Where Was the Board? – Music Technology Policy

Every now and then you see one of those cases that makes you say which idiot thought it was a good idea to litigate this catastrophe rather than settle?

Two juries—on opposite sides of the country—have now said something the tech industry has spent years denying.

Their business model is not neutral.  Which, of course, leaves the question of which executives decided to devote billions to these corrupt business models and which board members approved it—or didn’t raise their hand.

The Los Angeles Verdict: Negligent Design as a Feature, Not a Bug

In Los Angeles County Superior Court, a jury found that Meta Platforms and Alphabet Inc. (through YouTube) were liable for negligent design and failure to warn in a youth social media addiction case.  In the Los Angeles case, the minor plaintiff suffered severe psychological harm linked to compulsive social media use, including anxiety, depression, and self-harm behaviors. The jury found that platform design features amplified addictive engagement, exposing the child (plaintiff) to harmful content and contributing substantially to a decline in mental health and overall well-being.

The case proceeded as a product design defect claim, focusing on platform architecture rather than third-party content. By targeting addictive features, recommendation systems, and engagement mechanics, the plaintiff avoided Section 230 of the Communications Decency Act immunity. The jury agreed the harm arose from design choices, not merely user-generated content.

The verdict in the Meta and Google social media litigation was not close. It was comprehensive, and it was decisive.

The jury did not hedge, split the baby, or carve out partial liability. Instead, it answered “yes” to every liability question for both companies, and they did so by a 10–2 vote across the board. That alone is significant. In complex product design cases—especially those involving technology platforms—juries often fracture on causation, duty, or foreseeability. That did not happen here.

The structure of the verdict form matters.

On the core negligence questions, the jury was asked—separately for each company—whether:

• the platform was negligently designed,
• whether the company knew or should have known of the risks,
• whether it failed to adequately warn users, and
• whether that design was a substantial factor in causing harm to the minor plaintiff.

On each of those questions, the answer was yes, by a 10–2 vote, for both Meta Platforms, Inc. and Google LLC. (In California civil jury cases, a verdict requires agreement by at least nine of twelve jurors; unanimity is not required.) And the subtext was when they said “company” they meant senior executives and board of directors.

That is not just a finding of liability. It is a finding that the harm was not incidental to the platforms—it was structurally connected to how they were designed and operated.

The jury also found that both companies failed to provide adequate warnings despite awareness of risks associated with compulsive use and harm to minors. Again, not a close call: 10–2.

Then comes causation, which is often the hardest hurdle in these cases. The jury found that the design of each platform was a substantial factor in causing the plaintiff’s harm—again, 10–2. That finding collapses the usual defense argument that harm is too attenuated, user-driven, or the result of third-party content. The jury rejected that framing outright.

On damages, the pattern continued.

The jury awarded $3 million in compensatory damages, with a 9–3 vote—still a clear supermajority, though slightly more divided than liability. It then allocated fault 70% to Meta and 30% to Google, signaling that while both companies were liable, the jury viewed Meta’s design choices as the more significant contributor to the harm.

Finally, the jury crossed the line that matters most for deterrence: it awarded $3 million in punitive damages after finding that the conduct of the defendants amounted to malice, oppression, or fraud. That finding is not automatic; it reflects a conclusion that the conduct went beyond negligence into something closer to conscious disregard of known risks.

Taken together, the verdict form reads less like a narrow product-liability determination and more like a systemic indictment of platform design.

Every major defense theory was tested—and rejected:

• that the platforms are passive intermediaries,
• that user behavior breaks the chain of causation,
• that harms are speculative or individualized, and
• that warnings or user controls are sufficient.

The jury instead accepted a very different theory: that engagement-driven design, when combined with known risks to minors, can itself constitute a defective product.

And importantly, the vote margins matter. This was not a 7–5 or 8–4 split where reasonable jurors disagreed at the margins. A 10–2 liability finding across every question signals something closer to consensus: that the design of these systems, as presented in evidence, crossed a line.

