E-Briefs, News and Notes: August 2025

As I reach the end of my term as Chair of the Antitrust and Consumer Protection Section, I am extraordinarily proud of the great work accomplished by our Section leaders. Highlights from the past year include:

• We changed the name of our Section to the Antitrust and Consumer Protection Section.  This new name better reflects the scope of our work — supporting legal professionals who protect competition and consumers across California.  It also reflects our Section’s focus on consumer protection issues, and we invite those who practice consumer protection law in California to join us.
• Our 34th Annual Golden State Institute (GSI) was an incredible success, bringing together private and public sector attorneys, academics, experts, judges, and law students for an extraordinary conference on recent developments in the law, trials, and enforcement.  At the GSI dinner, we celebrated our dear colleague Paul Riehle as the Antitrust Lawyer of the Year.  We are looking forward to our 35th Annual Golden State Institute (GSI) at a new and larger venue, the Hyatt Regency San Francisco, on October 23.  The need for a larger venue reflects the continued success of GSI, and we look forward to celebrating with you. 
• The Section’s flagship consumer protection event, the Consumer and Unfair Competition Law Institute (CUCLI), was another success, and included financial support and donated professional clothing for victims of the Los Angeles fires.  We also presented our first annual Consumer and Unfair Competition Law Award, to the team of government litigators that prosecuted student loan refinance companies and their leadership for making false promises to help students facing substantial student loan debt.  The 4th Annual CUCLI will take place on January 30, 2026 in Los Angeles.
• The Section held our Eighth Annual Celebrating Women in Competition in California, bringing together an amazing panel of attorneys from across the bar to share their experiences and challenges in our practice.
• The Section held our first In House Summit, bringing federal and state enforcers to an afternoon conference in Silicon Valley, followed by a networking reception.  We look forward to more events and engagement with our in-house colleagues who have antitrust or consumer protection as part of their portfolios. 
• We will be publishing the Fall 2025 edition of Competition which contains works of scholarship on antitrust and consumer protection law.
• The Section again increased our commitment to expanding our practice to students from underrepresented groups, awarding our Inclusion & Diversity Fellowships to three law students who interned in the California Attorney General’s office.  Thank you to our incredible sponsors of these students, including Faegre Drinker, Cotchett Pitre & McCarthy, Hausfeld, Pritzker Levine, and Kesselman Brantly Stockinger.  New this year we began accepting tax-deductible donations from individuals.  If you and/or your firm are interested in supporting this work, learn more today.
• We honored attorneys in the early stages of their careers with the Lawyers to Watch Awards for their outstanding achievements in the practice of antitrust and consumer protection law.
• We renewed our mentorship program to match lawyers in their first eight years of practice with seasoned veterans of the antitrust and consumer protection bar.
• Once again, we have updated the Section’s beloved treatise, the comprehensive guide to California competition and consumer protection law.  The forthcoming edition will feature a new chapter on the technology industry.
• We have sponsored a variety of webinars and in-person panels, covering   collusion through artificial intelligence and other topics.  This fall, our Antitrust Lawyer of the Year, Tom Dadouh, will visit several California law schools and educate law students on antitrust and consumer protection topics as well as introduce them to our Section.
• And of course, our monthly E-Briefs, News and Notes has provided timely, substantive updates on key matters in our practice which has seen extraordinary developments through private litigation, public enforcement, and new state law initiatives over the past year.

None of these successes would have been possible without the dedication of the members of our Section’s Executive Committee, Advisors, and countless volunteers.  I have been fortunate to observe their tremendous leadership day in and day out over the past year while simultaneously engaging in their busy practice of law.  Nor would anything be possible without the commitment of our tireless Section Manager, Jasmeet Virdi.

The Section has provided me with an amazing opportunity to meet, work with, and learn from so many of our colleagues across the bar. It can do the same for you, if you choose to get involved. I urge you to join us at our conferences, write an E-brief, organize a panel, contribute to the treatise or Competition, or serve as a mentor. Your interest, engagement, and contributions matter to our practice overall and will enhance your experience in your own career. It has been my great honor to serve as the Section’s Chair. I look forward to the continued, incredible work of the Section in the future.

35th Annual Golden State Antitrust & Unfair Competition Law Institute (GSI)
October 23, 2025 | Hyatt Regency San Francisco
Learn More | Register Today

Join us for a distinguished evening as the Antitrust and Unfair Competition Law Section of the California Lawyers Association honors Thomas Naif Dahdouh as the 2025 Antitrust Lawyer of the Year.

Mr. Dahdouh is recognized for his remarkable 30+ year career in public service at the Federal Trade Commission, including his leadership as Regional Director of the Western Region and as Attorney Advisor to FTC Chair Lina M. Khan. His dedication to enforcement and policy work has left a lasting impact on antitrust and consumer protection law. In 2024, he was awarded the FTC’s prestigious Robert Pitofsky Lifetime Achievement Award.

Celebrate a leader. Support the profession. Join us for an evening of recognition and connection.

By James Rich

This litigation stemmed from Epic Games, Inc.’s (“Epic”) decision to embed code in the Fortnite app that allowed players to make in-app purchases in a way that bypassed the 30% commission charged by both Google LLC (“Google”) and Apple, Inc. (“Apple”), which led to both companies removing Fortnite from their respective app stores. Epic Games, Inc. v. Google LLC, No. 3:20-cv-05671-JD, (N.D. Cal. 2025), aff’d, Nos. 24-6256, 24-6274, 25-303, (9th Cir. 2025) at 9-10. This prompted Epic to file an antitrust suit against both companies separately. The Google lawsuit initially involved a large group of co-plaintiffs, but all parties except Epic settled before trial. Google counterclaimed for breach of contract, alleging that Epic violated the Developer Distribution Agreement (“DDA”), which all developers, including Epic, were required to enter before offering apps on the Play Store.

The jury found for Epic, ruling that Google had violated federal and state antitrust laws for both the distribution and in-app billing services of the Android system. After “extensive post-trial proceedings,” the district court issued a multifaceted permanent injunction against Google. This injunction includes a ban on revenue sharing deals with current or potential competitors to the Play Store; a restriction on deals that require apps to launch first or exclusively on the Play Store; a ban on Google requiring all apps on the Play Store to use the Google Play Billing system; a mandate that Google must allow third-party third party apps to access the Play Store catalog; a ban on Google blocking third-party app stores or distribution platforms from being offered on the Play Store; and created a three-person technical committee (“the Committee”) tasked with overseeing implementation and resolving disputes.

