A landmark trial in Washington sets the stage for a wave of anti-monopoly litigation against tech giants.
On Friday, Mehta rejected the DOJ’s arguments around a related emerging technology, voice assistants. The DOJ had said Google’s restrictive conduct extended to “emerging search access points, such as voice assistants,” butSeveral dozen state attorneys general, which filed a similar lawsuit in December 2020, will also try their case alongside the DOJ.
The states are also challenging Google’s default position and also separately argued that Google designs its search pages to discriminate against more specialized rivals like Yelp for local businesses, or Expedia for travel. Last month, however, Mehta, saying the AGs offered no evidence that Google’s conduct harmed the specialized search market. While the DOJ did not bring similar allegations related to the specialized search market, it still intends to discuss at trial the impact of Google’s conduct on those companies.The DOJ’s lawsuit leans heavily on its antitrust case against Microsoft from the late 1990s. There the government accused the software giant of monopolistic behavior in making Internet Explorer the default browser in its Windows operating system, using the dominance of Windows to crush potential competitors such as Netscape. The government initially won that case in district court, including a ruling breaking up the company. That was reversed on appeal, and the case ultimately ended in a settlement where Microsoft agreed to not block rival software companies in its contracts with computer makers. A number of state attorneys general objected to the settlement, saying it did not go far enough, but were overruled. It’s a case that Google’s lawyers are well acquainted with. Walker was Netscape’s deputy general counsel from 1997 to 2001, while Google’s longtime outside counsel, Susan Creighton of the tech-focused law firm Wilson Sonsini, authored a prominent white paper outlining the antitrust case against Microsoft. Schmidtlein, Google’s lead trial lawyer from the Washington law firm Williams & Connolly, represented state AGs in their case against Microsoft, and Mark Popofsky, another outside lawyer for Google from the law firm Ropes & Gray, was on the DOJ team. Kenneth Dintzer, the 30-year DOJ veteran leading the department at trial, also did early investigative work into Microsoft in the mid-1990s. Other current DOJ lawyers were involved in the Microsoft case as well. The case remains a key legal precedent limiting how companies can leverage their dominance in one market to gain market share in a separate market. If Mehta follows that precedent from Microsoft, the DOJ believes it will prevail. “I think the DOJ case asserts law and facts consistent with the Microsoft opinion from [the D.C. Circuit Court of Appeals] 22 years ago,” Baer said.Though the search case was initially filed during the Trump administration, current DOJ antitrust head Kanter has built a long legal career representing the company’s competitors, including Microsoft, and played a key role in shaping the search case first from outside the department. Google has argued that Kanter should recuse himself, saying the DOJ’s current posture toward the company stems in large part from Kanter’s bias. The DOJ, meanwhile, has said Google has sought to stymie its investigation and lawsuit at every turn. And while bare-knuckle tactics are common in every courtroom, the government says Google destroyed a great deal of evidence in the form of deleted internal instant messages and abused its legal privilege to withhold other documents. The trial will be peppered throughout with disputes over missing evidence, and Mehta could ultimately sanction the company if he finds it acted nefariously.
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