## Facts

- Lawrence E. Feldman, an attorney, purchased pay-per-click advertising through Google’s AdWords program beginning in 2003, bidding on keywords related to certain pharmaceuticals.
- Feldman alleged he was billed for fraudulent clicks (clicks by competitors or pranksters with no interest in his services), claiming roughly 20–30% of charged clicks were fraudulent and that he paid Google over $100,000.
- To enroll in AdWords, Feldman completed an online registration requiring him to click acceptance of terms after being instructed to read the “terms and conditions.”
- The agreement’s initial paragraphs were visible on the registration screen, the full text was available by scrolling, and a printer-friendly version was accessible by link.
- The clickwrap agreement contained a forum selection clause requiring disputes to be brought in Santa Clara County, California (Northern District of California, San Jose Division).
- Feldman sued in Pennsylvania state court in 2006; Google removed on diversity jurisdiction.
- Feldman’s amended pleading disclaimed an express-contract theory and asserted there was no valid express contract due to lack of notice and assent; he also attacked the agreement (including the forum clause) as adhesive and unconscionable.
- The court treated Google’s motion (seeking dismissal or transfer based on the forum clause) as a summary-judgment request on enforceability of the clause and considered Feldman’s cross-motion.

## Issues

1. Whether the AdWords clickwrap created a valid express contract, given claims of inadequate notice and lack of assent.
2. Whether the agreement (including the forum selection clause) was unenforceable as an unconscionable adhesion contract.
3. Whether the forum selection clause was enforceable and mandatory (exclusive) rather than permissive.
4. If enforceable, whether the proper remedy was transfer or dismissal, and whether transfer should proceed under 28 U.S.C. § 1404(a) or § 1406.

## Decision

- The court held the AdWords clickwrap formed a valid, enforceable express contract because Feldman had reasonable notice of the terms and manifested assent by clicking acceptance.
- The court rejected Feldman’s argument that the agreement failed for indefiniteness of price, finding the contract described a workable bidding and per-click charging method.
- The court held Feldman did not establish procedural and substantive unconscionability; the agreement was not invalid as an adhesion contract on the record presented.
- The forum selection clause was held valid, enforceable, and mandatory, requiring litigation in Santa Clara County, California.
- The court denied Feldman’s cross-motion, granted Google’s request for transfer, and transferred the case to the Northern District of California, San Jose Division under 28 U.S.C. § 1404(a).

## Legal Principles

- A clickwrap agreement is enforceable when the user receives reasonable notice of terms that are available for review and objectively manifests assent by clicking acceptance.
- A contract is not unenforceable for lack of a fixed price when it specifies a practicable method for determining price (e.g., a bidding process and per-click charges).
- Forum selection clauses are presumptively enforceable and are set aside only upon a strong showing of unreasonableness, injustice, fraud, overreaching, or comparable grounds.
- A forum clause is mandatory when its language requires disputes to be brought in the designated forum, not merely permitting suit there.
- When venue is otherwise proper, enforcement of a valid forum selection clause is commonly implemented through transfer under 28 U.S.C. § 1404(a), with the clause receiving substantial weight in the analysis.

## Conclusion

The court enforced Google’s AdWords clickwrap agreement, upheld its mandatory California forum selection clause against notice and unconscionability challenges, and transferred the click-fraud billing dispute from Pennsylvania to the Northern District of California under § 1404(a).


Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa. 2007)