Earlier this year, the Department of Justice filed a complaint against Google, suggesting it had intentionally acquired businesses that sold services at every stage of the online advertising supply chain. Google now owns the services that almost all major website publishers use to sell advertising space, and the market’s leading tools that advertisers use to buy advertising space. It also owns the most prominent advertising exchange that matches publishers and advertisers each time they purchase space.
Google has acquired this position by pouring countless dollars into research and development of their search algorithm software, which undoubtedly made using the internet more seamless for billions of users. With recent AI-enabled search services, Google’s dominance is threatened, and with countless opportunities to innovate in this space, there can be no doubt that market forces will correct this dominance.
In conjunction with the Justice Department, the lawsuit was filed alongside the state attorneys general from California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, Virginia and Washington. A lawsuit crossing the political spectrum and the country signifies a major move by all levels of government to disrupt the sector.
Since filing the lawsuit, Google has attempted to consolidate the various lawsuits into one jurisdiction, the more favorable being New York. In an August 2021 request, Google successfully moved the case to a federal court in New York.
However, this month the Judicial Panel on Multidistrict Litigation chose to exercise power given to it last year as part of the omnibus spending bill, making all-state AG Antitrust actions ineligible for Multidistrict litigation except in particular circumstances. Now, Google will fight multiple lawsuits in multiple federal court districts, including Texas, where this decision will return.
The State Antitrust Enforcement Venue Act was heralded as a major win for lawmakers seeking to break Google’s dominance in the industry. Under previous legislation, defendants facing nationwide litigation could transfer cases with the same material facts to a single MDL case in a jurisdiction where their matter is being pursued in a federal court. The act dramatically expanded the fronts in which defendants of antitrust lawsuits now need to fight, all at the expense of invaluable court resources, efficiency and convenience to mount an adequate defense. Serious concerns regarding the duplication of legal recovery have also been raised, noting the uncertainty of multiple federal court judges making similar rulings.
This change has meant that businesses will not receive timely and reasoned responses to accusations of misconduct in an efficient manner. Instead, in the name of justice, lawmakers have intentionally made the judicial system more cumbersome and costly to businesses. Ironically those lawmakers seeking justice do so by administratively tying the judiciary to an outcome.
This decision to kick the process back to Texas federal court symbolizes the administration’s attachment to seeking symbolic victories instead of generating meaningful consumer protections. If the Justice Department wanted to protect consumers arbitrarily charged more for advertising using Google AdTech, the administration would repeal the decision to disallow companies to merge multiple lawsuits with the same material facts from receiving one judgment.
To add insult to injury, Justice has asked that the lawsuit be heard by a jury, banking on the typical American wanting to “stick it” to Big Tech. A recent YouGov poll found that 61 percent of Americans view the lack of competition among larger tech companies as at least somewhat concerning. Shockingly, the same survey suggests there is very little difference in opinion among Democratic and Republican voters, a reality unthinkable to the business-loving right-of-center politics of the early 2000s.
Large technology companies now face a biased public fueled by populism and rhetoric, all at the expense of consumers across the country. Lawmakers should stick to winning cases on their merit instead of making the judicial system inaccessible.