Almeida v. Google, Inc.

Filing 28

Declaration of Michael V. Storti in Support of 27 MOTION to Amend/Correct 1 Complaint, PLAINTIFFS MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE MOTION to Amend/Correct 1 Complaint, PLAINTIFFS MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE filed byDavid Almeida. (Related document(s) 27 ) (Storti, Michael) (Filed on 9/11/2009)

Almeida v. Google, Inc.

Doc. 28

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BRIAN S. KABATECK, SBN 152054 ([e-mail]) RICHARD L. KELLNER, SBN 171416 ([e-mail]) ALFREDO TORRIJOS, SBN 222458 ([e-mail]) KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff David Almeida 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; and DOES 1 through 10, inclusive, Defendants. CASE NO. CV 08-02088 RMW HON. RONALD M. WHYTE DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE Hearing Date: October 30, 2009 Time: 9:00 a.m. Courtroom: 6 DECLARATION OF MICHAEL V. STORTI I, Michael V. Storti, declare as follows: 1. I am over the age of 18 and a resident of California. I make this declaration of my personal and first-hand knowledge, and, if called and sworn as a witness, I would and could testify competently hereto.

DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE (CV 08-02088 RMW)
Dockets.Justia.com

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2.

I am an attorney admitted to practice in the state California. I am an

associate at the law firm of Kabateck Brown Kellner LLP and I am one of the attorneys representing plaintiff David Almeida ("Plaintiff") in this action. 3. 4. 5. 6. 7. Attached hereto as Exhibit "A" is a true and correct copy of the Attached hereto as Exhibit "B" is a true and correct copy of the Plaintiff served his First Set of Interrogatories and First Set of Attached hereto as Exhibit "C" is a true and correct copy of the Case Attached hereto as Exhibit "D" is a true and correct copy of proposed First Amended Complaint. original complaint filed in this action on April 22, 2008. Requests for Production of Documents on October 6, 2008. Management Order signed by the Court on October 10, 2008. Defendant Google's Objections and Responses to Plaintiff's First Set of Interrogatories, served on December 5, 2008. 8. Attached hereto as Exhibit "E" is a true and correct copy of Defendant Google's Responses to Plaintiff's First Set of Requests for Production of Documents, served on December 5, 2008. 9. 10. 11. 12. 13. Attached hereto as Exhibit "F" is a true and correct copy of a meet Attached hereto as Exhibit "G" is a true and correct copy of a meet Attached hereto as Exhibit "H" is a true and correct copy of a letter Attached hereto as Exhibit "I" is a true and correct copy of the Case On June 5, 2009, I spoke with Mr. Silbert and informed him that and confer letter sent to Google's counsel, David Silbert, dated January 16, 2009. and confer letter sent to Google's counsel, David Silbert, dated February 2, 2009. from Mr. Silbert, dated February 18, 2009. Management Order signed by the Court on April 2, 2009. Plaintiff wished to file an amended complaint, substituting Largo Cargo Co. as
2 DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE (CV 08-02088 RMW)

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class representative. I asked if Google would stipulate to the amendment. Mr. Silbert stated that he would confer with his client inform me when a decision was made. 14. On June 18, 2009, I spoke with Mr. Silbert who informed me that Google would not stipulate to a dismissal. He stated that Plaintiff signed up before Google began using the CPC content bid input box alleged in the complaint. He stated that the case Lierboe v. State Farm Mut. Auto Ins. Co., 350 F.3d 1018 (9th Cir. 2003), required dismissal of the action. 15. 16. 17. None of the documents produced by Google substantiate Google's Plaintiff has not yet taken a 30(b)(6) deposition of Google. Attached hereto as Exhibit "J" is a true and correct copy of an email response to Plaintiff's Interrogatory No. 2.

from Mr. Silbert, dated May 8, 2009. The attachment to the email was the verification to Google's interrogatory responses that were served five months earlier. 18. On June 18, 2009, Plaintiff agreed to dismiss the action if Google would stipulate to a dismissal. Attached hereto as Exhibit "K" is a true and correct copy of an email from Mr. Silbert, dated June 18, 2009. 19. 20. Attached hereto as exhibit "L" is a true and correct copy of an email Attached hereto as Exhibit "M" is a true and correct copy of an email from Mr. Silbert, dated August 13, 2009. chain between Mr. Silbert and myself. The first email, to Mr. Silbert, is dated August 25, 2009. Mr. Silbert's response is dated August 26, 2009. I declare under penalty of perjury that the foregoing is true and correct, executed on September 11, 2009 in Los Angeles, California. /s/ Michael V. Storti
3 DECLARATION OF MICHAEL V. STORTI IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT AND TO SET NEW CASE MANAGEMENT CONFERENCE (CV 08-02088 RMW)

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EXHIBIT A

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BRIAN S. KABATECK, SBN 152054 ([e-mail]) RICHARD L. KELLNER, SBN 171416 ([e-mail]) ALFREDO TORRIJOS, SBN 222458 ([e-mail]) KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff David LargoCargo.Com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO. CV 08-02088 RMW HON. RONALD M. WHYTE FIRST AMENDED CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

LARGO CARGO CO., a Florida 13 corporation, individually and on behalf of all others similarly situated,
14 15 16 17

Plaintiff, vs.

GOOGLE, INC., a Delaware 18 Corporation; and DOES 1 through 10, 19 inclusive,
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Defendants.

