[00:00:00] Speaker 02: Thank you. [00:00:00] Speaker 02: Please be seated. [00:00:12] Speaker 02: Good morning and welcome to the Ninth Circuit Court of Appeals. [00:00:14] Speaker 02: My name is Morgan Christen. [00:00:15] Speaker 02: I'm one of the judges on the circuit court. [00:00:18] Speaker 02: My chambers are in Anchorage, Alaska. [00:00:20] Speaker 02: I'm delighted to be sitting this week with two of my colleagues from the circuit court on your left, Judge Bress, whose chambers are here in San Francisco, and on my left, Judge [00:00:29] Speaker 02: Van Dyck whose chambers are in Reno. [00:00:32] Speaker 02: We have a little bit of housekeeping because there are four cases that have been submitted on the briefs, and so I just need to make note of that for the record. [00:00:43] Speaker 02: The first is 22-16995 Flynn versus Zarenda, 23-15090 Mulder versus Marx, 24-6506 United States of America versus Johnson, [00:00:59] Speaker 02: and 24-1515 Cruz Alvarado versus Bondi. [00:01:03] Speaker 02: We will not hear argument in those four cases. [00:01:06] Speaker 02: The first case on the oral argument calendar is California Crane School versus Google 24-4604. [00:01:15] Speaker 02: We're ready to hear your argument when you are ready to present it. [00:01:33] Speaker 01: May it please the court, I would respectfully request five minute rebuttal out of the fifteen minutes. [00:01:40] Speaker 01: That's fine. [00:01:41] Speaker 01: Yes, out of the fifteen minutes. [00:01:42] Speaker 02: You can spend your time the way you want to spend it. [00:01:45] Speaker 01: Okay, and also, as a personal request, I forgot my hearing aid, so if you could speak up just a little bit, I would respectfully, on any questions, so I know what you're inquiring about. [00:02:01] Speaker 01: This is a private antitrust action. [00:02:04] Speaker 01: It was brought under Section 4 and 16 of the Clayton Antitrust Act. [00:02:09] Speaker 01: It charged the defendants with violations of Sections 1 and 2 of the Sherman Act. [00:02:17] Speaker 01: The fundamental issue that was presented was that there was, of course, under Section 1 of the Sherman Act and under Section 2, either a contract or a combination working together [00:02:31] Speaker 01: or a conspiracy. [00:02:33] Speaker 01: And in this case, all three of them are predominant. [00:02:38] Speaker 01: In the court below, the court was of the view that we failed to allege facts sufficiently enough to make it feasible or understandable that there was, in fact, something going on. [00:02:53] Speaker 01: We pointed out to the court in our briefs that since that time, there has been a decision by the federal court in Washington [00:03:01] Speaker 01: which fundamentally corroborated all of our accusations. [00:03:06] Speaker 01: We charged that, to begin with, there was a potential competition for Apple and Google in the so-called search business, the market as a search business, and also as part of that, the market as the advertising that people put in to get the search coverage. [00:03:31] Speaker 01: That's our case. [00:03:32] Speaker 01: We represent the advertisers. [00:03:35] Speaker 01: We charged that under the agreement that there was a contract and under that agreement [00:03:43] Speaker 01: that Apple was being paid billions of dollars. [00:03:49] Speaker 01: We say not only for giving special, it's called default, to Google or to anyone inquiring under Siri or any of the Apples. [00:04:04] Speaker 01: We go directly to Google. [00:04:06] Speaker 01: And we charge that they also, in addition to those payments, were getting part of the profits of it. [00:04:13] Speaker 01: And in exchange for that, we charged that Apple agreed and it was understood that they would not compete in the search business. [00:04:24] Speaker 01: To begin with, Google starts out with some more than 90% of the market, almost 88% of the mobile or IOS. [00:04:36] Speaker 01: In that position, [00:04:39] Speaker 01: 65% of the traffic given to Google is over Apple devices. [00:04:46] Speaker 01: And Google was concerned and issued a so-called code red that if Apple decided to really get into the search business, that they could immediately lose half of their business. [00:05:00] Speaker 01: Google could lose half of its business. [00:05:03] Speaker 01: So there were private meetings by the chief executive officers. [00:05:08] Speaker 01: And I will say the court below said nothing