Mizera v. Google

Filing 21

Mizera v. Google

Doc. 21 Att. 1

Case 5:05-cv-02885-RMW

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Filed 03/09/2006

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EXHIBIT A

Dockets.Justia.com

Case 5:05-cv-02885-RMW
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IN TIm CIRCUIT COURT OF MILLER COUNTY, ARKASAS
LANE'S GIFTS AND COLLECTIBI£S, L.L.C., U.S. CITIZENS FOR FAl CREDIT
§
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CAR TERMS, INC., SAVINGS 4 MERCHATS, INC., AND MA CAULFIELD
d/b/a CAULFIELD INVESTIGATIONS,

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INIVIDUALLY AN AS .
CLASS REPRESENT ATIÊS ON BEHALF OF ALL SIMLARY SITIATED PERSONS,

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Plaintiff,
Vs.

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INC., Tll WARR INC., AMRICA §
ONLIN, INC., NETS

YAHOO! INC., OVERTUR SERVICES, §

§ §

CASE NO. CV -2005-52-1

COMMICA TJONS CORPORATION, § .
ASK JEEVES, INC., BUENA VISTA INTERNET § GROUP D/B/A GO.COM, GOOGLE INC., § L Yeas, INC., LOOKSMAT, L m., and §

CAPE §

FIl1DWHAT.COM, JNC. § Defendants. §

NATIONAL CLASS ACTION

PLAINTIFFS' SECOi\'1 AM1\TDED CLASS COMPLAIT
COME'NOW, Plaitiffs Lane's Gifts and Collectibles, L.L.C., U.S. Citizens for Fai

Credit Card Terms, Inc. Savings 4 Merchants, Inc. and Max Caulfield d/b/a Caulfield

Investgations, Individually and as Class .Representatives on Behalf of All Simlarly Situated

Persons, and submit the followig First Amendlrd Class Complaint against Yahoo! Inc., Overte
i

Services, Inc., Time Warer Inc., America Online, hiC., Netscape Communications Corporation,
Ask Jeeves, Inc., Buena Vista Internet Group d/b/a Go.com, Google Inc., Lycos, Inc.,
Looksmart, Ltd., and FindWhatcoin, Inc. (hereinafter referred to as "Defendants").

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PUiJNTIFFS' SECOND AMENDED CLASS COMPLAfNT Pngc 1

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INTRODUCTION AJi- NATU OF CASE
l. Defendants are internet search engines and/or corporate entities providing web search

capabilities and sel1 Pay Per Click (hereinafter referred to as "PPC") advertising.
2. Defendants collected and or shared revenues for the PPC advertising charged to

Plaintiffs.
3. In 2004, PPC advertsing revenues were approximately $4 bilion dollars nationwide.
4. Defendants charged and/or collected rev.enne for PPC advertising from Plaintiffs and
Class which was not generated by actual consuer click through advertsing.
;1, .

5. Accordigly, Plaitiffs and al other simarly situated persons anQ/or members oftbe

Class were charged for services which were not provided by Defendants.

PARTIES
6. Plaintiff, Lane's Gif and Collectibles, L.L.C. is an Arkansas Corporation.
7. Plaintiff

U.S. Citizens for Fair Credit Care Terms, Inc. is an Arkansas Corporation.

8. Plaitiff Savings 4 Merchants, Inc. is a Californa Corporation.

9. Plaintiff Max Cauleld d//a Caulfeld Investigations is an individual d/b/a Caulfeld

Investigations and is a Florida resident.
10. Defendant Yahoo! Inc. is a Delaware Corporation that has done busiiiess in the State of

Arkanas in the past and has not appointed a registered agent for service in the State of Arkansas.
Accordingly, service may be made by serving its Registered Agent for service of

Corporation Service Company, 2711 Centervile Road, Suite 400, Wilmngton, D,elawaTe 19808.
1 i. Defendiit Oveiture Services, Inc. is a Delaware Corporation that has done business in

ij '.

process at

the State of Arkansas in the past and has not appointed a registered agent for service in the State
of Arkansas. Accordingly, service may be made by serving its Registered Agent for service of

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process at Corporation Service Company, 271l Centervile Road, Suite 400, Wilmington,
Delaware, 19808.

