In a move that may bode well for songwriter class actions, Google lost yesterday a major appeal to the U.S. Supreme Court that attempted to overturn a ruling by the 9th Circuit Court of Appeals in an advertiser fraud case. The 9th Circuit had fashioned a ruling that permitted class damages for a large class of plaintiffs to be calculated on average harm rather than a laborious case-by-case analysis. This could help songwriters who have all suffered the same general harm but to lesser or greater degree relative to each other.
The court decided not to hear Google’s appeal of a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals last September that the litigation could move forward as a class action representing advertisers who used the service between 2004 and 2008. Google is part of Alphabet Inc.(GOOGL.O)
The 2008 lawsuit accused Google of violating California fair advertising laws because it misled advertisers about where the ads would be placed.
The Adwords service was primarily aimed at placing ads next to relevant Google Internet search results. But the plaintiffs said Google should have disclosed that ads would also appear in undesirable places such as error pages and undeveloped websites known as parked domains.
Google’s abusive advertising business practices have long been criticized by academics and advertisers alike as wracked by at least potential fraud. Harvard Business School professor Ben Edelman codified proper business practices in his Advertisers Bill of Rights and Sir Martin Sorrell, CEO of mega ad agency WPP threatened to pull online advertising from Google due to fraud.
According to a recent article in the Financial Times, Sir Martin “warned Google that unless it improves its efforts to weed out ‘fake views’ of online adverts, marketers will shift their focus back towards traditional media such as press and television.” Sir Martin was reacting to a study that alleged that Google “has been charging marketers for YouTube ad views even when the video platform’s fraud-detection systems identify that a ‘viewer’ is a robot rather than a human being” and Sir Martin stated the obvious conclusion that “[c]lients are becoming wary and suspicious.”
Google has not done well before SCOTUS in the past. Google lost another major appeal in a 2014 case accusing the company of violating privacy rights on a massive scale through the use of its data snarfing Street View cars that are ubiquitous in some cities today.