Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752 (9th Cir. 2015)
Annotate this CaseGoogle's AdWords program is an auction-based program through which advertisers would bid for Google to place their advertisements on websites. Pulaski and others filed a putative class action alleging that Google misled them as to the types of websites on which their advertisements could appear. On appeal, Pulaski challenged the district court's denial of class certification, holding that on the claim for restitution, common questions did not predominate over questions affecting individual class members. The court held that a court need not make individual determinations regarding entitlement to restitution. Instead, restitution is available on a class wide basis once the class representative makes the threshold showing of liability. Therefore, the court concluded that the district court erred in holding that such individual questions would predominate. In Yokoyama v. Midland National Life Insurance Co., the court held that damage calculations alone cannot defeat certification. The court concluded that Yokoyama remains the law of the court and the district court erred in not following the rule in Yokoyama. Finally, the court concluded that the proposed method for calculating restitution was not “arbitrary” under Comcast Corp. v. Behrend. Accordingly, the court reversed and remanded.
Court Description: Class Action / Restitution. The panel reversed the district court’s denial of class certification in an action brought by a putative class of internet advertisers under California’s Unfair Competition Law and Fair Advertising Law, alleging that Google, Inc. misled them; and remanded for further proceedings. The plaintiff alleged that Google misled advertisers by failing to disclose the placement of AdWorks ads on parked domains and error pages; and sought, on behalf of the putative class, restitution of moneys Google wrongfully obtained from the putative class. The panel held that the district court erred in denying class certification based on its finding that the putative class did not meet the predominance requirement under Fed. R. Civ. P. 23(b)(3). The panel held that the district court erred by conflating restitution calculation with the liability inquiry for Unfair Competition Law and Fair Advertising Law claims, and by failing to follow the rule in Yokoyama v. Midland National Life Insurance Co., 594 F.3d 1087, 1094 (9th Cir. 2010) (holding that damages calculations alone cannot defeat class certification). The panel further held that the plaintiff’s proposed method for calculating restitution was not “arbitrary” under Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). PULASKI & MIDDLEMAN V. GOOGLE 3
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