Almeida v. Google, Inc.

Filing 18

Memorandum in Opposition to Google's Administrative Motion to Consider Whether Cases Should be Related Pursuant to Civil Local Rule 3-12 filed byDavid Almeida. (Jonckheer, Willem) (Filed on 9/9/2008)

Almeida v. Google, Inc.

Doc. 18

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ROBERT C. SCHUBERT S.B.N. 62684 WILLEM F. JONCKHEER S.B.N. 178748 KIMBERLY A. KRALOWEC S.B.N. 163158 DUSTIN L. SCHUBERT S.B.N. 254876 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP Three Embarcadero Center, Suite 1650 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Hal K. Levitte BRIAN S. KABATECK S.B.N. 152054 ([e-mail]) RICHARD L. KELLNER S.B.N. 171416 ([e-mail]) ALFREDO TORRIJOS S.B.N. 222458 ([e-mail]) KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff RK West, Inc. GUIDO SAVERI S.B.N. 22349 R. ALEXANDER SAVERI S.B.N. 173102 CADIO ZIRPOLI S.B.N. 179108 SAVERI & SAVERI, INC. 111 Pine Street, Suite 1700 San Francisco, California 94111-5619 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Pulaski & Middleman, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, vs. GOOGLE, INC., a Delaware Corporation, Defendants. JOINT OPPOSITION TO GOOGLE'S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12 CASE NO. 08-CV-02088 Judge: Hon. Ronald M. Whyte

Dockets.Justia.com

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I.

INTRODUCTION Plaintiffs Hal K. Levitte, RK West, Inc. and Pulaski & Middleman, LLC ("Plaintiffs") jointly

oppose the administrative motion filed by Google Inc. ("Google" or "Defendant") to relate Almeida v. Google, Inc., Case No. 08-cv-02088-RMW ("Almeida")1 to Levitte v. Google, Inc., Case No. 08-cv-03369JW ("Levitte"), RK West, Inc. v. Google, Inc., Case No. 08-cv-03452-RMW ("RK West"), and Pulaski & Middleman, LLC v. Google, Inc., Case No. 08-cv-03888-SI ("Pulaski").2 All plaintiffs' counsel agree that Levitte, RK West, and Pulaski should be related before Judge Ware because these three putative class actions substantially involve the same parties, transactions, and events and agree that Almeida is not related to Levitte, RK West, and Pulaski.3 Google's administrative motion should be denied because: (1) the Almeida, Levitte, RK West, and Pulaski actions do not all concern substantially the same parties, property, transactions, or events; (2) the Levitte, RK West, and Pulaski actions proceeding separately from Almeida would not result in an unduly burdensome duplication of labor and expense or conflicting results; and (3) Google's exceedingly broad motion is merely a thinly-veiled attempt to engage in judge shopping. Therefore, Google has failed to satisfy the requirements of Civil L.R. 3-12 and Google's motion to relate Almeida to Levitte, RK West, and Pulaski should be denied. II. LEVITTE, RK WEST, AND PULASKI CONCERN SUBSTANTIALLY DIFFERENT PARTIES, TRANSACTIONS, AND EVENTS THAN ALMEIDA A. Levitte, RK West, and Pulaski Concern Different Parties Than Almeida Google is asking the Court to relate four putative class actions that do not involve substantially the same parties. While all four cases involve the same defendant, plaintiffs in these cases are not all substantially the same. Contrary to Google's assertions in its motion to relate the four putative class actions, the putative classes in all four actions do not substantially overlap. While the putative classes in

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A copy of the Almeida Complaint is attached to the Jonckheer declaration filed herewith, as Exhibit 1. A copy of the Levitte Complaint, RK West Complaint, and Pulaski Complaint are attached to the Jonckheer declaration, as Exhibit 2, Exhibit 3, and Exhibit 4, respectively. 3 While Judge Whyte is a highly qualified and distinguished judge, Plaintiffs believe that relating Levitte, RK West, and Pulaski to Almeida when Google has failed to satisfy its burden would be a misapplication of Civil L.R. 3-12 for the reasons explained herein.

