Almeida v. Google, Inc.

Filing 16

MOTION to Relate Cases C08-3369 JW, C08-3452 RMW, and C08-3888 SI filed by Google, Inc.. (Norton, Leo) (Filed on 9/4/2008) Modified on 10/16/2008 (cv, COURT STAFF).

Almeida v. Google, Inc.

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COOLEY GODWARD KRONISH LLP
ATTORNEYS AT LAW SAN DIEGO

COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) ([e-mail]) LEO P. NORTON (216282) ([e-mail]) 4401 Eastgate Mall San Diego, CA 92121 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC.1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC. a Delaware Corporation; and DOES 1 through 10, inclusive, Defendants.

Case No. 08-cv-02088 RMW (PVT) ADMINISTRATIVE MOTION TO CONSIDER WHETHER PUTATIVE CLASS ACTION CASES AGAINST GOOGLE INC. REGARDING ADWORDS ADVERTISING PROGRAM SHOULD BE RELATED (Civil L.R. 3-12 & 7-11)

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KEKER & VAN NEST LLP attorneys Daralyn J. Durie, David J. Silbert, Ryan M. Kent, and Alyse Bertenthal are counsel of record for Google Inc. in this case, and have already appeared in this action. COOLEY GODWARD KRONISH LLP ("Cooley") and its attorneys listed above are counsel for Google Inc. in the three actions sought to be related with this action. Civil Local Rule 3-12 requires that this motion be made in the first filed action, which is this action, and therefore the Cooley attorneys make this motion in this case on Google's behalf.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)

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I.

I NTRODUCTION Pursuant to Civil Local Rules 3-12 and 7-11, Defendant Google Inc. ("Google")

respectfully requests that this action be related to three later-filed, substantially similar putative class actions against Google recently filed in this district that, like this action, concern Google's AdWords advertising program. The four related putative class actions are: · · · · David Almeida v. Google, Inc., Case No. C 08-02088-RMW ("Almeida case"); Hal K. Levitte v. Google, Inc., Case No. C 08-03369-JW ("Levitte case"); RK West, Inc. v. Google, Inc., Case No. C 08-03452-RMW ("RK West case"); and Pulaski & Middleman, LLC v. Google Inc., Case No. C 08-03888-SI ("Pulaski case").2

These four putative class actions are related because they concern substantially the same parties as well as substantially the same transactions or events and there is the potential for unduly burdensome duplication and conflicting results if not related. Judicial and party economy and the Civil Local Rules dictate that the cases should be related and that the cases not already assigned to the Honorable Ronald M. Whyte--the Levitte and Pulaski cases--should be reassigned to him. II. THE FOUR GOOGLE ADWORDS PUTATIVE CLASS ACTIONS ARE RELATED Civil Local Rule 3-12 states that actions are related when "[t]he actions concern substantially the same parties, property, transaction or event" and "[i]t appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Civil L.R. 3-12(a). Here, the four Google AdWords putative class actions easily satisfy the definition for related cases. A. Substantially the Same Parties.

Google is the sole named defendant in all four putative class actions, and therefore the cases concern the same defendant. Norton Declaration, Exhibits 1-4.
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COOLEY GODWARD KRONISH LLP
ATTORNEYS AT LAW SAN DIEGO

A copy of the Almeida case Complaint is attached as Exhibit 1 to the Declaration of Leo P. Norton in Support of Administrative Motion to Consider Whether Putative Class Action Cases Against Google Inc. Regarding AdWords Advertising Program Should Be Related ("Norton Declaration"). A copy of the Levitte case Complaint is attached as Exhibit 2 to the Norton Declaration. A copy of the RK West case Complaint is attached as Exhibit 3 to the Norton Declaration. A copy of the Pulaski case complaint is attached as Exhibit 4 to the Norton Declaration. 1.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)

