Case 23-910, Document 64, 08/14/2023, 3556022, Page1 of 11
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`UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
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`Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
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`MOTION INFORMATION STATEMENT
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`23-910
`Docket Number(s): ________________________________________ _______________Caption [use short title]_____________________
`Plaintiff States’ Response to Emergency
`Motion for: ______________________________________________
`Motion for a Stay Pending Mandamus
`________________________________________________________
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`________________________________________________________
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`Set forth below precise, complete statement of relief sought:
`The Court should immediately vacate the administrative stay
`________________________________________________________
`and deny Google's emergency motion for a stay pending
`________________________________________________________
`mandamus.
`________________________________________________________
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`________________________________________________________
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`________________________________________________________
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`________________________________________________________
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`In re Google LLC
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`Respondents
`MOVING PARTY:_______________________________________ OPPOSING PARTY:____________________________________________
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`___Plaintiff ___Defendant
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`✔
`___Appellant/Petitioner ___Appellee/Respondent
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`Lanora C. Pettit
`MOVING ATTORNEY:___________________________________ OPPOSING ATTORNEY:________________________________________
`[name of attorney, with firm, address, phone number and e-mail]
`Phone: (512) 936-1700
`Lanora C. Pettit
`________________________________________________________ _______________________________________________________________
`Lanoa.Pettit@oag.texas.gov
`Office of the Texas Attorney General
`________________________________________________________ _______________________________________________________________
`P.O. Box 12548 (MC-059), Austin, Texas 78701-2548
`________________________________________________________ _______________________________________________________________
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`Court- Judge/ Agency appealed from: _________________________________________________________________________________________
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`Please check appropriate boxes:
`Has movant notified opposing counsel (required by Local Rule 27.1):
`✔
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`___Yes ___No (explain):__________________________
`_______________________________________________
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`Opposing counsel’s position on motion:
`✔
`___Unopposed ___Opposed ___Don’t Know
`Does opposing counsel intend to file a response:
`___Yes ___No ___Don’t Know
`✔
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`FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
` INJUCTIONS PENDING APPEAL:
`___Yes ___No
`Has this request for relief been made below?
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`___Yes ___No
`Has this relief been previously sought in this court?
`Requested return date and explanation of emergency: ________________
`This is a derivative
`_____________________________________________________________
`request to undo emergency relief requested by petitioners and awarded before
`_____________________________________________________________
`respondents had a reasonable opportunity to respond.
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`_____________________________________________________________
`_____________________________________________________________
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`✔ ✔
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`✔ ✔
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` ___Yes ___No (requests for oral argument will not necessarily be granted)
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` ___ Yes ___No If yes, enter date:_______________________________________________________
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`Is oral argument on motion requested?
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`Has argument date of appeal been set?
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`Signature of Moving Attorney:
`/s/ Lanora C. Pettit
`8/14/2023
`✔
`_________________________________ Date:__________________ Service by: ___CM/ECF ___Other [Attach proof of service]
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`Form T-1080 (rev.12-13)Form T 1080 (F T 1080 ( 12 13)12 13)
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page2 of 11
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`No. 23-910
`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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`Plaintiff States’ Response to Emergency Motion for a
`Stay Pending Mandamus
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`Google has not met its burden to seek the “extraordinary relief,” Michael v.
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`I.N.S., 48 F.3d 657, 664 n.6 (2d Cir. 1995) (quoting Reynolds Metals Co. v. F.E.R.C.,
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`777 F.2d 760, 762 (D.C. Cir. 1985)), of a stay pending resolution of its petition for
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`the already “drastic and extraordinary remed[y]” of a writ of mandamus, Ex parte
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`Collett, 337 U.S. 55, 72 (1949). Among other reasons1—it has entirely failed to
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`demonstrate irreparable harm. Nevertheless, by waiting until shortly before the
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`JPML’s administrative stay would have expired, Google was able to obtain another
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`administrative stay from a member of this Court.
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`1 As Google notes (at 3) “[t]he Court is familiar with the background and proce-
`dural history” because the merits of Google’s underlying petition have been fully
`briefed. Rather than burden the Court with (yet further) duplicative briefing, Plain-
`tiff States incorporate their Response to Petition for Mandamus, ECF No. 32 (“Re-
`sponse”), rather than retread ground thoroughly explored.
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page3 of 11
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`A stay, administrative or otherwise, is an equitable power constrained by tra-
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`ditional equitable principles, which must be, at minimum, “agreeable to the usages
`and principles of law.” 28 U.S.C. § 1651. “[E]quity is flexible; but in the federal sys-
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`tem, at least, that flexibility is confined within the broad boundaries of traditional
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`equitable relief.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S.