about that except, I mean, the court below said, well, they could have been talking about anything. [00:05:16] Speaker 01: Well, of course, we know that's not what the law is in this circuit. [00:05:20] Speaker 01: But in addition, subsequently, it was shown that they were specifically meeting, the CEOs specifically meeting for the purpose of reconfirming and policing [00:05:34] Speaker 01: their agreement. [00:05:35] Speaker 05: The meetings as pled don't seem that probative. [00:05:39] Speaker 05: What are the specific allegations of a conspiracy that you think show that you've stated a claim? [00:05:48] Speaker 01: We set out all of our allegations, obviously, in our briefs, specifically at page 15. [00:05:54] Speaker 01: But in specifics, they met and for the purpose of the meeting, they formulated their agreement. [00:06:02] Speaker 01: and their agreement. [00:06:04] Speaker 05: What specific allegations do you have that would support that, though? [00:06:07] Speaker 05: It seems like there was a meeting, but what more do you have other than the fact of a meeting? [00:06:13] Speaker 01: We said and alleged that at the meeting they shared the profits. [00:06:17] Speaker 01: They agreed to share the profits. [00:06:19] Speaker 05: They can have a business relationship. [00:06:22] Speaker 05: That's different than whether they've agreed to [00:06:26] Speaker 05: into a conspiracy, an antitrust conspiracy. [00:06:30] Speaker 01: Yes, but we said that at the meetings, they agreed to share the profits, they agreed that Google would pay extra billions of dollars, and that Apple would stay out of the business, out of the search business. [00:06:46] Speaker 01: But I want to make one point that we did, Your Honor, on page, I think it was 59 or so. [00:06:53] Speaker 01: In this circuit, this court, [00:06:56] Speaker 01: established that one of the real principles of action that can be considered is a plus factor. [00:07:06] Speaker 01: It was invented here in 1952. [00:07:08] Speaker 01: When there was a meeting, that was evidence of a plus factor in a criminal case. [00:07:14] Speaker 01: Even though the defendant at that time denied that anything happened at the meeting, we now know that there's no denial. [00:07:21] Speaker 01: We now know that that is exactly what we said. [00:07:25] Speaker 01: It was exactly what they in fact discussed and what they agreed upon. [00:07:29] Speaker 02: What is your best argument that the district court heard by not considering the after, later learned evidence? [00:07:39] Speaker 01: I think that the court [00:07:43] Speaker 01: was making its inferences in favor of the defendants. [00:07:49] Speaker 02: I'm sorry, I didn't mean to interrupt you. [00:07:50] Speaker 02: This goes back to Judge Bress's question. [00:07:52] Speaker 02: There's the allegations that were squarely before the court and I think fairly before the court. [00:07:59] Speaker 02: But the briefing that we have here dips pretty heavily into other evidence that wasn't before the court. [00:08:06] Speaker 02: And so what I'm trying to tease out the extent to which you're relying on, anything that came out of the [00:08:13] Speaker 02: DC opinion. [00:08:14] Speaker 02: Judge made his opinion. [00:08:16] Speaker 02: And it seemed to me that you're relying on it pretty heavily. [00:08:20] Speaker 02: So my question is, what's your best argument that the district court erred by not allowing you to consider that, to reopen? [00:08:29] Speaker 01: He thought that the agreement to share profits, which by the way is illegal per se under the Supreme Court's decision, [00:08:39] Speaker 01: He said that the agreement to share profits was an ordinary business issue to the betterment of both of the parties. [00:08:53] Speaker 01: He thought it was a good business idea. [00:08:56] Speaker 01: He also thought that with regard to the payments, that the payments, the billions of dollars of payments for the purpose of, as we allege, keeping Apple out of the business, [00:09:09] Speaker 01: He said, again, that that was good business. [00:09:12] Speaker 01: He said that the meetings were good business. [00:09:15] Speaker 01: We outlined the specific facts that we alleged in our complaint on page three of our brief, Your Honor. [00:09:23] Speaker 01: This is the reply brief because they questioned it. [00:09:28] Speaker 01: And we set each one of them out from page three all the way to page each of