Arcell et al v. Google LLC et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MARY KATHERINE ARCELL, et al.,
Plaintiffs,
v.
GOOGLE LLC, et al.,
Defendants.
Case No. 22-cv-02499-RFL
ORDER DISMISSING CLAIMS AND
DENYING AS MOOT MOTIONS FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 242, 251, 267
Plaintiffs, twenty-two consumers, sued Google LLC, Alphabet Inc., and XXVI Holdings
Inc. (collectively, “Google”) asserting antitrust violations. They contended that Google violated
Section 2 of the Sherman Act, 15 U.S.C. § 2, by entering into agreements that make its search
engine the default general search engine on browsers, mobile devices, computers, and other
devices. Plaintiffs plausibly alleged that those agreements precluded competitors from
developing high-quality search products that are more privacy protective and ad free. As a
result, Plaintiffs proceeded to discovery on the theory that Google’s monopoly in the general
search services market injured them by preventing them from accessing alternative search
engines with the aforementioned characteristics. Discovery has now closed, and the parties have
cross-moved for summary judgment. Plaintiffs have adduced no relevant evidence to support
their theory of injury. They submit no expert report, deposition testimony, or declaration to
show that better search options could have been available to them if Google had not entered
these agreements. Instead, they try to paper over that gap by referring to their pleadings and
piggybacking off of the federal government’s related case. That is insufficient at the summary
judgment stage. Accordingly, Plaintiffs have not identified a genuine dispute of fact that they
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have Article III standing. As further described below, Plaintiffs’ claims are DISMISSED for
lack of subject-matter jurisdiction.1
I. BACKGROUND
In United States v. Google LLC, 747 F. Supp. 3d 1 (D.D.C. 2024), Google was found to
have monopolized the general search services and general search text advertising markets
through entering into exclusive distribution agreements with Apple and other manufacturers.
These agreements preset Google as the default general search engine for primary search access
points like browser search boxes or widgets that come preloaded on mobile devices. Google,
747 F. Supp. 3d at 31. In this follow-on suit, Plaintiffs alleged that Google’s contracts
“foreclosed efficient channels of distribution and resulted in network effects that made it difficult
for competitors to gain the volume of users and user data that would allow the development of
high-quality search products.” (Dkt. No. 124 ¶ 268.) Plaintiffs’ only surviving theory of
antitrust injury is that these agreements allegedly prevented competing search engines, such as
DuckDuckGo and Neeva, from providing consumers with search products that offer more
privacy protective and ad-free searches. Arcell v. Google LLC, No. 22-CV-02499-RFL, 2025
WL 210877, at *1 (N.D. Cal. Jan. 16, 2025). Their allegations supported a plausible inference
that “in a more competitive market, viable search alternatives would have emerged that offer
greater privacy protections or are less clogged with ads.” Id. Accordingly, Plaintiffs plausibly
alleged an injury from their inability to access these alternatives. Id. at *1–2.
After discovery closed, the parties cross-moved for summary judgment. Plaintiffs
submitted the following evidence: the Information Services Agreement (“ISA”) between Google
and Apple, Plaintiffs’ own deposition testimony, declarations from each Plaintiff, and their
responses to Google’s interrogatories. The ISA requires Apple to preset Google as the default
search service in Apple’s web browser and operating systems. (Dkt. Nos. 245-1, 245-2.)
1 Plaintiffs’ motion to set a case management conference (Dkt. No. 267) is denied as moot.
Plaintiffs’ hearsay objection to some of Google’s evidence is overruled as moot, since the
challenged evidence has not been considered.
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Plaintiffs’ interrogatory responses generally state that they continue to use the internet and access
Google through different devices, some of which have Google set as the default search engine.
(See, e.g., Dkt. No. 245-3 at 7; Dkt. No. 245-5 at 7.)2 The responses further state that Plaintiffs
seek damages in amounts to be supported by expert testimony. (See, e.g., Dkt. No. 245-3 at 11;
see also Dkt. No. 245-4 at 8.) However, Plaintiffs did not provide an expert report. (Dkt. No.
