U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−02689−JGK

CLOSED,ECF

National Fair Housing Alliance et al v. Facebook, Inc. Assigned to: Judge John G. Koeltl Cause: 42:3601 Fair Housing Act
Plaintiff

Date Filed: 03/27/2018 Date Terminated: 02/06/2019 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

National Fair Housing Alliance

represented by David Benjamin Berman Emery Celli Brinckerhoff & Abady LLP 600 5th Avenue, 10th Floor New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: dberman@ecbalaw.com ATTORNEY TO BE NOTICED

Katherine R. Rosenfeld Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: krosenfeld@ecbalaw.com ATTORNEY TO BE NOTICED

Morgan Whitney Williams National Fair Housing Alliance 1101 Vermont Ave. Nw #710 Washington, DC 20005 (202)−486−2776 Fax: (202)−371−9744 Email: mwilliams@nationalfairhousing.org ATTORNEY TO BE NOTICED

Diane Lee Houk Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: dhouk@ecbalaw.com ATTORNEY TO BE NOTICED

Plaintiff Fair Housing Justice Center, Inc.

represented by David Benjamin Berman (See above for address) ATTORNEY TO BE NOTICED

Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED

Diane Lee Houk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Housing Opportunities Project For Excellence, Inc.
Plaintiff Fair Housing Council of Greater San Antonio
V. Defendant Facebook, Inc.

represented by David Benjamin Berman (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
Diane Lee Houk (See above for address) ATTORNEY TO BE NOTICED
represented by David Benjamin Berman (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
Diane Lee Houk (See above for address) ATTORNEY TO BE NOTICED
represented by Rose Ring Munger, Tolles & Olson, LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 (415)−512−4008 Fax: (415)−644−6908 Email: rose.ring@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth A. Kim Munger, Tolles & Olson LLP (SF) 560 Mission St 27th Floor San Francisco, CA 94105 (415)−512−4089 Fax: (415)−512−4077 Email: elizabeth.kim@mto.com ATTORNEY TO BE NOTICED
Jonathan H. Blavin Munger, Tolles & Olson LLP (SF) 560 Mission Street, 27th Floor San Francisco, CA 94105 415−512−4000 Fax: 415−512−4077 Email: jonathan.blavin@mto.com ATTORNEY TO BE NOTICED
Joshua Patashnik Munger, Tolles & Olson LLP (SF) 560 Mission St 27th Floor

ADR Provider United States

San Francisco, CA 94105 (415)−512−4072 Email: josh.patashnik@mto.com TERMINATED: 09/06/2018
represented by David J Kennedy U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2200 Fax: (212) 637−2730 Email: david.kennedy2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/27/2018
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# Docket Text
1 COMPLAINT against Facebook, Inc.. (Filing Fee $ 400.00, Receipt Number 0208−14859428)Document filed by National Fair Housing Alliance, Fair Housing Council of Greater San Antonio, Housing Opportunities Project For Excellence, Inc., Fair Housing Justice Center, Inc..(Houk, Diane) (Entered: 03/27/2018)
2 CIVIL COVER SHEET filed. (Houk, Diane) (Entered: 03/27/2018)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by National Fair Housing Alliance.(Houk, Diane) (Entered: 03/27/2018)
4 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Fair Housing Justice Center, Inc..(Houk, Diane) (Entered: 03/27/2018)
5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Housing Opportunities Project For Excellence, Inc..(Houk, Diane) (Entered: 03/27/2018)
6 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Fair Housing Council of Greater San Antonio.(Houk, Diane) (Entered: 03/27/2018)
7 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Facebook, Inc., re: 1 Complaint,. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Houk, Diane) Modified on 3/28/2018 (pne). (Entered: 03/27/2018)
8 NOTICE OF APPEARANCE by Katherine R. Rosenfeld on behalf of Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Rosenfeld, Katherine) (Entered: 03/27/2018)
9 NOTICE OF APPEARANCE by David Benjamin Berman on behalf of Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 03/27/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Diane Lee Houk. The following case opening statistical information was erroneously selected/entered: County code New York. The following correction has been made to your case entry: the County code has been modified to XX Out of State. (pne) (Entered: 03/28/2018)

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CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge John G. Koeltl. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pne) (Entered: 03/28/2018)
Magistrate Judge Gabriel W. Gorenstein is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pne) (Entered: 03/28/2018)
Case Designated ECF. (pne) (Entered: 03/28/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Diane Lee Houk to RE−FILE Document No. 7 Request for Issuance of Summons. The filing is deficient for the following reason: the second party name in the 'To' field must include care of (C/O). Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (pne) (Entered: 03/28/2018)
10 REQUEST FOR ISSUANCE OF SUMMONS as to Facebook, Inc., re: 1 Complaint,. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Houk, Diane) (Entered: 03/28/2018)
11 ELECTRONIC SUMMONS ISSUED as to Facebook, Inc.. (jgo) (Entered: 03/29/2018)
12 NOTICE OF COURT CONFERENCE: Initial Conference set for 5/7/2018 at 4:30 PM in Courtroom 14A, 500 Pearl Street, New York, NY 10007 before Judge John G. Koeltl, and as further set forth in this order. (ap) (Entered: 04/03/2018)
13 MOTION for Elizabeth A. Kim to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14923949. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Facebook, Inc.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Kim, Elizabeth) (Entered: 04/10/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 13 MOTION for Elizabeth A. Kim to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14923949. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 04/10/2018)
14 MOTION for Joshua Patashnik to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14930584. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Facebook, Inc.. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Affidavit of Joshua Patashnik, # 3 Text of Proposed Order)(Patashnik, Joshua) (Entered: 04/11/2018)
15 MOTION for Jonathan H. Blavin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14930693. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Facebook, Inc.. (Attachments: # 1 Affidavit in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit (Certificate of Good Standing), # 3 Text of Proposed Order)(Blavin, Jonathan) (Entered: 04/11/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 15 MOTION for Jonathan H. Blavin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14930693. Motion and supporting papers to be reviewed by Clerk's Office staff., 14 MOTION for Joshua Patashnik to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14930584. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 04/12/2018)

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16 ORDER FOR ADMISSION PRO HAC VICE granting 13 Motion for ELIZABETH A. KIM to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge John G. Koeltl on 4/11/2018) (mml) (Entered: 04/12/2018)
17 ORDER FOR ADMISSION PRO HAC VICE granting 15 Motion for JONATHAN H. BLAVIN to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hae Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge John G. Koeltl on 4/12/2018) (mml) (Entered: 04/12/2018)
18 ORDER FOR ADMISSION PRO HAC VICE granting 14 Motion for JOSHUA PATASHNIK to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hae Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge John G. Koeltl on 4/12/2018) (mml) (Entered: 04/12/2018)
19 MOTION for Rosemarie T. Ring to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14933432. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Facebook, Inc.. (Attachments: # 1 Affidavit of Rose Ring ISO, # 2 Text of Proposed Order)(Ring, Rose) (Entered: 04/12/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 19 MOTION for Rosemarie T. Ring to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14933432. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 04/12/2018)
20 ORDER FOR ADMISSION PRO HAC VICE granting 19 Motion for ROSEMARIE T. RING to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge John G. Koeltl on 4/17/2018) (mml) (Entered: 04/17/2018)
21 WAIVER OF SERVICE RETURNED EXECUTED. Facebook, Inc. waiver sent on 4/3/2018, answer due 6/4/2018. Document filed by National Fair Housing Alliance; Fair Housing Council of Greater San Antonio; Housing Opportunities Project For Excellence, Inc.; Fair Housing Justice Center, Inc.. (Berman, David) (Entered: 05/01/2018)
22 RULE 26(f) DISCOVERY PLAN REPORT.Document filed by Facebook, Inc..(Ring, Rose) (Entered: 05/04/2018)
23 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 05/07/2018)
Minute Entry for proceedings held before Judge John G. Koeltl: Initial Pretrial Conference held on 5/7/2018. (Fletcher, Donnie) (Entered: 05/14/2018)
24 ORDER: As stated at the conference held today, the defendant shall file any motion to transfer and/or any motion to dismiss by June 4, 2018. No pre−motion conference is necessary. The plaintiffs shall respond by July 11, 2018. The defendant shall reply by August 3, 2018. Discovery is stayed until such motions are resolved because the defendant has made a sufficient showing that the proposed motions may be dispositive of the case proceeding in this Court. SO ORDERED. (Motions due by 6/4/2018. Responses due by 7/11/2018. Replies due by 8/3/2018.) (Signed by Judge John G. Koeltl on 5/7/2018) (mml) (Entered: 05/08/2018)

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25 LETTER MOTION for Leave to File Excess Pages addressed to Judge John G. Koeltl from Rosemarie Ring dated 05−25−2018. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 05/25/2018)
26 ORDER granting 25 LETTER MOTION for Leave to File Excess Pages addressed to Judge John G. Koeltl from Rosemarie Ring dated 05−25−2018. Document filed by Facebook, Inc. The Court reluctantly grants the application even though it is difficult to understand why the stated arguments could not be made within the original limits. Length detracts from persuasiveness. So ordered. (Signed by Judge John G. Koeltl on 5/29/2018) (rjm) (Entered: 05/29/2018)
27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 06/04/2018)
28 MEMORANDUM OF LAW in Support re: 27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint. . Document filed by Facebook, Inc.. (Ring, Rose) (Entered: 06/04/2018)
29 BRIEF re: 27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint. Request for Judicial Notice. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 06/04/2018)
30 DECLARATION of Rosemarie T. Ring in Support re: 27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint.. Document filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ring, Rose) (Entered: 06/04/2018)
31 DECLARATION of Michael Duffey in Support re: 27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint.. Document filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Ring, Rose) (Entered: 06/04/2018)
32 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Morgan Williams to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15225362. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by National Fair Housing Alliance. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Affidavit of Morgan Williams in Support of Motion for Admission Pro Hac Vice, # 3 Text of Proposed Order Proposed Order for Admission Pro Hac Vice)(Williams, Morgan) Modified on 6/20/2018 (wb). (Entered: 06/20/2018)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 32 MOTION for Morgan Williams to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15225362. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): expired Certificate of Good Standing from Supreme Court of Louisiana;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (wb) (Entered: 06/20/2018)
33 FIRST AMENDED COMPLAINT amending 1 Complaint, against Facebook, Inc..Document filed by National Fair Housing Alliance, Fair Housing Council of Greater San Antonio, Housing Opportunities Project For Excellence, Inc., Fair Housing Justice Center, Inc.. Related document: 1 Complaint,.(Berman, David) (Entered: 06/25/2018)
34 ORDER: The parties are directed to appear for a conference in this matter on June 29, 2018, at 11:00 a.m. SO ORDERED. (Status Conference set for 6/29/2018 at 11:00 AM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 6/26/2018) (rro) (Entered: 06/27/2018)
35 SEALED DOCUMENT placed in vault.(rz) (Entered: 06/28/2018)
36 LETTER addressed to Judge John G. Koeltl from David B. Berman dated June 29, 2018 re: Proposed Briefing Schedule for Motion to Dismiss Amended Complaint. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair

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Housing Alliance.(Berman, David) (Entered: 06/29/2018)
Minute Entry for proceedings held before Judge John G. Koeltl: Oral Argument held on 6/29/2018 re: 27 MOTION to Transfer Case , or Alternatively to Dismiss Plaintiffs' Complaint. Filed by Facebook, Inc. Status Conference held. (Fletcher, Donnie) (Entered: 07/10/2018)
37 ORDER denying without prejudice 27 Motion to Transfer Case. As stated at the conference held today, the defendant's motion to dismiss and/or transfer is denied without prejudice because it is moot. The Clerk is directed to close the motion at docket number 27. The parties should provide a new briefing schedule for any new motion against the plaintiffs' amended complaint by July 2, 2018. SO ORDERED. (Signed by Judge John G. Koeltl on 6/29/18) (yv) (Entered: 07/02/2018)
38 MEMO ENDORSEMENT on re: 36 Letter Proposing Briefing Schedule for Motion to Dismiss, filed by National Fair Housing Alliance, Fair Housing Council of Greater San Antonio, Housing Opportunities Project For Excellence, Inc., Fair Housing Justice Center, Inc. ENDORSEMENT: Application Granted. So Ordered., (Motions due by 7/30/2018., Responses due by 8/24/2018, Replies due by 9/14/2018.) (Signed by Judge John G. Koeltl on 7/2/18) (yv) (Entered: 07/02/2018)
39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 07/30/2018)
40 MEMORANDUM OF LAW in Support re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. . Document filed by Facebook, Inc.. (Ring, Rose) (Entered: 07/30/2018)
41 BRIEF re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. Request for Judicial Notice. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 07/30/2018)
42 DECLARATION of Rosemarie T. Ring in Support re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Ring, Rose) (Entered: 07/30/2018)
43 DECLARATION of Michael Duffey in Support re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Ring, Rose) (Entered: 07/30/2018)
44 SECOND MOTION for Morgan Williams to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by National Fair Housing Alliance. (Attachments: # 1 Exhibit LA Supreme Court Certificate of Good Standing, # 2 Exhibit Affidavit of Morgan Williams in Support of Motion for Admission Pro Hac Vice, # 3 Text of Proposed Order Proposed Order for Admission Pro Hac Vice)(Williams, Morgan) (Entered: 08/07/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 44 SECOND MOTION for Morgan Williams to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/07/2018)
45 ORDER FOR ADMISSION PRO HAC VICE granting 44 Motion for Morgan Williams to Appear Pro Hac Vice. (Signed by Judge John G. Koeltl on 8/8/2018) (jwh) (Entered: 08/09/2018)
46 NOTICE OF APPEARANCE by David J Kennedy on behalf of United States. (Kennedy, David) (Entered: 08/17/2018)
47 LETTER addressed to Judge John G. Koeltl from David J. Kennedy dated August 17, 2018 re: Filing of Statement of Interest. Document filed by United States.(Kennedy, David) (Entered: 08/17/2018)
48 MEMORANDUM OF LAW in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. Statement of Interest of

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the United States. Document filed by United States. (Kennedy, David) (Entered: 08/17/2018)
49 MEMORANDUM OF LAW in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. . Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 08/24/2018)
50 DECLARATION of Diane L. Houk in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Berman, David) (Entered: 08/24/2018)
51 DECLARATION of Fred Freiberg in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 08/24/2018)
52 DECLARATION of Lisa Rice in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 08/24/2018)
53 DECLARATION of Keenya Robertson in Opposition re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint.. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 08/24/2018)
54 LETTER MOTION for Extension of Time to File Response/Reply and for Additional Words addressed to Judge John G. Koeltl from Rosemarie T. Ring, Counsel for Facebook, Inc. dated August 30, 2018. Document filed by Facebook, Inc..(Ring, Rose) (Entered: 08/30/2018)
55 ORDER granting 54 Letter Motion for Extension of Time to File Response/Reply re 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. So Ordered. (Replies due by 9/24/2018.) (Signed by Judge Vernon S. Broderick, Part I on 8/31/18) (yv) (Entered: 08/31/2018)
56 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by Facebook, Inc.. (Ring, Rose) (Entered: 09/05/2018)
57 MEMO ENDORSEMENT on MOTION TO WITHDRAW AS COUNSEL. ENDORSEMENT: Upon consideration, and good cause appearing, it is hereby ORDERED that Defendant's motion to withdraw Joshua Patashnik as counsel in this matter is GRANTED., (Attorney Joshua Patashnik terminated.) (Signed by Judge John G. Koeltl on 9/6/18) (yv) (Entered: 09/06/2018)
58 REPLY MEMORANDUM OF LAW in Support re: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. . Document filed by Facebook, Inc.. (Ring, Rose) (Entered: 09/24/2018)
59 NOTICE OF ORAL ARGUMENT: You are directed to appear for oral argument on the pending motion(s), to be held on Thursday, December 13, 2018, at 10:30am, in Courtroom 14A, before the Honorable John G. Koeltl. All requests for adjournments must hf made in writing to the Court. For any further information, please contact the Court at (212) 805−0107. (Oral Argument set for 12/13/2018 at 10:30 AM in Courtroom 14A, 500 Pearl Street, New York, NY 10007 before Judge John G. Koeltl.) (yv) (Entered: 11/27/2018)
60 LETTER addressed to Judge John G. Koeltl from Elizabeth A. Kim dated November 28, 2018 re: Short Continuance of the Oral Argument due to Attorney Unavailability. Document filed by Facebook, Inc..(Kim, Elizabeth) (Entered: 11/29/2018)

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61 MEMO ENDORSEMENT on re: 60 Letter filed by Facebook, Inc. ENDORSEMENT: Argument adjourned to 1/10/19 at 4:30 p.m. ( Oral Argument set for 1/10/2019 at 04:30 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 11/29/2018) (mro) (Entered: 11/30/2018)
62 JOINT LETTER MOTION to Continue to 2−11−2019 the Hearing on Facebook's Motion to Transfer Venue, Or Alternatively to Dismiss Plaintiffs' Complaint [Docket # 35] addressed to Judge John G. Koeltl from Elizabeth A. Kim dated 12−27−2018. Document filed by Facebook, Inc..(Kim, Elizabeth) (Entered: 12/27/2018)
63 ORDER granting 62 Letter Motion to Continue. APPLICATION GRANTED. The hearing is adjourned to February 11, 2019, at 4:30 p.m. No further adjournments will be granted. (Oral Argument set for 2/11/2019 at 04:30 PM before Judge John G. Koeltl.) (Signed by Judge Vernon S. Broderick, Part 1 on 12/28/2018) (rro) (Entered: 12/28/2018)
Minute Entry for proceedings held before Judge John G. Koeltl: Telephone Conference held on 2/5/2019. (Court Reporter Rose Prater)(Fletcher, Donnie) (Entered: 02/05/2019)
64 PROPOSED STIPULATION AND ORDER. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Berman, David) (Entered: 02/06/2019)
65 STIPULATION AND ORDER FOR DISMISSAL: follows: 1. This action is dismissed without costs and without prejudice to restoring the action to the Court's calendar, provided the motion to restore the action is made within forty−five (45) days of the date of this Order. 2. If the parties do not move to reopen the action within forty−five (45) days of the date of this Order, the action will be dismissed with prejudice. 3. Any application by Plaintiffs to restore the case to the Court's calendar is limited to the following purposes to: a) Transfer the case to the Northern District of California; or b) Restore the case to the Southern District of New York calendar for further proceedings because the parties have not resolved the underlying claims. 4. All pending motions are closed and all court dates are cancelled. SO ORDERED. Motions terminated: 39 MOTION to Transfer Case , or, Alternatively, to Dismiss Plaintiffs' First Amended Complaint. filed by Facebook, Inc.. (Signed by Judge John G. Koeltl on 2/6/2019) (ks) (Entered: 02/06/2019)
66 LETTER MOTION to Reopen Case addressed to Judge John G. Koeltl from Diane L. Houk dated March 19, 2019. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Attachments: # 1 Text of Proposed Order − Stipulation and Order, # 2 Exhibit 1 − Settlement Agreement)(Houk, Diane) (Entered: 03/19/2019)
67 LETTER MOTION to Reopen Case addressed to Judge John G. Koeltl from Diane L. Houk dated March 28, 2019. Document filed by Fair Housing Council of Greater San Antonio, Fair Housing Justice Center, Inc., Housing Opportunities Project For Excellence, Inc., National Fair Housing Alliance. (Attachments: # 1 Text of Proposed Order Stipulation and Order, # 2 Exhibit 1 − Settlement)(Houk, Diane) (Entered: 03/28/2019)
68 STIPULATION AND ORDER... WHEREAS, Plaintiffs and Defendant, through their undersigned counsel, stipulate and agree as follows: This action is reopened and restored to the Court's calendar; This action is hereby dismissed with prejudice, pursuant to the terms of the Settlement Agreement attached hereto as Exhibit 1. The Court shall retain jurisdiction over this action for the sole purpose of enforcing compliance with the terms of the Settlement Agreement and Order. So Ordered., Motions terminated: 67 LETTER MOTION to Reopen Case addressed to Judge John G. Koeltl from Diane L. Houk dated March 28, 2019. filed by National Fair Housing Alliance, Fair Housing Council of Greater San Antonio, Housing Opportunities Project For Excellence, Inc., Fair Housing Justice Center, Inc., 66 LETTER MOTION to Reopen Case addressed to Judge John G. Koeltl from Diane L. Houk dated March 19, 2019. filed by National Fair Housing Alliance, Fair Housing Council of Greater San Antonio, Housing Opportunities Project For Excellence, Inc., Fair Housing Justice Center, Inc. (Signed by Judge John G. Koeltl on 3/28/19) (yv) (Entered: 03/29/2019)

 
 Case 1:18-cv-02689 Document 1 Filed 03/27/18 Page 1 of 52

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
NATIONAL FAIR HOUSING ALLIANCE; FAIR HOUSING JUSTICE CENTER, INC.; HOUSING OPPORTUNITIES PROJECT FOR EXCELLENCE, INC.; FAIR HOUSING COUNCIL OF GREATER SAN ANTONIO,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

Index No: 18 Civ. 2689 COMPLAINT

I. PRELIMINARY STATEMENT 1. This year marks the 50th anniversary of the Fair Housing Act (“FHA”), a statute
intended to end discrimination in housing markets throughout the United States. For decades, the FHA has prohibited both publishers and advertisers from “targeting” ads based on sex, family status, disability, national origin, and other protected characteristics.
2. Given this milestone, it is all the more egregious and shocking that Defendant Facebook continues to enable landlords and real estate brokers to bar families with children, women, and others from receiving rental and sales ads for housing. Facebook has created a prepopulated list of demographics, behaviors, and interests that makes it possible for housing advertisers to exclude certain home seekers from ever seeing their ads. Facebook’s conduct is illegal under the FHA.
3. Housing advertising has of course changed in the last fifty years, moving beyond billboards, “for rent” signs, and classifieds in the newspaper, to online advertising. Facebook’s ability to customize an online audience for advertisements based on its vast trove of user data has

