Online Document

Case5:14-cv-02007 Document1 Filed05/01/14 Page1 of 40
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Jeff D. Friedman
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
jefff@hbsslaw.com
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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
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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GARY FEITELSON, a Kentucky resident, and

DANIEL MCKEE, an Iowa resident, on behalf
of themselves and all others similarly situated,
Plaintiffs,
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v.
GOOGLE INC., a Delaware corporation,
No.
CLASS ACTION COMPLAINT
COMPLAINT FOR VIOLATION OF
THE SHERMAN ANTITRUST ACT,
CLAYTON ANTITRUST ACT,
CALIFORNIA CARTWRIGHT ACT,
AND CALIFORNIA UNFAIR
COMPETITION LAW
Defendant.
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DEMAND FOR JURY TRIAL OF ANY

ISSUES SO TRIABLE
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010437-11 683086 V1
TABLE OF CONTENTS
Page
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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
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1.
Google has been the subject of, and has settled, various
antitrust investigations. ................................................................................... 8
2.
Googles restrains competition through the use of its

Mobile Application Distribution Agreements. ............................................. 10
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D.
Googles 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.
Googles unlawful practices harm consumers. ......................................................... 23
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V.
INTERSTATE TRADE AND COMMERCE ...................................................................... 24
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VI.
RELEVANT MARKETS ..................................................................................................... 24
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VII.
CLASS ALLEGATIONS ..................................................................................................... 25
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VIII.
CLAIMS FOR RELIEF ........................................................................................................ 29
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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
-iCLASS ACTION COMPLAINT
010437-11 683086 V1
FIFTH CAUSE OF ACTION VIOLATION OF THE CARTWRIGHT

ACT (CAL. BUS. & PROF. CODE 16727) ............................................................................ 33
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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
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CLASS ACTION COMPLAINT
010437-11 683086 V1
- ii -
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I.
1.
INTRODUCTION
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 Internets 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 Googles
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
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way to use its Android mobile operating system (Android OS) to maintain and expand its
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monopoly in both of these U.S. markets.
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3.
Having recognized that personal computing was moving away from the desktop and
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that Internet searches increasingly are being done on smartphones and tablets, Google purchased
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the Android OS in 2005. By giving away the Android OS itself for free, Google rapidly built an
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enormous user base in the United States.
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4.
But Android itself only enables the basic functionality of a handheld device; what
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brings mobile phones and tablets to life are applications. Some of the most popular handheld-
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device applications, including the YouTube video app and Google Play (which enables shopping in
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Googles app store) also are Google properties. As Google well knows, customers expect to see
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these apps on their Android devices. So Google, by way of secret Mobile Application Distribution
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Agreements (MADA), allows Android OS device manufacturers to pre-load a suite of Google
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apps including the YouTube app and Google Play client, among others, onto a phone or tablet but
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only if the manufacturer pre-loads onto prime screen real estate all of the apps in the suite, whether
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the manufacturer wants them or not. Because consumers want access to Googles products, and
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due to Googles power in the U.S. market for general handheld search, Google has unrivaled
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market power over smartphone and tablet manufacturers.
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010437-11 683086 V1
5.
Among the suite of apps covered by Googles MADAs is the Google Phone-top
Search app a widget for conducting web searches via Googles 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
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default search engine status because it results in more paid search-related advertisements, which
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are the source of most of its billions and billions of dollars in annual profits.
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If device manufacturers bound by Googles distribution agreements were free to
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choose a default search engine other than Google, the quality of Internet search overall would
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improve because search engines become more effective as they process more and more search
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queries. With default search engine status providing access to more searches, Googles
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competitors in search would become more effective as they processed more queries, and this
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competition would push Google to improve as well. Also, if Googles rivals were allowed to
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compete for default status, they would do so in part by offering to pay device manufacturers for
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that status on various Android smartphones and tablets. Such payments to device manufacturers,
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maximized by way of competitive bidding, would lower the bottom-line cost associated with
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production of the covered devices, which in turn would lead to lower consumer prices for
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smartphones and tablets.
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7.
Googles MADAs are contracts in restraint of trade that are designed to maintain
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and extend its monopolies in general search and handheld general search. Simply put, there is no
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lawful, pro-competitive reason for Google to condition licenses to pre-load popular Google apps on
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making its search product the default search engine on covered devices. By insisting on these
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contracts with device manufacturers, to the detriment of competition and consumers, Google has
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010437-11 683086 V1
violated the Sherman Act, the Clayton Act, Californias Cartwright Act, and Californias 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.
8.
JURISDICTION
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.
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1367(a).
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9.
This Court has personal jurisdiction over the defendant by way of the fact that the
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defendant is licensed to do business in the state of California and in fact conducts business in this
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state.
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10.
Venue is proper in this Court pursuant to 28 U.S.C. 1391(b), inasmuch as
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unlawful practices are alleged to have been committed in this federal judicial district and the
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defendant resides and regularly conducts business in this district.
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11.
Assignment to the San Jose division of this Court is appropriate because the
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defendant has its headquarters in Mountain View, Santa Clara County, California, which is located
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in this division of the Northern District of California. Also, it is believed and therefore alleged that
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many members of the proposed class reside or do business in the San Jose division of the Northern
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District of California.
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III.
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PARTIES
Plaintiff Gary Feitelson is the owner of an HTC EVO 3D mobile phone purchased
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in or about July 2011 in Louisville, Kentucky. This device is an Android OS device believed, and
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therefore alleged, to be covered by one of the exclusionary Google contracts, i.e., a Google-HTC
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MADA, described herein. Mr. Feitelson uses his phone, inter alia, to perform Internet general
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searches. But for the restraints alleged herein, Mr. Feitelsons phone would have cost less and had
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010437-11 683086 V1
better search capabilities as the result of competition that would have ensued but for Googles
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. McKees phone would have
cost less and had better search capabilities as the result of competition that would have ensued but
for Googles unlawful restraints.
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14.
Defendant Google is a Delaware corporation with its headquarters and principal
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place of business in Mountain View, California. Google is Americas leader in general Internet
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search conducted on all devices, and in handheld general search. It also is the owner of the
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Android OS and popular and exclusive mobile and tablet applications including YouTube, Google
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Maps, and Gmail. Additionally, Google is the owner of the Google Play (formerly Android
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Market) client, by which owners of Android devices bearing it are enabled to buy applications,
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music, movies, and books from the Google Play store. Google was number 55 on last years U.S.
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Fortune 500, with 2013 revenues of $55.2 billion and profits of $10.737 billion.
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IV.
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15.
RELEVANT FACTS
The plaintiffs, like many millions of Americans, are consumers of Android OS
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devices who have been affected adversely by Googles unlawful practices in commerce.
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A.
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Google is a monopolist in general search.

