Advanced Internet Technologies, Inc. v. Google, Inc.

Filing 20

Advanced Internet Technologies, Inc. v. Google, Inc.

Doc. 20

Case 5:05-cv-02579-RMW

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KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 RYAN M. KENT - #220441 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Email: [e-mail]; [e-mail] Attorneys for Defendant GOOGLE, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CLICK DEFENSE INC., a Colorado corporation, Individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., a Delaware corporation, and DOES 1 through 100, Inclusive, Defendants. Case No. C 05 02579 RMW DEFENDANT GOOGLE, INC.'S ANSWER TO CLASS ACTION COMPLAINT Date Comp. Filed: Trial Date: June 24, 2005

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DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 05 02579 RMW
Dockets.Justia.com

Case 5:05-cv-02579-RMW

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Defendant Google, Inc. ("Google") answers plaintiff Click Defense, Inc. ("Click Defense") Class Action Complaint (the "Complaint") as follows: SUMMARY OF CLAIMS 1. Google admits that Click Defense originally brought this action styled as a purported

class action and asserted breach of contract, negligence, unjust enrichment, and unfair business practices claims. Since the Complaint was filed, the Court has dismissed Click Defense's negligence and unjust enrichment claims. Google has no information or knowledge to admit or deny the remaining allegations in this paragraph, and on that basis denies those allegations. THE PARTIES 2. Google has no information or knowledge to admit or deny the allegations in this

paragraph, and on that basis denies those allegations. 3. 4. Admitted. Google has no information or knowledge to admit or deny the allegations in this

paragraph, and on that basis denies those allegations. 5. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 6. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 7. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. JURISDICTION AND VENUE 8. This paragraph states a legal conclusion to which no response is required. 9. This paragraph states a legal conclusion to which no response is required. CLASS ACTION ALLEGATIONS 10. Google has no information or knowledge to admit or deny the allegations in this paragraph and on that basis denies those allegations. 11. This paragraph states a legal conclusion to which no response is required. To the extent that a response is required, Google denies the allegations in this paragraph. 1

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DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 05 02579 RMW

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SUBSTANTIVE ALLEGATIONS COMMON TO ALL COUNTS 1. Google "AdWords" and "AdSense" Programs 12. Paragraph 12 states a legal conclusion to which no response is required. 13. Admitted. 14. Google admits that it has offered to its business customers a keyword-triggered advertising program entitled "AdWords" since October 2000, and, except as so admitted, denies the allegations contained in this paragraph. 15. Google admits that AdWords advertising customers can bid an amount that they select so that online advertisements that they design will appear, in an order based on Google's proprietary analysis of a variety of factors, on the margin of certain search results. Advertisers generally pay Google based on the number of times these advertisements are clicked. Except as so admitted, Google denies the allegations contained in this paragraph. 16. Google admits that its advertisers select keywords that will trigger their advertisements, and, except as so admitted, denies the allegations contained in this paragraph. 17. Google admits that advertisers make bids for the keywords that will trigger their advertisements and, except as so admitted, denies the allegations contained in this paragraph. 18. Google admits that it offers an advertising program entitled "AdSense," that under one aspect of this program relevant ads are selected in part based on the particular website's content, and that a portion of the fee paid to Google is paid to the site which displays the ad, and, except as so admitted, denies the allegations contained in this paragraph. 19. Google admits that internet search companies besides Google offer variants on Google's AdWords program, and, except as so admitted, Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 20. Denied. 2. "Click Fraud" 21. Google has no information or knowledge to admit or deny the allegations in this paragraph regarding "click fraud" because the terms "industry," "ill intent", and "with no 2

