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Atlanta ad firm asks 11th Circuit to revive antitrust case against Google

The lawsuit claiming Google, YouTube and parent company Alphabet have monopolized the internet search and online ad markets was dismissed last year by a Georgia federal judge for being a “shotgun pleading.”

ATLANTA (CN) — A panel of the 11th Circuit will decide whether an Atlanta-based online advertising company that claims its $100 million business was destroyed by Google can take the tech giant on in a federal antitrust lawsuit.

An attorney for Inform Inc. asked the three-judge panel Thursday to overturn a Georgia federal judge’s decision tossing out antitrust claims against Google, YouTube and parent company Alphabet as an impermissible “shotgun pleading.” The term refers to lawsuits which fail to meet the minimum requirements for outlining claims against the opposing party.

U.S. District Judge J.P. Boulee dismissed the advertising company’s amended complaint last year, ruling for the second time that the lawsuit contained “numerous conclusory, vague and immaterial facts not obviously connected to any particular cause of action.”

Inform claims that Google uses its dominance in overlapping markets to “wipe out competition and drive its online ad sales.”

The advertising company alleged that because a firm’s ad services must be compatible with Google’s ad products and Google’s Chrome browser, the tech juggernaut is able to influence industry standards in its favor by setting “arbitrary and anti-competitive rules” for enabling video content and video ads.

Included in the complaint are allegations that Google improperly influences the government and lengthy descriptions of the growth of Google’s search engine, which Boulee ruled are not connected to Inform’s claims of anticompetitive conduct.

The problem, an attorney for Inform told the 11th Circuit panel Thursday, lies in providing enough – but not too much -- information to support complex claims related to Google’s alleged monopoly in the internet search, ad server, web browser and online advertising markets.

Inform's attorney Frank Lowrey IV of Bondurant Mixson & Elmore said the “sins” detailed in Boulee’s ruling are relevant to the lawsuit. Pages of the complaint devoted to describing the history of Google’s search engine show how the company acquired “monopoly power,” the attorney explained.

If the 89-page complaint contains too much information, it is “not because we’re bad pleaders but because Google did a variety of things to exclude rivals from the market,” Lowrey said.

“The complaint is only going to be so simple when you’re alleging monopolization of multiple markets by one of the largest companies in the world,” he told the panel.

But an attorney for Google said Inform “made a strategic decision” to allege a “whole buffet of different conduct and a slew of different allegations.”

“The district court had difficulty and we had a great deal of difficulty figuring out which conduct goes with which claim,” attorney John E. Schmidtlein of Williams & Connolly told the panel. “[Inform] claims that the Google defendants have unlawfully maintained monopolies in seven different markets. I’ve never seen a plaintiff allege in a single count monopolization of seven different markets.”

At least one judge on the panel expressed doubt about the dismissal.

“I have real difficulty seeing how this is a shotgun pleading,” said U.S. Circuit Judge Adalberto Jordan, a Barack Obama appointee. “It can’t be that a complaint that’s substantively deficient is a shotgun pleading… I have issues with that aspect of the district court’s ruling.”

Lowrey urged the panel to revive Inform’s claims in rebuttal, explaining that the ad agency can only strip back its complaint so far.

“We can make this only so simple before running into a Twombly problem,” Lowrey said, referring to the U.S. Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, which set requirements for plaintiffs to include enough facts in their complaint to plausibly support their claims.

But Schmidtlein argued that allowing the complaint to move forward would put an unfair burden on the district court.

“The district court shouldn’t be left with a massive complaint,” Schmidtlein said. “[It] shouldn’t be forced to figure out restraint of trade as to seven different markets… and 60-some paragraphs about supposed [anti-trust] conduct.”

Jordan was joined on the panel by fellow Obama appointee U.S. Circuit Judge Robin Rosenbaum and Senior U.S. District Judge John Steele, a Bill Clinton appointee sitting by designation from the Middle District of Florida.

The judges did not indicate when they would issue a decision in the case.

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