As of late, we have seen industry-altering regulatory battles hit the courts across the tech space as major players ranging from Apple to Microsoft have entered conflicts with entities like the SEC, FTC, and more. But this month, the largest antitrust case in more than 20 years has headed to trial with tech giant Google going head-to-head with the Department of Justice to determine whether the search platform is illegally maintaining a monopoly.
While this trial undoubtedly marks a tumultuous time in Google’s 25-year history, it could also usher in a new era of tech enforcement that could alter the industry as we know it. Let’s look at how the legal landscape may be shifted by the results of this case, and how experts can assist in understanding the regulatory environment following its conclusion.
How Technology Antitrust Litigation Could Change Following Trial
The DOJ has not engaged in an antitrust battle this complex since their challenge against Microsoft in 1998 after alleging the company had established a monopoly in the personal computers space. And despite the decades spanning between these two cases, many experts, including the DOJ, are finding parallels between them. They cited in their complaint that at the time of the Microsoft case, the then-infant Google “claimed Microsoft’s practices were anti-competitive, and yet, now, Google deploys the same playbook to sustain its monopolies.” Google refutes claims that it purposefully created a monopoly in the space and that its dominant position in the market simply stems from the high quality of its product offering.
Source: https://www.justice.gov/opa/press-release/file/1328941/download
As the acting president of the American Antitrust Institute said, the results of this case will affect the proceedings in many other cases and will prove if US antitrust laws as they currently stand can actually rein in Big Tech players. A loss for Google would mean that the tech giant would, to some degree, be dismantled, opening the door for regulators to do the same to other tech giants. A win, on the other hand, would force these regulatory bodies to reconsider how they approach these dominant companies, which could prompt a complete overhaul in regulatory enforcement processes. Whatever the outcome, it is important for those in the space to consult industry experts to understand the implications this case may have on the industry.
What Experts Have Said of The Case So Far
The trial will last for 10 weeks. The government is projected to actively call on expert and industry witnesses to support its case, with one witness having already provided testimony during the second and third days of the trial. Antonio Rangel was deposed on behalf of the US Government to support their claims that Google forced its way into becoming the default search engine after it was found that consumers elect to use pre-installed applications rather than go through the process of switching to another, potentially better one. The behavioral economist and professor at the California Institute of Technology said that getting prime digital release estate on web browsers or phones does in fact discourage consumers from switching to rival platforms. He lamented that “Search engine defaults generate a sizable and robust bias towards the default. Defaults have a powerful impact on consumer decisions.”
Rangel went on to say that Google has acted (and paid billions) to remain the default search engine across platforms. Through their employment of a Behavioral Economics Team, the company conducted experiments on consumer behavior, illustrating that they “believed in the power of default settings”. Other experts who testified at the start of the trial claimed that Google has dedicated the past 20 years to ensuring its search platform is the default option for a slew of devices, carriers, and browsers.
How Experts Can Assist in Future Antitrust Disputes
President Joe Biden has called on lawmakers to create legislation that would “strengthen antitrust enforcement” on tech giants. And with the United States attempting to ramp up its antitrust enforcement to catch up with the EU, more cases of this kind will likely be headed to trial in the near future. Additionally, the DOJ and FTC have created a proposal featuring revised guidelines for merger reviews, making M&A enforcement another hot area for future antitrust litigation. This means that companies operating in the digital platform space and technology sector will likely see a spike in regulatory actions as the new guidelines feature extensive details on how to approach deals in the digital age.
No matter the case type, engaging with industry experts early in this process can help those in the tech space stay ahead of the curve when it comes to regulatory shifts and litigation risk. At WIT, we have affiliated with leading experts in technology who understand the complexities of this case and can help those in the industry prepare for a major market shift following the conclusion of the dispute. Our experts include world-class teams of diverse individuals from academia, industry, and government who have the experience to support parties involved in significant, high-risk litigation. Contact us to learn more.