C011MONWEAL TI-I OF MASSACHUSETTS

SUPERIOR COURT DEP ARTMENT OF THE

TRIAL COURT

~ :f1:?~;;?J~

j CML ACTION ~ CtJ

) NO. 2010-036S2-BLSI

)

)

)

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SUFFOLK, SS.

SKYHOOK WIRELESS, INC.,

Plaintiff,

v.

GOOGLE INC.,

Defendant.

PUBLIC SET:

DEFENDANT GOOGLE INC.'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

COf'vlj1..'IONWEALlll OF MASSACHUSETTS

SUFFOLK, SS,

SlIPr-:I.:.IUR COURT DLPARTiv[J:'NT 0[;' rHE TRIAL COURT

" .. ''''-''-'' ---- .. ---- ,

Plaint] 11:

) ) ) ) ) }

CIVIL ACTION

NO, 20 I 0-03651~BLS2

SKYHOOK WIRELESS. INC ..

v,

GOOG LI: INC.,

Defendant.

nEFENDANT GOOGLE INC.'S MEMORANDUM OF LAW IN SlWPORT OF ITS I\'IOTION TO DISMISS OR FOR SUMMARY ,JUDGMENT

Skyhook Wireless, Inc. ("Skyhook") commenced suit on September 15, 2010 alleging

that Google Inc. ("Google") used Android compliance requirements us an unfair and deceptive

pretext 10 tortiously interfere with Skyhook's relationships with Motorola Inc. ("'Motorola") and Samsung Corp. ("Samsung"). At the time the action was filed, Skyhook knew-but neglected to

disclose to this Court or to Google=-that (I) Motorola already had terminated its contract with

Skyhook I'm reasons having nothing. to do with the allegedly "prctextual" Android compatibility

requirements: and (2) Samsung had informed Skyhook in writing that it chose not to use

Skyhook's product because or performance and price issues. Skyhook also tried to hide these

facts by asserting that a non-existent "settlement discussion privilege' covered correspondence

from Motorola stating why it actually terminated its contract with Skyhook. Docket No.3],

I laving forced Google to incur substantial expenses responding to a baseless complaint, expedited discovery requests amounting to a thinly veiled fishing expedition, and a failed motion for a preliminary injunction. Skyhook has luid bare the meritless nature of its claims.

Skyhook's claims fail us a matter of lav ... under both Rule 12(b)(6) and Rule 56 [or the

following. independent reasons:

1. The undisputed factual record establishes that Motorola's decision not to install

Skyhook's prod uct onM otorola Android devices was not the result of any improper conduct by Google. Rather. becu use Sk vhook insisted that 1\1 otorolu breach Motoro las pre-existing contractual obligations to Googlc and others by either refusing to install Googles location positioning system all Android mobile devices or disabling Google applications from collecting location data J[OI11 end users, Motorola decided not to install Skyhook's product.

2. Skyhook cannot Garry its burden of proving that Google caused Motorola or

Samsung to breach (my contructual obligation owed to Skyhook, and admits that (a) the Android compatibility issue first was raised by Mcnorola. nut by Google: and (b) the issues with Motorola were satisfactorily resolved months before this action was lilcd but were nevertheless used as a pretext by ,Skyhrwk Ior its baseless complaint that Googlc had interfered with Skyhook's contractual relations.

3, Accepting the allegations of the complaint as true, the only "interference" alleged

by Skyhook is that Google did not consent to Skyhook's attempt to modify the standards required for phones that bear the Goog)e"f1>1 and Android™ trademarks and that use Google applications, such as Googlc Maps, Gmail, and YouTube, which must include Googles location positioning system. Because acting in one's economic self .. interest is not improper, Skyhook's claims for interference with contractual and advantageous relations fail as a matter of law and should be: dismissed.

4. Skyhooks ch. 93A claims also Fail for three independent reasons: (a) ch, 93A

does not prohibit Google's alleged refusal [0 deal with Skyhook as a particlpant in the Android market; (b) the ch. q]i\ claims arc entirely derivative of' Skyhook's rneritless tortious interference claims: and (C') Coogle' s alleged conduct did not occur "primarily and substantially" within Massachusetts.

I. STATEMENT OF UNDISPUTED FACTS!

A. Coogle Has Contracts with Mororula and Samsung to Manufacture Android M () bile Devices.

Android is Gucglcs open source operating system Inr mobile devices. Cornpl. ~l 18.

Google has contracts with various equipment manufacturers, including Motorola and SUmStU1g,

to manufacture and market mobile devices that use Googles Android operating system (the "Manufacturing Contracts"). ld ~~I 26, 34; DeC Ex. I; DeY Ex. 2.~ Googles Manufacturing Contracts with Motor-Diu and Sarnsung became effective on May L 2009 and April I, 2009,

respectively. Der. Ex. 1 at GOOG SKY S'T' 00119847: Dc!'. Ex. :2 at GOOG_SKY_ST

000]1441.

Gcogle also has location positioning technology. known as Gcogle Location Service

("GLS"). that allows rnobi le applications to Lise and share the current location of mobile computing. devices such as smart phones. Compl, ~l 14. Google LlSCS location data collected

from end-users for various purposes. Id. ~[~1 16-17.

The Manufacturi ng Contracts grant Motorola and Samsung the right. subject to certain tenus and conditions, to rnanufncture Android mobile devices employing popular Google Mobile

Services applications ("GMS Apps"), such as Google Maps, Network Location Provider (both of

which rely on GLS). Gmail. and You'Iube, as well as a license to lise the Ooogle™ and

Android™ trademarks.

See Del: Ex. J at GOOG_ SKY ST,00]19848 at § 2.1.1,

GOOG_SKY_ST.OOl19853 at §7.1-.3: DeC. Ex. 2 at GOOG.SKYST.OOOII442 at §2.1, GOOG_SKY .. ST 00011446 ut ~ 7.:'-.3. Some of the GM.S Apps on Motorola Android devices

collect location data 11'0111 the mobile devices in which they arc installed. DcC Ex. 5 at

SKY00007259; Compl. '1 17. See a/so Memorandum of Decision and Order on Plaintiffs

Motion lor Preliminary Injunction {"Ordd'] at 8-9. In their pre-existing contracts with Gocgle,

Motorola and Samsung each expressly agreed not to interfere whh the operation of any GMS

Apps installed on Android devices or to interfere with the end-user data collected by GTv1S Apps

I Attached us Exhibit A In this mernorandurn is u cbronolouv ofkcv facts with citutions to the record. ~ Defendant's exhibits ure auachcd to the AlTiuul'll of Jonull~un M:.t\lbllllt1.