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Levitte, RK West, and Pulaski do substantially overlap, the putative class in Almeida includes many persons and entities that would not be included in putative classes in Levitte, RK West, and Pulaski. While all four actions' putative class members participated in Google's AdWords advertising program, the significant and meaningful factual differences existing between the classes defined in Almeida, Levitte, RK West, and Pulaski render Google's motion to relate all four actions inappropriate. Google ineffectively argues that merely because each case asserts a putative class of Google AdWords customers, the classes substantially overlap. However, any overlap between the putative class in Almeida with the putative classes in Levitte, RK West, and Pulaski is purely coincidence and does not, in and of itself, serve to tie the four putative classes together. The fact remains that the putative class in Almeida is substantially different from those in Levitte, RK West, and Pulaski. The putative class in Almeida encompasses "All persons or entities located within the United States who bid on a keyword through AdWords, left the `CPC content' bid input blank, and were charged for content ads." Almeida Complaint, ¶ 13 (italics omitted). By contrast, none of putative classes in Levitte, RK West, and Pulaski reference persons or entities who "left the `CPC content' bid input blank." Furthermore, none of the complaints in Levitte, RK West, and Pulaski even mention "CPC content" bid inputs. Almeida involves persons and entities that only wished to participate in AdSense for Search, one facet of Google's advertising network, and wished to opt-out of Google's AdSense for Content network. Levitte, RK West, and Pulaski are wholly separate, unrelated actions, involving putative classes encompassing "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 Complaint ¶ 42. The putative classes in RK West and Pulaski are substantially similar to the putative class in Levitte. By contrast, the putative class and complaint in Almeida do not make any reference to "persons who were charged for advertisements appearing on parked domain and/or error page websites." Levitte, RK West, and Pulaski involve persons and entities that wished to participate in both AdSense for Search and AdSense for Content, but allege that Google's placement of advertisements on parked domains and error pages within the AdSense for Content program is improper under California law. Thus the putative class in Almeida (persons and entities that did not want to participate in AdSense for Content) and putative classes in Levitte, RK West, and Pulaski
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(persons and entities that did want to participate in AdSense for Content) comprise different parties, rendering Google's motion to relate all four actions inappropriate. B. Levitte, RK West, and Pulaski Concern Different Transactions And Events Than Almeida As Almeida involves "CPC content bids" while Levitte, RK West, and Pulaski involve "parked domains" and "error pages," the four putative class actions involve different transactions and events. Google fails to provide any meaningful support for its assertion that the four putative class actions concern substantially the same transaction or event. While Google states the obvious, that all four cases deal with AdWords, Google never addresses the less obvious, but far more important issue that the aspect of AdWords at issue in Almeida involves substantially different, not substantially similar, subject matter than the aspect of AdWords at issue in Levitte, RK West, and Pulaski. Google argues that merely because all four cases involve Google's AdWords program and contractual relationships, the cases are therefore related and concern substantially the same transaction or event. Google fails to explain how the issues raised by the "CPC content bid" aspect of AdWords in Almeida are substantially the same as those raised by the "parked domain" and "error page" aspects of AdWords in Levitte, RK West, and Pulaski. Google failed to explain this not once but twice, first in its opposition to RK West's motion, and then in its own motion. AdWords is not a minor or uncomplicated part of Google's business. Advertising services comprised 99% of Google's 2007 $16.6 billion total revenue, and CPC content and parked domain and error pages are not minor or uncomplicated aspects of AdWords. Each is a separate and distinct aspect of the program and capable of separately performing its individual function to generate revenue. The revenue generated from CPC content bid is separate and distinct from revenue generated from parked domains and error pages. It does not follow that just because CPC content bid and parked domain are both aspects of the AdWords program that the cases are related or that they even concern substantially the same transaction or event. While all four actions may involve inquiries into Google's contractual relationship with advertisers, the AdWords bidding process, the manner upon which advertisements are displayed on Google's networks, and the fees Google collects from advertisers, the inquiry in Almeida will be markedly different than the inquiries in Levitte, RK West, and Pulaski. Under Google's argument, litigation of any kind pending in a federal district against a corporate defendant would all have to be related to the same judge, merely because such cases involve the same defendant. For example, if Ford was sued based on the claim that its Taurus
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cars had defective brakes, no one would seriously argue that a later case claiming defective ignition switches should be heard before the same judge. Moreover, merely because all four putative class actions assert claims against Google for unjust enrichment and violation of California Business and Professions Code §§ 17200 et seq., it does not necessarily follow that the actions involve substantially the same transactions and events. As such, Google has failed to satisfy its burden in showing that the four putative class actions concern substantially the same transactions or events, rendering Google's motion to relate all four actions inappropriate. III. Almeida Proceeding Before Judge Whyte While Levitte, RK West, And Pulaski Proceed Before Judge Ware Would Not Result In An Unduly Burdensome Duplication Of Labor And Expense Or A Potential For Conflicting Rulings All counsel agree that Levitte, RK West, and Pulaski should be related because these three putative class actions substantially involve the same parties, transactions, and events. As Levitte (currently pending before Judge Ware) is the first-filed case among these three putative class actions concerning persons or entities alleging that Google's placement of advertisements on parked domains and error pages within the AdSense for Content program is improper under California law, RK West and Pulaski should appropriately be related to Levitte and be heard by Judge Ware. Should Levitte, RK West, and Pulaski proceed before Judge Ware while Almeida proceeds before Judge Whyte, there is no risk of any unduly burdensome duplication of labor or expense. The allegations, putative class members, transactions, and events in Almeida are markedly different than the allegations, putative class members, transactions, and events in Levitte, RK West, and Pulaski. As such, the Court will be called on to resolve different issues in Almeida related to the pleadings, discovery, class certification, dispositive motions, and trial than those raised in Levitte, RK West, and Pulaski. Additionally, Google ineffectively argues that because all cases arise from Google's AdWords advertising program, discovery in the four cases will likely involve overlapping witnesses and documents. This is simply not the case, and it is a failed attempt by Google to mask the intricacy of AdWords and the particularized information that will be sought through documents and witnesses by plaintiffs in Almeida and that which will be sought by plaintiffs in Levitte, RK West, and Pulaski.

