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United States v. Google LLC (2020)

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United States v. Google LLC
CourtUnited States District Court for the District of Columbia
Full case name United 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 sittingAmit 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 through anti-competitive behavior in the search engine and search advertising markets.[1]

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] On September 12, 2023, the trial formally began in the District Court for the District of Columbia, with the weeks-long trial expected to extend into late November 2023.[4] Google is set to begin its defense in court on October 26, 2023.[5]

The DOJ filed a second antitrust lawsuit against Google over the company's advertising market practices in 2023.[6]

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.[7] 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".[8]

Prior antitrust scrutiny of Google

In 2008, scrutiny from the Department of Justice (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".[9]

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

In 2011, members of the U.S. 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.[10]

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.[11] The United States v. Google lawsuit has been specifically compared to the European Commission's lawsuit against Google's Android practices.[12]

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.[13] 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.[14] 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.[15]

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.

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.[16] In 2020, the case was determined to be likely to go to trial in September 2023.[17]

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 is looking to depose "Apple's most senior executives".[18] 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."[19]

In 2023, the DOJ accused Google of destroying evidence relevant to the lawsuit.[20] As of 2023, Google is represented in the case by attorneys from Williams & Connolly, Wilson Sonsini Goodrich & Rosati, and Ropes & Gray.[21]

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.[22]

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.[23]

Constitutional scholar Laurence Tribe criticized Google's claims, arguing they have "little legal basis and strain common sense".[24] In May 2022, it was reported that Kanter would be barred from working on the case as the DOJ considers mandating his recusal.[25]

Google's demands that Kanter recuse himself was met with criticism from politicians from both major parties. Senator Elizabeth Warren (D-MA) accused Google of engaging in bullying tactics.[26] Representative Paul Gosar (R-AZ), a Republican, wrote to the DOJ to advocate for Kanter's ability to participate in the case.[citation needed] Kanter was ultimately cleared by the DOJ to participate in the department's scrutiny of Google in January 2023.[27]

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.[28]

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."[29] Two months after United States v. Google was filed, the FTC would bring on an antitrust case against Facebook.[30]

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.[31] 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.[32] 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.[33]

Response from elected officials

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.[34] 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".[35]

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".[36] The suit received additional praise from Republican Senators Mike Lee (R-UT) and Josh Hawley (R-MO).[34]

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.[34]

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".[37] 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."[38]

District Court trial (2023-present)

The trial started on September 12, 2023.[39][4] In its opening statements, the DOJ accused Google of unlawfully maintaining a monopoly in the search engine market as early as 2010.[40] 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.[41]

Much of the trial has centered on Google's deal with Apple to have Google search as the default option on the Safari web browser.[42][43] 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.[44]

Following the culmination of the government's case in the week of October 19, 2023, Google is set to begin its defense in court on October 26.[5]

In December 2020, a coalition of 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[45] case reportedly "goes beyond the DOJ's" in its scope of accusations, according to CNBC.[46]

In July 2021, a coalition of 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.[47] In September 2023, all fifty states as well as D.C. and Puerto Rico reportedly "reached an agreement in principle" to settle the case.[48]

In January 2023, the DOJ filed a second antitrust suit against Google, centering on alleged anti-competitive conduct in the advertising technology (adtech) market.[49] 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.”[50]

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.[51] 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.[52]

