Almeida v. Google, Inc.

Filing 6

Declaration of Alyse D. Bertenthal In Support of Defendant Google's Administrative Motion to Consider Whether Cases Should be Related Pursuant to Civ Local Rule 3-12 by Google, Inc. re 5 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Bertenthal, Alyse) (Filed on 6/27/2008) Text modified on 6/27/2008, incorrect event type used (bw, COURT STAFF).

EXHIBIT A

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,.04-22-2008 CàSlWi&:08F.~"02088..HRL Document 1-3

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JUNITED ST AT.ES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
'..1 DAVID ALMEIDA, individually and on 131 behalf of aU others similarly situated)

141 Plaintíf:
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VS.

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CLASS ACTION COMPLAINT

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JUYTRlAL DEMA.NDED

17/ GOOGLE, rNC., a. Delaware Corporation; and POES 1 though 10,

18lincJusive,
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Defendants.

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Plaintiff David Almeida ("Plaintiff'), individually and on behalf of

the class

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2Ll described below, by his attorneys, makes the following allegations pursuant to the
investi,'gaiioii of his counsel and based iip

on inforrnatìol1 and belief except as to

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, allegations specifically pertining to Plaintiff and his counsel, which 'are bBsed on 2'1

brings this action for damages and injunctive relief aga.inst
2'r personal knowledge. Plaintiff

2'"H defendant, di:mandiiig a tral by jury.

CI_ASS A.CTlON COMl)L.iINT

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'04-22-2008 C~~~:08~M102088~HRL Document 1-3

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NATURE OF THE ACTION
1. Plaintiff

21

brings this class action against Google, Inc. ("Googie") to recover

3 ¡ damages and other reJiefavailable at law and in equity on behalf ofhimselfas well as on
4 I behalf ofthe members of the following class:
51 6
7
8

All persons or entities located wirhìn the United Staies who
bid on a keyi'ord though AdWords, left the "CPC contenT

bid" input blank, and were charged/or content ad~.
2. This action arises from Google's deceptive, fraudulent and unfair practice

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oftric.king advertisers who seek on-line advertising through Google's AdWords program
into bidding for a service that they do not want.
3. Google is commonly !hought simply as an Internet search engine; in fact
Goog1e's business is online advertising. Googies business model is prímal'ily dependent

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on linking individtial who are searching the internet with advertisers who pay Google
(and others) for each time the Iinlcage ocCurs, The Google Network is the largest online

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advertising network in the United States.

4; AdWords is Coogle's primary advertising program and is lhe main source
of

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its revenue. Through AdWords, Google permits would-be advei1isers to bid on words

or phrases that wil trigger the advertisers' ads. AdWords is premised on a pay-pet-click
("PPC") model, meaning that advertisers pay only when their ads are clicked. As part of
the AdWords bidding process, therefore, advertiseJ;S must set a maximum cost per click

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("cpe") bid that the advertiser is wiling to pay each time someone clicks on its ad.
When an advertiser is choosing its cpe bid, it is also given me "optièm" of entering ~\

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separate bid for clicks originating from Google's "content neiwork" which consists of

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sites that are not search engines. These content network sites are those mat use AdSense,
the other side oftl1e Google advertising modeL.
S. This action arises from the tàct that Google does not inform its advertisers

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that i'fthey leave the content bid CPC input blank, Google wil use the advertser's CPC
bid for clicks occurring on th content network. . Google does this despite the faci that

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CLASS ACTION CoMPLAINT

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i placed on the content network are demonsiTably inferior to ads appearg on search result 21 pages. Because were is no option to opt out of coment ads during the AdWords
3 registration process, advertisers reasonably believe that by leaving the contellt ad epe
4 input blank they can opt out of

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having their ads placed on the content ne,twork. Google.

5 I however, has charge:d and continues 10 charge those advertisers who leave content ad
6 I ere input blank for content ads on third party websites.

7:
8/ 6. PhiintíffDavidAlmeida ("Plaintiff") is a residen.t of

P ARTJES

Essex County,

9 i Massachusetts and citizen of

Massachusetts. Plaintiff

has previously registered for an

to .AclWol'ds account as more particularly described herein and has also previously been

II! charged for content ads as more parcularly described herein.

