SPX Total Body Fitness LLC v. Google LLC

Background

This was a transfer order from the Judicial Panel on Multidistrict Litigation in the litigation later renamed In re: Google Digital Advertising Antitrust Litigation, MDL No. 3010. Google LLC, Alphabet Inc., and YouTube, LLC moved under 28 U.S.C. § 1407 to centralize 19 related actions pending in 16 federal districts in the Northern District of California. SPX Total Body Fitness LLC was one of the advertiser plaintiffs and supported centralization in the Northern District of California.

The actions alleged that Google monopolized or suppressed competition in online display advertising. The alleged conduct concerned Google’s advertising technology, the operation of its advertising exchange, alleged barriers to interoperability, the effects on advertisers and publishers, Google’s acquisitions of digital advertising technology companies, alleged tying arrangements, and an alleged 2018 agreement with Facebook concerning “header bidding.” The plaintiffs sought declaratory and equitable relief under federal or state antitrust laws and damages.

Centralization decision

The Panel found common factual questions in all 19 actions, including the definition of the relevant market, the competitors and their market shares, the design and operation of Google’s advertising products, the alleged anticompetitive effects, and Google’s response to header bidding. It also found that the actions would require overlapping discovery from Google, Facebook, other alleged competitors, and government investigations. Centralization would avoid duplicative discovery and inconsistent rulings on pretrial matters, including discovery disputes, expert-evidence issues, and dispositive motions.

The Panel rejected arguments that factual differences required separate multidistrict proceedings for advertiser and publisher cases. It stated that the transferee court could manage differences through separate discovery or motion tracks. It also rejected informal coordination and ordinary transfer under 28 U.S.C. § 1404 as efficient alternatives because the actions were spread across 16 districts and involved multiple groups of plaintiffs’ counsel and significant third-party discovery.

The Panel included the State of Texas action despite the states’ objections. It concluded that the state action shared the same factual core as the private cases and sought overlapping declaratory, injunctive, and potentially structural relief. The Panel treated concerns about delay and case management as matters for the transferee court.

Trial-transfer request

Google separately requested transfer of the State of Texas action for trial under 28 U.S.C. § 1407(h), which permits trial transfer for certain state enforcement actions seeking federal antitrust damages. The Panel found that the record did not contain enough information to decide whether trial transfer was appropriate and anticipated that the transferee court could later make a recommendation. The Panel therefore denied without prejudice Google’s request to transfer the State of Texas action for trial.

Disposition

The Panel ordered that the actions listed on Schedule A and pending outside the Southern District of New York be transferred to that district and, with that court’s consent, assigned to Judge P. Kevin Castel for coordinated or consolidated pretrial proceedings. SPX Total Body Fitness LLC v. Google LLC was listed among the transferred actions. The Panel also ordered that MDL No. 3010 be renamed In re: Google Digital Advertising Antitrust Litigation.