I beforehand summarized this case:
Dreamstime sells inventory pictures. It had favorable natural indexing that made it some cash, and it purchased Adwords promoting that made it more cash. Dreamstime was a sufficiently big participant that it acquired private assist from Google, together with precise responses to its e-mail inquiries. However over time, its natural indexing declined and so did its conversion fee on promoting. Thus, Dreamstime sued Google on its unsubstantiated perception that Google was attempting to screw it over.
The case survived two motions to dismiss (1, 2), solely to crumble fully on abstract judgment. Now, it’s the Ninth Circuit’s flip to inform the plaintiff to pound sand.
Dreamstime appealed its Sherman Act Sec. 2 declare, alleging that Google willfully monopolized a market. However which market? Dreamstime now says it’s complaining concerning the on-line search market; however the appeals panel concludes that Dreamstime repeatedly insisted to the decrease court docket that it was complaining ONLY concerning the on-line search advert market.
Dreamstime’s allegations will not be compelling, even a bit of, with respect to its monopolization claims. The court docket says:
4 of the anticompetitive behaviors alleged by Dreamstime relate to purported mistreatment of Dreamstime as a Google buyer: (1) rigging the commercial public sale bidding, (2) selectively implementing its phrases and guidelines, (3) eradicating Dreamstime’s cellular utility, and (4) favoring contractual inventory picture companions over Dreamstime and smaller inventory picture web sites. These allegations fall in need of alleging anticompetitive conduct within the on-line search promoting market. Google harming one in every of its personal on-line search promoting prospects doesn’t exclude its opponents within the on-line search promoting market, i.e., Yahoo! and Bing….Certainly, Google’s alleged mistreatment of shoppers could lead harmed prospects, akin to Dreamstime, to spend extra on paid search alternatives with Google’s opponents
The court docket continues:
three of the alleged anticompetitive behaviors relate to Dreamstime’s efficiency in Google’s unpaid, natural search outcomes: (1) demoting Dreamstime’s natural search outcomes on Google; (2) elevating inferior inventory picture web sites above Dreamstime in search outcomes; and (3) misappropriating Dreamstime’s licensed pictures and displaying them on Google Photos….these allegations may very well be taken to point out hurt to Dreamstime within the on-line search marketplace for pictures. Nonetheless, Dreamstime disavowed any reliance on the speculation that Google is harming competitors within the on-line search marketplace for pictures…
Dreamstime has not plausibly alleged that its diminished efficiency in Google’s search outcomes has inhibited different on-line search advertisers from accessing inventory pictures from anybody aside from Dreamstime. Nor, because the district court docket famous, has Dreamstime alleged that Google bars its inventory picture companions from contracting with different on-line search advertisers
This case by no means ought to have been introduced, not to mention survive two motions to dismiss. As I wrote concerning the first movement to dismiss:
that is absolutely a irritating ruling for Google. Dreamstime is sort of definitely going to lose this case ultimately. Nonetheless, by greenlighting the case to the subsequent stage and opening up discovery–together with investigations for a dismissed declare–the choose ensured that the events will spend a variety of money and time reaching the inevitable denouement. Even when the choose technically acquired the authorized commonplace proper for a movement to dismiss, that is a kind of conditions the place Google absolutely wished the choose would demand extra rigorous factual assist within the grievance. I’m assured this choose will eviscerate Dreamstime’s case when it fails to ship on its allegations with credible and admissible proof, however it’s going to take a variety of sources from each events to show that adverse.
When Decide Alsup lastly dismissed the case, I wrote:
This case took 2.5 years, intensive discovery, and an ever-shifting plaintiff’s concept of the case earlier than Decide Alsup lastly shut it down. Decide Alsup could have skillfully filleted this nothingburger case, however his strategy price everybody additional money and time.
To me, this lawsuit highlights some structural issues with antitrust litigation. Plaintiffs can all the time discover SOMETHING to bitch about, and plaintiff-slanted antitrust doctrines typically lets that bitching fester in court docket far too lengthy–on this case, 4 years–earlier than reaching the apparent denouement.
Case Quotation: Dreamstime.com, LLC v. Google LLC, 2022 WL 17420930 (ninth Cir. Dec. 6, 2022)