NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`NOV 28 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 21-17056
`
`
`D.C. No. 3:20-cv-00170-WHA
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`DOTSTRATEGY CO., individually and on
`behalf of all others similarly situated,
`
`
`
` v.
`
`
`META PLATFORMS, INC., FKA
`Facebook, Inc.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`William Alsup, District Judge, Presiding
`
`Argued and Submitted November 14, 2022
`San Francisco, California
`
`Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,** District
`Judge.
`
`
`
`
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The Honorable Kathleen Cardone, United States District Judge for the
`
`
`Western District of Texas, sitting by designation.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`NOV 28 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 21-17056
`
`
`D.C. No. 3:20-cv-00170-WHA
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`DOTSTRATEGY CO., individually and on
`behalf of all others similarly situated,
`
`
`
` v.
`
`
`META PLATFORMS, INC., FKA
`Facebook, Inc.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`William Alsup, District Judge, Presiding
`
`Argued and Submitted November 14, 2022
`San Francisco, California
`
`Before: RAWLINSON and HURWITZ, Circuit Judges, and CARDONE,** District
`Judge.
`
`
`
`
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The Honorable Kathleen Cardone, United States District Judge for the
`
`
`Western District of Texas, sitting by designation.
`
`
`
`
`
`
`
`
`
`This putative class action by dotStrategy Co. claims that Facebook, Inc.1
`
`violated the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code
`
`§ 17200 et seq., through misleading representations about its advertising charges.
`
`Two kinds of charges are at issue: (1) “click-based” charges, under which
`
`dotStrategy paid a fee for each click on its advertisements, and (2) “impression-
`
`based” charges, under which dotStrategy paid a fee for each one-thousand occasions
`
`that an advertisement was displayed to a Facebook account.
`
`The district court granted summary judgment in favor of Facebook—finding
`
`“no genuine dispute that [Facebook’s] invalid clicks statement was anything but true
`
`in our case” and that “Facebook never represented that it would not charge for
`
`invalid impressions.” Reviewing the summary judgment de novo, Oswalt v.
`
`Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011), and the district court’s
`
`denial of class certification for abuse of discretion, Castillo v. Bank of Am., NA, 980
`
`F.3d 723, 728 (9th Cir. 2020), we affirm.
`
`1. dotStrategy ran only two click-based ad campaigns, and the district court
`
`correctly found that “[t]here is absolutely nothing in the record suggesting that
`
`Facebook charged plaintiff for a click by a fake account in either of these two
`
`campaigns.” Thus, as the court noted, there was no evidence that Facebook’s
`
`
`1
`Although Facebook, Inc. has changed its name to Meta Platforms, Inc., we
`refer to the appellee, as did the district court, as “Facebook.”
`
`
`
`
`2
`
`
`
`
`
`allegedly misleading statement—“You will not be charged for clicks that are
`
`determined to be invalid”—“was anything but true,” and the statement did not
`
`violate the UCL.
`
`2. “A district court abuses its discretion” by denying a request to continue
`
`summary judgment “only if the party requesting a continuance can show that
`
`allowing additional discovery would have precluded summary judgment.” Singh v.
`
`Am. Honda Fin. Corp., 925 F.3d 1053, 1076 (9th Cir. 2019) (cleaned up). There
`
`was no abuse of discretion here. The district court reasonably stated that dotStrategy
`
`cannot “expect that Facebook’s otherwise meritorious motion should be deferred
`
`indefinitely because it is ‘plausible’ that Facebook will find some evidence of
`
`nominal harm to the plaintiff.” Moreover, dotStrategy “stipulated to forgo any
`
`further fact or expert discovery in the case unless and until the appellate court
`
`reverses or vacates the district court’s order denying class certification.”
`
`3. The UCL prohibits “not only advertising which is false, but also advertising
`
`which, although true, is either actually misleading or which has a capacity,
`
`likelihood or tendency to deceive or confuse the public,” Kasky v. Nike, Inc., 45 P.3d
`
`243, 251 (Cal. 2002) (cleaned up), analyzed under a reasonable-consumer test, see
`
`Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020). dotStrategy
`
`does not challenge the district court’s conclusion that Facebook never expressly
`
`“represented that it would not charge for invalid impressions” but argues that it was
`
`
`
`3
`
`
`
`
`
`misleading “for Facebook to say that it will not charge for invalid clicks” but then
`
`“charge for impressions delivered to fake accounts.” But Facebook clearly
`
`explained the differences between the charging practices to advertisers, who had the
`
`general option to choose under which system they would be billed. A reasonable
`
`advertiser would also know that it was being charged a much higher rate for clicks
`
`than impressions. And, as the district court noted, “[n]o reasonable consumer would
`
`have been misled by the fact that Facebook required its users to use the name they
`
`go by in everyday life to believe that Facebook guaranteed that every account on its
`
`platform necessarily did so.” Indeed, Facebook expressly disclosed that “fake”
`
`accounts make up an estimated 5% of its monthly active users.
`
`4. Because the district court properly granted summary judgment on
`
`dotStrategy’s claims, it also did not abuse its discretion in denying class certification
`
`for the proposed classes. See O’Shea v. Littleton, 414 U.S. 488, 494–95 (1974).
`
`AFFIRMED.
`
`
`
`4
`
`
`
`
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