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Court panel weighs Google bid to move advertising antitrust cases

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A 3D printed Google logo is seen in this illustration. REUTERS/Dado Ruvic/Illustration

  • Judge on JPML called arguments against centralizing the lawsuits "perplexing"
  • Plaintiffs in the suits include publishers, advertisers and small businesses

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(Reuters) - Lawyers for Google LLC and Facebook Inc on Thursday urged the Judicial Panel on Multidistrict Litigation to transfer dozens of digital advertising-related antitrust lawsuits they are facing to California federal court, over opposition from some plaintiffs' lawyers who argued centralization would unfairly slow down proceedings in pending cases around the country.

Lawsuits filed by U.S. states, publishers, advertisers and small businesses contend online advertising practices at Google and Facebook have unlawfully stifled competition and harmed consumers and companies.

Google and Facebook want the cases moved to the U.S. District Court for the Northern District of California, where the largest number of related lawsuits are pending.

Google's lawyer, Eric Mahr, co-leader of the antitrust group at Freshfields Bruckhaus Deringer, told the JPML that failure to centralize the cases would raise the possibility of "inconsistent rulings" from district judges.

Representing Facebook, Kevin Orsini, co-head of the litigation department at Cravath, Swaine & Moore, backed Google's argument for centralization in California, where both companies are based.

Girard Sharp partner Jordan Elias, advocating for an advertiser class, argued against centralization. The cases in district courts are at different stages, he said.

"Judicial economy favors not interfering with these ongoing proceedings," he said. Discovery, he argued, could be coordinated without merging the cases.

U.S. District Judge Matthew Kennelly of the Northern District of Illinois, serving on the JPML, questioned Elias about how some of the class members he is representing mirror plaintiffs in the complaint Texas Attorney General Ken Paxton and a group of other state attorneys general filed in December against Google in the U.S. District Court for the Eastern District of Texas.

"How does it make sense to have these two cases, which basically overlap, in two different places?" Kennelly said. "The opposition of you folks and some of the other folks on the plaintiffs' side to centralization in this case is a little bit perplexing. In virtually every other situation we've had before us, you guys are out in front asking us to centralize it."

Plaintiffs lawyer Mark Lanier, counsel to Texas and other states, said his argument against centralization was the first in his career.

"Speed really is important here," he told the panel. Texas and state plaintiffs have "been intensely involved in this," Lanier said. "We've got over 2 million documents. We've got documents and information from 25 third-parties at this point."

Lanier's briefing to the panel had raised an issue about venue pointing to new bipartisan federal legislation introduced in May that would exempt antitrust actions brought by state attorneys general from motions to transfer.

He urged the JPML to exclude the states' lawsuit against Google from any transfer order, or "respect the states' choice of forum by centralizing all Google ad tech litigation in the Eastern District of Texas." The effective date of the law, if it's enacted, is June 1.

But, the JPML on Thursday didn't ask questions related to the legislation.

The case is In re Digital Advertising Antitrust Litigation, U.S. Judicial Panel on Multidistrict Litigation, MDL No. 3010.

For Google: Eric Mahr of Freshfields Bruckhaus Deringer. For Facebook: Kevin Orsini of Cravath, Swaine & Moore.

Plaintiffs lawyers representing parties include W. Mark Lanier of The Lanier Law Firm; Jordan Elias of Girard Sharp; Carol O'Keefe of Korein Tillery; Serina Vash of Herman Jones; and John Thorne of Kellogg, Hansen, Todd, Figel & Frederick.

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