Searching the docket in Epic Games v. Google is a lot like using Google these days: everything you want is buried under Google-sponsored crap.
At least that’s the argument advanced in a new amicus brief from Court Accountability Action, a nonpartisan judicial anti-corruption organization, filed on behalf of Professor Paul Collins Jr., Professor of Legal Studies and Political Science at UMass-Amherst. The organization argues that many of the amici cluttering the docket in the Ninth Circuit’s ongoing antitrust case aren’t so much friends of the court as friends of Google.
And paid for it.
Yes, yes, an amicus brief to complain about amicus briefs. But the extent of Google’s “Amicus Machine,” as the brief dubs it, is really something.
Additional amici have recently entered business relationships with Google or received financial support from Google’s “Founders Fund.” All told, of the eighteen merits-stage amicus briefs filed in support of Google in this appeal, sixteen include amici with documented financial ties to Google.
Wow, 16 out of 18. There’s a googol-to-one chance that’s a coincidence. And that’s not even the most extreme example involving Google. In the recent Section 230 case before the Supreme Court, the brief notes that the nonprofit Tech Transparency Project “found that 44 parties that signed amicus briefs in support of Google’s position in the Supreme Court case [were] funded by or linked to Google.”
I find amicus briefs largely a waste of time. There are exceptions. If the government takes the time to file as a friend of the court, it’s worth noting. And there’s a cottage industry for amicus briefs advancing unhinged alternative history that real litigants are too embarrassed to touch but Alito and Thomas are happy to parrot. But generally speaking, they’re fundraising artifacts created to impress donors and end up in the judge’s trash can.
However, if a party can coordinate with a number of related entities, not just to avoid duplicative arguments, but to divvy up the arguments in the case across multiple briefs, they can circumvent page-limitation rules and craft the litigation equivalent of an Ancient Aliens circle jerk where every crank points at each other’s conclusion and calls it confirmation. It also opens the door to introducing assertions of fact that Google can cite later “that were untested during the adversary process below.” Troublingly, it’s a well-oiled machine at the highest levels:
These repeat players share resources, recruit “elite” counsel, deploy “amicus whisperers” and “wranglers,” and tailor factual and legal narratives for judges and justices. The result is dockets filled with meticulously prepared outside input, often packaged as objective expertise but strategically designed by the litigants to influence outcomes. This networked process ensures that certain well-funded viewpoints, data, and policy arguments are presented in a compelling, rehearsed chorus. Though the federal appellate rules encourage coordination among litigants and their amici “to the extent that it helps to avoid duplicative arguments,” this highly orchestrated influence apparatus goes well beyond avoiding duplication.
And while you can’t necessarily control for ideological fellow travelers, something could be done about folks with financial ties:
Yet the current federal rules governing disclosure of amicus funding allow parties to evade disclosure of their financial connections to amici. Proposed changes to Rule 29 intended to address these deficiencies are pending before the Judicial Conference of the United States.
How do they get around current rules requiring financial disclosure? As the brief explains, a party-in-interest can donate to the general operating fund of the amicus and if the filing is prepared out of those resources rather than a direct payment for the brief, companies take the position that the rules don’t require disclosure.
That said, the rules do require an amicus filing to secure either consent from all parties or leave of the court. In this case, Epic asked these amici to provide the level of disclosure contemplated by the proposed new rules. It was not well-received.
The vast majority of amici supporting Google—sixteen out of eighteen briefs—declined to make these disclosures and instead sought leave of the Court. Several raised objections to Epic’s requested disclosures, including on the grounds that the disclosures would exceed the requirements of Rule 29, that Epic’s conditions were “impossible to satisfy,” and that the amicus “maintains the confidentiality of its membership.”
The brief notes that Google doesn’t even try to hide the fact that it’s a member of the U.S. Chamber of Commerce, but that, when asked to disclose this fact in this case, the Chamber refused saying that it “maintains the confidentiality of its membership.” And while there’s faux nobility in citing a constitutional right to make anonymous donations, these groups don’t have to intervene in their members’ cases. The whole point of an amicus is that they aren’t obligated to write anything at all. They’re the answer to the question no one asked. If they’re so concerned about protecting their members from scrutiny, maybe don’t file an amicus brief.
And maybe these amici aren’t just third-party contractors for Google. But that’s something the court should be able to evaluate with the benefit of complete transparency. Though these groups likely protest too much because there’s a business model to collect “member” fees to circumvent reporting requirements and then hide the direct relationship behind “confidentiality.”
There’s a sad irony in Google’s involvement in this practice. The search engine that took over the internet began its life as the unfortunately named BackRub and the design philosophy that the best way to get to the truth is to look backward at who’s hyping up the page. As opposed to counting how many times the website shoved key terms into its copy, Google decided the value was in scouring the backlinks to figure out where the traffic comes from.
Google understood the value of transparency at one point.
(Amicus brief provided on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.