That is what makes this verdict more than just a damages award. It is a signal—to courts, to regulators, and to other juries—that the architecture of social media platforms is now fair game for traditional tort analysis, including negligence, failure to warn, and punitive liability.

While the $3 million punitive award may seem modest relative to the vast resources of Meta Platforms, Inc. and Google LLC, its restraint may enhance durability. More measured punitive damages are less likely to be reduced or overturned on appeal than an outsized, headline-grabbing award.  And the larger threat to Meta and Google is not this one damages award in isolation. It is that a thoughtful jury, presented with the evidence, accepted the core design-defect theory. That gives real momentum to the thousands of related social media cases waiting in the wings, because plaintiffs can now point to a live verdict showing that ordinary jurors are willing to find negligent design, causation, and punitive liability on these facts.

Crucially then, this was not a narrow ruling about a rogue feature. It was a jury determination that core product design—engagement-driven, retention-maximizing architecture—can itself be tortious when deployed against minors without adequate safeguards.  And these companies did these awful things for the same reason that Willie Sutton robbed banks—because that’s where the money is.

The New Mexico Verdict: When “Engagement” Meets Exploitation

Days earlier, a New Mexico jury delivered a sweeping verdict against Meta Platforms, Inc., finding that the company violated state consumer protection law by misleading users—particularly parents and minors—about the safety of its platforms while enabling child sexual exploitation at scale.

The structure of the case mattered as much as the outcome. Like the Los Angeles case, rather than framing the harm as arising from third-party content alone, the state built its claims around Meta’s own representations and product design choices. The jury heard evidence about recommendation systems, engagement mechanics, and safety features that were either ineffective or inconsistently enforced. The focus was not just on what appeared on the platforms, but on how the platforms were built to surface, amplify, or fail to prevent harmful interactions.

That framing was critical to navigating around Section 230 of the Communications Decency Act. By grounding liability in deceptive practices and system design—rather than treating Meta as a passive host of user content—the case avoided the core premise of Section 230 immunity. The question for the jury was not whether Meta published harmful content created by others, but whether Meta itself (i.e., Meta executives) misled users about safety while deploying systems that foreseeably facilitated harm.

The verdict reflects that distinction. The jury found that Meta’s conduct constituted unfair or deceptive practices, and imposed $375 million in penalties, tied to tens of thousands of statutory violations by bad guys. This was not a generalized condemnation of social media. It was a targeted finding that the company’s own conduct—its design, its representations, and its safeguards—fell short of legal obligations to users.

Most importantly, the case establishes something larger than the penalty amount. It is a judicial finding that the system itself—not just isolated bad actors—facilitated exploitation while simultaneously presenting itself as safe. That combination—design plus misrepresentation—is what made the theory work, and it is what may make the verdict consequential well beyond New Mexico and for companies well beyond Meta.

Just because Google wasn’t in the New Mexico case means exactly nothing.  We don’t know for certain from the public record, but it would make sense that the case was deliberately structured around Meta-specific evidence and platform conduct. A narrower, cleaner theory allows a state to test core liability arguments, build precedent, and avoid the complexity and dilution that comes with multiple defendants.  Google could be next, especially after the LA case.  Google, TikTok & Co. could be next.

The MDL: The Bigger Case Still Coming

These cases sit within a much larger litigation structure that I wrote about before: the federal social media addiction multidistrict litigation, centralized as In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation. That MDL consolidates hundreds of cases filed by states, school districts, and individual plaintiffs against platforms including Meta Platforms, Inc., Google LLC, and others, all advancing variations of a common theory: that platform design—particularly recommendation systems and engagement features—has caused measurable harm to minors.

The scale matters. This is not a single lawsuit or even a coordinated handful of actions. It is a mass tort structure, designed to aggregate discovery, align legal theories, and create efficiency in pretrial proceedings while preserving individual claims. The MDL allows plaintiffs to share evidence about internal design decisions, safety research, and corporate knowledge across cases, dramatically increasing leverage and reducing duplication.