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made it the biggest advertising agency in the world—the advertising platform of choice for millions of businesses. But Facebook has abused its enormous power.
4. Over the past months, Plaintiffs, four nonprofit organizations with the common mission of eliminating housing discrimination and promoting residential integration, investigated Facebook’s conduct. Plaintiffs created dozens of housing advertisements and completed Facebook’s full ad submission and review process. Plaintiffs’ investigations in New York, Washington D.C., Miami, and San Antonio confirm that Facebook first provides the option for advertisers to exclude families with children and women from receiving advertisements, as well as users with interests based on disability and national origin. Then Facebook approves and permits advertisers to publish these ads in a discriminatory manner without consumers ever knowing they have been excluded.
5. Discriminatory advertising is just as damaging as discrimination at the point of rental or sale. If women with school-age children are categorically excluded from the Facebook advertising audience for a rental apartment in a community with high-performing schools and other amenities, they are effectively denied access to that housing opportunity. Facebook and its advertisers have made the ad invisible to them. At the same time, Facebook’s ad platform can further that same landlord’s illegal efforts to maintain a segregated, adults-only rental complex. Whereas in the past, the excluded group might see the “for rent” sign or newspaper classified ad because the ads were located in a public forum, the stealth nature of Facebook’s technology hides housing ads from entire groups of people. Facebook’s algorithms can ensure exclusion and deny access to housing. As technology develops, Facebook’s precise ability to target groups and promote discrimination will surely only grow.
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6. Even before Plaintiffs conducted their most recent investigations, Facebook was on notice for more than a year—from Plaintiffs and media reports (including by ProPublica)— that its advertising platform violated fair housing laws.
7. As Facebook significantly increases its presence in housing advertising and the housing marketplace,1 it must first end its discriminatory advertising practices. II. JURISDICTION AND VENUE
8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiffs assert federal claims under the FHA; under 28 U.S.C. § 1343(a)(4) as Plaintiffs seek to secure equitable and other relief under federal civil rights laws; and under 42 U.S.C. § 3613(a)(1)(A) as Plaintiffs seek appropriate relief regarding a discriminatory housing practice under the Fair Housing Act.
9. The Court has supplemental jurisdiction over Plaintiffs’ local law claims under the New York City Human Rights Law pursuant to 28 U.S.C. § 1367(a), as these claims are so related to their federal claims in this action that they form part of the same case or controversy.
10. This Court has personal jurisdiction over Facebook pursuant to Fed. R. Civ. P. 4(k)(1) and New York Civil Practice Law and Rules § 302(a)(1) because Facebook transacts business within the state, § 302(a)(2) because Facebook has committed tortious and discriminatory acts within the state, § 302(a)(3)(i) because Facebook has committed a tortious and discriminatory act without the state causing injury to persons within the state, and regularly does business in the state, § 302(a)(3)(ii) because Facebook has committed a tortious and discriminatory act without the state causing injury to persons within the state, and derives substantial revenue from interstate commerce, and § 302(a)(4).
1 Ben Lane, Facebook Launches Massive Push Into Real Estate Listings, Housingwire.com (Nov. 13, 2017), https://www.housingwire.com/articles/41797-facebook-launches-massive-push-into-real-estate-listings.
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11. Declaratory and injunctive relief is sought and authorized by 28 U.S.C. §§ 2201 and 2202.
12. Venue is proper in this District under 28 U.S.C. § 1391(b)(1), as Defendant Facebook resides in this District in which it is subject to the Court’s personal jurisdiction, and pursuant to 28 U.S.C. § 1391(b)(2) in that a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District.
A. Facebook’s Contacts with New York 13. Facebook maintains a corporate office in this District located at 335 Madison Avenue, New York, New York, 10017. 14. Facebook is registered with the New York State Division of Corporations and assigned DOS ID #3842367l, with an appointed agent for service located at 80 State Street, Albany, New York, 12207. 15. Upon information and belief, Facebook employs approximately 1,000 people. 16. Facebook opened its New York office in 2012, stating that the New York office “won’t just be a satellite office, it will be a core part of our engineering staff.”2 17. Facebook conducts advertising, engineering, and other activities in this District. 18. According to Facebook, “Almost all of our big teams are centered around products that specifically benefit from being in New York . . . either teams working closely with local industries, products that address the experience of an urban environment, or center around talent that is abundant on the east coast (like AI Research or Mobile Engineering).”3
2 Jason Kincaid, Facebook To Open Engineering Office in NYC, techcrunch.com (Dec. 2, 2011), https://techcrunch.com/2011/12/02/facebook-to-open-engineering-office-in-nyc. 3 Director of Engineering at Facebook AI Explains the Advantages of New York Tech, Huffington Post.com (Jan. 22, 2016), https://www.huffingtonpost.com/quora/director-of-engineering-a_b_9052764.html (emphasis supplied).
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19. As the largest city in the United States, New York City—with a total of more than 3 million households according to the 2010 United States Census—is also the largest housing market in the country.4 As of 2011, New York City had a total of 3.35 million housing units, of which 65% were rental units, 30% were owner units, and 5% were vacant but not available for sale or rent. The vacancy rate in 2011 for rental units in New York City was only 3.12%. Half of the City’s housing units were in buildings of 20 or more units as of 2011.
20. The New York City housing market is unique in that, unlike other cities in the United States where landlords handle advertising and renting apartments directly, many landlords use real estate agents to advertise apartments for rent and locate prospective renters. As of 2013, Manhattan alone had 27,000 licensed real estate brokers and sales persons working in both the sales and rental markets.5 These real estate brokers and agents use online real estate advertising, including on Facebook.
21. For the New York City housing consumer, access to Facebook’s online real estate advertising is crucial given the City’s low vacancy rate, high competition for dwelling units, and heavy reliance on real estate brokers and agents.
22. Upon information and belief, Facebook receives a substantial amount of revenue from advertisements that are sold to New York area companies or target New York residents, including an estimated reach of millions of people within the District.
23. Upon information and belief, a portion of this substantial revenue comes from housing advertisements that are sold to landlords and real estate brokers in the New York area and target New York residents.
4 New York City Consolidated Plan, 2015-2-19 Needs Assessment & Market Analysis, December 16, 2016, NA-1. 5 Leigh Kamping-Carder, Ranks of Manhattan brokers swell, as market strengthens, The Real Deal (Dec. 10, 2012), available at https://therealdeal.com/2012/12/10/ranks-of-new-york-city-brokers-swell-as-market-strengthens/.
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III. THE PARTIES 24. Plaintiff National Fair Housing Alliance (“NFHA”) is a national, nonprofit,
public service organization incorporated under the laws of the Commonwealth of Virginia with its principal place of business in Washington, DC. NFHA is a nationwide alliance of private, nonprofit, fair housing organizations, including organizations in 28 states. NFHA’s sole mission is to end discrimination in housing and to promote residential integration. NFHA works to eliminate housing discrimination and to ensure equal opportunity for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy, community development activities that promote inclusive communities, investigation of fair housing violations, and enforcement. NFHA engages in fair housing education and enforcement throughout the United States where no local private fair housing organization exists, as well as in cooperation with its members. NFHA creates and distributes national educational media campaigns to teach people about their rights and responsibilities under fair housing laws. NFHA also provides grants to people to rent, purchase, or renovate housing; to stave off foreclosure; and to stabilize neighborhoods harmed by the foreclosure crisis.
25. Plaintiff Fair Housing Justice Center (“FHJC”) is a nonprofit organization with an office located in Queens, New York. FHJC serves the five boroughs of New York City, and seven suburban New York counties. FHJC is dedicated to ensuring that all people have equal access to housing opportunities in the New York City region by eliminating housing discrimination and creating open and inclusive communities.
26. Among other things, FHJC (a) provides information to the public and other nonprofit organizations in the New York City regional area about fair housing laws; (b) provides intake counseling to individuals and organizations with allegations of housing discrimination; (c)
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conducts testing and other investigations of allegations of housing discrimination; (d) makes legal referrals to cooperating attorneys; (e) assists with the preparation and filing of administrative housing discrimination complaints; and (f) provides post-referral litigation support services. FHJC provides these services free of charge and without regard to income.
27. FHJC also conducts testing investigations for government law enforcement agencies, provides technical assistance to nonprofit organizations engaging in fair housing enforcement activities, and engages in policy initiatives that further FHJC’s mission, including the publication and dissemination of reports and educational materials.
28. Plaintiff Housing Opportunities for Project Excellence, Inc. (“HOPE”) is the first nonprofit fair housing agency organized in the State of Florida and is located in Miami, Florida. HOPE’s mission is to fight housing discrimination in Miami-Dade and Broward Counties and to ensure equal housing opportunities throughout Florida. One of HOPE’s goals is the elimination of segregation in housing and the promotion of residential integration.
29. Plaintiff HOPE employs a three-tiered system of education and outreach, intake and counseling, and private enforcement to affirmatively further fair housing. HOPE’s activities include, but are not limited to, counseling and obtaining facts regarding alleged acts of discrimination; conducting training seminars, presentations, and workshops on fair housing laws; assisting community leaders and members of the housing industry in developing fair housing strategies; developing resources to provide fair housing assistance; attempting resolution of complaints through litigation, conciliation or appropriate referral; and providing assistance to the general public on housing-related issues such as predatory lending.
30. Plaintiff Fair Housing Council of Greater San Antonio (“FHCGSA”) is a nonprofit corporation organized under the laws of the State of Texas and located in San Antonio,
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Texas. FHCGSA’s mission is to promote fair housing and non-discrimination in housing across the South Texas area. FHCGSA serves thirty-seven counties in South Texas and is dedicated to eliminating discriminatory housing practices and promoting residential integration.
31. FHCGSA provides various programs and services which include, but are not limited to, conducting complaint intake and counseling for consumers who allege housing discrimination; investigating housing discrimination complaints; submitting reasonable accommodation and modification requests to housing providers on behalf of consumers with disabilities, attempting to resolve complaints through mediation, referrals to administrative agencies or private attorneys, and conducting education and outreach activities for consumers, housing providers, and others. FHCGSA also works to promote accessible and affordable housing in South Texas through various activities including maintaining a Directory of Accessible Housing and providing fair housing training to developers of low-income housing tax credit rental units in Texas.
32. Defendant Facebook, Inc. (“Facebook”) is a publicly traded corporation, headquartered at 1601 Willow Road, Menlo Park, California, 94025, incorporated under the laws of the State of Delaware. Facebook owns and operates an online social networking web site that allows its billion-plus daily users to communicate with each other through the sharing of text, photograph, and video. Part of Facebook’s website is an advertising platform that allows businesses and individuals to pay money to have Facebook provide marketing, recruitment, sourcing, advertising, branding, information, and/or hiring services, including displaying advertisements for housing for sale or rent. In 2017, Facebook earned 98% of its $40.65 billion in revenues from third parties who advertised on Facebook.6
6 Facebook Investor Relations, https://investor.fb.com/financials/sec-filings-details/default.aspx?FilingId=12512043 (Facebook, Inc. Annual Report for the Fiscal Year Ended December 31, 2017).
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33. As of March 2017, Facebook had approximately 4 million advertisers using its
platform. Many of these advertisers are real estate brokers, residential property owners, and real estate management companies offering housing for rent or for sale.7
IV. LEGAL BACKGROUND: DISCRIMINATORY ADVERTISING 34. The Fair Housing Act states that it shall be unlawful “[t]o make, print, or publish,
or cause to be made, printed, or published any notice, statement, or advertisement, with respect
to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap,8 familial status, or national origin, or an intention to
make any such preference, limitation, or discrimination.” 42 U.S.C. § 3604(c).
35. Under its implementing regulations, the FHA provides that:
“(c) Discriminatory notices, statements and advertisements include, but are not limited to: (1) Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin . . . (3) Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin. (4) Refusing to publish advertising for the sale or rental of dwellings . . . because of race, color, religion, sex, handicap, familial status, or national origin.
24 C.F.R. § 100.75.
36. The Fair Housing Act’s advertising prohibitions apply to “all written or oral
notices or statements by a person engaged in the sale or rental of a dwelling” which include “any
applications, flyers, brochures, deeds, signs, banners, posters, billboards, or any documents used
with respect to the sale or rental of a dwelling.” 24 C.F.R. § 100.75(b).
7 See Facebook Marketplace to Post Apartment List Rental Homes, naahq.org (Nov. 9, 2017), https://www.naahq.org/news-publications/facebook-marketplace-post-apartmentlist-rental-homes . 8 Hereinafter, the term “disability” shall be used for the term “handicap.”
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37. In the advertising context, these prohibitions apply to both the person who drafted or placed the ad as well as the publisher of the ad because the negative effect of discriminatory advertising would be magnified if widely circulated by newspapers and other mass media. See United States v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972). Under the FHA, illegal advertising practices not only discourage or prevent buyers and renters from accessing information about housing opportunities, but also create an impression that housing segregation is legal, thus facilitating future discrimination by others. See Spann v. Colonial Village, Inc., 899 F.2d 24, 29 (D.C. Cir. 1990).
38. It is black-letter law that publishing advertisements that indicate discriminatory preferences is illegal. See Ragin v. New York Times, 923 F.2d 995 (2d Cir. 1991).
39. The continuing presence of discriminatory advertising practices serves to encourage both the housing provider and the home seeker to believe housing discrimination is “an accepted norm despite the FHA’s pronouncements to the contrary.” Schwemm, Robert, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L. J. 187, 250 (2001). V. FACTUAL ALLEGATIONS
A. Facebook’s Powerful and Far-Reaching Advertising Platform 40. Facebook generated over $40 billion dollars in revenue last year, almost all of which was made through selling advertisements on its website. 41. Facebook’s platform provides advertisers with “a number of different ways to engage with people on Facebook, the most important of which is the News Feed which displays an algorithmically-ranked series of stories and advertisements individualized for each person.”9
9 Facebook Investor Relations, https://investor.fb.com/financials/sec-filings-details/default.aspx?FilingId=12512043 (Facebook, Inc. Annual Report for the Fiscal Year Ended December 31, 2017).
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42. As Facebook promotes itself to its prospective advertisers, its greatest advertising asset is its user base of over 2 billion people.10 This user base includes not only Facebook users, but users of other applications owned by Facebook, including Instagram. Facebook collects a remarkable amount of information about each one of these users. It gathers this information both through self-reported information on Facebook, and through tracking its users’ online activity— both on Facebook itself and elsewhere through the internet. The end result has been described as “arguably the most complete consumer profile on earth,”11 as it reflects each Facebook user’s demographics, location, interests, and online behaviors.
43. Facebook then uses this treasure trove of information to enable advertisers to “target the people who are right for [their] business.”12
44. Using its vast collection of user data, Facebook has created a platform that enables advertisers to seek out potential audiences with great specificity. Advertisers can target users based on information as general as geographic location, or as specific as their birthday.
1. Facebook’s Use of “Include” and “Exclude” Options 45. Facebook has designed its advertising platform so that advertisers can “target” their audience using two general actions—“including” specific types of people and “excluding” specific types of people. 46. Facebook develops and provides its advertisers with a pre-populated list of hundreds of demographics, behaviors, and interests (the “Facebook Pre-Populated List”).
10 https://www.facebook.com/business/products/ads (last visited March 21, 2018). 11 Caitlin Dewey, 98 personal data points that Facebook uses to target ads to you, Wash. Post (Aug. 19, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/08/19/98-personal-data-points-that-facebook-uses-totarget-ads-to-you/?utm_term=.58ce94764ccf . 12 https://www.facebook.com/business/products/ads/ad-targeting (last visited March 21, 2018).
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Advertisers then scroll through this Facebook-created content and select which characteristics they would like to “include” and which they would like “exclude” from the ad’s audience.
47. For example, when an advertiser checks the pre-populated box to “include” the demographic of parents with toddlers (01-02), parents with toddlers (01-02) become the target audience for the ad and only parents will receive the ad on their Facebook pages or in their News Feeds. Non-parents will not receive the ad.
48. When an advertiser “excludes” a specific demographic, behavior, or interest, no person who reflects that quality will receive the ad. If an advertiser checks the pre-populated box to exclude people who have an interest in cooking, no one with that interest will receive the advertisement on their Facebook page or in their News Feed.
49. These features can also be used simultaneously. For example, if an advertiser “includes” parents but also “excludes” people with an interest in cooking, the ad will only appear on the Facebook pages or in the News Feeds of parents who do not have an interest in cooking. Non-parents (who are excluded because they were not “included” in the “target” audience) and people with an interest in cooking (who were “excluded” even if they otherwise would be in the target audience) will not receive the ad.
50. As advertisers add and subtract groups from their potential audience, Facebook provides them with real time estimates of how many people can view their advertisements. A screenshot of how this appears on Facebook’s platform is attached hereto as Exhibit A.
51. Facebook has placed these features on at least two different advertising platforms—by “boosting” posts and through Facebook Ad Manager.
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2. Facebook’s Use of “Boosts” 52. In order to “boost” a post, a business will first create a post to be published on its Facebook page. This could be information about the business, a new promotion—anything that the business would like to share with its customers. 53. The advertiser may then pay to “boost” that post by having it appear as an advertisement on the Facebook pages or in the News Feeds of various other Facebook users. 54. To select which Facebook users receive that “boosted” advertisement, the business may use the same “inclusion” and “exclusion” features described above. 55. While any Facebook user may view the ad on the business’s Facebook page, only users in the audience selected by the advertiser will receive a “boosted” advertisement on their own Facebook pages or in their news feeds. 56. For example, a restaurant may post about a new addition to its menu on its Facebook page. It could then “boost” that post to an “included” or “targeted” audience—i.e., persons who live within 10 miles of the restaurant and have an interest in Italian food—both categories in the Facebook Pre-Populated List. In this circumstance, any Facebook user could view the post by navigating to the restaurant’s Facebook page, but only those in the targeted audience would receive the advertisement on their own pages or in their News Feeds.
3. Facebook “Ad Manager” 57. Facebook also offers its advertisers the option to use Facebook Ad Manager. Using Ad Manager, an advertiser can customize exactly who will receive its advertisement, as well as various other features such as where and how frequently the ad appears on the Facebook accounts of its targeted audience. In this circumstance, only the audience selected using the “inclusion” and “exclusion” features above will be able to view the ad.
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58. For example, a restaurant could create an advertisement using Ad Manager for a new menu item and then select its audience using the “inclusion” and “exclusion” features—i.e., “include” persons who live within ten miles of the restaurant and have an interest in Italian food but “exclude” persons with an interest in cooking. In this circumstance only persons who live within ten miles of the restaurant, have an interest in Italian food, but do not have an interest in cooking, will be able to view the post.
B. ProPublica Reveals Facebook’s Discriminatory Housing Advertising Platform
59. On October 28, 2016, the investigative news nonprofit ProPublica published an article reporting that Facebook’s online platform enabled advertisers to exclude Facebook users assigned black, Hispanic and other “ethnic affinities” from seeing advertisements in the housing category through its advertising portal.13
60. In response to ProPublica’s article, NFHA investigated Facebook’s practices. 61. On November 3, 2016, NFHA created an advertisement using Facebook Ad Manager. The ad was for a fictitious apartment for rent and NFHA selected for it to be advertised across the United States. Using the “exclusions” feature within Ad Manager, NFHA selected the demographic preset options of “African-Americans” and “Hispanics” to exclude African-Americans and Hispanics from the ad’s potential audience. Facebook approved this ad. NFHA was able to run its ad for three days. A screenshot of these demographic preset options is attached hereto as Exhibit B. 62. On November 3, 2016, NFHA sent Facebook a letter stating that Facebook’s advertising features appeared to violate the FHA and state laws, and that it was “illegal for an
13 Julia Angwin and Terry Parris Jr., Facebook Lets Advertisers Exclude Users By Race, Propublica.org (Oct. 28, 2016), https://www.propublica.org/article/facebook-lets-advertisers-exclude-users-by-race.
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online advertiser to filter housing-related advertising in a discriminatory manner on the basis of race, religion, national origin and other protected characteristics.”
63. On November 7, 2016, Facebook’s representative responded to NFHA via email stating: “We think ethnic affinity marketing is really valuable in promoting diversity of the voices and images on our platform, but we also understand the concerns we’re hearing about wrongful discrimination. At this point, we’re listening to stakeholders like you and considering the way forward.”
64. On November 10, 2016, NFHA met with Facebook representatives with regard to the discriminatory advertising platform. NFHA explained to the Facebook representatives present that the Fair Housing Act and civil rights laws prohibited any system which excluded certain categories of people from viewing advertisements for housing, employment or credit. NFHA requested that Facebook cease and remedy its discriminatory behavior.
65. On November 11, 2016, NFHA sent Facebook citations to legal cases regarding its liability for its advertising platform.
66. On November 11, 2016, Facebook posted a statement on its “Newsroom” titled “Improving Enforcement and Promoting Diversity: Updates to Ethnic Affinity Marketing,” in which it stated that it would “disable the use of ethnic affinity marketing for ads that we identify as offering housing, employment or credit.”14
67. On February 8, 2017, Facebook published a statement on its website titled, “Improving Enforcement and Promoting Diversity: Updates to Ads Policies and Tools.”15
14 Erin Egan, Improving Enforcement and Promoting Diversity: Updates to Ethnic Affinity Marketing, newsroom.fb.com, (Nov. 11, 2016), https://newsroom.fb.com/news/2016/11/updates-to-ethnic-affinity-marketing/. 15 Improving Enforcement and Promoting Diversity: Updates to Ads Policies and Tools, newsroom.fb.com, (Feb. 8, 2017), https://newsroom.fb.com/news/2017/02/improving-enforcement-and-promoting-diversity-updates-to-adspolicies-and-tools/.
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Facebook committed to end the use of “ethnic affinity marketing” for ads that it identified as offering housing, employment, or credit. For ads that use Facebook’s other exclusion and inclusion categories, Facebook said it would require housing, employment, and credit advertisers to “self-certify” that their ads complied with anti-discrimination laws.
68. In its self-certification feature, Facebook states that “when running an ad for an apartment for rent, it may be illegal to exclude people who have children from that opportunity.”16
69. On November 21, 2017, more than a year after its original report, ProPublica published a second story revealing that Facebook continued to create content enabling housing advertisers to exclude users by prohibited categories such as race and national origin.17
70. ProPublica reported that it had bought dozens of rental housing ads on Facebook, but asked that they not be shown to certain categories of users, such as African-Americans, mothers of high school kids, people interested in wheelchair ramps, Jews, expats from Argentina, and Spanish speakers. Facebook had approved all of these ads.
71. Based on Facebook’s prior announcement that it would end the use of “ethnic affinity marketing” for housing opportunities, Facebook should have rejected the ads purchased by ProPublica that excluded viewers on the basis of race. The other ads should have prompted a screen to pop up asking for self-certification. ProPublica reported that it never encountered a self-certification screen, and Facebook rejected none of its ads.
16 Id. 17 Julia Angwin, Ariana Tobin and Madeleine Varner, Facebook (Still) Letting Housing Advertisers Exclude Users by Race, propublica.org (Nov. 21, 2017), https://www.propublica.org/article/facebook-advertising-discriminationhousing-race-sex-national-origin.
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C. Plaintiffs’ Investigation Into Facebook’s Housing Advertising Platform Confirms Discriminatory Practices Continue
72. In response to ProPublica’s November 21, 2017 report, NFHA commenced an investigation into Facebook’s advertising practices.
73. On November 30, 2017, NFHA created a Facebook page for a non-existent real estate company entitled “Metro Boutique Rentals.” Through this page, NFHA staff viewed Facebook’s Ad Manager and Boost features.
74. In summary, NFHA’s initial investigation into Facebook’s practices found as follows:
a. The Facebook Pre-Populated List provided housing advertisers with the option of excluding potential audience members from housing ads on the basis of demographic categories that Facebook created, including race and national origin.
b. At some point, Facebook eliminated the option from the Facebook Pre-Populated List for housing advertisers to exclude potential audience members from housing opportunities on the basis of race and national origin.
c. The Facebook Pre-Populated List made it possible for housing advertisers to exclude people from seeing their ads on the basis of their family status in a variety of ways. It provided checkboxes that housing advertisers could use to remove persons from their potential audience, such as parents with toddlers (01-02), parents with preschoolers (03-05), parents with early school-age children (06-08), moms of grade school kids, and moms of high school kids. A screenshot of how these exclusions appear on Facebook’s Boost and Ad Manager features is attached hereto as Exhibit C.
d. The Facebook Pre-Populated List made it possible for housing advertisers to “include” potential audience members based on an interest in “no kids.”
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e. The Facebook Pre-Populated List enabled housing advertisers to exclude people from seeing their ads on the basis of sex. It provided checkboxes that housing advertisers could use to exclude either men or women from viewing their ads by checking the box to “include” the other. A screenshot of how these exclusions appear on Facebook’s Boost and Ad Manager features is attached hereto as Exhibit D.
f. The Facebook Pre-Populated List enabled housing advertisers to exclude on the basis of interests that are the equivalent of protected characteristics, such as: Interest in Disabled American Veteran, Interest in Disabled Parking Permit, Interest in Disability.gov, Interest in Telemundo, and Interest in English as a second language. Screenshots of how these exclusions on Facebook’s Boost and Ad Manager features are attached hereto as Exhibit E.
g. Facebook had created algorithms to provide “suggested” audiences to advertisers based on the audiences selected in their prior ads. Facebook’s “suggestions” included demographic and interest categories that discriminate on the basis of protected characteristics such as sex, familial status, disability, race, or national origin. 1. Facebook’s Discrimination in the Washington, D.C. Housing Market a. Boost Investigation
75. On January 2, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to promote the ad in Washington, D.C. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, NFHA selected the preset options of those with interests in the “National Association for Bikers with a Disability,” “Disabled American Veterans,” “Disability.gov,” and “Disabled Parking Permit” to exclude from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
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76. On January 2, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to promote the ad in Washington, D.C. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, NFHA selected the preset options of those with interests in “Telemundo,” “English as a second language,” and “Univision Deports” to exclude from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
77. On January 3, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Washington, D.C. market. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, NFHA selected the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 500,000 people.
78. On January 3, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Washington, D.C market. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, NFHA selected the preset demographic options of “parents with toddlers (01-02 years), parents with preschoolers (03-05 years), parents with early school-age children (06-08 years), and parents with preteens (13-18 years)” to exclude families with young children from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
79. In January 2018 and February 2018, NFHA created multiple ads for fictitious apartments for rent and again used Facebook’s Boost feature to target each ad to the Washington, D.C market. NFHA then used the Facebook Pre-Populated List and the “exclusion” features within Boost to select multiple combinations of the preset demographic options of “parents with toddlers (01-02),” “parents with preschoolers (03-05),” “parents with early school-age children
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(06-08),” “parents with teenagers (13-18),” “parents with preteens (08-12),” “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” and “moms of preschool kids” to exclude families with young children and mothers from the Boost’s potential audience. In many of these Boosts and in additional Boosts targeted to the Washington, D.C. market, NFHA used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boosts’ potential audience. Facebook estimated that these Boosts would reach anywhere from 58,000 to 580,000 people.
b. Ad Manager Investigation 80. On December 14, 2017, NFHA created an ad using Facebook Ad Manager for a fictitious apartment for rent. NFHA selected Washington, D.C. as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, NFHA selected the preset demographic options of “new parents (0-12 months)” and “parents with preschoolers (03-05)” to exclude families with young children from the ad’s potential audience. Facebook estimated that the ad would reach 77,000 people. 81. Throughout February 2018, NFHA created additional ads for fictitious apartments for rent using Facebook Ad Manager and again selected Washington, D.C. as the market for the ads to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, NFHA selected combinations of the preset options of “corporate moms,” “stay-athome moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms” and “moms of preschool kids” to exclude mothers from the ad’s potential audience. In many of these ads and in additional ads targeted to the Washington, D.C. market, NFHA used the Facebook Pre-Populated List and the
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“inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that these ads would reach anywhere from 48,000 to 820,000 people.
c. Investigation of Other Major Housing Markets 82. In light of its investigation of Facebook’s practices in the Washington, D.C. housing market, NFHA investigated other major housing markets across the United States. 83. On February 1, 2018, NFHA created four ads for fictitious apartments for rent and then used Facebook’s Boost feature to target one ad each to four major markets in different regions of the country. Using the Facebook Pre-Populated List and Boost’s “inclusion” feature, NFHA selected the preset interest inclusion option of “no kids” and the present demographic inclusion option of “men” to target for the ad. Using the “exclusions” feature within Boost for each ad, NFHA selected the demographic preset options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02),” “parents with preschoolers (03-05),” “parents with early school-age children (06-08),” “parents with teenagers (13-18),” and “parents with preteens (08-12)” to exclude families with young children and mothers from each Boost’s potential audience. Facebook estimated that these four Boosts would reach a total of 463,000 people. 84. Having determined that Facebook had likely developed the same discriminatory content in other major housing markets, NFHA contacted three of its member groups; FHJC, HOPE, and FHCGSA. NFHA provided these groups with training on how to use the Facebook advertising features and conduct a similar investigation. These groups investigated on their own and jointly with NFHA to assess Facebook’s discriminatory practices in their home markets.
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2. Facebook’s Discrimination in the New York, New York Housing Market a. Boost Investigation
85. On January 30, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the New York City, New York market. Using the Facebook Pre-Populated List and Boost’s “inclusion” and “exclusion” features, NFHA selected combinations of (1) the preset interest inclusion option of “no kids” and the present demographic inclusion option of “men” to target for the ad, and (2) the preset demographic exclusion options of “moms of grade school kids,” “moms of high school kids,” “moms of preschool kids” and “stay-at-home moms,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years) to exclude families with children and mothers from the Boost’s potential audience. Facebook estimated that this Boost would reach 280,000 people.
86. On February 13, 2018, FHJC created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the New York City, New York market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, FHJC selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years), and “parents with preteens (08-12 years)” to exclude families with young children from the Boost’s potential audience. NFHA also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” and thereby exclude women from the Boost’s potential audience. Facebook estimated that the Boost would reach 95,000 people.
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87. On February 13, 2018, FHJC created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the New York City, New York market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List “inclusion” feature within Boost, FHJC selected the preset demographic option of “men”, thereby excluding women from the Boosts’ potential audience. Facebook estimated that the Boost would reach 44,000 people.
b. Ad Manager Investigation 88. In February 2018, NFHA created two ads for fictitious apartments for rent, and selected New York City, New York as the market for the ads to run in. Using the Facebook PrePopulated List and Ad Manager’s “exclusions” feature, NFHA selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (0305 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (1318 years), and “parents with preteens (08-12 years)” to exclude families with young children and mothers from the ads’ potential audience. In one of these ads, NFHA used the Facebook PrePopulated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” and thereby exclude women from the ad’s potential audience. Facebook estimated that the ads would reach 80,000 – 10 million people. 89. On February 21, 2018, FHJC created an ad -using Facebook Ad Manager for a fictitious apartment for rent. FHJC selected New York City, New York and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, FHJC selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of
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high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children and mothers from the ad’s potential audience. FHJC used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” and thereby exclude women from the ad’s potential audience. Facebook estimated that the ad would reach 5 million people.
90. On February 23, 2018, FHJC and NFHA collaborated to create an ad using Facebook Ad Manager for a fictitious apartment for rent. FHJC and NFHA selected New York City, New York and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, FHJC and NFHA selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (0608 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the ad’s potential audience. Facebook estimated that the ad would reach 5.2 million people.
3. Facebook’s Discrimination in the Miami, Florida Housing Market a. Boost Investigation
91. On February 21, 2018, HOPE created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Miami, Florida market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, HOPE selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age
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children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (0812 years)” to exclude families with young children from the Boost’s potential audience. HOPE also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 450,000 people.
92. On February 21, 2018, HOPE created an additional ad for a fictitious apartment for rent and used Facebook’s Boost feature to target the ad to the Miami, Florida market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, HOPE selected the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach a total of 490,000 people.
b. Ad Manager Investigation 93. On February 12, 2018, NFHA created a fictitious apartment for rent and selected Miami, Florida as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusion” feature within Ad Manager, NFHA selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” and “moms of preschool kids” to exclude families with young children and mothers from the ad’s potential audience. HOPE also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 200,000 people. 94. On February 21, 2018, HOPE created an ad using Facebook Ad Manager for a fictitious apartment for rent. HOPE selected Miami, Florida and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and
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the “exclusions” feature within Ad Manager, HOPE selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children and mothers from the ad’s potential audience. HOPE also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 750,000 people.
95. On February 23, 2018, HOPE and NFHA collaborated to create an ad using Facebook Ad Manager for a fictitious apartment for rent. HOPE and NFHA selected Miami, Florida and its surrounding areas within ten miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, HOPE and NFHA selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years),” to exclude families with young children from the ad’s potential audience. HOPE also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 450,000 people.
96. On February 23, 2018, HOPE and NFHA collaborated to create an additional ad using Facebook Ad Manager for fictitious apartments for rent. HOPE and NFHA selected
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Miami, Florida and its surrounding areas within sixteen miles as the market the markets for the ad to run in. Using the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager, HOPE and NFHA selected the preset demographic option of “men,” thereby excluding women from the ads’ potential audience. Facebook estimated that the ad would reach 2.8 million people.
4. Facebook’s Discrimination in the San Antonio, Texas Housing Market a. Boost Investigation
97. On February 12, 2018, NFHA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the San Antonio, Texas market. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, NFHA selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the Boost’s potential audience. NFHA also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 280,000 people.
98. On February 16, 2018, FHCGSA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the San Antonio, Texas market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, FHCGSA selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with
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early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude mothers and families with young children from the Boost’s potential audience. FHCGSA also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 270,000 people.
99. On February 21, 2018, FHCGSA created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to promote the ad in the San Antonio, Texas market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, FHCGSA selected the preset option of “women,” thereby excluding men from the Boost’s potential audience. Facebook estimated that the Boost would reach 330,000 people.
b. Ad Manager Investigation 100. On February 23, 2018, FHCGSA created three ads using Facebook Ad Manager for fictitious apartments for rent. FHCGSA selected San Antonio, Texas and its surrounding areas within ten miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, FHCGSA selected combinations of the preset options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude mothers and families with young children from the ad’s potential audience. In two of these ads, FHCGSA used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select
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the preset demographic option of “men,” thereby excluding women from the ads’ potential audience. Facebook estimated that the ads would reach 340,000, and 440,000 people respectively.
D. Common Allegations Regarding the Results of Plaintiffs’ Investigation into Facebook’s Discriminatory Housing Advertising
101. Facebook approved all of the Boosts and ads described above in paragraphs 75100 in anywhere from one minute to approximately one hour.
102. After Facebook approved them, all of the Boosts and ads described above in paragraphs 75-100 were removed from Facebook by the respective Plaintiff that created them.
103. Facebook’s Advertising Policies do not comply with the Fair Housing Act or with state and local fair housing laws, including in New York.
104. Under the caption “Discriminatory Practices,” Facebook states: “Ads must not discriminate or encourage discrimination against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition.”18
105. This policy misleads Facebook users because, for example, it does not state that there are additional categories of prohibited discrimination in state and local fair housing laws such as marital status, military status, status as a survivor of domestic violence, lawful source of income, including rental subsidies, and others.
106. The policy further misstates the obligations imposed by the FHA because, among other things, it does not explain that indicating a preference or limitation based on a protected
18 https://www.facebook.com/policies/ads/prohibited_content/discriminatory_practices# (last visited March 27, 2018).
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characteristic constitutes illegal discrimination and that advertisements that deny particular segments of the housing market information about housing opportunities violate the FHA.
107. Although Facebook stopped approving housing advertisements that used its “ethnic affinity” option in late 2017, it continues to create and develop content that facilitates advertisers excluding certain audiences based on legally protected characteristics.
108. Facebook develops and provides the Facebook Pre-Populated List that enables landlords and real estate agents to exclude people from receiving housing advertisements based on family status and sex.
109. Between December 14, 2017 and February 23, 2018, Facebook accepted for publication forty advertisements from Plaintiffs that excluded potential home seekers on the basis of family status and/or sex.
110. Facebook provides “interests” categories for housing advertisements that permit a landlord or real estate firm to exclude users based on disability-related factors (for example, by checking the pre-populated category of “Interest in Disabled Parking Permit”) and national origin (for example, “Interest in Telemundo”).
111. These categories deny information about housing opportunities to persons with disabilities, persons living with or associating with persons with disabilities, and/or persons who are Hispanic or speak Spanish and are more likely to be Hispanic. These “interest” categories are the equivalent of demographic exclusion categories labeled “disability” or “Hispanic.” There is no lawful reason for Facebook to create this content that enables advertisers to exclude potential audience members for housing ads on these bases.
112. As recently as March 23, 2018, NFHA attempted to “edit” an ad that it created in November 2016 that excluded potential audience members only on the basis of race and national
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origin. NFHA received a message from Facebook stating that “some of the detailed targeting selections you originally used in your Saved Audience are no longer available. They won’t show up in this audience targeting, but the associated ads will still deliver to the original audience. However, you’ll be unable to use these detailed targeting selections if you edit this audience or try running future ads with it” (emphasis added).
113. Based on this message, it appears that even though Facebook removed discriminatory demographic selections that allowed advertisers to exclude on the basis of race and national origin from the Facebook Pre-Populated List, it still allows previously existing ads that excluded or targeted on these bases to continue to do so.
114. By creating the Facebook Pre-Populated List, Facebook materially contributes to ongoing violations of the Fair Housing Act made through its advertising platform.
115. Plaintiffs’ investigation demonstrates that despite notice from NFHA and other civil rights groups as early as 2016 of its clear violations of the federal Fair Housing Act, Facebook has continued to engage in discriminatory housing advertising practices.
116. Facebook has acted intentionally, willfully, and with reckless disregard of existing federal and local fair housing rights. VI. HARM TO PLAINTIFFS CAUSED BY FACEBOOK THROUGH DIVERSION
OF RESOURCES AND FRUSTRATION OF MISSION 117. Facebook’s discriminatory and unlawful practices have frustrated and continue to frustrate each Plaintiff’s mission of ensuring that all people have equal access to housing opportunities and promoting residential integration across the country, as well as in the New York City, Washington, D.C., Miami, and San Antonio metropolitan areas. 118. In an effort to address and to counteract the effects of Defendant’s discriminatory conduct, prior to the filing of this action, each of the Plaintiffs has diverted resources and staff
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from other activities to investigate and document Defendant’s policies and practices. Each Plaintiff also engaged in public education efforts, prior to this filing, to raise awareness of discriminatory housing advertising practices in the communities each Plaintiff serves.
119. Prior to the filing of this Complaint, NFHA diverted and expended financial resources and staff time to, among other things, design and implement the investigation, including time to train and work with other Plaintiffs on their investigations; review and analyze the investigative results; and conduct legal research and seek legal advice from attorneys.
120. FHJC, HOPE, and FHCGSA each expended staff time and other resources to investigate Defendant’s advertising practices, which diverted staff and resources away from other organizational activities, prior to the filing of this Complaint. Among other things, FHJC, HOPE, and FHCGSA spent time being trained by NFHA to use Facebook’s advertising platform, create a non-existent realty firm, and design and document their efforts to create and place housing advertisements on Facebook.
121. If Facebook had complied with the requirements of the FHA after being informed of them by NFHA, then Plaintiffs would not have devoted considerable staff time and resources to identify the nature and scope of Facebook’s advertising policies and practices.
122. Each Plaintiff’s mission is frustrated when Facebook excludes members of the public from access to housing advertising and information about housing opportunities based on their sex, familial status, disability, race, national origin, or other protected characteristics.
123. Because Facebook’s discriminatory advertising practices alleged in this Complaint violate federal, state, and local fair housing laws they undermine rather than advance equal housing opportunity and perpetuate the harms of residential segregation.
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124. To address and attempt to counteract the effects of Facebook’s discriminatory conduct, prior to the filing of this action, each Plaintiff has engaged in public education campaigns to raise public awareness of the problem of discriminatory housing advertising and to educate housing providers about their legal obligations under fair housing laws not to advertise housing for rent or sale in a discriminatory manner.
125. In early 2018, NFHA drafted guidelines for housing advertisers that it posted on its website in English and Spanish with a link to specific information about each state’s fair housing laws, a copy of the HUD fair housing logo for advertisers to use, previously produced public service announcements, and a recorded webinar on discriminatory advertising held by NFHA in April 2017.
126. In early 2018, each Plaintiff expended staff time to develop education campaigns and design advertisements for social media aimed to reach housing providers who place ads and consumers searching for housing in the Washington D.C., New York City, Miami, and San Antonio metropolitan regions. Plaintiffs posted these ads on Facebook and Twitter on an ongoing basis, including translating ads into Spanish.
127. During this same time period, each Plaintiff expended staff time to communicate and coordinate with each other about their individual education campaigns to ensure Plaintiffs were providing a consistent message reaching both housing providers and consumers in each metropolitan area. Each Plaintiff also has expended staff time prior to filing this Complaint to begin to design workshops, a webinar, consumer flyers, and/or fact sheets. Finally, NFHA has begun to contact on-line education providers who offer courses on using social media for advertising to request that they distribute information about housing advertising guidelines and best practices that comply with fair housing laws.
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128. As a direct and proximate result of Facebook’s discriminatory practices described above, each Plaintiff has suffered and will continue to suffer a diversion of its resources and a frustration of its mission.
FIRST CLAIM FOR RELIEF (Fair Housing Act, 42 U.S.C. § 3604(a),(c),(f): Familial Status, Sex, Disability, Race, and
National Origin Discrimination) 129. Plaintiffs restate and incorporate by reference the preceding paragraphs above as if fully set forth herein. 130. The housing advertised for rent or sale on Facebook using the platform described above are “dwellings” as defined by the Fair Housing Act, 42 U.S.C. § 3602(b). 131. Facebook’s creation of preset categories on its advertising platform that facilitate unlawful discrimination in housing advertisements illegally discriminated against, and continues to discriminate against, Plaintiffs by: a. Making unavailable or denying, a dwelling to any person because of sex, familial
status, race or national origin. 42 U.S.C. § 3604(a). b. Making, printing, or publishing, or causing to be made, printed, or published any
notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on sex, disability familial status, race or national origin, or an intention to make any such preference, limitation, or discrimination. 42 U.S.C. § 3604(c). c. Making unavailable or denying, a dwelling to any buyer or renter because of a disability of — (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter. 42 U.S.C. § 3604(f).
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132. Plaintiffs are aggrieved persons as defined by the Fair Housing Act, 42 U.S.C. § 3602(i), and as a direct and proximate result of Defendant’s unlawful discriminatory conduct have sustained damages.
133. Accordingly, under 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
SECOND CLAIM FOR RELIEF (Plaintiffs NFHA and FHJC)
(New York City Human Rights Law: Aiding and Abetting Familial Status and Gender Discrimination)
134. New York City Administrative Code § 8-107(6) declares that it “shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter.”
135. The housing advertised for rent or sale on Facebook using the platform described above are “housing accommodations” as defined by the New York City Human Rights Law, § 8102(10).
136. Facebook’s creation of preset categories on its advertising platform that facilitate unlawful discrimination in housing advertisements constitutes aiding, abetting, inciting and compelling the doing of acts forbidden under Section 8-107(5)(3) of the New York City Administrative Code, including the “declar[ing], print[ing] or circulat[ing] or caus[ing] to be declared, printed or circulated any statement, advertisement or publication . . . which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or alienage or citizenship status, or any lawful source of income, or whether children are, may be, or would be residing with a person, or any intent to make such limitation, specification or discrimination” (emphasis added).
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137. Facebook’s creation of preset categories on its platform that enable unlawful discrimination in housing advertisements violated, and continues to violate, Section 8-107(5)(e) by denying persons access to Facebook’s real estate advertisements on the basis of familial status and gender.
138. NFHA and FHJC are “aggrieved persons” as defined in the New York City Administrative Code, § 8-502(a), and have suffered damages as a direct and proximate result of Defendant’s discriminatory conduct.
139. Accordingly, under New York City Administrative Code §§ 8-502(a) and (g), NFHA and FHJC are entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment against Defendant as follows: (a) Declaring that Defendant’s discriminatory policies and practices violate the Fair
Housing Act, as amended, 42 U.S.C. § 3601 et seq. and the New York City Administrative Code § 8-107 et seq.; (b) Enjoining Defendant, Defendant’s subsidiaries, Defendant’s agents, employees, and successors, and all other persons in active concert or participation from:
(i) Denying or withholding housing, or otherwise making housing unavailable on the basis on family status, sex, gender, disability, race, or national origin;
(ii) Making, printing, or publishing, or causing to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling or a housing accommodation that indicates any
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preference, limitation, or discrimination based on family status, sex, gender, disability, race, or national origin; (iii) Aiding, abetting, inciting and compelling the doing of acts forbidden under the New York City Human Rights Law including declaring, printing or circulating or causing to be declared, printed or circulated any statement advertisement or publication which expresses directly or indirectly, any limitation, specification or discrimination as to family status, gender, disability, race, or national origin or any intent to make such limitation, specification or discrimination; and (iv) Coercing, intimidating, threatening or interfering with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted by the Fair Housing Act or New York City Human Rights Law. (c) Enjoining Defendant and its agents, employees, successors, and all other persons in active concert or participation with Defendant to: (i) Make all necessary modifications to Defendant’s policies, practices, and procedures to comply with fair housing laws, including eliminating check boxes, selection categories, and other content that facilitates and enables advertisers to restrict or limit access to housing advertisements; (ii) Develop a written fair housing advertising policy that is not dependent on self-certification by advertisers and communicate it publicly, as well as to Defendant’s employees and agents;
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(iii) Train all Defendant’s current and future employees and agents with responsibilities related to the design, implementation, and operation of Defendants’ housing advertising platform on fair housing laws;
(iv) Allow monitoring of Defendant’s advertising platform and housing advertisements for multiple years;
(v) Retain records to allow for appropriate monitoring by Plaintiffs. (d) Awarding such damages to Plaintiff NFHA as will fully compensate it for the
diversion of resources and frustration of mission caused by Defendant’s unlawful practices; (e) Awarding such damages to Plaintiff FHJC as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices; (f) Awarding such damages to Plaintiff HOPE as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices; (g) Awarding such damages to Plaintiff FHCGSA as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices; (h) Awarding punitive damages to Plaintiffs; (i) Awarding Plaintiffs reasonable attorneys’ fees, costs, and expenses incurred in prosecuting this action; and
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(j) Granting Plaintiffs such other and further relief as may be just and proper.

