• by Wendy Davis  @wendyndavis, February 28, 2025

Meta Platforms is urging a federal appellate court to reject Facebook users' request to immediately appeal an order that denied them the ability to pursue a class-action antitrust suit relating to the company's privacy practices.

In papers filed this week, Meta says U.S. District Court Judge James Donato in San Francisco did not make a “manifest error” when he ruled that the plaintiffs had no way of proving that millions of Facebook users experienced an equivalent privacy-related harm, and therefore could not proceed as a class. The ruling allows individual users to sue, but doing so is often impractical in antitrust cases.

The battle dates to 2020, when Vermont resident Maximilian Klein and Illinois resident Sarah Grabert (later joined by Minnesota resident Rachel Banks Kupcho) alleged that Facebook grew in popularity after deceiving consumers about its privacy policy, then “weaponized” consumer data in order to acquire potential rivals like social media service Instagram (acquired for $1 billion in 2012) and messaging service WhatsApp (bought for $19 billion in 2014).

They sought to represent a class of people in the U.S. who used Facebook December 2016 and December 2020, and argued that class-action status was appropriate because all Facebook users were equally “overcharged” by Meta.

Their theory hinged on a report by economist Nichola Economides, who claimed Meta would have had to pay each user $5 per month for his or her personal data, had it not obtained a monopoly.

Donato rejected Ecoomides' theory, calling it “unsupported by the record.”

“There is no doubt, as he says, that Meta makes a lot of money from user data, but he did not demonstrate that Meta would be compelled to retain users by paying them, rather than through innovations in services and product quality,” Donato wrote.

Counsel for the plaintiffs then asked the 9th Circuit to hear an unusual immediate appeal of that ruling, arguing that a jury -- not Donato -- should have been able to decide whether Economides' opinion was supported by the facts.

Meta counters in its new papers that Donato correctly excluded Economides' “speculation” that Meta would have paid “hundreds of millions of people $5 a month to use Facebook,” if it had more rivals.

“Economides’s opinion that Meta would have paid all its users if it faced more competition disregarded how firms in the alleged [personal social networking services] market actually operated,” the company writes.

“Facebook and other platforms that sell ads compete for users by providing content that people want to engage with,” Meta writes.

“Indeed, Economides admitted that no ad-supported platform had ever responded to competition by paying all its users,” the company adds.

The 9th Circuit hasn't yet indicated whether it will intervene in the case.