Google Motion To Dismiss Android

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page1 of 21
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BINGHAM MCCUTCHEN LLP

Brian C. Rocca (SBN 221576)
brian.rocca@bingham.com
Sujal J. Shah (SBN 215230)
Susan J. Welch (SBN 232620)
Three Embarcadero Center
San Francisco, CA 94111
Telephone: 415.393.2000
Facsimile: 415.393.2286
WILLIAMS & CONNOLLY LLP

John E. Schmidtlein (SBN 163520)
jschmidtlein@wc.com
Jonathan B. Pitt (pro hac vice)
James H. Weingarten (pro hac vice)
Benjamin M. Stoll (pro hac vice)
725 12th St NW
Washington DC 20005
Telephone: 202.434.5000
Facsimile: 202.434.5029

Hill B. Wellford (pro hac vice )
hill.wellford@bingham.com
Jon R. Roellke (pro hac vice)
Gregory F. Wells (SBN 212419)
2020 K Street NW
Washington, DC 20006
Telephone: 202.373.6000
Facsimile: 202.373.6001
Attorneys for Defendant
Google Inc.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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GARY FEITELSON, a Kentucky resident, and

DANIEL MCKEE, an Iowa resident, on behalf
of themselves and all others similarly situated,
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Plaintiffs,
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DEFENDANT GOOGLE INC.S

REPLY ISO MOTION TO DISMISS
PLAINTIFFS FIRST AMENDED
CLASS ACTION COMPLAINT
v.
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No. 5:14-cv-02007 BLF
GOOGLE INC., a Delaware corporation,
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Defendant.
Date:
Time.
Judge:
Dept.
November 19, 2014

9:00 a.m.
Hon. Beth Labson Freeman
Courtroom 3, 5th Floor
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CASE NO. 5:14-CV-02007 BLF
DEFENDANT GOOGLE INC.S REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT
A/76503231.5

TABLE OF CONTENTS
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Page
I.
INTRODUCTION ............................................................................................................. 1
II.
PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 1 CLAIM BECAUSE

THE MADAS DO NOT FORECLOSE COMPETITION ................................................ 3
A.
Plaintiffs Do Not Allege Actual Or De Facto Exclusivity .................................... 4
B.
Plaintiffs Fail To Allege Substantial Foreclosure Because They Concede

The Existence Of Alternative Means Of Distribution............................................ 7
C.
Plaintiffs Generic Sherman Act 1 Claim Is Based On The Same

Allegations And Fails For The Same Reasons....................................................... 8
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III.
PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 2 CLAIM BECAUSE

THE MADAS ARE NOT EXCLUSIONARY .................................................................. 9
IV.
PLAINTIFFS FAIL TO ALLEGE A CLAYTON ACT 3 CLAIM BECAUSE

THE ACT DOES NOT APPLY TO LICENSES AND BECAUSE THE MADAS
DO NOT FORECLOSE COMPETITION ....................................................................... 10
V.
PLAINTIFFS DERIVATIVE STATE LAW CLAIMS ALSO FAIL ............................ 11
VI.
PLAINTIFFS LACK ANTITRUST STANDING TO BRING THEIR CLAIMS .......... 12
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A.
Plaintiffs Lack Standing To Bring A Damages Claim For Alleged Injuries

In The Handheld Device Market .......................................................................... 12
B.
Plaintiffs Lack Standing To Bring An Injunctive Relief Claim For Alleged

Injuries In The Alleged Search Markets .............................................................. 14
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VII.
CONCLUSION ................................................................................................................ 15
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A/76503231.5
TABLE OF AUTHORITIES
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Page(s)
Federal Cases
Abbyy USA Software House, Inc. v. Nuance Communs., Inc.,
No. C 08-01035, 2008 U.S. Dist. LEXIS 90308 (N.D. Cal. Nov. 6, 2008) .............................. 8
Allied Orthopedic Appliances v. Tyco Health Care Grp. LP,
592 F.3d 991 (9th Cir. 2010)..................................................................................................... 4
Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal.,
190 F.3d 1051 (9th Cir. 1999)................................................................................................. 12
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................... 5, 12, 15
Axiom Advisors & Consultants, Inc. v. School Innovations & Advocacy, Inc.,
No. 2:05-CV-02395-FCD-PAN, 2006 U.S. Dist. LEXIS 11404 (E.D. Cal.
Mar. 20, 2006) ................................................................................................................... 14, 15
Blue Shield v. McCready,
457 U.S. 465 (1982) .......................................................................................................... 12, 13
Bus. Elecs. Corp. v. Sharp Elecs. Corp.,
485 U.S. 717 (1988) .................................................................................................................. 9
Cargill, Inc. v. Monfort of Colo., Inc.,
479 U.S. 104 (1986) ................................................................................................................ 14
Church & Dwight Co., Inc. v. Mayer Labs., Inc.,
868 F. Supp. 2d 876 (N.D. Cal. 2012) .......................................................................... 4, 6, 8, 9
Church & Dwight Co., Inc. v. Mayer Labs., Inc.,
No. C-10-4429, 2011 WL 1225912 (N.D. Cal. Apr. 1, 2011) .............................................. 7, 8
Digidyne Corp. v. Data Gen. Corp.,
734 F.2d 1336 (9th Cir. 1984)................................................................................................. 10
Exhibitors Serv., Inc. v. Am. Multi-Cinema, Inc.,
788 F.2d 574 (9th Cir. 1986)................................................................................................... 13
Free Freehand Corp. v. Adobe Systems,
852 F. Supp. 2d 1171 (N.D. Cal. 2012). ................................................................................. 15
Glen Holly Entmt, Inc. v. Tektronix Inc.,
352 F.3d 367 (9th Cir. 2003)................................................................................................... 14
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Jefferson Parish Hosp. Dist. No. 2 v. Hyde,