Dated: March 27, 2018 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Diane L. Houk Diane L. Houk Katherine Rosenfeld David S. Berman 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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National Fair Housing Alliance et al v. Facebook, Inc., Docket No. 1:18-cv-02689 (S.D.N.Y. Mar 27, 2018), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Southern District of New York; United States District Court for the Southern District of New York
Civil Rights - Housing/Accomodations[443]
1:18-cv-02689
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 53

 
 Case 1:18-cv-02689-JGK Document 33 Filed 06/25/18 Page 1 of 58

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
NATIONAL FAIR HOUSING ALLIANCE; FAIR HOUSING JUSTICE CENTER, INC.; HOUSING OPPORTUNITIES PROJECT FOR EXCELLENCE, INC.; FAIR HOUSING COUNCIL OF GREATER SAN ANTONIO,
Plaintiffs,
v.
FACEBOOK, INC.,
Defendant.

No. 1:18-cv-02689 FIRST AMENDED COMPLAINT

PRELIMINARY STATEMENT 1. This year marks the 50th anniversary of the Fair Housing Act (“FHA”), a statute intended to end discrimination in housing markets throughout the United States. For decades, the FHA has prohibited both publishers and advertisers from “targeting” ads based on sex, family status, disability, national origin, and other protected characteristics. 2. Given this milestone, it is all the more egregious and shocking that Defendant Facebook continues to create content for landlords and real estate brokers to bar families with children, women, and others from receiving rental and sales ads for housing. Facebook has engaged in discrimination by design—stripping data from its users and using it to create discriminatory advertising content: a pre-populated list of demographics, behaviors, and interests from which housing advertisers select in order to exclude certain home seekers from ever seeing their ads. 3. Housing advertising has of course changed in the last fifty years, moving beyond billboards, “for rent” signs, and classifieds in the newspaper, to online advertising. Facebook’s

