Google Pushes Back on Move to Certify Consumer Class in Play Store Antitrust Fight

Late last week, Google told a California federal court not to certify a class of consumers who purchased software applications (apps), subscriptions, and in-app purchases (IAPs) offered for sale in the Google Play Store. The opposition says that most class members suffered no antitrust injury, meaning that hordes of “mini-trials” would be necessary to suss out which consumers were actually injured.

The consolidated case centers on the contention that Google monopolizes the market for distributing Android mobile device applications. In pursuit of its domination of the Android “ecosystem,” the complaint says that Google “has erected contractual and technological barriers to monopolize the market for app distribution for licensable OSs and the aftermarket for the distribution of and payment for in-app products.”

The case is proceeding parallel to others brought by app-developers, video game developer Epic Games, as well as the majority of state attorneys general, who all take issue with the up to 30% commission Google levies on app purchases.

In March, Google answered the plaintiffs’ amended complaint. Therein, the company raised a multitude of defenses including failure to state a claim, legitimate business activities, international comity, lack of standing, and statute of limitations.

The plaintiffs moved for class certification, arguing that differences among class members, like which specific purchases were made, pose no obstacle. In support, the filing provided the expert opinion of Dr. Hal Singer, who opined that economic evidence shows that all or essentially all class members are injured by Google’s conduct. The motion also sought appointment of Bartlit Beck LLP and Kaplan Fox & Kilsheimer LLP as co-lead class counsel.

In this week’s opposition, Google lobbed a barrage of counterarguments, first taking on the plaintiffs’ characterization of Google Play as merely a payment processor while wholly ignoring the tremendous value it provides users. 

Substantively, the defendant said that the plaintiffs do not have common proof showing that all class members suffered antitrust impact. The opposition ventures that individual issues predominate over common ones, requiring “an app-by-app analysis not susceptible to common proof.” 

The tech titan also sweeps aside Dr. Singer’s opinion as reliant on impermissible hypothetical assumptions. Next, Google takes aim at the plaintiffs’ proposed damages model, arguing that it too lacks a common formulaic method. Lastly, the defendant says that proposed co-class counsel will provide inadequate representation because their joint prosecution agreement creates conflicts.  

Google is represented by Morgan, Lewis & Bockius LLP, O’Melveny & Myers LLP, and Munger Tolles & Olson LLP.