In a 41-page order, U.S. District Judge Amit P. Mehta granted Google's motion to dismiss a proposed class action by Helena World Chronicle LLC and Emmerich Newspapers Inc. — the owners of online local news outlets in Arkansas and Mississippi — who accuse Google of monopolizing markets for internet search and online news through various practices.
The publishers had alleged Google's share of the online news market is 66% because, between March 2023 and March 2024, Google.com — including "news.google.com" and "gemini.google.com" — and YouTube.com collectively received more than 767.8 billion visits, according to the judge's order.
However, the judge found that the publishers have not pled sufficient facts to establish antitrust standing in the general search services market. They also haven't alleged Google has monopoly power, among other pleading deficiencies, and therefore their antitrust claims cannot survive.
"No credible expert would calculate market share in the way plaintiffs have: by simply extrapolating the percentage share of all URL visits, regardless of purpose, into share percentages of a discrete market for online news, which is characterized by low barriers to entry and hundreds of competitors," the order says. "More is needed to plausibly allege monopoly power."
The publishers' sprawling antitrust lawsuit, initially filed in December 2023, alleges that Google has leveraged its power in the general search services market, which it purportedly achieved through an alleged "monopoly broth" of anticompetitive acts, to monopolize or attempt to monopolize the online news market, resulting in Google functionally becoming America's largest news publisher.
The publishers allege that Google, among other things, pursued a series of deals, acquiring Android, YouTube and DeepMind in 2005, 2006 and 2014, respectively, that substantially lessened competition or created a monopoly in violation of the Clayton Act. They also allege Google and Apple cut an illegal 2016 profit-sharing agreement, The complaint notes that Google supplies 95% of all online news site search traffic, and Google is the second-largest source of traffic to NYTimes.com.
The publishes also claim that Google illegally tied search traffic with news content for republishing and AI training in the "upstream supply chain of the online news market" in violation of the Sherman Act.
However, in July 2024, Google asked the court to throw out the litigation, arguing that the publishers lack antitrust standing to assert claims related to the general search services market. They also fail to plead a relevant market or monopoly power in the online news market, and they fail to plead a cognizable tying arrangement, Google argued. Google additionally argued that the publishers' Clayton Act claim is time-barred.
The publishers opposed the dismissal bid, while also acknowledging in their opposition brief that they had "inartfully pled" the tied product in their tying theory. What the publishers had actually intended to allege was that the tying product is "general search services provided by Google" and that the tied product is the "search generative experience," the opposition brief says.
But in his ruling Friday, Judge Mehta sided with Google across the board, and found that the publishers lack standing to bring the search claims, since they do not participate in the search market.
The judge noted that Google crawls the web to generate its news results, but it doesn't sell the placement of organic search results to publishers, and the publishers haven't alleged any well-pled facts to support their allegations that such commercial agreements exist between Google and other publishers.
"Instead, [the publishers] cryptically claim that they have a 'transactional arrangement' with Google to supply news content in exchange for search traffic," the order says. "That is a 'legal conclusion couched as a factual allegation' that the court is not bound to accept as true."
The judge added that "at most," the publishers alleged that Google crawls the web and acquires content at no cost from online news sites, which voluntarily make their data available "in the hope that Google users will navigate there by clicking links."
"Online news publishers are in no sense purchasers in that scenario," the order says.
Judge Mehta also agreed with Google that the tying claim is insufficiently pled in the complaint, and noted that the publishers can't re-plead a new tying theory in an opposition brief. But even if they could, they likely intended to take issue with Google's AI chatbot Gemini, and not the search generative experience.
Regardless, the judge said, the publishers' tying claim fails "on all three versions of their unlawful tying claim," and they fail "from the jump to allege a tying arrangement at all."
The judge added that the publishers' Clayton Act claim is time-barred by a seven-year statute of limitations.
"The acquisitions of Android, YouTube, and DeepMind may very well have been anticompetitive," the order says. "But Plaintiffs are 10 to 20 years too late; those claims are now stale."
Counsel and representatives for the parties didn't immediately respond to requests for comment on Monday.
The publishers' suit is one front in a wave of antitrust litigation filed against the tech giant in the wake of an enforcement action brought by the U.S. Department of Justice and a contingent of state-level agencies challenging Google's profit-sharing deals.
In that case, Judge Mehta presided over a 10-week bench trial and in 2024, he found that Google is an illegal monopolist based on contracts that make Google the default search engine across a range of devices and browsers from Apple, Mozilla, Samsung and others.
The publishers are represented by Michael D. Hausfeld, Scott Martin and Michael P. Lehmann of Hausfeld LLP, Michael L. Roberts, Erich P. Schork, Kelly A. Rinehart and Sarah DeLoach of Roberts Law Firm PC, John W. Barrett and Katherine B. Riley of Barrett Law Group PC, Michael J. Flannery, Pamela Gilbert, Daniel M. Cohen and Lissa Morgans of Cuneo Gilbert & LaDuca LLP, and Charles J. Cooper, Vincent J. Colatriano and Harold S. Reeves of Cooper & Kirk.
Google is represented by John E. Schmidtlein, Kenneth C. Smurzynski and Graham Safty of Williams & Connolly LLP.
The case is Helena World Chronicle LLC v. Google LLC et al., case number 1:23-cv-03677, in the U.S. District Court for the District of Columbia.
--Additional reporting Bryan Koenig and Matthew Perlman. Editing by Michael Watanabe.
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