An opposition submitted late last week to the District of Columbia District Court pushed back on Google’s second attempt to end the antitrust suit brought by Fotobom Media Inc., a California-based developer of a smart keyboard app called Keyboard+. The parties dispute both the viability of Fotobom’s monopoly and tying claims and whether it has standing to bring them.
In its amended complaint, filed in August, Fotobom explained that “Keyboard+ enhances the standard mobile keyboard with predictive text, shareable GIFs/Stickers, one-handed swipe typing, and autocorrect.” Fotobom said the most effective way to distribute its app is to reach agreements with original equipment manufacturers (OEMs) and carriers to preload Keyboard+ as the default keyboard app on a mobile device or messaging app.
The filing points to such a deal reached in 2019 with América Móvil, the leading provider of mobile service in Latin America. Google allegedly forced América Móvil to cancel the contract under threat of withholding millions of dollars in payments. According to the complaint, Google said that preloading Keyboard+ as the default would breach the service provider’s agreement to preload Google’s own smart keyboard app, Gboard.
In addition, Google purportedly thwarted Fotobom’s attempt to integrate Keyboard+ into messaging apps, like that of service provider Verizon. The filing claims that Google, aware that messaging apps can also serve as search access points and could threaten its search monopoly, recently entered into agreements with Verizon and every other major domestic mobile provider to make Google Messages the default messaging app, thereby barring Fotobom’s software from displacing Gboard on Android phones.
Overall, Fotobom claims it has suffered business injury in the form of “denial of crucial distribution channels.” Google has ultimately lessened competition from Fotobom and other search access points because they threaten its monopoly, the opposition says in support of its bid to show antitrust standing.
In terms of claim substance, the plaintiff argues that its tying claim demonstrates that Google forces manufacturers and carriers to preload Gboard despite their interest in choosing the combination of apps they think consumers will like best.
As for its monopolization claim, Fotobom asserts that Google’s contracts require that Gboard be preloaded on virtually every Android device, so far on more than five billion devices, or more than 50% of the relevant market. Google’s market share is also protected by barriers to entry and switching costs, the filing says, explaining that “[k]eyboard apps are “sticky”; consumers rarely take the time and effort to download a new keyboard app and learn.”
Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. represents Fotobom and Williams & Connolly LLP represents Google.