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ability to customize an online audience for advertisements based on its vast trove of user data has made it the biggest advertising agency in the world—the platform of choice for millions of businesses. But Facebook has abused its enormous power.
4. Over the past months, Plaintiffs, four nonprofit organizations with the common mission of eliminating housing discrimination and promoting residential integration, investigated Facebook’s conduct. Plaintiffs created dozens of housing advertisements and completed Facebook’s full ad submission and review process. Plaintiffs’ investigations in New York, Washington, D.C., Miami, and San Antonio confirm that Facebook first provides the option for advertisers to exclude families with children and women from receiving advertisements, as well as users with interests based on disability and national origin. Then Facebook approves the ads and permits advertisers to publish these ads in a discriminatory manner without consumers ever knowing they have been excluded.
5. Discriminatory advertising is just as damaging as discrimination at the point of rental or sale. If women with school-age children are categorically excluded from the Facebook advertising audience for a rental apartment in a community with high-performing schools and other amenities, they are effectively denied access to that housing opportunity. Facebook and its advertisers have made the ad invisible to them. At the same time, Facebook’s ad platform can further landlords’ illegal efforts to maintain a segregated, adults-only rental complex. Whereas in the past, the excluded group might see the “for rent” sign or newspaper classified ad because the ads were located in a public forum, the stealth nature of Facebook’s technology hides housing ads from entire groups of people. Facebook’s algorithms can ensure exclusion and deny access to housing. Facebook’s ability to target groups and promote discrimination so precisely will surely only improve as the company continues to refine its technology.
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6. Even before Plaintiffs conducted their most recent investigations, Facebook was on notice for more than a year—from Plaintiffs and media reports (including by ProPublica)— that its advertising platform violated fair housing laws.
7. As Facebook significantly increases its presence in housing advertising and the housing marketplace,1 it must first end its discriminatory advertising practices.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiffs assert federal claims under the FHA; under 28 U.S.C. § 1343(a)(4) as Plaintiffs seek to secure equitable and other relief under federal civil rights laws; and under 42 U.S.C. § 3613(a)(1)(A) as Plaintiffs seek appropriate relief regarding a discriminatory housing practice under the FHA. 9. The Court has supplemental jurisdiction over Plaintiffs’ local law claims under the New York City Human Rights Law pursuant to 28 U.S.C. § 1367(a), as these claims are so related to their federal claims in this action that they form part of the same case or controversy. 10. This Court has personal jurisdiction over Facebook pursuant to Fed. R. Civ. P. 4(k)(1) and New York Civil Practice Law and Rules § 302(a)(1) because Facebook transacts business within the state, § 302(a)(2) because Facebook has committed tortious and discriminatory acts within the state, § 302(a)(3)(i) because Facebook has committed a tortious and discriminatory act without the state causing injury to persons within the state, and regularly does business in the state, § 302(a)(3)(ii) because Facebook has committed a tortious and discriminatory act without the state causing injury to persons within the state, and derives substantial revenue from interstate commerce, and § 302(a)(4).
1 Ben Lane, Facebook Launches Massive Push Into Real Estate Listings, Housingwire.com (Nov. 13, 2017), https://www.housingwire.com/articles/41797-facebook-launches-massive-push-into-real-estate-listings.
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11. Declaratory and injunctive relief is sought and authorized by 28 U.S.C. §§ 2201 and 2202.
12. Venue is proper in this District under 28 U.S.C. § 1391(b)(1), as Defendant Facebook resides in this District in which it is subject to the Court’s personal jurisdiction, and pursuant to 28 U.S.C. § 1391(b)(2) in that a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District.
A. Facebook’s Contacts with New York 13. Facebook maintains a corporate office in this District located at 335 Madison Avenue, New York, New York 10017. 14. Facebook is registered with the New York State Division of Corporations and assigned DOS ID #3842367l, with an appointed agent for service located at 80 State Street, Albany, New York 12207. 15. Upon information and belief, Facebook employs approximately 1,000 people. 16. Facebook opened its New York office in 2012, stating that the New York office “won’t just be a satellite office, it will be a core part of our engineering staff.”2 17. Facebook conducts advertising, engineering, and other activities in this District. 18. According to Facebook, “Almost all of our big teams are centered around products that specifically benefit from being in New York . . . either teams working closely with local industries, products that address the experience of an urban environment, or center around talent that is abundant on the east coast (like AI Research or Mobile Engineering).”3
2 Jason Kincaid, Facebook To Open Engineering Office in NYC, techcrunch.com (Dec. 2, 2011), https://techcrunch.com/2011/12/02/facebook-to-open-engineering-office-in-nyc. 3 Director of Engineering at Facebook AI Explains the Advantages of New York Tech, Huffington Post.com (Jan. 22, 2016), https://www.huffingtonpost.com/quora/director-of-engineering-a_b_9052764.html (emphasis supplied).
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19. As the largest city in the United States, New York City—with a total of more than 3 million households according to the 2010 United States Census—is also the largest housing market in the country.4 As of 2011, New York City had a total of 3.35 million housing units, of which 65% were rental units, 30% were owner units, and 5% were vacant but not available for sale or rent. The vacancy rate in 2011 for rental units in New York City was only 3.12%. Half of the City’s housing units were in buildings of 20 or more units as of 2011.
20. The New York City housing market is unique in that, unlike other cities in the United States where landlords handle advertising and renting apartments directly, many landlords use real estate agents to advertise apartments for rent and locate prospective renters. As of 2013, Manhattan alone had 27,000 licensed real estate brokers and sales persons working in both the sales and rental markets.5 These real estate brokers and agents use online real estate advertising, including on Facebook.
21. For the New York City housing consumer, access to Facebook’s online real estate advertising is crucial given the City’s low vacancy rate, high competition for dwelling units, and heavy reliance on real estate brokers and agents.
22. Upon information and belief, Facebook receives a substantial amount of revenue from advertisements that are sold to New York-area companies or target New York residents, including an estimated reach of millions of people within the District.
23. Upon information and belief, a portion of this substantial revenue comes from housing advertisements that are sold to landlords and real estate brokers in the New York-area and target New York residents.
4 New York City Consolidated Plan, 2015-2-19 Needs Assessment & Market Analysis, December 16, 2016, NA-1. 5 Leigh Kamping-Carder, Ranks of Manhattan brokers swell, as market strengthens, The Real Deal (Dec. 10, 2012), https://therealdeal.com/2012/12/10/ranks-of-new-york-city-brokers-swell-as-market-strengthens/.
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THE PARTIES 24. Plaintiff National Fair Housing Alliance (“NFHA”) is a national, nonprofit, public service organization incorporated under the laws of the Commonwealth of Virginia with its principal place of business in Washington, D.C. NFHA is a nationwide alliance of private, nonprofit, fair housing organizations, including organizations in 28 states. NFHA’s sole mission is to end discrimination in housing and to promote residential integration. NFHA works to eliminate housing discrimination and to ensure equal opportunity for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy, community development activities that promote inclusive communities, investigation of fair housing violations, and enforcement. NFHA engages in fair housing education and enforcement throughout the United States where no local private fair housing organization exists, as well as in cooperation with its members. NFHA creates and distributes national educational media campaigns to teach people about their rights and responsibilities under fair housing laws. NFHA also provides grants to people to rent, purchase, or renovate housing; to stave off foreclosure; and to stabilize neighborhoods harmed by the foreclosure crisis. 25. Plaintiff Fair Housing Justice Center (“FHJC”) is a nonprofit organization with an office located in Queens, New York. FHJC serves the five boroughs of New York City and seven suburban New York counties. FHJC is dedicated to ensuring that all people have equal access to housing opportunities in the New York City region by eliminating housing discrimination and creating open and inclusive communities. 26. Among other things, FHJC (a) provides information to the public and other nonprofit organizations in the New York City region about fair housing laws; (b) provides intake counseling to individuals and organizations with allegations of housing discrimination; (c)
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conducts testing and other investigations of allegations of housing discrimination; (d) makes legal referrals to cooperating attorneys; (e) assists with the preparation and filing of administrative housing discrimination complaints; and (f) provides post-referral litigation support services. FHJC provides these services free of charge and without regard to income.
27. FHJC also conducts testing investigations for government law enforcement agencies, provides technical assistance to nonprofit organizations engaging in fair housing enforcement activities, and engages in policy initiatives that further FHJC’s mission, including the publication and dissemination of reports and educational materials.
28. Plaintiff Housing Opportunities for Project Excellence, Inc. (“HOPE”) is the first nonprofit fair housing agency organized in the State of Florida and is located in Miami, Florida. HOPE’s mission is to fight housing discrimination in Miami-Dade and Broward Counties and to ensure equal housing opportunities throughout Florida. One of HOPE’s goals is the elimination of segregation in housing and the promotion of residential integration.
29. Plaintiff HOPE employs a three-tiered system of education and outreach, intake and counseling, and private enforcement to affirmatively further fair housing. HOPE’s activities include, but are not limited to, counseling and obtaining facts regarding alleged acts of discrimination; conducting training seminars, presentations, and workshops on fair housing laws; assisting community leaders and members of the housing industry in developing fair housing strategies; developing resources to provide fair housing assistance; attempting resolution of complaints through litigation, conciliation, or appropriate referral; and providing assistance to the general public on housing-related issues such as predatory lending.
30. Plaintiff Fair Housing Council of Greater San Antonio (“FHCGSA”) is a nonprofit corporation organized under the laws of the State of Texas and located in San Antonio,
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Texas. FHCGSA’s mission is to promote fair housing and non-discrimination in housing across the South Texas area. FHCGSA serves thirty-seven counties in South Texas and is dedicated to eliminating discriminatory housing practices and promoting residential integration.
31. FHCGSA provides various programs and services which include, but are not limited to, conducting complaint intake and counseling for consumers who allege housing discrimination; investigating housing discrimination complaints; submitting reasonable accommodation and modification requests to housing providers on behalf of consumers with disabilities, attempting to resolve complaints through mediation, referrals to administrative agencies, or private attorneys; and conducting education and outreach activities for consumers, housing providers, and others. FHCGSA also works to promote accessible and affordable housing in South Texas through various activities including maintaining a Directory of Accessible Housing and providing fair housing training to developers of low-income housing tax credit rental units in Texas.
32. Defendant Facebook, Inc. (“Facebook”) is a publicly traded corporation, headquartered at 1601 Willow Road, Menlo Park, California, 94025, incorporated under the laws of the State of Delaware. Facebook owns and operates an online social networking web site that allows its billion-plus daily users to communicate with each other through the sharing of text, photograph, and video. Part of Facebook’s website is an advertising platform that allows businesses and individuals to pay money to have Facebook provide marketing, recruitment, sourcing, advertising, branding, information, and/or hiring services, including displaying advertisements for housing for sale or rent. In 2017, Facebook earned 98% of its $40.65 billion in revenues from third parties who advertised on Facebook.6
6 Facebook Investor Relations, https://investor.fb.com/financials/sec-filings-details/default.aspx?FilingId=12512043 (Facebook, Inc. Annual Report for the Fiscal Year Ended December 31, 2017).
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33. As of March 2017, Facebook had approximately 4 million advertisers using its
platform. Many of these advertisers are real estate brokers, residential property owners, and real estate management companies offering housing for rent or for sale.7
LEGAL BACKGROUND: DISCRIMINATORY ADVERTISING 34. The Fair Housing Act states that it shall be unlawful “[t]o make, print, or publish,
or cause to be made, printed, or published any notice, statement, or advertisement, with respect
to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap,8 familial status, or national origin, or an intention to
make any such preference, limitation, or discrimination.” 42 U.S.C. § 3604(c).
35. Under its implementing regulations, the FHA provides that:
(c) Discriminatory notices, statements and advertisements include, but are not limited to: (1) Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin . . . . (3) Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin. (4) Refusing to publish advertising for the sale or rental of dwellings . . . because of race, color, religion, sex, handicap, familial status, or national origin.
24 C.F.R. § 100.75.
36. The Fair Housing Act further makes it unlawful “[t]o represent to any person
because of race, color, religion, sex, handicap, familial status, or national origin that any
dwelling is not available for inspection, sale, or rental when such dwelling is in fact so
available.” 42 U.S.C. § 3604(d).
7 See Facebook Marketplace to Post Apartment List Rental Homes, naahq.org (Nov. 9, 2017), https://www.naahq.org/news-publications/facebook-marketplace-post-apartmentlist-rental-homes . 8 Hereinafter, the term “disability” shall be used for the term “handicap” unless quoting from the statutory text.
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37. The Fair Housing Act’s advertising prohibitions apply to “all written or oral notices or statements by a person engaged in the sale or rental of a dwelling” which include “any applications, flyers, brochures, deeds, signs, banners, posters, billboards, or any documents used with respect to the sale or rental of a dwelling.” 24 C.F.R. § 100.75(b).
38. In the advertising context, these prohibitions apply to both the person who drafted or placed the ad as well as the publisher of the ad because the negative effect of discriminatory advertising would be magnified if widely circulated by newspapers and other mass media. See United States v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972). Under the FHA, illegal advertising practices not only discourage or prevent buyers and renters from accessing information about housing opportunities, but also create an impression that housing segregation is legal, thus facilitating future discrimination by others. See Spann v. Colonial Village, Inc., 899 F.2d 24, 29 (D.C. Cir. 1990).
39. It is black-letter law that publishing advertisements that indicate discriminatory preferences or limit the information available on the basis of discriminatory preferences is illegal. See Ragin v. New York Times, 923 F.2d 995 (2d Cir. 1991); 24 C.F.R. § 100.80(b)(4) (explaining that § 3604(d) prohibits “[l]imiting information, by word or conduct, regarding suitably priced dwellings available for inspection, sale or rental, because of race, color, religion, sex, handicap, familial status, or national origin”).
40. The continuing presence of discriminatory advertising practices serves to encourage both the housing provider and the home seeker to believe housing discrimination is “an accepted norm despite the FHA’s pronouncements to the contrary.” Robert Schwemm, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 250 (2001).
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41. Lastly, the FHA provides that “it shall be unlawful to deny any person access to or membership or participation in any multiple-listing service, real estate brokers’ organization or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against him in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, handicap, familial status, or national origin.” 42 U.S.C. § 3606 (emphasis added).
42. This prohibition applies to multiple-listing services, real estate organizations, rental listing services, and other entities in the business of providing services and/or information related to selling or renting housing. See United States v. Space Hunters, Inc., No. 00-CIV-1781, 2001 WL 968993, at *5 (S.D.N.Y. Aug. 24, 2001), aff’d in relevant part, United States v. Space Hunters, Inc., 429 F.3d 416, 421 (2d Cir. 2005).
FACTUAL ALLEGATIONS A. Facebook’s Powerful and Far-Reaching Advertising Platform 43. Facebook generated over $40 billion in revenue last year, almost all of which was made through selling advertisements on its website. 44. Facebook’s platform provides advertisers with “a number of different ways to engage with people on Facebook, the most important of which is the News Feed which displays an algorithmically-ranked series of stories and advertisements individualized for each person.”9 45. As Facebook promotes itself to its prospective advertisers, its greatest advertising asset is its user base of over 2 billion people.10 This user base includes not only Facebook users,
9 Facebook Investor Relations, https://investor.fb.com/financials/sec-filings-details/default.aspx?FilingId=12512043 (Facebook, Inc. Annual Report for the Fiscal Year Ended December 31, 2017). 10 Facebook Business, Facebook Ads, https://www.facebook.com/business/products/ads (last visited March 21, 2018).
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but also users of other applications owned by Facebook, including Instagram. Facebook collects a remarkable amount of information about each one of these users.
46. Although Facebook users often voluntarily provide limited personal information, such as their age, gender, employer, and limited other categories, most of the data Facebook collects is not self-reported.11
47. The vast majority of this information comes from Facebook’s collection, evaluation, and processing of their users’ behavior both on and off Facebook to learn about users’ demographics (for example, their family status), their interests (for example, their political leanings or hobbies), and their behaviors (for example that they are “recent mortgage borrowers” or that their “spending method” is “primarily cash”).12
48. Users are given no choice but to provide this data when they register for a Facebook account, as allowing Facebook to “process” this information about its users is a mandatory condition of using the Facebook site.13
49. The end result has been described as “arguably the most complete consumer profile on earth,”14 as it reflects each Facebook user’s demographics, location, interests, and online behaviors.
11 Upturn, Leveling the Platform: Real Transparency for the Paid Messages on Facebook, at 8 (May 2018), available at https://www.teamupturn.org/static/reports/2018/facebook-ads/files/Upturn-Facebook-Ads-2018-0508.pdf. 12 Id. 13 Facebook, Data Policy, https://www.facebook.com/full_data_use_policy (last visited June 25, 2018). 14 Caitlin Dewey, 98 personal data points that Facebook uses to target ads to you, Wash. Post (Aug. 19, 2016), https://www.washingtonpost.com/news/the-intersect/wp/2016/08/19/98-personal-data-points-that-facebook-uses-totarget-ads-to-you/?utm_term=.58ce94764ccf.
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50. Facebook then employs algorithms to analyze, sort, and repurpose this treasure trove of information so that advertisers can “target the people who are right for [their] business.”15
51. These algorithms automatically designate each Facebook user as falling into the various categories it has determined fit that user’s demographics, interests, and behaviors.
52. Facebook users’ personal information regarding demographics, interests, and behaviors does not just passively flow untouched from the users to advertisers. Rather, Facebook extracts data from its users’ online behavior, both on Facebook and off, and uses algorithms designed to sort that data, process it, and repackage it to group potential customers into new and salient categories for advertisers to choose from when targeting their ads.
53. These data-analyzing algorithms and the resulting Facebook-created content empower advertisers to seek out potential audiences with incredible specificity. Advertisers can target users based on information as general as geographic location, or as specific as their birthday or preferred methods of payment. Advertisers would not be able to engage in this targeted advertising without the categories and content that Facebook creates and develops.
1. Facebook’s Use of “Include” and “Exclude” Options 54. Facebook has designed its advertising platform so that advertisers can “target” their audience using two general actions—“including” specific types of people and “excluding” specific types of people. 55. Once Facebook has analyzed the immense amount of personal data it collects and has used it to classify potential customers by categories based on their perceived demographics, interests, and behaviors, Facebook then provides its advertisers with a pre-populated list of these
15 Facebook Business, Choose Your Audience, https://www.facebook.com/business/products/ads/ad-targeting (last visited March 21, 2018).
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demographics, interests, and behaviors (the “Facebook Pre-Populated List”). As explained above, only a handful of categories (age, gender, location, language, university, field of study, employer, and any “liked” pages) are self-reported by users. The majority of these hundreds of categories are new categories that Facebook’s algorithms create after Facebook sorts and analyzes each Facebook user’s online activity.
56. Advertisers then scroll through this Facebook-created content and select which characteristics they would like to “include” and which they would like “exclude” from the ad’s audience.
57. For example, when an advertiser checks the pre-populated box to “include” the Facebook-created demographic category of parents with toddlers (01-02), parents with toddlers (01-02) become the target audience for the ad and, through Facebook’s algorithms arranging the ad delivery process, only parents with toddlers will receive the ad on their Facebook pages or in their News Feeds. Non-parents will not receive the ad.
58. When an advertiser “excludes” a specific demographic, behavior, or interest, no person who reflects that quality will receive the ad. If an advertiser checks the pre-populated box to exclude the Facebook-created interest category of people who have an interest in cooking, Facebook’s algorithms similarly ensure that no one with that interest will receive the advertisement on their Facebook page or in their News Feed.
59. These features can also be used simultaneously. For example, if an advertiser “includes” parents with toddlers but also “excludes” people with an interest in cooking, the ad will only appear on the Facebook pages or in the News Feeds of parents with toddlers who do not have an interest in cooking. Facebook’s algorithms prevent non-parents, or parents with nontoddler children, (who are excluded because they were not “included” in the “target” audience)
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and people with an interest in cooking (who were “excluded” even if they otherwise would be in the target audience) from receiving the ad.
60. Facebook creates, in whole or in part, almost all of the information provided to advertisers to “include” or “exclude” certain persons.
61. As advertisers add and subtract groups from their potential audience, Facebook provides them with real-time estimates of how many people can view their advertisements. A screenshot of how this appears on Facebook’s platform is attached hereto as Exhibit A.
62. Facebook has placed these features on at least two different advertising platforms—by “boosting” posts and through Facebook Ad Manager.
63. Facebook has also created algorithms to provide “lookalike” audiences to advertisers. Under this feature, advertisers provide Facebook custom audiences they believe are good for their business, and Facebook employs its own algorithms to create new audiences that resemble that custom audience. As Facebook itself explains, “[a] Lookalike Audience is a way to reach new people who are likely to be interested in your business because they’re similar to your best existing customers.”16 After the advertiser provides Facebook with its custom audience, Facebook will “hash [its] data, upload it and create the [new] audience.”17 In creating these new “Lookalike Audiences” Facebook’s algorithms consider protected characteristics such as sex, familial status, disability, race, and national origin.18
16 Facebook Business, Advertising Help Center, https://www.facebook.com/business/help/164749007013531 (last visited June 25, 2018). 17 Facebook Business, Advertising Help Center, https://www.facebook.com/business/help/170456843145568 (last visited June 25, 2018). 18 Upturn, Leveling the Platform: Real Transparency for the Paid Messages on Facebook, at 9 (May 2018), available at https://www.teamupturn.org/static/reports/2018/facebook-ads/files/Upturn-Facebook-Ads-2018-0508.pdf.
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2. Facebook’s Use of “Boosts” 64. In order to “boost” a post, a business will first create a post to be published on its Facebook page. This could be information about the business, a new promotion—anything that the business would like to share with its customers. 65. The advertiser may then pay to “boost” that post by having it appear as an advertisement on the Facebook pages or in the News Feeds of various other Facebook users. 66. To select which Facebook users receive that “boosted” advertisement, the business may use the same “inclusion” and “exclusion” features described above. 67. While any Facebook user may view the ad on the business’s Facebook page, only users in the audience selected by the advertiser will receive a “boosted” advertisement on their own Facebook pages or in their news feeds. 68. For example, a restaurant may post about a new addition to its menu on its Facebook page. It could then “boost” that post to an “included” or “targeted” audience—i.e., persons who live within 10 miles of the restaurant and have an interest in Italian food—both categories in the Facebook Pre-Populated List. In this circumstance, any Facebook user could view the post by navigating to the restaurant’s Facebook page, but only those in the targeted audience would receive the advertisement on their own pages or in their News Feeds.
3. Facebook “Ad Manager” 69. Facebook also offers its advertisers the option to use Facebook Ad Manager. Using Ad Manager, an advertiser can customize exactly who will receive its advertisement, as well as various other features such as where and how frequently the ad appears on the Facebook accounts of its targeted audience. In this circumstance, only the audience selected using the “inclusion” and “exclusion” features above will be able to view the ad.
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70. For example, a restaurant could create an advertisement using Ad Manager for a new menu item and then select its audience using the “inclusion” and “exclusion” features—i.e., “include” persons who live within ten miles of the restaurant and/or have an interest in Italian food but “exclude” persons with an interest in cooking. In this circumstance only persons who live within ten miles of the restaurant or have an interest in Italian food, but do not have an interest in cooking, will be able to view the post.
B. ProPublica Reveals Facebook’s Discriminatory Housing Advertising Platform
71. On October 28, 2016, the investigative news nonprofit ProPublica published an article reporting that Facebook’s online platform enabled advertisers to exclude Facebook users assigned black, Hispanic and other “ethnic affinities” from seeing advertisements in the housing category through its advertising portal.19
72. In response to ProPublica’s article, NFHA investigated Facebook’s practices. 73. On November 3, 2016, an NFHA employee using a personal Facebook account created an advertisement using Facebook Ad Manager. The ad was for a fictitious apartment for rent and the employee selected for it to be advertised across the United States. Using the “exclusions” feature within Ad Manager, the employee selected the demographic preset options of “African-Americans” and “Hispanics” to exclude African-Americans and Hispanics from the ad’s potential audience. Facebook approved this ad. The ad ran for three days. A screenshot of these demographic preset options is attached hereto as Exhibit B. 74. On November 3, 2016, NFHA sent Facebook a letter stating that Facebook’s advertising features appeared to violate the FHA and state laws, and that it was “illegal for an
19 Julia Angwin and Terry Parris Jr., Facebook Lets Advertisers Exclude Users By Race, Propublica.org (Oct. 28, 2016), https://www.propublica.org/article/facebook-lets-advertisers-exclude-users-by-race.
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online advertiser to filter housing-related advertising in a discriminatory manner on the basis of race, religion, national origin and other protected characteristics.”
75. On November 7, 2016, Facebook’s representative responded to NFHA via email stating: “We think ethnic affinity marketing is really valuable in promoting diversity of the voices and images on our platform, but we also understand the concerns we’re hearing about wrongful discrimination. At this point, we’re listening to stakeholders like you and considering the way forward.”
76. On November 10, 2016, NFHA met with Facebook representatives with regard to the discriminatory advertising platform. NFHA explained to the Facebook representatives present that the Fair Housing Act and civil rights laws prohibited any system which excluded certain categories of people from viewing advertisements for housing, employment or credit. NFHA requested that Facebook cease and remedy its discriminatory behavior.
77. On November 11, 2016, NFHA sent Facebook citations to legal cases regarding its liability for its advertising platform.
78. On November 11, 2016, Facebook posted a statement on its “Newsroom” titled “Improving Enforcement and Promoting Diversity: Updates to Ethnic Affinity Marketing,” in which it stated that it would “disable the use of ethnic affinity marketing for ads that we identify as offering housing, employment or credit.”20
79. On February 8, 2017, Facebook published a statement on its website titled, “Improving Enforcement and Promoting Diversity: Updates to Ads Policies and Tools.”21
20 Erin Egan, Improving Enforcement and Promoting Diversity: Updates to Ethnic Affinity Marketing, newsroom.fb.com, (Nov. 11, 2016), https://newsroom.fb.com/news/2016/11/updates-to-ethnic-affinity-marketing/. 21 Improving Enforcement and Promoting Diversity: Updates to Ads Policies and Tools, newsroom.fb.com (Feb. 8, 2017), https://newsroom.fb.com/news/2017/02/improving-enforcement-and-promoting-diversity-updates-to-adspolicies-and-tools/.
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Facebook committed to end the use of “ethnic affinity marketing” for ads that it identified as offering housing, employment, or credit. For ads that use Facebook’s other exclusion and inclusion categories, Facebook said it would require housing, employment, and credit advertisers to “self-certify” that their ads complied with anti-discrimination laws.
80. In its self-certification feature, Facebook states that “when running an ad for an apartment for rent, it may be illegal to exclude people who have children from that opportunity.”22
81. On November 21, 2017, more than a year after its original report, ProPublica published a second story revealing that Facebook had not followed through on its commitment to remedy its discriminatory conduct, and that Facebook continued to create content that enables housing advertisers to exclude users by prohibited categories such as race and national origin.23
82. ProPublica reported that it had bought dozens of rental housing ads on Facebook, but asked that they not be shown to certain categories of users, such as African-Americans, mothers of high school kids, people interested in wheelchair ramps, Jews, expats from Argentina, and Spanish speakers. Facebook had approved all of these ads.
83. Based on Facebook’s prior announcement that it would end the use of “ethnic affinity marketing” for housing opportunities, Facebook should have rejected the ads purchased by ProPublica that excluded viewers on the basis of race. The other ads should have prompted a screen to pop up asking for self-certification. ProPublica reported that it never encountered a self-certification screen, and Facebook rejected none of its ads.
22 Id. 23 Julia Angwin, Ariana Tobin, Madeleine Varner, Facebook (Still) Letting Housing Advertisers Exclude Users by Race, propublica.org (Nov. 21, 2017), https://www.propublica.org/article/facebook-advertising-discriminationhousing-race-sex-national-origin.
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C. Plaintiffs’ Investigation Into Facebook’s Housing Advertising Platform Confirms Discriminatory Practices Continue
84. In response to ProPublica’s November 21, 2017 report, NFHA commenced an investigation into Facebook’s advertising practices.
85. On November 30, 2017, an NFHA employee using a personal Facebook account created a Facebook page for a non-existent real estate company entitled “Metro Boutique Rentals.” Through this page, NFHA staff viewed Facebook’s Ad Manager and Boost features.
86. In summary, NFHA’s initial investigation into Facebook’s practices found as follows:
a. The Facebook Pre-Populated List provided housing advertisers with the option of excluding potential audience members from housing ads on the basis of demographic categories that Facebook created based on its own analysis of users’ online activity, including race and national origin.
b. At some point, Facebook eliminated the option from the Facebook Pre-Populated List for housing advertisers to exclude potential audience members from housing opportunities on the basis of race and national origin.
c. The Facebook Pre-Populated List created the capability for housing advertisers to exclude people from seeing their ads on the basis of their family status in a variety of ways. It provided checkboxes of family-status related categories created by Facebook from analyzing and repurposing users’ data that housing advertisers could use to remove persons from their potential audience, such as parents with toddlers (01-02), parents with preschoolers (03-05), parents with early school-age children (06-08), moms of grade school kids, and moms of high school kids. A screenshot of how
