Litigation Update: Tuesday's Google Search Remedy Decision

One year ago, U.S. District Court Judge Amit P. Mehta held that “Google is a monopolist and has acted as one to maintain its monopoly”, and, in doing so, violated Section 2 of the Sherman Act. On Tuesday, September 2, 2025, Judge Mehta’s remedy decision rejected the United States’ request for structural relief and indicated only limited conduct and behavioral requirements were appropriate to address any past effect of Google’s conduct and to protect competition going forward. Does either party have substantive grounds to expect an appellate court to reverse Judge Mehta’s liability and remedy decision? Is the remedy decision consistent with the liability decision (and vice-versa)? What are the next steps to implementing the remedy decision? What is the likely impact of Judge Mehta’s liability and remedy decisions on Google, monopolization law, and the Government’s anti-monopoly agenda. Please join our body of expert lawyers for a discussion of these and other related questions.
Featuring:

Alden F. Abbott, Senior Research Fellow, Mercatus Center, George Mason University
Ashley Baker, Executive Director, The Committee for Justice
Kathleen W. Bradish, Vice President and Director of Legal Advocacy, American Antitrust Institute
Derek W. Moore, Counsel, Rule Garza Howley LLP
(Moderator) Bilal Sayyed, Counsel, Cadwalader, Wickersham & Taft LLP

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Societies
Practice Groups. I'm Ny kas Merrick, vice President and Director
of Practice.

Speaker 2 (00:08):
Groups at the Federal Society.

Speaker 1 (00:10):
For exclusive access to live recordings of fedsock Forum programs,
become a Federal Society member today at fedsoc dot org.

Speaker 3 (00:18):
Hello and welcome this fed sooc Forum. We'ming our call today,
September fourth, twenty twenty five. We're delighted to host a
litigation update on tuesday's Google Search remedy decision. My name
is Cala Kleist, and I'm a deputy Director of Practice
Groups here at the Federalist Society.

Speaker 4 (00:33):
As always, please note that all.

Speaker 3 (00:35):
Expressions of opinion are those of the experts on today's program,
as the Federalist Society takes no position on particular legal
or public policy issues. Now in the age of time,
I will keep my introduction of our guest today brief,
certainly more brief than the distinguished careers would deserve, so
I highly recommend that, if you're interested, you check out
their impressive full bios at fedsock dot org. Today, we're

(00:57):
fortunate to have with us Alden Abbott, who has senior
research fell the mercadis As Center. Prior to joining Mercadis,
he served as the General Counsel of the Federal Trade Commission.
All sjournings today is Ashley Baker, who serves as Executive
Director at the Committee for Justice. Focus areas include the
Supreme Court, Regulatory policy, anti trust, and judicial nominations, and
she's also the founder of the recently formed Alliance on

(01:18):
Antitrust Coalition. Third joining this to day is Kathleen Bradish,
who is Vice President and Director of Legal Advocacy at
the American Anti Trust Institute before coming to AAI from
mid twenty fifteen to late twenty eighteen, Miss Bratish serves
as Assistant Chief and of International Council at the USDOJ
in the Anti Trust Division. Fourth, we have of joining

(01:40):
US Derek Moore, who is currently Counsel at Rule Garza Howley, LLP.
For joining Rule Garless at Howley. Mister Moore held numerous
positions during nearly a decade with the Federal Trade Commission,
including as Attorney Advisor to a Commissioner, Attorney Advisor in
the Office of Policy Planning, and Staff Attorney on Detail
and the Technology Enforcement Division at the Bureau of Competition

(02:00):
and lastly, joining to day as our moderator today's conversation
is Willal Sayed, who currently serves as counsel at Caldwalder,
Wickersham and TAFT LLP. Joining Caldwalder, missus Sayied was the
director of the FTC's Office of Policy PLANNINGP.

Speaker 4 (02:14):
From twenty eighteen to twenty twenty one, and.

Speaker 3 (02:16):
Missus Said has also taught anti trust and competition law
at the George Mason University School of Law since twenty eleven,
and I believe it there too brief as noted, but
feel free to check out their bios on the website.
A last note before I get off your screens, if
you have any questions throughout the program, please do submit
those by the question answer feature, likely found at the

(02:36):
bottom of your zoom screen, so they'll be accessible when
we get to that portion of today's webinar. I will
ask that all questions submitted there A pertain to this
discussion and B and with the question mark. But that
thank you all for Joining's Day with Saied. The floor
is yours, okay, thank.

Speaker 5 (02:53):
You, thank you, and thank the panel for being here,
and thank you everyone for listening. So we'll try to
be quick on the background and jump right into the
questions and discussion, so as I'm sure most of if
not all, of our our listeners know. Slightly over a
year ago, judgement have found that Google had had monopoly

(03:18):
power in general search services market and through what it
considered exclusive distribution agreements, foreclosed competition in that market, and
that that foreclosure was significant, and thus found that Google
had abused its monopoly power illegally. Just a few days ago,

(03:46):
on Tuesday, the Court released its remedy decision, which is intended,
of course, to address the anti competitive effect of of
Google's conduct. Now we'll assume, for purposes of lease of
this introduction that the Court got the liability decision correct,

(04:09):
although that is likely to be challenged on appeal.

