Why Google Bothered to Appeal a $761 Small Claims Case (and Won)

This is the second article in a two-part series.

In early March, I documented a minor victory in a lawsuit that my company brought against internet juggernaut Google, Inc. in small claims court. The core of the dispute focused on whether or not Google had the right to terminate my company's Google AdSense account without providing a valid reason. The judge in the case ruled that it did not have that right, and so I won.

Immediately after the ruling in March, I asked Stephanie Milani, the litigation paralegal assigned to represent Google in the lawyerless venue, if I could have her business card. Conveniently, she didn't have any. Without any way to contact her or anyone else at the legal department--one of the core issues that led me to file a lawsuit in the first place--I wondered how I would go about collecting my $761 payment. The answer came by e-mail on March 5, 2009 at 6:18 P.M., when I received an e-mail from Ms. Milani. It stated:

Hi Aaron,

Can you please send me Think Computer's taxpayer ID. The accounting department will need that in order to cut you a check.

I responded soon after, and comfortable that I had laid the issue to rest, I wrote my own accounting of the saga on The Huffington Post the next day. It came as a bit of a surprise when the essay garnered the interest of thousands of readers on internet news sites such as Digg, Reddit, and eventually the New York Times. From the e-mails that poured in afterward, it quickly emerged that I wasn't the only one who was fed up with poor customer service at Google, not to mention companies all across America.

It came as no surprise that Google was a bit sore that I had incited such a firestorm, however unintentionally. Their check never came, but late in the month Form SC-140 did, informing me that my case had been "APPEALED to the superior court." Either Google took the aphorism that "every penny counts" literally, or I had made somebody quite upset.

The appeal trial was re-scheduled once for no apparent reason before the date finally settled on May 22, 2009. I arrived at the San Jose Courthouse after scrambling for change to put in the parking meter (because it's never a good idea to park illegally in front of a public building--especially one swarming with policemen). Google's Ms. Milani and two men I didn't recognize were already there, listening patiently to a man with an accent who had been involved in a car accident explain to the judge how his chiropractor was both an accredited physician and not, all at the same time. The judge, to his credit, was both condescending and infinitely patient, letting the man go on and on, even when he had repeated himself for the fourth or fifth time. He did point out that only the circumstances at the time of the filing mattered for the purposes of his decision--not anything that had transpired afterward. After that case was finished, a man who had received a parking ticket in Palo Alto for parking next to a red curb protested that he did not know what red curbs meant (though he did admit to knowing what blue and yellow curbs meant), and that curbs were, in fact, invisible to drivers due to issues of "angle."

At last, the judge turned his attention to Think Computer Corporation v. Google, Inc. Just before the trial, somewhere between the chiropractors and blue curbs, Google's attorney--recognizable as such by his fancy suit, as opposed to the casually-dressed engineer sitting on the opposite side of Ms. Milani--handed me four stacks of paper marked as exhibits one through four. A fifth followed eventually, and I responded with my eighty or so pages of evidence. With a brief glance, Google's exhibits made clear what I had wanted to know all along throughout the five months since my lawsuit had been filed: the specific reasons why my account was cancelled. One appeared to be that I had used the forbidden phrase "pick a link" on my web site. The other was that Google AdSense advertisements could not be placed on web pages lacking content.

Except when they could. This is what I tried to explain in my opening arguments. Despite Google's objections to what they perceived to be technical violations of their AdSense terms of service, they also had an entirely separate (but confusingly similar-sounding) program called AdSense for Domains, which handled the exact problem I was trying to solve--that of using advertising to profit from "parked," or unused, domain names, much like putting a billboard on a vacant lot. Though AdSense for Domains was closed to the public for years, Google did finally open it up December 11, 2008, just two days after my account was cancelled. Had it allowed my company to join in the first place, I would have had no reason to create my own billboard using "normal" AdSense since Google would have already taken care of it for me, and no violation would have occurred.

It was clear that I had gone too fast, for the judge asked me to slow down, and he also asked for clarification on how web site operators made money from Google's advertisements. After a couple of minutes of explanation, the judge signaled that he got it. Google's lawyer began his opening arguments.

It was Google's position that my company had violated the terms of service it had agreed to when I signed up for AdSense. All of the logical legal arguments and tactics followed: written proof that my company had signed up for AdSense, a number of instances where I was asked to read relevant portions of the terms of service out loud for the judge (designed more than anything to humiliate since it was already readily apparent that I could read), and arguments about my nefarious background. These, Google invented on the spot.

"What are these links on the site?" Google's lawyer asked, referring to a printout of the web site in question that was part of my stack of paper.

"They're links to essays I've written," I responded.

"Do you charge for these essays?" the lawyer asked.

"No," I said. Google's lawyer tried again.

