Ex-DOJ Officials Say Potential Google Antitrust Case Would Be Steep Climb
If enforcers pursue an antitrust case against Google, it will be difficult to prove and is unlikely to result in major platform restructuring, ex-DOJ officials said in interviews. Econ One Research Managing Director Hal Singer argued there's a case to be made against Google’s advertising technology practices, and Public Knowledge Senior Policy Counsel Charlotte Slaiman cautioned against predictions until all facts are known.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
“The energy is pointing toward a lawsuit here,” antitrust attorney David Balto said, citing recent reports that DOJ and state attorneys general are likely preparing a case (see 2004220067). It will be much more difficult to prove than the Microsoft case in the 1990s, he said, saying he doesn’t anticipate major restructuring at Google. “Maybe on the margin, there might be some practices” that Google engaged in raising competitive concerns, he continued: Maybe those practices will be revised through discussions with DOJ, “but I don’t think you’re looking at a significant change in the market at all.”
“It’s going to be really hard to show a harm inflicted by Google unless you can fit the conduct into some well-established rubric the courts have embraced,” said Singer. He described the rubric as a surrogate test, or markers that are indicative of anticompetitive effects without having to show the effects. Singer said it might be possible to prove such a case based on Google’s practice of requiring advertisers to use the company’s demand-side platform to advertise on YouTube. Yale economist Fiona Scott Morton highlighted that behavior and other potential cases in a recent paper with Omidyar Network Senior Adviser David Dinielli.
It’s hard to say what case DOJ can make because there are nonpublic facts, Slaiman said. She also cited Morton’s recent paper and noted that enforcement action against Google in the U.K. could produce relevant industry analysis for U.S. enforcers.
Doyle Barlow partner Andre Barlow doesn’t anticipate fundamental restructuring of Google. Like Balto, he said it’s possible enforcers could pursue remedies for specific practices on the fringe. Even with Microsoft, which he said showed more blatant, egregious activity, there wasn’t any restructuring of the company, he noted.
“I don’t think there will be a break up or probably even a major change at Google,” said Cleveland-Marshall College of Law professor Chris Sagers. A potential lawsuit would be an uphill effort before a “judiciary that has not been very welcoming to unusual antitrust theories in the past few decades,” he said: If DOJ does win, it’s likely to get a “modest-to-moderate conduct remedy, that probably will involve” independent conduct assessments for five to seven years.
Balto noted very few monopoly cases succeed because U.S. enforcers don’t want to punish success: “We want to enable firms to grow large and compete aggressively.” Enforcers need proof of improper conduct against rivals, that consumers are harmed through higher prices or less choice, which is a “daunting task” for DOJ, he said.
If enforcers pursue a Google case, Slaiman believes agencies will still have the resources to target other platforms like Amazon. Barlow agreed, saying “resources can be moved to different cases, but I don’t think one company gets a pass because another company is maybe facing a lawsuit. The same rules apply.” DOJ and Google didn't comment.