## Facts

- Google LLC entered contracts with web-browser developers (including Apple and Mozilla) and wireless companies (including Samsung and Verizon) that positioned Google as the default search engine on key products and services.
- The United States and multiple state attorneys general sued Google under § 2 of the Sherman Act, alleging unlawful monopolization or monopoly maintenance.
- Plaintiffs alleged Google held monopolies in four markets: (1) general search services, (2) general search text advertising, (3) search advertising, and (4) general search advertising.
- Plaintiffs challenged Google’s default-search and related distribution arrangements as exclusionary practices that limited rivals’ ability to obtain scale and compete.
- In responding to Google’s summary-judgment motion, plaintiffs argued the court should evaluate Google’s challenged conduct together and aggregate the conduct’s alleged competitive harms, including harms tied to acts that allegedly had no standalone anticompetitive effect.
- Google argued the court should assess each challenged practice on its own, and that plaintiffs could not establish § 2 liability by combining conduct that was not anticompetitive in isolation with other conduct.
- The court addressed these disputes in a pretrial memorandum opinion ruling on Google’s motion for summary judgment and related requests.

## Issues

1. In a § 2 case, may the factfinder consider a defendant’s challenged practices as an overall course of conduct, rather than in isolated, practice-by-practice compartments?
2. May plaintiffs aggregate alleged anticompetitive effects across multiple practices, including practices that allegedly have no anticompetitive effect on their own?
3. Did plaintiffs present sufficient evidence to create triable issues on relevant markets and monopoly power in the markets alleged?
4. Did plaintiffs present sufficient evidence that Google’s default-search and related distribution agreements could constitute exclusionary conduct that harmed competition, as distinct from aggressive but lawful competition?
5. To what extent, if any, were Google’s requested summary-judgment rulings warranted on particular theories or market allegations as a matter of law?

## Decision

- The court declined to require a rigid, practice-by-practice approach that would ignore how a monopolist’s interrelated contractual arrangements may work together; it permitted consideration of the challenged conduct as a course of conduct when evaluating competitive effects.
- The court did not accept the view that § 2 liability can be proven by simply adding together conduct that has no tendency to harm competition; plaintiffs still had to tie the challenged practices they relied on to exclusionary effects in the relevant markets.
- The court largely denied Google’s motion for summary judgment on the central § 2 theories challenging Google’s default-search and related distribution arrangements, finding genuine disputes of material fact suitable for trial.
- The court granted summary judgment in part, narrowing some claims or theories that were not supported by evidence sufficient to proceed under § 2 on the summary-judgment record.
- The case proceeded toward trial on the remaining monopolization/monopoly-maintenance claims.

## Legal Principles

- Section 2 requires proof of monopoly power in a properly defined market and exclusionary conduct that harms the competitive process; monopoly status alone is not unlawful.
- In assessing exclusionary conduct and competitive effects under § 2, a court may consider how multiple related practices operate together, rather than viewing each in isolation.
- Course-of-conduct consideration does not eliminate the need to show that the challenged practices materially contributed to harm to competition; plaintiffs cannot establish illegality by aggregating conduct that lacks anticompetitive tendency with other conduct.
- Exclusive, default, or preferential distribution arrangements by a firm alleged to have monopoly power can be unlawful if they substantially foreclose rivals and help maintain monopoly power, depending on market context and justifications.
- On summary judgment, if the record permits reasonable factfinders to disagree on market definition, monopoly power, exclusionary conduct, and competitive effects, those disputes must be resolved at trial.

## Conclusion

In *United States v. Google LLC*, the district court’s 2023 summary-judgment decision addressed how to evaluate multiple challenged practices in a § 2 case, allowing assessment of Google’s conduct as a connected course of dealing while requiring a concrete link between the challenged practices and harm to competition. The court largely denied Google’s bid to end the case before trial on the main default-search theories, while granting summary judgment only in part to narrow certain claims or theories that could not proceed on the record presented.


United States v. Google LLC, 687 F. Supp. 3d 48 (2023)