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informed and believes and thereon alleges that defendant

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131 Google, Inc. ("Google") is a Delaware Corporation doing büsiness in the state of

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. 141 Califomia. PlaIntiffis infonned and believes and thereon alleges that there is no one
151 'state where Google conducts a substantial predominance of

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its btisiness, making its

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161 pdncipal place Qfbiisiness tilE: state where ít is headqUartered. Networl( Solutions'
171 headquarters - and, thus, its principal place of

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business ~ are located at 1600

1 ~ Amphitheatre Padçway, Mountain View l California, Accordingly, DefendlUlt Google is a
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citizeii of

Delaware and California. '
the persons or

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8, Plaintiff does not know the true names or capacities of

entites sued herein as DOES i to 10, inclusiVe, and therefore sues such defendants by

2:~ such fictitious names. Plaintiff is informed and believes and thereon alleges that each of

2:' the DOE defendants is in some manner legally responsible for the ,damages suffered by
2'il Plaintiff and d1e members of

the class as alleged herein. Plaintíffwill amend this
these defendants when they have

2r complaint to set forth the true names and capacities of

.2r' been ascertained, along- with appropriate charging allega.tions, as may bè necessary.

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CLASS ACTlON COMPLAINT

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JURISDICTION AND VENUE
9. This Court has d.iversíty subject matter jurisdiction over this claSS action
pursuant to 28 U.S.C. § l332(d) in that this is a civil action filed under Rule 23 of

2 :1

3,
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the

4 ii Federal Rules of Civil Procedure and members otthe class of Plaintiffs are citi;;ens ()f a

5 I State different from defendant Google, and tbe aggregated amount in controversy çxceeds
6 i $5,000,000, exclusive-of interest and costs. See 28 D.S.C. § 1332(d)(2), (6);
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7 ~ 10. Venue is proper in the Northern District of Calil'omía pursuant to i8 V.S.C.
gl§ 1391 (a) in that: (1) Google resides in this judicial distrct; (2) a substantial parÏ'oftl1e
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9 ¡ events lì:i omissions giving rise to the cla.ims asserted herein Deciured in this judicial

10 i district; and (3) Google is subject to personal jurisdiction in the Northern District of
111 Calìfornia.

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131 FACTUAL BACKGROUND
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14i 11, Google offers advertisers two types of a,ds. The first is a search ad. When
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151 ,an Internet user uses Google to search for a specific tenn or tenn, Google: wil display the

i 6i ads of advertisers who have bid for those particular keywords. The second type of ad is
171 contextual based ads, or content ads. ll1ese ads are shown

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on third paTty websites thai

1 ~ have content that matches the keywords bid 011 by the advertiser. 'For example, an ad for
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1 S a hardware store may be shown on a website that has comen.t abou.t home improvement
2( pr~iects.

21! 12. In order to advertise with Google, advertisersmusi register with AdWords,

2:1 Goog1e's advertising program. The process of registering with AdWords involves an

2:1 online process that begins by click,ing on the "Advertising Prograins" link on Google's

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24 homepage. After selecting to register with AdWords and the desired version, the

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2$ advertiser moves to the initial step oftbe sign~up process, First. the advertiser selects the
2t target language ¡md geographic location. Then, the advertiseT creates the ad that wil be
placed on Google's website or

on third pary websii:s and selects the desired keywordii.

The advertiser then seli:cts the maximum daily budget and the maximum CPC bid, Here;
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CLA.SS ACTION COMPLAINT

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1 'the advertser has two choices, the "Default CPC bid" and the "CPC content bid". Next
21 to the "CPC content bid" inpiit is the word '¡optional".

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3! 12. Nowhere on this page, or anywhere in the registration process, is there the
41 option to opt-out of content ads,
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13. Advertisers who do not want to pay for ads placed on third party websites,
therefore lettve the "CPC content bid" input blai1k, reasonably believing that the word

61

71 "optional" means that having content ads placed 011 third pary websÏtes is optional.
8 14. Google, however, fails to inform that an advertiser who leaves this

91 "optional" input blank wil nonetheless be charged for third paity content ads. By
10j redefining the universally understood meaning of an input form left blank, and then
.l1. intentionally corJ.cealìrtg this redefinition, Google has fraudulently taken milions of

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12! dollars from Plaintiff and the members of

the class.

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131 15. Plaintiff enrolled ìn AdW ords in November 2006. Plaintiff created an
141 advertising campaign for his private investigation bU8ine~5. Plaintiff set the desired bids
,15! for his ads, and, not wantig to pay for ads placed on third part contem sitei.; left the CPC

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16j contentbid Ìl1PUt blank. Plaintiff, like any reasonable consumer; expected that leaving an

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17 inpm blank would indicate that J1e did not want to bid on content ads. This expectation
18 was supported by the fact that PlaIntiffwas not given the option of opting out of content

191 bids during the advertising campaign creation process.
. 20 16. Despite leaving the CPC content bid input blank, Google charged Plaiiltiff

21 for unwnnted third party contellt ads.
22
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231
Description of

CLASS ALLEGATIONS
the Class: Plaintiff

brings this nationwide class action on

::1 behalf :~~imself and th Class defined as follows:

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All pei"sons or entities located within the United States
who bid on a keyword though AdWords. left the "CPC
conte/t bid" inpUT blank. and were charged for content ads.

