Wednesday, January 18, 2023

Google faces two big U.S. antitrust trials in the fall; Epic Games, Match Group, state AGs suggest Google wants to push jury deliberations in Google Play Store case into Thanksgiving

Three dozen state AGs, Epic Games, Match Group, and some class-action lawyers are suing Google in the Northern District of California over its Google Play Store terms and practices. A first hearing was held last week over the plaintiffs' allegations that Google systematically deleted relevant chats. Judge James Donato gave the parties until yesterday to make a joint submission on how to proceed with respect to the overall case and the Google Chat issue. Here's the document:

In Re Google Play Store Antitrust Litigation (case no. 3:22-cv-2746-JD, N.D. Cal.): Joint Submission [pursuant to the Court's Januaryy 13, 2023 Order]

The Parties have been able to agree on January 31 as their preferred day (among the days offered by the district court) for the next hearing on the chat preservation dispute.

But they cannot agree on the trial date. It's the normal course of business for defendants to prefer a later trial date than plaintiffs do. Here, the issue is not so much the amount of time by which the parties are apart--only three weeks (October 23 vs. October 2)--but the potential impact on jury deliberations and, ultimately, the verdict.

The plaintiffs would be prepared to start on September 25, but in light of the Yom Kippur holiday would much prefer the following Monday, October 2. Google's counterproposal is October 23, arguing that the plaintiffs' proposal "will likely conflict with the trial in United States v. Google in the District of Columbia. Two days ago I summarized Google's summary judgment motions in that case. That trial is scheduled to start on September 12, 2023.

Epic and the other plaintiffs note that the D.C. case is a bench trial, and Google uses different outside counsel in the D.C. and California cases. They also say that any overlap in witnesses could be addressed with "sufficient flexibility". Google, however, argues that this may cause some inconvenience for one trial court or the other, and both the United States District Court for the Northern District of California and the one for the District of Columbia are very busy courts.

The plaintiffs raise a serious concern over something that could affect the outcome:

An October 23, 2023 start date would risk pushing the trial and/or jury deliberations into the Thanksgiving holiday.

Google disputes this, arging that "October 23 is four and a half weeks before Thanksgiving, which is November 23," and Judge Donato "previously indicated that [he] anticipated an approximately three-week trial."

I still consider Epic and the other plaintiffs' concern valid. It's a big and complex case. The jury may very well be finished before Thanksgiving, but what if not? What if a majority of the jurors believe Google violated the antitrust laws, and one or two hold-outs don't? The jury needs to reach unanimity. The court obviously wouldn't be in session on Thanksgiving or Black Friday, and sequestration is not a realistic scenario for this type of case, but even regular weekends always create an incentive for juries to render a verdict.

If the jury can't agree otherwise, it will most likely agree on a finding of no violation. That scenario is what the plaintiffs are presumably concerned about. Their statement does not say so, but that is what I deduce from their statement on the trial date.