hash valuing” can easily be undone by make the slightest alternation to it. (See Ex.

6 to Doc. 129 at 8-9 [transcript of this Court’s previous hearing relating to discovery

of CSAM].) Defendants cite several products liability cases where victims of past

harms did not have standing as class representatives for a Rule 23(b)(3) injunctive

relief class because they had no intention of purchasing the product in the future.

See, e.g., See Williams v. Reckitt Benckiser LLC, 65 F.4th 1243, 1255 (11th Cir. 2023).

Plaintiff is vastly different from those consumers because she has no control over

whether her CSAM will reappear on Defendants’ sites. As she testified, she lives in

fear of this happening. (Ex. 4 to Doc. 129 at 257.)

Second, Defendants argue that Plaintiff has not identified an injunction that

would provide relief to the class because Defendants have already taken steps to

address much of the challenged conduct. Inherent in this contention is Defendants’

assertion that they are currently employing the best content moderation tools in the

pornography industry and that their content moderators disable any content that

could potentially be CSAM before it is publicly available. On the other hand, Plaintiff

submitted the declaration of Timothy Weaver, a forensic examiner, in which he

suggests certain practices that Defendants could implement to more effectively

eliminate CSAM on their sites, essentially requiring the best state-of-the-art

verification for all persons in all videos or images. (Ex. 15 to Doc. 95.) Defendants

disparage Weaver’s suggestions and seek to have his declaration excluded on

grounds that he does not qualify as an expert under Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Doc. 120.)

The motion to exclude is DENIED at this stage of this proceeding. This Court did

not rely upon Weaver’s declaration in deciding Plaintiff’s motion for class

certification. Defendants’ policies and practices have obviously not been successful

in completely eradicating CSAM from their websites, as tens of thousands of items

of CSAM have been reported over the years. It does not take an expert to reach that

conclusion. The issue of which methodology and tools would be best to eliminate

CSAM on Defendants’ sites seems to be more appropriately resolved at summary

judgment or trial. Indeed, Weaver’s opinion merely offers practices that

Defendants’ could implement. At this stage, the Court is merely concerned with

whether Plaintiff has established that Defendants have policies that affect everyone

in the class in the same way, not whether Plaintiff’s specific requested form of

injunctive relief is appropriate. Thus, while the Court denies Defendants’ motion to

exclude, Defendants may re-file should Plaintiff use Weaver’s opinions at a future

stage of this proceeding.

Third, Defendants argue that Plaintiff cannot be granted certification of a Rule

23(b)(2) class because she is also seeking damages separately in a Rule 23(b)(3) class.

To the contrary, it is permissible to certify both types of classes. Wal-Mart Stores,

relied upon by Defendants, holds only that a class cannot be certified under Rule

(b)(2) alone when a plaintiff seeks damages that are more than just “incidental” to

her request for injunctive relief. 564 U.S. at 360. Wal-Mart Stores did not address

and does not bar requests, like Plaintiff’s here, for certification of both a Rule (b)(2)

injunctive relief class and a separate Rule (b)(3) damages class. See 2 Newberg and

Rubenstein on Class Actions § 4:38 (this approach “insulates the (b)(2) class piece

from the money damage portion of the case, hence complying with Wal-Mart’s

admonition against adjudicating individual damage claims in a (b)(2) class action”).

Accordingly, the requirements for class certification for injunctive relief are

satisfied, and a Rule 23(b)(2) class will be certified.

V. Class Counsel

Rule 23(g)(1) provides that “a court that certifies a class must appoint class

counsel.” Fed. R. Civ. P. 23(g)(1). “In appointing class counsel, the court: (A) must

consider: (i) the work counsel has done in identifying or investigating potential

claims in the action; (ii) counsel’s experience in handling class actions, other

complex litigation, and the types of claims asserted in the action; (iii) counsel’s

knowledge of the applicable law; and (iv) the resources that counsel will commit to

representing the class.” Fed. R. Civ. P. 23(g)(1)(a).

Since filing this case, counsel has successfully defended against a motion to

dismiss, conducted extensive discovery, mediated this dispute, and facilitated

handling of potential CSAM by the Alabama Attorney General’s Office. Further,

Plaintiff’s counsel has substantial experience handling cases involving child sexual

abuse and child sex trafficking, as well as complex litigation including class actions.

Accordingly, Plaintiff’s counsel meets Rule 23(a)(4)’s adequacy requirement and

are thus appointed class counsel.

VI. Conclusion

Given the foregoing, Plaintiff’s Motion for Class Certification (doc. 95) is

hereby GRANTED. The Court hereby CERTIFIES the following class under Rule

23(b)(2) and 23(b)(3):

All persons who were under the age of 18 when they appeared in a video

or image that has been made available for viewing on any website owned

or operated by Defendants anytime from February 12, 2011, through the

present.

Within twenty-one (21) days of this Order’s entry, the parties are

DIRECTED to meet, confer, and file a written plan for how the class-related portion

of this case will proceed.

DONE and ORDERED on December 19, 2023.

L. Scott

United States District Judge

160704

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