Viacom International Inc. et al v. YouTube, Inc. et al

Filing 11

ORDER by Judge Susan Illston granting 5 Motion for Pro Hac Vice (ga, COURT STAFF) (Filed on 6/24/2008)

Viacom International Inc. et al v. YouTube, Inc. et al

Doc. 1

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COOLEY GODWARD KRONISH LLP
ATTORNEYS AT LAW SAN DIEGO

COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) ([e-mail]) LEO P. NORTON (216282) ([e-mail]) 4401 Eastgate Mall San Diego, CA 92121 Telephone: [phone] Facsimile: [phone] COOLEY GODWARD KRONISH LLP PETER J. WILLSEY (pro hac vice application pending) ([e-mail]) 777 6th Street, N.W. Washington, D.C. 20001 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

PULASKI & MIDDLEMAN, LLC., individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant.

Case No. 08-CV-03888 SI DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT

Defendant Google Inc. ("Google") responds to the Complaint of Pulaski & Middleman, LLC. ("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-03888 SI

Dockets.Justia.com

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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. Google admits the allegations of paragraph 3 except for the last sentence. As to

the last sentence, Google admits that that its revenues in 2007 were approximately $16.6 billion, and that 99% of its revenue was from Google's advertising programs. Except as expressly admitted herein, Google denies the allegations of paragraph 3. 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. 6. Google admits that it resides and does business in this judicial district. Except as

expressly admitted herein, the allegations of paragraph 6 are legal conclusions to which a response is not required, or Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 6, and on that basis, denies them. FACTUAL BACKGROUND A. General Background 7. Google admits that Plaintiff purports to quote a single sentence from the current

version of the web page cited in paragraph 7, but denies that Plaintiff has put the quote in the 2.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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proper context. Except as expressly admitted herein, Google denies the allegations of paragraph 7. 8. Google admits that an aspect of its advertising programs is called "AdWords" and

that 99% of its revenue was from advertising programs from 2004 to 2007. Except as expressly admitted herein, Google denies the allegations of paragraph 8. 9. Google admits that its advertising network reaches a large segment of Internet

users worldwide and that Plaintiff quotes from and reproduces a table from the current version of the web page cited on line 27 of page 2, but denies that Plaintiff has put the quote in the proper context. Except as expressly admitted herein, Google denies the allegations of paragraph 9. 10. 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 10, and on that basis, denies them. B. Google Network 11. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 11, and on that basis, denies them. 12. 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 admits that Plaintiff purports to quote from and reproduce a part of the

current version of the web page cited in paragraph 13, but denies that Plaintiff has put the quote and reproduction in the proper context. Except as expressly admitted herein, 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 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 Plaintiff purports to quote from part of a Google web page

cited in paragraph 15, but denies that Plaintiff has put the quote in the proper context. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to 3.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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the truth of the allegations of paragraph 15, and on that basis, denies them. 16. Google admits that its Search Network currently includes Google Product Search

and Google Groups and the entities listed in paragraph 16. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 16, and on that basis, denies them. 17. Google admits that Plaintiff purports to quote from part of a Google web page, but

denies that Plaintiff has put the quote in the proper context or that the quote is accurate or complete. 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. Google admits that it offers an AdSense for Mobile program. Except as expressly

admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 18, and on that basis, denies them. 19. Google admits that it offers an AdSense for Video program. Except as expressly

admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 19, and on that basis, denies them. 20. 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 20, and on that basis, denies them. 21. C. Denied.

