• by Wendy Davis  @wendyndavis, June 7, 2022

Two advertisers on LinkedIn are asking the 9th Circuit Court of Appeals to reinstate a lawsuit accusing the company of inflating ad metrics.

“LinkedIn touts itself as a medium for advertisers to reach a highly engaged audience of working professionals and promises that they will only pay when someone from that audience engages with their advertisements,” the tech company TopDevz and recruiting platform Noirefy argue in papers filed Monday with the 9th Circuit Court of Appeals.

The companies add that LinkedIn charged them “for rampant non-genuine activity, which persisted on LinkedIn’s platform due to its deficient auditing and verification measures.”

They are urging the appellate court to reverse a decision by U.S. Magistrate Judge Susan van Keulen in the Northern District of California, who dismissed their lawsuit last December.

TopDevz and Noirefy alleged in a November 2020 class-action complaint that LinkedIn's erroneous metrics allowed the company to charge inflated prices for ads.

The companies filed suit shortly after LinkedIn acknowledged it had discovered two measurement issues that it said may have over-reported some Sponsored Content campaign metrics regarding impression and video views.

The company said it discovered the measurement issue in August of 2020, and fixed it by November. LinkedIn also said the incorrect metrics potentially affected more than 418,000 customers, and promised to credit the accounts of any advertisers that were affected.

But TopDevz and Noirefy said the inflated ad metrics led them to purchase more ads, and pay higher prices for them.

They raised several claims in their complaint, including that LinkedIn violated California's consumer protection law, which prohibits unfair business practices, as well as the state's false advertising law.

van Keulen threw out the complaint in December, ruling that companies can only sue for unfair business practices or false advertising when monetary damages alone won't remedy the alleged violation.

TopDevz and Noirefy argued to van Keulen that monetary damages would not be sufficient, noting that they sought an injunction that would have require LinkedIn to undergo audits.

van Keulen rejected that contention and ruled that the allegations in the complaint, even if proven true, wouldn't show that LinkedIn should be subject to an injunction.

What's more, she wrote, LinkedIn stated that the ad metrics had been fixed by last November, which undercut the advertisers' argument that they needed an injunction. 

TopDevz and Noirefy are now asking the 9th Circuit to reinstate their claims.

Among other arguments, the companies say van Keulen “improperly assumed that LinkedIn’s minimal remedial actions” fixed the errors with the metrics.

The companies also contend that the should have been allowed to proceed with their unfair competition claim regardless of whether they could show they needed an injunction.

LinkedIn is expected to respond to the advertisers' arguments by July 6.