Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 1 of 20
`
`Paul J. Riehle (SBN 115199)
`paul.riehle@faegredrinker.com
`FAEGRE DRINKER BIDDLE & REATH
`LLP
`Four Embarcadero Center, 27th Floor
`San Francisco, CA 94111
`Telephone: (415) 591-7500
`
`Douglas J. Dixon (SBN 275389)
`ddixon@hueston.com
`HUESTON HENNIGAN LLP
`620 Newport Center Drive, Suite 1300
`Newport Beach, CA 92660
`Telephone: (949) 229-8640
`
`Counsel for Plaintiffs Match Group, LLC, et al.
`
`Christine A. Varney (pro hac vice)
`cvarney@cravath.com
`CRAVATH, SWAINE & MOORE LLP
`825 Eighth Avenue
`New York, New York 10019
`Telephone: (212) 474-1000
`
`Counsel for Plaintiff Epic Games, Inc.
`
`[Additional Counsel Appear on Signature
`Page]
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`IN RE GOOGLE PLAY STORE
`ANTITRUST LITIGATION
`
`THIS DOCUMENT RELATES TO:
`
`Epic Games Inc. v. Google LLC et al.,
`Case No. 3:20-cv-05671-JD
`
`Match Group, LLC et al. v. Google LLC et al.,
`Case No. 3:22-cv-02746-JD
`
` Case No. 3:21-md-02981-JD
`
`EPIC’S AND MATCH’S NOTICE OF
`MOTION AND MOTION TO AMEND
`COMPLAINTS
`
`Date: November 17, 2022 at 10:00 a.m.
`Courtroom: 11, 19th Floor
`Judge: Hon. James Donato
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`EPIC’S AND MATCH’S NOTICE OF MOTION AND MOTION TO AMEND COMPLAINTS
`Case No. 3:21-md-02981-JD
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 2 of 20
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`TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
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`PLEASE TAKE NOTICE that on November 17, 2022, at 10:00 a.m., or as soon
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`thereafter as the matter may be heard, in the United States District Court for the
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`Northern District of California, before the Honorable James Donato, Plaintiff Epic
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`Games, Inc. (“Epic”) and Plaintiffs Match Group LLC, Humor Rainbow, Inc.,
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`PlentyofFish Media ULC, and People Media, Inc., (“Match”) will and hereby do move
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`for an order granting Epic and Match leave to file their proposed amended complaints
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`(“Proposed Amended Complaints,” which are submitted with this motion as Exhibits A
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`and K) and ordering that the Proposed Amended Complaints be deemed filed. This
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`motion is made pursuant to Federal Rule of Civil Procedure (“FRCP”) 15 on the
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`grounds that granting this motion will not result in prejudice, the motion is neither futile
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`nor legally insufficient, Epic and Match bring this motion without undue delay, and
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`Epic and Match are not seeking leave to amend in bad faith. In addition, this motion is
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`made pursuant to FRCP 16 on the ground that there is good cause to modify the Second
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`Amended MDL Scheduling Order for the limited purpose of permitting Epic and Match
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`to file their Proposed Amended Complaints. This motion is based upon this Notice of
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`Motion and Motion, the accompanying Memorandum of Points and Authorities, the
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`Proposed Amended Complaints, Declaration of Michael J. Zaken (the “Zaken Decl.”)
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`and [Proposed] Order, as well as all matters with respect to which this Court may take
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`judicial notice, and such oral and documentary evidence as properly may be presented
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`to the Court.
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`STATEMENT OF RELIEF SOUGHT
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`Epic and Match seek an Order granting their request to allow Epic and Match to
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`file their Proposed Amended Complaints pursuant to FRCP Rule 15 and amend the
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`Second Amended MDL Scheduling Order for the limited purpose of allowing Epic and
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`Match to do so.
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`EPIC’S AND MATCH’S NOTICE OF MOTION AND MOTION TO AMEND COMPLAINTS
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 3 of 20
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`
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`Table of Contents
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`Page
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`Table of Authorities .....................................................................................................iii
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`MEMORANDUM OF POINTS AND AUTHORITIES ................................................ 1
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`I.
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`INTRODUCTION .............................................................................................. 1
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`II.
