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Google Motion To Dismiss Android
Google Motion To Dismiss Android
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Plaintiffs,
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v.
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Defendant.
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
A/76503231.5
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INTRODUCTION ............................................................................................................. 1
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VII.
CONCLUSION ................................................................................................................ 15
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
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TABLE OF AUTHORITIES
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Page(s)
Federal Cases
Abbyy USA Software House, Inc. v. Nuance Communs., Inc.,
No. C 08-01035, 2008 U.S. Dist. LEXIS 90308 (N.D. Cal. Nov. 6, 2008) .............................. 8
Allied Orthopedic Appliances v. Tyco Health Care Grp. LP,
592 F.3d 991 (9th Cir. 2010)..................................................................................................... 4
Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal.,
190 F.3d 1051 (9th Cir. 1999)................................................................................................. 12
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................... 5, 12, 15
Axiom Advisors & Consultants, Inc. v. School Innovations & Advocacy, Inc.,
No. 2:05-CV-02395-FCD-PAN, 2006 U.S. Dist. LEXIS 11404 (E.D. Cal.
Mar. 20, 2006) ................................................................................................................... 14, 15
Blue Shield v. McCready,
457 U.S. 465 (1982) .......................................................................................................... 12, 13
Bus. Elecs. Corp. v. Sharp Elecs. Corp.,
485 U.S. 717 (1988) .................................................................................................................. 9
Cargill, Inc. v. Monfort of Colo., Inc.,
479 U.S. 104 (1986) ................................................................................................................ 14
Church & Dwight Co., Inc. v. Mayer Labs., Inc.,
868 F. Supp. 2d 876 (N.D. Cal. 2012) .......................................................................... 4, 6, 8, 9
Church & Dwight Co., Inc. v. Mayer Labs., Inc.,
No. C-10-4429, 2011 WL 1225912 (N.D. Cal. Apr. 1, 2011) .............................................. 7, 8
Digidyne Corp. v. Data Gen. Corp.,
734 F.2d 1336 (9th Cir. 1984)................................................................................................. 10
Exhibitors Serv., Inc. v. Am. Multi-Cinema, Inc.,
788 F.2d 574 (9th Cir. 1986)................................................................................................... 13
Free Freehand Corp. v. Adobe Systems,
852 F. Supp. 2d 1171 (N.D. Cal. 2012). ................................................................................. 15
Glen Holly Entmt, Inc. v. Tektronix Inc.,
352 F.3d 367 (9th Cir. 2003)................................................................................................... 14
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
A/76503231.5
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DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
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Federal Statutes
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DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
A/76503231.5
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I.
INTRODUCTION
Plaintiffs opposition to Googles motion to dismiss attempts to help clarify their First
Amended Complaint (FAC), but only underscores why it fails. Having (rightly) jettisoned any
tying claim, plaintiffs shift their focus to a single, untenable theorythat Google engages in
exclusive dealing by licensing, at no charge, its popular apps, such as YouTube and Google Play,
in exchange for an OEMs agreement to set Google Search as a default on the device. This
arrangement, plaintiffs argue, is necessarily exclusive because there can be only one default
search engine on a device at a given time, and, thus, if Google Search is set as the default on a
device, then other competitors, such as Bing, cannot be. Plaintiffs novel theory of exclusivity,
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however, ignores both the very terms of the Mobile Application Distribution Agreements
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Plaintiffs cannot deny that the MADAs attached to the FAC reveal the following
fundamental flaws in their exclusive dealing allegation:
Google offers OEMs a suite of popular apps for free, and, in exchange, the OEM sets
Google Search as the default search engine. See FAC, Exs. A, B 2 (Google
Applications) and 3.4 (Placement Requirements).
This arms-length arrangement does not apply to all devices released by an OEM, or even
to any minimum percentage of them. Id., Ex. A 2.4 (For the sake of clarity, [OEM]
has no obligation to install the Google Applications on all of its devices.) (emphasis
added). Thus, there is simply no restrictionnone whatsoeveron an OEMs ability to
deploy different app and search engine configurations on different devices.
An OEM can therefore enter into a MADA, apply its terms to any subset of its devices,
and, as to other Android devices, set Bing as the default search engine, or release devices
that run on non-Android platforms (e.g., a Windows-based phone).
