Feldman v. Google, Inc.

Filing 4

Defendant Google, Inc.'s ANSWER to Complaint by Google, Inc.. (Silbert, David) (Filed on 6/12/2007) Modified on 6/13/2007 (bw, COURT STAFF).

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Feldman v. Google, Inc. Doc. 4 Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 1 of 6 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 KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 DAVID J. SILBERT - #173128 KEVIN T. REED - #240799 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 LAWRENCE E. FELDMAN, d/b/a LAWRENCE E. FELDMAN and ASSOCIATES, Plaintiff, v. GOOGLE, INC., Defendant Case No. C 07-02411 PVT DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT Date Comp. Filed: Trial Date: Not set August 9, 2006 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT Dockets.Justia.com Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 2 of 6 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 Defendant Google, Inc. ("Google") answers Plaintiff Lawrence Feldman's ("Feldman") Complaint (the "Complaint") as follows: ANSWER TO COMPLAINT 1. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 2. 3. 4. Admitted. Denied. Admitted. FACTS 5. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 6. Google admits that AdWords advertising customers can bid an amount that they select so that online advertisements that they design will appear, in an order based on Google's proprietary analysis of a variety of factors, on the margin of certain search results. Advertisers generally pay Google based on the number of times these advertisements are clicked. Except as so admitted, Google denies the allegations contained in this paragraph. 7. Google admits that its advertisers select keywords that will trigger their advertisements, and, except as so admitted, denies the allegations contained in this paragraph. 8. Google admits that advertisers generally pay Google based on the number of times these advertisements are clicked. Except as so admitted, Google denies the allegations contained in this paragraph. 9. Google admits that advertisers make bids for the keywords that will trigger their advertisements and, except as so admitted, denies the allegations contained in this paragraph. 10. 11. 12. 13. 14. Denied. Denied. Denied. Denied. Google admits that Mr. Reyes made the statement in quotes, and except as so 1 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 3 of 6 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 admitted, Google denies the allegations contained in this paragraph. 15. Google uses a number of measures to detect and prevent invalid clicks, and has given and continues to give credits to advertisers when Google determines that their ads have received invalid clicks. Except as so admitted, Google denies the allegations contained in this paragraph. 16. 17. 18. Denied. Denied. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 19. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 20. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 21. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 22. 23. Denied. Google admits that the "AdWords Program Terms" provides that advertisers "waive all claims relating to charges unless claimed within 60 days after the charge . . . ," and, except as so admitted, denies the allegations contained in this paragraph. COUNT I (Breach of Implied Contract) 24. 25. This paragraph does not require a response. Google has no information or knowledge to admit or deny the allegations in this paragraph, and on that basis denies those allegations. 26. 27. 28. This paragraph states a legal conclusion to which no response is required. Denied. Denied. 2 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 4 of 6 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 40. 41. 42. 35. 36. 37. 38. 39. 31. 32. 33. 34. 29. 30. 27. 28. 29. 30. COUNT II (Breach of Implied Covenant of Good Faith and Fair Dealing) This paragraph does not require a response. This paragraph states a legal conclusion to which no response is required. Denied. Denied. Denied. Denied. COUNT III (Fraudulent Inducement) This paragraph does not require a response. Denied. Denied. Denied COUNT IV (Negligence) This paragraph does not require a response. This paragraph states a legal conclusion to which no response is required. Denied. Denied. Denied. COUNT V (Unjust Enrichment) This paragraph does not require a response. This paragraph states a legal conclusion to which no response is required. Google admits that the "AdWords Program Terms" provides that advertisers "shall be charged based on actual clicks . . . ", and, except as so admitted, denies the allegations contained in this paragraph. 3 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 5 of 6 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 43. 44. 45. Denied. Denied. This paragraph states a legal conclusion to which no response is required. COUNT VI (Violations of Business Professions Code 17200, et. seq.) 46. 47. 48. 49. 50. 51. 53. This paragraph does not require a response. Admitted. This paragraph states a legal conclusion to which no response is required. This paragraph states a legal conclusion to which no response is required. Denied. Denied. This paragraph states a legal conclusion to which no response is required. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE FAILURE TO STATE A CLAIM The Complaint and each claim set forth therein fail to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE WAIVER Assuming without conceding that the Complaint states a claim, the claims of wrongdoing in the Complaint have been waived by the plaintiff and are, to that extent, barred. THIRD AFFIRMATIVE DEFENSE STATUTE OF LIMITATIONS Assuming without conceding that the Complaint states a claim, plaintiff's claims are barred, in whole or in part, by the applicable statutes of limitations. FOURTH AFFIRMATIVE DEFENSE FAILURE TO MITIGATE 4 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT Case 5:07-cv-02411-RMW Document 4 Filed 06/12/2007 Page 6 of 6 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 proper. Assuming without conceding that the Complaint states a claim, plaintiff has failed to mitigate his damages, if any. FIFTH AFFIRMATIVE DEFENSE LACHES Assuming without conceding that the Complaint states a claim, plaintiff's claims are barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE UNCLEAN HANDS Assuming without conceding that the Complaint states a claim, plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands. PRAYER FOR RELIEF WHEREFORE, Google prays for judgment as follows: (a) That Plaintiff takes nothing by its Complaint and the Court dismiss the Complaint with prejudice; (b) (c) (d) That the Court award Google reasonable attorneys' fees; That the Court award Google all costs and expenses it incurs in this action; That the Court award Google such other and further relief that it deems just and Dated: June 12, 2007 KEKER & VAN NEST, LLP By: /s/ David J. Silbert DAVID J. SILBERT Attorneys for Defendant GOOGLE, INC. 5 397146.01 DEFENDANT GOOGLE, INC.'S ANSWER TO COMPLAINT CASE NO. C 07-02411 PVT

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