On Monday, the Northern District of California issued an order granting the consumer plaintiffs’ motion for class certification and denying Google’s motion to exclude the plaintiffs’ economics expert’s testimony in the Google Play Store antitrust litigation.
As previously reported, the plaintiffs allege that Google has monopolized the market for Android app distribution and the in-app aftermarket through a variety of technological and contractual measures to erect barriers to entry. Further, they argue that Google has used its dominance in the Android app market to charge monopolistic prices for its app distribution that harms consumers.
In February, the Judicial Panel on Multidistrict Litigation transferred and consolidated several consumer antitrust actions to the Northern District of California into In re: Google Play Store Antitrust Litigation.
On May 26, the plaintiffs filed a motion for class certification for consumers from Alabama, Georgia, Hawaii, Illinois, Kansas, Maine, Michigan, Ohio, Pennsylvania, South Carolina, Wisconsin, Wyoming, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands who purchased an app through Google Play or paid for in-app digital content on or before August 16, 2016. Additionally, the plaintiffs requested certification for individuals from the same states who currently own a phone capable of accessing the Google Play store for injunctive relief.
Google subsequently opposed the motion arguing that the plaintiffs failed to show class-wide antitrust injury and moved to exclude the testimony of plaintiffs’ expert for certification, Dr. Hal Singer. Through his testimony, Dr. Singer opined that the economic evidence shows that all or essentially all class members are injured by Google’s conduct. Google countered by arguing that the plaintiffs do not have common proof showing that all class members suffered antitrust impact.
Judge Donato, writing for the court, held that Google failed to demonstrate that unreliability or invalidity warrant exclusion of Dr. Singer’s opinions. Further, the court stated that Google’s arguments were directed more at opposing certification than to disqualify Dr. Singer which “is a wholly different question from admissibility” of expert testimony.
Additionally, the court granted certification for the class seeking monetary relief who purchased an app through Google Play or paid for in-app digital content on or before August 16, 2016. However, the court denied certification for the class of consumers who currently own a phone capable of accessing the Google Play store for injunctive relief holding that the primary relief sought by the plaintiffs is monetary and not declaratory or injunctive relief.
The court confirmed Bartlit Beck LLP and Kaplan Fox & Kilsheimer LLP as class counsel, while Google is represented by Morgan, Lewis & Bockius LLP, O’Melveny & Myers LLP and Munger Tolles & Olson LLP.
