Plaintiffs in Local TV Advertising Antitrust Litigation entered into four separate proposed settlements, said a Wednesday order (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. U.S. District Judge Virginia Kendall approved preliminary settlements with CBS, Fox, Cox Media and ShareBuilders. Defendants CBS, Fox, the Cox Entities and data-tracking firm ShareBuilders agreed last month (see 2305300073) to a $48 million settlement with advertisers in the long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal (see 2306120057). In the settlement, Cox, CBS and Fox agreed to provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, including Nexstar, Sinclair and Gray. The agreements were arrived at by “arm’s-length negotiations by highly experienced counsel,” meet all factors under Federal Rule of Civil Procedure 23(a), 23(b)(3), and 23(e), and will likely be granted final approval by the court, Kendall said. The court appointed attorney Megan Jones of Hausfeld as settlement class counsel. Plaintiffs One Source Heating & Cooling, ThoughtWorx, Hunt Adkins and Fish Furniture will be class representatives for the settlement classes.

A district court’s order granting class certification in Mary Carr v. Google violates Article III and the due process clause, said an amicus brief (docket 23-15285) on behalf of Google co-filed by The Computer & Communications Industry Association (CCIA) and the International Association of Defense Counsel in the 9th U.S. Circuit Court of Appeals Thursday. Carr alleges Google created a monopoly by erecting contractual and technological barriers that prevented Android users from using app distribution platforms other than the Google Play store (see 2302280042). The class of 21 million consumers seeks $4.7 billion in damages for purchases at Google Play. The U.S. District Court for the Northern District of California's ruling established a plaintiff class that likely includes “a significant proportion of uninjured parties,” said the brief. “Unless district courts employ credible models and direct evidence to make class-wide determinations, they will inevitably pull in larger and larger swaths of uninjured class members as innovative technologies continue to proliferate and class actions become more expansive,” it said. “Certifying improperly inflated classes could have far-reaching consequences for innovation, if digital services become easy targets for large class actions, and for the legal system which will be grossly overburdened with spurious lawsuits,” said CCIA Chief of Staff Stephanie Joyce in a Thursday news release, urging that “appropriately stringent analysis be conducted here and on all future requests for class treatment.” In another amicus brief, Google lead attorney Michael Hamburger of White & Case, on behalf of business professors and professors of antitrust law, said the district court “failed to rigorously analyze the evidence at class certification” resulting in “millions of consumers based on a record that does not establish injury on a class-wide basis.” The lower court failed to account for real-world evidence showing most putative class members “were uninjured,” and its order should be vacated, it said. The district court "ignored that app developers use focal-point pricing," such as prices ending in 99 cents, it said. "As a result, the small rate changes plaintiffs claim would exist in a but-for world likely would not be passed on unless developers abandoned this practice," but no evidence suggested developers would abandon focal-point pricing, it said. Also, the brief said, the district court certified the class "without addressing other cases in the Northern District of California that denied certification because of focal-point pricing," including an analogous case involving allegations Apple's fees to developers were excessive on its app store.

U.S. District Judge Edward Davila for Northern California in San Francisco granted the FTC’s motion for a temporary restraining order enjoining Microsoft from consummating its Activision Blizzard buy (see 2306130033), said his signed order Tuesday (docket 3:23-cv-02880) on behalf of U.S. District Judge Jacqueline Scott Corley, who was assigned the case. The TRO is necessary “to maintain the status quo” while the FTC’s complaint against Microsoft and Activision is pending, said the order. It also preserves the court’s ability “to order effective relief in the event it determines a preliminary injunction is warranted,” it said. The TRO will preserve the FTC’s ability “to obtain an effective permanent remedy in the event that it prevails in its pending administrative proceeding,” it said. Microsoft and Activision are enjoined from completing their proposed transaction until after 11:59 p.m. Pacific time on the fifth business day after the court rules on the FTC’s request for a preliminary injunction, it said. The order sets a June 22-23 evidentiary hearing on the FTC’s motion for a preliminary injunction before Corley. Microsoft and Activision will submit their brief in opposition to the motion for preliminary injunction by the close of business Friday, and the FTC’s reply is due June 20 by noon PDT, it said.

