Google will try to persuade a federal judge in San Jose, California on Thursday that its Android agreements, which requires Samsung and other phone makers to include products like Google Search and Maps as default apps, are not anti-competitive.
The hearing comes after a hard-nosed class action lawyer sued Google in May, claiming that consumers are harmed by Google’s so-called “MADA’s” (Mobile Application Distribution Agreements), which set out the terms under which device makers can use the Android operating system.
In its motion to dismiss the claim, [company]Google[/company] points out that, while the MADA’s require its own apps to be installed as a default choice, consumers are still free to add other apps, such as Bing Search.
Google also rebuts claims the lawsuit’s claims that its MADA contracts are akin to a famous anti-trust case in the 1990’s in which [company]Microsoft[/company] required computer makers to install its Internet Explorer browser:
But this case is not Microsoft. Plaintiffs ignore critical distinguishing facts, including that Microsoft prohibited OEMs from incorporating rival web browsers on new computers at all. Here, plaintiffs concede that rival search engines have a multitude of ways to reach consumers, including via web browsers (www.bing.com), preloading their search apps on devices, encouraging consumers to take advantage of near-instantaneous app downloads after purchase, or negotiating their own default search arrangements.
The company also asks the judge to throw out the case on the grounds that the lead plaintiffs in the case, including a Galaxy S III owner from Iowa, suffered any harm from Google’s decision to require that phone makers install its apps as a default.
According to the company’s filing, the economic harm theory of the case — which says the Android devices are more expensive because the MADA’s restrict device makers from accepting money from Microsoft and other competitors to make their apps the default ones — is remote and far-fetched.
While the antitrust claims are unusual (and thus may be unlikely to succeed), it is important to Google that it knock out the lawsuit at the preliminary stage. Otherwise, the case will proceed to the discovery phase, in which the opposing lawyers will be able to demand access to a range of the company’s sensitive internal documents, and to conduct depositions with senior executives.
Significantly, the lead lawyer in the case is Steve Berman, who defended Microsoft during anti-trust investigations in the 1990’s. More recently, he helped win a verdict against Apple for fixing the the price of ebooks, which was a high-profile case that yielded numerous documents about the controversial behavior of the company’s late CEO, Steve Jobs.
The hearing is set to take place today at 9am PT in San Jose. Here’s a document related to Google’s motion to dismiss with some of the key parts underlined: