The DOJ’s antitrust case against Google is ambitious but risky
CEO of Alphabet and Google Sundar Pichai in Warsaw, Poland on March 29, 2022.
Mateusz Wlodarczyk | Nurphoto | Getty Images
The Department of Justice’s latest challenge to Google’s tech empire is an ambitious swing at the company with the potential to rearrange the digital advertising market. But alongside the possibility of great reward comes significant risk in seeking to push the boundaries of antitrust law.
“DOJ is going big or going home here,” said Daniel Francis, who teaches antitrust at NYU School of Law and previously worked as deputy director of the Federal Trade Commission’s Bureau of Competition, where he worked on the agency’s monopoly case against Facebook.
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The DOJ’s antitrust chief Jonathan Kanter has indicated he’s comfortable with taking risks, often saying in public remarks that it’s important to bring cases that seek to challenge current conventions in antitrust law. He said he prefers more permanent remedies like breakups compared to promises to change behavior. That sentiment comes through in the DOJ’s request in its latest lawsuit for the court to force Google to spin off parts of its ad business.
Antitrust experts say the Justice Department paints a compelling story about the ways Google allegedly used acquisitions and exclusionary strategies to fend off rivals and maintain monopoly power in the digital advertising space. It’s one that, if the government gets its way, would break apart a business that’s generated more than $50 billion in revenue for Google in the last quarter, potentially opening up an entire market in which Google is currently one of the most important players.
But, they warn, the government will face significant challenges in proving its case in a court system that progressive antitrust enforcers and many lawmakers believe has taken on a myopic view of the scope of antitrust law, especially when it comes to digital markets.
“If they prove the violations they allege, they’re going to get a remedy that’s going to shake up the market,” said Doug Melamed, a scholar-in-residence at Stanford Law School who served at the Antitrust Division, including as acting assistant attorney general, from 1996-2001 during the landmark case against Microsoft. “But it’s not obvious they’re going to win this case.”
Challenges and strengths
Experts interviewed for this article said the DOJ will face the challenge of charting relatively underexplored areas of antitrust law in proving to the court that Google’s conduct violated the law and harmed competition without benefitting consumers. Though that’s a tall order, it could come with a huge upside if the agency succeeds, possibly expanding the scope of antitrust law for digital monopoly cases to come.
“All antitrust cases are an uphill battle for plaintiffs, thanks to 40 years of case law,” said Rebecca Haw Allensworth, an antitrust professor at Vanderbilt Law School. “This one’s no exception.”
But, Allensworth added, the government’s challenges may be different than those in many other antitrust cases.
“Usually the difficulty, especially in cases involving platforms, is market definition,” she said. In this case, the government argued the relevant market is publisher ad servers, ad exchanges, and advertiser ad networks — the three sides of the advertising stack Google has its hand in, which the DOJ said it’s leveraged to box out rivals. “And here, I think that that is relatively straightforward for the DOJ.”
“One way to look at the latest complaint is that it is the newest and most complete draft of a critique that antitrust agencies in the U.S. and abroad have been building against Google for over a decade,” William Kovacic, who served on the Federal Trade Commission from 2006 to 2011 and is now a professor at George Washington Law, said in an email.
Google, for its part, has said the latest DOJ lawsuit “tries to rewrite history at the expense of publishers, advertisers and internet users.” It claims the government is trying to “pick winners and losers” and that its products have expanded options for publishers and advertisers.
Compared to the DOJ’s earlier lawsuit, which argued Google maintained its monopoly over search services through exclusionary contracts with phone manufacturers, this one advances more nontraditional theories of harm, according to Francis, the NYU Law professor and former FTC official. That also makes it more likely that Google will move to dismiss the case to at least narrow the claims it may have to fight later on — a move it did not take in the earlier suit, he added.
“This case breaks much more new ground and it articulates theories, or it seems to articulate theories, that are right out on the border of what existing antitrust prohibits,” Francis said. “And we’re going to find out, when all is said and done, where the boundaries of digital monopolization really lie.”
High risk, high reward?
CEO of Alphabet and Google Sundar Pichai in Warsaw, Poland on March 29, 2022.
Mateusz Wlodarczyk | Nurphoto | Getty Images
DOJ took a gamble with this case. But if it wins, the rewards could match the risk.
“In terms of the potential impact of the remedy, this could be a bigger case than Microsoft,” said Melamed.