Speaker 6 (04:16):
The court. The Court did.

Speaker 5 (04:20):
Not grant a DOJ's request for extensive remedial relief, limiting
the relief or the remedy to a prohibition to a
few things. To a prohibition on Google entering into exclusive
agreements with i'll call it carriers or distributors of its

(04:44):
search engine app. And it will require Google to share
some data search index and user interaction data with some
firm in an effort to remediate the past effects of

(05:05):
its exclusionary acts and to promote competition going forward. However,
the Court did not did not impose the more what
you might call draconian remedies proposed by DOJ, including a
divestiture of its Chrome search engine and also potentially divestiture

(05:33):
of operating system over time over time if the original
remedy was not effective. It also narrowed, if not eliminated,
some of the other more tangential remedy requests by the DOJ,
and it limited the scope of the order or the

(05:54):
length of the term of the order to six years.

Speaker 6 (05:58):
Now.

Speaker 5 (06:00):
It did not fully accept Google's proposed remedy, but I
think many commentators or commentators believe that the court the
Court's remedy is significantly in line with what Google recommended.
So and why we'll discuss a little bit as so

(06:23):
why the Court came out this way with the remedy.
But it appears on first reading in the opinion that
it felt the market had changed in the year or
so since the liability decision and year and change since
the liability trial, and that more draconian remedies were both

(06:48):
not necessary to address or prevent competitive harm in the future.
And also, I think it believed that more draconian remedies
might prohibit prevent Google's competitive impact in the market for

(07:12):
artificial intelligence products. So, in a sense, the court limited
its remedy uh, based on facts that it believes that
sort of developed in the last year or two and
likely likely to continue to develop with respect to AI.

(07:33):
So let me let me ask maybe I'll ask all,
then first turn to others. Does does the remedy make sense?

Speaker 6 (07:43):
Right?

Speaker 7 (07:44):
Uh?

Speaker 5 (07:44):
Is it consistent with the liability decision? Is it consistent
with the legal framework of remedy section two case? And
was was the court too cautious in rejecting most of
the OJ's proposed remedies?

Speaker 6 (08:08):
All, then you're on mute, Thank you, Paull.

Speaker 8 (08:13):
The decision by the judge focused very carefully, and by
the way, it was a long detailed decision, over two
hundred pages.

Speaker 2 (08:20):
On.

Speaker 8 (08:22):
What causal connection was required to impose certain remedies under
antitrust case law.

Speaker 6 (08:29):
So this is really important. And it said.

Speaker 8 (08:34):
With regard to just enjoining Google's exclusionary conduct, which focused
on these what the court had viewed as exclusive dealing
arrangements that can be done where a requisite causal connection.

Speaker 6 (08:51):
Can be made through inference.

Speaker 8 (08:52):
And basically, the judge said, inferentially, we think that there's
that it was foreclosure, that.

Speaker 6 (09:00):
Perhaps fifty percent.

Speaker 8 (09:01):
Or more, that it made sense to an effect prevent exclusives,
and that was easily met. However, the structural remedies have
a different standard, and in this case, the judge cited
discuis a standard drawn from at least one of the

(09:22):
Microsoft opinions. DC Circuit has said structural remedies are only
all right when there is full a significant causal connection
between conduct and the creation or maintenance.

Speaker 6 (09:37):
Of market power close quote.

Speaker 8 (09:40):
And basically the judge is saying is look, certainly the
Chrome control of the Chrome browser potentially also some other
potential structural elements was not causally connected. Uh. The supposed

(10:02):
concern and a concern the judge and a liability decision
focused on. He said, these these contracts have foreclosure effect.
There's there's a network externalities hard to overcome, but that
had nothing to do with control of the of the
Chrome browser arguably or the Android system, which was another

(10:23):
backup possible. The best interruption suggested by the Justice Department,
and I think consistent With that, the judge said, I'm
going to tailor the behavioral remedies. He thought that the
greal key was these what he labeled exclusive contracts. In
both decisions, he also went a little bit beyond that,

(10:43):
of course, because he thought that to effectuate, uh, you know,
to to to effectuate a remedy, Google would uh would
have to do a few things specifically, uh is you know,
specifically make available to qualify competitors certain search index and

(11:05):
user interaction data and make available those limited set of
competitors search and search text and syndication services on commercial
terms that Google could apply and make a material change

(11:25):
to its auctions. So I mean it said that, look,
we think that there's certain other aspects of behavior that
prevent competitors from having quote unquote affair shape. It brings
the question about is there a risk of from data sharing,
d privacy or other risks. But it could have gone

(11:45):
much farther in that regard. It It didn't have to
share you know, granular sort of queer releve level data
or advertisers are provide them with more access to our data.
And it was allowed to continue to make payments to

(12:08):
distribution partners for free loading or placement of Google Search,
Chrome or its gen Ai products.

Speaker 6 (12:15):
Now, why is it? Why did a judge do that?
It was very pragmatic.

