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  1. #1
    ABW Ambassador Sam Bay's Avatar
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    Google Loses AdSense Termination Case
    http://www.huffingtonpost.com/aaron-..._b_172403.html

    Google closes this guy's AdSense account with their special you-did-something-wrong-but-we-are-not-gonna-tell-you-what-it-is way, he sues them and wins! It's an interesting case that can be used as precedence in similar cases and hopefully it will push Google to be a little more transparent in these matters.

  2. #2
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    No, the case cannot be used as precedent -- period. This was a small-claims court case.

    Google sent a paralegal to 'defend' against the lawsuit, since parties in small claims court may not be represented by attorneys.

    According to the plaintiff, the judge awarded him $721, which he claimed was earned/owed before Google terminated his AdSense account, plus the $40 court fees.

    A small-claims-court case can be appealed; if this occurs, the case is re-heard in Superior Court before a judge as if it was never heard in small claims court, and the parties may then be represented by attorneys. I wouldn't expect Google to appeal such a small verdict, especially since the case has no value as "precedent."

    The plaintiff wrote that Google's paralegal responded to the verdict by asking, "What if everyone whose account was canceled sued Google?"

    And of course, that's the real "precedent" here: knowing that a small-claims court judge would frown on Google's bizarre legal defense (essentially, "we don't know why we didn't pay the defendant"), more publishers are likely to file suit in small-claims court, if they are lucky enough to live where Google has offices.
    Last edited by markwelch; March 6th, 2009 at 05:55 PM.

  3. #3
    Affiliate Manager EricTyler's Avatar
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    Precedent or not, the story still makes me smile. Google uses their size against the small guys to play judge & jury in cases like this. I've seen paypal do the same thing in the past and it's infuriating.

    I'll bet the guy would have traded the $721 for an actual explanation of what he had done that caused him to be shut down.

  4. #4
    ABW Adviser Panel Dynamoo's Avatar
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    Interesting argument though - basically Google says that it can terminate you for any reason whatsoever, but the plaintiff argues that unless those grounds are made clear, then those grounds could be nonsensical or quite possibly even illegal.
    Innovative advertising with Slimeware Corporation and Telephore. Mail-order fuel with Petrol Direct.

  5. #5
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    I love the end of the article:
    "But it's not fair!" Google's paralegal protested. "What if everyone whose account was canceled sued Google?"

    It's a valid question. Yet until Google changes its policies to become more transparent, which might also reassure skeptics that AdWords and AdSense, which have oddly limited reporting capabilities, aren't just two sides of the same ponzi scheme (for why else would one want to terminate legitimate accounts with high monthly liabilities when they're supposed to be making money for Google on each click?)--I will give this answer:

    Maybe everyone whose account was canceled, should.
    Maybe then they would be more willing to provide explanations, or just not willy-nilly close accounts.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
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  6. #6
    ABW Ambassador CathyM's Avatar
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    And I liked:
    Much to my amusement, the judge interrupted her to make a point that sounded familiar.

    "But you couldn't terminate my account because of the color of my eyes, could you? I have brown eyes. You couldn't terminate my account because of that."

  7. #7
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    Any advertiser can terminate any publisher for any reason or for no reason at all. The issue is being paid for what you earned before you were terminated if it wasn't earned as a result of a violation of the publisher's agreement with the advertiser.

  8. #8
    ABW Ambassador Sam Bay's Avatar
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    Quote Originally Posted by Snowman
    Any advertiser can terminate any publisher for any reason or for no reason at all.
    They say they can and they do that sometimes. But is that all right? Just because they put it their terms doesn't make it above the law. If I make you agree to a condition that is illegal, it doesn't make me immune to the consequences.

  9. #9
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    Google has every right to drop you ... it's says so in there TOS and you agree to it.

    Bothsides of the merchant/affiliate equation require a CONTRACT. And there are things that MUST be in the contract for it to be valid. Plus, there are NO ex-post facto laws
    allowed ... and that means the merchants can't add a clause and use it for anything
    that happens BEFORE the clause was added.

    The problem is they have to pay you what they owe you if they drop you. If they do not pay you it amounts to 'unlawful conversion.'

    Also, if they 'tell you why' they dropped you, you can sue them and make them prove it in court.

    And yes, everyone can sue them ... you can sue anyone at any time. The REAL best defense for affiliates is to use the small claims court ... worst case you will learn something.