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COOLEY GODWARD KRONISH LLP
ATTORNEYS AT LAW SAN DIEGO

Also, the four putative class actions assert similar or overlapping classes of plaintiffs: · Almeida case: "All persons or entities located within the United States who bid on a keyword though [sic] AdWords, left the `CPC content bid' input blank, and were charged for content ads." Almeida case Complaint, ¶ 13 (italics omitted); · Levitte case: "All persons or entities located within the United States who, within four years of the filing of this complaint, had an AdWords account with Google and who were charged for advertisements appearing on parked domain and/or error page websites." Levitte case Complaint, ¶ 42; · RK West case: "All persons or entities located within the United States who created an AdWords campaign and were subsequently charged for clicks from ads placed on parked domains." RK West case Complaint, ¶ 1 (italics omitted); and · Pulaski case: "All persons or entities located within the United States who, within four years preceding the filing of this Complaint, contracted for and participated in Google's AdWords program." Pulaski case Complaint, ¶ 115. Because each case asserts a putative class of Google AdWords customers, the putative classes overlap or are completely encompassed by one another.3 Accordingly, the cases also concern substantially the same putative plaintiffs. B. Substantially the Same Transactions or Events.

All four putative class actions arise from and relate to the named plaintiffs' and putative class members' contractual relationship with Google for Google's AdWords advertising program: · Almeida case: "This action arises from Google's deceptive, fraudulent and unfair practice of tricking advertisers who seek on-line advertising through Google's AdWords program into bidding for a service that they do not want." Almeida case Complaint, ¶ 2; ·
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Levitte case: "This is a class action against defendant Google, Inc. (`Google') for

For example, a putative class member in the Almeida case would also be in the Pulaski case putative class, which is broadly defined to include all AdWords customers, and might also be in both the Levitte case and RK West case putative classes if charged for an advertisement appearing on a parked domain webpage. 2.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)

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violation of Business & Professions Code Section 17200 and 17500 and unjust enrichment in connection with Google's AdWords program for Internet advertisers. Plaintiff alleges that Google has concealed from and/or misrepresented material information to plaintiff and the class concerning the Google AdWords program." Levitte case Complaint, ¶ 1; · RK West case: "This action arises from Google's deceptive, fraudulent and unfair practice of hiding the sources of invalid clicks from advertisers who seek on-line advertising through Google's AdWords." RK West case Complaint, ¶ 2; and · Pulaski case: "This case is about Defendant Google's fraudulent, unfair and deceptive business practices in connection with its AdWords advertising program (`AdWords')." Pulaski case Complaint, ¶ 1. Although the Almeida case challenges alleged charges for clicks occurring on the content network when the "CPC input" is left blank, while the Levitte, RK West, and Pulaski cases challenge alleged charges for clicks for advertisements placed on parked domain or error page websites, each of the cases arise from and involve the same subject matter--Google's AdWords advertising program. All the actions involve and require an understanding of Google's advertising program, Google's contractual relationship with the named plaintiffs and putative class members, AdWords, the AdWords bidding process, the way advertisements are displayed and where they are displayed, and the fees that Google charges and how those fees are charged. Compare Norton Declaration, Exhibits 1-4, generally. Additionally, all the actions assert claims based on the same legal theories of unjust enrichment and alleged violation of California Business and Professions code section 17200 arising from the Google AdWords advertising program. Almeida case

Complaint, ¶¶ 22-26, 34-43; Levitte case Complaint, ¶¶ 54-78, 86-91; RK West case Complaint, ¶¶ 25-29, 37-46; Pulaski case Complaint, ¶¶ 140-165, 172-177. The four Google AdWords putative class actions are also related because they concern substantially the same transactions or events.

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)

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C.

Potential for Unduly Burdensome Duplication of Labor and Expense and Potential for Conflicting Rulings.