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these exclusions appear on Facebook’s Boost and Ad Manager features is attached hereto as Exhibit C. d. The Facebook Pre-Populated List created the capability for housing advertisers to “include” potential audience members based on an interest in “no kids.” e. The Facebook Pre-Populated List created content for housing advertisers to exclude people from seeing their ads on the basis of sex. It provided checkboxes that housing advertisers could use to exclude either men or women from viewing their ads by checking the box to “include” the other. A screenshot of how these exclusions appear on Facebook’s Boost and Ad Manager features is attached hereto as Exhibit D. f. The Facebook Pre-Populated List created content for housing advertisers to exclude on the basis of interest categories created by Facebook and derived from Facebook’s data analysis that are the equivalent of protected characteristics, such as: Interest in Disabled American Veteran, Interest in Disabled Parking Permit, Interest in Disability.gov, Interest in Telemundo, and Interest in English as a second language. Screenshots of how these exclusions on Facebook’s Boost and Ad Manager features are attached hereto as Exhibit E. g. Facebook had created algorithms to provide “suggested” audiences to advertisers based on the audiences selected in their prior ads. Facebook’s “suggestions” included demographic and interest categories that discriminate on the basis of protected characteristics such as sex, familial status, disability, race, or national origin.
1. Facebook’s Discrimination in the Washington, D.C. Housing Market a. Boost Investigation
87. On January 2, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to
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promote the ad in Washington, D.C. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset options of those with interests in the “National Association for Bikers with a Disability,” “Disabled American Veterans,” “Disability.gov,” and “Disabled Parking Permit” to exclude from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
88. On January 2, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to promote the ad in Washington, D.C. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset options of those with interests in “Telemundo,” “English as a second language,” and “Univision Deportes” to exclude from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
89. On January 3, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Washington, D.C. market. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, the employee selected the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 500,000 people.
90. On January 3, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Washington, D.C market. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset demographic options of “parents with toddlers (01-02 years), parents with preschoolers (03-05 years), parents with early
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school-age children (06-08 years), and parents with preteens (13-18 years)” to exclude families with young children from the Boost’s potential audience. Facebook estimated that the Boost would reach 1.2 million people.
91. In January 2018 and February 2018, an NFHA employee using a personal Facebook account created multiple ads for fictitious apartments for rent and again used Facebook’s Boost feature to target each ad to the Washington, D.C. market. The employee then used the Facebook Pre-Populated List and the “exclusion” features within Boost to select multiple combinations of the preset demographic options of “parents with toddlers (01-02),” “parents with preschoolers (03-05),” “parents with early school-age children (06-08),” “parents with teenagers (13-18),” “parents with preteens (08-12),” “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” and “moms of preschool kids” to exclude families with young children and mothers from the Boost’s potential audience. In many of these Boosts, and in additional Boosts targeted to the Washington, D.C. market, the employee used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boosts’ potential audience. Facebook estimated that these Boosts would reach anywhere from 58,000 to 580,000 people.
b. Ad Manager Investigation 92. On December 14, 2017, an NFHA employee using a personal Facebook account created an ad using Facebook Ad Manager for a fictitious apartment for rent. The employee selected Washington, D.C. as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employee selected the preset demographic options of “new parents (0-12 months)” and “parents with preschoolers (03-05)” to
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exclude families with young children from the ad’s potential audience. Facebook estimated that the ad would reach 77,000 people.
93. Throughout February 2018, an NFHA employee using a personal Facebook account created additional ads for fictitious apartments for rent using Facebook Ad Manager and again selected Washington, D.C. as the market for the ads to run in. Using the Facebook PrePopulated List and the “exclusions” feature within Ad Manager, the employee selected combinations of the preset options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms” and “moms of preschool kids” to exclude mothers from the ad’s potential audience. In many of these ads and in additional ads targeted to the Washington, D.C. market, the employee used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that these ads would reach anywhere from 48,000 to 820,000 people.
c. Investigation of Other Major Housing Markets 94. In light of its investigation of Facebook’s practices in the Washington, D.C. housing market, NFHA investigated other major housing markets across the United States. 95. On February 1, 2018, an NFHA employee using a personal Facebook account created four ads for fictitious apartments for rent and then used Facebook’s Boost feature to target one ad each to four major markets in different regions of the country. Using the Facebook Pre-Populated List and Boost’s “inclusion” feature, the employee selected the preset interest inclusion option of “no kids” and the present demographic inclusion option of “men” to target for the ad. Using the “exclusions” feature within Boost for each ad, the employee selected the demographic preset options of “corporate moms,” “stay-at-home moms,” “moms of grade school
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kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02),” “parents with preschoolers (03-05),” “parents with early school-age children (06-08),” “parents with teenagers (13-18),” and “parents with preteens (08-12)” to exclude families with young children and mothers from each Boost’s potential audience. Facebook estimated that these four Boosts would reach a total of 463,000 people.
96. Having determined that Facebook had likely developed the same discriminatory content in other major housing markets, NFHA contacted three of its member groups; FHJC, HOPE, and FHCGSA. NFHA provided these groups with training on how to use the Facebook advertising features and conduct a similar investigation. These groups investigated on their own and jointly with NFHA to assess Facebook’s discriminatory practices in their home markets.
2. Facebook’s Discrimination in the New York, New York Housing Market a. Boost Investigation
97. On January 30, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the New York, New York market. Using the Facebook Pre-Populated List and Boost’s “inclusion” and “exclusion” features, the employee selected combinations of (1) the preset interest inclusion option of “no kids” and the present demographic inclusion option of “men” to target for the ad, and (2) the preset demographic exclusion options of “moms of grade school kids,” “moms of high school kids,” “moms of preschool kids” and “stay-at-home moms,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents
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with preteens (08-12 years)” to exclude families with children and mothers from the Boost’s potential audience. Facebook estimated that this Boost would reach 280,000 people.
98. On February 13, 2018, an FHJC employee created a personal Facebook account, created an ad for a fictitious apartment for rent, and then used Facebook’s Boost feature to target the ad to the New York, New York market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the Boost’s potential audience. The employee also used the Facebook PrePopulated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” and thereby exclude women from the Boost’s potential audience. Facebook estimated that the Boost would reach 95,000 people.
99. On February 13, 2018, FHJC employees used a personal Facebook account to create an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the New York City, New York market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List “inclusion” feature within Boost, the employee selected the preset demographic option of “men,” thereby excluding women from the Boosts’ potential audience. Facebook estimated that the Boost would reach 44,000 people.
b. Ad Manager Investigation 100. In February 2018, an NFHA employee using a personal Facebook account created two ads for fictitious apartments for rent, and selected New York, New York as the market for the ads to run in. Using the Facebook Pre-Populated List and Ad Manager’s “exclusions” feature, the employee selected the preset demographic options of “corporate moms,” “stay-at-
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home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children and mothers from the ads’ potential audience. In one of these ads, the employee used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” and thereby exclude women from the ad’s potential audience. Facebook estimated that the ads would reach 80,000 to 10 million people.
101. On February 21, 2018, an FHJC employee using a personal Facebook account created an ad using Facebook Ad Manager for a fictitious apartment for rent. The employee selected New York, New York and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employee selected the preset demographic options of “corporate moms,” “stayat-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children and mothers from the ad’s potential audience. The employee used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” and thereby exclude women from the ad’s potential audience. Facebook estimated that the ad would reach 5 million people.
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102. On February 23, 2018, FHJC and NFHA employees using a personal Facebook account collaborated to create an ad using Facebook Ad Manager for a fictitious apartment for rent. The employees selected New York, New York and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employees selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the ad’s potential audience. Facebook estimated that the ad would reach 5.2 million people.
3. Facebook’s Discrimination in the Miami, Florida Housing Market a. Boost Investigation
103. On February 21, 2018, a HOPE employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the Miami, Florida market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the Boost’s potential audience. The employee also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 450,000 people.
104. On February 21, 2018, a HOPE employee using a personal Facebook account created an additional ad for a fictitious apartment for rent and used Facebook’s Boost feature to
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target the ad to the Miami, Florida market and its surrounding areas within ten miles. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, the employee selected the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach a total of 490,000 people.
b. Ad Manager Investigation 105. On February 12, 2018, an NFHA employee using a personal Facebook account created a fictitious apartment for rent and selected Miami, Florida as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusion” feature within Ad Manager, the employee selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” and “moms of preschool kids” to exclude families with young children and mothers from the ad’s potential audience. The employee also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 200,000 people. 106. On February 21, 2018, a HOPE employee using a personal Facebook account created an ad using Facebook Ad Manager for a fictitious apartment for rent. The employee selected Miami, Florida and its surrounding areas within twenty-five miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employee selected the preset demographic options of “corporate moms,” “stay-athome moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with
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preteens (08-12 years)” to exclude families with young children and mothers from the ad’s potential audience. The employee also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 750,000 people.
107. On February 23, 2018, HOPE and NFHA employees using a personal Facebook account collaborated to create an ad using Facebook Ad Manager for a fictitious apartment for rent. The employees selected Miami, Florida and its surrounding areas within ten miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employees selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early schoolage children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years),” to exclude families with young children from the ad’s potential audience. The employees also used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ad’s potential audience. Facebook estimated that the ad would reach 450,000 people.
108. On February 23, 2018, HOPE and NFHA employees using a personal Facebook account collaborated to create an additional ad using Facebook Ad Manager for fictitious apartments for rent. The employees selected Miami, Florida and its surrounding areas within sixteen miles as the market the markets for the ad to run in. Using the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager, the employees selected the preset demographic option of “men,” thereby excluding women from the ads’ potential audience. Facebook estimated that the ad would reach 2.8 million people.
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4. Facebook’s Discrimination in the San Antonio, Texas Housing Market a. Boost Investigation
109. On February 12, 2018, an NFHA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the San Antonio, Texas market. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset demographic options of “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude families with young children from the Boost’s potential audience. The employee also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 280,000 people.
110. On February 16, 2018, an FHCGSA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to target the ad to the San Antonio, Texas market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “exclusions” feature within Boost, the employee selected the preset demographic options of “corporate moms,” “stay-at-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude mothers and families with young children from the Boost’s potential audience. The employee also used the Facebook Pre-Populated List and the “inclusion” feature within Boost to
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select the preset demographic option of “men,” thereby excluding women from the Boost’s potential audience. Facebook estimated that the Boost would reach 270,000 people.
111. On February 21, 2018, an FHCGSA employee using a personal Facebook account created an ad for a fictitious apartment for rent and then used Facebook’s Boost feature to promote the ad in the San Antonio, Texas market and its surrounding area within ten miles. Using the Facebook Pre-Populated List and the “inclusion” feature within Boost, the employee selected the preset option of “women,” thereby excluding men from the Boost’s potential audience. Facebook estimated that the Boost would reach 330,000 people.
b. Ad Manager Investigation 112. On February 23, 2018, an FHCGSA employee using a personal Facebook account created three ads using Facebook Ad Manager for fictitious apartments for rent. The employee selected San Antonio, Texas and its surrounding areas within ten miles as the market for the ad to run in. Using the Facebook Pre-Populated List and the “exclusions” feature within Ad Manager, the employee selected combinations of the preset options of “corporate moms,” “stayat-home moms,” “moms of grade school kids,” “moms of high school kids,” “fit moms,” “green moms,” “big-city moms,” “trendy moms,” “soccer moms,” “moms of preschool kids,” “parents with toddlers (01-02 years),” “parents with preschoolers (03-05 years),” “parents with early school-age children (06-08 years),” “parents with teenagers (13-18 years),” and “parents with preteens (08-12 years)” to exclude mothers and families with young children from the ad’s potential audience. In two of these ads, the employee used the Facebook Pre-Populated List and the “inclusion” feature within Ad Manager to select the preset demographic option of “men,” thereby excluding women from the ads’ potential audience. Facebook estimated that the ads would reach 340,000, and 440,000 people respectively.
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D. Common Allegations Regarding the Results of Plaintiffs’ Investigation into Facebook’s Discriminatory Housing Advertising
113. Facebook approved all of the Boosts and ads described above in paragraphs 87112 in anywhere from one minute to approximately one hour.
114. After Facebook approved them, all of the Boosts and ads described above in paragraphs 87-112 were removed from Facebook by the respective persons who created them.
115. Facebook’s Advertising Policies do not comply with the Fair Housing Act or with state and local fair housing laws, including in New York.
116. Under the caption “Discriminatory Practices,” Facebook states: “Ads must not discriminate or encourage discrimination against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition.”24
117. This policy misleads Facebook users because, for example, it does not state that there are additional categories of prohibited discrimination in state and local fair housing laws such as marital status, military status, status as a survivor of domestic violence, lawful source of income, including rental subsidies, and others.
118. The policy further misstates the obligations imposed by the FHA because, among other things, it does not explain that indicating a preference or limitation based on a protected characteristic constitutes illegal discrimination and that advertisements that deny information about housing opportunities to particular segments of the housing market violate the FHA.
119. Although Facebook stopped approving housing advertisements that used its “ethnic affinity” option in late 2017, it continues to curate an entire system of discriminatory
24 Facebook, Discriminatory Practices, https://www.facebook.com/policies/ads/prohibited_content/discriminatory_practices# (last visited June 25, 2018).
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advertising—analyzing and repurposing user data to create and develop content created so that advertisers can exclude protected classes from receiving housing ads.
120. Facebook created the Pre-Populated List so that landlords and real estate agents can target certain persons or groups for, and exclude other persons or groups from, receiving housing ads.
121. The vast majority of the categories provided on the Facebook Pre-Populated List are not from data voluntarily given by users. Instead, through its own analysis of user data, Facebook develops and provides these new and salient categories so that landlords and real estate agents can include and exclude people from receiving housing advertisements, including on the basis of family status.
122. Between December 14, 2017 and February 23, 2018, Facebook accepted for publication 40 advertisements from Plaintiffs that excluded potential home seekers on the basis of family status and/or sex.
123. Facebook also uses the data it gathers from its users’ online activity to create “interests” categories for housing advertisements that permit a landlord or real estate firm to exclude users based on disability-related factors (for example, by checking the pre-populated category of “Interest in Disabled Parking Permit”) and national origin (for example, “Interest in Telemundo”).
124. These categories deny information about housing opportunities to persons with disabilities, persons living with or associating with persons with disabilities, and/or persons who are Hispanic or speak Spanish and are more likely to be Hispanic. These Facebook-created “interest” categories are the equivalent of demographic exclusion categories labeled “disability”
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or “Hispanic.” There is no lawful reason for Facebook to create this content so that advertisers can exclude potential audience members for housing ads on these bases.
125. As recently as March 23, 2018, an NFHA employee attempted to “edit” an ad that it created in November 2016 that excluded potential audience members only on the basis of race and national origin. The employee received a message from Facebook stating that “some of the detailed targeting selections you originally used in your Saved Audience are no longer available. They won’t show up in this audience targeting, but the associated ads will still deliver to the original audience. However, you’ll be unable to use these detailed targeting selections if you edit this audience or try running future ads with it.” (emphasis added).
126. Based on this message, it appears that even though Facebook removed discriminatory demographic selections that allowed advertisers to exclude on the basis of race and national origin from the Facebook Pre-Populated List, it still allows previously existing ads that excluded or targeted on these bases to continue to do so.
127. When Facebook users grant Facebook access to their data, they do not authorize Facebook to use that data to discriminate against them on the basis of their protected characteristics, such as their sex, family status, race, national origin, and disability status. By exploiting users’ data in this manner, Facebook transforms the character of the data in a manner to which the users did not consent and could not reasonably foresee.
128. There is no lawful purpose for a housing advertiser to include or exclude a prospective renter from viewing a housing ad on the basis of that renter’s sex, family status, disability status, race, or national origin.
129. By creating the Facebook Pre-Populated List, a database that sorts users by these protected characteristics and allows advertisers to include and exclude its audience members on
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those bases, Facebook materially contributes to ongoing violations of the Fair Housing Act made through its advertising platform.
130. By exploiting user data, gathered from analyzing Facebook users’ activities on Facebook, Instagram, and elsewhere throughout the internet, to create new categories based on these protected characteristics within the Facebook Pre-Populated List, Facebook materially contributes to ongoing violations of the Fair Housing Act made through its advertising platform.
131. By creating and developing algorithms that use data regarding protected characteristics such as sex, familial status, disability, race, and national origin to create “suggested” or “lookalike” audiences for advertisers, Facebook materially contributes to ongoing violations of the Fair Housing Act made through its advertising platform.
132. Plaintiffs’ investigation demonstrates that despite notice from NFHA and other civil rights groups as early as 2016 of its clear violations of the federal Fair Housing Act, Facebook has continued to engage in discriminatory housing advertising practices.
133. Facebook has acted intentionally, willfully, and with reckless disregard of existing federal and local fair housing rights.
HARM TO PLAINTIFFS CAUSED BY FACEBOOK THROUGH DIVERSION OF RESOURCES AND FRUSTRATION OF MISSION 134. Facebook’s discriminatory and unlawful practices have frustrated and continue to frustrate each Plaintiff’s mission of ensuring that all people have equal access to housing opportunities and promoting residential integration across the country, as well as in the New York City, Washington, D.C., Miami, and San Antonio metropolitan areas. 135. In an effort to address and to counteract the effects of Defendant’s discriminatory conduct, prior to the filing of this action, each of the Plaintiffs has diverted resources and staff from other activities to investigate and document Defendant’s policies and practices. Each
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Plaintiff also engaged in public education efforts, prior to this filing, to raise awareness of discriminatory housing advertising practices in the communities each Plaintiff serves.
136. Prior to the filing of this Complaint, NFHA diverted and expended financial resources and staff time to, among other things, design and implement the investigation, including time to train and work with other Plaintiffs on their investigations; review and analyze the investigative results; and conduct legal research and seek legal advice from attorneys.
137. FHJC, HOPE, and FHCGSA each expended staff time and other resources to investigate Defendant’s advertising practices, which diverted staff and resources away from other organizational activities, prior to the filing of this Complaint. Among other things, FHJC, HOPE, and FHCGSA spent time being trained by NFHA to use Facebook’s advertising platform, create a non-existent realty firm, and design and document their efforts to create and place housing advertisements on Facebook.
138. If Facebook had complied with the requirements of the FHA after being informed of them by NFHA, then Plaintiffs would not have devoted considerable staff time and resources to identify the nature and scope of Facebook’s advertising policies and practices.
139. Each Plaintiff’s mission is frustrated when Facebook excludes members of the public from access to housing advertising and information about housing opportunities based on their sex, familial status, disability, race, national origin, or other protected characteristics.
140. Because Facebook’s discriminatory advertising practices alleged in this Complaint violate federal, state, and local fair housing laws, they undermine rather than advance equal housing opportunity and perpetuate the harms of residential segregation.
141. To address and attempt to counteract the effects of Facebook’s discriminatory conduct, prior to the filing of this action, each Plaintiff has engaged in public education
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campaigns to raise public awareness of the problem of discriminatory housing advertising and to educate housing providers about their legal obligations under fair housing laws not to advertise housing for rent or sale in a discriminatory manner.
142. In early 2018, NFHA drafted guidelines for housing advertisers that it posted on its website in English and Spanish with a link to specific information about each state’s fair housing laws, a copy of the HUD fair housing logo for advertisers to use, previously produced public service announcements, and a recorded webinar on discriminatory advertising held by NFHA in April 2017.
143. In early 2018, each Plaintiff expended staff time to develop education campaigns and design advertisements for social media aimed to reach housing providers who place ads and consumers searching for housing in the Washington D.C., New York City, Miami, and San Antonio metropolitan regions. Plaintiffs posted these ads on Facebook and Twitter on an ongoing basis, including translating ads into Spanish.
144. During this same time period, each Plaintiff expended staff time to communicate and coordinate with each other about their individual education campaigns to ensure Plaintiffs were providing a consistent message reaching both housing providers and consumers in each metropolitan area. Each Plaintiff also has expended staff time prior to filing this Complaint to begin to design workshops, a webinar, consumer flyers, and/or fact sheets. Finally, NFHA has begun to contact online education providers who offer courses on using social media for advertising to request that they distribute information about housing advertising guidelines and best practices that comply with fair housing laws.
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145. As a direct and proximate result of Facebook’s discriminatory practices described above, each Plaintiff has suffered and will continue to suffer a diversion of its resources and a frustration of its mission.
FIRST CLAIM FOR RELIEF (Fair Housing Act, 42 U.S.C. § 3604(a), (c), (d), (f): Familial Status, Sex, Disability, Race, and
National Origin Discrimination) 146. Plaintiffs restate and incorporate by reference the preceding paragraphs above as if fully set forth herein. 147. The housing advertised for rent or sale on Facebook using the platform described above are “dwellings” as defined by the Fair Housing Act, 42 U.S.C. § 3602(b). 148. Facebook’s creation of unlawful preset categories on its advertising platform, exploitation of user data to create those categories, and use of those categories to create discriminatory “suggested” or “lookalike” audiences illegally discriminated against, and continues to discriminate against, Plaintiffs by: a. Making unavailable or denying a dwelling to any person because of sex, familial
status, race or national origin. 42 U.S.C. § 3604(a). b. Making, printing, or publishing, or causing to be made, printed, or published any
notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on sex, disability familial status, race or national origin, or an intention to make any such preference, limitation, or discrimination. 42 U.S.C. § 3604(c). c. Representing to any person because of race, color, religion, sex, disability, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. 42 U.S.C.A. § 3604(d).
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d. Making unavailable or denying, a dwelling to any buyer or renter because of a disability of (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter. 42 U.S.C. § 3604(f)(1).
149. Plaintiffs are aggrieved persons as defined by the Fair Housing Act, 42 U.S.C. § 3602(i), and have sustained damages as a direct and proximate result of Defendant’s unlawful discriminatory conduct.
150. Accordingly, under 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
SECOND CLAIM FOR RELIEF (Fair Housing Act, 42 U.S.C. § 3606: Familial Status, Sex, Disability, Race, and National Origin
Discrimination) 151. Plaintiffs restate and incorporate by reference the preceding paragraphs above as if fully set forth herein. 152. The housing advertised for rent or sale on Facebook using the platform described above are “dwellings” as defined by the Fair Housing Act, 42 U.S.C. § 3602(b). 153. Facebook provides a “service . . . relating to the business of selling or renting dwellings” within the meaning of 42 U.S.C. § 3606. 154. Facebook’s creation of unlawful preset categories on its advertising platform, exploitation of user data to create those categories, and use of those categories to create discriminatory “suggested” or “lookalike” audiences illegally discriminated against, and continues to discriminate against, Plaintiffs by “deny[ing] any person access to . . . [Facebook’s] service, organization, or facility relating to the business of selling or renting dwellings,[and] discriminat[ing] against [such persons] in the terms or conditions of such access, membership, or
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participation, on account of race, color, religion, sex, handicap, familial status, or national origin.”
155. Plaintiffs are aggrieved persons as defined by the Fair Housing Act, 42 U.S.C. § 3602(i), and have sustained damages as a direct and proximate result of Defendant’s unlawful discriminatory conduct.
156. Accordingly, under 42 U.S.C. § 3613(c), Plaintiffs are entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
THIRD CLAIM FOR RELIEF (Plaintiffs NFHA and FHJC)
(New York City Human Rights Law: Aiding and Abetting Familial Status and Gender Discrimination)
157. New York City Administrative Code § 8-107(6) declares that it “shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter.”
158. The housing advertised for rent or sale on Facebook using the platform described above are “housing accommodations” as defined by the New York City Human Rights Law, N.Y.C. Admin. Code § 8-102(10).
159. Facebook’s creation of unlawful preset categories on its advertising platform, exploitation of user data to create those categories, and use of those categories to create discriminatory “suggested” or “lookalike” audiences constitutes aiding, abetting, inciting and compelling the doing of acts forbidden under Section 8-107(5)(3) of the New York City Administrative Code, including the “declar[ing], print[ing] or circulat[ing] or caus[ing] to be declared, printed or circulated any statement, advertisement or publication . . . which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or
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alienage or citizenship status, or any lawful source of income, or whether children are, may be, or would be residing with a person, or any intent to make such limitation, specification or discrimination” (emphasis added).
160. Facebook’s creation of these unlawful preset categories on its platform for housing advertisements violated, and continues to violate, Section 8-107(5)(e) by denying persons access to Facebook’s real estate advertisements on the basis of familial status and gender.
161. NFHA and FHJC are “aggrieved persons” as defined in Section 8-502(a) of the New York City Administrative Code, and have suffered damages as a direct and proximate result of Defendant’s discriminatory conduct.
162. Accordingly, under Section 502(a) and (g) of the New York City Administrative Code, NFHA and FHJC are entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment against Defendant as follows: (a) Declaring that Defendant’s discriminatory policies and practices violate the Fair
Housing Act, as amended, 42 U.S.C. § 3601 et seq. and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq.; (b) Enjoining Defendant, Defendant’s subsidiaries, Defendant’s agents, employees, and successors, and all other persons in active concert or participation from:
(i) Denying or withholding housing, or otherwise making housing unavailable on the basis on family status, sex, gender, disability, race, or national origin;
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(ii) Making, printing, or publishing, or causing to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling or a housing accommodation that indicates any preference, limitation, or discrimination based on family status, sex, gender, disability, race, or national origin;
(iii) Representing to any person because of race, color, religion, sex, disability, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available;
(iv) Denying any person access to Facebook’s service, organization, or facility relating to the business of selling or renting dwellings, and discriminating against such persons in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, disability, familial status, or national origin;
(v) Aiding, abetting, inciting, and compelling the doing of acts forbidden under the New York City Human Rights Law, including declaring, printing or circulating or causing to be declared, printed or circulated any statement advertisement or publication which expresses directly or indirectly, any limitation, specification or discrimination as to family status, gender, disability, race, or national origin or any intent to make such limitation, specification or discrimination; and
(vi) Coercing, intimidating, threatening or interfering with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his or her having aided or encouraged any other
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person in the exercise or enjoyment of, any right granted by the Fair Housing Act or New York City Human Rights Law. (c) Enjoining Defendant and its agents, employees, successors, and all other persons in active concert or participation with Defendant to: (i) Make all necessary modifications to Defendant’s policies, practices, and procedures to comply with fair housing laws, including eliminating check boxes, selection categories, and other content created to restrict or limit access to housing advertisements; (ii) Develop a written fair housing advertising policy that is not dependent on self-certification by advertisers and communicate it publicly, as well as to Defendant’s employees and agents; (iii) Train all Defendant’s current and future employees and agents with responsibilities related to the design, implementation, and operation of Defendants’ housing advertising platform on fair housing laws; (iv) Allow monitoring of Defendant’s advertising platform and housing advertisements for multiple years; (v) Retain records to allow for appropriate monitoring by Plaintiffs. (d) Awarding such damages to Plaintiff NFHA as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices; (e) Awarding such damages to Plaintiff FHJC as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices;
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(f) Awarding such damages to Plaintiff HOPE as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices;
(g) Awarding such damages to Plaintiff FHCGSA as will fully compensate it for the diversion of resources and frustration of mission caused by Defendant’s unlawful practices;
(h) Awarding punitive damages to Plaintiffs; (i) Awarding Plaintiffs reasonable attorneys’ fees, costs, and expenses incurred in
prosecuting this action; and (j) Granting Plaintiffs such other and further relief as may be just and proper.