Still, Francis cautioned, a court could order a less disruptive remedy, like paying damages if it finds the government was harmed as an advertising purchaser, or simply requiring Google to stop the allegedly illegal conduct, even if it rules in the DOJ’s favor.
Like all antitrust cases, this one is unlikely to be concluded anytime soon. Still, a key decision by the Justice Department could make it speedier than otherwise expected. The agency filed the case in the Eastern District of Virginia, which has gained a reputation as the “rocket docket” for its relatively efficient pace in moving cases along.
“What that signals to me is that, given the timeframe for antitrust litigation is notoriously slow, DOJ is doing everything that they can in their choice of venue to ensure that this litigation moves forward before technological and commercial changes make it obsolete,” Francis said.
He added that the judge who has been assigned the trial, Clinton appointee Leonie Brinkema, is regarded as smart and fair and has handled antitrust cases before, including one Francis litigated years ago.
“I could imagine that both sides will feel pretty good about having drawn Judge Brinkema as a fair, efficient and sophisticated judge who will move the case along in an expeditious way,” Francis said.
Still, there are hardly any judges who have experience with a case like this one, simply because there haven’t been that many digital monopolization cases decided in court.
“So any judge who would be hearing this case is going to be confronting frontier issues of antitrust theory and principle,” Francis said.
Immediate impact
Outside of the courts, the case could have a more immediate impact in other ways.
“From the point of view of strategy, the case adds a major complication to Google’s defense by increasing the multiplicity and seriousness of public agency antitrust enforcement challenges,” said Kovacic, the former FTC commissioner. “The swarming of enforcement at home and abroad is forcing the company to defend itself in multiple fora in the US and in jurisdictions such as the EU and India.”
Regardless of outcomes, Kovacic said the sheer volume of lawsuits and regulation can create a distraction for top management and will likely lead Google to more carefully consider its actions.
“That can be a serious drag on company performance,” Kovacic wrote.
The suit could also lend credence to lawmakers’ efforts to legislate around digital ad markets. One proposal, the Competition and Transparency in Digital Advertising Act, would prohibit large companies like Google from owning more than one part of the digital advertising system, so it couldn’t own tools on both the buy and sell side as it currently does.
Importantly, the bill is sponsored by Sen. Mike Lee, R-Utah, the ranking member of the Senate Judiciary subcommittee on antitrust. Lee has remained skeptical of some other digital market antitrust reforms, but his leadership on this bill suggests there may be a broader group of Republicans willing to support this kind of measure.
“An antitrust lawsuit is good, but will take a long time and apply to only one company,” Lee tweeted following the DOJ’s announcement, saying he would soon reintroduce the measure. “We need to make sure competition works for everyone, and soon.”
Rep. Ken Buck, R-Colo., who has backed the House version of the bill, called the digital ad legislation “The most important bill we can move forward” in a recent interview with The Washington Post.
“This is clearly the blockbuster case so far from the DOJ antitrust division,” Francis said. “And I think it represents a flagship effort to establish new law on the borders of monopolization doctrine. And at the end of it — win, lose or draw — it’s really going to contribute to our understanding of what the Sherman Act actually prohibits in tech markets.”
Technology
Nvidia positioned to weather Trump tariffs, chip demand ‘off the charts,’ says Altimeter’s Gerstner
Altimeter Capital CEO Brad Gerstner said Thursday that he’s moving out of the “bomb shelter” with Nvidia and into a position of safety, expecting that the chipmaker is positioned to withstand President Donald Trump’s widespread tariffs.
“The growth and the demand for GPUs is off the charts,” he told CNBC’s “Fast Money Halftime Report,” referring to Nvidia’s graphics processing units that are powering the artificial intelligence boom. He said investors just need to listen to commentary from OpenAI, Google and Elon Musk.
President Trump announced an expansive and aggressive “reciprocal tariff” policy in a ceremony at the White House on Wednesday. The plan established a 10% baseline tariff, though many countries like China, Vietnam and Taiwan are subject to steeper rates. The announcement sent stocks tumbling on Thursday, with the tech-heavy Nasdaq down more than 5%, headed for its worst day since 2022.
The big reason Nvidia may be better positioned to withstand Trump’s tariff hikes is because semiconductors are on the list of exceptions, which Gerstner called a “wise exception” due to the importance of AI.
