• by Wendy Davis  @wendyndavis, May 1, 2012

Two pay-per-click marketers who sued Facebook for allegedly charging them for invalid clicks are seeking permission to appeal a recent decision denying them class-action status.

The marketers -- Fox Test Prep and Steven Price, who operates the car site DriveDownPrices.com -- argue that U.S. District Court Judge Phyllis Hamilton was wrong to conclude that the marketers must pursue their claims as individuals. Hamilton, a judge in the Northern District of California, ruled last month that the marketers had not shown that "common questions predominate" -- a necessary condition for class-action lawsuits.

The litigation dates to 2009, when Price, Fox Test and other pay-per-click marketers sued Facebook for allegedly charging them for invalid clicks. Two years ago, U.S. District Court Judge Jeremy Fogel in San Jose, Calif. ruled that Facebook's contract with marketers disclaimed liability for clicks that were "fraudulent" in the sense that the clicker had dubious intentions. But Fogel ruled that the disclaimer didn't apply to clicks that were "invalid" -- such as when technical problems prevented users from reaching a landing page.

Hamilton said that one reason why the marketers shouldn't proceed as a class-action was that they had not shown "any uniform method for distinguishing, on a classwide basis, between 'invalid' clicks and 'fraudulent' clicks."

In their latest papers, filed on Friday with the 9th Circuit Court of Appeals, the marketers dispute that conclusion. They argue that one of their experts had offered to "construct algorithms that would reflect the rules that Facebook should have employed."

Fox Test Prep and Price also argue that they presented evidence showing that Facebook "abused" advertisers' trust by developing standards that were "designed to enhance revenue rather than protect advertisers from paying for invalid clicks."

They are asking the appellate court to grant them permission to appeal Hamilton's order.