_...:; 5 CLASS ACTION COMPLAINl

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Filed 04/22/~OP87-782 P,012/019 F-29S , Page 6 of 13

1 m 14, Excluded from the Class are govemmenw entities, Defendam, any entity iii
2 í which Defendan~ has a comrliln imerest" and Defeidant's ollcers, .d""ct"" alllJates,/

3 i legal rcpreseuratives, employees" cO-cnspirators, SUccessors subSldwies; and assigns.
411 Also excluded from the Clas is any judge, justice, or jUdicial offcer presiding over 'his
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5 I maller and tlie members of ùteir inediate familes and judcial starr .
6/' 15. Plaintiff reerves the right in modify the clas deCription and ffe clas,
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7 d period based OJ) the results of discovery.
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i 6. N,"exsit\: The ProPOed Class is so n'"erous tI.! ùidividual joinder of
all its membes is impractcable. Due to the nate of

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IO! however, P laimiff believes ÙlaI ih ioral number of ciass members'comerce involved, the !rade aud is ai leai in the

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hiUldreds of thousand, end !bat the members of the Clas are numerus and

12! geogiaphically dispersed acro the Vni,ed Stas, Wh11e the exaci nunibet and identir;es
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of class members are unOwn at !bis time, such infonnatón can be ascerined through.

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apPoprite iiivesgaton an discover. The dispositioii of the claims of the ClaSs
memhers in a sinle class action wil provide substantial benefts to an pares 'nd to Ihe
COurt .

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17, Common uestiol's of Law and Fact PredOminate: There are lßany
questions of law and fact common to the represCJtive Plaintiff and the propos Cia",
and those queStons Substantiaiiy Premii.", oVer

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afct individual class members. Common quesons of

any individualiz questiuns that m.y
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limited to, ¡Lie following:

fact and iaw include, bur are not

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a. Wheter GOogIe cbarges for adertsemeii placd on third Pary
websites when Uie "oPtional" CPC content bid input is left blank,

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and whether Google dísclosès this mateiial fact to consumers;
b.
Wlletier Google faled to diSClose that when the "Option.

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Contet bid inUt is lef blaok, Googiewil still Charge for ads I" CPC p1a"d
on third parr websites;

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CLASS ACTlON COMPLAINT

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'04-22-2008 O~sI~:08ROO02088~HRL Document 1-3

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c, W11ether or not Plaintiff and the members of the Class have been

damaged by Lhe wrongs complained ofh~:rein, and if so, the m¡;asure
of

those damages and the nature and extent of other relief that should

be afforded;

d. Whether Google engaged II unfair, unlawl1:l and/or fraudi.ilent
business practices; and

e. Whether Google failed to disclose material facts aboiit the subject
Google Adwords program.
18. TYj.cality: Plaintiffs claims are typical of

the claims of the incmber~ of

the Class. Plaintiff and all members øf the Class have been similarly ¡iffected by
although they
Defendant's cotninou course of conduct since they were charged for ads

also left the ¡'optional" epe content bid blank.

i 9. Adequacy of Representation: Plaintiff wil fairly and adequately represent
and protect the interests of the Class. Plaintiff has retained cminsel with substantial

experience in prosecuting complex and class action litigation. Plaintiff and hiscowJsel
are committed to vigorously prosecuting this action on behalf of the Class, and have the
financial resources 10 do so. Neither Plaintiff

nor his counsei has any intere.stsadverse 10

those of

the proposed Class.
20. S-l1perioritv of a Class Action: Plaintiff and the inemberi. úf the Class have

~mtlered, and wil contínueto suffer, liann as a result of Defendant's unlawful and
wrongful conduct. A class action is superior to other available method.s fot the fair and
efficient adjudication of'

the pi'esent controversy as individual joinder of ~iJl members of

the Class í. impracticaL. Bveii if individual Class members had the resources to pursue
índivìd.uallitigation, itwould be unduly burdensome to the

court Ìn which the individutll

litigation would proceed. Individual litigation magnifies the delay and expense LO all
parties in the court system of rei;olving the controversies engei'ldered by Defendant's

common course of conduct. The class action device allows a single court to provide the
benefits of untary adjudication, judicial economYi and the fair and equitable handling oj'

CLASS ACTiON COMPLAINT.