Google AdWords Program 22. Google admits that AdWords launched in 2000, that it is an aspect of Google's

advertising programs, and that through AdWords, advertisers can place advertisements through the Google Network, which reaches a large segment of Internet users worldwide. Except as expressly admitted herein, Google denies the allegations of paragraph 22. 23. 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. 4.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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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. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 25, and on that basis, denies them. 26. Google admits that AdWords advertisements can be displayed on the Search

Network or the Content Network. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 26, and on that basis, denies them. 27. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 27, and on that basis, denies them. 28. Google admits that Plaintiff purports to quote from a part of the current version of

the web page cited in paragraph 28, but denies that Plaintiff has put the quote in the proper context. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 28, and on that basis, denies them. 29. Google admits that Plaintiff purports to quote from a part of the current version of

the web page cited in paragraph 29, but denies that Plaintiff has put the quote in the proper context. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 29, and on that basis, denies them. 30. Google admits that Plaintiff purports to quote from and refer to a part of the

current version of the web page cited in paragraph 30, but denies that Plaintiff has put the quote in the proper context, that the quote and references are complete, and that the web page is a complete description of the AdSense program. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 30, and on that basis, denies them. 31. Google admits that Plaintiff purports to quote from a part of the current version of

the web page cited in paragraph 31, but denies that Plaintiff has put the quote in the proper context. 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. 5.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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32.

Google admits that Plaintiff purports to quote from a part of the current version of

the web page cited in paragraph 32, but denies that Plaintiff has put the 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 lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 32, and on that basis, denies them. 33. 34. Denied. 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. D. Denied.

Inclusion of Low-Quality Parked Domains and Error Pages in Google Networks. 36. 37. 38. 39. Denied. Denied. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 39, and on that basis, denies them. 40. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 40, and on that basis, denies them. 41. 42. 43. 44. Denied. Denied. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 44, and on that basis, denies them. 45. 46. 47. 48. Denied. Denied. Denied. Denied.

6.

DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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E.

Monetization of AdWords Advertisements 49. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 49, and on that basis, denies them. 50. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 50, and on that basis, denies them. 51. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 51, and on that basis, denies them. 52. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 52, and on that basis, denies them. 53. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 53, and on that basis, denies them. 54. 55. Admitted. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 55, and on that basis, denies them. 56. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 56, and on that basis, denies them. 57. Google admits that Plaintiff purports to quote from a part of the current version of

the web page cited in paragraph 57, but denies that Plaintiff has put the quote in the proper context. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 57, and on that basis, denies them. 58. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 58, and on that basis, denies them. 59. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations of paragraph 59, and on that basis, denies them. 60. F. Admitted.

AdWords Contracts, Guidelines, and Policies 61. Google admits that AdWords advertisers agree to the Google Inc. Advertising

Program Terms and to the Google Terms of Service and that AdWords advertisers agree to be 7.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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subject to all applicable Google and Partner policies. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 61, and on that basis, denies them. 62. 63. 64. 65. 66. Denied. Denied. Denied. Denied. Google admits that AdWords advertisers agree to the Google Inc. Advertising

Program Terms and to the Google Terms of Service and that AdWords advertisers agree to be subject to all applicable Google and Partner policies. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 66, and on that basis, denies them. 67. Google admits that AdWords advertisers agree to the Google Inc. Advertising

Program Terms and to the Google Terms of Service and that AdWords advertisers agree to be subject to all applicable Google and Partner policies. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 67, and on that basis, denies them. 68. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 68, and on that basis, denies them. 69. 70. Denied. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 70, and on that basis, denies them. 71. Google admits that Plaintiff purports to quote for a part of paragraph 2 of the

Google Inc. Advertising Program Terms. Except as expressly admitted herein, Google denies the allegations of paragraph 71. 72. 73. 74. Denied. Denied. Denied. 8.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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75. 76. 77. 78. 79. G.

Denied. Denied. Denied. Denied. Denied.

Google Representations, Promises, and Communications 80. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 80, and on that basis, denies them. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. H. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied.

Contextual Targeting Technology 93. Google admits that Plaintiff purports to quote from part the web page cited in Except as

paragraph 93, but denies that Plaintiff has put the quote in the proper context. expressly admitted herein, Google denies the allegations of paragraph 93. 94.

