                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 26 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


FOX TEST PREP; STEVEN PRICE,                     No. 12-16601

               Plaintiffs - Appellants,          DC No. 4:09 CV-3043 PJH

  v.
                                                 MEMORANDUM*
FACEBOOK, INC.,

               Defendant - Appellee.


                    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.

          *
             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.
      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
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
