Google fails to transfer antitrust suit to SDNY

Where Google argued an antitrust suit brought by the United States and eight state plaintiffs should be transferred to the Southern District of New York, or SDNY, where over two dozen antitrust actions relating to Google’s presence in the online advertising technology industry have been transferred and consolidated by the Judicial Panel on Multidistrict Litigation for pretrial proceedings, its motion was denied.

Background

Google LLC has moved to transfer this antitrust action brought by the United States of America and eight state plaintiffs, including the Commonwealth of Virginia and the State of New York, to the SDNY, where over two dozen antitrust actions relating to Google’s presence in the online advertising technology industry have been transferred and consolidated by the Judicial Panel on Multidistrict Litigation for pretrial proceedings.

Standard

Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” The district court makes two inquiries under § 1404.

First, the court determines whether the claims might have been brought in the transferee forum. If the claims could be brought in the transferee district, the court considers four factors in deciding whether to exercise its discretion to grant a transfer: “(1) the weight accorded to plaintiff’s choice of venue; (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice.”

The parties agree that venue in the SDNY would be proper under the federal antitrust venue provision.

Analysis

The legislative history of the Multidistrict Litigation Act shows that Congress exempted federal antitrust enforcement actions from MDL treatment to avoid the delays that might be caused by consolidation with private suits. The recent expansion of the exclusion to antitrust actions brought by states further supports the conclusion that Congress’s intent was to prioritize efficient and expeditious adjudication of government antitrust enforcement actions and minimize delay.

Granting Google’s motion to transfer this action for coordination with the pending MDL actions, even as a standalone civil action without consolidation in the MDL, would effectively circumvent the exclusion in § 1407(g) and would subvert Congress’s intent to eliminate unnecessary delay caused by coordination with private antitrust litigation.

Remaining factors

Plaintiffs argue that their choice of this court is entitled to substantial deference because (1) it is the home forum for the Commonwealth of Virginia, (2) its proximity to Washington, D.C. makes it a convenient location for the United States and (3) the State of New York has made a “purposeful decision” to litigate in this district because of the complexities and risk of delay from coordinating with the MDL in the SDNY.

The court recognizes that the meaningfulness of connections of this action to this district is somewhat weakened given that the vast majority of the factual allegations in the complaint are not alleged to have occurred in Virginia, Google’s ad tech businesses are not based in Virginia and seven of the other state plaintiffs have no connection to Virginia. Nevertheless, in light of the greater deference afforded to the federal government’s forum choice in antitrust actions and the connection to this district due to the United States’ damages claim, this factor ultimately weighs against transfer.

Because party and witness convenience points in both directions and the “impermissible result to be avoided is simply to shift the balance of inconvenience from the plaintiff to the defendant,” the court finds this factor neutral. Google stresses next that transfer of this civil action to the SDNY is necessary to avoid the risk of inconsistent judgments and to facilitate judicial economy; however, that risk can be mitigated, and Congress’s intent and the strong public policy interest in expeditious resolution of government antitrust enforcement actions outweighs such concerns.

Google is also correct that there will be some duplication of effort and use of judicial resources between the SDNY and this court; however, this concern is outweighed by Congress’s clear intent to prioritize speedy and efficient resolution of government antitrust suits over facilitating judicial economy as reflected by its enactment of § 1407(g) and reiterated by the recent expansion of that exception to state governments.

Finally, there is no doubt that docket congestion and the likelihood of swift resolution of this action in this district militate against transfer to the SDNY. Moreover, as explained above, because of the connections between this action and this district, venue in this court does not present concerns about forum shopping.

Defendant’s motion to transfer denied.

United States of America v. Google LLC, Case No. 1:23-cv-108, March 14, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-127. 19 pp.