[maratc]

Note the text:

> It is undisputed that the plaintiff's IP address was forwarded to Google when the plaintiff visited the defendant's website.

In this context, "It is undisputed" does not mean "It is a truth universally acknowledged by everyone", but rather "there is no dispute between the defendant and the plaintiff that this happened; in the light of that non-disagreement, the court is not required to decide whether that happened or not, and will accept that as a fact".

So in this case, the defendant (as well as the plaintiff, of course) agreed that "the plaintiff's IP address was forwarded to Google when the plaintiff visited the defendant's website". If there was a place to bring forward this "agency argument", this was the place; however the defendant seems to have chosen not to bring it forward.

It may be because the defendant's lawyers are unprofessional and forgot; it may also be because they are professional and so they knew this argument would not hold.

P.S. see also https://news.ycombinator.com/item?id=30139489