• by Wendy Davis , Yesterday

Facebook advertisers who filed a class-action lawsuit against Meta Platforms in 2018 over allegedly inflated metrics are fighting the company's "eleventh-hour" request to force most class members into arbitration.

In papers filed late last week with the 9th Circuit Court of Appeals, counsel for the advertisers argues that Meta waived its ability to compel arbitration by waiting until the eve of trial to raise the issue.

"Parties may not litigate in court, only to pivot and try to compel arbitration if the case isn’t going as they’d like," counsel for DZ Reserve, which operated an e-commerce store, and Max Martialis, which sold weapons accessories, argue in papers filed late last week with the 9th Circuit Court of Appeals.

The papers come in a complaint initially brought eight years ago by business owner Danielle Singer, who alleged that Facebook induced advertisers to purchase more ads, and pay more for them, by overstating the potential reach of ad campaigns. The allegations drew on a report by the industry organization Video Advertising Bureau, which said Facebook's estimates of audience reach in every U.S. state were higher than the states' populations.

Singer later dropped out of the litigation, and DZ Reserve and Max Martialis became the lead plaintiffs. They alleged in an amended complaint that Facebook employees were aware of complaints about the potential reach metric since September 2015.

DZ Reserve, now out of business, spent around $1 million on Meta advertising campaigns and Max Martialis spent around $379 on Meta ads, according to court papers.

In 2022, U.S. District Court Judge James Donato in the Northern District of California certified a class of all U.S. advertisers who used Facebook's Ad Manager or Power Editor to purchase ads on Facebook or Instagram between August 2014 and October 2021.

Meta appealed that ruling to the 9th Circuit Court of Appeals, which sided against the company in a 2-1 ruling issued in 2024.

The tech platform then unsuccessfully asked the Supreme Court to intervene.

In August 2025, one week before a scheduled pre-trial conference, Meta asked Donato to order arbitration of claims by advertisers that purchased ads between May 2018 -- when Meta added an arbitration clause in its commercial terms -- and October 2021.

Donato denied that request, ruling in December that even though Meta's contract with advertisers calls for an arbitrator to decide disputes, the company waived that provision by failing to seek arbitration until the case had been pending for seven years.

Meta recently appealed that ruling to the 9th Circuit.

"There is no dispute that unnamed class members who purchased ads on or after May 25, 2018 entered into valid arbitration agreements with Meta," the company argued in papers filed last month with the 9th Circuit.

Meta added that its decision to litigate against the "named plaintiffs" (DZ Reserve and Max Martialis) "did not relinquish its arbitration rights against unnamed class members" -- meaning advertisers who used Facebook's Ad Manager or Power Editor to purchase ads between May 25, 2018 and October 2021.

The advertisers are asking the 9th Circuit to reject that argument.

"During Meta’s multiple appeals, Meta never so much as hinted that an arbitration motion might be waiting in the wings," class counsel argues in the newest filing.

"Meta’s efforts to obtain a complete victory on the merits in court haven’t panned out," counsel adds. "So, on the eve of trial seven years into the case, the company changed its strategy and moved to compel individual arbitration of the vast majority of class members’ claims."

The plaintiffs' attorneys also say Donato rightly decided Meta waived its arbitration clause, writing that the company "sought judicial resolution on the merits five times, engaged in extensive discovery, and repeatedly confirmed that it was preparing for long-scheduled trial dates."

The appellate court hasn't yet said when it will hear arguments in the case.