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on Android mobile devices. Del'. Ex. 1 at GOOG_ SKY_ST 00 L 19850 at § 1.5: Def, Ex. 2. at oooo SK v S'j ;I! oon 1144:1 at i:i } 5: .1 ('I! also F!.rncly fkp. at 15:1 :S-l O. 196 :3-7.

B. Motorola's Contract with Skyhook and Muturula's Termination Decision

Skyhook has its own location positioning system. known as XPS, Morgan Decl. ~ 2;

Cornpl. ~I J 2. Like {jangle, Skyhook uses its location positioning system to collect data Cram

end-users for various purposes. Morgan Dccl. '1 5; Compl.'l 16.

In September 2009. Motorola and Skyhook entered into an Embedded Software License and Distribution Agreement (the "Motorola-Skyhook Agreement"). Cornpl, ~1 24: DeC Ex. 3.

The r v Iotorola-Skyhook Agreement called for Motorola to install XPS on Android-based wireless

devices that usc the "Motorola Android PI at form" (or "lv1AP") and arc manufactured by

Motorola pursuant to its contract wi th Google

Der. Ex. 3 at SK Y00005468 at § 3.1 (a), (g). See also Cornpl. at p. 7 (alleging that Skyhook became the "[cjxclusivc' location services provider on Motorola Android phones).

Section § 3. J (a) of the Motorola-Skyhook Agreement expressly provides that Motorola's

usc of XPS is subject to Motorola' s pre-existing contractual obligations to qualified third parties, such as Google, DcC F:x. 3 at SKY00005468 at § 3.I(a):1 Section § 3.1(e) oCthe Motorola-

Skyhook Agreement further provides that, subject to certain terms and conditions, no software

embedded on the MAP devices except XPS may collect, aggregate, or store location data. Def.

Ex.3 at SKY00005468 at * 3.1(0).

On June 18,2010. Motorola notified Skyhook of Motorola's contractual obligations to

telecommunications carriers and Gcogle 10 install GrvlS Apps that, like XPS. collect location data from end-users. on Android-based Motorola devices. Def Ex. 5 at SKY00007259.

Skyhook objected and initiated the formal dispute mechanism under its contract with Motorola,

~ Gcoglc is a "qunlifled third party" under the Motorolu-Skyhook Agreement. defined by the Agreement us an entity (1) "which IUL~ the contrnctual right over Motorola to substantially define the features, functions and overall design ofsuch iVlAP Wireless Device' or (}) "u certifying entity which has the right to define and approve the technical specifications required to be a [sic I Android compliant device and which has declared the Embedded Software to be non-compliant." DeL Ex. 3 at SKY0000546S 01 § 3.1{a).

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asserting that XPS was the only application on Motorola Android devices that had the right 10 collect location data. DeC Ex, :'i at SKY00007259, Skyhook also proposed tha: if Motorola

continued to install GlvIS Apps on Android devices, Motorola should disable their data collection

function. Del'. Ex. 5 ill SK Y00007259.

On July 3. :2010. Motorola explained to Skyhook why Motorola was contractually

obligated to install GtvlS Apps in their fully functional form:

II II" we were to load any third party software product (i.e .. Skyhooks XPS software) that cause [sic] the OMS Apps not to be fully implemented. loading such software would mean that (a) our rvlAP device would no longer be compliant with our Google OMS Apps agreement. (b) Gocgle would therefore not provide us the urvls Apps required under our carrier contracts, and (c) we would therefore he in breach of our carrier contracts.

Del". Ex. 6 at S K Y00007161.

Despite being informed that disabling orvIS Apps would be a breach of Motorola's contractual obligmions to Google. Skyhook continued to assert that it had the exclusive right to collect location datu from end-users of Motorola Android devices. See Def Ex. 5 at

SKYOOOOn59; Def Ex. 7 at SKY00007272. Shortly thereafter. Motorola terminated its

agreement with Skyhook, citing three reasons:

(i) Skyhook made "inaccurate and unauthorized statements to the press" by issuing an unauthorized press briefing (DeC Ex. 7 at SK. YOOOOnn~ Dcf. Ex. 3 at SK '1'00005470-71 at * 9: set.' also Del'. E. x. 9 at SKY00005912):

(ii) Skyhook "failledj to deliver a functioning product that can be loaded on Motorola Android-based products" (a reference to Skyhook's attempt to prevent Google 1'1'l11l1 exc rc ising Its contractual rights to co Ike! end-user data) (Def Ex. 7 at S K YO()007~n): and

(iii) Skyhook's railed to "continue performance during the pendency of a dispute" as required by Section 17(g) ofthe agreement. ocr. Ex. 7 at SKY00007272.

c. Samsung's Decision Not to Use XPS

On Apri I 1. 2010, Skyhook and Samsung entered into a license and distribution

agreement. Comp1.,1 33: lJeC Ex. 4 {the "Skyhook-Samsung Agreement").

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Ocr. Ex. 4 at SKY00000073 at ~§ 3.2. 1.12. SKY00000082.

On July I D. 20 10. Sumsung told Skyhook that it was n01 using XPS because of issues

with Skyhook's performance and the

Dcf Ex. 16 at

SKY0000557LJ. ,"Jill! also Shean Dcp, 93:22-24. 227: 10-13. 243: 16-24. 245 :3-6. Sarnsung never told Skyhook that the reasons it cited for not using XPS were false. Shean Dep. 246: 14-22.

D. The Android Open Source Compatibility Requirements

The term "open source" means that the source code for the Android operating system is

publicly available. permiuing any member of the public to usc the source code to create their

own mobile devices or related products, including. software and applications. S'I!I! Def Ex. 17 at

Without LIn assurance of compatibility, adding third party applications to the operating

software would cause problems for end-users, communications curriers, manufacturers,

developers and customers. Def Ex. 17 at 1-4: Brady Dep. 94: 18-95:5: 131: 18-25; Shean Dep. 143:12-18. 146:1O+:J.. Accordingly. only devices that are "Android compatible" may seck to join the Android ecosystem. DeL Ex. 17 at 4. "INJo one is required to participate. of course,"

id. at 1, and those who do not participate in the Android ecosystem remain free to use and

modify the Android operating so ltware us they see lit, so long as they do not lise Googles

trademarks. Id. at 4.