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Furthermore, should Levitte, RK West, and Pulaski proceed before Judge Ware while Almeida proceeds before Judge Whyte, there is no risk of potentially conflicting rulings. Google misses the mark when it argues that there is the potential for conflicting rulings with "at a minimum, class certification" if the four cases are not related. The putative class in Almeida is markedly different from the putative classes in Levitte, RK West, and Pulaski and thus any inquiries into class certification will be markedly different in Almeida than in Levitte, RK West, and Pulaski. As such, Google has failed to satisfy its burden of showing that Almeida proceeding before Judge Whyte while Levitte, RK West, and Pulaski proceed before Judge Ware will result in an unduly burdensome duplication of labor and expense and the potential for conflicting rulings. IV. Google's Exceedingly Broad Administrative Motion To Relate Almeida To Levitte, RK West, And Pulaski Is A Thinly-Veiled Attempt At Judge Shopping Google's exceedingly broad standard to relate cases fails to satisfy Civil L.R. 3-12. Google (1) asserts at the broadest macro-level that the parties, transactions, and events are substantially similar and (2) makes blanket, unsupported statements that there is a risk of unduly burdensome duplication of labor and expense and potential for conflicting rulings. Google stretches the local rule to the breaking point in a transparent attempt to circumvent the court in the first-filed case concerning parked domains and error pages on Google's AdSense content network from hearing the cases.4 As Levitte is the first-filed case in this district concerning these unique aspects of Google's AdSense network, Levitte should appropriately remain before Judge Ware pursuant to Civil L.R. 3-12 and RK West and Pulaski should be related to Levitte and also proceed before Judge Ware. Google's motion is suggestive of judge shopping, a practice discouraged by the courts. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). V. CONCLUSION Google's administrative motion should be denied because the Levitte, RK West, and Pulaski are not related to Almeida under Civil L.R. 3-12. Consequently, Plaintiffs respectfully request that the Court deny Google's administrative motion to relate Levitte, RK West, and Pulaski to Almeida.

At this broad approach, Levitte, RK West, and Pulaski could just as easily be related to CLRB Hanson Ind. v. Google, Inc., Case No. 05-cv-03649 ("CLRB Hanson"), currently pending before Judge Ware, because the case involves class action allegations concerning Google's AdWords advertising program. Plaintiffs do not assert that Almeida, Levitte, RK West, or Pulaski should be related to CLRB Hanson. A copy of the complaint in CLRB Hanson is attached to the Jonckheer declaration, as Exhibit 5.

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Dated: September 9, 2008

SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP By: ________/S/____________________ WILLEM F. JONCKHEER Attorneys for Plaintiff Hal K. Levitte

KABATECK BROWN KELLNER LLP

By:

________/S/____________________ BRIAN S. KABATECK Attorneys for Plaintiff RK West

SAVERI & SAVERI, INC. By: ________/S/____________________ CADIO ZIRPOLI Attornesy for Plaintiff Pulaski & Middleman, LLC

JOINT OPPOSITION TO GOOGLE'S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12 6