For any device on which an OEM chooses to preload the suite of Google apps, the
MADA does not prevent the OEM from also preloading and prominently placing
competitive search apps on that same device. To the contrary, the MADA affirmatively
requires OEMs to maintain an open environment on the device, allowing consumers to
use any preloaded apps or download other apps. See, e.g., FAC, Ex. A 1.5, 2.6
(OEMs required to maintain an open environment on devices by making all Android
software, content and digital materialsincluding, for example, Android-compatible
search engines, such as Bingavailable and open and cannot take action to limit or
restrict the Android platform); Ex. B 1.4, 2.6 (same).
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
Hoping to deflect the Courts attention from these key contractual provisions, plaintiffs
repeatedly reference the decades-old Microsoft litigation. But this case is not Microsoft.
Plaintiffs ignore critical distinguishing facts, including that Microsoft prohibited OEMs from
incorporating rival web browsers on new computers at all. Here, plaintiffs concede that rival
search engines have a multitude of ways to reach consumers, including via web browsers
advantage of near-instantaneous app downloads after purchase, or negotiating their own default
search arrangements. FAC 53, 56-57. And, contrary to Microsoft-based personal computers
in the 1990s, once an Android device is in the hands of a consumer, it can be easily customized,
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with apps downloaded, and default settings switched in the browser, in a matter of seconds.
Given the plain language of the MADAs and other fatal concessions in the FAC,
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MADAs demonstrates they are not actual or de facto exclusive agreements and (b) multiple
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alternative means of distribution admittedly exist to reach consumers, which means there can be
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Second, plaintiffs Sherman Act 2 claims fail because they are based on the same
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Finally, plaintiffs also have no answer to the other fundamental flaw that plagues each of
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their claimsthe absence of any well-pled allegations that establish antitrust standing. Plaintiffs
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do not dispute that in order to suffer antitrust injury, their alleged injury must occur in the same
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Indeed, Googles own browser, Chrome, has a built-in menu of search engine options,
including Bing, any of which can be selected by the user as the default.
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DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
market where the alleged anticompetitive conduct occurred. Here, plaintiffs, a putative class of
Android device purchasers, allege they paid too much for their devicesan injury presumably
occurring in a market for handheld devices (although the FAC never actually defines any such
market). Yet they allege anticompetitive conduct occurring in a different marketthe market for
general internet search or, alternatively, handheld searchwhere Googles services are offered
free of charge. Plaintiffs footnoted and conclusory explanation that their injuries are
inextricably intertwined with Googles conduct in the alleged search market misapplies that
narrow exception to the black letter rule of antitrust standing. Based on plaintiffs own
allegations, the connection between the alleged conduct in one market and the alleged injury in a
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separate market is, at best, remote and speculative because whether a plaintiff is injured depends
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on the actions of multiple third parties and the injury must travel through multiple levels in the
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chain of distribution. Their other argumentthat Googles conduct limits consumer choice and
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harms innovationis conclusory, inconsistent both with the terms of the MADAs, which, on
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their face, do not limit choice, and also plaintiffs admissions that Google Search is the
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Internets most powerful tool in a large and fast growing American market for mobile and
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tablet general Internet search. FAC 4, 5. Plaintiffs failure to plead antitrust injury is
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II.
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Plaintiffs Sherman Act 1 claim is based on their allegation that the MADAs somehow
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foreclose competition because they supposedly force OEMs into setting Google as the default
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search engine on a device. Plaintiffs try to shoehorn this allegation into an exclusive or de facto
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exclusive dealing theory, and, failing that, an unspecified generic restraint of trade claim. Each
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of these theories, however, requires well-pled allegations demonstrating that Google foreclosed
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competition in a substantial portion of the alleged market. E.g., Jefferson Parish Hosp. Dist. No.
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2 v. Hyde, 466 U.S. 2, 45-46 (1984) (Exclusive dealing is an unreasonable restraint on trade
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only when a significant fraction of buyers or sellers are frozen out of a market by the exclusive
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The prevailing rule in districts and circuits across the country is that where exclusive or
semi-exclusive contracts are short in duration, easily terminable, incentive-based, and leave open
alternative channels to competitors, they are not exclusionary. Church & Dwight Co., Inc. v.
