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.”
United Launch Alliance Atlas V rocket carrying the first two demonstration satellites for Amazon’s Project Kuiper broadband internet constellation stands ready for launch on pad 41 at Cape Canaveral Space Force Station on October 5, 2023 in Cape Canaveral, Florida, United States.
Paul Hennessey | Anadolu Agency | Getty Images
Amazon delayed the launch of its Kuiper internet satellites due to poor weather conditions on Wednesday night.
A United Launch Alliance rocket carrying 27 Kuiper satellites was set to lift off from a launchpad in Cape Canaveral, Florida, but ULA said it couldn’t continue countdown operations as “stubborn cumulus clouds” and heavy winds pushed the launch outside its planned window, according to a livestream.
“Weather is observed and forecast NO GO for liftoff within the remaining launch window at Cape Canaveral this evening,” ULA said. The company said it will provide a new launch date at a later point.
Six years ago Amazon unveiled its plans to build a constellation of internet satellites in low Earth orbit, a region of space that’s within 1,200 miles of Earth’s surface. The company aims to sell high-speed, low-latency internet to consumers, corporations and governments, offering connections through square-shaped terminals. Commercial service is expected to come online later this year.
Amazon is racing to compete with SpaceX’s Starlink, the dominant player in the market, with 8,000 satellites already up in the air. SpaceX CEO Elon Musk now has a central role in the White House as one of President Donald Trump’s top advisors, overseeing the Department of Government Efficiency, or DOGE. Since Musk took on the role, Starlink’s footprint has increased within the federal government.
The clock is ticking for Amazon to meet a deadline set by the Federal Communications Commission, which requires the company to have half of its total constellation, or 1,618 satellites, up in the air by July 2026.
Once it completes its first launch, Amazon expects to ramp up its production, processing and deployment rates. It’s begun prepping satellites for its next mission, which will also hitch a ride on one of ULA’s Atlas V rockets.
Alphabet CEO Sundar Pichai meets with Polish Prime Minister Donald Tusk in Warsaw, Poland, on February 13, 2025.
Klaudia Radecka | Nurphoto | Getty Images
Google has reversed a policy forbidding employees from discussing its antitrust woes following a settlement with workers.
The company sent a notice to U.S. employees last week saying it rescinded “the rule requesting that workers refrain from commenting internally or externally about the on-going antitrust lawsuit filed against Google by the U.S. Department of Justice,” according to correspondence viewed by CNBC.
Google settled with the Alphabet Workers Union, which represents company employees and contractors, according to the U.S. National Labor Relations Board, or NLRB. The settlement and policy reversal mark a major victory for Google staffers, who have seen increased censorship on subjects such as politics, litigation and defense contracts by the search giant since 2019.
The U.S. Department of Justice filed an antitrust lawsuit against Google in 2020, alleging that the company has kept its share of the general search market by creating strong barriers to entry and a feedback loop that sustained its dominance.
Google said it “will not announce or maintain overbroad rules or policies that restrict your right to comment, internally or externally, about whether and/or how the on-going antitrust lawsuit filed against Google by the U.S. Department of Justice may impact your terms and conditions of employment,” according to last week’s notice.
The policy change was first reported by The New York Times.
The reversal comes as Google and the DOJ prepare to return to the courtroom for their scheduled remedies trial on April 21. The DOJ has said it is considering structural remedies, including breaking up Google’s Chrome web browser, which it argues gives Google an unfair advantage in the search market.
A U.S. District Court judge ruled in August that Google illegally held a monopoly in the search market. Google said it would appeal the decision. The DOJ doubled down on its calls for a breakup in a March filing.
Following the August ruling, Kent Walker, Google’s president of global affairs, sent a companywide email directing employees to “refrain from commenting on this case, both internally and externally.”
Shortly after, the Alphabet Workers Union filed an unfair labor practice charge against Google with the NLRB. The union alleged that Walker’s message was an “overly broad directive” and said that a breakup could impact workers’ roles. The NLRB in March ruled that Google must allow workers to speak on such topics.
Google’s settlement states that the National Labor Relations Act gives employees the right to form, join or assist a union. It notes that Google is not rescinding its prior clarification that states employees may not speak on behalf of Google on this matter without approval from the company. The settlement also adds that Google will not interfere with, restrain or coerce workers in the exercise of their rights.
Despite the settlement, spokesperson Courtenay Mencini said Google did not agree with the NLRB’s ruling.
“To avoid lengthy litigation, we agreed to remind employees that they have the right to talk about their employment, as they’ve always been free to and regularly do,” Mencini said in a statement to CNBC.
The settlement by Google comes at a “crucial moment” ahead of the remedies trial, the Alphabet Worker’s Union said Monday.
“We think the potential remedies from this trial could have impact on our wages, working conditions and terms of employment,” said Stephen McMurtry, communications chair of the Alphabet Workers Union-CWA, told CNBC.
Apple CEO Tim Cook inspects the new iPhone 16 during an Apple special event at Apple headquarters on September 09, 2024 in Cupertino, California.
Justin Sullivan | Getty Images
Apple shares skyrocketed 15% on Wednesday after President Donald Trump announced a 90-day pause on his administration’s “reciprocal tariffs,” which would have affected the company’s production locations in Vietnam, India, and Thailand.
The rally added over $400 billion to Apple’s market cap, which now stands just under $3 trillion. It was Apple’s best day since January 1998, when late founder Steve Jobs was the interim CEO and three years before the company unveiled the first iPod. At the time, Apple’s market cap was close to $3 billion.
Apple has been the most prominent name to get whacked by Trump’s tariffs. Before Wednesday, it was on its worst four-day trading stretch since 2000. Investors worried about Apple’s outlook because the company still makes the majority of its revenue from selling physical devices, which need to be imported into the U.S.
Most of Apple’s iPhones and other hardware products are still made in China, which was not exempted from tariffs on Wednesday. In fact, Trump increased tariffs on China to 125% on Wednesday, up from 54%.
China issued an 84% tariff on U.S. goods this week, raising the possibility that Apple could get caught up in a trade war and lose ground in China, its third-largest market by sales.
Apple has worked to diversify its supply chain to lessen reliance on China in recent years.
On Wednesday, tariffs on Vietnam were reduced from 46% to 10%, and tariffs on India were cut 26% to 10%, which raises the possibility that Apple will be able to serve a large percentage of its U.S. customers from factories outside of China with lower tariffs.
Stocks skyrocketed across the board on Wednesday after Trump announced the tariff pause. The Nasdaq Composite climbed over 12%, its second-best day ever.
Apple hasn’t commented publicly on Trump’s tariffs, but CEO Tim Cook will likely address the topic on an earnings call on May 1.
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