AAI Urges the Northern District of California in Google Play Store Case Not to Exclude Harms To Innovation and Consumer Choice from Recovery in Private Suits

On May 26, 2023, AAI filed for leave to submit an amicus brief in the Northern District of California supporting Plaintiff States’ and Consumer’s Opposition to Google’s Motion to exclude certain expert merits opinions. Google attempts to exclude the expert testimony of Dr. Mark Rysman on the grounds that loss of “variety” is allegedly a personal injury and not an injury to “property” that is compensable in private actions under Section 4 of the Clayton Act.

AAI’s brief points out that harms to variety, innovation and consumer choice at issue in Dr. Rysman’s damage models are not, as Google argues, the kind of personal injuries that have been excluded as compensable antitrust damages. Instead, these are core values that the antitrust laws are intended to protect. As a result, AAI argues, it is vital to antitrust enforcement efforts that private enforcers can seek redress for such injuries. This is particularly important for future antitrust enforcement because innovation is a primary aspect of digital competition. AAI bases its arguments on the Supreme Court’s previous readings of Section 4 and the long-established recognition by antitrust agencies and courts of harm to variety, innovation and consumer choice as an antitrust injury.

The brief was written by AAI Vice President of Legal Advocacy Kathleen Bradish, with assistance from AAI Summer Intern Oscar Rodas-Falla.

Read the full brief here.