Mayer Labs., Inc. (C&D II), 868 F. Supp. 2d 876, 903 (N.D. Cal. 2012). The MADAs fall into
this group of agreements that are not exclusionary as a matter of law. First, by their very terms,
the MADAs are not exclusive in any respect and plaintiffs have failed to adequately allege that
they are coercive so as to make them de facto exclusive agreements. Second, plaintiffs concede
that search competitors can access consumers through alternative means of distribution, which
alone defeats any claim of foreclosure. Finally, plaintiffs generic Section 1 claim suffers from
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the same defects as their exclusive dealing claim and should be dismissed for the same reasons.
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A.
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Exclusive dealing involves an agreement between a vendor and a buyer that prevents the
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buyer from purchasing a given good from any other vendor. Allied Orthopedic Appliances v.
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Tyco Health Care Grp. LP, 592 F.3d 991, 996 (9th Cir. 2010) (emphasis added); see also Sidibe
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v. Sutter Health, No. C 12-04854, 2013 U.S. Dist. LEXIS 78521, at *29 (N.D. Cal. June 3, 2013)
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(An exclusive dealing arrangement is when a seller agrees with a buyer to sell its products or
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services only to that buyer, or the buyer agrees to buy only from the seller). As set forth above,
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pp. 1-2, the MADAs do not prevent OEMs from contracting with rival search engines, or
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consumers from readily accessing market alternatives. Recognizing these facts, plaintiffs resort
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to misdirection. They argue that a default search engine is inherently exclusive because there
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is only one default, at a given time, on a device. Opp. at 5, 12, 14. But the proper question to
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ask when assessing if an agreement is exclusive is whether an OEM is exclusively dealing with
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Google, not whether a particular device is exclusive. Plaintiffs do notand cannotdispute that,
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even after signing a MADA, an OEM is not required to preload Googles suite of apps on any
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device. An OEM remains free to offer devices without Google apps preloaded, such as a device
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with Microsoft apps preloaded and Bing set as the default. Moreover, even on devices with
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Google Search set as the default, OEMs can preload rival search apps and place them
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DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
prominently on those devices as an alternative to Google Search. See FAC 44; Exs. A, B
devices are expressly open under the MADAs and consumers remain free to change default
settings in the browser. See FAC, Exs. A, B 1.4, 1.5, 2.6. Plaintiffs do not deny this
important pointin fact, they concede it. FAC 57 (acknowledging competitors can try to
convince consumers to re-set default search engines, but claiming that mostnot allusers
will maintain the default settings). Nor do plaintiffs allege that Google asks OEMs to technically
block consumers from adjusting default settings. Plaintiffs only suggest, in conclusory fashion,
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that they, personally, do not know if there is a way to adjust default search engine settings. FAC,
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15, 16. Plaintiffs do not allege, however, that they ever desired to change their default search
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engine, were unable to find information on how to do so, or attempted to do so and failed. Id. In
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the absence of such well-pled allegations, plaintiffs are left with the sort of self-serving,
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conclusory allegations that are devoid of underlying factual content and insufficient to state a
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Plaintiffs de facto exclusive dealing theory fares no better. Plaintiffs rely principally on
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an out-of-circuit case, ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012), for the
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notion that courts can look past the terms of the contract to ascertain the relationship between the
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parties and the effect of the agreement in the real world. Opp. at 17. Eaton is inapposite.
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There, the defendant used its market power to force the four direct purchasers in the heavy duty
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rebates in exchange for the buyers commitment to purchase 90% of its transmissions from the
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defendant. 696 F.3d at 265. Some of the agreements also called for the exclusion of competitive
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parts manufacturers information from the data books that were distributed to the ultimate
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buyers of heavy duty trucks. Id. In contrast, besides their allegation that Googles apps are
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Again, this stands in stark contrast to plaintiffs oft-cited United States v. Microsoft, which
involved Microsofts efforts to technologically bind[] Internet Explorer to Windows to
prevent[] OEMs from pre-installing other browsers. 253 F.3d 34, 64 (D.C. Cir. 2001).
