The 9th U.S. Circuit Court of Appeals scheduled in-person oral argument Dec. 6 at 9 a.m. PST in San Francisco in the FTC’s appeal to reverse the district court’s denial of its preliminary injunction to block Microsoft’s Activision Blizzard buy, said a text-only notice Friday (docket 23-15992). Counsel will have the option to appear in-person or remotely, and opting to appear remotely by video won’t require a motion “at this time,” said the notice. Each side will get 20 minutes of argument, said a 9th Circuit calendar entry.

An expected September FTC antitrust lawsuit against Amazon that “materially alters the structure of the business" is "unlikely” since antitrust legislation over the past half-century “has largely favored businesses that improve consumer welfare,” wrote Wedbush Securities analyst Michael Pachter in a Thursday investor note. U.S. retail continues to function as a “highly competitive market” offline and online “despite Amazon’s success," Pachter said. Large retailers have replicated Amazon’s marketplace business model, along with digital enablers including Shopify that have “powered hundreds of billions” of gross merchandising value (GMV) “outside of Amazon’s ecosystem.” Customers are “highly satisfied” with Amazon, Pachter said, citing its No. 1 ranking for value and selection in the 2023 American Customer Satisfaction Index among online retailers and second-place ranking for overall for online retail customer satisfaction. “There is still ample opportunity with eCommerce outside of Amazon for brands/sellers of all sizes,” said Pachter, noting the success of over 2 million Shopify merchants that are on pace to generate over $230 billion in GMV this year. Citing published reports, Pachter said the FTC’s expected upcoming lawsuit will focus on elements of Amazon’s marketplace, including its third-party seller services, logistics and advertising, plus allegations it prevents sellers from setting lower prices for their goods on other platforms. “Reportedly, the FTC is concerned about the methods Amazon uses to stimulate adoptions of seller services,” including its practice of providing preferred product placement for sellers using its service Fulfilled by Amazon, Pachter said. The FTC is also said to be considering Amazon Prime as part of an antitrust suit over concerns that the program’s bundled service approach “may have illegally helped Amazon secure its market power," the complaint said. The FTC didn’t comment.

Five months of discovery have passed, and Google “still lacks basic information” about DOJ’s claims for damages as sought in four interrogatories and a request for proposal (RFP), said the defendant in a Thursday reply (docket 1:23-cv-00108) in U.S. District Court for Eastern Virginia in Alexandria in support of its motion to compel responses to discovery requests in the DOJ’s antitrust suit against the firm. Just because DOJ’s expert will later provide a report doesn’t excuse its failure to provide damages and answer interrorgatories in ways that comply with rules, said Google, saying it’s “entitled to information responsive to our discovery requests now.” DOJ has the information, Google said, saying that DOJ told the court and Google it needed “invoice data” from Google because it “would validate and confirm purchase information collected from dozens of different sources, including FAAs and their advertising agency contractors, in a multitude of different forms, including scanned documents.” Google’s motion to compel, filed on the last day of the fact discovery period, “seeks to compel further responses to a grab bag of requests” exceeding the duration of discovery in the case, said DOJ’s response (docket 1:23-cv-00108) to Google’s motions to compel responses to various discovery requestion Wednesday. The court should deny Google’s motion to compel responses in the digital advertising antitrust case should be denied, DOJ said. The company “made little attempt to confer” with DOJ to resolve its concerns before filing the motion, it said. Google raised several alleged deficiencies “that have since been addressed,” said the response; on the rest of its arguments, Google “misstates the applicable standards and case law,” and “seeks to apply standards” to DOJ “which it has not met itself," it said. In May, DOJ said in a reply it had been unable to secure Google’s agreement to produce relevant documents from successor custodians or critical source code documents underlying key allegations in DOJ’s amended complaint (see 2306020038). Google seeks to compel discovery responses without adequately meeting and conferring, in contravention of local civil rule 37(E), said DOJ's response. Though Google said it made a “good faith effort” to narrow the dispute before filing the motion, it provides “scant evidence” of attempts to resolve issues raised in its motion, said DOJ. The defendant seeks relief on discovery responses “which were not even due, and which Google had not even seen” when it filed its motion, or on requests the parties never discussed during a phone conference, it said. Noting the nature of the advertising tech industry, DOJ said much of the information required to prepare a final computation of damages belongs to Google or other third parties. DOJ has tried to obtain that information, but Google has, in many instances, refused to provide relevant information saying it’s unduly burdensome or inconsistent with how Google stores financial records, it said. With discovery drawing to a close, minus the “millions of documents Google failed to produce” in violation of court orders, DOJ is working to prepare reports detailing the damages it has suffered, it said.

