A Critical Analysis of the Google Decision

Introduction

Judge Amit Mehta’s decision in the Google Search case[1] is commendable in many respects. He seems to strive to credit counterarguments wherever doing so is sensible, rather than trying to “bullet-proof” his opinion (as other “Big Tech”-related decisions often do) by discounting every argument put forward by Google. He is not gratuitously dismissive of Google’s experts. And, as he did in dismissing the entirety of the states’ “self-preferencing” claims at summary judgment,[2] he is willing to reject various of the plaintiffs’ arguments here—finding, for example, that some of their proposed relevant markets were not relevant markets and/or that Google was not a monopolist in them. The decision is also very clearly written and, at 275 pages, admirably thorough.

That’s the good. Unfortunately, where it counts the most, Judge Mehta’s decision is seriously lacking, to the point that his primary legal conclusion—that Google’s default search distribution deals were anticompetitive—is untenable. In this paper, I explain why.

I. The Core Legal Defect: Misapplication of the Causation Standard for Exclusionary Conduct A. Misreading Microsoft I start with a quote from the decision that brings us directly to the heart of the matter. Quoting the D.C. Circuit Court of Appeals’ decision in Microsoft,[3] Judge Mehta holds that, as a matter of law:

[C]ausation does not require but-for proof. The plaintiff is not required to show that but for the defendant’s exclusionary conduct the anticompetitive effects would not have followed. Such a standard would create substantial proof problems, as “neither plaintiffs nor the court can confidently reconstruct… a world absent the defendant’s exclusionary conduct.” “To some degree, ‘the defendant is made to suffer the uncertain consequences of its own undesirable conduct.’”[4]

But, as Judge Ginsburg—widely regarded to be the primary author of the per curiam Microsoft opinion—has written, that is a misreading of Microsoft.[5] In fact, this decision—this case—is the paradigmatic example of why that is a misreading of Microsoft.

As a general matter, the plaintiff must establish that the defendant’s conduct has the “requisite anticompetitive effect”[6]—that is, that it caused the alleged competitive harm.[7] The “reasonably capable of” standard has “limited applicability”[8] and permits an inference of causation only in special circumstances: 1) when the competitive threat allegedly affected by the defendant’s conduct is nascent; 2) when that conduct was already proven to have anticompetitive effect; and 3) in a government (as opposed to private) enforcement action.[9] “Only when these conditions are met may the government avoid having to show that the threat would have become a real competitor but for the alleged exclusionary conduct.”[10]

The intuition behind this is as follows: There might be multiple reasons—including ones not involving the defendant’s exclusionary conduct—that prevent a competitive threat from materializing. Normally, a plaintiff has to show that the defendant’s conduct—and not one or more of these other factors (like, e.g., that the rival was of such low quality that it couldn’t realistically have mounted a real challenge)—was the but-for cause of the challenger’s failure. But where that threat is inchoate, proving the hypothetical course of future competition in the market is effectively impossible. Thus, in circumstances where we’re confident that lessening the plaintiff’s burden won’t systematically lead to erroneous outcomes, we allow it to make out its prima facie case without demonstrating but-for causation:

The court pointed out that “neither plaintiffs nor the court can confidently reconstruct a product’s hypothetical technological development in a world absent the defendant’s exclusionary conduct.” Given this “underlying proof problem,” the Court may infer causation.[11]

According to Judge Ginsburg’s clarification of what the Microsoft court held, the limited circumstances that satisfy this standard are: 1) as noted, the threat is of the sort that can’t actually be proven—that is, the allegedly thwarted competition must arise from a speculative, but realistic, process that can’t be falsified; 2) the defendant’s conduct must be proven to be, in fact, sufficient to impede the materialization of such a threat (“[o]f critical importance is that the court’s causation standard was conditioned on its having found anticompetitive effects”[12]); and 3) the plaintiff must be a government enforcer.[13]

Obviously, the Google Search case involves a government enforcement action. But for Microsoft’s lighter causation standard to apply, it must also involve a nascent threat and conduct proven sufficient to prevent rivals from achieving minimum efficient scale. Arguably, neither is true in Google Search.

The holding in Microsoft that causation need not be perfectly proven was a function of those specialized facts. It was not, contra Judge Mehta’s approach to this case (and that of many others before him), “a matter of general tendency.”[14]

1. Causation may be inferred only when the competitive process is speculative The key question in Microsoft was the foreclosure of competition by a nascent competitor—where the entire theory of the case was built on a set of suppositions about the progress of technology, speculation about the unpredictable role the nascent competitor could play in disrupting competition in an established market, and uncertainty about whether Microsoft viewed it (Netscape Navigator) as a competitive threat.

That is not really the case in Google Search. Bing, obviously, and Yahoo! and others before and after it are/were not nascent competitors. Nor is Bing bringing an innovative disruption to the market that will follow an unknown course. Rather, it is a direct, close substitute for Google Search. And, of course, this is obvious to Google. It is distributed the same way; it is used the same way; it is not unknown or uncertain in its competitive relationship with Google Search. None of which means it was actually a competitive threat to Google (more on this later). But it does mean that the competitive process is well understood.

Why does this matter? Because it means that much less speculation is required about whether and how Bing could act as a competitive constraint on Google. We do have actual competition and consumer behavior to assess in understanding the extent of its competitive threat and whether Google’s challenged conduct impaired it. And we do not have to create an entirely hypothetical world in which establishing causation would be impossible.

None of that was true in Microsoft.

We know this, in part, because of another case the same court decided a few years after Microsoft: Rambus v. FTC.[15] With respect to the speculative extent of the but-for world and the viability of demonstrating causation, the facts in Rambus are more similar to the facts here than are the facts in Microsoft. In Rambus (which involved the selection by a standard-setting organization (SSO) of technology to be included in an industry standard) competition was direct and well-understood. The sole question was whether Rambus’s conduct (deception over its patent holdings, which led to the inclusion of its technology in the industry standard) enabled its technologies to monopolize the relevant markets to the exclusion of its rivals, or whether, had it disclosed and the SSO obtained assurances it would license its technology on RAND terms, it would still have obtained its dominant market position.

Of course, in Rambus—as everywhere—it was impossible to truly know the but-for world (i.e., what Rambus’s market position and that of its competitors would have looked like under different licensing terms). But the competitive process by which such an outcome could arise was straightforward, and its competitive alternatives were known. The same could not really be said of Microsoft.

B. Misreading Rambus In Rambus, the question was whether Rambus’s behavior led to the exclusion of rivals, or whether, even absent its behavior, rivals would have been excluded. That is the identical question that should have been asked here: Was Bing’s failure to gain more market share proved to be a function of Google’s distribution deals, or was it a function of consumer and distributor preferences for Google over its rivals?

