Skyhook Wireless, Inc. v. Google Inc. , 86 Mass. App. Ct. 611 ( 2014 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
13-P-1236 Appeals Court
SKYHOOK WIRELESS, INC. vs. GOOGLE INC.
No. 13-P-1236.
Suffolk. May 9, 2014. - November 6, 2014.
Present: Kantrowitz, Cohen, & Agnes, JJ.
Contract, Interference with contractual relations, Implied
covenant of good faith and fair dealing. Unlawful
Interference. Practice, Civil, Summary judgment, Consumer
protection case. Malice. Consumer Protection Act, Unfair
act or practice.
Civil action commenced in the Superior Court Department on
September 15, 2010.
The case was heard by Judith Fabricant, J., on a motion for
summary judgment.
Glenn K. Vanzura, of California (Scott McConchie with him)
for the plaintiff.
Jonathan M. Albano (Susan Baker Manning, of the District of
Columbia, with him) for the defendant.
COHEN, J. After mobile electronic device manufacturers
Motorola, Inc. (Motorola), and Samsung Electronics Co., Ltd.
(Samsung), withdrew from business deals with software developer
2
Skyhook Wireless, Inc. (Skyhook), Skyhook filed a complaint
against the defendant, Google Inc. (Google), alleging
intentional interference with Skyhook's contract with Motorola,
intentional interference with Skyhook's advantageous business
relations with both Motorola and Samsung, and violations of
G. L. c. 93A.1 A judge of the Superior Court granted Google's
motion for summary judgment on all counts.2 We affirm.
Background.3 Consistent with summary judgment standards,
the facts upon which we rely are either undisputed or taken in
the light most favorable to Skyhook. See Drakopoulos v. U.S.
Bank Natl. Assn., 465 Mass. 775, 777 (2013).4
1
Google later acquired Motorola, but at all times relevant
to this case, Google and Motorola were separate, independent
corporations.
2
The same judge previously had denied Skyhook's motion for
a preliminary injunction.
3
The judge's comprehensive thirty-five page decision
contains an extremely detailed account of the events leading up
to this dispute and the technological issues that lie at the
heart of it. For present purposes, we summarize the essential
facts needed to frame the issues on appeal.
4
Many of the materials before us in this appeal are
governed by impoundment orders issued by the Superior Court,
beginning with a "stipulated protective order for litigation and
involving patents, highly sensitive confidential information
and/or trade secrets." Because some of the facts recited in
this opinion are drawn from a volume of the joint record
appendix labeled by the parties as including impounded material,
before publication of the opinion we solicited letters from the
parties (and an interested nonparty) as to whether and why they
contended that any of those specific facts should be subject to
continuing impoundment. The letters disavowed any need for
3
This case arises from the aborted plans of Motorola and
Samsung, manufacturers of mobile electronic devices (including
so-called "smart phones"), to license and install Skyhook's
software product, XPS, to provide location services on their
"Android" mobile devices (described below). Location services
identify where the mobile device is physically positioned.
Alone and in conjunction with other software applications, they
allow the device user to find his or her location, to identify
the location of nearby facilities, and to receive marketing
information about commercial establishments in the vicinity.
Location systems also collect location data from the device and
return that data to the software provider for inclusion in its
location database. The data then can be used to improve the
accuracy of location results, as well as for commercial
purposes.
Android is a mobile device operating system developed and
maintained by Google. It is an "open source" operating system,
meaning that it is publicly available and can be used without
charge; however, Google owns and controls the use of the Android
trademark and related trademarks, as well as the use of a group
impoundment of the identified facts, and we vacated the Superior
Court impoundment orders to the limited extent necessary to
allow public dissemination of those facts. See Rule 7 of the
Uniform Rules on Impoundment Procedure (1986); S.J.C. Rule 1:15,
as appearing in 401 Mass. 1301 (1988); Adams v. Adams, 459 Mass.
361, 362 n.1 (2011).
