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Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 1 of 20
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`David C. Kiernan (State Bar No. 215335)
`dkiernan@jonesday.com
`Craig E. Stewart (State Bar No. 129530)
`cestewart@jonesday.com
`Lin W. Kahn (State Bar No. 261387)
`lkahn@jonesday.com
`JONES DAY
`555 California Street, 26th Floor
`San Francisco, California 94104
`Telephone: +1.415.626.3939
`Facsimile: +1.415.875.5700
`
`Catherine T. Zeng (State Bar No. 251231)
`czeng@jonesday.com
`JONES DAY
`1755 Embarcadero Road
`Palo Alto, California 94303
`Telephone: +1.650.739.3939
`Facsimile: +1.650.739.3900
`
`Attorneys for Defendants
`ALPHABET INC. and GOOGLE LLC
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`DREAM BIG MEDIA, INC., GETIFY
`SOLUTIONS, INC., and SPRINTER
`SUPPLIER LLC, Individually and on Behalf
`of all Others Similarly Situated,
`
`Plaintiffs,
`
`v.
`
`ALPHABET INC. and GOOGLE LLC,
`
`Defendants.
`
`Case No. 4:22-cv-02314-JSW
`
`REPLY IN SUPPORT OF
`DEFENDANTS’ MOTION TO
`DISMISS
`
`September 30, 2022
`Date:
`9:00 a.m.
`Time:
`Judge: Hon. Jeffrey S. White
`Date Action Filed: April 13, 2022
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`REPLY ISO MOTION TO DISMISS
`Case No. 22-CV-2314-JSW
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`Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 2 of 20
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION .......................................................................................................................... 1
`
`ARGUMENT .................................................................................................................................. 2
`
`I.
`
`II.
`
`PLAINTIFFS HAVE FAILED TO STATE A TYING CLAIM. ....................................... 2
`
`PLAINTIFFS’ OTHER ANTITRUST CLAIMS LIKEWISE FAIL. ................................. 7
`
`A.
`
`B.
`
`C.
`
`Plaintiffs Have Not Stated a Bundling Claim. ........................................................ 7
`
`Plaintiffs Have Not Stated An Exclusive Dealing Claim........................................ 7
`
`Plaintiffs Have Not Stated a Monopoly Leveraging Claim. ................................... 8
`
`III.
`
`PLAINTIFFS HAVE NOT VALIDLY PLED RELEVANT PRODUCT
`MARKETS OR MARKET POWER. ................................................................................. 9
`
`A.
`
`B.
`
`Plaintiffs’ Relevant Market Allegations are Legally Insufficient. .......................... 9
`
`Plaintiffs Fail to Adequately Allege Market Power .............................................. 11
`
`PLAINTIFFS HAVE FAILED TO STATE A CLAIM UNDER THE
`CALIFORNIA UNFAIR COMPETITION LAW. ........................................................... 14
`
`THE COURT NEED NOT ADDRESS AT THIS JUNCTURE GOOGLE’S
`ACQUISITIONS OR THE STATUTE OF LIMITATIONS. ........................................... 14
`
`IV.
`
`V.