466 U.S. 2 (1984) ................................................................................................................ 3, 11
Kloth v. Microsoft Corp.,
444 F.3d 312 (4th Cir. 2006)................................................................................................... 15
LePages, Inc. v. 3M,
324 F.3d 141 (3d Cir. 2003) ................................................................................................ 9, 10
Lorenzo v. Qualcomm,
603 F. Supp. 2d 1291 (S.D. Cal. 2009) ................................................................................... 14
MedioStream, Inc. v. Microsoft Corp.,
869 F. Supp. 2d 1095 (N.D. Cal. 2012) .................................................................................... 8
Omega Envtl., Inc. v. Gilbarco, Inc.,
127 F.3d 1157 (9th Cir. 1997)................................................................................................... 7
PNY Techs., Inc. v. SanDisk Corp.,
No. 11cv04689, 2014 WL 2987322 (N.D. Cal. July 2, 2014) .................................... 8, 9, 11
Pro Search Plus, LLC v. VFM Leomardo, Inc.,
No. 122102JLS, 2013 WL 6229141 (C.D. Cal. Dec. 2, 2013) ............................................. 6
Pro Search Plus, LLC v. VFM Leonardo, Inc.,
No. SACV 12-2102, 2013 WL 3936394 (C.D. Cal. July 30, 2013) ......................................... 6
R.J. Reynolds Tobacco Co. v. Phillip Morris,
199 F. Supp. 2d 362 (M.D.N.C. 2002)...................................................................................... 9
S. Cal. Inst. of Law v. TCS Educ. Sys.,
No. CV 10-8026, 2011 U.S. Dist. LEXIS 39827 (C.D. Cal. Apr. 5, 2011) ............................ 15
Sicor Ltd. v. Cetus Corp.,
51 F.3d 848 (9th Cir. Cal. 1995) ............................................................................................... 9
Sidibe v. Sutter Health,
No. C 12-04854, 2013 U.S. Dist. LEXIS 78521 (N.D. Cal. June 3, 2013) .............................. 4
Southeast Mo. Hosp. v. C.R. Bard, Inc.,
642 F.3d 608 (8th Cir. 2011)..................................................................................................... 7
TeleAtlas N.V. v. Navteq Corp.,
397 F. Supp. 2d 1184 (N.D. Cal. 2005) .................................................................................. 10
TeleAtlas N.V. v. NAVTEQ Corp.,
No. C-05-01673, 2008 WL 4911230 (N.D. Cal. 2008) .......................................................... 10
Texas v. Cobb,
532 U.S. 162 (2001) ................................................................................................................ 11
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Transamerica Computer Co. v. IBM,

698 F.2d 1377 (9th Cir. 1983)................................................................................................... 9
United States v. Dentsply,
399 F.3d 181 (3d Cir. 2005) ...................................................................................................... 9
United States v. Harrison,
296 F.3d 994 (10th Cir. 2002)................................................................................................. 11
United States v. Microsoft,
253 F.3d 34, 64 (D.C. Cir. 2001) .............................................................................................. 5
Vinci v. Waste Mgmt., Inc.,
80 F.3d 1372 (9th Cir. 1996)................................................................................................... 13
In re WellPoint, Inc. Out-of Network UCR Rates Litig.,
903 F.Supp.2d 880 (C.D. Cal. 2012)....................................................................................... 13
In re WellPoint, Inc. Out-of-Network UCR Rates Litig.,
865 F. Supp. 2d 1002 (C.D. Cal. 2011) .................................................................................. 13
Western Parcel Express v. UPS of Am.,
190 F.3d 974 (9th Cir. 1999)................................................................................................... 10
William O. Gilley Enters. v. Atl. Richfield Co.,
588 F.3d 659 (9th Cir. 2009)................................................................................................... 13
ZF Meritor, LLC v. Eaton Corp.,
696 F.3d 254 (3d Cir. 2012) .................................................................................................. 5, 6
California Cases
Belton v. Comcast Cable Holdings, LLC,
151 Cal. App. 4th 1224 (2007) ............................................................................................... 11
21
Chavez v. Whirlpool Corp.,

93 Cal. App. 4th 363 (2001) ................................................................................................... 11
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Federal Statutes
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15 U.S.C. 14 ............................................................................................................................... 10
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A/76503231.5
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I.
INTRODUCTION
Plaintiffs opposition to Googles motion to dismiss attempts to help clarify their First
Amended Complaint (FAC), but only underscores why it fails. Having (rightly) jettisoned any
tying claim, plaintiffs shift their focus to a single, untenable theorythat Google engages in
exclusive dealing by licensing, at no charge, its popular apps, such as YouTube and Google Play,
in exchange for an OEMs agreement to set Google Search as a default on the device. This
arrangement, plaintiffs argue, is necessarily exclusive because there can be only one default
search engine on a device at a given time, and, thus, if Google Search is set as the default on a
device, then other competitors, such as Bing, cannot be. Plaintiffs novel theory of exclusivity,
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however, ignores both the very terms of the Mobile Application Distribution Agreements
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(MADAs) they attach to the FAC and basic antitrust principles.
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Plaintiffs cannot deny that the MADAs attached to the FAC reveal the following
fundamental flaws in their exclusive dealing allegation:
Google offers OEMs a suite of popular apps for free, and, in exchange, the OEM sets
Google Search as the default search engine. See FAC, Exs. A, B 2 (Google
Applications) and 3.4 (Placement Requirements).
This arms-length arrangement does not apply to all devices released by an OEM, or even
to any minimum percentage of them. Id., Ex. A 2.4 (For the sake of clarity, [OEM]
has no obligation to install the Google Applications on all of its devices.) (emphasis
added). Thus, there is simply no restrictionnone whatsoeveron an OEMs ability to
deploy different app and search engine configurations on different devices.
An OEM can therefore enter into a MADA, apply its terms to any subset of its devices,
and, as to other Android devices, set Bing as the default search engine, or release devices
that run on non-Android platforms (e.g., a Windows-based phone).
For any device on which an OEM chooses to preload the suite of Google apps, the
MADA does not prevent the OEM from also preloading and prominently placing
competitive search apps on that same device. To the contrary, the MADA affirmatively
requires OEMs to maintain an open environment on the device, allowing consumers to
use any preloaded apps or download other apps. See, e.g., FAC, Ex. A 1.5, 2.6
(OEMs required to maintain an open environment on devices by making all Android
software, content and digital materialsincluding, for example, Android-compatible
search engines, such as Bingavailable and open and cannot take action to limit or
restrict the Android platform); Ex. B 1.4, 2.6 (same).
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Hoping to deflect the Courts attention from these key contractual provisions, plaintiffs
repeatedly reference the decades-old Microsoft litigation. But this case is not Microsoft.
Plaintiffs ignore critical distinguishing facts, including that Microsoft prohibited OEMs from
incorporating rival web browsers on new computers at all. Here, plaintiffs concede that rival
search engines have a multitude of ways to reach consumers, including via web browsers
(www.bing.com),1 preloading their search apps on devices, encouraging consumers to take
advantage of near-instantaneous app downloads after purchase, or negotiating their own default
search arrangements. FAC 53, 56-57. And, contrary to Microsoft-based personal computers
in the 1990s, once an Android device is in the hands of a consumer, it can be easily customized,
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with apps downloaded, and default settings switched in the browser, in a matter of seconds.
Given the plain language of the MADAs and other fatal concessions in the FAC,
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plaintiffs claims require dismissal, for the following reasons:

