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.”

U.S. District Judge Leonie Brinkema for Eastern Virginia in Alexandria set a March 10 hearing for 10 a.m. EST on Google’s Feb. 17 motion to transfer DOJ’s antitrust complaint to the Southern District of New York, said a text-only entry Thursday (docket 1:23-cv-00108). Google wants DOJ’s complaint consolidated in SDNY with the other 19 cases sent there in 2021 by the U.S. Judicial Panel on Multidistrict Litigation. Google called DOJ’s lawsuit just another in a series of “copycat” actions challenging “the size and success” of Google’s advertising technology business under the Sherman Act (see 2302230005).

The California Office of the Attorney General “has not validly alleged the existence of any per se unlawful price fixing agreements or agreements tampering with price structures” at Amazon, said Amazon’s Feb. 21 reply brief (docket CGC-22-601826) in support of its demurrer to the OAG’s complaint in San Francisco County Superior Court. The challenged policies “bear none of the forbidden traits that render those practices per se illegal, and do not resemble the conduct at issue in the cases cited” in the OAG’s opposition, it said. A marketplace announcing to its third-party sellers that it prohibits price gouging, price-fixing and other kinds of customer abuse “directly encourages open competition among third party sellers and thereby makes the marketplace more competitive against myriad other retail competitors,” said Amazon. The OAG’s argument that Amazon requires third-party sellers to boycott other retailers is “baseless,” it said. It cites allegations that it says show some third-party retailers withheld their products from competing online retailers, or supplied them conditioned on adherence to minimum advertised/resale prices, it said: “But none of the cited paragraphs identifies any conduct of Amazon that forces or requires sellers to take any such actions, or that these sellers have agreed to cease doing business with anyone.” A hearing on Amazon’s Dec. 6 demurrer to the OAG complaint is set for March 7 (see 2212160020). A demurrer under California law argues a complaint should be dismissed because it fails to assert facts sufficient to support a cause of action.

Google asked the U.S. District Court for Eastern Virginia in Alexandria to convene a March 10 hearing at 10 a.m. on its Feb. 17 motion to transfer DOJ’s antitrust complaint to the Southern District of New York, said its notice Wednesday (docket 1:23-cv-00108). DOJ agreed to the hearing date, said the notice. DOJ’s Jan. 24 complaint is just another in a series of “copycat” actions challenging “the size and success” of Google’s advertising technology business under the Sherman Act, said the motion to transfer. DOJ’s case “is the only ad tech challenge pending outside the Southern District of New York, it said. The U.S. Judicial Panel on Multidistrict Litigation in August 2021 transferred all 19 then-pending state and private ad tech antitrust cases to Manhattan and assigned them to U.S. District Judge Kevin Castel “for coordinated or consolidated pretrial proceedings,” it said: “By filing suit in another district, the DOJ does not merely risk the prospect of inconsistent judgments, it actively courts it.”

The state plaintiffs in the Google digital advertising antitrust multidistrict litigation seek leave to amend their state law Deceptive Trade Practices Act (DTPA) claims, which have been stayed since the formation of the MDL, they requested by letter Thursday (docket 1:21-md-03010) to U.S. District Judge Kevin Castel for Southern New York. The state plaintiffs haven't had a chance to amend their state law claims in this MDL, and “justice requires that they be given leave” to amend, “so they may put their best foot forward with respect to those claims,” they said. Amending the states’ DTPA claims “is a significantly more complicated task than amending federal antitrust claims,” they told the judge. Federal claims are common across all states, the plaintiffs said, but there are “17 sovereigns which need to be involved in any amendment of state law claims, and there are variations between the different DTPAs which need to be accounted for in any amendment.”

French-resident and all iOS developers “enrich Apple greatly, both by enabling it to sell more expensive hardware and by paying it super-high fees in order to get their digital products to end users,” said individual developers Figaro and L’Equipe, plus Le Geste, an association of publishers of online content and services, in an opposition Friday (docket 4:22-cv-04437) in US. District Court for Northern California in Oakland to Apple’s motion to dismiss their Dec. 2 first amended complaint (see 2212210037). Yet Apple “resorts to calling plaintiffs ‘opportunists’ for having the audacity to challenge its anticompetitive abuses” in the Northern California forum, and under the U.S. and California laws, “that Apple chose to govern disputes,” said the developers. As the plaintiffs allege, Apple’s anticompetitive behavior “affected U.S. commerce and trade directly, which in turn led directly to plaintiffs’ injuries, given their participation in U.S. domestic commerce,” they said. “Accordingly, U.S. antitrust law properly applies to the anticompetitive acts and injuries alleged.” The developers have “properly alleged monetary injury giving rise to restitution,” under California’s Unfair Competition Law, they said. “Accordingly, their UCL claims are not subject to dismissal, particularly at this stage of the case.”