Under the Manufacturing Contracts. Motorola and Samsung are required to adhere to

Coogle's Android compatibility requirements. Googlc's agreement with Motorola provides that

"[tjhe license to distribute Google Applications in Section 2.1 is contingent upon Motorola certifying that the Device p!.:lSSCS the Android Compatibility Test Suite ["Android CTS"] and conforms to the Android Compatibility Definition ["'Android COD"[:' DeL Ex. 1 at

GOOG SK'{ ST OOl1LJS50 at * 2.7. Googles agreement with Sarnsung contains the same compatibility requirements. Dcf Ex . .2 at GOOG .. SK Y ~ST 00119950 at § 1.15:1

The Android CDD and CTS are publicly avuilable on the internet. Set'

http://~Ollrcc.umlrujd .com/compat ibi lity.

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Section 3.1 (Managed API Compatibility) or the Android CDD stales: "Device

implerru-nttniunx \HS'I '.JnT omit any managed APls. alter API interfaces or signatures. or

deviate from the documented behavior:' Def Ex. I Sat GOOG _SK Y _ ST 00029281: DeC Ex. 19 at GOOG_SKY_ sr ()0026S30~ Del: Ex. n at GOOG_SKY_ST 00063839. An "API" is an

application programming interface that enables a software program to interact with other

software and describes the ways in which particular tasks arc performed. ocr. Glossary at 3; PI.

Glossary at 2. l.ocarionlvlanagcr documentation in the Android software development kit or

SDK (development tools to create applications 1'01' the Android operating system) requires that

the GPS_PROVIOER "determines location using satellites," Dcf Ex. 20 at 3: Del'. Ex. 21 at

SKYOOOOO I 06.

E. Motorola Informed Skyhook that XPS Was Not Android Compatible.

Location positioning technology may derive locution data from three sources: (1) cellular tower triangulation; (2.) Wi-Fi access points: and (3) Global Positioning System (.oOPS").

Com pl. ~'l 9-11. CiPS returns results 01"':; to 5 meter accuracy. which other technologies cannot consistcnrly achicvc. J3nlll} Dcp, 170:5-24: Compl, ~19.

In October :2009 und again in February 20 10, months before the Motorula-Skyhook

Agreement was publicly announced, Motorola informed Skyhook that XI'S violated certain

Android compatibility standards because XPS reported non-Gl'S locations as being obtained

through GPS. De!'. Ex. 22 at SKY0000602S: ocr. Ex. 23 at SKYOO()()OOO[: Shean Dep, at 118:11-21; Del'. Ex. 24 at SKY00007021. By no later than March 2010, Skyhook knew the specific provision or the Android compatibility documentation on which Motorola relied in Jnforming Skyhook that XPS was not compliant. DcC Ex. 21 at SKYOOOOO I 06. In ernails from

February and March 20 I n. Motorola informed Skyhook that by reporting. non-GPS results through the (iPS locution provider. XPS "deviatjed] trorn [he documented behavior" of the GPS

location provider "detcrrninjing] location using satellites." See id. ~ DcI'. Ex. 18 at

GOOG_SKY_ST O[)029281: see a/so Dcf Ex. 22 at SKY00006028: Del: Ex. 23 at

SKYOOOOO()Ol. Skyhook acknowledged that XI'S reported nun-OPS locutions us (iPS locations

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and its lead engineer recognized that the issue raised by Motorola was legitimate, stating that he

"agrccld] that reporting cell locations as (iPS locations is just 100 confusing for an app." Dei'.

Ex. 25 at SKY00006058; Shean Dep. 120:14-19.

When Gcogle later learned from Motorola that XPS was reporting Wi-Fi and cellular

locution data us GPS-dcrivcd locations. it advised Motorola en May 27. 2010 that doing so

"misrepresents location information 10 end users and ,lrd party applications" and that, under the

COD, that was "not a compatible solution," Brady Dep, t61: 19-162:8: Der. Ex. 19 al GOOG_SK '(ST 00016l:lJO, In Googlcs words:

Just to be clear. lVe are definitely not asking ytJu to remove Skyhook from your solution. If you feci it improves the U X I user experience I un your devices and if" we can do that in a compatible way. by all means let's do it! Our ask is that you not provide network-derived location data (From Skyhook, Googlc or anyone else) that is advertised us OPS location data. 1M (emphasis addedi.]

On June 4, 1010. Skyhook delivered to Motorola a modified version ofXPS that reported only satellite-determined locations through the UPS location provider. Shean Dcp, 30: 19-32: 12, 37:22-38:9. ]9:19-40:12. According to Skyhook, this version of XPS "met the compatibility

requirements as specifically set forth in Googles notice to Motorola" and "negatjed] the original

basis for the alleged non-compliance." Morgan Decl. ~ 13: Def Ex. 5 at SKY00007258; see also Shean Dep, 30: 19-32: 12. 37::22-38:9. 39: 19-40: 12. Since Skyhook shipped the modified,

compliant version 01' XPS [0 Motorola. Motorola was not alleging "in any way, shape or form

that the reason it [was] not shipping XPS [was] because XPS [was] not Android compliant"

Shean Dep, 44:9-15.

Neither Skyhook nOT Motorola ever sent Google the modified. compliant version of XPS

to test for compatibility. Shean Dcp. 195: 17-196:4: Brady Dep. 216:6-9~ Del'. Ex. 8 at SKY000074J9; Shean Dcr. 32: 13-33: 1.257:1 8-20. 260:7-14.~

~ From Motorola's perspective, sending the modified, compliant version of XI'S 10 Gcogle would hove been futile. since -- as discussed ubuve -- Skyhook contlnucd lU insist that Mororolu not honor its contractual obligations to install (Jf'l1S Apps in thoir fully functional furrn, SL't! Shean Dep, 33; 15-3,1: 13: Dcf, Ex. 8.

