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  • 1. 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeff D. Friedman 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 jefff@hbsslaw.com Steve W. Berman (pro hac vice pending) George W. Sampson (pro hac vice pending) Robert F. Lopez (pro hac vice pending) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com george@hbsslaw.com robl@hbsslaw.com Attorneys for Plaintiffs and the Proposed Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GARY FEITELSON, a Kentucky resident, and DANIEL MCKEE, an Iowa resident, on behalf of themselves and all others similarly situated, Plaintiffs, v. GOOGLE INC., a Delaware corporation, Defendant. No. CLASS ACTION COMPLAINT COMPLAINT FOR VIOLATION OF THE SHERMAN ANTITRUST ACT, CLAYTON ANTITRUST ACT, CALIFORNIA CARTWRIGHT ACT, AND CALIFORNIA UNFAIR COMPETITION LAW DEMAND FOR JURY TRIAL OF ANY ISSUES SO TRIABLE Case5:14-cv-02007 Document1 Filed05/01/14 Page1 of 40
  • 2. - i - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT TABLE OF CONTENTS Page I. INTRODUCTION..................................................................................................................1 II. JURISDICTION.....................................................................................................................3 III. PARTIES................................................................................................................................3 IV. RELEVANT FACTS..............................................................................................................4 A. Google is a monopolist in general search...................................................................4 B. Google is a monopolist in handheld general search. ..................................................5 C. Google engages in unlawful behavior in order to restrain trade and to maintain and grow its monopoly in handheld general search. ...............................7 1. Google has been the subject of, and has settled, various antitrust investigations....................................................................................8 2. Google’s restrains competition through the use of its Mobile Application Distribution Agreements..............................................10 D. Google’s practices with respect to its Android apps and search product restrain and injure competition in markets where already there are high barriers to entry..................................................................................13 E. Google conceals its MADA restrictions...................................................................20 F. Google further forecloses competition in the market by entering into exclusive contracts with Apple. ........................................................................22 G. Google’s unlawful practices harm consumers..........................................................23 V. INTERSTATE TRADE AND COMMERCE......................................................................24 VI. RELEVANT MARKETS.....................................................................................................24 VII. CLASS ALLEGATIONS.....................................................................................................25 VIII. CLAIMS FOR RELIEF........................................................................................................29 FIRST CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT (15 U.S.C. § 1)......................................................................................................................29 SECOND CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT– MONOPOLIZATION (15 U.S.C. § 2)......................................................................30 THIRD CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT – ATTEMPTED MONOPOLIZATION (15 U.S.C. § 2)........................................................31 FOURTH CAUSE OF ACTION VIOLATION OF THE CLAYTON ACT (15 U.S.C. § 14)....................................................................................................................32 Case5:14-cv-02007 Document1 Filed05/01/14 Page2 of 40
  • 3. - ii - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT FIFTH CAUSE OF ACTION VIOLATION OF THE CARTWRIGHT ACT (CAL. BUS. & PROF. CODE § 16727)............................................................................33 SIXTH CAUSE OF ACTION VIOLATION OF THE UNFAIR COMPETITION ACT (CAL. BUS. & PROF. CODE §§ 17200 et seq.)...................................35 PRAYER FOR RELIEF...................................................................................................................36 JURY TRIAL DEMANDED ...........................................................................................................37 Case5:14-cv-02007 Document1 Filed05/01/14 Page3 of 40
  • 4. - 1 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT I. INTRODUCTION 1. Google Inc. (“Google”) has long been a monopolist in the overall U.S. market for general Internet search (hereafter “general search”). Google search is the Internet’s most powerful tool, and “to Google” has become synonymous with searching the Internet. Internet search has made Google the largest, and the most profitable, web-centric company in America. 2. Google also is a monopolist in the large and fast-growing American market for mobile and tablet general Internet search (hereafter “handheld general search”). But Google’s maintenance and expansion of its monopoly in handheld general search, and, by extension, general search, is not merely a function of having built a better search engine. Instead, Google has found a way to use its Android mobile operating system (“Android OS”) to maintain and expand its monopoly in both of these U.S. markets. 3. Having recognized that personal computing was moving away from the desktop and that Internet searches increasingly are being done on smartphones and tablets, Google purchased the Android OS in 2005. By giving away the Android OS itself for free, Google rapidly built an enormous user base in the United States. 4. But Android itself only enables the basic functionality of a handheld device; what brings mobile phones and tablets to life are applications. Some of the most popular handheld- device applications, including the YouTube video app and Google Play (which enables shopping in Google’s app store) also are Google properties. As Google well knows, customers expect to see these apps on their Android devices. So Google, by way of secret Mobile Application Distribution Agreements (“MADA”), allows Android OS device manufacturers to pre-load a suite of Google apps including the YouTube app and Google Play client, among others, onto a phone or tablet – but only if the manufacturer pre-loads onto prime screen real estate all of the apps in the suite, whether the manufacturer wants them or not. Because consumers want access to Google’s products, and due to Google’s power in the U.S. market for general handheld search, Google has unrivaled market power over smartphone and tablet manufacturers. Case5:14-cv-02007 Document1 Filed05/01/14 Page4 of 40
  • 5. - 2 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 5. Among the suite of apps covered by Google’s MADAs is the Google Phone-top Search app – a widget for conducting web searches via Google’s search engine. This case arises because of recent revelations that Google has restrained trade and abused its market power by requiring distributors to install the Google Phone-top Search app and to “set” it “as the default search provider for all Web search access points,” including the Internet browser, on phones or tablets subject to its MADAs. As Google well knows, consumers do not know how to switch, nor will they go to the trouble of switching, the default search engine on their devices, so this practice is a highly effective means of ensuring that consumers will use Google search to conduct general Internet queries rather than one of its competitors’ search products. And Google badly wants default search engine status because it results in more paid search-related advertisements, which are the source of most of its billions and billions of dollars in annual profits. 6. If device manufacturers bound by Google’s distribution agreements were free to choose a default search engine other than Google, the quality of Internet search overall would improve because search engines become more effective as they process more and more search queries. With default search engine status providing access to more searches, Google’s competitors in search would become more effective as they processed more queries, and this competition would push Google to improve as well. Also, if Google’s rivals were allowed to compete for default status, they would do so in part by offering to pay device manufacturers for that status on various Android smartphones and tablets. Such payments to device manufacturers, maximized by way of competitive bidding, would lower the bottom-line cost associated with production of the covered devices, which in turn would lead to lower consumer prices for smartphones and tablets. 7. Google’s MADAs are contracts in restraint of trade that are designed to maintain and extend its monopolies in general search and handheld general search. Simply put, there is no lawful, pro-competitive reason for Google to condition licenses to pre-load popular Google apps on making its search product the default search engine on covered devices. By insisting on these contracts with device manufacturers, to the detriment of competition and consumers, Google has Case5:14-cv-02007 Document1 Filed05/01/14 Page5 of 40
  • 6. - 3 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT violated the Sherman Act, the Clayton Act, California’s Cartwright Act, and California’s Unfair Competition Act. Plaintiffs seek an injunction prohibiting Google from forcing its unlawful distribution agreements on device manufacturers, and they seek monetary relief to restore the quantum of money they overpaid for their Android handheld devices as a result of the competition foreclosed by these contracts. II. JURISDICTION 8. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 because plaintiffs allege violations of federal law, namely the federal Sherman and Clayton Acts. The Court has supplemental jurisdiction over the plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367(a). 9. This Court has personal jurisdiction over the defendant by way of the fact that the defendant is licensed to do business in the state of California and in fact conducts business in this state. 10. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), inasmuch as unlawful practices are alleged to have been committed in this federal judicial district and the defendant resides and regularly conducts business in this district. 11. Assignment to the San Jose division of this Court is appropriate because the defendant has its headquarters in Mountain View, Santa Clara County, California, which is located in this division of the Northern District of California. Also, it is believed and therefore alleged that many members of the proposed class reside or do business in the San Jose division of the Northern District of California. III. PARTIES 12. Plaintiff Gary Feitelson is the owner of an HTC EVO 3D mobile phone purchased in or about July 2011 in Louisville, Kentucky. This device is an Android OS device believed, and therefore alleged, to be covered by one of the exclusionary Google contracts, i.e., a Google-HTC MADA, described herein. Mr. Feitelson uses his phone, inter alia, to perform Internet general searches. But for the restraints alleged herein, Mr. Feitelson’s phone would have cost less and had Case5:14-cv-02007 Document1 Filed05/01/14 Page6 of 40
  • 7. - 4 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT better search capabilities as the result of competition that would have ensued but for Google’s unlawful restraints. 13. Plaintiff Daniel McKee is the owner of a Samsung Galaxy S III mobile phone purchased in or about July 2012 in Des Moines, Iowa. This device is an Android OS device believed, and therefore alleged, to be covered by one of the exclusionary Google contracts, i.e., a Google-Samsung MADA, described herein. Mr. McKee uses his phone, inter alia, to perform Internet general searches. But for the restraints alleged herein, Mr. McKee’s phone would have cost less and had better search capabilities as the result of competition that would have ensued but for Google’s unlawful restraints. 14. Defendant Google is a Delaware corporation with its headquarters and principal place of business in Mountain View, California. Google is America’s leader in general Internet search conducted on all devices, and in handheld general search. It also is the owner of the Android OS and popular and exclusive mobile and tablet applications including YouTube, Google Maps, and Gmail. Additionally, Google is the owner of the Google Play (formerly Android Market) client, by which owners of Android devices bearing it are enabled to buy applications, music, movies, and books from the Google Play store. Google was number 55 on last year’s U.S. Fortune 500, with 2013 revenues of $55.2 billion and profits of $10.737 billion. IV. RELEVANT FACTS 15. The plaintiffs, like many millions of Americans, are consumers of Android OS devices who have been affected adversely by Google’s unlawful practices in commerce. A. Google is a monopolist in general search. 16. General Internet searches occur, inter alia, when a user goes to a search engine website – Google.com, for example – and executes a query there, or when he enters a query into his browser’s search bar and a pre-designated search engine operating in the background executes it. For example, the user might query “name of the 32nd president of the United States.” Google is a monopolist in the U.S. market for general search conducted on all devices, including laptops, desktops, mobile phones, and tablets. According to StatCounter, Google’s search engine share Case5:14-cv-02007 Document1 Filed05/01/14 Page7 of 40
  • 8. - 5 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT over all these devices was at 81.87% as of March 2014. (http://gs.statcounter.com/#desktop+mobile+tablet-search_engine-US-monthly-201401-201403 (last accessed April 16, 2014).) Google’s share is even larger, factoring in the .71% of the market that AOL held as of April 2014, and the .36% of the market that Ask Jeeves held as of that same time, both of which Google powers. By contrast, Google’s competitor Bing’s share was at a distant 9.8% as of that point in time, and its competitor Yahoo!’s share was at an even more distant 6.42%. (Id.) (Yahoo! search is currently powered by Bing. Bing is owned by Microsoft.) 17. By any standard, Google’s 81.87%+ share of the U.S. handheld general search market is a monopoly. B. Google is a monopolist in handheld general search. 18. Google also is a monopolist in U.S. market for handheld general search. 19. Recognizing that Internet search was migrating from desktops to mobile devices, Google purchased the Android OS in August 2005. Handheld device manufacturers including Case5:14-cv-02007 Document1 Filed05/01/14 Page8 of 40
  • 9. - 6 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Samsung Electronics Co., Ltd. (“Samsung”), HTC Corporation (“HTC”), and others have adopted Android as the operating system for their popular smartphone and tablet devices. These devices have included the popular Samsung Galaxy and HTC EVO smartphone lines, and the Samsung Galaxy and HTC Flyer tablet lines. 20. With respect to mobile phones, according to comScore, a firm that regularly surveys over 30,000 U.S. mobile subscribers in the U.S., Android’s share of the United States smartphone market was at 51.7% as of January 2014. comScore also reports that as of January 2014, Americans owned 159.8 million smartphones, up 7% from October 2013. Thus, Android OS powers the majority of smartphones owned by U.S. users. But this does not begin to tell the story of Google’s dominance in mobile and tablet devices. That dominance is based in its monopoly in handheld general search. 21. Handheld general search occurs when a smartphone or tablet user performs an Internet search query on his or her device. If, for example, the user wants to know where the nearest coffee shop is located, she might type her query into the search bar of her mobile browser. The browser then will hand off the request to a pre-set search engine, such as the Google search engine, that will operate behind the scenes to execute her request. Or she might use a dedicated search app, for example a Google-branded app or widget that was pre-loaded onto her phone, and enter her search term there. Not surprisingly, when she does so with a Google widget, the search is processed through the Google search engine. Or she might go to https://www.google.com via her browser and run the search from there – which is not as likely as the other two methods described, given the extra step involved to navigate to the Google website before entering the desired query. But in that event, too, a search engine – Google’s – will execute the search. Whichever of these methods the phone or tablet user employs, search results will be returned to her. 22. Google is the dominant mobile and tablet search engine in the United States. As of March 2014, StatCounter reports that Google’s U.S. handheld general search engine share – the share of mobile phone and tablet searches run through Google’s search engine – was at an astounding 86.82%. Its competitor Yahoo!’s share was at a distant 7.64%, and its competitor Case5:14-cv-02007 Document1 Filed05/01/14 Page9 of 40
  • 10. - 7 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Bing’s share was at an even more distant 5.16%. (http://gs.statcounter.com/#mobile+tablet- search_engine-US-monthly-201401-201403-bar (last accessed April 16, 2014).) 23. The handheld general search market is a submarket of the Internet general search market. The former captures Internet general searches performed on portable, wireless, handheld smartphones and tablets. The latter captures Internet general searches performed not only on these handheld devices, but on desktop and laptop computers, too. By any standard, Google’s 86.88% share of the U.S. handheld general search market is a monopoly. C. Google engages in unlawful behavior in order to restrain trade and to maintain and grow its monopoly in handheld general search. 24. Google maintains monopoly status in handheld general search, which ensures that the vast majority of mobile and tablet searches will be run by its search engine. Cornering the market on handheld-device searches translates to colossal profits. 25. Google makes its money by selling advertising. The primary component of its advertising profits is search advertising. Search advertising, which is a function of Google’s AdWords platform, serves paid ads in conjunction with so-called organic or natural search results. Case5:14-cv-02007 Document1 Filed05/01/14 Page10 of 40
  • 11. - 8 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Thus, if an individual conducts a search for “flat screen tv” that is run by Google’s search engine, he will be returned not only a series of organic results in the form of links to responsive websites, but also, he often will be returned a series of advertisements at the top and/or right (or north and east) of the results page or pages. These search advertisements are based on a computerized analysis of the search terms that the individual entered, and paid ads are served as a function of a bidding process that advertisers have undertaken in order to “buy” words in the search query. 26. Search advertising results in billions of dollars of revenue to Google annually. (See http://arstechnica.com/tech-policy/2014/01/court-orders-google-to-pay-1-36-of-adwords-revenue- for-infringing-patents/ (estimating that Google’s U.S. AdWords revenue, which is based on ads generated by search queries, “is somewhere in the range of $15 billion to $18 billion annually”) (last accessed April 30, 2014).) Unfortunately, Google has not competed simply on the basis of a better search engine, but also various unlawful tactics designed to favor its interests. These tactics have caught the attention of Congress and regulators at home and abroad. 1. Google has been the subject of, and has settled, various antitrust investigations. 27. In September 2011, the U.S. Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights held a hearing on “The Power of Google: Serving Consumers or Threatening Competition?,” at which Google’s Executive Chairman, Eric Schmidt, appeared and answered questions related to Google’s status as a monopolist; charges that it rigged search results to favor its own interests; and charges that it scraped content from various websites and served it up in non- organic search results, among others. (See generally Power of Google Transcript of Sept. 21, 2011 Hearing (available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg71471/pdf/CHRG- 112shrg71471.pdf (last accessed March 20, 2014)).) 28. Following this hearing, The New York Times reported in an October 12, 2012, article entitled “Drafting Antitrust Case, F.T.C. Raises Pressure on Google,” that [t]he Federal Trade Commission is raising the ante in its antitrust confrontation with Google with the commission staff preparing a recommendation that the government sue the search giant. The government’s escalating pursuit of Google is the most far- reaching antitrust investigation of a corporation since the landmark Case5:14-cv-02007 Document1 Filed05/01/14 Page11 of 40