Dated: June 25, 2018 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Diane L. Houk Diane L. Houk Katherine Rosenfeld David S. Berman 600 Fifth Avenue, 10th Floor New York, NY 10020 212-763-5000

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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National Fair Housing Alliance et al v. Facebook, Inc., Docket No. 1:18-cv-02689 (S.D.N.Y. Mar 27, 2018), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Southern District of New York; United States District Court for the Southern District of New York
Civil Rights - Housing/Accomodations[443]
1:18-cv-02689
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 59

 
 SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by and among the National Fair Housing Alliance ("NFHA"), Fair Housing Justice Center, Inc., Housing Opportunities Project for Excellence, Inc., Fair Housing Council of Greater San Antonio (collectively, the "Plaintiffs"), and Facebook, Inc. ("Facebook"). Plaintiffs and Facebook are referred to collectively as the "Parties" and individually as a "Party." Plaintiffs are represented by Emery Celli Brinckerhoff & Abady LLP ("Plaintiffs' Counsel").
I. BACKGROUND
On March 27, 2018, Plaintiffs filed a complaint in the Southern District ofNew York against Facebook alleging that Facebook enables third-party advertisers to discriminate on the basis of race, national origin, sex, disability and familial status through use of audience selection tools in violation ofthe Fair Housing Act and the New York City Human Rights Law. Plaintiffs amended their complaint on June 25,2018.
Facebook filed a motion to transfer venue to the Northern District of California, or alternatively to dismiss Plaintiffs' First Amended Complaint.
The Parties have agreed to resolve Plaintiffs' claims against Facebook as described in this Settlement Agreement and Release and the accompanying Exhibit A - Programmatic Relief.
II. DEFINITIONS
Terms used in this Agreement shall have the meanings specified below and in Exhibit A.
A. "Action" means National Fair Housing Alliance, et al., v. Facebook, Inc., Case No. 18-cv-02689-JGK, pending in the United States District Court for the Southern District of New York.
B. "Audience Selection Tools" means tools that exist on or before the Effective Date and during the Term of the Agreement by which advertisers select the potential audience for advertisements in Ad Creation Flows.
C. "Effective Date" means the date last executed by any Party as set forth next to the signature of the authorized representative of each Party below.
D. "HEC Advertisements" means Housing Advertisements, Employment Advertisements, and Credit Advertisements as defined in Exhibit A.
E. "HEC Flow Implementation Date" means the date on which advertisers may create HEC Advertisements through the HEC Flow.
F. "Term" means the period that is three (3) years from the Housing Flow Implementation Date.

III. PROGRAMMATIC RELIEF
A. The Parties agree to the programmatic relief set forth in Exhibit A to this Agreement as they apply to Housing Advertisements. For avoidance of doubt, this agreement does not create any obligations between the Parties with respect to Employment Advertisements or Credit Advertisements, except to the extent that Credit Advertisements also falls within the definition of a Housing Advertisement.
IV. TRAINING
A. Facebook will develop and administer training on civil rights laws as they relate to Housing Advertisements to the following Facebook employee groups: Ads Leadership Team, Regulated Ads Solutions, Mega-Taxonomy/Content Understanding Team, Machine Learning Team in BI, Ranking Feature Engineers, Ads Policy, and Advertising Product Counsel. Facebook and NFHA will work in an interactive process to develop the training materials and program.
B. Facebook and NFHA will hold an initial planning meeting by phone or in person within sixty (60) days of the Effective Date ofthis Agreement. Facebook will provide a draft of its proposed training curriculum, manual, and training materials to NFHA for review, comment and discussion and will provide NFHA with a copy of the final training materials prior to providing the training to its employees based upon a timeline agreed to during the initial planning meeting.
C. Facebook will administer the training to current employees in the groups identified above within six (6) months of the Effective Date of this Agreement. For new employees hired into those groups during the Term of the Agreement, Facebook will administer the training within sixty (60) days of hire.
D. During the Term of the Agreement, either Facebook or NFHA may propose changes to the training that may be appropriate due to changed circumstances, such as changes in applicable laws or advertising services provided by Facebook. Facebook and NFHA agree to provide the other party with the proposed revisions in writing and an opportunity to comment. Facebook and NFHA agree to discuss in good faith any proposed revisions.
V. DISMISSAL, CONTINUING JURISDICTION AND COORDINATED COMMUNICATIONS
A. On the Effective Date, Plaintiffs will file a motion seeking to reopen the Action for the limited purpose of seeking a dismissal order that maintains continuing jurisdiction in the United States District Court for the Southern District of New York to enforce the Agreement. The Parties will file a stipulated motion and proposed order seeking that relief, substantially in the form attached hereto as Exhibit B.
B. The Parties agree that dismissal of the Action by the court with continuing jurisdiction to enforce the Agreement are material terms of this Agreement. Ifthe Action is not dismissed by the court with continuing jurisdiction for any reason within thirty (30) days of the Effective Date, the Agreement will be deemed null and void ab initio. In that event, the Action
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will revert to the status that existed as of the Effective Date, and no term or draft of this Agreement, nor any part of the Parties' settlement discussions or communications, will be admissible or used as evidence or argument by any Party for any purpose in the Action or any other proceeding. The Parties may extend by mutual written agreement the 30-day period described in the second sentence of this Section.
VI. MONETARY RELIEF
A. Payment. Facebook agrees to pay the total sum of one million, nine hundred fifty thousand and no cents ($1 ,950,000.00) to Plaintiffs for alleged damages and expenses for (a) diversion of Plaintiffs' resources; (b) frustration of Plaintiffs' mission by funding training for housing advertisers on how social media, including online advertising platforms, can be used by advertisers consistent with their obligations under fair housing/fair lending laws; programming for NFHA member organizations to promote fair housing using social media; and implementing compliance, training, and other activities described in Exhibit A; and (c) attorneys' fees and costs ("Payment").
B. Advertising. Facebook will provide five hundred thousand dollars ($500,000) in credit to the Plaintiffs for advertising on Facebook to promote (1) educational programs such as information on consumer fair housing rights and housing industry fair housing responsibilities, fair housing/fair lending workshops, trainings and conferences; publication of reports on fair housing/fair lending issues;, and other educational activities; and (2) services, such as first-time homebuyer clinics, foreclosure prevention counseling, housing discrimination complaint intake, and landlord/tenant hotlines ("Advertising Credit").
C. Payment/Advertising Terms. Within twenty one (21) days of dismissal of the Action by the court and Facebook's receipt ofthe necessary W-9 forms, Facebook shall (1) initiate a wire transfer of the Payment to the Emery Celli Brinckerhoff & Abady Attorney Trust Account; and (2) make available the Advertising Credit. Plaintiffs' Counsel will provide Facebook with the account information needed to transfer the Payment within five (5) days of the dismissal.
D. Distribution of Payment. Plaintiffs' Counsel shall be solely responsible for apportionment and distribution of the Payment among Plaintiffs and Plaintiffs' Counsel.
E. No Further Payments. Plaintiffs and Plaintiffs' Counsel waive any rights to seek any further payment for attorney's fees or costs from Facebook of any kind incurred in connection with the Action, including, but not limited to, those that have been, or may be, incurred in entering into this Agreement, verification of implementation as set forth in Section VIII below, and enforcing, if necessary, the terms of this Agreement.
VII. VERIFICATION OF IMPLEMENTATION
A. Testing. During the Term of this Agreement, Plaintiffs will be permitted to place test ads for the purpose of evaluating implementation of the Agreement. Facebook agrees to waive any claims it may have against Plaintiffs under Facebook's policies for creating test ads, subject to Plaintiffs' agreement to take steps to ensure that such ads are not published to users,
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e.g., setting a publication date at least two (2) weeks from the date a test ad is created to allow time to cancel it.

