SANTA ANA, Calif. — A federal judge presiding over a civil lawsuit against Pornhub's parent company has granted class certification in the case to all persons who were minors when they appeared in content posted on that site since February 2011.
Judge Cormac J. Carney of the U.S. District Court for the Central District of California made the ruling on Friday, in a lawsuit filed on behalf of an anonymous Jane Doe who claims that Pornhub monetized underage images uploaded by third parties.
Carney, a George W. Bush appointee who stepped down from his previous post as chief judge of the court after making a racially insensitive comment about a court official, “wrote that the evidence submitted shows that the class is sufficiently numerous, and the claims involve common questions, including whether Mindgeek received or distributed the material, whether they deliberately avoided learning it was on their sites and whether they benefited from the material,” Law360 reported.
Carney also certified “a California subclass, with Doe as class representative and her attorneys at Susman Godfrey LLP as class counsel.”
As XBIZ reported, the lawsuit was originally filed during an ongoing campaign of legal actions by religiously motivated groups like NCOSE (formerly Morality in Media) and activists like Leila Mickelwait, who seek to shut down Pornhub owner Aylo — then MindGeek — and all online pornography.
The anonymous plaintiff was initially represented by Michael Bowe, a former lawyer for Donald Trump and disgraced evangelist Jerry Falwell Jr., who has appeared alongside Mickelwait before Canada’s parliament to demand the shuttering and prosecution of all MindGeek sites. Bowe was also prominently featured in the 2023 Netflix documentary “Money Shot: the Pornhub Story,” criticizing the tube site.
Aylo, which owns Pornhub, is still referred to as MindGeek in this action and in some reporting because the case caption has not been updated.
An Aylo representative told XBIZ, "Out of respect for the integrity of court proceedings, our policy is not to comment on ongoing litigation. We look forward to the facts being fully and fairly aired in that forum."
Judge Repeatedly Slams Defendants in Decision
In his ruling certifying the class, Carney wrote, “It is terrifying to face a person or entity who participated in a venture that caused trauma. Here, individual survivors face one of the world’s largest pornography companies, in an aggressive litigation posture, who have retained law firms with considerable reputations.”
Carney further opined that “few, if any, individual survivors could muster comparable resources, nor is there any guarantee they could find counsel willing to work pro bono or on a contingency basis. Pooling these burdens among a group of survivors helps more survivors bring claims.”
In fact, powerful religious conservative lobbies and activists have invested considerable funds and energy in calling for, pursuing and supporting lawfare to shut down Aylo and other adult companies.
Some of Carney’s other statements about the merits of the case were characterized by loaded language seemingly condemning Pornhub and MindGeek/Aylo.
Carney contended that the case is not about money — as the defendant’s attorneys have argued — but about “compensating class members, protecting them from future harm and changing MindGeek’s alleged behavior, which is served by both damages and an injunction,” Law360 reported.
Industry Attorney Warns Caution
Industry attorney Corey Silverstein, of Silverstein Legal, emphasized that the certification decision is not a finding of liability against any of the defendants at this point in the case.
“Now that the court has granted class certification, the case proceeds as a class action and the decisions made in the case will generally bind all members of the certified class unless they opt out,” he noted.
Silverstein explained that to be certified as a class action, a lawsuit must meet specific criteria, including numerosity (the class must be so numerous that joinder of all members is impractical), commonality (there must be questions of law or fact common to the class), typicality (the claims or defenses of the representative parties must be typical of the claims or defenses of the class) and adequacy of representation (the representatives must fairly and adequately protect the interests of the class).
Judge Carney, the attorney continued, “was quite detailed in the order certifying the class, and while the defendants are presumably disappointed by the judge’s decision, this order doesn’t preclude the defendants from asserting any of their defenses that they have raised or intend on raising. The plaintiffs surely view this as a victory but should recognize that they still bear the burden of proving their claims.”
Silverstein also pointed out that defendants can immediately appeal orders granting or denying class certification.
“It wouldn’t surprise me in the slightest to see an appeal forthcoming,” he added.
Industry members, Silverstein concluded, should continue to closely follow the progress of this case.
The case is Jane Doe v. MindGeek USA Inc. et al., case number 8:21-cv-00338, in the U.S. District Court for the Central District of California.