The redacted version of a 55-page motion for summary judgment asserts that two largely identical sets of claims, one brought by the United States and the other by 37 state attorneys general, for monopolization and exclusionary conduct in the online search market fall short of the legal standards.
Wednesday’s filing asserts that the Google Search product is today and has been at all relevant times, the U.S. search engine preferred by every third party subject to the challenged agreements, rebutting the government’s claims of violation of Section 2 of the Sherman Act.
The case, filed in October 2020, has been refined to center on two categories of contract, both of which originated a decade or longer ago, Google says. The first is contracts with web browser developers Apple and Mozilla to set Google as the default search engine in their browsers. The second is contracts between Google and companies that manufacture and/or sell Android OS mobile devices.
The DOJ alleges that related conduct such as exclusionary agreements, including product ties and engagement in anticompetitive behavior “to lock up distribution channels and block rivals,” has cemented Google’s monopoly.
According to Google, Judge Amit P. Mehta should resolve the Section 2 claims in its favor because the challenged contracts do not comprise “exclusionary conduct” and did not cause “the requisite anticompetitive effect.” Google contrasts the case with the D.C. Circuit Court of Appeals’ 2001 decision that invalidated conduct foisting Microsoft’s Internet Explorer browser upon third parties.
In addition, the 55-page summary judgment memorandum says that Google’s agreements with Apple, Mozilla, and other browser offerors are the result of lawful customer-instigated “competition for the contract.” The brief contends that the government’s real quibble is with Apple and Mozilla’s design decisions. Yet, they offer no evidence “as to what competition in their undefined but-for world would look like (this Court surely cannot enjoin independent parties not before it from optimizing the design of their products), much less that any but-for world would result in procompetitive benefits for either browser developers or consumers,” Google says.
In addition, Google’s agreements with Android OS device manufacturers and wireless carriers do not foreclose market share of any market, the brief says. In support, Google points to the lack of evidence provided by the plaintiffs’ experts articulating “what the but-for world—one without the challenged conduct—would look like in this case.”
Lastly, Google rebuts the DOJ’s theory that Google’s removal of certain early open-source applications from Android Open Source Project (AOSP) violates Section 2. The motion says that the argument fails for want of evidence that Google’s evolution of the AOSP applications harmed competition in search. In support, Google yet again points to a lack of expert opinions on the topic.
Trial is scheduled to begin Sept. 5, 2023.
Google is represented by Williams & Connolly LLP, Wilson Sonsini Goodrich & Rosati P.C. and Ropes & Gray LLP.