Google’s appeal presented four challenges to the district court’s decision. First, it argued the market definition finding was improper under the doctrine of issue preclusion, asserting the earlier Epic Games, Inc. v. Apple Inc. case resulted in a different market definition. In Apple, the court defined the relevant market as “digital mobile gaming transactions.” In contrast, the jury in this case identified the markets as “Android app distribution” and “Android in-app billing.” Second, Google challenged the district court’s decision not to bifurcate the trial, arguing that the antitrust claims brought by Epic and Google’s breach of contract counterclaim should have been tried separately. Third, Google asserted that the district court erred in its jury instructions, specifically arguing that the court was required to instruct the jury on the principles governing single-brand and allow the consideration of procompetitive benefits across markets. Lastly, Google challenged the injunction itself, arguing (among other things) that the injunction creates an impermissible duty to deal with competitors, that its mandates lack a sufficient nexus with the behavior in question to be justified, the court exceeded its authority in issuing it, and the Committee was too vague to be enforceable. The court rejected all Google’s arguments, for reasons this e-brief will address in turn, and affirmed the district court’s holding in full.

Market Definition

Google’s argument that the previously decided Apple case should bind the market definition in this case failed because the underlying claims against Apple differed enough that “‘the issue at stake’ was not identical in the two cases” and therefore the standard for issue preclusion was not met. The Ninth Circuit emphasized the different theories of the respective cases, specifically that Apple created a “walled garden” with their exclusive hardware/software combination, whereas the Google case involved an “open philosophy” of their software being licensed onto the products of other hardware providers. To wit, Apple’s iOS software is used exclusively on Apple products, whereas Google’s Android platform is broadly licensed to nearly all non-Chinese Original Equipment Manufacturers aside from Apple. In this case, Epic focused on the gaming market within the Android ecosystem, in contrast to the broader mobile gaming market addressed in its case against Apple. The Court emphasized that these distinct market definitions, along with materially different theories of harm asserted against Google, defeated Google’s argument for issue preclusion. They liken this situation to the fast-food market vs. the burger market saying, “McDonald’s might compete against Chick-fil-A in the fast-food market yet not compete against Chick-fil-A in the hamburger fast-food market” suggesting that the Apple case may have defined them as competitors in the fast-food market. Still, this case is narrower, like the burger market. In the absence of issue preclusion, the jury’s definition of the relevant markets, “Android app distribution” and “Android in-app billing services,” was affirmed.

Bifurcation of Trials

Google’s second argument was that the district court’s denial of Google’s motion to bifurcate the trial (separating the antitrust and breach of contract claims) represented an abuse of its discretion, and the Court erred in holding a single jury trial. In May of 2023, as the structure of the trial was being determined, both sides filed a Joint Submission Regarding Trial, in which they agreed that all the claims could and should be tried by the same jury. Shortly thereafter, Epic filed a motion to bifurcate Google’s counterclaims, which Google successfully opposed because there was “substantial overlap in evidence between its counterclaims and its defenses against Epic’s antitrust claims.” After all the non-Epic plaintiffs settled, Google sought to move both claims to a bench trial. When Epic declined, Google requested bifurcation, proposing that the breach of contract claims be tried before a jury, followed by a bench trial on the antitrust claims. Google argued it had withdrawn its consent to a jury trial on those claims. The motion was denied in November 2023, at least in part, due to Google’s prior representations regarding the “factually intertwined” nature of the claims and the prejudice Epic would face from altering the proceedings at such a late stage. The Ninth Circuit affirmed the decision, noting that although Google claimed to have withdrawn its consent to a jury trial on the antitrust claims, “this was a classic case of intertwinement.” One of Epic’s key defenses to the contract claim, an illegality defense based on the alleged antitrust violations, depended on the outcome of their claim. Accordingly, the district court acted within its discretion and followed the “usual practice” standard established by case law in denying the bifurcation of the trial.

Jury Instructions

During the trial, several of Google’s proposed jury instructions were denied, and they appealed some of those decisions here. The first was a request for the judge to instruct the jury on the plaintiff’s burden to prove a single-brand aftermarket theory, but the Court declined to give these instructions, which Google claimed was an error. The Court rejected this argument, noting that neither party presented the case under a single-brand theory at trial and, even if they had, the factual record did not support such a theory. The Court noted that the single-brand aftermarket approach was another attempt by Google to frame the relevant markets as Android and iOS, instead of the jury’s conclusion that the relevant market in this case was the one “within the Android ecosystem.” Google’s second objection concerned the district court’s failure to instruct the jury to consider cross-market benefits in evaluating whether Google’s conduct was reasonably necessary to achieve procompetitive benefits for consumers under the Section 2 claims. The Ninth Circuit acknowledged that the issue remains unresolved, noting that “Supreme Court precedent on the issue is not clear,” but concluded that the district court did not err in declining to give the requested instruction. The Court went further, stating that even if the Supreme Court were to later determine that such instructions are required, it would not have affected the outcome of this case. The Court reasoned that because the Section 1 instructions did not limit procompetitive considerations to the relevant market, and the jury still found for Epic, there is reason to believe the jury would have reached the same verdict under broader Section 2 instructions. Accordingly, “any claimed error was harmless.”

Permanent Injunction

The final issues addressed by the Ninth Circuit concerned the injunction issued by the district court, which Google challenged on several grounds. First, Google contested two provisions of the injunction intended to “[unwind] the consequences of Google’s anticompetitive conduct,” the catalog access and app store distribution requirements. Google argued that the catalog access requirement improperly imposed a “duty to deal” insofar as they must create new products and services for their competitors without a strong link to their anticompetitive conduct. The Court dismissed Google’s argument, finding it relied on misinterpreted case law. It pointed to multiple precedents where courts required companies to take corrective action after engaging in anticompetitive conduct. Google tried to distinguish its situation by asserting that it was being forced to “design new products,” but the Court disagreed. It clarified that Google was only required to give competing app stores access to existing data and resources, not to develop anything from scratch. While the Court acknowledged that implementing this change would incur Google some costs, specifically in making the Play Store catalog available to other app stores, it found the expense negligible (under $1 million) and therefore not dispositive, and noted that the injunction provided Google with a feasible eight-month timeline.