Speaker 8 (12:20):
I said, why isn't that a problem given the forbidding exclusives.
I said, well, these are non exclusives. But there would
be a great harm, he said, cutting off payments from
Google to firms, to a number of firms, including Apple,
which is not small, but some smaller firms as well,

(12:40):
almost certainly will impose substantial, in some cases crippling downstream
harms to distribution partners, related markets, and consumers, which counsels
against a broad payment ban. In fact, he's saying that
a broad ban on payments goes well beyond this sort
of ban on exclusive dealing, because it could really harm.

Speaker 6 (13:01):
For example, Apple.

Speaker 8 (13:03):
Had argued that you know, in other companies they were
able to improve their offerings by you using some of these payments.
So in effect that juddahs saying there's a significant risk
to consumer welfare potentially if you go too far. So
I think my sense is that the fell at court
will say that, well, the judge is very careful about

(13:23):
trying to apply causation a standard and.

Speaker 6 (13:30):
Went into a lot of detail.

Speaker 5 (13:36):
Well, then, thank you, Kathleen. You've written just recently what
I'm going to call the seminal piece on causation standards
in section two law. I mean, it's a very good piece,
and it's seminal because maybe it's the only recent one

(13:57):
in particular that you know that tries to look at
the tension, arguable tension between the Rambus case and the
Microsoft case, both from roughly roughly fifteen to twenty years ago.
So in reading that, I've got to believe you've got
a different view of the Court's remedy here, whether it

(14:23):
was necessary for the Court either on the law well
on the law but with reference to the facts, to adopt.

Speaker 6 (14:35):
A fairly narrow remedial position.

Speaker 5 (14:39):
I should just be clear for the readers there is
in fact no final order here yet, because the Court
did ask that the parties come forward with a final order,
which I assume will be aligned with the judge's decision.
But I imagine there will be arguments over whether one

(15:00):
position or the other is perfectly aligned. So so Kathleen,
with that is background, uh, let's you know, I think
we'd all love to hear what you're what you're thinking
is on the remedy given given the seminal paper.

Speaker 9 (15:14):
Thank you, and thank you the Federal Society and my
panelist for having me today.

Speaker 4 (15:20):
So yes, and I absolutely.

Speaker 9 (15:23):
First of all, we'll agree with Alden that this is
very carefully considered. It is very thoughtful and very fact specific.
So on those points I will definitely agree. And in
that sense, I think it's very much like the liability decision,
which I think was also very attentive to the facts

(15:43):
and very careful. Of course, I have some reservations, but
before I get into that, I do want to talk
about the what the court says about on a on
a legal level about causation or because I think it
actually says some things here that are very helpful for

(16:07):
other cases where divestitures structural remedies are at issue, and
where even this judge might find a better case for divestiture.
So I will say a good part of the opinion,

(16:29):
before he gets into this fact specific analysis of the
specific remedies at issue, addresses standards, and on this he
actually rejects pretty wholesale Google. Google's arguments that there's an
on off switch that if you can't show a butt

(16:51):
four world in which Google would not have maintained its
monopoly except for the conduct it engaged in.

Speaker 4 (17:00):
That you can't go.

Speaker 9 (17:02):
Beyond a bare minimum and junctive relief against the illegal conduct.

Speaker 4 (17:07):
So he is very clear that he has the power.

Speaker 9 (17:11):
He has seen the judge has to have the flexibility
to address the illegal conduct, and that especially in high
technology areas where there's a problem of proof in showing
what the butt four world consisted of, that that can't be.

Speaker 4 (17:34):
A strict bar, a per se bar.

Speaker 9 (17:36):
I think at one point he calls it to anything
beyond a bare minimum in junctive relief against the illegal conduct.
So I think this is a really important aspect of
his opinion. Even though he goes on to do some
other things with the facts in the case, I think
he sets the stage for different outcomes in different cases.

(18:00):
So I think that's important to note. And even on
structural remedy, and.

Speaker 4 (18:06):
I will note that the precedent.

Speaker 9 (18:09):
That he's addressing here is DC circuit precedent. It's not
Supreme Court precedent. So he's operating within that frame when
he talks about there being a higher causation standard for
structural remedies like divestitures, he talks about it he talks

(18:29):
about the language not so much as being and he's
clear that divestiture is not just limited to the cases
in which there was a Section seven violation or the
monopoly happened by virtue of an acquisition. Although he also
mentions that that's where it's most commonly used, he does
not immediately eliminate that as a possibility. And I think

(18:54):
on this he is very correct, and he does a
very close reading of the precedent in the DC state
to show why other cases don't support that idea, and
I think the standard he's using there he talks about
it being not sufficiently on the chrome divestiture, that it

(19:16):
wasn't sufficiently attributable. So he uses a lot of sliding
scale language throughout, and I think this is another example
he doesn't we know it didn't cross the threshold for
him to where he would have ordered a devestiture, but

(19:37):
it's not entirely clear where that threshold would have been.
It's definitely a sliding scale fact specific question. Now just
to say I.

Speaker 4 (19:49):
Think he misses some things.

