Judge mulls dismissal in Facebook ad class action

SAN FRANCISCO -- Attorneys for Facebook Inc. argued Thursday the company's faulty video metrics were only estimates to help advertisers, and it never guaranteed those results.

The proposed class action brought by businesses alleging they were misled by Facebook's data on how long users spent watching videos should be dismissed because "they all got the ads they paid for," defense attorney Elizabeth Deeley said.

"The potential reach estimates are just a tool that Facebook makes available to advertisers to help them understand ad targeting criteria," the Latham & Watkins LLP partner said at a hearing before Judge James Donato of the Northern District of California.

Plaintiffs rely on hypothetical arguments to substantiate nonexistent damages, Deeley said. They never even argued they bought Facebook advertisements because of the data represented in the video metrics, she added.

"This is exactly what the 9th Circuit said you can't do," she said.

Donato appeared skeptical of the Facebook attorney's analysis supporting outright dismissal of the lawsuit.

"Just as a general proposition, the complaint says [Facebook] told me I can reach these many people, and it didn't," he said. "So why shouldn't I go forward?"

"Facebook is a different type of platform," Deeley responded.

Facebook has denied accusations it knew for more than a year its viewer data was artificially inflated, and not just a month, before it was first reported in the Wall Street Journal.

The plaintiffs allege unfair competition and breach of contract, among other claims. Singer v. Facebook, Inc., 18-CV04978 (N.D. Cal., filed Aug. 15, 2018).

Facebook did not immediately respond to requests for comment.

The case is about Facebook's core metrics and how the company leveraged the faulty data to attract customers to buy advertisements, according to plaintiffs' attorney Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC

"It's strange that the only two metrics provided are not material," he said.

Donato agreed with Graber but said he had "strong reservations about the contract claims."

"The defendant is entitled to more," he said. "I need facts that show what the actual contract is."

The two sides next launched into an evidentiary dispute in which the plaintiffs argued Facebook has refused to preserve relevant documents and information.

Plaintiffs are demanding the company produce private user data for individual users, Deeley said.

Grober responded he needs to determine profile attributes, and not personal information, of users to determine the "severity of the inflation."

"I have deep qualms you need to see any profiles," Donato said. "That strikes me as invasive."

Pressed by the judge on what specific information plaintiffs need, Grober could not respond with any degree of specificity. "We're operating in a bit of a vacuum," he explained, adding "we don't know how they sort this information."

"This is unproductive," Donato responded.

The judge ordered the parties to settle the dispute, stressing his order would not be the "all or nothing" both sides are requesting.