The U.S. Supreme Court declined on Nov. 18 to take up an appeal from a South Carolina agency arising out of a multistate antitrust lawsuit against Google.
The 17 states suing Google claim that the company’s online display ad business is an illegal monopoly that runs afoul of federal and state antitrust laws. Google denies that it violated antitrust laws and said many government agencies have complied with its requests for information.
South Carolina is a plaintiff in the lawsuit, but the South Carolina Department of Parks, Recreation, and Tourism—subpoenaed by Google—contested the subpoena, arguing that it was not an “arm of the state” and did not have to honor it.
The ruling leaves in place a June order by the U.S. Court of Appeals for the Fourth Circuit that requires the South Carolina department to share records with Google that the company claims it needs for its legal defense.
Chief Justice John Roberts had turned away an emergency request on Oct. 23 from the South Carolina department to stay the Fourth Circuit ruling.
In South Carolina, Alan Wilson, the state’s attorney general, sued Google under the South Carolina Unfair Trade Practices Act.
The state said that almost all of the records that Google demanded “are trade secrets exempt from production under the South Carolina Freedom of Information Act.”
The state also argued that when Wilson sued, he was acting in a “parens patriae” capacity. Under the parens patriae doctrine, a state acts to protect its citizens.
This means that, according to South Carolina, Wilson is not acting for a specific state agency or department and does not have custody of records.
The department asked U.S. District Judge Joseph F. Anderson Jr. to quash the subpoena, arguing that it violated the department’s 11th Amendment-based sovereign immunity in federal courts.
The court ruled against the department in July 2023, finding that any immunity that the state may have had “would have been waived by South Carolina’s voluntary involvement” in the antitrust lawsuit.
And because Wilson suggested that the records could be obtained by subpoena, the court found that “it would be fundamentally unfair to punish Google for simply following South Carolina’s instruction to subpoena the requested documents because South Carolina allegedly lacks custody, control, and possession [over them],” Anderson wrote.
In June, the Fourth Circuit affirmed.
The court found that because Wilson, “who is indisputably authorized to bring a case on behalf of the State in federal court, invoked the jurisdiction of a federal court by intervening in the antitrust action against Google,” the state waived its immunity.
In waiving its immunity, it “nullified” any immunity claim that any of its arms, including the department, could have made in court, the Fourth Circuit determined.
The Epoch Times contacted the attorney for the South Carolina department, Robert Walker Humphrey II, and the attorney for Google, Neal Katyal, for comment but received no replies by publication time.