Speaker 9 (19:50):
I think there is a problem, for example, on the
chrome divestiture, with his feeling that he can't couldn't order
it because the geographical scope of chrome itself. The chrome
users goes well outside the US. He expressed concern about
the eighty percent of users outside of the US when

(20:13):
I think it's clear, for example, in US f Egypsum,
that you can go outside the geographical scope of the
relevant markets in order to make sure that the remedy
is effective. And I do have concerns about his willingness

(20:35):
to contain the remedy out of fear of harm to
other parties. I have sympathy for that position, because I
do think that there are certain there's certainly the possibility
for harm to other partners. But in terms of the
larger picture of what incentives we create for monopolists engaging

(20:57):
in illegal activity. To to allow a monopolist to create
these networks of dependencies as a way to insulate itself
from having to deal with the consequences of its monopolization,

(21:19):
I think there's a bit of a perverse incentive there.

Speaker 4 (21:22):
So that there I have a lot.

Speaker 9 (21:23):
More to say, but we can come back to that
with some of our other questions.

Speaker 5 (21:29):
So maybe maybe I'll ask Derek if it's a fair question.
There is a lot of well, there is at least
some Supreme Court law on remedies and anti trust cases.
You know, my question of Kathleen focused on the tension,

(21:52):
maybe even inconsistency between the Rambus the standard and the
FTC versus Rambush and you spe Microsoft cases. But of
course this discussion but for causation, is relatively new in
the last twenty five years or so. The Supreme Court

(22:15):
didn't seem to apply very high standard to remedies in
the past, So I wonder, well, it's a question, really,
Am I right about that?

Speaker 6 (22:22):
I mean, what.

Speaker 5 (22:24):
Instructions directions as a Supreme Court given on the court
through medial powers and anti trust cases.

Speaker 7 (22:34):
I have to say I haven't studied that question in
depth ball but I think as a general matter, district
judges have why birth in ordering remedies in not just
anti trust cases but all other sorts of cases as well.
And I think the standard of review on appeal is
like abuse of discretion unless there's some sort of error

(22:57):
of law that's made. And I thought Kathleen did a
great job pointing out that JUDGMENTA is applying d C
Circuit law and in US v. Microsoft in that in
the one or two pages of the one hundred and
twenty page opinion that addresses this reasonably capable of contributing

(23:21):
significantly to the maintenance of monopoly phrase that is being
disputed in the law reviews, and one that JUDGMENTA repeats
that relates specifically to this causation question, and that with
respective remedies. In that very same passage, the DC Circuit

(23:41):
sort of puts seems to put a thumb on the
scale against structural remedies in Section two cases, at least
Section two cases that might resemble US v. Microsoft, And
I think that comes from the d C Circuit. I'm
not sure that that comes from from the Supreme Court.
So this different notion between structural remedies and Section two

(24:03):
cases versus behavioral remedies, it's my reading of usv.

Speaker 2 (24:09):
Microsoft.

Speaker 7 (24:10):
It's quite clearly the law of the d C Circuit.
And as we all know, that Microsoft opinion was not
just an ordinary opinion, it was a unanimous on bank opinion,
and you know it carries that precedential weight. So I
mentioned that only to say that when this case does

(24:31):
get appealed, which I presume it will be, it's not
like a panel can take a different view from what
the on Bank d C Circuit said about about its
rule of law, and so I think from the perspective
of this case, the law of the circuit sort of
does put a thumb on the scale against structural remedies

(24:53):
in Section two cases. Having said that, that passage is
also clear that the plaintiff doesn't have the obligation to
create a butt four world, at least when the targets
of exclusionary conduct are what the d C Circuit calls
and nascent, albeit unproven, potential alternatives to the monopolist. Now,

(25:14):
I think we can have a discussion about whether the
putatively excluded rivals.

Speaker 2 (25:22):
Here were nascent rivals.

Speaker 7 (25:24):
The same way that the Microsoft court understood Netscape to
be a nascent a nascent rival, or at least.

Speaker 2 (25:31):
Netscape plus plus middleware.

Speaker 7 (25:34):
But I do think there is support for the notion
in the d C Circuit that structural remedies are treated
differently from behavioral remedies, at least in Section two cases.
And for me, the legal question and the policy question
does does that make sense?

Speaker 2 (25:53):
Are are separate?

Speaker 4 (25:54):
You know?

Speaker 7 (25:54):
And I'm not quite so sure that there should be
a thumb on the scale against structural remedies, Which is
not to say that structural remedies are preferred in monopolization cases.
I will note that, and this is something that we
will probably discuss later, that this big tech Section two

(26:15):
case brought by the government, I think most would agree,
is smaller in scope than the other handful of Section
two cases that the government has brought relatively recently, and
by that I mean the last handful of years. The
government in this case is challenging exclusive deals. And there

(26:36):
are quite a number of prior cases in which the government,
as a plaintiff and other plaintiffs have used Section two
of the Sherman Act to challenge exclusive deals, and I
will just point out a couple of them. So in
the Eleventh Circuit this was an FTC case, the FTC

(26:56):
case against McLain, where it was a monopoly maintenance case
challenging mcquain's exclusive deals with distributors. The remedy there was
mccuain ceased and desist from exclusive deals with customers. Another
government case, albeit closer in vintage to USD Microsoft than

(27:18):
the current set of cases, is dense Ply that was
Section to use to challenge exclusive deals between dense Ply,
the teeth manufacturer and as distributors and the remedy there
was injunction against exclusives and injunction against other coercive tactics
dense ply used against dealers. And then another case, also

