Biden Could Look to Expand Antitrust Case Against Google

If Democrat Joe Biden wins the presidency, he could potentially expand DOJ’s antitrust lawsuit against Google, former antitrust enforcers and experts said in interviews. If President Donald Trump is reelected, they expect DOJ to avoid settlement talks and prosecute the case vigorously.

A major question is whether Biden’s Justice would expand the scope with additional claims, said Doyle Barlow’s Andre Barlow, who worked for the department under President Bill Clinton. With an administration change, antitrust cases are normally carried over, said antitrust attorney David Balto, who worked for DOJ and the FTC under Clinton. He noted Trump’s FTC continued an antitrust case against Qualcomm that began under President Barack Obama (see 2010280058).

The Microsoft case is an “instructive example” for what the U.S. is now facing with Google, Balto said. It’s likely a Biden administration would seek a settlement because the case “doesn’t make a whole lot of sense,” he argued: What’s missing in the complaint is evidence of consumer harm through price or quality impacts. If Trump wins, DOJ will continue to prosecute the case -- and “lose in a very embarrassing fashion,” he said.

The allegations and theory of liability are “very similar” to the Microsoft case, said Cleveland-Marshall College of Law professor Chris Sagers. It’s likely a Biden administration would expand the case, he said: Even Trump’s DOJ noted that’s a possibility. A potential addition for Biden to address would be why Google is paying Apple billions for agreements on searches on Safari and Apple devices.

A “more aggressive stance” against Apple would be a possibility for Biden, said Sagers, either through a separate lawsuit or by adding Apple as a defendant. “The reason that seems possible is because the amount of money is so large,” he said. He raised one possibility: “Apple is the only plausible search competitor other than Google, so Google is effectively paying Apple to stay out of search.” DOJ likely considered this, so perhaps officials don’t have the evidence to support the theory, he speculated.

Apple didn’t comment. A Google spokesperson responded by citing an October blog post calling DOJ’s antitrust case a “deeply flawed” lawsuit that won’t help consumers. DOJ didn’t comment Tuesday.

“It’s kind of like the Microsoft case updated for today,” said MDC Financial Research CEO Michael Cohen: Instead of browsers on desktops, it’s browsers on cellphones. Cohen disagreed with the likelihood of Apple being added as a defendant by a Democratic administration, saying Democrats are generally more friendly to Silicon Valley because of party donations. Cohen agreed Trump would be more zealous in prosecuting Google and avoiding a potential settlement, citing the conservative view that Silicon Valley is biased against the GOP.

A Biden administration likely wouldn't do what the George W. Bush administration did with Microsoft and circumscribe and settle the case for a “modest remedy,” argued Hughes Hubbard’s Philip Giordano. “That doesn’t seem like it’s in the cards.” But it’s similar to the Microsoft complaint in that they’re both about restricting distribution of competitors’ product. Biden likely would seek the support of Democratic states and explore what additional claims they have in mind, said Giordano: The case could be expanded to target advertising practices and integration of the vertical stack. He argued Republicans rushed the case potentially because it “plays well with their base,” and Attorney General William Barr was seeking retribution.

Democratic states weren’t waiting for election results to potentially join the lawsuit, said Barlow, arguing that they’re taking their time to evaluate. The Democratic coalition of state AGs, including New York's, is exploring whether additional claims and theories should be raised, he said. Antitrust isn’t a “political sport,” said Balto: “All those first principles were thrown out the window when the Trump administration goes and brings a case on the eve of an election, which obviously has a political bent to it.”

The FTC under Obama and then-Vice President Biden explored a case against Google for similar conduct but ultimately didn’t pursue it, said Barlow. While the Google complaint seeks structural relief, the theory of the case largely involves agreements that are exclusionary in nature, he argued. With such allegations, “a simple fix” is to ban that conduct, which would be a behavioral remedy, he said: The case is similar to the European Commission’s against Google in 2015-18 that resulted in the company altering its behavior, making it easier for consumers to choose a default search engine.