The Serbian Crown, Virginia, Inc. v. Google, Inc.

Filing 1

NOTICE OF REMOVAL from Circuit Court of Fairfax County Virginia, case number 2014-04673 filed by Google, Inc. (Filing fee $ 400.00, receipt number 14683043614)(NO ANSWER FILED IN STATE COURT). (Attachments: # 1 Cover Letter, # 2 Civil Cover Sheet, # 3 Receipt, # 4 Exhibit A)(pmil, )

Exhibit A

COMMONWEALTH OF VIRGINIA

CIRCUIT COVR T OF FAIRFAX COUNTY
4110 CHAIN BRIDGE ROAD

FAIRFAX, VIRGINIA 22030
703-691-7320

(Press 3, Press 1)

Serbian Crown Virginia Inc, The vs. Google Inc
CL-2014-0004673

TO:

Google, Inc.
A Delaware Stock Corporation

Serve Corporation Service Co, Registered Agent
Bank of America Center, 16th Floor
1111 East Main Street

Richmond, VA 23219

SUMMONS - CIVIL ACTION

The party upon whom this summons and the attached complaint are served is hereby
notified that unless within 21 days after such service, response is made by filing in the
Clerk's office of this Court a pleading in writing, in proper legal form, the allegations and

charges may be taken as admitted and the court may enter an order, judgment or decree
against such party either by default or after hearing evidence.
APPEARANCE IN PERSON IS NOT REQUIRED BY THIS SUMMONS.

Done in the name of the Commonwealth of Virginia; on April 17, 2014.

JOHN T. FREY, CLERK
By:

^—"Deputy Clew
)eputy'

Plaintiffs Attorney: Christopher R. Rau

V.RG1N.A:

^

civh"t£o

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

"^

""* PM ^L/.

THE SERBIAN CROWN, VIRGINIA, INC.,
A Virginia Slock Corporation,

20 14 0467

Plaintiff,

CLNo.
vs.

GOOGLE, INC.,
A Delaware Stock Corporation,
Defendant.

COMPLAINT FOR LEGAL AND EQUITABLE RELIEF

COMES NOW yourPlaintiff, THE SERBIAN CROWN, VIRGINIA, INC.

(hereinafter, "The Serbian Crown" or "Plaintiff), by counsel, and hereby moves for entry
of a money judgment and for various elements of equitable and injunctive relief as set
forth herein, against the Defendant, GOOGLE, INC. (hereinafter "Google" or
"Defendant") and as grounds thereforrespectfully represents as follows.
Parties. Jurisdiction and Venue

1.

At all relevant times herein, Plaintiff THE SERBIAN CROWN,

VIRGINIA, INC., was and is a Virginia Stock Corporation, located in Fairfax County,

Virginia. At all relevant times herein, The Serbian Crown was a restaurant serving
various specialities and a variegated menu, consisting largely of Serbian, Russian and
French cuisine and spirits.

2.

Upon information and belief, at all relevant times herein, Defendant

GOOGLE, INC. was and is a publicly traded Delaware Stock Corporation, with principal

offices and/or business location at Mwh/n \Kt*i, C4.

3.

Plaintiff corporation is in the restaurant business, and starting in 1979, and

up until on or about the end of April 2013, was continuously engaged in that business,
from leased facilities located at 1141 Walker Road, Great Falls, VA 22066. At all

relevant times herein, the President and sole owner of the Plaintiff corporation was, and

is, Renato Bertagne.

4.

Upon information and belief, Defendant Google, Inc. is a multinational,

publicly traded corporation, specializing in internet-related services and products,
including, but not limited to: search functions, cloud computing, software, handheld or
tablet devices, and online advertising technologies and services.

5.

Upon information and belief, a large share of Google's actual cash revenue

comes from its Adwords advertising services, where advertising copy or media is placed
at the top, bottom, beside, or under lists of various results displayed in response to a

particular search query by a user. Upon information and belief, the physical location of
the sales and support operations of Defendant, for its advertising and Adwords programs,
was and is located in Mountain View, California.

6.

Upon information and belief, Google's undertaking to provide pertinent

information regarding existing businesses and landmarks, through Google's search engine

and Google Maps, and Google Places, on the internet, and in interstate commerce, is part
of Google's overall business of selling, among other things, text advertising and media
media advertising, and promoting Google's other lines of business.

7.