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`BACKGROUND ................................................................................................ 3
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`III. LEGAL STANDARD ......................................................................................... 6
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`IV. ARGUMENT...................................................................................................... 7
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`A.
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`The Proposed Amendments Should Be Allowed Under Rule 15. .............. 7
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`i.
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`ii.
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`iii.
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`iv.
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`The Amendments Will Not Prejudice Google. ................................ 8
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`Epic and Match Have Not Unduly Delayed. ................................. 10
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`Epic and Match Seek To Amend in Good Faith. ........................... 10
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`The Proposed Amendments Are Not Futile. .................................. 11
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`B.
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`There Is Good Cause To Amend the Scheduling Order. .......................... 11
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`V.
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`CONCLUSION ................................................................................................ 12
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 4 of 20
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`Table of Authorities
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`
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`Page(s)
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`
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`Cases
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`Allen v. Bayshore Mall, No. 12-CV-02368-JST, 2013 WL 6441504 (N.D. Cal.
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`Dec. 9, 2013) ........................................................................................................... 11
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`Avago Techs. Fiber IP (Singapore) Pte. Ltd. v. IPtronics Inc., No. 5:10-CV-
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`02863-EJD, 2012 WL 3835107 (N.D. Cal. Sept. 4, 2012).......................................... 9
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`Clarke v. Upton, 703 F. Supp. 2d 1037 (E.D. Cal. 2010) .............................................. 11
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`Cont’l Cas. Co. v. United States, No. 02-5292 VRW, 2005 WL 8162326 (N.D.
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`Cal. June 22, 2005) .................................................................................................... 7
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`Foman v. Davis, 371 U.S. 178 (1962) ....................................................................... 6, 11
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`Griggs v. Pace Am. Grp., 170 F.3d 877 (9th Cir. 1999) .................................................. 6
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`Howey v. United States, 481 F.2d 1187 (9th Cir. 1973)......................................... 6, 7, 10
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`Hurn v. Retirement Fund Trust of Plumbing, Heating & Piping Indus. of S.
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`California, 648 F2d 1252 (9th Cir. 1981) ................................................................... 7
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`In re Intuitive Surgical Sec. Litig., No. 5:13-CV-01920-EJD, 2017 WL 363269
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`(N.D. Cal. Jan. 25, 2017) ......................................................................................... 10
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`Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ............................ 7
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`Lockheed Martin Corp. v. Network Sols., 194 F.3d 980 (9th Cir. 1999) .......................... 9
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`Oracle Am., Inc. v. Hewlett Packard Enter. Co., No. 16-CV-01393-JST, 2017
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`WL 3149297 (N.D. Cal. July 25, 2017) ........................................................... 8, 9, 11
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`Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 (9th Cir. 2001) ....................... 6
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`Sonoma Cty. Ass’n of Retired Employees v. Sonoma Cty., 708 F.3d 1109 (9th
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`Cir. 2013)........................................................................................................... 6, 8, 9
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`Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128 (N.D. Cal. 2010) ............. 9
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`EPIC’S AND MATCH’S NOTICE OF MOTION AND MOTION TO AMEND COMPLAINTS
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`Trans Bay Cable LLC v. M/V Ocean Life, No. 14-cv-04854-JD, 2015 WL
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`7075618 (N.D. Cal. Nov. 13, 2015) ........................................................................... 7
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`Vigil v. Coloplast Corp., No. 319-CV-01851-GPC-BGS, 2020 WL 94378
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`(S.D. Cal. Jan. 8, 2020) .................................................................................... 8, 9, 10
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`Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008) ................................................................ 6
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`Statutes & Rules
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`Fed. R. Civ. P. 15(a)(2) ................................................................................................... 6
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`Fed. R. Civ. P. 16(b)(4) ................................................................................................... 7
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 6 of 20
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`INTRODUCTION
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`Epic and Match seek leave to amend their Complaints to add two counts against
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`Defendants Google LLC, Google Ireland Limited, Google Commerce Limited and
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`Google Asia Pacific Pte. Limited (collectively, “Google”). The new counts arise out of
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`anticompetitive agreements between Google and app developers that were
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`contemplating the launch of competing Android app stores or distributing their apps
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`outside of Google Play. Some of these agreements were intended to, and did, stop
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`developers from launching competing app stores, which is a per se violation of the
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`antitrust laws. Other agreements were intended to, and did, unlawfully stop developers
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`from making Android apps and other unique content available outside Google Play.
