Google Trial Can’t Wait ‘Another Year,’ Say States, Opposing MDL Trial Stay

Though Google "abandoned" some of its anticompetitive Android app conduct under "regulatory enforcement" in Europe, India and South Korea, it hasn't made similar changes in the U.S., so a "bipartisan coalition" of 38 states and the District of Columbia "brought this case to change that." So said the states' brief Thursday (docket 3:21-md-02981) in U.S. District Court for Northern California in opposition to Google's motion to stay or defer trial in the multidistrict litigation challenging the allegedly antitrust practices of the Google Play Store.

Google's March 16 motion to defer or stay trial suggested a 9th U.S. Circuit Appeals Court decision on Google's Rule 23(f) challenge of the district court's order certifying a consumer class in the MDL won't come until after trial in the MDL begins Nov. 6. In light of the "significant impact" the 9th Circuit's decision may have on any trial, "the most practical and sensible path forward" is for the court to defer the trial until after that decision, said Google's motion.

The states allege Google now seeks "to exploit its 23(f) appeal to continue stifling competition and siphoning monopoly profits for months, if not years, to come," said their opposition brief. The court "should reject that effort," it said. No matter how the court "structures trial" for the other MDL plaintiffs, the states' enforcement action "must proceed" without a trial deferment or stay, it said.

Halting the states' case until the 23(f) appeal is decided "would conflict with the strong federal policy favoring speedy resolution of government antitrust enforcement actions," said the opposition brief. In two "related contexts" -- extending parens patriae (parent of the nation) standing to Clayton Act damages claims and the recent exemption of state antitrust suits from MDL centralization -- Congress "adopted statutory mechanisms to ensure that private parties' lawsuits do not delay state enforcement actions," it said. Staying the states' case "would controvert this clear congressional intent," it said.

Google also fails "to justify a stay under the law," said the opposition brief. Google faces "little or no prospect of harm from a trial as-scheduled," it said. The non-class plaintiffs in the MDL, including the States, Epic Games, the Match Group and the individually named consumer plaintiffs, "all intend to try their cases eventually, whatever the result of the 23(f) appeal," it said.

The states and the public, conversely, "will be harmed by a delay that allows Google to further subvert competition and reap monopoly profits,” it said. “The balance of harms here outweighs any showing that Google could make about the likelihood of success of its appeal.”

There’s a “better solution” to a stay that would continue to allow for a Nov. 6 trial, said the states’ opposition. The states request a joint trial on antitrust issues “common to all plaintiffs,” it said. The court “has long preferred this approach, and it is appropriate here,” it said. Non-overlapping issues, such as Match damages, states and consumer class damages and Google’s counterclaims, “can be tried separately,” it said. Regardless of how the court structures the trial, the states’ claims shouldn’t be delayed, it said.

Trial can’t wait “another year or more,” said the opposition. The court should deny Google’s motion for a stay “and either hold a joint trial on common antitrust issues,” as the consumer plaintiffs proposed and the court has planned all along, or let the states “try their full case to a jury this November,” it said.