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DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
popular, FAC 35-36, plaintiffs fail to allege that OEMs were coerced into making Google
the default search engine. Plaintiffs have not alleged that Google has sufficient market power in
any market for apps to force Google Search on the OEMs. Moreover, the MADAs do not set any
minimum market share requirements for OEMs, do not mandate exclusion, and are of short
duration (only two years, compared to the five-year agreements in Eaton). See pp. 4-5, above.
Plaintiffs other authority, Pro Search Plus, LLC v. VFM Leomardo, Inc., No. 122102
JLS, 2013 WL 6229141 (C.D. Cal. Dec. 2, 2013), is similarly distinguishable. In Pro Search,
the court denied a motion to dismiss a de facto exclusive dealing claim based on allegations that
contracts for the management and distribution of digital imagery and other digital content are
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not open to rebidding, that [customers] have been forced into dealing exclusively with VFML,
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that VFML has recently used its market power to coerce at least one [customer] into dealing
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exclusively with VFML, that VFML acquired or settled with its other competitors and that the
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cost of switching suppliers is prohibitive. Id. at *6-7. Here, plaintiffs do not allege similar
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factsthey do not and cannot allege, for example, that search competitors have been prevented
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from bidding for OEMs business, that Google has market power in apps sufficient to coerce
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OEMs into signing a MADA, or that the MADAs mandate that OEMs only deal with Google.3
Ultimately, the MADAs do not force OEMs to preload Google apps (and set Google
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Search as the default search engine) on any devices, much less a minimum percentage of them.
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Thus, they are facially lawful. See C&D II, 868 F. Supp. 2d at 903 (challenged program was
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arguably permissible as a matter of law because C&D does not force retailers to purchase
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anything, much less a certain percentage, of condom products from C&D, and the only
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consequence is that retailers may not receive a rebate based on those decisions).
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Also, the Pro Search court dismissed an earlier exclusive dealing claim premised on alleged 25 year contracts because they were of short duration and are easily terminable. Pro Search
Plus, LLC v. VFM Leonardo, Inc., No. SACV 12-2102, 2013 WL 3936394, at *2 (C.D. Cal. July
30, 2013). The MADAs only have two year terms. See FAC, Exs. A, B.
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B.
Even if plaintiffs had sufficiently alleged the MADAs were exclusive, their claim would
nonetheless fail because they also clearly concede the existence of alternative means of
distribution, which means the MADAs do not substantially foreclose competition. E.g., FAC
53 (One possible alternative channel for distribution of a rival search engine is via a dedicated
search website.); 56 (Another alternative means of distribution that a competitor might try is
attempt to convince Android OS device consumers to re-set their default search engines.).
Plaintiffs ask the Court to disregard those channels, asserting that default search status is the
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most cost-efficient and effective means of reaching search customers. FAC 42; Opp. at 15.
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But under clear Ninth Circuit law, a plaintiff cannot state an exclusive dealing claim if there are
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alternative distribution channels, even if a plaintiff claims they are inadequate substitutes
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because they are not the best, most efficient channels. Omega Envtl., Inc. v. Gilbarco, Inc.,
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[I]n determining whether a market is foreclosed, the relevant inquiry is what products
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are reasonably available to a consumer, not what products the consumer ultimately chooses to
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buy. See Southeast Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 616 (8th Cir. 2011) (emphasis
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added). If competitors can reach the ultimate consumers of the product by employing existing
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from competition any part of the relevant market. Omega, 127 F.3d at 1163 (emphasis in
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original). None of the facts alleged in the FAC negate the reality that search competitors have
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alternative means to reach consumers. Under the MADAs, search competitors are free to sell
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directly, to develop alternative distributors, or to compete for the services of the existing
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Plaintiffs rely principally on Church & Dwight Co., Inc. v. Mayer Labs., Inc. (C&D I),
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No. C-10-4429, 2011 WL 1225912 (N.D. Cal. Apr. 1, 2011), but fundamentally misstate that
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decision. In C&D I, the court noted that the defendant allegedly entered into agreements with
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retailers that accounted for nearly 100% of condom sales nationwide and the complaint had
alleged with great specificity . . . the relative lack of other non-retail means of reaching the
consumer. Id. at *2, 14. The C&D I court denied the motion to dismiss, not because other
distribution channels were inefficient, but because plaintiffs specifically alleged they did not
exist. The courtciting the same cases as in Googles opening briefexplained that exclusive
dealing claims should be dismissed where, as here, there is no allegation that alternative means
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pleadings where competitors have access to alternative distribution channels. See, e.g.,
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MedioStream, Inc. v. Microsoft Corp., 869 F. Supp. 2d 1095, 1108 (N.D. Cal. 2012) (granting
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motion to dismiss in part because of alternative channels, as customers can simply purchase
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MedioStreams media processing software directly); Abbyy USA Software House, Inc. v.
