Monopolies are not illegal under current legal jurisprudence. However, the possession of monopoly power in the relevant market and the willful acquisition or maintenance of that power through unlawful conduct is violative of §2 of the Sherman Act, as U.S. v. Grinnell, 384 U.S. 563, 570-71 (1966) has informed us. The unlawful conduct has been understood to mean anti-competitive conduct. As set forth in the Amended Complaint against Google filed on Jan. 15, 2021 in the U.S. District Court of the District of Columbia, the U.S. Department of Justice (the DOJ) and 14 states have alleged anticompetitive conduct that violates §2. There have been no responsive pleadings filed by Google. This article will address the parallels with the initial Microsoft litigation in the U.S. District Court, U.S. v. Microsoft, 87 F. Supp. 2d 30 (D.D.C. 2000) regarding §2 monopolization claim under the Sherman Act and what Google can expect during the litigation. See Paul M. Kaplan, “The Unfolding Microsoft Drama: Shattered Windows,” The Antitrust Counselor (May 15, 2001).
Maintenance of monopoly power is the cornerstone of the DOJ’s action against Google—in general search services, search advertising market and the search text market. The Amended Complaint alleges that Google maintained its monopoly power and violated §2 of the Sherman Act by:
(1) Exclusionary Distribution Agreements that locked up the preset default positions for search access points on browsers, mobile devices, computers and other devices;
(2) Requiring preinstallation and prominent placement of Google’s apps;
(3) Tying search access points to Google Play, and Google APIs (application program interfaces);
(4) Imposing restrictions that drove queries to Google at the expense of search rivals;
(5) Exclusionary conduct that has foreclosed a substantial share of the general search, search advertising and general search text advertising markets;
(6) Anticompetitive acts that have had harmful effects on competition, advertisers and consumers;
(7) Maintaining and abusing its monopoly power in general search services, search advertising and search text advertising through anticompetitive and exclusionary distribution agreements that lock up the preset default positions for search access points on browsers, mobile devices, computers and other devices; and
(8) Imposing other restrictions, such as Revenue Sharing Agreements to both Android Partners and Apple, that benefit Google at the expense of general search services, search advertising and general search text advertising rivals.
Amended Complaint at 55-57.
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