A final pretrial conference is set for Oct. 19 in the multidistrict antitrust litigation involving the Google Play Store, said an order (docket 3:21-md-02981) signed Tuesday by U.S. District Judge James Donato for Northern California in San Francisco. Jury selection is to begin Nov. 6, said the order. Seventy plaintiffs in the consolidated cases, including three dozen states and D.C., allege Google monopolized the market for the distribution of Android mobile apps through the Google Play Store.
The U.S. District Court for Northern California in San Jose vacated Tuesday’s virtual status conference in FTC v. Meta less than an hour before the hearing’s 10 a.m. PST start time, according to a text-only clerk’s notice in docket 5:22-cv-4325. U.S. District Judge Edward Davila, in an order unsealed Friday, denied the FTC’s injunction to block Meta’s Within Unlimited buy (see 2302060007). He rejected for lack of sufficient evidence the FTC’s core actual and perceived potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated virtual-reality fitness apps. Also newly unsealed is Davila's Jan. 31 order granting the FTC's emergency motion to extend the temporary restraining order barring consummation of Meta's Within buy. The TRO was to have expired that evening. Tuesday's conference was to have discussed the status of the TRO. The TRO order enjoined Meta from consummating the Within transaction until after 11:59 p.m. PST Tuesday.
"In respect of the Court’s orders," said an FTC spokesperson Wednesday, the agency "is not in a position to comment at this time" about the apparent denial Tuesday by U.S. District Judge Edward Davila for Northern California of the commission's injunction to block Meta's Within Unlimited buy. Meta didn't respond to requests for comment. CCIA President Matt Schruers hailed the order, which remained under seal Wednesday afternoon. The court's ruling "is consistent with decades of legal precedent," said Schruers in a statement. "This decision will encourage innovation and investment by increasing legal certainty around technology transactions.” The court’s decision is sealed, so its reasoning is not being made public, "but the outcome is no surprise," blogged the Competitive Enterprise Institute Wednesday. "In opposing the purchase, the nation’s top consumer advocate is playing fortune teller and breaking with 40 years of antitrust precedent," said CEI. "While the agency should focus on consumer welfare, it has instead tried to meddle in a market that does not yet exist." A virtual status conference is set for Feb. 7 at 10 a.m. PST, apparently to discuss next steps after the injunction's denial, said a text-only clerk’s notice entry Tuesday (docket 5:22-CV-04325). Davila did sign an order late Tuesday granting the FTC’s emergency motion to extend the agency’s jointly stipulated temporary restraining order with Meta barring consummation of the Within transaction until the end of the first business day after Davila rules on the injunction (see 2301310042). The TRO was due to expire at 11:59 p.m. PST Tuesday. The FTC alternatively asked for a seven-day extension of the TRO to eliminate the need for another emergency motion should Davila deny the preliminary injunction. Davila’s order was also sealed, so it’s unknown which TRO option he chose.
The FTC filed a motion Tuesday for an “emergency extension” of its joint stipulated temporary restraining order that bars Meta from consummating its Within Unlimited buy until after 11:59 p.m. Pacific time on the first business day after the court rules on its motion for a preliminary injunction. In the alternative, the FTC requests a seven-day extension in the TRO, “which would eliminate the need for an additional immediate emergency motion in the event the Court denies the preliminary injunction,” said the motion (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The FTC asked U.S. District Judge Edward Davila to “issue this relief” before 11:59 p.m. PST Tuesday when the existing TRO was to expire. Doing so will preserve the status quo” until on the preliminary injunction “and the parties can determine their immediate next steps,” it said. Consummation of Meta's Within buy "will irreparably harm the FTC’s ability to obtain effective relief for the public at the conclusion of any further proceedings," said FTC Senior Trial Counsel Abby Dennis in a declaration accompanying the emergency motion. “Given the exigent circumstances” of the FTC’s emergency motion, “and that time is of the essence, the FTC could not meet and confer” with Meta before filing the motion and has sought Meta’s consent for extending the TRO, said Dennis. She gave no explanation why the agency let the expiring TRO go down to the wire.
It's now clear that Google has been “deliberately deleting” pertinent evidentiary chats for years, including throughout the Google Play Store antitrust litigation, said the various plaintiffs, including eight states, in their reply brief Friday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco. “At every step, Google has attempted to keep its misconduct from coming to light,” said the plaintiffs. Google’s “willful destruction” of documents deprived the plaintiffs of “critical evidence regarding agreements with potential competitors, changes to Google’s prices, and changes to its tie of Google Play Billing -- all critical issues in this litigation,” they said. “To make matters worse, the remedies Google proposes show that it does not take this issue seriously,” and would be “nothing more than a slap on the wrist,” they said. “Google cannot be allowed to get away with its spoliation.” Google and the plaintiffs “sharply disagree as to whether Google’s long-standing approach to chat preservation” is reasonable, said Google’s reply brief. If the court concludes the plaintiffs are right and Google got it wrong, “then the remedy must be limited to addressing the actual prejudice” shown by the plaintiffs, if any, it said. The plaintiffs “do not, and could not, claim that they were prejudiced by the loss of any chats sent before August 2020,” when Epic Games filed the first complaint in the consolidated actions, said Google. “Nor do they argue that this issue affected the tens of thousands of non-chat documents produced by Google that post-date August 2020 or the millions that pre-date August 2020.”
Verizon’s motion to dismiss the antitrust complaint of Midwest Cabinet Suppliers (see 2212290028), its former store fixtures provider, “references information from sources on the internet, that are NOT part of the pleadings in this action,” said Midwest’s response Friday (docket 3:22-cv-00493) in U.S. District Court for Western Kentucky in Louisville. Despite making 24 pages of argument and citing numerous authorities in its memorandum in support of its motion to dismiss, Verizon didn't make the “demonstration required” under case law for the court to grant the dismissal Verizon seeks, said Midwest. “Verizon attacks every point, or supposed lack thereof,” in the first amended complaint by referencing cases “with little or no factual similarities to the instant case,” it said. Such cases are all but meaningless to assist the court in determining if the first amended complaint “states a claim upon which relief can be granted,” it said. The court “should not grant any motion based on 24 pages of rambling, off point, gobbledygook,” said Midwest. “It is amazing that Verizon can go on for over 20 pages” trying to convince the court that Midwest failed to state a claim “based on a supposed vagueness” of the first amended complaint “by citing legal authorities that only seem to vaguely apply to its own motion,” it said. Midwest, the former supplier of retail store cabinets to a Verizon wireless reseller in Tennessee, alleges Verizon caused “significant damage” to its business when it forced the reseller to source its store fixtures from another supplier under an unlawful tying agreement (see 2210090003). Verizon’s motion to dismiss the lawsuit for failure to state a claim called Midwest’s allegations “meritless.”
The various plaintiffs in the Google Play Store antitrust litigation, including 38 states and D.C., want U.S. District Judge James Donato for Northern California to impose stiff but “appropriate” sanctions on Google if he finds the company flouted its obligations and destroyed evidence, they told the judge in a brief Tuesday (docket 3:21-cv-05227) responding to the judge’s questions about evidence preservation in the case. The plaintiffs allege Google systematically deleted internal Google Chat conversations and other instant messaging chats crucial to their arguments that Google's anticompetitive behavior harms consumers and app developers (see 2301090001). They further allege the deletions continued even well after Google knew the chats would be needed for evidence in discovery and at trial. They propose that Donato order preliminary and final jury instructions on Google’s “spoliation” and that he preclude Google from arguing the plaintiffs lack evidence on certain topics, they said. Donato’s jury instructions should inform jurors they “should presume that Chat messages Google destroyed would have been unfavorable to Google in this litigation,” they said. Google countered in its own brief Tuesday that any sanctions for destroying the chats “must be no greater than necessary to cure any prejudice” to the plaintiffs arising from the loss of those chats. “By contrast, remedies that would effectively foreclose Google from presenting a defense or that would be tantamount to an adverse inference or terminating sanction are unwarranted” under court rules and “inconsistent with due process,” said Google.
Appellant Global Tel-Link’s opening brief is due March 6 in its appeal of a lower court’s antitrust ruling in Smart Communications’ favor, said a briefing and scheduling order Tuesday (docket 22-3287) in the 3rd U.S. Circuit Court of Appeals. Smart alleges competitor GTL colluded with York County, Pennsylvania, prison authorities in an unlawful "exclusive dealing" arrangement when Smart tried to replace GTL as the prison's inmate calling services vendor (see 2212070047).
Canada’s Federal Court of Appeal dismissed Commissioner of Competition Matthew Boswell’s application to overturn the Competition Tribunal's decision and block Rogers Communications’ proposed merger with Shaw Communications and Shaw’s secondary divestiture of its Freedom Mobile subsidiary to Videotron. To render an order blocking the overall transaction, the tribunal “would have had to find that it would be likely to prevent or lessen competition substantially,” said the court’s opinion Tuesday. “In 413 tightly-written paragraphs, many full of detail,” the tribunal “did not so conclude,” it said. Rogers, Shaw and Videotron parent Quebecor “welcome this clear, unequivocal, and unanimous decision by the Federal Court of Appeal,” said the companies in a joint statement. They will continue to work with authorities “to secure the final approval needed to close the pro-competitive transactions and create a stronger fourth wireless carrier in Canada and a more formidable wireline competitor,” they said.
The claims brought by French-resident iOS developers alleging Apple willfully blocked competition in the market for iOS app-distribution and in-app purchase services (see 2212210037) are barred by the Foreign Trade Antitrust Improvements Act (FTAIA), and should be dismissed, argued Apple in a motion Friday (docket 4:22-cv-04437) in U.S. District Court for Northern California in Oakland. The claims based on “foreign-storefront sales by foreign app developers to foreign consumers are outside the reach of U.S. antitrust laws,” said Apple. The plaintiffs’ foreign-storefront sales claims “are clearly barred by the FTAIA,” and they don't plead “a plausible basis for an exception from the statute,” it said. Their arguments against applying the FTAIA to their claims are “unavailing,” it said.