Advertiser plaintiffs in a long-running antitrust lawsuit against media companies moved the court to appoint JND Legal Administration as the settlement administrator to provide notice and settlements to members of proposed settlement classes and to approve the means and form of notice, said their motion (docket 1:18-cv-06785) Friday in U.S. District Court for Northern Illinois in Chicago. They also seek to order defendants Tegna, Gray Media Group and Meredith to produce customer contact information. Defendants CBS, Fox, the Cox Entities and data tracking firm ShareBuilders agreed last month (see 2305300073) to a $48 million settlement with advertisers in the long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal. Under the settlement, Cox, CBS and Fox agreed to provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, including Nexstar, Sinclair and Gray. On May 26, plaintiffs filed a motion for preliminary approval of the settlements in which plaintiffs sought certification of four settlement classes, one for each settling defendant. Plaintiffs now seek approval of the proposed notice program, expected to be directed to all putative members of the settlement classes, that will be supplemented by a media campaign, the filing said. The notice documents will contain “easy-to-read” settlement summaries and instructions on how to get more information, said the motion. Tegna, Raycom and Meredith have declined to produce customer contact information necessary to facilitate the notice program, the motion said. Their primary objection was that it was premature prior to plaintiffs’ seeking approval of settlements. With that objection now “mooted... there is no reason to delay entering an order compelling the production of this necessary information.”

The antitrust bar being especially lacking in diversity is problematic, said Elizabeth Wilkins, chief of staff to FTC Chair Lina Khan, Thursday at an FCBA Diversity Pipeline event. She said the agency has been thinking about diverse recruitment issues for its staff, with pipeline programs like the FCBA's being an important tool. Keynoting at the event, American Association of Public Broadband Executive Director Gigi Sohn discussed her career and alluded to but didn't directly discuss her failed nomination for FCC commissioner.

The plaintiffs’ opposition to Google’s April 20 motion for partial summary judgment in the consolidated Google Play store antitrust litigation doesn’t identify “any material fact in dispute, and this Court accordingly need decide only pure legal issues,” said Google’s reply Thursday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco in support of its motion. The plaintiffs “ignore or misconstrue” governing antitrust law in an effort to save their “flawed claims,” and the “relevant precedent” makes clear that Google is entitled to summary judgment on each ground it has raised in its “targeted motion,” it said. The plaintiffs’ claim that Google must distribute rival app stores is “baseless,” said the reply. Google’s decision not to distribute rival app stores through the Google Play store is lawful, and courts already correctly rejected the plaintiffs’ theory that this decision “becomes unlawful merely because it is combined with other conduct,” it said. The plaintiffs’ claims based on Google’s revenue-sharing agreements with the wireless carriers are “time-barred,” said the reply. There’s no dispute those agreements “ended outside of the limitations period,” it said. Precedent makes clear that the plaintiffs can’t use “later conduct within the limitations period as a bootstrap to recover for supposed injuries from those early agreements,” it said. All of the plaintiffs’ claims for damages from subscriptions and in-app purchases fail “because antitrust law requires plaintiffs to have suffered injury in the market where competition is allegedly restrained,” it said. But the plaintiffs’ own experts demonstrate that the plaintiffs can’t “satisfy that requirement,” it said.

U.S. Magistrate Judge John Anderson set a motion hearing, if it's necessary, for June 15 on DOJ’s motion to compel production of successor-custodian documents and relevant source code in DOJ’s antitrust lawsuit against Google over its digital advertising business, said his Tuesday order (1:23-cv-00108) in the U.S. District Court for Virginia in Alexandria. At a June 2 hearing, the parties said they had resolved a dispute over successor-custodian documents and a portion of the remaining issues in the pending motion. Anderson deferred ruling on the remaining issues and asked the parties to continue efforts to resolve remaining issues, with a status report due Tuesday.