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Nuance Communs., Inc., No. C 08-01035, 2008 U.S. Dist. LEXIS 90308, at *6-7 (N.D. Cal.
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Nov. 6, 2008) (granting motion to dismiss in part because plaintiff has alleged that direct sales
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and licensing agreements are alternative distribution channels for the same software products);
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PNY Techs., Inc. v. SanDisk Corp., No. 11cv04689, 2014 WL 2987322, at *8-9 (N.D. Cal.
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July 2, 2014) (dismissing claim where plaintiff fails to plead the lack of alternative channels of
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distribution). The Court need not look past plaintiffs own concessions and controlling Ninth
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Circuit law in ruling on this motion. Search competitors can access both OEMs and consumers,
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C.
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To the extent plaintiffs seek to allege a generic, undefined Section 1 claim, Opp. at 12, it
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also fails due to the absence of market foreclosure and the existence of alternative means of
distribution. Notably, plaintiffs plead no additional facts to support this theory. Instead, they
simply remove the exclusive dealing label and replace it with a generic label. No matter the
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Plaintiffs allegations in C&D I ultimately proved false, and the court granted summary
judgment in C&D II, based on facts similar to those conceded by plaintiffs in their FAC, here.
See C&D II, 868 F. Supp. 2d at 904 (identifying alternative means of distribution).
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label, alleged vertical restraints5 (i.e., the MADAs) require plaintiffs to plead substantial
foreclosure, which, as demonstrated above, is absent from the FAC. See pp. 6-8, above. This
generic theory therefore adds nothing to the analysis and should be dismissed. E.g., C&D II, 868
F. Supp. 2d at 890 (vertical contract not anticompetitive because it did not foreclose[]
competition from a substantial share of any relevant market); see also R.J. Reynolds Tobacco
Co. v. Phillip Morris, 199 F. Supp. 2d 362, 387 (M.D.N.C. 2002) ([C]ourts generally require
III.
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Computer Co. v. IBM, 698 F.2d 1377, 1382 (9th Cir. 1983). Because plaintiffs allege the same
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alleged exclusionary conduct in support of their Section 1 and Section 2 claims, the latter must
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be dismissed for the same reasona failure to allege facts demonstrating foreclosure. See Mot.
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at 17-18; Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 856 (9th Cir. Cal. 1995) (if conduct alleged in
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support of [a] Section 1 claim is not deemed anticompetitive, [the] same conduct alleged in
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support of [a] Section 2 claim must also fail); SanDisk, 2014 WL 2987322, at *11 (Because I
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again conclude that the TAC does not sufficiently plead actionable exclusive dealing, PNY
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argue that, in some situations, otherwise permissible conduct may still form the basis of a
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Section 2 claim if practiced by an alleged monopolist. Opp. at 19-20 (citing United States v.
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Dentsply, 399 F.3d 181 (3d Cir. 2005) and LePages, Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003)).6
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The nature of plaintiffs allegations in Dentsply and LePages, however, differs substantially
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from plaintiffs allegations here. See Dentsply, 399 F.3d at 196 (Dentsplys grip on its 23
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authorized dealers effectively choked off the market for artificial teeth, leaving only a small
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sliver for competitors.); LePages, 324 F.3d at 154 (noting the evidence of the full panoply of
3Ms exclusionary conduct, including both the exclusive dealing arrangements and the bundled
rebates). As discussed above, plaintiffs do not sufficiently allege any such conduct or effect
here; there can be no claim that Google choked off access to any aspect of the alleged markets.
