Case 23-910, Document 23, 06/27/2023, 3534150, Page1 of 9
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`No. 23-910
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`In the United States Court of Appeals
`for the Second Circuit
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`In re: Google LLC,
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`Petitioner
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`On Petition for Writ of Mandamus
`to the United States Judicial Panel on Multidistrict Litigation
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`RESPONSE TO GOOGLE’S MOTION TO EXPEDITE
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`Google seems to believe it is an appellant requesting a fast-tracked appeal. It is
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`not. It is a petitioner bringing an original action that seeks the extraordinary writ of
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`mandamus. Petitions for mandamus are governed by Federal Rule of Appellate Pro-
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`cedure 21, which Google’s Motion conspicuously ignores. Under that Rule, apart
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`from its request for leave to file a reply, Google’s Motion is largely superfluous as
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`mandamus petitions “must be given preference over ordinary civil cases.” Fed. R.
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`App. P. 21(b)(6). Moreover, although Google bemoans (at 5) the “great uncer-
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`tainty” that supposedly now reigns in this case, it ignores the most expeditious op-
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`tion of all: the “[C]ourt may deny the petition without an answer.” Fed. R. App. P.
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`21(b)(1). Given that, on its face, the mandamus is without merit, that is what the
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`Court should do. It would thereby provide the parties the “prompt resolution of this
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`case” that Google purports (at 6-7) to seek and obviate the need for the Judicial Panel
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`on Multidistrict Litigation (“JPML”) to resolve Google’s request for a stay, see Mot.
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`4.
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`No. 23-910
`
`In the United States Court of Appeals
`for the Second Circuit
`
`
`
`
`
`
`
`
`
`
`
`In re: Google LLC,
`
`
`
`Petitioner
`
`On Petition for Writ of Mandamus
`to the United States Judicial Panel on Multidistrict Litigation
`
`RESPONSE TO GOOGLE’S MOTION TO EXPEDITE
`
`
`
`
`
`
`
`
`
`
`
`Google seems to believe it is an appellant requesting a fast-tracked appeal. It is
`
`not. It is a petitioner bringing an original action that seeks the extraordinary writ of
`
`mandamus. Petitions for mandamus are governed by Federal Rule of Appellate Pro-
`
`cedure 21, which Google’s Motion conspicuously ignores. Under that Rule, apart
`
`from its request for leave to file a reply, Google’s Motion is largely superfluous as
`
`mandamus petitions “must be given preference over ordinary civil cases.” Fed. R.
`
`App. P. 21(b)(6). Moreover, although Google bemoans (at 5) the “great uncer-
`
`tainty” that supposedly now reigns in this case, it ignores the most expeditious op-
`
`tion of all: the “[C]ourt may deny the petition without an answer.” Fed. R. App. P.
`
`21(b)(1). Given that, on its face, the mandamus is without merit, that is what the
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`Court should do. It would thereby provide the parties the “prompt resolution of this
`
`case” that Google purports (at 6-7) to seek and obviate the need for the Judicial Panel
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`on Multidistrict Litigation (“JPML”) to resolve Google’s request for a stay, see Mot.
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`4.
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page2 of 9
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`I.
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`A writ of mandamus is proper only when the petitioner’s “right to issuance of
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`the writ is clear and indisputable,” and it “ha[s] no other adequate means to attain
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`the relief [it] desires.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004).
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`Moreover, because mandamus “is one of the most potent weapons in the judicial
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`arsenal,” the Supreme Court has explained that “even if [those] two prerequisites
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`have been met, the issuing court, in the exercise of its discretion, must be satisfied
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`that the writ is appropriate under the circumstances.” Id. Even assuming Google is
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`right (at 4-5) that it lacks an alternative remedy on appeal, the Motion demonstrates
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`why Google cannot meet the other two elements, and thus the Petition should be
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`summarily denied without calling for a formal response.
