Case 3:20-cv-05761-JD Document 31 Filed 09/14/20 Page 1 of 2

Paul J. Riehle (SBN 115199)

1 paul.riehle@faegredrinker.com
FAEGRE DRINKER BIDDLE & REATH LLP
2 Four Embarcadero Center
San Francisco, California 94111
3 Telephone: (415) 591-7500
Facsimile: (415) 591-7510
4
Christine A. Varney (pro hac vice)
5 cvarney@cravath.com
Katherine B. Forrest (pro hac vice)
6 kforrest@cravath.com
Gary A. Bornstein (pro hac vice)
7 gbornstein@cravath.com
Yonatan Even (pro hac vice)
8 yeven@cravath.com
Lauren A. Moskowitz (pro hac vice)
9 lmoskowitz@cravath.com
M. Brent Byars (pro hac vice)
10 mbyars@cravath.com
CRAVATH, SWAINE & MOORE LLP
11 825 Eighth Avenue
New York, New York 10019
12 Telephone: (212) 474-1000
Facsimile: (212) 474-3700
13
Attorneys for Epic Games, Inc.
14

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA
17 SAN FRANCISCO DIVISION

18 MARY CARR, individually and on behalf of

all others similarly situated; Case No. 3:20-cv-05761-JD
19

20 Plaintiffs,
EPIC GAMES, INC.’S NOTICE OF
21 v. FILING OPPOSITION TO
ADMINISTRATIVE MOTION TO
22 GOOGLE LLC; GOOGLE IRELAND CONSIDER WHETHER CASES SHOULD
LIMITED; GOOGLE COMMERCE BE RELATED
23 LIMITED; GOOGLE ASIA PACIFIC PTE.
LIMITED; and GOOGLE PACIFIC
24
PAYMENT CORP.
25
Defendants.
26

27
EPIC GAMES, INC.’S NOTICE OF CASE NO. 3:20-CV-05761-JD
28 FILING OPPOSITION TO
ADMINISTRATIVE MOTION
 Case 3:20-cv-05761-JD Document 31 Filed 09/14/20 Page 2 of 2

1 TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD:

2 PLEASE TAKE NOTICE that on September 14, 2020, Epic Games, Inc. filed a

3 response opposing Defendant Google LLC’s Administrative Motion to Consider Whether Cases

4 Should Be Related (“Response”) in Feitelson et al. v. Google, Inc., No. 5:14-cv-02007-BLF at

5 ECF No. 59. A true and correct copy of the Response is attached hereto as Exhibit A.

6 Dated: September 14, 2020 Respectfully submitted,

7 By: /s/ Paul J. Riehle
8
9 FAEGRE DRINKER BIDDLE & REATH
LLP
10 Paul J. Riehle
paul.riehle@faegredrinker.com
11

12 Four Embarcadero Center

San Francisco, California 94111
13 Telephone: (415) 591-7500
Facsimile: (415) 591-7510
14
CRAVATH, SWAINE & MOORE LLP
15 Christine A. Varney (pro hac vice)
16 cvarney@cravath.com
Katherine B. Forrest (pro hac vice)
17 kforrest@cravath.com
Gary A. Bornstein (pro hac vice)
18 gbornstein@cravath.com
Yonatan Even (pro hac vice)
19 yeven@cravath.com
20 Lauren A. Moskowitz (pro hac vice)
lmoskowitz@cravath.com
21 M. Brent Byars (pro hac vice)
mbyars@cravath.com
22
825 Eighth Avenue
23 New York, New York 10019
Telephone: (212) 474-1000
24
Facsimile: (212) 474-3700
25
Attorneys for
26 EPIC GAMES, INC.
27

28
EPIC GAMES, INC.’S NOTICE OF 1 CASE NO. 3:20-CV-05761-JD
FILING OPPOSITION TO
ADMINISTRATIVE MOTION
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EXHIBIT A
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Paul J. Riehle (SBN 115199)

1 paul.riehle@faegredrinker.com
FAEGRE DRINKER BIDDLE & REATH LLP
2 Four Embarcadero Center
San Francisco, California 94111
3 Telephone: (415) 591-7500
Facsimile: (415) 591-7510
4
Christine A. Varney (pro hac vice)
5 cvarney@cravath.com
Katherine B. Forrest (pro hac vice)
6 kforrest@cravath.com
Gary A. Bornstein (pro hac vice)
7 gbornstein@cravath.com
Yonatan Even (pro hac vice)
8 yeven@cravath.com
Lauren A. Moskowitz (pro hac vice)
9 lmoskowitz@cravath.com
M. Brent Byars (pro hac vice)
10 mbyars@cravath.com
CRAVATH, SWAINE & MOORE LLP
11 825 Eighth Avenue
New York, New York 10019
12 Telephone: (212) 474-1000
Facsimile: (212) 474-3700
13
Attorneys for Epic Games, Inc.
14

