Dozens of potential jurors summoned last week for a landmark trial against Meta won praise from the judge overseeing the case who effusively thanked them for fulfilling their civic duty.
What U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California, didn't tell them: The jury won't actually decide Meta's fate in the case, which alleges the company engineered Facebook and Instagram to be addictive to children.
Instead, the five women and three men Rogers selected are serving on an advisory jury, a little-used procedure in which the jury's verdict is not binding on the judge.
For the next six weeks, they will show up for court, sit in the jury box, deliberate and render a verdict. But the outcome of the case will ultimately turn on Rogers’ own findings of fact and conclusions of law, which may — or may not — align with the jury's decision.
It’s not an arrangement that Meta wanted. The company in court papers urged the judge to hear the case alone, arguing that an advisory jury would make the proceedings “significantly less efficient and impose unnecessary burden” on the court, the parties and people summoned to serve.
Rogers discounted those objections in June, ruling that she had full discretion to impanel an advisory jury for the trial. Doing so, she wrote, was “prudent” because the issues at play impact the daily lives of millions of social media users and an advisory jury would help the court gauge the "standard of the community."
The Facebook and Instagram parent faces claims by 29 state attorneys general that the company illegally collected and used children's data in violation of federal law. The case also includes allegations by California, Colorado, Kentucky and New Jersey that Meta designed its platforms to keep young users hooked and misled consumers about their safety.
Meta has said potential damages could reach $1.4 trillion, according to my Reuters colleague Diana Novak Jones, approaching the company's roughly $1.5 trillion market capitalization, though the attorneys general have not publicly disclosed how much they may seek.
Opening arguments begin Tuesday in the case. A Meta spokesperson said the company stands by its “record of creating strong protections for teens.” A spokesperson from the California AG’s office said the plaintiffs are “pleased to be proceeding toward trial on our claims.”
Selecting the jury consumed more than five hours on Aug. 12 in Rogers' oil-painting-lined, fourth-floor courtroom.
The judge conducted nearly all of the questioning herself, probing prospective jurors’ views on social media and youth mental health, as well as any connections to Meta. The company is headquartered in Menlo Park, about 30 miles south of the courthouse.
The consensus among those summoned was striking. Nearly all agreed that today's teens face a mental health crisis and that social media bears at least some responsibility.
When Jason Slothouber, a senior prosecutor with the Colorado Attorney General's Office, asked prospective jurors for a show of hands if they believed parents were solely responsible for their children’s problems with social media, only two of about 50 people indicated yes. Neither was selected for the jury.
Another prospective juror likened social media's addictiveness to cocaine.
"I've seen first-hand how it can affect people," the recent college graduate said. He, too, was not chosen.
One prospective juror who did make the panel, a middle-aged man, said parents and technology companies share responsibility for how children use social media.
"But it's a challenge," he said.
Judges most often make use of advisory juries when a case “is high-profile or has garnered interest from the public – and the judge would like some cover,” said Steven Baicker-McKee, a professor of law emeritus at Duquesne University and co-author of the Federal Civil Rules Handbook.
Baicker-McKee said that in his experience, judges usually agree with advisory juries, though he is not aware of any studies examining outcomes. When the judgment of the judge and jury align, the advisory verdict can inject an element of citizen participation into the judicial process.
For lawyers on both sides, it also adds a layer of complexity. Persuading the judge is imperative, but getting the jury on board is also crucial, said Joshua Wurtzel, a Manhattan-based litigator at Schlam Stone & Dolan who is not involved in the Meta case.
“It means you have to shoot at two different targets simultaneously,” he said.
On appeal, however, the court’s findings are reviewed without regard to the advisory verdict.
Rogers used an advisory jury in May when she presided over a trial involving Elon Musk and OpenAI. In that case, she adopted the advisory jury’s unanimous verdict that Musk waited too long to bring his claim.
Meta, which is represented by Covington & Burling, Davis Polk & Wardwell and Wilkinson Stekloff, initially demanded a jury trial after the state AGs filed suit in 2023.
The company changed course in early March, requesting a "streamlined" bench trial in which Rogers alone would decide the case. The move came as juries in New Mexico and Los Angeles were hearing cases against Meta alleging similar claims of youth social media addiction were ongoing.
Juries in both cases returned verdicts against Meta in late March.
Advisory juries generally can be used only when no party is entitled to a binding jury verdict under the U.S. Constitution's Seventh Amendment or federal law. They also may be used when a party waives that right, as Meta did when it withdrew its jury demand, Rogers wrote in a pretrial order.
In Oakland, the state plaintiffs favored an advisory jury, arguing that jurors would be “particularly helpful in answering questions such as whether members of the public could have been deceived by Meta’s statements.”
Over the next six weeks, the jurors will do exactly that. Whether Rogers agrees with them remains to be seen.
