A federal judge has dismissed an Atlanta-based digital advertising company’s antitrust suit against Google, ruling—for the second time—that its complaint was an improper “shotgun pleading” containing “numerous immaterial facts to support the causes of action” alleged in the lawsuit.

Shotgun complaints have long been frowned upon in the Eleventh Circuit, which is on record as having “little tolerance” for such pleadings.

The 2019 complaint filed in the U.S. District Court for the Northern District of Georgia by Inform Inc. named Google, YouTube, parent company Alphabet and 100 “John Doe” defendants for multiple claims, including violations of the Sherman Antitrust Act.  

The complaint said the defendants used their overwhelming online presence to monopolize the online ad market and force smaller competitors to adopt Google’s browser and advertising standards or be shut out of the market.  

Last year Judge J.P. Boulee deemed the complaint a “quintessential” shotgun pleading and, without ruling on the merits, allowed Inform to amend it to conform to court standards.

The Eleventh Circuit defines shotgun pleadings as those which incorporate the allegations in each count into the next; cite conclusory, vague or immaterial facts in the counts; fail to separate each cause of action for each count; or assert multiple claims against multiple defendants without identifying which claim applies to which defendant.  

In dismissing the amended complaint on Monday Boulee wrote that, like the original, it was still “cumbersome and suffers from some of the same deficiencies as the first.”

“While the amended complaint no longer has multiple counts that adopt the allegations of the preceding counts and does not fail to separate each cause of action into distinct counts,” he wrote, “at 89 pages, the amended complaint is in no sense a ‘short and plain statement of the claim’ required by the Federal Rules of Civil Procedure. 

“Particularly concerning to this court is Plaintiff’s inclusion of numerous conclusory, vague and immaterial facts not obviously connected to any particular cause of action,” he said. “In fact, plaintiff still incorporates more than sixty paragraphs into each cause of action. Plaintiff also never specifies which defendant is responsible for which act or omissions; instead, Plaintiff simply lumps the conduct of defendants together.”

Although the amended complaint “corrects some of the pleading deficiencies and does not demonstrate all the previously identified characteristics,” the judge said, it was still a “quintessential ‘shotgun’ pleading” such as the Eleventh Circuit has “condemned repeatedly.” 

While that determination was enough to dismiss the suit, Boulee also said dismissal was required, because Inform had not shown antitrust standing.

A private plaintiff asserting antitrust claims in the Eleventh Circuit must both prove it has suffered an antitrust injury and that it is an “efficient enforcer” of the antitrust laws, he said.

Inform asserted that the defendants’ anticompetitive actions “resulted in significant monetary injury to plaintiff, as well as higher prices paid by consumers for retail products, higher prices for advertising and the forcing of plaintiff and others to use Google products and services,” Boulee wrote, citing the amended complaint. 

“After review, this court finds that these allegations are too conclusory to establish an antitrust injury. Here, plaintiff provides no factual support to show that defendants weakened competition beyond plaintiff’s claim that plaintiff was put out of business.” 

Inform’s claims were also too attenuated to make it an “efficient enforcer” of an antitrust action, he said, observing that, because nonparties including advertisers, online publishers and a rival software company Adobe “suffered a direct injury, they are better suited to bring this action.”

Despite Boulee’s observation that Inform claimed it was out of business, its website appeared to still be active and soliciting business.

Inform is represented by John Herman, Carlton Jones, Peter Jones and Serina Vash of Herman Jones; Herman did not reply to a query.

Google, Alphabet and YouTube are represented Kimberly Broecker, Carol Pruski and John E. Schmidtlein of Williams & Connolly in Washington, D.C., and Eric Schroeder and Brian Underwood, Jr. of Bryan Cave Leighton Paisner in Atlanta. Neither they nor Google’s press office responded to a query on Wednesday.