"Does your company charge for anything?"

"Yes, it charges for its products and services," I said.

"But it doesn't charge for these essays," he half-asked.

"No, the company didn't write the essays. I did, and sometimes I write essays for the Huffington Post, but I'm not compensated."

"Do you sell essays to college students?" the lawyer asked.

"What?" I asked him, confused.

"You sell pre-written essays for college students, right? Like term papers?"

"No!" I said, finally realizing where he was going. "I don't know where you would have even gotten that idea." Little did he know that he had hit a sore spot, since I had recently written a book about education at America's "top schools" and the many problems therein, cheating among them.

Though at that point I should have asked him how often he beat his wife, I was too shocked to think of it. Google has more access to information about people than virtually any company on the planet, yet despite its vast resources, it found it more prudent to fabricate disparaging innuendo about me before a judge. The sole purpose was to damage my credibility.

The judge ended the trial by asking each party if there was anything more to add. He noticed the presence of Google's engineer, but didn't ask him to testify to anything in addition to what had already been said, and Google didn't ask him to either. I pointed out that Google had only filed the appeal after I had written my article, implying that they took issue more with the negative press than the initial ruling itself, which I believed constituted filing in bad faith, but the judge was unimpressed. He said he would take the matter under advisement, and that was that.

I returned to my car to find exactly three minutes left on my parking meter. The next day, a package arrived in the mail from the court with my exhibits and a sheet of paper detailing the judge's ruling. My company was to be awarded $0 in damages and $0 in court costs, implying that I had lost the appeal. Both the plaintiff and defendant were checked off as being present. Confusingly, an additional box was checked off stating that the appeal was dismissed due to the defendant's absence in court.

Clearly Google's representatives were present at the trial, but I'd like to think that more than being a simply typographical error, the judge was conceding that I had a point. There is no law explicitly stating so, but there was no need for Google to behave in as draconian a manner as it did throughout the entire process of investigating the circumstances surrounding my account termination. It would have been just as easy for the company to answer my question--why was my account terminated?--five minutes after I initially called as it was for them to answer it five minutes before the appeal trial began. It's amazing, in fact, what it took for them to provide that answer: form submissions, e-mails, forum postings, phone calls, filing and winning a lawsuit, bringing national attention to the matter, and showing up in court for an appeals trial. Such a litany of actions seems rather unreasonable for your average customer to endure.

The proper thing for Google to have done would have been to explain the following: "Your account was cancelled because technically one of your three web sites using AdSense broke our rules. You used 'pick a link' wording you shouldn't have, and you created a page where ads were the only links. Unfortunately, we can't pay you the money you earned from that site. What we can do is reinstate your account for the two valid sites, and set you up with an account for our other program, AdSense for Domains, that will be perfect for what you're trying to do on the third, and we look forward to helping you make money without any regulatory problems that way." Would that have been so hard?

The answer of course is no, and it would have cost them far less in time, money and negative publicity than dealing with a persistent customer such as myself in court. Yet many companies of late have become enamored of taking every penny-pinching measure possible to minimize customer service costs, while ignoring the real long-term cost of doing so: losing customers. When representatives are poorly-trained, don't speak English, or don't exist at all (as in Google's case), you can be certain that the volume of complaints (and calls, and e-mails, and lawsuits) will go up, not down, actually increasing costs instead of decreasing them. Customer service is literally the cost of doing business, and not accepting that cost very frequently means not doing business.

Until this point gets across, we as consumers have a problem. The only solution is to shed more light on the issue until it is fixed. For my part, my company will be taking the domain name that started this fiasco in the first place, http://www.thinklink.com, and creating a web site devoted to customer service that works. ThinkLink Reconcile will be a better way to handle customer service issues, on-line, without having to jump through the hoops of telephone trees and faceless telephone representatives. As of July 1, we'll begin alpha testing on what will surely be the first of many ThinkLink features. We'll aim for a public release in early fall.

In the meantime, Google also has a problem. The fact that it conducts smear campaigns against small business owners suggests that the "don't be evil" ethos of its founders and early employees is a thing of the past. Google (presumably, since no one else knew) even notified bloggers and/or The Huffington Post of the appeals court ruling so that what I had written in my previous post might be somewhat nullified. Fair enough. In response, I would suggest that if the company really must be evil, then in the interest of avoiding additional embarrassment, it could at least try living by a useful, if somewhat less ambitious, motto:

"Don't be assholes."

Aaron Greenspan is President & CEO of Think Computer Corporation and the author of Authoritas: One Student's Harvard Admissions and the Founding of the Facebook Era.

***

Read the previous article in this series, Why I Sued Google (and Won)

Comments

[dezfutak]

Quote:
"What we can do is reinstate your account for the two valid sites, and set you up with an account for our other program, AdSense for Domains...."

