He stated that “if the court were to reverse, this would be the first derivative case ever in a complex antitrust regulatory situation that by fighting, instead of surrendering, the directors became personally liable.”
Feldman argued that Google’s leadership was never told by its counsel that the company’s business practices were illegal and that they were simply “fighting an aggressive regulatory body.”
The investors’ brief to the appellate court stated that Google’s leadership knew from actions taken by the EU against Microsoft that its conduct would be considered anti-competitive.
It also claimed that key pieces of evidence, including a July 2012 presentation from Google’s counsel to Page, Brin, Schmidt, and the board, were given short shrift by the trial judge. In the presentation, Google’s counsel warned the group that the company’s business model would be considered anti-competitive by the European Commission.
The investors’ brief stated that “counsel did their job; the defendants refused to do theirs, which was to bring their company into compliance with the law.” The brief also claimed that statements made by other Google executives in the presentation underscored the illegality of the company’s actions.