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'04-22-2008Cai!Qala~08-mM02088-HRL. Document 1-3

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i i), i11I class mcmbersl claims in ~ single fòrum. The conduct of this action as a class acrjon
i 2! conserves the resources of

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Filed 04/22/20'Q8 -PR~e ~~f/~il ,H95

the parties and c:,-fthe judicial system, .ind protecis the rights of

3 i the class member. Furthermore, for many, if not most, Class member~. a class aciíoi: is
41 the only feasi.ble mechanism that allows an opportunity for legåJ redress and justice.

51 21. Adj'lldicatiol1 of individual Class members' claims with respect to the
6 ¡Defendant wòuld, as a practical matter, be díspositIve of the interests of other members

7~ not parties 10 the adjudication and could substantially impair or impede the ability or
8: other Class members to protect their interests.
9

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FIRST CAUSE OF ACTION

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UNJUST ENRICHMENT

12: 22. Plaintiffrealleges the preceding paragraphs as if fully set forth herein and.,

131 to the extent necessary; pieads_th~ 'cause of action in the alternative.
14i 23. Through the actions described above, Google has received money
1~1 : belonging to Plaintiff and the Class through the fees collected from ads placed 011

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Hi party content sites when a reasonable advertiser would have believed that lea\líi'lg the

1 ~¡ CPC content bjd input blank meant -(hat they would not be charged for coment ads.

UL 24, Additionally, Google has reaped substantial profit by concealing the fact
i (l that when left blank, the "optional" CPC content bid would be set at an anwunt that could
21 ¡, reach the amount bid for the search bid, Ultimately i rhis resulted in Google's wrongfu.l

.'

2 receipt ofprofJrs and íiijury to Plaintiff and the Class. Google has beneiìted fi:orn the

2:~ receípt of such money that it would not have received but for its concealment.

2~ 25. As a direct and proximate result of Google's misconduct as set forth above,
211

Google has been unjustly enriched.

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26, Under principles of equity and gòod conscience, Google should not be

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21, permitted to keep the full amount of money belonging to Plaintiff and the Class which
2:'1 Google has unjustly received as a result of

its actions.

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WHEREFORE, Plaíntiffand the Class pray for reHefas set forth below.

-&CLASS ACTION COMPLA1NT

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SECONU CAUSE OF ACTION
FRAUDULENT CONCEALMENT
27. Plaintiff realleges the preceding paragraphs as it fully set f0l1h herein and,

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5. to the extent necessary, pleads this Ca1.ISe of action in the alternative"
6: I 28. Google knew at all material iìmes that when an advertiser left the
i '.'optional" CPC content bid input blank, that advertiser would stil be charged for content

8: ad placed on third party websites_ These facts were not known to Plaintiff a.nd the Class.
9' 29, Google had a duiy LO disclose the above known material facts because it

101 knew that these mmerial facts were unknown to Plaintiff and the Class, that Google was

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1 t in a superior position ofknowledge with regard to its own technology, and Google chose
12¡ to make certain representations that presented only a part of

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the tnie story and mísled

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1 ~ consumers about the subject products.
iif 30, Google's knowledge that advertisers would be charged for content ads

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1 ~ placed on thirdpariy websites even when they left the "optional" CPC content bid inpui
lip blank. combined with Google's knowledge that Plaintiff

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and ~le Class relied or relies

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q upon Google to communicate the tre state offacts relatiiig to its AdWords program
il crè¡¡tes a legal obligation on Google's part to disclose to Plaintiff and the Class that

i 11 leaving the "optional" CPC content bid input blank did not mean that they were not
21i siibject to charges for ads placed on third party websites.

21 31. Google intentionally concealed and/or suppressed the above facts with the

211 intent to defrau.d Pla.intiff and the Class. .
2; ¡ 32. Plaintiff and the Class were unaware of the above facts and would nor have
they bad known of L¡.\ acted as they did if

the concealed matenal facts.

:1; 33. Google's c011cealment ofihe above facts has caused damage to Plaintiff and

~f(' the Class in Wi amount to be shown at trial.