  10. #10
    Full Member TerriFalcone's Avatar
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    If the plaintiff was awarded the money he was owed plus court costs it seems fair. It would be even nicer if Google looked at this as a bellweather and took the time to communicate with its' customers. Google owes no one an explanation for creating the rules but they have an obligation to tell everyone in the game that those rules exsist. Most of all they have no right to steal someones money.
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  11. #11
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    Quote Originally Posted by net4biz
    ... worst case you will learn something.
    No, "worst case" is that Google can appeal the small claims' decision to Superior Court, where they can bring in their legal team and overpower you, unless you hire your own attorney, which means you have to start paying out to make a point .

    One note: I haven't combed the TOS but they probably state that if there is litigation between you and Google, the prevailing party is entitled to recover attorney's fees. However, in California, and probably most other states, in an action to collect money such as this, that is interpreted as not being actual legal fees, but fees according to a Court Schedule, that allows attorneys fee that are pretty much about 15-20% of the amount of money in question (there is a sliding scale that reduces the % the greater the amount of money involved).
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
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  12. #12
    MasterMike HardwareGeek's Avatar
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    Quote Originally Posted by markwelch
    No, the case cannot be used as precedent -- period. This was a small-claims court case.

    Google sent a paralegal to 'defend' against the lawsuit, since parties in small claims court may not be represented by attorneys.

    According to the plaintiff, the judge awarded him $721, which he claimed was earned/owed before Google terminated his AdSense account, plus the $40 court fees.

    A small-claims-court case can be appealed; if this occurs, the case is re-heard in Superior Court before a judge as if it was never heard in small claims court, and the parties may then be represented by attorneys. I wouldn't expect Google to appeal such a small verdict, especially since the case has no value as "precedent."

    The plaintiff wrote that Google's paralegal responded to the verdict by asking, "What if everyone whose account was canceled sued Google?"

    And of course, that's the real "precedent" here: knowing that a small-claims court judge would frown on Google's bizarre legal defense (essentially, "we don't know why we didn't pay the defendant"), more publishers are likely to file suit in small-claims court, if they are lucky enough to live where Google has offices.
    Are you an attorney? Because if you are then your a bad one, as making a broad statement like "Attorneys can not represent you in small claims court" is bull SHIT.

    Attorneys can represent you in small claims court.


    An with the amount some of us make from Google on a Monthly basis, small claims court may not be the right venue.

    People need to realize that all these Terms of Service we agree to may be illegal and there for non binding. Takes a day in court with the person you agreed to the TOS with to find out.

  13. #13
    Affiliate Manager PetsWarehouse.com's Avatar
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    ""Attorneys can not represent you in small claims court" is bull SHIT.

    Attorneys can represent you in small claims court."


    Agree 100%
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  14. #14
    ABW Ambassador MeeMaw's Avatar
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    If google loses too many cases in small claims court that itself can set a precedent. As time goes on these networks are going to find out you can't just expire/suspended/terminate someone without due cause no matter what your TOS says. Just because it's IN the TOS doesn't make it law or legal.

  15. #15
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    Yes, I am an attorney here in California (licensed, active status) although I haven't accepted any new clients in 12 years.

    And although I agree that it's not fair, parties in small claims court may not be represented by an attorney (in California).

    Try searching for "California small claims court" on Google and you should find the official court info web site with FAQs - it does slightly misrepresent the law (you can "bring" an attorney to advise you, but the attorney cannot represent or speak for you).

  16. #16
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    As time goes on these networks are going to find out you can't just expire/suspended/terminate someone without due cause no matter what your TOS says.
    Speaking from personal experience, yes you can. If some party that your business depends on for their existence says they will no longer support your company unless that affiliate relationship is terminated, you protect your company. Sure, the affiliate will be hurt (as I was), but there is nothing illegal about it.

  17. #17
    ABW Ambassador MeeMaw's Avatar
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    Quote Originally Posted by Snowman
    Speaking from personal experience, yes you can. If some party that your business depends on for their existence says they will no longer support your company unless that affiliate relationship is terminated, you protect your company. Sure, the affiliate will be hurt (as I was), but there is nothing illegal about it.
    Actually I didn't say "illegal". I said legal. The fact is you can't just put anything into your TOS and it hold up in court. If any affiliate that felt they were wrongfully terminated were to pursue such action in court you would probably lose. Broad statements don't do well in court.