16.
General Internet searches occur, inter alia, when a user goes to a search engine
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website Google.com, for example and executes a query there, or when he enters a query into
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his browsers search bar and a pre-designated search engine operating in the background executes
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it. For example, the user might query name of the 32nd president of the United States. Google is
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a monopolist in the U.S. market for general search conducted on all devices, including laptops,
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desktops, mobile phones, and tablets. According to StatCounter, Googles search engine share
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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).) Googles 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, Googles competitor Bings 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.)
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By any standard, Googles 81.87%+ share of the U.S. handheld general search
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market is a monopoly.
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B.
Google is a monopolist in handheld general search.
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18.
Google also is a monopolist in U.S. market for handheld general search.
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19.
Recognizing that Internet search was migrating from desktops to mobile devices,
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Google purchased the Android OS in August 2005. Handheld device manufacturers including
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010437-11 683086 V1
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.
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With respect to mobile phones, according to comScore, a firm that regularly surveys
over 30,000 U.S. mobile subscribers in the U.S., Androids 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
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of Googles dominance in mobile and tablet devices. That dominance is based in its monopoly in
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handheld general search.
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21.
Handheld general search occurs when a smartphone or tablet user performs an
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Internet search query on his or her device. If, for example, the user wants to know where the
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nearest coffee shop is located, she might type her query into the search bar of her mobile browser.
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The browser then will hand off the request to a pre-set search engine, such as the Google search
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engine, that will operate behind the scenes to execute her request. Or she might use a dedicated
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search app, for example a Google-branded app or widget that was pre-loaded onto her phone, and
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enter her search term there. Not surprisingly, when she does so with a Google widget, the search is
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processed through the Google search engine. Or she might go to https://www.google.com via her
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browser and run the search from there which is not as likely as the other two methods described,
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given the extra step involved to navigate to the Google website before entering the desired query.
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But in that event, too, a search engine Googles will execute the search. Whichever of these
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methods the phone or tablet user employs, search results will be returned to her.
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Google is the dominant mobile and tablet search engine in the United States. As of
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March 2014, StatCounter reports that Googles U.S. handheld general search engine share the
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share of mobile phone and tablet searches run through Googles search engine was at an
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astounding 86.82%. Its competitor Yahoo!s share was at a distant 7.64%, and its competitor
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010437-11 683086 V1
Bings 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).)
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The handheld general search market is a submarket of the Internet general search
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market. The former captures Internet general searches performed on portable, wireless, handheld
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smartphones and tablets. The latter captures Internet general searches performed not only on these
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handheld devices, but on desktop and laptop computers, too. By any standard, Googles 86.88%
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share of the U.S. handheld general search market is a monopoly.
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C.
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Google engages in unlawful behavior in order to restrain trade and to maintain and
grow its monopoly in handheld general search.
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Google maintains monopoly status in handheld general search, which ensures that
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the vast majority of mobile and tablet searches will be run by its search engine. Cornering the
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market on handheld-device searches translates to colossal profits.
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25.
Google makes its money by selling advertising. The primary component of its
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advertising profits is search advertising. Search advertising, which is a function of Googles
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AdWords platform, serves paid ads in conjunction with so-called organic or natural search results.
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Thus, if an individual conducts a search for flat screen tv that is run by Googles 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.
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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 Googles U.S. AdWords revenue, which is based on ads
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generated by search queries, is somewhere in the range of $15 billion to $18 billion annually)
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(last accessed April 30, 2014).) Unfortunately, Google has not competed simply on the basis of a
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better search engine, but also various unlawful tactics designed to favor its interests. These tactics
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have caught the attention of Congress and regulators at home and abroad.
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1.
Google has been the subject of, and has settled, various antitrust investigations.
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In September 2011, the U.S. Senate Subcommittee on Antitrust, Competition Policy
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and Consumer Rights held a hearing on The Power of Google: Serving Consumers or Threatening
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Competition?, at which Googles Executive Chairman, Eric Schmidt, appeared and answered
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questions related to Googles status as a monopolist; charges that it rigged search results to favor
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its own interests; and charges that it scraped content from various websites and served it up in non-
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organic search results, among others. (See generally Power of Google Transcript of Sept. 21, 2011
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Hearing (available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg71471/pdf/CHRG-
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112shrg71471.pdf (last accessed March 20, 2014)).)
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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 governments escalating pursuit of Google is the most farreaching antitrust investigation of a corporation since the landmark
010437-11 683086 V1
federal case against Microsoft in the late 1990s. The agencys

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.
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Google ultimately reached a settlement with the U.S. government to head off an
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antitrust lawsuit. (See, e.g., Google Agrees to Change Its Business Practices to Resolve FTC
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Competition Concerns in the Markets for Devices Like Smart Phones, Games and Tablets, and in
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Online Search (available at http://www.ftc.gov/news-events/press-releases/2013/01/google7
agrees-change-its-business-practices-resolve-ftc (last accessed March 26, 2014)).) In that
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settlement, Google agreed to two terms involving search advertising. According to the Federal
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Trade Commission, Google []agreed to give online advertisers more flexibility to simultaneously
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manage ad campaigns on Googles AdWords platform and on rival ad platforms; and to refrain
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from misappropriating online content from so-called vertical websites that focus on specific
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categories such as shopping or travel for use in its own vertical offerings. (Id. at 1.)
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Google also has faced intense scrutiny from the European Unions antitrust
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authorities for these same sorts of practices. In February 2014, the E.U. and Google announced
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that they had reached a settlement in avoidance of litigation. By way of the settlement, Google has
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agreed to display rival search ads next to its own specialized search ads. It also has agreed to allow
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website owners the right to opt out of display of their content crawled by Googles search engine
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agents on covered web pages. And Google has agreed to cease making it difficult or impossible for
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advertisers to port search advertising campaigns, i.e., AdWords campaigns, to rival search engines.
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(See Commitments in Case COMP/C-3/39.740, dated January 31, 2014, at 2-15 (available at
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http://services.google.com/fh/files/blogs/google_commitments_full_2014.pdf (last accessed
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March 22, 2014).) But the settlement has yet to attain final approval by the E.U. Instead, it is
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under heavy fire from various quarters, including the E.U.-affiliated European Consumer
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Organisation, for not going far enough, and for leaving Googles anti-competitive practices
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unchecked. (See, e.g., http://www.eubusiness.com/Members/BEUC/google-antitrust (last accessed
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April 4, 2014).)
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2.
Googles restrains competition through the use of its Mobile Application

Distribution Agreements.
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A manufacturer of an Android OS smartphone or tablet must obtain a license from
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Google to pre-load popular Google apps including YouTube, the Google Play client, Maps,
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Calendar, Gmail, Talk, among others.
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32.
Google uses its popular apps to coerce manufacturers into making it the default
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search engine provider on handheld devices. This unlawful tactic is currently under investigation
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by European Union authorities, following the lodging of a complaint by FairSearch.org, of which
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Microsoft, Expedia, tripadvisor, Oracle, and others are members. (See, e.g., In Europe, New
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Protest Over Google, The New York Times, April 8, 2013; Google Reaches Settlement in EU
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Antitrust Probe, The Wall Street Journal, February 5, 2014 (The [European Union] commission
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is also examining whether Google is abusing its market share for mobile phones running its
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Android operating system, according to people familiar with the examinations. Competitors have
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said the company forces them to install software for Google searches.).)
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33.
Recently revealed copies of Googles contracts with device manufacturers provide
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the details of Googles abusive market manipulation. If a smartphone or tablet manufacturer such
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as Samsung or HTC wishes, for example, to pre-load Googles popular and exclusive YouTube app
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on a given Android OS phone or tablet, or if it wishes to install Googles popular and exclusive
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Google Play client on that device, then Google requires that the manufacturer must agree to make
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Google the default search engine on the device. The manufacturer also must agree to pre-load all
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of a suite of Google applications onto prime screen real estate. Further, the manufacturer must
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agree to make Google location services the default location services provider on the phone.
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Additionally, the manufacturer must agree that it will pass a so-called Android Compatibility Test
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as to that device, which Google administers and controls in its sole discretion.1 (Ex. A (MADA
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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 whos who of Android OS device
manufacturers, including LG, Toshiba, Fujitsu, Funai, iriver, GigaByte Tech. Co., JVC Kenwood,
- 10 CLASS ACTION COMPLAINT
010437-11 683086 V1
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.);
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Ex. B (MADA between Google and HTC), 2.1 (same as 2.1 in Google-Samsung agreement),
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2.7 (same as 2.7 in Google-Samsung agreement), 3.4 (same as 3.4 in Google-Samsung
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agreement), 3.8(c) (same as 3.8(c) in Google-Samsung agreement).)
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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 Googles 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.)
010437-11 683086 V1
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).)
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Googles 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).)
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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
10
286 and 2775, respectively, though both documents indicate in their footers that they are
11
HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY.
12
36.
Default search engine status is exceedingly important to Google. If a Google search
13
app or widget is placed prominently on a handheld device, as in the following example of the
14
Samsung Galaxy S III mobile phone home screen bearing the Google Phone-top Search bar across
15
its middle, Google knows that phone and tablet owners will use it.
16
17
18
19
20
21
22
23
24
25
26
27
28

