The debate over requiring greater disclosure of the funding sources for amicus briefs was itself at the center of a friend-of-the-court brief filed this week in the U.S. Court of Appeals for the Ninth Circuit, as part of Google’s appeal over Google Play platform changes.
University of Masssachusetts Amherst political science professor Paul Collins Jr. wrote that public records show numerous amici supporting Google in the underlying antitrust case have had financial ties to the company. He urged the panel to view those filings with skepticism.
“Google has deployed the ‘amicus machine’ in numerous high-profile cases, using amici with financial ties to Google to amplify its arguments without disclosing those relationships,” Collins’ brief stated. “Google’s apparent use of these tactics is evident in this case, where many of its amici have a history of receiving substantial funding from Google.”
Google did not return a request for comment.
Collins’ amicus brief did not address the merits of Google’s underlying legal fight against “Fortnite” maker Epic Games, which convinced a jury in 2023 that Google illegally wielded monopoly power over Android app distribution and in-app payments. Instead, Collins called for greater transparency in amicus funding, which comes as a judiciary committee considers tweaking Rule 29 of the Federal Rules of Appellate Procedure to require amicus filers to more broadly disclose financial ties to parties and nonparties.
The current rule requires amici to disclose whether a company provided funding specifically to prepare their brief.
U.S. Sen. Sheldon Whitehouse of Rhode Island and other Democrats have said tougher disclosures would prevent parties with deep pockets from manufacturing support through amici and skirting page limits, but Republican lawmakers and a Fifth Circuit judge have slammed broader disclosure as a threat to the First Amendment right to free speech.
Here, Epic Games conditioned its consent to amicus participation on amici disclosing whether they received funding in the past year from a party or another amicus, the company confirmed to the National Law Journal.
Collins stated in his brief that most amici supporting Google declined to disclose the information and instead sought leave of the court, which is permitted under the appellate rules.
Collins alleged that amici with ties to Google include the U.S. Chamber of Commerce and the Washington Legal Foundation. Collins stated those two organizations and other amici appear on Google’s list of “politically-engaged trade associations, independent third-party organizations and other tax-exempt groups that receive the most substantial contributions from Google’s U.S. Government Affairs and Public Policy team.”
“Amicus does not wish to impugn the integrity or motivations of any of the organizations, lawyers, scholars, judges, or experts named above,” Collins wrote. “But taken together, this veritable nesting doll of Google influence demonstrates the extent to which a deep-pocketed party can use its wealth to shape not only case outcomes but law and public policy generally.”
Collins is represented by Alexander Aronson of Court Accountability, a liberal organization which states on its website that it is “fighting court corruption [and] building toward a better democracy.” Aronson, a founder and the executive director of the group, served as Whitehouse’s chief counsel.
Neither the Washington Legal Foundation nor the U.S. Chamber of Commerce responded to requests for comment.
The Washington Legal Foundation, in its motion for leave to file its amicus brief, declined to make the disclosures, saying they exceed Rule 29’s requirements.
And in its motion for leave, the U.S. Chamber of Commerce stated it “maintains the confidentiality of its membership” and would not provide the requested information.
“An important function of the Chamber is to represent the interests of its members in matters before Congress, the Executive Branch, and the courts,” the motion stated. “To that end, the Chamber regularly files amicus curiae briefs in cases, like this one, that raise issues of concern to the nation’s business community.”
The U.S. Chamber of Commerce has also opposed tougher amicus disclosure rules.
Under the proposed amendment, an amicus brief would need to disclose any party or its counsel that has “a majority ownership interest in or majority control of” the entity submitting the brief, as well as if they have contributed “an amount equal to 25% or more of the total revenue of the amicus curiae for its prior fiscal year.”
There will be a hearing on the proposed rule change for greater amicus funding disclosure on Feb. 14.
Google, in its Ninth Circuit appeal, is challenging the jury’s verdict and U.S. District Judge James Donato of the Northern District of California’s remedial order that the company open its Play Store to competitors for three years.