them with the designations of where they are in the complaints. [00:09:39] Speaker 01: And they go from page three to page eight. [00:09:42] Speaker 01: And so we put each one of them down. [00:09:45] Speaker 02: I think the district court, my understanding is the district court understood that the evidence that was produced in discovery in the DC case was available to you earlier, before the court had ruled, before there was argument in the summary judgment. [00:09:59] Speaker 02: Is that correct? [00:10:00] Speaker 02: Was it available? [00:10:02] Speaker 01: Well, some of it existed. [00:10:05] Speaker 01: We did not monitor the trial. [00:10:07] Speaker 01: The court may be aware that the trial was held that was substantial secrecy with regard to that case. [00:10:14] Speaker 01: When we did get the evidence, we presented it to him. [00:10:19] Speaker 01: It may be that we didn't get it right away. [00:10:22] Speaker 01: The court has to understand that we filed this case in 2021. [00:10:28] Speaker 01: And in two or three months, the discovery was stayed. [00:10:33] Speaker 01: We have had no discovery in the case at all. [00:10:37] Speaker 01: We had tempted to. [00:10:38] Speaker 01: We noticed depositions. [00:10:39] Speaker 01: We did interrogatories. [00:10:41] Speaker 01: We got nothing. [00:10:42] Speaker 01: Well, finally, what we got from Washington was that we had the government's complaint. [00:10:50] Speaker 01: We didn't have the specific documents. [00:10:52] Speaker 01: We finally got the specific documents. [00:10:54] Speaker 01: The specific documents right in the document [00:10:58] Speaker 01: where they share the revenue. [00:11:00] Speaker 01: And the court also subsequently showed how Apple was interested in getting in the business, which was the threat, even going so far as to hire the top search person, John Andrea, top search person at Google. [00:11:20] Speaker 01: Right. [00:11:20] Speaker 02: OK. [00:11:21] Speaker 02: Forgive me for interrupting. [00:11:22] Speaker 02: My understanding is that was not before Judge Pitts. [00:11:25] Speaker 02: And my question is, what is your strongest argument [00:11:28] Speaker 02: that it should have been or that the judge erred by not considering it? [00:11:34] Speaker 01: Obviously, it corroborated our allegations. [00:11:40] Speaker 01: It showed that they, in fact, had a combination that were working together. [00:11:46] Speaker 01: It showed that they had a contract. [00:11:48] Speaker 01: It showed that the contract specifically allowed Google to get all of the advertising from Apple. [00:11:57] Speaker 01: It showed that they had the percentage, 40% of the revenue for Apple that they received for sitting on the sidelines and doing nothing. [00:12:08] Speaker 01: We then, what we did is we tried to bring that to the court's attention. [00:12:13] Speaker 01: OK, so maybe he didn't want to see it. [00:12:16] Speaker 01: I don't know. [00:12:17] Speaker 01: But subsequently, when there was the decision, [00:12:20] Speaker 01: The court may remember that we tried to call back our notice of appeal to give him an opportunity to see the decision by Judge Maynard, which completely was contrary to everything that he said. [00:12:33] Speaker 01: But this court denied that. [00:12:37] Speaker 02: The court denied it in an order that talked about the procedure, the rule for requesting an indicative ruling. [00:12:43] Speaker 02: I don't think you followed that procedure. [00:12:45] Speaker 02: But if I'm wrong, I would like you to tell me. [00:12:49] Speaker 01: Your Honor, this was rule 12. [00:12:50] Speaker 01: Now, the judge had the, the court had the obligation to look at the facts in the light most favorable to us. [00:12:58] Speaker 01: The court was obligated to give us the inferences. [00:13:02] Speaker 01: He was given the inferences to the other side. [00:13:05] Speaker 02: Okay. [00:13:05] Speaker 02: So I think I've taken you way into your time that you wanted to save for rebuttal. [00:13:09] Speaker 02: Would you like to say that? [00:13:11] Speaker 01: Thank you, Your Honor. [00:13:12] Speaker 02: Before you go away, do you have another question at this point? [00:13:14] Speaker 02: No. [00:13:15] Speaker 02: Thank you, sir. [00:13:16] Speaker 01: Okay. [00:13:17] Speaker 01: I want to point out, just before I sit down, we had a whole series of acts as the so-called plus factors. [00:13:25] Speaker 01: Not only