NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CALIFORNIA CRANE SCHOOL, INC., No. 24-4604 on behalf of itself and all others similarly D.C. No. situated, 5:21-cv-10001-PCP Plaintiff - Appellant, MEMORANDUM*
v.
GOOGLE LLC; ALPHABET INC.; XXVI HOLDINGS INC; APPLE INC.; TIM COOK; SUNDAR PICHAI; ERIC SCHMIDT,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of California P. Casey Pitts, District Judge, Presiding
Argued and Submitted August 20, 2025 San Francisco, California
Before: CHRISTEN, BRESS, and VANDYKE, Circuit Judges.
California Crane School (“Crane”) appeals the district court’s Rule 12(b)(6)
dismissal of Crane’s claims against Apple and Google and the denial of its motion
to set aside the judgment. This court has jurisdiction under 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. affirm both rulings.
1. The district court found that most of Crane’s claims against Google were
subject to arbitration. We review the district court’s partial grant of Google’s motion
to compel arbitration de novo. Capriole v. Uber Techs., Inc., 7 F.4th 854, 860 (9th
Cir. 2021). When a party moves to compel arbitration, the court must determine (1)
“whether a valid arbitration agreement exists” and (2) “whether the agreement
encompasses the dispute at issue.” Lifescan, Inc. v. Premier Diabetic Servs., Inc.,
363 F.3d 1010, 1012 (9th Cir. 2004). “If the answer is yes to both questions, the
court must enforce the agreement.” Id.
The district court correctly determined that the parties’ arbitration agreement
was valid and enforceable and that it covers the claims for which the district court
ordered arbitration. As relevant here, an arbitration clause is unenforceable under
California law only if it is both procedurally and substantively unconscionable. See
Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1280 (9th Cir. 2006) (applying
California law). The “threshold inquiry in California’s unconscionability analysis is
whether the arbitration agreement is adhesive.” Mohamed v. Uber Techs., Inc., 848
F.3d 1201, 1211 (9th Cir. 2016) (citation omitted). If “there is an opportunity to opt
out,” then the agreement is “not adhesive” and thus not procedurally unconscionable.
Id. Here, Google’s Terms of Service allow would-be advertisers like Crane a chance
to opt out of arbitration and still purchase advertising services, yet Crane never opted
2 24-4604 out. The arbitration clause was neither procedurally nor substantively
unconscionable, nor does it violate the Seventh Amendment.1
2. This court reviews the Rule 12(b)(6) dismissal of an antitrust claim de
novo. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Dismissal under
Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory
or (2) fails to allege sufficient facts to support a cognizable legal theory.” Id. To
adequately allege an unlawful agreement under § 1 of the Sherman Act, a plaintiff
must “plead not just ultimate facts (such as a conspiracy), but evidentiary facts
which, if true, will prove: (1) a … conspiracy among two or more persons or distinct
business entities; (2) by which the persons or entities intended to harm or restrain
trade or commerce …; (3) which actually injures competition.” Kendall v. Visa
U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008). “[B]are assertion[s] of conspiracy
will not suffice”; allegations must be “plausible” and not “merely consistent with”
an illegal agreement. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007).
Crane asserts that the public vertical agreement that sets Google as the default
search engine on Apple’s browser is evidence of a secret horizontal conspiracy
1 The district court also determined that Crane’s claim against Google under the California Cartwright Act and Unfair Competition Law (UCL) was not subject to arbitration. Because we affirm the district court’s dismissal of Crane’s claims under Rule 12(b)(6), including the dismissal of this UCL claim, we need not reach whether the district court’s arbitration ruling as to the UCL claim against Google was correct, as Google agreed at oral argument.
3 24-4604 involving Apple’s promise not to compete with Google in the search business. But
Crane failed to advance well-pleaded allegations suggesting direct evidence of any
such secret agreement. The public vertical agreement between Apple and Google
contains no non-compete provisions. Crane’s allegations that “Apple and Google
have agreed in various writings, including in their written Revenue Sharing
Agreement and in their written Pre-Installation Agreement that Apple would not
compete … with Google” are conclusory and therefore insufficient to plausibly
plead the point. See Name.Space, Inc. v. ICANN, 795 F.3d 1124, 1129 (9th Cir.
2015).
