Case 4:20-cv-00957-SDJ Document 122 Filed 05/20/21 Page 1 of 21 PageID #: 2202
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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` CIVIL NO. 4:20-CV-957-SDJ
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`THE STATE OF TEXAS, ET AL.
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`v.
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`GOOGLE LLC
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`MEMORANDUM OPINION AND ORDER
`Before the Court is Defendant Google LLC’s Motion to Transfer Venue
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`Pursuant to 28 U.S.C. § 1404(a), (Dkt. #28). For the following reasons, the Court
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`concludes that the motion should be DENIED.
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`I. BACKGROUND
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`Plaintiffs—the States of Texas, Alaska, Arkansas, Florida, Idaho, Indiana,
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`Mississippi, Missouri, Montana, Nevada, North Dakota, South Dakota, and Utah,
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`and the Commonwealths of Kentucky and Puerto Rico, by and through their
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`Attorneys General (collectively, “Plaintiff States”)—have brought the instant action
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`in the Eastern District of Texas against Defendant Google LLC (“Google”).1 Plaintiff
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`States, invoking their statutory, equitable, or common-law powers, and pursuant to
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`Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15c, 26, brought this action in their
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`respective sovereign capacities and as parens patriae on behalf of the citizens, general
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`welfare, and economies of their respective states.
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`1 The Court has jurisdiction over the instant action. Plaintiff States assert claims
`under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and Sections 4 and 16 of the
`Clayton Act, 15 U.S.C. §§ 15c, 26. See also 28 U.S.C. §§ 1331, 1337. Plaintiff States also assert
`various state-law claims arising out of the same nucleus of operative fact, over which this
`Court is empowered to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(a).
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`1
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`At its core, Plaintiff States’ theory of the case is that Google has violated
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`Section 2 of the Sherman Act, as well as applicable state antitrust laws, by unlawfully
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`maintaining a monopoly, or attempting to acquire a monopoly, in markets associated
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`with online display advertising. Specifically, Plaintiff States allege that Google
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`engaged in anticompetitive conduct to force publishers and advertisers to use its
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`online-display-advertising products or services. Plaintiff States further allege that
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`Google violated Section 1 of the Sherman Act through an unlawful agreement with
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`Facebook. Plaintiff States also contend that Google’s representations to publishers,
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`advertisers, and consumers violated state consumer-protection and deceptive-trade
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`laws. Based on these allegations, Plaintiff States assert the following causes of action:
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`actual and attempted monopolization and unlawful tying under Section 2 of the
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`Sherman Act, 15 U.S.C. § 2; unlawful agreement under Section 1 of the Sherman Act,
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`15 U.S.C. § 1; and thirty additional state-law claims under Plaintiff States’ respective
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`antitrust and deceptive-trade-practices statutes.
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`Google denies all the substantive factual and legal allegations in Plaintiff
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`States’ Amended Complaint. Google asserts that it has not acted anticompetitively in
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`the digital-advertising and e-commerce marketplace. Google specifically maintains
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`that Plaintiff States’ Amended Complaint is factually inaccurate, that the digital-
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`advertising and e-commerce marketplace is highly competitive, and that Plaintiff
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`States’ legal theory turns on the incorrect premise that antitrust law requires
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`companies to design their products so as to help their rivals become stronger
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`competitors. Google further contends that Plaintiff States mischaracterize the terms
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`2
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`and misunderstand the impact of a procompetitive agreement between Google and
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`Facebook and that Google has not made false or deceptive statements to consumers
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`concerning its products or services.
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`Google has filed a motion to transfer venue under 28 U.S.C. § 1404(a), arguing
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`that this case should be transferred to the United States District Court for the
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`Northern District of California. (Dkt. #28). Google does not dispute that venue is
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`proper in the Eastern District of Texas under 15 U.S.C. § 22 and 28 U.S.C. § 1391.
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`Google contends that transfer is appropriate because the Northern District of
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`California constitutes a clearly more convenient forum for this action. Plaintiff States
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`counter that Google’s transfer motion should be denied because Google has failed to
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`show that the private-interest and public-interest
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`factors comprising the
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`Section 1404(a) test, taken together, warrant the transfer of this case to the Northern
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`District of California.