`
`CONCLUSION ............................................................................................................................. 15
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`Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 3 of 20
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`CASES
`
`TABLE OF AUTHORITIES
`
`Page
`
`Abcor Corp. v. AM Int’l, Inc.,
`916 F.2d 924 (4th Cir. 1990) ..................................................................................................... 9
`
`AliveCor, Inc. v. Apple Inc.,
`No. 21-CV-03958-JSW, 2022 WL 833628 (N.D. Cal. Mar. 21, 2022) .................................. 12
`
`Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP,
`592 F.3d 991 (9th Cir. 2010) ..................................................................................................... 7
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................. 2
`
`Athos Overseas, Ltd. v. YouTube, Inc.,
`No. 1:21-CV-21698, 2022 WL 910272 (S.D. Fla. Mar. 29, 2022) ........................................... 6
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................. 2
`
`Cascade Health Sols. v. PeaceHealth,
`515 F.3d 883 (9th Cir. 2008) ................................................................................................. 4, 7
`
`Christou v. Beatport, LLC,
`849 F. Supp. 2d 1055 (D. Colo. 2012) .................................................................................... 14
`
`Cost Mgmt. Servs., Inc. v. Washington Nat. Gas Co.,
`99 F.3d 937 (9th Cir. 1996) ........................................................................................... 8, 12, 13
`
`Dang v. San Francisco Forty Niners,
`964 F. Supp. 2d 1097 (N.D. Cal. 2013) .................................................................................. 11
`
`Datel Holdings Ltd. v. Microsoft Corp.,
`712 F. Supp. 2d 974 (N.D. Cal. 2010) ...................................................................................... 4
`
`Delano Farms Co. v. California Table Grape Comm’n,
`623 F. Supp. 2d 1144 (E.D. Cal. 2009) ................................................................................... 11
`
`Digidyne Corp. v. Data Gen. Corp.,
`734 F.2d 1336 (9th Cir. 1984) ................................................................................................. 14
`
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`Dominick v. Collectors Universe, Inc.,
`No. 2:12-CV-04782-ODW, 2012 WL 4513548 (C.D. Cal. Oct. 1, 2012) .............................. 13
`
`Eatoni Ergonomics, Inc. v. Research in Motion Corp.,
`486 F. App’x 186 (2d Cir. 2012) .............................................................................................. 9
`
`Fed. Trade Comm’n v. Facebook, Inc.,
`560 F. Supp. 3d 1 (D.D.C. 2021) .............................................................................................. 3
`
`Gumwood HP Shopping Partners, L.P. v. Simon Prop. Grp., Inc.,
`No. 3:11-CV-268 JD, 2013 WL 3214983 (N.D. Ind. Mar. 13, 2013) .................................... 14
`
`Hannah’s Boutique, Inc. v. Surdej,
`No. 13 C 2564, 2013 WL 4553313 (N.D. Ill. Aug. 28, 2013) ................................................ 14
`
`Illinois Tool Works Inc. v. Indep. Ink, Inc.,
`547 U.S. 28 (2006) .................................................................................................................. 14
`
`Kellam Energy, Inc. v. Duncan,
`668 F. Supp. 861 (D. Del. 1987) ............................................................................................... 6
`
`Klein v. Facebook, Inc.,
`No. 20-CV-08570-LHK, 2022 WL 141561 (N.D. Cal. Jan. 14, 2022)............................. 10, 12
`
`Mortg. Elec. Registration Sys., Inc. v. Koeppel,
`2020 WL 1233925 (N.D. Cal. Mar. 13, 2020) ........................................................................ 11
`
`Nat’l Football League’s Sunday Ticket Antitrust Litig.,
`933 F.3d 1136 (9th Cir. 2019) ................................................................................................... 9
`
`Ohio v. Am. Express Co.,
`138 S. Ct. 2274 (2018) ............................................................................................................ 13
`
`Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,
`555 U.S. 438 (2009) .................................................................................................................. 9
`
`Paladin Assocs., Inc. v. Montana Power Co.,
`328 F.3d 1145 (9th Cir. 2003) ............................................................................................... 5, 6
`