  • 12. - 9 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT federal case against Microsoft in the late 1990s. The agency’s central focus is whether Google manipulates search results to favor its own products, and makes it harder for competitors and their products to appear prominently on a results page…. 29. Google ultimately reached a settlement with the U.S. government to head off an antitrust lawsuit. (See, e.g., “Google Agrees to Change Its Business Practices to Resolve FTC Competition Concerns in the Markets for Devices Like Smart Phones, Games and Tablets, and in Online Search” (available at http://www.ftc.gov/news-events/press-releases/2013/01/google- agrees-change-its-business-practices-resolve-ftc (last accessed March 26, 2014)).) In that settlement, Google agreed to two terms involving search advertising. According to the Federal Trade Commission, “Google []agreed to give online advertisers more flexibility to simultaneously manage ad campaigns on Google’s AdWords platform and on rival ad platforms; and to refrain from misappropriating online content from so-called “vertical” websites that focus on specific categories such as shopping or travel for use in its own vertical offerings.” (Id. at 1.) 30. Google also has faced intense scrutiny from the European Union’s antitrust authorities for these same sorts of practices. In February 2014, the E.U. and Google announced that they had reached a settlement in avoidance of litigation. By way of the settlement, Google has agreed to display rival search ads next to its own specialized search ads. It also has agreed to allow website owners the right to opt out of display of their content crawled by Google’s search engine agents on covered web pages. And Google has agreed to cease making it difficult or impossible for advertisers to port search advertising campaigns, i.e., AdWords campaigns, to rival search engines. (See Commitments in Case COMP/C-3/39.740, dated January 31, 2014, at 2-15 (available at http://services.google.com/fh/files/blogs/google_commitments_full_2014.pdf (last accessed March 22, 2014).) But the settlement has yet to attain final approval by the E.U. Instead, it is under heavy fire from various quarters, including the E.U.-affiliated European Consumer Organisation, for not going far enough, and for leaving Google’s anti-competitive practices unchecked. (See, e.g., http://www.eubusiness.com/Members/BEUC/google-antitrust (last accessed April 4, 2014).) Case5:14-cv-02007 Document1 Filed05/01/14 Page12 of 40
  • 13. - 10 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 2. Google’s restrains competition through the use of its Mobile Application Distribution Agreements. 31. A manufacturer of an Android OS smartphone or tablet must obtain a license from Google to pre-load popular Google apps including YouTube, the Google Play client, Maps, Calendar, Gmail, Talk, among others. 32. Google uses its popular apps to coerce manufacturers into making it the default search engine provider on handheld devices. This unlawful tactic is currently under investigation by European Union authorities, following the lodging of a complaint by FairSearch.org, of which Microsoft, Expedia, tripadvisor, Oracle, and others are members. (See, e.g., “In Europe, New Protest Over Google,” The New York Times, April 8, 2013; “Google Reaches Settlement in EU Antitrust Probe,” The Wall Street Journal, February 5, 2014 (“The [European Union] commission is also examining whether Google is abusing its market share for mobile phones running its Android operating system, according to people familiar with the examinations. Competitors have said the company forces them to install software for Google searches.”).) 33. Recently revealed copies of Google’s contracts with device manufacturers provide the details of Google’s abusive market manipulation. If a smartphone or tablet manufacturer such as Samsung or HTC wishes, for example, to pre-load Google’s popular and exclusive YouTube app on a given Android OS phone or tablet, or if it wishes to install Google’s popular and exclusive Google Play client on that device, then Google requires that the manufacturer must agree to make Google the default search engine on the device. The manufacturer also must agree to pre-load all of a suite of Google applications onto prime screen real estate. Further, the manufacturer must agree to make Google location services the default location services provider on the phone. Additionally, the manufacturer must agree that it will pass a so-called Android Compatibility Test as to that device, which Google administers and controls in its sole discretion.1 (Ex. A (MADA 1 Plaintiffs do not yet have sufficient information to identify which other manufacturers beyond Samsung and HTC have, or have had, contracts with Google with these same or substantially similar terms. But the Joint Submission of Corrected Exhibit List (Dkt. No. 923) submitted in the Oracle v. Google matter, lists MADAs between Google and a who’s who of Android OS device manufacturers, including LG, Toshiba, Fujitsu, Funai, iriver, GigaByte Tech. Co., JVC Kenwood, Case5:14-cv-02007 Document1 Filed05/01/14 Page13 of 40
  • 14. - 11 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT between Google and Samsung), ¶¶ 2.1 (“Devices may only be distributed if all Google Applications2 (excluding any Optional Google Applications) authorized for distribution in the applicable Territory are pre-installed on the device, unless otherwise approved by Google in writing.”), 2.7 (“The license to distribute Google Applications in Section 2.1 is contingent upon the Device becoming an Android Compatible Device.”), 3.4 (providing that “Google Phone-top Search must be set as the default search provider for all search access points on the Device providing for the prime placement of Google Applications” (emphasis added) and also providing for the prime placement of “Google Applications”), 3.8(c) (“Company shall configure Network Location Provider to be the default network-based location provider on all Android Compatible Devices.”); Ex. B (MADA between Google and HTC), ¶¶ 2.1 (same as ¶ 2.1 in Google-Samsung agreement), 2.7 (same as ¶ 2.7 in Google-Samsung agreement), 3.4 (same as ¶ 3.4 in Google-Samsung agreement), 3.8(c) (same as ¶ 3.8(c) in Google-Samsung agreement).) 34. To summarize, the Google MADA requires that: “Devices may only be distributed if all Google Applications [listed elsewhere in the agreement] . . . are pre-installed on the Device . . . .” (Exs. A and B, ¶ 2.1.) The device manufacturer must “preload all Google Applications approved in the applicable Territory . . . on each [covered] device.” (Exs. A and B, ¶ 3.4(1).) The device manufacturer must place “Google’s Phone-top Search and the Android Market [Google Play] Client icon . . . at least on the panel immediately adjacent to the Default Home Screen,” with “all other Google Applications . . . no more than one level below the Phone Top.” (Exs. A and B, ¶ 3.4(2)-(3).) NEC Casio MobileComm, NEC Corp., Phillips Electronics Hong Kong, Sony, Acer, ASUSTek Computer, Dell, TCT Mobile, Yulong Computer Telecomm. Scientific, ZTE Corp., and Kyocera. Unfortunately, these MADAs are not available for public inspection because they were not entered into evidence in the case. It appears likely, however, that Google has insisted on similar tying arrangements with some or all of these other manufacturers, in violation of federal and state law, and to the detriment of competition and consumers. (See Oracle America v. Google (N.D. Cal. No. 3:10-cv.03561), Dkt. No. 923 at Entries 83-85, 286, 2742-2756, and 2772-2702.) 2 In both the Google-Samsung and Google-HTC MADAs, “Google Applications” is defined as “the Google applications listed below . . . ”: “Set-up Wizard, Google Phone-top Search, Gmail, Google Calendar, Google Talk, YouTube, Google Maps for Mobile, Google Street View, Contact Sync, Android Market Client (not products downloaded from Android Market), Google Voice Search, and Network Location Provider.” (Ex. A, ¶ 1.12; Ex. B, ¶ 1.11.) Case5:14-cv-02007 Document1 Filed05/01/14 Page14 of 40
  • 15. - 12 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT The device manufacturer must set “Google Phone-top Search . . . as the default search provider for all Web search access points on the Device.” (Exs. A and B, ¶ 3.4(4).) Google’s Network Location Provider service must be pre-loaded and set as the “default network-based location provider on all Android Compatible Devices.” (Exs. A and B, ¶ 3.8(c).) 35. These provisions are confidential and are not ordinarily available to the public. MADA provision 6.1 prohibits a device manufacturer from sharing any Confidential Information (as defined), and Google labels the MADA documents as “Confidential,” which makes the MADA subject to this restriction. Two MADA documents became available during recent litigation: in Oracle America v. Google, the HTC MADA and Samsung MADA were admitted as Trial Exhibits 286 and 2775, respectively, though both documents indicate in their footers that they are “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY.” 36. Default search engine status is exceedingly important to Google. If a Google search app or widget is placed prominently on a handheld device, as in the following example of the Samsung Galaxy S III mobile phone home screen bearing the Google Phone-top Search bar across its middle, Google knows that phone and tablet owners will use it. Case5:14-cv-02007 Document1 Filed05/01/14 Page15 of 40
  • 16. - 13 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Also, most phone and tablet users are unaware of the interaction between their browser – which on this Samsung device would be accessed by pushing the “Internet” icon – and the search engine which happens to be powering it; they simply want information from the World Wide Web. (Using the browser to execute a search is an alternative to typing a search into the Google Phone- top search bar.) They do not realize that when they initiate a search by typing a query into the search/address box of their mobile web browser – the so-called omnibox – the query is executed via a search engine such as Google. 37. If Google is set as the default search engine provider, so much the better to sustain and grow Google’s monopoly position and power in handheld general search. As Google’s Vice- President of Product Management & Marketing put it: So more users more information, more information more users, more advertisers more users, it’s a beautiful thing, lather, rinse, repeat, that’s what I do for a living. So that’s what someone alluded to the engine that can’t be stopped.3 38. By way of Google’s coercive and exclusionary practice with Android OS device manufacturers such as Samsung and HTC, Google restrains and quashes competition for default search engine status before it even can begin. There is no lawful reason to compel manufacturers wishing to pre-load the YouTube app onto a device, or to enable their customers to access the Google Play store and its 1.2 million apps, to make Google the default search engine on that device as well. Instead, Google’s practice is a pure power play designed to maintain and extend its monopoly in handheld general search. D. Google’s practices with respect to its Android apps and search product restrain and injure competition in markets where already there are high barriers to entry. 39. Consider the impact on a device manufacturer seeking to substitute an offering that competes with a Google app. For example, a phone manufacturer might conclude that some non- Google service is preferable to one of the listed Google Applications – perhaps faster, easier to use, or more protective of user privacy. Alternatively, a phone manufacturer might conclude that its 3 Source: Jonathan Rosenberg, Google VP of Product Management & Marketing, Inside the Black Box: Technology & Innovation at Google, Speech to Claremont McKenna College (emphasis added). Case5:14-cv-02007 Document1 Filed05/01/14 Page16 of 40
  • 17. - 14 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT users care more about a lower price than about pre-loaded Google apps. Such a manufacturer might be willing to install exclusively and prominently an app from some other search-engine provider, location-services provider, or other developer in exchange for a payment, which would be partially shared with consumers via a lower selling price for the phone. Google’s MADA restrictions disallow any such configuration if the phone is to include any of the listed Google apps. 40. The MADA provisions help Google whenever a phone manufacturer sees no substitute to even one of Google’s apps. Manufacturers may perceive that Bing Search, DuckDuckGo, Yahoo! Search, and others are reasonable substitutes to Google Search. Manufacturers also may perceive that Bing Maps, MapQuest, Yahoo! Maps, and others are reasonable substitutes to Google Maps. But it is not clear what other app store besides Google Play that a manufacturer could preinstall onto a smartphone in order to offer a comprehensive set of apps. Furthermore, a manufacturer would struggle to offer a phone without a pre-installed YouTube app. Without the expected pre-loaded app allowing easy access to the short-format entertainment videos that are YouTube’s specialty, a phone would be unattractive to many consumers, thus undermining carriers’ efforts to sell data plans, and putting the phone at heightened risk of commercial failure. Needing Google Play and YouTube, a manufacturer must then accept Google Search, Maps, Network Location Provider, and more – even if the manufacturer prefers a competitor’s offering or prefers a payment for installing some alternative exclusively. 41. In principle, the MADA allows a phone manufacturer to install certain third-party applications in addition to the listed Google Applications. For example, the phone manufacturer could install other search, maps, or email apps in addition to those offered by Google. But multiple apps are duplicative, confusing to users, and a drain on limited device resources. Moreover, in the key categories of search and location, Google requires that its apps be the default, and Google demands prominent placements for its search app and app store. These factors sharply limit users’ attention to other preloaded apps, reducing competitors’ willingness to pay for pre-installation. Case5:14-cv-02007 Document1 Filed05/01/14 Page17 of 40
  • 18. - 15 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Thus, even if phone manufacturers or carriers preload multiple applications in a given category, the multiple apps are unlikely to significantly weaken the effects of Google’s tie. 42. These MADA restrictions suppress competition. Thanks to the MADA, alternative vendors of search, maps, location, email, and other apps cannot outcompete Google on the merits; even if a competitor offers an app that’s better than Google’s offering, the carrier is obliged to install Google’s app also, and Google can readily amend the MADA to require making its app the default in the corresponding category (for those apps that don’t already have this additional protection). Furthermore, competitors are impeded in using the obvious strategy of paying manufacturers for distribution; to the extent that manufacturers can install competitors’ apps, they can offer only inferior placement adjacent to Google, with Google left as the default in key sectors – preventing competitors from achieving scale or outbidding Google for prominent or default placement on a given device. 43. These MADA provisions serve both to help Google expand into areas where competition could otherwise occur, and to prevent competitors from gaining traction. 44. Google’s practices with respect to its MADAs restrain and hurt competition because they constitute yet one more way by which Google forecloses its rivals in handheld general search from competing. The results are especially pernicious given that already there are high barriers to entry in the markets for general search. 45. Any search engine becomes better over time as more and more search inquiries are run through it. Searches executed via Google’s search engine provide Google with data that Google utilizes to improve its search algorithm. For example, if a user’s quest for specific information is not satisfied by clicking on prominent links in results returned by the search engine, she will click on a lower-ranked link or enter new search terms, and this data allows the algorithm powering the search engine to adapt, or to be modified, to produce better results. This, in turn, enhances Google’s appeal to consumers, and the cycle repeats itself. Then, because Google attracts more users with these ever-improving search results, Google attracts yet more ad dollars because advertisers will follow the most consumers. And with more advertising dollars, Google Case5:14-cv-02007 Document1 Filed05/01/14 Page18 of 40
  • 19. - 16 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT can spend even more money to enhance its infrastructure4 and search product, the effect of which will be to attract yet more. (See, e.g., C. Argenton & J. Prüfer, “Search Engine Competition with Network Externalities,” Journal of Competition Law and Economics, 8(1), 73-105 (2012), at 1-2, 9, 11, 13.) This is the “beautiful thing” of which Mr. Rosenberg, Google VP of Product Management and Marketing, has spoken. 46. The high barrier to entry posed by Google’s “beautiful” cycle has been recognized by antitrust regulators. As the federal government recognized in its February 18, 2010, “Statement of the Department of Justice Antitrust Division on Its Decision To Close Its Investigation of the Internet Search and Paid Search Advertising Agreement Between Microsoft Corporation and Yahoo! Inc.”: The search and paid search advertising industry is characterized by an unusual relationship between scale and competitive performance. The transaction will enhance Microsoft’s competitive performance because it will have access to a larger number of queries, which 4 Huge financial and computational resources are required to run a search engine as a consequence of the enormity of the World Wide Web. Search engines crawl the web via robots in order to index the contents of the nearly one billion websites in existence. (See http://www.internetlivestats.com/total-number-of-websites/ (last accessed April 14, 2014).) Needless to say, this is a Herculean task due to the ever-expanding nature of the web. Google’s head of search stated at an August 2012 search press breakfast that there were some 20 trillion URLs online and that Google crawled over 20 billion of those on an average day. He also reported that Google answered 100 billion searches per month. (http://searchengineland.com/google- search-press-129925 (last accessed April 22, 2014) (emphasis added).) Contrast this to what Google reported only four years earlier, when the numbers already were staggering. As Google wrote in July 2008: “Recently, even our search engineers stopped in awe about just how big the web is these days – when our systems that process links on the web hit a milestone: 1 trillion (as in 1,000,000,000,000) unique URLs on the web at once!” (http://googleblog.blogspot.com/2008/07/we-knew-web-was-big.html (last accessed April 14, 2014) (emphasis in original).) Google reported further: Even after removing … exact duplicates, we saw a trillion unique URLs, and the number of individual web pages out there is growing by several billion pages per day.… We don’t index every one of those trillion pages … [b]ut we’re proud to have the most comprehensive index of any search engine…. Today, Google downloads the web continuously …. [M]ultiple times every day, we do the computational equivalent of fully exploring every intersection of every road in the United States. Except it’d be a map about 50,000 times as big as the U.S., with 50,000 roads and intersections.” (Id.) Case5:14-cv-02007 Document1 Filed05/01/14 Page19 of 40
  • 20. - 17 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT should accelerate the automated learning of Microsoft’s search and paid search algorithms and enhance Microsoft’s ability to serve more relevant search results and paid search listings, particularly with respect to rare or ‘tail’ queries. The increased queries received by the combination operation will further provide Microsoft with a much larger pool of data than it currently has or is likely to obtain without this transaction. The larger data pool may enable more effective testing and thus more rapid innovation of potential new search-related products, changes in the presentation of search results and paid search listings, other changes in the user interface, and changes in the search or paid search algorithms. This enhanced performance, if realized, should exert correspondingly greater competitive pressure in the marketplace. Yet even after consummation of the Microsoft-Yahoo! deal referenced in this statement by the Department of Justice, in which Microsoft’s Bing began to power Yahoo! searches, Bing has struggled mightily. As The Washington Post reported recently, Microsoft’s “online services division, which oversees search engine Bing, reported a loss of $1.3 billion in 2013 – less than the previous year but still in the red.” (http://www.washingtonpost.com/blogs/the- switch/wp/2014/02/05/investors-want-microsofts-new-ceo-to-kill-xbox-bing-and-surface/ (last accessed April 14, 2014.) This has brought pressure from investors to dump Bing altogether. 47. If Microsoft were to exit the market, then there is little hope for any meaningful competition in the markets for general search and handheld general search. As Steve Pociask and Joseph P. Fuhr, Jr. of the American Consumer Institute put it in their July 24, 2012 paper entitled “The Search for Market Dominance”: Most troubling, however, are recent events suggesting that rivalry in the search engine and search advertising markets has waned altogether. Not only are many of the early search engine rivals gone, but most of the remaining competitors are using Google’s search capability to some extent or through revenue-sharing deals. For example, for years now, AOL has been using Google’s search engine and, consequently, Google’s advertising program. Similarly, Ask.com downsized its staff several years ago and signed a five-year multi-billion dollar deal to use Google’s advertising/sponsored links program. More recently, both AOL and Ask.com have reaffirmed their dependence on Google. As recently as last October, there are reports that Google was looking to finance a deal for others to buyout Yahoo. Bing continues to sustain billions of dollars in losses and single-digit market share worldwide. Google has locked into exclusive deals with various providers, making it the default search engine on many online web devices. By all indications, competitors are waning, rivals are using Google’s own services, and not even Microsoft can make a profitable dent into the market. It appears that Case5:14-cv-02007 Document1 Filed05/01/14 Page20 of 40
