Google will pay $630 million in restitution to consumers who made purchases at Google Play between August 2016 and September 2023 to settle allegations it engaged in anticompetitive practices that forced higher prices on the public, according to a settlement agreement filed Monday (docket 3:21-cv-05227) in U.S. District Court for Northern California in San Francisco. Google will also pay $70 million to settle the sovereign claims asserted by the attorneys general of all 50 states, plus the District of Columbia, Puerto Rico and the U.S. Virgin Islands, said the agreement. Google “disputes the claims” alleged in the litigation, “and believes it has strong defenses to these claims," said the agreement. The settlement isn’t “an admission of wrongdoing, fault, liability, or damage of any kind,” it said. The company also disputes that the plaintiffs’ claims have merit and that the plaintiffs or consumers should be “entitled to any relief,” it said. Google, for a period of at least five years, agrees to give developers that choose to sell in-app digital goods and services “the option to add an alternative in-app billing system alongside Google Play’s billing system” for their users, said the agreement. At checkout, users “will be able to choose which in-app billing system to use,” it said. “No company, no matter how large or powerful, is allowed to corner a market and use its influence to overcharge consumers and smother competition,” said New York AG Letitia James (D) in a statement Tuesday. “For too long, Google abused its market share to unfairly raise prices and block developers from selling products in other app stores,” she said. New York was on the litigation's leadership committee with California, North Carolina, Tennessee and Utah. “Google took advantage of Android phone customers by limiting consumer choice and capitalizing on commissions for in-app purchases, all while limiting alternative ways to download apps. Google’s anticompetitive behavior hurt consumers by limiting their options, inflating prices on in-app purchases, and creating an unfair marketplace designed to funnel ill-gotten profits back to the company,” said California Attorney General Rob Bonta (D). “Today we are taking an important step to put a stop to this anticompetitive conduct," he said.

U.S. District Judge Edward Davila for Northern California in San Jose entered judgment in favor of Meta and against the FTC under Federal Rule of Civil Procedure 58, said the judge’s signed order Wednesday (docket 5:22-cv-04325). The judgment stem from Davila's Jan. 31 denial of the FTC’s motion for a preliminary injunction to block Meta’s Within Unlimited buy (see 2302010003). He ordered the clerk to close the case file.

The plaintiffs’ opposition is due Dec. 14 to T-Mobile’s motion to certify for interlocutory appeal the court’s Nov. 2 order denying T-Mobile’s motion to dismiss the antitrust case brought by seven AT&T and Verizon customers over T-Mobile’s 2020 Sprint buy (see 2311290042), said a clerk’s docket entry Wednesday (docket 1:22-cv-03189) in U.S. District Court for Northern Illinois in Chicago. T-Mobile’s reply in support of the motion is due Dec. 22, said the clerk’s entry. The plaintiffs allege that the anticompetitive nature of the T-Mobile/Sprint transaction caused their own wireless rates to soar. In denying T-Mobile’s motion to dismiss, U.S. District Judge Thomas Durkin found that T-Mobile/Sprint likely “exacerbated the risk of price coordination” in the wireless market space, thereby reducing competition among all the carriers (see 2311030011). Durkin set a telephone status hearing in the case for Feb. 6 at 9 a.m. CST.

U.S. District Judge Thomas Durkin for Northern Illinois in Chicago ordered the parties in the litigation against T-Mobile’s 2020 Sprint buy to file a joint written report by Nov. 28 setting proposed discovery deadlines in the case going forward, said his docket entry notification Friday (docket 1:22-cv-03189). The judge on Thursday denied the joint T-Mobile-SoftBank motion to dismiss the antitrust complaint for failure to state a claim, finding that T-Mobile/Sprint likely reduced wireless competition (see 2311030011). He did grant SoftBank’s separate motion to dismiss for lack of jurisdiction and improper venue for its role in the 2020 transaction. Seven consumer plaintiffs, all AT&T or Verizon customers, seek to vacate T-Mobile/Sprint on grounds that the transaction caused their own wireless rates to soar.

