Mizera v. Google

Filing 16

JOINT CASE MANAGEMENT STATEMENT and [Proposed] Order filed by Google Inc.,. (Durie, Daralyn) (Filed on 11/15/2005)

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Mizera v. Google Doc. 16 Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 1 of 8 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 RICHARD L. KELLNER, SBN 171416 FRANK E. MARCHETTI, SBN 203185 KABATECK BROWN KELLNER LLP 350 South Grand Avenue, 39th Floor Los Angeles, California 90071-3801 Telephone: (213) 217-5000 Facsimile: (213) 217-5010 DARREN T. KAPLAN (Admitted Pro Hac Vice) GREGORY E. KELLER (To be admitted Pro Hac Vice) CHITWOOD HARLEY HARNES LLP 2300 Promenade II 1230 Peachtree Street, NE Atlanta, Georgia 30309 Telephone: (404) 873-3900 Facsimile: (404) 876-4476 SHAWN KHORRAMI, SBN 180411 LAW OFFICES OF SHAWN KHORRAMI 14550 Haynes Street, Third Floor Van Nuys, California 91411 Telephone: (818) 947-5111 Facsimile: (818) 947-5121 Attorneys for Plaintiff KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 CLEMENT S. ROBERTS - #209203 RYAN M. KENT - #220441 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Defendant GOOGLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 1 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Dockets.Justia.com Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 2 of 8 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 STEVE MIZERA, An Individual, Individually and on behalf of all others similarly situated, Plaintiff, vs. GOOGLE, INC., a Delaware Corporation, and DOES 1 through 100, Inclusive, Defendants. Case No. 5:05 ­cv-02885 RMW E-FILING JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Date: Time: Judge: November 18, 2005 10:30 a.m. Hon. Ronald M. Whyte July 17, 2005 None Set Date Comp. Filed: Trial Date: Plaintiff Steve Mizera ("Mizera") and defendant Google, Inc. ("Google") submit this Case Management Statement and Proposed Order and requests the Court to adopt it as its Case Management Order in this case. The parties have met and conferred over this statement and have agreed to jointly file this statement I. DESCRIPTION OF THE CASE Mizera brings this action alleging that Google overcharged for pay-per-click advertising by charging Mizera for "fraudulent clicks." Mizera defines "click fraud" in his Complaint as "when someone clicks on an internet search advertisement with an ill intent and with no intention of doing business with the advertiser." Mizera asserts causes of action for (1) breach of contract, (2) unjust enrichment, and (3) unfair business practices and seeks class certification. Google filed a motion to dismiss the unjust enrichment cause of action on September 20, 2005. On October 4, 2005, Mizera filed a Statement of Non-Opposition pursuant to Civil L.R. 73(b). The motion was then taken off calendar as a result of the case being re-assigned to the Hon. Ronald M. Whyte. To date, Google has neither re-noticed the motion nor filed an answer to the amended complaint. The parties are not yet in a position to identify all of the principal factual and legal issues in dispute. But it is clear that the parties will dispute at least the following factual and legal issues: (1) whether a class should be certified in this action; (2) whether Google charged Mizera 2 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 3 of 8 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 and the class for "fraudulent clicks"; (3) whether Google's alleged charging of Mizera and the class for "fraudulent clicks" constitutes a breach of contract; and (4) whether Google's alleged charging of Mizera and the class for "fraudulent clicks" constitutes an unlawful, unfair, and/or fraudulent business act and practice. II. RELATED ACTION This Court has Ordered that the instant action is related to the action entitled Click Defense, Inc. v. Google, Inc. (United States District Court for the Northern District of California, Case No. C 05 02579 RMW). In addition, the parties intend to enter a Stipulation to have the instant action consolidated with the Click Defense action, and to coordinate discovery and the filing of class certification motions before this Court. III. CLASS ACTION STATEMENT Plaintiff believes that this action is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b). This action is brought on behalf of all persons and/or entities that paid money to Google for advertising through Google's "AdWords" program. Excluded from the Class are Defendants, officers and directors of the Company, members of the immediate families and each of their legal representatives, heirs, successors or assigns and any entity in which Google has or has had a controlling interest. Mizera is entitled to maintain this action pursuant to Federal Rule of Civil Procedure 23(a) and (b) in that: 1. (a) Class Action Prerequisites the members of the Class for whose benefit this action is brought are dispersed throughout the United States and are so numerous that joinder of all Class members is impracticable. Plaintiff believes that Class members number in the thousands. Members of the Class may be identified from records maintained by Google and may be notified of the pendency of this action by mail, using a form of notice similar to that customarily used in class actions; 3 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 4 of 8 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 (b) Plaintiff's claims are typical of those of the Class as all members of the Class are similarly affected by Google's actionable conduct as alleged herein; (c) Plaintiff will fairly and adequately protect the interests of the Class and has retained counsel competent and experienced in class action litigation including class actions within the Northern District of California. Plaintiff has no interests antagonistic to, or in conflict with, the Class that Plaintiff seeks to represent; (d) a class action is superior to other available methods for the fair and efficient adjudication of the claims asserted herein, because joinder of all members is impracticable. Furthermore, because the damages suffered by individual members of the Class may be relatively small, the expense and burden of individual litigation make it virtually impossible for Class members to redress the wrongs done to them. The likelihood of individual Class members prosecuting separate claims is remote; (e) action; and (f) the questions of law and fact common to the members of the Class Plaintiff anticipates no difficulties in the management of this action as a class predominate over any questions affecting individual members of the Class. Among the questions of law and fact common to the Class are: i. the pervasiveness of advertising "click fraud"; ii. the construction of the agreement between Google and the Class; iii. Google's acts and/or omissions as alleged herein; iv. whether Google's promotional and advertising materials for its "AdWords" program misrepresented and/or omitted material facts with respect to the pervasiveness of "click fraud"; v. whether Google has breached its agreement with the class; vi. whether Google has taken adequate measures to prevent "click fraud;" vii. whether Google has properly accounted and for and refunded fees it has wrongfully collected from identified victims of "click fraud"; 4 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 5 of 8 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 2. viii. to what extent the members of the Class have sustained damages and the proper measure of damages; and ix. the agreement between Google and the class provides that it is to be "governed by California law." Therefore, a single body of substantive state law applies to this action such that a nationwide class may be certified. In addition the prosecution of separate actions by or against individual members of the class would create a risk of: (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, and (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; 3. Further, in allegedly charging the class for fraudulent clicks Google has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; and 4. Questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy as demonstrated by the following pertinent matters: (a) The interest of members of the class in individually controlling the prosecution or defense of separate actions is minimal; (b) The only other litigation concerning the controversy already commenced by or against members of the class was commenced in Arkansas state court notwithstanding that the agreement between Google and all members of the class provides that, "[t]his Agreement must be . . . adjudicated in Santa Clara County, California," which is within the Northern District of California; 5 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 6 of 8 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 (c) It is desirable to concentrate the litigation of the claims in the Northern District of California insofar in that (1) Google resides in this judicial district, (2) a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this judicial district, (3) Google is subject to personal jurisdiction in the Northern District of California and (4) the agreement between Google and all members of the class provides that the agreement is to be "governed by California law"; (d) The difficulties likely to be encountered in the management of a class action are minimal and the Northern District of California has significant experience in managing class actions of this type. Google disputes all of the above statements to the extent that the same could be construed as an admission that certification of a class is appropriate or legally permissible in this litigation. The parties jointly propose that the court consider whether the case can be maintained as a class action on May 12, 2006. IV. ALTERNATIVE DISPUTE RESOLUTION The parties have not filed a Stipulation and Proposed Order Selecting an ADR process as yet, however the parties jointly request mediation as their preferred ADR process. V. DISCLOSURES The parties have not made the disclosures required by Rule 26, Federal Rule of Civil Procedure. The parties will attempt to meet and confer on the appropriate schedule for these disclosures. The parties propose to follow the schedule set forth in the Federal Rules of Civil Procedure and make its disclosure within seven days of the case management conference. VI. DISCOVERY The parties likely intend to pursue all discovery methods available under the Federal Rules of Civil Procedure, including depositions, interrogatories, requests for admission, and requests for production. Consistent with the Court's Case Management Order in the related Click Defense action, the parties request that discovery be limited before class certification to the following: (a) requests for the production of documents and things; (b) no more than twenty 6 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 7 of 8 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 interrogatories including all discrete subparts; and (c) no more than five depositions. The parties request the following schedule: 11/25/05 2/6/06 3/20/06 4/10/06 4/17/06 5/2/05 5/12/06 5/12/06 Deadline for plaintiff to amend complaint; Deadline for plaintiff to file motion for class certification; Deadline for defendant to file response to plaintiff's motion for class certification; Deadline to complete discovery on class certification issues; Deadline for plaintiff to file reply in support of its motion for class certification; Parties to exchange exhibit lists and pre-marked exhibits for class certification hearing; Hearing on Motion for Class Certification at 9:00 a.m.; and Status conference with all parties at 10:30 a.m. VII. TRIAL SCHEDULE The parties jointly request that the Court set a trial date at the status conference following the hearing on plaintiff's motion for class certification. Dated: November 15, 2005 KEKER & VAN NEST, LLP By: /s/ Daralyn J. Durie _________________ DARALYN J. DURIE Attorneys for Defendant GOOGLE, INC. Dated: October 17, 2005 CHITWOOD HARLEY HARNES LLP By: /s/ Darren T. Kaplan_________________ DARREN T. KAPLAN Attorneys for Plaintiff STEVE MIZERA 7 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW Case 5:05-cv-02885-RMW Document 16 Filed 11/15/2005 Page 8 of 8 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 CASE MANAGEMENT ORDER The Case Management Statement and Proposed Order is hereby adopted by the Court as the Case Management Order for the case and the parties are ordered to comply with this Order. Dated: By: _________________________________ THE HONORABLE RONALD M. WHYTE UNITED STATES DISTRICT COURT JUDGE 8 362376.03 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER CASE NO. C 05 02579 RMW

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