First, plaintiffs Sherman Act 1 claim fails because (a) the plain language of the
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MADAs demonstrates they are not actual or de facto exclusive agreements and (b) multiple
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alternative means of distribution admittedly exist to reach consumers, which means there can be
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no substantial foreclosure, as a matter of law.
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Second, plaintiffs Sherman Act 2 claims fail because they are based on the same
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conduct as their Section 1 claimsconduct that is not anticompetitive or exclusionary because it
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does not substantially foreclose competition.

Third, plaintiffs Clayton Act claim fails because that act does not apply to licenses and,
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regardless, plaintiffs have not adequately alleged an exclusive dealing claim.

Fourth, plaintiffs tagalong state antitrust claims, based on the same conduct, should
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meet the same fate as their federal counterparts.
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Finally, plaintiffs also have no answer to the other fundamental flaw that plagues each of
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their claimsthe absence of any well-pled allegations that establish antitrust standing. Plaintiffs
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do not dispute that in order to suffer antitrust injury, their alleged injury must occur in the same
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Indeed, Googles own browser, Chrome, has a built-in menu of search engine options,
including Bing, any of which can be selected by the user as the default.
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market where the alleged anticompetitive conduct occurred. Here, plaintiffs, a putative class of
Android device purchasers, allege they paid too much for their devicesan injury presumably
occurring in a market for handheld devices (although the FAC never actually defines any such
market). Yet they allege anticompetitive conduct occurring in a different marketthe market for
general internet search or, alternatively, handheld searchwhere Googles services are offered
free of charge. Plaintiffs footnoted and conclusory explanation that their injuries are
inextricably intertwined with Googles conduct in the alleged search market misapplies that
narrow exception to the black letter rule of antitrust standing. Based on plaintiffs own
allegations, the connection between the alleged conduct in one market and the alleged injury in a
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separate market is, at best, remote and speculative because whether a plaintiff is injured depends
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on the actions of multiple third parties and the injury must travel through multiple levels in the
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chain of distribution. Their other argumentthat Googles conduct limits consumer choice and
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harms innovationis conclusory, inconsistent both with the terms of the MADAs, which, on
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their face, do not limit choice, and also plaintiffs admissions that Google Search is the
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Internets most powerful tool in a large and fast growing American market for mobile and
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tablet general Internet search. FAC 4, 5. Plaintiffs failure to plead antitrust injury is
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therefore an independent ground for dismissal of each claim in the FAC.
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II.
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PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 1 CLAIM BECAUSE THE

MADAS DO NOT FORECLOSE COMPETITION
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Plaintiffs Sherman Act 1 claim is based on their allegation that the MADAs somehow
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foreclose competition because they supposedly force OEMs into setting Google as the default
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search engine on a device. Plaintiffs try to shoehorn this allegation into an exclusive or de facto
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exclusive dealing theory, and, failing that, an unspecified generic restraint of trade claim. Each
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of these theories, however, requires well-pled allegations demonstrating that Google foreclosed
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competition in a substantial portion of the alleged market. E.g., Jefferson Parish Hosp. Dist. No.
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2 v. Hyde, 466 U.S. 2, 45-46 (1984) (Exclusive dealing is an unreasonable restraint on trade
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only when a significant fraction of buyers or sellers are frozen out of a market by the exclusive
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deal.). Plaintiffs cannot clear this hurdle.

