Google's Deals Face Biggest DOJ Antitrust Case In Years – Law360

A foundational piece of the internet is about to be tested as Google fights U.S. Justice Department allegations that the company created an illegal online stranglehold by paying billions of dollars annually to provide the default search engine on iPhones, Mozilla browsers and Verizon devices.

. . .

Judge Mehta also said that while Google's Android phone default contracts theoretically allow phone makers to install other search engines, none of them has, and "it may be that market realities are such that once Google occupies the default search widget, a rival cannot realistically hope to compete for another place on an Android device's home screen."

Daniel McCuaig, a longtime DOJ antitrust litigator and now a partner at Cohen Milstein Sellers & Toll PLLC, said the phone contracts are the strongest part of the DOJ's case. Phone makers that want to offer devices that run on the Android operating system, he said, "pretty much need to offer the Google Play Store." McCuaig pointed to the part of Judge Mehta's decision where he noted that in the last three years, no company selling Android smartphones in the U.S. has included both the Google Search widget and that of a rival.

"There you have real effects on competition," in a way that doesn't benefit users, McCuaig said. "That just blocks a competitor from any kind of even footing."

. . .

An important part of the trial will be evidence that isn't there, evidence the DOJ may argue was obscured by Google document retention policies. In particular, the DOJ may argue at various points that it would have even stronger evidence if not for Google's failure to undo a default chat policy deleting instant messages after 24 hours.

If the case were a jury trial, McCuaig said the judge could issue instructions on how to weigh the deletion. "But because of a bench trial, you don't really have to do that," McCuaig said, meaning Judge Mehta has the discretion to give the absence the weight he thinks it deserves.

Read Google's Deals Face Biggest DOJ Antitrust Case In Years.