I think the MAJOR problem is that the algorithms used to determine the abuse of the terms take a life of their own because of the authority that the computer-generated outcome give.

Ie, because a computer has measured it & concluded "X is true", the human moderator who may or may not be reviewing the outcome is predicated to trust it, because it's been done in a dispassionate manner.

If this goes some way to explaining what happened to you, then it's a DISASTER for customer service, as it means that computers really are becoming the decision-makers, instead of us.

An anecdotal story I had with Google back in February to illustrate: I phoned Google as a result of one of my Adwords accounts not showing ads & wanted to get to the bottom of what I must've been doing wrong.

Well, the reply from the customer service rep was very scary - I genuinely couldn't tell if I was talking to a robot or a human for nearly a minute...it's as if the human customer service team has had any humanity/i­ndividuali­ty sucked out of them, and they're just subservient to a gigantic machine which is slowly taking over the world.

It was like George Orwell & Ray Bradbury at the same time.

As I say - scary.

[marko141]

Yes, Google could have sent you a 2 line email explaining why your account was closed. However, if you couldn't bother to read the ToS in the first place, why would Google assume you would read that email?

[moutnbkr]

Dell is bringing their Customer Service Home because of things like this.

[rhanlon]

I think the moral of this story is: don't write a scathing article until the check clears.

[ShanniC]

That should have been par for the course. I would shut my mouth until the money was available in my account!

[toocoldout]

Interesting that they would care about such a small amount

[suigeneris]

Um....they DON'T. That was kind of the whole point of the article.

[Perry-Crann]

I think this does illustrate the problem with dealing with large companies to earn income. If anything goes wrong you are screwed, you will be lucky if you ever get to speak with a human being. The relationship is usually terminated with a form email.

An honest mistake or becoming the victim of fraud can shut you business down instantly. Customer services cost money and it is a business decision for allot of these companies to not provide it.

[mozara]

Pyrrhic victory...

[mozara]

It's clear that Google is starting to be run by lawyers, accountants, and finance people. This is the point when corporations start to go down the drain. They forget that their focus should be to build a good product. GM is a classic example of what happens when you go down that road.

[jehzlau]

Geeez... Google will do anything to win :D

But still, you did a fantastic move Aaron :D weeeeeee!

[J3ff0]

Along with the Terms violations that you have outlined in your article, I think it only fair that you include this as well:
"Google may at any time, in its sole discretion, terminate all or part of the Program, terminate this Agreement, or suspend or terminate the participation of any Property in all or part of the Program for any reason."

So you're right -- Google pulled some pretty lame stunts in terminating your account and not explaining it. On the other hand, from what I read in their Terms, it looks like they don't have to. So ultimately, you filed a lawsuit because you were annoyed about something you had contractually agreed to? How well did you expect that to work?

[mozara]

You are right from a technical standpoint, but the spirit of the company should be better than that, and it says volumes about what they are becoming. From this article I get that Google is not customer focused. Furthermore, they seem to have behaved like bullies. Not good.

[JustMyWords]

You know, I don't see anywhere in that statement that says that they don't have to explain it. It says they can do it for any reason, but it doesn't say that they can do it for no reason, or that they can do it without notifying you, or that they can do it without telling you why. And it doesn't say that they can refuse to pay you revenues already earned just because they feel like it.

[jamesinraro]

Google not only does evil on a regular basis but also facilitates and enables those who are do evil through their adword campaigns. Ethical buisness practice is not a priority and, in fact, is never allowed to interfere with revenue Google earns from unethical companies who advertise over Adwords. Even when a scammer or pfisher is identified Google will not stop the company's adword campaign. Companies who use the trademarks of their competitors, who have earned good will and a far better reputation then the advertiser, in their adword titles are allowed to profit through this theft via adwords and Google chooses to look the other way. The do no evil moniker is simply a marketing gimmick.

[Brian Williammee]

Three cheers for Aaron Greenspan. I hope you're the first of many.

[jackybird]

Sometimes it seems that a lot of large companies have given up on the notion of providing a product or service and think that they can charge fees for simply existing.

There are days that I wonder if the recession wasn't caused by Americans waking up one day and realizing that they weren't getting anything for the money there were spending, so they just stopped spending.

[MrBwood]

Now, why is it that Google isn't supposed to defend itself?

[Charles Boyung]

No one ever said that Google couldn't defend themselves. The whole point here is that there never would have been a need to defend themselves had they just provided a very MINIMAL amount of customer service at any one of MANY steps along the way.

[mozara]

There is a difference between defending yourself, and bullying a client.

[Saidas]

Why such a brief article? You should have expanded your thoughts a bit. This is so fascinating that I'm sure everyone was hungry for more information!

[Scent]

Not your "information" though ;o).