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`Google has been on notice of Epic’s and Match’s claims regarding these agreements for
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`months; they have been the subject of extensive discovery and the subject of filings in
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`this Court. The proposed amendments reflected in the attached Proposed Amended
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`Complaints simply conform Epic’s and Match’s claims to evidence obtained through
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`discovery. The amendments will also facilitate a clear charge to the jury.
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`Epic and Match already allege that Google entered into anticompetitive
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`agreements with developers and OEMs that unreasonably restrict competition in the
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`Android App Distribution Market, in violation of Sections 1 and 2 of the Sherman Act.
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`(See, e.g., Epic’s First Amended Complaint (“FAC”) ¶¶ 6, 33, 98, 119, 128, 188-95,
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`233-43, MDL Dkt. No. 64.) Epic and Match now merely seek to add two counts
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`asserting that certain of Google’s agreements with developers are standalone violations
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`of Section 1 of the Sherman Act, including per se violations based on horizontal
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`agreements that prevented developers from proceeding with concrete plans to launch
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`competing app stores. Specifically, the Proposed Amended Complaints allege that
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`Google has paid off app developers with the means, capability and desire to enter the
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`Android App Distribution Market (1) not to launch competing Android app stores, and
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`(2) to give up the ability to distribute differentiating content—like exclusive and early-
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 7 of 20
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`release games—anywhere other than on Google Play. By breaking this conduct into
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`separate counts, the Proposed Amended Complaints will facilitate a clear charge to the
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`jury on these agreements.
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`Google will not be prejudiced by the Proposed Amended Complaints. Because
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`the new counts relate exclusively to Google’s conduct and agreements, Google has the
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`information it needs to mount a defense. Further, Google has long been on notice of
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`Epic’s and Match’s position regarding these agreements. For example, on April 28,
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`2022, Epic filed a Motion for Preliminary Injunction in which it alleged, under the
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`heading “Google Paid Top App Developers Not To Compete”, that Google entered into
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`deals with developers that “could, in fact . . . establish and launch their own app store on
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`Android”, which “deprived developers of any incentive to launch their own store”.
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`(MDL Dkt. No. 213 at 10.) A month later, on May 27, 2022, Plaintiffs Epic, Consumer
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`Plaintiffs, and State Attorneys General Plaintiffs (“Plaintiff States”) filed a joint
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`discovery letter with Activision Blizzard, Inc. (“ABK”) seeking to compel the testimony
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`of ABK’s CFO, Armin Zerza, and asserting that “[o]ne of Plaintiffs’ central claims is
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`that Google systematically executed agreements with potential competitors to stifle
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`competition . . . Google paid companies not to launch competing app stores.” (MDL
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`Dkt. No. 259.) Since then, deposition testimony taken as recently as September 22,
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`2022 has crystalized the nature and scope of these agreements, highlighting the
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`importance in clearly enumerating the counts in Epic’s and Match’s Complaints.
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`The amendments will not prejudice Google where they conform the counts to
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`allegations that have been litigated for months, rely on information that Google was
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`fully aware of, and have been fully explored via extensive discovery by all Parties,1
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`including Google. Epic and Match therefore respectfully request that the Court allow
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`Epic and Match to amend their Complaints to conform their claims against Google to
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`the evidence developed during discovery.
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`1“Parties” refers to Epic, Consumer Plaintiffs, Plaintiff States, Match (collectively
`“Plaintiffs”) and Google.