As the court in Rambus found, the FTC’s reasoning (from which the court heard the appeal) was logically flawed, in exactly the same way the court’s reasoning is flawed in this case. It is therefore odd that Judge Mehta distinguishes Rambus and rejects the applicability of its legal standard on grounds that are superficial and unrelated to the relevant question of when a given legal standard should apply.

The consequence of this decision for the Google Search case was enormous. By relieving the plaintiffs of having to show but-for causation, Judge Mehta relieved them of the burden of proving their case. This is exactly why Rambus is so important.

1. What Rambus Says So, here’s what the court said in Rambus. First, the court laid out the standard:

The critical question is whether Rambus engaged in exclusionary conduct, and thereby acquired its monopoly power in the relevant markets unlawfully.

To answer that question, we adhere to two antitrust principles that guided us in Microsoft. First, “to be condemned as exclusionary, a monopolist’s act must have ‘anticompetitive effect.’ That is, it must harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not suffice.” Microsoft, 253 F.3d at 58…. Second, it is the antitrust plaintiff—including the Government as plaintiff—that bears the burden of proving the anticompetitive effect of the monopolist’s conduct. Microsoft, 253 F.3d at 58-59.[16]

Applying these principles, however, the implication of the FTC’s argument was ambiguous:

The Commission’s conclusion that Rambus’s conduct was exclusionary depends, therefore, on a syllogism: Rambus avoided one of two outcomes by not disclosing its patent interests; the avoidance of either of those outcomes was anticompetitive; therefore Rambus’s non-disclosure was anticompetitive.[17]

The Rambus court acknowledged that the first of these possible outcomes would be anticompetitive,[18] but on the second it found the causal link unclear.[19] And because this alternative was not inherently anticompetitive, the Rambus court rejected the FTC’s argument based on its failure to prove that Rambus’s conduct, and not simply its inclusion in the standard (even on less-favorable terms), led to its market position:

Here, the Commission expressly left open the likelihood that [the SSO] would have standardized Rambus’s technologies even if Rambus had disclosed its intellectual property. Under this hypothesis, [the SSO] lost only an opportunity to secure a RAND commitment from Rambus. But loss of such a commitment is not a harm to competition from alternative technologies in the relevant markets….

…Thus, if [the SSO], in the world that would have existed but for Rambus’s deception, would have standardized the very same technologies, Rambus’s alleged deception cannot be said to have had an effect on competition in violation of the antitrust laws.[20]

If the court was correct that only one of the two outcomes was anticompetitive, then its conclusion was inescapable. As Josh Wright has long (since 2009) maintained, “the D.C. Circuit’s causation standard [in Rambus] should not be controversial and appears eminently reasonable.”[21]

Both the Commission and the D.C. Circuit accept that there must be a causal showing that deception significantly contributes to some anticompetitive effect. The disagreement is over whether both possible paths actually involve anticompetitive effects. If one agrees with the Commission that both causal paths violate Section 2, a requirement that a plaintiff specify precisely which path resulted in an anticompetitive effect is unnecessary and likely unwise. However, if one believes that only one causal path constitutes a violation of Section 2, such a requirement is necessary….[22]

Importantly, the Rambus court held this despite recognizing that Rambus’s deception made the inclusion of its technology in the standard “somewhat more likely.”[23] That wasn’t enough, because the FTC failed to show that that wouldn’t have happened even without—that is, but for—Rambus’s deception. “The critical point is that the Commission bore the burden of demonstrating that Rambus’s deception caused the unlawful acquisition of monopoly power.”[24]

C. Misconstruing the Legal Standard Under Microsoft and Rambus Here, we can rewrite Rambus’s conclusion using the facts of the Google Search case and readily see its applicability:

Thus, if [distributors like Apple and Mozilla], in the world that would have existed but for [Google’s default distribution deals], would have [chosen] the very same [default search provider], [Google’s conduct] cannot be said to have had an effect on competition in violation of the antitrust laws.[25]

This is not how Judge Mehta assesses the Rambus decision, however. Instead, he distinguishes it on the tenuous grounds that it involved a different type of exclusionary conduct, in a different factual setting, and that, as a result, it is inconsistent with his reading of Microsoft:

Rambus does not establish a categorical rule that the anticompetitive effects of an exclusive agreement must be measured against a but-for world. That case involved deception to a standards-setting organization, a form of exclusionary conduct particularly susceptible to a finding of materiality…. In such circumstances, the D.C. Circuit deemed it appropriate to demand proof that Rambus’s deception in fact resulted in competitive harm. Nowhere, however, did the court suggest that such a strict standard of proof was required to demonstrate anticompetitive effects for other forms of exclusionary conduct, particularly exclusive dealing arrangements. Such a holding would be contrary to Microsoft, and the court in Rambus nowhere questioned that precedent. Rambus therefore does not require Plaintiffs to prove substantial foreclosure against a but-for world.[26]

But “deception to a standards-setting organization” is not a circumstance “particularly susceptible” to a but-for analysis compared to that of default search distribution deals. Indeed, it has more in common with the circumstances here than Microsoft does. That’s because, as noted, the but-for world in that case is easy to understand and analyze (even if, as in all cases, the but-for world is never a simple or certain calculation). It is in the Google Search case, as well. The but-for world in this case, as in Rambus, involves an essentially binary choice among known alternatives with a direct line between the relevant conduct and that choice. In Rambus, it was a choice by an SSO between two licensing regimes (one less restrictive, and one more restrictive) for Rambus’s patents in its standards, and Rambus’s deception could clearly affect that choice. Here, it is a choice by users between (essentially) two search engines, and the choice of default search provider can clearly affect that choice (because the cost of using the non-default is inherently higher).