U.S. District Judge Edgardo Ramos for Southern New York in Manhattan granted the FTC’s motion to strike defendants Iqvia and Propel Media’ s constitutional and equitable defenses with prejudice, said his signed opinion and order Tuesday (docket 1:23-cv-06188). The FTC argued that defenses asserted by Iqvia in the antitrust case should be dismissed on grounds that several raise constitutional challenges to the FTC’s powers that are “immaterial” and “impertinent” to the “narrow inquiry” that the court must undertake pursuant to the FTC Act in evaluating a claim for a preliminary injunction. The FTC seeks to enjoin Iqvia from completing its purchase of Propel Media (see 2310120051), saying the proposed acquisition would “substantially lessen competition by combining two of the top three providers of programmatic advertising targeted specifically at U.S.-based [healthcare professionals] on a one-to-one basis.” The court agreed with the FTC that the defenses are either “legally insufficient or inadequately pled and that the FTC would be prejudiced by their inclusion.” The state of the law in the Second Circuit is “well settled” that a laches defense is not available against the government when it is protecting the public interest, “and there can be no dispute that the FTC commenced this action to protect the public interest,” said the order. Defendants' asserted that the doctrine of equitable estoppel “binds the FTC to the claims, assertions, and admissions made by the U.S. Government about the digital advertising industry” in a suit pending against Google in the Eastern District of Virginia. But Ramos said that suit alleges that under sections 1 and 2 of the Sherman Act, Google is a monopolist in digital advertising and has significant market share as a demand-side platform. Equitable estoppel may apply where “(1) the party to be estopped makes a misrepresentation of fact to the other party with reason to believe that the other party will rely on it; (2) and the other party reasonably relies upon it; (3) to her detriment,” Ramos said, citing Kosakow v. New Rochelle Radiology Associates. But it is “well established” that “the Government may not be estopped on the same terms as any other litigant,” he said, and, citing Davila v. Lang, only “’in the most serious of circumstances’ when a party has reasonably and detrimentally relied on the government’s misrepresentation, and the government has engaged in affirmative misconduct.” Defendants here “do not provide any allegations making it plausible that they can satisfy the estoppel requirements -- even before accounting for the higher standard to invoke the defense against the government,” he said. Allowing the estoppel defense to remain “would prejudice the SEC by needlessly lengthening and complicating the discovery process and trial of this matter.”

The 9th U.S. Circuit Court of Appeals scheduled oral argument for Dec. 14 at 9 a.m. PST in San Francisco in appellant SaurikIT’s appeal of the district court’s dismissal of its antitrust claims against Apple on grounds that those claims were time-barred, said a text-only notice Tuesday (docket 22-16527). SaurikIT, parent of the Cydia app, brought its claims against Apple in 2020. It alleges that Apple’s requirement that all iOS app developers must agree not to distribute through any channel except the App Store, and to use only Apple’s in-app programming interface for payment processing, gives Apple a monopoly on both (see 2301130035).

Friday’s decision of the U.K.’s Competition & Markets Authority (CMA) granting final approval of Microsoft’s $69 billion Activision Blizzard buy, enabling the transaction to close, “provides an independent basis” for the 9th U.S. Appeals Court’s “affirmance” of the merger, wrote Wilkinson Stekloff partner Rakesh Kilaru, counsel for Microsoft, to the 9th Circuit clerk in a letter Friday (docket 23-15992). The CMA’s decision provides an independent basis for affirmance, said Kilaru. Activision, before the closing, agreed to divest global cloud streaming rights to all existing console and PC games, and those produced over the next 15 years, to Ubisoft, he said. Microsoft “accordingly does not own or control cloud-gaming rights for any Activision titles “streamed in the U.S. and other global jurisdictions," he said. Microsoft also agreed not to interfere with Ubisoft’s cloud streaming rights, and to give Ubisoft versions of Activision games that are on par with the non-streaming versions of those games, he said. The CMA’s decision further says Microsoft’s preexisting commitments to regulators and third parties “remain intact,” he said: “Taken together, these actions eliminate any possible claim that Microsoft will withhold Activision content from rivals in the alleged cloud streaming market.”

