United States et al v. Google LLC Document 292: Memorandum In Support

Virginia Eastern District Court
Case No. 1:23-cv-00108-LMB-JFA
Filed August 4, 2023

Memorandum in Support re [291] MOTION to Compel filed by Google LLC. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3)(Reilly, Craig)

BackBack to United States et al v. Google LLC

Tags No tags have been applied so far. Sign in to add some.

Jump to Document 292 or Attachment 1 • 2 • 3

  Formatted Text Tab Overlap Raw Text Right End
Page 1 PageID#
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES, et al.,
Plaintiffs,
v.
No. 1:23-cv-00108-LMB-JFA
GOOGLE LLC,
Defendant.
GOOGLE LLC’S MEMORANDUM IN SUPPORT OF
ITS MOTION TO COMPEL A RESPONSE TO RFA Pursuant to Federal Rules of Civil Procedure 36(a)(6) and 37 and Local Civil Rule 37(A),
Defendant, Google LLC (“Google”), has moved the Court to enter an order compelling Plaintiff
United States to answer Google’s Request for Admission No. 1 within seven days. As shown
herein, the United States’ objections are meritless and should be overruled.
I.
INTRODUCTION
The United States brings a claim for “damages incurred by the United States,” alleging in
its fifth claim that “Google’s violations of the Sherman Act have caused the United States to incur
monetary damages, as the United States and its various agencies and departments are buyers of
open web display advertising.” Am. Compl. (Dkt. 120) ¶ 341 (emphasis added). As the Court
recognized, Google is entitled to discovery on whether the United States is a “buyer[] of open web
display advertising” directly from Google because, with certain narrow exceptions, only direct
Page 2 PageID#
purchasers have antitrust standing to sue for damages under the Sherman Act. See Illinois Brick
v. State of Illinois, 431 U.S. 720 (1977).
Google moved to dismiss the Amended Complaint on grounds that the United States lacks
antitrust standing under Illinois Brick. The Court rejected that argument because it found whether
the United States was a direct purchaser was a factual issue. The Court, however, went on to state:
I think the only argument that defendants might have down the road—which,
again, is a fact situation—is if you all had used a real middleman, then there
might be a problem, or two middlemen. So, unfortunately, that will require
discovery. But, I mean, discovery shouldn’t be that difficult. You ought to
have the data at your hands right now. I would think probably almost a request
for admissions and a couple of quickie interrogatories should probably flesh
that out rather quickly.
Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 21:15-23.
Google followed up on the Court’s very good suggestion and served straightforward
requests for admission (“RFA”) to the United States regarding its departments’ and agencies’
alleged purchases of open web display advertising from Google. As Judge Brinkema explained,
whether those departments or agencies did, in fact, make direct purchases could be fleshed out in
discovery “rather quickly.” Id.
Consistent with the Court’s guidance, Google’s RFA 1 states, “Admit that, during the
Damages Period, the Federal Agency Advertisers did not purchase ‘open web display advertising’
directly from Google.” Ex. 1 at 2. This tailored request, designed to narrow the issues in this case
for trial, is precisely what Rule 36 requests for admissions are meant to accomplish. Yet the United
States refuses to answer. See id. at 2–3. Rule 36 expressly permits requests designed to elicit
admissions regarding “facts” or “the application of law to fact.” Fed. R. Civ. P. 36(a)(1)(A). Case
law makes clear that requests for admissions that implicate legal conclusions are proper. And
although the ultimate conclusion—whether the United States has antitrust standing to sue for
Page 3 PageID#
damages—is a legal one, it is informed by statements of fact, which Judge Brinkema recognized