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`A. As the Motion acknowledges (at 3), Google seeks to overturn the JPML’s
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`interpretation of an amendment to its own organic statute. 28 U.S.C. § 1407(g); see
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`also the Venue for State Antitrust Enforcement Act of 2021, Pub. L. No. 117-328,
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`Div. GG, Title III, § 301, 136 Stat. 4459, 5970 (2022). And the Motion concedes (at
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`3) that in reaching its interpretation, the JPML identified the correct standard: the
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`two-part test regarding when a statutory amendment can be retroactively applied in
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`Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). In re Google Dig. Advert.
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`Antitrust Litig., No. 3010 (J.P.M.L. June 5, 2023), ECF No. 250 (“Remand Order”)
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`at 2. Applying a well-established legal test to a statute within its unique control is not
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`the kind of question that the JPML is likely to have gotten wrong. And it did not.
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`First, Landgraf requires the JPML to ask whether the statute’s “express com-
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`mand” addresses retroactivity. 511 U.S. at 280. It did so, holding that “the express
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`2
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page3 of 9
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`language of the Section 1407(g) amendment does not provide an answer as to its
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`temporal reach.” Remand Order at 2. The Motion concedes (at 3) that was correct:
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`“th[e] provision contains no language” addressing retroactivity. Thus, to prevail in
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`its Petition Google would need to show that it is “clear and undisputable,” Cheney,
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`542 U.S. at 380-81, that because Congress rejected a provision expressly permitting
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`the amendment to section 1407 to apply to all cases that were pending before the
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`JPML in 2021, Pet. 10, it meant to preclude its application to cases that are pending
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`in 2023. Google is unlikely to do so. “[I]nferences of legislative intent from unen-
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`acted legislation are” generally deemed “unreliable.” Village of Barrington v. Surface
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`Transp. Bd., 636 F.3d 650, 666 (D.C. Cir. 2011); see also, e.g., Red Lion Broadcasting
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`Co. v. FCC, 395 U.S. 367, 381-82 n.11 (1969) (“[U]nsuccessful attempts at legislation
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`are not the best of guides to legislative intent.”). By contrast, procedural statutes
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`that affect in-court behavior—like venue provisions—are presumed to apply to all
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`actions that remain in court at the time the statute becomes law. Antonin Scalia &
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`Bryan A. Garner, Reading Law: Interpretation of Legal Texts 266 (2012) (discussing
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`the pending-action canon).
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`Second, Landgraf requires the JPML to address “whether the new statute would
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`have retroactive effect.” 511 U.S. at 280. It did that too, holding that no retroactive
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`effect is apparent as “[t]he Section 1407(g) amendment is plainly a procedural rule.”
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`Remand Order at 3. This is entirely consistent with Landgraf, which itself said that
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`retroactive effect turns on whether the “new provision attaches new legal conse-
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`quences” to primary conduct “completed before its enactment.” 511 U.S. at 269-
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`70. “Because rules of procedure regulate secondary rather than primary conduct, the
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`3
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page4 of 9
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`fact that a new procedural rule was instituted after the conduct giving rise to the suit
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`does not make application of the rule at trial retroactive.” Id. at 275. Put another way:
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`an accused monopolist might change his conduct if he knew the Sherman Act’s crim-
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`inal penalties would be doubled. By contrast, having to conduct discovery in two fora
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`is not a cognizable legal harm—even if Google finds one of them as uncongenial as it
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`apparently finds Texas. Cf. Coinbase, Inc. v. Bielski, No. 22-105, 2023 WL 4138983,
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`at *6 (U.S. June 23, 2023) (“[L]itigation expense, even substantial and unrecoupable
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`cost, does not constitute irreparable injury”) (citing Nken v. Holder, 556 U.S. 418,
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`434-35 (2009)). Indeed, conducting discovery in two fora was precisely what the stat-
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`ute contemplated in the section 1407(g) exception for federal antitrust enforcement
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`actions—an exception which Congress has now extended to state antitrust enforce-
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`ment proceedings.
