A published opinion from the Ninth Circuit Court of Appeals issued on Tuesday found that the lower court correctly rejected the antitrust claims brought by an online supplier of stock images, Dreamstime.com LLC, against Google.
The plaintiff alleged that Google violated Section 2 of the Sherman Act by maintaining a monopoly in the online search advertising market and deepened its market power by impeding Dreamstime’s use of Google’s paid advertising services as well as depressing Dreamstime’s performance on Google’s free search engine.
The appellate panel sitting in San Francisco, Calif. reviewed the district court’s dismissal and summary judgment rulings, the latter in a separate opinion. The Ninth Circuit first held that Dreamstime did not adequately define the relevant market despite having ample chances to do so by the trial court. “It is not our role to resuscitate claims that the parties expressly disavowed below,” the panel wrote.
Next, the opinion affirmed the conclusion that Dreamstime failed to allege anticompetitive conduct in the online search advertising market. Though the plaintiff alleged eight harms, including rigging the Google Ads bidding process and demoting Dreamstime’s organic search results on Google, its alleged mistreatment of customers did not show how Google harmed competition. In turn, the court said the allegations did not constitute anticompetitive conduct.
Lastly, the appellate panel ruled that the district court’s decision to grant dismissal with prejudice was not an abuse of discretion. In light of Dreamstime’s insistence on pursuing a “one-market, monopoly maintenance claim centered on the online search advertising market, foregoing any reliance on the online search or stock image markets,” the court opined that the lower court was within in its right to refuse the plaintiff “yet another opportunity to do what it repeatedly had declined to do.”
Dreamstime is represented by Waymaker LLP, Bailey Duquette PC, and Bryn & Associates PA.
Google is represented by Wilson Sonsini Goodrich & Rosati.