(27:41):
in the third Circuit, but this is a private case,
the ZF Meritor case, where the remedy was injunction preventing
the defendant from linking discounts and other benefits to market
penetration contracts. And so that case is a little bit
more complicated in the sense that they weren't actual exclusive deals.
They were market share discounts that resembled exclusive deals. But

(28:03):
in all three of those Circuit court cases where Section
two was used to go after exclusive deals, the relief
was pretty limited to an injunction against those deals. And
I'm not suggesting that that is the correct approach for
the Court of Appeals the d C Circuit to take
in usv. Google, just that for Section two cases where

(28:28):
the anti competitive conduct is an exclusive deal, the remedy
has tended in recent years to be limited to an
injunction against the exclusive deal. I think it would be
I would be remiss not to acknowledged the reality here,
which is that McCain dens apply ZF maritur These are big,

(28:49):
profitable companies, but they are not household names like Google is.
We don't use the word mcquaan as a verb to
do anything, and so I think there are meaningful differences
between those companies and Google that might relate to what

(29:11):
remedies are desirable here. Now, having said that, we should
also recognize that this is not the only anti trust
case Section two anti trust case being pursued against Google,
and not the only Section two anti trust case being
pursued against Google by the United States Department of Justice.
So I think this is an opening salvo in potential

(29:34):
remedies that might be applied.

Speaker 2 (29:36):
To Google, and not the final work.

Speaker 6 (29:38):
And I will.

Speaker 5 (29:39):
Pause there, all right, thanks, And if anybody could answer
a question they hadn't prepared for, I knew you could
do it, So Ashley, let me.

Speaker 6 (29:53):
I guess we're doing.

Speaker 5 (29:54):
I'd like to get your thoughts on the remedy as well,
maybe some of the week points of the Court's decision,
maybe some of the stronger points. But you know, I
think I think it's an important topic, so I really want,
I do want everyone to weigh in on it. So we'll, uh,
what what do you think? And maybe maybe you can

(30:16):
if you can just give some attention to, you know,
the factual analysis the court applied in limiting its its
remedy and and also whether that you know, calls sent
to question the liability decision.

Speaker 4 (30:33):
But yeah, sure, I mean, I.

Speaker 10 (30:36):
Think a lot of this is really covered, but just
kind of kind of in brief, I mean, any of
the first point out that this is one of the
sort of opinions that no one was going to be
entire the party was be entirely satisfyed with us from
the get go, So it's not exactly shocking some of
the reactions we see here kind of own both sides
because this is a really tough question. A lot of

(30:58):
time has passed since the laws it was was initially
filed in twenty.

Speaker 4 (31:03):
Twenty by the d o J. And I I would
I wouldn't say that the liability.

Speaker 10 (31:07):
And remedies ruling were necessarily at odds with each other.

Speaker 4 (31:11):
I think they were still they still.

Speaker 10 (31:12):
Ruled with He's still you applied within the target area. However,
there are many points throughout if you read it, he's
kind of walking it back a bit.

Speaker 4 (31:21):
It's almost as.

Speaker 10 (31:22):
If he's rethinking some of the issues that were key
to the liability is ruling and what that.

Speaker 4 (31:28):
Means for going forward. I mean it, we'll see.

Speaker 10 (31:31):
I think that the that basically was right to reject
the d o j's remedies and they I don't have
a list of them in front of me, but in
the earlier phase asked for really quite a lot, and
I think that this is a pretty firm rebuff of
the d o j's initial askings.

Speaker 4 (31:51):
Where it goes from here, I think Google can appeal
in the.

Speaker 10 (31:53):
Liability as well and might have some effective and doing
so if they want to considering how the remedies opinion read,
how where they would go there.

Speaker 4 (32:04):
But I'll leave that for a little bit for their discussion.

Speaker 5 (32:09):
Right. Actually, I have a question that I mean like
someone to chime in on before you get a little further.
I sort of accepted the court's characterization of the i'll
call it arrangements with Apple and others as exclusive agreements,

(32:30):
but my reading of the language in the first decision
suggests that in fact they were.

Speaker 6 (32:37):
Not exclusive agreements.

Speaker 5 (32:38):
They were just in some form of revenue sharing, and
the court seems to have allowed for revenue sharing agreements
with Apple and others. So did it has it really
addressed anything with this remedy, and and why why did

(33:02):
it make why did it make that distinction outside of
an unwillingness too to potentially shut down some of the
smaller beneficiaries of those arrangements.

Speaker 10 (33:18):
Writing a bit differently, and I think there's a key
distinction here between you know, exclusive exclusivity and the contract
since in terms of what in terms of their contract
with Apple and others versus the duty to deal analysis
that this really gets the ufortunately there was no arrangement
which they were forced to deal to their or they

(33:39):
excluded purposely their competitor, sorry, events backwards. I think we're
kind of talking apples and oranges here a bit because
but by that, you know, definition and any sort of
contract such as that one would be considered exclusive.

Speaker 4 (33:54):
And I don't think it really was. It was just
revolutionary contract.

