Horrid Case

[DragonMaci]

Is this case likely to win? I hope not, but I cannot hazzard a guess since I do not know what US courts are like. i can say though that it is a case that shouldn't win. The follwing part is utter nonsense.

Mr Almeida said he reasonably assumed leaving it blank would mean his ad didn't appear at all and that he wouldn't be charged.

"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," Mr Almeida alleges in the lawsuit, filed in a California court last week.

What do you think?

[Drew1776]

When advertisers sign up to Google's advertising service, they can set a maximum price they will pay for ads next to Google's search engine results, but are told that setting a price for ads on other websites is optional.

Normally a blank means zero. In this case the question seems to be "What is the uper limit?" a blank in this case would mean "No upper limit." While technically Google didn't do anything wrong I do think it's misleading. However, I would suspect that the individual bringing the lawsuit is simply fishing for money and I don't think Google is guilty of fraud.

[Zip]

If you charge someone for something that he/she didn't want or sign up for that is wrong.

[sarcasm]Unless you're the government.[/sarcasm]

[DragonMaci]

Normally a blank means zero. In this case the question seems to be "What is the uper limit?" a blank in this case would mean "No upper limit." While technically Google didn't do anything wrong I do think it's misleading. However, I would suspect that the individual bringing the lawsuit is simply fishing for money and I don't think Google is guilty of fraud.

Yeah, it means, "I want no limit", not. "I don't want this feature." And that is why I say his statements are rubbish.

If you charge someone for something that he/she didn't want or sign up for that is wrong.

Therein lies the problem; Google had no way of knowing he didn't want it; he didn't tell them he didn't despite what he claims, he didn't tell them what he didn't want it. He signed up for their default service and didn't request it to be different. He also failed to do his homework on what he was signing up for. That is why he got more than he wanted, not because Google done anything wrong and was fraudlulent or knowingly gave him a service he didn't want. They unknowingly gave him a service he didn't want. They rationally interpreted the blank fields as him not wanting a limit on the cost of ads on other sotes, which is how he should of interepreted it.

[sarcasm]Unless you're the government.[/sarcasm]

Yeah, because - at least if you believe most people - the magically have a right to do it when no one else does. *Rolls eyes.*

All in all, this is a vicious case. Google didn't do anthing wrong. They didn't even know he didn't want the ads on other sites. His ads being on the others sites is his own fault for not doing his research on the service he signed up for and for misinterpreting the blank fields in a highly irrational manner. I hope he loses this case.

So, does anyone know if this case is likely to win or not?

[DavidOdden]

While technically Google didn't do anything wrong I do think it's misleading.

I think it's not misleading since they say IF you set your own CPC. It would be unreasonable to assume that "free" is an option, and "I don't want this feature" would be meaningless (if you don't want the AdSense feature, don't request an account whose purpose is advertising).

If you charge someone for something that he/she didn't want or sign up for that is wrong.

From what I can tell, he did sign up for it. He had to agree to their service, which means he did sign up for it. I don't doubt that he wasn't cautious about what he was signing up for, but what he "wants" is irrelevant, what matters is what he agreed to. I admit that I don't know exactly where my ads would appear if I were to have an "unlimited charge" option, but they do, in my opinion, make it clear enough that this is something that can be tailored and therefore you have a responsibility to actually pay attention to where your ads are going.

However, I will say that the blank=unlimited is a poor choice, communicatively speaking, and that an explicit "no limit" button would be better. It's not misleading, but it is potentially confusing. That is not grounds for a lawsuit, though.

[DragonMaci]

I think it's not misleading since they say IF you set your own CPC. It would be unreasonable to assume that "free" is an option, and "I don't want this feature" would be meaningless (if you don't want the AdSense feature, don't request an account whose purpose is advertising).From what I can tell, he did sign up for it. He had to agree to their service, which means he did sign up for it. I don't doubt that he wasn't cautious about what he was signing up for, but what he "wants" is irrelevant, what matters is what he agreed to. I admit that I don't know exactly where my ads would appear if I were to have an "unlimited charge" option, but they do, in my opinion, make it clear enough that this is something that can be tailored and therefore you have a responsibility to actually pay attention to where your ads are going.

