Judge Amit Mehta has dismissed the amended antitrust complaints filed by Chegg and Penske Media against Google, even while acknowledging that publishers and their employees are suffering real harm from the company's conduct.

In a pair of closely watched cases, the judge granted Google's motion to dismiss without prejudice, and the order is final and appealable.

Mehta did not mince words about the publishers' predicament. "The court does not treat Plaintiffs' alleged harms lightly," he wrote. "Nor is it unsympathetic to the situation publishers now find themselves in, and the knock-on consequences to journalists, educators, and other online creators whose content Google takes and repurposes without compensation."

The dismissal does not mean the court found publishers suffered no harm. The complaints failed because the allegations did not meet the requirements of federal antitrust law. The judge found the plaintiffs failed to establish their monopolization claims.

Five Categories of Claims Rejected

The judge rejected five categories of claims brought by the plaintiffs:

• Reciprocal dealing
• Tying
• Unlawful monopoly maintenance
• Attempted monopolization and monopoly leveraging
• Unjust enrichment

Reciprocal Dealing

Reciprocal dealing describes two parties agreeing to exchange business with each other. In this case, publishers allow Google to crawl and index their content and, in exchange, Google provides referral traffic.

The judge ruled the plaintiffs did not plausibly allege an actual agreement in which Google provided search traffic in exchange for publishers supplying content. The plaintiffs did not assert a plausible "agreement," allege the elements of an agreement, or describe the circumstances under which an agreement arose. Mehta also noted the absence of communications between Google and the plaintiffs showing an agreement was negotiated or discussed.

He pinpointed the core failure: "Plaintiffs have pleaded only that they have an 'expectation' that Google will send them search traffic if they make their content available for free. But an expectation is not an agreement."

Tying

Tying occurs when a company uses its power over one product to force customers to take a second, separate product. Penske failed to plausibly establish that Google Search and AI Overviews are separate products with separate consumer demand.

Unlawful Monopoly Maintenance

The judge ruled the publishers lacked standing to challenge Google's alleged monopoly maintenance in the general search services market. Standing, in this context, means the plaintiffs had not suffered the kind of injury required to bring that antitrust claim.

"To survive a motion to dismiss, Plaintiffs must plausibly establish that they have antitrust standing as to these claims," Mehta wrote. "As with other plaintiffs appearing before this court, they have not."

He elaborated on the two theories the plaintiffs offered. "First, Plaintiffs fashion themselves as 'suppliers' of Search Index Data in the market for general search services and 'purchasers' of Search Referral Traffic. Alternatively, and simultaneously, Plaintiffs argue they have standing because their injuries are 'inextricably intertwined' with the injuries suffered by Google's new AI competitors in the general search services market… Neither theory persuades."

Attempted Monopolization and Monopoly Leveraging

The plaintiffs did not clearly define the publishing markets they said Google was trying to dominate, nor adequately show that Google was likely to monopolize them.

"By failing to define plausible markets, Plaintiffs do not make out a necessary element of their attempted monopolization claims," Mehta wrote. "Their monopoly leveraging claims fall for the same reason. Both claims also suffer from other basic pleading deficiencies. Count V of Chegg's Amended Complaint and Count VI of the PMC Plaintiffs' Amended Complaint must be dismissed."

The memorandum opinion detailed the specific shortcomings. "…Chegg's claim would still fail because it has not plausibly pleaded that Google has a dangerous probability of monopolizing a market in which it participates," Mehta wrote of Chegg's complaint.

Of Penske's claim, he was equally direct: "What's more, this market definition, even if the court were to accept it, renders implausible their attempted monopolization theory. Indeed, the PMC Plaintiffs do not even attempt to quantify Google's market share in online publishing or offer a single fact to support their allegation that Google has a dangerous probability of monopolizing the sweeping market they describe."

Unjust Enrichment

After dismissing the federal claims, the judge declined to rule on the California unjust enrichment claims in federal court.

"Having dismissed all federal claims in these actions, the court has discretion to either exercise supplemental jurisdiction over the remaining state law claims or decline to do so," Mehta explained. "In exercising this discretion, the court considers judicial economy, convenience, and fairness to litigants. In the typical case in which all federal-law claims are dismissed, the balance of factors to be considered will point toward declining to exercise jurisdiction over the remaining state-law claims."

What the Ruling Means

The ruling will disappoint publishers and SEO professionals worldwide who believe Google is abusing its market dominance in search. A careful reading of the memorandum shows the judge dismissed the complaints because the plaintiffs failed to allege facts meeting the requirements of federal antitrust law.

Mehta was not saying publishers suffered no harm. He was saying the complaints, as pleaded, did not satisfy the legal requirements for those antitrust claims. Because the dismissal came without prejudice, the plaintiffs retain the option to appeal the final and appealable order or replead their theories in state court.