Va. Judge Denies Google Motion to Transfer DOJ's Antitrust Case to SDNY

U.S. District Judge Leonie Brinkema for Eastern Virginia in Alexandria denied Google’s motion to transfer to the Southern District of New York the digital advertising antitrust case brought against the company by DOJ and eight states (see 2303060057), said her memorandum opinion Tuesday (docket 1:23-cv-108). Google wanted the case moved to SDNY to be litigated as a separate civil action alongside the more than two dozen multidistrict litigation (MDL) antitrust actions involving the company's activities in the online advertising technology industry that are consolidated under U.S. District Judge Kevin Castel for pretrial proceedings.

DOJ and the eight state plaintiffs don’t dispute their case “largely shares a common set of facts and claims as the consolidated MDL actions,” said Brinkema’s opinion. But they say “there are a number of differences” between their case and the MDL actions, including the federal government's damages claim.

The parties agree SDNY “would be proper under the federal antitrust venue provision” but disagree on the main “transfer factors,” said the opinion. Google argued the plaintiffs’ choice of forum in the Eastern District of Virginia “should be afforded limited weight because of the lack of a nexus to this district.” It also argues SDNY is more convenient for the parties and witnesses, and transfer “would reduce the risk of inconsistent judgments and serve judicial economy because of the factual and legal overlap” between the pending MDL actions and the Alexandria case, the opinion said.

The plaintiffs oppose transfer because their choice of forum “is entitled to substantial deference given the meaningful connections that exist” between their case and the Eastern District of Virginia, said the opinion. They also argue transfer “would contravene congressional intent to ensure expeditious enforcement of antitrust laws,” it said.

The plaintiffs “correctly point out” that the legislative history of the 1968 Multidistrict Litigation Act shows Congress “exempted federal antitrust enforcement actions from MDL treatment to avoid the delays that might be caused by consolidation with private suits,” said the opinion. The statute was enacted after “a flurry of private antitrust litigation stemming from the government's prosecution of electrical equipment manufacturers for antitrust violations,” it said. That flurry involved more than 1,800 “separate damages actions” being filed in 33 federal district courts, it said.

Though Google isn’t seeking transfer for consolidation with the MDL cases in SDNY, “the purpose and public policy considerations animating the exemption are persuasive and weigh in favor of denying” Google's motion to transfer, said the opinion. That’s “notwithstanding concerns” about judicial economy, duplicative litigation and the risk of inconsistent judgments, it said.

The legislative history of the exemption shows Congress “made the decision to subordinate concerns about judicial economy” to the public interest in efficient resolution of antitrust enforcement actions “without delay and the need to prevent such suits from becoming bogged down with related private suits,” said the opinion. As the plaintiffs rightly argue, it said, granting Google’s motion to transfer would “effectively circumvent” the exemption, “and would subvert Congress's intent to eliminate unnecessary delay caused by coordination with private antitrust litigation,” it said.

There’s “no question” transfer of the case to SDNY “would result in significant delays and prevent the government plaintiffs from expeditiously obtaining relief for the public,” said the opinion. Discovery in the MDL isn’t scheduled to conclude until the end of 2024, and pretrial discovery proceedings “have already been delayed due to the parties' inability to agree on a protocol” for electronically stored information, it said.