• by Wendy Davis  @wendyndavis, January 19, 2024

Meta Platforms is asking Supreme Court to review a decision allowing users to proceed with a lawsuit over prior ad-targeting options that allegedly violated discrimination laws.

In a petition quietly filed last week, Meta contends that the users lack “standing” to sue in federal court because their complaint didn't specify how they were injured by the former ad-targeting options.

The company's petition marks the latest development in a battle dating to 2019, when New York resident Rosemarie Vargas and other Facebook users alleged in a class-action complaint that the former ad-targeting options unlawfully allowed advertisers to block housing ads from people based on race, sex, age or other protected characteristics.

The case was one of several lawsuits against Facebook over allegedly discriminatory ads.

By the time Vargas and the others sued, Facebook had already agreed to prohibit advertisers of housing, employment or credit offers from targeting ads based on age, gender, ZIP code and ethnic affinity.

U.S. District Court Judge William Orrick in the Northern District of California dismissed Vargas's complaint in 2021. He ruled that the allegations in the complaint, even if true, wouldn't show how the users were affected by Facebook's former ad-targeting options.

Orrick described the complaint in a written opinion as “the sort of generalized grievance” that doesn't give people the right to sue in federal court.

Orrick also ruled that Facebook was also protected by Section 230 of the Communications Decency Act for any illegal ads posted by outside parties. That law broadly immunizes web companies from liability for material created by third parties.

Vargas and the others then appealed to the 9th Circuit Court of Appeals, which reversed Orrick's ruling and reinstated the lawsuit.

That court ruled both that the users' allegations warranted further proceedings, and that Meta might not be protected by Section 230.

“Plaintiff Vargas alleges a concrete and particularized injury -- deprivation of truthful information and housing opportunities -- whether or not she can establish all the elements of her claims later in the litigation,” the judges wrote.

They added that the allegations in the complaint, if proven true, could show that Facebook was a “co-developer” of the ads -- in which case it wouldn't be immunized by Section 230.

Meta is now asking the Supreme Court to review the portion of the 9th Circuit decision that found Vargas had “standing” to proceed.

The company writes that the 9th Circuit wrongly allowed the case to move forward based on only “general factual allegations of injury,” instead of requiring specifics. The company adds that Vargas and the others failed to allege how they, personally, were affected by the former ad-targeting options.

“They do not allege that any housing matching their specific (and often plainly unrealistic) criteria actually existed,” Meta writes. “Nor do they allege that such housing was available during the specific periods they searched for housing on Facebook.”

Attorneys for the plaintiffs on Friday waived their right to file a response.