U.S. Magistrate Judge John Anderson set a motion hearing, if it's necessary, for June 15 on DOJ’s motion to compel production of successor-custodian documents and relevant source code in DOJ’s antitrust lawsuit against Google over its digital advertising business, said his Tuesday order (1:23-cv-00108) in the U.S. District Court for Virginia in Alexandria. At a June 2 hearing, the parties said they had resolved a dispute over successor-custodian documents and a portion of the remaining issues in the pending motion. Anderson deferred ruling on the remaining issues and asked the parties to continue efforts to resolve remaining issues, with a status report due Tuesday.
The court should deny plaintiffs’ motion to compel Nexstar to produce any white papers sent to the DOJ in connection with the agency’s investigation into exchanges of pacing information or its investigation of the Sinclair/Tribune merger, said its opposition (docket 1:18-cv-06785) to DOJ’s discovery motion 21 Tuesday in U.S. District Court for Northern Illinois in Chicago. Plaintiffs “knowingly misstate the facts,” including the parties’ longstanding agreement on the scope of discovery, it said. Plaintiffs knew before they filed their motion that Nexstar didn’t submit any white papers to the DOJ in connection with the pacing investigation, but they “egregiously omit this critical fact” in their motion to “wrongly depict Nexstar as uncooperative and as withholding relevant documents,” it said. The motion is “extremely untimely” since the deadline for filing motions to compel passed nine months ago, it said. “Plaintiffs have known for years that the discovery agreement they knowingly reached with Nexstar did not capture the documents they now seek,” Nexstar said. In an effort to resolve the dispute, Nexstar produced a letter on May 11 that Tribune submitted to DOJ in 1996 explaining why the exchange of pacing information in the Los Angeles DMA did not violate the antitrust laws, it said. The parties further agreed Nexstar “would not produce its correspondence with DOJ, the search terms used with the DOJ, and custodial documents produced in connection with the merger investigation that did not hit on agreed-upon search terms,” it said. Cox, CBS and Fox agreed last month (see 2305300073) to a $48 million settlement with advertisers in a 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 will provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, such as Nexstar, Sinclair and Gray Television. The settling defendants will provide “meaningful cooperation, which will assist Plaintiffs in the prosecution of their claims against the Non-Settling Defendants,” said local advertiser plaintiffs’ May motion for preliminary approval of settlements.
After six “meet-and-confers” over the past two months, and with 36 days left before Google’s document production deadline, DOJ has been unable to secure the defendant’s agreement to produce relevant documents from successor custodians or critical source code documents underlying key allegations in DOJ’s amended complaint in an antitrust lawsuit over Google’s digital advertising business. So stated DOJ’s Thursday reply (docket 1:23-cv-00108) to Google’s memorandum of law in opposition to its motion to compel production of the documents in U.S. District Court for Virginia in Alexandria, Despite “ample notice,” Google waited until the afternoon DOJ’s brief was due to provide its most detailed response to its repeated requests, said DOJ in a motion to compel Google to produce certain documents. The addition of successor custodians to Google’s document searches is necessary to ensure a “complete production of relevant documents” for the time period covered in the amended complaint, and DOJ’s need for three remaining source code categories are necessary to reveal how Google’s algorithms work, it said.
Allegations that “productive” negotiations between Smart Communications and York County, Pennsylvania, “fizzled out” after derogatory comments from rival Global Tel-Link “are more than sufficient to satisfy the fifth element of the tort,” said plaintiff/appellant Smart in a Wednesday reply brief (docket 22-3287) in the 3rd U.S. Circuit Court of Appeals. Smart is appealing the Nov. 1 decision of the U.S. District Court for Middle Pennsylvania in Harrisburg to dismiss Smart’s antitrust lawsuit against Global Tel-Link for failure to state a claim. In her Nov. 1 memorandum, Judge Jennifer Wilson compared Smart’s cross-referencing of counts in the unfair competition claim to a “potentially endless loop of circular logic" reminiscent of actor Wallace Shawn’s monologue “analyzing how to determine the poisoned goblet” in the film A Princess Bride. In its reply brief, Smart said whether its unfair competition claim was “duplicative” of its tortious interference claim “is of no moment.” A party is allowed “to assert multiple claims based on the same facts -- indeed, it must do so to avoid res judicata.” Smart alleged Global Tel-Link defamed it by telling York County officials if the prison replaced its phone equipment with Smarts’, it would exercise its right to seize Smarts’ equipment based on a judgment it had against a company from which Smart acquired licensing rights. The plaintiff also said Global Tel-Link told county officials Smart was infringing its patents and Global would sue Smart and obtain an injunction to prohibit it from providing services that were part of its proposal. “Both are actionable statements,” Smart said. The 3rd Circuit should reverse the district court’s dismissal of counts I (violation of the Sherman Act), II (tortious interference) and III (unfair competition) of the complaint and remand for further proceedings, Smart said.
A hearing is set for Aug. 3 in Google’s app store monopoly case, said the U.S. District Court for Northern California in San Francisco Wednesday in docket 3:21-md-02981 (see 2303290001). Judge James Donato signed off on a 10 a.m. hearing on the parties' summary judgment and Daubert motions. A concurrent expert proceeding for merits experts is set for 10 a.m. Aug. 1.
The U.S. District Court for Southern New York in Manhattan scheduled a dial-in pre-motion teleconference for May 31 at 12:15 p.m. EDT on Nexstar’s forthcoming motion to dismiss DirecTV’s antitrust complaint, said a text-only docket entry Monday (docket 1:23-cv-02221). DirecTV’s litigation accusing Nexstar and its broadcast sidecars Mission and White Knight of colluding to set retransmission consent fee prices (see 2303150041) should be dismissed for multiple reasons, Nexstar wrote U.S. District Judge Paul Crotty in a letter Friday requesting the pre-motion conference (see 2305210001). DirecTV alleges the broadcasters' “unlawful price-fixing conspiracy” is the root cause of unsuccessful retrans talks with Mission and White Knight resulting in blackouts.