Crane has also failed to allege any circumstantial evidence supporting its
assertions. Circumstantial evidence ordinarily requires “parallel conduct” (such as
“competitors adopting similar policies around the same time”) and “plus factors”
that reduce the possibility that the alleged conspirators acted independently (such as
common motive or acts against self-interest). In re Musical Instruments & Equip.
Antitrust Litig., 798 F.3d 1186, 1193–94 (9th Cir. 2015). As circumstantial
evidence, Crane points to the vertical agreement, meetings between Apple’s and
Google’s CEOs, and the fact that Apple has not built a competing search engine.
None of these allegations are sufficient to plausibly plead the existence of a
horizontal conspiracy. The vertical agreement is a lawful, mutually beneficial
relationship consistent with “independent business decisions.” Name.Space, 795
4 24-4604 F.3d at 1130. On its own, the vertical agreement does not suffice to show the
existence of a horizontal conspiracy. Similarly, the CEO meetings are explicable in
light of the companies’ vertical agreement and do not exceed the ordinary level of
professional interaction expected of business executives. Crane’s bare assertion that
“Apple had actively worked on developing its own general search engine as a
potential competitor to Google” is insufficient. Crane alleges no details about
Apple’s supposed efforts to build a search engine, how far the efforts progressed,
when it abandoned them, or what drove it to abandon them. Instead, we agree with
the district court that the equally (if not more) likely explanation for Apple’s decision
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CALIFORNIA CRANE SCHOOL, INC., No. 24-4604 on behalf of itself and all others similarly D.C. No. situated, 5:21-cv-10001-PCP Plaintiff - Appellant, MEMORANDUM*
v.
GOOGLE LLC; ALPHABET INC.; XXVI HOLDINGS INC; APPLE INC.; TIM COOK; SUNDAR PICHAI; ERIC SCHMIDT,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of California P. Casey Pitts, District Judge, Presiding
Argued and Submitted August 20, 2025 San Francisco, California
Before: CHRISTEN, BRESS, and VANDYKE, Circuit Judges.
California Crane School (“Crane”) appeals the district court’s Rule 12(b)(6)
dismissal of Crane’s claims against Apple and Google and the denial of its motion
to set aside the judgment. This court has jurisdiction under 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. affirm both rulings.
1. The district court found that most of Crane’s claims against Google were
subject to arbitration. We review the district court’s partial grant of Google’s motion
to compel arbitration de novo. Capriole v. Uber Techs., Inc., 7 F.4th 854, 860 (9th
Cir. 2021). When a party moves to compel arbitration, the court must determine (1)
“whether a valid arbitration agreement exists” and (2) “whether the agreement
encompasses the dispute at issue.” Lifescan, Inc. v. Premier Diabetic Servs., Inc.,
363 F.3d 1010, 1012 (9th Cir. 2004). “If the answer is yes to both questions, the
court must enforce the agreement.” Id.
The district court correctly determined that the parties’ arbitration agreement
was valid and enforceable and that it covers the claims for which the district court
ordered arbitration. As relevant here, an arbitration clause is unenforceable under
California law only if it is both procedurally and substantively unconscionable. See
Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1280 (9th Cir. 2006) (applying
California law). The “threshold inquiry in California’s unconscionability analysis is
whether the arbitration agreement is adhesive.” Mohamed v. Uber Techs., Inc., 848
F.3d 1201, 1211 (9th Cir. 2016) (citation omitted). If “there is an opportunity to opt
out,” then the agreement is “not adhesive” and thus not procedurally unconscionable.
Id. Here, Google’s Terms of Service allow would-be advertisers like Crane a chance
to opt out of arbitration and still purchase advertising services, yet Crane never opted
2 24-4604 out. The arbitration clause was neither procedurally nor substantively
unconscionable, nor does it violate the Seventh Amendment.1
2. This court reviews the Rule 12(b)(6) dismissal of an antitrust claim de
novo. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Dismissal under
Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory
or (2) fails to allege sufficient facts to support a cognizable legal theory.” Id. To
adequately allege an unlawful agreement under § 1 of the Sherman Act, a plaintiff
must “plead not just ultimate facts (such as a conspiracy), but evidentiary facts
which, if true, will prove: (1) a … conspiracy among two or more persons or distinct
business entities; (2) by which the persons or entities intended to harm or restrain
trade or commerce …; (3) which actually injures competition.” Kendall v. Visa
U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008). “[B]are assertion[s] of conspiracy
will not suffice”; allegations must be “plausible” and not “merely consistent with”
an illegal agreement. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007).
