Trial in the consolidated antitrust cases brought by DOJ and 48 states alleging Google monopolies in search services and advertising will begin Sept. 12 with the parties’ opening statements and the start of the DOJ plaintiffs’ case-in-chief, said U.S. District Judge Amit Mehta for the District of Columbia in a signed order Friday (docket 1:20-cv-03010). The states’ case-in-chief will begin on or about Oct. 9, Google’s on or about Oct. 25, said the order.
The Computer & Communications Industry Association reacted with scorn Thursday to reports the FTC is expected to sue Amazon to break Amazon Prime’s free two-day shipping and force divestiture of the company’s logistics critical to the business model that enables small and medium-sized sellers to sell through Amazon’s store. The FTC is expected to allege Amazon leverages its position to reward online merchants that use its logistics services and punish those that don’t, said CCIA. “It’s difficult to understand why at a time when Americans are frustrated with rising prices, the FTC is prioritizing a case against a service that consumers love, which enables small and medium-sized sellers to reach customers worldwide,” said CCIA President Matt Schruers in a statement. “What has given the U.S. a more competitive tech industry that benefits consumers and lowers prices has been a legal and regulatory framework that focuses on how companies’ actions impact consumers -- not other would-be competitors," he said. Consumers complain of high prices for prescription drugs, food and gas, digital goods and services, but they're “getting more affordable all the time, with many offering free products and free shipping,” he said. “Consumers are best served when regulators focus on consumer harm, and in industries where prices are high due to lack of competition.” The FTC, in an email, declined comment. Amazon didn't respond to a query. The FTC’s June 21 lawsuit alleged Amazon “has knowingly duped” millions of consumers for years into “unknowingly enrolling” in Amazon Prime, in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (see 2306210064).
Non-settling defendants in the long-running Local TV Advertising Antitrust Litigation (MDL No. 2867) moved the court to reconsider, vacate and/or stay orders on preliminary approval of settlements and notice, in a Wednesday filing (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. They also moved the court for an order staying dissemination of notice to the settlement classes until the court has given non-settling defendants a chance to be heard on plaintiffs’ motion for preliminary approval of the proposed settlements. CBS, Fox, Cox Media and ShareBuilders agreed in May to a $48 million settlement with advertisers in the lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal (see 2305300073). The non-settling defendants -- Tegna, Griffin Communications, Meredith, Sinclair, Gray Media, E.W. Scripps, Nexstar Media and Tribune Broadcasting -- don’t oppose the “substance” of the partial settlements; they oppose certain aspects of the proposed notice process, recipients of the proposed notice and the content of the notices. The process didn't involve "the level of scrutiny required by the Federal Rules and did not permit affected parties, including Non-Settling Defendants, to raise with the Court their objections to the settlement class definition and notice plan that would cause them harm,” it said. The notice order should be vacated and the proposed notice amended to clarify that non-settling defendants “have not been adjudged to have participated in an antitrust conspiracy,” it said. The court should stay preliminary approval proceedings and dissemination of notice until after briefing and a hearing on plaintiffs’ motion for preliminary approval of the four proposed settlements, it said. In a separate filing, Tegna, Raycom (now Gray Media) and Meredith moved the court to reconsider and vacate the portion of its order that compels them to turn over their customer contact information to plaintiffs’ counsel “without any restriction or limitation on its use.”
Gannett's lawsuit against Google was accepted as a related case in Google Digital Advertising Antitrust Litigation in U.S. District Court for Southern New York in Manhattan, said U.S. District Judge Kevin Castel's Thursday order (21-md-3010). Gannett v. Google will be coordinated for pretrial proceedings with the multidistrict litigation and is subject to all existing and future orders and schedules of the New York district court entered in the MDL without prejudice to its right to seek certain modifications appropriate to its circumstance, said the order. Gannett sued Google Tuesday (see 2306220028) for antitrust violations in its digital advertising business. Gannett alleges Google manipulates “real-time bidding,” monopolizes publisher ad serving, “abuses” the Google DoubleClick for Publishers (DFP) ad platform to monopolize the market for ad exchanges, manipulates DFP to “artificially deflate bids from rival exchanges” and eliminates price floors while imposing unified pricing rules.
Plaintiffs in Local TV Advertising Antitrust Litigation entered into four separate proposed settlements, said a Wednesday order (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. U.S. District Judge Virginia Kendall approved preliminary settlements with CBS, Fox, Cox Media and ShareBuilders. Defendants CBS, Fox, the Cox Entities and data-tracking firm ShareBuilders agreed last month (see 2305300073) to a $48 million settlement with advertisers in the long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal (see 2306120057). In the settlement, Cox, CBS and Fox agreed to provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, including Nexstar, Sinclair and Gray. The agreements were arrived at by “arm’s-length negotiations by highly experienced counsel,” meet all factors under Federal Rule of Civil Procedure 23(a), 23(b)(3), and 23(e), and will likely be granted final approval by the court, Kendall said. The court appointed attorney Megan Jones of Hausfeld as settlement class counsel. Plaintiffs One Source Heating & Cooling, ThoughtWorx, Hunt Adkins and Fish Furniture will be class representatives for the settlement classes.