See, that is precisely my point.

However, I will say that the blank=unlimited is a poor choice, communicatively speaking, and that an explicit "no limit" button would be better. It's not misleading, but it is potentially confusing. That is not grounds for a lawsuit, though.

What would you propose a blank field means then? After all the field is asking for a limit, so to me it seems reasonable that a blank field means "no limit".

[DavidOdden]

What would you propose a blank field means then? After all the field is asking for a limit, so to me it seems reasonable that a blank field means "no limit".

A blank means nothing, including "I forgot to answer". If you want to say "zero cents, I want you to be an idiot and peddle my junk for free", you should have a "zero cents" option, distinct from "no limit". Explicitness and clarity is always better than the alternatives.

[Chops]

As far as I can tell, the allegation is completely baseless. I've been an Adwords customer for 2 years now, and never have I been confused about anything. Google is notorious for having easy-to-use software, and this includes Adwords.

I'm not sure what they mean by "left blank", exactly. What was left blank, however, I can only assume they mean the CPC field (cost Per Click). In any case, the text is very clear:

Moreover, the cost you're paying for things is also clearly set on the summary page:

Finally, he's alleging that people don't know that their ads are showing on other sites, but this is also made clear in the Campaign settings:

Google has done nothing wrong and everything is clearly defined on each page. Beyond that, there's an extensive knowledge base. They (should) have no case.

[Qwertz]

I've read the complaint, and it is, like most complaints, short on facts. One fact I would like, if anyone has it, is whether Google requires subscribers to its advertising service to agree to particular contract text before asking for bid amounts, and what that text says. Or said, at the time Mr. Almeida subscribed. I'm sure Google has clarified the meaning of a blank field by now.

Based solely on Plaintiff's recital of facts in the complaint, my guess is that this is just a case of "I didn't read the fine print and now I'm mad." One wonders why Mr. Almeida didn't call Google right away as soon as he saw that he was being over-charged.

Based on Plaintiff's recital of facts in the complaint, it looks like leaving the "CPC Content Bid (optional)" field blank indicates the subscriber's intent that the field immediately above it, "Default CPC Bid," should govern.

The proposed class will not be certified, because the class definition is too broad. Plaintiff proposes the following class definition:

All persons or entities located within the United States who bid on a keyword through AdWords, left the "CPC content bid" input blank, and were charged for content ads.

Note that the class does not exclude those people who read the fine print and understood that leaving the field blank meant that the "Default CPC bid" should apply. Plaintiff's claims are not applicable to these people, and the class definition must exclude them. When we try to craft a proper class definition, we find that we must insert something like "who did not want third-party ads" in there somewhere and our class gets substantially smaller. Small enough to cause numerosity problems and maybe amount in controversy problems.

Aside

Class actions based on diversity of citizenship in US Federal courts, like this one, may be brought under either:

a)

normal diversity jurisdiction, 28 U.S.C. §1332(a)-©, which requires complete diversity of citizenship between all the named plaintiffs (in this case Almeida, a citizen of Massachusetts) and all the defendants (in this case Google, a "citizen" of both Delaware and California) and an amount in controversy of more than $75,000, to which at least one of the named plaintiffs must have a claim (

see

Exxon Mobil Corp. v. Allapattah, 545 U.S. 546 (2005))

or

the Class Action Fairness Act, 28 U.S.C. §1332(d)

et al.

, which requires only minimal diversity of citizenship (at least one plaintiff a citizen of a state different from at least one defendant) among the parties and a total amount in controversy of at least $5M, which may be met by aggregating the claims of all members of the proposed class.