The agreements that Microsoft “hastily sought” with some of its competitors as part of its “eleventh hour attempt to assuage the concerns of regulators” about its Activision Blizzard buy (see 2306220070) “are filled with loopholes and speculative commitments,” said the FTC’s redacted bench brief Friday (docket 3:23-cv-02880) in U.S. District Court for Northern California in San Francisco regarding the defendants’ “proffered testimony” about those agreements. All the agreements “purport to bring Activision content to rivals’ platforms” contingent on the consummation of the transaction, said the brief. Microsoft and Activision intend to make the agreements “central to their defense,” the brief said. The FTC expects Microsoft executives to continue to testify about the agreements’ purported benefits despite having wielded privilege “as a shield to withhold information relevant to testing those purported benefits,” it said. Microsoft and Activision “are incorrect that the FTC has been dilatory because it did not move to challenge the privilege claims and compel testimony,” it said. The defendants “protected this evidence from discovery on grounds of attorney-client privilege, which the FTC assumed was made in good faith and had no reason to contest at the time,” it said. The FTC is entitled to prevent the defendants from “selectively waiving that privilege” to elicit testimony about the beneficial effects of the agreements, or to allow one of its expert witnesses “to base his opinions regarding the procompetitive effects of witnesses whose foundation is locked behind privilege,” it said. Those agreements have no “place in these proceedings,” it said.

Google, a nonparty to the FTC’s lawsuit to block Microsoft’s Activision Blizzard buy on antitrust grounds, renews its request to seal a portion of one sentence in the FTC’s final proposed findings of fact and conclusions of law, said its statement in support Thursday (docket 3:23-cv-02880) in U.S. District Court for San Francisco. The section of Google’s declaration in the FTC document that Google wants sealed “contains commercially sensitive details regarding Google’s financial investment in its Stadia business which, if disclosed, could reveal Google’s forward-looking business strategies,” said the statement. Stadia, Google's cloud gaming service, was launched in November 2019 and shut down in September. “Legitimate confidentiality and competitive interests warrant the sealing of this highly confidential information, the disclosure of which would cause injury to Google that could not be avoided through any less restrictive alternative to sealing,” it said. “Any public interest in disclosing the redacted information is outweighed by the prejudice that will result to Google,” it said.

Google moved the U.S. District Court for Eastern Virginia in Alexandria to order DOJ to answer a request for admission within seven days, said a Friday memorandum (docket 1:23-cv-00108) in support of its motion to compel a response in the January antitrust case brought by DOJ and eight states (see 2301240055). The plaintiffs want Google to divest its digital advertising platform, including its DFP ad server and AdX ad exchange, to “cure any anticompetitive harm.” Google followed the court’s guidance and served “straightforward requests for admission” to DOJ about its departments’ and agencies’ alleged purchases of open web display advertising from Google, said the memorandum. Whether those departments or agencies did make direct purchases “could be fleshed out in discovery ‘rather quickly,’” said the filing, citing Illinois Brick v. State of Illinois. “As the Court recognized, Google is entitled to discovery on whether the United States is a ‘buyer' of open web display advertising directly from Google because, with certain narrow exceptions, only direct purchasers have antitrust standing to sue for damages under the Sherman Act,” said the memorandum. Google moved to dismiss the amended complaint on grounds that the DOJ lacks antitrust standing under Illinois Brick, but the court rejected that argument, saying whether the U.S. was a direct purchaser was a factual issue. The court said the only argument Google might have would be if it had used one or two middlemen, which would require discovery. “Consistent with the Court’s guidance," Google’s RFA 1 states, "Admit that, during the Damages Period, the Federal Agency Advertisers did not purchase ‘open web display advertising’ directly from Google,” said the memorandum. Google asks the court to overrule the DOJ’s objections and say the agency's response to Google’s RFA 1 is “insufficient and in non-compliance with Rule 36,” and that the DOJ be ordered to answer RFA 1 within seven days, it said. A hearing is set for Friday at 10 a.m. EDT for Google to present oral argument in support of its motion to compel a response from DOJ.

The special master in Local TV Advertising Antitrust Litigation, retired Judge Richard Levie, recommended (docket 1:18-cv-06785) Wednesday the U.S. District Court for Northern Illinois in Chicago grant in part and deny in part local TV advertising plaintiffs’ motion to compel production of antitrust compliance documents from defendants Nexstar, Raycom, Scripps and Tegna. Defendants “largely failed to carry their burdens to establish that the attorney-client privilege or the work product doctrine applied to the documents they claimed were privileged,” said Levie's report. CBS, Fox, Cox Media and ShareBuilders agreed in May to a $48 million settlement with advertisers in the lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal. The non-settling defendants -- Tegna, Griffin Communications, Meredith, Sinclair, Gray Media, E.W. Scripps, Nexstar Media and Tribune Broadcasting -- don’t oppose the “substance” of the partial settlements; they oppose certain aspects of the proposed notice process, recipients of the proposed notice and the content of the notices. Tegna, Raycom (now Gray Media) and Meredith moved the court to reconsider and vacate the portion of its order that compels them to turn over their customer contact information to plaintiffs’ counsel “without any restriction or limitation on its use.”

