A jury verdict finding Google liable for monopolising two Android app markets may be vulnerable to reversal due to conflicting precedent in Epic Games’ litigation against Apple, according to some antitrust experts.

After three hours of deliberations on Monday, a federal jury in California sided with Epic Games and determined that Google illegally monopolised Android app distribution and in-app purchases in a global market that excludes China. 

Google has already signalled it will appeal against the verdict and University of Pennsylvania law school professor Herbert Hovenkamp says it may prevail because the nine-member jury defined the relevant antitrust market in a manner that two federal courts have already rejected in Epic Games v Apple.

In that case, the US District Court for the Northern District of California Judge Yvonne Gonzalez Rogers rejected Epic’s definition of a “single-brand” aftermarket after concluding Epic had failed to demonstrate “significant” switching costs for and a lack of consumer knowledge that Apple’s App Store is the only place to download apps on iOS.

The US Court of Appeals for the Ninth Circuit had affirmed that conclusion in April.

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Cohen Milstein Sellers & Toll partner Daniel McCuaig said Google will probably lean heavily on precedent from the Apple cases but cautioned that Google would have to satisfy the high standard of demonstrating a clear error for the jury’s finding of facts on matters like the relevant antitrust market.

He questioned how consumers could be expected to make an informed decision about these products.

“How could consumer purchasing decisions discipline either Apple or Google away from walling in its garden when there’s no daylight between them?”

A California federal judge on Monday refused to throw out a trimmed version of a lawsuit claiming that Meta Platforms Inc. illegally collected patients’ health information using a Facebook data tracking tool, ruling that their latest complaint has addressed some of his prior concerns.

U.S. District Judge William H. Orrick denied Meta’s motion to dismiss the suit, in particular rejecting Meta’s argument that the patients’ privacy claims are foreclosed at this stage in the litigation just because their communications with their healthcare providers may have been conducted via publicly available webpages.

“That fact is not irrelevant to the question of whether plaintiffs will ultimately be able to prove an invasion of privacy when considering the totality of the circumstances, but at this juncture and given that plaintiffs were communicating with their healthcare providers about their healthcare needs, plaintiffs have alleged enough for this claim to proceed to discovery,” Judge Orrick said.

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The healthcare plaintiffs are represented by Geoffrey Graber, Eric Kafka, and Claire Torchiana of Cohen Milstein Sellers & Toll PLLC, Jason “Jay” Barnes of Simmons Hanly Conroy LLC, Jeffrey A. Koncius of Kiesel Law LLP, Beth E. Terrell of Terrell Marshall Law Group PLLC and Andre M. Mura of Gibbs Law Group LLP.

Spirit said it saw “no basis” for termination. Just last week, both airlines said they intended to appeal a judge’s decision blocking the deal.

JetBlue Airways said on Friday that it might back out of a $3.8 billion acquisition of Spirit Airlines after a federal judge blocked the deal.

The announcement came just a week after JetBlue and Spirit had said they would appeal the decision, which was made in an antitrust case brought by the Justice Department.

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“It certainly seems like at this point at least this antitrust division is done letting airline mergers go through unchallenged,” said Dan McCuaig, a former antitrust trial lawyer at the Justice Department who is now a partner at the law firm Cohen Milstein.

While baby apparel maker Kyte Baby drew widespread condemnation for denying a mother’s request to work remotely to care for her baby in a neonatal intensive care unit, the decision was completely lawful, a reality that worker-side advocates say highlights the glaring gaps in workplace protections for new parents.

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Experts said the saga is another example of how the lack of federal protections for new parents forces them to rely on the benevolence of their employers for the time off that growing families need. And worker-side advocates said many businesses aren’t interested in going beyond the letter of the law, necessitating congressional action.

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Aniko R. Schwarcz, an attorney with plaintiff-side firm Cohen Milstein Sellers & Toll PLLC who directs its civil rights and employment case development, said these requirements mean a huge chunk of the country isn’t covered.

Among those excluded are workers like Hughes, as well as some part-time employees, gig workers and independent contractors.

“There are so many people like [Hughes] who are carved out from federal protections,” she said. “And wherever the law draws the line, there are businesses that are always going to do the bare minimum.”

While some workers can turn to state law for support that the federal government does not offer, most cannot.

The Winter 2024 issue of the Shareholder Advocate, our quarterly securities litigation and investor protection newsletter, features:

Read the Winter 2024 issue of the Shareholder Advocate.

New York Life Insurance Co. and thousands of current and former insurance company workers told a New York federal court Monday that they had struck a deal to settle a case alleging mismanagement of the employees’ 401(k) retirement plan.

Parties to the Employee Retirement Income Security Act suit said in a joint letter to the court that they had agreed to a “class-wide settlement-in-principle” and were hammering out a comprehensive agreement with plans to finalize the deal by Feb. 19. They also requested that the court defer ruling on a pending motion for class certification and issue a 30-day stay in the case, according to the joint letter.

If approved, the settlement would resolve an ERISA class action that former New York Life employee Stuart Krohnengold first brought in March 2021, alleging mismanagement of a plan that reported more than $5 billion in assets and 29,000 participants at the end of 2021.