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The prevailing rule in districts and circuits across the country is that where exclusive or
semi-exclusive contracts are short in duration, easily terminable, incentive-based, and leave open
alternative channels to competitors, they are not exclusionary. Church & Dwight Co., Inc. v.
Mayer Labs., Inc. (C&D II), 868 F. Supp. 2d 876, 903 (N.D. Cal. 2012). The MADAs fall into
this group of agreements that are not exclusionary as a matter of law. First, by their very terms,
the MADAs are not exclusive in any respect and plaintiffs have failed to adequately allege that
they are coercive so as to make them de facto exclusive agreements. Second, plaintiffs concede
that search competitors can access consumers through alternative means of distribution, which
alone defeats any claim of foreclosure. Finally, plaintiffs generic Section 1 claim suffers from
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the same defects as their exclusive dealing claim and should be dismissed for the same reasons.
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A.
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Exclusive dealing involves an agreement between a vendor and a buyer that prevents the
Plaintiffs Do Not Allege Actual Or De Facto Exclusivity
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buyer from purchasing a given good from any other vendor. Allied Orthopedic Appliances v.
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Tyco Health Care Grp. LP, 592 F.3d 991, 996 (9th Cir. 2010) (emphasis added); see also Sidibe
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v. Sutter Health, No. C 12-04854, 2013 U.S. Dist. LEXIS 78521, at *29 (N.D. Cal. June 3, 2013)
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(An exclusive dealing arrangement is when a seller agrees with a buyer to sell its products or
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services only to that buyer, or the buyer agrees to buy only from the seller). As set forth above,
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pp. 1-2, the MADAs do not prevent OEMs from contracting with rival search engines, or
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consumers from readily accessing market alternatives. Recognizing these facts, plaintiffs resort
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to misdirection. They argue that a default search engine is inherently exclusive because there
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is only one default, at a given time, on a device. Opp. at 5, 12, 14. But the proper question to
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ask when assessing if an agreement is exclusive is whether an OEM is exclusively dealing with
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Google, not whether a particular device is exclusive. Plaintiffs do notand cannotdispute that,
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even after signing a MADA, an OEM is not required to preload Googles suite of apps on any
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device. An OEM remains free to offer devices without Google apps preloaded, such as a device
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with Microsoft apps preloaded and Bing set as the default. Moreover, even on devices with
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Google Search set as the default, OEMs can preload rival search apps and place them
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prominently on those devices as an alternative to Google Search. See FAC 44; Exs. A, B
1.4, 1.5, 2.6.2
Even plaintiffs artificial construct of default exclusivity collapses since Android
devices are expressly open under the MADAs and consumers remain free to change default
settings in the browser. See FAC, Exs. A, B 1.4, 1.5, 2.6. Plaintiffs do not deny this
important pointin fact, they concede it. FAC 57 (acknowledging competitors can try to
convince consumers to re-set default search engines, but claiming that mostnot allusers
will maintain the default settings). Nor do plaintiffs allege that Google asks OEMs to technically
block consumers from adjusting default settings. Plaintiffs only suggest, in conclusory fashion,
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that they, personally, do not know if there is a way to adjust default search engine settings. FAC,
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15, 16. Plaintiffs do not allege, however, that they ever desired to change their default search
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engine, were unable to find information on how to do so, or attempted to do so and failed. Id. In
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the absence of such well-pled allegations, plaintiffs are left with the sort of self-serving,
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conclusory allegations that are devoid of underlying factual content and insufficient to state a
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claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009).
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Plaintiffs de facto exclusive dealing theory fares no better. Plaintiffs rely principally on
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an out-of-circuit case, ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012), for the
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notion that courts can look past the terms of the contract to ascertain the relationship between the
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parties and the effect of the agreement in the real world. Opp. at 17. Eaton is inapposite.
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There, the defendant used its market power to force the four direct purchasers in the heavy duty
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truck transmissions market to sign long-term, near-exclusive agreements, by offering substantial
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rebates in exchange for the buyers commitment to purchase 90% of its transmissions from the
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defendant. 696 F.3d at 265. Some of the agreements also called for the exclusion of competitive
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parts manufacturers information from the data books that were distributed to the ultimate
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buyers of heavy duty trucks. Id. In contrast, besides their allegation that Googles apps are
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Again, this stands in stark contrast to plaintiffs oft-cited United States v. Microsoft, which
involved Microsofts efforts to technologically bind[] Internet Explorer to Windows to
prevent[] OEMs from pre-installing other browsers. 253 F.3d 34, 64 (D.C. Cir. 2001).
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popular, FAC 35-36, plaintiffs fail to allege that OEMs were coerced into making Google
the default search engine. Plaintiffs have not alleged that Google has sufficient market power in
any market for apps to force Google Search on the OEMs. Moreover, the MADAs do not set any
minimum market share requirements for OEMs, do not mandate exclusion, and are of short
duration (only two years, compared to the five-year agreements in Eaton). See pp. 4-5, above.
Plaintiffs other authority, Pro Search Plus, LLC v. VFM Leomardo, Inc., No. 122102
JLS, 2013 WL 6229141 (C.D. Cal. Dec. 2, 2013), is similarly distinguishable. In Pro Search,
the court denied a motion to dismiss a de facto exclusive dealing claim based on allegations that
contracts for the management and distribution of digital imagery and other digital content are
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not open to rebidding, that [customers] have been forced into dealing exclusively with VFML,
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that VFML has recently used its market power to coerce at least one [customer] into dealing
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exclusively with VFML, that VFML acquired or settled with its other competitors and that the
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cost of switching suppliers is prohibitive. Id. at *6-7. Here, plaintiffs do not allege similar
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factsthey do not and cannot allege, for example, that search competitors have been prevented
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from bidding for OEMs business, that Google has market power in apps sufficient to coerce
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OEMs into signing a MADA, or that the MADAs mandate that OEMs only deal with Google.3
Ultimately, the MADAs do not force OEMs to preload Google apps (and set Google
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Search as the default search engine) on any devices, much less a minimum percentage of them.
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Thus, they are facially lawful. See C&D II, 868 F. Supp. 2d at 903 (challenged program was
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arguably permissible as a matter of law because C&D does not force retailers to purchase
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anything, much less a certain percentage, of condom products from C&D, and the only
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consequence is that retailers may not receive a rebate based on those decisions).
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Also, the Pro Search court dismissed an earlier exclusive dealing claim premised on alleged 25 year contracts because they were of short duration and are easily terminable. Pro Search
Plus, LLC v. VFM Leonardo, Inc., No. SACV 12-2102, 2013 WL 3936394, at *2 (C.D. Cal. July
30, 2013). The MADAs only have two year terms. See FAC, Exs. A, B.
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B.
Plaintiffs Fail To Allege Substantial Foreclosure Because They Concede The

