In her appeal brief to the 9th Circuit, Hoang said that her first counsel “essentially abandoned discovery” due to illness, and when he died her new counsel the district court denied a motion to reopen discovery. The result, Hoang said, was that she was forced to go to trial “with almost no evidence.” A jury in April, 2012, sided with IMDb’s contention that it did not break a subscriber agreement.
She also said that the district court judge in the case, Marsha Pechman, incorrectly instructed the jury that she, rather than IMDb, had the burden to prove that she was not in a breach of a subscriber agreement, “even though this was IMDb’s affirmative defense.”
“The instruction added an extra element to Hoang’s case, one that prevented the jury from properly considering her case and was not harmless,” her brief stated. She and her attorneys are asking the 9th Circuit to vacate the judgment and remand the case for a new trial.
SAG-AFTRA and the Writers Guild also filed a joint friend-of-the-court brief supporting her appeal.
The orgs said that “birthdates can be — and are — used to facilitate age discrimination in the casting and hiring process,” adding that they have “received numerous complaints from members who were told they were not hired based on the birthdate posted on IMDb despite, in the case of actors, having a portrayable age range that was significantly younger. Women over 40, in particular, are underrepresented on-screen, so the difficulties in finding work are exacerbated when they become pigeonholed by information posted to IMDb, often without their consent.”
Hoang had claimed that IMDb breached subscriber and privacy agreements by using information that she provided when subscribing to IMDbPro to discern her true age in public records. Her case drew the attention of the Screen Actors Guild and other orgs that have pressed IMDb to limit its posting of birthdates at a time when many performers face age discrimination.
Hoang, whose real name is Huong Hoang, first signed up for IMDb in 2001, but left her age blank. In 2004, she used a friend’s account to submit a 1978 date of birth, even though she was actually born in 1971. In 2007, she decided that she wanted the false birth date to be removed, and repeatedly contacted the database, asking that it be taken off her page. Yet even after she sent them documents, including a fake Texas ID, showing that the birth date was wrong, they did not remove the 1978 date from her profile.
IMDb.com argued that she had failed to prove that she was harmed by the posting of her true age, noting in a court filing that she “merely speculated” about lost acting income and “at best, Hoang contends that unrelated parties have refused to give her acting opportunities because IMDb exercised its First Amendment right to publish truthful and accurate information.”
Hoang is represented by attorney Mark Kressel.