Plaintiff Largo Cargo Co. ("Plaintiff"), individually and on behalf of the class described below, by its attorneys, make the following allegations pursuant to the investigation of its counsel and based upon information and belief except as to allegations specifically pertaining to Plaintiff and its counsel, which are based on personal knowledge. Plaintiff brings this action for damages and injunctive relief

FIRST AMENDED CLASS ACTION COMPLAINT

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against Defendant, demanding a trial by jury. NATURE OF THE ACTION 1. Plaintiff brings this class action against defendant Google, Inc. ("Google") to recover damages and other relief available at law and in equity on behalf of itself as well as on behalf of the members of the following class: All persons or entities located within the United States who bid on a keyword though AdWords, left the "CPC content bid" input blank, and were charged for content ads. 2. This action arises from Google's deceptive, fraudulent, and unfair practice of tricking advertisers who seek online advertising through Google's AdWords program into bidding for a service that they do not want. 3. Google is commonly thought simply as an Internet search engine; in fact, Google's business is online advertising. Google's business model is primarily dependent on linking individuals who are searching the internet with advertisers who pay Google (and others) for each time the linkage occurs. The Google Network is the largest online advertising network in the United States. 4. AdWords is Google's primary advertising program and is the main source of its revenue. Through AdWords, Google permits would-be advertisers to bid on words or phrases that will trigger the advertisers' ads. AdWords is premised on a pay-per-click ("PPC") model, meaning that the advertisers pay only when their ads are clicked. As part of the AdWords bidding process, therefore, advertisers must set a maximum cost per click ("CPC") bid that the advertiser is willing to pay each time someone clicks on its ad. When an advertiser is choosing its CPC bid, it is also given the "option" of entering a separate bid for clicks originating from Google's "content network" which consists of sites that are not search engines. These content network sited are those that use AdSense, the other side of the Google advertising model.
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5.

This action arises from the fact that Google does not inform it

advertisers that if they leave the CPC content bid input blank, Google will use the advertiser's CPC bid for clicks occurring on the content network. Google does this despite the fact that ads placed on the content network are demonstrably inferior to ads appearing on search result pages. Because there is no option to opt out of content ads during the AdWords registration process, advertisers reasonably believe that by leaving the CPC content bid input blank they can opt out of having their ads placed on the content network. Google, however, has charged and continues to charge those advertisers who lease the CPC content bid input blank for content ads on third party websites. PARTIES 6. Plaintiff Largo Cargo Co. is a Florida corporation and has previously registered for an AdWords account as more particularly described herein and has also previously been charged for content ads as more particularly described herein. 7. Plaintiff is informed and believes and thereon alleges that defendant Google Inc. is a Delaware Corporation doing business in the state of California. Plaintiff is informed and believes and thereon alleges that there is no one state where Google conducts a substantial predominance of its business, making its principal place of business the state where it is headquartered. Google's principal campus and corporate headquarters are located in 1600 Amphitheatre Parkway, Mountain View, California. 8. Plaintiff does not know the true names or capacities of the persons or entities sued herein as DOES 1 to 10, inclusive, and therefore sues such defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the DOE defendants is in some manner legally responsible for the damages suffered by Plaintiffs and the members of the class as alleged herein. Plaintiff will amend this complaint to set forth the true names and capacities of these defendants when they have been ascertained, along with appropriate charging
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allegations, as may be necessary. JURISDICTION AND VENUE 9. This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2) in that it is a class action filed under rule 23 of the Federal Rules of Civil Procedure, the matter in controversy, as aggregated pursuant to 28 U.S.C. § 1332(d)(6) exceeds the sum of $5,000,000 exclusive of interest and costs, and a substantial number of members of the class of plaintiffs are citizens of a state different from that of defendant Google. 10. Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(a) in that: (1) Google resides in this judicial district; (2) a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this judicial district; and (3) Google is subject to personal jurisdiction in the Northern District of California. FACTUAL BACKGROUND 11. Google offers advertisers two types of ads. The first is the search ad. When an Internet user uses Google to search for a specific term or term, Google will display the ads of advertisers who have bid for those particular keywords. The second type of ad is the contextual based ad, or content ad. These ads are shown on third party websites that have content that matches the keywords bid on by the advertiser. For example, an ad for a hardware store may be shown on a website that has content about home improvement projects. 12. In order to advertise with Google, advertisers must register with AdWords, Google's advertising program. The process of registering with AdWords involves an online process that begins by clicking on the "Advertising Programs" link on Google's homepage. After selecting to register with AdWords and the desired version, the advertiser moves to the initial step of the sign-up process. First, the advertiser selects the target language and geographic location. Then, the advertiser creates the ad that will be placed on Google's website or on
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third party websites and selects the desired keywords. The advertiser then selects the maximum daily budget and the maximum CPC bid. Here, the advertiser has two choices, the "Default CPC bid" and the "CPC content bid". Next to the "CPC content bid" input is the word "optional". 13. 14. Nowhere on this page, or anywhere in the registration process is there Advertisers who do not want to pay for ads placed on third party the option to opt-out of content ads. websites therefore leave the "CPC content bid" input blank, believing that the word "optional" means that having content ads placed on third party websites is optional. 15. Google, however, fails to inform that an advertiser who leaves this "optional" input blank will nonetheless be charged for third party content ads. By redefining the universally understood meaning of an input form left blank, and then intentionally concealing this redefinition, Google has fraudulently taken millions of dollars from Plaintiff and the members of the class. 16. Plaintiff enrolled in AdWords in January of 2008. Plaintiff set the desired bids for it's ads, and, not wanting to pay for ads placed on third part content sites, left the CPC content bid input blank. Plaintiff, like any reasonable consumer, expected that leaving an input blank would indicate that it did not want to bid on content ads. This expectation was supported by the fact that Plaintiff was not given the option of opting out of content bids during the advertising campaign creation process. 17. Despite leaving the CPC content bid input blank, Google charged CLASS ALLEGATIONS 18. Description of the Class: Plaintiff brings this nationwide class action All persons or entities located within the United States who bid on a keyword though AdWords, left the "CPC
5 FIRST AMENDED CLASS ACTION COMPLAINT

Plaintiff over $10,000 for unwanted third party content ads.

