COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT FB. / Op glk hs SKYHOOK WIRELESS, INC., ) ) tee ) Plaintiff, u ) CIVIL ACTION } NO, 2010-03652-BLS1 GOOGLE INC, j ) Defendant. ) PUBLIC SET: SKYHOOK’S OPPOSITION TO GOOGLE’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENTCOMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT ) SKYHOOK WIRELESS, INC., a Delaware ? corporation, } Plaintiff ) ) v. ) hil Aeon i, 2010-03652-BL82 GOOGLE INC., « Delaware corporation, ) ) -FIGED-SUBIEET-TO-MOTION EOREMEOUNDMENT. Defendant. 3 #SSEIBHSBISSESSSHESUSHSSSHBSUSESBSLSSHSISSBISHDSSOS SKYHOOK'S OPPOSITION TO GOOGLE'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR Y JUDGMENT 1, PRELIMINARY STATEMENT Inits "motion to dismiss or, in the altemative, for summary judgment” (the "MSJ"), Google Ine, ("Defendant") ignores a wealth of evidence from wiiich a jury could readily infer that Defendant's improper conduct is the cause of Skyhook's lost business with both Samsung and Motorola, Defendant also atterapts to divert the Court's attention from that evidence by focusing on out-of-context events that occurred after Defendant illegally pressured Samsung and Motorola to exclude XPS from their Android mobile devices, and thus tells an incomplete story. Defendant cannot so easily escape lisbility for its actions. For any of the five reasons deseribed below, summary judgment should be denied. First, Defendant's claim that Samsung stopped shipping XPS solely because of a single email discussion about XPS's pricing and performance does not square with the other evidence that Samsung would be shipping XPS on Android devices bui-for Defendants conduct, This is made clear by the f2ct {at i ES 82225225 3s vilincly shipping XPS on its Android devices without complaint unti] Defendant made several misrepresentations about Skyhook, and then forced Samsung to stop shipment, The evidence also shows that Samsung actively sought to continue shipping XPS on Ancroid, but Defendant ane sierefused to allow the shipments for reasons that are in dispute. Why are Android devices treated differently by Samsung? Not because of Skyhook’s pricing or performance, but because Defendant improperly pressured and forced Samsung to drop Defendant's competitor from the platform Defendant controls. Second, the Court has already considered Defendant's MSJ arguments and evidence — bocause Defendant presented the same arguments and evidence in opposition to Skyhook's preliminary injunction motion —and the Court determined that the record "leaves considerable ‘uncertainty as to Motorola's motivations, and as to who if anyone, as between Skyhook and Motorola, may have breached," (Mem, of Decision and Order on Pl’'s Mot, for Prelim. In. ("Order PI") at 7.) The present record is no more developed now than when the Court noted that “considerable uncertainty” remained concerning a material fact in this litigation.* ‘Third, the record supports an inference that Motorola breached its contract with Skyhook for reasons other than those described in Motorola's written notice. As with Samsung, Motorola, reversed course only after Defendant intervened and only after Defendant refused Motorola's pleas to use XPS. Moreover, Defendent’s argument that Motorola is responsible for saising, compatibility concems ignores the undisputed evidence that Motorola considered those eoncems to be resolved — until Defendant interfered and caused Motorola to change its position. And the record is devoid of evidence to support Defendant's argument now that it ordered Motorola to stop shipment on XPS-enabled devices to protect Defendant's purported contractnal rights. Fourth, because questions remain about Defendant's tortious conduct, and because such interference supports a claim under M.G.L. c. 934, the law makes clear that summary judgment 4s equally inappropriate on Skyhook’s third cause of action, Fifth, the law counsels that claims involving an actor's motives should not be resolved by summary judgment. Here, each cause of action puts at issue Defendant's motives for forcing XPS off of Android devices. The record clearly supports the inference that Defendant was motivated by its inability to otherwise compete with Skyhook, and that Defendant acted in * As noted below, the record is no better informed about what Defendant's true ‘motivations were for forcing XPS off of the Android-enabled devices, or about all of the factors that caused Motorola to breach its Skyhook contract, because Defendant has refused to make a full production of relevant documents. On that basis alone, the MSJ should be denied, vom -2-retaliation for the public embarrassment