Google employees “intentionally shifted relevant business discussions to communication methods they knew would delete in 24 hours to circumvent Google’s own litigation holds and discovery obligations,” said the 38 plaintiff states and the District of Columbia in their reply brief Tuesday (docket 1:20-cv-03010) in U.S. District Court for D.C. in support of sanctions against Google (see 2302240034). Google “encouraged this conduct by creating a culture of communicating in chats that would be destroyed even with the existence of a litigation hold,” said the reply. Google failed to take “reasonable steps to monitor the effectiveness of its litigation hold and ensure employees were abiding by its terms,” it said. Google, as a result, “failed to ensure that its litigation responsibilities were fulfilled and thus permitted the spoliation of relevant materials,” it said.
Google’s “auction-rigging” devices and restrictions harmed competition in the online advertising market, alleged a Tuesday antitrust class action (docket 2:23-cv-02539) against parent company Alphabet and Meta in U.S. District Court for Central California in Los Angeles. Plaintiff Sunny Singh, a private tennis instructor living in Altadena, California, placed online and in-app display and search advertisements using Google’s services, paying the company directly to broker the placement of display advertisements on third-party websites and mobile apps, the complaint said. In display advertising, a single company, Google, “simultaneously functions as the key intermediary through which buyers (advertisers) and suppliers (publishers) of display advertising trade, in addition to its position as a leading publisher of display advertisements in its own right,” the complaint said. Google owns AdX, an exchange that transacts programming display advertising; Google Ads, which provides buying tools for small advertisers; and DV360, which has buying tools for large advertisers, the complaint noted. The company’s “anticompetitive conduct” for ad-buying tools and exchanges resulted in Singh paying more to place ads through AdX, “causing antitrust injury and giving rise to antitrust standing,” said the complaint. Google also entered into a network bidding agreement with Meta that impaired competitive bidding and transactions on Google’s final clearinghouse auctions for web display and in-app advertisements by giving Meta special advantages and proprietary information no other bidder enjoyed, the complaint alleged. Singh claims anticompetitive overcharges were assessed due to Google’s antitrust violations, and he's bringing the action on behalf of all persons and entities in the U.S. who, from Jan. 1, 2016 on, placed a display ad on a website or mobile app operated by another entity via a transaction in which the impression was sold, brokered, exchanged or auctioned by Google. Causes of action include monopolization, restraint of trade, unlawful trust, and unfair or deceptive acts or practices, the complaint says.
Washington state Attorney General Bob Ferguson (D) joined DOJ and eight plaintiff states in their digital advertising antitrust case (docket 1:23-cv-00108) against Google in U.S. District Court for Eastern Virginia in Alexandria, said Ferguson's office in a Monday news release. DOJ and Virginia, California, Colorado, Connecticut, New Jersey, New York, Rhode Island and Tennessee sued Google in January (see Ref:2301240055)] alleging it unlawfully monopolized online display advertising. Plaintiffs aim to break up Google’s alleged monopolization of the online display advertising market. Newspapers depend on online advertising as an important source of revenue, but Google’s dominance of online display advertising has allowed it to funnel more business through its services, resulting in websites earning less and advertisers paying more, Ferguson said. He cited a Washington state Joint Legislative Audit and Review Committee report showing state newspaper revenue declined by about 30% between 2015 and 2020. The DOJ lawsuit asserts Google violated the Sherman Antitrust Act’s prohibitions against monopolization after its acquisition of DoubleClick, which controlled 60% of online advertising when it bought it in 2008. Federal regulators allowed the purchase then because they believed enough alternatives existed that there would still be competition, Ferguson said. After Google acquired DoubleClick, Google launched its own branded advertising tools and made DoubleClick available only to advertisers who used its internal ad buying tools, plaintiffs allege. Google used exclusive agreements with other tech companies, bought other competing online advertising technologies, and forced advertisers and website publishers to use only its products, which plaintiffs allege “suppressed competition and allowed Google to dominate the online advertising market.”