Nvidia’s business has exploded since the release of OpenAI’s ChatGPT in 2022, and annual revenue has more than doubled in each of the past two fiscal years. After a massive rally, Nvidia’s stock price has dropped by more than 20% this year and was down almost 7% on Thursday.
Gerstner is concerned about the potential of a recession due to the tariffs, but is relatively bullish on Nvidia, and said the “negative impact from tariffs will be much less than in other areas.”
He said it’s key for the U.S. to stay competitive in AI. And while the company’s chips are designed domestically, they’re manufactured in Taiwan “because they can’t be fabricated in the U.S.” Higher tariffs would punish companies like Meta and Microsoft, he said.
“We’re in a global race in AI,” Gerstner said. “We can’t hamper our ability to win that race.”
Jaque Silva | Nurphoto | Getty Images
YouTube on Thursday announced new video creation tools for Shorts, its short-form video feed that competes against TikTok.
The features come at a time when TikTok, which is owned by Chinese company ByteDance, is at risk of an effective ban in the U.S. if it’s not sold to an American owner by April 5.
Among the new tools is an updated video editor that allows creators to make precise adjustments and edits, a feature that automatically syncs video cuts to the beat of a song and AI stickers.
The creator tools will become available later this spring, said YouTube, which is owned by Google.
Along with the new features, YouTube last week said it was changing the way view counts are tabulated on Shorts. Under the new guidelines, Shorts views will count the number of times the video is played or replayed with no minimum watch time requirement.
Previously, views were only counted if a video was played for a certain number of seconds. This new tabulation method is similar to how views are counted on TikTok and Meta’s Reels, and will likely inflate view counts.
“We got this feedback from creators that this is what they wanted. It’s a way for them to better understand when their Shorts have been seen,” YouTube Chief Product Officer Johanna Voolich said in a YouTube video. “It’s useful for creators who post across multiple platforms.”
WATCH: TikTok is a digital Trojan horse, says Hayman Capital’s Kyle Bass
CEO of Meta and Facebook Mark Zuckerberg, Lauren Sanchez, Amazon founder Jeff Bezos, Google CEO Sundar Pichai, and Tesla and SpaceX CEO Elon Musk attend the inauguration ceremony before Donald Trump is sworn in as the 47th U.S. president in the U.S. Capitol Rotunda in Washington, Jan. 20, 2025.
Saul Loeb | Via Reuters
Technology stocks plummeted Thursday after President Donald Trump’s new tariff policies sparked widespread market panic.
Apple led the declines among the so-called “Magnificent Seven” group, dropping nearly 9%. The iPhone maker makes its devices in China and other Asian countries. The stock is on pace for its steepest drop since 2020.
Other megacaps also felt the pressure. Meta Platforms and Amazon fell more than 7% each, while Nvidia and Tesla slumped more than 5%. Nvidia builds its new chips in Taiwan and relies on Mexico for assembling its artificial intelligence systems. Microsoft and Alphabet both fell about 2%.
Semiconductor stocks also felt the pain, with Marvell Technology, Arm Holdings and Micron Technology falling more than 8% each. Broadcom and Lam Research dropped 6%, while Advanced Micro Devices declined more than 4% Software stocks ServiceNow and Fortinet fell more than 5% each.
The drop in technology stocks came amid a broader market selloff spurred by fears of a global trade war after Trump unveiled a blanket 10% tariff on all imported goods and a range of higher duties targeting specific countries after the bell Wednesday. He said the new tariffs would be a “declaration of economic independence” for the U.S.
Companies and countries worldwide have already begun responding to the wide-sweeping policy, which included a 34% tariff on China stacked on a previous 20% tax, a 46% duty on Vietnam and a 20% levy on imports from the European Union.
China’s Ministry of Commerce urged the U.S. to “immediately cancel” the unilateral tariff measures and said it would take “resolute counter-measures.”
The tariffs come on the heels of a rough quarter for the tech-heavy Nasdaq and the worst period for the index since 2022. Stocks across the board have come under pressure over concerns of a weakening U.S. economy. The Nasdaq Composite dropped nearly 5% on Thursday, bringing its year-to-date loss to 13%.
Trump applauded some megacap technology companies for investing money into the U.S. during his speech, calling attention to Apple’s plan to spend $500 billion over the next four years.
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