Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 1 of 9
`
`THE HONORABLE JOHN C. COUGHENOUR
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`WOLFIRE GAMES, LLC, SEAN COLVIN,
`SUSANN DAVIS, DANIEL ESCOBAR,
`WILLIAM HERBERT, RYAN LALLY, HOPE
`MARCHIONDA, EVERETT STEPHENS,
`individually and on behalf of all others similarly
`situated,
`
`Plaintiffs,
`
`v.
`
`VALVE CORPORATION,
`
`Defendant.
`
`DARK CATT STUDIOS HOLDINGS, INC., and
`DARK CATT STUDIOS INTERACTIVE LLC,
`on behalf of themselves and all others similarly
`situated,
`
`Plaintiffs,
`
`v.
`
`VALVE CORPORATION,
`
`Defendant.
`
` CASE NO.: 2:21-cv-00563-JCC
`
` CASE NO.: 2:21-cv-00872-JCC
`
`DARK CATT PLAINTIFFS’ REPLY IN
`SUPPORT OF MOTION FOR
`APPOINTMENT OF CO-LEAD
`INTERIM COUNSEL FOR PROPOSED
`DEVELOPER CLASS PURSUANT TO
`FEDERAL RULE OF CIVIL
`PROCEDURE 23(g)(3)
`
`NOTE ON MOTION CALENDAR:
`Sept. 17, 2021
`
`ORAL ARGUMENT REQUESTED
`
`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 2 of 9
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`TABLE OF CONTENTS
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`Page
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`I.
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`A FUNDAMENTAL CONFLICT OF INTEREST COMPELS SEPARATE
`COUNSEL .......................................................................................................................... 1
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`A.
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`B.
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`Wolfire’s Two-Sided Platform Argument Does Not Address the Conflict ............ 2
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`The Case Law in Wolfire’s Opposition Illustrates the Conflict ............................. 3
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`II.
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`III.
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`THESE BUYERS AND SELLERS SHOULD NOT BE JOINTLY
`REPRESENTED ................................................................................................................. 4
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`DARK CATT’S COUNSEL WILL EFFICIENTLY PROSECUTE THIS
`ACTION ............................................................................................................................. 5
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`IV.
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`CONCLUSION ................................................................................................................... 6
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-i-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 3 of 9
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`The proposed Developer class cannot be represented by the same lawyers as game buyers
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`due to inherent conflicts. One set of counsel cannot adequately serve both groups’ interests. Dark
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`Catt illustrated one key conflict, yet Wolfire tellingly ignores it in its Opposition. ECF No. 43.
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`Wolfire does not explain how its lawyers can develop the discovery and expert record,
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`then—consistent with their duties to Developers—elicit testimony, proffer expert opinions, and
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`tell a jury that Developers would have passed on savings from Valve’s lower commissions as lower
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`prices to the lawyers’ game buyer clients. This presentation would establish that buyers were
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`harmed by paying higher game prices, but would make the jury (wrongly) think Developers were
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`not—Developers simply elevated their game prices in response to Valve’s anticompetitive conduct
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`and were, in effect, reimbursed by the game buyers for any overcharges they paid to Valve.
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`Wolfire’s cases do not answer this conflict or show how one set of counsel can advocate
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`for both groups, instead showing that this scenario is rarely even attempted. Litigation efficiency
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`is no answer; efficiencies do not trump adequate representation. Nor are there real efficiencies.
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`Wolfire will need to rely on more complex legal theories and market definitions, more challenging
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`class certification analyses, and less optimal strategic choices to represent both Developers and
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`gamers than Dark Catt’s Developer case. These and other conflicts will add up. Dark Catt’s case
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`has already advanced faster than the others; it took two months from complaint filing to Valve’s
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`responsive pleading (even agreeing to two extensions) compared to six months for Colvin (the first
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`game buyer case) and three months for Wolfire. The cases are now at virtually the same stage.
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`Appointing separate class counsel now will ensure Developers’ and buyers’ interests are
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`protected and avoid later questions over unitary counsel’s divided loyalties. LGN and WSGR are
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`highly qualified and will work effectively with counsel for the gamers to coordinate and prosecute
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`both classes’ cases, as the Court should expect and this type of complex litigation demands.
