In re Google Play Consumer Antitrust Litigation

Background

Consumer plaintiffs alleged that Google unlawfully acquired and maintained a monopoly in the Android application-distribution market and the related in-app-aftermarket through practices involving the Google Play Store. The alleged practices included requiring original equipment manufacturers and mobile network operators to preload and prominently place the Play Store on Android devices, and restricting developers from providing apps that would allow consumers to download competing app stores.

The plaintiffs alleged that Google charged commissions of up to 30 percent on app and in-app purchases and that consumers paid artificially inflated prices. Their claims included violations of Sections 1 and 2 of the Sherman Act, California’s Cartwright Act, and California’s Unfair Competition Law. They sought damages, restitution, and an injunction.

The plaintiffs proposed a Rule 23(b)(3) multistate damages class covering people in specified states and territories who paid for an app through the Play Store or paid for in-app digital content through Google Play Billing on or after August 16, 2016. They also proposed a Rule 23(b)(2) class seeking injunctive relief for people who currently owned qualifying Android phones or tablets.

Motion to Exclude Expert Testimony

Google asked the court to exclude the testimony of plaintiffs’ economics expert, Dr. Hal J. Singer, under Federal Rule of Evidence 702 and the standards governing expert reliability. Google primarily challenged Dr. Singer’s pass-through formula, which estimated the portion of Google’s allegedly excessive commission that consumers bore. Dr. Singer used economic models for the Android App Distribution Market and the In-App Aftermarket and relied on a logit model connected to each app’s share within its Play Store category.

The court concluded that Google had not shown that Dr. Singer’s methods were unreliable or invalid enough to require exclusion. The court distinguished objections that could be tested through cross-examination from defects requiring exclusion. It also noted that Google’s criticisms largely addressed whether the evidence was sufficient for class certification, rather than whether the testimony was admissible. The court denied Google’s request to exclude Dr. Singer’s testimony.

Rule 23(b)(3) Damages Class

The court held that the proposed damages class satisfied the numerosity requirement because the parties did not dispute that it included more than 21 million putative members. It also found commonality and predominance. The court concluded that common evidence could address Google’s alleged antitrust conduct, including its agreements with mobile carriers, device manufacturers, and developers, without individualized inquiries for each plaintiff.

For alleged consumer impact, the court concluded that the plaintiffs’ economic analysis supplied a common method of showing injury. The court treated the consumers as direct purchasers because they paid the alleged overcharge directly to Google, rather than as indirect purchasers receiving an overcharge through a traditional distribution chain. The court found that individualized issues concerning developers’ costs, pricing choices, and other factors did not outweigh the common issues at the certification stage. It also held that individualized damages calculations alone did not defeat certification.

The court provisionally applied California law to the multistate Cartwright Act and Unfair Competition Law claims because the parties agreed to that approach and did not separately challenge it. The court found commonality and predominance for those state-law claims as well.

The court rejected Google’s challenge to the adequacy of class counsel. It found interim class counsel adequate and confirmed their appointment. Because a class representative must be a member of the class, the court did not include Mary Carr, Daniel Egerter, Zack Palmer, or Serina Moglia in the adjusted proposed damages class. The court found Matthew Atkinson and Alex Iwamoto typical and adequate and appointed them as class representatives. The court also found that a class action was superior to individual lawsuits because the class members’ individual damages were likely to be too small to make individual lawsuits worthwhile.

Rule 23(b)(2) Injunction Class and Disposition

The court denied certification under Rule 23(b)(2). That rule generally applies when declaratory or injunctive relief is the primary relief sought, but the court found that the consumer plaintiffs’ primary requested relief was monetary. The court left open the possibility of considering an injunction later if developments in the case warranted it.

The court certified the specified Rule 23(b)(3) damages class, appointed Matthew Atkinson and Alex Iwamoto as named representatives, and confirmed interim class counsel under Rule 23(g). It directed the parties to submit a proposed notice and opt-out plan by January 20, 2023. Certification under Rule 23(b)(2) was denied, and the requested exclusion of Dr. Singer’s testimony under Rule 702 was denied. The court did not decide the ultimate merits of the antitrust claims.