A few months ago, a lawyer asked me to set up a moot court for him. He had just received a notice that the 9th Circuit had scheduled oral argument in his appeal. He had brought a class action against Google on behalf of advertisers seeking restitution, claiming that Google had charged them for placing ads on inferior Google sites (“parked domains” and “error pages”) without their consent. But the trial court had refused to certify the class, ruling that the individual questions of how much each class member should receive would outweigh the common question of whether Google had committed unfair competition.
I set up the moot court, bringing in retired U.S. District Court Judge Marilyn Patel and former 9th Circuit law clerk Josh Benson to sit on the panel with me.
Only the lawyer who called me argued. We grilled him for 30 minutes, and then held a feedback session. Each of the "Judges" gave him our ideas for improving his chance of winning.
It worked. The 9th Circuit reversed. See Pulaski & Middleman, LLC v. Google, Inc., F.3d. , 2015 WL 5515617 (9th Cir., 9/15/15). The Court held that in this situation, it was not difficult to determine how much restitution each advertiser would receive, so that question did not predominate over the liability question.
Moskovitz Appellate Team has several former appellate judges and law clerks available for moot courts.
by M.A.T. Legal Director Myron Moskovitz