<b><i>Online Extra:</b></i> Ninth Circuit Says Google Must Face Advertiser Suit

The U.S. Court of Appeals for the Ninth Circuit on Sept. 21 dusted off a seven-year-old class action against Google Inc. over its AdWords keyword advertising program.

A Ninth Circuit panel reversed a decision denying class certification to businesses claiming that Google inappropriately charged for ads placed on error pages and so-called parked domains between 2004 and 2008.

Circuit Judge Richard Paez wrote in'a 21-page opinion'that U.S. District Judge Edward Davila of the Northern District of California erred by conflating the question of liability with the difficulty of calculating restitution awards for class members.

Paez wrote that “a court need not make individual determinations regarding entitlement to restitution” to proceed with a class action under California's Unfair Competition Law and Fair Advertising Law. “Instead, restitution is available on a classwide basis once the class representative makes the threshold showing of liability,” he wrote.

The panel also reinforced the vitality of'Yokoyama v. Midland National Life Insurance'Co., a 2010 Ninth Circuit decision holding that damages calculations alone cannot defeat class certification. The opinion was joined by Circuit Judge A. Wallace Tashima and U.S. District Judge Gordon Quist of the Western District of Michigan, sitting by designation.

The decision is a loss for Cooley, which had squelched the plaintiffs' bid to certify a class of Google advertisers'at the district court in 2012. Cooley's Michael Rhodes, who'argued for Google'at the Ninth Circuit in December, declined to comment.

Miranda Kolbe of Schubert Jonckheer & Kolbe, who argued the plaintiffs' appeal, said that she was pleased with the decision, but “not particularly surprised.” Kolbe said that Davila erred by discarding a proposed method for calculating restitution because it didn't account for benefits some class members received from clicks on ads placed on less desirable pages.

“What we explained and what the Ninth Circuit understood was when you're calculating restitution you look at the price paid minus the value of what was received” at the time of purchase, Kolbe said.

The panel said it would be reasonable to use Google's own pricing formula to calculate what a rational business would have bid to advertise on error pages and inactive websites.

Kolbe declined to speculate on damages, saying that's an issue for expert testimony. But she said the case “involves virtually all Google advertisers during the class period.”

– Ross Todd, The Recorder

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The U.S. Court of Appeals for the Ninth Circuit on Sept. 21 dusted off a seven-year-old class action against Google Inc. over its AdWords keyword advertising program.

A Ninth Circuit panel reversed a decision denying class certification to businesses claiming that Google inappropriately charged for ads placed on error pages and so-called parked domains between 2004 and 2008.

Circuit Judge Richard Paez wrote in'a 21-page opinion'that U.S. District Judge Edward Davila of the Northern District of California erred by conflating the question of liability with the difficulty of calculating restitution awards for class members.

Paez wrote that “a court need not make individual determinations regarding entitlement to restitution” to proceed with a class action under California's Unfair Competition Law and Fair Advertising Law. “Instead, restitution is available on a classwide basis once the class representative makes the threshold showing of liability,” he wrote.

The panel also reinforced the vitality of'Yokoyama v. Midland National Life Insurance'Co., a 2010 Ninth Circuit decision holding that damages calculations alone cannot defeat class certification. The opinion was joined by Circuit Judge A. Wallace Tashima and U.S. District Judge Gordon Quist of the Western District of Michigan, sitting by designation.

The decision is a loss for Cooley, which had squelched the plaintiffs' bid to certify a class of Google advertisers'at the district court in 2012. Cooley's Michael Rhodes, who'argued for Google'at the Ninth Circuit in December, declined to comment.

Miranda Kolbe of Schubert Jonckheer & Kolbe, who argued the plaintiffs' appeal, said that she was pleased with the decision, but “not particularly surprised.” Kolbe said that Davila erred by discarding a proposed method for calculating restitution because it didn't account for benefits some class members received from clicks on ads placed on less desirable pages.

“What we explained and what the Ninth Circuit understood was when you're calculating restitution you look at the price paid minus the value of what was received” at the time of purchase, Kolbe said.

The panel said it would be reasonable to use Google's own pricing formula to calculate what a rational business would have bid to advertise on error pages and inactive websites.

Kolbe declined to speculate on damages, saying that's an issue for expert testimony. But she said the case “involves virtually all Google advertisers during the class period.”

– Ross Todd, The Recorder

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