# In re Google Digital Advertising Antitrust Litigation

> District Court, S.D. New York · January 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10788824

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
IN RE: GOOGLE DIGITAL ADVERTISING 21-md-3010 (PKC)
ANTITRUST LITIGATION
OPINION AND ORDER
-----------------------------------------------------------x

IN RE: GOOGLE DIGITAL ADVERTISING 21-cv-7001 (PKC)
ANTITRUST LITIGATION

-----------------------------------------------------------x
MICHAEL STELLMAN, individually and on
behalf of all others similarly situated,

Plaintiff, 23-cv-1532 (PKC)

-against-

GOOGLE LLC and ALPHABET INC.,

Defendants.
-----------------------------------------------------------x
CASTEL, Senior District Judge:
Defendants Google LLC and Alphabet Inc. (collectively, “Google”) move to
compel arbitration and stay the claims of plaintiffs Cliffy Care Landscaping LLC (“Cliffy Care”)
and Michael Stellman. (ECF 889.) Google urges that Cliffy Care and Stellman each entered into
an agreement to arbitrate when they consented to Google’s Advertising Terms of Service (the
“Terms”) and that the arbitration agreement contained in the Terms governs their claims in these
proceedings.
Fact discovery is closed. In support of its motion, Google has submitted records
reflecting that Cliffy Care and Stellman agreed to the Terms after being presented with notice
that the Terms contained a binding arbitration clause and that they had the ability to opt out of
arbitration. In response, Cliffy Care and Stellman urge that Google has not proved the existence
of an enforceable arbitration agreement, that enforcing the arbitration agreement would be
unconscionable under California law, and that California law bars the arbitration of claims that
seek injunctive relief for the benefit of the general public. For the reasons that will be explained,
the Court concludes that Google has demonstrated the existence of an enforceable arbitration

agreement, that Cliffy Care and Stellman have not demonstrated unconscionability, and that the
injunctive relief described in their complaints seeks to redress harms allegedly suffered by
plaintiffs as users of Google’s advertising products and not relief on behalf of the general public.
Accordingly, Google’s motion to compel arbitration will be granted, and the
claims of Stellman and Cliffy Care will be stayed.
BACKGROUND
Beginning in or around 2016, Google first implemented its Terms for advertisers
that used its advertising products, and it has periodically updated the Terms. (Mobin Dec. ¶¶ 3-4
(ECF 891).) Advertisers are not able to use Google’s advertising products until they agree to the
Terms by clicking an “Accept” button. (Mobin Dec. ¶ 3.)

In September 2017, Google modified the Terms to incorporate an arbitration
agreement (the “September 2017 Terms”).1 (Mobin Dec. ¶ 4 & Ex. A.) Google launched a
notice campaign that included a direct email to advertisers, a public blog post, and an alert
presented to advertisers when they logged into their accounts. (Mobin Dec. ¶ 4.) These notices
included a link that, when clicked, took advertisers to a webpage containing the September 2017
Terms. (Mobin Dec. ¶ 6 & Ex. B.) The following text appeared prominently in bold lettering at
the top of that page, with no additional text:
Please review these Terms carefully. They include the use of
binding arbitration to resolve disputes rather than jury trials or

1 Google revised these terms in April 2018 and November 2019 but did not materially modify the arbitration
provisions. (Mobin Dec. ¶¶ 12-13 & Exs. D, E.)
class actions. Please follow the instructions in terms below if you
wish to opt out of this provision. Learn more.

(Mobin Dec. Ex. B; emphasis in original.) The first paragraph of the September 2017 Terms
included the following language:
Please read these terms carefully. They require the use of binding
individual arbitration to resolve disputes rather than jury trials or
class actions. If Customer wishes, Customer may opt out of the
requirement to arbitrate disputes by following the instructions in
Section 13(F) below within 30 days of the first acceptance date of
any version of these Terms containing an arbitration provision.

(Mobin Dec. Ex. A.) Section 13(A) of the September 2017 Terms included the
following broad arbitration provision:
Arbitration of disputes. Google, Customer, and Advertiser agree to
arbitrate all disputes and claims between Google and Customer or
between Google and Advertiser that arise out of or relate in any way
to the Programs or these Terms. This agreement to arbitrate
("Dispute Resolution Agreement" or "Section 13") is intended to be
broadly interpreted and includes, for example:
(1) claims brought under any legal theory;
(2) claims that arose before Customer or Advertiser first accepted
any version of these Terms containing an arbitration provision;
(3) claims that may arise after the termination of Customer's or
Advertiser’s Use of the Programs;
(4) claims brought by or against Google, Google affiliates that
provide the Programs to Customer or Advertiser, Google parent
companies, and the respective officers, directors, employees,
agents, predecessors, successors, and assigns of these entities;
and
(5) claims brought by or against Customer or Advertiser, the
respective affiliates and parent companies of Customer or
Advertiser, and the respective officers, directors, employees,
agents, predecessors, successors, and assigns of these entities.