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`II. BACKGROUND
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`Epic filed its Complaint on August 13, 2020 and its FAC on July 21, 2021. (Epic
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`Dkt. 1, MDL Dkt. No. 64.) Match filed its initial complaint (together with Epic’s FAC,
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`“Complaints”) on May 9, 2022. (Match Dkt. 1.) On October 22, 2021, the Court
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`entered the MDL Scheduling Order providing that the last date to add parties and amend
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`the pleadings would be December 3, 2021.2 (MDL Dkt. No. 122.) Since that date,
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`however, Google and multiple third parties produced hundreds of thousands of
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`documents; Plaintiffs have taken all but one of the 32 depositions of Google witnesses
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`(with three more outstanding); and the Parties took 10 depositions of third-party
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`witnesses. (Zaken Decl. ¶ 16.) In short, the current evidentiary record in this case is
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`vastly more developed than it was in early December 2021.
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`Google has been on notice of Epic’s and Match’s intent to challenge Google’s
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`agreements with top developers as anticompetitive since at least the filing of Epic’s
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`FAC last summer. The general contours of “Project Hug”—Google’s plan to eliminate
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`game developers’ agitation and competitive threat to distribute outside of Play—are
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`addressed in Epic’s FAC. (See, e.g., Epic’s FAC ¶¶ 119, 128.) Throughout discovery,
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`Epic and Match sought documents and deposition testimony about these arrangements.
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`For example, after the December 3, 2021 amendment deadline, Google produced
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`documents showing that Google entered into its Project Hug deal with ABK, with the
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`understanding that “[i]f this deal falls through, [Mr. Zerza] claims that [ABK] will
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`launch [its] own mobile distribution platform”. (Zaken Decl. Ex. C, GOOG-PLAY-
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`007280918.) Likewise, after the December 3, 2021 amendment deadline, Google
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`produced documents and provided testimony showing that Google paid an eight-figure
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`sum to Riot, another developer that “specifically told Google that they were considering
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`starting their own competing Android app store[]” (Id. at Ex. H, Koh Tr. 200:4-10), in
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`2On October 5, 2022, the Court entered the Second Amended MDL Scheduling Order
`(MDL Dkt. No. 338), the operative scheduling order, which states that the date to add
`parties and amend pleadings has closed.
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`order “to get Riot to stop their inhouse ‘app store’ efforts and bring their billion dollar
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`League of Legends franchise and other mobile games to Play”. (Id. at Ex. D, GOOG-
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`PLAY-007424789 and Ex. E, GOOG-PLAY-000929031.) Plaintiffs have also
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`questioned Google and third-party witnesses in Rule 30(b)(1) and 30(b)(6) capacities
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`about the company’s deals with top developers, including specifically its Hug deals, in
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`the depositions of Paul Bankhead, Paul Feng, Paul Gennai, Donald Harrison, Hiroshi
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`Lockheimer, Lawrence Koh, James Kolotouros, Michael Marchak, Ruth Porat and
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`Jamie Rosenberg. (Id. at ¶ 17.)
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`Crucial portions of the discovery into Google’s deals with developers were
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`completed in late August and late September 2022, with the deposition of Ms. Purnima
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`Kochikar, Vice President of Google Play Partnerships,3 and the compelled
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`September 22, 2022 deposition of Mr. Zerza, the CFO of ABK, the recipient of
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`Google’s largest Hug deal.4 (Id. at Ex. F, GOOG-PLAY-007847561 and Ex. G,
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`GOOG-PLAY-007273439.) For example, Ms. Kochikar testified on August 31, 2022
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`that Google’s deal with ABK was discussed in the context of ABK launching an
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`alternative app store that could lead other developers to similarly seek to launch other
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`stores or to distribute through ABK’s store, and that it was Google’s understanding that
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`if ABK accepted its “bespoke” Hug deal, it would cease investment in its rival store.
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`(Id. at Ex. I, Kochikar Tr. at 139:8-140:5.) Similarly, Ms. Kochikar testified that
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`Google pursued and signed a Hug deal with Riot, which presented “risks” to Google
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`because of its plans to launch a game outside of Play. (Id. at Ex. I, Kochikar Tr. at
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`3Ms. Kochikar’s deposition was rescheduled several times at Google’s request due to
`scheduling and other conflicts. Ms. Kochikar was Google’s 30(b)(6) representative
`designated to testify about certain of Google’s contracts with developers, including its
`communications and negotiations with ABK and efforts to “maintain Android
`Developer satisfaction”, such as its Hug deals. (Zaken Decl. Ex. I, Kochikar Tr. at 19:6-
`20:23 (Day 1); Plaintiffs’ Rule 30(b)(6) Notice of Deposition of Defendants.)