  • 21. - 18 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT the market has tipped to Google, which funnels much of the web’s traffic to and from its websites and partner websites. (Id. at 8-9 (footnotes omitted) (available at http://www.ftc.gov/sites/default/files/attachments/frequently-requested-records/1311google-2013- 00857.pdf) (last accessed April 15, 2014).) 48. Google itself has acknowledged that scale is critical to the general search market and constitutes a grave barrier to entry. For example, Google’s executive chairman, Eric Schmidt, was quoted in an April 13, 2003 New York Times article entitled “In Searching the Web, Google Finds Riches” as stating: “Managing search at our scale is a very serious barrier to entry.” And this was over 10 years ago, well before Google attained its present immense size and scale. Mr. Schmidt has since tried to walk back that statement, but it remains as objectively true today as it was then – even more so. 49. In fact, only a few years ago, Mr. Schmidt again acknowledged the immense power and marketplace effectiveness of Google’s scale during an interview for an October 9, 2009. BloombergBusinessweek article entitled “How Google Plans To Stay Ahead in Search.” In response to the question, “What is Google’s biggest strength in search?” Mr. Schmidt responded: “We just have so much scale in terms of the data we can bring to bear.” 50. This is consistent with Mr. Schmidt’s remarks expressed earlier in 2009, in response to a question during a FOX Business television interview about whether Microsoft’s investment of some $80-100 million into promotion for its competitive search engine, Bing, would compel a response from Google. As Mr. Schmidt put it, “From Bing’s perspective they have a bunch of new ideas and there are some things that are missing. We think search is about comprehensiveness, freshness, scale, and size for what we do. It’s difficult for them to copy that.” (http://www.zdnet.com/blog/btl/schmidt-bing-has-not-changed-what-google-is-doing/19492 (emphasis added) (last visited March 20, 2014).) When not even a company as successful and wealthy as Microsoft gives Google competitive pause due to Google’s scale and the barriers to entry that it poses, then realistically, no company can hope to compete with Google in the fast- Case5:14-cv-02007 Document1 Filed05/01/14 Page21 of 40
  • 22. - 19 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT growing market for phone and tablet general search, especially when Google resorts to unlawful behavior to maintain and expand its monopoly power. 51. Indeed, as Reuters reported on November 21, 2012, in an article entitled “Google competitor DuckDuckGo says it’s getting shut out,” “[u]pstart Internet search engine DuckDuckGo, which promotes itself as a Google Inc. rival which does not track users’ personal information, says it is being hurt by the search giant ….” According to the article, Gabriel Weinberg, the MIT graduate who started DuckDuckGo, complained that “the Android wireless phone comes with Google as the phone’s standard search mechanism.” (Id.) “DuckDuckGo can be added as an app to a mobile device, which is less convenient than being the default search engine, said Weinberg.” But Google’s anti-competitive tactics did not stop there. Instead, Google, having purchased a company which owned the domain name “duck.com,” began redirecting traffic from that domain name to itself after DuckDuckGo inquired about purchasing it. (Id.) This, according to Mr. Weinberg, created confusion among consumers. (Id.) Mr. Weinberg also complained of the difficulty of making DuckDuckGo the default search provider in Google’s Chrome web browser. (Id.) The article concluded by reporting that “[a] former antitrust enforcer, who asked not to be named, said the actions that Weinberg complained about were unexciting taken individually but, as a cluster, could be worrisome. ‘It’s relevant. It’s what antitrust enforcers call monopoly soup,’ said the enforcer.” (Id.) 52. When Bing and other search engines such as DuckDuckGo are excluded from competition by way of the practices described in this complaint, not only is actual competition restrained and harmed by way of the exclusion itself, but even the prospect of real competition is restrained and diminished. When Google’s search product grows in effectiveness, fueled by search volumes strongly enhanced as a result of Google’s anti-competitive practices, competitors fall yet further behind both in terms of effectiveness but also in terms of reputation in the marketplace. 53. Competition is further restrained and harmed by Google’s unlawful contracts because rivals to Google’s applications, such as AOL’s MapQuest, an alternative to Google Maps, cannot compete for pre-load exclusivity on affected Android OS mobile devices. Google’s like Case5:14-cv-02007 Document1 Filed05/01/14 Page22 of 40
  • 23. - 20 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT applications must be pre-loaded pursuant to terms of its MADAs, in prime positions on the mobile phone’s or tablet’s screens. 54. Not only is competition restrained and harmed by Google’s practices, but so is the innovation that real competition brings. When rivals are not able to compete, they will be less and less likely to make the investments in time and money that would mean better mobile search or maps (as one example) for everyone. New potential competitors will stay away, too, from such a stacked marketplace. And this means that consumers are robbed of what these aspiring competitors might bring to the market, if only they were given a fair chance to compete. E. Google conceals its MADA restrictions. 55. The MADA restrictions have been unknown to the public and Google has effectively kept them hidden. The MADA agreements are labeled “highly confidential attorneys eyes only.” Further, Google has misleadingly implied that it has no such restrictions. 56. Google’s public statements indicate few to no significant restrictions on use of the Android operating system or Google’s apps for Android – leading reasonable observers and even industry experts to conclude, mistakenly, that Google allows its apps to be installed in any combination that manufacturers prefer. 57. For example, on the “Welcome to the Android Open Source Project!” page, the first sentence touts that “Android is an open source software stack . . . .” (https://source.android.com/ (last accessed April 29, 2014).) Nothing on that page indicates that the Android platform, or Google’s apps for Android, suffers any restriction or limitation on the flexibility standard for open source software. 58. Moreover, senior Google executives have emphasized the importance of Google’s openness in mobile. Former Google Senior Vice President Jonathan Rosenberg offered a 4300- word analysis of the benefits of openness for Google generally and in mobile in particular. For example, Mr. Rosenberg argued: “In an open system, a competitive advantage doesn’t derive from locking in customers, but rather from understanding the fast-moving system better than anyone else and using that knowledge to generate better, more innovative products.” Case5:14-cv-02007 Document1 Filed05/01/14 Page23 of 40
  • 24. - 21 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT (http://googleblog.blogspot.com/2009/12/meaning-of-open.html (last accessed April 29, 2014).) Mr. Rosenberg also argued that openness “allow[s] innovation at all levels – from the operating system to the application layer – not just at the top” – a design which he said helps facilitate “freedom of choice for consumers” as well as “competitive ecosystem” for providers. (Id.) Mr. Rosenberg says nothing about MADA provisions or restrictions on what apps manufacturers can install. Yet there is no way to reconcile the MADA restrictions with Mr. Rosenberg’s claim of “allow[ing] innovation at all levels” and claimed “freedom of choice for consumers.” 59. Additionally, Andy Rubin, then Senior Vice President of Mobile at Google, in an April 2011 blog post claimed that “[D]evice makers are free to modify Android to customize any range of features for Android devices.” (http://android-developers.blogspot.com/2011/04/i-think- im-having-gene-amdahl-moment.html (last accessed April 30, 2014).) He continued: “If someone wishes to market a device as Android-compatible or include Google applications on the device, we do require the device to conform with some basic compatibility requirements. (After all, it would not be realistic to expect Google applications – or any applications for that matter – to operate flawlessly across incompatible devices).” (Id.) Mr. Rubin’s post does not explicitly indicate that the referenced “basic compatibility requirements” are the only requirements Google imposes, but that is the natural interpretation. Reading Mr. Rubin’s remarks, particularly in light of his introduction that Android is “an open platform,” most readers would conclude that there are no significant restrictions on app installation or search defaults. 60. But that is not all. Google Executive Chairman Eric Schmidt, following the Senate’s September 2011 “Power of Google” hearing, responded to written question 8.a put to him by Sen. Herbert Kohl as follows: Has Google demanded that smartphone manufacturers make Google the default search engine as a condition of using the Android operating system? Mr. Schmidt: Google does not demand that smartphone manufacturers make Google the default search engine as a condition of using the Android operating system. . . . Case5:14-cv-02007 Document1 Filed05/01/14 Page24 of 40
  • 25. - 22 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT One of the greatest benefits of Android is that it fosters competition at every level of the mobile market—including among application developers. Google respects the freedom of manufacturers to choose which applications should be pre-loaded on Android devices. Google does not condition access to or use of Android on pre- installation of any Google applications or on making Google the default search engine. . . . Manufacturers can choose to pre-install Google applications on Android devices, but they can also choose to pre-install competing search applications like Yahoo! and Microsoft’s Bing. Many Android devices have pre-installed the Microsoft Bing and Yahoo! search applications. No matter which applications come pre-installed, the user can easily download Yahoo!, Microsoft’s Bing, and Google applications for free from the Android Market. (Power of Google Transcript of Sept. 21, 2011 Hearing at 147-48 (available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg71471/pdf/CHRG-112shrg71471.pdf (last accessed March 20, 2014)).) Mr. Schmidt’s responses to questions from Sen. Mike Lee (question 15.b), from Sen. Al Franken (question 7), and from Sen. Richard Blumenthal (question 7) were similar and, in sections, identical, and were highly misleading given the terms of Google’s MADAs. (Id. at 165-66, 125-26, and 110.) F. Google further forecloses competition in the market by entering into exclusive contracts with Apple. 61. As part of its strategy to maintain and extend its monopoly in handheld general search, Google also has entered into exclusionary agreements with the largest non-Android phone manufacturer, Apple Inc. (“Apple”). 62. Google has paid Apple hundreds of millions of dollars, if not billions of dollars over the years, to act as the default search engine on Apple iPhones, iPads, and iPods. It is estimated that it will pay Apple over a billion dollars in 2014 to retain this status. (See, e.g., http://searchengineland.com/financial-analyst-affirms-googles-1-billion-in-default-search- payments-to-apple-148255 (last accessed April 4, 2014).) This arrangement forecloses competing search engine companies from the best opportunity to break Google’s stranglehold on the handheld general search market. 63. No pro-competition justification exists for the exclusion of rival search engines from acting as the default search engine on Apple mobile devices. Case5:14-cv-02007 Document1 Filed05/01/14 Page25 of 40
  • 26. - 23 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT G. Google’s unlawful practices harm consumers. 64. Consumers are harmed by Google’s practices in aid of maintaining and advancing its monopolies because they are robbed of choice, because of the stifling of innovation, and because their handheld devices cost more than they would if Google did not foreclose competition. As to the latter harm, when Google’s competitors in handheld general search are prevented from competing with regard to default engine status, or for app exclusivity, on a phone or tablet, money they would pay manufacturers for that status – which would drive down the price of that device – stays in these competitors’ pockets. This means that consumers pay more for affected phones and tablets than they would but for Google’s unlawful behavior. 65. Google’s mandatory MADA terms that tie Google search to its other products, without business necessity or justification, in fact kill competition and consumer choice. As Susan A. Creighton, counsel for Google and former Director of the Bureau of Competition at the Federal Trade Commission, put it at the Power of Google hearing: “And this really gets to the question of, are there impediments to the ability of consumers to choose. So if someone found, for example, that as Microsoft did there [with respect to Netscape], that Microsoft was intimidating OEMs from being able to offer rival product so that it never got to market, then I would want to have relief that went to those provisions that were preventing choice.” (Power of Google Transcript of Sept. 21, 2011 Hearing at 46-47 (available at http://www.gpo.gov/fdsys/pkg/CHRG- 112shrg71471/pdf/CHRG-112shrg71471.pdf (last accessed March 20, 2014)).5 ) 66. This lawsuit aims to achieve the sort of relief to which Google’s counsel referred and to restore to consumers the price premium they paid for their affected mobile phones and tablets. 5 Google’s counsel also remarked that competition among search engines for default status with Apple was a good thing – even as Google’s own MADAs, with their tying provisions, make it impossible with respect to affected Android OS products. (See id. at 45 (“[W]e actually want Apple to be able to have companies like Bing and Google competing to be the best search engine. . . . Now, [Apple] having picked Google, Bing and Yahoo are going to compete that much harder the next time. So when you have that kind of a contestable market, that you have someone who’s a stand-in for consumers, because Apple is not going to take the worst search engine.”).) Case5:14-cv-02007 Document1 Filed05/01/14 Page26 of 40
  • 27. - 24 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT V. INTERSTATE TRADE AND COMMERCE 67. The activities of the defendant as alleged in this complaint were within the flow of, and substantially affected, interstate commerce. VI. RELEVANT MARKETS 68. Where it is necessary that plaintiffs demonstrate the existence of relevant markets, there are two. The first is the United States market for general search, i.e., general Internet search conducted on desktop computers, laptops, and handheld devices via the Google search engine or one of its general search engine rivals, such as Bing. The second is the United States market for handheld general search, i.e., general Internet search conducted on smartphones and tablets. 69. First, Google has acknowledged the existence of a “general search” category (see id. at 72 and 102 (referring to Microsoft’s Bing search engine in a written response posed by a U.S. Senator in the “Power of Google” proceedings, Google’s counsel remarked: “Here, by comparison, Google has no ability to exclude a general search engine rival such as Microsoft from the market.”; and its executive chairman stated in response to another written question: “As I acknowledged during the Committee hearing, Google is ‘in the area’ of 65% of queries [for desktop search] in the U.S., if you look only at Google’s general search competitors, such as Microsoft’s Bing and Yahoo!”) (emphases added).) 70. Though Google today seems intent on denying the existence of this obvious market – even as it (a) pays Apple hundreds of millions, if not billions, of dollars for default search engine status on the iPhone and (b) insists on unlawful tying arrangements with Android OS manufacturers to maintain and expand its dominance of it in smartphones and tablets – Google’s executive chairman was correct when in September 2010 he remarked in a Wall Street Journal video interview that there is in fact a market for general search. Whatever Google’s current efforts to dilute the discreteness of this market with references to specialized searches run through Facebook, for example, or Yelp, its executive chairman himself rightly waved away such efforts from others only a short while ago. As AFP reported in a September 25, 2010, article entitled “Google chief sees Bing as main threat”: Case5:14-cv-02007 Document1 Filed05/01/14 Page27 of 40
  • 28. - 25 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Google chief executive Eric Schmidt on Friday said that Microsoft’s Bing search engine was the company's main threat, not Facebook or Apple. “While it’s true Web search is not the only game in town, searching information is what it is all about,” Schmidt said in Wall Street Journal interview video posted online. He described Apple as a well-respected competitor and Facebook as a “company of consequence doing an excellent job in social networking,” but said that Microsoft’s latest-generation search engine was Google's main competition. “We consider neither to be a competitive threat,” Schmidt said, referring to Facebook and Apple. “Absolutely, our competitor is Bing. Bing is a well-run, highly competitive search engine.” (http://www.google.com/hostednews/afp/article/ALeqM5gJL1jBNwMhcjiDZl- P1EVe8Lalpw?hl=en (last accessed March 22, 2014 (emphasis added).) 71. Second, a relevant submarket, in addition to, or as an alternative to, the first relevant market, is the United States market for handheld general search. Not only do industry analysts consider handheld general search to be a distinct market, but so does Google in its pitches to advertisers. (See, e.g., http://services.google.com/fh/files/misc/mobile-search-ppt.pdf (PowerPoint presentation to advertisers based on Google-Nielsen survey and study).) 72. Substantial barriers to entry to the overall general search market and the handheld general search market exist because of Google’s monopolization of those markets, including by means of the unlawful conduct alleged in this complaint. VII. CLASS ALLEGATIONS 73. Plaintiffs bring this action under Fed. R. Civ. P. 23(b)(1) and (2). 74. Plaintiffs bring this action on behalf of themselves and the following class, for injunctive relief based on violations of the federal Sherman and Clayton antitrust acts: All U.S. purchasers of any Android OS mobile telephone or tablet as to which Google and the manufacturer of such device has entered into a contract or contracts, including the so-called Mobile Application Distribution Agreement, by which Google has conditioned the right to pre-load any application from a suite of Google applications, including the YouTube app or the Google Play client, on the manufacturer’s mandatory acceptance and installation of Google search, or so-called Google Phone-top Search, as the default search engine on that device. Case5:14-cv-02007 Document1 Filed05/01/14 Page28 of 40
  • 29. - 26 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Excluded from this proposed class is the defendant; defendant’s affiliates and subsidiaries; defendant’s current or former employees, officers, directors, agents, and representatives; and the district judge or magistrate judge to whom this case is assigned, as well as those judges’ immediate family members. 75. Plaintiffs also bring this action on behalf of themselves and the following class, for monetary and injunctive relief based on violations of California’s Cartwright Act and Unfair Competition Law: All U.S. purchasers of any Android OS mobile telephone or tablet as to which Google and the manufacturer of such device has entered into a contract or contracts, including the so-called Mobile Application Distribution Agreement, by which Google has conditioned the right to pre-load any application from a suite of Google applications, including the YouTube app or the Google Play client, on the manufacturer’s mandatory acceptance and installation of Google search, or so-called Google Phone-top Search, as the default search engine on that device. Excluded from this proposed class is the defendant; defendant’s affiliates and subsidiaries; defendant’s current or former employees, officers, directors, agents, and representatives; and the district judge or magistrate judge to whom this case is assigned, as well as those judges’ immediate family members. 76. Upon information and belief, the unlawful conduct alleged in this complaint, including preparation of, imposition of the terms of, and entry into, the Google MADAs, was effected, implemented, adopted, and ratified in the state of California, where Google maintains its U.S. headquarters. Furthermore a substantial part of the anti-competitive conduct took place in California. For these reasons, plaintiffs allege that they and the nationwide class proposed in the preceding paragraph are entitled to monetary and injunctive relief under California law. 77. In the event that the Court determines that California law does not apply nationwide, plaintiffs will bring alternative, additional class allegations based on the laws of the various states permitting such actions under their antitrust and unfair competition laws. 78. Numerosity: The exact number of the members of the proposed classes is unknown and is not available to the plaintiffs at this time, but upon information and belief, the Case5:14-cv-02007 Document1 Filed05/01/14 Page29 of 40
  • 30. - 27 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT classes will consist of many hundreds of thousands of members, or even millions of members, such that individual joinder in this case is impracticable. 79. Commonality: Numerous questions of law and fact are common to the claims of the plaintiff and members of the proposed classes. These include, but are not limited to: a. Whether Google unlawfully has conditioned the contractual right of any manufacturer of any Android OS mobile telephone or tablet to pre-load on that device any of Google’s applications, including the YouTube app or the Google Play client, on the manufacturer’s mandatory acceptance and installation of Google search, or so-called Google Phone-top Search, as the default search engine on that device; b. Whether there are U.S. antitrust markets for general search and handheld general search; c. Whether Google has unlawfully monopolized, or attempted to monopolize, the markets for general search and handheld general search, including with respect to Android OS mobile telephones and tablets; d. Whether competition in the general search and handheld general search markets has been restrained and harmed by Google’s monopolization of those markets; e. Whether consumers have been harmed, including by way of having paid more for their affected Android OS mobile telephones and tablets than they would have but for Google’s unlawful conduct, as a result of Google’s unlawful practices; f. Whether plaintiffs and members of the proposed classes are entitled to declaratory or injunctive relief to halt Google’s unlawful practices, and to their attorney fees, costs, and expenses; g. Whether plaintiffs and members of the proposed classes are entitled to any damages or restitution incidental to the declaratory or injunctive relief they seek, and to their attorney fees, costs, and expenses related to any recovery of such monetary relief; and Case5:14-cv-02007 Document1 Filed05/01/14 Page30 of 40