010437-11 683086 V1
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.
8
9
10
37.
If Google is set as the default search engine provider, so much the better to sustain
and grow Googles monopoly position and power in handheld general search. As Googles VicePresident of Product Management & Marketing put it:
11
So more users more information, more information more users, more

advertisers more users, its a beautiful thing, lather, rinse, repeat,
thats what I do for a living. So thats what someone alluded to the
engine that cant be stopped.3
12
13
38.
By way of Googles coercive and exclusionary practice with Android OS device
14
manufacturers such as Samsung and HTC, Google restrains and quashes competition for default
15
search engine status before it even can begin. There is no lawful reason to compel manufacturers
16
wishing to pre-load the YouTube app onto a device, or to enable their customers to access the
17
Google Play store and its 1.2 million apps, to make Google the default search engine on that device
18
as well. Instead, Googles practice is a pure power play designed to maintain and extend its
19
monopoly in handheld general search.
20
21
D.
Googles practices with respect to its Android apps and search product restrain and
injure competition in markets where already there are high barriers to entry.
22
39.
Consider the impact on a device manufacturer seeking to substitute an offering that
23
competes with a Google app. For example, a phone manufacturer might conclude that some non-
24
Google service is preferable to one of the listed Google Applications perhaps faster, easier to use,
25
or more protective of user privacy. Alternatively, a phone manufacturer might conclude that its
26
27
28
Source: Jonathan Rosenberg, Google VP of Product Management & Marketing, Inside the
Black Box: Technology & Innovation at Google, Speech to Claremont McKenna College
(emphasis added).
010437-11 683086 V1
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. Googles 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 Googles 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
10
reasonable substitutes to Google Maps. But it is not clear what other app store besides Google Play
11
that a manufacturer could preinstall onto a smartphone in order to offer a comprehensive set of
12
apps. Furthermore, a manufacturer would struggle to offer a phone without a pre-installed
13
YouTube app. Without the expected pre-loaded app allowing easy access to the short-format
14
entertainment videos that are YouTubes specialty, a phone would be unattractive to many
15
consumers, thus undermining carriers efforts to sell data plans, and putting the phone at
16
heightened risk of commercial failure. Needing Google Play and YouTube, a manufacturer must
17
then accept Google Search, Maps, Network Location Provider, and more even if the
18
manufacturer prefers a competitors offering or prefers a payment for installing some alternative
19
exclusively.
20
41.
In principle, the MADA allows a phone manufacturer to install certain third-party
21
applications in addition to the listed Google Applications. For example, the phone manufacturer
22
could install other search, maps, or email apps in addition to those offered by Google. But multiple
23
apps are duplicative, confusing to users, and a drain on limited device resources. Moreover, in the
24
key categories of search and location, Google requires that its apps be the default, and Google
25
demands prominent placements for its search app and app store. These factors sharply limit users
26
attention to other preloaded apps, reducing competitors willingness to pay for pre-installation.
27
28

010437-11 683086 V1
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 Googles 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 thats better than Googles offering, the carrier is obliged to
install Googles app also, and Google can readily amend the MADA to require making its app the
default in the corresponding category (for those apps that dont 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
10
can offer only inferior placement adjacent to Google, with Google left as the default in key
11
sectors preventing competitors from achieving scale or outbidding Google for prominent or
12
default placement on a given device.
13
14
15
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.
Googles practices with respect to its MADAs restrain and hurt competition because
16
they constitute yet one more way by which Google forecloses its rivals in handheld general search
17
from competing. The results are especially pernicious given that already there are high barriers to
18
entry in the markets for general search.
19
45.
Any search engine becomes better over time as more and more search inquiries are
20
run through it. Searches executed via Googles search engine provide Google with data that
21
Google utilizes to improve its search algorithm. For example, if a users quest for specific
22
information is not satisfied by clicking on prominent links in results returned by the search engine,
23
she will click on a lower-ranked link or enter new search terms, and this data allows the algorithm
24
powering the search engine to adapt, or to be modified, to produce better results. This, in turn,
25
enhances Googles appeal to consumers, and the cycle repeats itself. Then, because Google
26
attracts more users with these ever-improving search results, Google attracts yet more ad dollars
27
because advertisers will follow the most consumers. And with more advertising dollars, Google
28

010437-11 683086 V1
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. Prfer, 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 Googles 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
10
Yahoo! Inc.:
11
The search and paid search advertising industry is characterized by

an unusual relationship between scale and competitive performance.
The transaction will enhance Microsofts competitive performance
because it will have access to a larger number of queries, which
12
13
14
15
16
17
18
19
20
21
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. Googles
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/googlesearch-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:
22
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 dont index every one of those
trillion pages [b]ut were 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 itd be a map about 50,000 times as big as the
U.S., with 50,000 roads and intersections.
23
24
25
26
27
(Id.)
28

010437-11 683086 V1
should accelerate the automated learning of Microsofts search and

