Levitte v. Google Inc.

Filing 18

ANSWER to Complaint by Google Inc.. (Norton, Leo) (Filed on 9/30/2008) Modified on 10/1/2008 (cv, COURT STAFF).

Download PDF
Levitte v. Google Inc. Doc. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) LEO P. NORTON (216282) (lnorton@cooley.com) 4401 Eastgate Mall San Diego, CA 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 COOLEY GODWARD KRONISH LLP PETER J. WILLSEY (pro hac vice application pending) (pwillsey@cooley.com) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION HAL K. LEVITTE, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant. Case No. 08-CV-03369 JW RS DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT Defendant Google Inc. ("Google") responds to the Complaint of Hal K. Levitte ("Plaintiff") as follows: ANSWER SUMMARY OF CLAIMS 1. Google admits that Plaintiff purports to bring this action individually and on behalf of a putative class of AdWords advertisers and that Plaintiff purports to assert various claims 1. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO against Google. Except as expressly admitted herein, Google denies the allegations of paragraph 1 and that this action can be maintained as a class action. PARTIES 2. Google admits that Plaintiff contracted for and used Google's AdWords Except as expressly admitted herein, Google lacks knowledge or advertising program. information sufficient to form a belief as to the truth of the allegations in paragraph 2, and on that basis, denies them. 3. Admitted. JURISDICTION AND VENUE 4. The allegations of paragraph 4 are legal conclusions to which no response is required. To the extent a response is required, Google admits that this Court presently has subject matter jurisdiction over this purported class action. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 4, and on that basis, denies them. 5. Google admits that it resides and does business in this judicial district. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 5, and on that basis, denies them. FACTS 6. Google admits that it offers a free search engine service that is widely recognized as the world's largest search engine, that its revenues in 2007 were approximately $16.6 billion, and that its largest revenue source in 2007 in terms of dollars was advertising revenue. Except as expressly admitted herein, Google denies the allegations of paragraph 6. 7. Google admits that it offers an advertising program called "AdWords" and that it offers an advertising program called "AdSense." Google further admits that AdWords is for advertisers, while certain aspects of AdSense are for site owners. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 7, and on that basis, denies them. 8. Google admits that at one point in time, among other descriptions, it described the 2. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO AdWords program similarly to the block quote in paragraph 8, but denies that Plaintiff has put the block quote in the proper context and that the description is a complete description of the AdWords program or Plaintiff's contractual relationship with Google relating to the AdWords program. Except as expressly admitted herein, Google denies the allegations of paragraph 8. 9. Google admits that under the Google AdWords program, advertisers may select and bid on particular internet search terms, and that when an internet user employs Google to search for selected terms, Google displays ads of customers on the Google webpage that returns the search results. Google further admits that advertisers may opt to pay Google based on the number of Internet users who click on their ads. Except as expressly admitted herein, Google lacks information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 9, and on that basis, denies them. 10. Google admits that at one point in time, among other descriptions, it described the AdSense program similarly to the block quote in paragraph 10, but denies that Plaintiff has put the block quote in the proper context. Except as expressly admitted herein, Google denies the allegations of paragraph 10. 11. 12. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 12, and on that basis, denies them. 13. Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 13, and on that basis, denies them. 14. Google admits that "AdSense for Domains" is an advertising program in which owners of parked domain pages allow the placement of AdWords advertisements on such pages and in which Google uses its technology to target advertisements to such pages. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 14, and on that basis, denies them. 15. Google admits that at one point in time, among other descriptions, it described "AdSense for Domains" similar to the blocked-quote in paragraph 15, but denies that Plaintiff has put the block quote in the proper context. Except as expressly admitted herein, Google denies the 3. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO allegations of paragraph 15. 16. 17. Denied. Google admits that one aspect of its AdWords advertising program involves a cost per click basis. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 17, and on that basis, denies them. 18. 19. Denied. Google admits that at one point in time, among other descriptions, it described the Content Network similarly to the blocked-quote in paragraph 19, but denies that Plaintiff has put the block quote in the proper context and that the description is a complete description of the AdWords program or Plaintiff's contractual relationship with Google relating to the AdWords program. Except as express admitted herein, Google denies the allegations of paragraph 19. 