Existence Of Alternative Means Of Distribution
Even if plaintiffs had sufficiently alleged the MADAs were exclusive, their claim would
nonetheless fail because they also clearly concede the existence of alternative means of
distribution, which means the MADAs do not substantially foreclose competition. E.g., FAC
53 (One possible alternative channel for distribution of a rival search engine is via a dedicated
search website.); 56 (Another alternative means of distribution that a competitor might try is
to convince users to download and use its app.); 57 (Alternatively, a competitormight
attempt to convince Android OS device consumers to re-set their default search engines.).
Plaintiffs ask the Court to disregard those channels, asserting that default search status is the
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most cost-efficient and effective means of reaching search customers. FAC 42; Opp. at 15.
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But under clear Ninth Circuit law, a plaintiff cannot state an exclusive dealing claim if there are
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alternative distribution channels, even if a plaintiff claims they are inadequate substitutes
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because they are not the best, most efficient channels. Omega Envtl., Inc. v. Gilbarco, Inc.,
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127 F.3d 1157, 1163 (9th Cir. 1997).
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[I]n determining whether a market is foreclosed, the relevant inquiry is what products
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are reasonably available to a consumer, not what products the consumer ultimately chooses to
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buy. See Southeast Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 616 (8th Cir. 2011) (emphasis
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added). If competitors can reach the ultimate consumers of the product by employing existing
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or potential alternative channels of distribution, it is unclear whether such restrictions foreclose
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from competition any part of the relevant market. Omega, 127 F.3d at 1163 (emphasis in
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original). None of the facts alleged in the FAC negate the reality that search competitors have
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alternative means to reach consumers. Under the MADAs, search competitors are free to sell
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directly, to develop alternative distributors, or to compete for the services of the existing
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distributors. Antitrust laws require no more. Id.
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Plaintiffs rely principally on Church & Dwight Co., Inc. v. Mayer Labs., Inc. (C&D I),
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No. C-10-4429, 2011 WL 1225912 (N.D. Cal. Apr. 1, 2011), but fundamentally misstate that
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decision. In C&D I, the court noted that the defendant allegedly entered into agreements with
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retailers that accounted for nearly 100% of condom sales nationwide and the complaint had
alleged with great specificity . . . the relative lack of other non-retail means of reaching the
consumer. Id. at *2, 14. The C&D I court denied the motion to dismiss, not because other
distribution channels were inefficient, but because plaintiffs specifically alleged they did not
exist. The courtciting the same cases as in Googles opening briefexplained that exclusive
dealing claims should be dismissed where, as here, there is no allegation that alternative means
of distribution have been significantly curtailed. Id. at *13.4

Contrary to plaintiffs assertions, courts routinely dismiss Section 1 claims on the
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pleadings where competitors have access to alternative distribution channels. See, e.g.,
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MedioStream, Inc. v. Microsoft Corp., 869 F. Supp. 2d 1095, 1108 (N.D. Cal. 2012) (granting
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motion to dismiss in part because of alternative channels, as customers can simply purchase
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MedioStreams media processing software directly); Abbyy USA Software House, Inc. v.
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Nuance Communs., Inc., No. C 08-01035, 2008 U.S. Dist. LEXIS 90308, at *6-7 (N.D. Cal.
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Nov. 6, 2008) (granting motion to dismiss in part because plaintiff has alleged that direct sales
15
and licensing agreements are alternative distribution channels for the same software products);
16
PNY Techs., Inc. v. SanDisk Corp., No. 11cv04689, 2014 WL 2987322, at *8-9 (N.D. Cal.
17
July 2, 2014) (dismissing claim where plaintiff fails to plead the lack of alternative channels of
18
distribution). The Court need not look past plaintiffs own concessions and controlling Ninth
19
Circuit law in ruling on this motion. Search competitors can access both OEMs and consumers,
20
which is both undisputed and dispositive.
21
C.
22
To the extent plaintiffs seek to allege a generic, undefined Section 1 claim, Opp. at 12, it
23
24
25
26
27
28
Plaintiffs Generic Sherman Act 1 Claim Is Based On The Same

Allegations And Fails For The Same Reasons
also fails due to the absence of market foreclosure and the existence of alternative means of
distribution. Notably, plaintiffs plead no additional facts to support this theory. Instead, they
simply remove the exclusive dealing label and replace it with a generic label. No matter the
4
Plaintiffs allegations in C&D I ultimately proved false, and the court granted summary
judgment in C&D II, based on facts similar to those conceded by plaintiffs in their FAC, here.
See C&D II, 868 F. Supp. 2d at 904 (identifying alternative means of distribution).
8
label, alleged vertical restraints5 (i.e., the MADAs) require plaintiffs to plead substantial
foreclosure, which, as demonstrated above, is absent from the FAC. See pp. 6-8, above. This
generic theory therefore adds nothing to the analysis and should be dismissed. E.g., C&D II, 868
F. Supp. 2d at 890 (vertical contract not anticompetitive because it did not foreclose[]
competition from a substantial share of any relevant market); see also R.J. Reynolds Tobacco
Co. v. Phillip Morris, 199 F. Supp. 2d 362, 387 (M.D.N.C. 2002) ([C]ourts generally require
plaintiffs to show substantial foreclosure in vertical restraint cases.) (citing cases).
III.
PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 2 CLAIM BECAUSE THE

MADAS ARE NOT EXCLUSIONARY
Exclusionary conduct is a necessary element of any Section 2 claim. Transamerica
10
11
Computer Co. v. IBM, 698 F.2d 1377, 1382 (9th Cir. 1983). Because plaintiffs allege the same
12
alleged exclusionary conduct in support of their Section 1 and Section 2 claims, the latter must
13
be dismissed for the same reasona failure to allege facts demonstrating foreclosure. See Mot.
14
at 17-18; Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 856 (9th Cir. Cal. 1995) (if conduct alleged in
15
support of [a] Section 1 claim is not deemed anticompetitive, [the] same conduct alleged in
16
support of [a] Section 2 claim must also fail); SanDisk, 2014 WL 2987322, at *11 (Because I
17
again conclude that the TAC does not sufficiently plead actionable exclusive dealing, PNY
18
cannot state a claim for attempted monopolization).

Plaintiffs ignore numerous Ninth Circuit cases and instead rely on out-of-circuit cases to
19
20
argue that, in some situations, otherwise permissible conduct may still form the basis of a
21
Section 2 claim if practiced by an alleged monopolist. Opp. at 19-20 (citing United States v.
22
Dentsply, 399 F.3d 181 (3d Cir. 2005) and LePages, Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003)).6
23
The nature of plaintiffs allegations in Dentsply and LePages, however, differs substantially
24
from plaintiffs allegations here. See Dentsply, 399 F.3d at 196 (Dentsplys grip on its 23
25
authorized dealers effectively choked off the market for artificial teeth, leaving only a small
26
27
28
A vertical restraint is one imposed by agreement between firms at different levels of