12. Defendant Time Warer, Inc. is a Delaware Corporation that has done business in the
Sta1e of Arkansas in the past and has not appointed a registered agent for service in the State of

Arkansas. Accordingly, service may be made by .serving its Registered Agent for service of
process at The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,

Wilmgton, Delaware, 19801.
13. Defendant Amenca Online, Inc. is a Delaware Corporation that has done business in the
State of Arkansas in the past and has not appointed a registered agent for servce in the State of
.,

Arkansas, Accordingly, service may be made by serving its Registt:red Agent for service of

process at The Prentice-Hal Corporation System, Inc., 2711 Centerville Road, Suite 400,
Wilgton, Delaware, 19808.

14. Defendant Netscape Communcations Corporation is a Delaware Corporation that has

done business in the State of Arkansas in the past and has not appointed a registered agent for
service in the State of Arkanas. Accordingly, service may be made

by serving its Registered

Agent for service of

process at Corporation Service Company, 271 1 Centerville Road, Suite 400,

Wilmington, Delaware, 19808.

15. Defendant Ask Jeeves, Inc. 'is a pelawaTe Corporation that has done business in the State
of Arkansas in the past and has not appointed a registered agent for service in the State of

Arkansas. AccordjDgly, service may be made by servg its Registered Agent for service of

process at National Registered Agents, Inc., 9 East Loockerman Street, Suite 1 B, Dover,
Delaware, 19901.

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16. Defendant Bl,ena Vista Internet Group d//a Go.com is a California CorporatíoD that bas

done business in the State of Arkansas in tIie past and has not appointed a registered agent for

service in the State of Arkansas. Accordingly, service may be made by serving its Registered
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Agent for service of

process at Marsha L. Reed"500 S. Buena Vista Street, Burban, California

91 521.
l7. Defendant Google Inc. is a

Delaware Corporation that has done business in the State of

Arkansas iii the past and has not appointed a registered agent for servce in the State of Arkansas.
Accordingly, service may be made by serving its Registered Agent for service of

process at The
Orange Street, Wilmington,

Corporation Trust Company, Corporation Trust Center, 1209

Delaware, 19801.
) 8. Defendant Lycos, Inc. is a Delaware Corporation that bas done business in the State of

Arkansas in the past and ha not appointed a registered agent for service in the State of Arkansas.
Accordingly, service may be made by serving its Registered Agent for service ofprocess at The

. .1 .

Prentice-Hall Corporation System, Inc., 271l Centervile Road, Suite 400, Wilmington,
Delaware, 19808.

19. Defendant Looksmar, Ltd. is a DelavJare Corporation that has done business in the State
of Arkansas in the past and has not appointed a registered agent for service in the State of

Arkansas. Accordingly, service may be made by sen/ing its Registered Agent for service of

process at Corporate Agents, Inc., 2711 Centervile Road, Suite 400, Wilmgton, Delaware,
19808.

20. DefendantFindWbat.com, lnc. is a Delaware Corporation that has done business in the
State of Arkansas in the past and has not appointed a registered agent for service ll) the State of

Arkansas. Accordingly, servce may be made by serving its Registered Agent for service of process at Corporation Service Company, 2711 Centervile Road, Suite400, Wilmington,
Delaware, 19808.

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JURISDICTION AND VENU
2 I. Ths is a Class Action lawsuit seeking monetary damages and equitable relief pursuant to

i\rkaiisas Rule of Civil Procedure 23. Plaintiffs file this lawsuit for the purpose of certifying a
nationwide class of

Plaitiffs pursuant to A.R.C.P, 23.

22. This Court has personal jurisdiction over Defendants by vire of the extensive amount of

business each Defendant regularly conducts withl1 the State of Arkansas and, further, because of
the specific conduct at issue relating to ,Plaintiff and the CJass. Defendants are amenable to
service under the Arkansas long-an statute and the exercise of jurisdiction

does not offend

traditional notions of fai play and substatial ju,stice.
; 23. Plaiti

Lane's Gifts and Col1ectibles, t.L.C., the proposed Class Representative, is a

citizen of Arkanas and resident of

Miller County. Venue is proper in Miller County, Arkanas,

pursuant to Ark. Code An. Section 16-55-213(b) as Miller County is the residence of

ths

properly joined named Class Representative. '
24. Plaitif Savings 4 Merchants, Inc. is a Califoniia Corporation. Defendant Buena Vista is

a Californa Corporation~ In addition, Deferidants Yahoo! Inc., Overtre Services, Inc., Netscape