  • 31. - 28 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT h. Whether plaintiffs and members of the proposed classes are otherwise entitled to any damages or restitution, and to their attorney fees, costs, and expenses related to any recovery of such monetary relief. 80. Typicality: Plaintiffs’ claims are typical of the claims of the members of the proposed classes. The factual and legal bases of Google’s liability are the same and resulted in injury to plaintiffs and all of the other members of the proposed classes. 81. Adequate representation: Plaintiffs will represent and protect the interests of the proposed classes both fairly and adequately. They have retained counsel competent and experienced in complex class-action litigation. Plaintiffs have no interests that are antagonistic to those of the proposed classes, and their interests do not conflict with the interests of the proposed class members they seek to represent. 82. Prevention of inconsistent or varying adjudications: If prosecution of a myriad of individual actions for the conduct complained of were undertaken, there likely would be inconsistent or varying results. This would have the effect of establishing incompatible standards of conduct for the defendant. Certification of plaintiffs’ proposed classes would prevent these undesirable outcomes. 83. Injunctive and declaratory relief: By way of its conduct described in this complaint, the defendant has acted on grounds that apply generally to the proposed classes. Accordingly, final injunctive relief or corresponding declaratory relief is appropriate respecting the classes as a whole. 84. Predominance and superiority: This proposed class action is appropriate for certification. Class proceedings on these facts and this law are superior to all other available methods for the fair and efficient adjudication of this controversy, given that joinder of all members is impracticable. Even if members of the proposed classes could sustain individual litigation, that course would not be preferable to a class action because individual litigation would increase the delay and expense to the parties due to the complex factual and legal controversies present in this matter. Here, the class action device will present far fewer management difficulties, Case5:14-cv-02007 Document1 Filed05/01/14 Page31 of 40
  • 32. - 29 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT and it will provide the benefit of a single adjudication, economies of scale, and comprehensive supervision by this Court. Further, uniformity of decisions will be ensured. VIII. CLAIMS FOR RELIEF FIRST CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT (15 U.S.C. § 1) 85. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. 86. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide Sherman Act and Clayton Act class (hereafter “federal law class”) described above. 87. Under the MADAs described herein, manufacturers of Android OS smartphones and tablets wishing to pre-load onto a device any Google application contained in a Google- designated suite of apps must agree to pre-load all Google applications from that suite onto that device. This suite of apps includes not only the YouTube app and Google Play client, among others, but Google’s Phone-top Search, i.e., Google’s search engine product, as well. Thus, a manufacturer wishing to pre-load YouTube or Google Play onto a device also is required to pre- install Google Phone-top Search on that device and to make it the default search engine “for all Web search access points on the Device.” (Exs. A and B, ¶ 3.4.) These requirements mean, inter alia, that no rival search engine can compete for default search engine status on an affected device because, by definition, there can be only one default search engine. 88. Google’s MADAs are contracts in restraint of trade. Google’s conduct affects and forecloses a substantial amount of interstate commerce. 89. Plaintiffs and the federal law class have been harmed by Google’s conduct, both in terms of the denial of choice and other injuries to competition and innovation, but also in terms of the supra-competitive prices they paid for their smartphones and tablets due to the inability of Google’s rivals to compete for default search engine status or exclusive application pre-loading, including by way of paying device manufacturers fees for such status. Had Google’s rivals been able to compete for such status on a given device, including by way of making payments to device Case5:14-cv-02007 Document1 Filed05/01/14 Page32 of 40
  • 33. - 30 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT manufacturers, the effect would have been to lower the cost to produce that device, and consumer prices would have been lower than what they were but for Google’s unlawful conduct. For these reasons, Google’s conduct has been a substantial factor in causing plaintiffs’ and the proposed classes’ harm. 90. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the federal law class are entitled to an injunction, pursuant to 15 U.S.C. § 26, to prevent Google from persisting in its unlawful behavior to their detriment. SECOND CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT - MONOPOLIZATION (15 U.S.C. § 2) 91. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. 92. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide federal law class described above. 93. The relevant markets are the U.S. general search market and the handheld general search market. 94. Google possesses monopoly power in the relevant markets. 95. For the reasons stated herein, substantial barriers to entry and expansion exist in the relevant markets. 96. Google has the power to exclude competition in the relevant markets, and it has used that power, including by way of its unlawful practices in restraint of trade as described herein, in order to maintain and expand its monopoly power in both. 97. Google’s conduct as described herein, including its unlawful practices in restraint of trade, is exclusionary vis-a-vis its rivals in the U.S. markets for handheld general search and general search. Case5:14-cv-02007 Document1 Filed05/01/14 Page33 of 40
  • 34. - 31 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 98. Google has combined with device manufacturers to maintain and grow its monopoly in handheld general search and general search, with the effect being that competition is foreclosed, that innovation is stifled, and that consumer choice is gravely diminished. 99. There is no business necessity or other pro-competitive justification for Google’s conduct. 100. Plaintiffs and the federal law class have been injured, and will continue to be injured, in their businesses and property by way of Google’s conduct, including by way of overpaying for their affected Android OS smartphones and tablets. 101. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the federal law class are entitled to an injunction to prevent Google from persisting in its unlawful behavior to their detriment. THIRD CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT – ATTEMPTED MONOPOLIZATION (15 U.S.C. § 2) 102. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. 103. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide federal law class described above. 104. Google has attempted to monopolize the U.S. market for general search and the U.S. market for handheld general search. 105. Google’s anti-competitive conduct has created a dangerous probability that it will achieve monopoly power in the U.S. market for general search and the U.S. market for handheld general search. 106. Google has a specific intent to achieve monopoly power in the U.S. market for general search and the U.S. market for handheld general search. 107. Google has the power to exclude competition in the U.S. market for general search and the U.S. market for handheld general search, and it has used that power, including by way of Case5:14-cv-02007 Document1 Filed05/01/14 Page34 of 40
  • 35. - 32 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT its unlawful practices in restraint of trade as described herein, in an attempt to monopolize those relevant markets. 108. Google’s conduct as described herein, including its unlawful practices in restraint of trade, is exclusionary vis-a-vis its rivals in the U.S. markets for general search and handheld general search. 109. Google has combined with device manufacturers in an attempt to monopolize handheld general search and general search, with the effect being that competition is foreclosed, that innovation is stifled, and that consumer choice is gravely diminished. 110. There is no business necessity or other pro-competitive justification for Google’s conduct. 111. Plaintiffs and the federal law class have been injured, and will continue to be injured, in their businesses and property by way of Google’s conduct, including by way of overpaying for their affected Android OS smartphones and tablets. 112. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the federal law class are entitled to an injunction to prevent Google from persisting in its unlawful behavior to their detriment. FOURTH CAUSE OF ACTION VIOLATION OF THE CLAYTON ACT (15 U.S.C. § 14) 113. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. 114. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide federal law class described above. 115. Under the MADAs described herein, manufacturers of Android OS smartphones and tablets wishing to pre-load onto a device any Google application contained in a Google- designated suite of apps must agree to pre-load all Google applications from that suite onto that device. This suite of apps includes not only the YouTube app and Google Play client, among Case5:14-cv-02007 Document1 Filed05/01/14 Page35 of 40
  • 36. - 33 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT others, but Google’s Phone-top Search, i.e., Google’s search engine product, as well. Thus, a manufacturer wishing to pre-load YouTube or Google Play onto a device also is required to pre- install Google Phone-top Search on that device and to make it the default search engine “for all Web search access points on the Device.” (Exs. A and B, ¶ 3.4.) These requirements mean, inter alia, that no rival search engine can compete for default search engine status on an affected device because, by definition, there can be only one default search engine. 116. Google’s MADAs are designed to lessen competition substantially and tend to create, or maintain and expand, Google’s monopoly in the U.S. markets for general search and handheld general search. 117. Plaintiffs and the federal law class have been harmed by Google’s conduct, both in terms of the denial of choice and other injuries to competition and innovation, but also in terms of the supra-competitive prices they paid for their smartphones and tablets due to the inability of Google’s rivals to compete for default search engine status or exclusive application pre-loading, including by way of paying device manufacturers fees for such status. Had Google’s rivals been able to compete for such status on a given device, including by way of making payments to device manufacturer, the effect would have been to lower the cost to produce that device, and consumer prices would have been lower than what they were but for Google’s unlawful conduct. For these reasons, Google’s conduct has been a substantial factor in causing plaintiffs’ and the federal law class’s harm. 118. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the federal law class are entitled to an injunction, pursuant to 15 U.S.C. § 26, to prevent Google from persisting in its unlawful behavior to their detriment. FIFTH CAUSE OF ACTION VIOLATION OF THE CARTWRIGHT ACT (CAL. BUS. & PROF. CODE § 16727) 119. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. Case5:14-cv-02007 Document1 Filed05/01/14 Page36 of 40
  • 37. - 34 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 120. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide California law class described above (hereafter “California law class”). Alternatively, if the Court does not apply California law on a nationwide basis, plaintiffs bring this claim on their own behalf and on behalf of each member of a California class, as described above. 121. Under the MADAs described herein, manufacturers of Android OS smartphones and tablets wishing to pre-load onto a device any Google application contained in a Google- designated suite of apps must agree to pre-load all Google applications from that suite onto that device. This suite of apps includes not only the YouTube app and Google Play client, among others, but Google’s Phone-top Search, i.e., Google’s search engine product, as well. Thus, a manufacturer wishing to pre-load YouTube or Google Play onto a device also is required to pre- install Google Phone-top Search on that device and to make it the default search engine “for all Web search access points on the Device.” (Exs. A and B, ¶ 3.4.) These requirements mean, inter alia, that no rival search engine can compete for default search engine status on an affected device because, by definition, there can be only one default search engine. 122. Google’s MADAs are designed to lessen competition substantially and tend to create, or maintain and expand, Google’s monopoly in the U.S. markets for handheld general search and general search. 123. Plaintiffs and the proposed class have been harmed by Google’s conduct, both in terms of the denial of choice and other injuries to competition and innovation, but also in terms of the supra-competitive prices they paid for their smartphones and tablets due to the inability of Google’s rivals to compete for default search engine status or exclusive application pre-loading, including by way of paying device manufacturers fees for such status. Had Google’s rivals been able to compete for such status on a given device, including by way of making payments to device manufacturer, the effect would have been to lower the cost to produce that device, and consumer prices would have been lower than what they were but for Google’s unlawful conduct. For these reasons, Google’s conduct has been a substantial factor in causing plaintiffs’ and the proposed classes’ harm. Case5:14-cv-02007 Document1 Filed05/01/14 Page37 of 40
  • 38. - 35 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 124. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the California law class are entitled to an injunction to prevent Google from persisting in its unlawful behavior to their detriment. 125. Plaintiffs and the California law class also are entitled to treble damages based on the monetary injuries caused to them by Google’s unlawful conduct, including overpayment for their mobile phones and tablets. SIXTH CAUSE OF ACTION VIOLATION OF THE UNFAIR COMPETITION ACT (CAL. BUS. & PROF. CODE §§ 17200 et seq.) 126. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full. 127. Plaintiffs bring this claim on their own behalf and on behalf of each member of the proposed nationwide California law class described above. Alternatively, if the Court does not apply California law on a nationwide basis, plaintiffs bring this claim on their own behalf and on behalf of each member of a California class, as described above. 128. California’s Unfair Competition Law (“UCL”) defines unfair competition to include any “unlawful, unfair, or fraudulent” business act or practice. CAL. BUS. & PROF. CODE §§ 17200, et seq. 129. Google has engaged in, and, upon information and belief, continues to engage in, acts of unfair competition as defined in California’s UCL. These acts of unfair competition include its violations of the federal Sherman and Clayton Acts, as well as California’s Cartwright Act, as alleged herein. 130. Google’s conduct has harmed competition and consumers. Consumers have overpaid for their affected Android OS mobile phones and tablets due to the inability of Google’s rivals to compete for default search engine status or exclusive application pre-loading, including by way of paying device manufacturers fees for such status. Had Google’s rivals been able to compete for such status on a given device, including by way of making payments to device Case5:14-cv-02007 Document1 Filed05/01/14 Page38 of 40
  • 39. - 36 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT manufacturer, the effect would have been to lower the cost to produce that device, and consumer prices would have been lower than what they were but for Google’s unlawful conduct. 131. Plaintiffs are inclined to purchase Android OS devices in the future, in part because of their investment in learning the Android OS system and also because of their desire to continue using applications they have purchased from the Android Market or Google Play store. Plaintiffs and the California law class are entitled to an injunction to prevent Google from persisting in its unlawful behavior to their detriment. 132. Google also should be required to disgorge ill-gotten profits resulting from its practices described herein as they relate to handheld general search, and from these disgorged sums, plaintiffs and the class should be allowed restitution of the money they overpaid for their mobile phones and tablets. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request the following relief: A. That the Court certify this case as a class action; that it certify the proposed federal law class, and the proposed California law class, on the nationwide bases requested; and that it appoint them as class representatives and their counsel to be class counsel; B. That the Court award them and the proposed classes all appropriate relief, including, but not limited to, injunctive relief requiring that Google cease the practices effected by its MADAs as described herein, and declaratory relief, adjudging such practices unlawful, as well as monetary relief, whether by way of restitution or damages, including treble, multiple, or punitive restitution or damages where mandated by law or otherwise available, as well as recovery of their attorneys’ fees, costs, and expenses; C. That the Court grant such additional orders or judgments as may be necessary to prevent the unlawful practices complained of herein; and D. That the Court award them and proposed classes such other, favorable relief as may be available and appropriate under federal or state law, or at equity. Case5:14-cv-02007 Document1 Filed05/01/14 Page39 of 40
  • 40. - 37 - 010437-11 683086 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT JURY TRIAL DEMANDED Plaintiffs demand a trial by jury on all issues so triable. DATED: May 1, 2014 HAGENS BERMAN SOBOL SHAPIRO LLP By /s/ Jeff D. Friedman Jeff D. Friedman 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 jefff@hbsslaw.com Steve W. Berman (pro hac vice pending) George W. Sampson (pro hac vice pending) Robert F. Lopez (pro hac vice pending) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com george@hbsslaw.com robl@hbsslaw.com Attorneys for Plaintiff and the Proposed Classes Case5:14-cv-02007 Document1 Filed05/01/14 Page40 of 40
  • 41. Exhibit A Case5:14-cv-02007 Document1-1 Filed05/01/14 Page1 of 15
  • 42. MOIL.E.APPL.i.AI11OF4 DSTRff3UTQJ .EEMfl 01 IC cj lcJ 1c FF FF cFy FF1 qF LI IF occ FF i1i1Oi.S01i CF Ii zod 1L.FrFOS.iiii 1000 c. .F11CF00tfl116 sei.iorih.boW IF 11 r.F IICF1I ci 111111FF It lIc III 11 Fcl IF IF OF cr II pr II IF .U lii ILl Fl IF lii rt LI 11111 IF IF II bF Fl Ft ci 111111 Fl ii 111 IF il 110 CrF4cQfl .iFI $s.Ed61Fd.1fl0Ch T$PtL IF ICIFIaIC Odi. LJflY æmii 11 III FFFF iF Ic FF 0011 Fl FFcg JF JO Fl FF1 112 1N245 11111 1111111 III Iv iF clii IF Ii 11 IV fl fl 01 ol IF II JOF II ci In IF III at UNITED STATES DISTRIcT COURT NoRTHERN DISTRIcT OPCALIFORNIA TRIAL ExHIBIT 2775 CASE NO 10-03561 WHA DATE ENTERED BY______________ DEPUTY CLERK HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA GOOGLE-03371 669 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page2 of 15
  • 43. EXtCUiARt.h l3 AndreW compatible Devicest means Devices that comply with the Android Compatibility Definion document which may be updated from time to time which can be found at the Android compatibility website htlp//sourco.andtoid com/eempatibility and successfully pass the Andreid Compatibility Test Suite CTS 1.4 Android Market means the marketplace Coogie has created and operates which allows registered Android Market developers to distribute Android Products 1.6 Android products means software content and digital materials designed for use on AndrOlbased devices 1.6 Client ID means unique alphanumeric codes provided by Googte to Company to be used to Identity Google Applications usage on Company Devices as such Client IDa may be modiliert by Google from Iliac to time in its sole discretion upon notice to Company -hi CIS Report means the report that is generated atfer the CTS Is compteted j.5 Default Home Screen means the default display ot Device prior to any changes made by End Users that appears without scrolling in both portrait and landscape modes when the Device is in active idle mode i.e not in sleep mode 1.9 Device moans the devices approved by Googie pursuant to Section 4.3 Google Approval and Launch and using only the Android operating system which is enabled by Company and used by an End User to access the Service 1.10 End Users means an end user customer of the Service 1.11 Final Embed Date means the tatesi possible date Company can accept updated Google Applications from Googte for specific Device deployment 1.12 Google Applications means the niachine-readabte binary code version ot the Google applications listed below which ore provided to Company in connection with this Agreement and any modifications or updates thereto that Coogle may make available to Company hereunder from time to time in its sole discretion List of Google Applications may be changed by Googte from time to time Set-up Wliard Coogle Phone-top Search Gniail Google Catendar Googte Talk Youlube Googte Maps for Mobile Google Street View Contact Sync Android Market Client not products downloaded from Android Market Ooogte Voice Search and Network Location Provider 1.13 Goegle Applications Agreements means the Mobile Services Distribution Agreement between the parties dated January 2011 as applicable to Googte Phone-top Search and att rotated amendments or similar between Google and Company and as updated anrt amended from time to time without reference to service levels or customizatiens set out in such agreements 114 Google Mobile Branding Guidelines means Googles brand treatment guidelines for mobile in effect from time to time and any content contained or referenced therein which are located at and http//NW.YOegle.comJPermIs5b0n5/9ddt1ehtnht or such ether URLe as may provided by Ooogle from time to time together with such additional brand treatment guidelines for mobile as Googte many make available to Company from time to time 1.15 Inteltectual Property Rights means any and all rights existing front time to time under patent law copyright taw semiconductor chip protection law morat rights law trade secret law trademark law unfair competition law pubticity rights law privacy rights law and any and all ether proprietary rights as well as any and alt applicaLions renewals extensions restorations and ra-instatenlents thereof now or hereafter it force and effect worldwide tie Launch means the initiat distribution ot Device in accordance with the terms of this Agreement 1.17 Optional Google Applications are the Googte Applications listed betow which are provided to Company in connection with this Agreenlent and any modifications or updates thereto that Googte may make available to Page ot f4 Certfd nSaI floyd 11/10 HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 0-cv-03561 -WHA GOOGLE-03371 670 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page3 of 15