    People have to remember that as an affiliate you have rights as well as the merchant. If they merchant terminates you because of fraud or illegal activity then they should say so and be prepared to back that up in court if needed. However you will find lot of these merchants just terminate people without foundation. It happens.

    The way it changes in people challenge them and soon precedent will be set for future drafts of TOS which I seriously think needs to be done.

    Google's is far too broad and saying they can terminate because they "feel" like it or without cause is just plain wrong. All it takes is people to stand up and say "I don't agree" and we can see some change.

  18. #18
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    California Code of Civil Procedure:
    116.530. (a) Except as permitted by this section, no attorney may
    take part in the conduct or defense of a small claims action.

    (b) Subdivision (a) does not apply if the attorney is appearing to
    maintain or defend an action in any of the following capacities:
    (1) By or against himself or herself.
    (2) By or against a partnership in which he or she is a general
    partner and in which all the partners are attorneys.
    (3) By or against a professional corporation of which he or she is
    an officer or director and of which all other officers and directors
    are attorneys.
    (c) Nothing in this section shall prevent an attorney from doing
    any of the following:
    (1) Providing advice to a party to a small claims action, either
    before or after the commencement of the action.
    (2) Testifying to facts of which he or she has personal knowledge
    and about which he or she is competent to testify.
    (3) Representing a party in an appeal to the superior court.
    (4) Representing a party in connection with the enforcement of a
    judgment.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
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  19. #19
    Moderator bibby's Avatar
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    Any business can terminate a relationship for any reason if it's in their contract.
    The exception would be if you were termianted based on your race, religion or sex.

    It may bot be fair but they can do it.
    It's the same thing in the merchant/affiliate realtionship. I'm sure most of us have been dropped from a program without an explanation.

  20. #20
    Super Dawg Member Phil Kaufman aka AffiliateHound's Avatar
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    I think this discussion has bypassed the real point here.

    Yes, a merchant can terminate an affiliate for no reason, and that is an all-too frequent event.

    The issue in the case at the top of this thread is that there was an allegation that the affiliate did something so wrong, that it gave Google the right to refuse to pay over previously earned commissions, but with no explanation as to what was the behavior so vile to give them that right.

    Terminated affiliates can sue, and should sue, to recover unpaid commissions, when no valid ground, or no ground at all, is given for the refusal to pay. The merchant would then have to provide real, admissible evidence to support their previously unstated allegations.

    There would be no grounds, and no chance of victory, to sue merely to obtain re-entry into the program, or just to seek a reason for termination, where no unpaid money is involved, unless the affiliate has evidence of unlawful discrimination, as stated by bibby.

    Quote Originally Posted by bibby
    Any business can terminate a relationship for any reason if it's in their contract.
    The exception would be if you were termianted based on your race, religion or sex.
    You can add age onto that list.
    Since June 10, 2012 a vegan aarf but still writing the Hound Dawg Sports Blog
    "If you don't have time to do it right, when will you have time to do it over?" -John Wooden;
    "Raj, there’s no place for truth on the internet." -Howard Wolowitz[/SIZE]

  21. #21
    Member niche's Avatar
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    It's an interesting story.
    My full discussion at Adsense Account Suspended . He sued Google
    The long and short of it is it gives hope to people whose accounts have been suspended and still have money in it.
    many people are not talking about the fact that his account does not appear to have been reactivated. Perhaps Aaron should go for that next. If the money in his account was awarded him by the courts, it would imply that the courts do not find him guilty of any wrong doing.

    So the question is, should he content the account suspension as well?
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  22. #22
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by niche
    So the question is, should he content the account suspension as well?
    As stated earlier, since there is no agreed upon term of the agreement it is an "at will" relationship. That being the case, either party can terminate the agreement at any time for no reason at all. There are no grounds to sue. The only real recourse is to attempt to appeal to Google for reinstatement again, which seems like more of a waste of time then before.

    -rematt
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  23. #23
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    If the loser in a small claims action appeals, then the issue goes to the judicial court or whatever they call it in your state ... all proceeds can use attorneys here.

    Hiring an attorney is not a necessity, if you win in small claim and it gets appealed, but it is a good idea. I am batting 6-0 so far when this has happened ... one case
    got the award from the small claims verdict dropped down by 35% but I got court
    costs tacked on which were almost the same as the 35%.

    And sure if it's a big company they will try to intimidate you but it's not difficult to intimidate them right back. You can always inform the local media about the lawsuit
    and tell them why you are taking the action.

    It's a WAR ... choose your weapons wisely.

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