on behalf of himself and the Class defined as follows:

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content bid" input blank, and were charged for content ads. 19. Excluded from the Class are governmental entities, Defendant, any entity in which Defendant has a controlling interest, and Defendant's officers, directors, affiliates, legal representatives, employees, co-conspirators, successors, subsidiaries, and assigns. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff. 20. 21. Plaintiff reserves the right to modify the class description and the Numerosity: The proposed Class is so numerous that individual class period based on the results of discovery. joinder of all its members is impracticable. Due to the nature of the trade and commerce involved, however, Plaintiff believes that the total number of class members is at least in the hundreds of thousands and that the members of the Class are numerous and geographically dispersed across the United States. While the exact number and identities of class members are unknown at this time, such information can be ascertained through appropriate investigation and discovery. The disposition of the claims of the class members in a single class action will provide substantial benefits to all parties and to the court. 22. Common Questions of Law and Fact Predominate: There are many questions of law and fact common to the representative Plaintiff and the proposed Class, and those questions substantially predominate over any individualized questions that may affect individual class members. Common questions of fact and law include, but are not limited to, the following: a. Whether Google charges for advertisements placed on third party websites when the "optional" CPC content bid input is left blank, and whether Google discloses this material fact to consumers;
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b.

Whether Google failed to disclose that when the "optional" CPC content bid input is left blank, Google will still charge for ads placed on third party websites;

c.

Whether or not Plaintiffs and the members of the class have been damaged by the wrongs complained of herein, and if so, the measure of those damages and the nature and extent of other relief that should be afforded;

d. e. 23.

Whether Google engaged in unfair, unlawful and/or fraudulent business practices; and Whether Goolge failed to disclose material facts about the subject Google Adwords program.

Typicality: Plaintiff's claims are typical of the claims of the

members of the Class. Plaintiff and all members of the class have been similarly affected by Defendant's common course of conduct since their charged for content ads after leaving the "optional" CPC content bid input blank. 24. Adequacy of Representation: Plaintiff will fairly and adequately represent and protect the interests of the Class. Plaintiff has retained counsel with substantial experience in prosecuting complex and class action litigation. Plaintiff and its counsel are committed to vigorously prosecuting this action on behalf of the Class, and have the financial resources to do so. Neither Plaintiff nor its counsel have any interests adverse to those of the proposed Class. 25. Superiority of a Class Action: Plaintiff and the members of the Class have suffered, and will continue to suffer, harm as a result of defendant's unlawful and wrongful conduct. A class action is superior to other available methods for the fair and efficient adjudication of the present controversy as individual joinder of all members of the class is impractical. Even if individual class members had the resources to pursue individual litigation, it would be unduly burdensome to the courts in which the individual litigation would proceed. Individual litigation
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magnifies the delay and expense to all parties in the court system of resolving the controversies engendered by Defendant's common course of conduct. The class action device allows a single court to provide the benefits of unitary adjudication, judicial economy, and the fair and equitable handling of all class members' claims in a single forum. The conduct of this action as a class action conserves the resources of the parties and of the judicial system, and protects the rights of the class member. Furthermore, for many, if not most, Class members, a class action is the only feasible mechanism that allows therein an opportunity for legal redress and justice. 26. Adjudication of individual Class members' claims with respect to the Defendant would, as a practical matter, be dispositive of the interests of other members not parties to the adjudication and could substantially impair or impede the ability of other class members to protect their interests. FIRST CAUSE OF ACTION UNJUST ENRICHMENT 27. 28. Plaintiff realleges the preceding paragraphs as if fully set forth herein Through the actions described above, Google has received money and, to the extent necessary, plead this cause of action in the alternative. belonging to Plaintiff and the Class through the fees collected from ads placed on third party content sites when a reasonable advertiser would have believed that leaving the CPC content bid input blank meant that they would not be charged for content ads. 29. Additionally, Google has reaped substantial profit by concealing the fact when left blank, the "optional" CPC content bid would be set at an amount that could reach the amount bid for the search bid. Ultimately, this resulted in Google's wrongful receipt of profits and injury to Plaintiff and the Class. Google has benefited from the receipt of such money that it would not have received but for its concealment.
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30. 31.

As a direct and proximate result of Google's misconduct as set forth Under principles of equity and good conscience, Google should not be

above, Google has been unjustly enriched. permitted to keep the full amount of money belonging to Plaintiff and the Class which Google has unjustly received as a result of its actions. WHEREFORE, Plaintiff and the Class pray for relief as set forth below. SECOND CAUSE OF ACTION VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE SECTIONS 17200 ET SEQ. 32. 33. Plaintiff realleges the preceding paragraphs as if fully set forth herein Plaintiff has standing to pursue this claim as Plaintiff has suffered and, to the extent necessary, plead this cause of action in the alternative. injury in fact and has lost money or property as a result of Google's actions as delineated herein. 34. 35. Class members have suffered injury in fact and have lost money or Google's actions as alleged in this complaint constitute an unfair or property as a result of Google's actions as delineated herein. deceptive practice within the meaning of California Business and Professions Code sections 17200 et seq. in that Google's actions are unfair, unlawful and fraudulent, and because Google has made unfair, deceptive, untrue or misleading statements in advertising media, including the Internet, within the meaning of California Business and Professions Code sections 17500 et seq. 36. Google's business practices, as alleged herein, are unfair because they offend established public policy and/or are immoral, unethical, oppressive, unscrupulous and/or substantially injurious to consumers in that consumers are not informed that they will be charged for ad placed on third party websites even though the "optional" CPC content bid input was left blank.

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37.

