U.S. District Court Judge Edward Davila for Northern California ordered the FTC and Meta to submit a joint statement within 14 days, setting forth their positions and supporting bases as to whether the court’s Jan. 31 order (see 2302010003) denying the commission’s motion for preliminary injunction against Meta’s purchase of virtual reality company Within Unlimited buy should remain under seal. Davila’s order on intent to unseal (docket 5:22-cv-04325) was filed Monday in U.S. District Court for Northern California in San Jose. The court initially posted the order under seal and subsequently posted a public version with redactions in March (see 2303160046). On Monday, Davila directed the parties to consult with third parties whose confidential information is implicated by the sealed and redacted portions of the January order. Nonparties involved in the order include Alphabet, Apple, ByteDance, Eric Janszen, Equinox, HTC, Lululemon, Peloton, Sony and Valve. Davila rejected for lack of evidence the FTC’s potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated VR fitness apps. Meta bought the VR company in February for a reported $400 million.

U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco denied the FTC’s motion for a preliminary injunction July 10 to halt Microsoft’s Activision buy (see 2307110061) “despite agreeing with the FTC on key elements such as the relevant geographic and product markets for analysis,” said the agency’s 9th U.S. Circuit Court of Appeals mediation questionnaire Monday (docket 23-15992) in support of its appeal of Corley’s denial. Corley found that the combined firm “would have the ability to foreclose its rivals, and would likely offer Activision content exclusively on Microsoft’s Game Pass service, but not on rival services,” said the questionnaire. The judge nevertheless denied relief because she views Microsoft as “lacking the post-merger incentives to foreclose rivals” in the consoles and cloud gaming markets, and because she viewed the deal, on balance, as “procompetitive in the multi-game library services market,” it said. She also deemed Microsoft's post-complaint “side deals” and offers “as negating the incentive to foreclose and thus sufficient to remedy any substantial lessening of competition as a result of the merger,” it said. Though Corley’s order denying the injunction “acknowledged that the record contains at least conflicting evidence of anticompetitive effects,” she found that the equities “do not support preliminary relief,” it said. On appeal, the principal issues are likely to be the district court's “misapplication” of Section 13(b)'s legal standard for relief and the “sufficiency” for preliminary relief of the court's finding of foreclosure in the multi-game library services market, said the questionnaire. Another key issue on appeal will be Corley’s erroneous "counting" of the defendants' “proffered remedies” as part of the FTC's "likelihood of success" analysis, it said.

U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco denied the FTC’s motion for an injunction enjoining Microsoft’s Activision Blizzard buy pending the outcome of the commission’s appeal to the 9th U.S. Circuit Court of Appeals, said her signed order Thursday (docket 3:23-cv-02880). The FTC’s motion earlier Thursday said the injunction was necessary “to preserve the status quo” while the 9th Circuit reviews Corley’s July 10 opinion denying the FTC’s request for a preliminary injunction (see 2307110061). Microsoft and Activision, in an opposition filing Thursday, urged Corley to reject the FTC’s motion.

The June 26 motion of Nexstar and sidecar companies Mission Broadcasting and White Knight Broadcasting to dismiss DirecTV’s retransmission consent antitrust complaint (see 2306270051) “reads as if it were a motion for summary judgment on a full factual record,” said DirecTV’s memorandum of law in opposition Thursday (docket 1:23-cv-02221) in U.S. District Court for Southern New York in Manhattan. In an attempt to escape the complaint’s 225 paragraphs “of well-pleaded evidentiary facts supporting a plausible inference of a conspiracy,” the defendants rely on what they call “facts” that are alleged “nowhere” in the complaint, said DirecTV. They repeatedly assert, for example, that their “supracompetitive price demands” were caused by rising content costs “rather than conspiracy,” it said. They likewise ask the court to reject, rather than accept as true, “many of the facts that are alleged in the complaint,” it said. That includes “direct evidence” confirming that Nexstar, the conspiracy’s “puppet master,” received highly confidential rate information from its sidecars, it said. The defendants’ failure to abide by the “strictures” of Rule 12(b) is underscored by their failure to acknowledge even once in their 50-page brief “the controlling legal precedent for pleading an antitrust conspiracy at this stage of litigation,” said DirecTV. They “fare no better” with their attempts to have the court dismiss DirecTV’s state law claims for breach of contract and tortious interference, it said. Those “likewise turn on highly factual arguments” and a “misreading” of the complaint’s allegations, it said. Their factual arguments “will simply have to await another day,” it said. “Their motion to dismiss should be denied in full.”

Local TV advertisers in an antitrust suit against Hearst Television, Gray Television, Nexstar, Tegna and about a dozen other media companies asked the court to deny Tegna, Raycom and Meredith’s motion for an extension to produce advertiser and agency contact information. If the court provides a reprieve of the Thursday deadline, plaintiffs Fish Furniture, Hunt Adkins, One Source Heating & Cooling, and Thoughtworx asked that it not extend beyond Friday, said the Thursday response (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. Plaintiffs also asked the court to order movants to cover their costs for responding to movants’ three motions, plus costs incurred in delaying the notice program, it said. On June 15, the court ordered movants to produce customer contact information within 21 days for purposes of providing settlement notice. “Rather than immediately notify Plaintiffs or the Court that production of such information would purportedly take at least 60 days -- a fact Movants have apparently known for months -- they sat silently on their hands,” said the response. The information the court ordered movants to produce “is basic customer contact information already produced by every other Defendant in the case and regularly produced by defendants in antitrust cases like this one,” it said.