`Ploss v. Kraft Foods Grp., Inc.,
`197 F. Supp. 3d 1037 (N.D. Ill. 2016) .................................................................................... 14
`
`RealPage, Inc. v. Yardi Sys., Inc.,
`852 F. Supp. 2d 1215 (C.D. Cal. 2012) ........................................................................ 4, 11, 13
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`Rumble, Inc. v. Google LLC,
`No. 21-CV-00229-HSG, 2022 WL 3018062 (N.D. Cal. July 29, 2022) .................................. 9
`
`Sambreel Holdings LLC v. Facebook, Inc.,
`906 F. Supp. 2d 1070 (S.D. Cal. 2012) ................................................................................. 3, 4
`
`Smith v. eBay Corp.,
`No. C 10-03825 JSW, 2012 WL 27718 (N.D. Cal. Jan. 5, 2012) ............................................. 4
`
`Sumotext Corp. v. Zoove, Inc,
`No. 16-CV-01370-BLF, 2020 WL 6544410 (N.D. Cal. Nov. 6, 2020) .................................. 11
`
`Suture Exp., Inc. v. Cardinal Health 200, LLC,
`963 F. Supp. 2d 1212 (D. Kan. 2013) ....................................................................................... 4
`
`Teradata Corp. v. SAP SE,
`No. 18-CV-03670-WHO, 2018 WL 6528009 (N.D. Cal. Dec. 12, 2018) .............................. 12
`
`Thompson v. Metro. Multi-List, Inc.,
`934 F.2d 1566 (11th Cir. 1991) ............................................................................................... 12
`
`United Energy Trading, LLC v. Pac. Gas & Elec. Co.,
`200 F. Supp. 3d 1012 (N.D. Cal. 2016) .................................................................................. 12
`
`Universal Hosp. Servs., Inc. v. Hill-Rom Holdings, Inc.,
`No. CIV.A. SA-15-CA-32, 2015 WL 6994438 (W.D. Tex. Oct. 15, 2015) ............................. 4
`
`Webkinz Antitrust Litig.,
`695 F. Supp. 2d 987 (N.D. Cal. 2010) .................................................................................... 11
`
`Webkinz Antitrust Litig.,
`No. C 08-1987 RS, 2010 WL 4168845 (N.D. Cal. Oct. 20, 2010) ......................................... 12
`
`Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd.,
`513 F. Supp. 1100 (E.D. Pa. 1981) ........................................................................................... 9
`
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`REPLY ISO MOTION TO DISMISS
`Case No. 22-CV-2314-JSW
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`INTRODUCTION
`Plaintiffs’ opposition confirms that this case should be dismissed. Rather than address
`Google’s arguments, plaintiffs largely echo the complaint’s allegations without any attempt to
`defend why those allegations are not fatally deficient. Where plaintiffs do try to respond, their
`response proves that they have not stated a claim. The complaint fails to allege necessary
`elements of their legal theories and is bereft of basic facts that should be fully within plaintiffs’
`knowledge, demonstrating that dismissal is proper.
`In support of their tying claim, plaintiffs argue that Google’s Terms of Service prohibit
`them from “embed[ing]” or “overlay[ing]” non-Google content onto a Google digital mapping
`product or using non-Google “overlays” with Google products. Opp. 6, 7, 11. This argument
`fails for three reasons. First, as the courts have held, a seller’s restrictions on how its own content
`is used or displayed is not a tying arrangement. Second, plaintiffs have not alleged facts showing
`that Google imposes any such restriction. The Terms of Service expressly do not prohibit
`embedding or overlaying non-Google content onto a Google Map. Third, plaintiffs allege no
`facts showing that they were coerced into purchasing any Google mapping API services even
`under their own theory. Their argument (id. at 11) that the Terms of Service “technically and
`practically” forced them into using Google’s mapping API services rather than a competitor’s is
`nothing more than a legal conclusion, unsupported by any facts, and thus not entitled to be taken
`as true.
`Plaintiffs likewise offer no valid defense of their flawed bundling, exclusive dealing, and
`monopoly leveraging claims. They again recite their complaint’s allegations but fail to address
`the fatal defects in those allegations. Plaintiffs have no bundling claim because they do not allege
`that Google bundled together two separate products for a single price; they have no exclusive
`dealing claim because they do not allege that Google required plaintiffs or other developers to
`deal exclusively with Google; and they have no monopoly leveraging claim because that claim is
`derivative of the others and fails in tandem.
