In re Google Digital Advertising Antitrust Litigation

Background

Certain plaintiffs in the multidistrict litigation asked 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 issued by Judge Leonie Brinkema after a trial in a related action brought by the United States and several states in the Eastern District of Virginia.

Google argued that issue preclusion should not apply because the earlier case principally used a worldwide geographic market, while the plaintiffs’ complaints in this multidistrict litigation principally alleged a United States market. The plaintiffs responded that they should receive partial summary judgment regardless of whether the market was defined as the United States or worldwide. The court stated that it was not deciding at this stage whether the partial summary judgment motions based on issue preclusion were proper.

The court instead set a schedule for motions to amend pleadings to conform to the earlier findings. The Advertiser Class, the Publisher Class, Inform, the Daily Mail, and Gannett moved to amend, principally to allege a worldwide market as an alternative to a United States market. One proposed amendment alleged a worldwide market with a United States submarket. Google opposed the motions.

Reasoning

The court found that Google would not suffer unfair legal prejudice from the amendments. Google had defended the earlier action against claims involving either a United States or worldwide market, and Google’s experts had analyzed both markets in the earlier action and in this multidistrict litigation. The court also noted that no plaintiff sought to expand the scope of the eligible class. The possible loss of Google’s argument that issue preclusion should not apply because of different geographic-market definitions was not a legally cognizable form of unfair prejudice.

The court also found good cause under Federal Rule of Civil Procedure 16(b)(4), which allows a scheduling order to be changed for good cause and with the judge’s consent. Although the motions were filed after the original amendment deadline, the court had invited them after reviewing the summary judgment briefing, and the plaintiffs promptly filed under the new schedule. The court considered the timing of ongoing expert discovery, class-certification briefing, and summary-judgment briefing.

The court rejected Google’s futility argument. Under Federal Rule of Civil Procedure 8(d)(2), parties may plead alternative statements when at least one alternative is sufficient. The court concluded that allegations of a worldwide market as an alternative to a United States market would survive a motion to dismiss. The court left open Google’s ability to seek summary judgment on broader grounds or challenge the existence or boundaries of the relevant markets at trial.

Ruling

Judge P. Castel granted the motions of the Advertiser Class, the Publisher Class, Inform, the Daily Mail, and Gannett to amend their complaints in the form shown in their proposed marked-up amendments. The court ordered the amended pleadings filed within seven days and answers filed 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 decide the pending partial summary judgment motions based on issue preclusion.