AAI Warns Court in Google Case that Grant of Summary Judgment in Favor of Google Could Open Up Significant Loopholes in Section 2 Enforcement

AAI has submitted a motion for leave to file an amicus brief and a proposed amicus brief in the District Court for the District of Columbia in State of Colorado, et al. v. Google LLC arguing against Defendant Google’s motion for summary judgment on claims by the U.S. Department of Justice and several State Attorneys General that Google has monopolized markets for search and search advertising in violation of Section 2 of the Sherman Act. The States and the DOJ allege that Google has constructed a web of restrictive contracts and conduct that blocks the path of any challenger to Google’s monopolies in general search and search advertising. AAI’s amicus argues against Google’s claim that there can be no violation because each of its restrictions, viewed in isolation, does not meet the criteria for Sherman Act Section 2 liability. AAI’s brief points out that Google’s argument mischaracterizes the precedent in two ways, both of which present a danger to effective Section 2 enforcement.

First, AAI argues that Google’s motion for summary judgment 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. AAI points out that precedent requires that the anticompetitive effect of each individual restriction be assessed in light of the overall anticompetitive scheme. AAI notes that any other rule would, as a practical matter, carve a giant loophole in Sherman Act enforcement and allow a sufficiently clever monopolist to legalize monopolistic conduct by imposing a variety of interrelated and mutually reinforcing restrictions instead of a one-size-fits-all approach.

Second, AAI argues that the court should reject Google’s attempt to “immunize” the anticompetitive conduct alleged by the States regarding Google’s treatment of Specialized Vertical Providers, like TripAdvisor, and use of its SA360 search advertising tool to disadvantage competitors by invoking inapplicable precedent on product design, refusal to deal, and price-squeeze. AAI’s brief shows that, in all three cases, Google’s argument impermissibly broadens the scope of the previous precedent on exceptions to antitrust scrutiny, and it describes how the conduct alleged by the States falls outside of any of these three areas of precedent and squarely within Section 2 liability. On this basis, AAI argues that Google’s motion for summary judgment should be refused and the States’ claims should be allowed to proceed to trial.

The brief was written by AAI Vice President of Legal Advocacy Kathleen Bradish, with invaluable assistance from AAI Research Fellow Mathew Simkovits. Several AAI Advisory Board members also provided assistance.

Read the full brief here: AAI Google Amicus Brief