Next, Google contended that the district court “committed a legal error by failing to make a specific legal finding that ‘the company’s competitive advantage—here, network effects—would have existed even without the anticompetitive conduct,’” and Google claimed it had gained a “lawful advantage” as a first mover in the Android system, not through any illegal behavior. They made similar arguments regarding the injunction’s mandate for Google to allow the distribution of third-party app platforms on the Play Store, arguing that the court failed to make a causation finding and exceeded its authority with the injunction. Again, the Ninth Circuit dismissed these arguments, stating that Google misconstrued the legal standard. First, they clarified that first movers are still not entitled to “maintain and magnify” their advantage through anticompetitive conduct. Next, they explained that the district court was only required to tailor the injunction to have “a significant causal connection to ‘the violation found,’” which it had adequately established in its ruling.

Google proposed amending the language in the pricing clause related to app store distribution, suggesting that the term “reasonable fee” be updated to “nondiscriminatory pricing.” The Court did not accept this change, noting that Google’s proposed language could permit the company to charge all developers an equally excessive fee, an outcome the FTC and DOJ had warned against. The Court suggested such pricing would entirely undermine “the pro-competitive function of the app-store distribution remedy.” The Court also pointed out that Google failed to provide any example where “reasonable fee” would pose a procompetitive issue while “nondiscriminatory pricing” would not.

Google’s next issue with the injunction centered around the Committee that it set up, challenging it for vagueness under Rule 65, arguing that it leaves too many open questions regarding compliance with the order and the Committee is not an appropriate mechanism for clarifying any potential ambiguities. The Court firmly rejects the ambiguity claim, emphasizing that the district court’s order gives plenty of detail regarding the terms of the injunction such that Google should know what falls in its purview and enough to meet the “reasonable detail” requirements of Rule 65. They also reject the challenges to the Committee, saying it is a “helpful resource” to work out the granular details of the injunction, that it complies with precedent, and is “not at all uncommon.”

Finally, Google attempted to challenge the entire injunction, by challenging Epic’s standing and disputing the factual findings underlying the remedy, using that frame to gather various claims that the district court:

        (1) failed to explain why it did not impose less burdensome contractual restrictions;
        (2) declined to consider Google’s settlement agreement with the States; and
        (3) overlooked the security and intellectual property interests of non-parties.

The Court addressed each claim in turn, first rejecting Google’s argument that the district court failed to justify its injunction. Although Google argued that the injunction would restrict certain business practices, the Ninth Circuit upheld it, finding the measures necessary to address Google’s past anticompetitive conduct in the Android market. The Court also found the claim that the district court failed to properly consider the states’ settlement when crafting the injunction unpersuasive.  Google argued that the injunction should have been shaped by the terms of its earlier settlement with the states involved in the case. The Ninth Circuit dismissed this argument outright, stating it had “no basis in law or fact.” The Court rejected the security and IP concerns, stating they “do not accord with the record or terms of the injunction,” and affirmed that the district court properly weighed the relevant risks.

Finally, the Court rejected Google’s Article III challenge, in which Google argued that Epic lacked standing to seek a nationwide injunction. Google cited the recent decision in Trump v. CASA, Inc.,606 U.S., No. 24A884, 2025 WL 1773631, at *4 (U.S 2025) challenged the redressability prong of standing, and claimed that Epic had not shown risk of further injury since it had not distributed games on the Play Store for years. The Court distinguished this case from CASA, noting that “a permanent injunction following a finding of antitrust liability is hardly comparable to that of a preliminary injunction on a constitutional question.” As for redressability, the Court again differentiated this case from Google’s cited precedent, since here “no one contends that the injunction would be ‘unlikely to affect the [alleged wrongdoer’s] decisions’” Lastly, the Court dismissed Google’s argument about repeated injury, explaining that Epic’s absence from the Play Store is the very harm at issue in the case, and therefore there remains a risk of ongoing harm. Overall, the Court found that the crafting of the injunction “fit squarely” within the district court’s jurisdiction, and they found no reason to amend or overturn it.

Administrative Pause

The Ninth Circuit granted Google’s same-day request for an emergency administrative pause on a looming deadline to open the tech giant’s Play Store to alternative app distribution on August 1, 2025, following the appellate court’s upholding of a landmark antitrust win for Epic.

Earlier in the day, Google filed an emergency motion with the Ninth Circuit, stating that it needed breathing room before formally seeking a pause of a permanent injunction that requires Google to allow app downloads from other platforms. The Ninth Circuit preserved Epic’s district court win and the subsequent injunction on Thursday.

By Lee Berger and Travis West

On June 23, 2025, the Ninth Circuit revived claims that a competitor used its monopoly power to harm rivals through exclusive deals.  This decision, along with other recent decisions, demonstrates that casting exclusionary conduct as a refusal to deal may no longer serve as a shortcut for dismissing Section 2 cases.

Background

The appeal arose out of a suit between CoStar Group, Inc., the dominant platform for brokers in commercial real estate listing, information, and auction markets, and Commercial Real Estate Exchange, Inc.  CoStar had sued CREXi for intellectual property rights violations, alleging that CREXi listed images and other information that CoStar hosts.  CREXi countersued, alleging violations of Sections 1 and 2 of the Sherman Act and “unfair” and “unlawful” practices under California’s Unfair Competition Law.  The district court dismissed CREXi’s antitrust counterclaims.

CREXi specifically alleged that CoStar imposed contract terms on its broker customers that either expressly or implicitly prohibited them from providing their listings to CoStar’s competitors.  CREXi also alleged that CoStar built technological barriers to prevent brokers from easily transferring their listings to other platforms.

Legal Standard

The court began its analysis by noting that it essentially only had to determine whether CREXi had plausibly alleged that CoStar (1) had monopoly power, including the power to substantially foreclose competition; and (2) entered exclusive agreements, an example of anticompetitive conduct.  If CREXi had done so, it would have plausibly alleged violations of Sections 1 and 2. 