Moreover (and as noted above), according to Judge Ginsburg, Rambus is not a special exception to Microsoft’s general rule; Microsoft is a special exception to Rambus. It is the nascency of the threat in Microsoft (which didn’t exist in Rambus) that leads to its uniquely truncated analysis and not the specific context of Rambus that somehow cabins its applicability:

Reading Microsoft and Rambus together, the key takeaway is that only when anticompetitive effects are shown (as required by Microsoft and Rambus) does the “reasonably capable of” causation standard apply to allegations that exclusionary conduct killed a nascent threat. Only when these conditions are met may the government avoid having to show that the threat would have become a real competitor but for the alleged exclusionary conduct.[27]

Nevertheless, misconstruing the legal standard under Microsoft and Rambus, Judge Mehta holds that Microsoft’s lighter, “reasonably capable of” standard applies:

The key question then is this: Do Google’s exclusive distribution contracts reasonably appear capable of significantly contributing to maintaining Google’s monopoly power in the general search services market? The answer is “yes.” Google’s distribution agreements are exclusionary contracts that violate Section 2 because they ensure that half of all GSE [general search engine] users in the United States will receive Google as the preloaded default on all Apple and Android devices, as well as cause additional anticompetitive harm.[28]

D. How We Know It Is Wrong

It is immediately obvious why, even if it weren’t a misreading of the case law, this cannot possibly be the correct standard—and why it makes no sense to suggest that a less strict standard of proof is particularly appropriate for exclusive-dealing arrangements.

We don’t need to ask if the agreements “reasonably appear capable of significantly contributing to maintaining Google’s monopoly power” because of course they are “reasonably… capable” of contributing to Google’s monopoly power. That’s why we have scores of antitrust cases looking at the effects of distribution agreements. If all that were required to win such a case were the reasonable capability of an agreement to contribute to a dominant firm’s competitive position, then no exclusive or quasi-exclusive agreement would ever be legal.[29]

We ask whether exclusive agreements “reasonably appear capable” of maintaining monopoly, instead of asking whether they actually maintained monopoly, only when the connection between what is being excluded and monopoly maintenance is unclear—as in Microsoft, where it was unclear if Netscape Navigator could actually constitute a competitive threat to Microsoft’s operating-system dominance. But here that is not a question.[30] Where the rival is a direct competitor with a close substitute product, an exclusive deal by a dominant incumbent is always capable of foreclosing the rival. In such circumstances it is simply not consistent with the plaintiff’s burden of proof to allow them to show only that the challenged conduct is the sort that could maintain monopoly, rather than that the defendant’s conduct in fact caused anticompetitive harm.

Difficult as it may be, demonstrating this in an actual competition case like Google Search is not impossible. Indeed, as I discuss below, there is copious evidence in the case that the cause of Bing’s limited market share was not Google’s default distribution deals, but Bing’s lack of quality. Any comparable evidence in Microsoft would have been wholly speculative—but not here.

As Judge Ginsburg notes (again challenging the general applicability of Microsoft’s truncated legal standard):

As in Microsoft, the “but-for” world in Rambus was highly uncertain.[[31]] In both cases, one could reasonably find the defendant’s conduct may have caused the defendant to acquire or maintain its monopoly power. At the same time, it was also possible that the defendants in those cases would have acquired or maintained their monopoly power even absent their anticompetitive behavior. The court in Rambus held the government must bear the burden of that uncertainty. This burden applies in all Section 2 cases….[32]

But it is also arguably the case that, properly construed, Google’s default distribution deals were not capable of excluding Bing from the market. We turn to this next.

II. The Failure To Prove That Defaults Are Exclusive Judge Mehta holds that Google’s distribution deals had anticompetitive effects “because they ensure that half of all [general search engine] users in the United States will receive Google as the preloaded default on all Apple and Android devices.”[33] He derives this conclusion (which he repeats several times) from the testimony of one of the plaintiffs’ economic experts, Michael Whinston, who finds that “50% of all queries in the United States are run through the default search access points covered by the challenged distribution agreements.”[34]

Judge Mehta’s claim is that, because users don’t switch away from defaults very often, and because the “market realities” of the search market—given Google’s default distribution deals—are that half of all relevant searches occur through access points covered by those deals, we can conclude that those deals foreclose competitors from 50% of the general search market (a big enough amount to constitute anticompetitive foreclosure).

But this is not how you measure foreclosure, and the assertion that that number shows that Google’s default deals—and not something else—“significantly contribut[e] to maintaining Google’s monopoly power”[35] is fallacious.

Just because the government shows there is “significant” usage of Google’s default services ex post—meaning, given Google’s default deals, and after consumers have chosen which search engine to use—does not mean it has proven that 50% of the market was foreclosed from access by competitors. Nor does it mean that the government has met its burden of proving that this was caused by the agreements. Perhaps all of those consumers are inframarginal consumers who would have chosen Google Search anyway, even if it weren’t the default. Perhaps all of them were perfectly capable of accessing Bing, but simply chose not to. In that case, the ex-post usage data would tell us nothing about the extent of foreclosure.

Demonstrating foreclosure requires comparison to the but-for world; it requires showing that, absent Google’s deals, Bing would have had access to and been used by substantially more marginal consumers (those who view Bing and Google as effective substitutes and wouldn’t expend extra cost to use one search engine or the other).[36] This is so for three reasons.

First, these agreements are not, in fact, “exclusive.” That matters, because it is much harder to infer that it was the agreements, and not consumer preferences for a particular product, that caused Google’s dominance when consumers have ample opportunity to exercise their preferences to not use Google Search.

Second, and relatedly, looking at the share of searches ex post that go through these defaults is less telling, and the number can’t simply be accepted at face value, when searching via the default service is not the only option. As in Rambus, Google’s maintenance of a large share of these searches is just as consistent with a non-problematic set of facts (consumers simply prefer Google Search and, knowing that, distributors offer Google as the default) as with a problematic one (consumers use Google Search only because it is the default service, and distributors offer Google Search as the default only because Google pays them to do so).

Finally, failing to demand that the plaintiffs demonstrate that Google’s default distribution deals actually foreclosed competitors, and allowing them effectively to prove their case by showing only that the deals made Google’s large market share “somewhat more likely,”[37] erases the requirement that plaintiffs can win only if they prove that challenged conduct causes anticompetitive harm. This is an invitation for dramatically erroneous decisions.[38] As Judge Ginsburg and Koren Wong-Ervin write:

Without requiring proof of but-for causation, there is great risk of erroneously condemning [conduct] that may be procompetitive. Consider, for example, Herbert Hovenkamp’s proposal presumptively to condemn acquisitions by a monopolist of “any firm that has the economic capabilities for entry and is a more-than-fanciful possible entrant, unless the acquired firm is no different from many other firms in these respects.” “More-than-fanciful” is an invitation to speculate, not a standard of proof.[39]

Let’s examine these problems with Judge Mehta’s legal standard based on Michael Whinston’s market-share numbers a little more thoroughly.

A. Establishing the Amount of Competition: Minimum Efficient Scale So much of Judge Mehta’s conclusion that Google’s default deals were exclusive (despite not actually being “exclusive”) turns on his contention that defaults are the best way for search engines to distribute themselves,[40] and, therefore, that Google tying up default access was sufficient to establish the requisite exclusivity for an exclusive-dealing claim.