20. Google admits that at one point in time, among other descriptions, it described the Search Network in a web page similarly to the blocked-quote in paragraph 20, but denies that Plaintiff has put the block quote in the proper context and that the description is a complete description of the AdWords program or Plaintiff's contractual relationship with Google relating to the AdWords program. Except as express admitted herein, Google denies the allegations of paragraph 20. 21. 22. 23. Denied. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 23, and on that basis, denies them. 24. Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 24, and on that basis, denies them. 25. 26. 27. 28. Denied. Denied. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of 4. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO the allegations of paragraph 28, and on that basis, denies them. 29. Google admits that AdWords advertisers can set various settings relating to the placement of advertisements, including Google Search, Search Network, and Content Network. Except as expressly admitted herein, Google denies the allegations of paragraph 29. 30. 31. Denied. Google admits that it did not refund Plaintiff for charges he incurred on a cost per click basis, that it examined Plaintiff's complaints, and that it had communications with Plaintiff. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 31, and on that basis, denies them. 32. 33. 34. Denied. Denied. Google admits that the out-of-context, block-quoted language appeared at some point in time, among other things, on a Google web page for learning about AdWords. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 34, and on that basis, denies them. 35. Google admits that the Placement Performance Report is an AdWords report that presently provides site-by-site performance metrics for ads across the Google Content Network. Except as expressly admitted herein, Google denies the allegations of paragraph 35. 36. 37. Denied. Google admits that Plaintiff accurately quotes from one out-of-context sentence of a multi-sentence blog posting on June 12, 2007, but denies that Plaintiff has put the quote in the proper context or that Plaintiff's quote is the complete blog posting. Except as expressly admitted herein, Google denies the allegations of paragraph 37. 38. 39. Denied. Google admits that it posted a blog entry on May 2, 2008 with the title "Where did I park?" on the AdWords Agency Blog. Except as expressly admitted herein, Google denies the allegations of paragraph 39. 40. Google admits that Plaintiff quotes a portion of the blog entry referred to in 5. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO paragraph 40, but denies that Plaintiff has put the quote in the proper context or that Plaintiff's quote is the complete blog posting. Except as expressly admitted herein, Google denies the allegations of paragraph 40. 41. Denied. CLASS ALLEGATIONS 42. Google admits that Plaintiff purports to bring this action individually and on behalf of a putative class of AdWords advertisers. Except as expressly admitted herein, Google denies the allegations of paragraph 42. 43. Google admits that Plaintiff purports to bring this action individually and on behalf of a putative class of AdWords advertisers. Except as expressly admitted herein, Google denies the allegations of paragraph 43. 44. Google admits that Plaintiff purports to bring this action individually and on behalf of a putative class of AdWords advertisers. Except as expressly admitted herein, Google denies the allegations of paragraph 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. The allegations of paragraph 53 are legal conclusions to which no response is required. To the extent a response is required, Google denies the allegations of paragraph 53. FIRST CLAIM FOR RELIEF (VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE SECTION 17200 ET SEQ. UNFAIR CONDUCT) 54. Google hereby incorporates as through fully set forth herein its answers to 6. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO paragraphs 1 through 53. 55. 56. 57. 58. 59. 60. 61. Denied. Denied. Denied. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 61, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 61. 62. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 62, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 62. SECOND CLAIM FOR RELIEF (VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE SECTION 17200 ET SEQ. FRAUDULENT CONDUCT) 63. Google hereby incorporates as through fully set forth herein its answers to paragraphs 1 through 62. 64. 65. 66. 67. 68. 69. 70. Denied. Denied. Denied. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 70, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 70. 71. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 71, 7. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 71. THIRD CLAIM FOR RELIEF (VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE 17200 ET SEQ. UNLAWFUL CONDUCT) 72. Google hereby incorporates as through fully set forth herein its answers to paragraphs 1 through 71. 73. 74. 75. 76. 77. Denied. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 77, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 77. 78. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 78, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 78. FOURTH CLAIM FOR RELIEF (VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE 17500 ET SEQ.) 79. Google hereby incorporates as through fully set forth herein its answers to paragraphs 1 through 78. 