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`II. LEGAL STANDARD
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`Section 1404(a) permits the transfer of civil actions for the convenience of the
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`parties and witnesses and in the interest of justice to other districts or divisions
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`where the plaintiffs could have properly brought the action. 28 U.S.C. § 1404(a).
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`District courts have broad discretion in deciding whether to transfer a case under
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`Section 1404(a), In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en
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`banc), and Section 1404(a) motions are adjudicated on an “individualized, case-by-
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`case consideration of convenience and fairness.” TravelPass Grp. v. Caesars Ent.
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`Corp., No. 5:18-cv-153, 2019 WL 3806056, at *11
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`(E.D. Tex. May 9, 2019)
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`3
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`(quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239,
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`101 L.Ed.2d 22 (1988) and Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805,
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`11 L.Ed.2d 945 (1964)), report and recommendation adopted, 2019 WL 4071784
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`(E.D. Tex. Aug. 29, 2019).
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`The party seeking a transfer under Section 1404(a) must show good cause.
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`Volkswagen, 545 F.3d at 315 (quoting Humble Oil & Refin. Co. v. Bell Marine Serv.,
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`Inc., 321 F.2d 53, 56 (5th Cir. 1963)). In this context, showing good cause requires the
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`moving party to “clearly demonstrate that a transfer is for the convenience of parties
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`and witnesses [and] in the interest of justice.” Id. (cleaned up) (quoting 28 U.S.C.
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`§ 1404(a)). When the movant fails to demonstrate that the proposed transferee venue
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`is “clearly more convenient” than the plaintiff’s chosen venue, “the plaintiff’s choice
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`should be respected.” Id. Conversely, when the movant demonstrates that the
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`proposed transferee venue is clearly more convenient, the movant has shown good
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`cause and the court should transfer the case. Id. The “clearly more convenient”
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`standard is not equal to a clear-and-convincing-evidence standard, but it is
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`nevertheless “materially more than a mere preponderance of convenience.” Quest
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`NetTech Corp. v. Apple, Inc., No. 2:19-CV-00118, 2019 WL 6344267, at *7 (E.D. Tex.
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`Nov. 27, 2019).
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`To determine whether a Section 1404(a) movant has demonstrated that the
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`proposed transferee venue is “clearly more convenient,” the Fifth Circuit employs the
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`four private-interest and four public-interest factors first enunciated in Gulf Oil
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`Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Volkswagen,
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`4
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`545 F.3d at 315. The private-interest factors are: “(1) the relative ease of access to
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`sources of proof; (2) the availability of compulsory process to secure the attendance of
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`witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical
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`problems that make trial of a case easy, expeditious and inexpensive.” Id. (citation
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`omitted). The public-interest factors are: “(1) the administrative difficulties flowing
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`from court congestion; (2) the local interest in having localized interests decided at
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`home; (3) the familiarity of the forum with the law that will govern the case; and
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`(4) the avoidance of unnecessary problems of conflict of laws [or in] the application of
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`foreign law.” Id. (alteration in original) (citation omitted).
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`Although these factors “are appropriate for most transfer cases, they are not
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`necessarily exhaustive or exclusive,” and no single factor is dispositive. Id. (citation
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`omitted). Moreover, courts are not to merely tally the factors on each side. In re
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`Radmax, Ltd., 720 F.3d 285, 290 n.8 (5th Cir. 2013). Instead, courts “must make
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`factual determinations to ascertain the degree of actual convenience, if any, and
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`whether such rises to the level of ‘clearly more convenient.’” Quest NetTech, 2019 WL
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`6344267, at *7 (citing In re Radmax, 720 F.3d at 290 (holding that, where five factors
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`were neutral, two weighed in favor of transfer, and one weighed “solidly” in favor of
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`transfer, the movant had met its burden)); see also In re Radmax, 720 F.3d at 290
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`(holding that courts abuse their discretion when they deny transfer solely because
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`the plaintiff’s choice of forum weighs in favor of denying transfer).
