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Google sued for overcharging AdWords customers by Mar Matthias Darin I had something else in mind for today... but while I checking my postal mail, I came across this letter I'd received:
Plaintiffs, vs. GOOGLE, INC., Defendant.
PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS
MAY BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION. IF YOU ARE A CLASS
MEMBER, YOU MAY BE ENTITLED TO RECEIVE BENEFITS PURSUANT TO THE PROPOSED
SETTLEMENT DESCRIBED HEREIN.
EXCLUSION DEADLINE: REQUESTS FOR EXCLUSION FROM THE CLASS MUST
CONTAIN THE INFORMATION SET FORTH BELOW AND BE ACTUALLY RECEIVED BY THE
CLAIMS ADMINISTRATOR ON OR BEFORE JULY 14, 2009.
A. Purpose of this Notice
This Notice is given pursuant to Rule 23 of the Federal Rules of
Civil Procedure and an Order of the Court, dated May 12, 2009. The
purpose of this Notice is to inform you that the above-entitled action
("the Action") has been certified as a class action and of the terms of
a proposed settlement of the Action. This Notice describes rights you
may have under the proposed settlement and what steps you may take in
relation to this litigation. This Notice is not an expression of any
opinion by the Court as to the merits of any claims or any defenses
asserted by any party in this litigation, or the fairness or adequacy of
the proposed settlement.
B. Statement of Recovery to the Class
Pursuant to the settlement described herein, $20,000,000, in a
combination of cash and AdWords Credits, have been created for the
benefit of the Class. These funds have been placed in an
interest-bearing escrow account.
A Class member's distribution from the net Settlement Fund will be
determined by a Plan of Allocation to be approved by the Court. An
explanation of how each Class member's distribution will be calculated
for purposes of the settlement is set forth in the proposed Plan of
Allocation which is summarized in Part VI of this Notice below.
C. Statement of Potential Outcome of the Case
Google has denied, and continues to deny, each and all claims of
wrongdoing against it and continues to assert defenses thereto, and has
expressly denied any wrongdoing or legal liability out of any of the
conduct alleged in the Action. Google denies that Representative
Plaintiffs or the Class have suffered any damages or are entitled to any
restitution. Representative Plaintiffs considered that there was a
substantial risk that they and the Class might not have prevailed on
their claims and that there were risks that they and the Class could
have recovered substantially less than the settlement amount, if the
case had been litigated to judgment.
The settlement was reached only after the parties conducted arduous
arm's-length negotiations over a period of two months. Representative
Plaintiffs' Counsel have determined that the settlement was fair,
reasonable and adequate and in the best interest of the Class.
D. Statement of Attorney's Fees and Expenses and Representative
Plaintiffs' Incentive Compensation Awards Sought
Representative Plaintiffs' Counsel for the Class intend to apply for:
attorneys' fees of not more than $5,000,000, plus a proportionate share
of the interest earned on the Settlement Proceeds, for reimbursement of
expenses incurred in connection with the prosecution and settlement of
this litigation, not to exceed $250,000; and for an incentive
compensation award to the two Representative Plaintiffs, not to exceed
$20,000 each.
E. Further Information
Further information regarding the litigation and this Notice may be
obtained by contacting Representative Counsel for the Class:
NOTICE IS HEREBY GIVEN, pursuant to Rule 23 of the Federal Rules of
Civil Procedure and an Order of the United States District Court for the
Northern District of California (the "Court") dated May 12, 2009, that a
hearing ("Settlement Hearing") will be held by the Court on September 14
2009 at 9:00 a.m., at the United States Courthouse, 280 South 1st
Street, San Jose, California, 95113. The purpose of the Settlement
Hearing will be, among other things: (1) to determine whether the
proposed Settlement Agreement is fair, reasonable and adequate to the
Class and should be approved by the Court and, therefore, whether the
Action should be dismissed on the merits and with prejudice, and (2) to
consider the reasonableness of an application by Representative
Plaintiffs' Counsel for payment of attorney's fees and reimbursement of
costs and expenses incurred in connection with the Action and for
incentive compensation award to the Representative Plaintiffs.
The Court has certified a Settlement Class defined as: all persons
and entities residing in the United States who have paid Google for
advertising pursuant to Google's AdWords program who (a) became AdWords
advertisers between June 1, 2005 and February 28, 2009, inclusive, and
who were charged more than their per day Daily Budget on any day during
that time period; or (b) paused their AdWords advertising campaigns on
any day during the period from January 1, 2002 to February 28, 2009,
inclusive, and during the same billing period when their AdWords
advertising campaigns were paused, were charged more than the product of
their per day Daily Budget times the number of days that such Class
Members' advertising campaigns were not paused during that billing
period. Excluded from the Class are Resellers, defined as persons or
entities whose regular business activities include placing ads on
Google's AdWords program on behalf of otherwise unaffiliated persons or
entities.
