• by Wendy Davis  @wendyndavis, February 28, 2019

A karate school owner who advertises on Google wants a federal appellate court to allow him to proceed with a class-action complaint accusing the company of mishandling paid search campaigns.

Mark Trudeau, an Oakland County, Michigan resident who co-owns Troy Martial Arts, alleged in a lawsuit filed in February of 2018 that Google displayed pay-per-click ads for his karate studio when users typed queries containing “negative” keywords -- meaning terms that were supposed to prevent ads from appearing.

Last year, U.S. District Court Judge Beth Labson Freeman in San Jose, California granted Google's motion to send the matter to arbitration. Freeman ruled that Google's contract with search advertisers required arbitration of all disputes.

Trudeau is now asking the 9th Circuit Court of Appeals to reverse that ruling and reinstate the case. He argues that Google didn't add an arbitration clause to its advertiser contract until September of 2017 -- after the company allegedly mishandled his search campaign.

He contends that Google's arbitration provision doesn't apply to activity that occurred before September 2017.

“Google did not have the right to add an arbitration clause that would apply retroactively to already-accrued claims,” he argues in papers filed this week with the 9th Circuit.

He adds that before September of 2017, Google had promised to avoid retroactive changes to its terms of service. “The very notion that Google can unilaterally and retroactively eliminate a term promising no retroactivity would run afoul of the implied covenant of good faith and fair dealing,” he argues.

Trudeau alleged that he began advertising with Google in 2012, and agreed to pay between 50 cents and $5 per click. He also said he attempted to use “negative” keywords to block ads from being displayed when people's search queries suggested they lived far from Oakland County. For instance, he said, he wanted to block ads from being displayed to people who used the word “Southfield” in their queries, because he didn't believe people in Southfield would travel to Troy for martial arts training.

Despite his attempts to block those ads, Google sometimes served ads when the queries contained “negative” keywords like Southfield, he alleged. For example, he alleged, if search users misspelled “Southfield” as “Douthfield,” Google sometimes showed ads for his studio in Troy.

“The order compelling arbitration should be reversed, and Google should be held to account for the tens of millions of dollars that it over-billed its contractual counterparties,” he says in his newest court papers.