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`III. DISCUSSION
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`A party seeking transfer under 28 U.S.C. § 1404(a) must first meet the
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`threshold requirement of establishing that the action could have been brought in the
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`transferee district. Google, the only defendant in this case, has its headquarters and
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`principal place of business in the Northern District of California. Accordingly, the
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`Court finds that this case could have properly been filed in the Northern District of
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`California under both 28 U.S.C. § 1391 and 15 U.S.C. § 22. The threshold
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`requirement having been met, the Court will analyze each of the private-interest and
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`public-interest factors to determine if Google has demonstrated that the Northern
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`District of California is a “clearly more convenient” forum for the instant action than
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`the Eastern District of Texas.
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`A. Private-Interest Factor One: Ease of Access to Sources of Proof
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`Google asserts that there is greater ease of access to sources of proof in the
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`Northern District of California than in the Eastern District of Texas. Specifically,
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`Google argues that the Northern District of California is where the challenged
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`conduct occurred, where Google has its headquarters, and where its executives and
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`most of its employees work. Google maintains that none of its challenged conduct is
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`alleged to have occurred in the Eastern District of Texas. Google further asserts that,
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`because the complaint refers to a number of Google communications authored or
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`possessed by employees that work in Northern California or New York, but not Texas,
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`those communications and documents are more readily available in the Northern
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`District of California.
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`Plaintiff States contest Google’s assertion that the challenged conduct occurred
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`in the Northern District of California, maintaining instead that Google’s conduct
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`occurred throughout the country. Plaintiff States further argue that Google has
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`presented no evidence that any specific, relevant documents are actually located in
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`the Northern District of California. Plaintiff States have also presented evidence that
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`Google stores its electronic documents in thirteen data-storage centers across the
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`country and that all but two of these centers are located closer to the Eastern District
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`of Texas than to the Northern District of California. (Dkt. #46 at 10).
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`The Court agrees with Plaintiff States: Google has not demonstrated that the
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`ease of access to sources of proof is relatively greater in the Northern District of
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`California than in the Eastern District of Texas. In considering this factor, courts look
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`to where “documents and physical evidence” are stored. Seven Networks, LLC v.
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`Google LLC, No. 2:17-CV-442, 2018 WL 4026760, at *2 (E.D. Tex. Aug. 15, 2018)
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`(citing Volkswagen, 545 F.3d at 316).2
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`In Seven Networks, Google, seeking a convenience transfer to the Northern
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`District of California, argued that much of the evidence was “located in or maintained
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`by Google’s Northern California offices.” Id. (citation omitted). However, the court
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`observed that “the vast majority of Google’s electronic records are hosted in secure
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`servers managed from its Northern California offices, not stored in its Northern
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`California offices.” Id. (quotations omitted). Consistent with the Fifth Circuit’s
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`2 The Seven Networks court rejected Google’s argument that witnesses constitute
`sources of evidence under this first factor, noting that the Volkswagen court emphasized and
`analyzed only documentary evidence under this factor. Seven Networks, 2018 WL 4026760,
`at *3 (citing Volkswagen, 545 F.3d at 316).
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`admonition that technological improvements to the ease of access to electronic
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`documents has not rendered the ease-of-access factor superfluous, the Seven
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`Networks court held that the physical location of sources of proof must still be
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`considered. Id. at *3 (citing, among others, Volkswagen, 545 F.3d at 316). The
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`evidence showed that Google stored its electronic documents in facilities outside of
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`Northern California—and that all but one of those facilities were closer to the Eastern
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`District of Texas. The plaintiff further presented evidence of specific sources of proof
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`that could be found in the Eastern District of Texas. For its part, Google presented
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`no such specific evidence. Id. Rather, Google claimed only that some of the
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`documentary evidence that might be relevant would likely be located in Northern
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`California. Id. at *4. The Seven Networks court reasoned that the fact that evidence
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`“might” exist in a particular location, absent any identification of the specific
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`documents, is insufficient. Id. Accordingly, the court held that the ease-of-access
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`factor weighed against transfer. Id. at *7.
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`Google’s ease-of-access arguments here mirror those that it presented in Seven
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`Networks. Google asserts that the ease-of-access factor favors transfer because
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`Google’s headquarters and the headquarters of several potentially relevant
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`nonparties are located in the Northern District of California. But Google has failed to
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`present any evidence of the specific documents or kinds of documents allegedly
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`located in Northern California. By contrast, Plaintiff States have provided rebuttal
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`evidence that Google’s electronic documents are located in storage facilities outside
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`of Northern California (most of which are closer to this district than to the Northern
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`District of California) and that ten potential third-party witnesses possess relevant
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`documents stored closer to this district. (Dkt. #46-7–11) (sealed exhibits).
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`Furthermore, Plaintiff States have confirmed, and Google does not dispute,
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`that much of the relevant documentary evidence is contained in Austin, Texas, at the
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`Office of the Attorney General of Texas as a result of the extensive investigation that
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`precipitated this suit. Google maintains that the location of these relevant and
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`voluminous materials is irrelevant because Austin is in the Western District of Texas
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`rather than the Eastern District of Texas. Google misunderstands the burden of proof
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`on this issue. Plaintiff States do not have to establish that the Eastern District of
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`Texas is the most convenient venue in which this case could be litigated. Rather,
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`Google, as the party seeking transfer, must establish that the Northern District of
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`California is a clearly more convenient venue than the Eastern District of Texas. In
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`regard to the ease of access to documents located in Austin, Texas, the Northern
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`District of California is certainly not a more convenient forum than the Eastern
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`District of Texas.
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`For all of these reasons, the ease-of-access factor weighs against transfer.
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`B. Private-Interest Factor Two: Availability of Compulsory Process to
`Secure Attendance of Unwilling Witnesses
`Federal Rule of Civil Procedure 45 allows courts to subpoena a nonparty
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`witness to ensure attendance at trial “within 100 miles of where the person resides,
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`is employed, or regularly transacts business in person” or a party witness’s
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`attendance at trial “within the state where the person resides, is employed or
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`regularly transacts business in person.” FED. R. CIV. P. 45(c)(1). Courts are to consider
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`the availability of this compulsory process to secure the attendance of witnesses—
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`especially nonparty witnesses—in making convenience-transfer determinations.
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`Seven Networks, 2018 WL 4026760, at *7 (citing Volkswagen, 545 F.3d at 316). Only
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`witnesses potentially unwilling to attend trial are considered under this factor.
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`Identifying a pool of likely unwilling witnesses has some probative value in
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`determining convenience, although greater specificity as to the identity of those
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`witnesses creates greater probative value. Id. at *8.3
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`Google argues that it would be unable to subpoena witnesses from relevant
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`third parties, such as competitors and former Google employees, many of whom reside
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`or work in California. Plaintiff States counter that Google is merely speculating that
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`these witnesses would be unwilling to attend. Moreover, Plaintiff States identify
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`seventy-nine potential nonparty witnesses within 100 miles of this Court who could
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`be subpoenaed for attendance at trial. (Dkt. #46-2). Thus, Plaintiff States argue, this
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`factor should weigh against transfer “because transfer would merely redistribute the
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`inconvenience of lacking the ability to subpoena non-party witnesses” from one party
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`to the others. Perritt v. Jenkins, No. 4:11-CV-23, 2011 WL 3511468, at *5 (E.D. Tex.
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`July 18, 2011).
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`The Court agrees that the presence of potential nonparty witnesses within both
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`districts’ respective ambits means that this factor does not weigh in favor of transfer.
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`3 The compulsory-process factor weighs heaviest against or for transfer when either
`the transferor or transferee has “absolute subpoena power,” meaning that “all relevant and
`material non-party witnesses reside within the subpoena power of a particular court.”
`Volkswagen, 545 F.3d at 316. Because neither this district nor the Northern District of
`California has absolute subpoena power, the magnitude of this factor is diminished.
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`However, neither party has demonstrated beyond mere speculation the unwillingness
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`of these potential witnesses to attend trial. Ultimately, therefore, this factor is
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`neutral as to the requested venue transfer.
