The Android operating system users suing Google over the alleged supracompetitive commissions it charges on app purchases made through the Google Play Store pressed for certification in a reply brief filed late last week. The plaintiffs rebutted Google’s assertions that they lack common evidence, citing their expert’s “reliable methodology” that assesses class-wide damages.
The plaintiffs accuse Google of monopolizing the market for Android app distribution and the in-app aftermarket, and having done so using a variety of technological and contractual measures to erect barriers to entry. They argue that Google used its dominance to charge monopoly prices for its distribution services that harm consumers and third-party app developers alike, as parallel proceedings allege.
The Judicial Panel on Multidistrict Litigation transferred a series of overlapping actions to the Northern District of California in February. After Google answered the plaintiffs’ complaint in March, the litigants moved for class certification supported by the testimony of expert witness Dr. Hal Singer.
Google opposed, arguing that the plaintiffs failed to show class-wide antitrust injury. The defendant countered that the common questions of fact do not predominate, rendering the case unfit for class status. For example, Google said that in order to calculate damages, the plaintiffs would need to undertake an near-impossible app-by-app analysis.
In last week’s reply brief, the plaintiffs said that Google’s defenses are not credible. They argued that Google’s opposition, that they lack generalized class-wide proof of injury, is premature.
Google’s argument is foreclosed by a Ninth Circuit en banc decision rendered earlier this year in a case against packaged seafood companies for price fixing, the plaintiffs pointed out. Instead, the filing countered that the plaintiffs have the evidence; whether their expert’s opinion is persuasive is a merits question for the jury.
The reply brief also combatted arguments that Google’s monopolization has actually benefited some consumers by offering a secure digital app distribution system. Speculation that Google might begin to compete with other app distributions for the first time in its history and offer a more expensive or less secure product is no reason to deny class certification, the plaintiffs ventured.
Further, if the court bought Google’s speculation that competition would make its product worse, it would create bad antitrust policy, the plaintiffs contended, noting that “[i]n any event, this, too, is a question for the merits.”
The class certification hearing is scheduled for August 4 before Judge James Donato.
The plaintiffs are represented by interim co-lead counsel Bartlit Beck LLP and Kaplan Fox & Kilsheimer LLP. Google is represented by Morgan, Lewis & Bockius LLP, O’Melveny & Myers LLP, and Munger Tolles & Olson LLP.