`4Plaintiffs sought to depose Mr. Zerza earlier in the case, but ABK opposed that
`effort, requiring that Plaintiffs seek relief from the Court before being able to do so.
`(See MDL Dkt. Nos. 259 and 321.)
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`145:2-11.) Ms. Kochikar admitted she wrote in a document that Google “pulled all the
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`stops” to prevent Riot from launching “their inhouse ‘app store’ efforts”, including
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`offering Riot a deal for $10 million in co-marketing benefits on top of their Hug deal,
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`and that Riot did not launch an app store. (Id. at Ex. I, Kochikar Tr. at 148:1-150:23.)
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`And Mr. Zerza testified that in December 2019, prior to entering into the Hug deal,
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`ABK was actively exploring building its own store with the “expectation” that its store
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`would have “better economics” than distribution through Google Play. (Id. at Ex. J,
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`Zerza Tr. at 105:24-112:12.) However, ABK decided not to launch the store after ABK
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`secured its Hug deal with Google, which promised ABK over $300 million in benefits.
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`(Id.) At present, ABK still does not have its own Android distribution or payment
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`system. (Id. at Ex. J, Zerza Tr. at 71:25-72:7.)
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`Given the continuing development of the facts surrounding Google’s conduct, it
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`did not make sense for Epic and Match to update their Complaints before Ms.
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`Kochikar’s and Mr. Zerza’s depositions. However, Epic and Match did make their view
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`of the Project Hug agreements and their implications for the case clear to Google,
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`including in several court filings and throughout discovery. For example, in Epic’s
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`Motion for a Preliminary Injunction, Epic asserted that Google “pa[id] off top app
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`developers to stop them from developing and launching competing Android app stores”;
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`that “Google spent a billion dollars on secret deals with the top app developers that . . .
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`could, in fact, come up with the infrastructure needed to actually establish and launch
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`their own app store on Android . . . [and] systematically deprived developers of any
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`incentive to launch their own stores or to partner with other nascent stores on Android”;
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`and that “Activision was prepared and threatening to launch a competing app store on
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`Android. . . [but] Google executed its Project Hug agreement with Activision, under
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`which Google agreed to pay Activision $360 million over three years . . . [and]
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`Activision abandoned its plans to launch a competing Android app store”. (MDL Dkt.
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`No. 213 at 9-10.) In late May 2022, Epic, Consumer Plaintiffs, and Plaintiff States filed
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 11 of 20
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`a joint discovery letter brief regarding the deposition of ABK CFO Mr. Zerza (MDL
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`Dkt. No. 259) in which they stated that:
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`“Google paid companies not to launch competing app stores.
`Specifically, discovery in this case has revealed that
`Activision planned to leverage its popular app catalog to
`launch a mobile app store that would directly compete with
`the Google Play Store, but that Activision abandoned those
`plans in exchange for several hundred million dollars in
`consideration from Google.” (Id. at 4).
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`Epic spoke with Google about its intention to amend its FAC on September 30,
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`2022 and shared a draft of its SAC with Google two days later, on October 2, 2022.
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`(Zaken Decl. at ¶ 19.) Google informed Epic on October 7, 2022 that it did not consent
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`to allow Epic to amend its FAC. (Id.) The same day, Epic informed Google that Match
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`intended to join in this motion and file a similar amendment. (Id.)
`III. LEGAL STANDARD
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`This motion to amend is governed by Federal Rule of Civil Procedure 15, which
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`directs that “[t]he court should freely give leave [to amend] when justice so requires”.
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`Fed. R. Civ. P. 15(a)(2). “[T]his mandate is to be heeded”, Foman v. Davis, 371 U.S.