paid search algorithms and enhance Microsofts 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.
2
3
4
5
6
7
8
Yet even after consummation of the Microsoft-Yahoo! deal referenced in this statement by the
Department of Justice, in which Microsofts Bing began to power Yahoo! searches, Bing has
10
struggled mightily. As The Washington Post reported recently, Microsofts online services
11
division, which oversees search engine Bing, reported a loss of $1.3 billion in 2013 less than the
12
previous year but still in the red. (http://www.washingtonpost.com/blogs/the-
13
switch/wp/2014/02/05/investors-want-microsofts-new-ceo-to-kill-xbox-bing-and-surface/ (last
14
accessed April 14, 2014.) This has brought pressure from investors to dump Bing altogether.
15
47.
If Microsoft were to exit the market, then there is little hope for any meaningful
16
competition in the markets for general search and handheld general search. As Steve Pociask and
17
Joseph P. Fuhr, Jr. of the American Consumer Institute put it in their July 24, 2012 paper entitled
18
The Search for Market Dominance:
19
20
21
22
23
24
25
26
27
28
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 Googles search
capability to some extent or through revenue-sharing deals. For
example, for years now, AOL has been using Googles search engine
and, consequently, Googles advertising program. Similarly,
Ask.com downsized its staff several years ago and signed a five-year
multi-billion dollar deal to use Googles 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 Googles own services, and not even
Microsoft can make a profitable dent into the market. It appears that
010437-11 683086 V1
the market has tipped to Google, which funnels much of the webs
traffic to and from its websites and partner websites.
2
(Id. at 8-9 (footnotes omitted) (available at
3
http://www.ftc.gov/sites/default/files/attachments/frequently-requested-records/1311google-20134
00857.pdf) (last accessed April 15, 2014).)
5
48.
Google itself has acknowledged that scale is critical to the general search market
6
and constitutes a grave barrier to entry. For example, Googles executive chairman, Eric Schmidt,
7
was quoted in an April 13, 2003 New York Times article entitled In Searching the Web, Google
8
Finds Riches as stating: Managing search at our scale is a very serious barrier to entry. And
9
this was over 10 years ago, well before Google attained its present immense size and scale.
10
Mr. Schmidt has since tried to walk back that statement, but it remains as objectively true today as
11
it was then even more so.
12
49.
In fact, only a few years ago, Mr. Schmidt again acknowledged the immense power
13
and marketplace effectiveness of Googles scale during an interview for an October 9, 2009.
14
BloombergBusinessweek article entitled How Google Plans To Stay Ahead in Search. In
15
response to the question, What is Googles biggest strength in search? Mr. Schmidt responded:
16
We just have so much scale in terms of the data we can bring to bear.
17
50.
This is consistent with Mr. Schmidts remarks expressed earlier in 2009, in response
18
to a question during a FOX Business television interview about whether Microsofts investment of
19
some $80-100 million into promotion for its competitive search engine, Bing, would compel a
20
response from Google. As Mr. Schmidt put it, From Bings perspective they have a bunch of new
21
ideas and there are some things that are missing. We think search is about comprehensiveness,
22
freshness, scale, and size for what we do. Its difficult for them to copy that.
23
(http://www.zdnet.com/blog/btl/schmidt-bing-has-not-changed-what-google-is-doing/19492
24
(emphasis added) (last visited March 20, 2014).) When not even a company as successful and
25
wealthy as Microsoft gives Google competitive pause due to Googles scale and the barriers to
26
entry that it poses, then realistically, no company can hope to compete with Google in the fast27
28

010437-11 683086 V1
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 its 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 phones standard search mechanism. (Id.) DuckDuckGo can
be added as an app to a mobile device, which is less convenient than being the default search
10
engine, said Weinberg. But Googles anti-competitive tactics did not stop there. Instead, Google,
11
having purchased a company which owned the domain name duck.com, began redirecting traffic
12
from that domain name to itself after DuckDuckGo inquired about purchasing it. (Id.) This,
13
according to Mr. Weinberg, created confusion among consumers. (Id.) Mr. Weinberg also
14
complained of the difficulty of making DuckDuckGo the default search provider in Googles
15
Chrome web browser. (Id.) The article concluded by reporting that [a] former antitrust enforcer,
16
who asked not to be named, said the actions that Weinberg complained about were unexciting
17
taken individually but, as a cluster, could be worrisome. Its relevant. Its what antitrust enforcers
18
call monopoly soup, said the enforcer. (Id.)
19
52.
When Bing and other search engines such as DuckDuckGo are excluded from
20
competition by way of the practices described in this complaint, not only is actual competition
21
restrained and harmed by way of the exclusion itself, but even the prospect of real competition is
22
restrained and diminished. When Googles search product grows in effectiveness, fueled by search
23
volumes strongly enhanced as a result of Googles anti-competitive practices, competitors fall yet
24
further behind both in terms of effectiveness but also in terms of reputation in the marketplace.
25
53.
Competition is further restrained and harmed by Googles unlawful contracts
26
because rivals to Googles applications, such as AOLs MapQuest, an alternative to Google Maps,
27
cannot compete for pre-load exclusivity on affected Android OS mobile devices. Googles like
28

010437-11 683086 V1
applications must be pre-loaded pursuant to terms of its MADAs, in prime positions on the mobile
phones or tablets screens.
54.
Not only is competition restrained and harmed by Googles 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.
10
Google conceals its MADA restrictions.

55.
The MADA restrictions have been unknown to the public and Google has
11
effectively kept them hidden. The MADA agreements are labeled highly confidential attorneys
12
eyes only. Further, Google has misleadingly implied that it has no such restrictions.
13
56.
Googles public statements indicate few to no significant restrictions on use of the
14
Android operating system or Googles apps for Android leading reasonable observers and even
15
industry experts to conclude, mistakenly, that Google allows its apps to be installed in any
16
combination that manufacturers prefer.
17
57.
For example, on the Welcome to the Android Open Source Project! page, the first
18
sentence touts that Android is an open source software stack . . . . (https://source.android.com/
19
(last accessed April 29, 2014).) Nothing on that page indicates that the Android platform, or
20
Googles apps for Android, suffers any restriction or limitation on the flexibility standard for open
21
source software.
22
58.
Moreover, senior Google executives have emphasized the importance of Googles
23
openness in mobile. Former Google Senior Vice President Jonathan Rosenberg offered a 4300-
24
word analysis of the benefits of openness for Google generally and in mobile in particular. For
25
example, Mr. Rosenberg argued: In an open system, a competitive advantage doesnt derive from
26
locking in customers, but rather from understanding the fast-moving system better than anyone else
27
and using that knowledge to generate better, more innovative products.
28

010437-11 683086 V1
(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. Rosenbergs 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
10
range of features for Android devices. (http://android-developers.blogspot.com/2011/04/i-think-
11
im-having-gene-amdahl-moment.html (last accessed April 30, 2014).) He continued: If someone
12
wishes to market a device as Android-compatible or include Google applications on the device, we
13
do require the device to conform with some basic compatibility requirements. (After all, it would
14
not be realistic to expect Google applications or any applications for that matter to operate
15
flawlessly across incompatible devices). (Id.) Mr. Rubins post does not explicitly indicate that
16
the referenced basic compatibility requirements are the only requirements Google imposes, but
17
that is the natural interpretation. Reading Mr. Rubins remarks, particularly in light of his
18
introduction that Android is an open platform, most readers would conclude that there are no
19
significant restrictions on app installation or search defaults.
20
60.
But that is not all. Google Executive Chairman Eric Schmidt, following the
21
Senates September 2011 Power of Google hearing, responded to written question 8.a put to him
22
by Sen. Herbert Kohl as follows:
23
24
25
26
Has Google demanded that smartphone manufacturers make Google

the default search engine as a condition of using the Android
operating system?
Mr. Schmidt:
27
Google does not demand that smartphone manufacturers make

Google the default search engine as a condition of using the Android
operating system. . . .
28