4
of proprietary mobile services applications known as Google
Mobile Services (GMS) Apps. Google requires, by contract, that
devices marketed under Android trademarks and including GMS Apps
meet Google's compatibility standards, which are set out in
detail in the Android Compatibility Definition Document (CDD)
published by Google.5
In addition to a number of well-known software applications
(e.g., Gmail, Google Maps, Google Search, and YouTube), GMS Apps
include an application known as Network Location Provider (NLP),
which helps to supply Google's location services to mobile
devices. In part, NLP works in conjunction with two application
programming interfaces (APIs) that are part of the Android
operating system:6 the GPS Provider API, which determines a
device's location using the United States government's Global
Positioning System (GPS) satellites; and the Network Provider
API, which determines location based both on triangulation from
nearby cellular communications towers (cell towers) and on the
device's detection of local wireless network access points ("Wi-
5
Because a device's Android compatibility gives its user
access to over 400,000 applications developed by third parties
(through Google's "Android Market" application), compatibility
is also vital to device marketability.
6
An API is an interface that enables a software program to
interact with other software and describes the ways in which
particular tasks are performed.
5
Fi" networks).7,8 Google's Software Development Kit (SDK), which
assists third-party developers in creating new applications for
use on any Android-compatible device, specifically informs
developers which kinds of data are used by the GPS Provider API
7
"Wi-Fi" may be understood as follows:
"Wi-Fi refers to wireless local area networks, or
WLANs, which connect users to the Internet by means of
radio or infrared frequencies. These networks require the
network operator to install a short-range radio tower,
referred to as a wireless access point ('WAP'), which sends
and receives data to and from user devices that are
equipped with hardware capable of receiving the signal from
the access point.
". . .
"Wi-Fi networks may be implemented by a variety of
operators and in a variety of contexts. Private residences
and businesses deploy wireless networks for use in the home
or office. Other businesses directly provide wireless
networks in public areas such as airports, coffee shops,
hotels, and convention centers. Collectively, these
networks create 'hotspots' in suburban areas and business
districts, which provide wireless access to the public.
Beyond hotspots, several municipalities currently offer or
have begun to explore plans to provide public Wi-Fi
access." (Footnotes omitted.)
Bierlein, Policing the Wireless World: Access Liability in the
Open Wi-Fi Era, 67 Ohio St. L.J. 1123, 1128-1129 (2006).
8
As the judge described the three location technologies,
"GPS is the most accurate of the three, but can be slow,
and does not work well in dense, populated areas, or
indoors. Cellular tower triangulation is less accurate,
but works well indoors and outdoors. The [W]i-[F]i method
draws on a manually-compiled database of [W]i-[F]i access
points in populated areas; it transmits data from those
points to the software maker's location database, and then
translates the data into latitude and longitude
coordinates."
6
(satellite) and Network Provider API (cell tower and Wi-Fi) to
fix location. The SDK is incorporated in the CDD by reference,
and plays a role in determining whether Google's compatibility
standards are met.
Like Google's NLP, Skyhook's XPS also determines the
location of a mobile device by collecting information from GPS
satellites, cell towers, and Wi-Fi networks. However, XPS
operates by integrating the location data received from these
three different sources. Through this approach, XPS achieves
greater speed in reporting a location result. Another
difference between the Google and Skyhook systems is that,
unlike Skyhook's XPS, Google's NLP includes "reverse geocoding"
functionality, which converts longitude and latitude coordinates
to street addresses and place names.
In supplying location services software to mobile device
manufacturers, both Google and Skyhook expect and require that
they will be able to collect location information from the
mobile devices on which the software is installed. Thus, when
enabled on an Android device and subject to the user's consent,
NLP collects "network data" for Google, i.e., information about
nearby Wi-Fi networks and cell towers. XPS likewise collects
such information for Skyhook. Both companies consider this
retrieval of network data, and the accuracy of the data, to be
7
essential to the location databases they maintain as part of
their business models.
