another advertiser's Google click fraud suit is revived

Singh v. Google LLC, 2020 WL 5202081, --- Fed.Appx. ----, 2020 WL 5202081 (9th Cir. Sept. 1, 2020)

The court of appeals reverses the dismissal of Singh’s California FAL/UCL claims against Google for allegedly charging for fraudulent clicks despite its promises. While the district court found that Singh lacked statutory standing, the economic injury requirement “demands no more than the corresponding requirement under Article III of the U.S. Constitution.” It was sufficient for Singh to allege that he purchased some number of clicks from Google via its AdWords program; that Google misrepresented the general efficacy of its fraudulent click filters; and that he would not have purchased clicks but for his reliance on the allegedly erroneous fraud filter rate. Indeed, Singh alleged that he hired a company to analyze some of his ad campaigns, which showed that Google’s filters caught fewer fraudulent clicks than advertised, and that numerous studies prior to 2016 on third-party ad campaigns found that Google’s filters did not catch as many fraudulent clicks as Google advertised. “At the pleading stage these allegations together are sufficient to draw the reasonable inference that Singh’s ad campaigns prior to 2016 similarly suffered higher-than-advertised rates of fraudulent clicks not caught by Google’s filters, and that he accordingly paid for more fraudulent clicks than Google advertised he would.”

Google also argued that its AdWords Agreement expressly precluded Singh’s claims, but the court of appeals agreed with the district court that a reasonable jury could find that Singh was reasonable in relying on Google’s extra-contractual statements about the general effectiveness of its click filter system, notwithstanding the “no guarantee” provision in the AdWords Agreement.