Attorneys to meet in state court in wake of SCOTUS refusal to review Google's appeal

By Andrew Burger | Jul 18, 2016

WASHINGTON – A massive civil court class-action lawsuit alleging that Google purposely misled and overcharged advertisers for online ads that were placed on error pages and inactive "parked" websites is advancing in the wake of a June 6 Supreme Court of the United States (SCOTUS) decision not hear Google's appeal to put a halt to the case.

Attorneys for class-action members, which may number in the hundreds of thousands, assert that Google violated California's fair advertising laws by misleading advertisers who used Google's AdWords online platform from 2004 to 2008. In its appeal, Google argued that the class action should be stopped as the advertisers' group is heterogeneous does not have a valid, fair or comprehensive method of calculating damages.

In 2012, a federal judge ruled that plaintiffs could not file a class-action lawsuit in part because they would each qualify for different amounts of damages. That decision was overturned in California's 9th Circuit Court of Appeals, which concluded that lack of a class-wide method for calculating damages in and of itself was insufficient to halt class-action proceedings, Noah Schubert, a partner in the law firm of Schubert Jonckheer & Kolbe LLP, told the Northern California Record.

SCOTUS' June 6 decision upholds the 9th Circuit Court's decision. Furthermore, Schubert pointed out that his law firm and others participating in the class action are making use of the same methods to calculate damages that Google uses to calculate ad rates for its Smart Pricing program.

"We're calculating damages using Google's own Smart Pricing methodology and the differences between what advertisers should have paid and what they actually paid for their online ads," Schubert said.

Class-action attorneys have not publicly disclosed the value of damages for the entire class action, for which plaintiffs number in the hundreds of thousands. More broadly, the lawsuit is likely to set legal precedents that could have ramifications and resolve issues in a wide variety of consumer class action lawsuits, Schubert said.

Schubert Jonckheer & Kolbe filed the first individual lawsuit that led to formation of the class action in 2008. Having been appointed interim lead counsel for the entire class action, Schubert wrote the legal brief that SCOTUS reviewed in its June 6 decision on behalf of plaintiffs, his firm and the others participating in the lawsuit.

Looking ahead, Judge Edward J. Davila of the U.S. District Court for the Northern District of California will be adjudicating the case. Davila has scheduled a case management conference for Aug. 28 during which both sides will meet with the judge to discuss how the case will proceed, Schubert said.

"From our point of view, the key issue in the case is whether Google concealed from our plaintiffs and the class that their ads were placed on parked and other little or unused websites of little benefit to advertisers," he said. "That representation would be considered false and misleading, in which case the question becomes how much money should be awarded by way of damages."

Schubert declined to comment when asked if he foresees the possibility of a settlement with Google before a possible trial begins. However, he did point out that the case has been going on for eight years, and that plaintiffs and attorneys are looking forward to Davila setting an adjudication schedule that sees the case advance quickly to trial.

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