IN RE FACEBOOK, INC.
United States District Court, N.D. California.
April 13, 2012.
The parties agree that the UCL claim depends on the viability of the breach of contract claim. The court is persuaded by Facebook's argument that plaintiffs have not shown that they have a viable method for proving each class member's recovery. While restitution need not be determined with exact precision, it "must be based on a specific amount found owing, and this measurable amount of restitution due must be supported by substantial evidence." In re Google AdWords Litig., 2012 WL 28068 at *15 (N.D. Cal., Jan. 5, 2012) (citation and quotation omitted); see also Campion v. Old Republic Home Protection Co., Inc., 272 F.R.D. 517, 533 (S.D. Cal. 2011). Plaintiffs have not established that the appropriateness of and entitlement to restitution can be said to constitute a common question that can be resolved for all members of the class in a single adjudication.
Plaintiffs assert that a class action is superior to other available methods for the fair and efficient adjudication of this case, because the damages per advertiser are likely not sufficient to justify hiring an attorney and pursuing individual litigation, and because the proposed class presents no manageability issues, as individualized proof and the involvement of individual class members should not be necessary to establish liability and damages, for the reasons argued in connection with the predominance inquiry.
The court finds, however, that a class action would not be superior because of the existence of numerous matters requiring individualized inquiry. In particular, the need to determine both liability and damages on an individualized basis makes this case inappropriate for class treatment. See Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1304 (9th Cir. 1990) ("manageability" requirement includes consideration of potential difficulties in calculation of individual damages and distribution of damages).CONCLUSION
In accordance with the foregoing, the motion to certify the plaintiff class is DENIED. While plaintiffs have made a sufficient showing as to three of the four Rule 23(a) factors, they have not established that questions of law or fact common to the class members predominate over questions affecting only individual members, nor that a class action is superior to other methods for fairly and efficiently adjudicating the controversy.
As noted above, the court finds that plaintiffs fail to show that common questions predominate because they have not clearly established what constituted the contract, and also because they have not shown they can establish injury through common proof.