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.”
Meta Platforms CEO Mark Zuckerberg speaks about the Facebook News feature at the Paley Center For Media in New York on Oct. 25, 2019.
Drew Angerer | Getty Images News | Getty Images
Mark Zuckerberg‘s net worth plunged by $18 billion Thursday after comments from the Meta CEO on the earnings call sent his company’s stock price to its steepest decline since October 2022.
Meta beat expectations on revenue and profit but delivered a lighter-than-expected revenue forecast. Zuckerberg told investors that the company would continue to spend billions of dollars investing in areas like artificial intelligence and the metaverse, even though Meta counts on advertising for 98% of its revenue.
“We’ve historically seen a lot of volatility in our stock during this phase of our product playbook where we’re investing in scaling a new product but aren’t yet monetizing it,” Zuckerberg said on the call.
Zuckerberg owns around 345 million Class A and B shares. With the stock falling by $52.12 on Thursday, the value of his stake sank by about $18 billion to $152 billion by the close of trading.
The 39-year-old programmer founded the company in his Harvard dorm room in 2004, and rebranded it from Facebook to Meta in 2021, signaling to investors his plan to focus on the non-existent metaverse.
Meta’s Reality Labs division, which houses the hardware and software for developing the metaverse, has posted cumulative losses of $45 billion since 2020, when the company first separated the unit in its financials.
Meta said it plans to spend $35 billion to $40 billion Meta on capital expenditures this year, an increase from its prior forecast.
Zuckerberg’s fortune has swung up and down through the years, as his company’s stock has been particularly volatile. His net worth fell by around $100 billion in 2022. In early 2023, he announced Meta would embark on a “year of efficiency,” a move that helped the stock price triple for the year, and bringing Zuckerberg’s net worth up with it.
Thursday wasn’t the worst day for Zuckerberg’s bank account. In early 2022, he lost almost $30 billion in a single day, when his company’s stock price tumbled 26% on weak earnings and disappointing guidance.
Snap reported first-quarter results on Thursday that beat analysts’ estimates and showed a return to double-digit revenue growth. Shares soared more than 25% in extended trading.
Here’s how the company did:
- Earnings per share: 3 cents adjusted vs. a loss of 5 cents expected by LSEG
- Revenue: $1.19 billion vs. $1.12 billion expected by LSEG
- Global daily active users: 422 million vs. 420 million expected, according to StreetAccount
- Average revenue per user: $2.83 vs. $2.67 expected, according to StreetAccount
Revenue for Snap’s first quarter increased 21% from $989 million in the same period last year. The company is growing at an accelerated clip, after it had previously reported six straight quarters of single-digit growth or sales declines.
Snap has been working to rebuild its ad business after the digital ad market stumbled in 2022, and it’s starting to pay off. In its investor letter, Snap said its revenue growth was primarily driven by improvements in the company’s advertising platform, as well as demand for its direct-response advertising solutions.
Advertising revenue came in at $1.11 billion in the first quarter. Snap’s “Other Revenue” category, which is primarily driven by Snapchat+ subscribers, reached $87 million, an increase of 194% year over year. Snap reported more than 9 million Snapchat+ subscribers for the period.
Adjusted EBITDA for the first quarter was $46 million, far surpassing the $68 million loss expected by analysts, according to StreetAccount. In its investor letter, Snap said adjusted EBITDA “exceeded our expectations” and was primarily driven by operating expense discipline, as well as accelerating revenue growth.
“Given the progress we have made with our ad platform, the leadership team we have built, and the strategic priorities we have set, we believe we are well positioned to continue to improve our business performance,” Snap wrote in the letter.
Though Snap’s growth accelerated, it still fell behind that of Meta, which reported 27% growth in its better-than-expected first-quarter results on Wednesday. Meta shares plunged anyway after the company issued a light forecast and spooked investors with talk of its long-term investments.
Snap’s net loss for the quarter narrowed to $305.1 million, or a 19 cent loss per share, from $328.7 million, or a 21 cent loss per share, the year prior.
For its second quarter, Snap expects to report revenue between $1.23 billion and $1.26 billion, up from the $1.22 billion expected by analysts, according to StreetAccount. Snap said adjusted EBITDA will fall between $15 million and $45 million, compared to Wall Street’s expectations of $15.5 million.
Snap reported 422 million daily active users (DAUs) in the first quarter, up 10% year over year. The company expects to report around 431 million DAUs in its second quarter, up from the 430 million expected by StreetAccount.
The company also provided a forecast for its full-year 2024 cost structure. Snap said quarterly infrastructure costs per DAU will fall between 83 cents and 85 cents for the rest of the year.
“We will continue to assess our infrastructure investment levels based on what is in the best long-term interest of our business,” Snap said.
Snap said the amount of time users spent watching content grew year over year, primarily due to engagement with Spotlight and Creator Stories. The company said time spent watching Spotlight, which aggregates content from users, increased 125% year over year.
In February, Snap announced it would lay off 10% of its global workforce, or around 500 employees. The company said Thursday that headcount and personnel costs will “grow modestly” through the rest of the year.
Snap will hold its quarterly call with investors at 5:30 p.m. ET Thursday.
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