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`I. A FUNDAMENTAL CONFLICT OF INTEREST COMPELS SEPARATE COUNSEL
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`Developers will seek to prove they were damaged by paying inflated commissions to Valve
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`as a result of Valve’s monopolistic conduct. At the same time, game buyers will seek to prove they
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`were damaged by paying Developers more for games than they would have but for Valve’s
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-1-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
`

`

`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 4 of 9
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`conduct, i.e., that in a competitive but-for world, Developers would have passed on lower
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`commissions by lowering game prices to buyers. If presented by the same counsel to one jury, in
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`arguing to increase their buyer clients’ recovery, counsel will undercut their Developer clients’
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`recovery. Developers would not want their own counsel wrongly and prejudicially implying lower
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`damages, especially when Valve itself cannot make this argument.1
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`A.
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`Wolfire’s Two-Sided Platform Argument Does Not Address the Conflict
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`Labeling this a two-sided market case only papers over Wolfire’s problem.2 Even assuming
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`a two-sided market, as Wolfire argues,3 that does not require common counsel or solve the conflict.
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`Wolfire relies on Ohio v. American Express Co., 138 S. Ct. 2274 (2018), which discussed proof
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`of anticompetitive effects in the relevant market for a rule of reason analysis. It had nothing to do
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`with proper plaintiffs or adequacy of class representation. Nor could it touch on the conflict issue
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`here—it was brought by the United States and 17 states.4 Likewise, US Airways, Inc. v. Sabre
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`Holdings Corp., 938 F.3d 43 (2d Cir. 2019), involved a single plaintiff and said nothing about
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`needing to join actors on the other side of the market. Amex and Sabre do not support Wolfire’s
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`argument that Developers and buyers are better off with unitary counsel or in a single class.
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`Moreover, the cases involved platforms where one side of the market financially benefited,
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`so the positive and negative effects of the platforms’ conduct had to be netted out to determine
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`anticompetitive effects (and damages). By contrast, Wolfire alleges harm to both sides of the
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`market and does not explain why this analysis requires both groups to proceed as one class with
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`the same counsel. Nor do they explain why this case differs from In re Payment Card Interchange
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`1 Valve cannot introduce evidence to reduce Developers’ damages by showing that Developers passed
`on all or part of those commissions to their customers. See Hanover Shoe, Inc. v. United Shoe Machinery
`Corp., 392 U.S. 481, 489 (1968).
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`2 Dark Catt refers to all Plaintiffs in the Wolfire Action collectively as Wolfire herein.
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`3 It is unclear which of the Wolfire Complaint’s relevant markets is the two-sided platform. It defines
`two separate markets that are tied, one of which includes competitors such as Walmart, Target, and
`GameStop. Wolfire Compl. ¶ 127. Surely they do not contend these three retailers are two-sided platforms.
`See Amex, 138 S. Ct. at 2287. Their third “alternative” transaction platform market more closely resembles
`Amex, but is pled only because “Valve may argue there instead exists a single relevant market.” Wolfire
`Compl. ¶ 132. Notably, Valve challenges Wolfire’s—but not Dark Catt’s—market definition.
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`4 The private analog before the same court involved only merchants. See In re Am. Exp. Anti-Steering
`Rules Antitrust Litig., 361 F. Supp. 3d 324 (E.D.N.Y. 2019).
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-2-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
`

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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 5 of 9
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`Fee, which they frequently cite for their counsel’s experience with two-sided markets; it involves
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`a class of merchants only. That is, only one side of the market is represented.
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`Regardless, Wolfire is mistaken in arguing that Dark Catt has undercut its own case by
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`supposedly ignoring the game buyer “side” of the market. Dark Catt alleges that buyers may have
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`been harmed by Valve’s practices. Compl. ¶¶ 8, 10, 11, 22, 72, 78, 131-32, 140-41, 195-96, 201,
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`237. Yet the buyers’ harm is linked to Developers’ pricing choices. This is not contrary to Amex.