A motion last week by non-settling defendants to reconsider, vacate and/or stay orders on preliminary approval of settlements and notice in Local TV Advertising Antitrust Litigation shows “a fundamental misunderstanding of antitrust settlements and the approval and notice process” and should be denied, said local advertising plaintiffs’ response (docket 1:18-cv-06785) Wednesday in U.S. District Court for Northern Illinois in Chicago. The June 26 motion by Tegna, Griffin Communications, Meredith, Sinclair, Gray Media, E.W. Scripps, Nexstar Media and Tribune Broadcasting, “which accuses the Court of failing to follow Seventh Circuit precedent and Rule 23 in preliminarily approving four settlements,” seeks to “trample on” the due process rights of settlement class members; “deprive settlement class members of valuable and timely cooperation” from settling defendants CBS, Fox, Cox Media and ShareBuilders; ignores the court’s prior ruling on the direct purchaser status of advertising agencies; and “asserts harm that is purely speculative and no different from that incurred by every other non-settling defendant in an antitrust case,” plaintiffs said. The non-settling defendants also moved the court last week for an order staying dissemination of notice to the settlement classes until the court has given non-settling defendants a chance to be heard on plaintiffs’ motion for preliminary approval of the proposed settlements. The movants, as non-settling defendants, “lack standing to object to the settlements, including certification of the settlement classes," said plaintiffs’ response. Even if movants could overcome the standing bar, they haven't identified “any manifest error by the court" that would warrant reconsideration of the preliminary approval and notice orders, nor have they identified hardship or inequity that would warrant a stay, it said. 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 (see 2305300073).

Trial in the consolidated antitrust cases brought by DOJ and 48 states alleging Google monopolies in search services and advertising will begin Sept. 12 with the parties’ opening statements and the start of the DOJ plaintiffs’ case-in-chief, said U.S. District Judge Amit Mehta for the District of Columbia in a signed order Friday (docket 1:20-cv-03010). The states’ case-in-chief will begin on or about Oct. 9, Google’s on or about Oct. 25, said the order.

Non-settling defendants in the long-running Local TV Advertising Antitrust Litigation (MDL No. 2867) moved the court to reconsider, vacate and/or stay orders on preliminary approval of settlements and notice, in a Wednesday filing (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. They also moved the court for an order staying dissemination of notice to the settlement classes until the court has given non-settling defendants a chance to be heard on plaintiffs’ motion for preliminary approval of the proposed settlements. 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 (see 2305300073). 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. The process didn't involve "the level of scrutiny required by the Federal Rules and did not permit affected parties, including Non-Settling Defendants, to raise with the Court their objections to the settlement class definition and notice plan that would cause them harm,” it said. The notice order should be vacated and the proposed notice amended to clarify that non-settling defendants “have not been adjudged to have participated in an antitrust conspiracy,” it said. The court should stay preliminary approval proceedings and dissemination of notice until after briefing and a hearing on plaintiffs’ motion for preliminary approval of the four proposed settlements, it said. In a separate filing, 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.”

The Computer & Communications Industry Association reacted with scorn Thursday to reports the FTC is expected to sue Amazon to break Amazon Prime’s free two-day shipping and force divestiture of the company’s logistics critical to the business model that enables small and medium-sized sellers to sell through Amazon’s store. The FTC is expected to allege Amazon leverages its position to reward online merchants that use its logistics services and punish those that don’t, said CCIA. “It’s difficult to understand why at a time when Americans are frustrated with rising prices, the FTC is prioritizing a case against a service that consumers love, which enables small and medium-sized sellers to reach customers worldwide,” said CCIA President Matt Schruers in a statement. “What has given the U.S. a more competitive tech industry that benefits consumers and lowers prices has been a legal and regulatory framework that focuses on how companies’ actions impact consumers -- not other would-be competitors," he said. Consumers complain of high prices for prescription drugs, food and gas, digital goods and services, but they're “getting more affordable all the time, with many offering free products and free shipping,” he said. “Consumers are best served when regulators focus on consumer harm, and in industries where prices are high due to lack of competition.” The FTC, in an email, declined comment. Amazon didn't respond to a query. The FTC’s June 21 lawsuit alleged Amazon “has knowingly duped” millions of consumers for years into “unknowingly enrolling” in Amazon Prime, in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (see 2306210064).

Gannett's lawsuit against Google was accepted as a related case in Google Digital Advertising Antitrust Litigation in U.S. District Court for Southern New York in Manhattan, said U.S. District Judge Kevin Castel's Thursday order (21-md-3010). Gannett v. Google will be coordinated for pretrial proceedings with the multidistrict litigation and is subject to all existing and future orders and schedules of the New York district court entered in the MDL without prejudice to its right to seek certain modifications appropriate to its circumstance, said the order. Gannett sued Google Tuesday (see 2306220028) for antitrust violations in its digital advertising business. Gannett 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.