Monopoly Power Allegations

CREXi alleged direct evidence of monopoly power by referencing the supracompetitive prices charged by CoStar.  For example, CREXi alleged that CoStar increased its prices by 80% for new customers after it had driven another competitor out of the market through litigation.  The district court found this allegation insufficient on its own and required CREXi to demonstrate that CoStar restricted output in the relevant markets.  The appellate court held that demonstrating reduced output was not required, and the supracompetitive pricing was sufficient on its own. 

CREXi also pointed to indirect evidence of monopoly power.  For instance, CREXi alleged CoStar had at least 90% market share in each of the three markets, exceeding the traditional 65% benchmark.  CREXi also alleged that significant barriers to entry existed because the platforms in the relevant market benefited from network effects.

Exclusive Agreements and Anticompetitive Conduct

For the exclusive dealing allegation, the panel clarified that the district court had misconstrued the inquiry by imposing a refusal-to-deal framework.  Rather than CoStar refusing to deal with CREXi, CREXi had alleged that CoStar kept its customers from dealing with CREXi. 

CREXi’s exclusive dealing allegation, however, faced a problem: CoStar’s contracts explicitly said CoStar’s rights to use its customers’ data were non-exclusive.  CREXi argued that although the contract may have disavowed exclusive rights, it was a de facto exclusive contract.  The Ninth Circuit, though, had not yet adopted a de facto standard.  The court noted that several other circuits had, but in the context of forfeiting contractual rebates when a customer used another competitor.  Here, however, the court relied on other provisions that appeared to establish exclusive rights to the data.  Although not conclusive on their face, CREXi alleged that in practice, they prevented customers from using other competitors.  As evidence, CREXi quoted customers who believed using CREXi would be a breach of contract with CoStar. 

CREXi also alleged that CoStar blocked it and other competitors from accessing customers’ inventories on the customers’ websites, which CoStar powered.  Although the sites were accessible to the public, CoStar blocked CREXi and other competitors from viewing them.

Conclusion

The court held that CREXi had plausibly alleged that CoStar has monopoly power in the relevant markets and engaged in anticompetitive conduct by entering de facto exclusive agreements and constructing technological barriers.  It reversed and remanded to the district court. For two decades since the Supreme Court’s Trinko decision, defendants in most monopoly cases tried to frame them as refusals to deal, applying the stringent Trinko factors and getting cases dismissed.  But CoStar v. CREXi can now be added to the growing list of high-profile Section 2 cases, including the Live Nation, Google, and Apple decisions.  These courts have refused to dismiss complaints based on a narrow reading of what constitutes actionable exclusionary conduct; instead they have embraced a more general exclusionary conduct theory to find a viable claim. These cases may complicate defendants’ efforts to obtain early dismissal in Section 2 cases.

By David Lerch

Google’s Chrome Privacy Notice (CPN) stated that users of Chrome (Google’s browser) did not need to provide their personal information to use Chrome and that information stored by Chrome would not be sent to Google unless users turned on the sync function.  However, Google’s Privacy Policy states that Google collects data when users visit websites that use Google services, and other Google documents also provide additional information about Google’s collections policies.  Because each putative class member could have seen varying combinations of the Google privacy policy documents, the Court declined to grant class certification.

Procedural Background

In a previous order, the Court granted Google’s summary judgment motion as to the issue of whether users had consented to Google’s use of their information, finding that as to the documents plaintiffs cited, viewed individually and holistically, were insufficient to establish a genuine material dispute as to whether plaintiffs consented (Order at 3). The order rested on a finding that Google collected the at-issue data regardless of which browser was in use, and therefore its collection and use was governed by the “browser-agnostic” general privacy policies and not the Chrome-specific CPN (Order at 3).

The Ninth Circuit reversed, holding that this Court “should have reviewed the terms of the various disclosures and decided whether a reasonable user reading them would think that he or she was consenting to the data collection.” Calhoun v. Google, 113 F.4th 1141, 1148 (9th Cir. 2024). “Because applying the correct standard reveals disputes of material fact regarding whether ‘reasonable’ users of Google’s product consented to Google’s data collection practices,” the Ninth Circuit remanded the consent issue for trial “assuming a plaintiff class is certified.” Id. at 1151.

Following this remand order, the plaintiffs moved to certify a class of all Google account holders who accepted Google’s U.S. Terms of Service and who used the chrome browser in the basic browser and/or the signed in but not consented for sync modes (Order at 3).  Plaintiffs move for certification under Rule 23(b)(3) and 23(b)(2) or, alternatively, an issue class under Rule 23(c)(4) (Order at 3-4).

Rule 23(b)(3) Damages Class

Google argued that the affirmative defense of implied consent defeated predominance and precluded certification of a class under Rule 23(b)(3) (Order at 6).  The Ninth Circuit has stated that a defendant must present non-speculative evidence that an affirmative defense would require individualized inquiries to defeat the predominance inquiry.  See True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931-32 (9th Cir. 2018).  The Court stated in its order that because it was clear that implied consent is a defense to each claim, the Court must analyze Google’s evidence in light of its burden to show consumers consented to, or had adequate notice of, the data collected, stored, and disclosed (Order at 6). Google provided five sources of information from which a Chrome user could have understood which data it collected (Order at 6):

First, Google pointed to its privacy policy. Google’s Privacy Policy discloses that Google collects the at-issue data when users visit websites that use Google services and also discloses how Google uses the at-issue data (Order at 6-7).

Second, anyone with a Google account may have signed one or more “Account Holder Agreements” which disclosed its data collection practices.  Google pointed to its “Consent Bump Agreement” which states:

When you use Google services like Search and YouTube, you generate data — things like what you’ve searched for and videos you’ve watched. You can find and control that data in My Account under the Web & App Activity setting. With this change, this setting may also include browsing data from Chrome and activity from sites and apps that partner with Google, including those that show ads from Google.

This particular agreement allowed readers to click through to a FAQ page further disclosing the collection of certain data, including that: “As of October 31, 2016, holders of tens of millions of U.S. Accounts had seen the Consent Bump Agreement,” and “[a]pproximately 89% of those Accounts consented” to it (Order at 7).

Third, any user creating a Google account after June 2016 signed a New Account Creation Agreement. This agreement disclosed the collection and subsequent use of certain user data, including information such as device IDs, IP address, cookie data, and location when account holders use apps or sites that use Google services such as ads (Order at 7).

