Feldman v. Google, Inc. Doc.

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Case 5:07-cv-02411-RMW Document 6 Filed 06/12/2007 Page 1 of 3

1 KEKER & VAN NEST, LLP

DARALYN J. DURIE - #169825
2 DAVID J. SILBERT - #173128
KEVIN T. REED - #240799
3 710 Sansome Street
San Francisco, CA 94111-1704
4 Telephone: (415) 391-5400
Facsimile: (415) 397-7188
5
Attorneys for Defendant
6 GOOGLE, INC.

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UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
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Case No. C 07-02411 PVT
LAWRENCE E. FELDMAN, d/b/a
11 LAWRENCE E. FELDMAN and
ASSOCIATES, DEFENDANT GOOGLE, INC.’S
12 ADMINISTRATIVE MOTION TO
Plaintiff, CONSIDER WHETHER CASES SHOULD
13 v. BE RELATED (Civil L.R. 3-12 and 7-11)

14 GOOGLE, INC.,
Defendant
15

16
ADVANCED INTERNET Case No. C 05 02579 RMW
17 TECHNOLOGIES, INC., a North
Carolina corporation, Individually and on Consolidated with
18 behalf of all others similarly situated, Case No. C 05 02885 RMW
Plaintiffs,
19
v.
20 GOOGLE, INC., a Delaware corporation,
and DOES 1 through 100, Inclusive,
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Defendants.
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STEVE MIZERA, an Individual,
23 individually and on behalf of all others
similarly situated,
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Plaintiff,
25 v.
26 GOOGLE, INC., a Delaware corporation;
and DOES 1 through 100, inclusive,
27 Defendants.
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GOOGLE’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED

Case No. C 07-02411 PVT
Dockets.Justia.com
 Case 5:07-cv-02411-RMW Document 6 Filed 06/12/2007 Page 2 of 3

1 I. INTRODUCTION

2 Pursuant to Civil Local Rule 3-12(b), Defendant Google, Inc. (“Google”) hereby notifies

3 the Court that the action currently pending before this Court, entitled Larry E. Feldman v.

4 Google, Case No. C 07-02411 PVT (the “Feldman Action”) is related to the consolidated class

5 action, Advanced Internet Technologies, Inc. v. Google, Inc., Case No. C 05 02579 RMW,

6 consolidated with Steve Mizera, v. Google, Inc., Case No. C 05 02885 RMW (the “Consolidated

7 Class Action”), which was previously pending before the Honorable Ronald M. Whyte in this

8 District.

9 The Consolidated Class Action was premised on the allegation that Google overcharged

10 for pay-per-click advertising by failing to discover and account for internet users who viewed

11 plaintiff’s advertisements with an ill intent and with no intention of doing business with the

12 advertiser. A parallel class action filed in Arkansas, Case No. CV-2005-52-1, Circuit Court,

13 Miller County, Arkansas (“the Arkansas Action”), eventually led to a class-wide settlement. On

14 December 7, 2006, after the Arkansas Court approved the class-wide settlement, Judge Whyte

15 dismissed the Consolidated Class Action.

16 In the Feldman action, Plaintiff Lawrence Feldman claims to have opted out of the class-

17 wide settlement in order to assert individually the same claims and allegations asserted in the

18 Arkansas Action and the Consolidated Class Action.

19 II. ARGUMENT

20 Civil Local Rule 3-12 provides that two actions within this District are related when they

21 “concern substantially the same parties, property, transaction or event; and [i]t appears likely that

22 there will be an unduly burdensome duplication of labor and expense or conflicting results if the

23 cases are conducted before different Judges.” Civil L.R. 3-12(a)(1)-(2). Both elements are met

24 here.

25 First, the instant action and the Consolidated Class Action concern the same transaction

26 or event. The substantive allegation in the two actions—that Google supposedly overcharged for

27 pay-per-click advertising by failing to discover and account for illegitimate clicks—are identical.

28 The two actions also involve the same parties. Google remains the lone defendant, and Mr.

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GOOGLE’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NO. C 06 2361 WHA (JCS)
 Case 5:07-cv-02411-RMW Document 6 Filed 06/12/2007 Page 3 of 3

1 Feldman—first as a putative class member, and now as an individual—is a plaintiff in both

2 cases.

3 Second, the failure to relate the cases may result in “unduly burdensome duplication of

4 labor and expense,” because Judge Whyte—having presided over the virtually identical

5 Consolidated Class Action for over a year—is familiar with the allegations, legal theories, and

6 the contract language at issue.

7 III. CONCLUSION

8 For the foregoing reasons, the Feldman action is related to the Consolidated Class Action

9 that was previously pending before Judge Whyte.

10

11 Dated: June 12, 2007 KEKER & VAN NEST, LLP

12

13 By: /s/ David J. Silbert

DAVID J. SILBERT
14 Attorneys for Defendant
GOOGLE, INC.
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GOOGLE’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED
CASE NO. C 06 2361 WHA (JCS)