On Wednesday, users of the Chinese-language WeChat communication platform opposed the company’s bid to have the Santa Clara County Superior Court class action transferred to Hong Kong for arbitration. Tencent America LLC and Tencent International Service Pte. Ltd.’s (together, Tencent) move to compel arbitration comes after it tried and failed to have the case arbitrated on U.S. soil.
On behalf of several putative classes of California consumers, Citizen Power Initiatives for China and several anonymous users filed a complaint in January 2021 contesting an “interlocking set of oppressive practices and enabling contractual provisions employed by Tencent in operating WeChat.” Particularly egregious, the plaintiffs say, is WeChat’s data routing scheme, whereby the company hands the private data of its users, en masse, to the Chinese government.
The complaint seeks redress from violations of users’ right to privacy under the California Constitution, the state’s Unfair Competition Law and its Invasion of Privacy Act, and from various personal privacy torts. In September, the court denied Tencent’s bid for domestic arbitration.
This week’s opposition assails the company’s bid as defying reason. “First, the idea that Plaintiffs could get a fair hearing of their allegations in Hong Kong, given recent developments there, does not pass the smell test,” the motion says.
Relying on the declaration of a legal academic and former practitioner from Hong Kong, the opposition explains how recent turmoil in Hong Kong has resulted in a Chinese-imposed rule of law and a slanted political and legal landscape. The Chinese Communist Party-run state would perceive the plaintiff’s allegations as a threat, the motion says.
The plaintiffs argue that the unfairness of Tencent’s proposed forum contravenes the policy that litigants are afforded fair hearings, including in the context of arbitration. The WeChat users also contend that “another fundamental policy of the United States is that its own laws be followed.” Compelling arbitration in Hong Kong would fly in the face of both of these tenants, the plaintiffs claim.
A hearing on the matter is scheduled for January 12 before Judge Patricia M. Lucas. The plaintiffs are represented by North River Law PLLC, Schonbrun Seplow Harris Hoffman & Zeldes LLP, and The Lanier Firm P.C. Tencent is represented by Gibson, Dunn & Crutcher LLP.
