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.

U.S. District Court Judge Edward Davila for Northern California granted in its entirety Meta’s administrative motion to keep an unredacted version of its proposed post-hearing findings of fact and conclusions of law under seal, said a Wednesday order (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The order involves information from nonparties including Alphabet, Apple, ByteDance, Eric Janszen, Equinox, HTC, Lululemon, Peloton, Sony and Valve in the FTC's antitrust case against Meta to block its acquisition of virtual-reality company Within Unlimited (see 2302060007). In February, Davila ruled the agency failed “to establish a likelihood that it would ultimately succeed on the merits” of its antitrust claims, in a heavily redacted order that was unsealed and released. Davila rejected for lack of evidence the FTC’s potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated VR fitness apps. Meta bought the VR company last month.

Google wants U.S. District Judge Kevin Castel for Southern New York to deny plaintiff Inform’s Feb. 28 motion for leave to amend its digital advertising antitrust complaint against for a second time, Google wrote the judge in a letter Wednesday (docket 1:21-md-03010). The Inform action was recently transferred to Castel with the related multidistrict litigation cases because Inform “opportunistically delayed seeking MDL treatment," it said. Despite referencing ad servers in its original 2019 complaint, Inform never sought transfer to Castel for consolidation with the other MDL cases “during the more than three years that its case was pending” in U.S. District Court for Northern Georgia in Atlanta, said Google. Inform instead opposed Google’s motion to dismiss and amended its complaint once in that court, it said. “Google’s most recently filed motion to dismiss Inform’s amended complaint remains pending, and Inform’s request to amend seeks to moot that motion.” It appears that Inform views transfer to the MDL “as an opportunity to start over with a third complaint,” it said. Inform’s two complaints “had little to do with ad tech other than a few stray paragraphs containing allegations wholly unconnected to Inform and its supposed harm,” said Google. Inform’s motion for leave is a request “for a second do-over to give Inform a chance to copy-and-paste more irrelevant allegations into its already rambling complaint,” it said. Castel “should reject it and allow Google’s pending motion to dismiss to proceed,” it said.

Qualcomm denies the allegations in a second amended consolidated antitrust class action that it acquired or maintained “monopoly power” in the market for smartphone baseband processors, and that its conduct “was lawful, pro-competitive, and based on legitimate business and economic justifications,” said its answer Monday (docket 3:17-md-02773) in U.S. District Court for Northern California in San Francisco. The plaintiffs are four California consumers who allege Qualcomm exploited its position as the dominant global provider of modem chips, and allege the costs of its unlawful conduct were then passed on to consumers via inflated smartphone prices. Qualcomm also denies it entered into illegal tying agreements “that unreasonably restrained trade,” said its answer. The plaintiffs aren’t entitled to injunctive relief “on conduct that occurred solely in the past,” it said. Theirs “are not properly maintainable as a class action,” because the plaintiffs and members of the proposed class “waived such treatment in agreeing to binding individual arbitration,” it said.

Google failed to demonstrate why its preference to litigate the DOJ’s digital advertising antitrust case (docket 1:23-cv-108) in the Southern District of New York should "disturb the deference" given to the plaintiffs’ chosen forum in U.S. District Court for Eastern Virginia in Alexandria, said plaintiffs’ Friday motion to deny. Google asked to transfer the case to the Southern District of New York, where it could be coordinated with Multidistrict Litigation No. 3010. In August 2021, the Judicial Panel on Multidistrict Litigation consolidated more than two dozen antitrust cases against Google for pretrial proceedings into a single MDL. Google’s request should be denied because it “subverts the unambiguous intent” behind DOJ’s statutory exemption from MDL consolidation, said U.S. Attorney Jessica Aber and Virginia Attorney General Jason Miyares (R). Though coordinating the case with the MDL “may provide some efficiencies, Congress made the decision to subordinate any such efficiencies in favor of providing the United States, and now state attorneys general, the ability to vindicate antitrust matters expeditiously, and in their chosen forum,” they said. Despite related claims and facts, “Congress’ declared policy” of expeditious governmental enforcement of the antitrust laws supports keeping this case in this District, unencumbered by inclusion in an MDL or coordination with private actions.”