Google's business practices, as alleged herein, are unlawful because

the conduct constitutes unjust enrichment, as well as the other causes of action herein alleged. 38. 39. Google's practices, as alleged herein, are fraudulent because they are Google's wrongful business acts alleged herein constituted, and likely to deceive consumers. constitute, a continuing course of conduct of unfair competition since Google is marketing and selling their products in a manner that is likely to deceive the public. 40. 41. Google's business acts and practices, as alleged herein, have caused Pursuant to section 17203 of the California Business and Professions injury to Plaintiff, the Class and the public. Code, Plaintiff and the Class seek an order of this court enjoining Google from continuing to engage in unlawful, unfair, or deceptive business practices and any other act prohibited by law, including those acts set forth in the complaint. Plaintiff and the Class also seek an order requiring Google to make full restitution of all moneys it wrongfully obtained from Plaintiffs and the class. WHEREFORE, Plaintiff and the class pray for relief as set forth below. PRAYER FOR RELIEF WHEREFORE, Plaintiff and members of the proposed Class request that the Court enter an order or judgment against Defendant as follows: 1. 2. 3. Certification of the proposed Class and notice thereto to be paid by Defendant; Adjudge and decree that Defendant has engaged in the conduct alleged herein; For restitution and disgorgement on certain causes of action;

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4.

For an injunction ordering Defendant to cease and desist from engaging in the unfair, unlawful, and/or fraudulent practices alleged in the Complaint;

5. 6. 7. 8. 9. 10.

For compensatory and general damages according to proof on certain causes of action; For special damages according to proof on certain causes of action; For both pre and post-judgment interest at the maximum allowable rate on any amounts awarded; Costs of the proceedings herein; Reasonable attorneys fees as allowed by statute; and Any and all such other and further relief that this Court may deem just and proper.

Dated: September ___ 2009

KABATECK BROWN KELLNER LLP

By: ____________________________________ BRIAN S. KABATECK RICHARD L. KELLNER ALFREDO TORRIJOS Attorneys for Plaintiff and proposed Class

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DEMAND FOR JURY TRIAL Plaintiffs hereby demand a trial by jury in the instant action.

Dated: September ___ 2009

KABATECK BROWN KELLNER LLP

By: ____________________________________ BRIAN S. KABATECK RICHARD L. KELLNER ALFREDO TORRIJOS Attorneys for Plaintiff and proposed Class

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EXHIBIT B

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EXHIBIT C

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BRIAN S. KABATECK SBN 152054 RICHARD L. KELLNER SBN 171416 ALFREDO TORRIJOS SBN 222458 KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and the Proposed Class DAVID ALMEIDA KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 DAVID J. SILBERT - #173128 RYAN M. KENT - #220441 ALYSE BERTENTHAL - #253012 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC., a Delaware corporation

*E-FILED - 10/10/08*

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. C 08-02088 RMW (PVTx) [] SCHEDULING AND CASE MANAGEMENT ORDER

423247.01

[] SCHEDULING AND CASE MANAGEMENT ORDER CASE NO. C 08-02088 RMW

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Plaintiff David Almeida and defendant Google Inc. came on for a case management conference on August 15, 2008. Having considered the Joint Case Management Statement, the arguments presented by counsel and good cause appearing therefore, the Court hereby orders as follows: I. ALTERNATIVE DISPUTE RESOLUTION

The parties have filed a Stipulation and Proposed Order selecting mediation as their preferred ADR process and will complete said mediation process no later than June 9, 2009.

II.

DISCLOSURES

Google Inc. will make the disclosures required by Rule 26, Federal Rule of Civil Procedure within thirty days of the case management conference.

III.

DISCOVERY

The parties may pursue all discovery methods available under the Federal Rules of Civil Procedure (including depositions, interrogatories, requests for admission, and requests for production) and will follow the presumptive limits set forth in those Rules, except that the Court orders the limit on depositions made by F.R.Civ.P. 30(a)(2)(A)(i) be changed from a maximum of ten depositions to an equivalent maximum hourly quota of 70 hours to be used at the discretion of each party. The parties shall abide by the following discovery schedule: November 2, 2009 November 9, 2009 November 23, 2009 December 7, 2009 December 14, 2009 Non-expert discovery cut-off Expert opening reports Expert opposition reports Expert reply reports Expert discovery cut-off

1
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[] SCHEDULING AND CASE MANAGEMENT ORDER CASE NO. C 08-02088 RMW

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IV.

CLASS CERTIFICATION BRIEFING SCHEDULE

The following schedule shall apply to Plaintiff's anticipated motion for class certification: April 3, 2009 May 8, 2009 May 22, 2009 June 19, 2009 Last day for Plaintiff to file and serve: (1) expert report(s) on class certification; and (2) motion for class certification. Last day for Defendant to file and serve: (1) expert report(s) on class certification; and (2) opposition to motion for class certification. Last day for Plaintiff to file and serve reply in support of motion for class certification. Hearing on motion for class certification.

IT IS SO ORDERED.

Dated: 10/10/08

By: __________________________________ The Honorable Ronald M. Whyte United States District Court Judge

2
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EXHIBIT D

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1 KEKER & V AN NEST, LLP

DARLYN J. DUR - #169825

2 DAVIDJ. SILBERT-#173128 AL YSE BERTENTHAL - #253012

3 REBEKA PUNAK - #248588
71 0 Sansome Street
4 San Francisco, CA 94111-1704

Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Defendant

GOOGLE INC., a Delaware corporation
7
8

UNTED STATES DISTRICT COURT
9

NORTHERN DISTRICT OF CALIFORN
10

SAN JOSE DIVISION
11

12

DAVID ALMEIDA, individually and on 13 behalf of all others similarly situated,
14
15

Case No. C 08-02088 RMW

Plaintiff,
v.