Iqvia and Propel Media shall not consummate their acquisition until after 11:59 p.m. EST Nov. 22 or the third business day after the court rules on the FTC’s request for a preliminary injunction under the FTC Act, whichever is earlier, said U.S. District Court Judge Edgardo Ramos’ temporary restraining order (TRO) Friday (docket 1:23-cv-06188) in U.S. District Court for Southern New York in Manhattan. The companies are to take all necessary steps to prevent their officers, directors, agents, divisions, subsidiaries, affiliates, partnerships and joint ventures from completing the acquisition, the order said. Allowing health data firm Iqvia to complete its buy of digital advertising company Propel Media before issuance of a decision on the merits by the FTC through the administrative process “would harm consumers and undermine” the commission’s ability to remedy the anticompetitive effects of the proposed buy, said the FTC Wednesday in its complaint for a TRO (see 2307200024). Defendant Iqvia, the “self-described ‘market leader’ in healthcare data, seeks to extend its dominance into programmatic advertising to healthcare professionals (HCPs) through the proposed acquisition of DeepIntent," which Propel Media bought in 2017, said the FTC’s 245-page memorandum of law in support of the TRO. The proposed Propel buy, which follows Iqvia’s buy of Lasso Marketing in July 2022, would give Iqvia control of two of the three leading healthcare demand-side platforms (DSPs) that deliver automated, programmatic, digital ads directly to U.S. HCPs via websites, mobile apps and smart TVs, said the memorandum. Because Iqvia already controls the top healthcare data for running ad campaigns to HCPs, Iqvia would have the ability and incentive “to disadvantage current and potential rivals to DeepIntent and Lasso” after the acquisition, said the memorandum. It cited the “indicia of vertical harm" identified by the U.S. Supreme Court in Brown Shoe Co. v. U.S., saying Iqvia is “likely to disadvantage Lasso’s and DeepIntent’s competitors” post-acquisition. As a result, competition in the growing market “will be curtailed, and healthcare companies will be forced to pay more to market their products,” it said.

The 9th U.S. Circuit Court of Appeals gave counsel for the FTC, Microsoft and Activision Blizzard a deadline of this Friday for informing the circuit mediator about their clients’ views “on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future,” said an amended mediation order Friday (docket 23-15992). The commission is appealing the July 10 order of U.S. District Judge Jacqueline Scott Corey denying its motion for a preliminary injunction to bar Microsoft from consummating its Activision buy (see 2307110061). The existing briefing schedule remains in effect, said the order. The FTC’s opening brief is due Aug. 9, and the Microsoft/Activision answering brief is due Sept. 6.

Google requested permission Tuesday to file a motion to dismiss certain claims in Gannett v. Google, an antitrust lawsuit filed last month in U.S. District Court for Southern New York in Manhattan (see 2306220028). The lawsuit alleges Google manipulates “real-time bidding,” monopolizes publisher ad serving, “abuses” the Google DoubleClick for Publishers (DFP) ad platform to monopolize the market for ad exchanges, manipulates DFP to “artificially deflate bids from rival exchanges” and eliminates price floors while imposing unified pricing rules. In the Tuesday letter (docket 1:23-cv-05177) to U.S. District Court Judge Kevin Castle for Southern New York, Google counsel Justina Sessions of Freshfields Bruckhaus noted Gannett is represented in the case by the same counsel as the Daily Mail and its complaint “closely tracks” with that complaint, “including copying 198 of its 275 paragraphs almost verbatim.” As a result, the Gannett complaint includes several allegations the court previously ruled didn't state a claim, plus claims Google moved to dismiss from amended private plaintiff complaints in this MDL, Sessions said. Google doesn’t believe any distinctions warrant a different ruling between the federal antitrust claims in Gannett’s complaint, those brought by 15 states in the third amended complaint in Digital Advertising Antitrust Litigation, and other antitrust suits involving its digital ad business. Google asked to move to dismiss Gannett’s claims on bypassing directly sold deals via Enhanced Dynamic Allocation and line item caps as barred by the four-year statute of limitations. The court previously ruled the states adequately pleaded claims for injunctive relief on Enhanced Dynamic Allocation and line-item caps and declined to adjudicate the issue of laches on the pleadings, Sessions said. Gannett alleges it knew of, and complained to Google about, Enhanced Dynamic Allocation in 2014, nine years before filing its complaint in 2023. Gannett allegedly “discovered” that Enhanced Dynamic Allocation affected Gannett’s “sponsorship deals” five years ago, in 2018, she said. Gannett alleges Google began limiting the number of line items publishers could create in the ad server in 2017. “These claims are barred by the statute of limitations because Gannett knew of -- and indeed complained about -- the challenged practices more than four years before it filed its complaint,” she said.