SAN JOSE, CA – U.S. District Judge Jeremy Fogel dropped hints at a hearing last Friday that parenting advice website KinderStart.com may be permitted to proceed in its lawsuit against Google, if the company can provide more support for its claims in a revised complaint.KinderCare.com claims that Google violated anti-trust laws, unfairly assigns low ranks to competing services, and violated KinderStart’s First Amendment rights.
“As the world’s most widely used and increasingly ubiquitous search engine, millions of Websites of persons, businesses and organizations in the United States are not accessible, seen or heard by a multitude of persons, businesses and organizations as users if the electronic link or connection is severed,” KinderStart states in its class action lawsuit.
“Further, many of these Websites that are improperly and/or unlawfully severed from connection through the search engine, are in the very same competitive markets as Defendant,” the complaint continues. “Such violations, individually and together, warrant declaratory and injunctive relief as well as monetary damages according to proof under applicable law based on injuries to Plaintiffs’ person, property, and businesses.”
“What Google is trying to do is take out the competition,” said KinderStart’s attorney, Gregory Yu.
Google’s attorney, Jonathan Jacobson of Wilson, Sonsini, Goodrich & Rosati, countered that Google has “no obligation” to help its competitors, and cited several past cases in which similar claims have failed.
“What would prevent Microsoft from coming to us, saying Google is not adequately promoting Microsoft?” asked Jacobson at the hearing.
While Fogel seemed receptive to KinderStart’s claims regarding deceptive practices on Google’s part, the judge appeared less swayed by the First Amendment claims.
“What KinderStart is saying is that Google violated its First Amendment rights,” Fogel said, adding “I don’t see it.” Fogel asked KinderStart’s attorney if there was “anything more you can address on this that you have not already?” with regards to the First Amendment claims.
David Kramer, another attorney representing Google in the case, told the judge that Google’s PageRank system is “subjective” and that “Google is constantly evaluating Web sites for standards and quality, which is entirely subjective.”
Fogel asked Kramer if, within the subjective part of the process, Google might be engaging in misleading behavior and whether the company uses objective criteria to evaluate sites, rather than a total reliance on subjective evaluation.
“What if, say, Google says it uses facts one through ten to evaluate a site, but actually uses number eleven to decide its rank; isn’t that misleading?” the judge asked Kramer.
Kramer responded that Google’s users understand the ranking system is subjective, based upon Google’s own opinion about whether a given site is relevant to the user’s search, and worth visiting.
Judge Fogel set the next hearing for September 29th, at which time the Court will address revisions to the complaint and requests for preliminary injunction on some counts, along with more discussion of Google’s motion to dismiss.