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`Although Google’s Motion insists (at 6) that the JPML’s “legal analysis con-
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`flicts with Supreme Court retroactivity precedent,” it conspicuously fails to cite any.
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`For good reason. Ex parte Collett, 337 U.S. 55 (1949), and United States v. National
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`City Lines, Inc., 337 U.S. 78 (1949), held that changes to venue statutes apply to pend-
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`ing cases because they have no retrospective effect—a rule which the Supreme Court
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`specifically discussed and endorsed in Landsgraf, 511 U.S. at 275. Because “Google
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`ma[de] no attempt to address Ex parte Collett and National City Lines, which are
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`highly relevant to the analysis of whether a new venue provision (in those cases, Sec-
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`tion 1404) applies to pending cases,” the JPML properly concluded that Google for-
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`feited any argument it had to distinguish this binding authority. Remand Order at 3.
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`As a result, Google “left undisputed that, under governing Supreme Court
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`4
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page5 of 9
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`precedent, changes in venue statutes are procedural and thus presumptively apply
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`to all pending actions.” Id.
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`Google’s belated efforts to distinguish these cases in its mandamus petition (at
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`26-27) are to no avail for two independent reasons. First, appellate courts do “not
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`use mandamus to hold the district court responsible for failing to address arguments
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`that were not before it.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1196 (10th
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`Cir. 2009). Indeed, even ordinary appellants are typically bound to the consequences
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`of their own forfeiture. E.g., T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d
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`145, 168 (2d Cir. 2014).
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`Second, Google is wrong to assert (at 27) that Collett and National City Lines are
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`distinguishable because “[n]either case involved undoing anything.” This distinction
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`from Ex parte Collett or National City Lines depends on the premise that a court only
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`“does anything” when it grants a motion. That premise is false. “It is true without
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`question that denials of preliminary injunction are appealable” actions by a district
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`court. Ramos v. Town of Vernon, 208 F.3d 203 (Table), 2000 WL 287698, at *1 (2d
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`Cir. 2000); 28 U.S.C. § 1292(a)(1). And for over half a century, courts—including
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`this one—have held that the denial of a motion to transfer is an action that can, in a
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`“sufficiently ‘extraordinary cause,’” give rise to a petition for a writ of mandamus.
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`Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950); see also, e.g., In re TS Tech
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`USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008) (citing In re Volkswagen of Am., Inc.,
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`545 F.3d 304, 315 (5th Cir.2008) (en banc)). Thus, when Collett and National City
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`Lines allowed transfer based on an amendment to section 1404, the Supreme Court
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`“undid” the relevant district courts’ decision to keep the cases every bit as much as
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`5
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page6 of 9
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`the JPML “undid” the decision that the originating court could not keep the case here.
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`As a result, even if this Court were to consider arguments Google forfeited below
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`(and it should not), the Court can still summarily deny the Petition because Google
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`is unlikely to show that its “right to issuance of the writ is clear and indisputable.”
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`Cheney, 542 U.S. at 381.
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`B. Even if the Court were to conclude that the “two prerequisites have been
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`met,” it should nonetheless summarily deny the writ as not “appropriate under the
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`circumstances” for at least two reasons. Id. First, although the Petition implies oth-
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`erwise (at 30), Google has acknowledged that the legal issue presented here will af-
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`fect at most two cases, one of which is not in this Circuit. Response of Defendant
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`Google LLC in Opposition to the State Plaintiffs’ Motion to Remand to the Eastern
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`District of Texas at 13 n.2, In re: Google Digital Advertising Antitrust Litig., No. 3010
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`(J.P.M.L. Mar. 22, 2023), ECF No. 238. Such a narrow question hardly justifies the
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`extraordinary investment of resources the Motion demands.
