CLRB Hanson Industries, LLC et al v. Google Inc.

Filing 92

OBJECTIONS to re 84 Declaration in Support, by Google Inc.. (Jhang, Christopher) (Filed on 10/16/2006)

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CLRB Hanson Industries, LLC et al v. Google Inc. Doc. 92 Case 5:05-cv-03649-JW Document 92 Filed 10/16/2006 Page 1 of 5 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 DAVID T. BIDERMAN, Bar No. 101577 JUDITH B. GITTERMAN, Bar No. 115661 M. CHRISTOPHER JHANG, Bar No. 211463 PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 Email: DBiderman@perkinscoie.com Email: JGitterman@perkinscoie.com Email: CJhang@perkinscoie.com Attorneys for Defendant Google Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION CLRB HANSON INDUSTRIES, LLC d/b/a INDUSTRIAL PRINTING, and HOWARD STERN, on behalf of themselves and all others similarly situated, Plaint iffs, v. GOOGLE, INC., Defendants. CASE NO. C 05-03649 JW DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Fed. R. Civ. P. 56 Date: Time: CTRM Judge: November 6, 2006 9:00 a.m. 8 Hon. James W. Ware As set forth below, defendant Google, Inc. hereby objects to and moves to strike the following testimony from the Declaration of CLRB Hanson Industries, LLC ("CLRB Hanson Decl."), submitted by plaintiffs in support of their Motion for Partial Summary Judgment ("Motion"). DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Case No. C05-03649 JW [41063-0023/LA062820 032.TMP] Dockets.Justia.com Case 5:05-cv-03649-JW Document 92 Filed 10/16/2006 Page 2 of 5 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 5. 5. (2:19-20) 4. (2:15-18) 4. (2:13-15) 3. (2:9-12) 2. (2:5-8) EVIDENTIARY OBJECTIONS Paragraph in Declaration ". . . What enticed CLRB (and its predecessor, Industrial Printing), to the AdWords program and what CLRB relied on was the fact that Google represented that CLRB would control its costs by setting a daily budget and per click charges, and there was no minimum charge." "Google also represents that the participant in the AdWords Program can pause its ads and not accrue any charges while its ads are paused. I found that feature extremely beneficial and generally paused CLRB's AdWords campaigns often in order to control advert ising costs and demand for its services." "When CLRB (and its predecessor, Industrial Print ing) enrolled in the AdWords Program, it provided the information required, such as, the name of the ad campaign, email address, billing information, daily budget and costs per click." "I was not directed to, nor did I, review any of the numerous FAQs (frequently asked questions) that you can access online if you wanted to. I do not recall that I had to accept the FAQs prior to joining the AdWords Program and Google has not produced any evidence to the contrary." "Google states that the: `Ad system ensures you never pay more than your daily budget multiplied by the number of days in a month your campaign was active.' See Exhibit A hereto." "In contrast to the way Google Objection s Conclusory, lacks foundation, hearsay, vague and ambiguous. Declarant inconsistently testifies as "CLRB Hanson" and "I" in the declaration. A corporate entity cannot be a declarant. Conclusory, lacks foundation, hearsay, vague and ambiguous. Declarant inconsistently testifies as "CLRB Hanson" and "I" in the declaration. A corporate entity cannot be a declarant. Conclusory, lacks foundation, hearsay, vague and ambiguous. Declarant inconsistently testifies as "CLRB Hanson" and "I" in the declaration. A corporate entity cannot be a declarant. Conclusory, lacks foundation, hearsay, vague and ambiguous, not relevant. Declarant inconsistently testifies as "CLRB Hanson" and "I" in the declaration. A corporate entity cannot be a declarant. Lacks foundation; hearsay, not relevant. Brett Hanson testified at deposition that he did not see Exhibit A before his counsel showed it to him during the course of litigation; Exhibit A is not admissible. Conclusory, lacks foundation; hearsay, not -1DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Case No. C05-03649 JW [41063-0023/LA062820 032.TMP] Case 5:05-cv-03649-JW Document 92 Filed 10/16/2006 Page 3 of 5 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 7. (3:9-12) 6. (3:3-8) 6. ( 2:26 3:3) Paragraph in Declaration (2:22-25) promotes AdWords (as a program that gives the advertiser