In so marketing and selling advertising services, and search-engine based

marketing internet technology, and functionality, to commercial interests, Google acted

as an informational surrogate and/or agent for various entities and individuals who so

advertise, and those businesses otherwise directly competewith each other in all sorts of
markets, including the restaurant market, and those persons and/or entities pay Defendant
Google, for that surrogacy and that advertising.
8.

Even though Google is not believed to be in the restaurant business,

during the relevant periods alleged here, upon information and belief, Google sold
advertising to, and acted on behalf of, many restaurant competitors of your Plaintiff, in
the Virginia, D.C. and Maryland metropolitan area, and through its' prevalence and

market power as an information and search engine provider, Defendant had (and has) the
capacity to profoundly affect the playing field for competition between restaurant
businesses such as Plaintiffs, and other restaurants, through the sponsored content it
furnishes and publishes to the consumer public.

9.

Defendant's advertising and other business activities described above, as

well as unsolicited publication of information regarding Plaintiffs business, upon
information and belief, is attendant to Google's overall business, and is designed to
induce members of the consumer and/or commercial public, such as Plaintiff, on an

interstate and worldwide basis, to enter into obligations with Google, regarding property

and/or services, and/or use its functions and programs; in short, Google publishes

directory information, in part, as a lead-in for purposes of selling advertising to those
businesses.

10.

In setting up, and continuing to maintain and publish, sponsored content

purporting to state Plaintiffs business information in its' search engine and map results,
Defendant placed a person or entity, program, or algorithm, and/or all of these, in
circumstances where Google knew or should have known that the posting of un-

researched, unverified, and/or fictitious or false information, pertaining to something as

fundamental as hours and days of operation of a restaurant, would pose a substantial
danger of economic harm to a business entity such as your Plaintiff, if reasonable care
(and no less than ordinary care) were not exercised in both selecting, engaging, and

retaining, as well as supervising, the person and/or entity providing that information, as
well as the continued maintenance of that information.

11.

At some point unknown to yourPlaintiff, and upon information and belief,

at sometime priorto April 6, 2012, an employee or authorized agent of defendant, or
otherthird party individual or entity witha contractual relationship of some sort

(contractual privity) with Google, placed Google-sponsored content in Defendant's
Google Maps and Google Places functions, other than in comments boards and user
forums, pertaining to your Plaintiff and the restaurant, consisting mainly of a map, the
address, telephone number, and the days and hours of operation of the restaurant.
12.

At some point prior to April 6,2012, and continuing thereafter for some

time, Defendant's advertising material, as relating to Plaintiff, was materially false
because it incorrectly stated the days and hours the restaurant was open for diners,

incorrectly stating that the restaurant was closed on Saturdays, Sundays and Mondays;
Plaintiff is without knowledge as to how long this state of affairs had been the case, but
the restaurant had always been open on Saturdays, Sundays and Mondays, and as with

mostdining establishments, it relied upon weekend diners for a large share of its
business.

13.

The publication of this information placed Plaintiff at a material

disadvantage with its competitors.

14.

In setting up, and continuing to maintain, sponsored content pertaining to

Plaintiffs business, Defendant also assumed a duty specifically owed to Plaintiff, to
ensure that this information was accurate.

15.

As described above, Defendant breached not only the heightened duty of

care, which it assumed, by engaging in the activities it did, as described above, but also

breached its baseline duty of ordinary care it owed to your plaintiff, in the exercise of its

advertising, directory, search and other business functions, all to the Plaintiffs damage
and detriment, as described above and below.

16.

Due to the behaviors and practices described above, which are ongoing in

nature, unless enjoined by this Court, Defendant will continue to engage in untrue and
misleading advertising and content practices, as alleged above.
17.

The Placement of this false information, whether performed intentionally

or not, resulted in reduction of The Serbian Crown's customer traffic, and previously

regular or frequent customers stopped visiting the restaurant on weekends, due to the
Defendant's misinformation regarding the hours of operation.

18.

The misstatement of Plaintiffs open hours was a material fact regarding

Plaintiffs business, and was never requested, or authorized by, your Plaintiff, in any sort

of way; further, it was readily foreseeable to Defendant, as well as likely, that this
incorrect information was likely to materially influence the buying decisions of
consumers at-large, for Plaintiffs restaurant goods and services.
19.