The only in-circuit case plaintiffs cite is TeleAtlas N.V. v. NAVTEQ Corp., No. C-05-
01673, 2008 WL 4911230 (N.D. Cal. 2008). In TeleAtlas, the district court noted that dismissal
after a dismissal of a Section 1 claim. Id. at *2 (citation omitted). The court allowed the Section
2 claim in that case, however, because, unlike here, the combined allegations suggest a broad
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course of conduct designed to foreclose the market and prevent entry. Id. (discussing
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allegations of exclusive licenses, tying and threats of patent litigation). Conversely, where, as
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here, the conduct does not substantially foreclose the market or exclude a competitor, and is
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therefore not anticompetitive, it cannot form the basis of a Section 2 claim. See, e.g., Western
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Parcel Express v. UPS of Am., 190 F.3d 974, 976 (9th Cir. 1999).
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IV.
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Plaintiffs Clayton Act claim fails because the Clayton Act does not apply to licenses or
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intangible property. The Clayton Act concerns only goods, wares, merchandise, machinery,
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supplies, or other commodities, 15 U.S.C 14, and that provision is strictly construed. See
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TeleAtlas N.V. v. Navteq Corp., 397 F. Supp. 2d 1184, 1192-93 (N.D. Cal. 2005) (a patent
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license is not a tangible good); Mot. at 18. Plaintiffs argue that their case is not about the
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MADA (a license), but rather the software that the MADAs cover. But that argument fails for
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two reasons. First, it mischaracterizes the MADA, which is clearly a software license, and it is
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this license that plaintiffs allege restrains trade. See FAC, Exs. A & B (MADA 2.1, entitled
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License Grant). Second, software, such as a Google app, is also deemed intangible for
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purposes of the Clayton Act. Although the one and only case cited by plaintiffs to support their
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position, Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336 (9th Cir. 1984), allowed a Clayton
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Act claim for an alleged refusal to license, the case never addressed the question of whether
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software licenses are covered by the Clayton Act. [A] prior opinion cannot stand as precedent
for a proposition of law not explored in the opinion, even when the facts stated in the opinion
would support consideration of the proposition. United States v. Harrison, 296 F.3d 994, 1005
(10th Cir. 2002) (citing Texas v. Cobb, 532 U.S. 162, 169 (2001)).7
V.
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their state law Cartwright Act claims. See Mot. at 23-24; Opp. at 24 (noting the similar standards
for the federal and state claims). Moreover, even if plaintiffs were able to state a Sherman Act
claim, their Cartwright Act claim would still fail because the act only applies to products, not
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licenses, and because plaintiffs did not purchase their devices for use within California. See Mot.
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derivative of their antitrust claims. Because Googles conduct does not violate the antitrust laws,
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it is not unlawful under the UCL. See Mot. at 25. While conduct can be found to be unfair in
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certain circumstance even when not specifically proscribed by some other law, here plaintiffs
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only allege that Googles conduct is unfair because it is anticompetitive. When the:
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Belton v. Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224, 1240 (2007); see also Chavez
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VI.
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Regardless, plaintiffs Clayton Act exclusive dealing claim fails for the same reasons stated
above. See Section II above; Mot at 18 n.12; SanDisk, 2014 WL 2987322, at *4-10 (same
standards apply); Jefferson Parish, 466 U.S. at 23 n. 39 (same).
11
CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
Even if Plaintiffs had sufficiently asserted a federal or state claim under Iqbal and
Twombly (which they have not), plaintiffs lack antitrust standing to bring those purported claims
based on injuries suffered in the handheld device market. See Mot. at 19-23. Tellingly, plaintiffs
fail to acknowledge most of the factors a court must consider to determine whether a plaintiff has
antitrust standing. See id. at 19 (listing factors). Although plaintiffs concede they must
adequately plead antitrust injury, Opp. at 21-22, they ignore Googles arguments that their
alleged injury in the device market is too remote and unduly speculative. See Mot. at 21-23.
8
9
Even when discussing antitrust injury, plaintiffs barely mention the requirement that a
plaintiff must suffer[] its injury in the market where competition is being restrained. Am. Ad
10
Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1057 (9th Cir. 1999); Mot. at 20 (citing
11
cases).8 Plaintiffs do not, and cannot, dispute that any injury resulting from supra-competitive
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device prices occurs in a market different than the one where Google allegedly restrains
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competition (the alleged search markets). Instead, they try to squeeze into a narrow exception
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allowing claimants to allege antitrust injury for injuries in one market that are inextricably
15
intertwined with anticompetitive injury sought in a different market. See Opp. at 23 n.26; Am.