  • 44. ExvctYIA13f.t1 Company hereunder from Limo to time In its sole discretion List of Optional Google ApplicationS may be changed by Google kern time to time Orkul Google Goggles Google Earth Finance News Weather Googlu Buzz and Google Voice Optional Google Applications are licensed and have the same rights and obligations as Google Applications except that the requirements set forth in 3.4 Placement Etequirements shall not apply and Company has the option of including the Optional Google Applications on Device tie Phone Top means with respect to the default navigation hierarchy of Device UI the top-most level screen from which applications can be launched by an End User 1.19 tA5vice means the wireless service owned and/er operated by Telecom Operator that allows End Users using Device to access the lnternel 1.20 TelecOm Operator means company that provides wireless service that allows End Users using Device to access tire Internet approved by Google to distribute Google Applications to End User in the Territories 1.21 Territories means the country or countries In which distribution of Google Applications is permitted under the conditions as provided by Goegle to Company upon execution ot this Agreement which may be updated by Ooogte rein time to time Distribution ot Gouglo Applications products or services outside of the Territories is prohibited 1.22 Trademarks means the trade names trademarks service marks logos domain names and other distinctive brand features of each party as owned by such party from time to time GooglO Applications 2i License Grant Subject to the terms and conditions of this Agreement including Section Googfe hereby grants to Company nontransferable nonsublicensabte except Company may sublicense to Telecom Operators with whom Company has written agreement nonexclusive license during the Teim to reproduce the Goople Applications to the extent necessary to exercise the right granted in and distribute the Google Applications for no cost direotly to End Users only in the Territories specifically authodzed by Google via the distribution methods specified by Google For the sake of clarity Company may sublicense the 000gb AppficatiOns to Affiliates resellers and distributors for distribution or manulactorirf purposes only when the Googte Applications are pre.ioaded on the Devices Devices may only be distributed if all Google Applications excluding any Optional Google Applications authorized br distribution In the applicable Territory are pre installed on the Device unless otherwise approved by Google in writing lnitial distribution in each individual Territory and the appearance and implementation of Google Applications shall be subject to Googfes prior written approval and shall adhere to the terms and conditions of this Agreement including but not limited to the Google Mobile Branding Guidelines Additionally where Google specifies specific version of Google Application to be distributed in certain Territory Company shall distribute only sucti version within such Territory Company may also sublioonse the Googfe Applications to its contractors for testing evaluation and development purposes only not distribution and only with contractors with vjhich Company has written agreement that is no less protective of the 600910 Applications as sot forth in this Agreement 2.2 LIcense Grant Restrictions Company shall not and shall not assist Instruct or encourage any third party to disassemble decompile or otrionwise reverse engineer the Googte Applications or otherwise attempt to learn the source code or algorithms underlying the Google Applications create derivative works From or basorl on the Google Applications except as expressly set ferth in this Agreemonl provide sell license distribute lease tend or disclose the Google Applications to any third party exceed the scope of any license granted to Company hereurldar ship divert transship transfer export or re-export the Google Applications or any component thereof into any country or use it in any manner prohibited by any export control laws restrictions or regulations adminlsterel by the U.S Commerce Departments Bureau of Export Administration the tIE Department of Treasurys Olt ice ot Foreign Assets Control or any other applicable government agency or take any actions that may cause or result in the tragmentat ion at Android incfudlng but not limited to the distribution by Company of software development kit 30K derived rein Android or derived from Android Compatible Devices rind Company shall not assist instruct or encourage any third party to distribute seftwero development kit SDK derived from Android or derived from Android Compatible Devices Confidential fnvd ri/lU Fao Set It HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA GOOGLE-03371 671 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page4 of 15
  • 45. I lAid 23 De1Ivory en ib iCy 1olJ1 Ii lL klwrr the Goo1jle Appt rtns Conpafly Iha soko ol cIa iCy rOe rekn wlectga and agree thsi Ciraqir ha no oh yahoo to di votop or di ye any Ocagle AppL cation an any Lit daytilopole it or delivery in at oogias Ic nerd on Con pony hail er reraHy rua lit cliii is to con monce di rtrrbuton ul uprielt it vorsim of Gooq Appli itiorifi rniptiy after such up lair ii vein ciii of Ooorjlo App iliL rt rid Ic av labia Cooq but iv urc tlio days ftt avalah lily puno of DistributIon Otlering During the Ii rn upon tocpls approvol ao tIe cob c1 Set Ire Cor op ny II ill maim the noqk Al ipi a1i ns available to oct Users tot cc as do nbc in this Aclraa neni For the oak of clanty Cci ipany baa on rn ligation install the Google Apphati irre on all of its dvncas Ii inn any rnh efiring shall be re ci forth in this Agreement aid thou adhere to the Di ojl Mobile Urwid eq Ciul Eel ire Without Jim tmg thu toreg nq ntis ci enc for Er ci Users xprrssiy id forth in th Ajrecinurll Company shall not oft or di trmLn nil the Coogle Apple itmon to any thud party ycept an set forTh Suction Conip my sic vi an cli ill rot asm adru if cli esta any thi aty to cc rv otlanwist pico any lv rI roll rUn diii ii the Ii inst roe cc ol ii nogie AppI dons ii utli download or mad ill or allow any third sty Cu off or dow dead or ii till airy acldrhonat produts dnng the loiler proc of the Oriogh Apirt cit or or iii prr lod lit tj or iimrh any oqie ph rtron or otherwise ad on fail Ia act such that air nO non is den tnt opp rrunily isc OJ eut ci jia lire reLrvant moql term of stasis .b Accurate HoprOdLietiOn Company ajntnus ur ml c0000 hoi with eserrIse ol tire right granted in Lii AqrQenl at it wilt accurud ly rtpmo tier ita Ceog lii rtrt mnlCD iraq ny legal notiCt am ml rnwkfl entaned therein in will iii iii cd in tim Go gk Atipliflahin on roy viruseS iv iron doLt lorrih tim emhn or ohm nirl hr sptuif mc slly di sign to rnme the Co jfc Applicatrirm to ceO opurat eq or dunriage imiticrnnil itlow crs to or irmirrlrrn with Pie gte AppI 1110115 on rut Uor at 28 Open Devices limo panties II ealt an op/n nvironnmcflt for Its omit cc by in all idroid Protlu is an An 1w it App cattal It gram riririf hi In faics vir1ahte md opel an th evire omit wilt take rio vi to lien or rcstr lime Andro ci platform AuthOrizmttOfl to hjistilDute Google AppliCations 00 the Devices CompaUhilIly lint lii ense to dint iCicle fooflim Ap hi dionr in Sc deni us contingent upon ltmr DuvisO bucnn nq an Android Conipatib Dcv am Ii Dcvi must he crime cm Android Compatible tievif at iast SO daya pnnnr to Im mnrai Fr ibcd Date of fir tr tie fin ii cofrwaru hmmili cO 01 vrc mount pas the Co or hi ly lest 1rtrtc pta to taun Ii Cumnipany 0J ten in fol own cc of it 1111111 iye lhal ci anig mtd by Cormrpany in an in iii ti tin ri/rn Fr Sm rtrniit and Load PiTS fleporL on ehail of Company ttnr IS has limit con modmtrcd or irIS rert hny Ctrriipamw is cmiii loyt cig imtm Din Oflimily wIt oxecutt Ire 503 lately Ci 1$ IheporS tmtr her attend tt contents of cch CI ut trre to thu best Company owk igi Googl arid mt at.itnOtt mny mmml id It mc miii at ndroid Cciii nImbLe Devisi nird ampany nani hi ruserit rtiomr mriarkolim no it trc cc rc mLn ns it custofflO lists hi ii ins trlts tlhcirmt lii ontatnon ccmsturn fists on Go cm v.ub Slut for aPr hoc Iff wrms onhy alIt Donipiiy written approval ihrh mali not Ii rim mit anon 1mb1 ili it iii my pot 1mb It cm ills of tucl Daprd attn tho applmcahli Dcsa mc Luil ci Other Agroenlonts II Agruc is mU vi nrpercnle any aqreoirvimlu hetWoon Ihi pmrtim ii gud eq Aim tic md.powc trI dcv ten tint wilt have rttr 11mm in imilnt agrcemointc butwuCim tic 1urtme reqerd ny oth al seiVlt or app cation lit ii osti Icsnliii flid 11 hO HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America 000gle 31 O-cv-03561 -WHA 000GLE-03371 672 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page5 of 15
  • 46. ExElJTAlJll Device Distribution Requirements 3.1 Company agrees that it will he solely responsible br the distribution of the Devicos and managing its inventory 3.2 Unless otherwise permitted in writing by Googlo Company will ensure that qevices distributed in Germany make use of Itre Geoyle Mail end not Gmait Googte Trademark as Company understands and agrees that it shall not Actively Promote and shall not assist or encourage any third party In Actively Promoting Googte Applications OF any Google services except in those Territories in which such Google Applications or services are expressly authorized by Google in this Agreement Specific information regarding Territories will be provided to Company after Companys acceptance ci this Agreement BA placement Requirements Unless otherwise approved by Googte in writIng Company wilt pretoad all Googie Applications approved In the applicable Territory or Terdtodes on each Device Googto Phone-top Search and the Android Market Client icon must be pIeced at least on the panel immediately adjacent to Ihe Default Home Screen all other Google Applications wilt he placed no more than one level betow the Phone Top and Google Phone1op Search mush he set as the default search provider for alt search access points on the Device Notwithstanding the toregoing Ihere are no placement requirements for Optional Google Applications 3.5 DistributlOn Company shall prelead the Google Applications en the Devices so that alter prnload an Icon representing each Google Application shalt appear on the Device as specified in the above Placement Requirements in addition Probed by Company of Google Application shall he limited to installation by Company of the Goocjle Application and shall not involve launch of the Googte Application End User selection of an icon representing an already preloaded Gongbo Application shall launch such Google Application 3.6 Support Each parfy is responsible for customer care and support of its users Google will provide support tar c3cogle Applications as made generally available to users of Geogle Applications 3.7 BrandIng Branding on the hardware of the Devices will he determined by Company hut shall not include any Goeglo branding or Geogle Trademarks without Googles approval 3.8 Network Location provider The hollowing requirements apply to Network LecatloEl Pnvider Company shalt ensure Network Location Provider will be turned elf by default Cumpany shalt ensure that the appropriate prompts are displayed to the End User seeking the End Users consent to use Network Location Provider as provided by Geogle Company shall not prevent the End User troni providing consent prior to enabling Network Location Provider or any application making use oh Network Location Provider Company shall configure Network Location Provider to be the default netwomk.hased location provider cr1 all Android Corn patibla Devices Coniparry will enAble all features ot Network Location Provider Including network-based location resolutron anonymous network location data collection and reverse.geocodino 3.9 000gb Legal Terms Company shall ansrrre that the appropriate Goagle Terms oh Service Privacy Policy and Legal Notices as provided by 000gle are avaltable to the End User as provided by Google Page rol 14 Contidonliol Ravd 11/10 HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Goagle 31 O-cv-03561 -WHA GOOGLE-03371 673 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page6 of 15
  • 47. API GuraI Requiremoilts PaynienI Lcopt net torhi hi Si Uca Company ann Go fJlC dl oaeh rolum nay and ati iCOl flUO qitd Pm raason tkm rao tivC irrducts 5we or tho saL of ci tidy upl as xpreniy bet Forth lii Aproerm at nnitlnr ely sh il be oqu ied to aecunt Liii athi or vturv mahe any payvit ta the ott or rcqrdinp the ppltdtiJflS Do pk pcodtkts ur OOiV is the Dcv cc th 51 rven my re lOt aerated their tic of oi ach month din nit thi app1 cabLe term of the nogle Appt.CdtiOflS Apre mica as is etinod in tim app in ihia Go AppI ThOfiS Aprocuielit Oomjle nh.il malc payine its Lu Gouui any in ccordaact ii tie app bin ru uqb Apph all Aproum ii Nothiig in this Apronillufit will en inje the vim of thu Gil uplu Appi iticas Aqier cats fuim defiacd ii cacti sish Goopi ApplicahO Agieci icr ft RepOrts Within Li lily TO days ol thn end ol to itt cndar Pu dunnrj tlio Term Company shall ilten it ott of the Pital number of Dovicc di tii ailed with pret udod vwsian ut CoUple Appi on durinq act ikfll ii qu by nope Appticatsfl lPn toiy to Dcv cc mmli with cmtory to the trnt thu uh rot op liic npoil wit subin ttcd to Google Approval end nunch cnn pans distob it on md en untotici at the OooqlC ApphcailOHS ldiOI hi subject to Oooge par approval not to Pu ii Irea onab withhELd to en flu adhe once to the farms an in tub 15 oF Iti Apreeba ni in cli it iiut Ii nihd Lu ft Gougic Mat ti aj Cu idol nos Conup my shell nat Ltunct toy Dcviii cut orparril up Iii hi qli Appi at on imP it Pu OhM ned Gooqlcs approval an set Foith Ii nd applicD It hot iw ni the mit it Launch ul uaili Uivm mo lot Cnuiiiiiny will amp etc Desire sum ii Adrh adan in th toan sot irlh on hiP GentIle or ruvict liro vlCri loft Addel Pain arid will notiFy Company at nay Once Flit pads na ly ip no or Iii vim tin AthleiiJ ii II mc pail men must ign lie lava uri Add or elan 111111 iL die .Livc ijiril any wi no cs lion to Pays beforc Iho iltIcd aui ii notify Guegk via unset Ci via itm roy dad by nqle of such in provida Device niinpkn in an ii unite th rn bob UbiO flupuit bo tm in and eMail the hoot cs final cIlworu build Lii such inch oi any rsmliblrituO it en iii ic at to tir nit dcl altur he mutai ci inch at ra Dcv .0 11101k iuolu do1 oftti ire ri immigos for iy cw feli an Dpi ator in each new nrrilnry or any software opt ites jii any iU approvnI ubtiin wnUe wh cli sy no by of oiiaI approva lot to Pt unroasomicF ly witIthi nor to too mnpariy will no lea th to 30 clays tinfoil ch Lion Date notify Cm ph vi on it wr.Lnrit providod by Gooqlo 0510 en surneti ubi it CT but ear aunch and iii equested oy Cooplo ubuiiL he ItlviiC nat softworc boild to rrll Lai nd Cuoq in provi Ii 1qiaJal as Iuiod no oius 411 or 3b as ap be alilo fbi iraplo ntotiu rb ltt lo pie Appb ans ci tIne Des cc in wulin hi lou dislrinat on any Dcv nod ciOti Ccvi niuSb aruly Iii distributed iii Ti rilnnC arid is flu ulieoffl Operators as approve FL Cnobo U1O rocuipt at camh Cc ogle approval omnpa will begin dislrihiitloil and iruplur flInt 00 in icoortiflJ with this Apr went cacti our into Cci ipamiy wiF piuv cC cn.itaC ImPO bc0 in 10 Inc l4atS Gooqia cmi uunc allan regarding apn0v Ii Camef nip torupa iy stil provd written run sin itu to Coop cml aunih pmnnptly allowing cacti not sum cam tiny ginO that 11w resli metirimit injridi retnet on ugal 1st live Promotion tI twin at tIc lollowli Li ate or etlmw UITL provided by ougli rid as updated by Dough loin IlillO 10 iflO shalt apply to mit aunhOS antis rthervrlsC ii ovod .nsgte in wniiip https tt qua jbo 1011 110001 Jill 911 di buIiOi CO iytiiciI ut rt9O ijt .pplmcitlol Cciii pany ill prnv.rIn sithly re oil on mipnnieiit vmibuiii uud app it she rrrit ci tar cccl Ut vIce IniplefliCfitOtIOfl RCqullCriientO TIme il Ii II ovide itio ii etc aol inrf ifuinnati iii 1istt Luoluw At te sI 3t day prom to the mat Probed Date Ice Cr iii tint trio ii oF wnli Dcvi -e model incorporatimi lIlt Qoogle p1 cation Gnu rui 1i II dulvm to unogli no Ii tItan aim Di vico iiiptc or such Dpvmco mod for 00011105 app oval is tt ut no hi hmofl Cong Appr nval arid suneb 0o0j10 rnSy 1150 su Devices tu test tt operation ci p0 0111101 of re vent Cinajbe pmoc1uct5 cones ann Sun on the vice Devices wilt Ii scm Ito ClrnlllC sld 055 to be pravm Ic 11 tonglr tu Company ili1 QiiItdllliC ii 111usd 11 114 HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA GOOGLE-03371 674 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page7 of 15
  • 48. Ii ith any tn1 thu luvrCtS UIUV clod ch th trorl 44 no lonqer this ol th pt nj tin ouror luric oIt or ci ml want Cu pin puYt mt cv cc or onipary wcll provkiu Cisipi with spkoonwrit as qu1r ii II at ar mis iho soliwaro on io vii vs stnbued to md Uses ijS IIiO 1145051 lilalili of Cno procucAs stay ite on pauy sir naPs avflablu to Cu plo tin now si ftworu nil or Dv us to appruw Jump ii itaa to rsvt jim wuh aug rig sIng of nvicas nd Andr c1 id it ons waglo may mmiii lii ii tO iie preys mn ry ath Author hasc appi itions arimi tssJ Unit sir rut lu 101 on Dois whs ci sy mm pros ml tori iS at ievm us on wi is isir opplicat .00 ilL ix oh ata ore tiro ups ration nid prosta it oil ul ish at on Gerrip roy wrl load suh ri rp oat au or Deviocs ci rur so Lost ii tin ely moor to help usc iii upuroluOll nd pmo otalion ot uol app1 matmir 15 iii provide thu rosmuflc to Gngli CompanY an ill minuri the appmpriatl taut It Ira Cam Dccuco is prnsi ml by tO i i opany shall tu am it Pta Lloh to pmnvr iii allmor udormatlo sqi puitoit anJs st us waco ishly irm nc to ii ow regis to dolivur 11w tootilI AppU at cmos 001 naku the CoocJo Applications uc ludmnq ovcr tin iii updates Ihi rein ovaulalilo on thri and tic Duvuran Ovar4heAir UpdateS Coaj ri On aOl iipclak oqlc At pla atior OCta Ihwarr at Cough char rm Iron Jnmnupiiy sin ill not pu vo1 ut nyc 14 is air ido uplifts In oc ph nt8 dus etuon Guvcle viny nabto Conmpany cm mdr Dow bumkIu to iuilC dmstnb iliuui by is ifite to Dvicss via an civ tho mrpdib Company treroby prools Ic ipls ii non vXCIu5h worlciwi Iv Is enco to clrstubute the Dova titihid dud ij the sun Noihing ii tins Ag im it ua rcquev Jump ci previth Devi bum Is Inc flongla to rrinbimti arid ipto oh all not be ot lip sImm Ito ii buto si ml tivi ii dcl 413 Site Pages Conipo my shcr and stir nit cuss 14 imislr or insour mgc numy II ulni paily to rod ci an id hsor nv ry Ira block cccss to Iran mis or mired ly or ho go lbs ok or fact of nniy woh ifJ cm tpl mti ace mc via ooqlo AppI allan ta place mmvii moo oh l0 pi trot in civ taiJ umpt SS Ii it Couple is rc poi Plo for the ma touts of hi POP 4J Data Collection ncf Roparthi Fact party crpph ibto privacy coo securrty pol ores shtl app aith me pa ot to tIn cur tori lot oil otIru to Icy ml IImc 15111105 will provide oar tti rrsmsui aPP aciomogate mlou rmnllmui about rajn of the aaceb dt ring thu lot iii orcle to ho on Ir pi ly umiprovo mmcl Usur mOO with th lcs im Or Sm Id itith moIm piiIy privacy pot icc Pin nih ruin Asic wit rmot mvulve any cii acm illy dcntuf bill he ifs ii it ion Telecom Operator Cuatouiler Restrictions She paribas ask wladjs rid igroc that the cmnnrmimt hit utuu bhigaliOta or tanned mm Poclion Pond Soc tihimi or suPt otto restrictions p10cc ci upon Cc up cy his chute lv in dpi rotor ccustOmflPr luwuvor puisual to Sc tromm amm 5cc wry an Am place ocot thmti it rrt in including the oppear nor of c.ooglci ph it us chat ul jta Ii opt or wal tour mrppr il Sb ci Ill rc tin ti Ionic enctuthaflc ml tIn hi aunt ir oluc ing hut riot tiunuitCil to thc cmi ph Mobil lit ni rip Oumdc lines 4o Na Cannoctivity Nohuce When arc nd tissi sum CmoS 1ev 05 yaP troWser ta lou cob us Co fie Ap hi ntr or fliers 0cm ctuta inomrectivity ovo.I ibmu Conimeny wi not osk mltur on hr vent ii coy my thu iiiiii10hl ol any limo rpm to Auctr sb Liii mi it mill Iak of it vu ir ostivity d1O Potitts of Contact Frchi sty shill oh per it lanltlb null iger 111mm Partner MrnracIer who shah be the ouct aria for ii issues ow eli till Agrouli nL cci pony tamnamY comiulansO iron with no1IO paid mimi II in Agruemoril with ta rum ugh ni iii so it It mu i4 ConimmIlilU tileyll Ii IC HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA GOOGLE-03371 675 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page8 of 15