80. Google admits that Plaintiff purports to bring this action individually and on behalf of a putative class of AdWords advertisers. Except as expressly admitted herein, Google denies the allegations of paragraph 80. 81. 82. 83. 84. Admitted. Denied. Denied. Denied. 8. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO 85. Google admits that Plaintiff purportedly seeks the relief requested in paragraph 85, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 85. FIFTH CLAIM FOR RELIEF (UNJUST ENRICHMENT) 86. Google hereby incorporates as through fully set forth herein its answers to paragraphs 1 through 85. 87. 88. 89. 90. 91. Denied. Denied. Denied. Denied. Denied. SEPARATE AND ADDITIONAL DEFENSES As and for separate and additional defenses, Google alleges as follows: FIRST SEPARATE AND ADDITIONAL DEFENSE (Failure to State a Cause of Action) 1. The Complaint and each and every claim alleged therein fail to state facts sufficient to constitute a cause of action upon which relief may be granted. SECOND SEPARATE AND ADDITIONAL DEFENSE (Lack of Standing) 2. Plaintiff lacks standing to assert the claims alleged in the Complaint. THIRD SEPARATE AND ADDITIONAL DEFENSE (No Harm) 3. Google is informed and believes, and therefore alleges, that neither Plaintiff nor any putative class member sustained any loss, damage, harm, or detriment in any amount as a result of any alleged acts, omissions, fault, fraud, carelessness, recklessness, negligence, or other breach of duty by Google. 9. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO FOURTH SEPARATE AND ADDITIONAL DEFENSE (Res Judicata/Collateral Estoppel) 4. Plaintiff and some or all of the putative class members are barred from pursuing the Complaint and the claims asserted therein against Google pursuant to the Final Order and Judgment Approving Settlement, Certifying Class for Settlement Purposes, Awarding Class Counsel Attorneys' Fees and Dismissing Action With Prejudice, entered by the Honorable Joe. E. Griffin, Circuit Court Judge in the Circuit Court of Miller County, Arkansas on June 26, 2006 in Lane's Gifts & Collectibles LLC, et. al. v. Yahoo! Inc., et. al., Case No. CV-2005-52-1. FIFTH SEPARATE AND ADDITIONAL DEFENSE (LACHES) 5. The Complaint and the claims asserted therein are barred by the doctrine of laches. SIXTH SEPARATE AND ADDITIONAL DEFENSE (UNCLEAN HANDS) 6. unclean hands. SEVENTH SEPARATE AND ADDITIONAL DEFENSE (ESTOPPEL) 7. estoppel. EIGHTH SEPARATE AND ADDITIONAL DEFENSE (WAIVER) 8. waiver. NINTH SEPARATE AND ADDITIONAL DEFENSE (JUSTIFICATION) 9. The Complaint and the claims asserted therein are barred because to the extent The Complaint and the claims asserted therein are barred by the doctrine of The Complaint and the claims asserted therein are barred by the doctrine of The Complaint and the claims asserted therein are barred by the doctrine of Google engaged in any of the alleged acts, omissions, or conduct, it did so with justification. 10. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO TENTH SEPARATE AND ADDITIONAL DEFENSE (NO QUASI-CONTRACTUAL REMEDY) 10. Plaintiff's claim for unjust enrichment is barred because unjust enrichment is a quasi-contractual remedy that cannot be stated here because there is an express contract between Plaintiff and Google. ELEVENTH SEPARATE AND ADDITIONAL DEFENSE (CONTRACT) 11. The Complaint and claims asserted therein are barred because the parties entered into a contract that contemplated, provided for, and authorized the acts or conduct complained of and on which recovery is sought. TWELFTH SEPARATE AND ADDITIONAL DEFENSE (CONSENT OR AUTHORIZATION) 12. The Complaint and claims asserted therein are barred because Plaintiff expressly or impliedly approved, authorized, ratified, or consented to the complained acts or conduct, and is therefore precluded from recovery. THIRTEENTH SEPARATE AND ADDITIONAL DEFENSE (STATUTE OF LIMITATIONS) 13. The Complaint and claims asserted therein are barred, in whole or in part, by the applicable statute of limitations, including, but not limited to, California Code of Civil Procedure sections 338 and 340 and California Business and Professions code section 17208. FOURTEENTH SEPARATE AND ADDITIONAL DEFENSE (FAILURE TO MITIGATE) 14. The Complaint and claims asserted therein are barred, in whole or in part, by Plaintiff and the putative class' failure to mitigate their damages, if any. FIFTEENTH SEPARATE AND ADDITIONAL DEFENSE (ADDITIONAL DEFENSES) 15. Google hereby reserves its right to seek leave to amend this Answer to set forth additional defenses based on its ongoing investigation and discovery into the matters alleged in 11. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY GODWARD KRONISH LLP ATTORNEYS AT LAW SAN DIEGO the Complaint. PRAYER FOR RELIEF WHEREFORE, Google prays for relief and judgment as follows: 1. That the Court deny Plaintiff's prayer for relief in its entirety and that the Court dismiss the Complaint with prejudice and enter judgment in Google's favor and against Plaintiff; 2. That the Court award Google its costs and expenses that it incurs in this action and attorneys' fees as permitted by law; and 3. appropriate. Dated: September 30, 2008 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) PETER J. WILLSEY (pro hac vice appl. pending) LEO P. NORTON (216282) That the Court award Google such other and further relief that it deems /s/Leo P. Norton Leo P. Norton Attorneys for Defendant GOOGLE INC. Email: lnorton@cooley.com 604669 /SD 12. DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03369 JW RS