United States v. Google LLC (2020)

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United States v. Google LLC
Seal of the U.S. District Court for the District of Columbia.png
Court United States District Court for the District of Columbia
Full case nameUnited States, State of Arkansas, State of Florida, State of Georgia, State of Indiana, Commonwealth of Kentucky, State of Louisiana, State of Mississippi, State of Missouri, State of Montana, State of South Carolina and State of Texas v. Google LLC
StartedOctober 20, 2020
Court membership
Judge(s) sitting Amit P. Mehta

United States v. Google LLC is an ongoing federal antitrust case brought by the United States Department of Justice (DOJ) against Google LLC on October 20, 2020. The suit alleges that Google has violated the Sherman Antitrust Act of 1890 by illegally monopolizing the search engine and search advertising markets, most notably on Android devices. [1]

Contents

The lawsuit has been described as a "blockbuster antitrust trial", [2] and has been widely described as the most important federal antitrust lawsuit since the 1998 United States v. Microsoft Corp. case. [3] The DOJ accused the company of accumulating monopoly power through unlawful deals with Apple and mobile carriers. [4]

On September 12, 2023, the ten-week trial began in the District Court for the District of Columbia with judge Amit Mehta presiding. [5] Google began its defense in court on October 26, [6] with the trial concluding on November 16. [7] Final arguments by both the government and Google were made in court on May 3 and May 4, 2024. [8]

Legal commentators anticipate that there will likely be an appeal, regardless of how the case is decided. [9] The outcome of the case is considered to have a potential bearing on the subsequently-filed federal antitrust suits against fellow "Big Tech" companies Meta Platforms, Amazon, and Apple. [10] [11] [12] The DOJ filed a second antitrust lawsuit against Google over the company's advertising market practices in 2023. [13]

Background

The rapid growth of the U.S. tech industry in the 1990s led to concerns about potential for anti-competitive behavior in the sector. [14] This ultimately led to the federal government launching an antitrust suit against Microsoft, alleging that the company unfairly hindered competition. [3]

In the 2010s, concerns about potential anti-competitive behavior by "Big Tech" (Google, Apple, Amazon, Meta) companies became subject to lawmaker scrutiny. On October 6, 2020, the Democratic majority staff on the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law released a nearly 450-page report following a 16-month long investigation concluding that the companies wield "monopoly power". [15]

Prior antitrust scrutiny of Google

In 2008, scrutiny by the DOJ and the Canadian Competition Bureau scrutiny of an advertising deal between Google and Yahoo! led the companies to abandon their agreement. According to the DOJ, the "agreement between these two companies accounting for 90 percent or more of each relevant market" would have likely harmed "competition in the markets for Internet search advertising and Internet search syndication". [16]

The DOJ lawsuit alleges that Google Search holds an unlawful monopoly in the search engine market Google web search.png
The DOJ lawsuit alleges that Google Search holds an unlawful monopoly in the search engine market

In 2011, members of the Federal Trade Commission (FTC) voted to demand information from Google as part of an antitrust inquiry into the company's search engine practices. Following a nineteen-month investigation, FTC staff attorneys recommended that the agency bring forth an antitrust lawsuit against Google. However, the members of the commissioners ultimately declined this recommendation, and voted on January 3, 2013, to close the investigation. [17]

During the 2010s, the European Commission engaged in antitrust scrutiny of Google, leading to the company being found guilty of competition law breaches in three separate cases. [18] The United States v. Google lawsuit has been specifically compared to the European Commission's lawsuit against Google's Android practices. [19]

Launch of lawsuit and initial response (2020)

The Department of Justice (DOJ) formally brought the case on October 20, 2020, in conjunction with state attorneys general representing the following states: Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas. [1]

Makan Delrahim, then serving as Assistant Attorney General for the DOJ Antitrust Division, had recused himself during the probe earlier in the year due to his past professional work for Google. [20]

Allegations

In United States v. Google LLC, the federal government alleges that Google has unfairly hindered competition in the search market through anti-competitive deals with Apple as well as mobile carriers. [4] The government alleges that, as a result of these practices, Google has accumulated control of around 88% of the domestic search engine market.

