Okay Google, Spell "Antitrust"
In October, 2020, former Attorney General William Barr announced that he, the Department of Justice, and Attorneys General from 11 states would be filing a civil antitrust lawsuit against the internet search giant Google. Their complaint alleged that Google had engaged in anticompetitive and exclusionary business practices in violation of Section 2 of the Sherman Act, and that the United States should act to restore competitive conditions in the markets affected by Google's unlawful conduct.
It's been nearly three years since the filing of the initial complaint. More than 150 people have been deposed. Millions of pages of documents have been produced in discovery. Both Google and the DoJ have armed themselves with some of the finest legal minds in the country. And now, finally, Google is getting its day in court.
The Department of Justice's complaint alleges that Google has engaged in years of anticompetitive behaviors. They allege that Google has, through a series of exclusionary agreements, given its search engine special treatment on a number of platforms, devices, and internet browsers. Its deal with Apple to make Google the default search engine on its Safari browser is mentioned as a prime and egregious example of these arrangements.
Google's deals with various companies to preinstall its search engine on new phones, computers, and browsers are also at issue, particularly those which prevent the end users from uninstalling the service or changing to a different default search engine. The DoJ also argues that Google used the profits from these monopolistic practices to buy preferential treatment on search access points, effectively creating a self-reinforcing cycle. In legal circles this is known as "being a big mean jerk."
The DoJ's case is built on both precedent and allegations of meaningful harm done to consumers and other search engines that never had a chance to become true competitors thanks to Google's actions.
The precedent is drawn from antitrust suits in general and the Department of Justice's case against Microsoft in particular. According to the initial press release that accompanied the complaint: "Decades ago the Department's case against Microsoft recognized that the antitrust laws forbid anticompetitive agreements by high-technology monopolists to require preinstalled default status, to shut off distribution channels to rivals, and to make software undeletable. The Complaint alleges that Google is using similar agreements itself to maintain and extend its own dominance."
The DOJ is making the case Google has followed in Microsoft's footsteps. Google has made a number of agreements to both preinstall its search engine and make it practically impossible to remove it from various platforms, and its global dominance does make it pretty easy for it to crush its smaller competitors. In fact, only Microsoft's well-funded search engine Bing has been able to gain more than a couple of percentage points of the global market share – and it's still never cracked ten percent.
The complaint also alleges that Google has used its power to suppress competition for its online advertising business. Its dominance has allowed it to stifle competition and indulge in the classic monopolistic pastime of simultaneously raising prices and reducing the quality of its services. The DoJ argues that you really aren't supposed to do that.
According to the DoJ, Google's actions didn't just harm its competition. The press release argues that "Google has foreclosed any meaningful search competitor from gaining vital distribution and scale, eliminating competition for a majority of search queries in the United States. By restricting competition in search, Google's conduct has harmed consumers by reducing the quality of search (including on dimensions such as privacy, data protection, and use of consumer data), lessening choice in search, and impeding innovation."
Google disagrees, of course.
What Happens Now?
The trial, now expanded to include the Department of Justice and 38 states and territories, is scheduled to run through November. Much of the testimony from executives at Google, Apple, and other companies will likely be sealed to the public due to the sensitive nature of the discussions, so we may not know much about it until the outcome is announced.
If Google wins then it will likely continue on with business as usual. If the government wins, well, we'll have to see. Possible remedies have been floated up to and including fines, breaking up Google, putting limits on its business practices, and "… any other preliminary or permanent relief necessary and appropriate to restore competitive conditions in the markets affected by Google's unlawful conduct."
- What is Antitrust Law and Trade Regulation? (FindLaw's Learn About the Law)
- Is the PGA Golf Tour a Monopoly? (FindLaw's Legally Weird blog)
- Lessons from Microsoft (FindLaw's US Supreme Court)
- Can I Sue Google? (FindLaw's Learn About the Law)
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