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intention of doing business with the advertiser" are undefined and ambiguous, and on that basis denies the allegations contained therein. Further, Google has no information or knowledge to admit or deny the allegations regarding "click fraud" because "fraud as such is understood at common law" or "under the pleading requirements of the federal rules" is ambiguous, and on that basis denies the allegations contained therein. Google has no information or knowledge to admit or deny the allegations regarding the intention of the alleged "perpetrators of click fraud" and on that basis denies the allegations contained therein. 22. Denied. 23. Denied. 24. Google has given and continues to provide credits to advertisers whose ads appear to have received invalid clicks. Except as so admitted, Google denies the allegations contained in this paragraph. 25. Google has no information or knowledge to admit or deny the allegations in this paragraph, because the phrase "closed-end Google universe of internet links" is undefined and ambiguous, and on that basis denies those allegations. 3. The Pervasiveness of Click Fraud 26. Google has no information or knowledge to admit or deny the allegations in this paragraph, because the term "rampant problem" is undefined and because "some analysts" is vague and ambiguous, and on that basis denies those allegations. 27. Google admits that Mr. Reyes made the statement in quotes, and except as so admitted, denies the allegations in this paragraph. 28. Google has no information or knowledge to admit or deny the allegations in this paragraph, because the term "downplayed" and the phrase "a meeting with analysts in February" is vague and ambiguous, and on that basis denies those allegations. 4. Google's Failure to Disclose the Pervasiveness of Click Fraud 29. Denied. 30. Denied. 31. Denied. 3

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32. Denied. 33. Denied. 34. Denied. 5. Google's Agreement with the Class 35. Denied. 36. Google admits that the "AdWords Program Terms" provides that advertisers "shall be charged based on actual clicks . . . ", and, except as so admitted, denies the allegations contained in this paragraph. 37. Denied. 38. Google admits that the "AdWords Program Terms" provides that the agreement is to be "governed by California law," and, except as so admitted, denies the allegations contained in this paragraph. FACTUAL BACKGROUND 39. Google admits that on or around January 21, 2005, Click Defense entered into a written contract with Google for the placement of a pay-per-click advertisement to be displayed as a sponsored link and that Click Defense successfully bid $3 for the display of that ad, and except as so admitted, denies the allegations contained in this paragraph. 40. Google has no information or knowledge to admit or deny the allegations in this paragraph, because the term "click fraud" is vague and ambiguous, and on that basis denies those allegations. FIRST CAUSE OF ACTION (BREACH OF CONTRACT) 41. This paragraph does not require a response. 42. Google admits that the "AdWords Program Terms" provides that advertisers "shall be charged based on actual clicks . . . ", and, except as so admitted, denies the allegations contained in this paragraph. 43. This paragraph states a legal conclusion to which no response is required. 44. Denied. 4

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45. Denied. FOURTH CAUSE OF ACTION (UNFAIR BUSINESS PRACTICES) (BUSINESS & PROFESSIONS CODE 17200, ET SEQ.) 53. This paragraph does not require a response. 54. Google admits that the "AdWords Program Terms" provides that the agreement is to be "governed by California law." Google admits that, among other things, the California Business & Professions Code § 17200 provides that "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice." 55. Denied. 56. Denied. 57. Denied. 58. Denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE FAILURE TO STATE A CLAIM The Complaint and each claim set forth therein fail to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE WAIVER Assuming without conceding that the Complaint states a claim, the claims of wrongdoing in the Complaint have been waived by the plaintiff and the putative plaintiff class in whole or in part and are, to that extent, barred. THIRD AFFIRMATIVE DEFENSE STATUTE OF LIMITATIONS Assuming without conceding that the Complaint states a claim, plaintiff and the putative plaintiff class's claims are barred, in whole or in part, by the four-year statute of limitations applicable to breach of a written contract and unfair competition claims.

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FOURTH AFFIRMATIVE DEFENSE FAILURE TO MITIGATE Assuming without conceding that the Complaint states a claim, plaintiff and the putative plaintiff class have failed to mitigate its damages, if any. FIFTH AFFIRMATIVE DEFENSE LACHES Assuming without conceding that the Complaint states a claim, plaintiff and the putative plaintiff class's claims are barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE UNCLEAN HANDS Assuming without conceding that the Complaint states a claim, plaintiff and the putative plaintiff class's claims are barred, in whole or in part, by the doctrine of unclean hands. PRAYER FOR RELIEF WHEREFORE, Google prays for judgment as follows: (a) That Plaintiff takes nothing by its Complaint and the Court dismiss the Complaint

with prejudice; (b) (c) (d) proper. That the Court award Google reasonable attorneys' fees under 35 U.S.C. § 285; That the Court award Google all costs and expenses it incurs in this action; That the Court award Google such other and further relief that it deems just and

Dated: October 18, 2005

KEKER & VAN NEST, LLP

By: /s/ Ryan M. Kent ___________________ RYAN M. KENT Attorneys for Defendant GOOGLE, INC.

DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 05 02579 RMW