Australian adtech business Unlockd has called time on it eight-year legal battle with Google following a failed appeal in the Ninth Circuit Federal Appeals Court in the US.
“It marks the end of a painful 8-year fight for justice,” former CEO and co-founder Matt Berriman posted on LinkedIn.
“This battle has been a hard trodden path, both personally and professionally. Spending twice as long fighting for the great business my team, investors and I built has not been easy.”
Unlockd was founded in 2014 and had been considered as one of Australia’s hottest tech startups but fell into voluntary administration following Google’s threat to remove it from the Google Play Store ecosystem.
Unlockd had been planning to list on the ASX and had serious financial backers, including Lachlan Murdoch.
The startup’s premise was simple, though potentially compelling for advertisers.
After installing the Unlockd app, smartphone users would receive ads targeted to them based on profile information such as their age, gender, interests and location — all of which had been voluntarily handed over by the user when signing up for the Unlockd app.
In return, users would earn credits which could be redeemed for mobile credit, mobile data, premium entertainment content or loyalty points.
Unlockd described its proposition as a “win-win” for consumers and advertisers alike. Its content partners once included Twitter, Yahoo, McDonald’s, British Airways, Doritos and Uber.
Google said that Unlockd had breached its Google Play policy, which prohibits apps from interfering with the functions of a mobile device, or another app.
Google had previously approved Unlockd’s services.
“We explained our concerns to Unlockd, outlined how they could fix the problems or use alternatives, and gave them time to make changes,” a Google spokesperson told the ABC in 2018.
“And despite having agreed at the outset to comply with our product policies, apps using their technology remain in infringement today.”
Unlockd would go into voluntary administration in 2018 after what it described as the “unanticipated” action from Google. Google also denied Unlockd from accessing its AdMob ad server.
Unlockd and Berriman had argued that Google’s actions were anticompetitive. It also argued that Google was trying to shut down a part of the digital ad market which it did not control.
Last year, Judge Haywood Gilliam, of the US District Court for the Northern District of California agreed with Google’s bid to have the case dismissed before going to trial, as reported in the Australian Financial Review.
Under the ruling, Unlockd is unable to amend its complaint, effectively closing the case.
Gilliam wrote that Unlockd’s argument lacked the facts to prove Google’s conduct had harmed competition in the broader sector, as opposed to just injuring Unlockd.
“In short, plaintiff still offers nothing more than its repeated assertion that it was an innovative business and would have been a threat to Google in the digital advertising market absent Google’s alleged conduct. Such unsupported conclusions are simply insufficient to allege antitrust injury,” his judgment said.
Berriman’s case had done the rounds in the US court system. It first filed a lawsuit in California in 2021, seeking damages “significantly higher” than the company’s one-time $200 million valuation.
A 2023 ruling also dismissed Unlockd’s case, again finding that it failed to plead antitrust standing. Unlockd appealed, alleging that Google drove it out of business and into bankruptcy.
In March last year, Unlockd filed its appeal with the Ninth Circuit Federal Appeals Court.
“Having being approached from various parties, I stand firm for Unlockd! Our Appeal is now lodged at the USA Ninth Circuit Appeals – New (and old) money, additional legal counsel, more discovery, few surprises to come – stay tuned!” Berriman posted on LinkedIn at the time.
In a memorandum published last week about the appeal, the court noted:
“The conduct alleged in the DOJ complaint—Google’s self-favoring among its ad tech products for web publishers, its acquisition of DoubleClick, and its manipulation of bidding protocols—bears no apparent connection to Google’s enforcement of its AdMob and Play Store platform terms against Unlockd. The markets are different, the conduct is different, and the causal chains are different.”
The decision closes the book on Unlockd. Berriman has since joined computer vision firm Xailient as its executive chairman.
“The immense challenges that we faced legally were equally matched by the ones that I personally endured to do so, where I continued to feel the weight of those that had and continued to back me,” Berriman posted on LinkedIn.
“I was never going to shy away from this fight, right to the very end. As many founders know, the responsibility of taking other people’s money, means you do everything in your power to ensure there is a return for their trust, capital and commitment to you. This was never lost on me.
“As I unfortunately close the last page of the Unlockd chapter, which brought some of my best and worst professional and personal moments, I’d like to thank firstly my family and friends for their unconditional love and support, my old Unlockrs who were in the trenches with me day and night, my shareholders, Board members, legal teams, trustees, advisors and all those who supported the business and me personally though this roller-coaster journey.
“Despite the immense pride I still have in the company I built and those who joined me on that journey, it doesn’t give solace to the ending we were forced to bear, nor the financial result we have been left with.”
B&T has contacted Google for comment.