16
Ad. Mgmt., 190 F.3d at 1057 n.5 (the Supreme Court has carved a narrow exception to the
17
market participant requirement for parties whose injuries are inextricably intertwined).9 An
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injury is only inextricably intertwined if causing the injury is a necessary step in effecting the
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ends of the alleged illegal conspiracy. McCready, 457 U.S. at 476-79, 484 (emphasis added).
20
Plaintiffs do not fall within the exception because their alleged injury in the device market is not
21
necessary or essential to effectuate the alleged conspiracy. See Vinci v. Waste Mgmt., Inc.,
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80 F.3d 1372, 1376 (9th Cir. 1996); Exhibitors Serv., Inc. v. Am. Multi-Cinema, Inc., 788 F.2d
23
24
25
26
27
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It makes no difference that plaintiffs are participants in the alleged search markets. See Opp. at
23 n.26. The injury must occur in the same market as the anticompetitive conduct.
9
Plaintiffs incorrectly invoke the exception by arguing their injury is suffered in a market
inextricably intertwined with the [alleged] search markets. Opp. at 23 n.26. Whether markets
are inextricably intertwined is irrelevant. Rather, the plaintiffs injury must be inextricably
intertwined with the alleged anticompetitive injury in the restrained market. Blue Shield v.
McCready, 457 U.S. 465, 484 (1982).
12
CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
In McCready, the plaintiff, a group health plan subscriber, had standing because the
by psychologists rather than psychiatristsdirectly injured her. 457 U.S. at 478-80. Although
the conspiracy was directed at psychologists, denying reimbursements were the very means
used to effectuate it. Id. at 479. Here, plaintiffs allege the MADAs foreclose competition in the
alleged search markets. But they do not allege that Google raised handheld device prices to
effectuate this alleged scheme; Google does not set device prices. Nor do plaintiffs allege (or
even explain) why raising device prices is a necessary step to foreclose the alleged search
markets. Plaintiffs only claim that obtaining search users is necessary to the alleged scheme.
10
See Opp. at 23 n.26 (citing FAC 15-16, 40-41, 51, 54). But obtaining users is different from
11
raising device prices.10 Moreover, the MADAs do not directly cause OEMs to raise their device
12
prices. At most, plaintiffs merely allege that the MADAs indirectly result in OEMs charging
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higher prices because they do not get funds from rival search providers. FAC 9, 71-73.11
14
Simply saying something is necessary or integral to an alleged scheme does not make it so.
15
See Lorenzo v. Qualcomm, 603 F. Supp. 2d 1291, 1300-01 (S.D. Cal. 2009) (denying standing to
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cell phone buyers because conclusory allegation that injury was inextricably intertwined with
17
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It is also economically implausible that higher device prices would advance a scheme to obtain
more search users. See William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 662 (9th
Cir. 2009) (a court must determine whether an antitrust claim is plausible in light of basic
economic principles). Under plaintiffs theory, devices not subject to a MADA (e.g., a
Windows Phone or Android phone with Bing as the default search engine) would be less
expensive and therefore more attractive to consumers. Indeed, Google obtains no benefit from
higher device prices.
11
Curiously, plaintiffs rely on In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 865 F.
Supp. 2d 1002, 1030 (C.D. Cal. 2011) (see Opp. at 23 n. 26) even though the court did not
directly address antitrust standing in that opinion. Id. at 1029. The case involved insurance
companies failure to properly reimburse claims (id. at 1015) and one group of plaintiffs were
insurance subscribers in the exact same position as the plaintiff in McCready. However, in a
later decision, the court addressed antitrust standing with respect to two other groups of plaintiffs
and found they lacked standing because their injurylike the injury claimed by plaintiffs here
was derivative and thus too remote to afford standing. In re WellPoint, Inc. Out-of Network
UCR Rates Litig., 903 F.Supp.2d 880, 902 (C.D. Cal. 2012); see also Mot. 21-23.