A final pretrial conference is set for Oct. 19 in the multidistrict antitrust litigation involving the Google Play Store, said an order (docket 3:21-md-02981) signed Tuesday by U.S. District Judge James Donato for Northern California in San Francisco. Jury selection is to begin Nov. 6, said the order. Seventy plaintiffs in the consolidated cases, including three dozen states and D.C., allege Google monopolized the market for the distribution of Android mobile apps through the Google Play Store.

The U.S. District Court for Northern California in San Jose vacated Tuesday’s virtual status conference in FTC v. Meta less than an hour before the hearing’s 10 a.m. PST start time, according to a text-only clerk’s notice in docket 5:22-cv-4325. U.S. District Judge Edward Davila, in an order unsealed Friday, denied the FTC’s injunction to block Meta’s Within Unlimited buy (see 2302060007). He rejected for lack of sufficient evidence the FTC’s core actual and perceived potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated virtual-reality fitness apps. Also newly unsealed is Davila's Jan. 31 order granting the FTC's emergency motion to extend the temporary restraining order barring consummation of Meta's Within buy. The TRO was to have expired that evening. Tuesday's conference was to have discussed the status of the TRO. The TRO order enjoined Meta from consummating the Within transaction until after 11:59 p.m. PST Tuesday.

"In respect of the Court’s orders," said an FTC spokesperson Wednesday, the agency "is not in a position to comment at this time" about the apparent denial Tuesday by U.S. District Judge Edward Davila for Northern California of the commission's injunction to block Meta's Within Unlimited buy. Meta didn't respond to requests for comment. CCIA President Matt Schruers hailed the order, which remained under seal Wednesday afternoon. The court's ruling "is consistent with decades of legal precedent," said Schruers in a statement. "This decision will encourage innovation and investment by increasing legal certainty around technology transactions.” The court’s decision is sealed, so its reasoning is not being made public, "but the outcome is no surprise," blogged the Competitive Enterprise Institute Wednesday. "In opposing the purchase, the nation’s top consumer advocate is playing fortune teller and breaking with 40 years of antitrust precedent," said CEI. "While the agency should focus on consumer welfare, it has instead tried to meddle in a market that does not yet exist." A virtual status conference is set for Feb. 7 at 10 a.m. PST, apparently to discuss next steps after the injunction's denial, said a text-only clerk’s notice entry Tuesday (docket 5:22-CV-04325). Davila did sign an order late Tuesday granting the FTC’s emergency motion to extend the agency’s jointly stipulated temporary restraining order with Meta barring consummation of the Within transaction until the end of the first business day after Davila rules on the injunction (see 2301310042). The TRO was due to expire at 11:59 p.m. PST Tuesday. The FTC alternatively asked for a seven-day extension of the TRO to eliminate the need for another emergency motion should Davila deny the preliminary injunction. Davila’s order was also sealed, so it’s unknown which TRO option he chose.

The FTC filed a motion Tuesday for an “emergency extension” of its joint stipulated temporary restraining order that bars Meta from consummating its Within Unlimited buy until after 11:59 p.m. Pacific time on the first business day after the court rules on its motion for a preliminary injunction. In the alternative, the FTC requests a seven-day extension in the TRO, “which would eliminate the need for an additional immediate emergency motion in the event the Court denies the preliminary injunction,” said the motion (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The FTC asked U.S. District Judge Edward Davila to “issue this relief” before 11:59 p.m. PST Tuesday when the existing TRO was to expire. Doing so will preserve the status quo” until on the preliminary injunction “and the parties can determine their immediate next steps,” it said. Consummation of Meta's Within buy "will irreparably harm the FTC’s ability to obtain effective relief for the public at the conclusion of any further proceedings," said FTC Senior Trial Counsel Abby Dennis in a declaration accompanying the emergency motion. “Given the exigent circumstances” of the FTC’s emergency motion, “and that time is of the essence, the FTC could not meet and confer” with Meta before filing the motion and has sought Meta’s consent for extending the TRO, said Dennis. She gave no explanation why the agency let the expiring TRO go down to the wire.