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F. Sarnsung Never Told Skyhook thut It Was Not Using XPS Because of Andruid Cnrn patibility Issues.

Un June 1:1. 2111 {i. S:lJl1SUl1g asked Skyhook itth e XI'S on Sumsung devices was [he same

as the XPS un Motorola Android-based phones. and further inquired as to whether XPS was

Android compliant. Def Ex. 13 at SK Y00000267. Instead of sending Sarnsung the modified,

Android compliuru vcrsion ofXl'S it already had sent to Motorola. Skyhook instead told Sarnsung on

June 15, 201 D. that "Skyhook has not received any formal notification from Google/Android or

MOtorola that rv1n[orol,1 has been blocked Irom shipping devices" because of the issue with XPS.

Del'. Ex. 14 ut SK YOO()[)6S0S.

Skyhook admits that Samsung slated that it decided not to usc XPS because of performnnce and price issues and not because of any Android compatibility issues. Shean Dep,

227:10-13.94:23-95:3: see also Shean Dep. 93:22-24. 243:16~24. 245:3-6; Def Ex. 16 at SKY0000557<J, 5581. Indeed, after this litigation was filed, Skyhook admitted that "[Googles] Andy Rubin told Ted Morgan. Skyhook C.E.o .. that Google will certify Skyhook if submitted properly by a handset maker." Del'. Rx. 15 at SK Y00006412: Shean Dep, 252: 14-18.

11. ARGUI\-1ENT

A, Coogle Did Not Tortiously Interfere with Skyhook's Contractual or Advantageous Business Relations or Violate ell, 93A.

In Massachusetts, a claim for interference with contractual or advantageous relations

requires the plainti IT In prove that (l) it had a contract or a contemplated contrnct with a third party. (2) the defendant knew or that contract or rclationshi p. (3) the dclcnduntinterfered with

the contract or relationship inducing the third party to break the contract or termination the

relationships, (4} [he defendant did so by improper means or for all improper motive, and (5) the plaintiff was harmed by the defendant's actions. Draghettl \', Chmielewski, 4 J 6 Mass. 808, 816

(1994): United Truck Lensing C0I7). \', Gellman. 406 Mass. 811. S 15~ 17 (1(90). As the Appeals

Court has observed. claims 1"01' tortious interference have "become the "tort du jour' in the world

or commercial I iugation I and 1 that increases the i mporlance 0 f distinguishing truly inappropriate

behavior for which then: should be u remedy from normal competitive behavior permissible in

CJ

the marketplace." Pembroke ('OU/7I1:\' Club. Inc, 1'. Rl!gel/cy Sav. 13a11k. r8. fl. 62 Mass. App. C1.

1. Skyhook Was Nut Entitled to Deprive Coogle uf its Contractual Right 10 Collect Location Data onMotorula Android Devices.

The undisputed record refutes Skyhook's allegation that Google improperly caused

Motorola In terminate its contract with Skyhook. To the contrary. the record establishes that it

was Skyhook that wrongfully insisted that Motorola breach its pre-existing contractual

obligations 10 Googlc and other third parties by making Skyhook the "exclusive" provider of

location positioning systems on Motorolas Android devices and blocking Google from

collecting locution datu that Skyhook wanted for itself

Motorola and Samsung each entered intu contracts with Googlc pursuant to which they

obtained the right to manufacture Android mobile devices along \V11h the right to use GMS Apps

and certain (ioogk trademarks. Motorola and Sarnsung each spcci fically agreed in their

contracts with Coogle (which predate their contracts with Skyhook by several months) that they

would not interfere with the operation of any GMS Apps lnsialled on Android devices or interfere with the end user data collected by those applications."

Skyhook objected [(1 Motorola allowing Googlc's applications 10 collect locution data on

Android devices equipped with XPS. See DcI'. r·:x. 5 at SK Y00007259, Skyhook also proposed (hat Motorola disable UMS Apps installed on Motorola Android devices to ensure that XPS was

the only location positioning system that was allowed to lise the devices to collect end user

location data. DeC Ex, 5 nt SKY00007259.

Motorola refused to agree to Skyhook's demands. explaining that "if we were to load any

third party soli ware product ti.e.. Skyhook' s XPS software) that G.IlISC the Ci1\,!S Apps not to be

fully implemented. loading such software would mean that (1I} our l\,1AP device would no longer

be compliant \, iih nur (joogk .. (i\'IS Apps agrccrncru. (b) Googlc would therefore not provide us

the (ir"l'\S Aprs required under our carrier contracts. and (c) we would therefore be in breach of

" Ikr Ex. 5 at SKY0000725l1; lJef. E\. J ill GOOG SKY _ ST OD] 19S;O 3! * :::!.5: Dcr. E>;. 2. at GOOG .SK Y SI at nUll! 1·1·13 ~I ~ 2.5: see also Brad) Dep. at 155:8-10. 196:3-7,

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our carrier contracts." Def Ex. () at SI( Y00007262. As Motorola also stated: "This exact scenario was contemplatco in Section 3.1 (a) [of the Motorola-Skyhook contract]. the result of which is thin Motorola has no obligation (0 preload lXPSI on a rvlAP Wireless Device." Id. See a/so Shean Dcp, 34: l-~ ( .. [ Motorola] wouldn't be able to ship Skyhook and not be in breach" of the application data collection clause ofSkyhook's contract).

Despite being informed that disabling Coogle's location services would be a breach of Motorola's contractual obligations (0 Googlc, Skyhook continued to insist that the exclusive data collection provision in Skyhook's contract with Motorola trumped Motorola's pre-existing contractual ubi igations with (Iuogle and Motorola' S cornrnunicatiuns carriers, See Def Ex. 7 at SKYOOOOn72. Ultimately. on August 17, 2010. Motorola terminated its agreement with Skyhook. Def Ex. 7 at SKYOOOCJ7271. One of the specific grounds cited by Motorola for terminating the Skyhook contract was Skyhook's "failure to deliver a functioning product that can be loaded on Motorola Android-based products." Del'. Ex. 7 al SK Y(J0007~72.