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA

17 SAN JOSE DIVISION

18

19 GARY FEITELSON, a Kentucky resident,

and DANIEL MCKEE, an Iowa resident, on Case No. 5:14-cv-02007-BLF
20
behalf of themselves and all others similarly
21 situated,
EPIC GAMES, INC.’S OPPOSITION TO
22 Plaintiffs, ADMINISTRATIVE MOTION TO
CONSIDER WHETHER CASES SHOULD
23 BE RELATED
v.
24 GOOGLE INC., a Delaware corporation,
25
Defendant.
26

27
28

EPIC’S OPPOSITION TO MOTION TO RELATE CASE NO. 5:14-CV-02007-BLF

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1 Pursuant to Civil Local Rule 3-12(e), Epic Games, Inc. (“Epic”) submits this Opposition

2 to Google LLC’s Administrative Motion To Consider Whether Cases Should Be Related

3 (“Motion”) (Dkt. 56). In the Motion, Google LLC (“Google”) argues that three recently filed

4 cases pending before Judge Donato, Epic Games, Inc. v. Google LLC et al., Case No. 3:20-cv-

5 05671-JD (“Epic-Google”) (filed August 13, 2020), Carr v. Google LLC et al., Case No. 20-cv-

6 05761-JD (“Carr”) (filed August 15, 2020), and Pure Sweat Basketball, Inc. v. Google LLC et

7 al., Case No. 20-cv-05792-JD (“PSB”) (filed August 17, 2020), should be related to Feitelson v.

8 Google, Inc., Case No. 5:14-cv-02007-BLF (“Feitelson”), a case that this Court dismissed at the

9 pleading stage over five years ago, back in 2015 (Dkt. No. 52).

10 When Google filed the Motion, Epic-Google, Carr, and PSB (together the “Android App

11 Cases”) were assigned to Judge Donato (Epic-Google), Judge Chen (PSB) and this Court (Carr);

12 all three cases now have been related to Epic-Google before Judge Donato. (See Related Case

13 Order, Epic-Google, Case No. 3:20-cv-05671-JD, Dkt. 42 (N.D. Cal. Sept. 9, 2020); Related

14 Case Order, Epic-Google, Case No. 3:20-cv-05671-JD, Dkt. 46 (N.D. Cal. Sept. 10, 2020).)

15 Epic respectfully submits that the Android App Cases do not meet the Civil Local Rule 3-12

16 criteria to be related to Feitelson. The Android App Cases involve different conduct resulting in

17 different anti-competitive harm in different antitrust markets than did Feitelson. Moreover,

18 relating the Android App Cases to Feitelson would not save any judicial (or other) resources,

19 would not prevent duplication of any efforts, and would not mitigate any risk of conflicting

20 results. There is no such risk—Feitelson was dismissed more than five years ago on a Rule 12

21 motion just ten months after the action was filed, primarily on standing grounds unique to the

22 plaintiffs and allegations that are inapplicable to the Android App Cases.

23 ARGUMENT

24 “An action is related to another when: (1) The actions concern substantially the same

25 parties, property, transaction or event; and (2) It appears likely that there will be an unduly

26 burdensome duplication of labor and expense or conflicting results if the cases are conducted

27 before different Judges.” Civil L.R. 3-12(a). Neither prong is satisfied here.

28
1
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1 I. Feitelson and the Android App Cases Do Not Concern Substantially the Same

2 Parties, Property, Transaction or Event.

3 Feitelson was and the Android App Cases are antitrust actions against Google. The

4 similarities end there; plaintiffs in the two sets of cases allege markedly different harms within

5 completely distinct antitrust markets.

6 In the Android App Cases, plaintiffs define relevant product markets for Android app

7 distribution and Android in-app payment processing. (See Mot., Rocca Decl., Ex. A, Epic-

8 Google Compl. ¶¶ 62-66, 114-20; Mot., Rocca Decl., Ex. B, Carr Compl. ¶¶ 40-43, 89-91; Mot.,

9 Rocca Decl., Ex. C, PSB Compl. ¶¶ 124-27, 131-34.) By contrast, the Feitelson First Amended

10 Complaint (“FAC”) focused on the market for “general Internet search conducted on desktop

11 computers, laptops, and handheld devices via the Google search engine or one of its general

12 search engine rivals, such as Bing” and “general Internet search conducted on smartphones and

13 tablets”. (Feitelson FAC ¶ 75, Dkt. No. 31.) This difference is fundamental, as the contents and

14 bounds of a product market go to the core of an antitrust case. The only immediate relationship

15 between these markets is that Google happens to monopolize all of them.