Crane asserts that the public vertical agreement that sets Google as the default
search engine on Apple’s browser is evidence of a secret horizontal conspiracy
1 The district court also determined that Crane’s claim against Google under the California Cartwright Act and Unfair Competition Law (UCL) was not subject to arbitration. Because we affirm the district court’s dismissal of Crane’s claims under Rule 12(b)(6), including the dismissal of this UCL claim, we need not reach whether the district court’s arbitration ruling as to the UCL claim against Google was correct, as Google agreed at oral argument.
3 24-4604 involving Apple’s promise not to compete with Google in the search business. But
Crane failed to advance well-pleaded allegations suggesting direct evidence of any
such secret agreement. The public vertical agreement between Apple and Google
contains no non-compete provisions. Crane’s allegations that “Apple and Google
have agreed in various writings, including in their written Revenue Sharing
Agreement and in their written Pre-Installation Agreement that Apple would not
compete … with Google” are conclusory and therefore insufficient to plausibly
plead the point. See Name.Space, Inc. v. ICANN, 795 F.3d 1124, 1129 (9th Cir.
2015).
Crane has also failed to allege any circumstantial evidence supporting its
assertions. Circumstantial evidence ordinarily requires “parallel conduct” (such as
“competitors adopting similar policies around the same time”) and “plus factors”
that reduce the possibility that the alleged conspirators acted independently (such as
common motive or acts against self-interest). In re Musical Instruments & Equip.
Antitrust Litig., 798 F.3d 1186, 1193–94 (9th Cir. 2015). As circumstantial
evidence, Crane points to the vertical agreement, meetings between Apple’s and
Google’s CEOs, and the fact that Apple has not built a competing search engine.
None of these allegations are sufficient to plausibly plead the existence of a
horizontal conspiracy. The vertical agreement is a lawful, mutually beneficial
relationship consistent with “independent business decisions.” Name.Space, 795
4 24-4604 F.3d at 1130. On its own, the vertical agreement does not suffice to show the
existence of a horizontal conspiracy. Similarly, the CEO meetings are explicable in
light of the companies’ vertical agreement and do not exceed the ordinary level of
professional interaction expected of business executives. Crane’s bare assertion that
“Apple had actively worked on developing its own general search engine as a
potential competitor to Google” is insufficient. Crane alleges no details about
Apple’s supposed efforts to build a search engine, how far the efforts progressed,
when it abandoned them, or what drove it to abandon them. Instead, we agree with
the district court that the equally (if not more) likely explanation for Apple’s decision
not to enter the search engine market involves “the actual and opportunity costs of
developing a search engine, [and] the difficulty of competing with existing search
engines.” We conclude that the district court properly dismissed Crane’s claims
under Rule 12(b)(6). Crane’s remaining claims are all derivative of its Sherman Act
§ 1 claim and fail for the same reasons.
3. This court reviews the denial of a motion to set aside the judgment under
Rule 59(e) or Rule 60(b) for abuse of discretion. Latshaw v. Trainer Wortham &
Co., 452 F.3d 1097, 1100 (9th Cir. 2006); Weeks v. Bayer, 246 F.3d 1231, 1236 (9th
Cir. 2001). “Under this standard, [this court] can reverse only if a district court ‘does
not apply the correct law, rests its decision on a clearly erroneous finding of a
material fact, or applies the correct legal standard in a manner that results in an abuse
5 24-4604 of discretion.’” Id. (quoting Engleson v. Burlington N. R.R. Co., 972 F.2d 1038,
1043 (9th Cir. 1992)).
In support of its motion, Crane points to the Information Services Amendment
(“ISA”) and Joint Cooperation Agreement (“JCA”) from the Google monopolization
litigation. See United States v. Google LLC, 747 F. Supp. 3d 1 (D.D.C. 2024).
Neither document is “newly discovered evidence.” As the district court noted, the
evidence “was publicly available as early as November 2023, well before the
February 8, 2024 hearing on the [motion to dismiss].” Had Crane “exercised due
diligence,” it “would have been able to find this evidence,” which was available on
the Department of Justice’s website months before the court issued its final
judgment. We conclude that the district court did not abuse its discretion in denying
Crane’s motion to set aside the judgment.
AFFIRMED.
6 24-4604