“shouldn’t be that difficult” to determine.
Google respectfully requests that the Court overrule the United States’ objections and deem
that the United States’ response to Google’s RFA 1 insufficient and in non-compliance with Rule
36, and that the United States be ordered to answer RFA 1 within seven days.
II.
BACKGROUND
Google moved to dismiss the Amended Complaint on a number of grounds, including that
the United States’ fifth claim for damages fails because the United States is not a direct purchaser
of “open web display advertising” from Google, as the United States purchased such advertising
from publishers, not Google; and intermediaries, not the United States, paid Google for any ad
services. Google’s Mem. of Law ISO Mot. to Dismiss (Dkt. 73) at 2, 26-28. In response, Plaintiffs
argued that Google’s “provision of ad tech services is what matters for the Illinois Brick analysis,”
not whether the United States purchased ads from Google or publishers. Opp. (Dkt. 101) at 27.
Plaintiffs also argued that certain narrow exceptions to the Illinois Brick doctrine applied. Id. at
28-29. At oral argument, Judge Brinkema stated that Google’s direct-purchaser argument hinged
on a factual question which “will require discovery. But, I mean, discovery shouldn’t be that
difficult. You ought to have the data at your hands right now. I would think probably almost a
request for admissions and a couple of quickie interrogatories should probably flesh that out rather
quickly.” Apr. 28, 2023 Hr’g Tr. (Dkt. 164) 21:18-23.
On June 7, 2023, Google served RFA 1. The same day, Google served interrogatories to
discover facts related to their status as direct purchasers, just as the Court suggested. While those
interrogatories are not the subject of this motion, Google remains concerned that the United States’
responses to them are also inadequate, including an interrogatory asking the United States to
Page 4 PageID#
identify all purchases of “open web display advertising” that were purchased by an FAA directly
from Google. Google is hopeful that the United States will quickly agree to supplement its answers
to that interrogatory as well and that we are not back before Your Honor on that and other
interrogatories.
On June 22, 2023 and on July 7, 2023, the United States objected and responded to RFA
1, as copied below:
REQUEST NO. 1: Admit that, during the Damages Period, the Federal Agency
Advertisers did not purchase “open web display advertising” directly from
Google.
Objections to Request No. The United States objects to this request on the grounds that it requires a legal analysis
of Google’s term “directly.” The United States further objects to this request as vague
and ambiguous, as the difference between “purchase” as used in Request No. 1 and
“pay” as used in Request No. 2 is neither specified nor clear.
Response to Request No. As this request improperly calls for a legal conclusion, and Google has provided no
clarity regarding how “purchase . . . directly” differs from a legal assessment of what
constitutes a “direct purchaser” under antitrust law, the United States stands on its
objections. Furthermore, the United States objects to this request as vague and
ambiguous with respect to the phrase “purchase ‘open web display advertising’ directly
from Google,” as Google is not a publisher of “open web display advertising” as
defined in the Complaint.
Ex. 1 at 2–3.The parties met and conferred on June 30, 2023, during which the United States explained
that it objected to the word “directly” because it addressed a legal concept. See Ex. 2 at 2 (July Ltr. from Google to DOJ). Google memorialized the parties’ conferral and defined the term
“directly” just as it is defined in The Oxford English Dictionary (“OED”), which is “without the
intervention of a medium or agent; immediately, by a direct process or mode.” Id.

