AdTrader, Inc. v. Google LLC, No. 20-15542 (9th Cir. 2021)
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The Ninth Circuit dismissed, based on lack of appellate jurisdiction, AdTrader's appeal from the district court's attorneys' fee award in a class action brought by AdTrader on behalf of itself and advertisers who used Google advertising services but did not receive refunds for invalid traffic.
The panel concluded that this is neither a traditional common fund case nor one that meets the requirements of the collateral order doctrine. In this case, the litigants and the district court may have agreed that attorneys' fees should be determined in light of common fund principles, but they also agreed that "any award of attorneys' fees here would not come from a sum that Google has been ordered to pay the class." The panel explained that this alone shows that this case neither fits the situation under which the "common fund" doctrine developed nor meets the requirement of unreviewability that is essential to the limited collateral order exception to finality. The panel also considered plaintiffs' other arguments for an immediate appeal and found them to be without merit.
Court Description: Attorneys’ Fees/Appellate Jurisdiction. The panel dismissed for lack of appellate jurisdiction an appeal from the district court’s attorneys’ fee award in a class action against Google by plaintiff AdTrader Inc. on behalf of itself and advertisers who used Google advertising services but did not receive refunds for invalid traffic that does not represent genuine human activity. Google informed AdTrader and the district court in April 2019 that Google would issue refunds to the advertisers who used a Google platform called DoubleClick Bid Manager (“DBM Advertisers”), but would continue to litigate the claims asserted by AdTrader on behalf of other putative advertiser classes and by AdTrader individually. Google stipulated that it would pay AdTrader’s attorneys’ fees, if awarded by the Court, out of Google’s own pocket, rather than have them deducted from any common fund for payments to class members. * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. ADTRADER V. GOOGLE 3 After Google announced that it would provide $65.7 million in refunds to DBM Advertisers for invalid ad traffic between 2012 and 2017, the district court issued an order awarding AdTrader some but not all of the attorneys’ fees it had requested. AdTrader had argued that it was entitled to a percentage of the monetary benefit it conferred on DBM Advertisers and moved for attorneys’ fees pursuant to a California fee-shifting statute or, alternatively, the common fund doctrine, which permits counsel to recover attorneys’ fees from any settlement account when counsel obtains a benefit for non-clients through litigation. The district court denied attorneys’ fees under the fee-shifting statute but awarded fees under the common fund doctrine. AdTrader challenged on appeal the amount of the fee award. The panel reasoned that although in some cases, an order awarding attorneys’ fees from a common fund can be appealed immediately under the collateral order doctrine, this case was neither a traditional common fund case nor one that met the requirements of the collateral order doctrine. The panel noted that the litigants and the district court may have agreed that attorneys’ fees should be determined in light of common fund principles, but they also agreed that any award of attorneys’ fees would not come from a sum that Google has been ordered to pay the class. This alone showed that this case neither fit the situation under which the common fund doctrine developed nor met the requirement of unreviewability that is essential to the limited collateral order exception to finality. The panel therefore dismissed the appeal for lack of jurisdiction because the ongoing class action had reached neither a final judgment on the merits nor a final settlement, and because no exception to the final judgment rule here applied. 4 ADTRADER V. GOOGLE
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