the meetings. [00:13:26] Speaker 02: If you're going to continue, I'm going to make them turn the clock back on. [00:13:29] Speaker 02: So it's up to you how you use your time. [00:13:32] Speaker 01: Thank you very much. [00:13:32] Speaker 01: All right. [00:13:34] Speaker 02: We'll hear from Apple. [00:13:42] Speaker 00: Good morning, your honors, may it please the court, Melissa Arbisheri on behalf of Apple. [00:13:49] Speaker 00: They made a conscious, intentional decision to bring one and only one antitrust theory. [00:13:55] Speaker 00: And it's a section one, per se, horizontal conspiracy based on an agreement by Apple not to compete in the general search and search advertising market. [00:14:06] Speaker 00: The problem for them, and as four separate district court judges found, [00:14:11] Speaker 00: is they failed to bleed the existence of that particular agreement. [00:14:16] Speaker 00: Instead, what they pointed to was a vertical distribution agreement that all knew existed that's been publicly available. [00:14:25] Speaker 00: And they asked the court to infer from that the existence of this separate secret non-compete conspiracy. [00:14:33] Speaker 00: Again, four district court judges looked at these allegations and said they were insufficient to satisfy Twombly and all of its progeny. [00:14:41] Speaker 00: On appeal, what do they do? [00:14:42] Speaker 00: As Your Honor pointed out, the vast majority of their appellate brief is devoted not to their second amended complaint, which is before the court, but instead to things that happen after the fact. [00:14:54] Speaker 00: And they did file a motion to set aside the judgment. [00:14:58] Speaker 00: The Disha Court denied that, and it denied it for two independent reasons. [00:15:03] Speaker 00: One is it was not newly discovered evidence. [00:15:06] Speaker 00: And Your Honor asked my friend about this. [00:15:08] Speaker 00: They did not challenge that ruling on appeal, and they still have no answer today. [00:15:13] Speaker 00: The fact is the JCA and the ISA [00:15:17] Speaker 00: were available after the Google trial. [00:15:20] Speaker 00: It was posted on the DOJ public website no later than November 17, 2023. [00:15:26] Speaker 00: That was months before the motion to dismiss hearing, months before the motion to dismiss order, months before the judgment in this case. [00:15:36] Speaker 00: That was an independent ground why Judge Pitts denied that post-judgment motion, not challenged on appeal and abuse of discretion regardless. [00:15:46] Speaker 00: And then they rely very heavily on Judge Mehta's decision, which came after judgment in this case. [00:15:51] Speaker 00: Again, they tried to file something in this court saying you should recall the notice of appeal. [00:15:56] Speaker 00: We said there's a procedure for that. [00:15:58] Speaker 00: It's the indicative ruling procedure. [00:16:00] Speaker 00: The court said the same thing. [00:16:01] Speaker 00: 10 months have gone by. [00:16:03] Speaker 00: They've made no effort to avail themselves of that. [00:16:06] Speaker 00: So what that means is we're here before the court on the second amended complaint, the allegations that the judges looked at, and they say nothing more. [00:16:14] Speaker 00: than the fact that there was a vertical distribution agreement, which is not subject to a per se illegality standard, and they tried to pair that with the fact that they say Apple could have competed in this market, and also CEOs met publicly at a restaurant in Bay Area during this time. [00:16:33] Speaker 00: Twombly requires far more than that, and for good reason. [00:16:37] Speaker 00: They could have pled a section two claim against Google, which was an issue before Judge Metta, [00:16:43] Speaker 00: They could have tried a rule of reason case. [00:16:46] Speaker 00: If the only thing they want to go forward on is a per se agreement not to compete, Twombly, this court's cases in musical instruments, in Kendall, in dram, in namespace say you need to plead more than simply allegations that are at best consistent with the conspiracy but don't cross the line over to plausibility. [00:17:08] Speaker 00: What is the something more they have? [00:17:10] Speaker 00: There's nothing in the complaint. [00:17:12] Speaker 00: You can look through the bullets in their reply brief, and again, all it points to are these agreements. [00:17:18] Speaker 00: Well, let's look at