In doing so, the government alleges, Google has additionally monopolized the search advertising market at the expense of competing services. [21] Per the government's estimation, Google has been able to accumulate control of over 70% of the search advertising market. [3] As a result of lack of competition, Google has been able to over-charge advertisers versus what they would pay in a competitive environment. [22]

Analysis and public interest

The case has attracted public interest amid scrutiny of the four Big Tech companies. United States v. Google LLC has been compared to the United States v. Microsoft Corp. (2002), a noted antitrust case against Microsoft. [23]

According to John Newman of the University of Miami School of Law, "U.S. v. Google might be the first big case against Big Tech, but it likely won't be the last." [24] Two months after United States v. Google was filed, the FTC would bring on an antitrust case against Facebook. [25]

Public opinion

Polling by advocacy group Demand Progress in October 2020 found that respondents across party lines support the suit by a 48% to 36% margin, with 52% of Republicans and 49% of Democrats found to be in support. [26] A survey of tech workers at various firms conducted by workplace app Blind in October 2020 found that 57% of tech employees polled believe the suit has merit, though only 13% of Google workers said the same. [27]

On September 12, 2023 Kent Walker Google's President of Global Affairs and Chief legal officer was followed by someone dressed up as Mr. Monopoly, as he went to attend the antitrust trial at federal court in Washington, D.C. [28]

Response from elected officials

Ted Cruz official 116th portrait.jpg
Elizabeth Warren, official portrait, 114th Congress.jpg
Senators Ted Cruz (R-TX) and Elizabeth Warren (D-MA) spoke favorably about the lawsuit

Politico noted that the filing of the lawsuit received praise from both Democratic and Republican politicians. [29] Senator Elizabeth Warren (D-MA) praised the DOJ for bringing forth a "legitimate, long-time-coming suit against Google for engaging in anti-competitive, manipulative, and often illegal conduct". [30]

Senator Ted Cruz (R-TX) also praised the lawsuit, arguing that "Google abuses its power not just in the search market by using its monopoly power to make billions, but it also uses it to try to censor the American People". [31] The suit received additional praise from Republican Senators Mike Lee (R-UT) and Josh Hawley (R-MO). [29]

Representative Steve Cohen (D-TN) criticized the timing of the case, which was filed just weeks before the 2020 presidential election. On Twitter, Cohen questioned the DOJ's decision to launch the suit so close to the election:

"Why did the #Trump Administration wait until TWO WEEKS before the election to file a lawsuit over #Google's monopoly power? Call me cynical, but if #antitrust enforcement was a real priority at #DOJ, why did they wait until now?"

In response to questions regarding the timing of the case, Deputy Attorney General Jeffrey A. Rosen defended the DOJ's timeframe, stating that though "we might have even preferred to be quicker", the DOJ sought to "make sure that we've done the work that's necessary" prior to bringing the case. [29]

Response from Google

Eric Schmidt, formerly CEO of both Google and parent company Alphabet Inc., criticized the lawsuit, stating that "There's a difference between dominance and excellence". [32] On Twitter, Google denied the DOJ's allegations, with the company stating that consumers use "Google because they choose to -- not because they're forced to or because they can't find alternatives." [33]

Pre-trial proceedings and developments (2020-2023)

Jonathan Kanter (pictured) succeeded Makan Delrahim, who served under Trump, as Assistant Attorney General for the Antitrust Division in 2021. Jonathan Kanter, Assistant Attorney General.jpg
Jonathan Kanter (pictured) succeeded Makan Delrahim, who served under Trump, as Assistant Attorney General for the Antitrust Division in 2021.

Owing to the accusation that Google engaged in anti-competitive conduct through exclusivity dealings with Apple, it was reported in February 2022 that the government was looking to depose "Apple's most senior executives". [34] On December 12, 2022, Google asked the court to toss out the case, arguing that it fairly achieved its dominant market share and that the DOJ's argument "relies on dubious antitrust arguments." [35]

As of 2023, Google is represented in the case by attorneys from Williams & Connolly, Wilson Sonsini Goodrich & Rosati, and Ropes & Gray. [36] On August 4, 2023, Judge Mehta ruled Google will not face allegations the search engine prioritized associated products over competitors in the trial, but will allow allegations over Google's use of anti-competitive contracts dealing with Search and Android to go to trial. [37]

In February 2023, the DOJ accused Google of destroying evidence relevant to the lawsuit, and requested that Google be formally sanctioned. [38] [39] The DOJ alleged that Google employees used an internal chat service with "autodelete" settings prior to and during the course of the lawsuit. [40] According to the DOJ, the Federal Rules of Civil Procedure meant that Google should have ceased the use of auto-deletion of employee chat messages as early as May 2019 in anticipation of a federal lawsuit. Similar accusations were made in the Epic Games v. Google antitrust case. [41]

Efforts to recuse Jonathan Kanter

Following the confirmation of Jonathan Kanter as Assistant Attorney General for the DOJ Antitrust Division, Google questioned Kanter's impartiality in the case given his past work for rival companies. [42]

Constitutional scholar Laurence Tribe criticized Google's claims, arguing they have "little legal basis and strain common sense". [43] In May 2022, it was reported that Kanter would be barred from working on the case as the DOJ considers mandating his recusal. [44]

Google's demands that Kanter recuse himself was met with criticism from politicians from both major parties. Senator Elizabeth Warren (D-MA), a Democrat, accused Google of engaging in bullying tactics. [45] Kanter was ultimately cleared by the DOJ to participate in the department's scrutiny of Google in January 2023. [46]

Trial proceedings (2023-2024)

The trial started on September 12, 2023. [47] [5] In its opening statements, the DOJ accused Google of unlawfully maintaining a monopoly in the search engine market as early as 2010. [48] Google has defended itself from these accusations, with the company arguing that the high quality of its search products allows it to maintain a dominant position in the market. [49]

During the trial, Judge Mehta's received criticism for closing courtroom access for certain testimonies in the case and for delaying the release of public documents pertaining to the case. [50] [51] Media companies including Bloomberg News filed a motion to increase public trial access. [52] Following a week of deliberations between both parties, Mehta decided on September 27 that the DOJ would be permitted to publicly release documents shown in the trial. [53]

Much of the trial centered on Google's deal with Apple to have Google search as the default option on the Safari web browser. [54] [55] Witnesses from Google, Verizon and Samsung testified about the impact of Google's annual payments of approximately $10 billion to maintain default status for Google search. [56] Following the culmination of the government's case in the week of October 19, 2023, Google began its defense in court on October 26. [6] The trial ended up concluding on November 16, 2023. [7]

Following the trial, Judge Mehta announced that closing arguments in the suit would be held in May 2024, and indicated he was uncertain as to how he would end up ruling in the case. [57] Attorneys from both sides reconvened to make their arguments on May 3 and May 4, 2024. [8]

Reuters reported that legal analysts expect that there will likely be an appeal in the case, regardless of how it is decided. [9] How the case is ultimately decided is considered to potentially set precedent that could impact other federal antitrust suits against "Big Tech" companies (Meta Platforms, Amazon, and Apple). [10] [11]

In December 2020, 38 states brought on a similar lawsuit against Google. Co-led by Colorado Attorney General Phil Weiser, the State of Colorado et al. v. Google LLC [58] case reportedly "goes beyond the DOJ's" in its scope of accusations, according to CNBC. [59]

In July 2021, attorneys general from 36 states and the District of Columbia (D.C.) launched an antitrust lawsuit alleging that Google has hindered competition in the app market through its Google Play store policies. [60] In September 2023, all fifty states as well as D.C. and Puerto Rico reportedly "reached an agreement in principle" to settle the case. [61]

In January 2023, the DOJ filed a second antitrust suit against Google centered on alleged anti-competitive conduct in the advertising technology (adtech) market. [62] A spokesperson for Google denied the allegations of the lawsuit and accused the DOJ of trying to "pick winners and losers in the highly competitive advertising technology sector.” [63] The lawsuit is set to go to trial on September 9, 2024. [64]

Reportedly pending future lawsuits

In addition to both ongoing federal antitrust lawsuits against Google, it was reported in 2022 that the DOJ was in the process of investigating if Google has engaged in anti-competitive conduct through bundling its Google Maps service with company software. [65] In 2023, Politico reported that the probe focuses on the Google Automotive Services (GAS) offering provided to automakers, which includes the Maps service, the Play store, and Google's voice assistant. The probe also scrutinizes Google's control of location data through Google Maps. [66]

See also

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