In April and June of 2009, respectively, Samsung and
Motorola entered into contracts with Google allowing them to use
the Android trademarks and to preload specified GMS Apps,
including NLP,9 on their mobile devices. The contracts did not
specify that Google would be the exclusive provider of location
services software for the manufacturers' Android devices.
However, the contracts did require the devices to meet Google's
Android compatibility standards,10 and also required the
manufacturers to "accurately reproduce" the GMS Apps on the
9
Samsung's contract with Google specified NLP by an
amendment in December, 2009.
10
Samsung's contract with Google stated in part, "The
license to distribute Google Applications . . . is contingent
upon the device becoming an Android Compatible Device." The
term "'Android Compatible Device(s)' means Device(s) that (i):
comply with the [CDD] . . . and (ii) successfully pass the
Android Compatibility Test Suite (CTS)." The CTS is a set of
automated tests developed by Google to determine if a device has
any known potential incompatibilities. It is undisputed that
both Motorola's and Samsung's devices containing Skyhook's
location services passed the CTS.
Motorola's contract with Google in part provided that
"[t]he license to distribute Google Applications . . . is
contingent upon Motorola certifying that the Device passes the
[CTS] and conforms to the [CDD]." We reject Skyhook's
contention that this provision, requiring Motorola to give its
certification as to conformity with the CDD, means that Google
may not withhold its written approval of a device based on its
own determination of a lack of conformity. See notes 11 & 14,
infra, and accompanying text.
8
devices. Under the contracts, the ultimate distribution of the
devices was subject to Google's prior written approval.11
Thereafter, unbeknownst to Google, both Motorola and
Samsung entered into contracts with Skyhook. In September,
2009, Motorola entered into a licensing and distribution
agreement with Skyhook by which Motorola agreed to preload XPS
on its Android devices, subject to an exception for devices
"where Motorola is contractually prohibited by a qualified third
party." The contract defined "qualified third party" to include
"a certifying entity which has the right to define and approve
the technical specifications required to be a[n] Android-
compliant device and which has declared the Embedded Software to
be non-compliant." The Motorola-Skyhook contract also provided
that Motorola would not authorize or enable any other party to
use XPS or Motorola's devices to collect location data.
Subsequently, in May, 2010, Samsung also entered into a
11
For example, the following provisions appear in
Motorola's contract with Google: "The pre-loading of a Device
with Google Applications in each individual Territory shall be
subject to Google's prior written approval, which shall not be
unreasonably withheld or delayed"; "The distribution of each of
. . . the Google Applications shall be subject to Google's prior
written approval (not to be unreasonably withheld or delayed) to
ensure adherence to the terms and conditions of this Agreement
. . ."; "Google must provide terminal acceptance of a Device in
writing before initial distribution of the Device in each
individual Territory"; and "For the avoidance of doubt, each new
Territory, each new Device, and each new Telecom Operator in
each Territory needs to be approved by Google prior to Launch."
Samsung's contract with Google includes similar language.
9
licensing agreement with Skyhook, but on a different basis.
Pursuant to its contract with Skyhook, Samsung agreed to pay a
guaranteed minimum for the right to install XPS on its Android
mobile devices. However, Samsung was not obligated to do so.