But as the Rambus court points out, “conduct [does] not violate antitrust laws where absent that conduct consumers would still receive the same product and the same amount of competition.”[41] This is a statement that the but-for world matters, and the relevant question is the relative “amount of competition.”

So, how do we measure the “amount of competition”? Well, we can’t measure it as Judge Mehta and Prof. Whinston do, by looking at what people choose ex post.[42] This is a fairly useless statistic. It says next to nothing about what share of marginal searchers use Google because it is the default, and what share use Google because they prefer it. (And, of course, it says nothing about what share are inframarginal consumers who would use Google regardless of the cost of accessing it). That, in turn, tells you nothing about the amount of competition that existed before they made their choices.[43]

Nor can we simply look at the scope of the default distribution agreements. If people can still easily choose other search providers despite the default deals, those deals cannot be said to foreclose competition—at the very least, not in proportion to the share of the market covered by those deals.

We can, however, examine whether rival search providers were able to achieve minimum efficient scale in such an environment—that is, whether the conduct at issue was capable of precluding otherwise viable competitors from gaining enough customers to sustain themselves as a competitive alternative. Indeed, this is exactly what Google argued was required: “[Google] contends that Plaintiffs have failed to establish a link between the agreements, the denial of sufficient scale to rivals, and anticompetitive effects….”[44] It is also what Judge Ginsburg says is required: “The court [in Microsoft] inferred harm to the competitive process from these findings, in essence recognizing that minimum-efficient scale is the mechanism by which exclusionary conduct harms competition.”[45]

Yet nowhere does Judge Mehta effectively grapple with the minimum-efficient-scale question. He does discuss the importance of scale in search, and he holds that Google is of higher quality than Bing and other competitors, in part, because of its scale. But he never really asks or answers the questions 1) whether this difference is uniquely attributable to Google’s default distribution deals, and 2) whether those deals preclude rivals from effectively competing, or simply make it harder for them to compete because they raise the cost of achieving comparable quality.

Now, the evidence here, as far as we can assess it from the decision, is not entirely clear-cut. But the answer isn’t really the issue. The real issue is that this is an essential question, on which the government bears the burden of proof, and it was simply missing from the opinion. In other words, this means the holding in the government’s favor is unsupported as a matter of law.

B. De Facto Exclusivity

Even so, let’s assess how well the evidence supports the conclusion that the default deals were really “de facto” exclusive, and that they prevented rivals from achieving the minimum efficient scale.

We have no idea if the default deals had anything to do with it, but we do know that Neeva, a once-promising general search engine, apparently had a hard time competing for users and went out of business after about four years.[46] On the other hand, Bing, Yahoo!, DuckDuckGo, Ecosia, and Brave all exist and continue to compete in this environment. Yes, they have relatively small market shares, but apparently they have enough scale for viability.

Similarly, on the one hand, there has been clear “competition for the market” between Bing and Google with respect to the default access points on Apple devices and in Mozilla’s Firefox browser. On the other hand, there is less clear competition with respect to Android OEMs (in Google’s favor)—but there is also less clear competition (actually, there is none) between them for default placement in Edge (in Bing’s favor).

1. Misunderstanding the ‘power of defaults’ With respect to the conclusion that the cost to users of choosing the non-default option is higher, that is inherently true, of course. But it is arguably trivially so. Judge Mehta spends a fair amount of time on this question (although not in the proper context of this but-for assessment) before arriving at his conclusion that being a non-default is tantamount to being excluded. His analysis, however, is unconvincing.

First, the analysis is heavily influenced by the assertions of the government’s behavioral expert, Antonio Rangel.[47] As I will discuss below, some empirical data specific to the context at hand is used to bolster the more general behavioral claims of the government’s expert (which I believe cuts in many respects against Judge Mehta’s conclusions). But it is clear that any ambiguity was resolved by Judge Mehta in favor of asserted general behavioral patterns:

That users overwhelmingly use Google through preloaded search access points is explained in part by default bias or the “power of defaults.” The field of behavioral economics teaches that a consumer’s choice can be heavily influenced by how it is presented. The consensus in the field is that “defaults have a powerful impact on consumer decisions.”[48]

There are access points other than the default that can be used to distribute a GSE, but those channels are far less effective at reaching users. That is due in part to users’ lack of awareness of these options and the “choice friction” required to reach these alternatives.[49]

[A]s Dr. Rangel convincingly explained, the combination of user habit, Google’s brand, and choice friction creates a powerful default effect that drives most consumers to use the default search access points occupied by Google.[50]

The main problem with this is not so much that behavioral science is wrong (surely, it is correct that the more friction there is to switch from a default, the less likely someone will switch), but that it is not dispositive. This makes it a weak basis for meeting the plaintiffs’ burden. It is also not clear that general behavioral theories have the same traction in the specific environment at issue. As my colleague Dan Gilman has discussed, the learnings of behavioral science were established in settings quite different than search engine defaults.[51] “Generalizing findings from, e.g., cereal-box placement to the durability of search engine defaults seems a stretch (or entirely speculative).”[52]

To be sure, Rangel’s testimony did purport to apply those learnings in context.[53] But what really matters in this case is not the direction of the behavioral assumptions, but the magnitude. (Again, no one disputes that defaults grant some benefit, nor that promoting one’s products—i.e., marketing—can influence consumer choice). The claim here is that the availability of switching does not sufficiently negate the effective exclusivity of defaults to permit rivals to compete. That claim depends on the extent to which users tend not to switch away from defaults, not just the fact that they sometimes don’t.

Among other things (more of which are discussed below), it must be noted that, even when users are presented with a neutral option (e.g., a “choice screen”), they appear to make essentially the same choices as when presented with a default. In Europe, where Google has since 2020 implemented a search engine choice screen on Android following the EU’s 2018 antitrust decision against it,[54] Google’s share of the search engine market has barely budged.[55]

By the same token (at least when Google is the non-default) users are apparently quick to switch from a less-preferred default in order to get access to Google Search:

In a 2016 experiment, Mozilla switched the default GSE on both new and existing users from Google to Bing. By the twelfth day, Bing had kept only 42% of the search volume. After some additional time, those numbers dropped to 20–35%….[56]

It is exceedingly difficult to square these facts with the court’s conclusions on the functional irrelevance of non-default options.