Google attaches the United States’ August 2 Responses & Objections, which are identical to the
earlier-served responses and objections with respect to RFA 1.
Page 5 PageID#
On July 27, 2023, and on August 2, 2023, the United States refused to answer RFA 1,
asserting that RFA 1 called for a “legal conclusion regarding whether the FAAs are direct
purchasers under the antitrust laws.” Ex. 3 at 1 (July 27 Ltr. from DOJ to Google); Ex. 1 at (Plaintiff’s August 2 Responses & Objections).
III.
APPLICABLE LAW
Rule 36 provides that a “party may serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
relating to: facts, the application of law to fact, or opinions about either.” Fed. R. Civ. P.
36(a)(1)(A). The Advisory Committee Notes make clear that the purpose of the rule is to “facilitate
proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the
issues by eliminating those that can be.” Fed. R. Civ. P. 36 advisory committee’s note to amendment; see also Erie Ins. Prop. & Cas. Co. v. Johnson, 272 F.R.D. 177, 183 (S.D.W. Va.
2010) (purpose of requests for admission is to reduce trial time and narrow the scope of issues in
dispute). A party has a duty to conduct a reasonable inquiry in responding to requests for
admissions, and Rule 36 requires meaningful responses. Id.; see also Susko v. City of Weirton,
2010 WL 1881933, at *14 (N.D.W. Va. May 7, 2010) (“Parties may not view requests for
admission as a mere procedural exercise requiring minimally acceptable conduct. They should
focus on the goal of the Rules, full and efficient discovery, not evasion and word play.”) (citation
omitted). Where a court determines that a response to a request for admission does not comply
with the requirements of Rule 36, it may order either that the matter is deemed admitted or that the
responding party serve an amended answer. Fed. R. Civ. P. 36(a)(6).
Page 6 PageID#
IV.
ARGUMENT
a.
The United States Must Answer RFA 1, Which Seeks Admissions
Related to Facts, not Legal Conclusions.
Google’s request that the United States admit the FAAs did not purchase “open web display
advertising” directly from Google is a proper request for admission of a fact, or at a minimum, an
application of law to fact.
First, Google’s RFA could significantly narrow the issues for trial. In Illinois Brick, the
Supreme Court established a bright-line rule that authorizes suits by direct purchasers but bars
suits by indirect purchasers for damages under Section 4 of the Clayton Act. See Kloth v.
Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006) (“Those who purchase indirectly or through
intermediaries are barred from recovering for antitrust injuries.”).
While the United States alleges that through its departments or agencies, it “purchase[d]
open web display advertising using Google and non-Google ad tech tools,” Dkt. 120 ¶ 278, the
Complaint elides whether (1) the FAAs purchased open web display advertising directly from
Google, or (2) whether, as is common for large advertisers like the FAAs, they used ad agencies
as intermediaries (and whether the ad agencies used subcontractors) to purchase open web display
advertising. As this Court recognized, if the United States “had used a real middleman, then there
might be a problem” with its ability to obtain damages under Illinois Brick and its progeny. See
Dkt. 164 at 21:17-18.
Whether the United States—through the FAAs—purchased open web advertising directly
from Google or through intermediaries is a fact capable of being admitted (or denied) through an
RFA. See In re W. States Wholesale Nat. Gas Antitrust Litig., 2009 WL 10692753, at *2 (D. Nev.
Sept. 25, 2009) (“Through requests for admissions,” plaintiffs “admitted they had no direct
purchase agreements” with the defendant).
Page 7 PageID#
At most, RFA 1 calls for an admission concerning the “application of law to facts,” which
is also proper under Rule 36. Fed. R. Civ. P. 36(a)(1)(A). The Advisory Committee Notes to Rule
36 provide an example of a proper request for admission that calls for application of law to fact:
“an admission that an employee acted in the scope of his employment may remove a major issue
for trial.” Fed R. Civ. P. 36 advisory committee’s note to 1970 amendment (citing McSparran v.
Hanigan, 225 F. Supp. 628 (E.D. Pa. 1963)). The request at issue in McSparran sought an
admission that: “At the time of the accident in suit, the premises on which said accident occurred,
were occupied or under the control of defendant, John McShain, Inc.” 225 F. Supp. at 636.
Although the term “control” had legal implications, as the United States asserts as to the term
“directly,” the Notes make clear that such requests are proper because they involve the application
of law to facts.
More recent cases also show that Google’s request is proper. In Wagner v. St. Paul Fire
& Marine Ins. Co., 238 F.R.D. 418, 418-24 (N.D. W.Va. 2006), the district court ordered a plaintiff
to answer a request for an admission that the defendant would be “entitled to immunity under the
Governmental Tort Claims and Insurance Reform Act” if he were found to have been “acting
within the scope of his employment.” The court explained that the request was a “straightforward
application of law to fact. It asks the Plaintiffs to admit that if a certain factual situation is found
to exist, a certain legal outcome results.” Id. at 423-24. In Parsons v. Best Buy Stores, L.P., WL 2243980, at *1-2 (S.D. W.Va. May 19, 2010), the court ordered the defendant to respond to
requests to admit that store employees were negligent for “failing to secure the load on the pallet
jack at issue in this litigation.” The court explained that these requests “specify that it was the
