Feldman v. Google, Inc.

513 F.Supp.2d 229 (E.D. Pa. 2007)

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Nature of the Case

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Facts

P, a lawyer with his own law firm, purchased advertising from D. P purchased 'pay per click' advertising. P claims that he was the victim of 'click fraud.' Click fraud occurs when entities or persons, such as competitors or pranksters, without any interest in P's services, click repeatedly on P's ad, the result of which drives up his advertising cost and discourages him from advertising. P alleges that twenty to thirty percent of all clicks for which he was charged were fraudulent. He claims that D required him to pay for all clicks on his ads, including those which were fraudulent. P alleges that click fraud can be tracked and prevented by computer programs, which can count the number of clicks originating from a single source and whether a sale results and can be tracked by mechanisms on websites. P had been a member of a class action suit in Arkansas on click fraud, which was settled with court approval but P timely opted out in order to pursue an individual action. P seeks damages, disgorgement of any profits D obtained as a result of any unlawful conduct, and restitution of money. The dispute centers on a forum selection clause in the AdWords online agreement. The agreement and clause were in a clickwrap agreement that had to be agreed to in order to establish the Adwords advertising account. At the bottom of the webpage, viewable without scrolling down, was a box and the words, 'Yes, I agree to the above terms and conditions:' The advertiser had to have clicked on this box in order to proceed to the next step. (Hsu Decl. ¶ 6.) If the advertiser did not click on 'Yes, I agree ...' and instead tried to click the 'Continue' button at the bottom of the webpage, the advertiser would have been returned to the same page and could not advance to the next step. If the advertiser did not agree to the AdWords contract, he could not activate his account, place any ads, or incur any charges. P had agreed to the agreement. P had an account activated. P then placed ads and charges were incurred.