USCA11 Case: 21-13289 Date Filed: 08/26/2022 Page: 1 of 18
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`[DO NOT PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 21-13289
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`____________________
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`INFORM INC.,
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`versus
`GOOGLE LLC,
`ALPHABET INC.,
`YOUTUBE, LLC,
`JOHN DOES 1-100,
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`
` Plaintiff-Appellant,
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` Defendants-Appellees.
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`[DO NOT PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`
`
`
`
`____________________
`
`No. 21-13289
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`____________________
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`INFORM INC.,
`
`versus
`GOOGLE LLC,
`ALPHABET INC.,
`YOUTUBE, LLC,
`JOHN DOES 1-100,
`
`
` Plaintiff-Appellant,
`
` Defendants-Appellees.
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`Opinion of the Court
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`21-13289
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`____________________
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`Appeal from the United States District Court
`for the Northern District of Georgia
`D.C. Docket No. 1:19-cv-05362-JPB
`____________________
`
`Before JORDAN, ROSENBAUM, Circuit Judges, and STEELE,* District
`Judge.
`
`PER CURIAM:
`
`Inform, a digital media advertising company, brought an an-
`titrust lawsuit against Google; its parent company, Alphabet;
`Google’s subsidiary, YouTube (collectively, we refer to these three
`defendants as the “Google defendants”); and John Does 1–100, for
`alleged violations of the Sherman Act and the Clayton Act, and for
`state-law tortious interference. The district court dismissed with-
`out prejudice Inform’s original complaint as a shotgun pleading. It
`then dismissed Inform’s new complaint on shotgun-pleading
`grounds again, this time with prejudice. It also concluded that In-
`form had not shown antitrust standing and that dismissal was ap-
`propriate on this ground as well. Inform now appeals.
`
`
`* The Honorable John Steele, United States District Judge for the Middle District
`of Florida, sitting by designation.
`
`
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`Upon consideration, and with the benefit of oral argument,
`we reverse the district court’s dismissal order and remand the case
`for further proceedings.
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`
`
`I.
`A. The district court dismisses Inform’s original
`
`complaint as a shotgun pleading.
`Inform filed a complaint in the United States District Court
`for the Northern District of Georgia against Google LLC, Alphabet
`Inc., YouTube, and John Does 1–100. The complaint asserted fed-
`eral antitrust claims and a Georgia state-law claim for tortious in-
`terference. The Google defendants moved to dismiss the com-
`plaint. They argued that the complaint failed to state a claim and
`that Inform lacks Article III and antitrust standing. Besides that,
`they characterized the complaint as an impermissible shotgun
`pleading.
`
`Upon consideration, the district court granted in part and
`denied in part the motion to dismiss. It didn’t rule on the merits of
`the Google defendants’ motion but instead found that the com-
`plaint was a “quintessential shotgun pleading of the kind the Elev-
`enth Circuit has condemned repeatedly.” The district court identi-
`fied the particular pleading deficiencies, dismissed the complaint
`without prejudice, instructed Inform what a proper complaint
`should look like, and ordered Inform to file an amended complaint
`in accordance with those instructions.
`B. Inform files an amended complaint.
`
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`Two weeks after the district court issued that order, Inform
`filed its first amended complaint. It asserted the following seven
`causes of action: (1) violation of Section 1 of the Sherman Act (un-
`reasonable restraints on trade); (2) violation of Section 2 of the
`Sherman Act (monopoly maintenance); (3) violation of § 2 of the
`Sherman Act (monopoly leveraging); (4) violation of § 2 of the
`Sherman Act (attempted monopolization); (5) violation of § 2 of
`the Sherman Act (exclusive dealing); (6) violation of § 3 of the Clay-
`ton Act (exclusive dealing and tying); and (7) tortious interference.
`
`The amended complaint details a long history of Google’s
`allegedly anticompetitive practices.1 Inform says that Google is
`“the largest monopoly in the history of the U.S. antitrust laws” and
`claims that it enjoys monopoly power in at least seven markets: (1)
`“internet search” market; (2) “licensable mobile device operating
`system” market; (3) “ad server” market; (4) “web browser” market;
`(5) “online advertising” market; (6) “search advertising” market;
`and (7) “online video advertising” market. As it pertains to Inform,
`this case primarily involves the “online advertising” and “online
`video advertising” markets.
`Online advertising consists of marketing advertisements,
`which are delivered through the internet on both computers and
`
`
`1 We view and recite these factual allegations in the light most favorable to
`Inform, as we must at this juncture in the proceedings. See Palmyra Park
`Hosp. Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1295 (11th Cir.
`2010). The actual facts may or may not be as alleged.
`
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`mobile devices. When the internet first started to take off in the
`early 1990s, traditional print publishers created websites and began
`to publish their substantive content online. That online content
`earned (and continues to earn) the attention of many users’ eye-
`balls. And the attention of those users’ eyeballs opened the door to
`advertising profits through various forms of online advertising, in-
`cluding search advertising, display advertising, online video adver-
`tising, and social media advertising. Just like other advertising me-
`dia, online advertising often involves (1) a publisher, who inte-
`grates advertisements into its online content; (2) an advertiser, who
`provides the advertisements to be displayed; and (3) advertising
`agencies, which help create and place the ads.
`
`Inform is a digital media company that provides a platform
`of services to online publishers, content creators and online adver-
`tisers. It manages the distribution and delivery of video advertise-
`ments from content creators into articles on newspaper, magazine,
`radio, and television websites. Inform works with both publishers
`(i.e., website operators for newspaper, magazine, radio, and televi-
`sion sites) and advertisers. Inform’s platform enables publishers to
`pair corresponding video with their original text content to en-
`hance the user’s experience and understanding of the publisher’s
`story. And for advertisers, Inform provides brands with an oppor-
`tunity to deliver video advertisements to the audience most likely
`to consume their products.
`At its peak, Inform had an inventory of ad space from a net-
`work of approximately 5,000 publishers. Inform says that this
`
`
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`“aggregated digital audience allowed [it] to work with a brand (or
`the advertising agency representing a brand) to optimize the place-
`ment of its ads to reach that brand’s specific target demographic.”
`Inform claims that it garnered revenue of more than $180 million
`from 2010 to 2017.
`According to Inform, the Google defendants’ alleged anti-
`competitive conduct decimated its business. Because a company’s
`advertising services must be compatible with Google’s ad products
`and Google’s Chrome Browser, Inform claims, Google can influ-
`ence industry standards in its own favor. Google accomplishes that
`by setting arbitrary and anticompetitive rules for viewing and lis-
`tening to video content and video advertisements. And those rules
`ultimately preference Google, YouTube, and Google’s other prod-
`ucts and services.
`In particular, Inform focuses on Google’s decision to transi-
`tion from Flash to HTML5. Flash is a proprietary digital software
`developed by Adobe. HTML5, on the other hand, is open-source
`technology, meaning that anyone can use, inspect, modify, or en-
`hance it. Inform asserts that Flash was the standard for playing
`video on websites for more than a decade, so most advertising con-
`tent was originally developed in Flash. But in 2014, Inform contin-
`ues, Google began offering Flash-to-HTML5 conversion tools for
`the Google Display Network that would create a backup HTML5
`video advertisement to run when Flash was disabled or otherwise
`not supported.
`
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`Then, on January 27, 2015, YouTube announced that it
`would no longer use Flash by default and would instead use the
`HTML5 video player in Google’s Chrome and other browsers. In
`February 2015, Google started to automatically convert both exist-
`ing and new advertisements that were supported by Flash to
`HTML5, but only when the advertiser uploaded its ads through
`Google’s AdWords, AdWords Editor, or third-party tools that
`worked with Google’s ad platform.
`
`As Inform tells the story, in June 2015, Google Chrome be-
`gan to “intelligently pause” ads that were supported by Flash. By
`2017, Google disabled Flash entirely in favor of HTML5. Because
`Google disabled Flash, if an advertisement supported by Flash was
`presented to a consumer, a pop-up would appear to the consumer
`asking if that consumer “wanted to allow Adobe Flash to run on
`this site?” By clicking “allow,” a consumer could still see the adver-
`tisement. But Inform contends that most consumers would not
`authorize Flash to run, so they would not see the advertisement.
`
`Even though HTML5 is open-source and not owned by
`Google, Inform contends that Google has more control over how,
`when, and what videos are played with HTML5 than it had before
`with Flash. Inform alleges that, because of Google’s transition to
`HTML5, advertisers that had ads supported by Flash either had to
`convert their content to HTML5 or migrate to the Google network
`to reach target users. When Google disabled Flash in 2017, it had
`the “immediate effect,” according to Inform, of foreclosing a signif-
`icant portion of online advertisers from reaching users and target
`
`
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`audiences. As a result of this conduct, Inform asserts that Google
`“syphoned off customers from Inform and other competitors[,] and
`hundreds of online advertisers and publishers withered and died,
`while Google and YouTube plundered valuable video advertise-
`ments that had supported publisher’s websites.” In Inform’s
`words, it was “severely impacted overnight,” and its business was
`sent “plummeting.”
`Based on this alleged conduct, Inform contends that Google
`engaged in the following anticompetitive conduct: (1) exclusive
`dealing and anticompetitive contracts; (2) illegal tying and bun-
`dling of services; (3) unilateral setting and altering of technological
`standards; (4) manipulative and technological blocking, exclusion,
`downgrading and denial of interoperability; (5) preferential treat-
`ment of its own products and services; (6) denial of interoperability
`and purposeful incompatibility; (7) opacity as to function, pricing
`and data; and (8) predatory pricing.
`
`Inform also alleges that it is not alone in suffering harm from
`Google’s anticompetitive conduct. The complaint also contends
`that Google’s conduct harms consumers by degrading their pri-
`vacy, stifling innovation, raising prices, and decreasing the quality
`and variety of products available to consumers.
`C. The district court dismisses with prejudice the
`
`amended complaint again as a shotgun pleading and,
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`for the first time, on antitrust standing grounds.
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`In response to Inform’s filing of its amended complaint, the
`Google defendants filed another motion to dismiss. They argued
`that the amended complaint was still a shotgun pleading and failed
`to cure four of the five deficiencies that the district-court order had
`outlined. And once again, they asserted that Inform lacked Article
`III and antitrust standing and failed to plead any claims for relief.
`The district court granted the Google defendants’ motion,
`agreeing that the amended complaint was still an impermissible
`shotgun pleading. In the district court’s view, the amended com-
`plaint is “cumbersome” and “suffers from some of the same defi-
`ciencies as the first.” Because the district court concluded that the
`amended complaint is “rife with immaterial factual and conclusory
`allegations” and “does not specify which defendants are responsible
`for which act or omissions,” the district court dismissed it—this
`time with prejudice.
`Besides concluding that the amended complaint is an im-
`proper shotgun pleading, the district court also ruled that dismissal
`was required because Inform had not shown antitrust standing.
`The court found that Inform had not met the two factors to estab-
`lish antitrust standing: (1) that it had suffered an “antitrust injury,”
`and (2) that it was an “efficient enforcer of antitrust laws.”
`In the end, the district court dismissed all claims with preju-
`dice, except for the state-law tortious-interference claim. Inform
`timely appealed. We have jurisdiction. 28 U.S.C. § 1291.
`II.
`
`
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`We review a dismissal on shotgun-pleading grounds for an
`abuse of discretion. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291,
`1294 (11th Cir. 2018).
`We review issues of antitrust standing de novo. Fla. Seed
`Co. v. Monsanto Co., 105 F.3d 1372, 1374 (11th Cir. 1997).
`III.
`We first address whether the district court abused its discre-
`tion when it dismissed Inform’s amended complaint with prejudice
`on shotgun pleading grounds. We then examine whether the dis-
`trict erred in dismissing the amended complaint on the alternative
`ground that Inform does not have antitrust standing to pursue its
`claims. Finally, we consider whether to reach the merits of the
`Google defendants’ Rule 12(b)(6) arguments that the district court
`never addressed.
`
`A. The amended complaint is not a shotgun pleading.
`A shotgun pleading is a complaint that violates Federal Rule
`of Civil Procedure 8(a)(2), Rule 10(b), or both. Barmapov v.
`Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021). We have explained
`that “the spirit, if not the letter,” of the Federal Rules of Civil Pro-
`cedure prohibit shotgun pleadings “because they are calculated to
`confuse the enemy, and the court,” id. We’ve also said that shot-
`gun pleadings “exact an intolerable toll on the trial court’s docket,
`lead to unnecessary and unchanneled discovery, and impose un-
`warranted expense on the litigants, the court, and the court’s pa-
`rajudicial personnel and resources.” Jackson v. Bank of Am., N.A.,
`
`
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`898 F.3d 1348, 1356–57 (11th Cir. 2018) (quoting Cramer v. Florida,
`117 F.3d 1258, 1263 (11th Cir. 1997)). As these words suggest, we
`“have little tolerance for shotgun pleadings.” Vibe Micro, 878 F.3d
`at 1295.
`We have identified four main types of shotgun pleadings.
`See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313,
`1321–23 (11th Cir. 2015). First, the most common type is a com-
`plaint “containing multiple counts where each count adopts the al-
`legations of all preceding counts, causing each successive count to
`carry all that came before and the last count to be a combination of
`the entire complaint.” Id. at 1321. Second, the next most common
`type is a complaint that “does not commit the mortal sin of re-al-
`leging all preceding counts but is guilty of the venial sin of being
`replete with conclusory, vague, and immaterial facts not obviously
`connected to any particular cause of action.” Id. at 1321–22. Third
`is a complaint that does “not separate[e] into a different count each
`cause of action or claim for relief.” Id. at 1322–23. And fourth,
`we’ve described the “relatively rare sin” of “asserting multiple
`claims against multiple defendants without specifying which of the
`defendants are responsible for which acts or omissions, or which of
`the defendants the claim is brought against.” Id. at 1323.
`“The unifying characteristic of all types of shotgun pleadings
`is that they fail to one degree or another, and in one way or an-
`other, to give the defendants adequate notice of the claims against
`them and the grounds upon which each claim rests.” Id. Dismissal
`on shotgun-pleading grounds is appropriate when “it is virtually
`
`
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`impossible to know which allegations of fact are intended to sup-
`port which claim(s) for relief.” Id. at 1325.
`Here, Inform’s amended complaint lacks the defining fea-
`ture of shotgun pleadings, as it is not “virtually impossible” to dis-
`cern which factual allegations support each of Inform’s claims. To
`be sure, the complaint is certainly long and may not be a paragon
`of clarity. But that did not prevent the district court or the Google
`defendants from understanding the basis of Inform’s core antitrust
`claims for monopolization offenses, exclusive dealing, and tying.
`The district court even included a chart in its dismissal order that
`shows exactly which paragraphs correspond to which count:
`
`
`And in our view, the allegations don’t make it “virtually impossi-
`ble” to identify the facts supporting each count.
`
`The amended complaint also sufficiently alleges the conduct
`attributable to each defendant. The factual allegations describe
`Google as the active wrongdoer that acquired other entities, dom-
`inated various markets, and excluded rivals through allegedly im-
`proper conduct. And the amended complaint added multiple spe-
`cific allegations of wrongdoing by YouTube, as well as facts show-
`ing how YouTube ostensibly contributes to and benefits from
`
`
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`Google’s conduct. Even if the amended complaint did not suffi-
`ciently allege a basis to hold YouTube and Alphabet liable with
`Google as a single economic entity, see Copperweld Corp. v. Inde-
`pendence Tube Corp., 467 U.S. 752 (1984), that’s a Rule 12(b)(6)
`problem, not a shotgun-pleading problem.
`
`In short, while the amended complaint may display some of
`the characteristics of what we have described as shotgun pleadings,
`we do not think the complaint fails “to give the defendants ade-
`quate notice of the claims against them and the grounds upon
`which each claim rests.” Weiland, 792 F.3d at 1323.
`B. Inform has sufficiently pled antitrust standing
`The district court also ruled that dismissal was appropriate
`because Inform had not shown antitrust standing. We disagree and
`conclude that, based on the allegations in its complaint, Inform en-
`joys standing to pursue its antitrust claims.2
`
`
`2 As a preliminary matter, we also find that Inform’s allegations satisfy the
`requirements for Article III standing. To establish Article III standing, a plain-
`tiff must show that they suffered an injury in fact, which is fairly traceable to
`the defendant’s conduct and which will be redressed by a favorable decision.
`See, e.g., Laufer v. Arpan LLC, 29 F.4th 1268, 1272 (11th Cir. 2022). Here,
`Inform alleges that the Google defendants’ anticompetitive conduct deci-
`mated Inform’s business. And that allegation easily satisfies the injury-in-fact
`requirement. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021)
`(“If a defendant has caused physical or monetary injury to the plaintiff, the
`plaintiff has suffered a concrete injury under Article III.”). That alleged injury
`is also fairly traceable to the Google defendants’ anticompetitive conduct. See
`Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (explaining that
`
`
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`To show antitrust standing, “a plaintiff must do more than
`satisfy the basic ‘case or controversy’ requirements” necessary to
`establish Article III standing. Palmyra Park Hosp. Inc. v. Phoebe
`Putney Mem’l Hosp., 604 F.3d 1291, 1299 (11th Cir. 2010). Besides
`those constitutional requirements, a plaintiff must demonstrate
`that it meets a number of “prudential considerations aimed at pre-
`serving the effective enforcement of the antitrust laws.” Id. (quot-
`ing Todorov v. DCH Healthcare Auth., 912 F.2d 1438, 1448 (11th
`Cir. 1991)).
`
`We use a “two-prong test” to determine whether a plaintiff
`has antitrust standing. Id. First, a plaintiff must allege that it has
`suffered an “antitrust injury.” Id. An antitrust injury is an “injury
`of the type the antitrust laws were intended to prevent and that
`flows from that which makes the defendants’ acts unlawful.” Id.
`(quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.
`477, 489 (1977)). “The injury should reflect the anticompetitive ef-
`fect either of the violation or of anticompetitive acts made possible
`by the violation. It should, in short, be the type of loss that the
`claimed violations would be likely to cause.” Id. (cleaned up).
`
`
`merely “showing that a plaintif’s injury is indirectly caused by a defendant’s
`actions satisfies the fairly[-]traceable requirement.”). As Inform’s complaint
`tells it, the disabling of Flash on Google platforms in 2017 had the “immediate
`effect” of decimating Inform’s business. Finally, a favorable decision will re-
`dress Inform’s alleged injury, as Inform seeks compensatory damages for the
`injury it alleges it has suffered. See id. (“Plaintiffs allege a monetary injury and
`an award of compensatory damages would redress that injury.”).
`
`
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`And second, a plaintiff must establish that it is an “efficient
`enforcer of the antitrust laws.” Id. We consider several non-ex-
`haustive factors in determining whether a plaintiff would be an ef-
`ficient enforcer of the antitrust laws, including the directness of the
`injury; the remoteness of the injury; whether other plaintiffs are
`better suited to bring suit; whether the damages are highly specu-
`lative; whether the calculation of damages would be highly com-
`plex and run the risk of duplicative recoveries; and whether the
`plaintiff would be able to efficiently and effectively enforce the
`judgment. See id. (citing Associated Gen. Contractors of Califor-
`nia, Inc. v. California State Council of Carpenters, 459 U.S. 519,
`537–46 (1983)).
`Inform has sufficiently alleged both requirements to estab-
`lish antitrust standing in its amended complaint. As for antitrust
`injury, Inform has alleged that it lost millions of dollars because
`Google excluded it from competing in the online advertising mar-
`kets. The amended complaint also asserts that Google excluded all
`competitors from the online advertising markets by disabling and
`disparaging its competitors’ products and services; illegally condi-
`tioning the purchase of ads on its subsidiary YouTube on Google’s
`ad-buying tools; using its control over the dominant ad auction to
`preference its own offerings and disadvantage those of rivals; and
`purposefully rendering some of its dominant products and services
`incompatible with its competitors’ offerings.
`Google allegedly did all of that to avoid and eliminate com-
`petition, rather than meet it on the merits. And in so doing, Google
`
`
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`not only harmed its competitors, but also hurt consumers, alleg-
`edly degrading their privacy, stifling innovation, raising prices, and
`decreasing the quality and variety of products available to consum-
`ers. These allegations suffice to establish antitrust injury at the
`pleading stage. See Gulf States Reorganization Grp., Inc. v. Nucor
`Corp., 466 F.3d 961, 967–68 (11th Cir. 2006) (holding that plaintiff
`pled sufficient antitrust injury when alleged monopolist “denied
`consumers . . . the benefit of the pressure to lower prices that
`would likely come about if the [plaintiff] became a viable competi-
`tor”).
`
`Inform also contends that it is an efficient enforcer of the an-
`titrust laws as a would-be competitor excluded from the online ad-
`vertising markets. We agree. On this issue, our decision in Pal-
`myra Park Hosp. Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d
`1291 (11th Cir. 2010), controls. There, a plaintiff hospital alleged
`that a competing, dominant hospital excluded it from the relevant
`market through tying agreements with key insurers. The district
`court concluded that the injury was “indirect” because several steps
`had to occur before the plaintiff lost revenue—specifically, insurers
`first had to agree to deal with the defendant, and then their policy
`holders had to choose the defendant’s hospital instead of the plain-
`tiff’s. Id. at 1303–04. We reversed, observing that “although [the
`plaintiff’s] injury occurs several steps down the causal chain, once
`[the defendant] starts the ball rolling with its tying arrangement,
`[the plaintiff’s] injury all but inevitably follows.” Id.
`
`
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`Similarly, Inform has alleged that because of Google’s dom-
`inance in the online advertising markets, a rational publisher or ad-
`vertiser would not now select a non-Google ad service. As in Pal-
`myra Park, then, it asserts that once the Google defendants “started
`the ball rolling” by switching to HTML5, it was “inevitabl[e]” that
`its competitors, like Inform, would be excluded. Id. And as a re-
`sult, Inform avers that Google has all but eviscerated competition
`in the relevant markets. So, Inform concludes, its desire to gain
`access to the market “is entirely consistent with increasing compe-
`tition.” Id. 1304. As we’ve noted, we agree.
`The Google defendants argue, and the district court found,
`that advertisers, publishers, and Adobe are better suited to bring
`this action. Perhaps. But Inform need be only “an efficient en-
`forcer” of the antitrust laws, Palmyra Park, 604 F.3d at 1299, not
`the only or even the most efficient one. Inform clears that bar at
`this stage in the litigation.
`
`In sum, Inform has sufficiently pled that it has antitrust
`standing.
`C. We decline to address the Google parties’ Rule
`12(b)(6) arguments
`Finally, the Google defendants ask us to alternatively affirm
`the district court based on the merits of its Rule 12(b)(6) argu-
`ments—even though the district court has never reached those ar-
`guments. We decline. Although it’s true that we may affirm on a
`ground not addressed by the district court, see Fla. Wildlife Fed’n
`
`
`
`USCA11 Case: 21-13289 Date Filed: 08/26/2022 Page: 18 of 18
`
`18
`
`Opinion of the Court
`
`21-13289
`
`Inc. v. U.S. Army Corps of Eng’rs, 859 F.3d 1306, 1316 (11th Cir.
`2017), we ordinarily prefer that district courts address issues in the
`first instance. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
`n.4 (11th Cir. 2001). So we leave those arguments for the district
`court’s consideration on remand.
`IV.
`For the reasons we explained, we reverse the decision of the
`
`district court and remand for proceedings consistent with this opin-
`ion.
`
`
`
`REVERSED AND REMANDED.
`
`
`
`
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