Plaintiffs withdraw proposed class action against Google over pre-loaded apps

By Jessica M. Karmasek | Apr 7, 2015

SAN JOSE, Calif. (Legal Newsline) - A proposed class action lawsuit filed against search engine giant Google Inc., accusing it of forcing Android phone buyers to use its applications, has been withdrawn.

Last week, plaintiffs Gary Feitelson, of Kentucky, and Daniel McKee, of Iowa, filed a notice of voluntary dismissal in the U.S. District Court for the Northern District of California, San Jose Division.


Feitelson and McKee had filed the antitrust lawsuit against Google in May, arguing that the company restrains trade in the Internet search market through its use of confidential agreements with cell phone manufacturers.

The federal court heard oral arguments in the case in December. In February, Judge Beth Labson Freeman mostly granted a motion to dismiss filed by Google.


Feitelson and McKee, who both purchased cell phones with Google’s apps already installed, claimed they were unaware that Google Search was the default search engine on their phones. They also claimed they were unaware of any way to change the setting.


They argued their phones would have cost less and had better search capabilities if it weren’t for the pre-loaded Google app -- which, they argued, is a result of the company’s growing monopoly on the search engine business.


But Freeman, in her Feb. 20 order, deemed many of the plaintiffs’ allegations deficient.


“Accepting Plaintiffs’ argument would permit any consumer of Internet search to have standing to sue for injunctive relief, as the proposed class of Android OS device consumers is no different from the Apple device user or the computer search user when it comes to innovation and choice in the market for Internet search products,” the judge explained.


“More fundamentally, Plaintiffs’ allegations of hypothetical loss of consumer choice and innovation are entirely too conclusory and speculative.”


Freeman noted that Feitelson and McKee have alleged that the Android operating system occupies a 51.7 percent share of the nation’s smartphone market, but failed to explain how the “logical leap” from that allegation to substantial market foreclosure is “reasonable.”


“The Court must insist on some greater specificity in pleading ‘before allowing a potentially massive factual controversy to proceed,’ and Plaintiffs should have the opportunity to amend in order to more plausibly allege the relationship between the Mobile Application Distribution Agreements and competition in the market for handheld general search,” the judge wrote, allowing the plaintiffs leave to amend two of their claims.


However, the leave is moot in light of their withdrawal.


From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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