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`308, 322 (1999). Here—despite repeatedly losing on the merits—Google has used a
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`series of administrative stays to avoid remand of this case to Texas for more than two
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`months.2 The Court should put a stop to this manipulation of the system, dissolve
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`the current administrative stay, and deny the putatively “emergency” motion for a
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`stay pending mandamus. In due course, the Court should also deny the petition itself.
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`Argument
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`“The four factors to be considered in issuing a stay pending appeal are well
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`known.” In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007)
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`(WTC); Nken v. Holder, 556 U.S. 418, 434 (2009). Google must show: (1) a “strong”
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`likelihood that it will succeed on the merits; (2) that it will be irreparably harmed
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`absent a stay; (3) that the stay will not cause “substantial injury” to State Plaintiffs,
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`and (4) that the public interest favors its request. New York v. U.S.D.H.S., 974 F.3d
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`210, 214 (2d Cir. 2010). Google has not met any of them, and its repeated abuse of
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`the administrative-stay process renders further delay inequitable.
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`1. To start, Google has not shown “the single most important prerequisite for
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`2 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. June 5,
`2023), ECF No. 250 (“Remand Order”) at 3.
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`2
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page4 of 11
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`the issuance” of preliminary relief: irreparable harm. Faively Transp. Malmo AB v.
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`WabtecCorp., 559 F.3d 110, 118 (2d Cir. 2009) (collecting cases). Apart from cost-
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`based harms that are squarely foreclosed by binding precedent, Coinbase, Inc. v. Biel-
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`ski, 143 S. Ct. 1915, 1923 (2023), Google’s only argument on this essential prong is
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`that, absent a stay, this Court could not unwind the remand because it would lack
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`jurisdiction under In re Warrick, 70 F.3d 736, 737 (2d Cir. 1995).3
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`As the JPML correctly held, unlike the district court in Warrick—which ad-
`dressed 28 U.S.C. § 1404, not 1407—the JPML has the unusual authority to transfer
`cases to-and-from multi-district litigation transferee courts. 28 U.S.C. § 1407(a).
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`Since the JPML can unwind any transfer it makes, this Court could likewise unwind
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`any transfer so long as it retains its mandamus jurisdiction over the JPML post-trans-
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`fer. It clearly does: Congress expressly provided that the JPML’s transfer decisions
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`may be reviewed only “by extraordinary writ” and “only in the court of appeals hav-
`ing jurisdiction over the transferee district.” 28 U.S.C. § 1407(e). Because the
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`“transferee district” is the Southern District of New York, this Court has jurisdic-
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`tion over the JPML’s transfers with respect to this MDL regardless of where this
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`case happens to be pending when this Court rules.
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`Taking full advantage of the highly expedited and effectively ex parte nature of
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`the administrative-stay process, however, Google has made two counter arguments:
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`3 Google tries (at 18-19) to distinguish Coinbase by asserting “efficiency” as well
`as monetary costs. This is a distinction without a difference. American Heritage Dic-
`tionary 570 (5th ed. 2016) (defining to be “efficient” is to “act[] or produc[e] effec-
`tively with a minimum of waste, expense, or unnecessary effort”) (emphasis added).
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`3
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page5 of 11
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`that the “JPML cited no authority for” the notion that it could unwind a remand,
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`“and State Plaintiffs have disputed” it. Mot. at 17. Google’s first argument—which
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`implies Plaintiff States are asking the Court to break new jurisdictional ground—
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`conspicuously ignores that in opposing a stay before the JPML, Plaintiff States cited
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`a case where the Fourth Circuit unwound a transfer under section 1407. See In re
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`Food Lion, Inc., Fair Lab. Standards Act Effective Scheduling Litig., 73 F.3d 528, 533
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`(4th Cir. 1996).4 That the JPML chose not to recite that authority does not mean it
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`does not exist. Contra Mot. 17.
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`Google’s second argument blatantly misstates the States’ position. Plaintiff
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`States have never disputed that if Google prevails on this petition, the JPML would
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`have jurisdiction to unwind the transfer. They have argued that Google is not entitled
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`to prevail on the merits because the Venue Act stripped the JPML of jurisdiction in
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`the first instance, and that changes to jurisdictional rules apply to pending cases. Re-
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`sponse 12 n.5 (citing E.g., Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939,
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`951 (1997)). “If State Plaintiffs were to prevail on that point,” whether the Court’s
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`ruling “could prevent the JPML from complying with a writ of mandamus from this
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`Court” would never arise. Mot. 17. In that scenario, Google has lost a petition-dis-
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`positive argument, and no mandamus would issue. Cheney v. U.S. Dist. Ct. for D.C.,
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`542 U.S. 367, 381, 391 (2014) (requiring a “clear and indisputable right” to relief as
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`a “precondition” for the writ).