After the execution of the Motorola-Skyhook contract, there
was considerable discussion within and between these two
companies as to whether XPS was Android-compatible. This
discussion was prompted by the fact that XPS was configured to
report "hybrid" location data -- information derived not only
from GPS satellites, but from the network data obtained using
cell towers and Wi-Fi networks -- through Google's GPS Provider
API, which was described in Google's SDK as delivering satellite
data alone. Both companies pondered whether XPS would violate
Android compliance by giving the incorrect impression that the
reported location results came from GPS satellite sources and
met the high level of accuracy that users and independent
application developers expected from satellite data.12
12
For example, in February, 2010, Motorola employees stated
that XPS "is absolutely a horrible user experience for
location," that Motorola "will be in violation of Android
Compliance if we ship like this and may have stop ship issue on
our hands," and that "Skyhook is the poster child for making
changes to the [Android] platform the wrong way." On February
19, 2010, a Skyhook employee stated in an internal electronic
mail message (e-mail) that "reporting cell locations as GPS
locations is just too confusing for an app[lication]." The next
day, in an internal e-mail discussing various concerns with the
XPS implementation, a Motorola employee wrote: "Skyhook is
evaluating the time and effort needed to change XPS to only
10
Google remained unaware of Motorola's contract with Skyhook
until April 26, 2010, when, without Motorola's contractually
required approval, Skyhook released a press briefing entitled
"Motorola to replace Google with Skyhook," and stating in part
that "Motorola is the first Android device maker to abandon
Google for its location services." Google employees immediately
began to discuss this development and its implications,
including the risk that other device manufacturers would switch
to Skyhook and Google would suffer a loss in the "ability to
continue collecting data to maintain and improve [its] location
database."
Soon thereafter, on May 7, 2010, representatives of Google
and Motorola met to discuss Motorola's use of XPS to provide
location services. At this meeting, Google employees raised the
same hybrid location reporting issue that Motorola and Skyhook
had been discussing.13 A few weeks later, Google informed
return GPS results if the application makes a direct location
request to the GPS Location Provider API, and will provide their
estimate on Monday. In parallel, Motorola needs to determine if
we feel that the current approach creates a compliance issue or
whether the current XPS implementation is acceptable since it
provides a location result using GPS, WiFi, and CellID
information."
13
Specifically, Google voiced concern that XPS's use of the
Android operating system's GPS Provider API, rather than the
Network Provider API, to report location based on Wi-Fi and
cellular data would reduce the accuracy of the information
collected by Google and stored in its database about Wi-Fi
access point and cell tower locations. Google described this
11
Motorola that, due to this reporting issue, Motorola's
implementation of XPS would fail to meet Android compatibility
requirements. Nevertheless, Google emphasized that if Motorola
could implement Skyhook in a way that resolved the reporting
issue, then "by all means let's do it."
At the same May 7 meeting, Google identified another issue
with XPS -- its inability to convert longitude and latitude
coordinates to street addresses and place names. Motorola could
not effectively market its devices without this reverse
geocoding function, and, as the issue developed over the next
few weeks, it became apparent that Motorola also would need to
rely on Google's competing product, NLP, in order to provide for
reverse geocoding. Skyhook acknowledged that Motorola's use of
NLP was the only available option, but would agree to its use
only if Motorola altered NLP to block its collection of
competitive location data for Google.
Motorola and Skyhook began communicating with each other
about both the hybrid location reporting issue and the data
collection issue. On May 28, 2010, with these issues still
unresolved, Google instructed Motorola not to ship its devices
with XPS. Motorola complied and removed XPS from devices being
reporting problem as "contaminating" Google's location database.
Google also voiced concern that XPS's misreporting of network
data as GPS data would adversely affect applications created by
third-party developers in reliance on the accuracy of location
data reported through the GPS Provider API.
12
prepared for shipment in July. A few days later, on June 4,
Skyhook submitted to Motorola revised software that was intended
to fix the hybrid location reporting issue. Subsequently,
Google made it clear to Motorola that it was free to include
XPS, as long as the revised software did not deviate from
Google's compatibility standards by returning non-satellite data
through the GPS Provider API.
The data collection issue remained an active concern,
however. Google remained steadfast that, under its contract
with Motorola, Motorola was required to include the applications
it licensed from Google (including NLP and other applications
that collected location data) in their entirety -- and without
neutering their data collection function. Skyhook, for its
part, insisted that its contract with Motorola gave it the right
to block Google from collecting location data on Motorola
devices, and that the data collection function on Google
applications would have to be disabled. Faced with these
conflicting demands, Motorola eventually notified Skyhook that
it was terminating their agreement.