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`178, 182 (1962), and “[t]he policy of allowing amendments ‘is to be applied with
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`extreme liberality’”, Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008) (quoting
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`Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). “A
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`district court determines the propriety of a motion to amend by ascertaining the presence
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`of any of four factors: bad faith, undue delay, prejudice to the opposing party and/or
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`futility.” Griggs v. Pace Am. Grp., 170 F.3d 877, 881 (9th Cir. 1999). The Ninth
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`Circuit has held that courts may decline to grant leave to amend for one or more of these
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`reasons “only if there is strong evidence.” Sonoma County Ass’n of Retired
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`Employees v. Sonoma County, 708 F3d 1109, 1117 (9th Cir. 2013). “While all these
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`factors are relevant, the crucial factor is the resulting prejudice to the opposing party.”
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`Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). The Ninth Circuit and
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`EPIC’S AND MATCH’S NOTICE OF MOTION AND MOTION TO AMEND COMPLAINTS
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 12 of 20
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`California district courts have consistently held that “[w]here there is lack of prejudice
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`to the opposing party and the amended complaint is obviously not frivolous or made as
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`a dilatory maneuver in bad faith, it is an abuse of discretion to deny such a motion.”
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`Cont’l Cas. Co. v. United States, No. 02-5292 VRW, 2005 WL 8162326, at *4 (N.D.
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`Cal. June 22, 2005) (citing Howey, 481 F2d at 1190-91). Further, “delay alone does not
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`provide sufficient grounds for denying leave to amend.” Id. (citing Hurn v. Retirement
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`Fund Trust of Plumbing, Heating & Piping Indus. of S. California, 648 F2d 1252, 1254
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`(9th Cir. 1981)).
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`While Federal Rule of Civil Procedure 15(a) governs a motion to amend
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`pleadings to add claims or parties, as a procedural matter Rule 16 also applies where, as
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`here, the request to amend is filed after the scheduling order deadline for amendments
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`has passed. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir.
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`1992). Federal Rule of Civil Procedure 16(b)(4) requires a showing of good cause and
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`the Court’s consent in order to amend a scheduling order. The good cause inquiry
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`focuses primarily on “the diligence of the party seeking the amendment” and “the
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`moving party’s reasons for seeking modification.” Johnson, 975 F.2d at 609. The
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`Court has broad discretion to modify a scheduling order to allow an amendment to the
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`pleadings. Id. at 607-08. This Court has found good cause to permit amendment where
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`doing so would prevent a future “preclusion or waiver argument . . . on purely technical
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`and formalistic grounds”. Trans Bay Cable LLC v. M/V Ocean Life, No. 14-cv-04854-
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`JD, 2015 WL 7075618, at *1-2 (N.D. Cal. Nov. 13, 2015).
`IV. ARGUMENT
`A. The Proposed Amendments Should Be Allowed Under Rule 15.
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`This Court should allow Epic and Match to file the Proposed Amended
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`Complaints because each of the four factors courts assess under Rule 15 weigh in favor
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`of allowing amendment. First, the amendments cause no prejudice to Google because
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`the Proposed Amended Complaints serve only to conform Epic’s and Match’s counts to
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`the record developed through discovery, Google has been on notice that Epic and Match
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 13 of 20
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`were challenging the Project Hug agreements with developers, Google was fully aware
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`of Epic’s and Match’s theory of liability, and Google had ample opportunity to (and did)
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`take discovery regarding these issues. Second, Epic and Match did not unduly delay
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`because they sought leave promptly after obtaining information in key depositions, and
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`long before dispositive motion practice and trial. Third, this proposal to amend is not
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`made in bad faith. Finally, adding these claims to Epic’s and Match’s Complaints will
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`not be futile.
`i.
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`The Amendments Will Not Prejudice Google.
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`“To overcome Rule 15(a)’s liberal policy with respect to the amendment of
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`pleadings, a showing of prejudice must be substantial.” See Oracle Am., Inc. v. Hewlett
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`Packard Enter. Co., No. 16-CV-01393-JST, 2017 WL 3149297, at *3 (N.D. Cal.
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`July 25, 2017) (citation omitted). Substantial prejudice will not be shown where a
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`plaintiff’s “main claims and legal theories remain the same” or where a non-moving
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`party is “fully prepared to litigate the substantive issue of the claim, given that both the
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`theory and the operative facts of the claim remain the same.” Id. at *4 (citing Sonoma
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`Cty., 708 F.3d at 1118). This is especially the case where amendment comes many
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`months prior to dispositive motion practice and the final pre-trial conference. See
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`Vigil v. Coloplast Corp., No. 319-CV-01851-GPC-BGS, 2020 WL 94378, at *3 (S.D.
