NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GURMINDER SINGH, individually and on No. 18-17035 behalf of others similarly situated, D.C. No. Plaintiff-Appellant, 5:16-cv-03734-BLF
v. MEMORANDUM* GOOGLE LLC,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted May 14, 2020 San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,** District Judge.
Plaintiff-Appellant Gurminder Singh appeals the district court’s order
granting Defendant-Appellee Google LLC’s (“Google”) motion to dismiss based
on lack of statutory standing under California law. We have jurisdiction under 28
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. U.S.C. § 1291, and “review de novo the district court’s dismissal of [Singh]’s
claims.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013). We reverse
and remand.
Singh has adequately pled statutory standing under California’s False
Advertising Law (FAL) and Unfair Competition Law (UCL). This economic injury
in fact requirement “demands no more than the corresponding requirement under
Article III of the U.S. Constitution.” Reid v. Johnson & Johnson, 780 F.3d 952,
958 (9th Cir. 2015). Singh alleged sufficient economic injury and causation. Singh
alleges that he purchased some number of clicks from Google via its AdWords
program, Google misrepresented the general efficacy of its fraudulent click filters,
and he would not have purchased clicks but for his reliance on the allegedly
erroneous fraud filter rate. Id. (“In a false advertising case, plaintiffs meet this
[standing] requirement if they show that, by relying on a misrepresentation on a
product label, they ‘paid more for a product than they otherwise would have paid,
or bought it when they otherwise would not have done so.’” (citation omitted)); see
also Hawkins v. Kroger Co., 906 F.3d 763, 768 (9th Cir. 2018).
The district court applied too stringent of a pleading stage standard when it
concluded that Singh had not sufficiently alleged that he suffered the requisite
economic injury. Singh alleged that he has used the AdWords service to run his ad
campaigns since 2008 and that he became suspicious of the efficacy of Google’s
2 filters in catching fraudulent clicks in 2016. Singh further alleged that he hired
Oxford BioChronometrics in 2018 to conduct an analysis of 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.1 See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008) (“We accept factual allegations in the complaint as true and
construe the pleadings in the light most favorable to the nonmoving party.”). Thus,
Singh’s allegations are sufficient, at the pleading stage, to plausibly allege
economic injury and causation, and the district court erred in concluding
otherwise.2
Google contends that the district court’s judgment may be upheld on
1 We thus need not decide whether a consumer must allege (or prove) that Google’s filters were ineffective as to his ad campaigns to establish standing under the UCL or FAL. 2 We need not reach Singh’s argument that the district court erred in finding that he paid for clicks and not the AdWords service. Whether he suffered the requisite economic injury does not depend on whether the money he paid Google is characterized as paying for clicks or a service. 3 alternate grounds. See Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th
Cir. 2008) (noting that we may “affirm the dismissal on any ground supported by
the record”). We disagree.
Google first argues that Section 8 of the AdWords Agreement expressly
precludes Singh’s claims and the dismissal can be affirmed on this ground alone.
The district court concluded that “that under the circumstances in this case, a
reasonable jury could find that Singh was reasonable in relying on Google’s
statements notwithstanding the ‘no guarantee’ provision . . . in the AdWords
Agreement.” The district court then explained “that a reasonable consumer could
not view Google’s extra-contractual representations as any sort of ‘guarantee’ of a
specific invalid clicks rate, which would be precluded by the express language of
Section 8 of the Agreement.” We agree with the district court’s initial statement: a
reasonable jury could find that a consumer may still reasonably view these extra-
contractual statements as a description about the general effectiveness of Google’s
click filter system, irrespective of any specific guarantee. Cf. Rubio v. Capital One
Bank, 613 F.3d 1195, 1204 (9th Cir. 2010). Thus, Section 8 of the agreement does
not mandate affirming the dismissal of the complaint.
Google also posits that a 2007 blog post precludes any deception of a
reasonable consumer (as to the 10% figure) as a matter of law. See In re Tobacco II
Cases, 207 P.3d 20, 29 (Cal. 2009) (noting that to state a FAL or UCL fraud claim,
4 plaintiff must allege that “members of the public are likely to be deceived” by
defendant’s misrepresentations); Davis v. HSBC Bank Nevada, N.A., 691 F.3d
1152, 1152, 1169 (9th Cir. 2012) (whether the public is likely to be deceived is
viewed through the lens of a “reasonable consumer”). The district court addressed
this point in the context of reasonable reliance, finding that a reasonable consumer
could still “expect his or her invalid clicks report to show an invalid clicks rate that
is consistent with Google’s representations, even if not the exact average.”
Moreover, Google has not shown that a reasonable consumer would be aware of
the relevant content in Google’s blog post when seeing the 10% figure statement or
signing up for AdWords. Cf. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.
1995) (finding no misrepresentation in part because “[t]he qualifying language
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GURMINDER SINGH, individually and on No. 18-17035 behalf of others similarly situated, D.C. No. Plaintiff-Appellant, 5:16-cv-03734-BLF
v. MEMORANDUM* GOOGLE LLC,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding
Argued and Submitted May 14, 2020 San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,** District Judge.
Plaintiff-Appellant Gurminder Singh appeals the district court’s order
granting Defendant-Appellee Google LLC’s (“Google”) motion to dismiss based
on lack of statutory standing under California law. We have jurisdiction under 28
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. U.S.C. § 1291, and “review de novo the district court’s dismissal of [Singh]’s
claims.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013). We reverse
and remand.
