U.S. District Court Judge Edward Davila for Northern California granted in its entirety Meta’s administrative motion to keep an unredacted version of its proposed post-hearing findings of fact and conclusions of law under seal, said a Wednesday order (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The order involves information from nonparties including Alphabet, Apple, ByteDance, Eric Janszen, Equinox, HTC, Lululemon, Peloton, Sony and Valve in the FTC's antitrust case against Meta to block its acquisition of virtual-reality company Within Unlimited (see 2302060007). In February, Davila ruled the agency failed “to establish a likelihood that it would ultimately succeed on the merits” of its antitrust claims, in a heavily redacted order that was unsealed and released. Davila rejected for lack of evidence the FTC’s potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated VR fitness apps. Meta bought the VR company last month.
Google wants U.S. District Judge Kevin Castel for Southern New York to deny plaintiff Inform’s Feb. 28 motion for leave to amend its digital advertising antitrust complaint against for a second time, Google wrote the judge in a letter Wednesday (docket 1:21-md-03010). The Inform action was recently transferred to Castel with the related multidistrict litigation cases because Inform “opportunistically delayed seeking MDL treatment," it said. Despite referencing ad servers in its original 2019 complaint, Inform never sought transfer to Castel for consolidation with the other MDL cases “during the more than three years that its case was pending” in U.S. District Court for Northern Georgia in Atlanta, said Google. Inform instead opposed Google’s motion to dismiss and amended its complaint once in that court, it said. “Google’s most recently filed motion to dismiss Inform’s amended complaint remains pending, and Inform’s request to amend seeks to moot that motion.” It appears that Inform views transfer to the MDL “as an opportunity to start over with a third complaint,” it said. Inform’s two complaints “had little to do with ad tech other than a few stray paragraphs containing allegations wholly unconnected to Inform and its supposed harm,” said Google. Inform’s motion for leave is a request “for a second do-over to give Inform a chance to copy-and-paste more irrelevant allegations into its already rambling complaint,” it said. Castel “should reject it and allow Google’s pending motion to dismiss to proceed,” it said.
Qualcomm denies the allegations in a second amended consolidated antitrust class action that it acquired or maintained “monopoly power” in the market for smartphone baseband processors, and that its conduct “was lawful, pro-competitive, and based on legitimate business and economic justifications,” said its answer Monday (docket 3:17-md-02773) in U.S. District Court for Northern California in San Francisco. The plaintiffs are four California consumers who allege Qualcomm exploited its position as the dominant global provider of modem chips, and allege the costs of its unlawful conduct were then passed on to consumers via inflated smartphone prices. Qualcomm also denies it entered into illegal tying agreements “that unreasonably restrained trade,” said its answer. The plaintiffs aren’t entitled to injunctive relief “on conduct that occurred solely in the past,” it said. Theirs “are not properly maintainable as a class action,” because the plaintiffs and members of the proposed class “waived such treatment in agreeing to binding individual arbitration,” it said.
Google failed to demonstrate why its preference to litigate the DOJ’s digital advertising antitrust case (docket 1:23-cv-108) in the Southern District of New York should "disturb the deference" given to the plaintiffs’ chosen forum in U.S. District Court for Eastern Virginia in Alexandria, said plaintiffs’ Friday motion to deny. Google asked to transfer the case to the Southern District of New York, where it could be coordinated with Multidistrict Litigation No. 3010. In August 2021, the Judicial Panel on Multidistrict Litigation consolidated more than two dozen antitrust cases against Google for pretrial proceedings into a single MDL. Google’s request should be denied because it “subverts the unambiguous intent” behind DOJ’s statutory exemption from MDL consolidation, said U.S. Attorney Jessica Aber and Virginia Attorney General Jason Miyares (R). Though coordinating the case with the MDL “may provide some efficiencies, Congress made the decision to subordinate any such efficiencies in favor of providing the United States, and now state attorneys general, the ability to vindicate antitrust matters expeditiously, and in their chosen forum,” they said. Despite related claims and facts, “Congress’ declared policy” of expeditious governmental enforcement of the antitrust laws supports keeping this case in this District, unencumbered by inclusion in an MDL or coordination with private actions.”
The 9th U.S. Circuit Court of Appeals granted Google’s petition for permission to appeal a lower court’s November class action certification order in an antitrust case on the Google Play store, said a Tuesday motion for leave to file a reply in support of the petition (docket 22-80140). The main issue at class certification was whether the plaintiffs had a model that could show Article III injury on a classwide basis, said the motion. Plaintiff Mary Carr alleges Google created a monopoly by erecting contractual and technological barriers that prevented Android users from using app distribution platforms other than the Google Play store. The class of 21 million consumers seek $4.7 billion in damages related to purchases at Google Play. With more competition, Google would have charged developers lower service fees, and developers would have responded by lowering their products’ prices, said the plaintiffs’ theory of injury. “Real-world data shows this almost never happens,” said the 9th Circuit’s Dec. 9 petition for review of an order granting class certification, saying developers, who also sued Google, offered evidence that only 8% of developers would have lowered prices in response to a lower service fee, meaning most of the class is “uninjured.” The U.S. District Court for Northern California’s certification order raised three open questions that merited review, and the court “manifestly erred in addressing each one.” The court failed to do rigorous analysis of injury, acknowledging there are individualized issues about injury but not analyzing what they were or whether they prevented class certification, said the petition. The court faulted Google’s evidence of uninjured class members rather than analyzing whether plaintiffs’ model “met their burden to show classwide impact.” Second, the court relied on an injury model that doesn't account for individualized differences between class members that affect whether they suffered injury, it said. Third, the court concluded that individualized issues on damages can never prevent class certification. The 9th Circuit should grant the petition “to give much-needed guidance on these key questions and reverse the District Court’s erroneous rulings.”