Speaker 6 (34:00):
Okay, Okay, I'll accept that. I'll accept that.

Speaker 7 (34:04):
I'll jump in here to be well, I think I
think I think it's a good question. Uh And and
I think, without without getting sort of technical into whether
you can have an agreement between Google and Apple or
Google and some other OEM that sets Google Search as
the default but not as the exclusive default. I suppose

(34:27):
that is within the realm of possibility, but is it
is it practical?

Speaker 2 (34:32):
I just I just don't know.

Speaker 7 (34:34):
I don't I don't work for an equipment manufacturer, so
I just don't know whether it would be conceivably desirable
from from their perspective to have a non exclusive default.
But I do think the question raises attention between the
liability opinion.

Speaker 2 (34:51):
And the and the remedies opinion.

Speaker 7 (34:53):
And there's a lengthy, interesting section in the liability opinion
where Judgmta rejects Google's argument that there was competition for
the exclusive between Google and various search alternatives, for example,
a competition between Google and being for example, to serve

(35:16):
to secure default placement on Apple devices. I'm using that
as a as a hypothetical example. I haven't examined the
record to determine whether there was any actual competition between
Google and Microsoft. But but that's that that's the point
that judgmental was was addressing, and he he said that
Google's argument was was wasn't persuasive.

Speaker 2 (35:38):
And yet in the Remedy's opinion.

Speaker 7 (35:40):
He is permitting Google to pay for default placement with
its h trading partners.

Speaker 2 (35:50):
And for me anyway.

Speaker 7 (35:51):
That raises the question, well, well, how are those payments
going to be established. It's not just us that Google
is going to say, here's why dollars instead of X dollars.
Those payments accrue through some sort of competitive process, and
so I think a decision permitting those payments to continue,

(36:17):
whether good or bad for the world, does I think
create some tension between his earlier holding in the liability
decision that there wasn't sufficient competition for the exclusives.

Speaker 9 (36:31):
I would definitely push back on, perhaps unsurprisingly on that
idea for a couple of reasons. First, I think that
the judge remains very emphatic that in this opinion that
default status can be exclusivity, and that that's he's not

(36:55):
departing from that idea. He's also very clear and that
he thinks there would be would have been a basis
to stop it altogether. I think he actually says at
some point that there was a legal basis for him
to just stop these entirely, but that he chooses not

(37:15):
to do it because of the considerations of the effects
on the partners. So I think that mitigates any idea
that there is a tension if there is a different tension.
I think there's a different tension. Did he have an
obligation to do it anyway, because even if it hurt
other partners because he has to address the illegal conduct

(37:40):
under Supreme Court law.

Speaker 4 (37:41):
That's a different question.

Speaker 9 (37:43):
But I do think he's very clear that he's doing it,
that he could have done it but chose not to
because of the effects on others. And he also makes
it clear that he sees the data sharing aspects as
working hand in hand with the contracts here, and that

(38:06):
if you that without the data sharing that he allows
that he mandates here, that he would not have come
to the conclusion or had the caveats that he did
on the contractual provisions. Whether he's right about that is
another question, but it's clear from his perspective. I think

(38:27):
that he sees the data sharing as highly intertwined and
one of the reasons why he feels like he can
has more flexibility on the contract side.

Speaker 5 (38:42):
So first, you know, Kathleen, I thought I didn't think
your point initially was intension with what Derek said, or
that you were pushing back on what Derek said. I
think I think we're all a little puzzled by what
I think we think of as maybe a disconnect between
the remedy and the liability and it it could mean

(39:05):
the liability decision was wrong, could be the remedy decision
was wrong right, But I think I think, I think,
I think we're at least for this purpose neutral on it.
But I think you raise a good point, which which
I glossed over. But I think all then addressed in
his discussion of remedies. The data sharing requirements, although much

(39:26):
more limited than what DOJ wanted, are in fact, I
think somewhat novel, right in an anti trust case. I
think they're limited in some way, and they seem to
be limited in favor of people who may have the
resources to obtain data themselves in a sense. But but

(39:50):
maybe I'm wrong on that. But I also think they
go further than anything we've seen in Europe with the
d m A and steps toward you know, what you
might call it or operability, although that this isn't the
same thing. So maybe all that you had you had
expressed interest in talking about some of the international ramifications
of this UH decision.

Speaker 6 (40:12):
Maybe that's my words, not yours.

Speaker 5 (40:14):
But what what do you think of the data sharing
and is it is it sort of a European style
regulatory Well, look, a remedy is going to be regulatory
unless it's structural. But but it goes I think it
goes beyond with the d m A or requires of

(40:36):
of gatekeepers. Any any any thoughts on that, any reaction
to that? All, then I think you're on mute. All
then I think you're still on mute.

Speaker 8 (40:58):
Apologies Again, I think it's a it's a very good question.
I think that the Johnson's very careful about data sharing
says well, I think in a fact, he seems to
be saying that, well you again that there are some
might I think the initial blog first lashing impression I
had that also, really, how is this limitational exclusives?

Speaker 6 (41:20):
How big a deal is it?

Speaker 4 (41:22):
Really?