Tn short. the lind isputed record shows that Motorola terminated i ts contract with Skyhook not because 01' any improper conduct by Google but. rather. because Skyhook persisted in insisting that had the right III override Googles pre-existing contractual right to collect location data 011 Motorola Android devices, The record contains no evidence that Google even was aware of this dispute between Motorola and Skyhook. Even assuming otherwise. however, Google would have every right under its pre-existing contract with Motorola In insist that Motorola comply with ils contractual obligations to install GMS Apps in their fully functional form,

It is well established that "[tjht' assertion by J party of its legal rights is not 'improper means' for purposes of a tortious interference claim," Pembroke Country Club. 62 Mass. App, Ct. at 40: see also Synergistics Tech, inc, v. Putnam Inv. LLe, 74 Mass. App. Ct. 686, 690 (2.009) (rPursuit of a legitimate business interest, without more, fails to qualify as an improper means or motive in analyzing the elements necessary to support a claim for interference with contract"): see a/so King \'. Driscoll, 418 Mass. 576, 5S7 11994): Tulent Hurst. Inc. ", Collabera. Inc .. 5(l7 F. Supp. 2d 2C)1, 269 (D. Muss, 2008), Nor is asserting a legitimate contract right an

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unfair or deceptive ac I or practice under ch. 93i\. Hannon \'. Origina! Gunite A quatech Pools,

Sk:. hook makes much ur tiOllgk's insistence (111 [I .. 'trl<':\ ing positioning datu through the devices. The Coun perceives no impropriety in that, Skyhook does exactly the same: indeed. it sought to go further with respect to Motorola devices, through a contractual prohibition on software that would return data to any other source. Gocgle's contracts with manufacturers condition the usc 0(" its trademarks and applications all Iull functioning of its application packugc, which includes datu retrieval functions. SkyhrJok lias Idem {tied nu principle (J/ law IIulI renders such [J c(}lld/tim/ unluwtul Of otherwise improper, [Order at 8-lJ I flhl{Jl!llL'S umiucd I (emphasis added J.I

C]. Buster r (iL'or.!!.(' rr Jloorr:. lnc.. 43~ Mass. 635. 648-N (.~O()~) (an "economic loss

occasioned by 3. plainti lr s own conduct" is "beyond the bounds" of coercion and cannot be the

basis of a tortious interference claim),

Additionally, trademark owners must control the quality of goods hearing their licensed

mark or risk losing the mark. Fre<!cyc/cSuml,l'l'aie ". The Freecyc!e Network, 616 F .3d 509, 511

(9lh Cir, 20 10) (holding that a trademark holder had "abandoned" its trademark by granting a

"naked license." that is. hy grunting permission to someone else to LIse the mark. but failing to

retain the right [0 exercise quality control over its LIse). Thus, no! unly were Gonglc's motives

entirely lawful. they \\1,:1"1,,' also csscntiul to preserving its valuable marks,

The record is clear- Guoglc did not attempt to deprive Sky hook of any rights under Skyhook's contract with Motorola. If anything, it was Skyhook that attempted 10 interfere with

Googles contractual right 10 have fully functional GMS Apps installed on Motorola Android

devices. No amount or additional discovery will change these undisputed facts, which are established by Skyhook' s own admissions.' Because there could be nothing improper, unfair or

Despite resnnj; it!> ':<:i~t: on llle actions or Motorola and Sarnsung and requesting expedited discovery, Skyhook did nul not ie..: ~lowrola ur Sarnsungs deposition until after its motion lor preliminary injunction \VTIS denied and after (;ollg.lc suucd it would mow: tor summary judgment. Summary judgment is nut 50 easily avoided:

Skyhook cannot explain how eithrr depusnion CUll alter in <Illy way the undisputed record already before the Court.

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deceptive about (_ i LH Igk aS~lTti ng i is pre-ex isting corn ract rights. summary .i udgrnent should be

now-terminated ;:OnlTCH:l \\ ith Motorola.

2. Skyhook Cannot Prove that Google Improperly Caused Motorola or Samsung to Choose Not to Usc XPS.

Summary judgment also is warranted because Skyhook cannot point to any evidence

sufficient to establish that (iUllg.k improperly interfered with Skyhooks contracts with Motorola

or Sarnsung, nor cun SkyhlWk demonstrate thut it hus any "reasonable expectation" of obtaining

such evidence no m.utcr huw much additional discovery it might now seck to take.

Kourouvacilis r. Genera! Motors Corp .. 410 Mass, 706. 716 (1991): Xl'1! also A lphas Co. 1'.

Kilduff. 71 1\,1<1$:;. App, Ct. 104. 114 (2008) (quotations and citations omitted) ("'Parties may not

. fish' for evidence on which to base their complaint in hopes of somehow finding something

helpful to their case in the course ofthe discovery procedure:').

_ DeC E.\ . ..j a[ SKYO(J[)U0073 at §~ 3.2. 1.12, SKYOOOOOOH2. As Skyhook admits,

Sarnsung informed Skyhook in writing: that it decided not to use XPS on its Android devices

because of performance and pricing issues. DeC Ex. 16 at SKY00005579. Sam sung never has lold Skyhook that the reasons it cited for not using Skyhook's XPS were false, nor is Skyhook

claiming in this litigation thai the reason Samsung gave lor not shipping XPS was that Google

asserted that XI'S was not Android compliant Shean Dep. 94:~3-95:3: Shean Dcp. 246:14-22,

Similarly, Moturulas termination letter 10 Skyhook cites three grounds for its actions.

none of which is unributable to any improper conduct by Google. The grounds were thai

Skyhook (1) made "inaccurate and unauthorized statements to the press" by issuing an

unauthorized press briefing (Dcr. Ex. 7 ut SK\'00007272: o-r. Ex. 3 at SKY00005470-71 at § 9; SI!/! also Def Ex. 931 SK't'OOOO5(12): (2),'j'aHledl to deliver a functioning product that can be

loaded on Motorola Android-based products" (Del. Ex. 7 at SKYOO(07272): and (3) failed to

I,

.'

