Facebook Defeats Cert. Bid in Privacy Class Action Lawsuit

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Facebook has defeated users’ bid for class certification in a long-running lawsuit that alleges the social media giant disclosed users’ personally identifiable information with third-party advertisers.

Back in December, Facebook motioned that the case should not proceed as a class action, arguing the issues in contention need to be litigated on a user-by-user basis.

“The relevant evidence needed to prove plaintiffs’ claims is necessarily individual to each putative class member and each advertiser,” Facebook wrote.

However, the plaintiffs countered, stating that “Facebook has offered no legal authority for the proposition that plaintiffs must show that their advertisers ‘logged’ this information, ‘actually used’ it, or even were aware of it, to establish a claim for breach of contract or fraud. Even if these were deemed to be individual questions, at most they would pertain to damages, and as such would be legally insufficient to defeat class certification in and of themselves.”

Handing the win to Facebook, U.S. District Court Judge Ronald M. Whyte ruled Wednesday that the nature of plaintiffs Katherine Pohl and Wendy Marfeo’s claims are too individualized to be considered as a Class. Specifically, Judge Whyte stated that class action treatment isn’t appropriate because “individualized questions will predominate” in the dispute.

The majority of the 19-page order was not made public, so the specific basis for the ruling is not yet clear but may be revealed soon as Judge Whyte gave the parties two weeks to seal any “confidential information” included in the order.

The ruling comes in a case that dates back to 2010, when several separate proposed class action lawsuits were consolidated before then-U.S. District Chief Judge James Ware. The class action lawsuits alleged Facebook sent so-called “referer headers” to advertisers when users clicked on Facebook ads.

Plaintiffs alleged that prior to July 2010 the headers transmitted information could allow an advertiser to identify the user who clicked a given ad despite Facebook’s promises to only share anonymized data about users.

In 2011, Judge Ware dismissed all claims on grounds that the plaintiffs failed to show any actual harm or that their personally identifiable information had any value.

But in 2014, the U.S. Court of Appeals for the Ninth Circuit, partially revived plaintiffs’ breach of contract and fraud claims finding that the plaintiffs could have been harmed by both “the dissemination of their personal information and by losing the sales value of that information.”

In a separate order from Tuesday’s certification denial, Judge Whyte partially granted Facebook’s latest motion to dismiss the case. He tossed out the individual claims of Pohl, finding that she had only clicked on one Facebook ad during the relevant period. That ad routed her to the advertiser’s internal Facebook page, which Judge Whyte found did not reveal any of her personal information.

However, the judge found that Marfeo did have standing to sue.

The plaintiffs are represented by Kassra Powell Nassiri and Charles Hyunchul Jung of Nassiri & Jung LLP and Matthew Joseph Zevin of Stanley Law Group.

The Facebook Privacy Class Action Lawsuit is In Re: Facebook Privacy Litigation, Case No. 5:10-cv-02389, in the U.S. District Court for the Northern District of California.