Judge Deciding Google Antitrust Fate Criticized for Closed Court

Amit P. Mehta, the federal judge overseeing the Justice Department’s fight with Alphabet Inc.'s Google, brings antitrust experience and a reputation for thoroughness to the high-stakes trial playing out in his Washington, D.C., courtroom.

Mehta, a judge on the US District Court for the District of Columbia, is weighing allegations that Google illegally monopolized the market for search engines through a web of contracts with major tech companies. Mehta is deciding the case without a jury, and has drawn fire for decisions on publicizing evidence and whether to close the courtroom for parts of the proceedings.

If Mehta decides in the Justice Department’s favor, he’ll consider a range of remedies, including breaking up Alphabet.

Mehta has experience with prior business cases, litigating white-collar defense, business disputes, and appellate advocacy at Zuckerman Spaeder before President Barack Obama nominated him to the D.C. federal bench in 2014. He also served as an attorney for the D.C. public defender service from 2002 to 2007.

The University of Virginia School of Law graduate is known for carefully and deliberately working his way through documents in litigation. Both sides in the Google case have produced millions of pages of evidence and more than 150 depositions.

The judge has been “engaged, even-handed, thoughtful, sharp, and grasping some very technical terms,” said Jason Kint, chief executive officer at Digital Content Next, a trade association representing media companies, including Bloomberg, who’s been in the courtroom for some of the trial.

Mehta didn’t respond to interview requests.

Closing Court

Mehta has been criticized for how often he’s closed his courtroom for certain testimony, and delaying a ruling on when trial exhibits could be made public. That’s a departure from much of his prior practice. For example, in prosecutions of people involved in the Jan. 6 attack on the US Capitol, he regularly left the courtroom open.

Bloomberg joined several other news organizations in filing a motion this week to increase public access to the trial. Mehta should hold hearings before deciding whether to seal the courtroom and provide faster and broader access to exhibits, they said.

Bloomberg Law is operated by entities controlled by Michael Bloomberg, the founder and majority owner of Bloomberg LP.

The judge has mostly deferred to Google and the DOJ on when to close the courtroom—sometimes for an entire day—for testimony on competitively sensitive information.

“Never should that have been his stance or philosophy,” said Megan Gray, the founder and CEO of GrayMatters Law & Policy and a regular trial attendee.

His move contrasts with the last blockbuster Big Tech monopoly trial—the DOJ’s case against Microsoft in the 1990s, also in D.C. That trial was almost entirely public, with limited sealed testimony and consistent press coverage.

After Google told Mehta the Justice Department was posting some trial exhibits from its part of the case online, the government dropped the practice. A week later, Mehta ruled they could continue, unless Google raised objections to any documents after trial each day.

Mehta “is very aware” of the access issues, Digital Content Next’s Kint said, as illustrated by his decision to allow the DOJ to continue posting exhibits.

“It becomes clear each day that goes on that there’s this massive imbalance in market power and whatnot that needs more attention, and closed doors don’t help,” Kint said, referring to Google’s market power.

According to Gray, Mehta has appeared to struggle to understand some of the testimony and evidence about search engines and the internet.

“It has taken him too long to understand the other search engine browser stakeholders that aren’t already big names like Microsoft or Apple,” Gray said, referring to smaller search competitors like DuckDuckGo, where she used to work. “A big part of this may be failings by DOJ in educating him. But given his obvious intelligence and engagement, I’m kind of concerned.”

See also: Google’s Deals Lock Up 50% of US Searches, DOJ Expert Says

Unlikely Friendship

Born in Patan, India, in 1971, Mehta emigrated to the US as a child. His methodical approach served him well in prior cases. Antitrust attorneys say he closely scrutinized a mountain of documents in the Federal Trade Commission’s 2015 challenge to food distributor Sysco Corp.‘s $8.2 billion acquisition of competitor US Foods Inc.

“I hate to admit this, but during closing arguments, Judge Mehta probably knew the record better than I did. I’m not kidding about that,” said Stephen Weissman, deputy director of the FTC’s Bureau of Competition during the Sysco case and now a partner at Gibson Dunn. “No one worked harder during the trial and case than Judge Mehta, including the parties.”

After two weeks of testimony, Mehta granted the FTC’s motion for a preliminary injunction to pause the deal. That decision led to Sysco and US Foods backing away from the merger entirely.

Portions of Mehta’s ruling in the Sysco case “are a hymn to the Biden administration’s views,” said Stephen Calkins, a professor at Wayne State University Law School and former FTC general counsel. Although the case involved a merger rather than alleged monopolistic conduct, Mehta’s opinion is sprinkled with enforcement-friendly language, Calkins said.

“These aren’t the words that a conservative law and economics judge would be writing,” Calkins said. “If Biden administration enforcers were to go read this thing, they’d be smiling.”

Mehta has also presided over several trials of people accused of involvement in the Jan. 6 attack. He’s been critical of former President Donald Trump, saying one defendant was “a pawn in a game,” and green-lighting civil suits against Trump by Democratic members of Congress and Capitol Police officers injured in the attack.

But Mehta was so even-handed in the Sysco proceeding that a lead attorney for the company later befriended him.

“He had a courtroom demeanor that I thought was really excellent, so I said I’d give the guy a call, and I did,” said the attorney, Richard Parker, now at Milbank. The two men met for lunch—and now they and their wives get lunch or dinner every month or two, Parker said.

“I thought he gave us a good trial, and I thought he treated us fairly,” Parker said.

The case is United States of America v. Google, D.D.C., No. 1:20-cv-03010.