"continue performance during the pendency of a dispute:' Dcf Ex. 7 at SK Y00007272,

Skyhook also COJ1cc(lL's that after it modified XPS to IlO longer falsely report cellular

locations as having been determined by GPS--·tl modification that Skyhook says resolved the

Android compliance issue first raised by Motorola Skyhook chose not 10 deliver the modified

product to Sumsung or to Googlc. Shean Dcp. 94: 13-18: 195: 17·] %:4: Brady Dcp, 216:6-9. This is fatal ttl Skyhook's claims since. as Skyhook admitted in writing after this litigation was

filed, "[Googles] Andy Rubin told Ted Morgan, Skyhook C.E.O .. that Google will certify Skyhook if submitted properly by a handset maker:' Del: Ex. 15 at SKY00006422; Shean Dep,

252: 14- 18. No amount of additional discovery can alter these undisputed facts, thus warranting

summary j udgment in Google s Javor.

3. Skyhook Cannot Prove that Coogle Used Android Compatibility Requirements to Interfere with Skyhook's Business Relations.

The CrlIX or Skyhook'S complaint is that "Google unreasonably and without justification

claimed that embedding Skyhook's XPS client software in the Android wireless devices would render the devices no longer compatible,' Compl. ~ 29, which allegedly caused Motorola to ship

devices without XPS in mid-July. 2010 in breach or the Motorola-Skyhook contract. [d.,! 32.

The undisputed record shows that Skyhook cannot cuny its burden or proof on this claim.

First. .as noted above. the record shows that Motorola terminated its agreement with

Skyhook for reasons having nothing to do with Android compatibility. Del'. Ex. 7 at

SKY0000717~.

Second. the Android compatibility issue Iirst was raised by Motorola in the fall of 2009,

months before Gocglc C\'L'!l was aware of Skyhook's contract with Motorola. Shean Dep. 16:9-

17; Ocr. Ex. 14 at SK Y00007021. Motorola informed Skyhook that XPS violated certain

Android compatibility standards because it reported locations calculated from Wi-Fi and cellular

towers through the (J PS location provider. Def, Ex, 22 at SKY0000602S: Dcf Ex. 23 at SKYOOOOOOOI: Shean Dep. at 118:11-21. See also Order at 8 ("The record does not support

Skyhook's contention that Googles compatibility concern was prctextual. To the contrary, the

14

,\nJ(lf.5Ij(l·i ..J

evidence indicates that Sk~ hook and Motorola identified the same issue months before Gocgle

J. \ :~Ir: ~k \ h~ it )~" !"l'cn::n!fC-d that the

. -

issue raised h~ \ lol\lnd;J '.\ ~h lcgiiimatc. In lchruary 2() HI. Skyhook' s lead engineer stated: '~I

do agree that reporting cell locations as GPS locations is just too confusing for all app" Def.

E-x. 25 at SK)'00006058 (emphasis added): Shean Dep, 120:14-19.H

Third, the undisputed record also shows that the Android compatibility issue was mooted

by the revised code that Skyhook delivered 10 Motorola on June 4. 2(jJO. wcl] before Motorola

terminated the Skyhook contract (and wcl] before this uctiun wus tiled). Murgun Dccl. ~113: DeC

[x. 5 iu SK\'OlHI(J?:~~1-:: Wi' ulso Shean Dcp, ~lJ:Jl)-):?:t2. 37:22-3H:9. ~l):19-40:12, Skyhook

admits that since that rev iscJ code was submitted, Motorola "has not indicated in any way, shape

or rom that the reason it is not shipping XPS is because XPS is not Android compliant." Shean

Dcp.44:9-15.

Fourth, Gough: emphatically told 1\,10toro1<1 that it was free to usc Skyhook so long as

Skyhook's XPS \\u.s Android cornpatible-c-i,r .. SiJ long us it did n01 report mm-GPS data as GPS

data. Del'. Ex. 19 at ljOUG SKY. ST 00016830. Yet Skyhook concedes that ii never gave

Google the opportunity to review the modi lied. Android-compliant version or XPS it delivered to

Motorola. Shean I )cp. 195: 17 -196:4; see also Order at 7 ( •• [ T[he record indicates that Google

directed Motorola nut to ship devices that Googlc determined to be incompatible. but did not close off the prospect that it would approve devices with a revised version 0 r XPS, Google never

had the opportunity III consider the revised version. since neither Motorola nor Skyhook ever submitted it."). Skyhook cannot recover on a claim that Googlc used a prerextual reason to object 10 a product that neither Skyhook nor Motorola ever allowed CillDgk to inspecLj!

Tortious interference claims necessarily require some "improper" conduct. i. r: ..

~ S('C Order a! S n.' ievideucc "docs not :;UPPl1l1" the contention thut GLJ<lgh: "tied in communications ttl the manufacturers aboul the computibiluy i5SUC··]

t Before Skyhouk admitted that it never Sl'tH Google the modified. compliant version of XPS, its CEO testified that Googk h:ld not rev l~\\ \!d thL' updated version "for unknown reasons," "JlU "J6pilC Skyhook's delivery of a new, modified vcr . sion ,)1':\ I'S. Gong!.' persisted with its 'stllP ship' order." Morgan 1>.:t1 ~!"I I J. 15.

15

something "beyond the lad of interference itself," such as proof or "improper motives" or "the use or improper means.' Gclunan, 406 tv-fass. at 816. "Improper means" I11flY include misrepresentations or fact threats or defamation. ld. at S 17: l Iunnemun Real Estate Corp. v. Norwood Realty. inc .. 54 Mass. App. CI. 416, 427 (2002). "Improper motives" include conduct based on discriminatory motives that arc against public policy, such as age discrimination. L)'eC! Gehman. 406 Mass. a\ S 17. An improper mol ivc, however. requires far more than "ill will". for "[i If [the interfering party's I conduct is directed. at least in part. to [advancing his competitive interest], the tact that he is also motivated by other impulses, as. It)T example, hatred or a desire for revenge is not alone su fficiem to make his interference improper." Hunnemun. 54 Mass. App, C1. at 428-29. quoting. Restatement (Second) (~r'l'(}rls ~ 768(1 )(el). and comment g, nt43. See also Berkshire Armored ( '(/I' Sctvices. Inc. \:, Sovereign Bank l~( .II/ell· England, 65 Mass. App. C1. 96. lO~-()] (200:5) (conduct "motivated primarily by a desire to advance [a party's] business" is "not improper").