these agreements. [00:17:20] Speaker 00: They say in their complaint, and this is paragraphs 22, 23, 24, and 25, that what they call the pre-installation agreement and the revenue share agreement, which I think are now the ISA and the JCA, they say these have provisions that include the non-compete. [00:17:37] Speaker 00: Well, those are in the excerpts of record. [00:17:39] Speaker 00: You can look at them. [00:17:40] Speaker 00: There is no non-compete agreement in there. [00:17:43] Speaker 00: And so that argument doesn't hold up. [00:17:45] Speaker 00: Elsewhere in the complaint, they sort of suggest, well, maybe there's some other written agreement out there or some oral agreement. [00:17:51] Speaker 00: But those are purely conclusory allegations. [00:17:54] Speaker 00: There's no evidentiary facts anywhere in the complaint to support that. [00:17:58] Speaker 05: It seems like they want us to say these are two very big, important companies. [00:18:03] Speaker 05: They reached an extremely mutually beneficial agreement. [00:18:07] Speaker 05: And we should then infer from that that there's an agreement not to compete over the thing that they're agreeing over. [00:18:15] Speaker 00: I think that is what they want the court to say. [00:18:17] Speaker 00: And the problem with that is it completely blurs the line between the concerted action that's required under section one and the unilateral action that's the focus of section two. [00:18:27] Speaker 00: And it also blurs the line between per se and rule of reason analysis. [00:18:32] Speaker 00: Because what you need here is concerted action and actual agreement and meeting of the minds, a conscious commitment to stay out of the market. [00:18:40] Speaker 00: And if you look at other allegations in their complaint, they completely counter the notion and make far less plausible the idea that it's consistent with that kind of conspiracy. [00:18:51] Speaker 00: Because after all, what do they say? [00:18:52] Speaker 00: They say this is a two-decade-long conspiracy entered into in 2005. [00:18:57] Speaker 00: And yet, at paragraph 187, they say that [00:19:01] Speaker 00: as late as 2014, Apple was purportedly working to build a general search engine, nine years after they supposedly agreed that they weren't gonna compete in this market. [00:19:12] Speaker 00: And then today, they point to Judge Mehta's finding with respect to 2018, hiring away the former head of Google search, again, many years after this agreement was purportedly formed. [00:19:25] Speaker 00: And so just like other cases, musical instruments and the like, there's allegations in the complaint that counter [00:19:31] Speaker 00: the notion that there's some sort of secret non-compete here. [00:19:54] Speaker 03: Good morning. [00:19:54] Speaker 03: John Schmidt line for the Google Defendants. [00:19:57] Speaker 03: May it please the court, unless the court has questions for me specifically about the Twombly line of questions and the conspiracy allegations. [00:20:09] Speaker 02: Do you have any questions, Judge Van Dyke? [00:20:12] Speaker 03: I'm happy to address those. [00:20:14] Speaker 03: I was trial counsel. [00:20:16] Speaker 02: Judge Bres, do you have any questions? [00:20:17] Speaker 05: I was going to ask about the arbitration issues, but maybe you were going to address those. [00:20:21] Speaker 03: Yes, I was going to say I'm happy to address those, since those are specific to Google. [00:20:25] Speaker 03: If you had questions about the trial, I was trial counsel for Google. [00:20:29] Speaker 02: I don't think we do. [00:20:30] Speaker 03: I can speak to Judge Mata's opinion. [00:20:33] Speaker 03: This is, I think, a fairly straightforward application of well settled California law on the enforcement of arbitration agreements. [00:20:43] Speaker 03: Under California law, in order to find an arbitration agreement unenforceable and valid, plaintiff has to plead facts supporting two different things, procedural unconscionability, substantive unconscionability. [00:21:00] Speaker 03: Multiple courts have found [00:21:03] Speaker 03: not just in this case, but in other cases, that Google's arbitration agreements are procedurally valid. [00:21:10] Speaker 03: And the reason that they have repeatedly found those is because Google provides a very open, notorious, well-flagged opt-out provision that allows a plaintiff, within 30 days of executing the arbitration