Fourth, Google’s help center contains several articles directing users to their My Activity pages.  These articles allow users to view what type of data Google collects and offers instructions on how to delete much of it (Order at 7).

Fifth, Google’s agreements with websites that use its services require those websites to make certain disclosures about data collection practices.  For example, websites using Google Analytics must post a Privacy Policy, and that Privacy Policy must provide notice of the third-party websites’ use of cookies and identifiers for mobile devices and use of Google Analytics (Order at 8).

The Court concluded that Google met its burden of presenting concrete evidence sufficient to show individualized inquiries as to each user’s subjective understanding of its data collection practices (Order at 8). The Court stated that the proposed class contains millions of Chrome users, each of whom was exposed to, and may have explicitly or implicitly consented to, varying disclosures potentially providing notice that their use of Chrome meant their data would be collected (Order at 8).

The Court rejected plaintiffs’ argument that implied consent is not a defense to claims in the complaint (Order at 9).  The Court noted that Google has provided evidence that demonstrates different users may have had varying understandings of Google’s data collection practices and the commitments required by Google under the CPN.

In addition, plaintiffs argued that the Court may not consider extrinsic evidence in the specific context of the breach of contract and UCL claims.  The Court rejected this argument, stating that the implied consent inquiry permits a court to consider extrinsic evidence to the extent necessary to determine a party’s subjective understanding of the terms to which they consented as opposed to a specific contract term (Order at 9).

Plaintiffs argued that the Ninth Circuit’s previous opinion regarding the summary judgment order foreclosed the class certification issue. The Court acknowledged that the Ninth Circuit found that “when the disclosures are read together and in the light most favorable to Plaintiffs, a reasonable user would not necessarily understand that they were consenting to the data collection at issue” Calhoun, 113 F.4th at 1150 (emphasis supplied) (Order at 9).  However, the Court stated that that in this case (outside the context of summary judgment), it does not automatically follow that no reasonable user would understand the user was consenting to data collection (Order at 9).

Plaintiffs raised arguments going to the reasonableness of any putative class member’s understanding that Google collected their PI (Order at 10).  Plaintiffs argued the CPN made Chrome-specific promises and stated that document controlled over others, and thus it would be unreasonable for a user to impliedly consent based on other documents (Order at 10 n. 6). The Court stated that even if this was a reasonable proposition, the Court could not make that finding as a matter of law and declined to consider all other privacy policies.  The Court concluded that these arguments require interpretation of the various sources of information proffered by Google, the precise sort of inquiry that is likely to overwhelm questions common to the class and denied the motion to certify a Rule 23(b)(3) damages class with prejudice (Order at 10). 

Rule 23(b) Injunctive Relief Class

As for typicality, Google asserted that named plaintiffs are atypical and therefore cannot satisfy Rule 23(a) because they did not actually read the CPN (Order at 11). Typicality is a permissive standard and requires that the claims of named class members be reasonably co-extensive with those of absent class members.  See Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010) (abrogated on other grounds by Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022)).  Under this flexible standard, the Court understands that all class members were in the same contractual relationship with Google, received the same set of promises, and had the same types of PI sent to Google, which weighs in favor of typicality (Order at 11).  However, the evidence regarding the various exposures class members had to disclosures, including whether they read the CPN, weighed against typicality (Order at 11). The Court declined to decide this question, concluding instead that Plaintiffs could not show concrete and particularized harm (Order at 11).  Under Rule 23(b)(2), plaintiffs must show “concrete and particularized legal harm . . . coupled with a sufficient likelihood that [they] will again be wronged in a similar way.” Backhaut v. Apple Inc., 2015 WL 4776427, at *8 (N.D. Cal. 2015) (internal citation omitted). The future injury may be neither conjectural nor hypothetical, but rather, there must be a real and immediate threat of repeated injury. Id. The Court concluded that plaintiffs could not do so. First, with respect to the contract-based claims, plaintiffs conceded that the current promises with regard to Chrome’s data collection exist in non-contractual documents and so there are no contractual promises to be enforced (Order at 11). Second, as to the non-contractual claims, plaintiffs argue their injuries are ongoing because: (i) Google continues to take PI without consent and (ii) the new disclosures are unintelligible (Order at 11). The Court concluded that the evidentiary record compels a different conclusion, given that Plaintiffs’ case rested on a theory of liability grounded in the synced/not-synced distinction found in the CPN.  Because the CPN no longer exists, the Court concluded that alleged harm from lack of disclosure about this distinction cannot flow from the surviving documents (Order at 11-12).

Rule 23(c)(4) Issue Class

Plaintiffs also sought certification of an issue class under Rule 23(c)(4).   The Court noted that although predominance is not strictly a requirement in order to certify a Rule 23(c)(4) issue class, a district court is within its discretion to refuse to certify one where “numerous individualized issues affect[] determinations of liability [and therefore] make Rule 23(c)(4) certification inefficient.” (Order at 12, citing Reitman v. Champion Petfoods USA, Inc., 830 F. App’x. 880, 882 (9th Cir. 2020) (unpublished)).  Plaintiffs argued that an issue class would materially advance the litigation from an efficiency perspective because a prima facie case for liability can be established through classwide proof.  However, the Court concluded that issue class certification is ineffective in efficiently driving the litigation where individualized issues impact the underlying liability determination, and that though implied consent is an affirmative defense, liability ultimately turns on each class member’s subjective understanding of defendant’s promises (Order at 13).

By Cheryl Johnson

The Ninth Circuit affirmed a dismissal with prejudice of a class action alleging  Apple misrepresented its 200 GB iCloud data storage plan and delivered 5GB of storage less than plaintiff expected. The breach of contract claim was dismissed as Apple’s contract obligated provision of “additional storage” to the base 5 GB all users received, and not an “additional 200 GB of storage”. 2025 WL 2055748, at *4.  Consumer protection claims under the  CLRA, UCL and FAL were also dismissed for failure to satisfy the reasonable consumer test and the  heightened pleading standard for fraud-based claims. Id. at *4.