See also

References

  1. ^ a b "Justice Department Sues Monopolist Google For Violating Antitrust Laws". Department of Justice. October 20, 2020. Retrieved May 29, 2022.
  2. ^ Scarcella, Mike (September 11, 2023). "Explainer: Why is the US suing Google for antitrust violations?". Reuters. Retrieved October 19, 2023.
  3. ^ a b c Feiner, Lauren (October 20, 2020). "Google sued by DOJ in antitrust case over search dominance". CNBC. Retrieved May 30, 2022.
  4. ^ a b "Google's search engine dominance is at the center of the biggest US antitrust trial in decades". AP News. September 11, 2023. Retrieved October 19, 2023.
  5. ^ a b Nylen, Leah (October 19, 2023). "DOJ Google Antitrust Case Wraps With Apple Deal on Center Stage". Bloomberg. Retrieved October 19, 2023.
  6. ^ Feiner, Lauren (January 24, 2023). "DOJ files second antitrust suit against Google, seeks to break up its ad business". CNBC. Retrieved March 24, 2023.
  7. ^ Swartz, Jon. "Big Tech heads for 'a year of thousands of tiny tech papercuts,' but what antitrust efforts could make them bleed?". MarketWatch. Retrieved May 30, 2022.
  8. ^ Feiner, Lauren (October 6, 2020). "House Democrats say Facebook, Amazon, Alphabet, Apple enjoy 'monopoly power' and recommend big changes". CNBC. Retrieved May 30, 2022.
  9. ^ "#08-981: Yahoo! Inc. and Google Inc. Abandon Their Advertising Agreement (2008-11-05)". www.justice.gov. Retrieved May 30, 2022.
  10. ^ Nylen, Leah. "How Washington fumbled the future". POLITICO. Retrieved May 29, 2022.
  11. ^ Feiner, Lauren (December 18, 2020). "Google's antitrust mess: Here are all the major cases it's facing in the U.S. and Europe". CNBC. Retrieved May 29, 2022.
  12. ^ Bergqvist, Christian (November 12, 2020). "What the Department of Justice Can Learn from the European Union's Antitrust Investigations Into Google". ProMarket. Retrieved May 30, 2022.
  13. ^ Kang, Cecilia; McCabe, David; Wakabayashi, Daisuke (October 20, 2020). "U.S. Accuses Google of Illegally Protecting Monopoly". The New York Times. ISSN 0362-4331. Retrieved May 29, 2022.
  14. ^ Bokat-Lindell, Spencer (October 22, 2020). "Opinion | The Case Against Google". The New York Times. ISSN 0362-4331. Retrieved May 29, 2022.
  15. ^ Kendall, Brent (October 21, 2020). "U.S. v. Google: A Guide to the Government's Lawsuit". The Wall Street Journal.
  16. ^ Rund, Jacob; Holland, Jake; Beyoud, Lydia (October 21, 2020). "DOJ Trots Out Corporate, Tech Veterans in Google Antitrust Probe". Bloomberg Law. Retrieved May 29, 2022.
  17. ^ Feiner, Lauren (December 18, 2020). "DOJ case against Google likely won't go to trial until late 2023, judge says". CNBC. Retrieved May 30, 2022.
  18. ^ "Top Apple executives likely to be deposed in U.S. fight with Google". Reuters. February 11, 2022. Retrieved May 30, 2022.
  19. ^ Bartz, Diane (December 13, 2022). "Google asks court to toss out federal antitrust lawsuit". Reuters. Retrieved December 14, 2022.
  20. ^ Michaels, Dave (February 23, 2023). "Justice Department Says Google Destroyed Evidence Related to Antitrust Lawsuit". The Wall Street Journal. Retrieved March 31, 2023.
  21. ^ Perlman, Matthew (April 27, 2023). "Google Search Judge Needs More Info On Chat Sanctions Bid". Law360. Retrieved June 6, 2023. Google is represented by John E. Schmidtlein, Benjamin M. Greenblum and Colette T. Connor of Williams & Connolly LLP, Wendy Huang Waszmer, Susan A. Creighton and Franklin M. Rubinstein of Wilson Sonsini Goodrich & Rosati PC and Mark S. Popofsky and Matthew McGinnis of Ropes & Gray LLP.
  22. ^ Fung, Brian (August 4, 2023). "Judge narrows Trump-era Google antitrust case brought by states and the Justice Department. CNN Business". CNN. Retrieved August 5, 2023.
  23. ^ "Google, Backed by Hogan Lovells, Asks DOJ to Investigate Kanter Recusal". National Law Journal. Retrieved May 29, 2022.
  24. ^ Tribe, Laurence (February 1, 2022). "Google's Calls for Jonathan Kanter's Recusal Are Baseless". ProMarket. Retrieved May 29, 2022.
  25. ^ Nylen, Leah (May 10, 2022). "Antitrust Chief Barred From Google Cases Amid Recusal Push". Bloomberg.com. Retrieved May 29, 2022.
  26. ^ Brody, Ben (January 5, 2022). "Elizabeth Warren wants Jonathan Canter on the Google lawsuit - Protocol". Protocol. Retrieved October 19, 2023.