agreement, to choose to, I mean, I'm sorry, of the agreement. [00:21:29] Speaker 05: What's the story with the UCL? [00:21:31] Speaker 05: claim and its arbitrability. [00:21:33] Speaker 03: So this is the McGill rule. [00:21:36] Speaker 03: And the Ninth Circuit has found in the Blair case that the McGill rule survives preemption under the FAA. [00:21:49] Speaker 03: I think that, respectfully, I think that's wrongly decided. [00:21:53] Speaker 03: But Judge Pitts, following or applied Blair, [00:22:00] Speaker 03: to find that the UCL was not preempted and that it was valid here. [00:22:05] Speaker 02: So we're bound by our precedent. [00:22:07] Speaker 02: Can I just be clear about the argument that you're making? [00:22:09] Speaker 02: You're not telling us to deviate from precedent. [00:22:11] Speaker 03: I am not. [00:22:13] Speaker 03: I mean, we're preserving that argument for purposes, but I think there are two potential arguments. [00:22:17] Speaker 03: One is that McGill should be overruled and that I think the FAA preempts that. [00:22:22] Speaker 03: But understanding you all are bound by Blair unless you all are going to revisit that, that's decided. [00:22:27] Speaker 03: The other question is the question that was presented in the Hodges case. [00:22:31] Speaker 03: And in Hodges, the court found that notwithstanding the nature of the claim there and a plaintiff's explicit or a request for public injunctive relief under a UCL claim, the court there found just calling something public injunctive relief doesn't necessarily make it so. [00:22:50] Speaker 03: We can look beyond that. [00:22:52] Speaker 03: We can look at the nature of the claim. [00:22:56] Speaker 03: And as I understand the test for what qualifies as public injunctive relief, [00:23:01] Speaker 03: The claim, the primary purpose and effect of the claim for injunctive relief has to be this general public injunctive benefit. [00:23:13] Speaker 03: In other words, it has to be a benefit to the public at large. [00:23:16] Speaker 03: And in Hodges, the court there said, looking at the particular injunction that was sought and the language, said, [00:23:25] Speaker 03: We don't think that the primary purpose in that case is actually a public diffuse benefit, that it actually is focused on a more narrow group of people. [00:23:38] Speaker 05: Given the number of people who use your client's products, would this not fit within the test? [00:23:45] Speaker 03: Well, Your Honor, I would point you to page 250 of the record, which is their complaint, the second minute complaint, where they describe [00:23:55] Speaker 03: their claim as, the public injunctive belief claim, as bringing the claim to restore competition in the market for search advertising. [00:24:03] Speaker 03: Because that is who the plaintiff, that's their standing in the case is as a search advertiser. [00:24:12] Speaker 03: That has always been sort of the focus of this case. [00:24:16] Speaker 05: I know you think the district court should have sent this to arbitration, but your client ended up prevailing on the merits. [00:24:21] Speaker 05: So would this be an issue that needs to be reached if the district court is correct on the merits? [00:24:26] Speaker 03: It does not, because for the same reason that the claim should be dismissed up for Sherman Act, Cartwright Act, it's the exact same conspiracy claim. [00:24:37] Speaker 03: So you can certainly affirm [00:24:39] Speaker 03: all of those claims, dismissal of those, and not reach this issue of whether the carve out for the UCL claim was erroneous in our judgment. [00:24:50] Speaker 02: That would be an affirmance across the board. [00:24:53] Speaker 03: Correct, Your Honor. [00:24:53] Speaker 03: We raise this as an alternative ground. [00:24:56] Speaker 02: I appreciate that. [00:24:57] Speaker 02: Judge Van Dyke has a question. [00:24:58] Speaker 04: Yeah, so I'm trying to think through if you are correct in your McGill argument that this should go to arbitration. [00:25:09] Speaker 04: than in the district court was wrong on that one narrow issue, then how could we just affirm that? [00:25:16] Speaker 04: I understand that you'd rather win now than perhaps win later in arbitration on that claim, right? [00:25:23] Speaker 04: So I can understand practically why you might just prefer to, but can we do that? [00:25:27] Speaker 04: Can we just affirm the arbitration? [00:25:30] Speaker 04: Can we