  • 49. ExlcLlrAltl.l Term and Termination 5.1 Term The twin of this Agreement shall begin on the Effective Date and continue for period of two years after the Effective Date unless earlier terminatOr1 as provided in this Agreennent This Agreement shalt not renew unless specifically agreed by the parties in writing 5.2 TerminatiOn Either party may suspend performance or terminate this Agreement if the other party is in mater tat breach of the Agreement and fails to cure that breach within ttiirty 30 days after written notice or ii the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety 90 days Notwithstanding the foregoing either party may terminate this Agreement Inimnediately upon written notice upon breach of SectionS 2.1 to 2.2 License Grant and Restrictions Section 2.4biii opportunity to review and accept Google terms of service Section 2.5 Accurate Reproduction Section 6.1 Confidentiality or Section Trademarks or as set forth in Section 12.4 Change of Control Notwithstanding anything to the contrary in the event that the government or controlling body of any country or territory in which the Googie Applications are distributed or made available imposes any law1 restriction or regulation that makes it illegal to distribute or make available the Google Applications or any portion thereof into such country or territory or if any such law restriction or regulation places substantial burden en Google where substantial lS measured with respect to Seegles economic benefit under this Agreement as determined by Googlo in its reasonable and good laith judgment such substantial burden Substantlal Burden then Goeglo shall have thu right to suspend the distribution and/or availability of such Google Applications in such country or territory until such time as such iaw restriction or regulation is repeaied or nullified or modified such that Ihere it is no longer illegal or Substantial Burden as applicable1 for the Google Applicallons to be distributed or made available in such country or territory Special Suspension 53 Effect of Termination Upon expiration or termination of this Agreement all rights and licenses granted hereunder shall immediately cease Company wili mmedialely slop reproducing ottering or distributing the Google ApplicationE and each Party shail return or destroy and duly appointed officer shall certify to such destruction all copies ol the Googlo Applications in the case ol Company and any other Confidonlial lnformatiorl in Its possession which it is aware and to which it has access and is reasonabiy able to destroy or delete which for the avoidance ol doubt does nut include archived backup copies which are not In live working use and which are no longer easily accessible or retrievable including from all hard disks and memory Neither party shall be liable to the other for any damages resulting solely from termination of this Agreement as permitted for under this Agreement .4 SellOff Right1 0fithslanding the provisions of Section 5.3 above for period of ninety 90 days following expiration or termination of this Agreement Sell-Off Periodi Company shall have the right to distribute in accordance with the terms and conditions of this Agreement all Google Applications actually preloaded on the Device inventory as of the date of expiration or termination of this Agreement inventorYl and such party shall have the right to use the Google Trademarks In accordance with this Agreement In connection with such Inventory Sell-Off night provided however that Company shall provide no less than thirty 20 days prior written notification to Google of its intent to exercise the Soil-Off Right SeihOft Right Notice Notwithstanding anything to the contrary Ihe SellOfl Right shalt not apply in the event that either Company does not provide the Sell-Off Right Notice as set forth above In this Section 5.4 or this Agreement or any right granted hereunder is suspenderi or terminated by Google pursuant to Section 52 of this Pgreenient .s Survival1 The provisions of Seciloris Definitions 2.2 License Grant Restrictions 5.5 SurvIval 61 jConfidentiaiily Proprietary Rights 9.2 Disclaimer 10 tJmitetion of Liability II lndpmniiioation and 12 General shall survive expiration termination of this Agreennerlt flnfldentielity and PR 6.1 0nfidontlality Definition Confidential lnlormalion is information disclosed by one party to the other party under this Agreement lhat is marked as contidentiat or would normally under the circumstances be considered conlidenlial information ol the disclosing party- Confidential information does nol include irilormation that the recipient already Knew that becomes public through no lault of the recipient that was independently developed by the mcipient or that was rightfully given to the recipient by another party Confidentiality Obligations The recipient will not disclose the Conhidontial information except to alliilatos employees and contidentist floyd tUb Pao cot 14 HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Googie 31 0-cv-03561 -WHA GOOGLE-03371 676 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page9 of 15
  • 50. Xi Ct MU ajonls who ONI icouW hoe agr wut no to koep ci ccci do.ctiai ho rocit cci ds LII Mw oreptoynob aqc lb cc dy uao Coni nicat itormatiaF ordy to cxci cisc rights and tuclcli ol ikjats us tsr tic adreoc iPOt whdu using rus OOMtP CaO to prniccl ci 11w ceciptent Holy thMk0 COccfcdUfltklL luau Urn 0110 ftCltfflPI law Itt flLU fOd5 cc to dcloseL Pubticiy pt as sot forth Ic Soc icon 2.1 ccc cihor cty Slay make any puhh date noflt mg idcflq lb elatco ml ip eontLfllp clad bj tais Agmecal of Wcrhoid Lice others pncc wnttefl approval Rcquest urorkcUc cc io so nci oil ci Ubt ty arcs should tin ci raric icy subrntt ig ro cc end cic lcnq the eppreprcate An Ito ci cnh7 in the FO itcPsL TrddscOK 7.1 General rty sicifi wu alt cyhi cIte an interest ccc Ii slcc with Inctatron ill itdL1 it Property reict ig In it mU ccc cmko orflL bat not till txa up ci Co ipie cc cc ck to ioate at utc cit cc Ut ii Googi vi cy providc Ironc 0510 tO ticcle pt Lu tin ace writ ixncisSiy proc idod lit Agreo or neither any crtnls and tics odor party slcti not ci no any gil hit or cntorI pirelli lit icj 01 Icat diet on any cp to 1n Inc Ion kh of 11cc cit ty and all right riot oxpro sIy grac hrca are dis ci fbi old Al coo by COOtItO 01 Coflupaccy ucdccuc uks iccotuclical any giti dwcll sc kited tic ow tic th all ncr thu be iel onipacly and all by Company of uogtic radi marks ii tudicctt any 1w II asses sled tIc mcdli shall cnuu to 11w buc1ct ci Ccc gte No arty haLl ohattcclge or rot lb LI alk nqe tb Tr cci ccnnck of the oiler parcy oxcepi hi p1010 such puly igl .ts with re i ci ci its ow Lralsni irks or tin mgi trat 01 tlccroo by bin other am nor outturn pony attempt in rep ctor iy It Ioniai cm do ccc ci SillS that are cci clu cnqty Ilmilar ii thu oflccr surly 72 License to Go091e radeniarKS Subiect 13o0itrt tsrcltuci approval pmnar to e.ch use Soogl radoncark acid ii 11w Ic us rcd con iii or of 11 Agci HOld 10 iglO prnlts to botculiacty 1cm IC rconcxeUscvu an no dci oct ccl ci dc.r ug ho orm Ic Jcsplay 110cr Coople cad mark cxproSSl7 to ithnriicr liii use thcs Agmoc cc ccl ol0 Icr IL rmpcctcnc oxpc essly set mmiii loris NolW tlcstandcmcci accyd cog to th ci Italy Coogle nuay rovoke liii cticms iutd ho in La ccc Cci g1e raducc rks ccc providing Coccupacy II arctic ni Scce liar roe cabt ptiud limO 11 arc sccc uag0 urthorm cc cc it ii any Co ccci Ii nuacks Co rip iccy lk to adhCrfl to the Coon Mob cnc in Lack Iciui omcufcicccy st call not and ti 01 as cst strunc cuocirlq my third 1ady to produ any cc icon cc iii kaqcng cc otcri Inc Devise lb it inc1 suqgc is that GOIglO tIc cccccntdtactu em of thi Duvir In tic cog cml Cuinpa uy sh lt en cc dial siy leo Ce par agrig or ccc cc girl pcodccc0 by liii incpcny icc niches Uncap as th oanul turci of the Dcvic amid irov.ihs contact tic tai ccc ho app cc ubla crritnri cc whir tim Day ix triticcliIcl 73 license to Compaiw lradonuarKS Sub oc ro the tonics and cert Ichons at tin pc untidt Crisp 107 grants to Qongh tic ited non xrlo vu cccl St hIt ccisahie cc no ckcrcn Uc errs to dc lay th ma Co spa 17 rirtec carts exprellY antlmorcicd br usc in bi nrc ii of ih Acac tmont oly for lice ptcrau sproasty sot forth ccc ci Looglo cnncl cccuii any prior written tptccciVdt br the tics vi Cci cipacly radnniarka ccc sri forth in ec icoc LIII Agc ii cot Hr twuIlctaccdincb citicrlg to thu cucctfary Conip ny city revck tb lit cui cjc itd tnmuicc ci Uocspcnys rcduinuk ipcn proxid up Goopte wit vaittr ci actinc theft amid cca.oS iblu iGr ci hair to rcascu stcth ci rcc ccc hcinor in Its oar uI uccy Co up idly ic1cnc oct11 qrcio to adi re to ihr or up ircy Mi it ito lircic il sq Cc icclebr cm th PrnpriCtOrY flcqhIS to iqnaciy icknciMedgOS thii 11 bW ccc tics McLiC Ccc jc acirtlnr cia Icceccsums retacci all rcnchl Ii to rd itere codi dc without iimctatio hi rijhl ccl cinpyciglilS tradecilarl imado re r0t patonC acct kncov tin icul to tIc Cooctc Appu tc ac nnct tIc Soaglu In iloacarks Cocanany loca aqutr cc riitttt 1111cm Ic 0th trip ixc p1 tb cxpro c7 qialCd thr Aqrroccwal Cooglc It not 110 tnctenl cocci sultinill hc0i iaq cc icdityc it or uhprwco thtflbUtifltl th Gongli Appli ocis arudur th Coop iron einarkc Ia any Ii ccci party oogI0 cc kno0tedqos 11cM ImetWCCn the idiot Cal npany and th uci$Ot rolacnc all gift tile iii cnlereSI nciccdicig wcthout Inc ift if cqhl cul copyrcgltt Icailocci mIs tccie crc1 iolcatc id ku wdiovl In rid to tho tevicc nd 11cr Ccc ipatly lcicl ci uk oO hc cnii sh ill acqcr cc icc rijht cit tIc Ior ng copt thoar nxpresbly grantoo by this HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA GOOGLE-03371 677 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page10 of 15
  • 51. EX ECIJTAII 1.1 Agroament Except as set forth in this Agreement Company shall not be restricted from selling licensing modifying or otherwise distributing the Devices and/or the Company Trade marks to any third party RepresentatiOns Warranties and olselalmer 9.1 RepresentationS and Warranties Each party represents and warrantstO tire other that it has full power and authority to enter into this Agreement and that the execution and delivery of this Agreement and the perfornianca of its obligations hereunder1 will not constitute breach or detault of or otherwise violate any agreement to wtiiclr such party or any of its aftiliates are party or violate arty rights of any third parties arising therefrom company represents and warrants that it has and will maintain throughout the Term al tights authorizations and licenses that are roquirod with respect to thu Devices any materials provided by Company to he distributed by Google including Companys Device builds but exctuding any Google materials and software thai are incorporated in the Device builds and any Company content or services and that the Devices materials provided by Company to Google end the Companys content or services and their use distribution sale and ticensa do and shell continue to comply with all applicable foreign federal state and local laws rubs and regulations Company represents and warrants that any materials provided by Company to ho distributed by Google including Companys Device builds but excluding any Gocgte materials and software that are incorporated in the Device builds will comply with all applicable open source licensing requirements 92 Disclaimer BE1WEEN THE PARTiES OTHER THAN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9.t THE 0000LE APPLICATIONS AND THE ANDROID PLATFORM ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND AND GOOGLE EXPRESSLY D1SCLAtMS ANY AND ALL WARRANTIES WHETHER EXPRESS IMPLIED STATUTORY OR OTHERWISE INCLUDING WITHOUT LtM1TATION WARRANTIES OF MERCHANTABIUTY FITNESS FOR PARTICULAR PURPOSE AND NONINFR1NGEMEN1 CODDLE ODES NOT WARRANT THAT THE 0000LE APPLICATIONS AND/OR ANY OTHER DOODLE PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL MEET ALL OF COMPANYS REQUIREMENTS OR THAT PERFORMANCE OF SUCH SERVICES WILL BE UNINTERRUPTED VIRUS-FREE SECURE OH ERROR-FREE OTHER THAN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9.1 THE DEVICES ARE PROVIDED HAS IS AND WITHOUT WARRANTY OF ANY KIND AND COMPANY MAKES ND WARRANTY OF ANY KIND TO G000LE WITH RESPECT TO THE DEVICES AND EXPRESSLY DISCLAiMS ANY AND ALL WARRANTIES WHETHER EXPRESS IMPLIED STATUTORY OR OTHERWISE INCLUDING WITHOUT LIMITATiON WARRANTiES OF MERCHANTABILITY FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT COMPANY DOES NOT WARRANT THAT THE DEVICES WILL BE UNINTERRUPTED VIRUS-FREE SECURE OR ERROR-FREE 10 LimItation of LiabIIUy 10.1 LImitations SUBJECT TO SECTION 102 LIMItATION ON INDIRECT UABILITY NEITHER PARTY MAY BE HELD LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY REMEDY UMITATIDN ON AMOUNT OF LIABILITY NE1THER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN DNE HUNDRED THOUSAND U.S DOLLARS $100000.00 USD 102 ExceptIons to Limitations These limitations ul liability do not apply to hrnachus of confidentiality obligations violations of Intellectual Proparty Rights including without limitation breach of the license to use Trademarks under Section indemnificatiOn obligations or breaches by COMPANY of Seclions 2.1-2.2 License Grant and Restrictions Section 2.4bfliii opportuny to review and accept Googla terms of service or Section 2.5 Accurate Reproduction 10.3 AilocatIon of Risk The parties agree that the mutual agreements made in this Section 10 reflect reasonable allocation of risk end fb that each party would not enter into the Agreement without those limitations on liability Page 10 14 Conilctentlat aevd 1/ta HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Googie 31 0-cv-03561 -WHA GOOGLE-03371 678 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page11 of 15
  • 52. EXtiCUIALtl .E 11 indemnIfication 11.1 By Google Googie will defend or at its option settle any third party lawsuit or proceeding brought against Company based upon or otherwise arising out of any broach or claimed breach of the first sentence of Section si any otaim that the 600gla Applications or Google Trademarks infringe any Intellectual Property Right or any third party claim arising out of or resulting from End Users use of any Google Application Notwithstanding the foregoing in no event shall 300gb have any obligations or liability under this Section t.l arising from modifications of the Google Applications or the Googte Trademarks by any party other than Coogia and ii combination of the Googto Apptications or the Qoogf Tradornartcs with any other software or products or any other materials Google in its sole and reasonable discretion reserves the right to terminate Companys continued distribution of or access to the Googie Applications or the Googte Trademarks which are alleged or believed by Google to infringe the rights of third party Google shall have no obiigaticns under this Section 11.1 regarding the Android platform or any ttiird party products distributed through the Android Market 11.2 By company Company will detend or at its option settle any third party lawsuit or proceeding brought against Google based upon or otherwise arising out of any breach or ctaimed breach of Section 9.1 the improper or unauthorized replication packaging marketing distribution or Installation of the Googte Apptications by Company or its Affiliates in violation of this Agreement including without limitation claims based on reprosentatiOfls warranties or misrepresentations made by Company any breactt or claimed breach of Sections 2.4biii Section 3.2 Google Mail or Section 3.3 Actively Promote any claim that any Device or application installed thereon other than the Google Applications or any Company Trademark infringes any intellectual Properly Right or any third party claim arising out of or resulting from End Users use of any Device or application installed thereon other than Itre Google Applications including without limitation any actions or claims In product liability tori contract or equity 11.3 CondItions of Indemnification The party seeking indemnification must promptly notify the other party of the claim arid cooperate with the other party in defending the claim The indemnifying party has full control and authority over the defense bul he other party may join in ttre defense with its own counsel at its own expense THE INDEMNiTIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF THIRD PARTYS INTELLECTUAL PROPERTY RIGHTS 12 General 12.1 NotIces All notices must Ire In writing and addressed to the attention of the other partys Legal Department and primary point of contact Notice will he deemed given when verified by written receipt if sent by personal courier1 ovemigtrt courier or mail or when verified by automated receipt or etectronic logs If sent by facsimile or email 12.2 Force Majeure Neither party will be liable for inadequate performance to lire extent caused by ccndrtirrr for exarrrpte natural disaster act of war or terrorism riot faber condition governmental action and lnternef disturbance that was beyond the partys roasonatte control 12.3 AssIgnment Neither party may assign or transfer any pad of this Agreement without the written consent of tIre other party except to an affiliate but only if the assignee agrees in writing to be bound by the terms of this Agreement and tho assigning party remains liable for ohlrgations under the Agreement Any other attempt to transfer or assign is void 12.4 Change of Control Upon change ofcontrol for example through stock pnrchase or sale merger or other form of corporate transaction the party experiencing tIre change of control wili provide written notice to the etlrer party within 30 days after the change of control end the other party may immediately terminate this Agreement any fimo between the change of control and 30 days after it receives fire writ ten notice in subsection of this Section 12.4 12.6 No Waiver verablfIty No Agency No Third-Party aeneilciartes Failure to enforce any prevision wif not constitute waiver If any provision is found unenforceable it and any related provisions will be interpreted to best acconrptish the unenforceable provisions essential purpose Tire parties are indepcndont contractnrs and tIns Agreement does not create an agency partnership or jnint verdure There are no third-party benefrciartes to this Agreement Pgo trot t4 cent rdenmtat tnovd Il/re HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 0-cv-03561 -WHA GOOGLE-03371 679 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page12 of 15
  • 53. 12.6 controlling Law This Agreement and all realtors arising out of or relating to this Agroeriiont1 shalt be governed by the laws of the State of New York All disputes controversies or difference which may wise between the parties out of or relation to or in connection wfth his Agreement should be settled amicably through friendly negotiation In the event of any ontmoveTSy or claim arising out of or relating to any provision of this Agreement or the breach thereof except as set forth in the last sentence of this Section 126 such controversy or claim shalt be finally settled in accordance with the Rules of Arbitration of the international Chamber of Commerce by three arbitratorS appointed in accordance with the said Rules unless the parties agree on the name of sole arbitrator The arbitration shall be held in Singapore and shalt he conducted In the English language 0jifhetanding anything above such arbitration proceedings shall in no way impair or limit the right of either party to seek injunctive relief without recourse to arbitration or to otherwise pursue immediate rehef needed to prevent the breach of this Agreement withstandLng the foregoing or anything to the contrary any and all disputes controversies or claims relating to one partys elleged or actual infringement of the Intellectual Property Rights rotated to this Agreement of the ether party shall be instituted In state or federal court in the Manhatfan borough of New York city New York and Google and Company agree to submit to the exclusive jurisdiction of and agree thai venue is proper in these courts in any such legal action or proceeding 12.7 Entfru Agreement Amendments Counterparts This Agreement is the parties entire agreement relating to its subject and supersedes any prier or contemporaneous agreements on that subject Any amendment must be in writing and expressly state that it is amending this Agreement The parties may execute this Agreement in counterparts including facsimile POF and other of ectronic copies which taken together will constitute one instrument re tnt r4 centfdentlal fRevct title HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 0-cv-03561 -WHA GOOGLE-03371 680 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page13 of 15
  • 54. lt lANI1 WU NLSS WHFUF 01 fln pade flaw nxeueJ IhL A3uwnUfl fly personS duly auIhon as ol the techvo Dofi C0MPANY Somsunli oCkrOfltCS Co Ltd 00051 JNC iy ///4 Dy in Name t1e DuO onudus floyd 11110 HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America 000gle 31 O-cv-03561-WHA GOOGLE-03371681 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page14 of 15
  • 55. xiwuts ISLE COMPANY G006LE INC Title Date Con Ilderitiat Revd 11/101 By Name Title Date Pago 14 of 14 EXHIBIT FORM OF DEVICE LAUNCH ADDENDUM fi Ti us Device Launch Addendum is entered under and subject to the Mobile Application Distribution Agreement effective uNSEAT DATEI between UNSEAT COMPANY NAMEJ Company and Googie Inc 000gm the MADK Upon execution ol this Addendum INSERT COMPANY NAMEJ Google agree to the Launch the Device as set forth below No Launch may proceed until the both parties confirm Terminal Acceptance in writing Alt Launches are subject to the terms and conditions of the MADA Device Device Specifications Device Image optional initial initial target Tercitoryiea Telecom Leunctr Operalorts Date Additional Terms If any DevIce Forecast or the Territory Terget Terminal Acceptance Dale list of coogie ApplIcations Restrictions en Ooogta Applications e.g No Veulube in China Google Tradenrark if arty By Na me HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY Oracle America Google 31 O-cv-03561 -WHA G000LE-03371 682 Case5:14-cv-02007 Document1-1 Filed05/01/14 Page15 of 15
  • 56. Exhibit B Case5:14-cv-02007 Document1-2 Filed05/01/14 Page1 of 14
  • 57. I MOBILE APPLICATION DISTRIBUTION AGREEMENT (ANDROID) Googrornc. 1600Amphitheatre Paf1(way Mountain V!ew, CA 94043 Googlo SPD Rep: Jonnlo Ebbltt Ooogle Salas Englnoor: Alox Medina Oooglo Legal Contact: Frank Montes COMPANY: HTC Corporation Company Contact Information: Company Technical Contact: Company Legal to: Attention: Jerry Hsiao Ellen Wang Graoo Lei Title: Director Director General Counsel Address, City, State, No. 23, Xlnghua Rd., Taoyuan City, No. 23, Xlnghua Rd., Taoyuan City, No. 23, Xinghua Rd., Taoyuan Postal Code, Country: Taoyuan County 330, Taiwan Taoyuan County 330, Taiwan City, Taoyuan County 330, Taiwan Phone: +866-2-6912-4138 #8451 +866·2·8912·4138 #3176 +866-3-375-3252 Fax: +886-2·8914-7596 +866-2-691<1·7596 Email: totus_chen@htc.com ellen_wang@htc.COOl graro_lel@htc.com Effective Pate: January 1, 2011 (must be start of calendar month) Term: Starting on tho Effoclivo Dato and continuing through Dncember 31, 2012 (lncluslvo) Ronowaf Term: Nono. This Mobile Application Distribution Agreement, (referred to as the "Agreement"), effective as of the date noted above (the "Effective Date"}, is made by and between HTC Corporation, a Taiwan corporation with offices at the address noted above ("Company"), and Google Inc., for itself and its affiliates, {which, wilh its affiliates, shall be referred to herein as "Google") with offices at the address noted above. 1. Definitions. The following capitalized terms shall have the meanings set forth below: 1.1. "Actively Promote" or "Actively Promoting" means the proactive promotion of a Google Appllcallon on any Device as a key value proposition of the device, Including point of sale promotion, media advertising, and general consumer-focused promotion of a Google Application or Google services on any Device. 1.2. "Android Compatible Devlce(s)" means Device{s) that: (I) comply with the Android Compatibility Deflnltlon document (which may be updated from time to time), which can be found at the Android compatibility website (htlp:l/source.androfd.comfcompatlbility); and {U) successfully pass the Android Compatibllity Test Suite (CTS). 1.3. "Android Market" means the marketplace Google has created and operates which allows registered Android Market developers to distribute Android Products. 1.4. "Android Products" means software, content and digital materials designed for use on Android-based devices. ConfldonUal (Revd. 12/10) Page 1 of 13 HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371632 Trial Exhibit 286, Page 1 of 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TRIAL EXHIBIT CASE NO. 10-03561 WHA DATE ENTERED BY DEPUTY CLERK 286 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page2 of 14