010437-11 683086 V1
One of the greatest benefits of Android is that it fosters competition

at every level of the mobile marketincluding 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 preinstallation of any Google applications or on making Google the
default search engine. . . .
2
3
4
5
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 Microsofts 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!, Microsofts Bing, and Google
applications for free from the Android Market.
6
7
8
9
(Power of Google Transcript of Sept. 21, 2011 Hearing at 147-48 (available at
10
http://www.gpo.gov/fdsys/pkg/CHRG-112shrg71471/pdf/CHRG-112shrg71471.pdf (last accessed
11
March 20, 2014)).) Mr. Schmidts responses to questions from Sen. Mike Lee (question 15.b),
12
from Sen. Al Franken (question 7), and from Sen. Richard Blumenthal (question 7) were similar
13
and, in sections, identical, and were highly misleading given the terms of Googles MADAs. (Id.
14
at 165-66, 125-26, and 110.)
15
F.
Google further forecloses competition in the market by entering into exclusive

contracts with Apple.
16
61.
As part of its strategy to maintain and extend its monopoly in handheld general
17
search, Google also has entered into exclusionary agreements with the largest non-Android phone
18
manufacturer, Apple Inc. (Apple).
19
62.
Google has paid Apple hundreds of millions of dollars, if not billions of dollars over
20
the years, to act as the default search engine on Apple iPhones, iPads, and iPods. It is estimated
21
that it will pay Apple over a billion dollars in 2014 to retain this status. (See, e.g.,
22
http://searchengineland.com/financial-analyst-affirms-googles-1-billion-in-default-search23
payments-to-apple-148255 (last accessed April 4, 2014).) This arrangement forecloses competing
24
search engine companies from the best opportunity to break Googles stranglehold on the handheld
25
general search market.
26
63.
No pro-competition justification exists for the exclusion of rival search engines
27
28
from acting as the default search engine on Apple mobile devices.

010437-11 683086 V1
G.
Googles unlawful practices harm consumers.
64.
Consumers are harmed by Googles 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 Googles 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 Googles unlawful behavior.
10
65.
Googles mandatory MADA terms that tie Google search to its other products,
11
without business necessity or justification, in fact kill competition and consumer choice. As
12
Susan A. Creighton, counsel for Google and former Director of the Bureau of Competition at the
13
Federal Trade Commission, put it at the Power of Google hearing: And this really gets to the
14
question of, are there impediments to the ability of consumers to choose. So if someone found, for
15
example, that as Microsoft did there [with respect to Netscape], that Microsoft was intimidating
16
OEMs from being able to offer rival product so that it never got to market, then I would want to
17
have relief that went to those provisions that were preventing choice. (Power of Google
18
Transcript of Sept. 21, 2011 Hearing at 46-47 (available at http://www.gpo.gov/fdsys/pkg/CHRG-
19
112shrg71471/pdf/CHRG-112shrg71471.pdf (last accessed March 20, 2014)).5)

66.
20
This lawsuit aims to achieve the sort of relief to which Googles counsel referred
21
and to restore to consumers the price premium they paid for their affected mobile phones and
22
tablets.
23
24
25
26
27
28
Googles counsel also remarked that competition among search engines for default status with
Apple was a good thing even as Googles 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
whos a stand-in for consumers, because Apple is not going to take the worst search engine.).)
010437-11 683086 V1
1
2
3
V.
67.
The activities of the defendant as alleged in this complaint were within the flow of,
and substantially affected, interstate commerce.
4
5
INTERSTATE TRADE AND COMMERCE
VI.
68.
RELEVANT MARKETS
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.
10
69.
First, Google has acknowledged the existence of a general search category (see
11
id. at 72 and 102 (referring to Microsofts Bing search engine in a written response posed by a U.S.
12
Senator in the Power of Google proceedings, Googles counsel remarked: Here, by
13
comparison, Google has no ability to exclude a general search engine rival such as Microsoft from
14
the market.; and its executive chairman stated in response to another written question: As I
15
acknowledged during the Committee hearing, Google is in the area of 65% of queries [for
16
desktop search] in the U.S., if you look only at Googles general search competitors, such as
17
Microsofts Bing and Yahoo!) (emphases added).)
18
70.
Though Google today seems intent on denying the existence of this obvious
19
market even as it (a) pays Apple hundreds of millions, if not billions, of dollars for default search
20
engine status on the iPhone and (b) insists on unlawful tying arrangements with Android OS
21
manufacturers to maintain and expand its dominance of it in smartphones and tablets Googles
22
executive chairman was correct when in September 2010 he remarked in a Wall Street Journal
23
video interview that there is in fact a market for general search. Whatever Googles current efforts
24
to dilute the discreteness of this market with references to specialized searches run through
25
Facebook, for example, or Yelp, its executive chairman himself rightly waved away such efforts
26
from others only a short while ago. As AFP reported in a September 25, 2010, article entitled
27
Google chief sees Bing as main threat:
28

010437-11 683086 V1
Google chief executive Eric Schmidt on Friday said that Microsofts

Bing search engine was the company's main threat, not Facebook or
Apple.
2
3
While its 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.
4
5
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 Microsofts latest-generation search
engine was Google's main competition.
6
7
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.
8
9
(http://www.google.com/hostednews/afp/article/ALeqM5gJL1jBNwMhcjiDZl10
P1EVe8Lalpw?hl=en (last accessed March 22, 2014 (emphasis added).)
11
71.
Second, a relevant submarket, in addition to, or as an alternative to, the first relevant
12
market, is the United States market for handheld general search. Not only do industry analysts
13
consider handheld general search to be a distinct market, but so does Google in its pitches to
14
advertisers. (See, e.g., http://services.google.com/fh/files/misc/mobile-search-ppt.pdf (PowerPoint
15
presentation to advertisers based on Google-Nielsen survey and study).)
16
72.
Substantial barriers to entry to the overall general search market and the handheld
17
general search market exist because of Googles monopolization of those markets, including by
18
means of the unlawful conduct alleged in this complaint.
19
VII.
CLASS ALLEGATIONS
20
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
21
22
injunctive relief based on violations of the federal Sherman and Clayton antitrust acts:
23
24
25
26
27
28
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 manufacturers mandatory acceptance and installation
of Google search, or so-called Google Phone-top Search, as the
default search engine on that device.
010437-11 683086 V1
Excluded from this proposed class is the defendant; defendants affiliates and subsidiaries;
defendants 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 Californias 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 manufacturers mandatory acceptance and installation
of Google search, or so-called Google Phone-top Search, as the
default search engine on that device.
9
10
11
12
13
Excluded from this proposed class is the defendant; defendants affiliates and subsidiaries;
14
defendants current or former employees, officers, directors, agents, and representatives; and the
15
district judge or magistrate judge to whom this case is assigned, as well as those judges immediate
16
family members.
17
76.
Upon information and belief, the unlawful conduct alleged in this complaint,
18
including preparation of, imposition of the terms of, and entry into, the Google MADAs, was
19
effected, implemented, adopted, and ratified in the state of California, where Google maintains its
20
U.S. headquarters. Furthermore a substantial part of the anti-competitive conduct took place in
21
California. For these reasons, plaintiffs allege that they and the nationwide class proposed in the
22
preceding paragraph are entitled to monetary and injunctive relief under California law.
23
77.
In the event that the Court determines that California law does not apply nationwide,
24
plaintiffs will bring alternative, additional class allegations based on the laws of the various states
25
permitting such actions under their antitrust and unfair competition laws.
26
27
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
28