AdWords is a global advertising program offered by Google. This
Action concerns Google's billing practice for its AdWords program.
On May 4, 2006, Representative Plaintiffs filed their Second Amended
Class Action Complaint, which is the operative complaint in the Action,
which alleges five causes of action: (1) Breach of Contract; (2) Breach
of the Implied Covenant of Good Faith and Fair Dealing; (3) Violations
of Cal. Bus. & Prof. Code § 17200, et seq. ("UCL"); (4) Violation of
Cal. Bus. & Prof. Code § 17500, et seq. ("FAL"); and (5) Unjust
Enrichment. In their Complaint, the Representative Plaintiffs sought
damages, restitution, and injunctive relief to remedy Google's practice
of (1) charging its AdWords advertisers up to 120% of their per day
daily budget on any given day (Plaintiffs' "120% claims"); and (2)
charging AdWords customers who paused their campaigns more than their
per day Daily Budget times the number of days their campaigns were not
paused during the billing period (Plaintiffs' "pausing claims").
Google filed four separate motions for partial summary judgment. The
Court dismissed the Representative Plaintiffs' Second and Fifth Causes
of action for breach of the implied covenant of good faith and fair
dealing and unjust enrichment. Google also successfully argued that its
practice of charging AdWords Advertisers up to 120% of their daily
budget on any given day does not, in and of itself, constitute breach of
contract. The Court held that triable issues of fact existed as to
whether Google's practice of charging up to 120% of an AdWords
Advertiser's per day Daily Budget violates the UCL and FAL and whether
Google's pre-September 2006 pausing practices constitute a breach of
contract.
Google has denied all claim of wrongdoing or liability in the Action.
The Settlement Agreement is not and shall not be construed or deemed to
be evidence or an admission or a concession on the part of Google of any
fault or liability or damages whatsoever, and Google does not concede
any infirmity in the defenses which it has asserted in the Action.
Counsel for the parties conducted extensive settlement negotiations
to achieve the settlement described herein. The settlement was reached
only after the parties conducted arduous arm's-length negotiations and
after the parties conducted extensive pre-trial discovery. During the
course of this Action, Google produced hundreds of thousands of pages of
documents, responded to multiple interrogatories, and Google employees
testified at deposition. In addition, Representative Plaintiffs produced
documents to Google, responded to interrogatories, and testified at
deposition.
In determining to settle the Action, Representative Plaintiffs and
Representative Plaintiffs' Counsel have taken into account the
substantial expense and length of time necessary to prosecute the
litigation through complete pretrial discovery, trial, post-trial
motions and likely appeals, taking into consideration the significant
uncertainties in predicting the outcome of this complex litigation.
Representative Plaintiffs' Counsel believes that the settlement
described herein provides substantial benefits to the Class. Based on
their consideration of all of these factors, Representative Plaintiffs
and Representative Plaintiffs' Counsel have concluded that it is in the
best interests of the Class to settle the Action on the terms described
herein, subject to the approval of the Court.
Representative Plaintiffs recognized the uncertainty and risk of the
outcome of any litigation, especially complex litigation such as this,
and the difficulties and risks inherent in the trial of such an action.
Representative Plaintiffs desired to settle the claims of the Class
against Google on the terms and conditions described herein which
provide substantial and immediate benefits to the Class. Representative
Plaintiffs' Counsel deems such settlement to be fair, reasonable and
adequate to, and in the best interests of, the members of the Class.
Google, while continuing to deny all allegations of wrongdoing or
liability, desired to settle and terminate all existing or potential
claims against it without in any way acknowledging fault or liability.
During the course of the litigation, Google, in addition to denying any
liability, disputed that Representative Plaintiffs and the Class were
damaged by any wrongful conduct on its part. The settlement provides
immediate and substantial benefits to the Class and avoids the risks
that liability or damages might not be proven at trial.
THE COURT HAS NOT FINALLY DETERMINED THE MERITS OF REPRESENTATIVE
PLAINTIFFS' CLAIMS OR THE DEFENSES THERETO. THIS NOTICE DOES NOT IMPLY
THAT THERE HAS BEEN OR WOULD BE ANY FINDING OF VIOLATIONS OF LAW OR THAT
RECOVERY COULD BE OBTAINED IN ANY AMOUNT IF THE ACTION WERE NOT SETTLED.