Here. there arc no threats, defamation, misrepresentations or illegal discriminatory, antitrust or other wrongful conduct. To the contrary, Google publicly established Android compatibility 'standards .. to ensure compatibility of' third-party applications [s]o that developers and users have good experience 011 CI unfragrncntcd platform." Del. Ex. 17 at 3, Brady Dep, 94: 18-23. Even Skyhook acknowledges that compatibility is "essential to Android." Shean Dep. 143:12-18; 146:10-14: Del'. Ex. 25 at SKY00006058. This is "proper" conduct: Because Skyhook has no reasonable expectation of proving an essential element or its case-that Google's acted with improper motive or by improper rneans-e-summary judgment in favor of Google is warranted. Se« Kourouvacilis, 410 Mass. at 716.

B. Skyhunk.'s Complaint Fails to Stille It Claim Under Rule 12(b)(6).

Skyhook cluirn . .;; that Gouglc improperly interfered with Skyhook's contractual rights by (a) citing pretextual reusuns fur finding that embedding Skyhook' s XPS technology in Androidbased mobile devices would make the devices non-Android compliant: and (b) insisting that

16

Motorola offer both Google's CiPS and Skyhook's XPS location positioning technologies on its

Android products Cnmp!..~·~) 22-13. 29-32. 36.

The principle that pursuing u legitimate business interest is no! an improper means or

motive has been well-settled 111 Massachusetts since at least as far back as the Supreme Judicial

Court's decision in Rohitaille F. Morse. 183 Mass. 27. 33-34 (1933). where the Courl affirmed

orders sustaining demurrers to a complaint for interference with ccntractual relations. In

Robitaille, the plaintiff alleged that his business had been "utterly ruined" by the defendants

buying lip and then closing down manufacturing plants that might otherwise have purchased

plaintiffs products. and then refusing to deal with the plaintiff. 283 Mass. at 29~30. The Supreme JUdicial Court emphatically rejected the plaintiffs legal theory:

The defendants had a right to build up their own business for "their own selfish gain and profit" and no legal responsibility necessarily resulted from their acts or conduct in doing this. even though us an incident to the accomplishment Dr their purpose and object it was a necessary result that the plainriff should be forced out or business. 11d. aU t.]

"It is elementary." the Court ruled, that a defendant has the right "singly or in concert"

with others III rCrUSL' tn deal with another. even if "such conduct results in the injury to the

business of such other, subject only to the qualifications that the injury inflicted by the exercise

of their rights on the business of another must have the justification of competition or of self-

interest and advancement, and that they do not exercise that right in any illegal manner:' Id. at

33. See also {"nih'£! Truck Leasing Corp. I'. Geltmun. 26 Mass. App. Ct. 847. 855 (1989)

(Deliberately and <II his pleasure. one I11ny ordinarily refuse to deal with another. and the

conduct is not regarded as improper. subjecting the actor to liability" for improper interference

with contractual or ad vantugeuus relations (q uoiing Restatement (Second) of Torts, § 766,

comment 11)). revd 011 other grounds, Gellman. 406 Mass. 8]1 (1990): Synergistics Tech.. 74

Mass. App. Ct. at 690: see also King, 418 Mass. at 587: To/em Burst; 567 F. Supp. 2d 8L 269.

Reduced to essentials, the only "interference" alleged by Skyhook is Googlcs refusal to

allow Skyhook's contracts with Mnioru!a tn dictate whether Googlc could be excluded From

17

Motorola mobile devices that use orvIS Apps [UlU that bear Google trademarks. Gocgle's assertion of" contrnl over its 0\\ n trademarks. however. is 110t Oil interference with contractual or advantageous relations. Moreover. the only "improper" motive or conduct alleged by Skyhook is Googles alleged desire to prevent a manufacturer from using, in breach oj" contracts with Google, another puny's technology (here. XPS) us the exclusive location positioning technology on Android mobile devices manufactured pursuant to contracts with Google, Cornpl. 'l~ 3. 30. Because acting in nne's economic self-interest is not improper, Skyhook's claims for interference with contractual and ad vantageous relations fail as a mutter or law and should be dismissed. See Hertz ('orp. I'. Enterprise Rel1(-A-COl" Co .. 557 F. Supp. 1d 185. J 96 (D. Mass. 2008) C'\Vhut is glaringly absent lrorn the Complaint is any supportable ullcgation that [the defendant's conduct! was mulivuicd by malice (as opposed to chauvinistic enthusiasm or excessive salesmanship).").

C. Skyhook's Complaint Fails to State a Claim under ch. 93A.

In Massachusetts, whether conduct violates ch. 93A is a legal. not factual, determination, R. W Granger & ,)·0/7.\", Inc. l' . .I & S lnsulation. Inc .• 435 Mass. 66, 73 (100 I). Chapter 93A recognizes the "right of' one engaged in a private business to refuse to deal, or discontinue dealing, with anyone. for any reason. unless the dealer combines with others in a concerted effort to hinder free trade:' I'MP Assoc. I', Globe Newspaper Co., 366 Mass. 593. 597 (1975); Chiodini \'. "/'u/'gl'l Mkfg Group. Inc .. 58 Muss. App. Ct. 376. 378 (003). Chapter 93A '''has not been extended to apply 10 a party ... competing for a business advantage because he is made aware that another has been exerting himself to the same end. ThEIl would be an extravagant rule of law." Synerglstics Tech.. 74 Muss. App, Ct. at 690 (citation omitted). In shalt, ch. 93A did not require Gocglc to surrender La Skyhook its contractual right to collectlocation data.

As all independent mutter. because Skyhook's ell. 93A claim is "wholly derivative of the tortious interference claim." which Skyhook cannot establish as discussed above, the evidence is "insufficient to establish ,111 unfair method of competition or an unfair or deceptive act or practice." Pembroke ('OUI1fI)' CII/h. 62 Mass. App, Ct. at 40-41. '111i5 principle consistently has

18

been applied in numcruus LaSL';> dismissing ch, 93A claims bused on faikd common law claims.

Sev, e.g .. :\!acr)I'iu!: l' t'has« !!(JIII!' Mol" (·orp .. ~o Mass. App C1. 755. 76() (I l)L)6l: Fernandes

v, Rodrigue. 3X Muss. App, 0. 926. 928 (19l}5): Pork Drive Towing. 111(', 1'. City ofRevere, 442

Muss. 80, 85-86 (2004). Because Skyhook's ch. 93A claim is entirely derivative of its tortious

interference claims. the ch, 93A claim fails as a matter of law.