caused by announcement of the Skyhook-Motorola partnership. Defendant argues that it had other, lawful motives for its interference, but the determination as to what actually motivated Defendant and whether Defendant engaged in unfair and coercive tactics to kill Skyhook's relationships with its customers should, as a matter of law, be decided by the jury. For any of these reasons, the Court should deny summary judgment. The record, as it ‘stands, supports the inference that the decision of Motorola and Samsung to drop XPS from their Android devices was not a legitimate business decision but was, instead, the result of| Defendant's i |-motivated and improper means. If the Court is not persuaded on the current record, it should reserve on the MSI until Skyhook has had a full and fuir chance to discover relevant information, including information thet is inthe exclusive control of Defendant, Samsung and Motorola. See Mass. R. Civ. , 56(f). Defendant's steadfast refusal to provide any discovery beyond the “limited discovery produced early in the case should not be rewarded with summary judgment on an incomplete record, Finally, Defendant has attempted to end-ran the Court's Order deeming the earlier-filed motion to dismiss withdrawn by tacking dismissal arguments onto the end of the MSJ. Those arguments should be stricken because the Court did not grant Defendant leave to make such a response to the Complaint, and certainly not after Defendant's deadline to respond to the Complaint. In any event, for the reasons already detailed in Skyhook’s opposition to the eailier- filed motion to dismiss, the Complaint includes numerous well-pled allegations conceming Defendant's improper motive and means, and any motion to dismiss should therefore be denied, mh STATEMENT OF FACTS The Court is by now familiar with the background of this case, which will be summarized only briefly here. AL Skyhook Establishes Partnerships With Motorola And Samsung To Implement XPS, Skyhook's Hybrid Positioning System. In September 2009, Motorola agreed to ship Skyhook's XPS on most of Motorola's,Android devices. (PASF 4 12.)' The two companies spent several months on an intense integration and optimization process, which included Motorola applying the objective compatibility test established by Defendant. (Ie 13.) Motorola's XPS-enabled devices passed that test. (Jd. 914.) Despite passing the test, in October 2009 and later in February and March 2010, certain Motorola engineers identified XPS's retum of hybrid (i.e, non-GPS) data from the GPS provider as a "potential" compatibility issue. (Jd. 415.) After careful consideration of these concems, Motorola determined that XPS's retum of non-GPS data from the GPS provider did not create on Android compatibility issue, and Motorola moved forward with the Skyhook venture. (Jd 16.) As plans for Motorola to launch its XPS-enabled devices were finalized in April 2010, Skyhook issued a Motorola-approved press release announcing their partnership. (Ud, ]17.) Shortly before the press release, on April 1, 2010, Skyhook and Samsung also reached an agreement to deploy XPS on Android mobile devices. (Id. 18.) : B. Defendant Interferes With Skyhook’s Motorola And Samsung Relationships. ‘The April 2010 press release announcing the Skyhook-Motorola partnership sent shockwaves through Google and, in particule, its location positioning group. (PASF 420.) Defendant considered the Skyhook-Motorola partnership to be a "devastating" competitive loss, and decided to put a stop to that partnership. (/d. ff 22-24.) In early May, Defendant met with Motorola and, for the first time, made claims that XPS caused a "data contemination' issue that supposedly would prevent Defendant from collecting. data for its location database. (Id. $f] 25-26.) Throughout May, Defendant considered various ‘ways that it could require OEMs to use Google's location service instead of Skyhook’s XPS. (Id. 124.) Despite pressure from Defendant to remove Skyhook from its soon-to-be-released mobile devices, Motorola continued to seek Defendant's approval to use XPS, and asked for a policy that ‘would explain Defendant's refusel to approve XPS. (Id. $] 29-30.) This caused Defendant's employees to scramble to find an answer because no such policy existed. (Id. 131.) Because Defendant was unable to find a policy that would prevent OEMs from using ‘XPS, it decided to label XPS's hybrid location system an Android "compatibility issue." (Id. J ? All citations in the form of "PASF 4 __" are to Plaintifs Additional Statement of Material Facts in Support of its Opposition to Defendant's Motion for Summary Judgment,