distribution. Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 730 (1988).
6
Even if the Third Circuit allows such claims, the Ninth Circuit does not and its law is
controlling here.
9
sliver for competitors.); LePages, 324 F.3d at 154 (noting the evidence of the full panoply of
3Ms exclusionary conduct, including both the exclusive dealing arrangements and the bundled
rebates). As discussed above, plaintiffs do not sufficiently allege any such conduct or effect
here; there can be no claim that Google choked off access to any aspect of the alleged markets.
The only in-circuit case plaintiffs cite is TeleAtlas N.V. v. NAVTEQ Corp., No. C-05-
01673, 2008 WL 4911230 (N.D. Cal. 2008). In TeleAtlas, the district court noted that dismissal
of the section 2 claim is warranted when no allegation of anticompetitive conduct survive[s]
after a dismissal of a Section 1 claim. Id. at *2 (citation omitted). The court allowed the Section
2 claim in that case, however, because, unlike here, the combined allegations suggest a broad
10
course of conduct designed to foreclose the market and prevent entry. Id. (discussing
11
allegations of exclusive licenses, tying and threats of patent litigation). Conversely, where, as
12
here, the conduct does not substantially foreclose the market or exclude a competitor, and is
13
therefore not anticompetitive, it cannot form the basis of a Section 2 claim. See, e.g., Western
14
Parcel Express v. UPS of Am., 190 F.3d 974, 976 (9th Cir. 1999).
15
IV.
16
PLAINTIFFS FAIL TO ALLEGE A CLAYTON ACT 3 CLAIM BECAUSE THE

ACT DOES NOT APPLY TO LICENSES AND BECAUSE THE MADAS DO NOT
FORECLOSE COMPETITION
17
Plaintiffs Clayton Act claim fails because the Clayton Act does not apply to licenses or
18
intangible property. The Clayton Act concerns only goods, wares, merchandise, machinery,
19
supplies, or other commodities, 15 U.S.C 14, and that provision is strictly construed. See
20
TeleAtlas N.V. v. Navteq Corp., 397 F. Supp. 2d 1184, 1192-93 (N.D. Cal. 2005) (a patent
21
license is not a tangible good); Mot. at 18. Plaintiffs argue that their case is not about the
22
MADA (a license), but rather the software that the MADAs cover. But that argument fails for
23
two reasons. First, it mischaracterizes the MADA, which is clearly a software license, and it is
24
this license that plaintiffs allege restrains trade. See FAC, Exs. A & B (MADA 2.1, entitled
25
License Grant). Second, software, such as a Google app, is also deemed intangible for
26
purposes of the Clayton Act. Although the one and only case cited by plaintiffs to support their
27
position, Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336 (9th Cir. 1984), allowed a Clayton
28
Act claim for an alleged refusal to license, the case never addressed the question of whether
10
software licenses are covered by the Clayton Act. [A] prior opinion cannot stand as precedent
for a proposition of law not explored in the opinion, even when the facts stated in the opinion
would support consideration of the proposition. United States v. Harrison, 296 F.3d 994, 1005
(10th Cir. 2002) (citing Texas v. Cobb, 532 U.S. 162, 169 (2001)).7
V.
PLAINTIFFS DERIVATIVE STATE LAW CLAIMS ALSO FAIL

Plaintiffs agree that if their federal law Sherman Act and Clayton Act claims fail, so do
6
7
their state law Cartwright Act claims. See Mot. at 23-24; Opp. at 24 (noting the similar standards
for the federal and state claims). Moreover, even if plaintiffs were able to state a Sherman Act
claim, their Cartwright Act claim would still fail because the act only applies to products, not
10
licenses, and because plaintiffs did not purchase their devices for use within California. See Mot.
11
at 24. Plaintiffs want to simply ignore these deficiencies.
12
Plaintiffs UCL claimwhether based on the unlawful or unfair prongis entirely
13
derivative of their antitrust claims. Because Googles conduct does not violate the antitrust laws,
14
it is not unlawful under the UCL. See Mot. at 25. While conduct can be found to be unfair in
15
certain circumstance even when not specifically proscribed by some other law, here plaintiffs
16
only allege that Googles conduct is unfair because it is anticompetitive. When the:
17
20
same conduct is alleged to be both an antitrust violation and an unfair business

act or practice for the same reasonbecause it unreasonably restrains competition
and harms consumersthe determination that the conduct is not an unreasonable
restraint of trade necessarily implies that the conduct is not unfair toward
consumers. To permit a separate inquiry into essentially the same question under
the unfair competition law would only invite conflict and uncertainty and could
lead to the enjoining of procompetitive conduct.
21
Belton v. Comcast Cable Holdings, LLC, 151 Cal. App. 4th 1224, 1240 (2007); see also Chavez
22
v. Whirlpool Corp., 93 Cal. App. 4th 363, 375 (2001) (same).
23
VI.
18
19
24
PLAINTIFFS LACK ANTITRUST STANDING TO BRING THEIR CLAIMS

