The opinion
Freshfields Bruckhaus Deringer us LLP
Via ECF Washington
700 13th Street, NW
10th Floor
Washington, DC 20005-3960
The Honorable P. Kevin Castel T +1 202 777 4500 (Switchboard)
United States District Judge F □ 00 a □□□ (Direct)
Southern District of New York E eric.mahr@freshfields.com
500 Pearl Street www.freshfields.com
New York, NY 10007-1312
June 12, 2023
Re: In re Google Digital Advertising Antitrust Litigation, No. 1:21-md-03010 (PKC);
State of Texas, et al. v. Google LLC, No. 1:21-cv-06841 (PKC)
Dear Judge Castel:
On behalf of Defendant Google LLC (“Google”), we write to respectfully request entry of
an order that would stay transfer of State Plaintiffs’ case to allow Google to seek appellate review
of the Judicial Panel on Multidistrict Litigation’s (“JPML’s”) June 5, 2023 Order remanding the
above-captioned case to the Eastern District of Texas. See Exhibit A. Absent such an order, the
Clerk may transfer the case as soon as tomorrow morning, which may deprive Google of judicial
review of the JPML’s decision. No conference is scheduled at this time.
On December 29, 2022, President Biden signed the State Antitrust Enforcement Venue Act
(“Venue Act”) into law as part of a consolidated appropriations bill. The Venue Act amended 28
U.S.C. § 1407(g) to exempt antitrust actions brought by state attorneys general from inclusion in
multidistrict litigations. See Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, Div.
GG, Title III, § 301, 136 Stat. 4459, 5970. As amended, section 1407(g) now reads: “Nothing in
this section shall apply to any action in which the United States or a State is a complainant arising
under the antitrust laws.”
Nearly two months later, on February 27, 2023, State Plaintiffs filed a motion with the
JPML seeking remand of this case to the Eastern District of Texas. See Dkt. 478. On June 5,
2023, the JPML granted the motion. See Exhibit A. Google respectfully disagrees with the
JPML’s decision and intends to petition the Second Circuit on or before June 20, 2023 for a writ
of mandamus reversing the remand order, along with a motion to expedite review.
Under Local Civil Rule 83.1, the Clerk of this Court, “unless otherwise ordered, shall upon
the expiration of seven (7) days effectuate the transfer of the case to the transferee court.” Asa
result, this case could be transferred as soon as tomorrow morning, Tuesday, June 13. If the case
is transferred, the Second Circuit risks losing jurisdiction to grant a writ of mandamus reversing
the JPML’s order. See In re Warrick, 70 F.3d 736, 739-40 (2d Cir. 1995). To ensure that the
Second Circuit retains jurisdiction to grant the forthcoming mandamus petition, earlier today,
Google filed an emergency motion requesting that the JPML stay its remand order. See Exhibit
B. In light of the short deadline and dramatic consequences, out of an abundance of caution,
Google is also requesting that this Court enter an order directing the Clerk not to transfer this case
before the Second Circuit rules on Google’s mandamus petition.1
Although the procedural posture is fairly unusual, our request resembles one for a stay
pending appeal. “The factors relevant in assessing a motion for a stay pending appeal are [1] the
applicant’s ‘strong showing that he is likely to succeed on the merits,’ [2] irreparable injury to the
applicant in the absence of a stay, [3] substantial injury to the nonmoving party if a stay is issued,
and [4] the public interest.” New York v. United States Dep’t of Homeland Sec., 974 F.3d 210, 214
(2d Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). All of these factors weigh in
favor of entry of the requested order.