`As for market definition and market share, plaintiffs argue that the relevant product
`markets are “Maps APIs, Routes APIs, and Places APIs” because those services are allegedly
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`separate and not substitutes for “each other.” Id. at 9. But that does not allege a valid relevant
`market. It’s akin to saying that Cheerios and milk are relevant product markets because they are
`not substitutes for each other. The issue is not the separateness of the two products but whether
`other products are substitutes for them (i.e., what breakfast cereals or other breakfast foods
`compete against Cheerios). Thus, to validly allege a relevant market, plaintiffs were required to
`identify whether other products or services are economic substitutes for any of the allegedly
`separate API services. Plaintiffs’ opposition (like their complaint) is silent on that question. And,
`even if “Maps APIs, Routes APIs, and Places APIs” were valid relevant markets, plaintiffs do not
`allege anything about Google’s share of those purported markets. Instead, they point only to
`Google’s alleged share of a purported “business-to-business” market, about which the complaint
`alleges virtually nothing, and certainly not enough to show that Google’s asserted share of that
`market is in any way relevant to the claimed “Maps APIs, Routes APIs, and Places APIs”
`markets.
`To state a valid claim, plaintiffs were required to offer “more than labels and
`conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). And no weight is afforded
`to “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by
`mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because that is all
`plaintiffs offer, their complaint should be dismissed.
`ARGUMENT
`PLAINTIFFS HAVE FAILED TO STATE A TYING CLAIM.
`Plaintiffs do not argue that Google refuses to sell one or more of its mapping API services
`unless the customer also buys some other Google mapping API service. Any customer may
`purchase any Google mapping API service without purchasing another Google API service.
`Plaintiffs also do not argue that Google refuses to sell any Google mapping API service unless the
`customer refrains from purchasing digital mapping API services from a Google competitor.
`Again, customers are free to purchase both Google mapping API services and non-Google
`mapping API services.
`Plaintiffs argue only that Google’s Terms of Service restrict the manner in which Google
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`I.
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`and non-Google mapping content may be used together on a customer’s website or application.
`According to plaintiffs, these restrictions prevented customers from “embedding” or “overlaying”
`non-Google content onto a Google map, which purportedly forced them to purchase multiple
`Google mapping API services when they wanted just one of them. Opp. 2, 6, 11. This argument
`fails for three reasons.
`First, it is not a tying arrangement for a company to prescribe the content of its own
`product or how that content is displayed to consumers, even if the result is to limit use of
`competitors’ products. In Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1082
`(S.D. Cal. 2012), for example, the court dismissed a claim that Facebook engaged in unlawful
`tying when it specified that Facebook users could not run the plaintiff’s software application on
`their Facebook accounts. The plaintiff’s application permitted the display of advertising on the
`user’s Facebook page, and the plaintiff argued that Facebook prohibited it because it competed
`with Facebook’s own sale of advertising. Id. at 1073–74. According to the plaintiff, this was an
`unlawful “negative tie” in which users were required to agree not to use the plaintiff’s competing
`services. The court rejected that claim on the ground that Facebook “has a right to dictate the
`terms on which it will permit its users to take advantage of the Facebook social network.” Id. at
`1080. No tie existed because Facebook had not “precluded its users from maintaining Sambreel
`applications for use on other websites,” but had only required “its users [to] disable certain
`products before using its website.” Id.; see also id. at 1075 (“Facebook has a right to control its
`own product, and to establish the terms with which its users, application developers, and
`advertisers must comply in order to utilize this product.”); accord Fed. Trade Comm’n v.
`Facebook, Inc., 560 F. Supp. 3d 1, 29 (D.D.C. 2021) (granting motion to dismiss claim that
`Facebook had violated antitrust laws by (1) prohibiting third-party apps that worked on Facebook
`from linking to, integrating with, or promoting a competing social network, and (2) prohibiting
`app developer from using Facebook API services to export Facebook user data to competing
`social network).
`The same is true here. Just as in Sambreel, plaintiffs argue that it is a tying violation for
`Google to prevent them from “overlay[ing]” their own content or the content of other third parties
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`on Google’s content. Opp. 7. That contention fails for the same reason it failed in Sambreel.
