PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1849

In re: SOUTH CAROLINA DEPARTMENT OF PARKS, RECREATION AND TOURISM.

In re: GOOGLE DIGITAL ADVERTISING ANTITRUST LITIGATION, 1:21-md- 3010-PKC; and STATE OF TEXAS, et al. v. GOOGLE LLC, 1:21-cv-6841-PKC.

_____________________________________________

SOUTH CAROLINA DEPARTMENT OF PARKS, RECREATION AND TOURISM,

Movant – Appellant,

v.

GOOGLE LLC,

Respondent – Appellee.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:23-cv-02100-JFA)

Argued: May 8, 2024 Decided: June 5, 2024

Before AGEE and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Thacker and Senior Judge Traxler joined. USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 2 of 13

ARGUED: Robert W. Humphrey, II, WILLOUGHBY HUMPHREY & D’ANTONI P.A., Charleston, South Carolina, for Appellant. Jason R. LaFond, YETTER COLEMAN LLP, Houston, Texas, for Appellee. ON BRIEF: Mitchell Willoughby, Margaret M. O’Shields, Hunter R. Pope, WILLOUGHBY HUMPHREY & D’ANTONI, P.A., Columbia, South Carolina, for Appellant. Jamie Alan Aycock, Ayla S. Syed, YETTER COLEMAN LLP, Houston, Texas, for Appellee.

2 USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 3 of 13

AGEE, Circuit Judge:

Along with several other states, the State of South Carolina (“South Carolina” or

the “State”) sued Google LLC in federal court for violations of federal and state antitrust

laws. With South Carolina’s express approval, Google subpoenaed the South Carolina

Department of Parks, Recreation and Tourism (“SCPRT”) for discovery pertinent to its

defense. But SCPRT refused to comply. Asserting Eleventh Amendment immunity, SCPRT

moved to quash the subpoena. The district court below denied the motion, holding that any

Eleventh Amendment immunity that SCPRT may have otherwise been entitled to assert

was waived when the State, through its attorney general, voluntarily joined the federal

lawsuit against Google. SCPRT now appeals. We affirm.

I.

Several states led by Texas sued Google in the U.S. District Court for the Eastern

District of Texas for violating federal and state antitrust laws through its online display

advertising business. The particulars of Google’s alleged anticompetitive conduct are not

relevant for purposes of this appeal. Rather, we are concerned with the undisputed conduct

of a particular plaintiff: South Carolina.

After Texas and the other states filed suit, South Carolina, through its attorney

general, intervened “as a plaintiff state, in the public interest and on behalf of the people of

South Carolina.” J.A. 480. Thereafter, the state plaintiffs filed an amended complaint

naming South Carolina as a plaintiff. According to the operative complaint, all the state

3 USCA4 Appeal: 23-1849 Doc: 36 Filed: 06/05/2024 Pg: 4 of 13

plaintiffs, including South Carolina, “bring this action in their respective sovereign

capacities and as parens patriae on behalf of the citizens, general welfare, and economy of

their respective states.” J.A. 232. And in

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