Expert Pitch

Fierce fight looms in DOJ v. Google, not an ‘open and shut’ case

Cornell University
20-Oct-2020 3:30 PM EDT, by Cornell University

The U.S. Department of Justice has sued Google over allegations that the tech giant violated federal antitrust laws through business practices that allowed it to lead the online search market.

George Hay, professor of law at Cornell University, an expert on antitrust and a former member of the U.S. Department of Justice’s Antitrust Division, says the DOJ’s charges against Google will be met by a fierce legal defense from the tech giant and that the case isn’t as “open and shut” as the DOJ complaint may suggest.


Hay says:

“Unlike price fixing which companies know is unlawful but do anyway because they think they will not be found out, everything Google does is ‘public.’ Google has a large legal department and retains expert outside legal and economic advice. Everything Google does is vetted by these lawyers and economists. It doesn’t mean they are necessarily right but it suggests that the case is not nearly so open and shut as the complaint may make it appear.

“The Federal Trade Commission looked at Google and its dominance in search several years ago and decided there was not a basis for an antitrust case. It doesn’t mean that the FTC was right at the time or that circumstances haven’t changed. But the fact that the FTC declined to prosecute is another reason for caution.

“Structural remedies are very, very rare in antitrust cases, even monopolization cases. Normally a court will bend over backwards to see if there are injunctions or other behavioral remedies that will solve the problem.

“While I expect Google to fight the case fiercely, don’t be surprised if, after a lot of time and money, Google and the DOJ (and states) agree to some kind of behavioral settlement and the DOJ declares victory.” 


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