A.
25
Plaintiffs Lack Standing To Bring A Damages Claim For Alleged Injuries In

The Handheld Device Market
26
27
28
Regardless, plaintiffs Clayton Act exclusive dealing claim fails for the same reasons stated
above. See Section II above; Mot at 18 n.12; SanDisk, 2014 WL 2987322, at *4-10 (same
standards apply); Jefferson Parish, 466 U.S. at 23 n. 39 (same).
11
Even if Plaintiffs had sufficiently asserted a federal or state claim under Iqbal and
Twombly (which they have not), plaintiffs lack antitrust standing to bring those purported claims
based on injuries suffered in the handheld device market. See Mot. at 19-23. Tellingly, plaintiffs
fail to acknowledge most of the factors a court must consider to determine whether a plaintiff has
antitrust standing. See id. at 19 (listing factors). Although plaintiffs concede they must
adequately plead antitrust injury, Opp. at 21-22, they ignore Googles arguments that their
alleged injury in the device market is too remote and unduly speculative. See Mot. at 21-23.
8
9
Even when discussing antitrust injury, plaintiffs barely mention the requirement that a
plaintiff must suffer[] its injury in the market where competition is being restrained. Am. Ad
10
Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1057 (9th Cir. 1999); Mot. at 20 (citing
11
cases).8 Plaintiffs do not, and cannot, dispute that any injury resulting from supra-competitive
12
device prices occurs in a market different than the one where Google allegedly restrains
13
competition (the alleged search markets). Instead, they try to squeeze into a narrow exception
14
allowing claimants to allege antitrust injury for injuries in one market that are inextricably
15
intertwined with anticompetitive injury sought in a different market. See Opp. at 23 n.26; Am.
16
Ad. Mgmt., 190 F.3d at 1057 n.5 (the Supreme Court has carved a narrow exception to the
17
market participant requirement for parties whose injuries are inextricably intertwined).9 An
18
injury is only inextricably intertwined if causing the injury is a necessary step in effecting the
19
ends of the alleged illegal conspiracy. McCready, 457 U.S. at 476-79, 484 (emphasis added).
20
Plaintiffs do not fall within the exception because their alleged injury in the device market is not
21
necessary or essential to effectuate the alleged conspiracy. See Vinci v. Waste Mgmt., Inc.,
22
80 F.3d 1372, 1376 (9th Cir. 1996); Exhibitors Serv., Inc. v. Am. Multi-Cinema, Inc., 788 F.2d
23
574, 580 (9th Cir. 1986).
24
25
26
27
28
It makes no difference that plaintiffs are participants in the alleged search markets. See Opp. at
23 n.26. The injury must occur in the same market as the anticompetitive conduct.
9
Plaintiffs incorrectly invoke the exception by arguing their injury is suffered in a market
inextricably intertwined with the [alleged] search markets. Opp. at 23 n.26. Whether markets
are inextricably intertwined is irrelevant. Rather, the plaintiffs injury must be inextricably
intertwined with the alleged anticompetitive injury in the restrained market. Blue Shield v.
McCready, 457 U.S. 465, 484 (1982).
12
In McCready, the plaintiff, a group health plan subscriber, had standing because the
conduct at issuedenying reimbursements to subscribers for psychotherapy services provided
by psychologists rather than psychiatristsdirectly injured her. 457 U.S. at 478-80. Although
the conspiracy was directed at psychologists, denying reimbursements were the very means
used to effectuate it. Id. at 479. Here, plaintiffs allege the MADAs foreclose competition in the
alleged search markets. But they do not allege that Google raised handheld device prices to
effectuate this alleged scheme; Google does not set device prices. Nor do plaintiffs allege (or
even explain) why raising device prices is a necessary step to foreclose the alleged search
markets. Plaintiffs only claim that obtaining search users is necessary to the alleged scheme.
10
See Opp. at 23 n.26 (citing FAC 15-16, 40-41, 51, 54). But obtaining users is different from
11
raising device prices.10 Moreover, the MADAs do not directly cause OEMs to raise their device
12
prices. At most, plaintiffs merely allege that the MADAs indirectly result in OEMs charging
13
higher prices because they do not get funds from rival search providers. FAC 9, 71-73.11
14
Simply saying something is necessary or integral to an alleged scheme does not make it so.
15
See Lorenzo v. Qualcomm, 603 F. Supp. 2d 1291, 1300-01 (S.D. Cal. 2009) (denying standing to
16
cell phone buyers because conclusory allegation that injury was inextricably intertwined with
17
alleged conspiracy not enough to allege antitrust injury).
18
19
20
21
22
23
24
25
26
27
28
10
It is also economically implausible that higher device prices would advance a scheme to obtain
more search users. See William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 662 (9th
Cir. 2009) (a court must determine whether an antitrust claim is plausible in light of basic
economic principles). Under plaintiffs theory, devices not subject to a MADA (e.g., a
Windows Phone or Android phone with Bing as the default search engine) would be less
expensive and therefore more attractive to consumers. Indeed, Google obtains no benefit from
higher device prices.
11
Curiously, plaintiffs rely on In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 865 F.
Supp. 2d 1002, 1030 (C.D. Cal. 2011) (see Opp. at 23 n. 26) even though the court did not
directly address antitrust standing in that opinion. Id. at 1029. The case involved insurance
companies failure to properly reimburse claims (id. at 1015) and one group of plaintiffs were
insurance subscribers in the exact same position as the plaintiff in McCready. However, in a
later decision, the court addressed antitrust standing with respect to two other groups of plaintiffs
and found they lacked standing because their injurylike the injury claimed by plaintiffs here
was derivative and thus too remote to afford standing. In re WellPoint, Inc. Out-of Network
UCR Rates Litig., 903 F.Supp.2d 880, 902 (C.D. Cal. 2012); see also Mot. 21-23.
13
1
2
B.
Plaintiffs Lack Standing To Bring An Injunctive Relief Claim For Alleged

