Google Presses Case to Exclude ‘Flawed’ Opinions of Boston University Economist
Google opposes two motions seeking to file amicus briefs in the consolidated Google Pay store litigation in support of the plaintiffs’ opposition to Google’s motion to exclude the “merits opinions” of Boston University economics professor Marc Rysman, said Google’s opposition Friday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco. The American Antitrust Institute and a group of three economists, including former FCC chief economist Katja Seim, filed the motions May 26.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The proposed amicus briefs are “untethered” to Google’s arguments about what the antitrust laws require, said Google’s opposition. They’re also “bereft” of relevant legal authority, it said. The proposed briefs “simply repeat arguments” already made by the plaintiffs in their effort to “rescue” Huysmans' “fatally flawed opinions,” it said.
Rysman created a “variety model” that purports to calculate anticompetitive injury and damages to consumers by estimating how much happier consumers would have been if they had made the same app purchases at the same prices but from a wider set of choices than just the Google Play store, said Google’s opposition. Google wants Rysman’s model excluded because it doesn’t calculate injury to consumers’ property and therefore “purports to estimate damages that are not available as a matter of law,” it said. Google also thinks the model is flawed because it’s based on “abstract assumptions” that Rysman concedes aren’t “true in the real world,” it said.
Neither of the proposed amicus briefs “adds anything to the flawed arguments” that the plaintiffs put forward in opposing Google’s motion to exclude Rysman’s variety model, said the opposition. Neither brief explains how a reduction in consumers’ happiness is a loss of property within the meaning of the Clayton Act, it said. Neither cites any case in which a court “has awarded antitrust damages for consumers’ loss of happiness,” it said. The economists “even concede” they aren’t experts in what the Clayton Act requires as proof of injury and damage, it said.
Neither of the proposed briefs cites any case “in which a court permitted an expert to testify based on a damages model that makes assumptions that the expert admits are not true,” said the opposition. The proposed briefs instead argue the court shouldn’t decide innovation and quality harms can’t be “actionable as a matter of law,” it said. Google isn’t asking the court to reach that conclusion, it said.
Nor is Google arguing the antitrust laws don’t protect product innovation or quality or that harms from lost innovation or quality “could never support an antitrust claim or remedy,” said the opposition. Google’s position is that the antitrust laws don’t authorize damages “for harm to happiness,” which isn’t injury to property, it said. Like the plaintiffs, the proposed briefs don’t and can’t “cite cases authorizing such damages,” it said.
The proposed briefs mischaracterize Google’s position as arguing that economic models “can never be reliable because they must approximate the real world or the but-for world,” said the opposition. “Not so,” it said. Google’s position is that the law doesn’t permit an expert “to choose whatever assumptions the expert likes, especially when the expert admits those assumptions are not true,” as Rysman did, it said. The proposed briefs, like the plaintiffs before them, “cite no case in which any court has permitted an expert to testify in those circumstances,” it said.