• by Wendy Davis  @wendyndavis, August 15, 2024

Meta Platforms will ask the Supreme Court to block advertisers from proceeding with a class-action fraud lawsuit over inflated metrics, the company told a federal appellate court on Wednesday.

Meta disclosed its plans in a petition asking the 9th Circuit Court of Appeals to stay a recent 2-1 decision allowing Facebook and Instagram advertisers to bring a class-action on behalf of all U.S. advertisers who used Facebook's Ad Manager or Power Editor to purchase ads after August 15, 2014.

That ruling, issued earlier this year, “raises questions of far-reaching importance” regarding fraud class actions, Meta writes in its request for a stay.

The company adds that the ruling conflicts with decisions issued by other federal appellate courts, and also could lead judges to routinely allow fraud cases to proceed as class-actions.

The long-running battle dates to 2018, when business owner Danielle Singer alleged in a class-action complaint that Facebook induced advertisers to purchase more ads, and pay more for them, by overstating the number of users who might see the ads. (Singer later dropped out of the litigation, and DZ Reserve, which operated an e-commerce store, and Max Martialis, which sold weapons accessories, became the lead plaintiffs.)

The initial complaint cited a report by the industry organization Video Advertising Bureau, which said in 2017 that Facebook's estimates of audience reach in every U.S. state were higher than the states' populations. The advertisers added in an amended complaint brought in 2020 that Facebook employees were aware of complaints about the potential reach metric since September 2015.

Meta had argued to a trial judge and the 9th Circuit Court of Appeals that the case shouldn't proceed as a class-action because advertisers on the platform didn't have enough in common.

The company wrote in a brief filed with the 9th Circuit Court of Appeals that advertisers on Meta ranged from “sole proprietors to multinational corporations to governments,” and that it wasn't possible to “collectively adjudicate the unique mix of information seen by each advertiser.”

In March, a panel of the 9th Circuit rejected Meta's argument, writing in a 2-1 decision that fraud claims are “particularly well suited to class treatment.”

Circuit Judge Danielle Forrest dissented, writing that the issues in the case involve “individualized questions,” including whether every advertiser in the class relied on misrepresentations by the company.

Meta then unsuccessfully sought a new hearing at the 9th Circuit.

The company argued that the critical question isn't whether it made misrepresentations, but how the alleged misrepresentations affected advertisers.

“If simply identifying the purported fraud were enough to certify a class, then all fraud class actions would be certified,” Meta argued.

The U.S. Chamber of Commerce backed Meta's request, arguing in a friend-of-the-court brief that Meta's advertisers received individualized metrics, and therefore don't have enough in common to be able to proceed as a class.

Last week, the 9th Circuit rejected Meta's request for a new hearing.