16 Just as fundamentally, the Android App Cases posit completely different theories of anti-

17 competitive harm than did Feitelson. In the Android App Cases, plaintiffs argue that Google’s

18 anti-competitive conduct enables it to foreclose competition among app distributors and payment

19 processors and to impose a supra-competitive tax on paid apps and in-app purchases. (See Mot.,

20 Rocca Decl., Ex. A, Epic-Google Compl. ¶¶ 106-11, 131-34; Mot., Rocca Decl., Ex. B, Carr

21 Compl. ¶¶ 80-85, 101-04; Mot., Rocca Decl., Ex. C, PSB Compl. ¶¶ 95, 103-10.) The core harm

22 that was alleged in Feitelson, by contrast, had nothing to do with apps; rather, it was that

23 plaintiffs overpaid for Android phones because Google’s misconduct secured its status as the

24 default search engine, depriving OEMs of revenue from selling the default search engine slot on

25 their devices to Google competitors. (Feitelson FAC ¶ 140, Dkt. No. 31.)

26 Google asks the Court to overlook these differences on the ground that both Feitelson and

27 the Android App Cases “allege claims against Google based on overlapping transactions—

28 Google’s contracts with OEMs”, and purportedly have “overlapping theor[ies] of anticompetitive
2
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1 harm: Google’s use of MADAs to purportedly foreclose competition in the markets alleged in

2 each complaint.” (Mot. 3.) But virtually every antitrust case alleges foreclosure of competition

3 in a relevant market, and in drawing this high-level parallel, Google glosses over the

4 fundamental divergence outlined above. The Feitelson plaintiffs alleged that agreements with

5 OEMs, in and of themselves, maintained Google’s monopoly in Internet search, allegedly

6 leading to higher prices of Android phones. (Feitelson FAC ¶¶ 35-42, 82, Dkt. No. 31.) By

7 contrast, the Android App Cases allege that Google’s agreements with OEMs, together with

8 technical restrictions within the Android OS and contractual restrictions imposed in Google’s

9 agreements with app developers—none of which was at issue in Feitelson—foreclose

10 competition in distribution of Android-compatible apps, resulting in (among other things) higher

11 prices of apps and in-app purchases. (See Mot., Rocca Decl., Ex. A, Epic-Google Compl. ¶¶ 80-

12 111, 125-34; Mot., Rocca Decl., Ex. B, Carr Compl. ¶¶ 58-85, 95-104; Mot., Rocca Decl., Ex.

13 C, PSB Compl. ¶¶ 51, 65-69, 77-86, 103-10.) Cf. Adobe Sys. Inc. v. A & S Elecs., Inc., 2016 WL

14 9105173, at *3 (N.D. Cal. Oct. 13, 2016) (“[party] has failed to persuade the Court that . . .

15 relating . . . the cases at issue is warranted” in part because there are “different software products

16 . . . at issue in each case”). Thus, the two sets of cases arise from different facts concerning

17 different products, foreclosing a different set of competitors and resulting in different anti-

18 competitive effects in different antitrust markets.

19 II. There Will Be No Burdensome Duplication of Labor and Expense or Conflicting

20 Results if the Android App Cases Are Heard by a Different Judge Than Feitelson.

21 The Android App Cases should not be related to Feitelson because relation offers no

22 judicial or other efficiency and the Android App Cases pose no risk of duplicating any effort or

23 producing conflicting results with Feitelson. 1

24

25
1
In a footnote, Google half-heartedly suggests that “Epic . . . agreed to litigate disputes with
26
Google ‘exclusively’ . . . in the San Jose Division for federal court cases”. (Mot. 2 n.3.) This is
27
wrong. Section 16.8 of the Google Play Developer Distribution Agreement provides that “You
28
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1 Feitelson was filed more than six years ago. (See Dkt. No. 1.) The Court did not rule on

2 any discovery disputes or, save dismissing the action, issue any rulings on the case’s merits.

3 More than five years ago, Feitelson was dismissed, primarily on standing grounds unique to the

4 allegations in that case. Feitelson. v. Google, Inc., 80 F. Supp. 3d 1019 (N.D. Cal. 2015). The

5 only activity in Feitelson since April 2015 is Google’s present Motion and responses thereto.