failure to secure the load on the pallet jack that was negligence,” and that if the defendant
Page 8 PageID#
contended “that such failure was not negligence, or that other conduct, such as moving the pallet
jack too fast, was negligence, then Defendant should say so.” Id. at *2.
b.
The United States’ Objections Lack Merit.
The United States’ objections to providing any response lack merit. RFA 1 does not call
“for a legal conclusion that is one of the ultimate issues of the case”—whether the United States
has antitrust standing to sue for damages. Career Counseling, Inc. v. AmeriFactors Fin. Grp.,
LLC, 2022 WL 286189, at *8, n.9 (D.S.C. Jan. 31, 2022). Rather, while the answer to this RFA
may have legal implications under Illinois Brick, that is precisely the point: each side can argue
whatever legal conclusions may flow from the admission of fact sought by the RFA. See Simpson
v. Ocwen Loan Servicing, LLC, 2020 WL 1465740, at *5 (N.D. W.Va. Mar. 25, 2020) (RFA
seeking admission that respondent “became arrears on your payments” due under a loan did not
call for legal conclusion, and was “hardly the legalese often seen in discovery requests”).
The United States’ arguments in opposing Google’s motion to dismiss make this point
clearly. Regardless of how the United States answers the RFA, it can (and will) argue that “the
provision of ad tech services is what matters for the Illinois Brick analysis,” or that
“intermediaries” involved in the sale of open web display advertising “do not create new links in
the distribution chain that would trigger the indirect purchaser bar of Illinois Brick.” Pls.’ Opp. to
Google’s Mot. To Dismiss (Dkt. 101) at 27-28. The United States may also continue to argue,
regardless of its answer to this RFA, that the cost-plus exception to the Illinois Brick rule applies.
Id. at 28; see also id. at 30 (arguing that the United States, through its FAAs, is “still [a] direct
purchaser[] of ad tech services from Google” when the FAAs buy “advertising through DV360”).
Google’s definition of the term “directly” also eliminates any objection that the RFA calls
for a legal conclusion. Google has defined that term according to its ordinary meaning—“without
the intervention of a medium or agent; immediately, by a direct process or mode.” Ex. 2 at 2.
Page 9 PageID#
There is no daylight between the definition of the term “directly” in the OED and the Court’s
practical suggestion of issuing an RFA to determine whether the United States used a middleman
to purchase open web display advertising.
Finally, the United States’ argument that RFA 1 is vague and ambiguous likewise lacks
merit. A party must respond to a request for admission where a term has a common meaning
capable of common-sense interpretation. See United States v. Virkutis, 1987 WL 7806, at *5 (N.D.
Ill. Mar. 11, 1987). In response to the assertion that the terms “pay” and “purchase” were vague
and ambiguous, Google offered specific and tailored definitions, consistent with their ordinary
meaning. See Ex. 2 at 2 (defining “pay” as “to give, transfer, or hand over (money or its equivalent)
in return for goods or services,…” and “purchase” as “[t]o acquire in exchange for payment in
money….”). And the objection that the RFA is vague and ambiguous because “Google is not a
publisher of ‘open web display advertising’ as defined in the Complaint” simply makes no sense;
the Complaint alleges that the United States is a purchaser (“buyer[]”) of “open web display
advertising.” Am. Compl. ¶ 341. The key issues this RFA seeks to address are: from whom is
the United States a purchaser, and does it purchase directly?
CONCLUSION
Google respectfully requests that the Court grant this motion and order the United States
to answer RFA 1 within seven days.
Page 10 PageID#
Dated: August 4,
Respectfully submitted,
Eric Mahr (pro hac vice)
Andrew Ewalt (pro hac vice)
Julie Elmer (pro hac vice)
Lauren Kaplin (pro hac vice)
Scott A. Eisman (pro hac vice)
Jeanette Bayoumi (pro hac vice)
Claire Leonard (pro hac vice)
Sara Salem (pro hac vice)
Tyler Garrett (VSB # 94759)
FRESHFIELDS BRUCKHAUS
DERINGER US LLP
700 13th Street, NW, 10th Floor
Washington, DC Telephone: (202) 777-Facsimile: (202) 777-eric.mahr@freshfields.com
/s/ Craig C. Reilly
Craig C. Reilly (VSB # 20942)
THE LAW OFFICE OF
CRAIG C. REILLY, ESQ.
209 Madison Street, Suite Alexandria, VA Telephone: (703) 549-Facsimile: (703) 549-craig.reilly@ccreillylaw.com
Daniel Bitton (pro hac vice)
AXINN, VELTROP & HARKRIDER
LLP
55 2nd Street
San Francisco, CA Telephone: (415) 490-Facsimile: (415) 490-dbitton@axinn.com
Karen L. Dunn (pro hac vice)
Jeannie H. Rhee (pro hac vice)
William A. Isaacson (pro hac vice)
Joseph Bial (pro hac vice)
Amy J. Mauser (pro hac vice)
Martha L. Goodman (pro hac vice)
Bryon P. Becker (VSB #93384)
Erica Spevack (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
2001 K Street, NW
Washington, DC 20006-Telephone: (202) 223-Facsimile (202) 223-kdunn@paulweiss.com
Bradley Justus (VSB # 80533)
AXINN, VELTROP & HARKRIDER
LLP
1901 L Street, NW
Washington, DC Telephone: (202) 912-Facsimile: (202) 912-bjustus@axinn.com
Meredith Dearborn (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
535 Mission Street, 24th Floor
San Francisco, CA Telephone: (646) 432-Facsimile: (202) 330-mdearborn@paulweiss.com
Counsel for Defendant Google LLC
Erin J. Morgan (pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-Telephone: (212) 373-Facsimile: (212) 492-ejmorgan@paulweiss.com
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 

Non-Government Works Copyright © 2001-2024 Think Computer Corporation. All Rights Reserved.

About   Privacy   Security   Contact Us

PlainSite
Sign Up
Need Password Help?