The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals upheld a lower judge’s order that said Google can obtain advertising-related records from the South Carolina Department of Parks, Recreation and Tourism.
South Carolina is a plaintiff in the lawsuit with Texas and other states accusing Google of overcharging for its advertising technology. The tourism agency, which is not named as a plaintiff in the case, argued that it was immune from Google’s subpoena for records.
Circuit Judge G. Steven Agee, joined by Circuit Judges Stephanie Thacker and William Traxler Jr said in Wednesday's decision that the South Carolina tourism agency was an “arm of the state” and so it “enjoys no independent immunity.”
Google, the South Carolina tourism agency and the state’s attorney general’s office did not immediately respond to requests for comment on Wednesday.
Texas and other states sued Google in Texas federal court in 2020 for allegedly abusing its power over digital ads. Google has denied the allegations.
As part of its effort to dismiss the case, Google sought records from the South Carolina agency about its use of advertising products, including any "assessment of Google’s products as well as Google’s competitors."
The subpoena dispute tested whether and how state agencies are distinct from state plaintiffs in the eyes of the courts.
Attorney Walker Humphrey, arguing for the state agency in the 4th Circuit, said not every action by a state attorney general is taken on behalf of the entire state. “The state does not move as one giant indivisible mass,” he said.
The appeals court rejected that view. Agee said the state attorney general represents the “state.”
South Carolina’s participation in the antitrust lawsuit against Google “resulted in a complete and irrevocable waiver” of state immunity, Agee wrote.
The case is South Carolina Department of Parks, Recreation and Tourism v. Google LLC, 4th U.S. Circuit Court of Appeals, No. 23-1849.
For S.C. parks department: R. Walker Humphrey II of Willoughby Humphrey & D’Antoni
For Google: Jason LaFond of Yetter Coleman
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