13
CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
1
2
B.
To have antitrust standing for an injunctive relief claim, plaintiffs must allege facts
demonstrating the alleged conduct risks a threatened loss or damage and that they suffered
antitrust injury (i.e., an injury of the type the antitrust laws were designed to prevent). Cargill,
Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 112 (1986). Plaintiffs fail to allege sufficient facts
demonstrating they have standing for their injunctive relief claim based on their alleged injuries
in the search markets, namely: (1) reduction of choice and (2) harm to innovation. Opp. at 21-23.
Instead they rely on conclusory allegations that are belied by other facts alleged in the FAC.
First, plaintiffs do not allege an actual reduction in choice. For example, plaintiffs do not
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allege the MADAs prevented them from: choosing their preferred search engine among the
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myriad methods of accessing search, changing their default search engine, downloading an
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alternative search app, or purchasing a device with an alternative default search engine. None of
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these have been foreclosed. Plaintiffs instead allege that their ignorance of a default search
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engine or how to change it, see FAC 8, 15, 16, 41, somehow restricts choice. But plaintiffs
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also allege that, but for the MADAs, rival search companies would pay for default status. See
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FAC 9. Plaintiffs do not explain how, in the world they envision, where search competitors
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pay for default status, plaintiffs would somehow have more choice at the time of purchase, since
18
they would still (allegedly) be ignorant of the default search engine and how to change it.
19
Plaintiffs reliance on Glen Holly Entmt, Inc. v. Tektronix Inc., 352 F.3d 367 (9th Cir.
20
2003) and Axiom Advisors & Consultants, Inc. v. School Innovations & Advocacy, Inc., No.
21
2:05-CV-02395-FCD-PAN, 2006 U.S. Dist. LEXIS 11404 (E.D. Cal. Mar. 20, 2006) is
22
misplaced. In Glen Holly, the plaintiff alleged an actual reduction in choice because the only
23
competing product on the market was discontinued by agreement between the only two
24
competitors in the market. 352 F.3d at 374. Here, competitive search products still exist and
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nothing in the MADA forecloses their existence. Axiom is a pre-Twombly and Iqbal case where
26
the court accepted conclusory allegations of consumer harm. But we are now post-Twombly and
27
Iqbal and such allegations would likely be held insufficient if the case was decided today. See S.
28
14
CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
Cal. Inst. of Law v. TCS Educ. Sys., No. CV 10-8026, 2011 U.S. Dist. LEXIS 39827, at *25-26 n.
Second, plaintiffs fail to allege anything but conclusory allegations regarding an alleged
harm to innovation. Plaintiffs simply speculate that in the future, Google may not have an
incentive to innovate. But merely hypothesizing about what may happen in the but-for world is
insufficient to allege injury and thereby demonstrate antitrust standing because it would require a
court to create in hindsight a technological universe that never came into existence and thus
harm could not possibly be adequately measured. See Kloth v. Microsoft Corp., 444 F.3d 312,
324 (4th Cir. 2006).12 Conversely, in the case cited by plaintiffs, Free Freehand Corp. v. Adobe
10
Systems, the plaintiffs alleged that Adobe reduced innovation when it acquired competing
11
software that it effectivelykilled and that Adobe effectively acknowledged its intent to
12
cripple innovation. 852 F. Supp. 2d 1171, 1176-77 (N.D. Cal. 2012). Importantly, the FTC had
13
forced Adobe to divest the competing software years earlier after a previous acquisition because
14
it determined that the merged firm would, inter alia, be able to reduce innovation by delaying or
15
reducing product development. Id. at 1175. Those allegations are a far cry from the speculative
16
17
VII.
CONCLUSION
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Plaintiffs opposition underscores the fatal defects in their FAC. Plaintiffs fail to allege
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well-pled facts to support their conclusory assertion of exclusive dealing, and thus their federal
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and state antitrust claimsall based on that alleged conductshould be dismissed. Moreover,
21
the Clayton Act does not apply to licenses, requiring dismissal of that claim. Finally, the FAC
22
does not allege facts establishing antitrust standing, which is an independent ground for dismissal
23
of each federal and state antitrust claim. Google requests an order granting its motion and
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT