Verizon’s motion to dismiss the antitrust complaint of Midwest Cabinet Suppliers (see 2212290028), its former store fixtures provider, “references information from sources on the internet, that are NOT part of the pleadings in this action,” said Midwest’s response Friday (docket 3:22-cv-00493) in U.S. District Court for Western Kentucky in Louisville. Despite making 24 pages of argument and citing numerous authorities in its memorandum in support of its motion to dismiss, Verizon didn't make the “demonstration required” under case law for the court to grant the dismissal Verizon seeks, said Midwest. “Verizon attacks every point, or supposed lack thereof,” in the first amended complaint by referencing cases “with little or no factual similarities to the instant case,” it said. Such cases are all but meaningless to assist the court in determining if the first amended complaint “states a claim upon which relief can be granted,” it said. The court “should not grant any motion based on 24 pages of rambling, off point, gobbledygook,” said Midwest. “It is amazing that Verizon can go on for over 20 pages” trying to convince the court that Midwest failed to state a claim “based on a supposed vagueness” of the first amended complaint “by citing legal authorities that only seem to vaguely apply to its own motion,” it said. Midwest, the former supplier of retail store cabinets to a Verizon wireless reseller in Tennessee, alleges Verizon caused “significant damage” to its business when it forced the reseller to source its store fixtures from another supplier under an unlawful tying agreement (see 2210090003). Verizon’s motion to dismiss the lawsuit for failure to state a claim called Midwest’s allegations “meritless.”

It's now clear that Google has been “deliberately deleting” pertinent evidentiary chats for years, including throughout the Google Play Store antitrust litigation, said the various plaintiffs, including eight states, in their reply brief Friday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco. “At every step, Google has attempted to keep its misconduct from coming to light,” said the plaintiffs. Google’s “willful destruction” of documents deprived the plaintiffs of “critical evidence regarding agreements with potential competitors, changes to Google’s prices, and changes to its tie of Google Play Billing -- all critical issues in this litigation,” they said. “To make matters worse, the remedies Google proposes show that it does not take this issue seriously,” and would be “nothing more than a slap on the wrist,” they said. “Google cannot be allowed to get away with its spoliation.” Google and the plaintiffs “sharply disagree as to whether Google’s long-standing approach to chat preservation” is reasonable, said Google’s reply brief. If the court concludes the plaintiffs are right and Google got it wrong, “then the remedy must be limited to addressing the actual prejudice” shown by the plaintiffs, if any, it said. The plaintiffs “do not, and could not, claim that they were prejudiced by the loss of any chats sent before August 2020,” when Epic Games filed the first complaint in the consolidated actions, said Google. “Nor do they argue that this issue affected the tens of thousands of non-chat documents produced by Google that post-date August 2020 or the millions that pre-date August 2020.”

The various plaintiffs in the Google Play Store antitrust litigation, including 38 states and D.C., want U.S. District Judge James Donato for Northern California to impose stiff but “appropriate” sanctions on Google if he finds the company flouted its obligations and destroyed evidence, they told the judge in a brief Tuesday (docket 3:21-cv-05227) responding to the judge’s questions about evidence preservation in the case. The plaintiffs allege Google systematically deleted internal Google Chat conversations and other instant messaging chats crucial to their arguments that Google's anticompetitive behavior harms consumers and app developers (see 2301090001). They further allege the deletions continued even well after Google knew the chats would be needed for evidence in discovery and at trial. They propose that Donato order preliminary and final jury instructions on Google’s “spoliation” and that he preclude Google from arguing the plaintiffs lack evidence on certain topics, they said. Donato’s jury instructions should inform jurors they “should presume that Chat messages Google destroyed would have been unfavorable to Google in this litigation,” they said. Google countered in its own brief Tuesday that any sanctions for destroying the chats “must be no greater than necessary to cure any prejudice” to the plaintiffs arising from the loss of those chats. “By contrast, remedies that would effectively foreclose Google from presenting a defense or that would be tantamount to an adverse inference or terminating sanction are unwarranted” under court rules and “inconsistent with due process,” said Google.

Canada’s Federal Court of Appeal dismissed Commissioner of Competition Matthew Boswell’s application to overturn the Competition Tribunal's decision and block Rogers Communications’ proposed merger with Shaw Communications and Shaw’s secondary divestiture of its Freedom Mobile subsidiary to Videotron. To render an order blocking the overall transaction, the tribunal “would have had to find that it would be likely to prevent or lessen competition substantially,” said the court’s opinion Tuesday. “In 413 tightly-written paragraphs, many full of detail,” the tribunal “did not so conclude,” it said. Rogers, Shaw and Videotron parent Quebecor “welcome this clear, unequivocal, and unanimous decision by the Federal Court of Appeal,” said the companies in a joint statement. They will continue to work with authorities “to secure the final approval needed to close the pro-competitive transactions and create a stronger fourth wireless carrier in Canada and a more formidable wireline competitor,” they said.

