Google Defeats Class Certification in Keyword Ad Lawsuit–FPX v. Google
By Eric Goldman
FPX, LLC v. Google, Inc., 2011 WL 4783376 (E.D. Tex. Sept. 29, 2011)
Google obtained a major victory in one of the most serious pending lawsuits against it challenging its AdWords keyword advertising program. Putative class action lawsuits were filed in the Eastern District of Texas–which many folks view as a plaintiff-friendly jurisdiction for patent cases–by some lawyers/litigants with ties to the patent NPE community. (The FPX case was consolidated for discovery purposes with parallel and virtually identical cases by John Beck Amazing Profits, LLC and the Rodney Hamilton Trust; I believe this ruling effectively applies to all three). On the surface, this looked like a major showdown over Google’s practices in a potentially hostile venue with a venal adversary.
However, so far the case is working out fine for Google. Judge Ward (adopting Magistrate Judge Everingham’s report verbatim) refused to certify the class, meaning that each advertiser will have to proceed against Google individually–or give up. Without the potential payoffs from a class adjudication, it’s possible/probable that the plaintiffs’ lawyers will lose interest in the case; NPE litigation may be more lucrative than continuing to pursue Google on an advertiser-by-advertiser basis. Even if the plaintiffs decide to push ahead with individual cases, Google’s consequences of an adverse ruling go down substantially.
The ruling isn’t all that surprising or groundbreaking. As I wrote in my initial blog post on the case in 2009, “the judge is very unlikely to certify the class.” The opinion walks through various reasons why trademark lawsuits don’t lend themselves to class adjudication, including:
* initial interest confusion must be examined with respect to each trademark. The court notes the different, and trademark-specific, analyses in GEICO v. Google and the Network Automation case. “Thus, Plaintiffs’ common contention (i.e., that Google’s policy of selling trademarks as keywords leads to initial interest confusion) is not capable of classwide resolution and, as such, does not meet Rule 23(a)(2)’s commonality requirement.”
* each trademark’s strength has to be individually evaluated. See the Vulcan Golf v. Google ruling.
* any affirmative defenses have to be evaluated on a trademark-by-trademark basis (another cite to Vulcan Golf).
* the request for equitable disgorgement was problematic under the applicable FRCP.
[If you’re looking for a good paper topic, here’s one: when (if ever) are trademark lawsuits appropriate for class adjudication, and how and why does this differ from other false advertising lawsuits?]
A procedural note: since this ruling, the case was reassigned from Judge Ward to Judge Folsom. This appears to be triggered by Judge Ward’s October 1 retirement. It’s not clear to me if this reassignment helps or hurts one litigant compared to the other.
As a practical matter, the defeat of class certification here leaves the Rosetta Stone v. Google case as the most serious trademark challenge to AdWords still remaining. Should Google get a good ruling in that appeal, it is probable that Google will successfully run the table on the remaining lawsuits and obtain a de facto clean bill of health for its AdWords program.
The roster of pending AdWords cases (I most recently double-checked the status of pending cases on October 12, 2011):
Rosetta Stone v. Google [on appeal]