010437-11 683086 V1
classes will consist of many hundreds of thousands of members, or even millions of members, such
that individual joinder in this case is impracticable.
3
4
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
Googles applications, including the YouTube app or the Google Play client, on the manufacturers
mandatory acceptance and installation of Google search, or so-called Google Phone-top Search, as
the default search engine on that device;
10
11
b.
Whether there are U.S. antitrust markets for general search and handheld
general search;
12
c.
Whether Google has unlawfully monopolized, or attempted to monopolize,
13
the markets for general search and handheld general search, including with respect to Android OS
14
mobile telephones and tablets;
15
16
d.
Whether competition in the general search and handheld general search
markets has been restrained and harmed by Googles monopolization of those markets;
17
e.
Whether consumers have been harmed, including by way of having paid
18
more for their affected Android OS mobile telephones and tablets than they would have but for
19
Googles unlawful conduct, as a result of Googles unlawful practices;
20
f.
Whether plaintiffs and members of the proposed classes are entitled to
21
declaratory or injunctive relief to halt Googles unlawful practices, and to their attorney fees, costs,
22
and expenses;
23
g.
Whether plaintiffs and members of the proposed classes are entitled to any
24
damages or restitution incidental to the declaratory or injunctive relief they seek, and to their
25
attorney fees, costs, and expenses related to any recovery of such monetary relief; and
26
27
28

010437-11 683086 V1
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 Googles 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
10
those of the proposed classes, and their interests do not conflict with the interests of the proposed
11
class members they seek to represent.
12
82.
Prevention of inconsistent or varying adjudications: If prosecution of a myriad
13
of individual actions for the conduct complained of were undertaken, there likely would be
14
inconsistent or varying results. This would have the effect of establishing incompatible standards
15
of conduct for the defendant. Certification of plaintiffs proposed classes would prevent these
16
undesirable outcomes.
17
83.
Injunctive and declaratory relief: By way of its conduct described in this
18
complaint, the defendant has acted on grounds that apply generally to the proposed classes.
19
Accordingly, final injunctive relief or corresponding declaratory relief is appropriate respecting the
20
classes as a whole.
21
84.
Predominance and superiority: This proposed class action is appropriate for
22
certification. Class proceedings on these facts and this law are superior to all other available
23
methods for the fair and efficient adjudication of this controversy, given that joinder of all
24
members is impracticable. Even if members of the proposed classes could sustain individual
25
litigation, that course would not be preferable to a class action because individual litigation would
26
increase the delay and expense to the parties due to the complex factual and legal controversies
27
present in this matter. Here, the class action device will present far fewer management difficulties,
28

010437-11 683086 V1
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)
5
6
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.
10
87.
Under the MADAs described herein, manufacturers of Android OS smartphones
11
and tablets wishing to pre-load onto a device any Google application contained in a Google-
12
designated suite of apps must agree to pre-load all Google applications from that suite onto that
13
device. This suite of apps includes not only the YouTube app and Google Play client, among
14
others, but Googles Phone-top Search, i.e., Googles search engine product, as well. Thus, a
15
manufacturer wishing to pre-load YouTube or Google Play onto a device also is required to pre-
16
install Google Phone-top Search on that device and to make it the default search engine for all
17
Web search access points on the Device. (Exs. A and B, 3.4.) These requirements mean, inter
18
alia, that no rival search engine can compete for default search engine status on an affected device
19
because, by definition, there can be only one default search engine.
20
21
22
88.
Googles MADAs are contracts in restraint of trade. Googles conduct affects and
forecloses a substantial amount of interstate commerce.

89.
Plaintiffs and the federal law class have been harmed by Googles conduct, both in
23
terms of the denial of choice and other injuries to competition and innovation, but also in terms of
24
the supra-competitive prices they paid for their smartphones and tablets due to the inability of
25
Googles rivals to compete for default search engine status or exclusive application pre-loading,
26
including by way of paying device manufacturers fees for such status. Had Googles rivals been
27
able to compete for such status on a given device, including by way of making payments to device
28

010437-11 683086 V1
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 Googles unlawful conduct. For these
reasons, Googles 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.
10
SECOND CAUSE OF ACTION

VIOLATION OF THE SHERMAN ACT - MONOPOLIZATION
(15 U.S.C. 2)
11
12
91.
13
92.
14
15
16
proposed nationwide federal law class described above.

93.
The relevant markets are the U.S. general search market and the handheld general
search market.
17
94.
Google possesses monopoly power in the relevant markets.
18
95.
For the reasons stated herein, substantial barriers to entry and expansion exist in the
19
relevant markets.
20
96.
Google has the power to exclude competition in the relevant markets, and it has
21
used that power, including by way of its unlawful practices in restraint of trade as described herein,
22
in order to maintain and expand its monopoly power in both.
23
97.
Googles conduct as described herein, including its unlawful practices in restraint of
24
trade, is exclusionary vis-a-vis its rivals in the U.S. markets for handheld general search and
25
general search.
26
27
28

010437-11 683086 V1
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.
4
5
6
99.
There is no business necessity or other pro-competitive justification for Googles
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 Googles conduct, including by way of
overpaying for their affected Android OS smartphones and tablets.
101.
10
11
12
and the federal law class are entitled to an injunction to prevent Google from persisting in its
13
unlawful behavior to their detriment.
14
15
THIRD CAUSE OF ACTION

VIOLATION OF THE SHERMAN ACT ATTEMPTED MONOPOLIZATION
(15 U.S.C. 2)
16
102.
17
103.
18
19
20
21

104.
Google has attempted to monopolize the U.S. market for general search and the U.S.
market for handheld general search.

105.
Googles anti-competitive conduct has created a dangerous probability that it will
22
achieve monopoly power in the U.S. market for general search and the U.S. market for handheld
23
general search.
24
25
26
27
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
28

010437-11 683086 V1
its unlawful practices in restraint of trade as described herein, in an attempt to monopolize those
relevant markets.
108.
Googles 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.
9
10
11
110.
There is no business necessity or other pro-competitive justification for Googles
conduct.
111.
Plaintiffs and the federal law class have been injured, and will continue to be
12
injured, in their businesses and property by way of Googles conduct, including by way of
13
overpaying for their affected Android OS smartphones and tablets.
14
112.
15
16
17
and the federal law class are entitled to an injunction to prevent Google from persisting in its
18
19
FOURTH CAUSE OF ACTION

VIOLATION OF THE CLAYTON ACT
(15 U.S.C. 14)
20
21
113.
22
114.
23
24

115.
25
26
27
28

010437-11 683086 V1
116.
Googles MADAs are designed to lessen competition substantially and tend to
create, or maintain and expand, Googles monopoly in the U.S. markets for general search and
handheld general search.
10
117.
Plaintiffs and the federal law class have been harmed by Googles conduct, both in
11
12
13
14
15
16
manufacturer, the effect would have been to lower the cost to produce that device, and consumer
17
18
reasons, Googles conduct has been a substantial factor in causing plaintiffs and the federal law
19
classs harm.
20
118.
21
22
23
and the federal law class are entitled to an injunction, pursuant to 15 U.S.C. 26, to prevent
24
Google from persisting in its unlawful behavior to their detriment.
25
FIFTH CAUSE OF ACTION

VIOLATION OF THE CARTWRIGHT ACT
(CAL. BUS. & PROF. CODE 16727)
26
27
119.
28

010437-11 683086 V1
120.
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.
10
11
12
13
14
15
122.
Googles MADAs are designed to lessen competition substantially and tend to
16
create, or maintain and expand, Googles monopoly in the U.S. markets for handheld general
17
search and general search.
18
123.
Plaintiffs and the proposed class have been harmed by Googles conduct, both in
19
20
21
22
23
24
25
26
reasons, Googles conduct has been a substantial factor in causing plaintiffs and the proposed
27
classes harm.
28

