On Tuesday, the parties’ class certification briefing as well as the plaintiffs’ opposition to Facebook Inc.’s motion for judgment on the pleadings became public in a slew of redacted filings. The Northern District of California class action concerns allegations that Facebook inflated its estimations of how many people advertisers could reach by purchasing advertisements on either its Facebook or Instagram platforms.
The putative class of approximately 3 million individuals and businesses claim that Facebook was aware of the inflation problem with its “Potential Reach” tool, one of several the company offers to advertisers to help them target their ad campaigns, since 2015, but never fixed it. After the court ruled on Facebook’s dismissal bid in February 2021, the plaintiffs’ California’s Unfair Competition Law (UCL) and common law fraudulent misrepresentation and fraudulent concealment remained.
Facebook first filed a motion for judgment on the pleadings as to the plaintiffs’ UCL claim, arguing that a 2020 Ninth Circuit case bars it. In Facebook’s redacted opposition to class certification, the company argued that the plaintiffs failed to demonstrate typicality, adequacy, or UCL standing.
Facebook asserted that the plaintiffs’ “theory of liability and harm for both the UCL and fraud claims hinges on the proposition that every advertiser received a deceptively high Potential Reach estimate and that millions of advertisers relied on those estimates to increase their ad budgets, which supposedly drove up all ad prices. None of this is true.” The company also combatted class certification on the basis that they have no common proof of liability, and no uniform misstatement or omission was made to the class.
For their part, the plaintiffs responded that they have met the requirements for both their sought injunctive relief and damages classes. “Forced to face this classwide evidence of fraud, Facebook manufactures new evidence in the form of self-serving declarations from ten hand-picked advertisers,” the reply brief said. The filing criticized Facebook’s opposition and its contents, its “eleventh-hour gambit,” as both procedurally improper and legally irrelevant.
The motion for class certification hearing was scheduled for mid-November, but was vacated after Judge James Donato found it suitable for disposition without oral argument.
Facebook is represented by Latham & Watkins LLP and the plaintiffs by Cohen Milstein Sellers & Toll, PLLC and Law Offices of Charles Reichmann.
