Calise

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT

8 NORTHERN DISTRICT OF CALIFORNIA

9

10 CHRISTOPHER CALISE, et al., Case No. 21-cv-06186-JSW

11 Plaintiffs,

ORDER GRANTING MOTION TO

12 v. CERTIFY ORDER FOR

INTERLOCUTORY APPEAL

13 META PLATFORMS, INC.,

Re: Dkt. No. 71

Defendant.

14

15

16 Now before the Court is the motion to certify an order for interlocutory appeal filed by

17 Defendant Meta Platforms, Inc. (“Meta”). The Court finds the motion suitable for decision

18 without oral argument and HEREBY VACATES the hearing set for February 6, 2026. The Court

19 has considered the parties’ papers, relevant legal authority, and the record in this case and

20 exercises its discretion to GRANT the motion pursuant to 28 U.S.C. section 1292(b).

21 Meta’s motion seeks to certify this Court’s order denying Meta’s motion to dismiss

22 (“Order”) for interlocutory appeal with respect to the following two questions: (1) whether the

23 Terms of Service (“TOS”) and Community Standards “impose an affirmative obligation on Meta

24 to combat purported scam advertisements,” and (2) whether the Limitation of Liability Clause is

25 unconscionable. (Motion at 5; Opp. Br. at 1.)

26 A district court may certify an order for interlocutory review under 28 U.S.C. section

27 1292(b) if (1) there is “a controlling question of law,” (2) “as to which there is substantial ground

1 the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); see also Reese v. BP Expl.

2 (Alaska) Inc., 643 F.3d 681, 687-88 (9th Cir. 2011). Certification for interlocutory appeal should

3 be applied sparingly and only granted in exceptional situations in which allowing an interlocutory

4 appeal would avoid protracted and expensive litigation. See, e.g., Coopers & Lybrand v. Livesay,

5 437 U.S. 463, 475 (1978); In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982);

6 United States v. Woodbury, 263 F.2d 784, 788 n.11 (9th Cir. 1959). The party seeking

7 certification of an interlocutory order has the burden of establishing the existence of such

8 exceptional circumstances. Coopers & Lybrand, 437 U.S. at 475. A court has substantial

9 discretion to decide whether to grant a motion for certification. Valdovinos v. McGrath, No. C02-

10 1704-CW, 2007 WL 2023505 at *2 (N.D. Cal. July 12, 2007) (citing Brown v. Oneonta, 916 F.

11 Supp. 176, 180 (N.D.N.Y. 1996)).

12 Certification under Section 1292(b) requires that the district court expressly find in writing

13 that all three of the requirements are met. The Court finds that its Order satisfies all three criteria.

14 First, the questions posed by the request for interlocutory appeal here involve controlling

15 issues of law. “Under California law, the interpretation of contract language is a question of law.”

16 Atel Fin. Corp. v. Quaker Coal Co.¸ 321 F.3d 924, 925-26 (9th Cir. 2003). Similarly, the question

17 of whether a contract or a contract clause is unconscionable is a question of law for the court to

18 determine. See Cal. Civ. Code § 1670.5(a) (“If the court as a matter of law finds the contract or

19 any clause of the contract to be unconscionable at the time it was made the court may refuse to

20 enforce the contract”); Carmona v. Lincoln Millenium Car Wash, Inc., 226 Cal. App. 4th 74, 82

21 (2014) (“[U]nconscionability is a question of law we review de novo.”).

22 Second, there is substantial ground for difference of opinion on the questions of law

23 presented. Whether Facebook’s TOS and Community Standards impose on Meta a legally

24 enforceable obligation to combat purposed scam advertisements is a question on which

25 “substantial ground for difference of opinion” exists. 28 U.S.C. § 1292(b). When “reasonable

26 jurists might disagree on an issue’s resolution,” a “substantial ground for difference of opinion

27 exists” even if other cases do not “directly conflict[] with the district court’s construction of the

1 grounds for disagreements on a question of law is that other courts have, in fact, disagreed.”