(Mobin Dec. Ex. A.)
Section 13(F) of the September 2017 Terms granted advertisers a 30-day period to
opt out of the arbitration provision, stating that they “must notify Google as set forth below”
through “a webform available at adwords.google.com/nav/arbitration.” (Mobin Dec. Ex. A.) An
advertiser who clicked on the webform hyperlink would be taken to a page with the heading
“Google LLC Advertising Program Terms: Dispute Resolution Settings.” (Mobin Dec. ¶ 10 &
Ex. C.) That page presented two options: “Arbitration: Use binding arbitration to resolve
disputes with Google (default upon acceptance of Google LLC Advertising Program Terms)”

and “Opt out of arbitration: I don’t want to be bound by the Dispute Resolution provisions of the
Google LLC Advertising Program Terms.” (Mobin Dec. Ex. C.)
Google’s records reflect that plaintiff Stellman accepted the Terms on September
14, 2017, and that Cliffy Care later accepted the Terms on November 20, 2019, when it first
signed up for an advertising account with Google. (Mobin Dec. ¶ 17-18 & Exs. H, I, J, K.)
Google records identify whether an advertiser has opted out of arbitration, and records for Cliffy
Care and Stellman reflect that they did not. (See Mobin Dec. Exs. H, J, L.)
The Court previously denied a motion to compel arbitration that was filed by
Google at the pleading stage because it relied on an affidavit that was testimonial in nature and
did not annex records reflecting any plaintiff’s consent to arbitration. (See ECF 701 at 25.) As

noted, fact discovery is now closed. In support of its motion, Google has filed the Declaration of
Armete Mobin and the exhibits annexed thereto. Plaintiffs have submitted no evidence of their
own in their filings in opposition to the motion.
LEGAL STANDARD
The principles governing a motion to compel arbitration are set forth under the
Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. The Supreme Court has explained that the
purpose of the FAA is “to ensure judicial enforcement of privately made agreements to
arbitrate.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219 (1985). The FAA reflects “a
strong federal policy favoring arbitration as an alternative means of dispute resolution.” JLM
Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 171 (2d Cir. 2004) (quoting Hartford Accident &
Indemnity Co. v. Swiss Reinsurance Am. Corp., 246 F.3d 219, 226 (2d Cir. 2001)). The FAA
provides that when a dispute is subject to arbitration, the court “shall on application of one of the
parties stay the trial of the action until such arbitration has been had in accordance with the terms

of the agreement . . . .” 9 U.S.C. § 3; see also Smith v. Spizzirri, 601 U.S. 472, 476 (2024)
(“When § 3 says that a court ‘shall . . . stay’ the proceeding, the court must do so.”).
In deciding a motion to compel arbitration, courts apply a “standard similar to that
applicable for a motion for summary judgment.” Nicosia v. Amazon.com, Inc., 834 F.3d 220,
229 (2d Cir. 2016) (quoting Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003)). The
Court “consider[s] all relevant, admissible evidence submitted by the parties and contained in
‘pleadings, depositions, answers to interrogatories, and admissions on file, together with . . .
affidavits,’” Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002), and draws all
reasonable inferences in favor of the non-moving party. Nicosia, 834 F.3d at 229.
DISCUSSION.

I. GOOGLE HAS ESTABLISHED THE EXISTENCE
OF A VALID ARBITRATION AGREEMENT.

A. California Law on the Existence of an Agreement to Arbitrate.
“[B]efore an agreement to arbitrate can be enforced, the district court must first
determine whether such agreement exists between the parties. This question is determined by
state contract law.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 73-74 (2d Cir. 2017) (internal
citation omitted). Section 14 of the Terms includes a California choice-of-law provision, and the
parties agree that California law governs whether they entered into an arbitration agreement.
(Def. Mem. 8; Pl. Mem. 3.)
“A written agreement to submit a controversy to arbitration is valid, enforceable,
and irrevocable, save upon such grounds as exist for the revocation of any contract.” Ramirez v.
Charter Communications, Inc., 16 Cal. 5th 478, 492 (Cal. 2024) (quotation marks omitted).
“The party seeking arbitration bears the burden of proving the existence of an arbitration

agreement, and the party opposing arbitration bears the burden of proving any defense, such as
unconscionability.” Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC, 55 Cal.
4th 223, 236 (Cal. 2012).
“A user’s click of a button can be construed as an unambiguous manifestation of
assent only if the user is explicitly advised that the act of clicking will constitute assent to the
terms and conditions of an agreement.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849,
857 (9th Cir. 2022) (applying California law). “Where there is no evidence that the offeree had
actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a
reasonably prudent user would be on inquiry notice of the terms. Whether a reasonably prudent
user would be on inquiry notice turns on the clarity and conspicuousness of arbitration terms; in

