U.S. District Judge Edward Davila for Northern California in San Francisco vacated the hearing he previously scheduled for Feb. 23 on Meta’s Oct. 13 motion to dismiss the FTC’s Oct. 7 amended complaint to block Meta’s Within Unlimited buy on antitrust grounds, said a text-only entry Friday (docket 5:22-cv-04325). Davila will take Meta’s motion under submission without oral argument, said the entry. The FTC’s amended complaint leaves the agency with “no viable claim” to block the transaction because the commission’s only remaining argument is that Meta’s Within buy would lessen the “potential competition” in the market for dedicated virtual-reality fitness app, said the company’s motion to dismiss. “In the past four decades, no court has accepted a ‘potential competition’ theory to find an acquisition in violation of Section 7 of the Clayton Act,” said Meta. “On the contrary, every time the FTC has sought to enjoin such a transaction on that theory, the court has denied injunctive relief.” This court’s evidentiary hearing on the FTC’s motion for an injunction to block the transaction (see 2211300059) will start Friday. The hearing is scheduled to span portions of seven court days, said an Aug. 18 text-only docket entry.

Midwest Cabinet Suppliers seeks a 10-day extension to Dec. 12 to respond to Verizon’s Nov. 11 motion to dismiss Midwest’s tortious interference complaint, said its motion Thursday (docket 3:22-cv-00493) in U.S. District Court for Western Kentucky in Louisville. Midwest’s counsel hasn't had time to fully review the motion to dismiss and prepare an appropriate amended complaint or response, it said. Verizon, in an immediate reply, said it consents to the extension. Midwest, the former supplier of retail store cabinets to a 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.”

Defendant Softbank was served Sept. 21 in Tokyo through diplomatic channels with the antitrust class action that seeks to overturn T-Mobile's Sprint buy, said a certificate of service newly docketed Thursday (docket 1:22-cv-03189) in U.S. District Court for Northern Illinois in Chicago. The case has been somewhat in limbo as the plaintiffs work to serve court papers on another foreign defendant, Deutsche Telekom, also through diplomatic channels. Plaintiff attorneys told U.S. District Judge Thomas Durkin in an Oct. 21 telephone status hearing they expect service to Deutsche Telekom to be complete by January, prompting the judge to schedule the next telephone status hearing for Jan. 27 (see 2210210032). Seven AT&T and Verizon customers brought the class action, alleging the T-Mobile/Sprint transaction caused their rates to skyrocket through reduced competition in the wireless space.

There’s “clearly a stronger appetite” for antitrust litigation under the current leadership of the FTC and the DOJ’s Antitrust Division, Hogan Lovells partner Edith Ramirez said on her firm’s webinar Wednesday. She chaired the FTC during President Barack Obama’s second term. “We are seeing greater inclination on the part of the agencies to litigate, and I don’t see that changing anytime soon,” she said. “A lot of the cases that we’re seeing the agencies bring are ones that we would have seen in the past, but there are also cases that likely would not have been brought,” said Ramirez. “The upshot is that the review process is taking a lot longer, it’s a lot more burdensome and a lot more uncertain for the parties.” Those parties, she said, “are facing a number of high-stakes strategy decisions today as a matter of course, including whether they will be prepared to litigate if the agency disagrees with their arguments.” On how the FTC and DOJ “are being tested in court,” Ramirez thinks “so far, they have a mixed record.” In DOJ’s November 2021 lawsuit to block Penguin Random House’s buy of Simon & Schuster, “that was a matter in which DOJ did prevail,” said Ramirez. DOJ successfully argued “that the combination of the two publishing companies would lead to diminished competition,” she said. The U.S. District Court for the District of Columbia also agreed with DOJ that the transaction “would increase the likelihood of coordinated conduct among the remaining players,” she said. “I think we’re going to see more coordinated-conduct theories being asserted by the agencies going forward.”

Monday’s prehearing conference in the FTC’s lawsuit to block Meta’s Within Unlimited buy on antitrust grounds was moved to 10 a.m. PST from 9:30 a.m., said a text-only clerk’s order entered Wednesday (docket 5:22-cv-04325) at the U.S. District Court for Northern California in San Jose. Both sides requested the conference in a joint stipulation Nov. 15. The FTC and Meta tried to reach agreement on procedural and logistical issues “to facilitate the efficient presentation of evidence at the preliminary injunction hearing” scheduled to begin Dec. 8, said the stipulation. They said they agreed there are “specific issues regarding the procedures and presentation of evidence on which the parties would benefit from the Court’s guidance.”

U.S. District Judge James Donato for Northern California in San Francisco denied Google’s motion to exclude the testimony of the consumer plaintiffs’ expert witness, Georgetown University adjunct economics professor Hal Singer, from the Google Play Store antitrust class action, said his order Monday (docket 3:21-md-02981). Donato also granted, “in main part,” the consumers’ motion for class certification, “subject to some adjustments of the named plaintiffs,” his order said. The consumer plaintiffs allege Google illegally monopolized the Android app distribution market with anticompetitive practices in the Google Play Store. Google doesn’t suggest Singer is unqualified to be an expert witness on economics, said the order. Its main objection is over Singer’s “pass-through formula,” it said: “The formula is an essential element of his opinions about Google’s overcharges in app sales, and the artificially inflated prices consumers paid as a consequence.” But Google “has not demonstrated that unreliability or invalidity warrant exclusion” of Singer’s opinions, said Donato’s order. The plaintiffs rely heavily on Singer’s analysis “as their common method of proving antitrust impact” to consumers, and that was the class certification argument “most hotly contested by Google,” it said.

U.S. District Judge Edward Davila for Northern California in San Jose signed an order Monday (docket 5:22-cv-04325) granting the motion for leave from 23 states, plus Washington, D.C., and Guam, to file an amicus brief supporting the FTC’s lawsuit to block Meta’s Within Unlimited buy. Davila's order said the Nov. 7 brief is "accepted as filed." The FTC supported the states’ motion, and Meta opposed it. The states urged the court in their brief to let the FTC “fully adjudicate” Meta’s Within acquisition by granting the injunction (see 2211080041).

Sony Interactive Entertainment, a nonparty to the FTC’s lawsuit to block Meta’s Within Unlimited buy on antitrust grounds (see 2211010045), wants the U.S. District Court for Northern California in San Jose to maintain the secrecy of confidential SIE information contained in Meta's administrative motion that was filed provisionally under seal on Nov. 18, said its statement Friday (docket 5:22-cv-04325). The protected material includes SIE’s “internal-only project codename” for its unreleased PlayStation VR2, plus references to “a highly confidential strategy document that SIE uses to develop its competitive, marketing, and business strategies” for the forthcoming product, it said. SIE uses secret code names “to strictly limit internal disclosure of sensitive information, ensuring that discussion of a project cannot be traced to the specific product in development,” it said. “If this project codename were made available to the public, it would greatly increase the risk that other highly confidential material related to the PSVR2 could become public.” Public disclosure of the confidential information about the PSVR2 “would undermine the time and resources SIE has devoted to its product and marketing development, give competitors an unfair advantage in the marketplace, and disrupt the imminent commercial launch of PSVR2 in February 2023,” said SIE.

California’s antitrust complaint against Amazon was granted “complex designation” status and assigned to Judge Ethan Schulman, said an order Wednesday (docket CGC-22-601826) in California Superior Court in San Francisco. Schulman scheduled a case management conference Jan. 4 at 10 a.m. PST, and ordered the parties to file a joint case management statement at least five court days in advance. California Attorney General Rob Bonta, in a heavily redacted Sept. 15 complaint, alleged Amazon "makes consumers think they are getting the lowest prices possible, when in fact, they cannot get the low prices that would prevail in a freely competitive market" (see 2210130034). He alleged Amazon "coerced and induced its third-party sellers and wholesale suppliers to enter into anticompetitive agreements on price."

Counsel for Appen Media Group, the last of 25 newspaper owners to have its antitrust complaint against Google transferred to U.S. District Court for Southern New York for consolidation under Judge Kevin Castel, wrote the judge Tuesday (docket 1:22-cv-09810), seeking permission to be included with the other 24 when they file their amended complaint against Google by the Dec. 2 deadline. The various newspaper owners’ lawsuits allege that Google has monopolized the digital advertising market, thereby strangling a primary source of revenue for newspapers across the country. Castel granted the owners leave Nov. 18 to file the amended complaint. When the other 24 owners filed their motion for leave to enter an amended complaint, Appen’s case was stuck in “procedural limbo” before the U.S. Judicial Panel on Multidistrict Litigation, said lawyer David Mitchell with Robbins Geller. Now that the Appen action has been transferred to Castel’s jurisdiction, Mitchell would represent all 25 newspaper plaintiffs in “a single pleading,” he said. Family-owned Appen owns several newspapers in Georgia, Mitchell told the judge.