Adware Class Action Suit Against ValueClick Continues

LOS ANGELES — A pair of class action lawsuits filed in April against Value Click, Inc., Commission Junction Inc. and Be Free has entered the discovery phase, setting up a legal battle with significant potential implications for adult affiliate programs and webmasters alike.

One of the lawsuits was filed by Commission Junction client Mireille Carrier in U.S. District Court in Los Angeles. Carrier alleged breach of contract, negligence and unfair business practices on the part of the defendants. A very similar lawsuit was filed in the same court by Settlement Recovery Center LLC, making the same claims.

In August, Judge Florence Marie-Cooper issued a decision granting in part and denying in part ValueClick’s motion to dismiss in both cases, dismissing the negligence claims while allowing the breach of contract and unfair business practices claims to move forward.

At their core, the lawsuit claims revolved around the assertion that ValueClick knowingly permitted adware distributors to participate in its program, and failed to consistently terminate those affiliate accounts for violating the terms of service of Commission Junction and other ValueClick programs — violations that allegedly included theft of commissions through overwriting cookies or otherwise taking credit for sales that properly should have been attributed to other ValueClick affiliates.

According to the lawsuit, one of the primary means by which adware distributors hijack traffic is through the practice of “cookie-stuffing.”

“Cookie-stuffing occurs when adware entices the end-user to click the adware affiliate link or automatically places a new cookie (i.e., forced click) on the enduser’s computer that identifies the adware affiliate,” Carrier stated in her lawsuit. “Because commissions are paid based on a ‘last cookie/click in’ basis, the adware affiliate gets credit for the commission.”

The lawsuit claimed that legitimate affiliates “suffer serious, and in many cases, irreversible losses from commission theft … Commission theft poses a direct threat to affiliates’ ability to stay in business.”

In its motion to dismiss the lawsuits, Value Click focused largely on the terms of its “publisher service agreement,” which Value Click claimed indemnified the company from liability for the actions of third parties.

“Each of the plaintiff’s claims are barred by the express terms of the [publisher service] agreement, which releases Commission Junction from liability for precisely the claims that plaintiff is making here,” Value Click argued in its motion to dismiss. “Courts repeatedly have dismissed claims — like those asserted by plaintiff here — that are based on the violation of an alleged duty that is expressly disclaimed in a voluntary agreement between the parties.”

Representing Carrier and other plaintiffs joining the class action is attorney Kasra P. Nassiri of the San Francisco law firm Nassiri & Jung. Nassiri told XBIZ that the last major development in the case was Marie-Cooper’s rulings in August that allowed the case to move ahead to the discovery phase.

Nassiri said that in cases like this, the outcome of a motion to dismiss hearing “doesn’t say much about who will ultimately prevail,” and amounts to a “gating mechanism for the judge to decide if there’s a case here.”

With respect to Value Click’s argument that its publisher service agreement indemnifies Value Click against the kind of claims made in the class action, Nassiri told XBIZ that “there are limits — you can’t indemnify yourself against everything.”

“You can’t disclaim the very service that you are contracting to provide,” Nassiri said. “You can’t promise to provide a service, and then have a disclaimer that lets you wiggle out of that promise.”

While the issues at hand involve highly technical areas of law, Nassiri said that the decision that eventually may be placed in the hands of a jury will not be terribly complicated.

“The nice thing about this is that ultimately it’s going to come down to common sense things,” Nassiri said. “It’s a good case for a jury; the real question is whether or not the parties to the contract got what they contracted for.”

Asked why the lawsuits target Value Click instead of the adware distributors directly, Nassiri said that going after Value Click was simply the direction his clients wanted to take, and added that lawsuits directed specifically at the adware distributors could also be effective.

”By going after Value Click, Commission Junction and Be Free, we’re not saying that those [adware] parties aren’t culpable, as well,” Nassiri said. “I think that they are.”

Nassiri noted that trademark law is arguably “broadly applicable to online advertising,” and said that plaintiffs have been pursuing legal strategies based on trademark claims for years.

“Is it a viable legal theory? The jury is still out on that, I think,” Nassiri said.

XBIZ was unable to reach representatives of Value Click for comment by press time.

For more information on the class action lawsuits filed against Value Click, go to CJClassAction.com

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

FSC Unpacks SCOTUS Age Verification Ruling in Webinar

The Free Speech Coalition conducted a public webinar Tuesday to help adult industry stakeholders understand the Supreme Court’s recent decision in FSC v. Paxton, and its potential implications.

UK Lawmaker Calls for Appointment of 'Porn Minister'

Baroness Gabrielle Bertin, the Conservative member of Parliament who recently convened a new anti-pornography task force, is calling for the appointment of a “minister for porn,” according to British news outlet The Guardian.

FSC Toasts Jeffrey Douglas for 30 Years of Service

n the very same evening when the adult industry was hit hard by the Supreme Court ruling supporting Texas’ controversial age verification law, HB 1181, members of the Free Speech Coalition board, staff and supporters gathered to celebrate Jeffrey Douglas’ 30 years as board chair — a fitting reflection of his reputation as an eternal optimist.

TTS Opens UK Testing Location

Talent Testing Service (TTS) has opened a new U.K. location in Ware, Hertfordshire.

FSC: Age-Verification Laws Go Into Effect South Dakota, Georgia, Wyoming on July 1

The Free Speech Coalition (FSC) has published a statement regarding new age verification laws set to go into effect tomorrow in South Dakota, Georgia, and Wyoming.

FSC Responds to Supreme Court Decision on Texas AV Law

The Free Speech Coalition (FSC) has released a statement responding to last week's Supreme Court decision on FSC v. Paxton, the Texas age verification law.

Sex Work CEO Debuts Upgraded 'GPTease' AI Assistant

Sex Work CEO has introduced the new Canvas in-chat editing feature to its AI-powered, NSFW text generator, GPTease.

UPDATED: Supreme Court Rules Against Adult Industry in Pivotal Texas AV Case

The U.S. Supreme Court on Friday issued its decision in Free Speech Coalition v. Paxton, striking a blow against the online adult industry by ruling in support of Texas’ controversial age verification law, HB 1181.

North Carolina Passes Extreme Bill Targeting Adult Sites

The North Carolina state legislature this week ratified a bill that would impose new regulations that industry observers have warned could push adult websites and platforms to ban most adult creators and content.

Supreme Court Ruling Due Friday in FSC v. Paxton AV Case

The U.S. Supreme Court will rule on Friday in Free Speech Coalition v. Paxton, the adult industry trade association's challenge to Texas’ controversial age verification law, HB 1181.

Show More