As for Samsung, in March, 2010, and entirely independent of
any input from Google, Samsung began to express concerns to
Skyhook about the cost of XPS. Several months later, in June,
2010, Google first discovered that Samsung had contracted with
Skyhook and that Samsung already had begun shipping some devices
13
containing XPS. Google informed Samsung of the same hybrid
location reporting issue it had raised with Motorola, stating
that it "cannot approve the current implementation as-is." On
July 10, Samsung notified Skyhook that it was not going to use
XPS because "Google Locator was good enough in [the United
States] region and [the] financial burden from Skyhook was
another reason."
On September 15, 2010, Skyhook filed the present action,
claiming that Google had, with improper motive or means,
intentionally interfered with its contract with Motorola and
with its advantageous business relations with both Motorola and
Samsung, and that those acts constituted violations of G. L.
c. 93A. Google moved for summary judgment, and the judge ruled
in its favor. On the interference claims, the judge reasoned
that the evidence did not support a finding of improper motive
or means. On the c. 93A claim, the judge ruled that no
reasonable jury could conclude that the conduct at issue
occurred "primarily and substantially in Massachusetts" as
required by c. 93A, § 11.
2. Discussion. a. Standard of review. We review the
grant of summary judgment de novo to determine "whether, viewing
the evidence in the light most favorable to the nonmoving party,
. . . the moving party is entitled to a judgment as a matter of
law." Go-Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass.
14
50, 54 (2012), quoting from Juliano v. Simpson, 461 Mass. 527,
529-530 (2012). See Mass.R.Civ.P. 56(c), as amended, 436 Mass.
1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass.
706, 711-712 (1991). While our review is de novo, we have the
benefit of the motion judge's thorough and thoughtful decision.
After independently considering the record and the applicable
law, we reach the same conclusions.
b. Interference claims. To establish a claim of
intentional interference with contractual relations, the
plaintiff must prove that: (1) the plaintiff had a contract
with a third party; (2) the defendant knowingly induced the
third party to break that contract; (3) the defendant's
interference, in addition to being intentional, was improper in
motive or means; and (4) the plaintiff was harmed by the
defendant's actions. United Truck Leasing Corp. v. Geltman, 406
Mass. 811, 812-817 (1990). Similarly, to establish a claim for
interference with advantageous business relations, the plaintiff
must prove that "(1) [the plaintiff] had an advantageous
relationship with a third party (e.g., a present or prospective
contract or employment relationship); (2) the defendant
knowingly induced a breaking of the relationship; (3) the
defendant's interference with the relationship, in addition to
being intentional, was improper in motive or means; and (4) the
plaintiff was harmed by the defendant's actions." Blackstone v.
15
Cashman, 448 Mass. 255, 260 (2007). It is undisputed that
Skyhook has established the first two elements of each claim.
As to the third element, although Google does not concede that
its actions constituted interference, we need not confront that
issue because, like the motion judge, we conclude that Skyhook's
claims founder because Skyhook cannot demonstrate on this record
that any interference by Google was improper in either motive or
means. We therefore need not reach the fourth element, harm to
Skyhook.
In essence, Skyhook's arguments are as follows. As to
motive, Skyhook takes the position that a jury should be allowed
to decide whether Google's concerns about hybrid location
reporting and data collection were a pretext for its true
motive, which, according to Skyhook, was to "bully Skyhook out
of the market." As to means, Skyhook takes the position that
Google unfairly interpreted its contracts with Motorola and
Samsung in order to pressure them to abandon their deals with
Skyhook. Neither point has merit.