2 Rollins v. Dignity Health, No. 13-cv-01450-THE, 2014 WL 6693891, at *3 (N.D. Cal. Nov. 26,

3 2014); Allen v. ConAgra Foods, Inc., No. 13-cv-01279-WHO, 2019 WL 1466889, at *3 (N.D.

4 Cal. Feb. 6, 2019) (concluding that “there is substantial ground for a difference of opinion” in light

5 of “another ruling from this district” reaching a contrary result on “similar” facts). Here, the

6 Court’s Order itself acknowledges that reasonable jurists can and have actually disagreed on

7 whether the TOS and Community Standards impose the asserted legal obligations on Meta. (Dkt.

8 No. 62, Order at 5, citing Long v. Dorset, 369 F. Supp. 3d 939, 948 (N.D. Cal. 2019), Caraccioli

9 v. Facebook, Inc., 167 F. Supp. 3d 1056, 1064 (N.D. Cal. 2016), and King v. Facebook, Inc.¸ No.

10 19-cv-01987-WHO, 2019 WL 6493968, at *2 (N.D. Cal. Dec. 3, 2019); Order at 9, citing Bass v.

11 Facebook, Inc., 394 F. Supp. 3d 1024, 1037-38 (N.D. Cal. 2019).) The fact that other judges,

12 within the same district, have approached the same legal question and construed it differently

13 demonstrates that there is substantial ground for difference of opinion on the questions of law

14 presented.

15 Lastly, the Court is persuaded that interlocutory review will materially advance the current

16 litigation. This prong is closely “linked to” and “overlap[s] significantly with” whether an issue of

17 law is “controlling.” Mauia v. Petrochem Insulation, Inc., No. 18-cv-01815-THE, 2014 WL

18 6693891, at *4 (N.D. Cl. Nov. 26, 2014). “The ultimate question is whether permitting an

19 interlocutory appeal would minimize the total burdens of litigation on parties and the judicial

20 system by accelerating or at least simplifying trial court proceedings.” Roth v. Foris Ventures,

21 LLC¸ No. 21-cv-04288-YGR, 2022 WL 21777087, at *2 (N.D. Cal. Aug. 19, 2022) (citations

22 omitted); see also Biederman v. FCA US LLC, No. 23-cv-06640-JSC, 2025 WL 1266907, at *5

23 (N.D. Cal. May 1, 2025 (the final prong of Section 1292(b) is satisfied if “the resolution of the

24 question may appreciably shorten the time, effort, or expense of conducting the district court

25 proceedings.”).) Here, a decision on the two questions of law will materially advance the ultimate

26 termination of this litigation by resolving important threshold legal issues. An appellate decision

27 on the threshold issues will allow the parties to be more informed in their assessment of whether

1 Thus, the Court finds that the resolution of these threshold legal questions would accelerate

2 resolution of the case. See, e.g., SEC v. Mercury Interactive, LLC, No. 07-cv-02822-JF, 2011 WL

3 1335733, at *3 (N.D. Cal. Apr. 7, 2011) (finding that the final prong under Section 1292(b) is

4 || satisfied where appellate resolution “would have a significant effect on the trial of this action, and

5 || perhaps upon the parties’ efforts to reach settlement’).

6 The Court finds that securing appellate clarity on interlocutory appeal is in the interests of

7 the parties and this Court. In the long run, an appeal of these threshold issues will materially

8 speed the end of this litigation and perhaps aid in similar litigation over Meta’s TOS and

9 Community Standards.

10 Accordingly, the Court GRANTS Meta’s motion to certify an order for interlocutory

11 appeal pursuant to 28 U.S.C. section 1292(b). Further, as Meta has represented that it will

12 || continue to litigate the case while it petitions the Ninth Circuit Court of Appeals to grant such a

5 13 review, the Court shall not stay the matter. Rather, the parties are required to inform the Court by

14 || joint submission within five court days of resolution of the petition and, at that time, the Court will

3 15 determine the extent of a stay, if any.

16

= 17 IT IS SO ORDERED. on ]

18 || Dated: January 8, 2026 ( | ff tt

/JEFFR/EY S! WHATE

20 Unite/) Statés Dé&trict Judge

22

23

24

25

26

27

28