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DOJ faces hurdles in antitrust battle with Google

The Dept. of Justice will need to overcome several hurdles to prove Google's alleged anticompetitive conduct in the online search market.

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The U.S. Dept. of Justice will run into numerous challenges on its quest to successfully sue Google in an antitrust trial that commenced this week.

The DOJ, along with 11 state attorneys general, sued Google in 2020 to stop the company from using anticompetitive practices to maintain an alleged illegal monopoly of online search and search advertising markets. The DOJ alleges that Google entered into exclusionary agreements with mobile phone companies and app operators like Apple to keep its search engine as the default option on mobile devices over competitors, which affected innovation and reduced competition in online search engines.

The DOJ claims that Google's tactic of using exclusionary agreements to keep its online search product on top is like Microsoft's anticompetitive activity in the 1990s. In the DOJ's Microsoft case regarding internet browser competition, the courts found that antitrust laws forbade agreements requiring default status for certain products and the inability to delete preinstalled products.

The DOJ's Google antitrust case is a "cookie cutter" version of the Microsoft case that might struggle to hold up in court if the DOJ can't prove that Google's dominance was solely tied to paying companies like Apple and entering into an exclusive agreement to keep Google search the default option, said Colin Kass, co-chair of the antitrust group at law firm Proskauer Rose LLP.

"The DOJ is going to face incredible hurdles in actually winning this case," Kass said.

Challenges facing DOJ in Google antitrust trial

By bringing a case that looks similar to the Microsoft complaint, Kass said the DOJ is likely expecting to get a result along the same lines, which could include breaking up the company. But they're not the same markets.

The DOJ will need to show not just that Google paid to get its search technology distributed to consumers but also that its top competitors, like Microsoft's Bing -- a company that also has vast resources -- couldn't do the same if it had an equally good or superior search engine.

"It's kind of hard to believe that if Microsoft's search engine really was superior to Google's that it couldn't get distribution if it wanted to or that consumers couldn't figure out how to download the Bing search bar when they wanted to," he said.

Another challenge facing the DOJ is Google's vast legal resources and how the company has shored up its defenses over the years, said George Hay, an antitrust law professor at the Cornell University School of Law. The government is disadvantaged because Google's actions, such as entering into contracts, have been vetted by a "whole team of people thinking about [if this is] legal or not."

The DOJ is going to face incredible hurdles in actually winning this case.
Colin KassPartner, Proskauer Rose LLP

"Everything Google does and everything they've done in the last ten years has been done essentially in the public," he said. "They know that every contract they enter into, they're being watched by the DOJ, by the FTC, by 50 state attorneys general and [by] an army of private litigants. Google doesn't do things that the lawyers say are definitely illegal. That's why the government has a hard time in these big cases."

Despite the challenges, Kass said if the DOJ is ultimately successful in the Google antitrust trial, it could significantly impact major platform providers. A DOJ win might make big tech companies more cautious when it comes to such contracts.

"If they win, it turns the DOJ into a credible litigant in a monopolization case," he said. "But I don't think it will have broad effects throughout the tech industry because there are few companies that have the size and market share of Google."

Going forward, how the court defines the online search market and competition for advertising, as well as determining whether Google has monopoly power, will affect other antitrust cases, said Joe Coniglio, director of antitrust and innovation policy at the Information Technology and Innovation Foundation.

"Those are all very important questions that could have a lot of implications throughout antitrust jurisprudence, particularly with other potential investigations and lawsuits that the DOJ and FTC have been considering or are considering," he said.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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