DEFENDANT GOOGLE INC.'S OBJECTIONS AND RESPONSES TO

PLAINTIFF'S FIRST SET OF INTERROGATORIES

16 GOOGLE, INC., a Delaware corporation; and DOES 1 through 10, inclusive,
17

Defendants.
18

19

20

REQUESTING PARTY:
21

PLAITIFF DAVID ALMEIDA
DEFENDANT GO

RESPONDING PARTY:
22

OGLE, INe.

SET NO.:
23

ONE

24
25

26 27
28

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1 Pursuant to Rules 26 and 33 of

the Federal Rules of

Civil Procedure, Defendant Google
Interrogatories as follows:

2 Inc. ("Google") responds and objects to Plaintiffs First Set of

3 GENERA OBJECTIONS
4 Google makes the following General Objections to Plaintiffs First Set oflnterrogatories,
5 which apply to each Interrogatory regardless of

whether the General Objections are specifically

6 incorporated in the Specific Objections and Responses below:

7

1. Google objects to the requests to the extent that they seek information that was
8

prepared in anticipation of litigation, constitutes attorney work product, discloses mental
9

impressions, conclusions, opinions or legal theories of any attorney for or other representative of
10

Google, contains privileged attorney-client communications, or is otherwise protected from
11

disclosure by any other privileges, immunities, laws, or rules. Any disclosure of such protected
12
or privileged information is inadvertent and shall not be constred as a waiver of

those privileges

13

or protections. Google reserves the right to correct the record with regard to any such
14

inadvertent disclosure.
15
2. Google objects to Plaintiffs First Set of

Interrogatories and the Definitions and

16

Instructions attached thereto to the extent they purport to impose upon Google duties and/or
17

responsibilities greater than those imposed by the Federal Rules of Civil Procedure, the local
18
rules and any

orders ofthe presiding Cour, or other applicable law. Google will comply with its

19
obligations under the Rules and the law, which Plaintiff

has no authority to increase or alter.

20

3. Google objects to each request to the extent that it seeks information protected
21

from discovery by the right to privacy or any other applicable privilege, including the right to
22
privacy of

third parties, or by Google's obligations under applicable law to protect such

23

confidential information.

24

4. Google objects to each request to the extent that it seeks the disclosure of
25

confidential, proprietar, or trade-secret information. Google wil provide such information only

26

pursuant to an appropriate protective order.
27
5. Google objects to each request to the extent that it calls for a legal conclusion.
28
1
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1

6.
7.

Google objects to these requests to the extent that they are compound.

2

Google objects to each definition, instruction or request to the extent that it seeks

3 documents or information (1) not currently in Google's possession, custody, or control; (2) that
4 Google canot locate after a reasonably diligent search; or (3) that refer to persons, entities, or

5 events not known to Google. Such instrctions, definitions, or requests are objectionable where
6 they seek to require more of Google than any obligation imposed by the Federal Rules of Civil

7 Procedure; subject Google to unreasonable and undue anoyance, oppression, burden, and

8 expense; and/or seek to impose upon Google an obligation to investigate or discover information

9 or materials from sources equally accessible to Plaintiffs.
10
8.

Google objects to the requests to the extent that they are unduly burdensome,

11 overly broad, oppressive, calls for information that is neither relevant to any issue in the above12 captioned litigation nor reasonably calculated to lead to the discovery of admissible evidence,
13 and/or constitutes an abuse of pro cess in view of

the cost necessary to investigate and/or identify

14 information weighed against Plaintiff s need for such information.
15

9.

Google objects to each request, to the extent that it is vague, ambiguous, or

16 confusing, by failing to adequately define terms or by failing to describe the documents or

17 information sought with reasonable paricularity. Google objects to the requests and definitions,
18 to the extent that they purport to attribute any special or unusual meaning to any terms or phrases

19 on the ground that such enlargement, expansion, or alteration renders such a term or request
20 vague, ambiguous, unintellgible, overly broad, unduly burdensome, and/or uncertain.
21
10.

Google objects to the requests to the extent that each request is duplicative of

22 another request.
23
11.
Consistent with Rule 33(d) ofthe Federal Rules of

Civil Procedure, Google

24 objects to providing responses to requests that can be derived from documents that have or will
25 be produced (when requested in compliance with Rules 26 and 34) and where the burden to

26 derive such information is substantially the same for Plaintiff as it is for Google.

27

12.

Google objects to the requests to the extent that they seek to restrict the facts,

28 witnesses, and evidence on which Google may rely on at triaL. By responding and objecting to
2 431711.03 DEFENDANT GOOGLE INC.'S RESPONSES TO PLAITIFF FIRST SET OF INTERROGATORIES
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1 these interrogatories, Google does not intend to, and does not, limit the evidence on which it may
2 rely to support its contentions and defenses at tral, or to rebut or impeach contentions,

3 assertions, and evidence presented by Plaintiffs.

4

13.

Google objects to the requests to the extent that they seek information to which

5 Plaintiff already has access, or information that is publicly available.

6

14.

Google objects to the definition of

"Google," "You," and "Your," to the extent

7 that it improperly expands the scope of discovery by seeking information and documents that are

8 not curently in the possession, custody, or control of Google. Google responds on behalf of

9 itself and no other person or entity. Google also objects to this definition to the extent the
10 definition purorts to include Google's outside counsel, and to the extent the definition purports

11 to include "agents," "representatives," "all persons" or "other persons acting or purporting to

12 act," because those phrases are vague and overbroad. Google also objects to the extent that this
13 definition purports to include counsel as "agents" of

Google.

14

15. Google objects to the definition of

"Third Pary" to the extent that it improperly

15 expands the scope of discovery by seeking information and documents that are not currently in
16 the possession, custody, or control of

Google.

17

16.

Google objects to the definitión of

"AdWords Customer" to the.extent that it

18 purports to include the term "established" on the ground that the term "established" is vague,
19 ambiguous and overbroad. In addition, Google objects to the definition of

"AdWords Customer"

20 as overbroad to the extent it includes customers yet unkown to Google.
21

17.

