Pass Herald Ltd v. Google Llc

Pass Herald Ltd v. Google Llc

The Court held that the Irish defendants had attorned to jurisdiction by joining motions and thus personal jurisdiction exists; federal courts can adjudicate ss.45 and 47 in respect of foreign agreements when the 'real and substantial link' test is met and Parliament has granted jurisdiction; on the pleadings it was plain and obvious that claims grounded in ss.45, 46 and 47 are deficient (NBA and alleged unwritten terms are vertical or speculative and not agreements between competitors and thus doomed to fail) and those claims were struck without leave to amend; the s.52 misrepresentation claim survives and will proceed.

Citation
2024 FC 1623
Parties
Plaintiff: Pass Herald Ltd.; Defendant: Google LLC; Defendant: Google Ireland Limited; Defendant: Google Canada Corporation; Defendant: Meta Platforms Inc.; Defendant: Facebook Ireland Limited (Meta Platforms Ireland); Defendant: Facebook Canada Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
11 October 2024
Procedural Posture
Proposed Class Proceeding / Interlocutory Motions Decision (motions to Strike and Jurisdictional Motions)
Outcome
Motions partly granted and partly dismissed: personal jurisdiction over Irish defendants found; territorial and subject‑matter jurisdiction to apply ss.45 and 47 to foreign agreements upheld in principle; claims under ss.45, 46 and 47 struck as plain and obvious failures; s.52 misrepresentation claim allowed to...
Legal Topics
Section 45 Competition Act, Section 46 Competition Act, Section 47 Competition Act, Section 52 Competition Act, Personal Jurisdiction and Attornment, Territorial Jurisdiction / Real and Substantial Link, Motion to Strike (plain and Obvious Standard), Leave to Amend, Bid‑rigging, Header Bidding
Source Language
English
Competition Law Civil Procedure Class Actions Private Law – Misrepresentation International/territorial Jurisdiction Section 45 Competition Act Section 46 Competition Act Section 47 Competition Act +7 more

Case Brief

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Parties

Pass Herald Ltd.

Plaintiff

Google LLC

Defendant

Google Ireland Limited

Defendant

Google Canada Corporation

Defendant

Meta Platforms Inc.

Defendant

Facebook Ireland Limited (Meta Platforms Ireland)

Defendant

Facebook Canada Ltd.

Defendant

Procedural Posture

Proposed Class Proceeding / Interlocutory Motions Decision (motions to Strike and Jurisdictional Motions)

Legal Issues

  1. 1 Whether this Court has personal jurisdiction over Google Ireland and Facebook Ireland
  2. 2 Whether the Federal Court has territorial and subject‑matter jurisdiction to apply ss.45 and 47 of the Competition Act to agreements entered into outside Canada
  3. 3 Whether the pleading discloses a reasonable cause of action under ss.45, 46, 47 and 52 and whether parts must be struck

Ratio Decidendi

The Court held that the Irish defendants had attorned to jurisdiction by joining motions and thus personal jurisdiction exists; federal courts can adjudicate ss.45 and 47 in respect of foreign agreements when the 'real and substantial link' test is met and Parliament has granted jurisdiction; on the pleadings it was plain and obvious that claims grounded in ss.45, 46 and 47 are deficient (NBA and alleged unwritten terms are vertical or speculative and not agreements between competitors and thus doomed to fail) and those claims were struck without leave to amend; the s.52 misrepresentation claim survives and will proceed.

Court Disposition

Motions partly granted and partly dismissed: personal jurisdiction over Irish defendants found; territorial and subject‑matter jurisdiction to apply ss.45 and 47 to foreign agreements upheld in principle; claims under ss.45, 46 and 47 struck as plain and obvious failures; s.52 misrepresentation claim allowed to...

Orders

  • Google motion dismissed in part: request to stay or dismiss for lack of personal jurisdiction over Google Ireland Limited denied; request to stay or dismiss for lack of subject matter jurisdiction denied; request to strike Claim insofar as it pleads s.52 denied
  • Google motion granted in part: Claim struck as against Google for failure to disclose reasonable cause of action under ss.45, 46 and 47; those claims struck without leave to amend