An Austin based jury unanimously found that Wickfire, LLC and its co-owners, Chet Hall and Jonathan Brown, intentionally interfered with TriMax Media’s business, but the jury failed to award damages. TriMax has filed a notice of appeal regarding the lack of damages awarded as well as other portions of the jury verdict. The case was tried in the Western District of Texas, styled as Civil Action No. 14-CV-34.
The lawsuit centered around Google AdWords, an online-auction platform where companies like TriMax and Wickfire compete for advertising space. TriMax argued Wickfire intentionally interfered with TriMax’s contracts by (1) paying kickbacks to merchant representatives; (2) impersonating TriMax by placing unauthorized ads that plagiarized TriMax’s ad copy and contained other identifying information of TriMax; (3) repeatedly clicking on TriMax ads in order to artificially increase TriMax’s costs (known as “click fraud”); and (4) using an automated software program to manipulate the Google AdWords auction system to inflate TriMax’s costs (known as “bid jamming”). At trial, a financial expert testified that due to Wickfire’s intentional interference over the past five years, TriMax’s damages exceeded $22 million.
TriMax presented evidence to the jury that Wickfire had been suspended from over 200 Google AdWords accounts, violated merchant terms, and employed fake user agents and proxies to conceal its identity. The jury also saw evidence that Google referred to Wickfire as “Known Fraudsters” and that Wickfire registered the domain name “GoogleClickFraud.com”.
TriMax also presented evidence regarding Wickfire’s destruction of evidence. TriMax learned that during the litigation, Wickfire wiped all the data from its Chief Technology Officer’s laptop, and then failed to disclose that information to TriMax or the court. Once TriMax uncovered the destruction, Wickfire claimed it was necessary, since the laptop had been stolen during a home burglary. However, the police report—which TriMax obtained independently after Wickfire failed to produce a copy—contradicted Wickfire’s story by mentioning nothing about an allegedly stolen laptop.
While the jury heard extensive evidence about Wickfire’s conduct comprising the intentional interference, some of the most devastating evidence was excluded. For example, the jury was not permitted to see:
- The police report from the burglary;
- Registration documents showing Wickfire as the owner of “BitchesOfFacebook.com” and “PokeBitches.com”;
- An e-mail from a merchant representative who, after refusing to accept the alleged kickbacks, referred to Wickfire as “criminals”;
- Screenshots of Wickfire’s ads impersonating TriMax’s;
- An e-mail from a merchant terminating TriMax after wrongly believing TriMax was the source of the impersonating ads;
- An e-mail from a merchant complaining that Wickfire violated trademark terms and plagiarized TriMax’s ads;
- A lengthy technical report that, according to a world-renowned computer expert, proves conclusively that Wickfire committed extensive click fraud against TriMax;
- A real-time video demonstrating the bid-jamming TriMax experienced;
- A summary of hundreds of TriMax’s merchant contracts interfered with by bid-jamming; and
- E-mails from other competitors of Wickfire complaining about Wickfire’s bidding tactics.
Despite the jury’s finding against Wickfire, Hall and Brown for intentional interference, no damages were awarded. A post-trial order reasoned the jury might have believed that Wickfire thought its bidding tactics did not violate Google policies. However, the jury was not permitted to see the actual Google policies at issue or hear testimony from the computer expert that Google’s policies prohibit gaming the AdWords auction.
TriMax also brought defamation claims against Wickfire, Chet Hall and Jonathan Brown for telling third parties that TriMax committed click fraud. TriMax denied the allegations. Among TriMax’s key exculpatory evidence was the testimony of a third-party suspect who, in response to a question about whether she committed click fraud, pleaded the Fifth Amendment. However, the jury was precluded from seeing additional evidence about this third party, including e-mails in which she used a false identity to communicate with Wickfire. The jury found Wickfire and its co-owners published the statements about TriMax, but again, failed to award TriMax any damages.
At trial, Wickfire received additional adverse rulings. The jury ruled against Wickfire on its request for damages on its claim for violation of the Lanham Act. The jury further ruled against Wickfire on its request for exemplary damages. Finally, Wickfire was denied its request for pre-judgment interest.
Prior to trial, Wickfire filed multiple discovery motions, which were dismissed, and a motion for summary judgment on TriMax’s claims, which was denied. Wickfire also brought claims against TriMax for injury to business reputation, business disparagement, defamation, unfair competition, and misappropriation. However, Wickfire dropped each of those claims prior to the start of trial.
TriMax will be appealing to the United States Court of Appeals for the Fifth Circuit and will be asking for, among other things, a new trial to determine the amount of damages resulting from the intentional interference the jury found Wickfire, Hall and Brown committed against TriMax.
Leading the charge for TriMax will be nationally-renowned appellate attorney, Sidney K. Powell. Ms. Powell was formerly an Assistant United States Attorney and is author of the groundbreaking book Licensed to Lie, an exposé on unethical attorney conduct and improper concealment of evidence. Ms. Powell has served as lead counsel in more than 500 appeals in the Fifth Circuit, resulting in more than 180 published opinions. Although statistically, the Fifth Circuit reverses only approximately 15% of its cases, Ms. Powell publishes a record of succeeding in reversing more than 70% of the cases in which she has represented and sought reversal.
TriMax’s CEO, Laura Woodruff, commented: “We’re thrilled Ms. Powell has agreed to lead the fight against Wickfire. Given Ms. Powell’s unmatched experience and record of accomplishment at the Fifth Circuit, along with the fact she only accepts few select cases, we have every reason to expect she will deliver a complete victory. Once the smoke clears, we are confident our efforts in this litigation will culminate in an award of damages to TriMax for the interference the jury found against Wickfire and TriMax’s complete exoneration as to Wickfire’s claims.”
About TriMax Media:
Founded in 2003, TriMax Media is a digital marketing agency specializing in performance-based search engine marketing. TriMax served on the first Google Advertiser Research Council and was one of the first companies to generate over one million leads for its clients utilizing Google AdWords. The agency focuses on creating highly effective search marketing campaigns and developing successful long‐term relationships with its clients.
Company Name: Miller, Egan, Molter & Nelson, LLP
Contact Person: Barry M. Golden
Country: United States