Amicus Briefs Support Google in Play Store Case, Urge Rigorous Class Review

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.