Communications Corporation, Ask Jeeves, Inc., Google Inc., and Looksmart, Ltd. have their
principal place of

business in Calforna. As a result, one or more Defendants are Californa

residents. Furer, Max Caulfield d/b/a Caul~ld Investigations,- an individual d/b/a Caulfield

lnvestgations, is.a Florida resident. Defendant Findwhat.com, Inc. is likewise a Florida
Corporation with its pricipal place of businesai in that same state. Because there are citízens of
the same stte who, are both Plaintiffs aIi~ DefeÏid~ts, cO,mplete di~ersity of citizenship does not

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exist for purposes offederal jurisdiction. As such, removal to federal court by one or more
Defeiidants would be patently frivolous and constitute additional acts in furtherance of the

conspiracy alleged in this complaint.

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RELEVANT FACTUAL BACKGROUND
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At all times relevant to this cause of action, Defendants have been providing online PPC

advertising for Plaintiffs and all other similarly situated members of the Class.
26. At all times relevant to ths cause of action, Defendants nave

billed and/or collected
the putative Class.

revenue for PPC advertsing from Plaintiffs and all other members of

27. Defendants have collected revenue for ilegitimate PPC advertising traffc which was Dot

made by or generated by bona :fde consumers. As a result, Defendants billed and colJected fees
for PPC advertising which was not provided to Plaintiffs.
28. Furter, Defendats overcharged PlaInti£s for PPC'advertsing.

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CLASS ALLEGATIONS,

29. Plaintifs bring this cause of action individually and on behalf all other simlarly si~ated

individuals and/or persons, pursuant to A.R.C.P. 23.
30. Plaintiffs define ths

,Class as any and all persons and/or entities who:

a. were overcharged for PPC advertising by Defendants.
31. The following persons and/or entities are excluded from the Class:

a. Persons and/or entities who tiely opt-out oftlis proceeding using the correct
protocol for optig-out that will be formally established by this Court;

b. Any, a.d al federal, stte, and/or local governments, including, but not limited to,

their deparments, agencies, divisions, bureaus, boards, sections, groups, counsels and/or subdivisions; and
c. Any currently sitting Arkansas state court

judge and/or justice in the curent style

and/or any persons within the il'd degree of consanguinity to such judge and/or
jüstice'.' "

d. Any person or entity who had filed a lawsuit against Defendants for overcharging

for PPC advertising.

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32, In the unlikely event that the Court should determine not to certify a nationwide Class,

then in the alternative, Plaintiffs seek cerification of an Alkansas only Class. Based upon
information and belief, the Class is comprised of hundreds ofthousands of individuals who are
geographically disbursed across the United States and tens of

thousands disbursed across

.Arkansas. As a result, joinder of individual Plaitiffs is impracticable. The disposition of

Plaintiffs' clai wil provide a substntial benefit to the persons and the court system by using
Rule 23 as the vehicle to adjudicate the rights of hundreds of thousands of individuals and/or

entities in one cause of action. Joinig and naming each Class Member as a co-Plaintiff is
umeasonable and unpracticable. Such a requirement would only result in Defendants' retention
of money which is necessary to compensate the Class to remedy and/or rernediate the damage
caused by Defendants' defective product.
33. There is a well defined commonality of

interests in common-questions ofJaw and fact

that afect Class Members. As to the Class, there are common questions of law and fact which
predominate over any questions afectig indiyidual Class Members wruch include, but are not

limited to:
a. 'Whether Defendants overcharged Plaintiffs for internet PPC advertsing;

b. \\'hether Defendants knowingly and intentionally overcharged Plaintiffs;

c. \\'lether resttuion is the appropriate remedy for Class Members;

d. Whether Defendants and

all others in the chain of advertising and/or revenue

sharing scheme are liable for the overcharging which may have been committed
in whole orin par by thrd pari'es;

e. Whether DefendaIitswere complicit in the overcharging;
. f. \Vhether Class Members are entitled to monetary damages for Defendants

wrongfl collection ofPPC advertising revenues and/or charges;