To establish a likelihood of success, Google need not show a certainty of winning, or even
that it is “more likely than not to succeed.” Citigroup Glob. Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 37 (2d Cir. 2010). It may also satisfy that
requirement if “serious” legal questions are involved and the balance of equities “heavily favors a
stay.” Id. Under either approach, a stay should issue here. As explained in more detail in the
memorandum accompanying Google’s stay motion filed with the JPML, Google’s mandamus
petition is likely to succeed – or at least raises serious legal questions – because the JPML erred in
interpreting the Venue Act. Specifically, the JPML misread Landgraf v. USI Film Prods., 511
U.S. 244 (1994), and other Supreme Court precedent to require retroactive application of every
procedural change, rather than properly focusing on whether Congress clearly intended for an
amendment to apply retroactively to undo procedures that have already been completed. See
Exhibit B, Mem. at 5-9. Mandamus provides the only avenue for review of the JPML’s order. See
28 U.S.C. § 1407(e) (“No proceedings for review of any order of the panel may be permitted except
by extraordinary writ . . . .”); Exhibit B, Mem. at 10. And mandamus is generally available to
reverse erroneous transfer decisions. E.g., SongByrd, Inc. v. Est. of Grossman, 206 F.3d 172, 176
& n.5 (2d Cir. 2000); see also Exhibit B, Mem. at 10-11.
Google would suffer two types of irreparable injury if transfer of this case is not stayed.
First, if the case is transferred to the Eastern District of Texas, Second Circuit precedent suggests
that the appeals court will no longer consider itself to have jurisdiction to grant mandamus relief
1 If the Court is not inclined to stay transfer for that long, Google requests that transfer be stayed until at least June
21, 2023 to permit Google to seek a stay from the Second Circuit.
June 12, 2023
Page 3
reversing the remand order, and Google may lose the opportunity to seek this relief by mandamus
altogether. See In re Warrick, 70 F.3d 736, 739-40 (2d Cir. 1995). See Exhibit B, Mem. at 11-13.
Second, absent a stay, Google would lose many of the efficiencies of participating in this MDL
and be forced to litigate substantially overlapping issues both in this Court and in the Eastern
District of Texas (as well as in the Eastern District of Virginia). See Exhibit B, Mem. at 14.
State Plaintiffs, on the other hand, would not be injured by continuing to litigate their
claims in this Court while the Second Circuit considers the mandamus petition. See Exhibit B,
Mem. at 15. To the contrary, as long as they remain in the MDL, they will continue to enjoy the
benefits of coordinated discovery. See Dkt. 564 4 1(s) (excluding State Plaintiffs from
coordination when their case is not “part of the MDL (unless and until a further order directs
otherwise)”).
Finally, staying transfer would be in the public interest because it would avoid potentially
duplicative litigation, thereby conserving judicial resources. See In re Gorsoan Ltd., 2020 WL
4194822, at *8 (S.D.N.Y. July 21, 2020) (granting motion to stay pending appeal and finding “that
the public interest factor militates in favor of a stay” based on, inter alia, “the public interest in...
preserving judicial resources by avoiding unnecessary proceedings while the appeal in this action
is pending”). Indeed, the JPML previously identified the various benefits that would result from
centralizing the related actions in this MDL, including the elimination of duplicative discovery
and avoiding the risk of inconsistent judgments. See In re Digital Advert. Antitrust Litig., 555 F.
Supp. 3d 1372, 1375 (U.S. Jud. Pan. Mult. Lit. 2021); see also Exhibit B, Mem. at 15-16.
As the Clerk may transfer this case to the Eastern District of Texas as soon as tomorrow
morning, Google appreciates the Court’s consideration of this letter and respectfully requests entry
of an order directing the Clerk not to transfer this case before the Second Circuit rules on Google’s
forthcoming mandamus petition.
week after the Judicial Panel on Multidistrict Respectfully submitted,
issued an Order of remand, Google applies to
for a stay of that Order, tobe issued by /Eric Mahr
today. Google states that it also has filed an Eric Mahr
motion to the JPML for a stay and brings its FRESHFIELDS BRUCKHAUS
to this Court "out of an abundance of DERINGER US LLP
Google's stay application is properly considered On 13th Street, NW
JPML and not this Court. Google points to no th Floor
that gives this Court jurisdiction to sit in review Washington, DC 20005
□□ Telephone: (202) 777-4545
JPML. Its application is therefore DENIED. Email: eric.mahr@freshfields.com
-2023
United States District Judcoe
Justina K. Sessions
WILSON SONSINI GOODRICH &
ROSATI
Professional Corporation
One Market Plaza
Spear Tower, Suite 3300
San Francisco, California 94105
Telephone: (415) 947-2197
Email: jsessions@wsgr.com
Counsel for Defendant Google LLC
CC: All Counsel of Record (via ECF)