`Even if plaintiffs were correct that overlaying content on a Google Map is prohibited, and they
`are not, that would not mean that Google has prohibited plaintiffs or anyone else from purchasing
`or using a competitor’s mapping products. It would mean only that Google has specified how its
`mapping API services may be displayed to end users. Having created a product that derives its
`value from how it displays information to end-user consumers (e.g., a digital map, directions,
`information about places), Google is entitled to “establish the terms with which its users,
`application developers, and advertisers must comply in order to utilize th[e] product.” Sambreel,
`906 F. Supp. 2d at 1075.
`Plaintiffs argue in a footnote that Facebook did not preclude users from using competitors’
`applications outside of Facebook. Opp. 13 n.5. But that is equally true here because Google’s
`Terms of Service do not preclude developers from purchasing or using competing mapping API
`services. Plaintiffs’ cases are not to the contrary, because none of them involved a company
`merely seeking to control the content or presentation of its content in its own product.1
`Second, plaintiffs have not alleged facts showing that Google in fact prohibits them or any
`other user from “embedding” or “overlaying” non-Google content on a Google Map. Nor can
`they. The Google Terms of Service do not impose any such restriction. By their express
`language, they are addressed only to using Google content with or near a non-Google Map. ECF
`1, ¶ 157 (“No Use With Non-Google Maps. To avoid quality issues and/or brand confusion,
`Customer will not use the Google Maps Core Services with or near a non-Google Map in a
`Customer Application.”). Plaintiffs highlight clause (iii) in the examples in the Terms of Service,
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`1 Cascade Health Sols. v. PeaceHealth, 515 F.3d 883 (9th Cir. 2008) (alleged tie between primary
`care medical services and tertiary services); Smith v. eBay Corp., No. C 10-03825 JSW, 2012 WL
`27718, at *6 (N.D. Cal. Jan. 5, 2012) (payment mechanism for on-line auction); Datel Holdings
`Ltd. v. Microsoft Corp., 712 F. Supp. 2d 974 (N.D. Cal. 2010) (memory cards for video games);
`RealPage, Inc. v. Yardi Sys., Inc., 852 F. Supp. 2d 1215 (C.D. Cal. 2012) (software application
`and cloud hosting service); Suture Express, Inc. v. Cardinal Health 200, LLC, 963 F. Supp. 2d
`1212 (D. Kan. 2013) (specialized sutures and general sutures); Universal Hosp. Servs., Inc. v.
`Hill-Rom Holdings, Inc., No. CIV.A. SA-15-CA-32-FB, 2015 WL 6994438 (W.D. Tex. Oct. 15,
`2015) (hospital beds and other types of medical equipment).
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`which refers to “link[ing]” a Google Map to non-Google Maps content or a non-Google map. Id.
`But embedding or overlaying non-Google content on a Google Map itself does not fall within this
`example because it is not “linking” the Google Map to other maps or mapping content. Plaintiffs
`allege no facts showing that Google has ever applied the Terms of Service in that manner, against
`plaintiffs or any other user.
`Third, plaintiffs have not alleged facts showing that any of them was coerced to make (or
`refrain from making) any purchase even under their own theory. Plaintiffs assert that the “main
`tying product” is Google Maps API services, and that the tied products are Routes and Places API
`services. Opp. 11. To validly allege a tie under this theory, plaintiffs were required to plead facts
`showing at a minimum that they (1) purchased a Maps API service from Google, (2) wanted to
`purchase a Routes or Places API service from a competitor to use along with the Google Maps
`API service but (3) were forced to buy the Routes or Places API service from Google instead (or
`to refrain from buying it from a competitor). Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d
`1145, 1159 (9th Cir. 2003) (tying requires “that the defendant . . . coerced or forced its customer
`to buy the tied product in order to obtain the tying product.”).
`As shown in Google’s motion (at 3–4, 8), plaintiffs plead no facts showing that was true
`of any of them. Dream Big Media alleges that it paid for a “Distance Matrix API” (a Routes API
`service), but does not allege that it was coerced into doing so by having purchased a Google Maps
`API service. ECF 1, ¶ 29. Indeed, it does not allege that it purchased any Google Maps API
`service at all. For all the complaint reveals, Dream Big Media thus purchased the alleged tied
`product without purchasing the alleged tying product. That is the opposite of plaintiffs’ tying
`theory. If a customer buys the tied product without buying the tying product, it cannot claim that
`the tying product had anything to do with that purchase, let alone that it coerced the purchase.
