Thursday, November 12, 2020

advertiser can amend complaint against Facebook for click fraud claims

DotStrategy Co. v. Facebook Inc., No. C 20-00170 WHA, 2020 WL 6591366 (N.D. Cal. Nov. 11, 2020)

The court grants plaintiff’s motion for leave to amend its complaint in this putative class action alleging that FB’s statements about advertising on FB violated the UCL. “The main issue presented here is whether or not a reasonable advertiser would understand Facebook’s representation that it would not charge advertisers for ‘clicks that are determined to be invalid’ to mean that Facebook would not charge — or refund — advertisers for clicks made by fake accounts, if at all, which Facebook identifies and removes from its platform for violating its authenticity policies.” Plaintiff pled sufficient facts to support this theory.

FB’s agreement said:

When serving your ad, we use best efforts to deliver the ads to the audience you specify or to achieve the outcome you select, though we cannot guarantee in every instance that your ad will reach its intended target or achieve the outcome you select[.]

We do not guarantee the reach or performance that your ads will receive, such as the number of people who will see your ads or the number of clicks your ads will get.

* * *

We cannot control how clicks are generated on your ads. We have systems that attempt to detect and filter certain click activity, but we are not responsible for click fraud, technological issues, or other potentially invalid click activity that may affect the cost of running ads.

However, from 2013 through the present, FB’s Business Help Center page represented that advertisers would “not be charged for clicks that are determined to be invalid”: “If we detect or are alerted to suspicious or potentially invalid click activity, a manual review is performed to determine the nature of the activity. You will not be charged for clicks that are determined to be invalid.” Facebook defines “invalid clicks” as “[c]licks from people that do not indicate a genuine interest in the ad or show signs of ad testing. This includes repetitive or accidental clicks or visits from the Facebook corporate network” and “[c]licks generated through prohibited means, such as fake accounts, bots, scrapers, browser add-ons or other methods that don’t follow Facebook’s Terms.” FB’s terms of service and authenticity policy requires users to use their “real identities,” so fake accounts violate Facebook’s policies.

The proposed complaint had a bunch of other FB statements that were allegedly false and misleading, such as:

• “On Facebook, you’ll only pay to reach the right people who’ll love your business.”

• “Facebook is a community where everyone uses the name they go by in everyday life. This makes it so that you always know who you’re connecting with.”

Nonetheless, FB allegedly charged for invalid clicks, which includes “[c]licks generated through prohibited means, such as fake accounts, bots, scrapers, browser add-ons or other methods that don’t follow Facebook Terms.” When Facebook determined those clicks were generated through prohibited means, it failed to provide a refund to plaintiff and the class members. Plaintiff alleged that it reasonably believed that, because Facebook requires “everyone to provide their real names,” it would not be charged for advertising that interacted with fake accounts.

Plaintiff alleged that between 2013 and 2018, Facebook charged it for clicks that were made by thirteen different fake accounts. Facebook allegedly has since deleted eight of these thirteen accounts from its platform “likely for violations of its ‘authenticity policy.’ ”

FB argued that no reasonable consumer could have been misled by its allegedly false and/or misleading statements, particularly, in light of the contractual disclaimers in the self-serve ad terms. The key issue was whether, given FB’s statements, a reasonable advertiser would have believed that once Facebook determines and removes an account for violating its authenticity policies (e.g., a fake account), FB would then perform an audit to refund advertisers for any invalid clicks that that account may have made, and for which FB had charged advertisers for.

That is a question of fact not suitable for resolution on a motion to dismiss. Plaintiff plausibly alleged deceptiveness to a reasonable consumer.

The allegedly contradictory TOS stating that Facebook is not “responsible for click fraud” was ambiguous; a reasonable advertiser could construe that to mean that FB itself is not perpetuating any click fraud [and, I’d add, couldn’t itself be held liable for damages—but that doesn’t mean it’s clearly promising to hang on to the money it collected from the advertiser for fraudulent clicks]. And the Ninth Circuit “has recognized that a UCL fraud claim can be based on misleading representations in a solicitation even when the plaintiff later signed a contract with provisions contradicting the earlier falsehoods.” “The question, then, is not whether [Facebook’s] contractual terms corrected the false statements in its advertising, but whether dotStrategy’s reliance on the false advertising was reasonable even in light of the contractual disclaimers.” That was properly alleged.

FB argued that none of its statements mentioned refunds, so they couldn’t be deceptive. “But a refund is implied” for interactions FB knew involved invalid clicks. FB tried to distinguish fake accounts from invalid clicks, arguing that it only promised to provide manual review for “suspicious or potentially invalid click activity,” and no charges for “clicks that are determined to be invalid,” not audits every time a fake account was removed.

But the proposed complaint specifically alleged that Facebook charged it and other advertisers for invalid clicks, such as clicks by fake accounts and/or bots. “Second, a reasonable advertiser might also reasonably believe that once Facebook determines an account is fake, Facebook would be ‘alerted to suspicious or potentially invalid click activity’ and thus would conduct a ‘manual review’ to determine the nature of the activity.” After all, falsity/misleadingness “is analyzed from the perspective of a reasonable consumer, not from the perspective of an attorney splitting hairs.”

This interpretation would not, as FB claimed, make it liable if its platform was 100% secure against fake accounts. Rather, the advertiser’s argument was that, once FB does stumble on fake accounts, it should then perform an audit to refund advertisers for any invalid clicks committed by such accounts, given what it said to advertisers.

FB then argued that, just because an account was fake in 2018 when plaintiff performed its survey, it doesn’t also follow that that account was also fake in 2017, for example, when it clicked or engaged with plaintiff’s ads. That was a factual issue, and the plausibility of the claims was bolstered by various news reports suggesting that fake accounts on FB “are rather ubiquitous.”

However, a number of the challenged statements hadn’t been sufficiently pled to be false or even non-puffery:

• “Connect with people. Ads help you reach the right people.”

• “Facebook can help you reach all the people who matter most to your business.”

• “Facebook ads are optimized to help you get more people to visit your website or increase conversion.”

• “Your business is for your customers. Built relationships with them, reach new people and drive sales using Facebook.”

• “Drive people to your website with one click from the most engaging place on Facebook.”

• “Find new customers. Boost sales. Facebook can help you meet your business goals.”

• “Meet the people who will love your business.”

A reasonable consumer “would understand that not all users on Facebook would adhere to Facebook’s authenticity policy or would be interested in its ads.” And even people who didn’t use “true and full names” might have provided accurate information concerning their age, gender, and location, among other things; “it cannot be said that such an account is categorically unable to be interested in plaintiff’s ads.”

But these statements were plausibly false/misleading:

• “On Facebook, you’ll only pay to reach the right people who’ll love your business.”

• “Facebook is a community where everyone uses the name they go by in everyday life. This makes it so that you always know who you’re connecting with.”

And the plaintiff plausibly pled economic injury: the cost of invalid clicks.

 

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