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`C. Private-Interest Factor Three: Cost of Attendance for Willing Witnesses
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`As the Fifth Circuit has held, it is obviously more convenient for witnesses to
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`testify closer to home, and additional distance means additional travel, meal, and
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`lodging costs, as well as additional time away from the witnesses’ regular
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`employment. Volkswagen, 545 F.3d at 317. “When the distance between an existing
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`venue for trial of a matter and a proposed venue under § 1404(a) is more than
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`100 miles, the factor of inconvenience to witnesses increases in direct relationship to
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`the additional distance to be traveled.” Id. (citation omitted). Significantly, this factor
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`relates primarily to the inconvenience placed on willing nonparty witnesses, not party
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`witnesses. See, e.g., Seven Networks, 2018 WL 4026760, at *9 (collecting cases);
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`Frederick v. Advanced Fin. Sols., Inc., 558 F.Supp.2d 699, 704 (E.D. Tex. 2007) (“The
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`availability and convenience of party-witnesses is generally insignificant because a
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`transfer based on this factor would only shift the inconvenience from movant to
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`nonmovant.”).
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`In Seven Networks, the court found that the inconvenience to Google’s party
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`witnesses if the case was not transferred would generally be the same as the
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`inconvenience to the plaintiff’s party witnesses if the case was transferred, and thus
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`concluded that the two concerns canceled each other out. Seven Networks, 2018 WL
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`4026760, at *12. However, Google also specifically identified a willing potential
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`nonparty witness, and the inconvenience to that witness weighed “heavily in the
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`analysis,” causing the Court to ultimately determine that this factor weighed “slightly
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`in favor of transfer.” Id.
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`Here, as in Seven Networks, the inconvenience to the party witnesses, which is
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`given little weight, would only be shifted from Google to Plaintiff States by a
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`transfer.4 Further, Google has specifically named only one potential nonparty witness
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`who possibly resides in the Northern District of California and would therefore be
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`inconvenienced by a trial in this district. (Dkt. #63-2 ¶5) (sealed exhibit). As to other
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`potential nonparty witnesses, Google appears to presume that such witnesses reside
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`in Northern California without pointing to any specific witnesses or entities. Plaintiff
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`States, on the other hand, have specified thirteen potential nonparty witnesses, each
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`of whom is located closer to this district and each of whom has expressed his or her
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`willingness to travel to this district to testify at trial.5 (Dkt. #46-7–16) (sealed
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`exhibits). Thus, this factor weighs against transfer.
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`4 Google maintains that transfer would not shift the inconvenience to the Plaintiff
`States because the inconvenience of litigating this case in the Northern District of California
`is no greater than the inconvenience of doing so in the Eastern District of Texas for most of
`the Plaintiff States. However, as Google concedes, this district is a more convenient forum
`for the lead Plaintiff State—Texas. Further, the Court notes that, by any measure, the
`majority of Plaintiff States are closer to the Eastern District of Texas than to the Northern
`District of California.
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` Plaintiff States have also identified thirty-four additional nonparty witnesses located
`closer to this district, although statements regarding those witnesses’ willingness to appear
`in this district have not been produced. (Dkt. #46-1 ¶ 3).
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`D. Private-Interest Factor Four: All Other Practical Problems
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`The fourth private-interest factor includes “all other practical problems that
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`make trial of a case easy, expeditious and inexpensive.” Volkswagen, 545 F.3d at 315.
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`This “all-other-practical-problems” factor is a “Catch-All Factor,” ExpressJet Airlines,
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`Inc. v. RBC Cap. Mkts. Corp., No. H-09-992, 2009 WL 2244468, at *9 (S.D. Tex.
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`July 27, 2009), comprising all practical considerations “rationally based on judicial
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`economy,” i.e., the efficient application of judicial resources, Seven Networks,
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`2018 WL 4026760, at *12. For example, “the existence of duplicative suits involving
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`the same or similar issues may create practical difficulties that will weigh heavily in
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`favor or against transfer.” Seven Networks, 2018 WL 4026760, at *12 (citation
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`omitted).