:r J WHEREFORE, Plaintiff and the Class pray for relief as, set forth below.
:pl

-9CLASS ACTION COMPl.AlNT
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'04-22-008 Ca!:e35108~"02088-HRL Document 1-3

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THIRD CAUSE OF ACTION
VlOLA TrON OF CALIFORNIA BUSINESS & PROFESSIONS CODE.
SECTIONS 17200 ET SEQ.
34. PJaintiffreaUeges the preceding patagTaphs as if fully set forth herein and,

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3:

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to the extent necessary l pleads this cause of action in the alternative.
35. Plaintiffhas stading to pursue this claim as Plaintiff

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has suffered injury in
Google'$ actions as delineated Iiereill~

fact and have lost money or property as a result of

36. Class members have suffered injury in fact and have lost money or propei1:y

9: as a result of Google's actions as delineated herein.

37. Gaogle's actions as alleged in this complaint constiti.tean unfair or

deceptive practice within the meaning of California Business and Professions Code .
sections 17200 et Beq. in that Google's actions are unfair, unlawful and fraudulent, and

because GoogIe has made imfair, deceptive. untrue or misleading statements in
advertising mediai including the Internet, nlithin the meanLrig of California Business and

Professions Code sections 17500 et seq.

38. Google's business practièes, as alleged herein, are unfãir becaiise they
offend established public policy and/or are immoral, unethical, oppressive, unscrupiilous

and/or substantially injurious to consumers in that consumers are not informed that they
wil be charged for a.ds placed on third par websites even though the "optional", CPC

content bíd input was left blank.

39. Google's business praciices. as alleged herein. are unlawful because the
conduct constitutes fraudulent concealment, as well as the other causes of action herein
alleged.
40. Google's practices, as alleged hereini are fraudulent because they are likely

to deceive consumers.
41. Google's wrongful business acts alleged herein constitiited, and consrituti:,

a continuing course of conduct of unfaír competition since Google is marketing and
sellng their products in -a manenhat is likely to deceive the public.

- 10CLASS ACTION COMPJ./LINT

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42, Googlie's business acts and practices, as alleged herein, have causi.d injury
i 2 i to Plaintiff, the Class and the

public.

3 ; 43. Pursuant to section 17203 of the Caliornia Business and Pr.ofessions Code,
4 i Plaintiffs and the class seek an order of

this court enjoining Google from continuing to

5 i¡ engage in unlawful, uüfair, or deceptive business practices and any other act prohibited

6 by law, includii-ig those actS set forth in the complaint. Plaintiff and the Class also seek
7: an order requiring Google to make full restitùtion .of all moneys it wrongfully 0 btaíl1ed

8 from Plaintiff and the Class.
91 WHEREFORE, Plaintiff and the Class pray for relief as set forth below.
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. 1 i: PRA YER FOR RELlEF
0.

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1~¡ WHEREFORE, Plaintiff and members of the proposed Class request that the
1:1 cour enter an order or judgment against Defendant as follows;

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J'l 1. Certif:catîon of the proposed Class and notice thereto to be paid by

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Defendant;
2.

Adjudge and decree that Defendant has engaged in the conduct alleged

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herein;
3.

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For restitution and disgorgement on ceriain causes of action;
For aii injunction ordering Defendant to cease and desist from engaging in
the unfair, unlawful, and/or fraudulent p.a.ctices alleged in the Complaint;

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4.

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5.

For compensatory and general damages according to proof on ctrtairi

causes of action;
6.
7.

For special damages according to proof on certain causes of action;.
For both pre and post-judgment interest at the maxÎmum allowable'lme on
any amounts awarded;

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8.
9.

Costs of

the proceediQ.gs herein;

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Reasonable attorneys fees as

allowed by statute; and

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~-=1 CLASS ACTION C01VlPLAINT

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.04-2-2008 Cä6èlJ5:0si;f102088-HRL Document 1-3

Filed 04/22/2008 ¡Pge p1?IP~i13 F-95

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l I 10. Any and all such other and further relief

that this Coun may deem just and
proper.

21
3: \
4: \ Dated:

April i.7., 2008

KABATECK BROWN & KELLNER, LLP
By:

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~K
L. KELLNER

ALFRE TORRJOS
Attorneys for Plainiif and proposed class

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-12CLASS ACTION COMPLANT
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"'04-22-00a Cê!èI.iI:08;~2088;'HR'~ Document 1-3
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Filed 04/22/2008 if~e ~3i ~(li3 H95

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1 . DEMAND FOR JUY TRLA-L
2: Plaintiff

hereby demands a tl'ial by jury in the instant action.

3,
41 Dated: April ft, 2008
5;
6!

KABA TECK BROWN & KELLNER, LLP

. . .- 'fEeK -, lUCHAJ L. KELLNER \
Atiorneysfor Plairitifandp~'oposed class

BY"~~
ALFR'ØEl TORRJOS

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- 13CLASS ACTION COM.l.A1NT

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