• by Wendy Davis  @wendyndavis, November 20, 2023

Siding against Google, a federal appellate court has left in place a district judge's decision allowing a pay-per-click marketer to proceed with a class-action over alleged overcharges.

The appeals court's move came in a 12-year-old battle between Google and Rene Cabrera, who claimed he was overcharged for pay-per-click ads he purchased to market his former business, Training Options.

He alleged in a 2011 lawsuit that he bought pay-per-click ads from Google between 2008 and 2009, and that Google failed to correctly apply its “smart pricing” discount during that time, and also charged him for clicks that originated from states other than the ones he selected. He targeted Florida, North Carolina, Georgia, and Louisiana, but alleged that he was charged for clicks from users in New York, Virginia, California, Illinois, Texas, and other states, according to court papers.

Google argued to Cabrera that it was entitled to summary judgment -- meaning a ruling in its favor before trial -- for several reasons. Among others, Google said its agreement with advertisers doesn't set out a particular “smart pricing” formula, and that it disclosed in the “Help Center” that ads could be shown to users regardless of their location.

In August, Davila rejected Google's bid for summary judgment on both points, paving the way for Cabrera to attempt to prove his claims at a trial.

He also said Cabrera could proceed on behalf of two classes: pay-per-click advertisers who paid for clicks that didn't originate from the chosen locations between January 2004 and March 2011, and advertisers who paid for “search bundled clicks” -- defined as advertisers who paid for clicks on both the display and search networks between June 2009 and December 13, 2012, and didn't set different bids on the different networks.

Google then asked the 9th Circuit Court of Appeals to intervene and reverse the portion of the ruling that allowed the matter to proceed as a class-action -- which could sweep in numerous advertisers. The company essentially argued that the claims regarding promised discounts required individualized determinations.

A three-judge panel of the 9th Circuit rejected that request on Friday. The judges didn't give a reason, other than to refer to an 18-year-old decision that set out the standards for immediate appeals of class-certification decisions.