The court should grant the FTC’s motion to strike and dismiss defendants Iqvia and Propel Media’ s constitutional and equitable affirmative defenses with prejudice, said the FTC’s Wednesday reply memorandum of law (docket 1:23-cv-06188) in U.S. District Court for Southern New York in Manhattan. The FTC moved the court last month to strike those defenses asserted by Iqvia on the grounds that several raise constitutional challenges to the FTC’s process and powers that are “immaterial” and “impertinent” to the “narrow inquiry” that the court must undertake pursuant to Section 13(b) of the FTC Act in evaluating a claim for a preliminary injunction enjoining Iqvia from completing its purchase of Propel Media. Iqvia also raised defenses of laches and estoppel that weren't properly pled and can’t be raised against the government in the circumstances of this case, said the FTC's reply. The FTC will suffer prejudice if forced to expend resources defending against “sideshow matters that have no bearing on the Section 13(b) inquiry," said the agency. That's "especially true in light of the expedited nature of these proceedings and the far-reaching implications of Defendants’ allegations -- which attack the constitutionality not just of the FTC, but also of other federal agencies that use administrative proceedings to protect and serve the American public,” it said in September. Defendants argued in their opposing memorandum of law this month (see 2310050057) that Section 13(b) of the FTC Act allows a court to issue a temporary restraining order and preliminary injunction in favor of the FTC only after “weighing the equities” and considering its likelihood of success. “The Court must consider whether the FTC is likely to ultimately succeed on its underlying claim that the merger would be anticompetitive, and must weigh the equities of enjoining the merger pending the administrative proceedings,” defendants said, saying their constitutional defenses “challenge the constitutionality of the FTC itself as well as of the administrative proceedings in connection with which the FTC initiated this action.” Defendants didn’t cite one Section 13(b) case to support their “novel interpretation,” said the FTC’s Wednesday reply. Given the importance of constitutional challenges, “the statutory scheme of the FTC Act and the Federal Rules mandate certain procedures to ensure that the government has sufficient time to defend itself against such charges, which have implications across federal agencies,” it said. Defendants’ “self-imposed drop-dead date” for the acquisition, which they have established can be moved, “is not a basis to push this Court to grapple with far-reaching constitutional issues on an expedited schedule,” the FTC said.

DirecTV, “to avoid any doubt,” wants U.S. District Judge Paul Crotty for Southern New York in Manhattan to know that the new retrans consent agreement that DirecTV signed Sept. 16 with Nexstar doesn’t “resolve or diminish” any of DirecTV’s antitrust claims against Nexstar and its sidecar companies Mission Broadcasting and White Knight (see 2303150041), DirecTV counsel wrote the judge in a letter Thursday (docket 1:23-cv-02221). DirecTV’s arguments in its opposition to Nexstar’s pending motion to dismiss (see 2307140034) also haven’t changed, Olivier Antoine of Crowell & Moring told the judge. Nexstar argues DirecTV’s “hollow” lawsuit should be dismissed for lack of standing (see 2306270051), but DirecTV’s standing “is based on lost profits arising from the blackout of stations” owned by Nexstar, Mission Broadcasting and White Knight, said Antoine’s letter. “Those blackouts remain in effect and have continued throughout this case,” it said. DirecTV’s “escalating damages and the related harm to consumers” warrant prompt resolution of the defendants’ motion to dismiss, “so that the parties can proceed to discovery” and the merits of DirecTV’s antitrust claims, it said. Nexstar similarly told the judge in a letter two days earlier that the Sept. 16 retransmission renewal that DirecTV signed with Nexstar leaves “unchanged” Nexstar’s arguments that DirecTV lacks standing to pursue its antitrust claims (see 2310040024).

DirecTV’s Sept. 16 signing of a retransmission renewal with Nexstar Media covering 176 of Nexstar’s local stations and NewsNation leaves “unchanged” Nexstar’s arguments that DirecTV lacks standing to pursue its antitrust claims against Nexstar and sidecar companies Mission Broadcasting and White Knight Broadcasting (see 2306270051), Nexstar said. That's because DirecTV doesn’t allege it paid supracompetitive prices associated with those retrans agreements, Nexstar’s counsel wrote U.S. District Judge Paul Crotty for Southern New York in a letter Tuesday (docket 1:23-cv-02221). “Events occurring after the filing of the complaint cannot operate to create standing where none previously existed,” said Nexstar. It’s of “no legal moment” that DirecTV entered into a retrans renewal with Nexstar after filing its complaint, it said. DirecTV still lacks standing based on the facts and circumstances that existed as of March 15, it said.