C. Overlooking Evidence of User Switching Behavior and Impressionistic, Not Quantitative, Conclusions The majority of the decision’s discussion of consumers’ behavior around defaults is largely impressionistic, not quantitative. For example, Judge Mehta notes that:

Another non-default search access point is the bookmarks page on a browser. The Safari “Favorites” page, for instance, contains preloaded icons to access Google, Bing, and Yahoo. A user also can add a new search engine on that page. But few consumers use this channel, as it first requires finding the Favorites page in a new Safari tab, which requires an “extra click.” Google itself receives only 10% of its searches on Safari through the bookmark.[57]

Strictly speaking, 10% is “quantitative,” but the decision’s conclusions based on this data are decidedly impressionistic. Judge Mehta asserts that Google receiving “only” 10% of searches on Safari through the bookmark is an insignificant volume. But in that setting—where Google Search is already the default on Safari and can be accessed simply by typing in Safari’s URL bar, and in which it is alleged that virtually no one ever uses anything other than default search on Safari—why would there be any searches on Google via the bookmark? If that number of searches is at all different from zero, it would appear to demonstrate that it is indeed a relevant channel by which consumers can find search engines, including non-default ones. In other words, 10% may be “insignificant” as a share of Google searches, but it is quite significant with respect to the relevant legal standard.

Indeed, “nearly 40% of queries on Apple’s mobile devices flow through non-default search access points, such as default bookmarks or organic search.”[58] Judge Mehta dismisses this by arguing that “the fact that some consumers access search on non-default access points is not dispositive on exclusivity.”[59] “Not dispositive” is not quantitative. While the statement is true, the burden of proof is on the plaintiffs, and this not being dispositive cuts against them, not against Google.

Elsewhere, Judge Mehta also rejects the actual evidence of people switching to the non-default on PC desktops. It turns out that a lot of Windows desktop users download Chrome and use Google Search there, rather than relying on Bing, which is the default search engine in the Edge browser:

To be sure, downloads of an alternative browser occur with greater frequency on Windows desktop computers. On such devices, Edge is the default browser and Bing is the default search engine. Yet, Google’s search share on Windows devices is 80%, with most of the queries flowing through the Chrome default, which means Chrome was downloaded onto the device.[60]

Despite this, Judge Mehta is quick to note that, for those users who still use Edge, Bing is the most used search engine:

The power of defaults is evident, however, from the share of Bing users on Edge. Bing’s search share on Edge is approximately 80%; Google’s share is only 20%. Even if one assumes that some portion of those Bing searches are performed by Microsoft-brand loyalists, Bing’s uniquely high search share on Edge cannot be explained by that alone. The default on Edge drives queries to Bing.[61]

One might suggest that all this shows is that people really prefer Chrome to Edge, not that they prefer Google Search to Bing enough to switch away from the default (on either browser). Except that, as the opinion points out, “Google’s dominance on Windows cannot, however, be attributed simply to the popularity of Chrome. Google had an 80% search share on Windows when Chrome first launched, and that share has remained steady ever since.”[62] If that’s the case, it can mean only that the default search on Windows desktops isn’t very sticky—and it isn’t just because users prefer Chrome to Edge; apparently it’s because they prefer Google Search to Bing.

So how does the court conclude that it supports the “power of defaults” that, of those users who don’t switch to Chrome on Windows desktops, approximately 80% use Edge’s default? If most Windows users who prefer Google Search to Bing switch from the default by downloading Chrome instead of by switching the default in Edge, then of course most of those who remain on Edge will use Bing. If they preferred Google to Bing, they would have switched to Chrome.

As Judge Mehta notes elsewhere, “[m]any users do not know that there is a default search engine, what it is, or that it can be changed.”[63] Perhaps. But then again, apparently, many users do know that Chrome gets them access to their preferred search engine. Whatever “choice friction” impedes the movement away from the default search engine on Windows desktops, it is not strong enough to prevent people from maneuvering around it in spades—they just don’t often do so directly by switching the default search engine in Edge.[64]

The opinion also brushes off these examples of default switching by asserting that they merely “confirm that the default effect is weaker when the alternative is a dominant firm with high brand recognition backed by a quality product.”[65] First, this is pretty hand-wavy and impressionistic. Maybe it’s true; in fact, I’m sure it’s true to some extent. But for an opinion that otherwise regularly says we have to look at “market realities,” not the world as it might be, this is a weak basis to conclude that evidence of people switching away from defaults doesn’t really show that people switch away from defaults.

Regardless—isn’t the ability to attract users because you are widely used, have good brand recognition, and have a demonstrably high-quality product pretty much the definition of competition on the merits? Indeed, one could recast Judge Mehta’s statement as precisely the opposite of the decision’s holding: Google’s default agreements can’t be deemed to have caused anticompetitive harm because defaults are readily overcome by high-quality, reputable alternatives.

It should also be noted (but, unfortunately, Judge Mehta doesn’t say it) that Microsoft is also a “dominant firm with high brand recognition backed by a quality product.”[66] What’s good for the goose is good for the gander: Microsoft has plenty of market heft to ensure that its products don’t languish in obscurity in the face of consumer inertia.[67]

III. The Scale and Quality Argument: A Double-Edged Sword All of which raises the question: Is Bing a comparably high-quality product or not? Determining that seems like a pretty important prerequisite to determining whether its small market share is a function of anticompetitive exclusion or a failure to compete on the merits. Yet Judge Mehta is, at best, equivocal on this. First, he notes that:

Everyone agrees that Google’s distribution agreements did not cause Microsoft’s past underinvestment in search. Microsoft “missed” the mobile revolution and was unable to improve its browser, Internet Explorer, until it used Google’s rendering engine, Chromium. Some of Microsoft’s quality issues also were attributable to its poor index.[68]

Yet, “[u]ltimately, Microsoft committed significant capital to search.”[69] And “[t]hat investment (combined with secured distribution on Windows devices) has allowed Bing to achieve quality parity with Google on Windows desktop devices.”[70]

Elsewhere, however, Judge Mehta concludes that “Google’s exclusive agreements… deny rivals access to user queries, or scale, needed to effectively compete,”[71] and that “[t]his perpetual scale and quality deficit means that Microsoft has no genuine hope of displacing Google as the default GSE on Safari. As Apple’s Eddy Cue testified, there was ‘no price that Microsoft could ever offer [Apple]’ to prompt a switch to Bing, because it lacks Google’s quality.”[72]

I admit that it’s unclear to me why Bing’s apparent quality parity in desktop search doesn’t redound to its benefit in mobile search. Indeed, it has to be noted that the court did not identify separate relevant markets for mobile and desktop search; it identified a single “general search services” market.[73] So, it’s a little unclear, but it seems that, according to the court, ultimately Bing simply isn’t up to Google Search’s quality standard.