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`Rather, it follows the Supreme Court’s explanation in Apple Inc. v. Pepper that retail prices may
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`not have differed in the but-for world where Apple (or Valve) charged a competitive commission,
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`i.e., “consumers’ damages would presumably be zero” because app developers kept the extra
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`revenue. 139 S. Ct. 1514, 1523 (2019). Developers can show their own harm and harm to buyers
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`without undermining their own case when represented by separate, unconflicted counsel.
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`B.
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`The Case Law in Wolfire’s Opposition Illustrates the Conflict
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`Apple v. Pepper and the case on remand (cited throughout by Wolfire) support Dark Catt’s
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`position. In finding that iPhone app purchasers have antitrust standing as direct purchasers, the
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`Supreme Court explained that Apple could face two suits—one by “downstream iPhone
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`consumers” and one by “upstream app developers”—where “the two suits would rely on
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`fundamentally different theories of harm.” 139 S. Ct. 1514, 1525 (2019) (emphasis added). So too
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`here with the theories pleaded by Developers (“upstream suppliers”) and buyers (“downstream
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`consumers”), with Valve as the “retailer who is both a monopolist and a monopsonist” whose
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`“unlawful conduct affects both the downstream and upstream markets.” Id. Notably, the Court did
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`not describe a two-sided market. Dark Catt’s Complaint accords with this precedent.
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`Wolfire points to Justice Gorsuch’s dissent in Pepper—concluding downstream buyers
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`should be considered indirect purchasers—to argue that game buyers may be necessary parties in
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`a suit by developers. Opp’n at 5-6. Even if they were, which Dark Catt disputes, this does not mean
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`they should be represented by the same counsel or proceed in the same class. Quite the opposite:
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`the legal interest requiring joinder likely means their interests are not aligned with the existing
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`parties. As Justice Gorsuch put it: “If, as plaintiffs contend, Apple’s 30% commission is a
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-3-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
`

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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 6 of 9
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`monopolistic overcharge, then the app developers have a claim against Apple to recover whatever
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`portion of the commission they did not pass on to consumers. . . . So courts will have to divvy up
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`the commissions Apple collected between the developers and the consumers.” 139 S. Ct. at 1529
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`(citation omitted); see also Opp’n at 7 n.9 (recognizing that Developers and buyers “need to model
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`allocating some portion of the overcharges to the other ‘side’ of the platform”).5 The same lawyers
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`cannot represent two different groups wrestling one other to “divvy up” overcharges.
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`This is not a speculative conflict that can be fixed later by subdividing an omnibus class
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`and assigning separate counsel. As soon as discovery commences, buyers will want their lawyers
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`to begin developing evidence of class-wide antitrust injury through Developers passing on
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`commission savings by lowering game prices. If Developers are in the same class, this class-wide
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`injury theory will come at their expense. The conflict will affect the life of the case: developing
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`evidence of the relevant market (or markets for Wolfire), monopoly power, monopolistic conduct,
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`antitrust injury, and damages. See In re Literary Works in Elec. Databases Copyright Litig., 654
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`F.3d 242, 253 (2d Cir. 2011) (“how can the value of any subgroup of claims be properly assessed
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`without independent counsel pressing its most compelling case?”); id. at 254 (a shared interest in
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`“maximizing the collective recovery” does not determine adequacy of representation).
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`II. THESE BUYERS AND SELLERS SHOULD NOT BE JOINTLY REPRESENTED
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`The “buyer and seller” cases Wolfire cites are inapt. In the securities class actions, the
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`alleged conflict was between class members who bought or sold securities during the class period
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`and their presumed desire to maximize or minimize price inflation at the times of their trades. See
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`In re Oxford Health Plans, Inc. Sec. Litig., 191 F.R.D. 369, 377 (S.D.N.Y. 2000) (raising the
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`dispute in the context of the class period definition); Blackie v. Barrack, 524 F.2d 891, 908 (9th
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`Cir. 1975) (addressing deflationary effect of intervening corrective disclosures during the class
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`5 Wolfire cites Apple’s use of this joinder argument in briefing on a trial plan in In re Apple iPhone
`Antitrust Litigation. Opp’n at 6. Apple also states in its brief that “the amount of the alleged overcharge
`passed through by developers to consumers is a necessary element of the Consumer Plaintiffs’ damages
`claim.” Apple Reply at 1, No. 4:11-cv-6714-YGR (N.D. Cal. Aug. 31, 2021), ECF No. 515. That is, app
`purchasers’ injury depends on app developers’ pricing choices, creating a conflict if jointly represented.
