Tuesday, January 31, 2023

U.S. states, Epic Games, Match Group remain concerned about November trial in Google Play Store antitrust case being impacted by Thanksgiving holiday

Late on Monday, the plaintiffs (36 state AGs, Epic Games, Match Group, and consumer class-action plaintiffs) and Google submitted a joint proposed schedule that would allow their antitrust litigation in the Northern District of California to go to trial in the fourth quarter:

In Re Google Play Store Antitrust Litigation (case no. 3:21-md-02981-JD, N.D. cal.): Joint Statement Re: Proposed Case Schedule and Trial Structure

The two sides managed to work out an agreement on a variety of pretrial deadlines, such as an April 20 deadline for dispositive and Daubert motions, and they are all fine with holding a final pretrial conference on October 19. But there are two case management questions on which the court will have to decide because the parties have different positions and interests.

The parties have sort of agreed that the jury trial will begin on November 6, 2023, but the plaintiffs "respectfully request the opportunity to discuss with the Court the impact of the Thanksgiving holiday on the trial and the possibility of an alteration of the trial date." Google opposes any trial date earlier than November 6 because of a potential conflict with the trial in the first United States et al. v. Google case in the District of Columbia (meanwhile the DOJ has brought a second federal complaint). But as Judge James Donato said at a December 16, 2021 hearing, he anticipates an approximately three-week trial. This means the trial--if it indeed starts on November 6--would be interrupted by Thanksgiving (November 23, 2023).

The plaintiffs were previously concerned about Thanksgiving potentially impacting jury deliberations. That concern was reasonable: while jury deliberations often conclude within a matter of days, it sometimes takes longer, especially in complex cases like this one. With the current schedule, the problem is not that the jury might rush to a verdict because of that holiday approaching, but the trial would have to be interrupted. Many Americans like to take the entire Thanksgiving week off. What will the district court do? If the trial starts on November 6, there are only two weeks before Thanksgiving week, meaning that everyone would have to return after Thanksgiving, listen to another week of testimony, and closing arguments, and then start deliberating.

The court will instruct jurors not to do their own research on the case, such as reading about it on the internet, and not to discuss the case with others. But if the trial is interrupted for a long weekend or a full week, and people spend a lot of time with their families, it's hard to imagine that there wouldn't be at least some violations of that rule. If any such violations become known, jurors have to be disqualified, and at some point there might not even be enough jury members left to render a verdict. It's a tricky situation.

If the trial started right after Thanksgiving, then there would be a conflict with Christmas in the event of protracted jury deliberations.

The trial would be shorter, however, if Google's breach-of-contract counterclaims against Match and Epic were severed from the antitrust case and tried separately. Google argues that "the resolution of the counterclaims will require the presentation of evidence, witnesses, and issues that duplicate the proof presented in the trial on Plaintiffs’ claims"--and that is a valid efficiency argument, though Google's motivation here is simply that it wants to portray Epic Games and Match Group as parties who breached a contract and thereby influence the jury's thinking on the antitrust issues. The plaintiffs have a point that "the claims are irrelevant and hence inadmissible as to States and Consumers and will consume precious time in the trial on core antitrust issues," which is why they will bring a motion to sever those counterclaims.

I regret to say that Google's efficiency-centric argument, while unrelated to Google's actual agenda, appears a lot stronger than the upcoming request for severing its counterclaims can possibly be.

It's unclear whether the trial can really be held before the end of the year. Unless the court simply sets a (much!) earlier trial date than November 6 and tells Google that any conflicts between the D.C. and California trials (such as overlapping witnesses) will be resolved as they arise, it may actually be better to hold a trial in January 2024 that won't be interrupted by a holiday around which people like to take an entire week off. I want the plaintiffs to prevail, and I want them to win as soon as possible in the interest of the app economy at large, but there are logistical issues.

Judge Donato will preside over the continuation of the Google Chat preservation hearing later today, and discuss case management with the parties on the same occasion. The plaintiffs have a strong case for discovery sanctions as I explained a few days ago.