Google Must Defend Inform Advertising Antitrust Case After All

Eleventh Circuit disagrees that the complaint was an inadequate “shotgun pleading” against Google, YouTube and Alphabet.

Handing Google LLC a reversal of fortune, the Eleventh Circuit Court of Appeals overturned a district judge’s dismissal of a case brought against it, YouTube LLC, and Alphabet Inc. (Google) by Inform Inc., a digital media advertising company whose business was allegedly decimated by Google’s anticompetitive conduct.

At its peak Inform managed ad space for 5,000 publishers. A company’s advertising services must be compatible with Google’s ad products and Chrome. Inform says Google can influence industry standards in its own favor, and it accomplishes that by setting arbitrary and anticompetitive rules for viewing and listening to digital content and ads. Those rules ultimately favor Google, YouTube, and Google’s other products and services, according to the suit.

Inform explains that in 2015, Google and YouTube made a change in the software that enabled videos to play, giving Google control over the presentation of digital media. Two years later, in 2017, Google disabled the widely used Flash Player which immediately halted the capability of many online advertisers to surface videos to their audiences. Companies had to either convert their content to open-source HTML5 or migrate to the Google network.

Exacerbating the problem, Inform alleges, Google and YouTube siphoned customers from Inform and other companies, “plundering valuable video advertisements that had supported publishers’ websites.” Many of these businesses ended up going under. Inform says its business was decimated.

As the Eleventh Circuit explained, Inform contends Google engaged in anticompetitive conduct, including: (1) exclusive dealing and anticompetitive contracts; (2) illegal tying and bundling of services; (3) unilateral setting and altering of technological standards; (4) manipulative and technological blocking, exclusion, downgrading and denial of interoperability; (5) preferential treatment of its own products and services; (6) denial of interoperability and purposeful incompatibility; (7) opacity as to function, pricing and data; and (8) predatory pricing.

The panel explained that a “shotgun pleading” is a complaint that violates Federal Rule of Civil Procedure 8(a)(2), Rule 10(b), or both. Here, the court wrote, rejecting Google’s assertions, Inform’s amended complaint lacks the defining feature of shotgun pleadings, as it is not “virtually impossible” to discern which factual allegations support each of Inform’s claims.

“To be sure,” the court continued, “the complaint is certainly long and may not be a paragon of clarity. But that did not prevent the district court or the Google defendants from understanding the basis of Inform’s core antitrust claims for monopolization offenses, exclusive dealing, and tying.”

Concluding its per curiam opinion, the court remanded the case back to the Northern District of Georgia.

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