Whether a business practice is deceptive is usually a question of fact, but the court stated that  plaintiff’s expectation that purchase of a 200 GB plan would result in 205 GB of storage was “not reasonable as a matter of law” and was derived only from an ambiguity in Apple’s plan descriptions.  However, while the statements might be ambiguous to some consumers, the ambiguity was dispelled by the specific descriptions in the plan Agreement, so “a reasonable consumer would not share the plaintiff’s expectation of additional storage” and would not be deceived by Apple’s statements. Id. at *5.

Though the plaintiff objected to the application of Rule 9(b) to her consumer claims, she failed to brief the issue on appeal and thus waived any challenge to its applicability. Id. at * 6, n.4.  Thus, the consumer claims were also dismissed for failure to identify any specific statements that were deceptive, or to  show facts showing the falsity of the statements.  Id. at *6.

By Anjalee Behti

Eastern District of California Judge William B. Shubb certified a class of thousands of former NCAA Division I volunteer coaches who had sued the NCAA for anticompetitive compensation prohibitions. The Ray v. NCAA decision gives practitioners on both sides of high-stakes antitrust litigation valuable insight regarding expert evidence standards and differences between class certification and merits determinations.

The Court Shields Expert Testimony from Pretrial Daubert Attack

Judge Shubb refused to exclude plaintiffs’ economic witness, Princeton economist Dr. Orley Ashenfelter, despite extensive challenges by the NCAA.

Judge Shubb determined that a “full Daubert analysis” was premature since discovery remained ongoing and Dr. Ashenfelter was still receiving new data and refining his analysis. The Court emphasized that Dr. Ashenfelter’s use of regression analysis with a “benchmark” approach was a well-established technique in antitrust cases, and his strong background in labor economics was not contested.

The Court characterized, in part, the NCAA’s objections as attacks on the weight of the evidence rather than its admissibility. This was determinative, as the Court noted that “objections to a statistical study’s completeness generally go to the weight, not the admissibility of the statistical evidence.” Ray at *5 (cleaned up).

Courts Declines to Adjudicate “Battles of Experts” at Certification

The Court’s handling of the two conflicting expert methods of quantifying damages was notable. The NCAA’s witness, Dr. Jee-Yeon Lehmann, protested Dr. Ashenfelter’s methodology on the grounds that it failed to account for “substitution effect[s]” – in effect protesting that members of the class would have to demonstrate they would have been working under the hypothetical world where the NCAA’s restrictions did not apply. Id. at *8.

Judge Shubb explicitly refused to resolve this dispute, stating, “It is not for the court to engage in a ‘battle of the experts’ over the merits at this juncture.” Id. at *9. The Court noted that both arguments appeared plausible and cited rivaling precedent on the issue. This approach is indicative of a general judicial aversion to make authoritative determinations about competing economic theories at the class certification stage.

The Court declined to resolve fundamental disagreements between experts about the proper framework for calculating antitrust damages at the class certification stage if the plaintiff’s methodology is theoretically sound and based on reliable data. The NCAA’s “substitution theory” challenge, while potentially sound on the merits, was deemed inappropriate for resolution at certification.

Individualized Damages Remain Acceptable in Antitrust Classes

The decision reaffirms Ninth Circuit precedent that individualized damage calculations do not automatically preclude class certification in antitrust litigation. The NCAA argued that variations in compensation levels between schools and sports would require individualized determinations that would predominate over common issues. Judge Shubb rejected this argument, observing that “there is no per se rule that a district court is precluded from certifying a class if plaintiffs may have to prove individualized damages at trial.” Id. at *10 (citing Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 681-82 (9th Cir. 2022)).

As the Court put it, “proof of an alleged conspiracy will focus on defendants’ conduct and not on the conduct of individual class members.” Ray at *6.

 Court’s Analysis of NCAA Challenges

The NCAA challenged Dr. Ashenfelter’s analysis for allegedly failing to control for coach experience and skill levels, but the Court found this criticism factually misplaced – the expert actually had used pay ranking and age as proxies for experience.

The NCAA also posited that Dr. Ashenfelter left out schools that did not fill paid coaching positions after the repeal of the bylaw, but the Court noted that his model had all schools, attributing zero pay to non-paying positions in the but-for analysis.

Finally, the NCAA argued that potential conflicts existed between class members coaching different sports at the same school, since each would need to prove their school would have added paid positions for their specific sport. This was dismissed by the Court as a “speculative conflict” that was not “fundamental to the suit,” noting conflicts must be real and not hypothetical in order to prevail over adequacy. Id. (citing In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th Cir. 2015)).

Conclusion

Judge Shubb’s certification order in Ray v. NCAA emphasized the Court’s preference to defer merits determinations regarding expert methodologies.  This case is set for trial in June 2026.

By Cheryl Johnson

Sarafan, a Russian-founded  app company, contended that Apple wrongly terminated its Apple Developer Program (ADP) account  due to Sarafan’s alleged publishing of spam apps and fraudulent activity. Judge White dismissed (with leave to amend) Sarafan’s First Amended complaint  alleging contract, intentional interference, UCL and Sherman Act monopolization claims.

While California’s  good faith and fair dealing covenant limited Apple’s unfettered contractual discretion to terminate Sarafan’s ADP account, it  did not alter or end  Apple’s termination rights. Op. at 5.  Moreover, due to Apple’s contractual termination rights, Sarafan could have no reasonable expectation of continued benefits under its ADP agreement. Op. at  5-6. Nor was there any bad faith or wrongful purpose alleged that would render Sarafan’s termination unlawful or support a valid tortious or intentional interference claim. Op. at 7-8.

 The court  also refused to allow Sarafan to recast its contract dispute as a Sherman Act claim for monopolization.  Op. at 14. First, Sarafan’s allegation of an aftermarket for App Distribution on an iOS system was deficient because it failed to plausibly allege that consumers generally were unaware when buying an iOS device that Apple prohibited use of alternatives in its App Store. Op. p 12.   In “light of the prevalence of iOS devices and the popularity of jail-breaking tools”, the judge found  it “implausible without some well-pleaded factual basis, that consumers are unaware that app downloads are restricted to the App Store.” Op. at 12.  Additionally, allegations that Apple conducted sloppy investigations before terminating a developer’s ADP account did not rise to anticompetitive conduct or cause the kinds of harm that the antitrust laws were designed to protect. Op. at 13-14.  Finally, the UCL unfairness claim failed as no bad faith was alleged. Op. at 14.