251-1 ¶ 2.) Plaintiffs also submitted excerpts from the depositions of four Plaintiffs. (See, e.g.,
Dkt. No. 253-2.) Their testimony reflects that they use Google; have used or wished to use
alternative search engines like DuckDuckGo; sought to avoid online tracking; and objected to
advertisements related to prior searches. (See, e.g., id. at 6, 9–10, 12.) Lastly, Plaintiffs
submitted substantially similar declarations stating that they believe they were deprived of high-
quality search alternatives that could have provided stronger privacy protections, reduced
tracking, fewer advertisements, greater innovation, and compensation or other value in exchange
for their browsing data. (See, e.g., Dkt. Nos. 253-6, 253-7.)
Google’s motion for summary judgment suggested a potential lack of subject-matter
jurisdiction, so the Court ordered Plaintiffs to show cause why they had Article III standing.
(Dkt. No. 256.) While the parties “presumably already submitted all relevant evidence on this
question when briefing antitrust standing,” they were provided an opportunity to submit
supplemental evidence. (Id. at 1.) Plaintiffs submitted seventy-five exhibits and a twenty-two-
page appendix containing quotes from those exhibits and other sources. (Dkt. Nos. 257-2 to 257-
77.) Many of the exhibits appear to be copies of websites linked in a related case’s complaint.
(See Dkt. No. 258 at 2.) While most exhibits describe the operation of other search engines, a
few are academic studies and a few others reflect evidence from United States v. Google. (See,
e.g., Dkt. Nos. 257-2, 257-72, 257-75.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the
2 All citations to page numbers in filings on the docket refer to ECF pagination.
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moving party “shows that there is no genuine dispute as to any material fact” and that they are
“entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a plaintiff moves for
summary judgment on claims that it has brought (i.e., for which it has the burden of proof), it
“must come forward with evidence which would entitle it to a directed verdict if the evidence
went uncontroverted at trial.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (citations
omitted). When a defendant moves for summary judgment based on an issue for which the
plaintiff bears the burden of proof, the defendant need only point to the plaintiff’s failure “to
make a showing sufficient to establish the existence of an element essential to [the plaintiff’s]
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the movant has met their burden, the burden shifts to the non-movant to establish a
genuine dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986).
That exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. All reasonable inferences are drawn in favor of the non-movant,
keeping in mind that “[c]redibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions.” Id. at 255. But conclusory and
speculative declarations do not raise genuine issues of fact and are insufficient to defeat
summary judgment. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497–98 (9th Cir. 2015)
(citations omitted).
III. DISCUSSION
Google contends there is no genuine dispute of fact that Plaintiffs suffered an antitrust
injury. This argument necessarily implicates Article III standing, since standing requires an
injury in fact that is fairly traceable to the defendant’s conduct. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). Although Google has not expressly challenged Plaintiffs’ standing,
federal courts have an independent obligation to address a potential lack of subject-matter
jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (2004) (citation omitted).
Because Article III standing is a prerequisite for federal jurisdiction, that issue must be addressed
before reaching the parties’ arguments. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549
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U.S. 422, 430–31 (2007) (“[A] federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction . . . .”); Gerlinger v. Amazon.com Inc., 526 F.3d
1253, 1256 (9th Cir. 2008) (holding that because the plaintiff did not establish Article III
standing, “it is neither necessary nor appropriate for us to reach any questions of antitrust
standing”).
Litigants who seek to invoke the jurisdiction of the federal courts must establish an actual
case or controversy under Article III of the Constitution at every stage of litigation.
Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (citation omitted). To establish Article III
standing, a plaintiff must demonstrate: (1) an injury in fact; (2) a causal connection between that
injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan, 504 U.S. at 560–61. While plausible allegations are usually enough
at the pleading stage, they are never sufficient once the case reaches summary judgment or if the
district court issues a “post-pleading stage order to establish Article III standing.” Id. at 561;
Gerlinger, 526 F.3d at 1256. That is, a plaintiff “can no longer rest on such ‘mere allegations,’
but must ‘set forth’ by affidavit or other evidence ‘specific facts’” establishing standing. Lujan,
504 U.S. at 561 (citation omitted); Gerlinger, 526 F.3d at 1256. Once Article III standing has
been established, a plaintiff bringing an antitrust claim must also establish the “more demanding
standard” of antitrust standing. Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d
1228, 1232 (9th Cir. 1998) (citation omitted).
A. Plaintiffs’ Evidence
Plaintiffs have not identified a genuine dispute of material fact as to whether they have
Article III standing. Even assuming their own deposition testimony, interrogatory responses, and
declarations would be sufficient to show an injury derived from their privacy and advertising
preferences, that evidence does not show the requisite causal connection because it does not
address whether Google’s default agreements played some role in depriving Plaintiffs of the
alternatives they claim would have existed in a competitive market. To the extent that it vaguely
discusses causation (see, e.g., Dkt. No. 253-6 ¶¶ 2–6), a party’s “own self-serving and
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uncorroborated affidavit and deposition testimony” alone generally cannot defeat summary
judgment. See Opara v. Yellen, 57 F.4th 709, 726 (9th Cir. 2023) (citation omitted). Moreover,
Plaintiffs do not appear to have personal knowledge about the challenged agreements’ effects.
See Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012) (citations
omitted).
The materials Plaintiffs submitted in response to the Court’s order to show cause do not
cure this evidentiary deficiency.3 For example, a field experiment concluding that default
selections impact consumer search engine choices demonstrates only that Google’s market share
might have been lower absent the challenged agreements, not that their impact on market share
suppressed the development of superior search alternatives. (See Dkt. Nos. 257-72, 257-73.)
Similarly, Gabriel Weinberg’s testimony and the cited material regarding privacy-protective or
ad-free search engines do not support a reasonable inference that alternative search engines
would have become viable competitors absent Google’s default agreements because they show
only that such products existed. And while statements from Google employees reflect Google’s
internal consideration of privacy-related product features, they are insufficient to allow a
reasonable factfinder to infer either that Google itself would have adopted those features absent
the challenged agreements or that Google’s agreements prevented competing search engines
from developing into meaningful competitive alternatives. (See Dkt. No. 257-75; Dkt. No. 257-
76 at 5–6.)
Plaintiffs also contend that Google’s conduct deprived users of compensation for their
searches and prevented competing search engines from paying users for search data. The Court
previously dismissed this theory of injury. Arcell, 2025 WL 210877, at *1. But even assuming
it remains viable, Plaintiffs identify no evidence from which a reasonable factfinder could
conclude that Google’s exclusive distribution agreements suppressed the development of search
engines offering Plaintiffs compensation for their search data. Consequently, Plaintiffs also fail
3 Since Plaintiffs fail to show a genuine dispute of fact over Article III standing even if these
materials are considered, Google’s hearsay objection to these materials is overruled as moot.
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to raise a genuine issue of material fact under this theory.
Plaintiffs cannot rely on their pleadings and the Court’s prior rulings to paper over these
gaps. At the pleading stage, Plaintiffs plausibly alleged Article III injury-in-fact and an antitrust
injury. Id. at *1–2. But their pleadings and the Court’s orders evaluating the sufficiency of those
pleadings do not constitute evidence supporting Plaintiffs’ allegations. See Bras v. Cal. Pub.
Utilities Comm’n, 59 F.3d 869, 872 (9th Cir. 1995) (“In order to defeat a summary judgment
motion, the nonmoving party may not simply rely on his pleadings but must present some
evidence . . . .”). For the same reason, Plaintiffs cannot rely on this Court’s order concluding that
plaintiffs in a related case sufficiently alleged their claim. See Attridge v. Google LLC, 816 F.
Supp. 3d 1059, 1069–72 (N.D. Cal. 2026).