6 (See Dkt. Nos. 55-58) Google nonetheless argues that “[b]ecause this Court . . . also decided

7 [Feitelson], there may be efficiencies in relating all four actions before this Court”. (Mot. 5.)

8 But Google does not specify any such “efficiencies”. And because Feitelson is not an active

9 matter, no efficiencies are possible. See Carlyle Fortran Tr. v. NVIDIA Corp., 2008 WL

10 4717467, at *1 (N.D. Cal. Oct. 24, 2008) (“Given the current inactive or on-appeal status of the

11 allegedly related cases . . . the Court is not concerned by the possibilities of duplicative labor or

12 of conflicting results.”); Storrer v. Paul Revere Life Ins., 2008 WL 667402, at *1 (N.D. Cal.

13 Mar. 6, 2008) (declining to relate cases where, “[i]rrespective of the amount of factual or legal

14 overlap between the two cases—which is disputed by the parties . . . the [earlier-filed] case has

15 been entirely resolved.”). Clearly, because Feitelson was dismissed at the pleading stage,

16 relating the Android App Cases to that case would not produce efficiencies with respect to

17 discovery. Likewise, there is no risk that the Android App Cases will produce a conflicting

18
19 and Google further agree to submit to the exclusive jurisdiction of the federal or state courts
20 located within the county of Santa Clara, California” (available at https://play.google.com
21 /about/developer-distribution-agreement.html). The United States District Court for the
22 Northern District of California, in its entirety, is the federal “court” for Santa Clara, California,
23 and thus has jurisdiction over this dispute; and Google’s contract of adhesion is silent as to any
24 particular division thereof. “[T]here is no federal court that sits only in Santa Clara County. The
25 Northern District of California has three divisions, but parties in [certain] actions have no right to
26 venue in a particular division.” PQ Labs, Inc v. Yang Qi, 2012 WL 2061527, at *12 (N.D. Cal.
27 June 7, 2012) (citing Civil L.R. 3-2). Indeed, the Northern District of California has determined
28 that antitrust cases “will be assigned on a district-wide basis”. Civil L.R. 3-2(c).
4
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1 decision. The Court’s dismissal in Feitelson—the only decision in the case—focused on

2 plaintiffs’ lack of standing and the tenuous connection between the market alleged in that case

3 (Internet search) and the antitrust injury alleged by plaintiffs there (increase in the price of

4 Android phones). Feitelson, 80 F. Supp. 3d at 1026-30, 1031-32. The Android App Cases

5 allege completely different harms in entirely different markets. In any event, to the extent the

6 single ruling in Feitelson may be relevant, “such ruling[ is] now a matter of settled public record

7 and the effect of such ruling[] on this matter can be fully vetted without relating the cases”. Paul

8 Revere, 2008 WL 667402, at *1.

9 CONCLUSION

10 For the foregoing reasons, the Android App Cases do not meet either of the Civil Local

11 Rule 3-12 criteria to be related to Feitelson. Accordingly, the Court should not relate Epic-

12 Google, Carr, or PSB to Feitelson.

13

14

15

16

17

18
19

20

21

22

23

24

25

26

27

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Dated: September 14, 2020 Respectfully submitted,

1
By: Paul J. Riehle
2

3 FAEGRE DRINKER BIDDLE & REATH

LLP
4
Paul J. Riehle
5 paul.riehle@faegredrinker.com

6 Four Embarcadero Center

San Francisco, California 94111
7 Telephone: (415) 591-7500
8 Facsimile: (415) 591-7510

9 CRAVATH, SWAINE & MOORE LLP

Christine A. Varney (pro hac vice)
10 cvarney@cravath.com
Katherine B. Forrest (pro hac vice)
11 kforrest@cravath.com
12 Gary A. Bornstein (pro hac vice)
gbornstein@cravath.com
13 Yonatan Even (pro hac vice)
yeven@cravath.com
14 Lauren A. Moskowitz (pro hac vice)
lmoskowitz@cravath.com
15 M. Brent Byars (pro hac vice)
mbyars@cravath.com
16

17 825 Eighth Avenue

New York, New York 10019
18 Telephone: (212) 474-1000
Facsimile: (212) 474-3700
19
Attorneys for EPIC GAMES, INC.
20

21

22

23

24

25

26

27

28
6
EPIC’S OPPOSITION TO MOTION TO RELATE CASE NO. 5:14-CV-02007-BLF