Google fuher objects to the extent that the requests seek a complete and

22 exhaustive response regarding any issue in this litigation, before discovery has been completed.

23 Any responses Google makes to any proper discovery requests by Plaintiffs wil remain at all
24 times subject to additional or different information that discovery or further investigation,
25 analysis, or recollection may disclose. Accordingly, Google reserves the right to amend or

26 supplement its objections and responses.
27
28
18.

Google's responses are made based on its understanding and interpretation of

each request. Google reserves the right to supplement its objections and responses should
3

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1 Plaintiffs subsequently put forth an interpretation of any request that differs from that of Google.

2

19.

Google reserves the right to make any use of, or to introduce at any hearing or

3 tral, information that bears on Google's responses to these requests, but discovered subsequent

4 to Google's responses herein.

5

20.

The responses below shall not be construed as an admission as to the relevance or

6 admissibility of any statement or characterization contained in any request. The fact that Google

7 has answered part or all of any Request is not intended to be, and shall not be construed as, a

8 waiver by Google of any par of any objection to any Request. Google reserves all objections,
9 including without limitation objections as to competency, relevance, materiality, privilege,
10 authenticity, or admissibility.
11

21.

Google reserves the right to object on any ground at any time to such other or

12 supplemental discovery requests as Plaintiffs may propound involving or relating to the same
13 subject matter of

these requests.

14 SPECIFIC RESPONSES AND OBJECTIONS
15 INTERROGATORY NO.1:
16 Identify the date when You first permitted AdW ords Customers to separately set Content

17 Bids.
18 RESPONSE TO INTERROGATORY NO.1:

19 Google incorporates by reference its general objections stated above. Subject to the
20 foregoing objections, and without waiving them, Google responds as follows:
21 In or around November 2005, Google launched a feature that permitted AdWords

22 advertisers who chose to enable the feature to set a separate CPC Content Bid.

23 INTERROGATORY NO.2:
24 Identify the date when You first included a CPC Content Bid Input on the Signup
25 Bidding Page.

26 RESPONSE TO INTERROGATORY NO.2:

27 Google incorporates by reference its general objections stated above. Subject to the
28 foregoing objections, and without waiving them, Google responds as follows:

4
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1 In or around October 2007, Google launched an experimental program under which

2 some-but not all-AdW ords customers viewed a CPC Content Bid Input on the Signup
3 Bidding Page.

4 INTERROGATORY NO.3:
5 Identify the number of AdWords Customers within the United States for each month and

6 year from the date identified in Interrogatory No.2 up to and including the present who initiated
7 one or more AdW ords Campaigns where the AdW ords Customer left the CPC Content Bid Input
8 blan on the Signup Bidding Page.

9 RESPONSE TO INTERROGATORY NO.3:
10 Google incorporates by reference its general obj ections stated above. In particular,
11 Google objects that this Interrogatory is overly broad and extremely burdensome. Google further

12 objects that this Interrogatory calls for confidential, commercially sensitive, proprietar

13 information which Google wil not disclose without an appropriate protective order. Google is
14 wiling to meet and confer with Plaintiff about an appropriate response to this Interrogatory.

15 INTERROGATORY NO.4:
16 Identify the number of AdW ords Customers within the United States for each month and
17 year from the date identified in Interrogatory No.2 up to and including the present who initiated
18 one or more AdW ords Campaigns where the AdW ords Customer left the CPC Content Bid Input
19 blan on the Signup Bidding Page and where the AdW ords Customer was charged for clicks that

20 those ads received on Content Network sites.

21 RESPONSE TO INTERROGATORY NO.4:
22 Google incorporates by reference its general objections stated above. In particular,
23 Google objects that this Interrogatory is overly broad and extremely burdensome. Google further

24 objects that this Interrogatory calls for confidential, commercially sensitive, proprietar

25 information which Google wil not disclose without an appropriate protective order. Google is
26 wiling to meet and confer with Plaintiff about an appropriate response to this Interrogatory.

27 INTERROGATORY NO.5:
28 Identify the number of AdW ords Campaigns for each month and year from the date
5

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1 identified in Interrogatory No.2 up to and including the present that were initiated by AdWords
2 Customers located within the United States and where the AdW ords Customer left the CPC
3 Content Bid Input blank on the Signup Bidding Page.

4 RESPONSE TO INTERROGATORY NO.5:
5 Google incorporates by reference its general objections stated above. In particular,
6 Google objects that this Interrogatory is overly broad' and extremely burdensome. Google further
7 objects that this Interrogatory seeks information that is not reasonably calculated to lead to

8 discovery of admissible evidence. Google further objects that this Interrogatory calls for
9 confidential, commercially sensitive, proprietary information which Google wil not disclose

10 without an appropriate protective order. Google is wiling to meet and confer with Plaintiff
11 about an appropriate response, if any, to this Interrogatory.

12 INTERROGATORY NO.6:
13 Identify the total amount charged to AdWords Customers within the United States for
14 each month and year from the date identified in Interrogatory No.2 up to and including the
15 present for clicks that AdWords ads received on Content Network sites where the AdWords

16 Customer left the CPC Content Bid Input blan for those ads.

17 RESPONSE TO INTERROGATORY NO.6:
18 Google incorporates by reference its general objections stated above. In particular,
19 Google objects that this Interrogatory is overly broad and extremely burdensome. Google further

20 objects that this Interrogatory calls for confidential, commercially sensitive, proprietar

21 information which Google will not disclose without an appropriate protective order. Google is 22 willng to meet and confer with Plaintiff about an appropriate response to this Interrogatory.

