Amicus Brief: Mary Carr v. Google LLC

August 7, 2023 Amicus Brief


American Economic Liberties Project (“AELP”) is an independent nonprofit research and advocacy organization dedicated to understanding and addressing the problem of concentrated economic power in the United States. AELP organizes and employs a diverse set of leading policy experts in a wide range of areas impacted by concentrated power that include the healthcare industry, private equity, airlines, and the digital marketplace. It advocates for policies that address today’s crisis of concentration through legislative efforts and public policy debates. AELP submits this amicus brief because our antitrust laws cannot protect competition if a monopolist can insulate itself from liability by arguing that its market power has become so vast that the individualized damages flowing from its unlawful conduct preclude class certification.

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), no party’s counsel authored this brief in whole or part. In addition, no party or party’s counsel, and no person other than the amicus curiae, its supporters, or its counsel, contributed money that was intended to fund preparing or submitting the brief. Counsel for all parties consented to the filing of this brief.


Google is a monopolist. Its tentacles have spread through our lives to control every aspect of how we access digital information and products. It controls search engines, digital advertising, and for this Court’s purposes, the distribution of Android mobile device applications (or “apps”) to tens of millions of consumers and those consumers’ ancillary in-app purchases. Google acquired and maintained its monopoly power in the Android App Distribution Market and In-App Aftermarket (the “Relevant Markets”) through a wide range of anticompetitive acts and illegal restraints on competition. And it has used its monopoly power to impose supra-competitive commissions on developers in the Relevant Markets, which are in turn passed on to consumers in the form of supra-competitive prices for apps and in-app purchases.

The district court held a lengthy hearing, heard extensive expert testimony, and reviewed a massive record of documents and argument from both sides about Google’s anticompetitive behavior. After a rigorous analysis, it properly determined that (1) the damages model built by Plaintiffs’ expert, Dr. Hal Singer, is reliable, relevant, and capable of proving antitrust injury and damages for the putative class; and (2) that any individualized damages issues that might exist do not predominate over the enormous common issue of Google’s liability under the Sherman Act and California’s Cartwright Act and Unfair Competition Law. It then certified a Rule 23(b)(3) class of consumers who paid for Android apps through the Google Play Store or for in-app digital content through Google Play Billing, from August 2016 to the present (the “Consumer Class”). (1-ER-20, 29.)

Google asks this Court to overturn the class certification order. But in doing so, Google is attempting to wield the very monopoly power that gives rise to Plaintiffs’ claims as a shield against liability. Google claims that the problem it created cannot be resolved through a class action because the injuries resulting from its anticompetitive conduct, which Google concedes for class certification was uniform in planning and implementation,[1] are too “complex and individualized” to be certified. (Def. Br. 59.) According to Google, because its uniform conduct impacted such a wide swath of apps and consumers, determining antitrust injury and calculating the individualized damages that resulted will predominate over the glaring common issue of whether Google willfully acquired and maintained monopoly power in the Relevant Markets.[2] Accepting this argument and allowing Google to weaponize its size to effectively avoid liability would subvert the most fundamental goals of the Sherman Act and Rule 23 and should be rejected.

The Sherman Act, 15 U.S.C. § 1, et seq., and Rule 23 of the Federal Rules of Civil Procedure are both aimed squarely at combatting the type of outsized corporate power that Google has amassed, to level the playing field and deter unlawful conduct that individuals like those in the Consumer Class are normally powerless to stop. If Google has its way, it avoids accountability to the Consumer Class solely because intermediary app developers passed on varying amounts of the supra-competitive commissions that Google collected. But Google “is not entitled to complain that [damages] cannot be measured with the exactness and precision that would be possible if the case, which [it] alone is responsible for making, were otherwise.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931). Nor does the size of the damages calculations give cause for complaint. The drafters of our antitrust laws allowed for treble damages, and Rule 23 allows consumers to aggregate their claims precisely because concentrated economic power is so dangerous and difficult to contest. Any claim that large damages pose a danger to our judicial system is fiction.

The order certifying the Consumer Class is a proper exercise of the district court’s discretion and recognizes the importance of preserving issues such as credibility and correctness of witness testimony for the trier of fact. Adopting Google’s position would wrest those issues from the jury, violating the Consumer Class’s constitutional rights guaranteed by the Seventh Amendment. For these reasons, explained more fully below, the district court’s ruling should be affirmed.

[1] Google “does not disagree that common evidence is available to prove Google’s alleged antitrust violations in the relevant markets.” (1-ER-17) (emphasis added). Google also does not challenge the district court’s typicality on appeal. Nor could it. “The overarching scheme [to monopolize and restrain trade in the relevant markets] is the linchpin of plaintiffs’… complaint, regardless of the [app] purchased, the market involved or the price ultimately paid. Furthermore, the various [apps] purchased and the different amount of damage sustained by individual plaintiffs do not negate a finding of typicality, provided the cause of those injuries arises from a common wrong.” In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 593–94 (N.D. Cal. 2010), amended in part, No. M 07-1827 SI, 2011 WL 3268649 (N.D. Cal. July 28, 2011).

[2] “To establish liability under § 2, a plaintiff must show: (a) the possession of monopoly power in the relevant market; (b) the willful acquisition or maintenance of that power; and (c) causal antitrust injury.” FTC v. Qualcomm Inc., 969 F.3d 974, 990 (9th Cir. 2020) (cleaned up).