D, Google's Alleged Conduct Did Not Occur Primarily and Substantially in the Commonwealth.

G. L. c. 931\. ~ 11 requires thut "the actions und transactions constituting the alleged

unfair method of competition or the unfair or deceptive act or practice occurred primarily and

substantially within the cornrnonweulth.' The question is "whether the center or gravity of the circumstances that gi ve rise to the claim is primarily and substaruially within the

Commonwealth." Kuwaiti Danish Computer Co. 1'. Digital Equip. Corp., 438 Mass. 459,472-73

(2003), A "place of injury" in Massachusetts is not determinative: the relevant inquiry is if the allegedly unscrupulous conduct occurred "primarily and substantially" in the state. ld. at 472

n.13. 4 74~ 75. "111 f the sign] ficaru contacts or the competing j urisdictions are approximately in the balance, the conduct in question cannot be said to have occurred primarily and substantially

in Massachusetts." tincle Henry's Inc. t', Plaut Consult ing Co .. 399 F.3d 33. 45 ( 151 Cir, 2005).

Here, the alleged wrongfully conduct is that Google, a Delaware corporation with a

principal place or business in Mountain View, California (Compl, '15), interfered with Skyhook's relations with Motorola, headquartered in Illinois, and Samsung, headquartered in

Korea. Affidavit or Patrick Brady ("Brady Aff.") ~I~I 2. 5, 6: see also Def Ex. 3 011

SKYDO()05464: Del'. Ex. 4 at SKY00000072. None of Googles alleged conduct is claimed to

have occurred in Mussnchusetts. nor did Googlc discuss Skyhook with either Motorola or

Samsung in Massachuseus. Brady AIr. ,1'1 3,4. Nor are Skyhook's contracts even governed by

Massachusetts law. Dl!f. Ex. 3 at SKY000005475 at S 17{b): DeC Ex. 4 til SK Y00000079 at

§ 12.3. And Android devices manufactured by Motorola and Sarnsung arc not made In

Massachusetts and arc sold throughout the United States and abroad. Brady Aff ~!~ 5-7.

It)

The ul1h connection tn Massachusens is the location of the plaintiff. which is insufficient

Central Mass. Tclvvisian. fill' \', .unplicon. file. 9]0 F. Supp. 16. 27 (I). 1\t:JS5. I (196). In an

analuguus case. a tcdcral district court in Massachusetts held that where a plaintiff was

Massachusetts" and was di rcctcd at plainti Irs \:ustOI11('rS. who were "overwhelm] ng ly ... persons

and entities outside the Commonwealth:' ell, 93i\' s "primarily and substantially" requirement

was not satisfied. Yunkve Candle Co, v. Bridgewater Candle Co., LLC, 107 F, Supp. 2d 82. 88

[D. Mass. 2000). aiI'd 259 FJd 25 (151 Cir, 1001 }; see a/so Sonesta 111/ 'l Hotels Corp. v_ Central Fla. 111l' .. /l1C. 47 Mass. App. C1. 154.160 (J91)q1. Here, too, ch. 93A's "primarily and

substantially" rcquircme m j,; not satisfled. and S kyhooks claim must be dismissed.

For tilt: foregoing reasons. Google respectfully requests that Ihe C'UUrl grant Googlc's

motion to dismiss or enter summary judgment in its favor on all claims and dismiss the

complaint in its entirety with prejudice.

GOOG LE INC.,

R (1 ben C. Berti n (udrn i n cd PI'O hac \' ice ) Susan Buker Manni ng (udrniucd pro hac vice; BINGHAM \lcCliTCl tEN LLP

2020 K Street, NW

Washington. rx 20006- ! H06

202.373.6000

13y .ill'i auo~eys. "\

0'\",\\\ '

lC l··l]i..l",-l'·"',,__ \

:,~f~{]'~&ri ~1.' ~~. B 136 1/(:)1 J gSO Carol E. I-kidl BBO ti(!52 I 70

Deana K. El-Mallawany. BBO #674825 IlINGHAM J\'lcCl1TCHI~N LLP

One Federal Street

Boston. 11,01.:-\ 021 Ill-I726

617.951.8000

Dated: February ItL 201 1

CERTlFICATE OF SERVICE

J hereby cL:n.i(\ I hal a true and correct C<1p) of the above document was served upon Massachusetts counsel \II' record by hand and Cali furnia counsel by email on Fdmlil_?: 18: ~o II.

,"~~" .. "~ /S~'L~,· .. ~ .(;~,{~:(,::->::/

Deana 1-:. El-t'Vlalla\\ull)

\ I

::!.()

EXHIBIT A

AnJ673 122.1

Dates

April!,2009

Def. Ex. 2

Google and Motorola enter into Mobile Application Def. Ex. !

Distribution

May 1,2009

Motorola and Skyhook enter into Embedded Software License Def. Ex. 3 and Distribution

Sept. 25, 2009

Oct. 19,2009

Motorola raises issue with Skyhook of possible "API break" Def Ex. 24

due to reporting of WiFi and cellular sources "if an application

N'nl1"ctc a location via the GPS

Feb. and March 2010

April 1, 2010

May 27, 2010

Google sends an email to Motorola stating that Google is not asking that XPS be removed from the Android devices, but is asking that "you not provide network-derived location data (from Skyhook, Google or anyone else) that is advertised as GPS location data"

June 4,2010

Skyhook sends Motorola a modified XPS that reports only satellite determined locations through location provider and that Skyhook says is Android compatible

Shean Dep. 30:19-32:12; 37:22-38:9; 39:19-40:12

June 15,2010

Samsung asks Skyhook if the XPS on Samsung devices is the same as the XPS on Motorola Android-based phones and if

XPS is An droid iant

Def. Ex. 13

June 17, 2010

Google informs Sarnsung that it "can use [XPS]," but that it needs to be reviewed for Android "nrn"~lti

June18,2010

Motorola advises Skyhook in writing of Motorola's contractual obligations to telecommunications carriers and Google to install GM S Apps that collect location data on Android-based Motorola devices

July 10,2010

Oct. 5, 2010

AnJ67JI22.1

Def. Ex. 11; Def. Ex. 12

Def. Ex. 5

Def. Ex. 7