Office of Public Affairs

Today, the Department of Justice’s Antitrust Division salutes the President’s decision to revoke Executive Order 14036. The Division will use this opportunity to continue its work to recalibrate and modernize the Federal approach to competition policy to suit the needs of our dynamic and innovative economy.

Instead of an overly prescriptive and burdensome approach, the Division commends the Administration for promoting competition via tailored executive orders that call for lowering drug prices and opening regulatory barriers to competition. Beyond implementing these Executive Orders, the Antitrust Division has made steady progress in freeing up deal flow by appropriately streamlining the Hart-Scott-Rodino Act (HSR) review process. In particular, the Division has reinstated the practice of granting early termination in uncontroversial HSR reviews as well as reinstating a willingness to settle merger reviews with targeted and well-crafted consent decrees. Both practices were eschewed during the Biden administration. Moving forward, the Division will continue adapting towards focused law enforcement that matches the complexity and pace of the modern economy.

Office of Public Affairs

Decree Would Prohibit Algorithmic Coordination and Exchanging Competitively Sensitive Data with Competitors

The Justice Department’s Antitrust Division filed a proposed settlement today to resolve the United States’ claims against Greystar Management Services LLC as part of its ongoing enforcement against algorithmic coordination and other anticompetitive practices in rental markets across the country.

Greystar, the largest landlord in the United States, manages almost 950,000 rental units across the country. As alleged in Plaintiffs’ complaint, Greystar and other landlords, including five co-defendants, shared competitively sensitive data to generate pricing recommendations using RealPage’s algorithms, which also included anticompetitive rules that aligned competitors’ pricing. In addition, Greystar and other landlords discussed competitively sensitive topics — including pricing strategies, rents, and selected parameters for RealPage’s software — directly with each other.

“American greatness has always depended on free-market competition, and nowhere is competition more important than in making housing affordable again,” said Attorney General Pamela Bondi. “We will continue to vigorously pursue President Trump’s pro-consumer agenda.”

“The Trump-Vance Administration is committed to promoting competition to help working class Americans pay for life’s necessities — including rent,” said Assistant Attorney General Abigail Slater of the Justice Department’s Antitrust Division. “Whether in a smoke-filled room or through an algorithm, competitors cannot share competitively sensitive information or align prices to the detriment of American consumers.”

If approved by the court, the proposed consent decree would require Greystar to:

• Refrain from using any anticompetitive algorithm that generates pricing recommendations using its competitors’ competitively sensitive data or that incorporates certain anticompetitive features;
• Refrain from sharing competitively sensitive information with competitors;
• Accept a court-appointed monitor if it uses a third-party pricing algorithm that is not certified pursuant to the terms of the consent decree;
• Refrain from attending or participating in RealPage-hosted meetings of competing landlords; and
• Cooperate with the United States’ monopolization claims against RealPage.

U.S. District Court judge in Nevada has issued a preliminary injunction against the three companies that executed the IM Mastery Academy schemes and the two individuals who have led it, halting their activities and requiring them to preserve their assets.

In a complaint filed in May 2025, the FTC and the State of Nevada allege that the scheme—which operated most recently as IYOVIA, but has also branded itself as IM Mastery Academy, iMarketsLive, and IM Academy—used false or baseless earning claims to entice consumers to purchase training on investment in financial markets. The defendants have used similar claims to persuade consumers to buy into the defendants’ multi-level marketing business venture, which involves marketing the defendants’ training services to others. The FTC alleges that the total harm to consumers since 2018 exceeds $1.2 billion.

The preliminary injunction against Chris and Isis Terry and the companies that operated the scheme requires the defendants to preserve assets and records, and puts a monitor in place to ensure that the companies comply with the law and the requirements in the preliminary injunction. The preliminary injunction prohibits them from:

• Making any earnings claim, unless it is non-misleading at the time it’s made, the defendants have a reasonable basis for the claim, and written materials that substantiate the claimed earnings are typical for similarly situation[ed] consumers are available upon request to consumers, the FTC, the court-appointed monitor, and potential purchasers;
• misrepresenting, or assisting others in misrepresenting, material facts including the level of experience required, the amount of capital required, and the terms of any refund, cancellation or exchange policy;
• failing to disclose clearly and conspicuously all material terms of any negative option transaction before obtaining the consumer’s billing information and express informed consent for the transaction; and
• violating the FTC’s Telemarketing Sales Rule.

Assurance IQ, LLC and MediaAlpha, Inc. will pay a total of $145 million to settle Federal Trade Commission charges that they misled millions of consumers seeking to buy comprehensive health insurance. In two separate actions, the FTC alleged that both Assurance and MediaAlpha deceived consumers and led them to purchase plans that did not provide the promised health care coverage, and bombarded consumers with telemarketing and robocalls.

“Coherently and systematically addressing unlawful lead generation is a priority for the FTC. That’s especially so in connection to health insurance, one of the most expensive and important products consumers buy to protect themselves and their families. Consumers should receive accurate, truthful, and non-misleading information about the coverage insurance provides,” said Christopher Mufarrige, Director of the Bureau of Consumer Protection. “The FTC will take action when lead generators or other sellers break the law and harm the American people.”

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The proposed court order announced today resolving the FTC’s allegations imposes a $100 million judgment against Assurance for violating the TSR which will be used to provide refunds to consumers. It also prohibits Assurance from making a range of express and implied misrepresentations relating to health plans, including:

• the extent of and limits on coverage and benefits;
• the costs to the consumer to buy, receive, use, cancel, or return a health plan;
• that any plan, product, or service is included at no additional cost with the purchase of a health plan;
• that any health plan is Affordable Care Act-compliant insurance or comprehensive health insurance; and
• that any health plan gives consumers access to provider networks that will reduce their medical bills and expenses.

The order also requires that Assurance have competent and reliable evidence to substantiate any claim it makes regarding any health plan and to truthfully disclose actual costs and any limitations on the use or benefits of any health plan it offers. In addition, the order bars Assurance from billing consumers for any health plan before getting express informed consent and from violating the TSR.

