LOS ANGELES (CN) — A federal judge on Thursday tentatively dismissed claims against Visa Inc. and the former owners of Pornhub from a group of lawsuits by women who were minors when sexually explicit videos of them were posted on the website.
U.S. District Judge Wesley Hsu held a second hearing on the motions to dismiss by MindGeek, the owner of Pornhub, the site’s former owners and its financial backers. After a hearing last month, the judge had asked for additional briefing regarding his personal jurisdiction over some of the defendants and regarding a recent Ninth Circuit decision whether the 2022 Abolish Trafficking Reauthorization Act applies retroactively.
In a tentative decision, which wasn’t made publicly available, the Joe Biden appointee agreed with Visa that the company couldn’t be held liability for the child sexual abuse material posted on Pornhub in so far as it only conducted routine transactions in processing payments by the site’s users.
The judge during the hearing compared holding the payment processor liable for violations of federal sex trafficking laws to dragging an electric utility into court for providing power to run the website’s servers.
Lauren Tabaksblat, one of the attorneys representing the 15 women who filed individual lawsuits against Pornhub, argued that Visa was more complicit than that as was made clear in 2020, when a New York Times article detailed the prevalence of child pornography on Pornhub.
Following that bombshell exposé, Visa pressured Pornhub to delete as many as 10 million videos from its site, according to the attorney.
“We need the discovery as to what they knew and what they were doing,” Tabaksblat told the judge in trying to persuade him to let the claims against Visa proceed at this stage of the litigation.
The judge noted that his tentative ruling dismissing the claims against Visa was also indicative of his thinking on the claims against two hedge funds who loaned MindGeek hundreds of millions of dollars to run its business.
The plaintiffs in the individual lawsuits opted out from the class action on behalf of women who had videos of themselves when they were underage posted on Pornhub, often by former boyfriends.
One of them — the only one who didn’t sue anonymously and who was featured in the 2020 New York Times story — said in her complaint that she was just 13 when her then-boyfriend coerced her into making a sexually explicit video.
She then learned that the boyfriend had uploaded the video on Pornhub, where it immediately went viral and was viewed by students at her school and others in her community.
In a second tentative decision Thursday, which was also not made publicly available, the judge agreed with three former foreign owners and executives of MindGeek, as well as with the Luxembourg-based holding company, that he doesn’t have personal jurisdiction over them.
Michael Bowe, another lawyer representing the 15 women, argued that this was in error because the web of corporate entities that MindGeek had created was just a sham to evade taxes and runs the risk of the plaintiffs obtaining a judgment against a business that only exists on paper.
“Those three people who ran the company can’t just walk away because of a complete fiction maintained by a handful of accountants and lawyers,” Bowe said.
The women’s lawsuits pertain to MindGeek’s business practices from 2013 to 2023, when Bernd Bergmair was the majority owner of the company that is incorporated in Luxembourg and run from Canada. In 2023, MindGeek was acquired by Ethical Capital Partners, an Ottawa-based private equity firm, and rebranded as Aylo.
Whereas some of MindGeek’s corporate entities aren’t contesting the federal judge in Los Angeles has jurisdiction over the claims against them, others have been fighting it.
One of the key questions for a judge to assert jurisdiction over these foreign individuals and entities — beyond whether there’s a so-called unity of interest among them — is whether letting them get out of the case would perpetuate a fraud such that the plaintiffs would be left with nothing.
In a tentative decision last month, Hsu rejected MindGeek’s argument that it was immune from the women’s claims under Section 230 of Communication Decency Act, which shields websites from liability over the content its users post.
Although MindGeek’s attorney Arameh Zargham O’Boyle renewed her argument that Pornhub is no different than other porn sites that have had similar claims dismissed, the judge observed that the women in the lawsuits before him specifically accuse the site’s moderators of helping users to post child pornography and to make it easy for other users to find.
Section 230, the judge observed, is a robust protection for online platforms against third-party malfeasance.
“It is not intended to protect MindGeek from its own malfeasance,” Hsu said. “That is what is alleged here.”