affirm the district court's decision if we think the district court was wrong on the McGill issue? [00:25:37] Speaker 03: I think you can. [00:25:38] Speaker 03: Why is that? [00:25:41] Speaker 03: Does a procedural matter? [00:25:43] Speaker 03: We move to dismiss on two independent grounds. [00:25:46] Speaker 03: We move to dismiss on the arbitration grounds and we move to dismiss on sort of 12b6 grounds. [00:25:54] Speaker 03: And we think those are alternative [00:25:57] Speaker 04: But would they be usurping basically the authority of the arbitrator by, you know, in theory you could do that in any case, you know, assume for a second that claims clearly should be arbitrated, right? [00:26:07] Speaker 04: And so you'd say to the district court, we think you should send these to arbitration, but secondly, if you don't think you should send them to arbitration, we think you should dismiss these claims for some other reason. [00:26:17] Speaker 04: And then the court would just, I'm trying to think of why a court could ever just say, well, we're just going to dismiss them [00:26:25] Speaker 04: and ignore that they should go to arbitration, because if they're supposed to go to arbitration, it's not your job to decide as the court to dismiss them. [00:26:32] Speaker 04: It's the arbitrator's. [00:26:34] Speaker 04: The arbitrator might disagree and think they shouldn't be dismissed, right? [00:26:38] Speaker 03: The Google arbitration agreement does not have a delegation clause that delegates the question of arbitrability to the arbitrator. [00:26:49] Speaker 03: So I think the district court is basically right. [00:26:51] Speaker 04: But if you think that the district court [00:26:54] Speaker 04: was wrong, and so it is for courts to decide whether it's arbitrable. [00:26:59] Speaker 04: But if you think it's arbitrable, you're still usurping, because you're deciding that you're killing the issue as the court. [00:27:07] Speaker 04: And in theory, I don't know what, they don't want to go to arbitration, but in theory, they could prevail in arbitration on that claim, and they would be losing. [00:27:16] Speaker 04: So if the choice is losing before us, prevailing in arbitration, I don't think they would choose to say, [00:27:22] Speaker 04: Yeah, it should be arbitrated, but you should just go ahead and decide it yourself. [00:27:26] Speaker 04: I don't understand why we'd ever, how we'd get to the question, that other question. [00:27:30] Speaker 03: I think the district court does have the discretion to assume for the moment arbitrability and just really dig in on the merits of the 12b6. [00:27:41] Speaker 04: That's what I'm starting with. [00:27:42] Speaker 04: I'm kind of, how could that be? [00:27:45] Speaker 04: Because if it's, I guess you're saying the 12b6 would be part of the, [00:27:51] Speaker 04: of the arbitrability, you can do a motion to dismiss an arbitration, right? [00:27:58] Speaker 04: The case could go to arbitration, and then before the arbitrator, you could do something like a motion to dismiss and say this claim should be dismissed. [00:28:09] Speaker 04: So I'm not sure that deciding whether threshold question, a delegation deciding whether something's arbitrable is the same thing as saying a claim should be dismissed because it has no merit. [00:28:20] Speaker 03: Again, I think the question is, can the district court with two independent grounds for dismissal, which is what we asked for, one through arbitration, one through on the merits, could the court take up both of those or only the merits 12b6? [00:28:37] Speaker 03: And we think the court can, but I understand your question. [00:28:41] Speaker 04: And you think it can because you're the one who gets to decide, you're the one that can enforce the arbitration because you were sued. [00:28:49] Speaker 04: And so you're essentially would be waiving arbitration. [00:28:51] Speaker 04: Correct. [00:28:52] Speaker 04: And saying, just this rule in our favor. [00:28:54] Speaker 04: OK. [00:28:55] Speaker 04: All right. [00:28:56] Speaker 02: You're well over your time. [00:28:58] Speaker 02: Thank you. [00:28:58] Speaker 02: Hang on. [00:28:59] Speaker 02: I just heard a little noise. [00:29:00] Speaker 05: Just one quick question. [00:29:01] Speaker 05: On this question, because it was part of the district court's judgment, does it matter that your client didn't cross appeal on this issue? [00:29:08] Speaker 