This misstatement of Plaintiffs business days and hours of operation had a

tendency to deceive, and due largely to the massive scale, size and presence of the

Defendant on the internet, and in peoples' web-based activity, the misrepresentation of

the operating hours had a foreseeable tendency to deceive a substantial segment of
Plaintiffs restaurant consumer base, and it in fact did so, to the detriment of Plaintiffs

revenues, as well as business goodwill, all of which had been built up over a period of
decades.

20.

Defendant, or someone in contractual privity with Defendant, and/or

acting at Defendant's behest, placed this false information into interstate commerce, and
Plaintiffs restaurant operations, and customers, not only affected interstate commerce,
but also involved patrons and diners who would travel in interstate commerce, to come to
The Serbian Crown, to dine, from, among other places: the District of Columbia,
Maryland, Virginia, and elsewhere.
21.

On or about April 6, 2012, upon learning of this false information from a

customer who called about the closure, to verify what the customer had read on

Defendant's sponsored content, through a series of subsequent contacts and
communications, Plaintiff began to make what would end up being a series of
unsuccessful efforts at communicating with, as well as persuading, the Defendant, to

change this incorrect information about the Serbian Crown Restaurant, all to no relevant
or meaningful, much less timely response or reaction from Defendant; as such, even
when specifically notified of the deception and falsehood, Defendant failed and/or
refused to correct the false information.

22.

Eventually, continuing to get no response from Google, Plaintiff engaged

the services of an internet marketing consultant to correct the information, without the
assistance or participation of Google personnel; however, the damage had been done. In
its weakened state, the restaurant was not able to continue to operate with a full staff,

operations suffered, and in April 2013, the restaurant was forced to close, after thirty-four
years of operations. In each of those thirty-four years, the restaurant had been open on
Saturdays, Sundays and Mondays.

23.

Lost revenues, loss of goodwill, and the closing of The Serbian Crown

proximally resulted from the Defendant's acts and/oromissions described above.
24.

Defendant's acts and omissions, as described above, had, and continue to

have, a direct effect on plaintiffs ability to successfully do business, in the restaurant
market in which Plaintiff participated.

25.

Upon information and belief, as of April 3,2014, and ongoing thereafter,

Defendant's Google Maps and Google Places function nowlists Plaintiff as being
"Permanently Closed," although Plaintiffhas intentions to reopen the restaurant, if

possible; this particular false statement about Plaintiffs business, though partially true,
insofar as the restaurant has closed, is further likely, and continues to, materially and

irreparably erode-the remaining goodwill of the restaurant, by importing the notion in
consumers that there are no plans,or intent, on Plaintiffs part, to reopenThe Serbian
Crown, either at the former location, or anywhere else. This representation was likewise

notplaced or lawfully authorized to be placed in Defendant's sponsored content
pertaining to Plaintiff.

26.

Due to the behaviors and practices described above, which are ongoing in

nature, unless enjoined by this Court, Defendant will continue to engage in untrue and

misleading, as well as recklessly incorrect, advertising and content practices, as alleged
above.

27.

Unless the Defendant is ordered to immediately remove its statement, as

of April 3, 2014, on the internet, that Plaintiff restaurant is "permanently closed,"

Plaintiff will further suffer irreparable damage to its business and business goodwill, for
which there is not an adequate remedy at law.
COUNT I

(Negligence and Negligent Supervision to Google, Inc.
under Virginia common law)

28.

Paragraphs 1 through 27 are hereby incorporated and restated herein.
COUNT II

(False Advertising with Exceptional Circumstances to Google, Inc.,
under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B))

29.

Paragraphs 1 through 27 above are hereby incorporated and restated

30.

On or about June 12,2012, in response to correspondence received from

herein.

Plaintiff pertaining to the above-described state of affairs, Google sent Plaintiff a letter

stating that Plaintiff could avoid such circumstances in the future, by "claiming his
listing," which process involves, upon information and belief, the claiming party, as a

condition of being able to submit corrected information, must enter into, and agree to, a
"user agreement" with Google, which among other things, purports to authorize Google a
non-exclusive license to use, as well as modify, all information submitted by the user.
31.

Upon information and belief, Google has set up a set of commercial

circumstances where the only effective method an entity or business person can correct
erroneous, or even intentionally erroneous sponsored content of Google, is to "agree" to,

among other things, Google's non-exclusive license, as well as other overreaching terms
and conditions in its user agreement.

32.

