In re Google Play Consumer Antitrust Litigation

Background

The court had previously denied Google’s requests to seal portions of four complaints in the multidistrict antitrust litigation. It explained that court records are presumptively public and that the party seeking secrecy must provide specific facts showing a compelling reason for sealing. Generic statements about possible harm, confidentiality designations under protective orders, and blanket confidentiality practices were not enough.

The court found that Google’s original requests relied on boilerplate statements and a declaration from a Google Senior Legal Project Manager. That declaration repeatedly stated that disclosure of nonpublic information could disadvantage Google in marketing and negotiations, but supplied no additional explanation or evidence. The court concluded that Google had not shown a basis for keeping the requested portions of the complaints secret and ordered the plaintiff groups to file unredacted complaints within seven days. Epic filed its unredacted complaint on August 19, 2021; the other three plaintiff groups apparently delayed filing at Google’s request.

Google’s renewed request and motion to stay

On August 20, 2021, Google filed an emergency motion to stay the earlier order and a renewed application to seal. The court said Google could not claim surprise because the governing law and local rules were established, the court had previously warned that requests to seal complaint allegations would be closely scrutinized, and Google had a fair opportunity to present its position initially.

The court also rejected Google’s attempt to obtain a second round of briefing by suggesting that it could provide more support if the court wanted it. The court stated that judges do not review motion papers and coach parties on how to file a better motion. The burden was on Google to make its showing in the first instance. The court further said the renewed application was effectively a request for reconsideration, but Google had not sought permission to file such a motion or shown new facts, new law, or another circumstance supporting reconsideration.

Even though it found no reason to disturb the prior order, the court reviewed the renewed application concerning the complaints other than Epic’s complaint and considered a more detailed declaration from a Google Finance Director. The court said the additional information was not new and should have been presented with the original request.

Sealing rulings

The court stated that Google met its burden only for a small subset of the requests. It allowed sealing for specific deal or contract terms that could be used against Google in future negotiations. It declined to seal information such as profits, revenues, costs, pricing, financial projections, and business-line information when Google had not shown a plausible risk of commercial harm from publication.

The attached chart contains the item-by-item rulings. For the State Attorney Generals’ Complaint, the court denied several requests involving revenue, profit-margin, spending, counterparty, and pricing information; granted some requests; and granted other requests in part where only specified proposed contract terms could be sealed. For the Developers’ First Amended Consolidated Class Action Complaint, the court granted one request involving specific agreement terms and denied the other listed requests. For the Consumers’ First Amended Consolidated Class Action Complaint, the court granted one request, granted another in part by allowing the identity of a contract counterparty to remain sealed, and denied the other listed requests.

The court directed the Consumer Plaintiffs, Developer Plaintiffs, and Plaintiff States to file revised redacted versions of their complaints that comply with the order within seven days. It stated that the renewed application to seal was resolved. It terminated Google’s motion to stay and the stipulated request to shorten the time for that motion.