Mizera v. Google

Filing 21

Mizera v. Google

Doc. 21

Case 5:05-cv-02885-RMW

Document 21

Filed 03/09/2006

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KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 DAVID J. SILBERT - #173128 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 ADVANCED INTERNET TECHNOLOGIES, INC., a North Carolina corporation, Individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., a Delaware corporation, and DOES 1 through 100, Inclusive, Defendants. STEVE MIZERA, an Individual, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC., a Delaware corporation; and DOES 1 through 100, inclusive, Defendants. Case No. C 05 02579 RMW Consolidated with Case No. C 05 02885 RMW DECLARATION OF DAVID J. SILBERT IN SUPPORT OF DEFENDANT GOOGLE INC'S MOTION TO STAY PENDING SETTLEMENT Judge: Hon. Ronald M. Whyte June 24, 2005

Date Comp. Filed: Trial Date: None set

368596.02

SILBERT DECL. I/S/O GOOGLE'S MOTION TO STAY Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW
Dockets.Justia.com

Case 5:05-cv-02885-RMW

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I, David J. Silbert, declare that the following is true: 1. I am an attorney licensed to practice in the State of California and before this

Court. I am a partner in the law firm of Keker & Van Nest, LLP, counsel for defendant Google, Inc. ("Google") in these coordinated actions. I make this declaration of my own personal knowledge, and if called to do so, I would testify to these facts under oath. 2. On February 5, 2004, a group of plaintiffs sued Google and other major "pay-per-

click" advertising companies in the Circuit Court in Miller County Arkansas (the "Arkansas action"). A true and correct copy of the Second Amended Complaint in the Arkansas action is attached hereto as Exhibit A. 3. Attached hereto as Exhibit B is a true and correct copy of the complaint that Click

Defense filed against Google on June 24, 2005. 4. Attached hereto as Exhibit C is a true and correct copy of the complaint that Steve

Mizera filed against Google on July 15, 2005. 5. The parties in the Arkansas action have litigated a variety of issues at the trial-

and appellate-court levels in both state and federal court. In or around January 2006, after nearly a year of litigation, Google and the plaintiffs agreed to engage in discussions to attempt to settle the case. 6. In February 2006, the parties held a two-day mediation before the Hon. Layn R.

Phillips. Judge Phillips is a retired United States District Judge and a former United States Attorney, and is a highly regarded mediator. 7. Through the settlement process that Judge Phillips oversaw, the parties ultimately

signed a confidential settlement agreement. While the details of that agreement are still confidential, its principal terms include the creation of a nationwide settlement class, the establishment of a settlement fund with a total value of up to $90 million, and the resolution of all class members' claims against Google relating to "click-fraud" or other invalid clicks on payper-click advertisements. 8. A hearing on AIT's motion to intervene is currently scheduled for March 14,

2006, and a hearing on the preliminary approval of the settlement is currently set for April 3, 1

368596.02

SILBERT DECL. I/S/O GOOGLE'S MOTION TO STAY PENDING SETTLEMENT Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW

Case 5:05-cv-02885-RMW

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2006. Attached hereto as Exhibit D is a true and correct copy of the Arkansas Court's scheduling orders setting those hearings. 9. Numerous discovery activities are underway in this action, including AIT's,

Mizera's and Click Defense's responses to document requests, which are due in several weeks. Unless the parties resolve their disputes, they may also need to move in the next few weeks for the entry of a protective order, and possibly for other relief as well. 10. On March 9, 2006, I telephoned Darren Kaplan, counsel for plaintiffs in this

action. I asked Mr. Kaplan if plaintiffs would stipulate to stay the current proceedings pending the approval of the Arkansas settlement. Mr. Kaplan declined to so stipulate. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on March 9, 2005 in San Francisco, California. /s/ David Silbert __ DAVID J. SILBERT

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368596.02

SILBERT DECL. I/S/O GOOGLE'S MOTION TO STAY PENDING SETTLEMENT Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW