I'm pretty sure Google either got a little greedy and lost market share to those that paid better.

Which networks would those be?

If a court says it's invalid then they're saying OK to fraud, meaning Google's next recourse would be legal, not civil.

No and no. Not even touching 'good faith', contract law doesn't just work one way or even that way.

FWIW, I treat AdSense TOS like the warning on the swing set at the park "PLAY AT YOUR OWN RISK" and if you fall and get wounded, you don't sue them for providing the swing. You opted to play on it so as long as it's properly maintained, there's no negligence on the part of the owner of the swing.

A horrible analogy and also incorrect. There are probably thousands of different variables, but if the owner of the swing knew (or if a court decided he know) it was defective and still made it available to the public, he may very well be liable for damages up to any amount as determined by a civil and/or criminal court.

I'm not attacking you at all, but actually nothing in your entire post makes any legal sense, including differentiating corporations from people.

@Andem -- The term of art "Person" covers both people (individuals) and corporations (as well as other entities) but most probably don't know that. Just elaborating on your last point. You probably knew that. In many cases, they just aren't that different.

nothing in your entire post makes any legal sense, including differentiating corporations from people.

There's legal sense and common sense.

Often mutually exclusive.

Can G prove the breach of contract?

I'm not sure they have to prove a breach of the agreement if it is an "at will" agreement which can be terminated for any reason at any time if I remember correctly.

Been a while since I read the whole thing, maybe it's time for all of us to get a refresher course and read it again.

Perhaps you mean "technique" to catch them. "Criteria" goes straight to the heart of what it means to "breach" the contract.

Yes by criteria I meant the methods for identifying fraud. Even naming the exact type of abuse gives away a lot.

I was talking only about Google's potential reasons for being vague. I'm not sure that a "breach" is even relevant here. Isn't the claim that Google intentionally waited until shortly before payment was due to cancel accounts in order to save money?

Which to me is silly, they make far more money by keeping an account open and sending traffic for as long as possible provided that traffic quality is good. If it isn't good then continuing the traffic hurts response rates and therefore profits. They would have to be incredibly short sighted to jeopardize their whole business model by allowing bad traffic to continue for a few more weeks just to make a relatively small amount of extra cash.

Sorry, by "breach" I meant, the publisher's breach of the contract (e.g. a violation of the terms).

Been a while since I read the whole thing, maybe it's time for all of us to get a refresher course and read it again.

Not a bad idea but what would be the fun in that? ;) Some people probably still need to actually read it for the first time I'm guessing. Hmmm...that simple act might have actually prevented this whole conversation in the first place. Who knows?

There's legal sense and common sense.

Your post probably made perfect common sense to some, just not legal sense. Since this is a thread about a legal action, I felt it was necessary to challenge your points.

What's more important is if a judge comes to the conclusion that Google's actions are somehow arbitrary or not in good faith. This could have some longterm implications for any and all publishers.

Don't forget that it was an Italian court that ruled Google should make their revenue share with AdSense publishers public and Google soon complied worldwide.

(FWIW it's actually on my RTM To Do list to review the TOS twice a year. Just in case.)

@breach... I understood what you meant but I don't think Google's justification for terminating the account is relevant to the suit, at least not based on the details in the CNET article. That $40k jump was almost definitely the result of bad traffic.

Whether or not Google was fair about it, who knows, it doesn't really matter. The only way there's a case here is if they can prove that Google was intentionally holding off on terminating accounts to get free traffic.

I'll go out on a limb and say there is no one at Google dumb enough to do that. You don't hold on to your dominance in PPC by sending advertisers fake traffic.

webcentric: bingo, my thoughts exactly. Even if the said publisher loses this suit, it's opening a can of worms for Google. I'm not against Google banning people for obvious breaches of contract, but a friend of mine was banned from adsense (though I helped him build his website)...he was banned without explanation from Google. There lies the problem. He (my friend) didn't violate the ToS (I would have smacked him if he had), he was banned without reason. If Google were a minority in the industry it'd be one thing, but they aren't. It's a well known fact that outside of affiliate marketing, the top dog is Google. I do believe the lawsuit is bull#*$!, but i also believe it's going to disappear really fast because Google does NOT want to be accountable for Adsense bans. P.S. you can give yourself the ability to ban at your own discretion all you want in a contract, but if you are the number one player in an industry, the judge will take that clause away first, prior to even trying the case. Watch how this one unfolds...Hope it ends well for all non-lawyers involved...the publishers, google, etc.

The only way there's a case here

You are still focusing on the termination. They are not saying that they should not have been terminated. They are looking for the last payment.

"Almost definitely" is not fact. There are many things in life I am "almost definitely" sure of. I am "almost definitely" sure my local mayor knew about a prostitution scandal in my town (and it was really obvious, bizarre and juicy :) ), but since there were no hard facts to prove that, he is not seeing the inside of a courtroom. It is the same here. Did Google terminate accounts without payout because it was "almost definitely" certain these accounts were involved in invalid activity or were they 100% certain with facts that these accounts were involved in invalid activity. A court will want to see the difference because one is legal and one is not.

Since Google does not give any documentation to a publisher on exactly why accounts are terminated, they may have to show in a court of law why these accounts were terminated and justify why they withheld payment. Thus, there is a case. Not a winnable case, just a case.

** And I want to say, again, I also think that this is a BS ploy on the plaintiff's part. Unfortunately, I think they may have the law on their side at least to a judge's bench. :( **

Hannamyluv: bingo. You took my words out of the mouth save for a small number of exceptions. What the judge is going to ask for is proof that 1) The publishers that were banned (knowingly?) did something in bad faith to cause termination of the contract. 2) Google has direct evidence of such a claim. 3) Absent of that, can Google show that funds were indeed returned to advertisers (I know a number of advertisers spending 5-7 figures a year who may object). Possibly 4: Are other non compliant publishers being actively dealt with, if so, who, why, and how. It's a ploy on the plaintiff's part indeed, but Google's hands are tied.

You are still focusing on the termination.

I'm confused by this, from my post which you're replying to:

I don't think Google's justification for terminating the account is relevant to the suit

"Almost definitely" is not fact.

Well yes, I don't have all the facts, that's why I used the word almost.

Did Google terminate accounts without payout because it was "almost definitely" certain these accounts were involved in invalid activity or were they 100% certain with facts that these accounts were involved in invalid activity. A court will want to see the difference because one is legal and one is not.

Almost definitely is enough. You can never be 100% certain about some types of click fraud. If you had to be then it would become nearly impossible to combat it. It would also serve as motivation for more fraud because even if you only get away with a month of bad traffic, that can easily be 5 or 6 figures of income. After which nothing is stopping you from doing it again with a new account.

My guess is that the bad traffic caused them to look more closely at the publisher in question and they then found all kinds of violations, some probably unrelated to the traffic jump.

But all of that aside, as far as I can tell the suit hinges on whether or not Google was intentionally holding off on termination until close to the next payment date.

save for a small number of exceptions

not quite...

For #1, TOS says either breach (bad faith) or invalid activity. Meaning that even if you are not responsible for the invalid activity, they can terminate you and withhold payment. You don't have to be bad to be terminated or have payment withheld.

For #3, for that to be a case that would need to be brought up by an AdWords sided class action. In this case, it would not apply. It legally does not matter where the money goes if it does not go to the terminated publisher.

I'm confused by this

You are right. I mis-read. It is late here. Sorry about that. ;)

I don't have all the facts, that's why I used the word almost.

I know. None of us have all the facts. And that is exactly why G could end up in a real case on this. There is no documentation released by them to the plaintiff or the public that can show they did this based on fact or "we had a feeling". It is Google, and I would hope they know better. But they may have to show it.

Here's some interesting information from TechCrunch, apparently the law firm involved in this suit also tried to file another class action law suit against Google, seems like they're ready to go to court for just about any class action case.

But this isn’t the first flimsy suit against Google by Hagens Berman. It filed another class action this month purporting that Google is unlawfully keeping smartphone prices high, which was thoroughly and humorously debunked by Android Police. And if our suspicions are correct, this new class action suit won’t get very far.

[techcrunch.com...]

My take is the Law firm is taking the PR value out of this to encourage other class actions ie to try and get their name out there for more clients.

Reminds me of many lame US claims over the years which are flimsy. A class action that sticks could be 50 years off [ eg. tobacco ; food industry ; mobile Telco's ; pharmaceuticals - these are far clearer and sinister, and look where they are today - mostly nowhere ].

Any evidence that sticks is likely to meet a robust response and a settlement if necessary, as the cost of doing business. But this doesn't look like one of the one's that will stick.

They need to implement some kind of forced training program for every publisher.

Example: before any publisher gets an account, they should be forced to go through an Adsense "tour" of the program and tested at the end of it. If they fail the test, they have to go through the program again, and learn every step of the TOS until they get it right. Imagine how much that alone would fix. Make sure everyone is on the same page as to the TOS. I'll bet a huge portion of accounts that get banned are a result of a publisher just not being familiar with the TOS. Of course, that IS the publisher's responsibility, but it wouldn't hurt to just force everyone to get on the same page at the outset.

Here's some interesting information from TechCrunch, apparently the law firm involved in this suit also tried to file another class action law suit against Google, seems like they're ready to go to court for just about any class action case.

Throw enough lawsuits at the wall and something is bound to stick. It may also be less expensive in the long run for Google to pay the law firm off to avoid future lawsuits and the bad publicity that they generate.

publisher gets an account, they should be forced to go through an Adsense "tour" of the program

Yes, well, that would only work if Google actually created a tour that contained up-to-date and accurate information. If this latest "Optimizing Adsense" course they just launched is any indicator, they don't seem at all interested in giving people current information. The course contains statements that are completely out of touch with the current Adsense landscape. Seems a tutorial on the TOS would be certain to confuse people even more.

"seems...certain..." I know, I know. Grammatical madness but, when discussing Rome... ;)

Very few who have had their account terminated and griped about it have been transparent about their violations. "I didn't do anything wrong" tends to be the mantra. I've never had an account terminated so I don't know what kind of correspondence G sends on termination. Who knows?

Slightly OT but I've had an Admob terminated for 'click fraud'. Absolutely no idea what happened - just a message saying account suspended - it's basically destroyed funding for my Android apps. They reconsidered once and said their senior team looked at it, but other than that no feedback. I realise they've got to defend their advertisers, but firing off legitimate publishers like myself is difficult to take especially when I put so much work into building apps. No transparency just a robotic email.

They need to implement some kind of forced training program for every publisher.

They'll never do that.

I realise they've got to defend their advertisers, but firing off legitimate publishers like myself is difficult to take especially when I put so much work into building apps.

Google just plain isn't interested in stuff that doesn't scale. By which I mean, things that need hands-on one-on-one interaction with a human. (Which is kind of ironic since they've pretty much banned anything that scales when it comes to SEO, but I digress) Read the book "In The Plex." They had to be dragged grudgingly back into providing the barest minimum customer support, because they don't *believe* in customer support, because it doesn't scale. They think it's an outdated model for the 21st century.

If they have to make a choice between accidentally dumping some legitimate publishers and/or developers, and spending valuable resources on investigations and conversations (when probably better than 50% are still gonna get dumped anyway) they'll go with the first option. Because they can. It's basically their business model.

My personal opinion is that rather than requiring people to watch videos, they should actually vet ALL the sites that run AdSense on them (instead of just the first one in an account) but again - won't scale, so won't happen.

Well... first off you don't "file" a class-action suit. You file suit and then petition the court to make it apply to a class of potential litigants. Then you round up as many potential litigants as you can (hence the late-night TV commercials).

Since lawyers get into trouble for filing capricious lawsuits, assuming that this one is just because another was dismissed or had an adverse summary judgment is not necessarily a valid assumption. A lot depends upon the jurisdiction that the suit was filed in and, surprisingly enough, the previous judgments of the appeals court for that district.

An unsigned Terms of Service can be another potential problem; especially if one party is the only game in town and it reserves all of the power in any dispute to itself.

The little I've read of this case makes me think that one piece of the suit revolves around the plaintiff claiming to be in the process of trying to resolve a problem when the "membership" was revoked.

The amount of money involved might make a difference. Google would have to show that every penny of that money was returned to the advertisers. If it becomes a class-action suit then they would have to show that every penny of every "membership" that was summarily terminated without payment was returned to the advertisers.

A few years back the ToS may have assumed that the publishers were the most likely people to create invalid activity. But today, with agencies placing ads on behalf of their clients that is not necessarily the case. So it's possible that Google would have to show that their actions are reasonable under the law (not under the ToS).

If I were Google I would be pretty interested in dealing with this one early because if it is turned into a class-action then every Adsense "member" (Google does call it "member networks" after all) who has ever had a site banned is a potential litigant. That would make any settlement much more expensive.

And, trust me, the attorneys filing this case would much prefer a settlement. But they would much prefer the class-action settlement. Ka-Ching!

WDR

An alternative, less miserly approach to take about this, would be to condone any action that brings attention to Google's general lack of transparency, for-profit abuse of power, lack of accountability, high handedness, and arbitrariness.

I also wonder why the FBI, frequently known to go after even petty crime, has not shown a morsel of interest in the behemoth, despite widespread talk of impropriety on many levels. What is it that makes the behemoth immune even of FBI suspicion, despite all sorts of accusations? The role of the FBI is not to act on evidence brought to them by third parties (they are not a court of justice), but to dig up proof themselves, upon suspicion, as they are the only ones possessing the legitimate power of in-depth investigation. This is their job - but are they up to it?

.

Cause talk is just that - talk. Also, things like lack of transparency, lack of accountability, high handedness and arbitrariness lead more towards civil action and not criminal.

(And of course, Google, like all ginormous companies, spends a lot of money on lobbyists)

the Internet moves so fast it passed Google by when it came to mobile. Google's paddling to catch up. Just think how fast it's moving for the government when you have senators who think data moves through tubes.

My question would be.
My account is terminated I had 3k in revenue pending that isn't paid. What happens to this revenue?
is it given back to the clients that were cheated due to the invalid activity of the publisher of the account, or is the money just kept by Google.

legally if this is money obtained by ill means the funds should be given back to the companies that were abused, but if Google is keeping the money then you have a whole new story.

Case point I set up a ponzi scheme (just an example it could be a bad contractor taking people money and not completing the job) get busted the money is then redistributed to the ones that were taken. There should be no difference in this.

The big question we all should be looking at is were is the money.

It's supposed to be given back to the advertisers. As an advertiser on behalf of clients, I can tell you that I have credits back every single month (in widely varying amounts) for invalid activity. There have been months when it was tens of dollars and months when it was thousands of dollars. But there's always something.

Obviously I don't get any specifics, so I don't know if it's all of it, or some of it.

talk of impropriety on many levels

@netmeg : that was meant as a nice way of referring to criminal activity such as possible fraud - much within the scope of FBI duties.

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