Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-00630-DME-MEH
NETQUOTE INC, a Colorado corporation,
BRANDON BYRD, an internet user making use of the IP Addresses 22.214.171.124 and
MOSTCHOICE.COM, Inc., a Georgia corporation
MOSTCHOICE.COM, INC.’S RESPONSE TO
PLAINTIFF NETQUOTE’S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Mostchoice.com, Inc. and herein files this its Response to Plaintiff’s
Motion for Summary Judgment and shows this Court the following:
I. Click Fraud as a Cause of Action
Netquote argues that its admitted “clicking” on Mostchoice’s paid advertisements does
not constitute fraud. In support of its motion, Netquote identified two cases that are inapposite.
These cases are Payday Advance Plus, Inc. v. Findwhat.com, Inc., 478 F. Supp. 2d 496
(D.N.Y. 2007) and Feldman v. Google, Inc., 513 F. Supp. 2d 229 (D. Pa. 2007). Neither
plaintiff actually pleaded a claim for fraud. In Findwhat, no claim for fraud was pleaded, but a
civil conspiracy claim was dismissed without prejudice to allow the plaintiff to re-plead a claim
for fraudulent concealment. In Feldman, the case was, similar to the claims against Findwhat, an
Netquote Inc. v. Byrd
Since Netquote is clearly aware of Mostchoice, Netquote’s employees could have simply
gone directly to the Mostchoice website located at www.mostchoice.com.
Deposition of Michael Levy Page 263 Lines 11-15
Page 2 of 6
action against an advertiser with whom the plaintiff had a contract. Feldman didn’t allege that
Google was involved in the click fraud at all.
Netquote concedes that “any . . .conduct that amounts to an assertion not in accordance
with the truth” may constitute a misrepresentation which supports a claim for fraud (Mot. at 6).
In this case, there is no dispute that