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Contracts Case Brief # 2

Title and Citation: Feldman v. Google Inc., 513 F. Supp. 229 (E.D. Pa.
2007)
Identities of Parties: The Plaintiff Lawrence Feldman (P) lawyer
purchased advertising for his firm Lawrence Feldman & Associates from
the Defendant (D) Google Ad Works Program.
Procedure History: The (D) brought motion to dismiss (P)s
amended complaint or to transfer the case to the Northern District of
California, San Jose Division. (P) Is seeking a cross-motion for summary
judgment.
Facts: (P) bought advertising from the (D) in order to attract potential
clients for his practice. Every time an Internet user searched and
clicked on keywords/Ad words he bought through the (D) he would be
charged by the (D) for every click. The (P) claims that he was a victim
of click fraud, and that around 20 to 30% of the clicks had he had
been charged by (D) were click fraud. This drove up the advertising
costs for the (P). Then (P) sued the (D) because of the click fraud and
the fact that it had the capability to track and prevent the fraud. The
(D) wanted to have the case moved to court in California on the
premise that a forum selection clause in the Adword online agreement
(that the (P) clicked on) required disputes to be resolved in Santa Clara
County, California. (P) Maintained that he had no notice to the
agreement terms and that there was no mutual assent to the
agreement. (P) Also argued that the agreement lacked a definite
essential term as to price and therefore contract was unenforceable.
Issue: (A) Whether a forum selection clause in an Internet clickwrap
agreement is enforceable under the facts of the case? (B) Whether a
contract can be enforced despite lack of definite price term?
Holding and Rule: (A) Yes, a clickwrap agreement is enforceable
under the facts of the case, since in order for it to enforceable, the (P)
had reasonable notice of and manifest assent to the clickwrap
agreement. Absent of showing of fraud, the clickwrap agreement is an
enforceable. (B) Yes, although CA and PA law state that price term is
essential part of a contract, however if parties have agreed upon a
practicable method of determining the price in the contract with
reasonable certainly, the contract is enforceable (through a market
standard).
Courts Reasoning: Since the only way to get buys advertising
through Adword was by agreeing to the clickwrap agreement, then the

(P) agreed to the contract. The contract had no fraud so the (P) not
reading the contract is not any compliance with the terms of the
contract. (P) had reasonable notice of the terms, and by clicking on the
Yes, I agree to the below terms he indicated assent to the terms. The
requirement for reasonable notice of terms and mutual assent are
satisfied. Also the contract is enforceable because the Adwods
agreement contained a practicable method of determining the market
price with reasonable certainty.
Judgment and Order: The (D) motion to transfer is granted and the
(P) motion for summary judgment is denied.