A district court’s order granting class certification in Mary Carr v. Google violates Article III and the due process clause, said an amicus brief (docket 23-15285) on behalf of Google co-filed by The Computer & Communications Industry Association (CCIA) and the International Association of Defense Counsel in the 9th U.S. Circuit Court of Appeals Thursday. 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 (see 2302280042). The class of 21 million consumers seeks $4.7 billion in damages for purchases at Google Play. The U.S. District Court for the Northern District of California's ruling established a plaintiff class that likely includes “a significant proportion of uninjured parties,” said the brief. “Unless district courts employ credible models and direct evidence to make class-wide determinations, they will inevitably pull in larger and larger swaths of uninjured class members as innovative technologies continue to proliferate and class actions become more expansive,” it said. “Certifying improperly inflated classes could have far-reaching consequences for innovation, if digital services become easy targets for large class actions, and for the legal system which will be grossly overburdened with spurious lawsuits,” said CCIA Chief of Staff Stephanie Joyce in a Thursday news release, urging that “appropriately stringent analysis be conducted here and on all future requests for class treatment.” In another amicus brief, Google lead attorney Michael Hamburger of White & Case, on behalf of business professors and professors of antitrust law, said the district court “failed to rigorously analyze the evidence at class certification” resulting in “millions of consumers based on a record that does not establish injury on a class-wide basis.” The lower court failed to account for real-world evidence showing most putative class members “were uninjured,” and its order should be vacated, it said. The district court "ignored that app developers use focal-point pricing," such as prices ending in 99 cents, it said. "As a result, the small rate changes plaintiffs claim would exist in a but-for world likely would not be passed on unless developers abandoned this practice," but no evidence suggested developers would abandon focal-point pricing, it said. Also, the brief said, the district court certified the class "without addressing other cases in the Northern District of California that denied certification because of focal-point pricing," including an analogous case involving allegations Apple's fees to developers were excessive on its app store.
U.S. District Judge Edward Davila for Northern California in San Francisco granted the FTC’s motion for a temporary restraining order enjoining Microsoft from consummating its Activision Blizzard buy (see 2306130033), said his signed order Tuesday (docket 3:23-cv-02880) on behalf of U.S. District Judge Jacqueline Scott Corley, who was assigned the case. The TRO is necessary “to maintain the status quo” while the FTC’s complaint against Microsoft and Activision is pending, said the order. It also preserves the court’s ability “to order effective relief in the event it determines a preliminary injunction is warranted,” it said. The TRO will preserve the FTC’s ability “to obtain an effective permanent remedy in the event that it prevails in its pending administrative proceeding,” it said. Microsoft and Activision are enjoined from completing their proposed transaction until after 11:59 p.m. Pacific time on the fifth business day after the court rules on the FTC’s request for a preliminary injunction, it said. The order sets a June 22-23 evidentiary hearing on the FTC’s motion for a preliminary injunction before Corley. Microsoft and Activision will submit their brief in opposition to the motion for preliminary injunction by the close of business Friday, and the FTC’s reply is due June 20 by noon PDT, it said.
Advertiser plaintiffs in a long-running antitrust lawsuit against media companies moved the court to appoint JND Legal Administration as the settlement administrator to provide notice and settlements to members of proposed settlement classes and to approve the means and form of notice, said their motion (docket 1:18-cv-06785) Friday in U.S. District Court for Northern Illinois in Chicago. They also seek to order defendants Tegna, Gray Media Group and Meredith to produce customer contact information. Defendants CBS, Fox, the Cox Entities and data tracking firm ShareBuilders agreed last month (see 2305300073) to a $48 million settlement with advertisers in the long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal. Under the settlement, Cox, CBS and Fox agreed to provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, including Nexstar, Sinclair and Gray. On May 26, plaintiffs filed a motion for preliminary approval of the settlements in which plaintiffs sought certification of four settlement classes, one for each settling defendant. Plaintiffs now seek approval of the proposed notice program, expected to be directed to all putative members of the settlement classes, that will be supplemented by a media campaign, the filing said. The notice documents will contain “easy-to-read” settlement summaries and instructions on how to get more information, said the motion. Tegna, Raycom and Meredith have declined to produce customer contact information necessary to facilitate the notice program, the motion said. Their primary objection was that it was premature prior to plaintiffs’ seeking approval of settlements. With that objection now “mooted... there is no reason to delay entering an order compelling the production of this necessary information.”
The antitrust bar being especially lacking in diversity is problematic, said Elizabeth Wilkins, chief of staff to FTC Chair Lina Khan, Thursday at an FCBA Diversity Pipeline event. She said the agency has been thinking about diverse recruitment issues for its staff, with pipeline programs like the FCBA's being an important tool. Keynoting at the event, American Association of Public Broadband Executive Director Gigi Sohn discussed her career and alluded to but didn't directly discuss her failed nomination for FCC commissioner.
The plaintiffs’ opposition to Google’s April 20 motion for partial summary judgment in the consolidated Google Play store antitrust litigation doesn’t identify “any material fact in dispute, and this Court accordingly need decide only pure legal issues,” said Google’s reply Thursday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco in support of its motion. The plaintiffs “ignore or misconstrue” governing antitrust law in an effort to save their “flawed claims,” and the “relevant precedent” makes clear that Google is entitled to summary judgment on each ground it has raised in its “targeted motion,” it said. The plaintiffs’ claim that Google must distribute rival app stores is “baseless,” said the reply. Google’s decision not to distribute rival app stores through the Google Play store is lawful, and courts already correctly rejected the plaintiffs’ theory that this decision “becomes unlawful merely because it is combined with other conduct,” it said. The plaintiffs’ claims based on Google’s revenue-sharing agreements with the wireless carriers are “time-barred,” said the reply. There’s no dispute those agreements “ended outside of the limitations period,” it said. Precedent makes clear that the plaintiffs can’t use “later conduct within the limitations period as a bootstrap to recover for supposed injuries from those early agreements,” it said. All of the plaintiffs’ claims for damages from subscriptions and in-app purchases fail “because antitrust law requires plaintiffs to have suffered injury in the market where competition is allegedly restrained,” it said. But the plaintiffs’ own experts demonstrate that the plaintiffs can’t “satisfy that requirement,” it said.