Google Monopoly Judge’s Cautious Findings Hint at Legal Remedies

Round one of the antitrust fight between Google and the Justice Department is now in the books, after a federal court declared that “Google is a monopolist.” The company violated federal antitrust laws by using exclusive distribution agreements with Apple and others to maintain monopolies in “general search services” and “general search text ads,” Judge Amit Mehta ruled Aug. 5.

The legal community is heralding the decision by the US District Court of the District of Columbia as an important step by antitrust authorities to rein in the power of platform monopolies in the US. But what’s most remarkable is how unremarkable the outcome is.

Mehta’s factual findings from the multi-week trial that began in September 2023 lead to his conclusion. The ultimate impact of the case might prove to be less dramatic and unremarkable as well, if Mehta applies the same careful and cautious approach to the upcoming remedy phase as he did to determining Google’s liability.

A court labeling Google a monopolist is notable. Government monopolization cases have been rare in recent decades. Winning this case boosts the Biden administration’s antitrust enforcers and likely strengthens their confidence in pursuing ongoing monopolization cases against Apple, Amazon, and Ticketmaster. It also may give the DOJ an upper hand in round two of its case against Google’s alleged “ad tech” monopoly, which begins Sept. 9.

If Mehta’s decision is upheld on appeal, it could potentially prevent Google from disputing its monopoly status in “general search services,” and make it easier for antitrust plaintiffs in other cases to prove their claims.

Despite the interest in Google’s battle—with many suggesting this was the most significant antitrust decision since the Microsoft case in 2001—the factual record established at trial made the conclusion unsurprising.

Mehta found that Google “has no true competitor” and that its share of queries on general search engines increased from nearly 80% in 2009 to nearly 90% in 2020. Its share of search queries on mobile devices was even higher—almost 95%.

Google received 19 times more search queries on mobile devices than all other rivals combined. And Google receives 88% of advertiser spending on text ads that appear in search results. Google doesn’t consider competitors’ pricing when it sets prices for text ads—something Mehta observed only a monopolist could do. These facts all point strongly in the direction of monopoly.

But merely possessing a monopoly share isn’t illegal. For Google to violate Section 2 of the Sherman Act, it had to engage in anticompetitive conduct to maintain its monopoly. Google argued that its high and steady market shares were just a reflection of the superior quality of its product, not any anticompetitive conduct.

However, Mehta reasoned that if consumers naturally chose Google as their search engine because it was the best, Google wouldn’t have needed to spend “billions in revenue share” to distribution partners to keep its default search position. He found Google’s distribution agreements with Apple and others “significantly contributed to Google’s ability to maintain its highly durable monopoly” by freezing the market in place and rendering any apparent competition “illusory.”

Based on this evidence, Mehta didn’t appear to struggle in concluding that Google illegally maintained its monopolies. But he still took a cautious approach with his findings. He didn’t find that Google held a monopoly in all search advertising, despite evidence of its 74% share. He based this on the fact that Amazon and others were selling “product-page ads” for specific products that competed with Google’s “product listing ads.”

Because the DOJ’s case didn’t account for those sales, Mehta concluded the government failed to meet its burden of proving Google’s monopoly in search advertising.

As next steps, Mehta ordered the parties to submit a joint proposed schedule by Sept. 4 to address remedies for the antitrust violations he found. Some are calling for Mehta to require Google to divest its Chrome browser or its Android mobile operating system to prevent those distribution avenues from automatically favoring Google’s search engine.

It’s unclear whether Mehta will be open to ordering significant structural changes like a break-up. But his cautious approach to the question of Google’s monopoly in search advertising signals a reluctance to impose such drastic measure. Based on his findings that Google illegally maintains monopolies in general search services and general search text advertising, Mehta now has broad discretion to order relief to end the anticompetitive impact of Google’s monopolies.

A more cautious alternative to ordering Google to sell Chrome or Android would be to ban exclusive agreements with Apple and other partners. Mehta’s cautious approach so far suggests that this is more likely than a break-up.

The case is United States v. Google LLC, D.D.C., No. 1:20-cv-03010, 8/5/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David C. Kully is partner at Holland & Knight and head of the firm’s antitrust team. He joined Holland & Knight in 2016 after 18 years with the DOJ’s antitrust division.

Jennifer Lada represents international and domestic clients in antitrust, employment, and complex commercial matters and is partner at Holland & Knight.

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