Speaker 8 (41:22):
If you're going to get these payments are going to continue.
In fact, there's a whole efficiency argument that I either
anticipate and appeal about payments being competition for marginal consumers
like sloting a Llowanses and so forth. But I also
sort of got the feeling and saying, yeah, well, maybe
you do need to make sure that there are some

(41:43):
there's some protection for potential competitors and getting these data.
At the same time he seems to be saying that
there'll be this oversight committee and my concerns about about
using commercial terms and so forth pervaded. So it's I
think it's it's uncertain interoperability can I think I don't

(42:06):
necessarily read about interoperability.

Speaker 6 (42:08):
It can be very broad, and there are arguments right.

Speaker 8 (42:11):
Now going on under the d M A how broad
is interoperability That the argument is that the enforcers of
the DMA, which include the European Commission Competition Directorate, that
they are reading interoperability and can read it very broadly
to get to the opportunity to say that, well, these

(42:32):
big gatekeepers are not really interoperating in the right way
and we can go to impose huge fines. So I
think the spectr of huge fines is hanging out there.
But I and I think interoperability can be very broad,
and this idea that well, it's interoperable but to certain

(42:55):
parties and certain parties we're going to walk, We'll go
to not overdo limitations on Google and in content relations
to turn over that that I actually think it is narrower.
But I say it's not an easy question because there's
still that's one of the criticism of DMATS tell a

(43:17):
lot of uncertainty about how it's in criticism by the
platforms that d m A is ambiguous and that creates
a huge amount of power in the hands of the enforces.
And I don't think that's an issue quite here, so I.

Speaker 6 (43:35):
Guess that's I do think that.

Speaker 8 (43:42):
A separate international issue of the failure to require investiture
of chrome, and I sort of agree with Kathleen yet,
I wouldn't be concerned about the international ramifications as a
matter of law, but the investiture of chrome could have
enormous impact, I say, on the Europeans. US is trying

(44:02):
to negotiate with Europeans on supposedly excessive fines and excessive
competition enforcement, excess ambiguities about the DMA, and it would
have allowed the Europeans to say, well, look, your enforces
in the US and your courts are allowing breakups of companies.

Speaker 6 (44:22):
We're not even going that far, so I think, and.

Speaker 8 (44:25):
Obviously to judge in address it, it's not his wrong
directly to do that, but it would have put the
US in an awkward physician if it were to really
get if d OJ had really gotten the divestitures it
was asking for.

Speaker 5 (44:40):
So let me just round out this question on remedy
a little bit. Is there anything especially new or divorced
from the case law in the remedy decision here that
makes the remedy decision of vulnerable on appeal by by

(45:02):
either the Justice Department or or Google?

Speaker 6 (45:06):
Right?

Speaker 5 (45:06):
I mean, it does go further than Google wish it
to go, and it's substantially less, I believe than d
O J wanted.

Speaker 6 (45:17):
But I'd just like to make sure we cover.

Speaker 5 (45:19):
This it is there are there grounds for the for
an appellet court to send this back down for reconsideration.

Speaker 6 (45:32):
I can't.

Speaker 5 (45:33):
I can't really see that an appellate court trying to
craft a new remedy given the factual nature of it.
But but but are there grounds for it to send
it back and say, you know you got it, you
got it wrong? Because I think that's what happened in
the Microsoft case. So do we do we see a

(45:55):
repeat of that here? Or could we see a repeat
of that here? Derek, I'll ask you because you're always
able to answer questions I haven't raised in prep.

Speaker 7 (46:08):
So it's hard to answer that question with respect to
the remedy's opinion in a vacuum. So I think the
rule of law that is unassailable is that the remedy
must be connected in some way to the conduct that
the court holds is illegal. And I think that that

(46:32):
concept is more or less unassailable. The question is how
connected and how far beyond the illegal conduct can the
gork go. And I think we've discussed the district court
at least has some wide berth there, but whether the
Court of Appeals will remand the remedies question is really
a function of what the Court of Appeals thinks about

(46:54):
the liability opinion. And in Microsoft, what what happened is
the Court of Appeals reverse the district court on a
number of liability holdings, but a firm of the district
court on a number of liability holdings, and then remanded

(47:14):
to the district court to to actually conduct a thorough
remedies analysis, which which the district court in USB Microsoft
didn't didn't really do somewhat famously. And and so that
is certainly a possible outcome here, but it's hard at
least for me to target directly the remedies opinion. And

(47:38):
I'll just note as both Alden and Kathleen have have noted,
uh the titanic amount of work that JUDGMENTA has done
both on the the remedies opinion and on the liability opinion.
I think we're upwards of five hundred pages of an opinion,
which which you know he really ought to be commended for.

Speaker 2 (47:58):
And when you compare.

Speaker 7 (48:00):
Uh, Judge Meta how how he handled this case, specifically
with how Judge Jackson handled the remedy's opinion or the
remedies issues, uh a long time ago, there's there's there's
quite a stark difference. So uh, my my own view is,
if the Court of Appeals, the d C Circuit buys
his opinion on liability, I see it as fairly unlikely

(48:25):
that the court will will reverse the remedies opinion because
this this opinion doesn't feature the problem that the d
C Circuit had with with Microsoft, which was the divestiture
creating the Windows CO and the app Co. Because the

(48:45):
d C Circuit announced.

