Law360 published on a February 21, 2023 article, Antitrust Group, Economists Back DOJ, AGs Against Google, extensively citing AAI and its brief supporting the DOJ and state attorneys general in their antitrust lawsuit against Google and opposing Google’s motion for summary judgment on allegations of monopolizing search and search advertising markets in violation of Section 2 of the Sherman Act. AAI Vice President for Legal Advocacy, Kathleen Bradish, was quoted on AAI’s concern with appropriate standards for determining whether a Section 2 case should proceed to trial. From the article:
“Google’s divide and conquer approach ignores the Supreme Court’s directive to consider the whole of the alleged antitrust violation and not ‘wipe the slate clean’ after analyzing each component. As discussed in detail below, precedent requires that the anticompetitive effect of each individual restriction be assessed in light of the overall anticompetitive scheme,” AAI said.
“Any other rule would, as a practical matter, carve a giant loophole in Sherman Act enforcement,” the AAI said. “A sufficiently clever monopolist could legalize monopolistic conduct by imposing a variety of interrelated and mutually reinforcing restrictions instead of a one-size-fits-all approach or by hiring a sufficiently clever lawyer to chop up the anticompetitive scheme.”
The AAI brief assailed several Google efforts to assert “supposed exceptions to antitrust scrutiny,” including by contending the design of its products is “a kind of sacred space where antitrust has no role,” according to the group.
“No court has adopted a rule of per se legality for product design choice. To the contrary, the binding precedent in this court is clear that a product design, even if it includes an improvement, is not immune from antitrust scrutiny,” AAI said.
An attorney for the group, in-house counsel Kathleen Bradish, told Law360 that AAI focused on the state enforcers’ case because the arguments there were focused principally on the standards that govern this stage of the case. “Which obviously we have great concern about,” she said.