Singh has adequately pled statutory standing under California’s False
Advertising Law (FAL) and Unfair Competition Law (UCL). This economic injury
in fact requirement “demands no more than the corresponding requirement under
Article III of the U.S. Constitution.” Reid v. Johnson & Johnson, 780 F.3d 952,
958 (9th Cir. 2015). Singh alleged sufficient economic injury and causation. Singh
alleges that he purchased some number of clicks from Google via its AdWords
program, Google misrepresented the general efficacy of its fraudulent click filters,
and he would not have purchased clicks but for his reliance on the allegedly
erroneous fraud filter rate. Id. (“In a false advertising case, plaintiffs meet this
[standing] requirement if they show that, by relying on a misrepresentation on a
product label, they ‘paid more for a product than they otherwise would have paid,
or bought it when they otherwise would not have done so.’” (citation omitted)); see
also Hawkins v. Kroger Co., 906 F.3d 763, 768 (9th Cir. 2018).
The district court applied too stringent of a pleading stage standard when it
concluded that Singh had not sufficiently alleged that he suffered the requisite
economic injury. Singh alleged that he has used the AdWords service to run his ad
campaigns since 2008 and that he became suspicious of the efficacy of Google’s
2 filters in catching fraudulent clicks in 2016. Singh further alleged that he hired
Oxford BioChronometrics in 2018 to conduct an analysis of 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.1 See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008) (“We accept factual allegations in the complaint as true and
construe the pleadings in the light most favorable to the nonmoving party.”). Thus,
Singh’s allegations are sufficient, at the pleading stage, to plausibly allege
economic injury and causation, and the district court erred in concluding
otherwise.2
Google contends that the district court’s judgment may be upheld on
1 We thus need not decide whether a consumer must allege (or prove) that Google’s filters were ineffective as to his ad campaigns to establish standing under the UCL or FAL. 2 We need not reach Singh’s argument that the district court erred in finding that he paid for clicks and not the AdWords service. Whether he suffered the requisite economic injury does not depend on whether the money he paid Google is characterized as paying for clicks or a service. 3 alternate grounds. See Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th
Cir. 2008) (noting that we may “affirm the dismissal on any ground supported by
the record”). We disagree.
Google first argues that Section 8 of the AdWords Agreement expressly
precludes Singh’s claims and the dismissal can be affirmed on this ground alone.
The district court concluded that “that under the circumstances in this case, a
reasonable jury could find that Singh was reasonable in relying on Google’s
statements notwithstanding the ‘no guarantee’ provision . . . in the AdWords
Agreement.” The district court then explained “that a reasonable consumer could
not view Google’s extra-contractual representations as any sort of ‘guarantee’ of a
specific invalid clicks rate, which would be precluded by the express language of
Section 8 of the Agreement.” We agree with the district court’s initial statement: a
reasonable jury could find that a consumer may still reasonably view these extra-
contractual statements as a description about the general effectiveness of Google’s
click filter system, irrespective of any specific guarantee. Cf. Rubio v. Capital One
Bank, 613 F.3d 1195, 1204 (9th Cir. 2010). Thus, Section 8 of the agreement does
not mandate affirming the dismissal of the complaint.
Google also posits that a 2007 blog post precludes any deception of a
reasonable consumer (as to the 10% figure) as a matter of law. See In re Tobacco II
Cases, 207 P.3d 20, 29 (Cal. 2009) (noting that to state a FAL or UCL fraud claim,
4 plaintiff must allege that “members of the public are likely to be deceived” by
defendant’s misrepresentations); Davis v. HSBC Bank Nevada, N.A., 691 F.3d
1152, 1152, 1169 (9th Cir. 2012) (whether the public is likely to be deceived is
viewed through the lens of a “reasonable consumer”). The district court addressed
this point in the context of reasonable reliance, finding that a reasonable consumer
could still “expect his or her invalid clicks report to show an invalid clicks rate that
is consistent with Google’s representations, even if not the exact average.”
Moreover, Google has not shown that a reasonable consumer would be aware of
the relevant content in Google’s blog post when seeing the 10% figure statement or
signing up for AdWords. Cf. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir.
1995) (finding no misrepresentation in part because “[t]he qualifying language
appears immediately next to the representations it qualifies and no reasonable
reader could ignore it”). Accordingly, the blog post does not support affirming the
dismissal of the complaint on the basis that Singh has not adequately pled that
consumers are likely to be deceived.
Google’s other arguments for why a reasonable consumer would not be
deceived by the 10% figure and “vast majority” statement similarly do not warrant
affirmance. See Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)
(“[W]hether a business practice is deceptive [is] usually . . . a question of fact not
appropriate for decision on [a motion to dismiss].”). We leave to the district court
5 to consider in the first instance whether Singh has adequately alleged with
sufficient particularity that Google’s other statements were false or deceptive. See
Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009).3
REVERSED and REMANDED.
3 As noted above, Singh has sufficiently alleged standing as to his FAL and UCL claims. Though we have rejected Google’s arguments about the pleading sufficiency under the fraud prong of the UCL, the district court never reached the viability of Singh’s claim under the UCL’s unfair prong in his operative complaint. We express no opinion on this issue. 6