On August 15, 2023, The Honorable Edward J. Davila of the U.S. District Court for the Northern District of California issued an order in Cabrera et al. v. Google LLC, Case No. 5:11-cv-01263, certifying two classes of online advertisers who advertised through Google’s AdWords program and paid for clicks on their advertisements. The Court also appointed Plaintiffs Rene Cabrera and RM Cabrera Company, Inc. (“RMC”) as Class Representatives, and Kessler Topaz and Nix Patterson LLP as Class Counsel.
The case centers on Google’s misrepresentation to AdWords advertisers that it would only charge them for clicks on advertisements placed within targeted locations of their choosing. Plaintiffs allege that for over seven years, Google defrauded its advertisers—and lined its own pockets—by secretly charging them for clicks on advertisements that were outside of their explicitly designated locations. In so doing, Plaintiffs allege that Google violated California’s Unfair Competition Law (the “UCL”), which prohibits unlawful, unfair, and fraudulent business practices. In certifying the so-called “Location Targeting” class, Judge Davila rebuffed Google’s arguments that individualized questions relating to materiality, exposure, reliance, choice of law, injury, and damages would predominate over questions common to the class. The Court also rejected Google’s contention that differences in advertiser sophistication defeated class certification, explaining that Google’s argument “flies in the face of the UCL’s objective ‘reasonable consumer’ standard, as well as the UCL’s broad purpose to protect consumers from unfair business practices.”
The Court also certified a second class of advertisers whose ads were “bundled” on both Google’s search site and other online pages. Plaintiffs allege that Google manipulated its “smart pricing” algorithm, which is designed to automatically reduce the costs of ads following an online auction for ad placement, by unwittingly overcharging these advertisers for clicks on their ads. In certifying this class, Judge Davila merited Plaintiffs’ interpretation of Google’s contract with advertisers which, they claim, obligates Google to apply smart pricing discounts to advertisers based on the data generated by its smart pricing program.
In the same order, the Court also denied Google’s motion for summary judgment. The case will now proceed toward trial. The Kessler Topaz team representing Plaintiffs and the advertiser classes includes Joseph Meltzer, Matthew Mustokoff, Stacey Kaplan, Margaret Mazzeo, and Nathaniel Simon.