Judge Tossed Google Android Antitrust Class Action

A California federal judge tossed an antitrust class action lawsuit filed against Google Inc., alleging that the internet giant is hurting the competition of other online search engines by making Google the default search engine on Android smartphones.

However, U.S. District Judge Beth Labson Freeman said in her Friday ruling that she didn’t see how the alleged antitrust violation was hurting the prices of Android phones and that she was also suspicious of how much harm it caused to innovation.

Therefore, Judge Freeman said that she was dismissing the Google antitrust class action lawsuit, giving plaintiffs leave to amend the class action lawsuit and file a second class action lawsuit addressing her concerns, if they should decide that’s a course of action they wish to take.

Plaintiffs Feiterlson and Daniel McKee filed their Google class action lawsuit against Google in May 2014, who both own cell phones that use the Android operating system. Google “owns the Android OS, which it licenses to phone manufacturers for free, as well as a bevy of popular mobile applications including YouTube, Google Maps, Gmail, and [Google Play],” which is the online store where apps, music, books and other such things may be purchased for the mobile device.

These Google owned apps are “pre-loaded” onto Android based mobile devices. While Google does license the Android OS for free to mobile phone makers, it also puts restrictions on the manufacturers, such as agreeing “to make Google the default search engine for all ‘search access points’ on the device.”

In addition, the suite of Google Apps must be given “prime screen real estate.”

Because the more Google’s search engine is used the more it improves the search engine, “this cycle tends to favor the established products over new entrants,” the Google class action lawsuit alleges.

The plaintiffs allege that this makes competition harder for other search engines and the market for search engines on handheld devices. This they say has led to a “loss of innovation” and has restricted “consumer choice” and prices for the phones that couldn’t be sustained by a more competitive market.

For an antitrust class action lawsuit to stand, there must be unlawful conduct, an injury to the plaintiff, that injury must be caused by the unlawful conduct, and it must be the type of injury that antitrust laws were designed to prevent, Judge Freeman explains.

Google argued in its motion to dismiss the class action lawsuit filed in July 2014 that the lawsuit should be tossed because the plaintiffs have not suffered any injury.

Judge Freeman agreed with Google and said that the “plaintiffs have failed to allege that they have suffered ‘antitrust injury’ in the same market as and sufficiently close to the alleged anticompetitive conduct to allow them to pursue private antitrust remedies against Defendant.”

The California federal judge says that she agrees with Google “that there are no facts alleged that would render these threatened injuries more concrete than hypothetical, as there are no facts alleged to indicate that Defendant’s conduct has prevented consumers from freely choosing among search products or prevented competitors from innovating.”

Judge Freeman also said that the plaintiffs need a plaintiff from California if they want to pursue their class action lawsuit based on California state laws. The two plaintiffs are from Iowa and Kentucky.

Judge Freeman said in her Friday ruling that she made the decision after considering both the written arguments and the oral arguments, which she heard on Dec. 18, 2014. She said during the hearing that she would likely dismiss the Google class action lawsuit.

The plaintiffs are represented by Jeff D. Friedman, Steve W. Berman and Robert F. Lopez ofHagens Berman Sobol Shapiro LLP.

Google is represented by Brian C. Rocca, Sujal J. Shah, Susan J. Welch, Hill B. Wellford, Jon R. Roellke and Gregory F. Wells of Morgan, Lewis & Bockius LLP and John E. Schmidtlein, Jonathan B. Pitt, James H. Weingarten and Benjamin M. Stoll of Williams & Connolly LLP.

The Google Android Antitrust Class Action Lawsuit is Gary Feitelson et al v. Google Inc., Case No. 5:14-cv-02007, in the U.S. District Court for the Northern District of California.