This stateof affairs, and practice, as promulgated by the Defendant, set up

an effective scheme where businesses, including Plaintiff, are effectively coerced or

forced into entering into a user agreement, and/or engage and pay an internet marketing
consultant (as plaintiff did) in order to attempt save their businesses from the bad effects
of false information placed in Defendant's sponsored content, through forcing the
business into a user agreement, or even an advertising contract, with the Defendant, as a

result of the business's desire to simply to correct false information developed by, and
influenced by, the Defendant.

33.

As described above, in the period following Plaintiffs informing Google

agents of the falsity of this information, and until the information regarding the hours was
remedied, the continued perpetuation of that false information, by Defendant, was
intentional in nature.

34.

In addition, in the alternative to so many of the above allegations as state

that Google's placement and perpetuation of the false and/or misleading information

herein was negligent and/or without intent, factual circumstances also exist to support the
proposition that the placementof this information, and/or maintenance thereof, by
Defendant, at some point in time, even before Plaintiffcommunicated the falsehoods to
Google, was and/or is of an intentional, and/or published in bad faith, as almost every

other similar provider of internet commercial search-related advertising and services,
who listed days and hours for Plaintiff, during the restaurant's same periods of active

operations, managed to list, in a substantially correct manner, the hours and days of The
Serbian Crown restaurant's serving hours.

35.

To the above extent, even the most basic or superficial research or

verification (even by a computer program) comparing the information listed by
Defendant, with that listed by other search providers and advertisers with similar

directories and services on the internet, would have revealed that Google's information
was materially inconsistent with information placed by other such providers, and that
Google's information was the "outlier."
Prayer for Relief

WHEREFORE, your Plaintiff respectfully requests that this Honorable Court

enter an Order providing for the following relief:
(a)

a money judgment against Defendant, equal to three times the aggregate

amount of all loss of revenue, and loss of goodwill occasioned by Defendant's acts and
omissions described above, in the nature of compensatory and statutory damages, in the
amount of one million dollars ($1,000,000.00), or such other amount as is appropriate,
subject to proof and evidence at trial and/or evidentiary hearing herein;
(b)

A temporary restraining order, to continue in force until a day to be set for

hearing on an motion or application for a temporary injunction, or until further order of
this Court, restraining Defendant from publishing or disseminating false or misleading
information as to Plaintiff and others;

(c)

A permanent injunction enjoining Defendant from publication of similarly

false and/or misleading advertisements;

(d)

A permanent injunction enjoining Defendant from publishing, or

continuing to perpetuate, false and/or unverified or insufficiently unauthenticated content

and information, pertaining to your Plaintiff, and other businesses, in its Google Maps
and Google Places functions or programs;
(e)

A permanent injunction enjoining Defendant to provide a readily

accessible method for businesses such as Plaintiff, and Plaintiff to opt out, or cause

Defendant to correct or delete false and deceiving sponsored information, without being
forced to agree to the terms of Defendant's "user agreement"; and

(e)

An award of its reasonable attorney's fees and costs associated with the

prosecution of this action; and

(f)

Such other and further relief as is appropriate to the premises of law,

equity and the facts of this case.
Jury Demand

Your Plaintiff hereby demands trial by jury as to all claims and issues of fact so
triable herein.

Respectfully submitted,
THE SERBIAN CROWN, VIRGINIA, INC.
By Counsel

r^xZ&V -?&_
Christopher R. Rau (VSB No. 34135)
Attorney for Plaintiff
Law Offices of Christopher R. Rau
6711 Lee Highway, Suite 220
Arlington, VA 22205-1940
[phone] - Telephone
[e-mail] - E-Mail

Dated: April 4, 2014

11

Fairfax Circuit Court
Circuit Court

Receipt No. 543483

Receipt Date: 04/14/2014 03:52 PM
Received of:

12.00

Rau .Christopher

On Behalf of Serbian Crown Virginia Inc, The
A Virginia Stock Corporation
Twelve and 00/100

Serbian Crown Virginia Inc, The vs. Google Inc
Case

Amount

'

CL-2014-0004673
12.00

Sheriffs Service Fee

Total:
Balance due court: $

12-00
0.00

Next due date:

Payment Method: Cash
Amount Tendered:

Change Due:

12.00
0.00

John T. Frey, Clerk of Circuit Court
By:

Deputy Clerk
Clerk: AQUINT

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04/14/2014 03:53 PM User ID: Clerk: AQUINT