In re Google Digital Advertising Antitrust Litigation

Background

Certain plaintiffs in the coordinated multidistrict litigation moved for partial summary judgment based on issue preclusion. Issue preclusion is a rule that can prevent a party from relitigating an issue already decided in an earlier case. The plaintiffs relied on factual findings and legal conclusions from Judge Leonie Brinkema’s decision after a trial in an action brought by the United States and certain states in the Eastern District of Virginia.

Google argued that issue preclusion should not apply because the earlier decision principally used a worldwide geographic market, while plaintiffs’ pleadings in this multidistrict litigation principally alleged a United States market. Plaintiffs argued that summary judgment should be available regardless of whether the market was defined as the United States or worldwide. The court then set a schedule for plaintiffs to seek amendments conforming their pleadings to the earlier findings.

The Advertiser Class, Publisher Class, Inform, the Daily Mail, and Gannett moved to amend their complaints. Most proposed amendments would allege a worldwide market as an alternative to a United States market. The court noted that the earlier case and this litigation involved substantial overlap in the alleged conduct, laws, remedies, discovery, and expert analysis. It also noted that Google and its experts had addressed both United States and worldwide markets.

Reasons for Allowing the Amendments

The court rejected Google’s argument that the amendments would cause unfair prejudice. No plaintiff sought to expand the scope of the eligible class. Google and its experts had analyzed the record from the standpoint of both geographic markets. The court concluded that any possible mootness of Google’s argument against issue preclusion was not a legally cognizable form of unfair prejudice.

The court also found good cause to allow amendments filed after the original scheduling deadline. Under Rule 16(b)(4) of the Federal Rules of Civil Procedure, a scheduling order may be modified only for good cause and with the judge’s consent. The court considered the plaintiffs’ diligence and the potential prejudice to Google, but emphasized that the plaintiffs promptly filed under the new schedule the court had established. The court also stated that allowing the amendments could promote a just, speedy, and inexpensive resolution of the litigation.

The court rejected Google’s argument that the amendments would be futile. Under Rule 8(d)(2), a party may make alternative statements in a pleading if any one of them is sufficient. The court concluded that allegations of a worldwide market as an alternative to a United States market, or in one instance a worldwide market with a United States submarket, would survive a motion to dismiss.

What the Court Did Not Decide

The court expressly stated that it had no opinion at that point on whether plaintiffs’ partial summary-judgment motions based on issue preclusion were appropriate. It also stated that Google could later seek summary judgment on broader grounds or challenge the existence or contours of the relevant markets at trial, depending on later rulings.

Disposition

Judge P. Castel granted the motions of the Advertiser Class, Publisher Class, Inform, the Daily Mail, and Gannett to amend their complaints in the manner shown in their proposed amendments. The amended pleadings were required to be filed within seven days, with answers due within fourteen days after that. The court provisionally granted the motions to seal submissions supporting or opposing the motions to amend. The order did not resolve the pending partial-summary-judgment motions or the underlying antitrust claims.