the context of web-based contracts, as discussed further below, clarity and conspicuousness are a
function of the design and content of the relevant interface.” Meyer, 868 F.3d at 74-75 (applying
California law; internal citations omitted). “Insofar as it turns on the reasonableness of notice,
the enforceability of a web-based agreement is clearly a fact-intensive inquiry. Nonetheless, on a
motion to compel arbitration, we may determine that an agreement to arbitrate exists where the
notice of the arbitration provision was reasonably conspicuous and manifestation of assent
unambiguous as a matter of law.” Id. at 76 (internal citation omitted).
B. Google and Stellman Entered into an Agreement to Arbitrate.
Stellman urges that Google has not met the burden of proving a valid agreement
to arbitrate because it has not annexed copies of the alerts that Google’s disseminated as part of it
notice campaign when it implemented the September 2017 Terms. (See Mobin Dec. ¶ 4.) He

argues that without copies of these alerts showing a hyperlink to the webpage containing the
September 2017 Terms, Google is unable to show that Stellman actually saw the September
2017 Terms and was on notice of its contents. (Opp. Mem. at 5-6.) Stellman urges that
Google’s motion should be denied because “numerous factual issues remain” as to the notice that
advertisers received concerning the September 2017 Terms. (Opp. Mem. at 7.)
But Stellman does not explain why the alerts used in Google’s notice campaign
are relevant to his acceptance of the Terms. Stellman does not assert that he was misled by the
notice campaign or that it affected his understanding of the Terms. Google has submitted
records reflecting that Stellman accepted the 2017 Terms on September 14, 2017. (Mobin Dec.
Ex. J, K.) Stellman’s “Google Ads Account Home Page” includes the line “Google program

advertiser terms” and the entry “Status: Accepted (2017-9-14 19:04:18 America/Los_Angeles).”
(Mobin Dec. Ex. J.) Stellman’s “Customer Change History” states “Sep 14 2017 19:04 PDT
Customer has ACCEPTED terms and conditions for agreement 294, version 2.0,
legal_document_id: 18019.” (Mobin Dec. Ex. K.) Stellman does not dispute the accuracy of
these records or assert that he did not actually accept the September 2017 Terms. In addition, the
webpage containing the September 2017 Terms contained boldfaced, conspicuous notice that
they contained an arbitration agreement and that the advertiser could opt out of arbitration.
(Mobin Dec. Ex. B.) Given that Stellman accepted the Terms, the contents the alerts in Google’s
notice campaign are of little moment to the existence of the agreement.
Stellman also states that “the actual link in the terms leading advertisers to the
arbitration opt-out page is not in the record” and that “Google has not presented evidence of the
opt-out page that existing advertisers would have viewed in 2017 had they viewed the Terms.”
(Opp. Mem. at 6-7.) But Google has submitted both a screenshot of the website that an

advertiser would have encountered, which featured a scrollable window containing the
September 2017 Terms, and the complete text of the September 2017 Terms, which at paragraph
13(F) contains a link to the arbitration opt-out page in the format typically associated with a web
link (i.e., “adwords.google.com/nav/arbitration”). (Mobin Dec. Exs. B, A.) Stellman does not
assert that he was unable to identify the link to the opt-out page contained in paragraph 13(F),
that he was unaware that the Terms contained an arbitration agreement or that the
straightforward opt-out page annexed at Exhibit C of the Mobin Declaration was not actually the
one in use in September 2017. He merely suggests the possibility. Stellman does not assert that
in the discovery phase of this action he was obstructed from obtaining any historical versions of
pages used in connection with acceptance of the Terms. Stellman’s speculation that the Terms

may not have contained an obvious link to the opt-out page or that the opt-out page may have
been different than the one submitted by Google does not overcome the probative evidence
submitted by Google.
Google has presented uncontroverted evidence that Stellman accepted the
September 2017 Terms on September 14, 2017, and that the web page containing those Terms
featured conspicuous language expressly informing advertisers that they contained a binding
arbitration agreement, as well as the ability for advertisers to opt out of the provision. (Mobin
Dec. Exs. A, B, J, K.) Accordingly, the Court concludes that Google has demonstrated the
existence of a valid arbitration agreement between Google and Stellman.
C. Google and Cliffy Care Entered into a Valid Agreement to Arbitrate.
Cliffy Care’s Google Ads Account Homepage reflects that it accepted the Terms
on November 20, 2019. (Mobin Dec. Ex. H.) Its “Customer Change History” has the following
entry: “Nov 20, 2019 17:12 PST Customer has ACCEPTED terms and conditions for agreement

294, version 2.5, legal_document_id 131839.” (Mobin Dec. Ex. I.) The Mobin Declaration
states that Cliffy Care accepted the Terms as updated in November 2019, which are attached to
his declaration at Exhibit E. (Mobin Dec. ¶¶ 13, 17.)
In opposition to Google’s motion, Cliffy Care argues that Google has not
conclusively demonstrated that the “agreement 294, version 2.5, legal_document_id 131839”
referenced in the Change History at Exhibit I is the same November 2019 Terms attached to the
Mobin Declaration. (Opp. Mem. 8-9.) But Cliffy Care does not dispute that it accepted the
Terms, that those Terms contained an arbitration provision, and that the Terms included adequate
notice of the binding arbitration provision. In a deposition, Cliffy Care’s representative did not
dispute that it was required to accept the Terms when it opened an account on Google Ads, and,

in its response to Google’s requests to admit, states “that it did not take affirmative action to opt
out of the dispute resolution agreement presented in the 2019 terms and conditions.” (Def. Mem.
Exs. 1, 4.) Cliffy Care had the opportunity to take discovery as to what exact document is
referenced as “agreement 294, version 2.5” in the Change History maintained for Cliffy Care.
Similar to Stellman, Cliffy Care’s suggestion that it may have entered into some version of the
Terms other than the November 2019 Terms is speculative, unsupported by evidence and does
not undermine Google’s submissions that unambiguously show Cliffy Care’s acceptance of the
November 2019 Terms.
The Court concludes that Google has demonstrated the existence of a valid
arbitration agreement between Google and Cliffy Care.
II. PLAINTIFFS HAVE NOT DEMONSTRATED THAT THE TERMS’
ARBITRATION PROVISIONS ARE UNCONSCIONABLE.

The FAA provides that an arbitration agreement “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract . . . .” 9 U.S.C. § 2. “Under the FAA, a generally applicable contract defense such as
unconscionability may invalidate an arbitration agreement if the defense is enforced
evenhandedly and does not interfere with fundamental attributes of arbitration. Courts may not,
however, invalidate arbitration agreements under state laws applicable only to arbitration
provisions.” Prima Donna Development Corp. v. Wells Fargo Bank, N.A., 42 Cal. App. 5th 22,
37 (Cal. Ct. App. 2019) (internal citations and quotation marks omitted). “Since
unconscionability is a contract defense, the party opposing arbitration bears the burden of
proving that an arbitration provision is unenforceable on that ground.” Chin v. Advanced Fresh
Concepts Franchise Corp., 194 Cal. App. 4th 704, 708 (Cal. Ct. App. 2011). Unconscionability
is an issue of law for the court. Id.
Under California law, an unconscionability defense “requires both procedural and

substantive unconscionability.” Basith v. Lithia Motors, Inc., 90 Cal. App. 5th 951, 953 (Cal. Ct.
App. 2023). Procedural unconscionability considers whether there was “oppression and
surprise” in an agreement’s terms, such as “an absence of meaningful choice” due to unequal
bargaining power or obscure terms hidden within a prolix agreement. Fisher v. MoneyGram
Int’l, Inc., 66 Cal. App. 5th 1084, 1094 (Cal. Ct. App. 2021) (quotation marks omitted).
Examples of procedural unconscionability also include the use of unreadably small print or the
presence of an illusory opt-out provision. Fuentes v. Empire Nissan, Inc., 90 Cal. App. 5th 919,
928 (Cal. Ct. App. 2023); Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1211 (9th Cir. 2016).
An agreement is substantively unconscionable when its terms are “overly harsh”
or “one-sided.” Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (Cal.

2000). But “[a] contract term is not substantively unconscionable when it merely gives one side
a greater benefit; rather, the term must be so one-sided as to shock the conscience.” Pinnacle
Museum Tower, 55 Cal. 4th at 246 (quotation marks omitted).
“These two elements need not be present to the same degree. Rather we evaluate
them on a sliding scale. The more substantively oppressive the contract terms, the less evidence
of procedural unconscionability is required to conclude that the contract is unenforceable.
Conversely, the more deceptive or coercive the bargaining tactics employed, the less substantive
unfairness is required.” Fuentes, 90 Cal. App. 5th at 927-28.
Plaintiffs urge that the Terms are procedurally unconscionable because Google
has “fail[ed] to submit competent evidence” that advertisers were given a “meaningful”

opportunity to opt out of the arbitration clause. (Opp. Mem. 10.) Plaintiffs again assert that
Google has not offered evidence of how the Terms’ hyperlink to the opt-out web page “would
have appeared to existing advertisers or any evidence at all as to the notification page or link to
the opt-out for existing advertisers.” (Id.) Plaintiffs also assert that they were presented the
terms on a “take-it-or-leave-it basis” without any bargaining power. (Id. at 9.)
Plaintiffs’ arguments are rebutted by Google’s evidentiary submissions. The
record reflects that Stellman and Cliffy Care both affirmatively agreed to the Terms after being
presented with a page that included a conspicuous and boldfaced notice that the Terms included
a binding arbitration provision, from which advertisers could opt out. (Mobin Dec. Ex. B, H-K.)
Neither Stellman nor Cliffy Care has submitted a declaration or other evidence attesting to their
own confusion over the Terms or their ability to opt out. As to the visibility of the link to the
opt-out page contained in the September 2017 Terms, those terms were contained in a scrollable
window. (Mobin Dec. Ex. B.) Google has submitted the complete September 2017 Terms as a

single printed document. (Mobin Dec. Ex. A.) As noted, paragraph 13(F) of the September
2017 Terms include an apparent and obvious url link to the webform to opt out of arbitration.
(Mobin Dec. Ex. A.) That webform includes a simple and easy-to-understand menu that permits
the advertiser to choose between agreeing to arbitration and opting out. (Mobin Dec. Ex. C.)
True, California courts have concluded that the ability to opt out of arbitration
does not alone insulate an arbitration agreement from procedural unconscionability. See, e.g.,
Johnson v. Stoneridge Creek Pleasanton CCRC LLC, 2023 WL 7125117, at *2 (Cal. Ct. App.
Oct. 30, 2023) (unpublished opinion). But plaintiffs point to no indicia of coercion or pressure
from Google. For instance, in Johnson, the court concluded that residents of a senior-living
facility “may have felt pressure” not to opt out of an arbitration agreement with a care provider

that was responsible for their basic living needs. See id. Plaintiffs also do not contend that
Google presented advertisers with a “distorted” or misleading account of the relative merits of
arbitration. See Gentry v. Superior Ct., 42 Cal. 4th 443, 471 (Cal. 2007). Again, neither
Stellman nor Cliffy Care claims to have been actually confused by the Terms, blindsided by the
inclusion of the arbitration clause, or state that they were pressured or coerced into accepting the
arbitration provision.
Plaintiffs also urge that the Terms are substantively unconscionable because they
contain a unilateral modification clause, a class-action waiver and a pre-arbitration procedure
requiring a complainant to submit an informal pre-arbitration request for dispute resolution.
(Opp. Mem. 10-11.) But Paragraph 13(G) of the Terms provides that an advertiser may reject
any amendments made by Google within 30 days, and paragraph 13(B) requires all parties to
submit a pre-arbitration notice. (Mobin Dec. Exs. A, D, E.) By contrast, in Carlson v. Home
Team Pest Defense, Inc., 239 Cal. App. 4th 619, 635 (Cal Ct. App. 2015), a decision cited by

plaintiffs, the court found an arbitration agreement substantively unconscionable because only
employees were required to arbitrate claims and provide a pre-arbitration demand without legal
representation, whereas the employer could unilaterally opt to proceed in court and had no pre-
arbitration demand obligation. The provisions cited by plaintiffs in this case as substantively
unconscionable do not create such one-sided duties.
Accordingly, plaintiffs have not demonstrated that the Terms are procedurally or
substantively unconscionable.
III. NEITHER STELLMAN NOR CLIFFY CARE
SEEKS PUBLIC INJUNCTIVE RELIEF.

A. California Law on the Arbitrability of Public Injunctive Relief.
Plaintiffs urge that compelling them to arbitrate their claims seeking injunctive
relief pursuant to California statute would be contrary to the California Unfair Competition Law
(the “UCL”) and the holding of McGill v. Citibank, N.A., 2 Cal. 5th 945 (Cal. 2017).
Under California law, certain statutory claims seeking “public injunctive relief,
i.e., injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that
threaten future injury to the general public” may not be compelled to arbitration. McGill, 2 Cal.
5th at 951-52. McGill distinguishes private injunctive relief that “primarily resolves a private
dispute between the parties and rectifies individual wrongs” from injunctive relief “that by and
large benefits the general public” and benefits the plaintiff only “incidentally” or as “a member
of the general public.” Id. at 955 (quotation marks, citations and brackets omitted). “[T]he
primary form of relief available under the UCL to protect consumers from unfair business
practices is an injunction.” Id. at 954 (quotation marks omitted). “Agreements to arbitrate
claims for public injunctive relief under . . . the UCL . . . are not enforceable in California.” Id.
at 956. McGill also scrutinized the specific injunctive relief sought, which was directed to

enjoining defendant’s allegedly false advertising and marketing. Id. at 956-57.
Citing to California authority, the Ninth Circuit distilled McGill’s holding as
follows:
It follows that public injunctive relief within the meaning of McGill
is limited to forward-looking injunctions that seek to prevent future
violations of law for the benefit of the general public as a whole, as
opposed to a particular class of persons, and that do so without the
need to consider the individual claims of any non-party. The
paradigmatic example would be the sort of injunctive relief sought
in McGill itself, where the plaintiff sought an injunction against the
use of false advertising to promote a credit protection plan. Such an
injunction attempts to stop future violations of law that are aimed at
the general public, and imposing or administering such an injunction
does not require effectively fashioning individualized relief for non-
parties.

By contrast, when the injunctive relief being sought is for the benefit
of a discrete class of persons, or would require consideration of the
private rights and obligations of individual non-parties, it has been
held to be private injunctive relief.

Hodges v. Comcast Cable Commc’ns, LLC, 21 F.4th 535, 542-43 (9th Cir. 2021) (internal
citations omitted). Prospective injunctive relief is not directed to the general public when “the
primary beneficiaries [are] a defined group of similarly situated persons,” such as employees
affected by their employer’s wage-and-hour misclassification or student-loan borrowers who
challenged the adequacy of disclosures in their loan agreements. See id. at 543 (citing Kilgore v.
KeyBank, Nat. Ass’n, 718 F.3d 1052, 1060-61 (9th Cir. 2013) (en banc); Clifford v. Quest
Software Inc., 38 Cal. App. 5th 745, 748 (Cal Ct. App. 2019)); see also Blair v. Rent-A-Center,
Inc., 928 F.3d 819, 831 & n.3 (9th Cir. 2019) (claim seeking injunctive relief directed to
installment payments for rent-to-own items and final cash purchase price sought “relief oriented
to and for the benefit of the general public.”).
In California Crane School, Inc. v. Google LLC, 722 F. Supp. 3d 1026 (N.D. Cal.

2024), the court granted Google’s motion to compel arbitration except as to plaintiff’s claim
seeking public injunctive relief under the UCL. The plaintiff in California Crane asserted that
Apple and Google unlawfully agreed to divide the markets for online search and search
advertising. Id. at 1031-32. Plaintiff had accepted the 2017 and 2018 Terms required of
Google’s advertisers. Id. at 1032. Among other things, plaintiff asserted that Google and Apple
and entered into a profit-sharing non-compete agreement, and included a claim for injunctive
relief under the UCL to enjoin them from entering future non-compete agreements. Id. at 1032-
33. Plaintiff alleged that it sought public injunctive relief, asserting that Google and Apple had
harmed the general public by reducing the quality of general search services as they related to
privacy, data protection, the use of consumer data, choice in general search services, and

innovation. Id. at 1036. The court agreed, concluding:
[T]he relief here would provide diffuse benefits to the public by
potentially bolstering competition in the search and search
advertising markets, increasing consumer choice, improving data
privacy, and decreasing costs for both general search engine users
and digital advertisers like [plaintiff]. Greater competition could
also accelerate innovation, bringing positive downstream effects on
internet users as a whole.

Id. at 1036-37.
B. The Order of Judge Freeman in the Northern
District of California Is Not Law of the Case.

Cliffy Care and Stellman urge that their UCL claims cannot be compelled to
arbitration based on an Order issued by District Judge Beth Labson Freeman addressing a UCL
claim brought by two other plaintiffs in these MDL proceedings, Surefreight Global LLC
(“Surefreight”) and Vitor Lindo. See In re Google Digital Advert. Antitrust Litig., 2021 WL
2021990, at *6-7 (N.D. Cal. May 13, 2021). Cliffy Care and Stellman argue that Judge
Freeman’s Order is law of the case and that their UCL claims cannot be compelled to arbitration.
But Judge Freeman was not adjudicating the claims of Cliffy Care or Stellman,
and her Order’s analysis qualified the ruling in light of its early posture and uncertainty over the
UCL claim’s relation to the Sherman Act. For the purposes of this motion, Judge Freeman’s
Order is not the law of the case.
“[W]hen a court has ruled on an issue, that decision should generally be adhered
to by that court in subsequent stages in the same case.” Novick v. AXA Network, LLC, 714 Fed.
App’x 22, 24-25 (2d Cir. 2017) (summary order) (quotation marks omitted). “Courts apply the
law of the case doctrine when their prior decisions in an ongoing case either expressly resolved
an issue or necessarily resolved it by implication. Application of the law of the case doctrine is
discretionary and does not limit a court’s power to reconsider its own decisions prior to final
judgment.” Aramony v. United Way of America, 254 F.3d 403, 410 (2d Cir. 2001) (internal

citation and quotation marks omitted). In an MDL proceeding, where multiple cases are
consolidated for pretrial supervision, each action “is formally a separate case” and the law of the
case doctrine “does not apply in [a] separate action.” In re Interest Rate Swaps Antitrust Litig.,
351 F. Supp. 3d 698, 703 (S.D.N.Y. 2018) (Engelmayer, J.).
Cliffy Care originally brought its action in the District Court for the District of
Columbia, where the case was assigned to then-District Judge Ketanji Brown Jackson. See 21
Civ. 6910 (ECF 1). Stellman filed his complaint in the Northern District of California on
September 15, 2022, and the case was randomly assigned to Judge Freeman. See 23 Civ. 1532,

ECF 1, 17.
Before being randomly assigned to Stellman’s action, Judge Freeman concluded
at the pleading stage that a claim for UCL relief asserted by plaintiffs Surefreight and Lindo
sought relief on behalf of the general public and not just the individual plaintiffs and proposed
class members. 2021 WL 2021990, at *6-7. She stated that Surefreight and Lindo, sought
“injunctive relief ‘to benefit the public from the lower prices and greater innovation that will
prevail in competitive digital advertising markets in the absence of Google’s monopoly.’ FAC ¶
251. They also ‘request[ed] “equitable relief as appropriate to halt Google’s monopoly conduct
and restore competition in the relevant market.”’” Id. at *6. Judge Freeman concluded the
proposed relief “is focused on ‘prohibiting unlawful acts that threaten future injury to the general

public.’” Id. (quoting McGill, 2 Cal. 5th at 951). However, she proceeded to note a “concern”
that Surefreight and Lindo could “not seek public injunctive relief premised on the Sherman
Act.” Id. at *7. She noted that the court was “not prepared” to compel Surefreight and Lindo to
arbitration “at this juncture” in light of anticipated amendments to the pleading, and because the
Court “had not yet had an opportunity to fully analyze” the UCL claim in relation to any
Sherman Act claims. Id.
Neither Cliffy Care nor Stellman were parties to the action brought by Surefreight
and Lindo. They brought separate actions and their claims were not before Judge Freeman when
she ruled on the claims of Surefreight and Lindo. Moreover, Judge Freeman qualified her
analysis given the early stage of the proceeding, the then-pending amendment and the lack of
clarity as to whether the relief sought under the UCL might improperly encompass public
injunctive relief under the Sherman Act. 2021 WL 2021990, at *7.
Judge Freeman’s Order did not resolve the claims brought by Cliffy Care or

Stellman, who were not parties to the Surefreight and Lindo proceedings. For the purposes of
this motion, it is not law of the case.
C. The Stellman Complaint Does Not Seek Public Injunctive Relief.

Count One of Stellman’s complaint brings a claim under the UCL. (Stellman
Compl’t ¶¶ 101-17 (23 Civ. 1532, ECF 1).) It asserts that Google’s ad-tech practices, and
specifically Reserve Price Optimization and claimed misrepresentations about the use of a
second-price auction, caused “Plaintiff and Class members to lose money,” and that Stellman
and putative class members lack an adequate remedy at law.2 (Stellman Compl’t ¶¶ 104-05, 110,
112.) Stellman’s UCL claim seeks an injunction requiring greater disclosure from Google about
the “true operating nature” of AdX. (Stellman Compl’t ¶ 116.)
Count One emphasizes the harm caused to Stellman and putative class members
based on Google’s implementation of Reserve Price Optimization and alleged misrepresentations
about a second-price auction. (Stellman Compl’t ¶¶ 104-08, 110-13, 115.) It asserts that
injunctive relief will remedy injuries purportedly suffered by Stellman and putative class
members. (Stellman Compl’t ¶ 116.) Stellman also alludes to “the public interest” and public
benefit that would come with lower prices and greater innovation in the digital advertising
market (Stellman Compl’t ¶¶ 114, 117) but does not articulate how the public at large would

2 Stellman’s complaint proposes a class consisting of “[a]ll persons and entities in the United States that, from
January 1, 2015 to September 5, 2019 (the ‘class period’), used Google’s display advertising services to place an ad
on a website operated by another entity (advertisers).” (Stellman Compl’t ¶ 91.)
benefit from injunctive relief directed to Reserve Price Optimization or transparency about the
use of second-price auctions. Rather, his UCL claim is specifically directed to the economic
losses of advertisers caused by particular auction practices, and would benefit that category of
advertiser plaintiffs specifically, as opposed to an incidental benefit that digital advertisers would

gain as members of the general public. See McGill, 2 Cal. 5th at 951-52.
Accordingly, the Court concludes that Stellman’s UCL claim is not barred from
arbitration under the UCL and the holding of McGill.
D. Cliffy Care Does Not Seek Public Injunctive Relief.

Cliffy Care urges that its claims brought under the Cartwright Act, California
Business and Professions Code § 16720, et seq., and the UCL cannot be compelled to arbitration
because they seek injunctive relief directed to the general public. Those claims are set forth in
the Consolidated Advertiser Class Action Complaint (the “Advertiser Complaint”) in which
Cliffy Care is a plaintiff. (ECF 399.)
Cliffy Care’s Cartwright Act claim asserts that Google entered into unlawful
continuing combinations with publishers to restrain trade in the ad-tech market. (Adv. Compl’t
¶¶ 391-94.) The Cartwright Act claim seeks treble damages but does not specify any form of
injunctive relief, though the complaint’s prayer for relief seeks an injunction to restore
competition in the relevant markets. (Adv. Compl’t ¶¶ 394, 406(C).) Neither the Advertiser
Complaint nor Cliffy Care’s memorandum identifies what public injunctive relief Cliffy Care
seeks pursuant to the Cartwright Act. Because Cliffy Care has not explained how injunctive
relief under the Cartwright Act would benefit the general public, as opposed to advertisers that
use Google products, its Cartwright Act claim is not exempt from the arbitration agreement
pursuant to McGill.
The UCL claim asserts that Google’s conduct in the ad-tech industry has harmed
Cliffy Care, other plaintiffs and advertisers as a whole, but does not explain how any injunctive
relief would benefit the general public. It describes injury to Cliffy Care and other advertisers.
(Adv. Compl’t ¶ 398 (Google has engaged in “unlawful, unfair or fraudulent business acts or

practices and unfair, deceptive, untrue or misleading advertising, causing direct and substantial
harm to Plaintiffs and class members in the form of increased advertising costs and reduced
efficacy of ad spending.”) ¶ 400 (Google has “caused substantial harm, including from Google’s
inflated prices that advertisers paid . . . .”) ¶ 401 (“[p]laintiffs and class members reasonably
expected Google’s auctions to be fair and reasonable” and “Google violated the UCL by falsely
representing to advertisers that it was conducting fair and transparent ad auctions.”); ¶¶ 402-04
(Google secretly implemented practices that “caused direct and substantial harm to advertisers
who were forced to pay higher ad rates” due to the elimination of competition, and “[p]laintiffs
and class members lack an adequate remedy at law to redress certain conduct of Google that
violates the unfair prong of the UCL.”).)

The allegations that describe a public benefit are cursory and superficial: “The
primary purpose and effect of such injunctive relief will be to benefit the public from the lower
prices and greater innovation that will prevail in competitive digital advertising markets in the
absence of Google’s monopoly.” (Adv. Compl’t ¶ 405.) Elsewhere, the Advertiser Complaint
asserts that any decrease in advertising costs would be passed on to consumers, and that reduced
advertising effectiveness harms consumers by depriving them of information about the range of
market competitors. (Adv. Compl’t ¶ 319.)
The Advertiser Complaint does not describe injunctive relief that benefits the
public generally while benefiting the plaintiffs only incidentally, as required by McGill and its
progeny. The UCL claim is, appropriately, focused on the harms suffered by advertisers as a
result of Google’s alleged auction manipulations. Now that discovery is closed, Cliffy Care does
not point to facts in the record that could show how members of the general public have been
affected by Google’s auction practices or how injunctive relief on the UCL claim would benefit

the general public, as distinguished from the advertisers directly affected by the claimed auction
manipulations.
Cliffy Care points to California Crane, which, as noted, concluded that the
plaintiff’s UCL claim sought general public injunctive relief related to search advertising
because the relief covered user privacy, data projection, the use of consumer data, choice in
search services and product innovation. 722 F. Supp. 3d at 1036-37. California Crane also
stated that the relief sought was not “class-specific” and the UCL claim was not brought as a
class action or representative action. Id. at 1036. Cliffy Care does not point to such consumer-
oriented relief here, and its claim for injunctive relief under the UCL is premised on redressing
harm to plaintiffs and other advertisers in a potential class. (See Adv. Compl’t ¶¶ 398, 400-04.)

In contrast to California Crane, plaintiffs are not describing injunctive relief that benefits the
general public and only incidentally affects plaintiffs, but relief from harms specifically targeted
to users of Google’s ad-buying tools and ad exchanges. Under McGill, “[r]elief that has the
primary purpose or effect of redressing or preventing injury to an individual plaintiff – or to a
group of individuals similarly situated to the plaintiff – does not constitute public injunctive
relief.” 2 Cal. 5th at 955. This is the type of injunctive relief described in the Advertiser
Complaint.
Accordingly, the Court concludes that neither Cliffy Care’s claim under the
Cartwright Act nor its claim under the UCL seeks public injunctive relief. The Court concludes
that these claims are not barred from arbitration by the holding of McGill.
CONCLUSION.
Google’s motion to compel plaintiffs Cliffy Care and Michael Stellman to
arbitration is GRANTED. The Clerk is respectfully directed to stay the member case Stellman v.
Google LLC, et. al., 23 Civ. 1532 (PKC), and to update the docket in 21-md-3010 to reflect that
the claims of individual plaintiffs Michael Stellman and Cliffy Care Landscaping LLC are
stayed. The Clerk is respectfully directed to terminate the motion. (21-md-3010, ECF 889.)
SO ORDERED.
LZ Fees
LZ Pl
United States District Judge
Dated: New York, New York
January 24, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10788824. Public record. Not legal advice.