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`Courts need not find the issues in the two sets of litigation to be identical in
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`order for this factor to weigh in favor of transfer, but, typically, the issues must be at
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`least “substantially” similar. See, e.g., TravelPass, 2019 WL 3806056, at *15–16
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`(concluding that, where the cases did not involve “precisely the same issues” and the
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`court could not say that the other district court was “well-versed in all of the claims,
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`parties, and issues before the Court presently,” the factor was, at least, “neutral”
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`(cleaned up)); Princeton Digit. Image Corp. v. Facebook, Inc., No. 2:11-CV-400,
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`2012 WL 3647182, at *5 (E.D. Tex. Aug. 23, 2012) (transferring action where pending
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`cases involved the same patent); Fujitsu Ltd. v. Tellabs, Inc., 639 F.Supp.2d 761, 768
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`(E.D. Tex. 2009) (transferring where the two actions involved “substantially similar
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`issues” regarding patents relating to the “same technology,” even though the cases
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`might “not involve precisely the same issues”); Westberry v. GusTech Commc’ns, LLC,
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`No. 3:17-CV-3162, 2018 WL 3548869, at *9 (N.D. Tex. July 24, 2018) (involving
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`“identical FLSA claims”).
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`The decision in TravelPass is instructive here. In that case, the plaintiffs
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`brought several antitrust and related claims in the Eastern District of Texas.
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`2019 WL 3806056, at *1. Defendants sought to transfer the case under
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`Section 1404(a) to the Northern District of Illinois, primarily because a putative class
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`action with similar allegations had been pending in that district for over a year. Id.
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`at *2. The two actions concerned the same core set of facts, the same antitrust statute,
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`and nearly all the same defendants. Id. Nevertheless, the court concluded that the
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`judicial-economy factor (subsumed under the all-other-practical-problems factor) was
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`neutral. Id. at *16. On one hand, the court recognized that “numerous courts have
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`held that transfer for the purpose of consolidating concurrent, ongoing actions is
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`proper where the concurrent actions are based on precisely the same issues.” Id.
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`at *15 (citations omitted). On the other hand, the court was not persuaded that the
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`case and the pending out-of-district action involved “precisely the same issues.” Id.
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`Moreover, the court rejected the defendant’s argument that the judicial-
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`economy factor was, by itself, “determinative” in the case. Id. at *14. Specifically, the
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`TravelPass court was concerned that no other factors weighed in favor of transfer,
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`unlike in the other cases cited by the defendants in which the courts found transfer
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`proper. Id. Having determined that the other three private-interest factors were
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`neutral and that two of the public-interest factors were neutral, one weighed against
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`transfer, and one weighed in favor of transfer, id. at *12–14, 16–18, the TravelPass
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`court held that the defendants had “failed to carry their burden to show the Northern
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`District of Illinois is a clearly more convenient venue,” id. at *18
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`Here, similar to TravelPass, Google points to several antitrust class actions
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`pending in the Northern District of California “that, like this case, accuse Google of
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`monopolistic conduct related to digital advertising and seek both damages and
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`injunctive relief on behalf of publishers and advertisers.” (Dkt. #61 at 2). In Google’s
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`view, given the similarity of the cases, the Northern District of California would be a
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`“clearly more convenient” forum to resolve this case together with the California class
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`cases.
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`Google correctly notes that the central allegations in the cases pending against
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`it in the Northern District of California mirror the core allegations of the Plaintiff
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`States here; that is, that Google has engaged in purportedly anticompetitive conduct
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`in markets associated with online display advertising. However, the private class
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`actions pending in the Northern District of California involve different claims,
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`parties, defenses, and damages than this case. Further, the various proposed class
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`plaintiffs in those cases will be required to meet the criteria of Federal Rule of Civil
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`Procedure 23 before they can litigate their claims on a classwide basis. In this regard,
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`the procedural posture of the proposed private class actions in the Northern District
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`of California undermines Google’s argument that judicial economy will necessarily be
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`advanced by transferring this case. Those actions are likely to undergo class discovery
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`followed by class-certification motion practice, none of which is relevant to the case
`
`15
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`

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`Case 4:20-cv-00957-SDJ Document 122 Filed 05/20/21 Page 16 of 21 PageID #: 2217
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`pending before this Court. Consolidating this case with multiple putative class
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`actions would therefore introduce a substantial risk of unnecessary delay associated
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`with Rule 23 proceedings, which may be complex and heavily litigated, and which are
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`unrelated to this litigation. See TravelPass, 2019 WL 3806056, at *16 (concluding
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`that transferring a non-class action to be consolidated with a putative class action
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`would have a negative effect on judicial economy due to the nature of class
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`certification).