`And, even if Dream Big Media had purchased a Google Maps API service, it alleges no facts
`showing that this purchase coerced Dream Big Media into its alleged purchase of the Distance
`Matrix API, as plaintiffs’ theory requires. The absence of these facts is fatal to plaintiffs’ claim.
`The complaint is similarly deficient as to the other plaintiffs. Neither of them identifies
`which Google API services it purchased, let alone that it purchased a Google Maps API service.
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`Case No. 22-CV-2314-JSW
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`Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 11 of 20
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`Nor do they allege that any purchase of a Google Maps API Service coerced them into purchasing
`another Google API service or to refrain from purchasing from a competitor. See Mot. 3–4.
`Plaintiffs argue that, “technically and practically,” customers that wished to use Google
`Routes or Places API services without using Google Maps API services could not do so. Opp. 2,
`6, 11. This argument—which posits that the tying products are Routes and Places API services
`rather than Maps API services—also fails. If in fact any plaintiff was “technically” or
`“practically” coerced by a Google Routes or Places API services purchase into also purchasing
`Google Maps API services, plaintiffs must identify what Google Routes or Places API service
`that plaintiff purchased, allege that the plaintiff was forced to purchase Google Maps API services
`that it did not want to purchase, and allege the technical, practical, or other factors that created
`such coercion. Paladin, 328 F.3d at 1159. Plaintiffs’ complaint contains none of this.
`Plaintiffs offer no explanation for their failure to allege the required facts, all of which are
`in their knowledge. Nor do they suggest that they can amend their complaint to cure the
`deficiencies. The Court should accordingly dismiss their complaint with prejudice.
`Plaintiffs also offer no valid explanation for their failure to allege that Getify Solutions or
`Sprinter Supplier ever paid for any Google mapping API services. Plaintiffs do not claim that
`either plaintiff in fact made such payments. They argue only (in their opposition to Google’s
`motion to strike) that the two companies’ free credits were depleted more rapidly when Google
`raised the price for calls on its API services. ECF 34, p. 2. But that is simply an assertion that
`Google reduced the amount of free services it offered. It does not mean that either plaintiff
`purchased anything from Google, let alone that it was coerced into making any other purchase, as
`a tying claim requires. “Acceptance of a free service does not constitute an impermissible tie-in.”
`Athos Overseas, Ltd. v. YouTube, Inc., No. 1:21-CV-21698, 2022 WL 910272, at *3 (S.D. Fla.
`Mar. 29, 2022); Kellam Energy, Inc. v. Duncan, 668 F. Supp. 861, 881 (D. Del. 1987) (“Merely
`accepting something provided for free does not constitute an impermissible tie-in.”).
`Plaintiffs’ other tying arguments also fail. They assert that Google engaged in “positive
`tying” by “unilaterally add[ing] on” additional API services when a customer orders a Google
`Maps API service. Opp. 7. But they do not respond to Google’s showing (Mot. 6–7), that none
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`REPLY ISO MOTION TO DISMISS
`Case No. 22-CV-2314-JSW
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`Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 12 of 20
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`of them alleges this happened to them, and they do not identify any other customer to whom it
`supposedly did happen. Nor do they respond to the point that, according to their own allegations,
`a customer incurs no charge for an API service unless the customer’s application is programmed
`to call on the service and calls are actually made. See Mot. 7. Thus even if Google had “added
`on” an API service, no customer was required to actually use it or pay anything for it. Plaintiffs
`offer nothing to the contrary.
`II.
`PLAINTIFFS’ OTHER ANTITRUST CLAIMS LIKEWISE FAIL.
`A.
`Plaintiffs Have Not Stated a Bundling Claim.
`Plaintiffs argue that Google “bundle[s]” its mapping API services with Google Cloud
`Platform (“GCP”) because customers wishing to use an API service must have a GCP account.