23 INTERROGATORY NO.7:
24 Identify the number of AdW ords Customers within the United States for each month and
. 25 year from the date identified in Interrogatory No.2 up to and including the present who initiated
26 one or more AdW ords Campaigns where the AdW ords Customer set the CPC Content Bid Input

27 on the Signup Bidding Page to zero.
28
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1

RESPONSE TO INTERROGATORY NO.7:
Google incorporates by reference its general objections stated above. Subject to the

2
3

foregoing objections, and without waiving them, Google responds as follows:

4
5

If an Adwords customer attempted to set the CPC Content Bid Input on the Signup

Bidding Page to zero, he received a message instructing him to set the bid to a value greater than
zero.

6 7
8

INTERROGATORY NO.8:
Identify the number of AdW ords Customers for each month and year from the date

9
10
11

identified in Interrogatory No.2 up to and including the present who changed their Content
Network bid to zero or opted out of

the Content Network after being charged for clicks that

AdWords ads received on Content Network sites where the AdWords Customer left the CPC
Content Bid Input blan on the Signup Bidding Page.

12
13

RESPONSE TO INTERROGATORY NO.8:
Google incorporates by reference its general objections stated above. In particular,
Google objects that this Interrogatory is overly broad and extremely burdensome. Google further

14
15

16 17
18

objects that this Interrogatory calls for confidential, commercially sensitive, proprietar

information which Google wil not disclose without an appropriate protective order. Google is
willng to meet and confer with Plaintiff about an appropriate response to this Interrogatory.

19

INTERROGATORY NO.9:
Identify and describe the procedure or procedures, as they existed durng the month of
November 2006, by which You set the Content Bid and the cost-per-click charged to AdW ords

20
21

22
23

Customers for clicks to AdWords ads placed on the Content Network when the AdWords

Customer had left the CPC Content Bid Input blan.

24
25

RESPONSE TO INTERROGATORY NO.9:
Google incorporates by reference its general objections stated above. In particular,
Google objects that this Interrogatory is not reasonably calculated to lead to discovery of

26 27
28

admissible evidence, since it asks about procedures that were in place durng a specific period
(the month of

November 2006) that is before the CPC Content Bid Input appeared on the Signup

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1 Bidding Page, which is the subject of

Plaintiffs Complaint.
10:

2 INTERROGATORY NO.

3 Identify any and all changes made to the procedure or procedures identified in
4 Interrogatory No.9, and the date(s) when these changes were implemented, regardless of

5 whether those changes occured prior to or subsequent to November 2006.

-\

6 RESPONSE TO INTERROGATORY NO. 10:
7 Google incorporates by reference its general objections stated above. In particular,
8 Google objects that this Interrogatory is overly broad and not reasonably calculated to lead to

9 discovery of admissible evidence to the extent it asks about procedures that were in place before
10 the CPC Content Bid Input appeared on the Signup Bidding Page. Subject to the foregoing

11 objections, and without waiving them, Google responds as follows:

12 Since October 2007, if an AdWords customer did not set a specific content bid for ads
13 rung on the content network, his bid was set to "Auto" by default. Auto bids are based on an
14 average of all keyword cost-per-click ("CPC") bids, including default ad group CPCs and

15 individual keyword CPCs, for the ad group. The customer can change this automatic bid, or opt
16 out of

the content network altogether, at any time. To determine the cost-per-click charged,

17 Google uses data available to it to discount the cost of content network clicks based on their
18 effectiveness compared to a search click. Thus, for example, if

Google's data shows that a click

19 from a content page is less likely to tu into actionable business results-such as online sales,
20 registrations, phone calls, or newsletter signups-it reduces the price that the customer pays for

21 that click.
22 INTERROGATORY NO. 11:
23 Identify and describe the procedure or procedures, if any, as they existed during the
24 month of

November 2006, by which AdWords Customers could opt-out during the Advertising

25 Campaign Creation Process from having AdWords ads placed on the Content Network.

26 RESPONSE TO INTERROGATORY NO. 11:
27 Google incorporates by reference its general objections stated above. In particular,
28 Google objects that this Interrogatory is not reasonably calculated to lead to discovery of
8
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1

admissible evidence, since it asks about procedures that were in place during a specific period
(the month of

2
3

November 2006) that is before the CPC Content Bid Input appeared on the Signup

Bidding Page, which is the subject of

Plaintiffs Complaint.

4
5

INTERROGATORY NO. 12:
Identify and describe any and all changes made to the procedure or procedures identified

6
7
8

in Interrogatory No. 11, and the date(s) when these changes were implemented, regardless of
whether those changes occurred prior to or subsequent to November 2006.

RESPONSE TO INTERROGATORY NO. 12:
Google incorporates by reference its general objections stated above. In particular,
Google objects that this Interrogatory is overly broad and not reasonably calculated to lead to discovery of admissible evidence to the extent it asks about procedures that were in place before

9 10
11

12
13

the CPC Content Bid Input appeared on the Signup Bidding Page. Subject to the foregoing
objections, and without waiving them, Google responds as follows:

14
15

At all relevant times, AdWords customers have been free to turn the content network

"off' by following simple and clear procedures after an ad campaign has been created, but

16
17 18

generally not durng the Advertising Campaign Creation Process itself. In some contexts,
however, the customer could do so durng the Campaign Creation Process such as when an
advertiser created a new campaign that matched the settings of an existing campaign, where the

19

content network was tured "off' in the existing campaign. In addition, for a small number of
curent advertisers involved in a beta test, the initial campaign creation and the choice of
settings, including the option to opt out of

20
21

the content network, appear on the same page.

22
23

INTERROGATORY NO. 13:
Identify and describe any procedure or procedures, if any, by which You track complaints

24
25

from and/or provide refuds to AdWords Customers who were charged for clicks to AdWords

ads placed on the Content Network but who left the CPC Content Bid Input blan.

