A proposed settlement has been reached and preliminarily approved in the class action lawsuits on behalf of publishers and advertisers against ValueClick/CJ. The cases centered on the presence of adware in CJ/BF and the impact on both publishers and advertisers. The two cases were consolidated earlier this year by the courts and the settlement covers both cases.
A court date of January 2009 has been set for a Fairness Hearing to determine if the settlement will have final approval by the court.
I’m posting two documents obtained through the courts which give detailed information regarding the settlement and the procedures which will follow.
[Propsed] Order Preliminarily Approving Settlement, Prelimanily Certifying Classes, And Providing For Notice
Exhibit A: Agreement For Settlement Of Carrier And NAR Litigation
VCLK/CJ deny all allegations in both cases but agree to the following settlement (summarized):
1. $1 Million to be paid into a Common Settlement Fund. Both Advertisers and Publishers will be compensated from this fund. Thirty (30) percent of the fund will be allocated to Advertisers and seventy (70) percent to Publishers of the class. The first document linked above defines both classes and outlines how the fund will be dispersed.
2. An independent audit of CJ’s Network Quality practices and efforts related to detection, prevention and response to third parties using software to force or hijack clicks on CJ. The Auditor will submit a report and make recommendations on how CJ can improve and enhance Network Quality practices. The parties will then issue a statement to Class Members summarizing the measures to be implemented by CJ in response to the Audit and report.
3. CJ will begin tracking additional data/information and will implement enhancements of its primary investigative tools and automated software investigative tools. This additional data includes (quoted from the Settlement Agreement):
49. Tracking of Additional Data and Information: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will supplement its existing detection procedures and practices by implementing systems responsible for tracking the following categories of data and information:
A. Prior Publisher Investigations: CJ will design and implement fields and/or tables in its database that identify and record: 1) the number of instances on which any publisher has been assigned a “fraud role” or has been under investigation for the potential use of malicious software to “force” or “hijack” clicks; 2) the time period of each such investigation; 3) the CJ employee(s) responsible for conducting the investigation; and 4) the outcome of the investigation. CJ agrees to maintain such information for a period of no less than 3 years.
B. Termination/Deactivation Codes: CJ will design and implement detailed codes identifying the specific reason(s) that a particular publisher was deactivated or terminated from its network, including specific codes identifying whether a publisher was terminated for “forcing” or “hijacking” clicks using malicious software. CJ agrees to record and preserve such reason codes for each publisher deactivated or terminated from its network for a period of no less than 3 years following such deactivation or termination.
C. Software Testing: CJ will design and implement a database and/or table identifying all software that is manually tested or investigated by CJ to determine whether it is being utilized to “force” or “hijack” clicks, and for each such software application, will record in such database and/or table: 1) the particular software application tested; 2) the time, date and manner in which such software was tested; 3) any publishers determined to be using such software; and 4) the conclusions of the testing. CJ agrees to record and preserve such information for a period of no less than 3 years.
50. Primary Investigative Tools: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal, and dismisses the Action with prejudice, it will implement the following enhancements to its Network Quality procedures:
A. CJ will continue to circulate to all members of its Network Quality team a daily “hijack report” identifying all instances of two clicks for the same end user being dropped within five seconds of each other, and will assign a member of its Network Quality team to be principally responsible for reviewing daily “hijack” reports and for investigating instances of potential click “hijacking” based on such reports.
B. CJ will begin to circulate a weekly “high conversion report” to all members of its Network Quality team identifying all publishers with a lifetime conversion ratio greater than 30% and a percentage of “null” referring URLs greater than 50%, and will assign a member of its Network Quality team to be principally responsible for reviewing weekly “high conversion reports” and for investigating instances of potential “forced” clicks using malicious software based on such reports.
C. CJ will agree to consider in good faith implementing any additional investigative reports or tools recommended by the auditor to assist in its efforts to detect forced click and hijacking activity.
51. Automated Software Investigative Tool: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will implement an automated testing protocol utilizing a proprietary software tool designed to detect particular publishers’ use of known malicious software applications. The tool will run on a continuous basis, and the independent auditor will be permitted to evaluate the automated tool and to make recommendations concerning the design and implementation of the automated tool in his or her Report.
52. Preservation of Publisher Data During Publisher Investigations: Defendants agree that no later than 30 days after the date that the Court approves the Parties’ Stipulation for Dismissal and dismisses the Action with prejudice, CJ will implement an automated system for preserving all “click data” associated with a particular publisher during any period of time that such publisher is under investigation for the potential use of malicious software to “force” or “hijack” clicks on CJ’s network. Notwithstanding the foregoing, no failure to preserve such data during the pendency of any such investigation shall be admissible to establish liability or breach of any discovery obligation in any collateral litigation, and no inadvertent failure to preserve such data shall give rise to any claim for breach of this Settlement Agreement.
The agreements with regards to compliance efforts are more significant than the amount of dollars reached in the settlement, in my opinion. I am glad to see such issues addressed in the agreement.
More information regarding who is included in the classes, procedures for opting out of the settlement and mechanisms for opposing the settlement terms can be found in the documents linked at the beginning of this post.
More information regarding who is included in the classes, procedures for opting out of the settlement and mechanisms for opposing the settlement terms can be found in the documents linked at the beginning of this post.