In this case, there is no way Almeida can claim $75,000 on his own. He must aggregate as a class under CAFA if he wants to be in Federal court. But if we cut his proposed class back to where it should be, the likelihood of the class meeting the $5M requirement dwindles.

All this is important because it means the class won't be certified in Federal court. If Almeida can't certify the class in Federal court, he could try to certify the class in the state courts of California, but that is likely to be more difficult. If the class is not certified, Google will not be faced with the possibility of a huge class action to settle or litigate. Acceptable settlement figures plummet, and Google gets to avoid the whole thing by settling for a few grand, which would be the easiest and cheapest thing to do, because it doesn't set a precedent and is a heck of a lot cheaper than litigating.

Google will probably end up settling this for a low dollar amount and will (perhaps already has?) clarify its system so subscribers are less likely to be confused. Neither action would mean that Google is saying "we did something wrong," or "we messed up." Only that it is cheaper for them to settle than to litigate.

If they did decide to litigate, which I find very unlikely, they could easily win on a summary judgment motion once discovery reveals that Almeida just didn't read the fine print. This is the sort of case that would never, ever go to an actual trial.

~Q

PS - Chops' screenshots tell us that Google has already clarified the issue, but they don't help with the lawsuit unless they were taken in 2006, when Almeida signed up. We don't have the facts from 2006, so the case can't be dismissed before discovery.

EDIT: Now that's very annoying -- when I type [open parenthesis][letter 'c'][close parenthesis], it comes out [copyright], despite the fact that emoticons are turned off. I tried changing it in the editor, but it won't let me type a 'c' inside parentheses. Sorry.

Edited April 29, 2008 by Qwertz

[DragonMaci]

A blank means nothing, including "I forgot to answer". If you want to say "zero cents, I want you to be an idiot and peddle my junk for free", you should have a "zero cents" option, distinct from "no limit". Explicitness and clarity is always better than the alternatives.

I have no idea at all what you are saying.

As far as I can tell, the allegation is completely baseless. I've been an Adwords customer for 2 years now, and never have I been confused about anything. Google is notorious for having easy-to-use software, and this includes Adwords.

I'm not sure what they mean by "left blank", exactly. What was left blank, however, I can only assume they mean the CPC field (cost Per Click). In any case, the text is very clear:

Moreover, the cost you're paying for things is also clearly set on the summary page:

Finally, he's alleging that people don't know that their ads are showing on other sites, but this is also made clear in the Campaign settings:

Google has done nothing wrong and everything is clearly defined on each page. Beyond that, there's an extensive knowledge base. They (should) have no case.

That is pretty much just as I thought it was. Thanks for the confirmation.

[DragonMaci]

Qwertz, it done that because © isn't an emoticon.

[Papes]

Well, in Mr. Almiedas defense, he has great command of a vest cesspool of legal jargon.

[Chops]

PS - Chops' screenshots tell us that Google has already clarified the issue, but they don't help with the lawsuit unless they were taken in 2006, when Almeida signed up. We don't have the facts from 2006, so the case can't be dismissed before discovery.

True, my screenshots are recent, though, as I said, I've been an adwords user for years and there's never been anything I found confusing, or poorly spelled out.

Granted, that's my experience, which obviously doesn't necessarily apply to the plaintiff's case. That said, when I started using Adwords in May '06, I specifically chose to ignore the "Content Network" and focus purely on Google Search results, and I had no trouble deciphering the options.

[Qwertz]

True, my screenshots are recent, though, as I said, I've been an adwords user for years and there's never been anything I found confusing, or poorly spelled out.

Granted, that's my experience, which obviously doesn't necessarily apply to the plaintiff's case. That said, when I started using Adwords in May '06, I specifically chose to ignore the "Content Network" and focus purely on Google Search results, and I had no trouble deciphering the options.

Exactly why Plaintiff's proposed class definition would fail - most people who fall into his proposed class (including you?) were smart enough to understand what was going on.

~Q