i. Google's contractual rights. We begin with a question
of law -- the interpretation of Google's contracts with Motorola
and Samsung. Contrary to Skyhook's position, those contracts
plainly gave Google the right to hold the manufacturers to
16
requirements pertaining to compatibility and functionality.14
With respect to the hybrid location reporting issue, the
compatibility standards to which both manufacturers were bound
required that, as described in the CDD, "[d]evice
implementations MUST NOT omit any managed APIs, alter API
interfaces or signatures, [or] deviate from the documented
behavior." In addition, the SDK, which was incorporated into
the compatibility standards, informed third-party software
developers as to the documented API behavior: that the GPS
Provider API determined location using GPS satellites, while the
Network Provider API did so based upon network data. Because
the manner in which XPS reported hybrid location data through
14
Skyhook does not contend that the preexisting contracts
between Google and the manufacturers were unlawful. The gist of
its argument is that only the manufacturers, and not Google, had
the authority under the contracts to make compatibility
determinations; however, this contention is at odds with facts
that Skyhook deemed undisputed below, allegations contained in
its complaint, the relevant contract language (see notes 10 &
11, supra, and accompanying text), and the course of dealing
between Google and the manufacturers. Google, Motorola, and
Samsung all understood Google to have the authority to make
compatibility determinations and to provide standards for the
conditions under which devices containing its proprietary
applications could be shipped. Furthermore, Skyhook's own
contract with Motorola contemplated that Motorola would be
excused from preloading XPS, if doing so was "contractually
prohibited by a qualified third party," i.e., an entity that
"has the contractual right over Motorola to substantially define
the features, functions and overall design" of the devices, or
"a certifying entity which has the right to define and approve
the technical specifications required to be a[n] Android-
compliant device and which has declared the Embedded Software to
be non-compliant."
17
the GPS Provider API was in violation of those standards, Google
had the contractual right to stop distribution of devices
containing XPS as it originally was designed.15
With respect to the data collection issue, in order to ship
their devices with the Android trademark and Google's
proprietary GMS Apps, the manufacturers were contractually
obliged to leave the GMS Apps fully functional. When Skyhook
conditioned Motorola's use of the revised version of XPS on
Motorola's removal of NLP's data collection function, Google was
entitled, under its contract with Motorola, to insist upon the
"accurate reproduction" of Google applications, including NLP.16
ii. Motive. We next consider whether, on this record, it
reasonably could be found that Google's assertion of its
contractual rights was but a smokescreen for its desire to shut
Skyhook out of the Android market. We conclude that no such
15
To the extent Google's right to stop shipment was
qualified by contract language requiring that its approval not
be unreasonably withheld or delayed, see note 11, supra, we
conclude that on this record no rational jury could find
Google's actions or timetable unreasonable.
16
The "Accurate Reproduction" section of the contract
specifies that Motorola "will accurately reproduce the Google
Applications . . . and will not insert into the Google
Applications . . . other code that is specifically designed to
cause the Google Applications to cease operating, or to . . .
interfere with any Google Applications or End User data."
Installing a stripped-down version of NLP would not have been an
"accurate reproduction" and would have "interfered" with the
functioning of the application, in violation of this section of
the agreement.
18
finding would be warranted. The legitimacy of the reporting
issue is illustrated by the fact that long before Google even
knew that Motorola was going to use XPS, the same problem had
been recognized and debated by engineers at both Skyhook and
Motorola. Furthermore, Google never categorically prohibited
Motorola's use of XPS. Google informed Motorola that it had no
objection to Motorola's installation of XPS if it could be
installed in a compatible way, and, after June 4, 2010, when
Skyhook submitted revised software, Google never instructed
Motorola not to use the revised XPS.
Likewise, the legitimacy of the data collection issue
cannot reasonably be questioned. Skyhook, no less than Google,
considered the collection of network location data to be
essential for operational and business reasons. If anything,
Skyhook's criticism of Google's position on data collection
seems disingenuous. Unlike Google, Skyhook insisted upon being
the exclusive recipient of location data. Skyhook also
attempted to convince Motorola to disable the data reporting
functions on GMS Apps, despite Motorola's valid concerns about
its contractual obligations to Google.