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g. Whether Class Members are entitled to an injunction requiring Defendants to cease and desist from collecting illegal and/or illegitimate PPC advertising revenue;
h. \\'hether Defendants are required to pay reasonable and necessary attorneys' fees

and costs associated with prosecuting this lawsuit.
34. Claims asserted by the Plaitiffs are typical of the claims of the Class. The Class and

Plaintiffs have all been charged by Defendants for internet PPC advertising which should Dot
have been collected and/or charged.
35. Plaintiff wil faily and adequately represent the interest of the Class. The interest of

the

Class is not antagonistc with those of the indivjdual Plaitifs. The Plaintiffs have the ability to
assist and adequately protect the rights of

the Class durg tlie litigation. Furer, the Plaitiffs

are represented by legal counsel who are competent and experienced in tms type of Class Action
litigation.

36. 1bs Class Action is not orJy the appropriate method for the fair and effcient
aqjudication of

the controversy, but is, in fact, superior method to all other .available cause of

action because:

a. The

joinder of

hundreds of

thousands of geographically diverse individual Class

Members is impracticable, cumbersome, unduly burdensome, and a waste of

judicial and/or litigation resources;
b. There is no special interest by Class Members and individually controllng

prosecution of separate causes of action;
c. Class Members' individual c1ais now may be relatively modest compare.d with

th.e expense oflitigating the claim, thereby making it impracticable, unduly burdensome, expensiv~, if not totally impössible, to justify indi,~iduai ëlass Members addressing their loss;
d. When Defendants' liability has been adjudicated, claiiis of all Class Members can be deterniined by the court and administered effciently in a manner which is far

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less erroneous, burdensome, and expensive than if it were attempted through filing, discovery, and tria) of all individual cases;
e. This Class Action will promote orderly, effcient, expeditious, and appropriate
adjudication and administration of class claims to promote economies of

time,

, resources, and limited pool of recovery;
f. This Class Action will assure uniformty of decisions among Class Members;
g. Without the Class Action, Class Members wil go without restitution or money

damages;
h. Without this Class Action, the restitution will not be ordered and Defendants wil

not provided; .
FRAlIULENT CONCEALMENT/ DISCOVERY RULE

reap the benefits or profits of overcharging the Plaintiffs for services which were

1. The resall1tion ohbis controversy through ths Class Action presents fewer
management diffculties than individuaJ clai fied in which the paries may be

subject to varyg indifferent adjudications oftheir rights;

37. Defendants had a duty to disclose to Plaintiffs notice and/or knowledge that they were
overchargig the Plaintiffs
38. Rather than disclosing this inormation to Plaintifs, Defendants actively and fraudulently

concealed that the overcharges and improper collection of revenue from Plaintiffs.
39. Defendants' fraudulent concealent tolls the mimg ~f any applicable statute of

limitations.
40: In the alternative, Plaintifs could not have, with the exercise of real caution, prudence, or

dilgence, discovered the defect within the app¥cable statute of limitations. .A a result, the

statute oflimtations is'tolled makig all Plaintiffs' claims timely fied.

MISCEI,LANEOUS 41. AIy conditions preceding the institution of ths lawsuit have been performed, have
occured, and/or have been waived.

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42. By filing the lawsuit, Plaintiffs neither intend to, nor in fact do, waive or release any
right, claim, action, cause of action, defense and/or election of remedy that they may llpW or ever
have.

CAUSE OF ACTION
Breach iif Contract
43. Plaintiffs hereby incorporate

by refereiice the allegations contained il the OrigjDal

Complaint as if set forth herein verbatim.
44. Defendants either expressly and/or implicitly, contractually agreed to provide internet

PPC advertsing and/or services to Plaintiffs anp only charge for the actual click though
advertising from actual consumers. Defendants breached"that contract by collecting revenues

for

services which were Dot provided. Accordingly, Plaintiffs seeks a refud of all improper and/or
ilicit charges.

RestitutionlUnjiist E!lr!chmentlMonev Had aDd Received
45. Plaitiffs hereby incorporate by reference the allegations contained in the Original

Complaint as if set forth herein verbaIim,
46. The additional sums of money charged to Plaintifs and all other similarly situated
individuals for PPC advertising which was iJe~,'itimate and/or improper must be refunded. These
amounts of

money constitute money which, in equity in good conscience, should be returned by

Defendants to Plaitis and members of

the Class pursuant to the equitable doctre of

restihIiioniunjust emichmentlmoney had and received because such money was collected in

violation ofapplicable law.