Co-plaintiffs Epic Games and the Match Group in the multidistrict litigation alleging anticompetitive misconduct in how Google operates the Google Play Store oppose Google’s motion to stay or defer the Nov. 6 trial in the MDL (see 2303310021), said the companies in a joint opposition Friday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco. Google seeks the trial stay pending the outcome of its Rule 23(f) challenge at the 9th U.S. Circuit Appeals Court of the district court's order certifying a consumer class due to the “significant impact” the 9th Circuit’s decision would have on any trial. But Epic and Match “would suffer enormous prejudice and substantial injury if their trial-ready cases were stayed by at least a year, and potentially much longer, while completely unrelated consumer class certification issues are resolved through appeal and subsequent additional proceedings,” said their joint opposition. Without the injunctive relief that the plaintiffs seek, “Google’s anticompetitive conduct will continue, causing harm to developers, competing app distributors, competing payment providers and the public,” it said. Google, on the other hand, hasn’t shown, as it must, that “it would be irreparably harmed if Epic’s and Match’s claims went to trial as currently scheduled,” it said.
California Superior Court Judge Ethan Schulman overturned Amazon’s demurrer seeking to dismiss Attorney General Rob Bonta’s (D) antitrust lawsuit in San Francisco County Superior Court. Bonta sued Amazon Sept. 14 alleging violation of California’s Cartwright Act and Unfair Competition laws. Amazon argued its agreements and policies aren't “per se illegal under California law,” said the Thursday order (docket 22-601826). Bonta’s detailed factual allegations “adequately state a claim” that Amazon’s agreements and policies had the “anticompetitive effect of raising prices on competing retail marketplaces” and on its third-party seller websites, he said. Whether Amazon’s agreements and conduct had a substantial anticompetitive effect “raises factual questions that cannot be decided on demurrer,” he said. Whether a given practice is anticompetitive, or “procompetitive,” as Amazon contends, “often does not lend itself to bright-line rules,” he said. The industry- and market-specific contexts of the case raise issues that “almost certainly be the subject of competing expert testimony,” and raise factual issues that also can’t be decided on demurrer, Schulman said. Since the court concluded a cause of action for violation of the Cartwright Act, it also states a viable cause of action for violation of the Unfair Competition Law, he said.
Counsel for DOJ and eight plaintiff states, plus defendant Google, submitted a joint proposed discovery plan (docket 1:23-cv-00108) Tuesday in the digital advertising antitrust case against Google. The parties will exchange disclosures required by Federal Rule of Civil Procedure 26(a)(1) by Monday in U.S. District Court for Eastern Virginia in Alexandria, said the plan. Joinder of additional parties will governed by the applicable rules and amendment of pleadings by Federal Rule of Civil Procedure 15, it said. Discovery was slated to begin Monday, the same day Google moved to dismiss the case (see 2303290038) for plaintiffs’ failure to allege “plausible relevant markets.”
Just under two weeks after U.S. District Judge Leonie Brinkema for Eastern Virginia in Alexandria denied Google’s motion to transfer to the Southern District of New York the digital advertising antitrust case brought against the company by DOJ and eight states (see 2303150002), Google moved Monday to dismiss the complaint for failure to allege “plausible relevant markets.” Success in the digital advertising marketplace “depends on placing advertisements on the most relevant publisher webpages or mobile applications in ways that most appeal to viewers,” said Google’s memorandum of law (docket 1:23-cv-00108) in support of its motion to dismiss. Yet the plaintiffs “characterize Google's every business decision over the past 15 years as evidence of a long-term scheme to amass power and choke out competition, ignoring the competitive pressures and customer interests driving Google in a dynamic and multi-sided digital marketplace,” it said. In the more than three years DOJ has been investigating Google's ad tech business, the government has received more than 2 million documents from Google and taken more than 30 depositions from Google witnesses, it said. DOJ also obtained documents and deposition testimony from numerous third parties, it said. But the plaintiffs “remain unable to find support for their claimed antitrust harms,” it said. They instead repeat “conclusory” statements to “concoct exceedingly narrow relevant markets” as a basis for their claims of monopolization of the markets for publisher ad servers, ad exchanges, advertiser ad networks and tying of Google's ad server and ad exchange, it said.
