Supreme Court allows AdWords class action against Google to proceed

According to Reuters, the Supreme Court has declined to hear an appeal from Alphabet/Google concerning an advertiser class action. The underlying litigation was filed on behalf of advertisers who used AdWords between 2004 and 2008.

The original suit (Pulaski & Middleman v. Google) claims that Google deceived advertisers about where their ads would appear across the Google network. The plaintiff advertisers sued under California’s Unfair Competition Law and Fair Advertising Law. They claimed Google had deceived them by failing to disclose the possibility that their ads would potentially show up on so-called “parked domains” and error pages. The suit sought refunds and “restitution of monies Google wrongfully obtained.”

According to federal court procedural rules, certifying a case as a class action can/should happen if:

1. the class is so numerous that joinder of all members is impracticable;

2. there are questions of law or fact common to the class;

3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

4. the representative parties will fairly and adequately protect the interests of the class

In 2012, US federal court Judge Edward Davila ruled that there wasn’t enough uniformity among the advertiser claims to justify certifying the case as a class action. In 2014, the Ninth Circuit Court of Appeals reversed the lower federal court, saying that the conduct at issue was the same and that there was a Google-sanctioned formula in place to determine potential damages.

The Ninth Circuit cited precedent for the principle that “damages calculations alone cannot defeat class certification.” It allowed the case to proceed as a class action accordingly. Google filed a petition for a writ of certiorari (all Supreme Court cases are discretionary). The Court declined to hear the appeal.

As a practical matter, what this means is that the Ninth Circuit ruling stands, and the case will be allowed to proceed as a class action. There has been no ruling on the merits of the underlying suit. The battle has thus far been about class status and certification.

Class actions generally favor plaintiffs because they consolidate legal resources and often present the prospect of massive damage awards. Defendants seek to defeat class action certification because it’s much more difficult for individual plaintiffs to pursue their claims.