A Davis Polk team led by partners Greg Andres, Antonio Perez-Marques and Micah Block received runner-up honors in AmLaw Litigation Daily’s “Litigator of the Week” column for securing a summary judgement win for Meta Platforms and WhatsApp in litigation against NSO Group, seeking to hold the Israeli technology company liable for a 2019 spyware attack targeting WhatsApp and its users.

On December 20, 2024, Judge Phyllis J. Hamilton in the U.S. District Court for the Northern District of California issued a decision granting summary judgment on all claims in favor of Meta and WhatsApp, finding NSO Group liable for violating the Computer Fraud and Abuse Act (CFAA), the California Comprehensive Computer Data Access and Fraud Act (CDAFA), and for breaching WhatsApp’s Terms of Service.  In so ruling, Judge Hamilton also granted in part Meta and WhatsApp’s motion for discovery sanctions, based on NSO Group’s failure, among other things, to produce the source code for Pegasus as ordered by the court.  Judge Hamilton scheduled a trial solely on damages for March 2025.

In a complaint filed in October 2019, Meta and WhatsApp alleged that between April and May 2019, NSO Group accessed WhatsApp’s servers without authorization in order to install Pegasus spyware on the mobile devices of more than 1,400 WhatsApp users. Meta and WhatsApp identified NSO Group as the source of the attack, and determined that NSO‘s victims included journalists, human rights activists, political dissidents, and others. 

In its December 2024 order granting summary judgment, the Court concluded that NSO Group was subject to personal jurisdiction in California, that NSO Group exceeded its authorization to access the WhatsApp servers in violation of the CFAA and CDAFA, and that NSO Group violated the WhatsApp Terms of Service in developing Pegasus.  The Court also found that NSO Group should face sanctions for failing to produce discovery and disobeying court orders.  The next phase of the case will resolve the amount of damages to which WhatsApp and Meta are entitled.

The case marks the first time that a commercial spyware company has been held liable in U.S. court.  It is also the first U.S. court decision of liability against NSO Group, which was added to the Department of Commerce Entity List for activities contrary to the national security or foreign policy interests of the United States in November 2021. 

The Davis Polk team included partners Greg D. Andres, Antonio J. Perez-Marques, and Micah G. Block, counsel Gina Cora, Craig T. Cagney, and Andrew Yaphe, associates Esther C. Townes, Luca Marzorati, James C. Butler, Muhammad Sardar, Olivia Constance Bethea, Gersham Johnson, Quentin J. Ullrich, Amelia Birnie, Kaitlin Campanini, Meenu Mathews, Tyler Conroy, Thomas Floyd and Cyerra Haywood.

“Runners-Up and Shout-Outs for Litigator of the Week,” AmLaw Litigation Daily (January 9, 2025) (subscription required)

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