Google’s court-ordered production in the consolidated antitrust litigation against the Google Play Store contains a “trove” of chats “establishing beyond any doubt that the company’s intentional campaign to destroy sensitive communications resulted in the loss of invaluable communications regarding matters at the heart of these cases.” So said the plaintiffs’ supplemental reply brief Monday (docket 3:21-md-02981) Monday in U.S. District Court for Northern California in San Francisco. U.S. District Judge James Donato ordered the chat production Feb. 27 as an “experiment” to test Google’s contention that its evidence destruction didn’t prejudice the plaintiffs, said the brief. “The outcome of the Court-ordered experiment is clear,” it said. Google’s conduct prejudiced the plaintiffs and “requires a substantial, trial-related penalty,” it said. The newly produced chats “reveal a company-wide culture of concealment coming from the very top, including CEO Sundar Pichai, who is a custodian in this case,” it said. Google destroyed “innumerable” chats with the intent to deprive the plaintiffs and other litigants “of the use of these documents in litigation,” it said. Though the court previously suggested it’s unlikely “to order an instruction that the jury must find that the destroyed evidence would have been unfavorable to Google,” the plaintiffs submit that the newly produced chats “support such a remedy,” it said.
Personal service of defendant Deutsche Telekom now is expected to be complete by around June in the class action by seven AT&T and Verizon subscribers to vacate T-Mobile’s 2020 Sprint buy on antitrust grounds, said a joint status report Thursday (docket 1:22-cv-03189) in U.S. District Court for Northern Illinois in Chicago. U.S. District Judge Thomas Durkin for that reason rescheduled a March 31 status conference to July 19. The inability to serve DT in Germany has kept the case in limbo at least since August, when the court appointed Crowe Foreign Services and its agents to process service on DT through diplomatic channels under the Hague Conference. The latest hitch occurred Feb. 17 when Crowe received a letter from the German court “requiring a new request for service with an additional letter from plaintiffs’ counsel,” said the status report. The additional letter is needed to confirm the plaintiffs aren't pursuing what German law calls “claim splitting,” or pursuing claims that seek recovery that will be split with a state government, it said. The plaintiffs are preparing “the appropriate letter” and soon will retransmit the service materials to the German court, it said. Crowe advises that this process could take roughly two to three months more to complete, it said. The plaintiffs in the class action allege the anticompetitive nature of the T-Mobile/Sprint combination in 2020 caused their own wireless rates to soar post-merger (see 2302060032).
The 9th U.S. Circuit Appeals Court granted Google petition for review of a district court order certifying a consumer class in the multidistrict Google Play Store litigation, and Google seeks to defer the MDL trial until the 9th Circuit rules on its petition, said Google’s motion Thursday (docket 3:21-cv-05227). The U.S. District Court for Northern California's certified the class Nov. 28. Google said it conferred with all the plaintiffs in the MDL, including the consumer plaintiffs, the state attorneys general, Epic Games and Match Group, and all oppose the motion to defer. The 9th Circuit’s decision is expected after Nov. 6, the date set for trial in the MDL, it said. Google proposes “the parties continue to move this case forward” by completing expert depositions, dispositive motions and other proceedings, it said. But in light of the expected timing of the 9th Circuit’s decision and “the significant impact” it may have on any trial, Google submits “that the most practical and sensible path forward” is for the court to defer the trial and final pretrial conference in this MDL until after the 9th Circuit decides Google’s appeal, it said. Once the 9th Circuit has ruled, “the parties will be prepared to proceed to trial expeditiously,” it said.