Fox Test Prep; Steven Price v. Facebook, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOX TEST PREP; STEVEN PRICE,
Plaintiffs - Appellants,
v.
FACEBOOK, INC.,
Defendant - Appellee.
No. 12-16601
DC No. 4:09 CV-3043 PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted December 9, 2014
San Francisco, California
Before: TASHIMA and PAEZ, Circuit Judges, and QUIST, Senior District
Judge.**
Plaintiffs Fox Test Prep and Stephen Price appeal the district court’s denial
of class certification. We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and
Federal Rule of Civil Procedure 23(f), and we affirm.
FILED
DEC 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Gordon J. Quist, Senior United States District Judge
for the Western District of Michigan, sitting by designation.

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We review a district court’s denial of class certification for abuse of
discretion. See Yokoyama v. Midland Nat’l Life Ins. Co., 594 F. 3d 1087, 1090
(9th Cir. 2010). “An abuse of discretion occurs when the district court, ‘in making
a discretionary ruling, relies upon an improper factor, omits consideration of a
factor entitled to substantial weight, or mulls the correct mix of factors but makes a
clear error of judgment in assaying them.’” Parra v. Bashas’, Inc., 536 F.3d 975,
977-78 (9th Cir. 2008) (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d
228, 295 (1st Cir. 2000)).
The district court held that the proposed class could not be certified under
Federal Rule of Civil Procedure 23(b)(3) because, among other reasons, Plaintiffs
failed to establish that there is a class-wide uniform method for determining what
constitutes a “valid click.” In re Facebook, Inc., PPC Adver. Litig., 282 F.R.D.
446, 458-59 (N.D. Cal. 2012). We conclude that the district court did not abuse its
discretion in determining that class certification was inappropriate under Rule
23(b)(3). See Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013).
Plaintiffs’ central theory of liability is that Facebook improperly charged
them for “invalid” clicks. As a result, it was crucial for them to establish a
workable, classwide method to distinguish among “valid,” “invalid,” and
“fraudulent” clicks. Plaintiffs’ expert stated that he could develop and implement
2

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rule-based algorithms to determine whether Facebook failed to employ algorithms
in conformity with prevailing industry standards in determining whether a click is
legitimate. He further noted that the IAB (Interactive Advertising Bureau) Click
Measurement Guidelines make clear that it is generally understood in the industry
that a click is defined as a request by a human with an intent to view the content.
Nowhere in his report or deposition, however, did he provide the actual method for
distinguishing between valid and invalid clicks. Further, in his deposition he
acknowledged that he knows of no sources, including the IAB guidelines, that
provide specific parameters for determining what constitutes a valid click.
Because Plaintiffs failed to meet their burden of demonstrating a workable
class-wide methodology to determine what constitutes a “valid click,” the district
court did not abuse its discretion in denying class certification because “common
issues do not predominate,” In re Facebook, 282 F.R.D. at 459, as required by Rule
23(b)(3).1
Accordingly, the order of the district court denying class certification is
AFFIRMED.
1 Because we decide this appeal on the lack of predominance issue, we
do not reach the other bases of the district court’s decision denying class
certification.
3

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