. . .

Kai Richter, an attorney for the proposed class, said in a statement Monday, “We are pleased to reach a settlement-in-principle of the action on a class-wide basis, and look forward to presenting the terms of the settlement in our forthcoming preliminary approval motion papers.”

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The proposed class is represented by Kai H. Richter, Jacob T. Schutz, Eleanor Frisch, Michelle C. Yau, Daniel R. Sutter and Michael Eisenkraft of Cohen Milstein Sellers & Toll PLLC.

A Nevada federal court refused Thursday to let Ultimate Fighting Championship avoid a slated April trial on claims alleging the company suppressed fighter wages by up to $1.6 billion, and also refused to exclude crucial expert opinions from the case.

The order from U.S. District Judge Richard F. Boulware II denied a summary judgment motion from UFC’s parent company Zuffa LLC and also struck bids to exclude two of the fighters’ experts.

The order said the court already considered UFC’s arguments, for both the summary judgment and exclusion bids, when it certified a class of fighters in the case last year, and said the same reasons for certifying the class apply to the other motions.

“Moreover, and importantly, the standard at certification — preponderance — is, in antitrust cases like this one, more exacting than the standard at summary judgment which requires only a genuine issue of disputed fact,” Thursday’s order said. “This is especially the case here where a district court must (and did) weigh and resolve fundamental disputes between the parties’ experts.”

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The fighters are represented by Eric L. Cramer, Michael Dell’Angelo, Patrick F. Madden, Najah Jacobs, Joshua P. Davis and Julie Pollock of Berger Montague, Joseph R. Saveri, Kevin E. Rayhill, Christopher K.L. Young and Itak Moradi of Joseph Saveri Law Firm LLP, Benjamin D. Brown, Richard A. Koffman and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Don Springmeyer of Kemp Jones LLP, Robert C. Maysey and Jerome K. Elwell of Warner Angle Hallam Jackson & Formanek PLC, Crane Pomerantz of Clark Hill PLC, William G. Caldes of Spector Roseman & Kodroff PC, John D. Radice of Radice Law Firm PC and Frederick S. Schwartz.

What You Should Know:

• Circuit split on omissions calls for guidance, attorneys say
• Even a narrow holding on disclosure could offer clarity

Companies, attorneys, and courts are expected to receive useful guidance on liability for failing to disclose troublesome trends from even a limited ruling by the US Supreme Court after oral argument on the theme this week, attorneys said.

Such a ruling “would give direction” to the lower courts in the context of a circuit split on the securities fraud issue, said Laura Posner of Cohen Milstein Sellers & Toll PLLC in New York. The split has led companies like Nvidia Corp. and Morgan Stanley to follow conflicting federal appeals court rulings.

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But Posner, an attorney for investors, said that most of the time, plaintiffs are identifying specific statements in their complaints—and that the investor suing Macquarie, Moab Partners LP, did so in this case. Posner, who’s also president of the Institute for Law and Economic Policy in Jenkintown, Pa., co-authored an amicus brief on behalf of former SEC officials in Macquarie.

There may be an unusual case where a company lists no known trends in its Item 303 filing of the SEC’s Regulation S-K, she said. “What do you do when there’s no specific statement?” she said.

Assuming a false and misleading “management discussion and analysis” statement in an Item 303 filing can give rise to liability, a Supreme Court ruling that an investor would need to plead a statement would provide guidance to the Ninth Circuit, which has held that nothing in the MD&A can support liability, she said. A narrow ruling by the top court would be “agnostic as to the Second Circuit,” she said.

“Where the rubber will meet the road is whether a statement is specific enough to be actionable,” she said.

Benjamin D. Brown is taking on his new role as managing partner of Cohen Milstein Sellers & Toll PLLC with an eye toward maintaining a firm culture that enables lawyers to build the type of world they want for themselves and their families.

Brown said that Cohen Milstein — which touts its work as “uncommon advocacy for the common good” on its website — is successful in part because of the job satisfaction it offers, as well as its younger generation of lawyers who are hoping to have a successful career and also make a positive impact.

In his new role, Brown said he is tasked with further instilling in Cohen Millstein’s lawyers the mission of serving as “private attorneys general” to protect against corporate overreach. That’s especially challenging when there’s now a lack of gatherings around the water cooler, opportunities which often led the plaintiff-side attorneys to feel more “energized” by each other’s work.

The leadership change comes on the heels of one of the firm’s “most successful years financially,” according to Benjamin Brown, its new managing partner.

What You Need to Know

• Benjamin Brown, who co-chairs Cohen Milstein’s antitrust practice, is the firm’s new managing partner.
• Steven Toll served as managing partner the past three decades, and under his helm, the firm more than tripled its head count.
• The leadership change comes as a number of firms in Big Law have announced transitions over the past year or so.

As Washington, D.C.-founded class action litigation firm Cohen Milstein Sellers & Toll continues to grow its head count and expand its physical footprint, the plaintiff-side firm has named Benjamin Brown as its new managing partner.