Mizera v. Google

Filing 24

Mizera v. Google

Doc. 24

Case 5:05-cv-02885-RMW

Document 24

Filed 03/13/2006

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BRIAN S. KABATECK, SBN 152054 RICHARD L. KELLNER, SBN 171416 KABATECK BROWN KELLNER LLP 350 South Grand Avenue, 39th Floor Los Angeles, California 90071-3801 Telephone: [phone] Facsimile: [phone] 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: [phone] Facsimile: [phone] SHAWN KHORRAMI, SBN 180411 LAW OFFICES OF SHAWN KHORRAMI 14550 Haynes Street, Third Floor Van Nuys, California 91411 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs 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, vs. Plaintiff, Case No. 5:05 ­cv-02885 RMW E-FILING DECLARATION OF RICHARD L. KELLNER IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR STAY Judge: Hon. Ronald M. Whyte July 17, 2005 None Set

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, vs. GOOGLE, INC., a Delaware Corporation, and DOES 1 through 100, Inclusive, Defendants

Date Comp. Filed: Trial Date:

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DECLARATION OF RICHARD L. KELLNER
Dockets.Justia.com

Case 5:05-cv-02885-RMW

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DECLARATION OF RICHARD L. KELLNER I, Richard L. Kellner, declare as follows: 1. I am a partner with Kabateck Brown Kellner ("KBK"), one of the class counsel for class

plaintiff. I am licensed to practice before all of the Courts of the State of California and am admitted to practice before the United States District Court for the Northern District of California. I have personal knowledge of the facts set forth herein and, if called as a witness, I could and would testify to such matters. 2. KBK, Chitwood Harley Harnes LLP ("CHH") and the Law Offices of Shawn Khorrami

are jointly prosecuting this action. 3. Counsel has been aware of an action that was filed on February 4, 2005 in the Circuit

Court of Miller County, Arkansas, entitled Lane's Gifts and Collectibles, LLC, et al. v. Yahoo! Inc., et al. (Miller County, Ark., Case No. Civ-2005-52-1)("Lane's Gifts.") 4. From the outset of our prosecution of this calls action, we were aware that the putative

class (including the class representatives) entered standardized contracts that require adjudication of disputes in Santa Clara County, California. 5. In fact, on October 14, 2005, Google filed a motion to dismiss the Lane's Gifts action.

Among other things, Google sought dismissal on the ground that the putative class (as well as the representative plaintiffs) entered entered form contracts that require adjudication of disputes in Santa Clara County, California. Exhibit A. 6. From statements made by Google and Lane's Gift's attorneys to the media, the proposed A true and correct copy of the motion to dismiss is attached hereto as

settlement amounts to this: (a) rather than pay cash or provide any meaningful relief to the class, Google has agreed to waive a 60 day contractual period contained in its customer's contracts to challenge its overcharging practices; (b) in exchange, its customers will have an opportunity to directly challenge with Google improperly charged "invalid clicks" and (instead of cash) receive credits for future online advertising in an amount that will be capped at $90 million minus any payments made to Lane's Gift attorneys; and (c) Lane's Gift's attorneys will receive cash, probably in a sum approaching $30 million. 7. My office, along with my co-counsel, have been excluded from all settlement
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DECLARATION OF RICHARD L. KELLNER

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negotiations. Instead, Google has conducted all of its settlement negotiations exclusively with Lane's Gifts attorneys. 8. AIT will be prejudiced if this action is stayed. AIT has conducted substantial discovery

in this action, including the review of hundreds of thousands of pages of documents (out of approximately 270,000 pages that have been produced.) In addition, AIT's counsel have taken the deposition of Shuman Ghosemajumder, the Google employee in charge of click fraud detection and Ramsey Homsany, Google's senior corporate counsel responsible for contracts with Google advertisers. 9. Attached as Exhibit B is a true and correct copy of a click-fraud study conducted by

Incubeta.com and reported by MarketingExperiments.com, entitled "Documented Click Fraud in Three Google AdWords Campaigns". 10. The stock analysts have viewed the proposed settlement as a financial bonanza for

Google. Attached as Exhibit C is a true and correct copy of a PiperJaffray report on the Google settlement. 11. Attached as Exhibit D is a true and correct copy of a post on John Battele's SearchBlog

regarding the Google settlement. 12. Attached as Exhibit E is a true and correct copy of a New York Post article quoting Joe

Holcomb regarding the Google settlement. 13. As counsel for AIT, my office and my co-counsel's office has been contacted by dozens

of large customers of Google expressing concern about the proposed settlement. 14. Google contends that it needs to conduct substantial discovery in connection with its

opposition to the motion for class certification. This argument is a complete "red herring." First, by virtue of entering a settlement agreement in Arkansas in which it tacitly acknowledges that class treatment is appropriate for the adjudication of a virtually identical class action claims, Google will be hard-pressed to formulate any opposition to AIT's motion for class certification. Second, because the only class representative that is being proffered in the certification proceeding is AIT, Google's discovery will probably be limited to the deposition of AIT and document requests.

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DECLARATION OF RICHARD L. KELLNER

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15.

Google's opposition is due on April 3, 2006. Accordingly, it is doubtful that Google will

can or will serve any additional document requests.

I declare under penalty of perjury according to the laws of the United States of America and the State of California that the foregoing is true and correct. Executed on this 3rd day of March, at Los Angeles, California.

_/s/__Richard L. Kellner____ RICHARD L. KELLNER

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DECLARATION OF RICHARD L. KELLNER