The $2 Trillion Secret Trial Against Google Returns Tomorrow

It's been a long Winter, but the antitrust trial of the century (thus far) returns. The judge continues to keep it too secret, which is why you haven't heard about it. But there's now an audio line.

Closing arguments in the Google search antitrust trial are happening tomorrow and Friday. In this piece, cross-posted at Big Tech on Trial, Lee Hepner gives a rundown of the trial, the claims from each side, and the schedule for the arguments. There will be a public audio feed, but the details of that aren’t out yet.

The Ice Bath

Over the course of 40 days last Fall, Big Tech on Trial brought you daily updates on the first major antitrust trial of the 21st Century. By the time closing arguments commence this Thursday, May 2, nearly 6 months will have passed since the conclusion of those headline-stealing proceedings. It’s the litigation equivalent of an ice bath, enough time to forget what the case was about or why it mattered, and part of a larger pattern of frustrating litigation delays. The Federal Trade Commission is pushing for a 2024 trial date in a case filed in December 2020 against Meta’s alleged social media monopoly. The FTC’s case against Amazon is expected to go to trial in 2026, three years after the filing of the FTC’s long-awaited case against the multinational conglomerate.

Compare these timelines to the Justice Department’s landmark antitrust case against Microsoft in 1998. The case against Microsoft was filed on May 18, 1998. On May 22, a trial date was set, and trial commenced 5 months later on October 18, 1998. If you put the timeline of the Microsoft case against that of the current case against Google Search, the Microsoft case had already been appealed to the DC Circuit, remanded to the lower court, and almost completely resolved before trial would have begun in the Google Search case.

Protracted litigation delays have real consequences beyond the inevitable cynicism that flows from delayed justice. While we wait for Judge Amit Mehta to decide whether Google’s $26 billion per year (at least) agreement to secure default search on Apple devices is legal, Apple and Google are moving forward with talks to embed Google’s Gemini AI in its next iPhone update. It’s as clear an indication as any that the Google Search case is about the future of AI innovation, too. Despite a looming smack-down by a federal court, Apple and Google are conducting business as usual.

Adding further salt to a festering wound, Google held its quarterly earnings call last week where it announced $80.5 billion in quarterly revenue, up 15% from the year prior. According to CEO Sundar Pichai, the star witness in the Google Search case, that growth is based in part on the strength of its Search business. Which may or may not be a legal business model. We don’t know yet. But if it is, the delay is only serving Google. 

Time is on the side of the monopolist.

Guilty Google

Still, it’s been a long Winter, and much has happened outside the walls of Judge Mehta’s courtroom since the conclusion of trial proceedings last November.

Most notably, Google is now a bona fide illegal monopolist. That’s according to the unanimous voice of the jury in Epic v. Google, which deliberated for just 4 hours to decide that Google had maintained an illegal monopoly over app distribution and in-app payments through its Google Play Store. The judge overseeing that case, Judge James Donato of the Northern District of California, is now deciding what to do about it, and there’s no reason why a remedy in that case should stop short of fundamentally restructuring the Android ecosystem. And it’s possible we’ll know what that remedy is before Judge Mehta rules on Google’s liability in the current case.

Then, on March 21, 2024, the Justice Department filed a sweeping antitrust lawsuit against Apple, alleging its monopolization of the smartphone and premium smartphone markets. The complaint against Apple is replete with references to Apple’s exclusive default search agreement with Google, which the Justice Department claims has allowed Apple to “wrap itself in a cloak of privacy, security, and consumer preferences” while boxing out Google’s more secure and higher quality search rivals. As we inch toward a ruling in the Google Search case, the Justice Department is doubling down on this same troubling fact pattern in its separate litigation against Apple.

A Tale of Two Google’s

That brings us up to date. Starting this Thursday, the Justice Department and Google will present their respective cases, adhering to a meticulously structured agenda spanning two full days in court. There will also be a public audio line for closing arguments, which would have been nice (!) to have for the duration of the trial. We’ll hear two very different stories about roughly the same set of facts. And all eyes will be on Judge Amit Mehta.

There are a few ways to get up to speed on what the parties will say this Thursday. You could go back and browse our archive of daily trial summaries, which provide most of the facts, legal theories and musings you’ll need. The other way to get up to speed is read the parties’ post-trial briefs. The government’s brief is here, and Google’s is here. If you want to go (much, much) deeper, the parties have also filed proposed findings of fact and conclusions of law.

But the larger point is we already know what the parties will be arguing. Of course, there are important outstanding issues of secrecy and the looming question of what to do about Google’s deletion of litigation records (an issue that Judge Mehta has stalled on, while counterparts in other jurisdictions have been quick to sanction Google for the same conduct.) What will make this week’s closing arguments interesting is how Judge Mehta engages with those arguments. 

We can expect that Judge Mehta has reviewed all of the post-trial briefings. He may have even started drafting an opinion. That’s not to say Mehta has made up his mind. Rather, it means that any comments or questions will speak volumes as to where his mind is at. And in this case, Judge Mehta is not just a judge, but the jury and executioner, too.

Let’s recap what we can expect…

The Power of Defaults

The overarching theme of the government’s case is that Google has subverted the competitive process to “freeze the ecosystem” of what should otherwise be an innovative and competitive industry. The basic argument is search is a scale business, and Google, which “receives nine times more queries in a day than all its rivals combined,” uses exclusivity agreements to deny search data to its rivals to prevent them from competing.