Within that structure, the Los Angeles trial functioned as a bellwether—a test case intended to provide an early read on how juries respond to the core allegations. Bellwether trials are not binding on other plaintiffs, but they are enormously influential. They answer practical questions that motions practice cannot:

• Will juries accept design-defect theories applied to social media?
• Do they view platform architecture—not just content—as the source of harm?
• Are they willing to find causation and award punitive damages?

The LA verdict provides an early answer: yes. A jury was willing to treat these platforms as products, evaluate their design, and assign liability based on how they function—not merely what users post.

That has immediate consequences across the MDL. First, it reshapes settlement dynamics. Defendants now face not just theoretical exposure, but a demonstrated willingness by juries to find liability on the core claims. Second, it provides a roadmap for other plaintiffs—what evidence resonates, how to frame causation, and how to position the case to avoid defenses like Section 230 of the Communications Decency Act. Third, it increases pressure on courts overseeing the MDL to move additional cases toward trial, accelerating the overall timeline.

In mass torts, a single bellwether does not decide the litigation—but it can change its trajectory. Here, the LA trial signals that these cases are not just surviving motions to dismiss; they are trial-ready claims capable of persuading juries. That is the inflection point where MDLs often shift from prolonged litigation into serious global settlement discussions.

The MDL also invites comparison to the tobacco litigation, and not just because of its size. In both settings, the core allegation is that companies engineered products and business systems around dependence while publicly minimizing or denying the resulting harms. Tobacco litigation turned in part on evidence that manufacturers understood addiction, optimized for it, and then framed the problem as one of individual choice. The social media MDL follows a similar arc. Plaintiffs argue that platforms studied compulsive use, designed for maximum engagement, understood the vulnerability of younger users, and nonetheless continued to deploy features that intensified use while presenting themselves as safe or manageable.

The analogy is not perfect. Cigarettes are physical products with direct physiological effects, while social media platforms are digital systems shaped by algorithms, content flows, and network effects. Causation is therefore more complex in the social media context, and defendants have argued and will continue to argue that intervening factors—third-party content, family environment, preexisting conditions, and independent user decisions—make the comparison inapt. Even so, the broader litigation structure feels familiar. As with tobacco, the cases are building toward a record about what the companies knew, when they knew it, how they measured user dependence, and whether safety rhetoric masked a business model built on keeping users, including minors, engaged for as long as possible.

There is also a remedial parallel. The tobacco cases evolved from isolated suits into a broader public and institutional reckoning once plaintiffs, states, and other public actors began aggregating claims and exposing internal documents. The social media MDL has some of that same dynamic. States, school districts, and private plaintiffs are not merely seeking compensation for individual injuries; they are trying to establish that the harms are systemic, foreseeable, and tied to product architecture rather than bad luck or bad parenting. That is why the bellwether matters. A jury verdict accepting negligent design and failure-to-warn theories does not just increase settlement pressure in the ordinary sense. It raises the possibility that these cases could mature into a larger accountability model—one in which the platforms are treated less like neutral conduits and more like companies that built dependency into the product and externalized the costs onto children, families, schools, and the public.

So Where Was the Board?

These are not startups. They are mature, publicly traded companies—Meta Platforms, Inc. and Alphabet Inc.—with boards of directors, audit and risk committees, internal reporting systems, and access to extensive data about user behavior and harm. They have governance structures designed, at least in theory, to surface risks, oversee management, and intervene when business practices cross legal or ethical lines.

So the question is not abstract. It is concrete: where was the board?

We have seen this movie before. When Google LLC entered into a $500,000,000 non-prosecution agreement with the U.S. Department of Justice over its role in facilitating the illegal sale of prescription drugs through advertising, that event did not end with a regulatory settlement. It triggered shareholder derivative litigation alleging that the company’s directors and officers failed in their oversight duties—so-called Caremark claims. Those claims gained traction because the underlying conduct suggested not just isolated mistakes, but systemic failures in compliance and risk monitoring at the board level.