Appellant Global Tel-Link’s opening brief is due March 6 in its appeal of a lower court’s antitrust ruling in Smart Communications’ favor, said a briefing and scheduling order Tuesday (docket 22-3287) in the 3rd U.S. Circuit Court of Appeals. Smart alleges competitor GTL colluded with York County, Pennsylvania, prison authorities in an unlawful "exclusive dealing" arrangement when Smart tried to replace GTL as the prison's inmate calling services vendor (see 2212070047).

The claims brought by French-resident iOS developers alleging Apple willfully blocked competition in the market for iOS app-distribution and in-app purchase services (see 2212210037) are barred by the Foreign Trade Antitrust Improvements Act (FTAIA), and should be dismissed, argued Apple in a motion Friday (docket 4:22-cv-04437) in U.S. District Court for Northern California in Oakland. The claims based on “foreign-storefront sales by foreign app developers to foreign consumers are outside the reach of U.S. antitrust laws,” said Apple. The plaintiffs’ foreign-storefront sales claims “are clearly barred by the FTAIA,” and they don't plead “a plausible basis for an exception from the statute,” it said. Their arguments against applying the FTAIA to their claims are “unavailing,” it said.

Foreign defendant Deutsche Telekom “has not yet entered” the class action that seeks to vacate T-Motion’s 2020 Sprint buy on allegations the acquisition brought competitive harm to AT&T and Verizon customers, said a docket entry Thursday (docket 1:22-cv-03189) in U.S. District Court for Northern Illinois in Chicago. That Deutsche Telekom apparently hasn't been served with court papers through diplomatic channels prompted U.S. District Judge Thomas Durkin to delay the next telephone status conference another month to Feb. 24. Plaintiffs’ attorney Brendan Glackin of Lieff Cabraser told Durkin at the last status conference Oct. 21 that he thought Deutsche Telekom would be served by January (see 2210210032). The case has been somewhat in limbo for months since. The seven consumer plaintiffs, all customers of AT&T or Verizon, allege the anticompetitive nature of the T-Mobile/Sprint combination in 2020 caused their own wireless rates to soar. T-Mobile counters that the plaintiffs can't plausibly establish that their wireless service increases resulted from the acquisition, and not from "a host of other obvious alternative explanations” (see 2212060052).

Nike, a nonparty to the FTC’s lawsuit to block Meta’s Within Unlimited buy, wants to keep under seal portions of the FTC and Meta separate Dec. 23 findings of fact documents (see 2212270040) because they contain nonpublic information that “could be used to injure Nike if it were made publicly available,” said the company in a statement Friday (docket 5:22-cv-04325) in U.S. District Court for Northern California in San Jose. The content in the FTC document that Nike wants to keep redacted pertains to a discussion about how virtual-reality fitness apps differ from other at-home fitness products, including the Nike Training Club app, said the statement. The redacted information in the Meta findings of fact document is part of an overview in which the company depicts Within’s Supernatural VR fitness app as operating in a highly competitive market with many VR and non-VR products, it said. The information that Nike seeks to protect consists of Nike’s “strategic evaluation of its competitors and their commercial activities, which Nike uses to inform its product development analysis for the current and future direction of the Nike Training Club app,” it said.

The U.S. District Court for Western Kentucky in Louisville should dismiss Midwest Cabinet Suppliers’ Dec. 12 first amended complaint for its “unfounded antitrust and tort claims,” argued Verizon Wireless in a memorandum in support Wednesday (docket 3:22-cv-00493). Midwest alleges Verizon orchestrated an unlawful “tying” scheme that steered the supply of retail store fixtures for Verizon’s resellers to Midwest’s competitors. “Midwest’s gripe is fundamentally one of disappointment,” responded Verizon. It claims to have lost a single customer, Cellular Sales of Knoxville, “as a result of legitimate competition,” it said. Midwest’s claims “stem only from Verizon’s run-of-the-mill competitive business decision to implement a uniform customer experience across Verizon-licensed agent retail stores,” it said. Its disappointment “is nothing more than a natural consequence of routine business activity, which is not compensable under federal or state law,” it said. “Not every business injury produces an actionable legal claim, let alone one that rises to the level of an antitrust violation or tortious interference.”

TikTok owner ByteDance requested to keep under seal confidential information it provided as a nonparty to the FTC’s lawsuit to block Meta’s Within Unlimited acquisition, said a Wednesday statement filed in U.S. District Court for Northern California in San Jose (docket 5:22-cv-4325). It requested the court maintain under seal descriptions of seven items on the second amended exhibit list, saying legitimate privacy interests warrant sealing of the “highly confidential information” about its business strategies, internal evaluations and product development. Disclosure of the information would cause injury to ByteDance that outweighs the public’s interest in accessing it, it said.