A. The Failure to Distinguish Between Exclusion and Low Quality: A Catastrophic Legal Blunder The problem is that it is precisely past decisions and their alleged influence on current outcomes that the court uses to establish the proposition that Google’s default deals are anticompetitive. As I keep pointing out, however—and as Judge Mehta appears here to recognize—plaintiffs cannot meet their burden of proof that Google’s deals were exclusionary by pointing to Bing’s limited success, if the court agrees that Bing’s low quality could also have caused it. And here, Judge Mehta also concedes that those deals didn’t cause Bing’s lower quality, either (“Google’s distribution agreements did not cause Microsoft’s past underinvestment in search.”).[74]

For the court to sustain its claim that Microsoft is the appropriate guiding precedent (and thus, that the government has made its case under Microsoft’s “edentulous” legal standard), it has to be the case that Bing could have outcompeted Google on quality if not for the agreements—that is, that it “reasonably constituted [a] threat.”[75]

By conceding that Bing was unable to secure distribution deals comparable to Google’s because of its low quality, however, the opinion (and the government, of course) fails to do this. As such, they fall right into the trap explained by Greg Werden:

But if operating at a much smaller scale than Google makes rival search engines uncompetitive, their fate was sealed when Google achieved a dominant share. The government posits no scenario in which any rival search engine could have substantially closed the scale gap…. If the government’s scale contentions are fully credited, the conduct that is at the heart of the case did not maintain Google’s dominant share. And any conduct that could not have maintained dominance most likely served a legitimate purpose. One way or another, the elements of the monopolization offense cannot be established under the government’s view of the facts…. But the government does not contend that rival search engines ever posed a real threat to Google’s monopoly. Indeed, it claims to have proved just the opposite.[76]

That’s a catastrophic problem for the opinion’s holding. Nevertheless, Judge Mehta does find that Bing is not a viable competitor on mobile. Yet he refutes Google’s claim that this is because of Microsoft’s own business failures, rather than its inability to gain scale:

Google also maintains that the quantity of user data is less important than how it is used, and if its rivals had Google’s business foresight and drive to innovate, they too could win default distribution. But that position blinks reality. Apple’s flirtation with Microsoft best illustrates this point. Microsoft has invested $100 billion in search in the last two decades and its quality now matches Google’s on desktop search. Yet, Microsoft’s failure to anticipate the emergence of mobile search caused it to fall behind, and with Google guaranteed default placement on all mobile devices, Microsoft has never achieved the mobile distribution that it needs to improve on that platform.[77]

Isn’t Microsoft’s “failure to anticipate the emergence of mobile search” precisely the sort of competitive failure that Google is talking about? How is Microsoft’s diminished scale attributable to Google’s conduct if it was Microsoft’s independent business decisions that denied it the ability to compete effectively?

This is exactly why a plaintiff must prove that the defendant’s conduct, and not an excluded rival’s own mistakes, were the cause of the rival’s inability to compete. Otherwise, the law would be enlisted to rectify competitors’ poor business decisions, rather than to protect the competitive process.

1. Even Judge Mehta knows ‘reasonably appears capable of’ is the wrong standard It also bears noting that Judge Mehta already—and properly—threw out exactly this sort of claim on summary judgment when he dismissed the plaintiff states’ claims that “Google’s targeting of SVPs [specialized vertical providers] caused anticompetitive effects in the proposed markets.”[78] But the basis on which he did so is shockingly at odds with the basis for his decision in the government’s favor in this case. Citing Microsoft, in fact, Judge Mehta held in his summary judgment opinion that:

Speculation that Google’s conduct “can reasonably be expected,” “might,” or “could potentially” degrade SVPs and make them less attractive partners to Google’s rivals is not evidence of anticompetitive effects in the relevant markets. Plaintiffs are required to show with proof “that the monopolist’s conduct indeed has the requisite anticompetitive effect,” and they have fallen well short.[79]

And, as he notes elsewhere in his summary judgment opinion, also citing Microsoft, “[t]he sole issue for the court to resolve is whether Google has maintained monopoly power in the relevant markets through ‘exclusionary conduct’ as opposed to procompetitive means.”[80]

The words “can reasonably be expected”—rejected by Judge Mehta in his summary judgment decision—might ring a bell, as they are awfully close to the “reasonably appear capable of” standard adopted by the court in this decision.

B. Less-Efficient Channels of Distribution: Misapplying Microsoft Again Finally, there is another problem with the legal sufficiency of the exclusivity claims, and it stems, once again, from a misapplication of Microsoft.

Judge Mehta claims that “mere user access to these less efficient channels of distribution does not render the browser agreements non-exclusive.”[81] A significant part of the defense of this position turns on an analogy to Microsoft and the argument there that it was sufficient that Microsoft foreclosed access to the best method of distribution. Indeed, the next sentence after the quote above is, “Microsoft again illustrates the point.”[82] But does it?

Judge Mehta says this case is the same as Microsoft where the court “reject[ed] the argument that Microsoft’s licensing agreements with OEMs were not exclusive ‘because Netscape is not completely blocked from distributing its product,’ as ‘although Microsoft did not bar its rivals from all means of distribution, it did bar them from the cost-efficient ones.’”[83] He then asserts that “[t]he record here resembles that in Microsoft. Users are free to navigate to Google’s rivals through non-default search access points, but they rarely do.”[84]

But this elides a couple of key things.

First, the Microsoft court didn’t look ex post at what consumers did (which, as I tire of pointing out, could be attributable to either anticompetitive conduct or consumer preferences); it looked at which channels of distribution were available and if they were viable substitutes, regardless of whether they were actually used or not.

The analogy to Microsoft fails most obviously on the point that the “market realities” have changed a lot since the late 1990s. Downloading Netscape from the internet was wholly unfamiliar, exceedingly complex, and truly difficult for PC users back then—a real “choice friction” and thus not really a viable alternative. But downloading a competing search engine or browser today is trivially easy, and users do it all the time (to the tune of 12.6 billion app downloads in the United States in 2023 alone).[85] In this environment, the fact that users don’t download or use competing general search engines sufficiently to displace Google Search despite the ease of doing so suggests that it is consumer preference for Google Search, not the relative inefficiency of the channel of distribution, that causes this result.

