United States v. Google LLC (2023)

United States v. Google LLC is an ongoing federal antitrust case brought by the United States Department of Justice (DOJ) against Google LLC on January 24, 2023. The suit accuses Google of illegally monopolizing the advertising technology (adtech) market in violation of sections 1 and 2 of the Sherman Antitrust Act of 1890. The suit is separate from an ongoing DOJ antitrust case launched in 2020, which accuses Google of illegally monopolizing the search engine market.

Filed in the U.S. District Court for the Eastern District of Virginia, the suit aims to force Google to sell off significant portions of adtech business and require the company to cease certain business practices. The case is set to go to a trial on September 9, 2024, which will be held before a jury.

Growth of Google's adtech business
Beginning in the 2000s, Google gradually increased its presence in the adtech market, with the company acquiring DoubleClick, Invite Media, and AdMeld. The acquisition of DoubleClick received criticism from privacy groups including the Electronic Privacy Information Center (EPIC), who petitioned the Federal Trade Commission (FTC) to scrutinize the deal. The FTC ultimately approved the $3.1 billion acquisition of DoubleClick in December 2007.

By 2021, Google's adtech division was the company's second largest business behind Google Search, generating approximately $31.7 billion in revenue for the company. As of 2023, Google's advertising business generated an estimated 80% of the company's revenue.

Jonathan Kanter, the Assistant Attorney General for the Antitrust Division, likened Google's dominance in the adtech market to a situation in which Goldman Sachs or Citibank owned the New York Stock Exchange.

Legislative scrutiny
During the 117th United States Congress, a bipartisan coalition of U.S. Senators introduced legislation aimed at breaking up Google and other "Big Tech" companies alleged dominance in the market. The legislation, known as the Advertising Middlemen Endangering Rigorous Internet Competition Accountability (AMERICA) Act, was reintroduced in the 118th Congress.

Proceedings
Following the filing of the lawsuit, the DOJ claimed it has documentation that would bolster its case. This includes an alleged statement by a Google advertising executive who took issue with the company "owning the platform, the exchange and a huge network", who compared it to if Goldman Sachs or Citibank owned the New York Stock Exchange (NYSE). In what has been described as an unconventional move for a federal antitrust lawsuit, the DOJ has pushed for a jury trial for the case. In March 2023, judge Leonie Brinkema denied Google's request to move the lawsuit from the District Court for the Eastern District of Virginia to a venue in New York, which is considered a more favorable venue for Google. In March 2023, Google filed a motion to dismiss the case. Brinkema denied this request in April 2023, who stated that the DOJ's initial complaint sufficiently detailed for the case to proceed.

In August 2023, Google's pushed for the recusal of Assistant Attorney General Kanter from the case, arguing Kanter's past representation of Google's rivals in private practice meant he was unfairly biased against the company. Brinkema denied Google's effort to force Kanter's recusal in September 2023, describing the company's bias claims as "essentially a red herring defense".

In February 2024, it was announced that the case would begin trial on September 9, 2024. Following a dispute between the DOJ and Google in the 2023 search trial regarding the release of public exhibits pertaining to the case, Brinkema urged both parties to resolve any similar dispute ahead of the 2024 trial.

On April 26, 2024, Google filed a motion seeking summary judgement in the case. In the motion, Google accused the DOJ's of improperly calculating Google's share of the digital advertising market.

State partnerships
The lawsuit was filed in conjunction with the attorneys general of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia on January 24, 2023. Tennessee Attorney General Jonathan Skrmetti, a Republican, stated that Tennessee is proud to be part of this bipartisan effort to hold Google accountable and protect consumers from its harmful ad tech monopoly."

On April 3, 2023, Washington Attorney General Bob Ferguson announced that the state would join the lawsuit. On April 18, 2023, nine additional states joined the lawsuit, bringing the total to eighteen: Arizona, Michigan, Nebraska, Illinois, Minnesota, New Hampshire, North Carolina, Washington, and West Virginia.

Reaction and analysis
Lawmakers from both parties, including Senators Amy Klobuchar (D-MN) and Josh Hawley (R-MO), spoke positively about the lawsuit. Polling by YouGov in conjunction with The Economist found that Americans approved of the lawsuit by a 41% to 19% margin, with 40% stating they were "not sure".

Google denied the DOJ's allegations, with a company spokesperson accusing the department of trying to unfairly "pick winners and losers in the highly competitive advertising technology sector." The Chamber of Progress, a tech industry trade group whose membership includes Google, argued that the lawsuit is misguided amid a declining advertising market.

Legal commentary
Commentators have argued that the basis of the DOJ's case is rooted in a relatively "traditional" interpretation of antitrust law, as opposed to more "novel" theories of anti-competitive harms associated with the New Brandeis movement. The editorial board of The Washington Post praised the lawsuit as "good, old-fashioned antitrust enforcement" in a February 2023 article.

William Kovacic, a former Republican member of the FTC, has argued that the suit is a serious one that "adds another important complication to Google's efforts to deal with regulators worldwide." Douglas Melamed, who served in the DOJ Antitrust Division during the Clinton Administration, argued that the DOJ "would get a remedy that's going to shake up the market" if able to prove their claim in court. However, Melamed cautioned observers from assuming that the DOJ would win the case.

Request for jury trial
Commentary surrounding the DOJ's request for a jury trial in the lawsuit has often described the decision as unusually and potentially risky. A January 2023 article in Bloomberg News suggested that the "surprising request" was made due to DOJ concerns about a hostile judicial environment. According to Harry First of the New York University School of Law, the DOJ's effort to "seek damages and demand a jury trial in a monopolization case is unprecedented".

Related lawsuits
According to The New York Times, the lawsuit is the fifth antitrust suit filed against Google by either the federal government or states attorney general since 2020. The DOJ filed a separate antitrust case in October 2020 accusing Google of unlawfully monopolizing the search market. Google's dominant position in the adtech market has additionally received legal scrutiny in both the European Union and the United Kingdom.

State of Texas v. Google, LLC (2020)
The case has been compared to a separate, state-led antitrust lawsuit targeting Google's adtech practices filed in 2020. The aforementioned lawsuit, led by the Texas Attorney General's office, accuses Google of unlawfully abusing its dominance in digital advertising.

In April 2024, the DOJ requested to file a statement of interest in the case during the discovery process. The State of Texas v. Google, LLC is expected to go to trial in Plano, Texas on March 31, 2025 before judge Sean D. Jordan, and will be held over a four week period. Unlike the U.S. v. Google lawsuit targeting the company's adtech practices, the Texas-led state lawsuit will not feature a jury trial.