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`4 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. Aug. 3,
`2023), ECF No. 257 at 9.
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page6 of 11
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`2. Google’s repeated misuse of the administrative-stay process has also
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`harmed both the State’s interest and that of the public. The Supreme Court has held
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`that, these two stay factors—the interests of the opposing party and the public—
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`“merge when the government is the opposing party,” Nken, 556 U.S. at 435. In this
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`instance, as explained in more detail in the mandamus response (at 4-5), Congress
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`has already liquidated where the public interest lies: in encouraging “vigorous anti-
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`trust enforcement” by States to address the “crisis” of monopolization that is
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`sweeping “[m]any industries” that is threatening “consumers, workers, and com-
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`petition.” Letter from Sen. Amy Klobuchar, et al., to Judge Roslynn R. Mauskopf at
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`1 (July 28, 2021), https://tinyurl.com/rajzhdvd.
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`Google has thwarted that interest—and harmed Plaintiff States—for months by
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`waiting to the last minute, claiming an emergency, and citing that putative emer-
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`gency to demand judicial relief without affording Plaintiff States the chance to re-
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`spond. The Judicial Panel on Multidistrict Litigation (“JPML”) ordered that this
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`case be remanded to Texas on June 5.5 A full week later—just before the remand was
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`set to occur—Google filed its first supposedly emergency motion for a stay, demand-
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`ing action by close of business that day.6 Google waited so late that not only were
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`Plaintiff States denied a reasonable opportunity to respond, the JPML could only
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`5 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. June 5,
`2023), ECF No. 250 (“Remand Order”) at 3.
`6 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. June 12,
`2023), ECF No. 251 at 2.
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`5
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page7 of 11
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`grant the stay by recalling its own mandate.7 After hearing Plaintiffs States’ response,
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`the JPML easily dismissed Google’s merits arguments—which supposedly took a
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`week to write—as “largely repe[titive]” and “unpersuasive.”8 By that time, how-
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`ever, Google had effectively gotten the stay pending appeal it wanted: the case had
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`languished on the JPML’s docket for 67 days, more than six times the period this
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`Court allotted to State Plaintiffs to respond to Google’s mandamus petition. ECF
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`No. 30.
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`Google repeated the same maneuver here. Despite unanimously concluding that
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`a stay was unwarranted, the JPML gave Google seven additional days to seek relief
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`here. Stay Order at 4. Again, Google waited nearly that entire time to reformat and
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`regurgitate largely the same arguments for this Court’s review. Mot. 2. And, again,
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`it cried “emergency,” demanding an immediate administrative stay without afford-
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`ing Plaintiff States a reasonable opportunity to respond. Id. at 20-21. Which this
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`Court granted.
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`“As the Supreme Court has made clear, ‘[a] stay is not a matter of right,’” but
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`a matter of the Court’s equitable grace. Maldonado-Padilla v. Holder, 651 F.3d 325,
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`327 (2d Cir. 2011). The “maxim vigilantibus non dormientibus aequitas subvenit”—
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`that “equity aids the vigilant, not those who sleep on their rights”—is well-estab-
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`lished across numerous contexts precisely to prevent a party from using strategic
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`7 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. June 12,
`2023), ECF No. 252.
`8 In re Google Digit. Advert. Antitrust Litig., MDL No. 3010 (J.P.M.L. August 3,
`2023), ECF No. 261 (“Stay Order”) at 2, 3.
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page8 of 11
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`delay to prejudice an opposing party. Ivani Contracting Corp. v. City of New York, 103
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`F.3d 257, 259 (2d Cir. 1997); see also, e.g., Mikulec v. United States, 705 F.2d 599, 602-
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`03 (2d Cir. 1983). Yet Google has done just that to prevent this case from returning
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`to Texas—the forum that Congress said the public interest favor.
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`3. Because the three other Nken factors weigh heavily against any further eq-
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`uitable relief, the Court need not even get into whether Google has demonstrated a
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`likelihood of success on the merits. See, e.g., Bermudez v. Reid, 720 F.2d 748, 750 (2d
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`Cir. 1983). But Google fails there too.