Instead, Judge Mehta concludes that, while “a user can download Chrome, Edge, or [DuckDuckGo] onto an Apple device,” “[t]his, too, is not an easily accessible search point, as it involves similar choice friction as acquiring a search application. Google receives only 7.6% of all queries on Apple devices through user-downloaded Chrome.”[86]

Not only is downloading an application trivially easy, but the fact that Google receives only 7.6% of search queries on Apple devices through Chrome, but “most”[87] of its queries on Windows desktops through user-downloaded Chrome is decidedly ambiguous. Maybe that shows that people download Chrome on Windows not to get easy access to Google Search but because the Chrome browser is superior to the Edge browser, while it is not any better than Safari. But it is also consistent with the conclusion that people aren’t prevented from accessing their preferred search provider (Google Search)—they just don’t need to download Chrome on Apple devices to get easy access to it, while they do need to do so on Windows devices.

Second, the opinion says that “[t]he court in Microsoft did not say that these contracts caused zero market foreclosure merely because Internet Explorer had other, less-efficient means of reaching users.”[88] True. But the court in Microsoft also didn’t say that any amount of difference in distribution efficiency was sufficient to maintain that a non-exclusive agreement was effectively exclusive. As noted, it is now trivially easy to switch search providers on virtually every platform and at multiple decision points on each. Defaults don’t prevent that, and prioritized placement (from, e.g., a spot on the Android home screen) doesn’t even crowd out alternatives once they are downloaded (which can then be similarly accessed from priority positions on the home screen). “Very slightly less efficient” could still be “efficient.” The fact that the difference between the foreclosed and available channels of distribution in Microsoft was large enough to matter does not mean that the difference between them in Google Search is big enough to matter.

1. So, Dentsply is good law, but Rambus isn’t? In response, Judge Mehta goes back to ex post user conduct to hold that the fact that users don’t often use these alternatives shows that the difference does matter here, and that Google’s default distribution deals are effectively exclusive and lead to foreclosure:

Sure, users can access Google’s rivals by switching the default search access point or by downloading a rival search app or browser. But the market reality is that users rarely do so. The fact that exclusive agreements allow users to reach rivals through other means does not make the foreclosure number zero.[89]

But it cannot be a sufficient argument that “the market reality is that users rarely do so.” That market reality is exactly what is at issue in the case. Using the lack of user uptake from trivially easy alternative distribution channels as evidence that those alternative distribution channels aren’t relevant assumes the conclusion. It’s poor legal reasoning.

Judge Mehta is correct, however, that “‘[t]he mere existence of other avenues of distribution is insufficient without an assessment of their overall significance to the market.’”[90] If only he had demanded such an assessment.

The Dentsply case that Judge Mehta cites for this proposition was (in my opinion) wrongly decided. It shouldn’t be held up as the standard of analysis and, in any case, it was in the 3rd U.S. Circuit Court of Appeals and not binding precedent. But even so, Dentsply dealt with exclusive agreements that included a term explicitly prohibiting authorized distributors from selling rivals’ products, thus arguably making it extremely difficult for those products to be accessed by the ultimate consumer. This case is different. None of Google’s agreements include terms prohibiting its counterparties from dealing with anyone else. And here, competing products are available to the ultimate consumer, and they show up on users’ devices in locations virtually identical to Google’s.

In any case, the Dentsply court does not rely on ex-post uptake to support its claim that alternative distribution channels are insignificant (although it does look at that statistic on occasion). Instead, it describes in detail the qualitative differences between the channel of distribution foreclosed by Dentsply and the alternatives, finding that the alternatives are decidedly less attractive. Here, by contrast, the only thing that distinguishes default placement from the other channels of distribution is alleged “choice friction.” Otherwise, they are, quite literally, identical (or, as in the difference between, say, search bar integration and a home-page bookmark, trivially different). That makes assessing their “overall significance to the market” dependent on what is being distributed, and not solely the channel of distribution itself.

2. In fact, we know from other parts of the decision that ‘less-efficient’ alternatives can’t be dismissed Later, also quoting Dentsply, Judge Mehta asserts that:

In the end, Google’s dismissal of the importance of scale is inconsistent with market realities. Google often warns that competition is “only a click away.” However, “[t]he paltry penetration in the market by competitors over the years has been a refutation of [that] theory by tangible and measurable results in the real world.”[91]

This misses the mark for the same reason. There is plenty of evidence to demonstrate that competition is just a click away. In fact, some of it was evidence the court used to exclude specialized vertical search providers (e.g., Amazon and TripAdvisor) from the relevant market. Without challenging that conclusion here (although I do think it has problems), it appears eminently “tangible and measurable” to the question of whether users will switch to alternative search engines that, when the alternative is demonstrably superior for the query at issue, they do so in droves:

Google views competition from SVPs as “intense for commercial clicks.” A 2020 Bank of America study reported that 58% of users search Amazon first when they seek to make an online purchase, as opposed to only 25% who go first to Google, demonstrating Google’s secondary status as a starting point for users with high commercial intent….

…Microsoft recognizes that “if Bing or Google were not doing vertical searches well, or at least not having organic results that people could click to get to vertical search engines,” users might bypass GSEs and instead search directly on Amazon from the outset….

…[A]nalysis show[s] that a query sample of Google’s top 25 non-navigational shopping queries attracts more queries weekly on Amazon (3.7 million) than Bing (0.4 million)…, [and] that Yelp’s local query volume is higher than Google’s and much higher than Bing’s.[92]

None of these alternative vertical search engines is installed as the default. And yet, when consumer preference is strong enough—when they produce better results—consumers have no trouble using them. Whether or not this is sufficient to affect the court’s relevant market or market-share analysis, it is surely enough to demonstrate that users are not locked into defaults when the “choice friction” required to switch from them is small relative to the benefit. That, in turn, is a function of the quality of the search provider, not the method by which it is accessed.

IV. Getting It Wrong on the Substantiality of Foreclosure, Too The “substantiality” of foreclosure must also be briefly addressed, for similar reasons. While the opinion downplays its significance as a search engine distribution channel, Windows desktops constitute a substantial share of the distribution market. Windows accounts for 64% of desktop operating systems and almost 30% of all operating systems across all platforms in the United States.[93] On these devices, Bing is the default search engine. So, right out of the box, the share of the market that Google could even possibly foreclose is reduced by Windows’ 30% market share.

Of the remaining 70%, we know that small but non-trivial portions are not actually foreclosed to competitors. We know this from the ex-post data showing, for example, that “5.1% of all searches on iPhones are conducted on a GSE other than Google [where it is the default].”[94] We also know that, on Android, “[a]lthough OEMs must preload the Google Search Widget, users can delete it. As of 2016, there were about 200,000 logged widget deletions daily.”[95] Also, “Samsung already preloads a second browser—its proprietary S browser—on all Samsung devices.”[96]

We also know that “nearly 40% of queries on Apple’s mobile devices flow through non-default search access points, such as default bookmarks or organic search.”[97] Of course, a great number of these searches are performed on Google Search anyway.[98] But these are searches performed by users who demonstrably navigate around the default. By definition, they are not foreclosed to Google’s competitors.

Indeed, simultaneous with the Google default deals, Bing is, in fact, distributed by these counterparties to Google’s deals. Thus, as the result of an agreement with Microsoft, Bing shows up as an option on Safari’s homepage and on the Safari “Favorites” page, “which contains preloaded icons to access Google, Bing, and Yahoo.”[99] Mozilla has a “this time, search with” feature on Firefox “which allows users to select a different search product from its ‘Awesome Bar’ for a given query.”[100]

Again, Android is actually a somewhat unique case, and there the absence of true foreclosure is almost entirely dependent on the availability of end-consumer choice (which, again, is far from irrelevant). But even if we assume zero distribution of Bing on Android devices,[101] it still has unfettered access to distribution on Windows devices and is still distributed alongside Google on Apple devices and in Firefox.

The bottom line is that, even measured by ex-post consumer behavior, rivals are not foreclosed from access to consumers. And measured by the availability of access to rival search engines (whether consumers choose to use them or not), competitors are not actually foreclosed from distribution on any devices or in any browsers at all. To be sure, the remaining effective foreclosure level could be “substantial.” But nowhere does the court’s opinion demonstrate this. As plaintiffs have the burden of proof, the existence of meaningful consumer usage and availability, despite purported exclusive agreements, should have been deemed by the court to undermine the government’s case, not support it.

V. The Fateful Conclusion that Bing Isn’t a Real Competitor and the Problem of Remedy Finally, I have to say a word on remedy here, although I do so for now only insofar as it bears on what I have been arguing; there are many other arguments about remedy that make this holding problematic. But here is one, and it hearkens back to Greg Werden’s Catch-22.[102]

The jig was up for the plaintiffs in this case once they argued that Bing was not a viable competitor to Google Search. In the world of that “market reality,” no reasonable remedy would do any good to rectify the allegedly anticompetitive circumstances. And the court accepted the government’s quality arguments pretty much wholesale:

The market reality is that Google is the only real choice as the default GSE. Apple’s Senior Vice President of Services, Eddy Cue, put it succinctly when, in a moment of (perhaps inadvertent) candor, he said: “[T]here’s no price that Microsoft could ever offer [Apple] to” preload Bing. “No price.” Mozilla stated something similar in a letter to the Department of Justice prior to the filing of this lawsuit. It wrote that switching the Firefox default to a rival search engine “would be a losing proposition” because no competitor could monetize search as effectively as Google. A “losing proposition.” If “no price” could entice a partner to switch, or if doing so is viewed as a “losing proposition,” Google does not face true market competition in search.[103]

But if “no price” could entice a partner to switch to Bing, and Bing is not truly a competitor to Google in search, then, as Greg Werden says, “the conduct that is at the heart of the case did not maintain Google’s dominant share.”[104]

The Microsoft decision relies on the contention that, although unproven, Netscape Navigator was a viable competitive threat to Windows. Thus, the government had to prove in that case that the threats to Microsoft’s operating-system monopoly were real, even if it didn’t have to prove the threats would have succeeded but for Microsoft’s conduct. The government’s burden is at least as high here.

And yet, in the quote above, Judge Mehta essentially finds that the government didn’t meet even this burden. He finds, in effect, that it wasn’t the nature of Google’s agreements that contributed to Google’s continued monopoly power; it was the fact that no distributor would ever choose Bing as the default—at any price. That conclusion means that it was Bing’s low quality that excluded it from default distribution and the reason “Google does not face true market competition in search”[105] is a function of quality, not Google’s deals.

That’s already fatal to the case. The remedy point is this: That same market reality means that no remedy prohibiting Google from entering into such agreements will rectify the situation. It means that Apple, Mozilla, Samsung, et al. will still choose Google as the default, even if Google is forbidden from paying them a revenue share (or even a set price) to do so—they will just forego the revenue from doing so, and Google will get a windfall.[106]

Yet it is hard to conceive of any other remedy that follows from Judge Mehta’s analysis in this decision. The decision is laser-focused on the determination that Google’s default distribution deals were (effectively) exclusive and thus foreclosed a substantial share of the market and deprived rivals of scale. Everything in the decision comes down to the default nature of the deals. It stands to reason that any remedy would be limited to removing the one-deal characteristic that, according to the court, makes the agreements anticompetitive.

Cutting against this somewhat is Judge Mehta’s conclusion that, having been deprived of scale by Google’s distribution deals, no rival is in a position to secure a default deal of its own.[107] But it is by no means clear from the decision that, in the absence of default deals with Google, rivals would be unable to compete effectively through other channels of distribution or compete for such deals in the future. The problem is that, because the court has no ability to prohibit Apple and Mozilla from offering default search engines without a Google deal, even prohibiting Google from entering into those deals doesn’t mean it won’t still be offered as the default, and this may not change the competitive landscape enough to enable Bing and other rivals to compete effectively.

Perhaps one might think that Google should just be compelled to share its data (and/or other “secret sauce”) with rivals so they have the quality necessary to actually win default placement deals. But that doesn’t work either. In the first place, this would be a clear acknowledgment that it is quality, not default distribution deals, that impedes rivals’ commercial success. If that is the only effective remedy, then the necessary legal basis of the holding is undermined.

Secondly, implementing that remedy would entail mandating that Google enter into deals with competitors to help them compete. This is anathema to U.S. antitrust law.[108] So much so that Judge Mehta himself threw out one of the plaintiff states’ claims in this case on exactly that basis:

Plaintiff States seek to bypass the “no duty to deal” doctrine entirely…. …The concerns that animate the no-duty-to-deal principle are equally applicable here. Primarily, adjudicating Plaintiff States’ claim would require the court to act as a “central planner” that endeavors to identify the proper “terms of dealing.” Their claim requires grappling with a host of questions that the court is ill-equipped to handle…. And those thorny questions foreshadow the challenges the court would face in administering a remedy…. A favorable outcome for Plaintiff States thus would mire the court in Google’s day-to-day operations…. The court has learned a lot about Google, but it is “ill suited” for that role.[109]

It is extremely difficult to see how Judge Mehta would countenance a forced-sharing arrangement for Google’s data as a remedy for the remaining claims in this case, given his unequivocal dismissal of other claims on precisely that basis.

As I noted, there is more to say about potential remedies in this case.[110] But for now, the most important thing is that the absence of viable remedies strongly supports the arguments I have presented here that the court’s liability finding was improper.