010437-11 683086 V1
124.
and the California law class are entitled to an injunction to prevent Google from persisting in its
125.
Plaintiffs and the California law class also are entitled to treble damages based on
the monetary injuries caused to them by Googles 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.)
10
11
126.
12
127.
13
proposed nationwide California law class described above. Alternatively, if the Court does not
14
apply California law on a nationwide basis, plaintiffs bring this claim on their own behalf and on
15
behalf of each member of a California class, as described above.
16
128.
Californias Unfair Competition Law (UCL) defines unfair competition to include
17
any unlawful, unfair, or fraudulent business act or practice. CAL. BUS. & PROF. CODE 17200,
18
et seq.
19
129.
Google has engaged in, and, upon information and belief, continues to engage in,
20
acts of unfair competition as defined in Californias UCL. These acts of unfair competition include
21
its violations of the federal Sherman and Clayton Acts, as well as Californias Cartwright Act, as
22
alleged herein.
23
130.
Googles conduct has harmed competition and consumers. Consumers have
24
overpaid for their affected Android OS mobile phones and tablets due to the inability of Googles
25
rivals to compete for default search engine status or exclusive application pre-loading, including by
26
way of paying device manufacturers fees for such status. Had Googles rivals been able to
27
compete for such status on a given device, including by way of making payments to device
28

010437-11 683086 V1
prices would have been lower than what they were but for Googles unlawful conduct.
131.
and the California law class are entitled to an injunction to prevent Google from persisting in its
8
9
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
10
sums, plaintiffs and the class should be allowed restitution of the money they overpaid for their
11
mobile phones and tablets.
12
PRAYER FOR RELIEF
13
WHEREFORE, plaintiffs respectfully request the following relief:
14
A.
That the Court certify this case as a class action; that it certify the proposed federal
15
law class, and the proposed California law class, on the nationwide bases requested; and that it
16
appoint them as class representatives and their counsel to be class counsel;
17
B.
That the Court award them and the proposed classes all appropriate relief, including,
18
but not limited to, injunctive relief requiring that Google cease the practices effected by its
19
MADAs as described herein, and declaratory relief, adjudging such practices unlawful, as well as
20
monetary relief, whether by way of restitution or damages, including treble, multiple, or punitive
21
restitution or damages where mandated by law or otherwise available, as well as recovery of their
22
attorneys fees, costs, and expenses;
23
24
25
26
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.
27
28

010437-11 683086 V1
1
2
3
JURY TRIAL DEMANDED

Plaintiffs demand a trial by jury on all issues so triable.
DATED: May 1, 2014
4
By
/s/ Jeff D. Friedman

Jeff D. Friedman
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
jefff@hbsslaw.com
5
6
7
8
14
Steve W. Berman (pro hac vice pending)

George W. Sampson (pro hac vice pending)
Robert F. Lopez (pro hac vice pending)
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
15
Attorneys for Plaintiff and the Proposed Classes
9
10
11
12
13
16
17
18
19
20
21
22
23
24
25
26
27
28

010437-11 683086 V1
Case5:14-cv-02007 Document1-1 Filed05/01/14 Page1 of 15
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Contidonliol
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HIGHLY CONFIDENTIAL
11/10
ATTORNEYS
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31 O-cv-03561
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HIGHLY CONFIDENTIAL
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ATTORNEYS
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ATTORNEYS
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Oracle
America
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31 O-cv-03561-WHA
GOOGLE-03371681
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HIGHLY CONFIDENTIAL
11/101
ATTORNEYS
EYES
ONLY
Oracle
America
Google
31 O-cv-03561
-WHA
G000LE-03371 682
Exhibit B
I
MOBILE APPLICATION DISTRIBUTION AGREEMENT
(ANDROID)
Googrornc.
1600 Amphitheatre 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
Attention:
Title:
Address, City, State,
Postal Code, Country:
Phone:
Fax:
Email:
Notlct~s
Company Contact Information:
Company Technical Contact:
Company Legal
Jerry Hsiao
Ellen Wang
Graoo Lei
Director
Director
General Counsel
No. 23, Xlnghua Rd., Taoyuan City,

Taoyuan County 330, Taiwan
No. 23, Xlnghua Rd., Taoyuan City,

Taoyuan County 330, Taiwan
No. 23, Xinghua Rd., Taoyuan

City, Taoyuan County 330, Taiwan
+866-2-6912-4138 #8451
+866289124138 #3176
+866-3-375-3252
+886-28914-7596
+866-2-691 <1 7596
+866-3375~376
totus_chen@htc.com
ellen_wang@htc.COOl
graro_lel@htc.com
to:
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.
Page 1 of 13
NORTHERN DISTRICT OF CALIFORNIA
ConfldonUal
(Revd. 12/1 0)
TRIAL EXHIBIT 286

CASE NO. 10-03561 WHA
DATE ENTERED
BY
DEPUTY CLERK
HIGHLY CONFIDENTIAL- ATTORNEY'S EYES ONLY
Trial Exhibit 286, Page 1 of 13
Oracle America v. Google, 3:10-cv-03561-WHA
GOOGLE-03371632
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
at
located
are
which
therein),
referenced
or
contained
content
any
(and
lime
to
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
Paga2 oF 13
Confidential
(Revd. 12/10)
GOOGLE-03371633
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, decompile 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
Page 3 of 13
Confidential
(Rovd. 12/10}
GOOGLE-03371634
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.
3.
Other Agreements. This Agreement will supersede any agreements between the parties regarding Androidpowered devices, but will have no affect on any other agreements between the parties regarding other devices or
Google services or applications.
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 ex~pted from
the requirements of this Section 3.4 as long as such Devices meet all the other requirements of this Agreement
Page 4 of 13
Confidential
(Revd.12110)
GOOGLE-03371635
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.
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:
3.6.
(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
networkbased 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.
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.
3.9.
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
Page 5 of 13
Confidential
(Rovd. 12/10)
GOOGLE-03371636
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-theAir 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.
Page6of 13
Confidential
(Revd. 12f1 O)
GOOGLE-03371637
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
Page 7 of 13
Confidential
(Revd. 12110)
GOOGLE-03371638
liable to the other for any damages resulting solely from termination of this Agreement as permitted for under this
Agreement.
6.
7.
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.
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).
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.
Page 8 of 13
ConfldonUal
(Revd. 12'/1 0)
GOOGLE-03371639
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.
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.
7.3.
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 knowhow, 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 ERROROTHER THAN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9.1,
FREE.
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
Page 9 of 13
Confidential
(Rovd. 12/10)
GOOGLE-03371640