Google admits that Plaintiff purports to quote from and reproduce certain

examples from a Google web page, but denies that Plaintiff has put the quote and reproduction in the proper context. paragraph 94. 9.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

Except as expressly admitted herein, Google denies the allegations of

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I.

Google Site Exclusion Tool 95. 96. Denied. Google admits that it posted a blog on or about March 6, 2008 regarding Google's Except as expressly admitted herein, Google denies the

site and category exclusion tool. allegations of paragraph 96. 97. 98. 99. J. Denied. Denied. Denied.

Performance Reporting 100. Google lacks knowledge or information sufficient to form a belief as to the truth of

the allegations in paragraph 100, and on that basis, denies them. 101. 102. 103. 104. 105. 106. Denied. Denied. Denied. Denied. 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 106. 107. Google admits that Plaintiff quotes a portion of the blog entry referred to in

paragraph 107, 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 107. 108. 109. 110. 111. 112. Denied. Denied. Denied. Denied. Denied. 10.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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113. 114.

Denied. Denied. CLASS ALLEGATIONS

115.

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 115. 116. 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 116. 117. 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 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. The allegations of paragraph 126 are legal conclusions to which no response is

required. To the extent a response is required, Google denies the allegations of paragraph 126. FIRST CLAIM FOR RELIEF (Breach of Contract) 127. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 126. 128. 129. Denied. Google admits that Plaintiff contracted for and used Google's AdWords 11.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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advertising program and that Plaintiff entered into at least the two contracts referenced in paragraph 129. Except as expressly admitted herein, Google lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 129, and on that basis, denies them. 130. 131. 132. 133. Denied. Denied. Denied. Denied. SECOND CLAIM FOR RELIEF (Breach of Covenant of Good Faith and Fair Dealing) 134. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 133. 135. 136. 137. 138. 139. Denied. Denied. Denied. Denied. Denied. THIRD CLAIM FOR RELIEF (Violation of California Business & Professions Code Section 17200 Et Seq. ­ Unfair Conduct) 140. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 139. 141. 142. 143. 144. 145. 146. Denied. Denied. Denied. Denied. Denied. Denied. 12.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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147. 148.

Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

148 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 148. 149. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

149 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 149. FOURTH CLAIM FOR RELIEF (Violation of California Business & Professions Code Section 17200 Et Seq. ­ Fraudulent Conduct) 150. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 149. 151. 152. 153. 154. 155. 156. 157. Denied. Denied. Denied. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

157 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 157. 158. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

158 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 158. 13.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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FIFTH CLAIM FOR RELIEF (Violation of California Business & Professions Code § 7200 Et Seq. ­ Unlawful Conduct) 159. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 158. 160. 161. 162. 163. 164. Denied. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

164 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 164. 165. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

165 individually and on behalf of a putative class of AdWords advertisers, but denies that Plaintiff is entitled to the relief requested and that this action can be maintained as a class action. Except as expressly admitted herein, Google denies the allegations of paragraph 165. SIXTH CLAIM FOR RELIEF (Violation of California Business & Professions Code § 17500 Et Seq.) 166. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 165. 167. 168. 169. 170. 171. Admitted. Denied. Denied. Denied. Google admits that Plaintiff purportedly seeks the relief requested in paragraph

171, but denies that Plaintiff is entitled to the relief requested. Except as expressly admitted herein, Google denies the allegations of paragraph 171. 14.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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SEVENTH CLAIM FOR RELIEF (Unjust Enrichment) 172. Google hereby incorporates as through fully set forth herein its answers to

paragraphs 1 through 171. 173. 174. 175. 176. 177. 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. 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 15.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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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. 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. 16.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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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 337 and 338 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 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; 17.
DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI

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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, 3008 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: [e-mail]
604683 /SD

18.

DEFENDANT GOOGLE INC.'S ANSWER TO COMPLAINT 08-CV-03888 SI