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`Cal. Jan. 8, 2020).
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`The Proposed Amended Complaints cause no prejudice to Google because
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`Google was aware that Epic and Match were challenging Google’s anticompetitive
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`agreements with developers and developing the record with respect to these agreements
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`through discovery. The only change introduced by the amendments is that, while the
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`Complaints described these agreements as aggravating the effects of other agreements
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`Google had with OEMs, the Proposed Amended Complaints break out Google’s
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`agreements with developers as sufficiently egregious to be violative of the antitrust laws
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`in and of themselves—and, in certain instances, to be violative per se. The evidence to
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`support these claims was developed through discovery and, as noted above, raised in
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 14 of 20
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`Epic’s Motion for a Preliminary Injunction (MDL Dkt. No. 213 at 9-10) and Plaintiffs’
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`joint discovery letter brief regarding the deposition of ABK CFO Mr. Zerza (MDL Dkt.
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`No. 259 at 4-5). Epic and Match now seek to conform their counts against Google to
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`the record evidence, based on discovery (which Google has always had in its
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`possession) that has crystalized the scope and nature of Google’s anticompetitive
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`agreements with developers, and in particular, demonstrated that per se claims are
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`appropriate. As such, the Proposed Amended Complaints should come as no surprise
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`to, let alone prejudice, Google. See Sonoma, 708 F.3d at 1118 (finding no prejudice
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`where the defendant was already prepared to litigate the same facts and issues brought
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`under similar claims); Oracle, 2017 WL 3149297, at *3.
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`Further, the Proposed Amended Complaints will not prejudice Google’s ability to
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`adequately prepare a defense or impact this case’s forward progress. Discovery and
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`motion practice have fully adduced the relevant facts underlying the proposed claims, so
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`that no additional discovery and no delay to the schedule is warranted.5 Google has
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`adequate time to address the limited amendments in its expert disclosures, dispositive
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`motion practice and at trial—in part because these issues have already been at play in
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`the case for many months. The Proposed Amended Complaints will not prejudice
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`Google’s ability to adequately prepare a defense or delay resolution of this matter. See
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`Vigil, 2020 WL 94378, at *3.
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`5Even if additional discovery were necessary (it is not), the prospect of additional
`discovery alone would not constitute undue prejudice. While “[a] need to reopen
`discovery and therefore delay the proceedings supports a district court’s finding of
`prejudice from a delayed motion to amend the complaint”, Lockheed Martin Corp. v.
`Network Sols., 194 F.3d 980, 986 (9th Cir. 1999), “[n]either delay resulting from the
`proposed amendment nor the prospect of additional discovery needed by the non-
`moving party in itself constitutes a sufficient showing of prejudice”, Stearns v. Select
`Comfort Retail Corp., 763 F. Supp. 2d 1128, 1158 (N.D. Cal. 2010). See Avago Techs.
`Fiber IP (Singapore) Pte. Ltd. v. IPtronics Inc., No. 5:10-CV-02863-EJD, 2012 WL
`3835107, at *3 (N.D. Cal. Sept. 4, 2012) (delay and the expenses incurred in responding
`to new claims do not constitute undue prejudice without some credible showing of
`unfairness).
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`Case 3:22-cv-02746-JD Document 93 Filed 11/17/22 Page 15 of 20
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`ii.
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`Epic and Match Have Not Unduly Delayed.
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`Epic and Match are seeking to amend their Complaints in light of information
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`made available through discovery. It would not have been possible to do this on
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`December 3, 2021, as discovery on this issue was just beginning, and Match had not yet
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`filed suit. As the discovery record developed, Epic and Match repeatedly made known
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`that they believed certain of Google’s agreements with developers were agreements not
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`to compete in Android app distribution. Epic and Match now seek to add specific
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`counts on which to instruct the jury since obtaining additional confirming information at
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`key depositions that did not occur until August and September 2022 due to the Google
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`witness’s schedule and ABK’s opposition to its witness being deposed. There has been
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`no undu