Although the record substantiates that, upon learning of
the Motorola-Skyhook contract, Google was concerned about losing
customers for its own location services and the ensuing harm to
its valuable location database, advancing one's own economic
19
interest, by itself, is not an improper motive. Pembroke
Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App.
Ct. 34, 39 (2004), citing Hunneman Real Estate Corp. v. Norwood
Realty, Inc., 54 Mass. App. Ct. 416, 428-429 (2002). Even if,
as Skyhook insists, its location services were superior to
Google's, it was not improper for Google to be motivated, in
part, by competition. Although Skyhook maintains that
competitive motivation can be proper only if it will advance
better products and services in the marketplace, here the only
parties equipped to decide which product was better for their
needs at that time and under all relevant circumstances were
Motorola and Samsung.
iii. Means. "The assertion by a party of its legal rights
is not 'improper means' for purposes of a tortious interference
claim." Pembroke Country Club, Inc., supra at 40. See
Restatement (Second) of Torts § 773 (1979).17 As previously
17
Section 773 of the Restatement deals with one of several
"special situations" in which application of enumerated factors
for determining whether interference is improper have produced
"clearly identifiable decisional patterns" that warrant a more
specific rule. Restatement (Second) of Torts § 767 comment a
(1979). Section 773 provides that "[o]ne who, by asserting in
good faith a legally protected interest of his own . . .
intentionally causes a third person not to perform an existing
contract . . . does not interfere improperly with the other's
relation if the actor believes that his interest may otherwise
be impaired or destroyed by the performance of the contract or
transaction." Id. § 773. The actor's assertion of contractual
rights that are in conflict with another's contractual rights is
within the scope of this section. See id. § 773 illus. 3.
20
discussed, Google had the contractual right to stop shipments of
Motorola and Samsung devices unless and until the reporting
issue was resolved. Its exercise of that right did not
constitute improper means. By the same token, Google had the
contractual right to insist that its proprietary applications,
including their location data collecting functions, would remain
intact. Any economic pressure felt by the manufacturers was
simply a product of their preexisting contractual arrangements
with Google and their desire to continue marketing their devices
under the Android trademarks and with proprietary Google
applications. There is no evidence that Google used threats,
misrepresented any facts, or used any other improper means.
b. Violation of G. L. c. 93A. Under c. 93A, § 11, it is
Google's burden to demonstrate that "the center of gravity of
the circumstances that [gave] rise to the claim" were not
"primarily and substantially within the Commonwealth." Kuwaiti
Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 470,
473 (2003). Looking only to the allegedly unscrupulous conduct,
factors to examine include, but are not be limited to, the place
of conduct, and the "situs of loss." Id. at 472 n.13, 474-475.
We agree with the motion judge that Google has established, as
matter of law, that c. 93A does not apply here.
21
At the relevant time, Google's headquarters was in
California, Motorola's headquarters was in Illinois, and
Samsung's headquarters was in South Korea. All of Google's
allegedly unfair or deceptive acts, including its
communications, both physical and electronic, occurred outside
the Commonwealth. Although Massachusetts would be the situs of
any royalty revenue lost to Skyhook from the sale to
Massachusetts consumers of XPS-enabled Motorola and Samsung
Android devices, that factor alone does not suffice to bring
this dispute within the ambit of c. 93A, particularly in light
of the global marketplace for such devices. Compare Yankee
Candle Co. v. Bridgewater Candle Co., 107 F. Supp. 2d 82, 88 (D.
Mass. 2000) (although plaintiff's headquarters was in
Massachusetts, § 11 requirement not satisfied because alleged
deception was "conceived and concocted outside Massachusetts"
and was directed at plaintiff's customers, who were
"overwhelmingly . . . persons and entities outside the
Commonwealth"), aff'd, 259 F.3d 25, 47-48 (1st Cir. 2001).
On this record, Skyhook's physical location in
Massachusetts was of minimal import. For this reason, if no
other, Google was entitled to summary judgment on Skyhook's
c. 93A claim.
Judgment affirmed.