9th Circuit OKs Google Petition to Appeal Class Action Certification Order

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.”