Supreme Court won’t review Google AdWords ruling

6 June 2016. By Can Celik.

The US Supreme Court won’t hear arguments in Google’s appeal of a decision that US AdWords customers could pursue a class action against the search giant for charging advertisers for clicks on ads that were placed on parked domains or error pages.

In an order Monday, the justices denied Google’s request to review whether the US Court of Appeals for the Ninth Circuit’s decision — which said a group of businesses suing the company could be certified as a class even though the amount of damages might vary for each — conflicts with Supreme Court precedent on class certification.

The Ninth Circuit had ruled in September (see here) that the lower court erred by conflating the restitution calculation with the liability inquiry under California state law. “To the extent that the district court rested its holding that common questions do not predominate on the putative class’s entitlement to restitution, it committed legal error,” the appeals court said.

Google petitioned the court in March, arguing that the Ninth Circuit’s decision conflicts with decisions by five other appeals courts on whether individual damage calculations overwhelm the question of commonality in determining whether a case should proceed as a class action (see here).

The Ninth Circuit’s decision “would result in an unwieldy class comprised of hundreds of thousands of different advertisers who purchased millions of different ads from Google over the course of several different years,” lawyers for Google said in their brief to the high court. “That entire class will demand restitution from Google for alleged violations of California’s unfair competition laws — never mind that some putative class members benefited from the alleged misconduct.”

Opposing Google’s petition, the businesses had argued that, contrary to Google’s contention, there is no split as to whether individual damage calculations alone defeat class certification.

“They do not. In reality, every circuit applies the same settled, black-letter rule,” they said (see here).

“Even if such a split did exist, its resolution would not determine the outcome here,” they said, because the court below held that they had “proposed a reasonable, common method of calculating restitution based on California law.”

With the justices having denied Google’s petition, the Ninth Circuit — which agreed to stay its mandate pending the result of Google’s petition — will send the case back to the district court for further proceedings.