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. 1~2.2 (license Grant
and Restrictions), Secllon 2.4(b)(lii) (opportunity to review and accept Google terms of service), or Section 2.5
(Accurate Reproduction).
1 0.3. 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.
Page 10 of 13
Confldontlal
(Rovd.12/10)
GOOGLE-03371641
12.4.
12.6.
of
IN
COMPANY:
Effective Date.
CORPORA liON
(Rovd. 1211 0)
GOOGLE-03371642
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.
Initial
Terrltory(los)
Device Imago (optlonaQ
Davlco Specifications
Device
Initial
Telecom
Oporator(s)
Target
Launch
Date
Dovlco
Foro cast for
tho Territory
List of Goog!e
Applications
Target
Terminal
Acceptance
Date
Restrictions on Google
Applications (e.g., No
YouTube In China)
Googlo
Trademark
(If any)
Additional Terms (If any):
COMPANY: ----------------
GOOGLE INC.
By
By
Name
Name
Title
Title
Date
Date
Page 12 of 13
Confidential
(Ravd. 12/1 0)
GOOGLE-03371643
EXHIBITS
LIST OF DEVICES TO BE LAUNCHED IN Q1 2011
PURSUANT TO SECTION 3.4
Device
Device Specifications
Speedy
3.6" WVGA Display, MSM7630 CPU,

Slider Keyboard,
EVDO Rev A + WiMax
Sprint
4.3" VWGA Display, MSM8655 + MDM9600 CPU,

Bar Type,
LTE +COMA
Verizon
4.3" WVGA Display, MSM8255,

Bar Type,
UMTS Tri-Band
AT&T
Vivo
4" WVGA Display, MSM8255 CPU,

Bar Type,
UMTS Tri-Band
EU,
Voda
March 2011
Vivo#W
4n VWGA Display, MSM8655 CPU,

Bar Type,
COMA+ UMTS World Phone
us,
March 2011
Verizon
Mecha
Ace
Initial Telecom Territory &

Operator
us,
us,
us,
Target
Launch Date
Jan 2011
Jan 2011
Feb2011
Saga
3.7"WVGA Display, MSM8255 CPU,

Bar Type,
UMTS Tri-Band
EU,
T-Moblle
March 2011
Marvel
3.2" HVGA Display, MSM7227 CPU,

Bar Type,
UMTS Trf-Band
EU,US
HTC Channel, T-Moblle EU
and TMobile US
March 2011
Flyer
7" 1024x600 Display, MSM8255 CPU,

Tablet
UMTS Tri-Band or Wifl only
(COMA version is called Express)
7" 1024x600 Display, MSM8655 CPU,
Tablet
EVDO Rev A+ WiMax
Global
HTC Channel
March 2011
us
March 2011
Express
(Fiayer COMA
version)
Sprint
Pyramid
4.3" QHD Display, MSM8655 CPU,

Bar Type,
UMTS Tri-Band
Global
HTC Channel
March 2011
Icon

Bar Type,
UMTS Tri-Band
Global, US
HTC Channel (March or
April), T-Moblle (April or May)
March/April
2011
ChaGha

QWERTY Bar,
UMTS Tri-Band
US, Global, US
HTC Channei(March or April),
T-Mobife (April or May)
March/April
2011
Page 13 of13
Confidential
(Rovd. 12f10)
GOOGLE-03371644
JS 44 (Rev. 12/12) cand rev (1/15/13)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Gary Feitelson and Daniel McKee,
Google Inc.
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
Jefferson County
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
Steve W. Berman, Hagens Berman Sobol Shapiro LLP

1918 8th Avenue, Suite 3300, Seattle, WA 98101, Tel: (206) 623-7292
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
DEF
1
Citizen of Another State
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
(For Diversity Cases Only)

PTF
Citizen of This State
1
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
OTHER STATUTES
375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. 1
VI. CAUSE OF ACTION Brief description of cause:
Contract in Restraint of Trade; Monopolization; Attempt To Monopolize.
CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/Jeff D. Friedman
05/01/2014
,;',9,6,21$/$66,*10(17&LYLO/5
(Place an X in One Box Only)
Print
( ) SAN FRANCISCO/OAKLAND
Save As...
( ) SAN JOSE
( ) EUREKA
Reset

AO 440 (Rev. 06/12) Summons in a Civil Action

for the
NorthernDistrict
Districtof
of__________
California
__________
Gary Feitelson, a Kentucky resident, andDaniel

McKee, an Iowa Resident, on behalf of themselves
and all others similarly situated,
Plaintiff(s)
v.
Google Inc., a Delaware Corporation,
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) GOOGLE INC.
c/o CORPORATION SERVICE COMPANY - LAWYERS INCORPORATING SERVICE
2710 GATEWAY OAKS DR STE 150N
SACRAMENTO CA 95833
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 plaintiffs attorney,
whose name and address are: Jeff D. Friedman
Berkeley, CA 94710
Telephone: (510) 725-3000
Facsimile: (510) 725-3001
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

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 individuals 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 individuals 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 $
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
Print
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Case5:14-cv-02007 Document1 Filed05/01/14 Page1 of 40

Steve W. Berman (pro hac vice pending)

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

GARY FEITELSON, a Kentucky resident, and

DEMAND FOR JURY TRIAL OF ANY

Case5:14-cv-02007 Document1 Filed05/01/14 Page2 of 40

Google is a monopolist in general search. .................................................................. 4

Google is a monopolist in handheld general search. .................................................. 5

Google engages in unlawful behavior in order to restrain trade and

Googles restrains competition through the use of its

Googles practices with respect to its Android apps and search

Google conceals its MADA restrictions. .................................................................. 20

Google further forecloses competition in the market by entering

Googles unlawful practices harm consumers. ......................................................... 23

INTERSTATE TRADE AND COMMERCE ...................................................................... 24

RELEVANT MARKETS ..................................................................................................... 24

CLASS ALLEGATIONS ..................................................................................................... 25

CLAIMS FOR RELIEF ........................................................................................................ 29

FIRST CAUSE OF ACTION VIOLATION OF THE SHERMAN ACT

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FIFTH CAUSE OF ACTION VIOLATION OF THE CARTWRIGHT

SIXTH CAUSE OF ACTION VIOLATION OF THE UNFAIR

PRAYER FOR RELIEF ................................................................................................................... 36

JURY TRIAL DEMANDED ........................................................................................................... 37

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monopoly in both of these U.S. markets.

enormous user base in the United States.

Agreements (MADA), allows Android OS device manufacturers to pre-load a suite of Google

market power over smartphone and tablet manufacturers.

-1CLASS ACTION COMPLAINT

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If device manufacturers bound by Googles distribution agreements were free to

smartphones and tablets.

-2CLASS ACTION COMPLAINT

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foreclosed by these contracts.

Venue is proper in this Court pursuant to 28 U.S.C. 1391(b), inasmuch as

defendant resides and regularly conducts business in this district.

-3CLASS ACTION COMPLAINT

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for Googles unlawful restraints.

Defendant Google is a Delaware corporation with its headquarters and principal

The plaintiffs, like many millions of Americans, are consumers of Android OS

Google is a monopolist in general search.

-4CLASS ACTION COMPLAINT

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over all these devices was at 81.87% as of March 2014.

Google is a monopolist in handheld general search.

Google also is a monopolist in U.S. market for handheld general search.

-5CLASS ACTION COMPLAINT

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Galaxy and HTC Flyer tablet lines.

handheld general search.

Handheld general search occurs when a smartphone or tablet user performs an

-6CLASS ACTION COMPLAINT

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Bings 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).)

share of the U.S. handheld general search market is a monopoly.

market on handheld-device searches translates to colossal profits.

advertising profits is search advertising. Search advertising, which is a function of Googles

-7CLASS ACTION COMPLAINT

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