If the four Google AdWords class actions are not related, and are instead conducted before three different judges, the actions will potentially result in unduly burdensome duplication of labor and cause Google great expense. Three different judges would be tasked with resolving the same or similar issues relating to the pleadings, discovery, class certification, dispositive motions, and trial. Moreover, Google would be subjected to significant defense costs four times over, including, but not limited to, in potentially filing motions attacking the pleadings or for summary judgment, opposing class certification, propounding and responding to duplicative discovery, and at trial. Because all the cases arise from Google's AdWords advertising program, discovery in the four cases will likely involve overlapping witnesses and documents. Also, as the cases are all putative class actions involving substantially the same subject matter, the potential exists for conflicting rulings on, at a minimum, class certification. Transferring cases that concern

substantially the same subject matter or that involve overlapping putative classes to a single judge is well recognized to result in judicial and party economy and to ensure consistent rulings. See, In re Prempro Prods. Liab. Litig., 254 F. Supp. 2d 1366, 1367 (J.P.M.L. 2003); In re Res. Exploration, Inc. Sec. Litig., 483 F. Supp. 817, 821 (J.P.M.L. 1980); In re Plumbing Fixtures, 308 F. Supp. 242, 244 (J.P.M.L. 1970). The four Google AdWords putative class actions should be related to avoid unduly burdensome duplication and conflicting rulings. D. The Plaintiffs' Anticipated Opposition To This Motion Should Be Rejected.

Based on the RK West case plaintiff's counsel's preemptive conduct in filing its own improper administrative motion to relate all but the Almeida case before Judge Ware4 and on
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On August 25, 2008, Google's counsel sent all plaintiffs' counsel a meet and confer letter attempting to reach a stipulation that the cases at issue in this motion are related as required under Civil Local Rule 7-11. Norton Declaration, Exhibit 5. The Levitte case plaintiff's counsel, purportedly on behalf of all plaintiffs, requested a one-week extension to respond to September 3, 2008, and then later that day stated they would respond by Thursday, August 28. Norton Declaration, Exhibit 6. Having not yet received a response the morning of Tuesday, September 2, Google's counsel again demanded a response. Norton Declaration, Exhibit 7. Later that day, Google's counsel received by mail the RK West case plaintiff's improper administrative motion to relate the cases except for the Almeida case, and learned by examining the docket that the motion 4.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)

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COOLEY GODWARD KRONISH LLP
ATTORNEYS AT LAW SAN DIEGO

communications with other plaintiffs' counsel, Google anticipates that all plaintiffs will oppose this motion on the grounds that the Almeida case is different because it challenges a different aspect of the Google AdWords program. Plaintiffs' argument should be rejected if made because the Almeida case is substantially similar, which is all that is required. There is no requirement that the cases be identical. Also, plaintiffs overlook that there is the potential for unduly

burdensome duplication or conflicting results. The Almeida case, like the Levitte, RK West, and Pulaski cases, asserts claims against Google based on alleged issues with Google's AdWords advertising program. The claims are based on the same legal theories--unjust enrichment and California Business and Professions Code section 17200. The cases involve overlapping putative class of Google AdWords

customers. The only difference between the cases is the aspect of the AdWords advertising program being challenged. But that difference is insubstantial, and does not avoid the potential for unduly burdensome duplication of labor and expense in document and deposition discovery directed at Google's AdWords advertising program and the contracts that govern that program or conflicting results regarding at a minimum class certification. III. CONCLUSION The four putative class actions against Google relating to its AdWords advertising program are related. Consequently, Google respectfully requests that the four actions be related before the Honorable Ronald M. Whyte. Dated: September 4, 2008 COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) LEO P. NORTON (216282) By: /s/Leo P. Norton Leo P. Norton

Attorneys for Defendant GOOGLE INC. had actually been filed in the RK West case on Friday, August 29. The motion is improper for several reasons as fully set forth in Google's opposition to that motion. Google's opposition to that administrative motion and the declaration in support thereof is incorporated by reference as though fully set forth herein. A copy of the opposition is attached as Exhibit 8 and a copy of the declaration in support thereof is attached as Exhibit 9 to the Norton Declaration. 5.
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED 08-CV-02088 RMW (PVT)