DREAMSTIME.COM, LLC V. GOOGLE LLC, No. 20-16472 (9th Cir. 2022)
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Dreamstime alleged that Google violated Section 2 of the Sherman Act by maintaining a monopoly in the online search advertising market. Dreamstime asserted that Google furthered this monopoly by impeding Dreamstime’s use of Google’s paid advertising services as well as harming Dreamstime’s performance on Google’s free search engine. The district court dismissed on the ground that Dreamstime did not sufficiently allege anticompetitive conduct in the relevant market of online search advertising.
The Ninth Circuit affirmed the district court’s dismissal of an antitrust claim brought by Dreamstime.com, LLC, an online supplier of stock images, against Google LLC. The panel held that the record did not support Dreamstime’s contention that it defined the relevant market to include the online, organic search market (in addition to the online search advertising market). Rather, by its course of conduct before the district court, Dreamstime waived any Section 2 claim arising from the online search market. The panel affirmed the district court’s conclusion that Dreamstime failed to allege anticompetitive conduct in the online search advertising market.
Further, allegations related to Dreamstime’s performance in Google’s unpaid, organic search results did not plausibly state a claim for anticompetitive conduct in the online search advertising market. Dreamstime’s allegation that Google unlawfully captured data from users and advertisers also did not state anticompetitive behavior. Finally, the panel held that the district court properly dismissed Dreamstime’s Section 2 claim with prejudice and without leave to amend.
Court Description: Antitrust. The panel affirmed the district court’s dismissal of an antitrust claim brought by Dreamstime.com, LLC, an online supplier of stock images, against Google LLC. Dreamstime alleged that Google violated § 2 of the Sherman Act by maintaining a monopoly in the online search advertising market. Dreamstime asserted that Google furthered this monopoly by impeding Dreamstime’s use of Google’s paid advertising services as well as harming Dreamstime’s performance on Google’s free search engine. The district court dismissed on the ground that Dreamstime did not sufficiently allege anticompetitive conduct in the relevant market of online search advertising. A § 2 claim includes two elements: (1) the defendant has monopoly power in the relevant market, and (2) the defendant has willfully acquired or maintained monopoly power in that market. To meet the first element, a plaintiff generally must (1) define the relevant market, (2) establish that the defendant possesses market share in that market sufficient to constitute monopoly power, and (3) show that there are significant barriers to entering that market. The second element requires that the defendant engaged in willful acts to acquire or maintain a monopoly in the relevant market. This element requires a showing that a defendant possessing monopoly power undertook anticompetitive conduct and did so with an intent to control process or exclude competition in the relevant market. The panel held that the record did not support Dreamstime’s contention that it defined the relevant market to include the online, organic search market (in addition to the online search advertising market). Rather, by its course of conduct before the district court, Dreamstime waived any § 2 claim arising from the online search market. The panel affirmed the district court’s conclusion that Dreamstime failed to allege anticompetitive conduct in the online search advertising market. The panel held that, as to Dreamstime’s allegations that Google mistreated Dreamstime as a Google customer, Dreamstime did not show that this mistreatment harmed competition in the online search advertising market, and so there was no antitrust injury. Allegations related to Dreamstime’s performance in Google’s unpaid, organic search results did not plausibly state a claim for anticompetitive conduct in the online search advertising market. Dreamstime’s allegation that Google unlawfully captured data from users and advertisers also did not state anticompetitive behavior. Finally, the panel held that the district court properly dismissed Dreamstime’s § 2 claim with prejudice and without leave to amend. The panel addressed additional issues in a separate memorandum disposition filed simultaneously with this opinion.
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