****Disclaimer: I am not a lawyer or attorney. The following post is only my own personal interpretation and opinion of public legal documents. You should consult qualified legal professionals regarding this case. In fact, I strongly suggest that some advertisers and publishers may want to seek legal advice regarding these cases. *****
While there has not seemed to be much discussion in the affiliate marketing community regarding the two class action lawsuits filed against VC/CJ/BF on behalf of merchants and affiliates, the legal process has been progressing. Of course, there wasn’t a whole lot to discuss as the only information available has been the two actual claims filed.
What has transpired to this point is the two initial claims were filed. ValueClick then responded to both with a Motion to Dismiss. The Plaintiff’s then responded with their Opposition to the Motion To Dismiss. Finally, ValueClick has responded the Opposition to Dismiss. Yes, this is why legal cases can take so long.
The new court filings have been posted on the CJClassAction web site and I’ll link to all new documents at the end of this post. I am still reading through all the documents and assimilating the information. But there is something that has already glaringly jumped out at me in what I’ve read so far, and I felt the need to post on this one point now. Thus far I have been reading the documents related to the Advertiser/Merchant suit. If you are an Advertiser on CJ or BF, you need to read these documents. There’s a lot of case law in the documents, but I’m somewhat filtering through that as I don’t know case law. The point I’m wanting to address in the post has to do with the basic claims and ValueClick’s response to the claims.
The Advertiser Plaintiff argued that ValueClick, Commission Junction and BeFree promised, as part of the service they were providing to advertisers as a network, to track clicks/transactions generated and collect and distribute commission payments based on the actual traffic/transactions that a publisher directs to an advertisers website. This is also what my own personal understanding of the basic function of an Affiliate Network. They further argue that adware does not actually direct traffic to an advertisers website; they (adware) do not engage in efforts to originate traffic to the advertiser’s site but merely act as parasites to get credit for traffic developed by legitimate publishers and advertisers. Therefore adware publishers should not qualify for commission payments. In their reply brief in support of their motion to dismiss the lawsuit, ValueClick/Commission Junction/BeFree disputed that they were obligated to track transactions. In particular, ValueClick and Commission Junction argued that:
- Advertisers, and not Commission Junction, are responsible for determining which publishers are eligible to receive commissions and which transactions qualify for a payout.
- The contract obligates Advertisers to track, review and approve all transactions and commission payments.
- The contract makes crystal clear that the obligation to provide accurate, verifiable reporting on the number of clicks, to determine which transactions qualify for a payout, and to make commission payments to publishers, rests exclusively with the Advertisers.
- Commission Junction is under no affirmative duty to determine which transactions qualify for a payout, or to make payments to publishers for qualifying transactions.
I think it is extremely important for Advertisers to understand what ValueClick views as their responsibilities and obligations and what they feel falls on the Advertiser. I’ve read ValueClick’s response three times now, and I’m still walking away with the impression that according to ValueClick, all of the responsibility falls on Advertisers and none with ValueClick/CJ. If you are an Advertiser with CJ/BF and your understanding of the Services the Network provides and where responsibility and obligations lie differ from those stated by ValueClick, then again I suggest that you may want to seek professional legal counsel on the issues at stake here. These are no longer issues that are merely being debated on blogs, forums or at Industry events. These are now issues that will be determined in a court at law.
As I wrestle with the differences of the role of Networks in affiliate marketing by ValueClick and my own fundamental perceptions, I’m almost hesitant to go read what lies in store in the Publisher documents. But to end on an upbeat note….tracking is not affected.
Documents Related to Affiliate Class Action: Initial Complaint ValueClick Motion To Dismiss Opposition to MTD ValueClick Reply
Documents Related to Advertiser Class Action: Initial Complaint ValueClick Motion To Dismiss Opposition to MTD ValueClick Reply