In a 19-page motion on Wednesday, Google asked U.S. District Judge Rita F. Lin of the Northern District of California to dismiss, for good, Mary Katherine Arcell’s second amended complaint accusing Alphabet Inc., Google, CEO Sundar Pichai and former CEO Eric Schmidt of antitrust violations stemming from a so-called horizontal conspiracy between Google and Apple in which Google allegedly paid Apple not to create its own general search engine.
According to Google, U.S. District Judge Edward Davila granted its motion to toss the original consumer suit in August because the plaintiffs failed to plead a conspiracy between Google and Apple and antitrust standing or injury. Namely, Google said the claims of higher prices, lower production, lower quality in privacy, data protection and consumer data use, suppressed innovation, and decreased choice weren’t sufficient to show antitrust injury.
By the time Arcell filed her first amended complaint on Sept. 19, the judge presiding over the U.S. v. Google monopolization case had partly granted Google’s summary judgment motion, and trial was underway.
Last month, Judge Lin granted Google and Apple’s motion to dismiss Arcell’s first amended complaint with leave to amend, finding the customers did not plausibly allege Google had an exclusive default agreement with Apple that “substantially foreclosed competition.”
That decision prompted Arcell to file a second amended complaint that Google said “continues to advance the same unfounded allegations of a horizontal conspiracy between Google and Apple that have been repeatedly dismissed in this case,” according to the motion.
The latest version also “copies at length from the complaint filed in the United States v. Google case filed over three years ago,” Google said. “Because plaintiffs’ changed legal theory does not cure their legally deficient allegations of actual harm or injury, plaintiffs’ belated attempt to piggyback on the United States v. Google case still fails for lack of antitrust standing.”
Google argued the amended complaint fails to state a claim and does not allege antitrust injury, the same reasons Judge Davila dismissed the case last summer, noting that because the customers don’t pay to use Google, they haven’t suffered any monetary damages.
The latest filing simply asserts the same conclusory allegations about higher prices, fewer choices and lower quality, none of which establish antitrust harm, Google said.
“This lawsuit has dragged on for nearly two years, with plaintiffs’ counsel now prepared to pursue an entirely different lawsuit in hopes of surviving a motion to dismiss, so they can try to extract attorneys’ fees at some later date,” Google said. “This lawsuit certainly has nothing to do with any supposed harm suffered by the 26 plaintiffs who claim to have used Google’s free search engine.”
There are only speculative claims devoid of concrete facts to back the customers’ contention that Google’s search distribution deals led to fewer viable, cheaper alternatives available to them, but search engines are free, Google said.
Further, the plaintiffs do not show worsened search quality because of Google’s alleged conduct, nor do they bring factual support for their claim that Google resold their personal data to advertisers, Google said.
The customers also don’t specify which data was sold or identify advertisers who bought Google’s search user data, the motion said, adding that Google has made clear that it doesn’t sell its user data.
“Plaintiffs similarly have not pleaded actual damages when they did not purchase anything, directly or indirectly, from Google in the alleged relevant markets — indeed, consumers use Google’s search services for free,” the motion said. “It is impossible to overpay for free services, as this court noted.”
Finally, Schmidt and Pichai must be dismissed from the case as individual defendants since the new filing doesn’t link them to the alleged monopolization and monopolization efforts and all references of Schmidt and Pichai concern conclusory allegations over the now-defunct horizontal conspiracy claims, the motion said.
“Plaintiffs have named the individual defendants solely because of their roles as executives and do not plausibly suggest any involvement by them beyond their serving in that capacity,” Google said.
Representatives for the parties did not immediately respond to requests for comment Thursday.
Google is represented by John E. Schmidtlein and Carol J. Pruski of Williams & Connolly LLP.
The plaintiffs are represented by Joseph M. Alioto, Tatiana V. Wallace and Angelia Alioto-Grace of Alioto Law Firm, Lawrence G. Papale of the Law Office of Lawrence G. Papale, Josephine Alioto of the Veen Firm, Theresa Moore of the Law Offices of Theresa D. Moore, Lingel H. Winters of the Law Offices of Lingel H. Winters, Jeffrey K. Perkins of the Law Offices of Jeffrey K. Perkins, Christopher A. Nedeau of Nedeau Law PC and Robert J. Bonsignore and Melanie Ann Porter of Bonsignore Trial Lawyers PLLC.
Apple and its CEO Tim Cook are represented by Michael A. Lanci, Steven C. Sunshine, Julia K. York, Jack P. DiCanio and Karen Hoffman Lent of Skadden Arps Slate Meagher & Flom LLP.
The case is Mary Katherine Arcell et al. v. Google LLC et al., case number 3:22-cv-02499, in the U.S. District Court for the Northern District of California.
–Additional reporting by Bryan Koenig and Lauren Berg. Editing by Drashti Mehta.