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`As discussed at length in Plaintiff States’ Response, Google is unlikely to suc-
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`ceed on the merits because this case calls for the straightforward application of Ex
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`parte Collett, 337 U.S. 55 (1949), and United States v. National City Lines, Inc., 337
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`U.S. 78 (1949) (National City Lines II), where the Supreme Court squarely held that
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`because “[n]o one has a vested right in any given mode of procedure,” changes to
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`venue rules apply to cases pending at the time those rules become effective. Collett,
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`337 U.S. at 71. The JPML concluded that Google forfeited any attempt to distinguish
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`Collett and National City Lines II by “ma[king] no attempt to address” them. Re-
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`mand Order at 3. When Google improperly “attempt[ed] to do so for the first time
`. . . during the motion to stay briefing,” the JPML correctly rejected Google’s argu-
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`ments as “unpersuasive.” Stay Order at 3.
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`Consistent with its repeated failure to follow established norms of issue preser-
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`vation, Google now makes a new argument that it did not even raise in its petition
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`for mandamus. It asserts for the first time that the Venue Act is “categorically dif-
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`ferent than the statute at issue” in Ex parte Collett and National City Lines II because
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page9 of 11
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`it does not “set a new standard for evaluating remand motions,” Motion 13. Leaving
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`aside the logical disconnect between this distinction and Google’s justification why
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`it should not be subject to Congress’s venue rules,9 this Court routinely holds that
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`“arguments not made in an appellant’s opening brief are waived even if the appellant
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`pursued those arguments in the district court or raised them in a reply brief.” JP
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`Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d
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`Cir. 2005). Here, the argument was not made below or in any merits brief, and the
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`Court has denied Google’s request for a reply. ECF No. 30.
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`Even under Google’s belatedly raised theory, however, National City Lines II
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`would still control. According to Google, “[i]n National City Lines I, the Supreme
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`Court held that the Clayton Act’s venue provision left no room ‘for judicial discre-
`tion . . . to deprive’ the government plaintiff of its chosen forum.” Mot. 13-14 (quot-
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`ing United States v. Nat’l City Lines, 334 U.S. 573, 588 (1948)). But, Google says, by
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`National City Lines II, Congress had created a “new standard” that “expand[ed] the
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`transferability of cases.” Id. at 14 (quoting 337 U.S. at 81-82). If granting discretion
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`that previously did not exist creates a “new standard,” so does removing discretion
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`that previously was present. Even under Google’s theory, the JPML correctly
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`changed its analysis when a “new standard” was adopted. Compare Transfer Order
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`9 After all, Google’s entire thesis is that the Venue Act cannot apply retroactively
`consistent with Landgraf v. USI Film Products, 511 U.S. 244 (1994). It is hard to see
`how if the Venue Act does not “set a new standard for evaluating remand motions”
`for the purposes of Collette, Mot. 13, it can “attach[] new legal consequences to
`events completed before its enactment” for the purposes of Landgraf, 511 U.S. at
`270.
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`Case 23-910, Document 64, 08/14/2023, 3556022, Page10 of 11
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`at 1374 (applying a discretionary rule), with Remand Order at 3 (concluding such
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`discretion no longer exists). The only question is whether that new standard has an
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`impermissible retroactive effect; under Collett and National City Lines II, new venue
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`rules do not.
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`Conclusion
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`The parties are in complete agreement on one thing: Google’s “mandamus
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`petition is ready to be decided,” Mot. 1, without the further delay of the oral argu-
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`ment that Google previously asserted was necessary. Compare Mandamus Response
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`ii, with ECF No. 33. But pending that decision, the Court should immediately vacate
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`the administrative stay and deny Google’s emergency motion for a stay pending
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`mandamus.
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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
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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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`Case 23-910, Document 64, 08/14/2023, 3556022, Page11 of 11
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`Certificate of Service
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`On August 11, 2023, this response was served via CM/ECF on all registered
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`counsel 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 brief complies with: (1) the type-volume limitation of Federal Rule of Ap-
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`pellate Procedure 21(d)(1) because it contains 2,251 words, excluding the parts of the
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`brief exempted by Rule 32(f); and (2) the typeface requirements of Rule 32(a)(5) and
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`the type style requirements of Rule 32(a)(6) because it has been prepared in a pro-
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`portionally spaced typeface (14-point Equity) using Microsoft Word (the same pro-
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`gram used to calculate the word count).
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`/s/ Lanora C. Pettit
`Lanora C. Pettit
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