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DOJ v. Google: DOJ Alleges Google’s ‘Anticompetitive’ Practices Violate Sherman Act

Antitrust Reports

Complaint, U.S. and Plaintiff States v. Google LLC, No. 1:20-cv-03010, (D.D.C. Oct. 20, 2020), complaint hosted by DOJ Office of Public Affairs.

Following a sixteen-month investigation into the company’s allegedly anticompetitive practices, the U.S. Department of Justice (“DOJ”), joined by the Attorneys General of eleven states, filed an antitrust lawsuit against Google, LLC on October 20 of this year. The action presents three claims for relief under Section Two of the Sherman Antitrust Act, 15 U.S.C. §§ 1–7 (1890), contending that Google illegally maintains monopolies over markets for (I) general search services, (II) search advertising, and (III) general search test advertising.

The DOJ argues that Google holds “exclusionary agreements” with companies that guarantee Google as the default search engine on many of the country’s most widely used devices. These agreements purportedly give Google control over the search engine market and, by extension, unparalleled power over the Internet as a whole. The complaint focuses on two of these alleged anticompetitive contracts in particular: (I) Google’s contracts with Apple, which secure its status as Safari’s default search engine, and (II) Google’s agreements with Android device manufacturers, which require default search engine status in addition to preinstallation of Google apps. These latter agreements have already been the subject of litigation in Europe. According to the complaint, Apple iOS and Android operating systems collectively account for over 99 percent of all mobile devices in the United States. The DOJ highlights that in recent years, almost 95 percent of search-engine queries on mobile devices have been performed through Google. Beyond just mobile devices, the complaint states that Google encompasses nearly 90 percent of all search-engine queries in the United States.

According to the DOJ’s official statement, Section Two of the Sherman Act empowers the DOJ to “remedy violations and restore competition,” as it did in historic lawsuits against Standard Oil and AT&T. The DOJ claims that Google’s “monopolist” agreements and exclusionary tactics constitute an abuse of power that violates the Sherman Act through suppression of productive competition in the general search and advertising markets. The DOJ advances this argument in claiming that Google’s grip on the online-search market harms advertisers by supplying Google the unfair power to charge higher rates for lower-quality services, and harms consumers by impeding innovation and restricting user-choice in search. The complaint’s Request for Relief seeks redress of these harms by enjoining Google’s anticompetitive practices and providing any relief necessary to restore competition in markets harmed by Google’s conduct.

Google publicly responded to the lawsuit the same day it was filed, in an official blog post written by Kent Walker, Google’s SVP for Global Affairs and former Assistant U.S. Attorney for the DOJ. The blog post, titled “A deeply flawed lawsuit that would do nothing to help consumers,” rejects the DOJ’s claims, asserting that Google’s contracts with device manufacturers are not anticompetitive or even unique. Google competes for these agreements with other search engines like Bing and Yahoo!, who contract with the same companies to feature prominently on device interfaces. Walker stresses the ease with which a user can switch her default search engine from one service to another, rebutting the contention that Google possesses unfair control over the search engine market. Addressing the DOJ’s accusation on a broader scale, Walker writes that, rather than acting as the “the gatekeeper of the Internet,” Google is only one of many companies with a major Internet presence, and its main competitors are not other search engines. Walker points to Amazon, online travel agencies, and social media platforms as more relevant actors in “how Americans use the Internet” and find information.

The DOJ’s antitrust action bears strong resemblances to U.S. v. Microsoft Corp., 253 F.3d 34 (2001), hosted by In that case, the DOJ accused Microsoft of using exclusionary agreements to inhibit web browsers that competed with Internet Explorer, and Microsoft replied with the defense that users could freely switch their default browsers. The D.C. Circuit found that defense unpersuasive in its decision that Microsoft violated antitrust laws, a ruling that implied default settings can constitute anticompetitive practices if used to preserve a monopoly.

However, in addition to the default-setting defense, Google invokes its benefit and favorability among American companies and users. Kent Walker cites a Morning Consult study and statement by Apple CEO Tim Cook to support his argument that Google has not forced itself on American markets, but is instead chosen by American consumers and companies because it is the best search engine available, and free to use. This line of reasoning responds to the DOJ’s stated purpose in bringing the lawsuit: to redress the harmful effects Google’s conduct has had on both the market and consumers.

Ultimately, the D.C. district court will have to decide whether Google’s competitive conduct presents an overall burden or benefit to American consumers and companies. Brian Fung, for CNN Business, outlines the legal evolution of antitrust law toward a concern with consumer harm and claims Google’s defense is centered around exactly that concern. The court will also have to weigh the productive effects of Google’s behavior against its anti-competitive impact, an approach often called the “Rule of Reason.” Frank Easterbrook, Judge of the United States Court of Appeals for the Seventh Circuit, offers a critique of such an approach to antitrust law. Further, unsuccessful regulation of Big Tech has incited a growing push for antitrust reform, an overview of which is provided by David Streitfeld of the New York Times. The stage is set for the DOJ’s lawsuit to make waves in the field of antitrust law and set a precedent for the acceptable bounds of power in Big Tech.

Colin Rahill is a 1L at Harvard Law School.