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`Further, this case was filed following an eighteen-month investigation by the
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`Plaintiff States, which involved the production of millions of documents and the
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`participation of over sixty witnesses. Under the circumstances, the materials and
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`information already disclosed in the underlying investigation will aid the discovery
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`process in this case. The parties in the California cases, however, will likely have to
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`collect materials and information that have already been gathered here through the
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`Plaintiff States’ pre-suit investigation.6 The plaintiffs here are sovereign states that
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`have filed suit as parens patriae on behalf of citizens allegedly harmed by Google’s
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`conduct in online-display-advertising markets; therefore, no class allegations are at
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`issue and no Rule 23 proceedings are implicated in this case. Additionally, this case
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`involves state-law claims that are not at issue in the private class actions pending in
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`the Northern District of California, including consumer-protection and deceptive-
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`
`6 For example, in their initial requests for discovery, the plaintiffs in In re Google
`Digital Advertising Antitrust Litigation indicated that they seek “100,000 pages of documents
`that Google reportedly produced to the Texas Attorney General.” No. 5:20-cv-03556, Dkt. #37
`at 2 (N.D. Cal. Oct. 16, 2020).
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`16
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`Case 4:20-cv-00957-SDJ Document 122 Filed 05/20/21 Page 17 of 21 PageID #: 2218
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`trade-practices claims that are dissimilar to the putative class plaintiffs’ claims. Such
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`differing claims implicate differing evidence and legal issues.
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`In sum, the Court concludes that, rather than presenting precisely the same
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`issues as this case, the private class actions pending in the Northern District of
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`California—while premised on the same underlying theories concerning Google’s
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`alleged anticompetitive conduct—involve claims, parties, defenses, damages, and
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`procedural frameworks that differ materially from those in this case. Given the
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`important distinctions between this case and those pending in the Northern District
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`of California, Google has failed to establish that transfer of this case would clearly
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`preserve judicial economy. See, e.g., TravelPass, 2019 WL 3806056, at *15.7
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`E. Public-Interest Factor One: Court Congestion
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`The first public-interest factor is the speed with which a case can come to trial
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`and be resolved. Deep Green Wireless LLC v. Ooma, Inc., 2:16-CV-0604, 2017 WL
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`679643, at *6 (E.D. Tex. Feb. 21, 2017) (citing In re Genentech, Inc., 566 F.3d 1338,
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`1347 (Fed. Cir. 2009)). Generally, this factor favors a district that can bring a case to
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`
`7 The Court notes that the class-action lawsuits in the Northern District of California
`referenced by Google are themselves not all pending before the same judge. Most of the cases
`are pending before Judge Freeman and have been consolidated into two related actions. See
`generally In re Google Digit. Advert. Antitrust Litig., No. 5:20-cv-03556-BLF, (N.D. Cal.); In
`re Google Digit. Publisher Antitrust Litig., No. 5:20-cv-08984-BLF, (N.D. Cal.). However,
`Judge Freeman rejected the relation of one other suit on which Google relies, and it remains
`pending before Judge Gilliam. See In re Google Digit. Advert. Antitrust Litig., No. 5:20-cv-
`03556-BLF, Dkt. #108 (Mar. 2, 2021) (denying motion to relate SPX Total Body Fitness LLC
`v. Google LLC, No. 4:21-cv-00801-HSG (N.D. Cal.)).
`Accordingly, it is not obvious that, were the Court to transfer this case, it would be
`assigned to any particular judge presiding over cases involving similar allegations against
`Google. See TravelPass, 2019 WL 3806056, at *16 (noting that the defendants could not meet
`their burden by simply assuming that the similar cases would be consolidated before a single
`judge if the case were tr