  • 58. 1.5. "Client ID" means unique alphanumeric code{s) provided by Google to Company to be used to Identify Google Applications usage on Company Devices, as such Client IDs may be modified by Google from trme to time In Its sole discretion upon notice to Company, 1.6. "CTS Report" means the report that is generated after the CTS Is completed, 1.7. "Default Homo Screen" means the default display of a Device, prior to any changes made by End Users, that appears without scrolling in both portrait and landscape modes when the Device is in active Idle mode {i.e. not in sleep mode). 1.8. "Device" means the device(s) approved by Google pursuant to Section 4.3 {Google Approval and Launch) and using only the Android operating system which is enabled by Company and used by an End User to access the Service. 1.9. "End User(s)" means an end user customer of the Service. 1.10. "Final Embed Date" means the latest possible date Company can accept updated Google Applications from Google for a specific Device deployment. 1.11. "Google Applications" means the machine-readable binary code version or the Google applications listed below which are provided to Company in connection with this Agreement, and any modificallons or updates thereto that Google may make available to Company hereunder from trme to time In its sole discretion. Lfst of Google Applications (may be changed by Google from time to llme): Set-up Wizard, Google Phone-top Search, Gmall, Google Calendar, Google Talk, YouTube, Google Maps for Mobile, Google Street View, Contact Sync, Android Market Client (not products downloaded from Android Market), Google Voice Search, and Network Location Provider. 1.12. "Google Mobile Branding Guidelines" means Googte's brand treatment guidelines for moblle in effect from time to lime (and any content contained or referenced therein), which are located at http://www.google.com/wssynd/mobile_guidellnes.html and http://www.google.cornlpermlssions/guidelines.html (or such other URLs as may be provided by Google from time to lime), together with such additional brand treatment guidelines for mobile as Google may make available to Company from time to time. , 1.13. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-Instatements thereof, now or hereafter In force and effect worldwide, 1.14. "Launch" means the Initial distribution of a Device in accordance with the terms of this A9reement. 1.15. "Optional Google Applications" are the Google Appllcallons listed below which are provided to Company In connection with this Agreement, and any modifications or updates thereto that Googfe may make available to Company hereunder from time to time in its sole discretion. List of Optional Google Applications (may be changed by Google from time to lime): Orkul, Google Goggles, Google Earth, Finance, News & Weather, Google Buzz and Google Voice. Optional Google Applications are licensed, and have the same rights and obligations, as Google Applications except that the requirements set forth in 3.4 (Placement Requirements) shalt not apply and Company has the option or Including the Optional Google Applications on a Device. 1.16.. "Phone Top" means with respect to the default navigation hierarchy of a Device Ul, the top-most level screen from which applications can be launched by an End User. 1.17. "Service" means the wireless service owned and/or operated by Telecom Operator that allows End Users using a Device to access the Internet. 1.18. "Telecom Operator" means a company that provides wireless service that allows End Users using a Device to access the Internet approved by Google to distribute Google Appllcetlons to End User In the Territories. 1.19. "Territories" means the country or countries in which distribution of Google Applications Is permitted under the conditions as provided by Google to Company upon execution of this A9reement, which may be updated by Confidential (Revd. 12/10) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Paga2 oF 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371633 Trial Exhibit 286, Page 2 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page3 of 14
  • 59. Google from time to time. Distribution of Googfe Applications, products or services outside of the Territories is prohlblled. 1.20. "Trademarks" means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of each party as owned by such party from tlme to time. 2. Google Applications. 2.1. License Grant. Subject to the terms and conditions of this Agreement (including Section 2.7), Google hereby grants to Company a nontransferable, nonsubtlcensable (except Company may sublicense to Telecom Operators with whom Company has a written agreement), nonexclusive license during the Term to: (a) reproduce the Google Applications to the extent necessary to exercise the right granted in {b); and (b) distribute the Google Applications for no cost directly to End Users only in the Territories specifically authorized by Google via the distribution methods specified by Google. For the sake of clarity, Company may sublicense the Google Applications to reseflers and distributors solely for distribution purposes and only when the Google Applications are pre-Installed on the Devices. Devices may only be distributed if all Google Applications (excluding any Optional Google Applications) authorized for distribution In the applicable Territory are pre-installed on the Device, unless otheJWise approved by Google in writing. Initial distribution in each Individual Territory, and the appearance and implementation of Google Applications, shall be subject to Google's prior written approval, and shall adhere to the terms and conditions of this Agreement, Including but not limited to the Google Mobile Branding Guidelines. Additionally, where Google specifies a specific version of a Google Application to be distributed in a certain Territory, Company shall distribute only such version within such Territory. Company may also sublicense the Google Applications to its contractors for testing, evaluation and development purposes only (not distribution) and only with contractors with which Company has a written agreement that is no less protective of the Google Applications as set forth in this Agreement. 2.2. License Grant Restrictions. Company shall not, and shall not allow any third party to: (a) disassemble, de- compile or otherwise reverse engineer the Google Applications or otherwise attempt to learn the source code or algorithms underlying the Google Applications; (b) create derivative works from or based on the Google Applications; (c) except as expressly set forth in this Agreement. provide, sell, license, distribute, lease, lend, or disclose the Google Applications to any third party; (d) exceed the scope of any license granted to Company hereunder; (e) ship, divert, transship, transfer, export or re-export the Google Applications, or any component thereof, into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department's Bureau of Export Administration, the U.S. Department of Treasury's Office of Foreign Assets Control or any other applicable government agency; or (f) take any aclfons that may cause or result in the fragmentation of Android, including but not limited to the distribution by Company of a software development kit (SDK) derived from Android or derived from Android Compatible Devices and Company shall-not assist or encourage any third party to distribute a software development kit (SDK) derived from Android, or derived from Android Compatible Devices. 2.3. Delivery. Upon availability, Google shall deliver the Googla Applications to Company. For the sake of clarity, the parties acknowledge and agree that Google has no obligation to develop or deliver any Google _Application, and any such development or delivery is at Google's sole discretion. Company shall commence distribution of updated versions of Google Applications promptly after such updated versions of Google Applications are made available by Google, but no more than 90 days after availabi1lty. 2.4. Form of Distribution Offering. (a) During the Term, upon Google's approval as described rn Section 4.3, Company shall make the Google Applications available to End Users on the Device as described in this Agreement. The form of any such offering shalf be as set forth In this Agreement, and shall adhere to the Google Mobile Branding Guidelines. Without limiting the foregoing sentence, except for End Users as expressly set forth in this Agreement, Company shall not offer or distribute the Google Applicatlons to any third party (except as set forth in Section 2.1). (b) Company {or any third party) shall not: (I) serve or otherwise place any advertisements during the launch process of the Google Applications; (U) offer, download or install, or allow any third party to offer, download or Install, any additional products during the launch process of the Google Applications; or (iii} preload, Install or launch any Goog1e Application (or otherwise act or fall to act) such that an End User Is denied the opportunity to review and accept (or reject) the relevant Google terms of service. 2.5. Accurate Reproduction. Company agrees that In connection with Its exercise of the rights granted In 2.1 of this Agreement, it will accurately reproduce the Google Applications (Including any legal notices and marks contained Confidential (Rovd. 12/10} HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 3 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371634 Trial Exhibit 286, Page 3 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page4 of 14
  • 60. therein) and will not insert Into the Google Applications any viruses, worms, date bombs, time bombs, or other code that Is specifically designed to cause the Google Applications to cease operating, or to damage, interrupt, allow access to or interfere with any Google Applications or End User data. 2.6. Open Devices. The parties will create an open environment for the Devices by making all Android Products and Android Application Programming Interfaces available and open on the Devices and will take no action to limit or restrict the Android platform. 2.7. Authorization to Distribute Google Applications on the Devices &Compatibility. The license to distribute Google Applications In Sectlon 2.1 Is contingent upon the Device becoming an Android Compatible Device. Each Device must become an Android Compatible Device a! least 30 days prior to the Final Embed Date of the Device. The final software build on Devices must pass the Compatibility Test Suite prior to Launch. Company agrees as follows: (a) each of its employees that are designated by Company in an email to CTS@androld.com is authorized to submit and upload CTS Reports on behalf of Company. (b) the CTS has not been modified or altered by Company or Its employees or agents. (c) Company will execute the CTS completely. (d) no CTS Reports have been altered. (e) the contents of each CTS Report Is true to the best of Company's knowledge. (f) . Google and its affiliates may include Android Compatible Devices and Company's name in presentalions, marketing materials, press releases, and customer lists (which includes, without limitation, customer lists posted on Google web sites) for marketing purposes. Google may publish the results of each CTS Report after the applicable Device is Launched. 2.8. Other Agreements. This Agreement will supersede any agreements between the parties regarding Android- powered devices, but will have no affect on any other agreements between the parties regarding other devices or Google services or applications. 3. Device Distribution Requirements. 3.1. Company agrees that it will be solely responsible for the distribution of the Devices and managing its Inventory. 3.2. Unless otherwise permitted in writing by Google, Company will ensure that Devices distributed In Germany make use of the "Google Mall" (and not "Gmail") Google Trademark; 3.3. Company understands and agrees that it shalf not Aclively Promote, and shall use Its best efforts to prevent any third party (including Its affiliates, resellers, distributors and Telecom Operators) from Actively Promoting Google Applications or any Google services except in those Territories in which such Google Applications or services are expressly authorized by Google In this Agreement. Specific information regarding Territories will be provided to Company after Company's acceptance of this Agreement. 3.4. Placement Requirements. Unless otherwise approved by Googie in writing: (1) Company will preload all Google Applications approved in the applicable Territory or Territories on each Device; (2) Google Phone-top Search and the Android Market Client leon must be placed at least on the panel immediately adjacent to the Default Home Screen; (3) all other Google Applications will be placed no more than one level below the Phone Top; and (4) Google Phone-top Search must be set as the default search provider for all Web search aocess points on the Device. Notwithstanding the foregoing, there are no placement requirements for Optional Google Applications. For clarity, "Web search" shall not include data on the Device. In addition, any exceptions to the requirements In this Section 3.4 granted before the Effective Date of this Agreement shall also be exceptions under this Agreement. The Devices listed on Exhibit B are also from the requirements of this Section 3.4 as long as such Devices meet all the other requirements of this Agreement Confidential (Revd.12110) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 4 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371635 Trial Exhibit 286, Page 4 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page5 of 14
  • 61. and the placement requirements from the HTC • Google Mobile Application Distribution Agreement effective March 1, 2009. Any additional exceptions from the requirements of thfs Section 3.4 for Devices scheduled for release afler the first quarter of 2011 will be considered by Google on a case by case basis. 3.6. Distribution. Company shall preload the Google Applications on the Devices so that, after preload, an Icon representing each Google Application shall appear on the Device as specified In the above Placement Requirements. In addition: (a) Preload by Company of a Google Application shall be limited to Installation by Company of the Google Application, and shall not involve launch of the Google Application (b) End User selection of an Icon representing an already preloaded Google Application shall launch such Google Application. 3.6. Support. Company Is solely responsible for customer care and support of its users. Google will provide support for Google Applications as made generally available to users of Googte Applications. 3.7. Branding. Branding on the hardware of the Devices will be determined by Company, but shall not include any Google branding or Google Trademarks. 3.8. Network Location Provider. The following requirements apply to Network Location Provider: (a) Company shall ensure Network location Provider will be turned off by default. (b) Company shall ensure that the appropriate prompts are displayed to the End User seeking the End User's consent to use Network Location Provider as provided by Google. Company shall not prevent the End User from providing consent prior to enabling Network Location Provider or any application making use of Network Location Provider. (c) Company shall configure Network location Provider to be the default network-based location provider on all Android Compatible Devices. Notwithstanding the foregoing, Company may be permitted to use an alternative network·based location provider for a specific Territory or Telecom Operator If the parties mutually agree and determine that Network Location Provider cannot be used due to inadequate data quality and coverage. (d) Company will enable an features of Network location Provider, including network-based location resolution, anonymous network location data collection, and reverse-geocoding. 3.9. Google Legal Terms. Company shall ensure that the appropriate Google Terms of Service, Privacy Policy and Legal Notices as provided by Googfe are available to the End User. 4, General Requirements. 4.1. Payments. Company and Google shall each retain any and all revenue generated from provision of thefr respective products or services. For the sake of clarity, except as expressly set forth in this Agreement, neither party shall be required to account to the other or otherwise make any payment to the other regarding the Applications, Google products or services, the Devices, the Service or any revenue generated therefrom. 4.2. Reports. Within thirty (30) days of the end of each calendar month during the Term, Company shalf provide a ·written report of the total number of Devices distributed with a preloaded version of a Google Application during such calendar month (by Googte Application, Territory and Device model within each Territory). These reports will be submitted to androld-partner-support@googte.com. 4.3. Google Approval and Launch. Company's distribution and Implementation of the Google Applications shall be subject to Google's prior approval (not to be unreasonably withheld) to ensure adherence to the terms and conditions of this Agreement, Including but not limited to the Google Mobile Branding Guidelines. Company shall not Launch any Device until it has obtained Googfe's approval as set forth in (a), (b) and (c) (as applicable) below: (a) For-the lnillal Launch of each Device model, Company will complete a Device Launch Addendum In the form set forth on Exhibit A Google will review the Device Launch Addendum and will notify Company of any problems. Once the parties mutually agree on the Device launch Addendum, the parties must sign the Device Launch Confidential (Rovd. 12/10) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 5 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371636 Trial Exhibit 286, Page 5 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page6 of 14
  • 62. Addendum to make It effective. Company wilt: (1) no less than 30 days before the initial launch, notify Goog!e via email (or via a website provided by Google) of such Launch; (2) provide Device samples in accordance with Section 4.4(a) below: (3) submil a CTS Report for such launch; and (4) submit the Device's final software build for such Launch. · (b) For any subsequent launches of a Device model after the Initial Launch of such Device model, Including software changes for any new Telecom Operator in each new Territory or any soflware updates for any previously approved Launch, Company must obtain Google's written (which may be by way of email) approval (not to be unreasonably withheld) prior to Launch. Company will: (1) no less than 30 days before each Launch Date, notify Google via email (or via a website provided by Google) before each Launch; (2) submit a CTS Report for each Launch; and {3} If requested by Google, submit the Device's final software build for such Launch. (c) Google must provide approval (as defined in Sections 4.3(a) or 4.3(b), as applicable) of the Implementation of the Google Applications on the Device in writing before distribution of any Device and such Device must only be distributed in Territories and with Telecom Operators as approved by Google. Upon receipt of each such Google approval, Company wfll begin distribution and implementation in accordance wilh this Agreement (each a "Launch Date"). Company will provJde contact information to facilitate Google's communication regarding approvals to Company. Company will provide wrlnen confirmation to Googla of Launch promptly following each Launch Date. Company agrees that the restrictions, Including restrictions against Active Promotion, set forth at the following web site (or other URL provided by Google and as updated by Google from time-to-time) shall apply to all Launches unless otherwise approved by Google in writing: hllps://sl!es.google.com/a/google.com/gms_distribution/geo-availability-of-google-applications. Company will provide a monthly report on shipment volumes and applicable Territories for each Device. 4.4. Implementation Requirements. The parties shall provide the materials and Information listed below: (a) Company shall deliver to Google no less than four (4) Device samples for each Device model for Google's approval as set out in Section 4.3 (Google Approval and Launch). Company shall use commercially reasonable efforts to provide such Devices at least 30 days prior to the Final Embed Date for each Initial Launch of each Device model. Google may use such Devices to test the operation and presentation of relevant Google products, services and sites on the Device. Devices will be sent to a Google address to be provided by Google to Company. (b) If at any time the Devices provided under this Section 4.4 are no longer capable of displaying the current lmplementalion of relevant Google products, services or sites, Company will provide Google wilh replacE:lment Devices as required. (c) If at any time the software on the Devices as distributed to End Users changes the representation of Google products, services and sites, Company shall make available to Google the new software and I ?r Devices for approval. (d) Company agrees to assist Google with ongoing testing of Devices and Android applications. Google may from lime to lime provide Company with Androld-based ·applications and tests that should be run on Devices (which may represent famltles of Devices} on which such applications will be loaded to assure the operation and presentation of such application. Company will load such applications on Devices and run such test in a timely manner to help assess the operation and presentation of such applications and provide the test results to Google. (e) Company shall configure the appropriate Client ID for each Device as provided by Google. (f) Company shall provide all other information, equipment and/or assistance reasonably necessary to allow Google to deliver the Google Applications and make the Google Applications (including overMthe-alr updates thereto) available on the Service and the Devices. 4.5. Over-the·Air Updates. Google may auto-update Google Applications over-the-air at Google's discretion. Company shall not prevent such over-the-air auto-updates. In Google's sole discretion, Google may enable Company to provide Device builds to Google for distribution by Googfe to Devices via an over-the-air update. Company hereby grants Google a non-exclusive, worldwide, license to distribute the Device build during the Term. Nothing In thls Agreement shall require Company to provide Device builds for Google to distribute and Google shall not be obligated to distribute such Device bullds. Confidential (Revd. 12f1O) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page6of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371637 Trial Exhibit 286, Page 6 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page7 of 14
