App Developer Unlockd Media Contests Google’s Dismissal Bid in Sherman Act Case

The now-defunct company accusing Google of forcing it out of business has hit back at the defendant’s motion to dismiss the complaint. The opposition filing submitted late last week by the Unlockd LLC Liquidation Trust argues that Google not only makes unmeritorious arguments, but that the company improperly asks the Northern District of California to take judicial notice of documents that support its defenses.

Unlockd sued Google last September, alleging that through a series of anticompetitive moves, Google excluded it from the digital advertising market. Unlockd’s main product was “an innovative service that compensated users for their time and attention” by advertising to them when they unlocked their smart phone in exchange for mobile credit and data and corporate loyalty points. If consented to, the service also transmitted valuable data such as consumer location to advertisers.

Unlockd alleges that it was booted from using the defendant’s AdMob and Google Play Store platforms without reason, effectively preventing it from selling to Android operating system users and causing its sales to plummet. The filing states a sole claim for attempted monopolization in violation of the Sherman Act.

Google asked the court to reject the suit as unfounded because Unlockd purportedly refused to comply with its terms of service, warranting its removal from AdMob and the Play Store. In addition, Google alleged that it tried to work with the company to achieve a compliant business model, but Unlockd balked, instead filing lawsuits in Australia, the United Kingdom and the United States.

With its motion, Google also asked the court to judicially notice several documents. That request is in large part the subject of Unlockd’s opposition.

The plaintiff responds that the motion should be decided on content of the pleadings only based on Ninth Circuit principles circumscribing the proper usage of judicial notice. By contrast, Unlocked says the defendant’s request “appears to be part of an improper attempt to present disputed factual assertions as a basis for contesting the allegations that there was no legitimate business justification for Google’s termination of Unlockd.”

The opposition also contends that while Google’s request for judicial notice of foreign exchange rates is in and of itself unobjectionable, the defendant uses them to make “a highly disputable factual argument concerning the extent to which there is a dangerous probability of Google attaining monopoly power.” 

The case is before Judge Haywood S. Gilliam Jr. in San Francisco, Calif.

Unlockd is represented by Diamond McCarthy LLP and Cadwalader, Wickersham & Taft LLP and Google by Cooley LLP.