That precedent matters here. In the social media cases, plaintiffs are building a record that:

• companies possessed internal data on harms to minors,
• understood the effects of engagement-driven design, and
• continued to deploy and refine those systems while representing their platforms as safe.

If those allegations are credited—as at least one jury has now begun to do—then the issue is no longer just product liability or consumer protection. It becomes a corporate governance question.

Boards are not passive observers. Under Delaware law and related fiduciary principles, they have a duty to:

• implement and monitor reporting systems,
• respond to “red flags,” and
• ensure that the company is not systematically violating the law.

When a company’s core business model is alleged to generate foreseeable harm—especially to minors—the board’s obligation is heightened, not diminished. The presence of internal research, safety teams, and documented awareness of risk only sharpens the inquiry: did the board receive this information, and if so, what did it do?

The parallel to the earlier Google matter is instructive. There, the combination of regulatory enforcement and internal knowledge created a pathway for shareholders to argue that oversight failures were not accidental—they were structural. The same logic could emerge here. If engagement-driven design choices are shown to have produced known harms, and if those harms were tracked internally, then plaintiffs and shareholders alike will ask whether the board:

• ignored warning signs,
• prioritized growth over compliance, or
• failed to impose meaningful constraints on management.

In that sense, the litigation risk does not stop at damages awards or regulatory penalties. It extends to derivative actions, governance reforms, and potential personal liability for directors and officers.

Which brings us back to the central question:

If the system was producing harm at scale, and the company knew it, where was the board—and what, exactly, was it doing?

The more unsettling possibility is not that these employees acted outside their jobs, but that they acted squarely within them—designing and optimizing the very systems the company demanded—while crossing lines that could support personal liability. If product leaders or executives knowingly approved harmful design choices, ignored internal warnings, or misrepresented risks, the issue is not scope of employment but state of mind. That distinction matters. Findings of bad faith, malice, or conscious disregard can expose individuals to liability and, in extreme cases, threaten the usual indemnification protections. The real question is whether the conduct was not just corporate policy—but knowingly wrongful corporate policy.

Dual-Class Stock: Control Without Constraint

This is not just a product story. It is a governance story.

Both Meta Platforms, Inc. and Alphabet Inc. operate under dual-class stock structures that concentrate voting power in the hands of insiders. At Meta, control rests with Mark Zuckerberg. At Alphabet, founders Larry Page and Sergey Brinretain effective control through supervoting shares.

I wrote in the New York Daily News that supervoting stock turns executives into something closer to “kings” than corporate managers—leaders who cannot realistically be outvoted, replaced, or disciplined by ordinary shareholders. That observation lands with particular force here.

These companies are not scrappy startups finding their footing. They are mature public corporations with boards of directors, audit committees, risk committees, compliance teams, and—critically—internal data documenting how their products are used and misused. They have every formal mechanism that corporate governance is supposed to provide. And yet, when the evidence shows persistent harm—especially to minors—the question becomes unavoidable:

What happens to oversight when the people being overseen control the vote?

Dual-class structures do not eliminate boards, but they can hollow them out. Directors may meet, committees may review reports, and outside investors may raise concerns, but the ultimate leverage—the ability to replace management or force strategic change—is effectively neutralized. That shifts boards from being potential sources of accountability to, at times, instruments of ratification.

This matters in the context of the social media litigation because the alleged misconduct is not peripheral—it goes to the core of the business model. Plaintiffs are not claiming that something went wrong at the margins. They are claiming that the platforms were designed, refined, and optimized in ways that foreseeably produced harm, and that those risks were known internally.

If that is true, then the governance question is not academic. It is central. It raises the possibility that:

• internal warnings were surfaced but not acted upon,
• safety concerns were subordinated to growth metrics, and
• product decisions continued along the same trajectory despite accumulating evidence of harm.