  • 63. 4.6. Site Pages. Company shall not, and shalt not allow any third party to, redirect an End User away from, block access to, frame, or modify or change the look or feel of any web page or web site accessed via a Google Application, or place anything on or near any web site page that in any way implies that Google is responsible for the contents of such page. 4.7. Data Collection and Reporting. Each party's applicable privacy and security policies shall apply with respect to the user information collected by it. The parties will provide each other reasonable aggregate Information about usage of the Devices during the Term, in order to help each party Improve End User's experience with the Device, consistent wilh each party's privacy policies. Such information will not involve any personally ldentlfiable information. 4.8. Telecom Operator Customer Restrictions. The parties acknowledge and agree that the placement and distribution obligations contained in Section 3.4 and Section 4.3 are subject to restrictions placed upon Company by its direct Telecom Operator customers. However, pursuant to Section 3.4 and Section 4.3, any such placement and distribution, including the appearance of Google Applications, shall be subject to Google's prior written approval, and shall adhere to the terms and condilions of this Agreement, including but not limited to the Google Mobile Branding Guidelines. 4.9. No Connectivity Notice. When an End User launches a Device's web browser or launches a Google Application and there is no data connectivity available, Company will not block, alter or prevent In any way the presentation of any message to such End User indicating lack of data connectivity. 4.10. Points of Contact. Each party shall each appoint a partner manager (the "Partner Manager") who shall be the point of contact for all issues concerning this Agreement. Company's primary communication with Google regarding this Agreement will be through email sent to andro!d-partner-support@google.com. 5. Term and Termination. 5.1. Term. The term of this Agreement shall begin on the Effective Date and continue for a period of two (2) years after the Effective Date, unless earlier terminated as provided in this Agreement. This Agreement shall not renew unless specifically agreed by the parties in writing. · 6.2. Termination. {a) Either party may suspend performance or terminate this Agreement if (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30} days after wrilten notice; or (li) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. (b) Notwithstanding the foregoing, either party may terminate this Agreement Immediately upon written notice upon a breach of Sections 2.1 to 2.2 (License Grant and Restrictions), Secllon 2.4(b)(ilt) (opportunity to review and accept Google terms of service), Section 2.5 (Accurate Reproduction), Section 6.1 (Confidentiality) or Section 7 (Trademarks), or as set forth in Section 12.4 (Change of Control). (c) Notwithstanding anything to the contrary, In the event that the government or controlling body of any country or territory in which the Goog!e Applications are distributed or made available imposes any law, restriction or regulation that makes It illegal to distribute or make available the Google Applications, or any portion thereof, Into such country or territory, or If any such law, restriction or regulation places a substantial burden on Google, where substantial is measured with respect to Google's economic benefit under this Agreement, as determined by Google In its reasonable and good faith judgment (such substantial burden, a "Substantial Burden"} then Google shall have the right to suspend the distribution and/or availability of such Googte Applications in such country or territory until such Ume as such law, restriction or regulation Is repealed or nullified or modified such that there It Is no longer illegal or a Substantial Burden, as applicable, for lhe Google Applications to be distributed or made available in such country or territory ("Special Suspension"). 5.3. Effect of Termination. Upon expiration or termination of this Agreement: (a) all rights and licenses granted hereunder shall immediately cease; (b) Company will immediately stop reproducing, offering or distributing the Google Applications; and (c) each Party shall return or destroy {and a duly appointed officer shall certify to such destruction) all copies of the Google Applications (In the case of Company) and any other Confidential Information In Its possession which it is aware and to which It has access and is reasonably able to destroy or delete (which, for the avoidance of doubt, does not Include archived backup copies which are not In live working use and which are no longer easily accessible or retrievable}, including from all hard disks and memory. Neither party shall be Confidential (Revd. 12110) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 7 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371638 Trial Exhibit 286, Page 7 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page8 of 14
  • 64. liable to the other for any damages resulting solely from termination of this Agreement as permitted for under this Agreement. 6.4. Sell-Off Right. Notwithstanding the provisions of Section 5.3 above, for a period of thirty (30) days following expiration or termination of this Agreement ("Sell-Off Period"), Company shall have the right to distribute In accordance with the terms and conditions of this Agreement all Google Applicatlon(s) actually preloaded on the Device Inventory as of the date of expiration or termination of this Agreement ("Inventory"}, and such party shall have the right to use the Google Trademarks In accordance with this Agreement in connection with such Inventory ("Sell-Off Right"); provided, however, that Company shall provide no less than thirty (30) days prior written notification to Google of Its Intent to exercise the Sell-Off Right ("Sell-Off Right Notice"}. Notwithstanding anything to the contrary, the Sell-Off Righi shall not apply in the event that either (a) Company does not provide the Sell-Off Right Notice as set forth above In this Sectron 5.4, or (b) this Agreement (or any right granted hereunder) is suspended or terminated by Google pursuant to Section 5.2 of this Agreement. 6.5. Survival. The provisions of Sections 1 (Definitions), 2.2 (license Grant Restrictions), 5.5 {Survival), 6.1 (Confidentiality), 8 (Proprietary Rights), 9.2 (Disclaimer), 10 (Limitation of Llabllity}, 11 (Indemnification) and 12 (General) shall survive expiration or termination of this Agreement. 6. Confidentiality and PR. 6.1. Confidentiality. (a) Definition. "Confidential Information" is information disclosed by cine party to the other party under this Agreement that is marked as confidential or would normally under the circumstances be ccinsidered confidential information of the disclosing party. Confidential Information does not Include information that the recipient already knew, that becomes public through no faull of the recipient, that was lndependenlly developed by the recipient, or that was rightfully given to the recipient by another party. (b) Confidentiality Obligations. The recipient will not disclose the Confidential Information, except to affiliates, employees, and agents who need to know it and who have agreed In writing to keep II confidential. The recipient, its affiliates, employees, and agents may use Confidential Information only to exercise rights and fulfill obligations under this agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to discloser. 6.2. Publicity. Except as set forth In Section 2.7, neither party may make any public statement regarding the ·relationship contemplated by this Agreement without the other's prior written approval. Requests for marketing, press releases and other publicity issues should be made by submitting a request at http://services.google.com/permissions/applfcation (and selecting the appropriate Android entry In the "Request Type" menu). 7. Trademarks, 7.1. General. Each party shall own all right, title and Interest, Including wlthout llmltatlon all Intellectual Property Rights, relating to Its Trademarks. Some, but not all examples of Google Trademarks are located at: http:/fwww-.google.com/permissions/trademarks.html (or such other URLs Google may provide from lime to time). Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (Including, without limitation, any implied license) in or to any Trademarks of the first party; and all rights not expressly granted herein are deemed withheld. All use by Google of Company Trademarks (including any goodwill associated therewith) shall inure to the benefit of Company and all use by Company of Google Trademarks (including any goodwill associated therewith) shall inure to the benefit of Google. No party shall challenge or assist others to challenge the Trademarks of the other party (except to protect such party's rights with respect to its own Trademarks) or the registration thereof by the other party, nor shall either party attempt to register any Trademarks or domain names that are confusingly similar to those of the other party. 7.2. License to Google Trademarks. Subject to Google's written approval prior to each use of a Google Trademark and to the terms and conditions of this Agreement, Google grants to Company a limited, nonexclusive and nonsublicensable license during the Term to display those Google Trademarks expressly authorized for use In this Agreement, solely for the purposes expressly set forth herein. Notwithstanding anything to the contrary, Google may revoke the license granted herein to use Google's Trademarks upon providing Company with wrltlen notice thereof and a reasonable period of time to cease such usage. Furthermore, in its use of any Goog!e Trademarks, Company agrees to adhere to the Google Mobfle Branding Guidelines. ConfldonUal (Revd. 12'/10) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 8 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371639 Trial Exhibit 286, Page 8 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page9 of 14
  • 65. Company shall not, and shall not allow any third party to produce any consumer packaging or materials for the Device that identifies or suggests that Google is the manufacturer of the Device. in this regard, Company shall ensure that any Device paCkaging or user guide produced by the Company identifies Company as the manufacturer of the Device and provides contact details in the applicable Territories In which the Device is distributed. 7.3. License to Company Trademarks. Subject to the terms and conditions of this Agreement, Company grants to Google a limited, nonexclusive and nonsublicensable license during the Term to display those Company Trademarks expressly authorized for use in this Agreement, solely for the purposes expressly set forth herein. Notwithstanding anything to the contrary, Company may revoke the license granted herein to use Company's Trademarks upon providing Google with written notice thereof and a reasonable period of time to cease such usage. 8. Proprietary Rights. (a} Company acknowledges that, as between the parties, Google (and/or its licensors) retains all right, title and interest, including without limitation all rights In copyrights, trademarks, trade secrets, patents and know- how, ln and to the Google Applications and the Google Trademarks. Company has, and shall acquire, no rights in the foregoing except those expressly granted by this Agreement. Google shall not be restricted from selling, licensing, modifying, or otherwise distributing the Google Applications and/or the Google Trademarks to any third party. {b) Google acknowledges that, as between the parties, Company (and/or its licensors) retains all right, title and interest, including without llmltallon all rights in copyrights, trademarks, trade secrets, patents and know-how, in and to the Devices and the Company Trademarks. Google has, and shall acquire, no rights !n the foregoing except those expressly granted by this Agreement. Except as set forth in this Agreement, Company shall not be restricted from selling, licensing, modifying, or otherwise distributing the Devlces and/or the Company Trademarks to any third party. 9. Representations, Warranties and Disclaimer. 9.1. Representations and Warranties. Each party represents and warrants to the other that lt has full power and authority to enter Into this Agreement, and that the execution and delivery of this Agreement, and the perfonnance of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party. Company represents and warrants that It has and will maintain throughout the Term all rights, authorizations and licenses that are required wlth respect to the Devices, any materials provided by Company to be distributed by Google (Including Company's Device builds) and any Company content or services, and that the Devices, materials provided by Company to Google, and the Company's content or services, and their use, distribution, sale and license, do and shall continue to comply with all applicable foreign, federal, state, and local laws, rules and regulations. Company represents and warrants that any materials provided by Company to be distributed by Google (including Company's Device builds) will comply with all applicable open source licensing requirements. 9.2. Disclaimer. OTHER THAN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9.1, THE GOOGLE APPLICATIONS AND THE ANDROID PLATFORM ARE PROVIDED "AS IS" AND WJTHOUT WARRANTY OF ANY KIND AND GOOGLE EXPRESSLY DISClAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. GOOGLE DOES NOT WARRANT THAT THE GOOGLE APPLICATIONS AND/OR ANY OTHER GOOGLE PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL MEET ALL OF COMPANY'S REQUIREMENTS OR THAT PERFORMANCE OF SUCH SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE, SECURE OR ERROR- FREE. OTHER THAN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9.1, COMPANY MAKES NO WARRANTY OF ANY KIND TO GOOGLE WITH RESPECT TO THE DEVICES, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 10. Limitation of Liability. 10.1. Limitations. SUBJECT TO SECTION 10.2: (A) LIMITATION ON INDIRECT LIABILITY. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. {B) LIMITATION ON AMOUNT OF LIABILITY. NEITHER Confidential (Rovd. 12/10) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Page 9 of 13 Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371640 Trial Exhibit 286, Page 9 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page10 of 14
  • 66. ·f PARTY MAY BE HElD LIABLE UNDER THIS AGREEMENT FOR MORE THAN ONE HUNDRED THOUSAND U.S. DOllARS ($100,000.00 USD). 10.2. Exceptions to Llmihltlons. These limitations of liability do not apply to: {a) breaches of confidentiality obligations, violations of Intellectual Property Rights (Including without limitation a breach of the license to use Trademarks under Section 7), indemnification obligations; or (b) breaches by COMPANY of Sections 2. (license Grant and Restrictions), Secllon 2.4(b)(lii) (opportunity to review and accept Google terms of service), or Section 2.5 (Accurate Reproduction). 10.3. Allocation of Risk. The parties agree that (a) the mutual agreements made in this Section 10 reflect a reasonable allocation of risk, and (b) that each party would not enter into the Agreement without these limilalions on liability. 11. Indemnification. 11.1. By Google. Google wlll defend, or at its option settle, any third party lawsuit or proceeding brought against Company based upon or otherwise arising out of: (a) any breach or claimed breach of the first sentence of Section 9.1; or (b) any claim that the Google Applications or Google Trademarks infringe any copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Goog!e have any obligations or liability under this Section 11.1 arising from: (I) modifications of the Google Applications or the Google Trademarks by any party other than Google; and {il) combination of the Google Applications or the Google Trademarks with any other software or products or any other materials. Google, in its sole and reasonable discretion, reserves the right to terminate Company's continued distribution of or access to the Google Applications or the Goog!e Trademarks which are alleged or'belleved by Google to Infringe the rights of a third party. Google shall have no obligations under this Section 11.1 regarding the Android platform or any third party products distributed through the Android Market. 11.2. By Company. Company will defend, or at Its option settle, any third party lawsuit or proceeding brought against Google based upon or otheJWise arising out of: (a) any breach or claimed breach of Section 9.1; (b) Company's or any third party's improper or unauthorized replication, packaging, marketing, distribution, or installation of the Google Applications, including without limitation claims based on representations, warranties, or misrepresentations made by Company; (c) any breach or claimed breach of Sections 2.4(b)(tll), Secllon 3.2 (Google Mail), or SecUon 3.3 (Actively Promote); {d) any claim that any Device (or application Installed thereon other than the Google Applications), or any Company Trademark Infringes any Intellectual Property Right; or (e) any third party claim arising out of or resulling from End User's use of any Device (or application installed thereon other than the Google Applications), including without limitation any actlons or claims in product liablllty, tort, contract or equity. 11.3. Conditions of Indemnification. The party seeking indemnitrcatfon must promptly notify the other party of the claim and cooperate with the other party In defending the claim. The indemnifying party has full control and authority over the defense, but the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOlATION OF A THIRD PARTY'S INTELLECTUAl PROPERTY RIGHTS. 12. General. 12.1. Notices. All notices must be in writing and addressed to the attention of the other party's Legal Department and primary point of contact. Notice will be deemed given (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email. 12.2. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, rfot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control. 12.3. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate but only If (a) the assignee agrees in writing to be bound by the terms of this Agreement and (b) the assigning party remains liable for obligations under the Agreement. Any other attempt to transfer or assign is void. Confldontlal (Rovd.12/10) Page 10 of 13 HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371641 Trial Exhibit 286, Page 10 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page11 of 14
  • 67. 12.4. 12.6. IN of Effective Date. COMPANY: CORPORAliON (Rovd. 12110) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Oracle America v. Google, 3:10-cv-03561-WHA GOOGLE-03371642 Trial Exhibit 286, Page 11 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page12 of 14
  • 68. EXHIBIT A FORM OF DEVICE LAUNCH ADDENDUM #_ This Device Launch Addendum Is entered under and subject lo the Mobile Application Distribution Agreement effective [INSERT DATE] between [INSERT COMPANY NAME] (Company) and Google Inc. (Googfe) (the "MADA"). Upon execution of this Addendum, [INSERT COMPANY NAME] Google agree to the Launch the Device as set forth below. No Launch may proceed until the both parties confirm Terminal Acceptance in writing. All Launches are subJect to the terms and conditions of the MADA. Device Davlco Specifications Device Imago (optlonaQ Initial Initial Target Dovlco Terrltory(los) Telecom Launch Forocast for Oporator(s) Date tho Territory Additional Terms (If any): COMPANY: ---------------- By Name Title Date Confidential (Ravd. 12/10) HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Target List of Goog!e Restrictions on Google Terminal Applications Applications (e.g., No Acceptance YouTube In China) Date GOOGLE INC. By Name Title Date Page 12 of 13 Oracle America v. Google, 3:10-cv-03561-WHA Googlo Trademark (Ifany) GOOGLE-03371643 Trial Exhibit 286, Page 12 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page13 of 14
  • 69. Device Speedy Mecha Ace Vivo Vivo#W Saga Marvel Flyer Express (Fiayer COMA version) Pyramid Icon ChaGha Confidential (Rovd. 12f10) EXHIBITS LIST OF DEVICES TO BE LAUNCHED IN Q1 2011 PURSUANT TO SECTION 3.4 Device Specifications Initial Telecom Territory & Operator 3.6" WVGA Display, MSM7630 CPU, us, Slider Keyboard, Sprint EVDO Rev A + WiMax 4.3" VWGA Display, MSM8655 + MDM9600 CPU, us, Bar Type, Verizon LTE +COMA 4.3" WVGA Display, MSM8255, us, Bar Type, AT&T UMTS Tri-Band 4" WVGA Display, MSM8255 CPU, EU, Bar Type, Voda UMTS Tri-Band 4n VWGA Display, MSM8655 CPU, us, Bar Type, Verizon COMA+ UMTS World Phone 3.7"WVGA Display, MSM8255 CPU, EU, Bar Type, T-Moblle UMTS Tri-Band 3.2" HVGA Display, MSM7227 CPU, EU,US Bar Type, HTC Channel, T-Moblle EU UMTS Trf-Band and T·Mobile US 7" 1024x600 Display, MSM8255 CPU, Global Tablet HTC Channel UMTS Tri-Band or Wifl only (COMA version is called Express) 7" 1024x600 Display, MSM8655 CPU, us Tablet Sprint EVDO Rev A+ WiMax 4.3" QHD Display, MSM8655 CPU, Global Bar Type, HTC Channel UMTS Tri-Band 3.4" HVGA Display, MSM7227 CPU, Global, US Bar Type, HTC Channel (March or UMTS Tri-Band April), T-Moblle (April or May) 2.6" HVGA Display, MSM7227 CPU, US, Global, US QWERTY Bar, HTC Channei(March or April), UMTS Tri-Band T-Mobife (April or May) Page 13 of13 HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY Oracle America v. Google, 3:10-cv-03561-WHA Target Launch Date Jan 2011 Jan 2011 Feb2011 March 2011 March 2011 March 2011 March 2011 March 2011 March 2011 March 2011 March/April 2011 March/April 2011 GOOGLE-03371644 Trial Exhibit 286, Page 13 of 13 Case5:14-cv-02007 Document1-2 Filed05/01/14 Page14 of 14
  • 70. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) (Firm Name, Address, and Telephone Number) (If Known) (Place an “X” in One Box Only) (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) (U.S. Government Not a Party) or and (Indicate Citizenship of Parties in Item III) (Place an “X” in One Box Only) (Place an “X” in One Box Only) (specify) (Do not cite jurisdictional statutes unless diversity) (See instructions): Case5:14-cv-02007 Document1-3 Filed05/01/14 Page1 of 1 ✔ Print Save As... Reset
  • 71. AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Civil Action No. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case5:14-cv-02007 Document1-4 Filed05/01/14 Page1 of 2
  • 72. AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Case5:14-cv-02007 Document1-4 Filed05/01/14 Page2 of 2 Print Save As... Reset