The court should deny plaintiffs’ motion to compel Nexstar to produce any white papers sent to the DOJ in connection with the agency’s investigation into exchanges of pacing information or its investigation of the Sinclair/Tribune merger, said its opposition (docket 1:18-cv-06785) to DOJ’s discovery motion 21 Tuesday in U.S. District Court for Northern Illinois in Chicago. Plaintiffs “knowingly misstate the facts,” including the parties’ longstanding agreement on the scope of discovery, it said. Plaintiffs knew before they filed their motion that Nexstar didn’t submit any white papers to the DOJ in connection with the pacing investigation, but they “egregiously omit this critical fact” in their motion to “wrongly depict Nexstar as uncooperative and as withholding relevant documents,” it said. The motion is “extremely untimely” since the deadline for filing motions to compel passed nine months ago, it said. “Plaintiffs have known for years that the discovery agreement they knowingly reached with Nexstar did not capture the documents they now seek,” Nexstar said. In an effort to resolve the dispute, Nexstar produced a letter on May 11 that Tribune submitted to DOJ in 1996 explaining why the exchange of pacing information in the Los Angeles DMA did not violate the antitrust laws, it said. The parties further agreed Nexstar “would not produce its correspondence with DOJ, the search terms used with the DOJ, and custodial documents produced in connection with the merger investigation that did not hit on agreed-upon search terms,” it said. Cox, CBS and Fox agreed last month (see 2305300073) to a $48 million settlement with advertisers in a long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal. Under the settlement, Cox, CBS and Fox will provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, such as Nexstar, Sinclair and Gray Television. The settling defendants will provide “meaningful cooperation, which will assist Plaintiffs in the prosecution of their claims against the Non-Settling Defendants,” said local advertiser plaintiffs’ May motion for preliminary approval of settlements.

After six “meet-and-confers” over the past two months, and with 36 days left before Google’s document production deadline, DOJ has been unable to secure the defendant’s agreement to produce relevant documents from successor custodians or critical source code documents underlying key allegations in DOJ’s amended complaint in an antitrust lawsuit over Google’s digital advertising business. So stated DOJ’s Thursday reply (docket 1:23-cv-00108) to Google’s memorandum of law in opposition to its motion to compel production of the documents in U.S. District Court for Virginia in Alexandria, Despite “ample notice,” Google waited until the afternoon DOJ’s brief was due to provide its most detailed response to its repeated requests, said DOJ in a motion to compel Google to produce certain documents. The addition of successor custodians to Google’s document searches is necessary to ensure a “complete production of relevant documents” for the time period covered in the amended complaint, and DOJ’s need for three remaining source code categories are necessary to reveal how Google’s algorithms work, it said.

Allegations that “productive” negotiations between Smart Communications and York County, Pennsylvania, “fizzled out” after derogatory comments from rival Global Tel-Link “are more than sufficient to satisfy the fifth element of the tort,” said plaintiff/appellant Smart in a Wednesday reply brief (docket 22-3287) in the 3rd U.S. Circuit Court of Appeals. Smart is appealing the Nov. 1 decision of the U.S. District Court for Middle Pennsylvania in Harrisburg to dismiss Smart’s antitrust lawsuit against Global Tel-Link for failure to state a claim. In her Nov. 1 memorandum, Judge Jennifer Wilson compared Smart’s cross-referencing of counts in the unfair competition claim to a “potentially endless loop of circular logic" reminiscent of actor Wallace Shawn’s monologue “analyzing how to determine the poisoned goblet” in the film A Princess Bride. In its reply brief, Smart said whether its unfair competition claim was “duplicative” of its tortious interference claim “is of no moment.” A party is allowed “to assert multiple claims based on the same facts -- indeed, it must do so to avoid res judicata.” Smart alleged Global Tel-Link defamed it by telling York County officials if the prison replaced its phone equipment with Smarts’, it would exercise its right to seize Smarts’ equipment based on a judgment it had against a company from which Smart acquired licensing rights. The plaintiff also said Global Tel-Link told county officials Smart was infringing its patents and Global would sue Smart and obtain an injunction to prohibit it from providing services that were part of its proposal. “Both are actionable statements,” Smart said. The 3rd Circuit should reverse the district court’s dismissal of counts I (violation of the Sherman Act), II (tortious interference) and III (unfair competition) of the complaint and remand for further proceedings, Smart said.