In a traditional one-share, one-vote company, that kind of record would trigger shareholder pressure, proxy fights, or leadership changes. In a dual-class structure, those mechanisms are largely unavailable. The very investors who bear the economic risk lack the voting power to force change.

That is why the dual-class structure is not just background—it is part of the liability narrative. It helps explain how a company can operate for years with mounting evidence of harm while maintaining strategic continuity. It also reframes the familiar question—“where was the board?”—into a more pointed one:

What can a board realistically do when control is structurally concentrated in the very individuals driving the challenged conduct?

The answer, increasingly, may be: not enough. And that is why litigation, rather than internal governance, is becoming the mechanism through which these questions are finally being forced into the open.

What Is a Board For?

Directors owe fiduciary duties of care and loyalty. Those duties are not ornamental. They are supposed to function as the internal check on management—especially where the company’s core business model creates foreseeable legal, regulatory, or reputational risk.

That includes the obligation to:

• implement and monitor reporting systems,
• evaluate “red flags” as they arise, and
• intervene when a company’s practices expose it to sustained harm or legal liability.

In theory, this is where governance lives. In practice, particularly in controlled companies like Meta Platforms, Inc. and Alphabet Inc., the picture is more complicated. When voting control is concentrated in insiders, the traditional mechanisms of accountability—board independence, committee oversight, shareholder pressure—can become attenuated.

That does not eliminate fiduciary duties. But it can change how they operate. Directors may receive reports, review internal research, and discuss risk. Yet if meaningful intervention requires confronting the very individuals who control the company, the line between oversight and acquiescence begins to blur.

At that point, the question is no longer whether the board existed. It is whether it functioned.

If a company’s internal data reflects known harms—particularly to minors—and the underlying design choices remain unchanged, the role of the board risks shifting from oversight to something else entirely: ratification after the fact.

Should There Be a Shareholder Suit?

That shift raises a natural next question: whether shareholders themselves may seek to enforce those duties.

The potential theories are familiar. A shareholder derivative action could allege:

• a Caremark-style oversight failure,
• breach of fiduciary duty of care or loyalty, or
• unjust enrichment tied to a business model that generated profits while externalizing harm.

Historically, those claims have been difficult to sustain. Courts have set a high bar for proving that directors failed to act in good faith or consciously disregarded known risks. But the factual landscape is changing.

We now have:

• jury findings that platform design can be negligent and causally linked to harm,
• enforcement actions framing company conduct as deceptive or unlawful, and
• growing evidence of internal knowledge regarding the effects of engagement-driven systems.

That matters. Caremark liability does not arise from bad outcomes alone. It arises when directors fail to respond to known problems. As the evidentiary record develops—particularly around internal studies, safety warnings, and escalation pathways—the question becomes whether those problems were visible at the board level, and if so, what was done in response.

In controlled companies, the analysis takes on an added dimension. If the same individuals who drive product strategy also control the voting structure, shareholders may argue that traditional governance mechanisms were not just ineffective—they were structurally constrained from the outset.

That does not guarantee liability. But it strengthens the argument that oversight failures, if proven, were not accidental—they were built into the governance model itself.

Now what?

These were not rogue actors operating at the margins. They were controlled, publicly traded companies overseeing business models that prioritized engagement, scale, and growth—even as evidence of harm to children accumulated.

The emerging record suggests that the risks were not hypothetical, and the responses were not always commensurate with what was known internally. That brings the issue back to its simplest and most uncomfortable form:

Who allowed this to continue?

And once that question is asked, a second follows close behind:

What responsibility—legal, financial, and personal—flows from that decision?

That is where this litigation may ultimately lead—not just to damages or settlements, but to a deeper reckoning with how power, accountability, and harm intersect in the governance of modern platform companies.

But in the meantime, it tells you something we knew all along: These are sick, sick people. And we are turning these same people loose with AI.