In full and complete satisfaction of the claims which have or could
have been asserted in this Action, and subject to the terms and
conditions of the Stipulation, Google has paid $20,000,000 into escrow
on behalf of the Class (the "Settlement Proceeds"), which has been
earning interest since on or about March 31, 2009. The Settlement
Proceeds, which are inclusive of any Fee and Expense Award and incentive
compensation award to Representative Plaintiffs, shall be distributed by
Google (with respect to AdWords Credits) and the Claims Administrator in
accordance with the terms of the Plan of Allocation described below.
The settlement will release Representative Plaintiffs' and Class
Members' Released Claims against the Google. The Released Claims are
defined as: any and all claims, demands, actions, causes of action,
rights, offsets, suits, damages, lawsuits, liens, costs, losses,
expenses or liabilities of any kind whatsoever, for any relief
whatsoever, including monetary, injunctive or declaratory relief, or for
reimbursement of attorneys' fees, costs or expenses, which the
Representative Plaintiffs or any Member of the Class which were or could
have been asserted based on the allegations set forth in the complaints
filed by the Representative Plaintiffs in the Action, specifically
including any and all claims based on a Class Member being charged more
than his, her, or its Daily Budget.
Upon the Effective Date of the settlement, the Representative
Plaintiffs and Class Members on behalf of themselves, their heirs,
executors, administrators, successors, assigns, employees, officers,
directors, attorneys, representatives, affiliates, agents, and any
persons or entities they represent, shall be deemed to release and
forever discharge Google from all Released Claims, and shall forever be
barred and enjoined from prosecuting, commencing, instituting or
asserting all or any of the Released Claims in any action or other
proceeding in any court of law asserting all or any of the Released
Claims in any action or other proceeding in any court of law or equity,
arbitrational tribunal, administrative or other forum, whether directly,
representatively, derivatively, or in any other capacity against Google.
If the settlement is approved by the Court, all claims which have or
could have been asserted in the Action will be dismissed on the merits
and with prejudice as to all Class Members and all Class Members shall
be forever barred from prosecuting a class action or any other action
raising any Released Claims against Google. The settlement will become
effective at such time as Final Judgment entered by the Court approving
the settlement shall become final and not subject to appeal (the
"Effective Date").
Each Active AdWords Advertiser who makes such an election before the
designated deadline shall receive that portion of the Class Member's
Distribution that is in excess of the balance due on his, her, or its
AdWords account in cash.
The Court has certified this action to proceed as a class action
pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil
Procedure. If you are not a Reseller, you are a member of the Class if:
you reside in the United States, have paid Google for advertising
pursuant to Google's AdWords program and either (a) became an AdWords
advertiser between June 1, 2005 and February 28, 2009, inclusive, and
were charged more than your per day Daily Budget on any day during that
time period; or (b) paused your AdWords advertising campaign on any day
during the period from January 1, 2002 to February 28, 2009, inclusive,
and during the same billing period when your AdWords advertising
campaign was paused, were charged more than the product of your per day
Daily Budget times the number of days that your AdWords advertising
campaign was not paused during that billing period. Class members have
the following options:
A. If you wish to remain a member of the Class, you may share in the
proceeds of the Settlement. Class Members will be represented by
Representative Plaintiffs and Representative Plaintiffs' Counsel, unless
you enter an appearance through counsel of your own choice at your own
expense. You are not required to retain your own counsel, but if you
choose to do so, such counsel must file an appearance on your behalf on
or before July 14, 2009, and must serve copies of such appearance on the
attorneys listed below.
B. If you do not wish to remain a member of the Class, you may
exclude yourself from the Class by following the instructions below.
Persons who exclude themselves from the Class will NOT receive any share
of the Settlement Proceeds and will NOT be bound by the Settlement.
C. If you object to the Settlement, the Plan of Allocation, or to
Representative Plaintiffs' Counsel's application for attorney's fees and
expenses and for an incentive compensation award for Representative
Plaintiffs, and if you do not exclude yourself from the Class, you may
present your objections by following the instructions below.
Each member of the class shall be bound by all determinations and
judgments in this Action concerning the Settlement, whether favorable or
unfavorable, unless such person files a written request for exclusion by
first-class mail so that it is actually received by the Claims
Administrator on or before July 14, 2009. Your rights against Google
will be affected by this Settlement. To be effective, any request for
exclusion from the Class must be in writing and must include the name,
email address, AdWords account number, and mailing address of the person
seeking to opt out, the dates that the person was an AdWords Advertiser,
and a statement that the person wishes to be excluded from the Class,
and must be signed by or on behalf of the person so requesting exclusion
and sent via first-class mail to:
At the Settlement Hearing, the Court will determine whether to
finally approve this Settlement and dismiss the Action and the claims of
Representative Plaintiffs and the Class. The Settlement Hearing may be
adjourned from time to time by the Court without further written notice
to the Class.
