FELDMAN v. GOOGLE, INC. - Document No. 16
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Justia.comFELDMAN v. GOOGLE, INC. - Document No. 16
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Case 2:06-cv-02540-JG Document 16 Filed 11/16/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAWRENCE E. FELDMAN, d/b/a/ :
LAWRENCE E. FELDMAN and :
ASSOCIATES, :
:
Plaintiff, :
:
v. : CIVIL ACTION
: NO. 06-cv-2540
GOOGLE, INC., :
:
Defendant. :
DEFENDANT GOOGLE, INC.’S,
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS AMENDED COMPLAINT
Google submits this supplemental information at the request of the Court. See Order
dated November 2, 2006. At the November 1 hearing, the Court asked Google to submit an
affidavit describing how plaintiff Feldman assented to the Google AdWords contract. The
attached declaration from Google representative Annie Hsu demonstrates that, if Feldman in fact
advertised through the AdWords program, then Google presented him with the AdWords
contract—and he was required to click a button indicating that he agreed to the contract—before
he placed any ads or incurred any charges. Specifically, Ms. Hsu’s declaration establishes that:
• Advertisers must create an active AdWords account in order to place an ad. See
Hsu Declaration, attached hereto as Exhibit B, ¶¶ 6-7.
• Before an advertiser can create an active account, Google presents the advertiser
with the AdWords contract. Id. at ¶ 4.
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Case 2:06-cv-02540-JG Document 16 Filed 11/16/2006 Page 2 of 3
• Google ensures that the contract is short and easy to read. The version that
Feldman alleges he assented to is just seven paragraphs long, plus a short pre-
amble. Id. at ¶ 5; see also Feldman’s verified Complaint dated June 1, 2006,
attached hereto as Exhibit A, and the AdWords contract attached thereto. The
contract is printed and displayed entirely in 12-point type. Id. Google makes it
easy for the advertiser to read the entire contract on the screen, or, if he prefers, to
print the contract and read it in paper form. Hsu Decl. ¶ 5.
• After Google presents the advertiser with the contract, the advertiser must click a
button indicating that he assents to the contract in order to proceed. Hsu Decl. ¶
6. If the advertiser does not assent to the contract, he can never activate his
AdWords account, which means that he can never place any ads or incur any
charges. Id.
Unsurprisingly, therefore, courts have consistently upheld Google’s contracts, including
their forum-selection clause. For example, in Person v. Google, Inc., __ F. Supp. 2d __, 2006
WL 2884444 (S.D.N.Y., October 11, 2006), the Southern District of New York considered the
same AdWords contract that is at issue here. The court held that the forum-selection clause in
the contract is fundamentally fair and enforceable, and accordingly, ordered the case to be
transferred from New York to San Jose, California, which is in Santa Clara County, the forum
that the contract specifies. Id. at *3-*8. Likewise, in Novak v. Overture Servs., Inc., 309 F.
Supp. 2d 446 (E.D.N.Y. 2004), the court considered Google’s contract for Google Groups, an
on-line discussion group service, which is presented to users in a manner similar to how the
AdWords contract is presented to advertisers. See id. at 451. Once again, the court held that the
forum-selection clause in the contract is valid and enforceable, and accordingly, dismissed the
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Case 2:06-cv-02540-JG Document 16 Filed 11/16/2006 Page 3 of 3
relevant claims without prejudice to being renewed in an appropriate venue. Id. at 451-52. In
contrast, no court has held that the AdWords or Google Groups contract is unenforceable, as
plaintiff Feldman asks this court to do.
As set forth more fully in Google’s opening brief and in oral argument, forum-selection
clauses must be enforced unless “trial in the contractual forum will be so gravely difficult and
inconvenient that the party seeking the non-contractual forum will for all practical purposes be
deprived of his day in court.” Anastasi Bros. Corp. v. St. Paul Fire and Marine Ins. Co., 519 F.
Supp. 862, 863 (E.D.Pa. 1981) (Giles, J.). Plaintiff Feldman is a sophisticated attorney. He can
easily litigate in California--indeed, he chooses to do so on behalf of clients in other matters. He
had ample opportunity to review the AdWords contract, which is short and easy to read, before
he participated in the AdWords program. And he was required to assent to the contract,
including its forum-selection clause, before he placed any ads or incurred any charges. Google
respectfully requests the Court to grant Google’s motion and dismiss this action without
prejudice to its being renewed in the proper forum.
Respectfully submitted,
LINDY & ASSOCIATES, P.C.
By: _/s/ Jeffrey M. Lindy__
Jeffrey M. Lindy, Esquire
David J. Berney, Esquire,
Of Counsel
1800 JFK Boulevard
Suite 1500
Philadelphia, PA 19103
215.575.9290
Attorneys for defendant,
Google, Inc.
Dated: November 16, 2006
384590.01