B. Collateral Estoppel
Plaintiffs argue that even if they haven’t provided sufficient evidence of Article III
standing, either collateral estoppel or Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), should
fill in the gaps. They say the findings in United States v. Google established that Google’s
exclusive distribution agreements limited consumers’ ability to access alternative search engines
and thereby preclude Google from relitigating the impact of its conduct on users. That argument
is unpersuasive.
As an initial matter, the scope of preclusive effect is identical under both collateral
estoppel and Section 5(a). Section 5(a) “grants prima facie weight only to matters as to which
collateral estoppel would apply had the government itself brought the suit.” Pool Water Prods.
v. Olin Corp., 258 F.3d 1024, 1030 (9th Cir. 2001). Accordingly, the evidentiary weight of a
prior judgment is determined by the ordinary principles of collateral estoppel. Id. at 1030–31
(quoting Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 568 (1951)). So, under either
doctrine, Plaintiffs must establish that an identical issue was actually litigated in the earlier
action, necessarily decided, and essential to the prior judgment. Id. at 1031 (citations omitted);
Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation omitted).
When the United States sues to enjoin antitrust violations, it need not establish antitrust
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standing. City of Oakland v. Oakland Raiders, 20 F.4th 441, 455 n.10 (9th Cir. 2021); see 15
U.S.C. §§ 4, 25. As a result, whether consumers suffered an injury was not essential to the
judgment in United States v. Google. In fact, the issue was never addressed. The judgment
therefore cannot have a preclusive effect on this question. See Howard Hess Dental Lab’ys Inc.
v. Dentsply Int’l, Inc., 602 F.3d 237, 248 (3d Cir. 2010) (“Simply because such a conclusion may
be gleaned from the Government Case does not mean that it was essential to [the] holding.”
(citation omitted)); see also Pool Water, 258 F.3d at 1032.
United States v. Google did make findings on issues that could be viewed as related to the
Article III injury inquiry, such as whether Google’s exclusionary conduct caused anticompetitive
harm. However, the court was clear that those findings were addressed to the question whether
“Google’s exclusive distribution contracts reasonably appear capable of significantly
contributing to maintaining Google’s monopoly power in the general search services market.”
See Google, 747 F. Supp. 3d at 153. The court found that Google’s conduct erected various
barriers to rivals, but expressly declined to reconstruct what would have happened absent
Google’s challenged conduct, finding that “such thought experiments” were not required. Id. at
155. The court emphasized that, when “a regulator is seeking only injunctive relief,” a “relaxed”
standard of causation applied as to anticompetitive harm. Id. at 152–53. Accordingly, those
findings do not address Plaintiffs’ theory here that high-quality search engines that were more
privacy protective or ad free could have been available to them absent Google’s challenged
actions. Plaintiffs therefore cannot invoke collateral estoppel or Section 5(a) to establish Article
III standing.
C. Rule 56(d) Relief
Plaintiffs request the opportunity to conduct additional discovery under Federal Rule of
Civil Procedure 56(d). Since discovery had already closed before summary judgment briefing
and the Court’s order to show cause, Plaintiffs do not appear to have been sufficiently diligent to
justify relief. See Doctor’s Best, Inc. v. Nature’s Way Prods., LLC, 143 F.4th 1101, 1112–13
(9th Cir. 2025) (citation omitted). In any event, Plaintiffs’ failure to submit a declaration or
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affidavit in support of their request is reason enough to deny relief. See In re O’Gorman, 115
F.4th 1047, 1061 (9th Cir. 2024) (citation omitted). Plaintiffs have also failed to explain what
information they would seek from further depositions or why Google’s default-placement value
would be relevant to Article III standing.
IV. CONCLUSION
Plaintiffs have failed to produce evidence from which a reasonable jury could conclude
that Google’s default agreements caused them injury, so they have not raised a genuine dispute
of fact over Article III standing. Accordingly, Plaintiffs’ claims are DISMISSED for lack of
subject-matter jurisdiction. The motions for summary judgment are DENIED AS MOOT.
IT IS SO ORDERED.
Dated: September 30, 2026
RITA F. LIN
United States District Judge
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