26 27
28

RESPONSE TO INTERROGATORY NO. 13:
Google incorporates by reference its general objections stated above. In particular,
Google objects to this Interrogatory as compound, since it calls for answers to multiple discrete
9 DEFENDANT GOOGLE INC.'S RESPONSES TO PLAITIFF FIRST SET OF INERROGATORIES CASE NO. C 08-02088 RMW

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1 questions or subpars. Google further objects to this Interrogatory to the extent that it seeks
2 information protected by the attorney-client privilege and/or work product doctrine. Google also
3 objects to this Interrogatory as overly broad to the extent it seeks information about procedures

4 in place before the CPC Content Bid Input appeared on the Signup Bidding Page, which is the
5 subject of

Plaintiffs Complaint. Subject to the foregoing objections, and without waiving them,

6 Google responds as follows:

7 Google tracks certain advertising-related contacts in a database that may contain emails
8 (which mayor may not be "complaints") from customers who were charged for clicks on the
9 content network after they left the CPC Content Bid Input on the Signup Bidding Page blan.

10 Other contacts about that subject, including, for example, any telephonic contacts, mayor may

11 not be tracked. When requests for refuds are received, they are evaluated on a case-by-case

12 basis.
13

14
15

Dated: December 5, 2008

16

By:
17
18

DAVID J. SILBERT Attorneys for Defendant GOOGLE, INe., a Delaware corporation

19

20
21

22
23

24
25

26

27
28
10
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1

PROOF OF SERVICE

2
3

4
5

I am employed in the City and County of San Francisco, State of California in the offce of a member of the bar of this court at whose direction the following service was made. I am over the age of eighteen years and not a pary to the within action. My business address is Keker & Van Nest, LLP, 710 Sansome Street, San Francisco, Californa 94111.
On December 5, 2008, I served the following document(s):

6 7
8

DEFENDANT GOOGLE, INC.'S OBJECTIONS AND RESPONSES TO INTERROGATORIES
PLAINTIFF'S FIRST SET OF

9 10
11

by E-MAIL VIA PDF FILE, by transmitting on this date via e-mail a true and correct copy scaned into an electronic fie in Adobe "pdf' format. The transmission was reported as complete and without error
and

12
13

14
15

by regular UNITED STATES MAL by placing a tre and correct copy in a sealed envelope Keker & Van Nest, LLP addressed as shown below. I am readily familiar with the practice of for collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Service at San Francisco, Californa on that same day with postage thereon fully prepaid. I am aware that, on motion of the pary served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated in this affidavit.
Brian S. Kabateck, Esq. Richard L. Kellner, Esq.
Alfredo Torrjos Esq.

16 17
18

19

KAATECK BROWN KELLNER, LLP 644 South Figueroa Street Los Angeles, CA 90017

20
21

TEL: [phone] FAX: [phone]

22
23

EMAIL: bsk~kbklawyers.com EMAL: rlk~kbklawvers.com EMAIL: at(akbklawyers.com
Executed on December 5,2008, at San Francisco, Californa.
I declare under penalty of perjury under the laws of the State of Californa that the above is true and correct.

24
25

26 27
28

Lauren Harz-Lewis

3~~~;if'"~

432245.01

PROOF OF SERVICE

Case No. C 08-02088 HR

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EXHIBIT H

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EXHIBIT I

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KEKER & VAN NEST, LLP CHRISTA M. ANDERSON - #184325 DAVID J. SILBERT - #173128 ALYSE BERTENTHAL - #253012 710 Sansome Street San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC. BRIAN S. KABATECK SBN 152054 RICHARD L. KELLNER SBN 171416 ALFREDO TORRIJOS SBN 222458 KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff DAVID ALMEIDA

*E-FILED - 4/2/09*

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. C 08-02088 RMW STIPULATION AND [] ORDER MODIFYING CASE SCHEDULE

437448.01

STIPULATION AND [] ORDER MODIFYING CASE SCHEDULE CASE NO. C 08-02088 RMW

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WHEREAS, at the case management conference on August 15, 2008, the parties jointly submitted a proposed schedule which the Court subsequently adopted; WHEREAS, since that time, the parties have been diligently pursuing discovery; WHEREAS, discovery in this matter is taking longer than the parties originally anticipated; WHEREAS, Google has to date produced approximately 180,000 pages of documents, but believes that additional information still remains to be identified, collected, and produced in response to Plaintiff's document requests; WHEREAS, no previous extensions to the case schedule have been requested; NOW THEREFORE, pursuant to the agreement of the parties: IT IS HEREBY STIPULATED THAT, the Scheduling and Case Management Order should be amended to adjust the dates by approximately 120 days, with new dates set as follows: Plaintiff shall file and serve (1) any expert report(s) on class certification; and (2) his motion for class certification no later than August 3, 2009. Defendant shall file and serve (1) any expert report(s) on class certification; and (2) its opposition to class certification no later than September 4, 2009. Plaintiff shall file and serve his reply in support of the motion for class certification no later than September 21, 2009. The parties shall conduct a mediation on or before October 9, 2009. The hearing on Plaintiff's motion for class certification before the Court shall take place on October 23, 2009, or at another date set by the Court. Non-expert discovery shall be completed no later than March 2, 2010. Expert opening reports shall be submitted by March 9, 2010. Expert opposition reports shall be submitted by March 23, 2010. Expert reply reports shall be submitted by April 6, 2010. Expert discovery shall be completed no later than April 13, 2010.

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437448.01

STIPULATION AND [] ORDER MODIFYING CASE SCHEDULE CASE NO. C 08-02088 RMW

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SO STIPULATED.

Dated: ___________________

KABATECK BROWN KELLNER LLP

By: /s/ Alfredo Torrijos __________________ ALFREDO TORRIJOS Attorneys for Plaintiff and the Proposed Class DAVID ALMEIDA Dated: ___________________ KEKER & VAN NEST, LLP