05: You did raise it in the briefs and say, well, I think technically the district court should have sent this to arbitration. [00:29:13] Speaker 05: But does that matter in our consideration? [00:29:15] Speaker 03: I think not, because I think [00:29:19] Speaker 03: I've always understood that you need to cross-appeal if you are asking for a reversal of a judgment below. [00:29:28] Speaker 03: And I think here, because the court dismissed and ruled in our favor, we're not asking for a reversal of the judgment. [00:29:37] Speaker 03: We're offering another independent grounds for affirmance. [00:29:42] Speaker 03: I hope that makes sense. [00:29:43] Speaker 03: Yeah, no, thank you. [00:29:45] Speaker 02: Thank you. [00:29:45] Speaker 03: Thank you very much. [00:29:58] Speaker 01: Thank you, your honor. [00:29:59] Speaker 01: May it please the court. [00:30:01] Speaker 01: I want to make sure that the court understands that our allegations in the complaint prior to the decision or anything else are set out in detail from page three all the way to page eight of our responding brief. [00:30:19] Speaker 01: Secondly, I would like to point out that of course we're private plaintiffs, so we don't have [00:30:25] Speaker 01: the discovery tools like the FBI taking witnesses or grand juries or pre-depositions. [00:30:35] Speaker 01: We don't have any of that. [00:30:37] Speaker 01: And as a matter of fact, we were stayed on all of them. [00:30:41] Speaker 01: We would say that the decision by Judge Mehta, which makes this violation, these violations quite clear, is that at least as a matter of procedure that it corroborates what we allege. [00:30:55] Speaker 01: And therefore, it can be shown that what they did, what we allege, when they had the contract that shared profits, the contract that gave everything to Google, the statements by the court that they charged super competitive prices because they had a monopoly. [00:31:19] Speaker 01: And I briefly wanted to say, with regard to the arbitration, this is a monopoly. [00:31:26] Speaker 01: And we were able to have our own affidavit. [00:31:29] Speaker 01: It's a take it or leave it situation. [00:31:31] Speaker 01: You have nothing to say about it. [00:31:36] Speaker 01: And in addition, with regard to the McGill case, the judge below said, yes, you are asking for an injunction that would benefit everyone. [00:31:47] Speaker 01: You don't have the precipitatory violation, the combination, or the conspiracy. [00:31:54] Speaker 01: Well, now we're showing, yeah, well, we do have that. [00:31:57] Speaker 01: And I would point out that it always has been the policy of the Ninth Circuit that you don't waive your right to a trial before there's a dispute, that the pre-dispute [00:32:15] Speaker 01: statement that if you don't opt out, you don't get a trial is contrary to the policy of this circuit. [00:32:23] Speaker 05: I don't follow this. [00:32:24] Speaker 05: I mean, it seems like you were presented, if you're talking about the arbitration agreement, you were presented, your client was presented with the ability to opt out of it. [00:32:31] Speaker 05: So you could have opted out. [00:32:35] Speaker 01: You say that we could have opted out, and then what? [00:32:38] Speaker 01: And then where would we go? [00:32:40] Speaker 01: And then with Google? [00:32:42] Speaker 01: Does Google say that, oh, they're going to take us? [00:32:47] Speaker 01: We were excluded from 94% of the market. [00:32:52] Speaker 01: Microsoft tried to come in. [00:32:54] Speaker 01: They couldn't get in. [00:32:56] Speaker 04: I think my colleague is saying you could opt out and still go with Google. [00:33:03] Speaker 04: This isn't a situation where you'd opt out and not be able to advertise with Google. [00:33:07] Speaker 04: You could opt out and still advertise with Google. [00:33:10] Speaker 01: But there's no available. [00:33:12] Speaker 01: What are you going to use? [00:33:14] Speaker 01: The rest of the market is 2%, 3%. [00:33:18] Speaker 01: If we opted out, we would be out of 94%. [00:33:21] Speaker 01: And Microsoft itself, the largest company in the country, was unable to break through even though it was willing to offer $10 to $15 billion and had invested in being over $100 billion. [00:33:36] Speaker 01: Thank you very much, Your Honor. [00:33:37] Speaker 02: Thank you all for your argument. [00:33:39] Speaker 02: We'll take that case under advisement.