B. Meetings. During the Term of this Agreement, Facebook and NFHA will meet every six (6) months to discuss implementation of the Agreement. At least fifteen (15) days in
advance of those meetings, Facebook will provide NFHA with a report describing steps Facebook has taken to implement the Agreement and identifying any issues. As part of that report, Facebook will provide NFHA with a list of targeting options to be added to the HEC Flow. NFHA will have an opportunity to review the list prior to each meeting and to notify Facebook of any objections. In addition, NFHA may propose targeting options to be added to the HEC Flow by providing Facebook with a list ofterms at least fifteen (15) days in advance of the meetings. Facebook will consider in good faith any such terms and discuss them with NFHA at the meetings. Facebook will provide NFHA with information that is reasonably necessary to confirm implementation of the Agreement. For clarity, this includes, for example, information confirming what audience selection tools are available in the HEC Flow, not how those audience selection tools are used. With respect to the modified Lookalike Audience tool, Facebook agrees to study how it impacts delivery of ads created in the HEC Flow with respect to gender and to discuss the study and any potential modifications of the tool at the meetings. Facebook also agrees to consider the potential for unintended bias with respect to the modified Lookalike Audience tool more generally. At the meetings, Facebook will share the status of those efforts, provide NFHA with an opportunity to respond and make recommendations, and consider those
recommendations and whether to implement any feasible reforms as part of its ongoing
commitment to nondiscrimination in advertising on its platform.

C.

Confidentiality. Any written or oral information exchanged by the Parties

during the Term of this Agreement regarding Verification oflmplementation that one ofthe

Parties identifies as confidential shall be treated as confidential by the Parties to encourage frank

and open discussions between the Parties, except to the extent it is necessary for any of the

Parties to disclose confidential information in any dispute resolution undertaken pursuant to

Section X. Information designated confidential by any Party pursuant to this Section shall be

treated as such in any dispute resolution process, including by seeking the Court's permission to

file it under seal in any proceeding before the Southern District ofNew York.

VIII. MUTUAL GENERAL RELEASES

A. Plaintiffs' General Release of Facebook. In consideration of the promises
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Plaintiffs, on behalf of themselves, on behalf of all entities that are or were owned or controlled by Plaintiffs on or before the Effective Date, and on behalf of all of the respective heirs, executors, administrators, agents, directors, officers, predecessors, successors and assigns of all of the foregoing ("Plaintiffs Releasing Parties"), hereby fully, forever, and irrevocably release, waive, extinguish, and discharge Facebook and all entities that are or were owned and/or controlled by Facebook on or before the Effective Date, all of the respective past, present, and future officers, directors, employees, agents, principals, shareholders, and owners, and all of the respective heirs, executors, administrators, agents, predecessors, successors, and assigns of all of the foregoing ("Facebook Released Parties"), from any and all claims, causes of action, liability, charges, complaints, demands, or rights of recovery of any nature, type or

4

description whatsoever, whether legal, equitable, or statutory, asserted or unasserted, contingent or vested, express or implied, known or unknown, foreseen or unforeseen, suspected or unsuspected, accrued or unaccrued, liquidated or unliquidated, direct or indirect, that Plaintiffs had, now have, or may have, from the beginning of time through the Term of this Agreement, arising out of or relating to Audience Selection Tools, including but not limited to any and all claims, causes of action, charges, complaints, demands, or rights of recovery of any nature, type, or description whatsoever under the federal Fair Housing Act, 42 U.S.C. § 3601 et seq.; the New York City Human Rights Law, N.Y. City Admin. Code§ 8-107; and similar federal and state anti-discrimination laws ("Plaintiffs Released Claims"). Plaintiffs Released Claims do not include any claims Plaintiffs may have against third parties and do not impact the Parties' right to enforce this Agreement in accordance with the terms set forth in Section X below.
B. Plaintiffs' Covenant Not To Sue. Plaintiffs, on behalf of themselves and the other Plaintiff Releasing Parties, expressly covenant and agree to forever refrain from instituting, prosecuting, or continuing to maintain or prosecute any suit, action, complaint, or charge involving any court or administrative agency against the Facebook Released Parties in any way relating to the Plaintiffs Released Claims. Nothing in this Section shall be construed to limit the scope of the dispute resolution process set forth and described in Section X below.
C. Facebook's General Release of Plaintiffs. Facebook, on behalf of itself, on behalf of all entities that are or were owned or controlled by Facebook on or before the Effective Date, and on behalf of all of the respective heirs, executors, administrators, agents, directors, officers, predecessors, successors and assigns of all of the foregoing ("Facebook Releasing Parties"), hereby fully, forever, and irrevocably release, waive, extinguish, and discharge Plaintiffs and all entities that are or were owned and/or controlled by Plaintiffs on or before the Effective Date, all of the respective past, present, and future officers, directors, employees, agents, principals, shareholders, and owners, and all of the respective heirs, executors, administrators, agents, predecessors, successors, and assigns of all of the foregoing ("Plaintiffs Released Parties"), from any and all claims, causes of action, liability, charges, complaints, demands, and rights of recovery of any nature, type, or description whatsoever, whether legal, equitable, or statutory, asserted or unasserted, contingent or vested, express or implied, known or unknown, foreseen or unforeseen, suspected or unsuspected, accrued or unaccrued, liquidated or unliquidated, direct or indirect, that Facebook had, now have, or may have, from the beginning of time through the Term of this Agreement, arising out of or relating to Audience Selection Tools ("Facebook Released Claims"). Facebook Released Claims do not include any claims Facebook may have against third parties and do not impact the Parties' right to enforce this Agreement in accordance with the terms set forth in Section X below.
D. Facebook's Covenant Not To Sue. Facebook, on behalf of itself and the other Facebook Releasing Parties, expressly covenants and agrees to forever refrain from instituting, prosecuting, or continuing to maintain or prosecute any suit, action, complaint or charge involving any court or administrative agency against the Plaintiffs Released Parties in any way relating to the Facebook Released Claims. Nothing in this paragraph shall be construed to limit the scope of the dispute resolution process set forth and described in Section X below.
5

IX. ACKNOWLEDGMENT AND WAIVER OF UNKNOWN CLAIMS
A. Plaintiffs and Facebook each acknowledge that subsequent to the execution of this Agreement they may discover facts or claims in addition to or different from those they now know or believe exist with respect to any of the matters being released through this Agreement, including, but not limited to, Audience Selection Tools, which were unknown or unsuspected at the time this Agreement was executed, and which if known or suspected by them at that time may have materially affected their decision to enter into this Agreement. Each of Plaintiffs and Facebook each nevertheless agrees that the releases described above in Section VIII apply to any such additional or different claims and notwithstanding any such additional or different facts. Each of Plaintiffs and Facebook acknowledges that the significance and consequences of the releases in this Agreement have been explained to them by their counsel and that they understand the significance and consequences of the releases in this Agreement. Nothing in this paragraph shall be construed to expand the scope of the Releases set forth and described in Section VIII above.
B. Plaintiffs and Facebook each acknowledge that they have been advised of and expressly waives and releases any rights or benefits they may have under Section 1542 ofthe Civil Code of California that provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
C. Plaintiffs and Facebook each further expressly waives and releases any rights or benefits they have or may have under any similar law or rule of any other jurisdiction pertaining to the matters released herein.
X. DISPUTE RESOLUTION
A. Any disputes regarding the interpretation, implementation, or violation of the Agreement shall be resolved as described in this Section.
B. Plaintiffs will notify Facebook in writing if they believe that Facebook is not in compliance with any term of the Agreement and allow Facebook at least sixty (60) days from Facebook's receipt of any such written notice to cure. As part of the sixty (60) day notice and opportunity to cure time period, Plaintiffs and Facebook will meet and confer in good faith and attempt to resolve the matter. It is the intent ofthe Parties to collaborate in good faith to resolve any disputes that may arise between them.
C. If the Parties cannot resolve the dispute, it will be mediated by Hunter Hughes III or another mediator who is mutually agreeable to the Parties. Any mediation will take place in New York or Washington D.C. with Facebook to pay the mediator' s fee.
6

D. If the dispute cannot be resolved through mediation, any Party may bring the dispute before the United States District Court for the Southern District ofNew York, which will retain jurisdiction over the Action for the purpose of enforcing the Agreement.
E. The Parties will pay their own attorney's fees and costs.
XI. NO ADMISSION OF LIABILITY
A. Plaintiffs acknowledge that Facebook denies any and all wrongdoing or liability.
B. Plaintiffs further acknowledge that this Agreement is not an admission by Facebook of any wrongdoing or liability, and that the Parties will not argue in or before any court, administrative agency, or other tribunal, or make any public statement whatsoever, that this Agreement is or may be construed as an admission by Facebook of any wrongdoing or liability.
XII. MISCELLANEOUS
A. Authority. Plaintiffs and Facebook represent and warrant that they have the right and authority to enter into this Agreement and to give the releases and other promises contained in this Agreement.
B. No Other Actions. Plaintiffs represent and warrant that, other than the Action, they have not filed as a plaintiff or complainant any suit, action, complaint, or charge against the Facebook Released Parties as a defendant or respondent involving any court or governmental agency arising out of or relating to in any way to the Plaintiffs Released Claims.
C. Integration. Plaintiffs and Facebook acknowledge and agree that this Agreement constitutes the entire agreement between the Parties and supersedes any and all discussions, agreements, or understandings, whether oral, written or implied, regarding the subject matter of this Agreement. Plaintiffs and Facebook further acknowledge and agree that they have had the benefit of the advice of their respective chosen counsel and financial and tax advisors in connection with the negotiation of this Agreement.
D. Disclaimer of Reliance. Plaintiffs and Facebook represent and warrant that no statement, communication, promise, representation, inducement, or condition that is not expressed in this Agreement has been made by Facebook to Plaintiffs, or by Plaintiffs to Facebook, in connection with this Agreement. Plaintiffs and Facebook further represent and warrant that they are not relying on, and expressly disclaim reliance on, any statement, communication, promise, representation, inducement, or condition that does not appear in this Agreement.
E. Representation by Counsel. Plaintiffs and Facebook represent and warrant that they have each been represented by independent counsel of their own choice throughout all of the negotiations and drafting which preceded and resulted in the execution of this Agreement, and that they are relying solely upon their own judgment in entering into this Agreement.
7

F. Modification. This Agreement may not be modified or amended except by an instrument in a writing that specifically states that it is a supplement, modification, or amendment to this Agreement and is signed by an authorized representative of all of the Parties.

G. Headings. Plaintiffs and Facebook acknowledge and agree that the section headings in this Agreement are used for convenience only and will not be used in construing the
Agreement.

H. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

I.

Construction. The drafting and preparation of this Agreement is the result of the

efforts of all of the Parties and their respective counsel, and the language of all parts of this

Agreement shall in all instances be constructed as a whole, according to its fair meaning, and not

strictly for or against any Party. Accordingly, no rule of construction to the effect that any

ambiguities are to be resolved against the drafting party shall be employed in the interpretation

of this Agreement.

J.

Severability. If any part or provision of this Agreement shall for any reason be

determined to be invalid or unenforceable under applicable law, that part or provision shall be

ineffective to the extent of such invalidity or unenforceability only, without in any way affecting

the validity or enforceability of the remaining terms in that part or provision or of any other part

of provision of the Agreement.

K. No Third-Party Beneficiaries. The Parties do not intend to create any third party beneficiaries to this Agreement. Except for agents, officers, directors, trustees, assigns, subsidiaries, and predecessor or successor companies, no person or entity other than the Parties is
intended to be bound by, or shall be bound by, the provisions of the Agreement.

L. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together will be deemed an original ofthe Agreement. Facsimile and scanned (e.g., PDF) signatures will be deemed valid and
effective for all purposes.

M. Taxes. Plaintiffs and Facebook each acknowledge and agree that they have not made any representations to each other with respect to the tax effects, if any, of this Agreement, and that each shall be solely responsible for the tax liability, if any, arising from this Agreement, including without limitation with respect to the Payment described in Section VI above.

N. Notices. Unless otherwise designated by a Party in writing, any notice relating to this Agreement shall be made in writing both by electronic mail and by next-day (excluding Saturday and Sunday) express delivery service, and shall be addressed as follows:

For Plaintiffs:

Lisa Rice President & CEO National Fair Housing Alliance 1331 Pennsylvania Ave., NW, Suite 650 Washington, DC 20018

8

For Defendant:

202-898-1661 LisaRice@NationalFairHousing.org
Morgan Williams General Counsel National Fair Housing Alliance 1331 Pennsylvania Ave., NW Suite 650 Washington, DC 20018 202-898-1661 Morgan Williams@NationalFairHousing.org
Keenya Robertson President & CEO Housing Opportunities Project for Excellence (HOPE), Inc 11501 NW 2nd Avenue Miami, FL 33168 305-651-4673 Keenya@hopefhc.com
Executive Director Fair Housing Justice Center 30-30 Northern Boulevard, Suite 302 Long Island City, New York 111 01 (212) 400-8231 fhj c@fairhousingj ustice.org
Sandra Tamez Executive Director Fair Housing Council of Greater San Antonio 4414 Centerview Drive, Suite 229 San Antonio, Texas 78228 (210) 733-3247 sandra@myfairhousing.org
Natalie Naugle Associate General Counsel, Litigation Facebook, Inc. 181 Fremont Street San Francisco, CA 94105 nnaugl e@fb.com
Rosemarie T. Ring Munger, Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 rose.ring@mto.com
9

IN WITNESS OF THIS AGREEMENT, the Wldersigned have executed this Agreement on the date shown below.

lf__, Dated: March

2019

National Fair Housing Alliance
By: Ayeo· (\ cfi
Name L1sa Rice Title President and Chief Executive Officer

Dated: March _ _, 2019

Fair Housing Justice Center, Inc.

By: ___________________________
Name Title

Dated: March ____, 2019

Housing Opportunities Project for Excellence, Inc.

By: _____ _ __ ________
Name Title

Dated: March ____, 2019

Fair Housing Council of Greater San Antonio

By: ___________________________
Name Title

Dated: March ___, 2019

Facebook, Inc.

By: _______________________
Name Title

10

IN WITNESS OF THIS AGREEMENT, the undersigned have executed this Agreement on the date shown below.

Dated: March _ _, 2019
Dated: March J? , 2019

National Fair Housing Alliance
By: ___________________________
Name Title
Fair Housing Justice Center, Inc.

Dated: March _ _, 2019 Dated: March ___, 2019 Dated: March ___, 2019

Housing Opportunities Project for Excellence, Inc.
By: _ __ _ _ _ _ _ _ _______
Name Title
Fair Housing Council of Greater San Antonio
By: ___________________________
Name Title
Facebook, Inc.
By: ___________________________
Name Title

10

IN WITNESS OF THIS AGREEMENT, the undersigned have executed this Agreement on the date shown below.

Dated: March _ _, 2019

National Fair Housing Alliance
By: ________________________
Name Title

Dated: March _ _, 2019
Dated: March J$L.I}.o 19

Fair Housing Justice Center, Inc.
By: __________________________
Name Title
Housing Opportunities Project for Excellence lnc.

Dated: March ___, 2019 Dated: March _ _, 2019

Fair Housing Council of Greater San Antonio
By: __________________________
Name
Title
Facebook, Inc.
By: __________________________
Name Title

10

IN WITNESS OF THIS AGREEMENT, the undersigned have executed this Agreement on the date shown below.

Dated: March _ _, 2019 Dated: March _ _, 2019 Dated: March ___, 2019
Dated: March ---J%_, 2019

National Fair Housing Alliance
By: _ _ _ _______ _ ____ _
Name Title
Fair Housing Justice Center, Inc.
By: ___________________________
Name Title
Housing Opportunities Project for Excellence, Inc.
By: ___ _ __________ __ _ _
Name Title
Fair Housing Council of Greater San Antonio

Dated: March ___, 2019

By: ~~~--~~~------~~~~ Nam Title
Facebook, Inc.
By: _________________ ____
Name Title

10

Dated: March _ _, 2019 Dated: March _ _, 2019 Dated: March~, 2019

By: __________________________
Name Title

Housing Opportunities Project for Excellence, Inc.

By: __________________________
Name Title

Fair Housing Council of Greater San Antonio

By: __________________________
Name Title

Facebook, Inc.

By: p;,...e_~ ·~ /
Name f'A'U&--.S · Go (J.ev.r .A:L-
Title "~~ ffil-BS i~E::~ -r-
SJ~~~ ~t.J:i- ~

~Mst=l,--

10

APPROVED AS TO FORM BY COUNSEL:
Dated: March ll_, 2019

EMERY CELLI BRINCKERHOFF & ABADYLLP Attorneys for Plaintiffs
By: ~c:<.~
Diane L. Houk Katherine Rosenfeld David Berman

Dated: March _ _, 2019

MUNGER, TOLLES & OLSON LLP Attorneys for Facebook, Inc.

By: ______ _ _ _ _ _ _ ____
Rosemarie T. Ring Jonathan H. Blavin Elizabeth A. Kim

11

AI•PRO\'Eil AS TO FOI{I\·1 BY COUNSEL:

Dat~d: 1\lan:h _ _• 2019

EMERY CELLI BRI:'\!CKERHOFF & ABADY LLP Attorneys for Plaintiffs

Dated: March ___li_. 2019

B y : - - - - -- - - - - -- Diane L. Houk Katherine Rosenfeld David Berman
MUNGER. TOLLES & OLSO~ LLP Attorneys for Facebook. Inc.
By: 1{~421?0-[-
Rosemaric T. Ring Jonathan II. Blavin Elizabeth A. Kim

11