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`Second, there is “common agreement” among appellate courts “that mandamus
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`should be available to set aside a transfer” order only “if the district court lacks
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`power to transfer or has acted on wrong legal principles.” 16 Charles Alan Wright &
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`Arthur R. Miller, Federal Practice and Procedure § 3935.4 (3d ed.). But, in the MDL
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`context, every case “transferred shall be remanded by the panel at or before the con-
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`clusion of such pretrial proceedings to the district from which it was transferred un-
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`less it shall have been previously terminated.” 28 U.S.C. § 1407(a). In other words,
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`Google always knew it was heading back to Texas. Although the JPML was unlikely
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`to remand this case before the close of discovery, it always had the power to do so at
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`6
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page7 of 9
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`any point and the obligation to do so before trial. The supposed loss of efficiency as-
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`sociated with doing so now rather than after discovery is not a legally cognizable in-
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`jury that justifies the extraordinary remedy of mandamus. Cf. Coinbase, 2023 WL
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`4138983, at *6.
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`II.
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`Finally, Google should not be permitted to file a reply brief. Unlike an appeal
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`governed by Rule 28, Rule 21 does not provide for petitioners seeking a writ of man-
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`damus to file a reply brief, so one should not be permitted. Compare Fed. R. App. P.
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`28(c) (providing for a reply brief) with id. R. 21 (mentioning a petition and answer,
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`but not any reply). If anything, Google’s insistence that one is necessary “to brief
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`the complex factual and legal issues presented,” Mot. 6 (emphasis added), only un-
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`derscores that a writ of mandamus is likely unavailable here. Under the All Writs
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`Act, this Court may only issue a writ of mandamus as “agreeable to the usages and
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`principles of law.” 28 U.S.C. § 1651(a). Under the common law, petitions that pre-
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`sent “factual disputes are not amenable to the mandamus remedy.” Ellis v. Blum,
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`643 F.2d 68, 81 (2d Cir. 1981); see also, e.g., County of Santa Fe v. Pub. Serv. Co. of
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`N.M., 311 F.3d 1031, 1044 (10th Cir. 2002). Thus, if factual disputes exist that re-
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`quire a reply—and respondents are unclear about what those might be—Google
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`would not be entitled to a mandamus.
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`At a minimum, Google should not need (or be granted) the same amount of time
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`afforded respondents to file their only brief. If Google thinks 10 days is adequate for
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`respondents to present their arguments, Google should be required to reply in five.
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`7
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page8 of 9
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`III.
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`Google should live by the same Rules that govern every other party seeking ex-
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`traordinary relief. Under Rule 21(b)(1), the Court should deny Google’s meritless
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`Petition without requesting a formal answer. If the Court chooses to require an an-
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`swer, it should deny the motion to expedite as superfluous, and any reply as not con-
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`templated by the Rules.
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`Respectfully submitted.
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`Brent Webster
`First Assistant Attorney General
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`/s/ Lanora C. Pettit
`Lanora C. Pettit
`Principal Deputy Solicitor General
`Lanora.Pettit@oag.texas.gov
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`Office of the Attorney General
`P.O. Box 12548 (MC 059)
`Austin, Texas 78711-2548
`Tel.: (512) 936-1700
`Fax: (512) 474-2697
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`Counsel for Respondents
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`8
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`Case 23-910, Document 23, 06/27/2023, 3534150, Page9 of 9
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`Certificate of Service
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`On June 27, 2023, this response was served via CM/ECF on all registered coun-
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`sel and transmitted to the Clerk of the Court.
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`/s/ Lanora C. Pettit
`Lanora C. Pettit
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`Certificate of Compliance
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`This response complies with: (1) the type-volume limitation of Federal Rule of
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`Appellate Procedure 27(d)(2) because it contains 2,022 words, excluding the parts
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`of the brief exempted by Rule 32(f); and (2) the typeface requirements of Rule
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`32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been pre-
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`pared in a proportionally spaced typeface (14-point Equity) using Microsoft Word
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`(the same program used to calculate the word count).
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`/s/ Lanora C. Pettit
`Lanora C. Pettit
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`9
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