On August 7, 2023, AAI filed an amicus brief in the Ninth Circuit support of plaintiffs-appellees in the interlocutory appeal of the consumer class certification in In re Google Play Antitrust Litigation. In the 23(f) appeal, Google argues that the consumer class should not have been certified because the app developers allegedly injured by Google’s supracompetitive service fees did not “passthrough” the harm to consumers. According to Google, the district court judge failed to do the “rigorous analysis” required by Rule 23(b)(3) when it failed to credit its expert’s evidence on passthrough.
AAI’s brief argues that Google’s argument misconstrues the relevant precedent, including the Ninth Circuit’s recent decision in Olean Wholesale Grocery v. BumbleBee Foods, LLC, in several ways. First, Google tries to recast a claim by its expert that there was no impact on consumers as an argument that there are too many “uninjured class members.” This is, AAI notes, as an attempt to make an argument about harm appropriately made at trial into a threshold argument about class overbreadth. AAI’s brief points out that Google’s expert’s evidence identifies no sub-set of uninjured class members and therefore raises no individualized issues that would defeat class certification.
Second, AAI’s brief addresses Google’s argument that the district court judge improperly shifted to Google the burden on predominance under Rule 23. AAI’s brief describes the proper burden-shifting framework for Rule 23 in the Ninth Circuit and explains why Google’s argument is unfounded.
Finally, AAI notes that Google, by suggesting that plaintiffs need to show passthrough for every class member, effectively askes the Ninth Circuit to impose a requirement that every class member be required to show Article III standing. AAI’s brief explains why this is inconsistent with existing precedent and with good legal policy, especially given the potential to deter needed private enforcement against tech platforms.