At the Settlement Hearing, any Class member who has not filed a
proper request for exclusion from the Class may appear in person or by
counsel and be heard to the extent allowed by the Court in opposition to
the fairness, reasonableness and adequacy of the Settlement, the Plan of
Distribution, or the application of Representative Plaintiffs' Counsel
for an award of attorney's fees and expenses and for an incentive
compensation award to Representative Plaintiffs, provided, however, that
in no event shall any person or entity be heard in opposition to the
Settlement, the Plan of Distribution, or Representative Plaintiffs'
Counsel's application for attorney's fees and expenses and for an
incentive compensation award to Representative Plaintiffs, and in no
event shall any paper or brief submitted by any such person be accepted
or considered by the Court, unless, the objection is filed with the
Court and served on Representative Plaintiffs' Counsel and Google's
Counsel so that it is received no later than July 14, 2009. Any such
objection shall include all briefs or other papers to be considered by
the Court, and must include the name and address of the person and the
dates that the person was an AdWords Advertiser, and must be served to
Representative Plaintiffs Counsel at the following addresses:
and said objections, papers and briefs must be filed with the Clerk
of the Court, showing due proof of service upon Representative
Plaintiffs' Counsel and counsel for Google.
At the Settlement Hearing, or at such other time as the Court may
direct, Representative Plaintiffs' Counsel will apply to the Court for
an award of attorney's fees from the Settlement Proceeds in an amount
not exceeding $5,000,000, plus a proportionate share of the interest
earned on the Settlement Proceeds, and for reimbursement of their costs
and expenses, not to exceed $250,000; and for a incentive compensation
award to the two Representative Plaintiffs, not to exceed $20,000 each.
Representative Plaintiffs' Counsel, without further notice to the Class,
may subsequently apply to the Court for fees and expenses incurred in
connection with administering this Settlement and distributing the
Settlement proceeds to the members of the Class.
For a more detailed statement of the matters involved in this Action,
reference is made to the pleadings, to the Settlement Agreement, to the
Orders entered by the Court and to the other papers filed in the Action,
which may be inspected at the Office of the Clerk of the United States
District Court for the Northern District of California, San Jose
Division, United States Courthouse, 280 South 1st Street, San Jose,
California, 95113, during regular business hours.
ALL INQUIRIES CONCERNING THIS NOTICE BY CLASS MEMBERS SHOULD BE MADE
TO THE CLAIMS ADMINISTRATOR. PLEASE DO NOT CONTACT THE COURT OR THE
CLERK'S OFFICE FOR INFORMATION.
Well, well, well... It looks like Google's "holier then thou" terms of services where they've declared themselves "GOD" has just been broken. I'm not surprised that Google is being sued considering I've had my rounds with Google over AdSense. The case claims Google AdWords customers where overcharged and their daily advertising limit was not honered. Of course, Google claims they acted within their terms of services. It looks like Google got a long overdue awakening and their terms of service doesn't give them a free pass to break the law and rip people off. Google settled and is doling out the cash. Its refreshing to see Google get slapped down especially in lieu of all the websites they've been slapping down for the last two years... For those lunatics that think Google is the GOD of advertising, all of this can be verified here. It has also been brought to my attention that GMail users won't receive this notice as Google is blocking it. It appears that Google has a lot to hide. I am so glad I stopped using Google and went to AdBrite and Project Wonder for my advertising... Personally, I believe Google gets what they deserve for ripping people off. I wonder how long it will take before Google gets sued for their infamous "Invalid Clicks" excuse and their unwillingness to prove their accusations they use to rob AdSense users... Maybe Google will learn from this and stop trying to block third party arbitration of disputes. After all, it is the cusumer's right to challenge any company they believe has defrauded them. In the legal world, its called the Consumer Protection Act. pleased to participate in
Hosted by Widmill on the hill Top tags: class, settlement, google, representative, adwords, court, claims, action, plaintiffs, counsel Comments from Windmill 60.50.235.73 Hi Matthias, WOW! WOW! WOW! This is indeed a landmark victory. When I began blogging and used blogspot.com, I used to note here and there bloggers complaining about Google's high handedness. Granted, Google owns and manages blogspot.com, so as a new comer I felt that exercised that ownership to its fullest. But this is something else altogether. Google is being penalised for Fraud!!! WOW! Thanks for sharing this great piece at Saturday Saved. God Bless you Always! Comments from Mar Matthias Darin Windmill: I agree. I tried BlogSpot before I embarked on writting my own blog platform... Their terms of service for BlogSpot is absolutely rediculious. Google settled for $20 million. That, in and of itself, says a lot. Comments from The BoBo 173.168.68.179 tweeted. Comments from Mar Matthias Darin The BoBo: Thanks. I appreciate the traffic to this.
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