USA – CALIFORNIA Trends and Developments Contributed by: Ryan Sandrock, Shook, Hardy & Bacon LLP
Takeaways for Non-California Practitioners Antitrust litigation in California can be unique. First, many cases filed in California – even in federal court – involve claims under California’s antitrust and unfair competition laws. Those laws can in some cas - es impose heightened requirements going beyond the Sherman Act. Second, the richest body of antitrust decisions (besides decisions from the District of Columbia and the DC Circuit) comes from California state courts, the Northern District of California and the Ninth Circuit. Third, many California judges have significant experi - ence with antitrust cases and therefore may be par - ticularly demanding on counsel. Fourth, California juries are more likely to involve employees of technology companies, who might have deep understanding of the products and markets at issue. Fifth, antitrust regulators in California are active, and there is talk of further expansion of California’s anti - trust laws. The deep history of California antitrust will continue with the next wave of antitrust technology cases. We can expect some litigants to steer away from Califor - nia courts and precedent, while others will try to keep cases in or transfer cases to California. There is no doubt that future generations of antitrust practitioners – litigating over technologies unthinkable today – will still be referring to the 1907 Cartwright Act (focused on trusts involving physical products such as lum - ber) and the 1999 Cel-Tech decision (about 1990s cell phones).
ing services. Google fought these rulings in post-trial motions and on appeal with little success. Google argued before the Ninth Circuit that the Epic v Apple rulings in the similar case required a different outcome. The appeals court disagreed, emphasising that the general similarities between the cases did not overcome the significantly different facts or bar an “independent analysis”. The Ninth Circuit also did not disturb a broad injunction requiring, among other things, that Google allow consumers to access rival app stores through the Google Play Store. The Epic v Google decisions include less robust dis - cussion of the relationship between federal and Cali - fornia law, largely because Epic won under federal law (unlike in Apple ). The Ninth Circuit did favourably cite its Apple decision to conclude that a UCL claim can survive “independently of any antitrust liability”. Another branch of the app store cases led to the pending challenge by the United States Department of Justice, California and other states against Apple’s alleged monopolistic practices. The case is in New Jersey but does involve California as a plaintiff, as well as a California-based defendant. Plaintiffs survived a motion to dismiss, and the case remains pending. In addition, at the time of writing, the world is wait - ing on two remedies rulings in cases brought by the United States, California and several other states against Google. Plaintiffs prevailed in both the Goog - le “Search” and “Ad Tech” cases. The scope of the remedies will be litigated for years to come and will impact the future of not only the markets litigated in those cases but also markets involving nascent AI technologies.
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