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According to the FTC’s complaint, MediaAlpha has attracted consumers to their healthcare-related lead generation websites using misleading domains such as “ObamacarePlans.com” that imply they are associated with the government and claim that consumers will be able to buy low-cost, comprehensive health insurance that complies with the ACA.

The FTC also alleged that MediaAlpha has hired actors and celebrities to promote a non-existent government “Health Insurance Give Back Program” to drive consumer traffic to its health sites. MediaAlpha even paid a doctor to appear in scripted “advertorial” news segments and suggest that “millions of Americans … were able to qualify for a great health plan for $1 a day” using the defendants’ lead generation services.

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The proposed court order resolving the FTC’s allegations imposes a $45 million judgment against MediaAlpha, which will be used to provide refunds to harmed consumers. The order also:

• permanently bars MediaAlpha from making the types of deceptive claims alleged in the FTC’s complaint, including misrepresentations regarding government affiliation, endorsements and the amount of time consumers have to act;
• prohibits the defendants from misrepresenting the costs or features of the goods or services they or their partners sell and requires competent and reliable evidence supporting any claims the defendants make about those goods or services;
• requires the defendants to implement robust monitoring practices to ensure that they and their partners comply with the law in the future;
• requires MediaAlpha to turn over various allegedly deceptive web domains, including GovernmentHealthInsurance.com and ObamacarePlans.com, and to clearly and conspicuously notify consumers that any healthcare-related website it operates in the future is not affiliated with or endorsed by the government; and
• requires the defendants to obtain consumers’ express informed consent to collect, sell, or disclose any personal information.

The Federal Trade Commission today moved to block medical device supplier Edwards Lifesciences Corp.’s (Edwards) proposed acquisition of JenaValve Technology, Inc. (JenaValve) due to concerns that the acquisition would limit patient access to lifesaving medical devices used to treat a potentially fatal heart condition.

The FTC alleges that over the span of two days in July 2024, Edwards executed agreements to acquire both JenaValve and JC Medical, the two leading companies competing to bring to market transcatheter aortic valve replacement devices that treat a heart condition called aortic regurgitation (TAVR-AR devices). Edwards closed its acquisition of JC Medical in July 2024, and its proposed $945 million acquisition of JenaValve would combine the only two companies with ongoing clinical trials in the United States for a TAVR-AR device. The deal threatens to reduce competition in the TAVR-AR market, likely resulting in reduced innovation, diminished product quality, and potentially increased prices for consumers, according to the complaint.

“Edwards’ attempt to buy the U.S. market for TAVR-AR devices would eliminate the head-to-head competition that has spurred innovation for lifesaving artificial heart valves,” said Daniel Guarnera, Director of the FTC’s Bureau of Competition. “The FTC is taking action to stop this anticompetitive deal and ensure that JenaValve and Edwards’ JC Medical subsidiary continue competing to innovate, expand treatment eligibility, and keep down costs. Americans deserve all the benefits that come from competition between medical device makers, just as they do in other markets.”

More than 8 million Americans suffer from aortic regurgitation, which occurs when the heart’s aortic valve does not close properly, causing blood to backflow into the heart. Currently, surgical valve replacement via open heart surgery is the only U.S. Food and Drug Administration (FDA) approved procedure to treat aortic regurgitation, and TAVR-AR devices offer a new and less invasive way to treat the condition.

JenaValve is poised to become the first company to bring a TAVR-AR device, called Trilogy, to the commercial market in the United States. If Edwards acquires JenaValve, Edwards would gain control over the two most advanced TAVR-AR devices, the FTC complaint alleges. FDA approval or commercialization of any other TAVR-AR device in the United States by another company, aside from Edwards and JenaValve, is not expected for the foreseeable future.

Direct head-to-head competition between Edwards, through its now-subsidiary JC Medical, and JenaValve has driven the two companies to accelerate the development of their TAVR-AR devices, the FTC’s complaint alleges. Ultimately, patients will benefit if JenaValve and Edwards continue to directly compete to complete their separate TAVR-AR device clinical trials, product improvements, and commercialization plans.

The competition concerns caused by Edwards’ dual acquisition strategy are predicated on Edwards owning both JenaValve and JC Medical simultaneously, but Edwards has elected to attempt to buy JenaValve while retaining its ownership of JC Medical. Edwards has not been willing to engage on divesting JC Medical to resolve the competition concerns with the proposed JenaValve acquisition, according to the complaint.

OAKLAND – California Attorney General Rob Bonta today announced a nearly $2 million settlement with CleanNet USA, Inc. and its four California Area Operators resolving an investigation by the Attorney General’s Office, which found that some of CleanNet’s janitorial franchisees were misclassified as independent contractors under CleanNet’s franchising model in violation of state law. CleanNet USA is a nationwide company that provides janitorial franchising and commercial cleaning services under the “CleanNet” brand name and grants franchising rights to its California Area Operators, who sell CleanNet unit franchises to individuals and entities in California and enter into franchise contracts with these unit franchisees.

After the payment of an initial franchise fee, CleanNet assigns cleaning services contracts to unit franchisees, who then provide cleaning services for CleanNet’s customers. As a result of CleanNet’s unlawful misclassification of certain individual franchisees who personally performed cleaning work, these workers were denied the protections of California’s employment laws, such as the right to minimum and overtime wages, regular meal and rest periods, reimbursement of business expenses, and accurate and itemized wage statements, and were further subjected to unlawful deductions from their wages. Under the settlement, CleanNet will pay $1,700,000 in restitution and $150,000 in civil penalties and comply with injunctive terms requiring it to cease its misclassification of certain cleaners, notify all former and current workers of the settlement, and undergo monitoring for three years, among other terms. 

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Under the settlement, CleanNet USA and its four California area operators, CleanNet of Southern California, Inc. (DBA CleanNet of Southern California), D&G Enterprises, Inc. (DBA CleanNet of the Bay Area), Paqnet, Inc. (DBA CleanNet of San Diego), and FCDK, Inc. (DBA CleanNet of Sacramento), (collectively, CleanNet) will change their franchising business model, pay civil penalties, and provide restitution to their cleaners for the losses the cleaners incurred due to their unlawful deductions, failure to reimburse cleaners for their supplies, and failure to pay at least the minimum wage for all hours worked. All current and former cleaners will be notified by CleanNet with next steps to claim restitution.