`Nor does Wolfire explain why separate classes with separate counsel is a “quirk” in the iPhone cases. Opp’n
`at 9 n.12. It is not. See Mot. at 3 nn.4 & 5, 8-10 (discussing examples).
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-4-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
`

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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 7 of 9
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`period). Because the “chief role” of price inflation is to “determin[e] each plaintiff’s damages,”
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`differences did not defeat the adequacy requirement. In re Oxford Health Plans, 191 F.R.D. at 377.
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`The Developers-buyers conflict is not simply a question of calculating damages but goes
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`to core case theories. See Amchem Prods. v. Windsor, 521 U.S. 591, 625-26 (1997) (class
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`representatives must possess “the same interest and suffer the same injury” as the class); cf. In re
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`NYSE Specialists Sec. Litig., 260 F.R.D. 55, 73 (S.D.N.Y. 2009) (class allegations of securities
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`violations are “based on identical legal and remedial theories” and “assert identical harm”). What’s
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`more, securities class actions operate under a different regime, including a presumption of reliance
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`to establish class-wide causation. See Basic, Inc. v. Levinson, 485 U.S. 224, 243-44 (1988). There
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`is no such presumption here, and as discussed above, the causal connection between buyers’
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`antitrust injury and Valve’s conduct depends on Developers’ pricing decisions.
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`The two antitrust cases Wolfire cites arose in the same securities context with damages
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`based on bid/ask spreads. Conspiring market-makers manipulated spreads to increase their fees,
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`and the alleged conflict between buyers and sellers again related solely to damages calculations,
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`not (as here) a core theory of the case. See In re Credit Default Swaps Antitrust Litig., No. 1:13-
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`md-2476, 2016 U.S. Dist. LEXIS 54587, at *15 (S.D.N.Y. Apr. 25, 2016) (describing
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`determination of amount of settlement fund to be paid to individual class member as the bid/ask
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`spread “reduced by half, as each CDS transaction is a buy or a sell transaction that only incurs half
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`of the cost of the spread”); In re NASDAQ Mkt.-Makers Antitrust Litig., 169 F.R.D. 493, 513
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`(S.D.N.Y. 1996) (alleged conflict related to calculation of damages from “conspiracy to fix” the
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`“price of Defendants’ market-making service … charged both to the buyers and sellers of Class
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`Securities”). The conflict here is not related to a mechanical calculation of individualized damages
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`or a clean split between both sides of the transaction. This case requires a detailed rule of reason
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`analysis and damages modeling that would present conflicting litigation choices for unitary
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`counsel, unlike the price-fixing conspiracies.
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`III. DARK CATT’S COUNSEL WILL EFFICIENTLY PROSECUTE THIS ACTION
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`While Wolfire apparently abandoned its argument that Dark Catt’s complaint “mimic[s]”
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-5-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
`

`

`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 8 of 9
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`theirs and tries to “piggyback off the efforts of” Wolfire’s counsel, Wolfire Mot. at 2, ECF No. 38
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`(Wolfire Action), it now incorrectly asserts Dark Catt seeks to litigate its case “in isolation.” Opp’n
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`at 2. To the contrary, Dark Catt agrees Developers and buyers have common interests, supporting
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`coordinated discovery. See Mot. at 1. But that does not require one class with one set of counsel.
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`Wolfire simply overstates what “[b]oth set of plaintiffs will need to establish” in including two
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`relevant markets and tying. Opp’n at 7. Cases involving buyers and sellers against an intermediary
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`or buyers at different supply chain levels are commonly pursued in coordinated proceedings,
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`providing efficiencies while ensuring each group can serve its own best interests.6 The same model
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`applies here. LGN and WSGR will work efficiently with buyers’ appointed counsel.
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`Wolfire appears to challenge Dark Catt counsel’s ability to satisfy only Rule 23(g)(1)(A)(i).
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`See Opp’n at 12. WSGR’s investigation of Dark Catt’s claims focused on antitrust violations from
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`the start. WSGR later asked LGN to join, adding expertise in the prosecution of antitrust class
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`actions. Dark Catt has pursued its case diligently and is in the same procedural posture as Wolfire,
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`contrary to Wolfire’s contention that Dark Catt’s motion comes “at this late stage.” Opp’n at 1. At
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`the time of their motion, Wolfire’s counsel had “negotiated with Defendant regarding a schedule
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`for upcoming briefing, [was] already in the process of responding to Valve’s motion to compel
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`arbitration, and ha[d] begun responding to Valve’s motion to dismiss.” Wolfire Mot. at 1. Dark
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`Catt’s counsel has done the first and last of these, and does not need to litigate the arbitration issue.
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`Mot. at 1, 6 n.8. Dark Catt can more efficiently pursue Developers’ claims if it does not need to
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`maintain “maximum flexibility,” Opp’n at 10, and bend its litigation strategy to simultaneously
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`accommodate the interests of its counsel’s buyer clients.
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`IV. CONCLUSION
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`Dark Catt respectfully requests that the Court grant its motion to appoint interim counsel.
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`6 See, e.g., In re Google Play Consumer Antitrust Litig., No. 20-cv-5761 and In re Google Play
`Developer Antitrust Litig., No. 20-cv-5792 (N.D. Cal.); In re Apple iPhone Antitrust Litig., No. 11-cv-
`6714 and Cameron v. Apple, Inc., No. 19-cv-3074 (developers) (N.D. Cal.); In re Google Dig. Advert.
`Antitrust Litig., No. 20-cv-3556 and In re Google Dig. Publisher Antitrust Litig., No. 20-cv-8984 (N.D.
`Cal.); In re Aluminum Warehousing Antitrust Litig., No. 13-md-2481 (S.D.N.Y.) (separate cases and
`counsel for direct purchasers, commercial end users, and consumer end users); In re Broiler Chicken
`Antitrust Litig., No. 16-cv-8637 (N.D. Ill.) (reversed appointment of single lead counsel and appointed
`separate counsel for commercial indirect purchasers and consumer indirect purchasers).
`
`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
`
`-6-
`
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
`
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`Case 2:21-cv-00563-JCC Document 58 Filed 09/17/21 Page 9 of 9
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`s/ Stephanie L. Jensen
`Stephanie L. Jensen, WSBA #42042
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Telephone: (206) 883-2500
`Facsimile: (206) 883-2699
`Email: sjensen@wsgr.com
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`Kenneth R. O’Rourke (pro hac vice)
`Scott A. Sher (pro hac vice)
`Allison B. Smith (pro hac vice)
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1700 K Street, NW, Suite 500
`Washington, DC 20006
`Telephone: (202) 973-8800
`Facsimile: (202) 973-8899
`Email: korourke@wsgr.com
`Email: ssher@wsgr.com
`Email: allison.smith@wsgr.com
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`W. Joseph Bruckner (pro hac vice)
`Joseph C. Bourne (pro hac vice)
`Leona B. Ajavon (pro hac vice)
`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`100 Washington Avenue S, Suite 2200
`Minneapolis, MN 55401
`Telephone: (612) 339-6900
`Facsimile: (612) 339-0981
`Email: wjbruckner@locklaw.com
`Email: jcbourne@locklaw.com
`Email: lbajavon@locklaw.com
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`Attorneys for Plaintiffs Dark Catt Studios Holdings,
`Inc. and Dark Catt Studios Interactive LLC, and
`Putative Class
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`1
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`Dated: September 17, 2021
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`REPLY ISO MOT. FOR APPOINTMENT OF INTERIM
`CLASS COUNSEL FOR PROPOSED DEVELOPER CLASS
`NO. 2:21-CV-00872-JCC
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`-7-
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`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel: (206) 883-2500
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