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Civil Conspiracy .
47. Defendants engaged in a conspiracy to bill and/or coJ1ect advertising revenue for

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overcharging and/or over-collecting revenue for advertisements which were not actuallr
provided to the Plaintiffs from bona fide consumers. Defendants worked in conjunction with one

another to promote the use of internet and/or PPC advertising and actively concealed their collective attempts to overcharge and/or collect revenue for advertising which was not usually

provided to consumers. This is an industry wide conspiracy in which all search engines have
worked together to develop and/or create a market which allows

for over billing and/or

overcharging of

businesses and/or entities whicb purchase online ppe advertising.

48. As a resultofths conspiracy, scheme, and/or agreement, Defendants have attempted to

create a larger market for internet and/or onlin~: PPC advertsing which has been growing each

and every year.
49. Defendants have refused to disclose all knovin or suspected overcharges to Plamtiffs
and/or members of

the Class. Defendants have grown the internet PPC advertsing market while

failing to disclose that they have routinely and systematically overcharged and/or over collected
for PPC advertising revenues from their customers. Defendants have engaged in a pattern,

practice, and/or scheme to achieve a corron goal and/or purpose of increasing the markel and
cost of PPC advertising throughout Arkanas and the Unit~d States wlule overcharging
customers and hiding the overcharges from Plaintiffs and/or all meinbers of the Class.

50. At all times relevant to ths cause of action, the Defendants were engaged in a joint

enterprise as the pares hav~: (1) an agreement, either express or implied, with respect to the
enterprise or endeavor; (2) a common purpose; '(3) a community of interest in that purose,
among the members; and (4) a right of contTOl in the direction of

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JOINT VENTU / JOINT ENTERPRlSE

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the enterprise.

51. At all times' relevant to tIiis cause of action, the Defendants entered into a joint venture ås
they had an ageement which included: (i) a community of interest in the venture; (2) an
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agreement to share profits; (3) an express agreement to share losses; and (4) a mutual right to

control or management of the venture. This joint venture and/or enterprise allowed for a
seamless PPC advei1ising web in which Defendants share revenues for improper charges levied
against Plaintiffs and members of

the Class.

RELIEF REQUESTED
52. Plaintiffs Lane's Gift and Collectibles, L.L.C., U.S. Citizens for Fair Credit Card Terms,

Inc., Savings 4 Merchants, lnc. and Max Caulfield d/b/a Caulfield Investigations, Individually
and as Class Representatives on behalf of all simlarly situated persons and/or entities,

respectflly request that the Cour grant the foUowing relief and/or enter judgment agait the
i

Defendants, jointly and severally for the fo1l0V.~lg:

a. Certify ths cause of action as a class action pursuant to A.R.C.P. 23 and appoint

Plaintiffs as Class Representatives and Pla:intiffs' counsel as Class counsel;

b. Award appropriate monetary damages to Plaintiffs and the proposed Class in an amount equal to provide restitution for the overcharges to Plaintiffs;
c. Alternatively, an amount equal to the overcharges and/or surcharges above the

contracted PPC advertsing amounts which Plaintiffs had contracted with Defendants to provide;
d. Awarding prejudgment interest to prevent Defendants from receiving unjust.

enrchment for their improper conduct;
e. Awarding reasonable and necessary attorneys' fees and costs to Class counsel;

f. Awarding such other and furter reliefin law or in or equity as the Cour

determines fair, reasonable, appropriate, and/or just deems just.

Whether by restitution and/or money damages or aDY combination thereof, Plaintiffs seek
a recovery from all Defendants,

jointly and severally, including all interests and cost, including

prejudgment interest, post-judgment interest, court costs, and attorneys fees. Therefore, Plaintiffs

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contend that Defendants are jointly and severaJJy liable for all damages and relief owed to the
Plaintiffs and/or individual Class Members.

Respectflly submitted,

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6 J i Pecan Street

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JOHN GOODSON

KEIL & GOODSON P.A.
Arkansas State Bar No. 90018

Texarkana, Arkansas 71854-5337 [phone] (telephone)
[phone] (facsimile)

ATTOR~~YS FOR PLAlTITF

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