Google Presses Case to Stay or Defer MDL Trial, Pending 9th Circuit Decision

The U.S. District Court for Northern California in San Francisco should reject the various plaintiffs’ oppositions to Google’s March 16 motion to defer or stay trial in the antitrust multidistrict litigation, pending a 9th U.S. Circuit Appeals Court decision on Google's Rule 23(f) challenge of the district court's order certifying a consumer class (see 2303310021), said Google’s reply brief Thursday (docket 3:21-cv-05227). No plaintiff “suggests that the entirety of this action should still be tried in November,” said Google. The consumer and state plaintiffs “propose a complex bifurcated -- or even trifurcated -- proceeding,” it said. Their proposal “requires a first jury to decide some elements of antitrust liability but defers antitrust injury -- an essential element of liability -- to a second jury and second trial,” it said. “Not only is this proposal highly inefficient, it risks Seventh Amendment error by submitting interwoven issues of anticompetitive effects and antitrust injury to different juries.” Plaintiffs Epic Games and the Match Group propose proceeding to trial in November regardless of whether a stay is warranted in the other plaintiffs’ cases, said Google. The states’ attorneys general “make a similar pitch,” it said. “Again, this proposal is needlessly complicated,” resulting in a “multiplicity of trials” on substantially identical claims, it said. “Worse, this proposal would effectively create separate trials for each side of an admittedly two-sided market, putting Google at risk of fundamentally contradictory damages awards.” The most “efficient and legally sound path forward” is for the court to adopt Google’s proposal,” it said. The parties would continue to move toward trial, and the court would defer or stay “only class notice, the final pretrial conference, and the trial,” while the 9th Circuit decides “the critical issues in the class certification appeal,” it said.