  27. ^ Sisco, Josh (January 13, 2023). "DOJ antitrust chief cleared to oversee Google probes". POLITICO. Retrieved March 31, 2023.
  28. ^ Rosoff, Matt (October 20, 2020). "DOJ case against Google has strong echoes of Microsoft antitrust case". CNBC. Retrieved May 30, 2022.
  29. ^ Carreras, Daniela (October 21, 2020). "United States v. Google LLC: Cracking Down on Big Tech". University of Miami Law Review.
  30. ^ Kang, Cecilia; Isaac, Mike (December 9, 2020). "U.S. and States Say Facebook Illegally Crushed Competition". The New York Times. ISSN 0362-4331. Retrieved May 29, 2022. The investigations already led to a lawsuit against Google, brought by the Justice Department two months ago, that accuses the search giant of illegally protecting a monopoly.
  31. ^ Gold, Ashley (October 28, 2020). "Exclusive: Poll shows bipartisan support for tech antitrust action". Axios. Retrieved May 30, 2022.
  32. ^ Levitsky, Allison (October 21, 2020). "Lots of tech employees say Google anti-trust action has merit. Google workers say otherwise". Silicon Valley Business Journal. Retrieved May 30, 2022.
  33. ^ Harshawn Ratanpal (October 5, 2023). "Google ramped up federal lobbying ahead of DOJ antitrust showdown". Open Secrets. Retrieved October 7, 2023.
  34. ^ a b c Lima, Cristiano (October 20, 2020). "DOJ's Google suit meets bipartisan praise, but questions arise on its motives". POLITICO. Retrieved June 1, 2023.
  35. ^ Kafka, Peter (October 20, 2020). "Bill Barr and Elizabeth Warren find a common enemy: Google". Vox. Retrieved May 30, 2022.
  36. ^ Sozzi, Brian (October 21, 2020). "Senator Ted Cruz: Big tech companies like Google are 'drunk on power'". Yahoo! Finance. Retrieved May 30, 2022.
  37. ^ Copeland, Rob (October 21, 2020). "Former Google CEO Fires Back at Justice Department's Antitrust Suit". The Wall Street Journal.
  38. ^ "Justice Dept. files landmark antitrust case against Google". Associated Press. April 20, 2021. Retrieved June 1, 2023.
  39. ^ Sisco, Josh; Bordelon, Brendan (September 12, 2023). "Google's antitrust trial for the 'future of the internet' starts up". Retrieved October 7, 2023.
  40. ^ Choi, Inyoung (September 15, 2023). "DOJ v. Google: Landmark antitrust case wraps up first week". NBC News. Retrieved October 19, 2023.
  41. ^ Bartz, Diane (October 18, 2023). "Google executive defends search quality in US antitrust trial". Reuters. Retrieved October 19, 2023.
  42. ^ Kruppa, Miles (September 26, 2023). "Google Trial Spills Details on Search Engine's Deals With Apple, Samsung". WSJ. Retrieved October 19, 2023.
  43. ^ Pierce, David (October 11, 2023). "The Google trial shows that Apple's search deal is the most important contract in tech". The Verge. Retrieved October 19, 2023.
  44. ^ Bartz, Diane (October 12, 2023). "Five things to know about the Google antitrust trial as it hits halfway mark". Reuters. Retrieved October 19, 2023.
  45. ^ Perlman, Matthew (December 17, 2020). "Google Hit With 3rd Monopolization Suit". Law360. Retrieved May 29, 2022. The case is State of Colorado et al. v. Google LLC, case number 1:20-cv-03715, in the U.S. District Court for District of Columbia.
  46. ^ Feiner, Lauren (December 17, 2020). "Google hit with its third antitrust lawsuit since October, this time by a bipartisan coalition of states". CNBC. Retrieved May 29, 2022.
  47. ^ Feiner, Lauren (July 7, 2021). "States bring a new antitrust suit against Google over its mobile app store". CNBC. Retrieved May 29, 2022.
  48. ^ "Google reaches tentative settlement with all 50 states over alleged app store monopoly". AP News. September 6, 2023. Retrieved October 19, 2023.
  49. ^ Feiner, Lauren. "DOJ files second antitrust lawsuit against Google". CNBC. Retrieved January 24, 2023.
  50. ^ Kruppa, Miles; Schechner, Sam; Michaels, Dave (January 24, 2023). "DOJ Sues Google, Seeking to Break Up Online Advertising Business". The Wall Street Journal. Retrieved March 31, 2023.
  51. ^ Bartz, Diane; Dave, Paresh (March 30, 2022). "Exclusive: U.S. probe of Google Maps picks up speed". Reuters. Retrieved May 29, 2022.
  52. ^ Sisco, Josh (February 22, 2023). "DOJ pushes ahead with Google Maps antitrust probe". POLITICO. Retrieved April 2, 2023.
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