Google, for nearly 15 years, “deployed a web of unlawful anticompetitive practices to monopolize the markets for Android app distribution and in-app payment solutions,” said the plaintiffs in the consolidated Google Play Store litigation in their opposition Friday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco to Google’s April 20 motion for partial summary judgment. The conduct included “exclusivity and preferred payment arrangements” with OEMs and payments to wireless carriers “to disincentivize them from launching or supporting competing app stores,” it said. The company ensured Google Play “is the only viable way to distribute apps on Android, it said. Through its unlawful “tie,” Google forced consumers and developers to use Google Play Billing for all in-app sales and purchases of digital content in those apps, it said. The plaintiffs “will prove all that at trial,” it said. Google now attempts to prevent the jury “from learning the full scope and history of its scheme” under the guise of a targeted motion, it said. But a complex antitrust case seldom contains a pure issue of law with no genuine dispute of fact, and this case “is no exception,” it said. Google’s motion “rests on disputed facts and incorrect statements of law,” it said: “All five of its arguments for summary judgment fail.”
The April 27 decision at the U.S. Appeals Court for the D.C. Circuit that attorneys general in New York and more than 45 states waited too long to bring an antitrust lawsuit against Meta for alleged anticompetitive conduct in its Instagram and WhatsApp buys (see 2304270038) is “pertinent supplemental authority on a crucial issue” to the defense in which seven consumer plaintiffs seek to vacate T-Mobile’s 2020 Sprint buy on antitrust grounds (see 2212060052). So said Tuesday’s response (docket 1:22-cv-03189) from defendants T-Mobile and SoftBank in U.S. District Court for Northern Illinois in Chicago. The D.C. Circuit decision confirms that laches bars the plaintiffs’ claim for injunctive relief, they said. On Meta’s successful undue delay claim, the D.C. Circuit didn’t view the four-year antitrust statute of limitations as “controlling,” as the plaintiffs against T-Mobile and SoftBank assert, said the response. As for Meta’s prejudice defense, the D.C. Circuit likewise agreed with T-Mobile and SoftBank that the severe consequences attending divestiture after a completed merger result in prejudice to the defendant, it said. The D.C. Circuit pointed specifically to the harm arising from breaking up a combined entity, it said. The plaintiffs’ contention that T-Mobile and SoftBank wouldn’t be similarly harmed if T-Mobile’s Sprint buy is vacated “is belied by their own allegations that Sprint’s operations have been integrated with T-Mobile’s since day one,” it said.
Apple’s recent victory before the 9th U.S. Circuit Court of Appeals could renew efforts to regulate dominant app store owners (see 2304250055), but Congress shouldn’t rush legislation without fully understanding the consumer implications, said Jeffrey Westling, American Action Forum director-technology and innovation, Wednesday. Some lawmakers cited Apple’s App Store “exclusivity and fees as examples of anticompetitive practices that should be outlawed regardless of any pro-consumer benefits,” said Westling. He noted calls for passage of the Open App Markets Act after the 9th Circuit decision. Congress “would benefit from more data about the relative costs and benefits of such reforms, which it could glean from Europe’s own recently enacted legislation to regulate practices it deems anticompetitive,” he said.
Chief U.S. District Judge James Boasberg for the District of Columbia signed a memorandum opinion Wednesday (docket 1:20-cv-03590) granting “only in part” the FTC’s motion to compel Meta to produce “further supplemental answers” to 14 agency interrogatories and their subsections. The FTC’s antitrust case alleges Meta unlawfully maintained a monopoly over the market for personal social network services by acquiring competitors and potential competitors, specifically Instagram and WhatsApp. At issue in the motion to compel is the additional information that the FTC seeks into Meta’s assertions that the Instagram and WhatsApp buys resulted in procompetitive benefits. The procompetitive-benefits argument is “the centerpiece of Meta’s affirmative defense to the FTC’s claims,” said Boasberg’s memorandum opinion. But with the May 22 “merits-discovery” deadline “quickly approaching,” the FTC “has been limited throughout the discovery period” by knowing only examples of Meta’s procompetitive-benefits defense, it said. Though Meta intends to call expert witnesses to testify about the procompetitive benefits of its acquisitions, that doesn’t alter its Rule 33 obligation “to provide complete interrogatory responses to questions asking it to state its contentions or to provide facts on which they are based,” it said. It may be that a party’s experts will rely on facts to support the party’s contentions, but it’s not “a valid objection to claim that interrogatories asking about facts and contentions” constitute premature expert discovery, it said. In a “spoiler alert” prelude to Boasberg's point-by-point analysis of the interrogatories and Meta’s responses to them, “each side wins some and loses some,” said his memorandum opinion. Meta’s response to Interrogatory No. 10, for example, provides only a high-level summary and examples of the procompetitive benefits of the acquisitions, it said: “That is not enough.” If providing a complete list of the benefits is impossible, the judge ordered Meta to “certify that its response is full and complete to the best of its knowledge and belief,” it said. The judge, on the other hand, denied the FTC’s request for a complete Meta response to Interrogatory No. 11, seeking to probe Meta’s claims about the benefits that its Integrity program yielded. The interrogatory, “read literally, seeks stunning detail and warranted Meta’s initial refusal to answer it in accordance with its express terms,” said the judge.