`Opp. 15. But plaintiffs do not allege that having a GCP account obligated them or any other
`customer to purchase or use any GCP product or service. Instead, they argue that the GCP
`account was used to create an “API key,” which was then used to track calls to the API services
`for billing purposes. Opp. 15; ECF 1, ¶ 6. Plaintiffs thus allege only that they used API services
`and had a billing account, not that Google sold them separate services for a single price. Cascade
`Health Sols. v. PeaceHealth, 515 F.3d 883, 894 (9th Cir. 2008) (“Bundling is the practice of
`offering, for a single price, two or more goods or services that could be sold separately.”).
`Plaintiffs argue without any supporting facts that the charge for the GCP account was “baked
`into” the price for the API calls. Opp. 15. But even if that were true, it would not mean that
`Google was bundling anything, any more than any company engages in bundling merely by not
`charging separately for its billing costs associated with the sale of its products or services.
`B.
`Plaintiffs Have Not Stated An Exclusive Dealing Claim.
`Plaintiffs do not dispute that an exclusive dealing claim requires an agreement that
`“prevents the buyer from purchasing a given good from any other vendor.” Allied Orthopedic
`Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991, 996 (9th Cir. 2010). Plaintiffs do
`not point to any such agreement between any of them and Google. They argue that they were
`“force[d] . . . to entirely enter Google Maps’ ecosystem” because they “can only use Google
`Maps’ Maps APIs, Routes APIs, and Places APIs” rather than a competitor’s. Opp. 15. They call
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`REPLY ISO MOTION TO DISMISS
`Case No. 22-CV-2314-JSW
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`Case 4:22-cv-02314-JSW Document 41 Filed 09/20/22 Page 13 of 20
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`this a “form of exclusive dealing.” Id. But this contention is just their tying claim by another
`name. It fails for the same reasons discussed above—the complaint alleges no facts showing that
`plaintiffs cannot purchase or use competitors’ API services. See Mot. 12–13. And, even if
`plaintiffs had identified any customers who were forced to use only Google’s API services, their
`claim still fails because plaintiffs do not allege that any such customers comprised a large enough
`portion of the market to substantially foreclose competition. See id.
`Plaintiffs also cite their allegations that Lyft and Uber “rely” on Google Maps. Opp. 15–
`16 (citing ECF 1, ¶¶ 214–217). But plaintiffs nowhere allege that either company was forced to
`deal exclusively with Google, much less allege any facts showing that any exclusive arrangement
`(if it existed) substantially foreclosed competition as would be necessary to support an exclusive
`dealing claim. Plaintiffs also assert that Google had an exclusive dealing contract with Ford, but
`again allege nothing showing why this alleged agreement is unlawful (e.g., the percentage, if any,
`of any relevant market foreclosure). They point only to their allegation that Google has a 90%
`share of the “business-to-business” market. Opp. 16. As discussed below (at 12), that conclusory
`allegation is insufficient because it is bereft of any facts indicating that it has anything to do with
`the services at issue in this case. And it certainly does not describe how much of any relevant
`market is foreclosed by whatever agreement Google has with Ford, Lyft, or Uber.
`C.
`Plaintiffs Have Not Stated a Monopoly Leveraging Claim.
`Plaintiffs do not address their monopoly leveraging theory except to assert that monopoly
`leveraging can be actionable if the plaintiff proves the elements of an attempted monopolization
`claim. As their cases explain, however, the plaintiff “must establish each of the elements
`normally required to prove an attempted monopolization claim under section 2 of the Sherman
`Act.” Cost Mgmt. Servs., Inc. v. Wash. Nat. Gas Co., 99 F.3d 937, 952 (9th Cir. 1996).
`Plaintiffs’ monopoly leveraging claim thus fails for the reason stated in Google’s motion—a
`section 2 claim requires exclusionary conduct, which plaintiffs have not alleged. See Mot. 13–14.
`The only alleged exclusionary conduct is the purported tying, bundling, and exclusive dealing
`arrangement that plaintiffs have failed to show is actionable. (Plai

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