Injuries In The Alleged Search Markets
To have antitrust standing for an injunctive relief claim, plaintiffs must allege facts
demonstrating the alleged conduct risks a threatened loss or damage and that they suffered
antitrust injury (i.e., an injury of the type the antitrust laws were designed to prevent). Cargill,
Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 112 (1986). Plaintiffs fail to allege sufficient facts
demonstrating they have standing for their injunctive relief claim based on their alleged injuries
in the search markets, namely: (1) reduction of choice and (2) harm to innovation. Opp. at 21-23.
Instead they rely on conclusory allegations that are belied by other facts alleged in the FAC.
First, plaintiffs do not allege an actual reduction in choice. For example, plaintiffs do not
10
allege the MADAs prevented them from: choosing their preferred search engine among the
11
myriad methods of accessing search, changing their default search engine, downloading an
12
alternative search app, or purchasing a device with an alternative default search engine. None of
13
these have been foreclosed. Plaintiffs instead allege that their ignorance of a default search
14
engine or how to change it, see FAC 8, 15, 16, 41, somehow restricts choice. But plaintiffs
15
also allege that, but for the MADAs, rival search companies would pay for default status. See
16
FAC 9. Plaintiffs do not explain how, in the world they envision, where search competitors
17
pay for default status, plaintiffs would somehow have more choice at the time of purchase, since
18
they would still (allegedly) be ignorant of the default search engine and how to change it.
19
Plaintiffs reliance on Glen Holly Entmt, Inc. v. Tektronix Inc., 352 F.3d 367 (9th Cir.
20
2003) and Axiom Advisors & Consultants, Inc. v. School Innovations & Advocacy, Inc., No.
21
2:05-CV-02395-FCD-PAN, 2006 U.S. Dist. LEXIS 11404 (E.D. Cal. Mar. 20, 2006) is
22
misplaced. In Glen Holly, the plaintiff alleged an actual reduction in choice because the only
23
competing product on the market was discontinued by agreement between the only two
24
competitors in the market. 352 F.3d at 374. Here, competitive search products still exist and
25
nothing in the MADA forecloses their existence. Axiom is a pre-Twombly and Iqbal case where
26
the court accepted conclusory allegations of consumer harm. But we are now post-Twombly and
27
Iqbal and such allegations would likely be held insufficient if the case was decided today. See S.
28
14
Cal. Inst. of Law v. TCS Educ. Sys., No. CV 10-8026, 2011 U.S. Dist. LEXIS 39827, at *25-26 n.
6 (C.D. Cal. Apr. 5, 2011) (questioning the continued viability of Axiom).
Second, plaintiffs fail to allege anything but conclusory allegations regarding an alleged
harm to innovation. Plaintiffs simply speculate that in the future, Google may not have an
incentive to innovate. But merely hypothesizing about what may happen in the but-for world is
insufficient to allege injury and thereby demonstrate antitrust standing because it would require a
court to create in hindsight a technological universe that never came into existence and thus
harm could not possibly be adequately measured. See Kloth v. Microsoft Corp., 444 F.3d 312,
324 (4th Cir. 2006).12 Conversely, in the case cited by plaintiffs, Free Freehand Corp. v. Adobe
10
Systems, the plaintiffs alleged that Adobe reduced innovation when it acquired competing
11
software that it effectivelykilled and that Adobe effectively acknowledged its intent to
12
cripple innovation. 852 F. Supp. 2d 1171, 1176-77 (N.D. Cal. 2012). Importantly, the FTC had
13
forced Adobe to divest the competing software years earlier after a previous acquisition because
14
it determined that the merged firm would, inter alia, be able to reduce innovation by delaying or
15
reducing product development. Id. at 1175. Those allegations are a far cry from the speculative
16
and conclusory allegations plaintiffs offer regarding an alleged reduction in innovation.
17
VII.
CONCLUSION
18
Plaintiffs opposition underscores the fatal defects in their FAC. Plaintiffs fail to allege
19
well-pled facts to support their conclusory assertion of exclusive dealing, and thus their federal
20
and state antitrust claimsall based on that alleged conductshould be dismissed. Moreover,
21
the Clayton Act does not apply to licenses, requiring dismissal of that claim. Finally, the FAC
22
does not allege facts establishing antitrust standing, which is an independent ground for dismissal
23
of each federal and state antitrust claim. Google requests an order granting its motion and
24
dismissing the FAC and each claim with prejudice.
25
26
27
28
12
Such speculation is unwarranted where, as here, there continues to be considerable innovation

in search, including: voice search (e.g., Apples Siri, Microsofts Cortana); graph search
(Facebook); visual search (Amazons Firefly); and vertical search (e.g., Yelp, Kayak).
15
1
2
3
DATED: November 7, 2014
By: /s/ Brian C. Rocca

Brian C. Rocca
brian.rocca@bingham.com
WILLIAMS & CONNOLLY LLP

John E. Schmidtlein
jschmidtlein@wc.com
Attorneys for Google Inc.
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16

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Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page1 of 21

BINGHAM MCCUTCHEN LLP

WILLIAMS & CONNOLLY LLP

BINGHAM MCCUTCHEN LLP

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

GARY FEITELSON, a Kentucky resident, and

DEFENDANT GOOGLE INC.S

No. 5:14-cv-02007 BLF

GOOGLE INC., a Delaware corporation,

November 19, 2014

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page2 of 21

PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 1 CLAIM BECAUSE

Plaintiffs Do Not Allege Actual Or De Facto Exclusivity .................................... 4

Plaintiffs Fail To Allege Substantial Foreclosure Because They Concede

Plaintiffs Generic Sherman Act 1 Claim Is Based On The Same

PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 2 CLAIM BECAUSE

PLAINTIFFS FAIL TO ALLEGE A CLAYTON ACT 3 CLAIM BECAUSE

PLAINTIFFS DERIVATIVE STATE LAW CLAIMS ALSO FAIL ............................ 11

PLAINTIFFS LACK ANTITRUST STANDING TO BRING THEIR CLAIMS .......... 12

Plaintiffs Lack Standing To Bring A Damages Claim For Alleged Injuries

Plaintiffs Lack Standing To Bring An Injunctive Relief Claim For Alleged

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page3 of 21

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page4 of 21

Jefferson Parish Hosp. Dist. No. 2 v. Hyde,

CASE NO. 5:14-CV-02007 BLF

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page5 of 21

Transamerica Computer Co. v. IBM,

Chavez v. Whirlpool Corp.,

CASE NO. 5:14-CV-02007 BLF

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page6 of 21

(MADAs) they attach to the FAC and basic antitrust principles.

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page7 of 21

(www.bing.com),1 preloading their search apps on devices, encouraging consumers to take

plaintiffs claims require dismissal, for the following reasons:

no substantial foreclosure, as a matter of law.

conduct as their Section 1 claimsconduct that is not anticompetitive or exclusionary because it

does not substantially foreclose competition.

regardless, plaintiffs have not adequately alleged an exclusive dealing claim.

meet the same fate as their federal counterparts.

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page8 of 21

therefore an independent ground for dismissal of each claim in the FAC.

PLAINTIFFS FAIL TO ALLEGE A SHERMAN ACT 1 CLAIM BECAUSE THE

deal.). Plaintiffs cannot clear this hurdle.

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page9 of 21

Plaintiffs Do Not Allege Actual Or De Facto Exclusivity

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page10 of 21

1.4, 1.5, 2.6.2

Even plaintiffs artificial construct of default exclusivity collapses since Android

claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009).

truck transmissions market to sign long-term, near-exclusive agreements, by offering substantial

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page11 of 21

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page12 of 21

Plaintiffs Fail To Allege Substantial Foreclosure Because They Concede The

to convince users to download and use its app.); 57 (Alternatively, a competitormight

127 F.3d 1157, 1163 (9th Cir. 1997).

or potential alternative channels of distribution, it is unclear whether such restrictions foreclose

distributors. Antitrust laws require no more. Id.

Case5:14-cv-02007-BLF Document41 Filed11/07/14 Page13 of 21

of distribution have been significantly curtailed. Id. at *13.4

which is both undisputed and dispositive.

Plaintiffs Generic Sherman Act 1 Claim Is Based On The Same