KinderStart is a
website business relating to children which saw its traffic plummet
when its homepage was reset to a Google PageRank of zero. PageRank
is a Google system for judging the importance of a web page on a
scale of zero to 10. It influences where that page appears in
search results.
KinderStart claimed defamation and
anticompetitive business practices resulting from the ranking
demotion, and also claimed that several other sites had had the
same experience.
"KinderStart claims that Google has interfered
with KinderStart’s First Amendment rights [to free speech]", and
“has engaged in predatory conduct and anticompetitive conduct
directed toward achieving the objective of controlling prices
and/or destroying competition", said court papers.
Judge Jeremy Fogel of the US District Court
for the Northern District of California threw the case out, saying
that KinderStart had been given a second chance to make its case
and had still failed.
"The Court concluded in its July 13th Order that
KinderStart had failed to allege facts sufficient to support each
of the four elements of an attempted monopolization claim," said
the judge. "The Court also noted that KinderStart had not
sufficiently described the markets relevant to its claim. The SAC
[second amended complaint] suffers from essentially the same
defects."
The court rejected the claims of defamation on
almost exactly the same grounds on which it had rejected the claim
before. "The Court dismissed the defamation and libel claim in the
FAC [first amended complaint] on the basis that KinderStart had
failed to explain how Google caused injury to it by a provably
false statement about the output of Google’s algorithm regarding
KinderStart.com, as distinguished from an unfavorable opinion about
KinderStart.com’s importance," said Fogel. "[KinderStart's]
allegations are vague and ambiguous, and KinderStart makes only
general claims as to the type of injury it allegedly suffered …
KinderStart still has failed to identify a provably false
statement."
Fogel not only threw out the case but also
refused KinderStart the opportunity to appeal, because it said the
company and its lawyers had failed to make full use of the second
chance it had already had.
"Having concluded that it should grant the
motion to dismiss, the Court must consider whether to grant leave
to amend the complaint," said Fogel. "In its July 13th Order, the
Court gave KinderStart explicit, detailed direction that
KinderStart largely failed to follow in the second amended
complaint."
"Instead, KinderStart reasserted the same
deficient allegations identified in the July 13th Order. The
instant case has been intensively litigated for more than eleven
months. Under these circumstances, the Court concludes that there
is no reasonable likelihood that KinderStart will cure the defects
in the second amended complaint by further amendment.
Accordingly, the motion to dismiss will be granted without leave to
amend," he said.
Fogel went even further in a second, related
order.
KinderStart lawyer Gregory Yu of law firm
Global Law Group was reprimanded by the judge for his unsupported
claims that other companies had suffered unfair treatment at the
hands of Google. "The Court concludes that the allegation that
Google sells priority placement in its results should not have been
made based upon the limited information identified by Yu," said
Fogel. "As presented to the Court on this motion, Yu’s purported
evidence is either double hearsay or hearsay speculation as to the
'mysterious' causes of improvement in a website’s position in
Google’s search results. The Court concludes that the allegations
are sanctionable under Rule 11 because they are factually baseless
and because Yu failed to perform an adequate investigation before
filing them."
"It is true that Yu spoke with a number of
people who believe that Google engages in religious or political
discrimination, but a reasonable, competent investigation requires
more than suspicions or belief. Yu had a professional
responsibility to refrain from filing such allegations if he did
not have appropriate supporting evidence," said Fogel.
Fogel said that he would take action against
Yu. "Yu should have removed the allegations of sold search rankings
and discrimination from the second amended complaint, and Google is
entitled to reasonable compensation for having to defend against
these claims," he said.
