Facebook “Filching” Flap — The [Partial] Denouement

The final order and memorandum opinion in the [Merck v. Merck] New York “Facebook Filching Flap” is online, as of last night. But that is apparently not the end of the story — only a curtain, on Act I — of a three act play.

As the below indicates, Facebook admits that the error in granting agents of US Merck access to the German company’s vanity page was entirely Facebook’s own:

But then we learn something surpisingly new — that the two pharmaceutical parties are still duking it out over who will get the final rights to the vanity page address on Facebook. That is — as I say — surprising.

Yep — this multinational dispute could linger-on for years, now. However, it is clear that the New York case is dismissed, as German Merck is subject to a German “choice of law” terms of service provision that applies to its German Facebook account, and thus, this matter (the alleged filching) must be decided under German — not New York — law. And so, Judge Huff properly has dismissed the New York action for pre-suit discovery (full PDF of opinion):

. . . .A choice of law provision in Facebook’s Statement of Rights and responsibilities (“Statement”) provides that disputes will be resolved in Santa Clara, California. German Merck states that it seeks pre-action disclosure in New York because California law does not provide for it.

. . .[German Merck] asserts that the choice of law provision (Statement Section 15.1) does not apply to German Merck. An addendum to Section 15.1 provides, in petitioner’s translation from the German: “For users residing in Germany: . . . Item 15.1 is replaced by the following: This statement is subject to German Law.”

German Merck conclusorily states that this means thc choice-of-law provision is void as to it. It does not explain how it means that New York is the proper forum. . . .

So this one may drag on in differing international fora, or private negotiations, for quite some time. As of this moment, however no one “owns” the keys to the Facebook vanity page “/Merck”.

[I do think German Merck has a larger point, here -- that it ought to be able to discover (from either US Merck, or Facebook) who, precisely, were the agents of US Merck that were granted access to a vanity address they (allegedly) clearly knew they had not created or maintained.]

We will keep you posted.

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