complete control over its charges), CLRB has been often charged by Google amounts greater than its daily budget. CLRB has also been charged by Google amounts in excess of the amount of its daily budget times the number of days that a campaign was active during the course of a month." "For example, CLRB's AdWords campaign (contract decorating), ran for twenty-seven days during the month of February 2005. (See Exhibit B, P-0057-60.) During that time the daily budget was set at $50. (See Exhibit B, P-0057-60, column 4.) It was charged a total of $1,399.99 during that period. (See Exhibit B, GOOG-HN 21583-21624.) This came out to $49.99 more than the daily budget, multiplied by the number of days in the month that the campaign was active." "In March 2005, the campaign ran for seventeen days with a $50 daily budget. (See Exhibit B, P-0060-62.) It was charged $1,063.35. (See Exhibit B, GOOG-HN 21624-21654.) This amounts to $213.35 more than the daily budget of $50 times the number of days the campaign was active between March 1 and March 31, 2005. It was given a total of $177.85 in overdelivery credits for the contract decorating ad campaign March charges. See Exhibit B, GOOG-HN 21624-21654." "While these overcharges may seem small, when you consider the hundreds of thousands of AdWords Objection s relevant. Brett Hanson testified at deposition that he did not see Exhibit A before his counsel showed it to him during the course of litigation; Exhibit A is not admissible. Conclusory, lacks foundation; hearsay, not relevant. Brett Hanson testified at deposition that he did not see Exhibit A before his counsel showed it to him during the course of litigation; Exhibit A is not admissible. Exhibit B lacks foundation and is inadmissible hearsay. Conclusory, lacks foundation; hearsay, not relevant. Brett Hanson testified at deposition that he did not see Exhibit A before his counsel showed it to him during the course of litigation; Exhibit A is not admissible. Exhibit B lacks foundation and is inadmissible hearsay. Conclusory, speculative, hearsay, no foundation, not relevant. Exhibit B lacks foundation and is inadmissible hearsay. -2DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Case No. C05-03649 JW [41063-0023/LA062820 032.TMP] Case 5:05-cv-03649-JW Document 92 Filed 10/16/2006 Page 4 of 5 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 -3DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Case No. C05-03649 JW Paragraph in Declaration advert isers, the monthly bills to each and all those with daily budgets much higher than CLRB's, the amount of monies Google receives from these overcharges becomes very significant." 8. (3:13-18) Objection s "When I complained about the Conclusory, lacks foundation; hearsay. overcharges to Google, I was told by Google that it indeed bills more than a daily budget on any given day (up to 120% of the daily budget,) and that Google will charge up to 30 or 31 times a daily budget in a monthly bill. Thus, if my daily budget is $1,000, Google states it is free to charge up to $1,200 a day, as long as it doesn't charge more than $$3,000 or $3,100 in a month. However, that is contrary to how Google advertised and promoted their AdWords Program. If, CLRB had an active campaign for 10 days during a monthly period, I expect to be charged at most, $10,000, not $12,000, which Google now states it is free to charge." "Delivery of ads over and above CLRB's daily budget is not beneficial to it because there is a limit to the amount of responses it can handle. The overdelivery just adds to its costs." Conclusory, speculative, hearsay, no foundation, not relevant. 8. (3:18-20) 9. (3:21-23) Conclusory, speculative, hearsay, no foundation, not relevant. [41063-0023/LA062820 032.TMP] Case 5:05-cv-03649-JW Document 92 Filed 10/16/2006 Page 5 of 5 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 -4DEFENDANTS GOOGLE'S EVIDENTIARY OBJECTIONS TO DECLARATION OF CLRB HANSON INDUSTRIES, LLC. AND EXHIBITS THERETO Case No. C05-03649 JW 10. (3:24-25) "Google's promotion of its AdWords Program and its billing practices are deceptive and misleading." Conclusory, speculative, hearsay, no foundation. DATED: October 16, 2006. PERKINS COIE LLP By /S/ David T. Biderman Attorneys for Defendant Google Inc. [41063-0023/LA062820 032.TMP]

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