Pay-Per-Click Marketers Aim To Revive Class-Action Against Facebook

A group of pay-per-click marketers aim to revive a class-action lawsuit alleging that Facebook charged them for invalid clicks, according to recent court papers.

Late last year, the 9th Circuit Court of Appeals ruled that the marketers couldn't proceed with their claims in a class-action, but could still bring suit as individuals. That ruling was a big blow to the marketers, because it's often prohibitively expensive to litigate a case as an individual.

The battle dates to 2009, when Fox Test Prep, Steven Price (who operates the car site and other marketers alleged that Facebook violated its contract with advertisers by charging them for “invalid” clicks.

The companies sued shortly after tech news site TechCrunch reported on complaints about perceived click fraud on Facebook.



U.S. District Court Judge Jeremy Fogel in the Northern District of California ruled several years ago that Facebook's contract with advertisers 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.

In 2012 a different federal judge, Phyllis Hamilton, ruled the companies couldn't bring the lawsuit as a class-action. The 9th Circuit upheld that decision last year, ruling that the marketers hadn't shown a “workable class-wide methodology” to determine whether a click should be considered valid.

The marketers, who allege Facebook “systematically” charges companies for invalid clicks, now say that they intend to file a new motion for class-action status, based on evidence from Facebook's internal records.

“Plaintiffs intend on refilling their class certification motion within 120 days ... and will demonstrate in their expert’s declaration the feasibility of their methodology by implementing it with actual data from Facebook,” counsel for the marketers says in a status report filed with Hamilton last week.

Facebook counters that the marketers waited too long to make this argument. “Plaintiffs’ attempt to have a second bite at the apple, after nearly six years of hard-fought litigation, should be denied,” the company says in court papers. “Granting plaintiffs’ request would serve only to impose unfair costs and burdens on Facebook to re-litigate an issue that has already been resolved.

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