U.S. District Judge Leonie Brinkema for Eastern Virginia in Alexandria set a March 10 hearing for 10 a.m. EST on Google’s Feb. 17 motion to transfer DOJ’s antitrust complaint to the Southern District of New York, said a text-only entry Thursday (docket 1:23-cv-00108). Google wants DOJ’s complaint consolidated in SDNY with the other 19 cases sent there in 2021 by the U.S. Judicial Panel on Multidistrict Litigation. Google called DOJ’s lawsuit just another in a series of “copycat” actions challenging “the size and success” of Google’s advertising technology business under the Sherman Act (see 2302230005).
The California Office of the Attorney General “has not validly alleged the existence of any per se unlawful price fixing agreements or agreements tampering with price structures” at Amazon, said Amazon’s Feb. 21 reply brief (docket CGC-22-601826) in support of its demurrer to the OAG’s complaint in San Francisco County Superior Court. The challenged policies “bear none of the forbidden traits that render those practices per se illegal, and do not resemble the conduct at issue in the cases cited” in the OAG’s opposition, it said. A marketplace announcing to its third-party sellers that it prohibits price gouging, price-fixing and other kinds of customer abuse “directly encourages open competition among third party sellers and thereby makes the marketplace more competitive against myriad other retail competitors,” said Amazon. The OAG’s argument that Amazon requires third-party sellers to boycott other retailers is “baseless,” it said. It cites allegations that it says show some third-party retailers withheld their products from competing online retailers, or supplied them conditioned on adherence to minimum advertised/resale prices, it said: “But none of the cited paragraphs identifies any conduct of Amazon that forces or requires sellers to take any such actions, or that these sellers have agreed to cease doing business with anyone.” A hearing on Amazon’s Dec. 6 demurrer to the OAG complaint is set for March 7 (see 2212160020). A demurrer under California law argues a complaint should be dismissed because it fails to assert facts sufficient to support a cause of action.
Google asked the U.S. District Court for Eastern Virginia in Alexandria to convene a March 10 hearing at 10 a.m. on its Feb. 17 motion to transfer DOJ’s antitrust complaint to the Southern District of New York, said its notice Wednesday (docket 1:23-cv-00108). DOJ agreed to the hearing date, said the notice. DOJ’s Jan. 24 complaint is just another in a series of “copycat” actions challenging “the size and success” of Google’s advertising technology business under the Sherman Act, said the motion to transfer. DOJ’s case “is the only ad tech challenge pending outside the Southern District of New York, it said. The U.S. Judicial Panel on Multidistrict Litigation in August 2021 transferred all 19 then-pending state and private ad tech antitrust cases to Manhattan and assigned them to U.S. District Judge Kevin Castel “for coordinated or consolidated pretrial proceedings,” it said: “By filing suit in another district, the DOJ does not merely risk the prospect of inconsistent judgments, it actively courts it.”
The state plaintiffs in the Google digital advertising antitrust multidistrict litigation seek leave to amend their state law Deceptive Trade Practices Act (DTPA) claims, which have been stayed since the formation of the MDL, they requested by letter Thursday (docket 1:21-md-03010) to U.S. District Judge Kevin Castel for Southern New York. The state plaintiffs haven't had a chance to amend their state law claims in this MDL, and “justice requires that they be given leave” to amend, “so they may put their best foot forward with respect to those claims,” they said. Amending the states’ DTPA claims “is a significantly more complicated task than amending federal antitrust claims,” they told the judge. Federal claims are common across all states, the plaintiffs said, but there are “17 sovereigns which need to be involved in any amendment of state law claims, and there are variations between the different DTPAs which need to be accounted for in any amendment.”
French-resident and all iOS developers “enrich Apple greatly, both by enabling it to sell more expensive hardware and by paying it super-high fees in order to get their digital products to end users,” said individual developers Figaro and L’Equipe, plus Le Geste, an association of publishers of online content and services, in an opposition Friday (docket 4:22-cv-04437) in US. District Court for Northern California in Oakland to Apple’s motion to dismiss their Dec. 2 first amended complaint (see 2212210037). Yet Apple “resorts to calling plaintiffs ‘opportunists’ for having the audacity to challenge its anticompetitive abuses” in the Northern California forum, and under the U.S. and California laws, “that Apple chose to govern disputes,” said the developers. As the plaintiffs allege, Apple’s anticompetitive behavior “affected U.S. commerce and trade directly, which in turn led directly to plaintiffs’ injuries, given their participation in U.S. domestic commerce,” they said. “Accordingly, U.S. antitrust law properly applies to the anticompetitive acts and injuries alleged.” The developers have “properly alleged monetary injury giving rise to restitution,” under California’s Unfair Competition Law, they said. “Accordingly, their UCL claims are not subject to dismissal, particularly at this stage of the case.”