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Judge narrows case in Google antitrust suits brought by states and DOJ

Google CEO Sundar Pichai testifies before the House Judiciary Committee at the Rayburn House Office Building on December 11, 2018 in Washington, DC.

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A federal judge narrowed the case that states and the Department of Justice can make in the antitrust trial against Google beginning in September, according to a newly-released decision.

It’s a significant win for Google, though it will still need to face other claims brought by the enforcers when the trial begins September 12.

D.C. District Court Judge Amit Mehta granted, in part, Google’s motion for summary judgment in the cases brought by the Department of Justice and a coalition of state attorneys general. The cases both alleged that Google illegally maintained a monopoly by cutting off rivals from search distribution channels.

While the judge mostly allowed that shared argument from the enforcers to move forward, he notably threw out the states’ claim that Google unfairly hurt search rivals like Yelp and Tripadvisor through the design of search results pages that lowered their visibility.

Mehta also narrowed the DOJ’s case to remove arguments over certain agreements Google made for its Android mobile operating system, Google Assistant and internet of things devices. He also removed arguments pertaining to how Google managed its Android Open Source Project. After Google filed the motion on summary judgement against those portions of the suit, the DOJ chose not to offer an opposition on those particular points, the filing notes.

Mehta denied Google’s motion for summary judgement on both enforcers’ claims that Google used exclusive dealing arrangements to violate anti-monopoly law, writing, “There remain genuine disputes of material fact that warrant a trial.”

As for the states’ claims about Google’s alleged anticompetitive behavior around its search ad tool SA360, Mehta wrote that there also remains a “genuine dispute of material fact with regard to the anticompetitive effect of Google’s disparate development of SA360’s ad-buying features,” meaning that claim is allowed to move forward.

The DOJ and a bipartisan group of AGs from 38 states and territories, led by Colorado and Nebraska, filed similar but separate antitrust suits against Google in 2020. Though they are separate complaints, they were combined for pretrial purposes, such as discovery of evidence.

The DOJ’s complaint focused on the ways Google allegedly used exclusionary contracts to tie up important channels to distribute search engines. In doing so, the agency alleged, Google maintained its monopoly power by denying rivals the chance to reach a similar scale and challenge its dominance.

The coalition of states made similar arguments but added additional points that aimed to address core arguments that Google’s longtime opponents have made against the tech giant.

In addition to the allegedly exclusionary contracts for search distribution, the states alleged that Google also violated antitrust law through its product to buy search ads and the way it designed its search results pages.

The states will still be allowed to bring claims that Google used its search ad product to disadvantage advertisers by not allowing them interoperate between its own tools and competitors’ to buy general search ads. But they will no longer be able to bring the claim that Google harmed competition by designing its search results to push down search engine competitors’ results, the judge decided.

That part of the complaint was most similar to the focus of a Federal Trade Commission investigation that closed a decade ago. The FTC decided to close the investigation without charges after probing whether the company gave its own content on its search results page an unfair advantage at rivals’ expense. But The Wall Street Journal later revealed that FTC staff had recommended filing suit against Google in connection to the search bias allegations, concluding that “conduct has resulted—and will result—in real harm to consumers and to innovation in the online search and advertising markets.”

The judge’s decision to throw out the states’ claims of search result bias is a blow to companies like Yelp, which have fought for more than a decade to have regulators around the world challenge the webpage design of Google’s search results.

“We appreciate the Court’s careful consideration and decision to dismiss claims regarding the design of Google Search,” Kent Walker, Google’s president of global affairs and chief legal officer, said in a statement. “Our engineers build Search to provide the best results and help you quickly find what you’re looking for. People have more ways than ever to access information, and they choose to use Google because it’s helpful. We look forward to showing at trial that promoting and distributing our services is both legal and pro-competitive.”

“I am pleased that the multistate attorneys general lawsuit challenging Google’s monopoly in the search engine market and search advertising will proceed to trial in September,” Colorado Attorney General Phil Weiser said in a statement. “We will continue to evaluate how to best press forward and establish Google’s pattern of illegal conduct that harms consumers and competition.”

The DOJ did not immediately respond to a request for comment.

This story is developing. Check back for updates.

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