Speaker 2 (48:46):
That that rule or that that.

Speaker 7 (48:48):
Approach in Section two cases where there's uh, there's an
extra showing of some kind required for structural remedy, there's
no structural remedy here.

Speaker 2 (48:58):
So so I sort of you, the liability.

Speaker 7 (49:01):
Opinion and the remedies opinion rising and falling together.

Speaker 2 (49:07):
But but that's just my view.

Speaker 6 (49:11):
I basically agree with it, Derek.

Speaker 8 (49:15):
I mean, I think I think what's much more uh
in danger or vulnerable than a remedies opinion his liability opinion? UH,
if you accept liability opinion and some very strong remedies decisions.
Some think he should have gone beyond that. But the
real problem, and I think we've already alluded it to it,
is that did he open the door and saying, well, uh,

(49:39):
there are major efficiencies that his benefits, that that the
obtainers of these funds, the companies and the OEMs and
other companies and kings uh sort of uh shared payments
uh for a sort of exclusivity their mair major benefits
here to then, and there also could be benefits. And

(50:01):
Judge also seems to be saying that, well, without the payments,
you know, it's still maybe likely that they would have
just put in Google. So where's a horm I mean,
if if the payments are what prevented others from really
having a good crack at obtaining a prime placement, that's
one thing. But if he seems to be saying well,
Google was superior and they were in place anyway, then

(50:23):
then was were these payments really exclusionary in the first place,
if in the form or yeah. So I think it
does open up the window for an appel of argument.
I don't know whether it would succeed or not, but
I think it does really raise that possibility.

Speaker 9 (50:43):
I actually do think that there is grounds for DJ
to appeal the remedies portion of this, And I would
characterize that as.

Speaker 4 (50:57):
Despite the lengths.

Speaker 9 (50:58):
And the detail and the care with which this opinion
was written, it does not grapple with effectiveness. I did
a word search just to see I think some variant
of innovation comes up over forty times in the opinion.
Her huving Camp is cited thirty two times in the opinion.

(51:21):
Effectiveness or terms related to it show up four times
in the opinion. And I think that's a missing component
of his analysis.

Speaker 4 (51:37):
And I'm not sure whether he's overly.

Speaker 9 (51:39):
Optimistic about the effectiveness of his remedy or if he's
extremely pessimistic and maybe has given up on any idea
of really changing the landscape of search, But we do
I think, as one of the audience members has noted
in a question Dylan, there's an obligation to terminate the monopoly.

(52:03):
There's an obligation that the remedy is effective and that
you make it broad enough. And that's an argument for
the divestiture as opposed to a behavioral remedy, if you
need it for it to be effective. And he doesn't
really I don't see in there that he's grappling with
that question and whether he's prioritized that in the way
that I think the case law requires him to.

Speaker 5 (52:26):
Now, how do you think an appellet court will would
handle that question?

Speaker 6 (52:33):
I mean, and by that, I mean.

Speaker 5 (52:37):
Where they construct a revised remedy on their own, would
they send it back to the district court for additional
fact finding or no more fact finding but reconsideration.

Speaker 9 (52:51):
I mean, I would assume that the default would be
to send it back given that highly actual nature of it.
To prioritize effectiveness, I think there's plenty. I think the
Supreme Court case law is clear that effectiveness has to
be the first concern, and I don't see that in
his opinion.

Speaker 6 (53:14):
Relate.

Speaker 5 (53:15):
I think related to that question or response, you know,
is is, of course the forward looking nature of the
effect of AI on the search market and also the
effect of UH current firms participation in the in the

(53:36):
AI market going forward, given given the importance I think
that's true, given the importance that the court put on
the development of AI as an alternative UH two search engines.

(53:58):
Do you think that Google's argument in the in the
original trial that competition is just to click away is
borne out by these by these developments that that the
court took notice of, so mean a.

Speaker 4 (54:21):
Little bit on the last question like truthy.

Speaker 10 (54:24):
And kind of related back to that was, I think
they kind of go hand in hand, and that the
judge realized that like a lot of the findings originally
were irreconcilable with his so SO for example, so the
if the unloaf for full default contracts only impacted the
small number of searches is like ten percent or so

(54:45):
of searches, but also then on the same hands, the
argument was that it impacted the overall market. And getting
back to the Ian kind of I think it's worth
having a thirty thousand foot discussion of VI. What is
the point of you know, the remedy here and what
market failure market harm is it going to address? And

(55:08):
really it has to fix the thing that it's supposed to,
you know, that is the aligne of violation. And if
you look at some of the structural remedies, it just
doesn't fit here.

Speaker 4 (55:17):
You know, there's some cases in which it did.

Speaker 10 (55:19):
What I mean that this is was GG did bring
at the end of the day, a relatively narrow case,
at least compared to some of the other cases. So
it wasn't really as if that was really on the.

Speaker 4 (55:30):
Table to begin with.

Speaker 10 (55:31):
But if you look at the facts and the amount
of searchs is impacted, in the amount of searchs and
being and in Google in which users selectively decided to
use Google, I don't think that this necessarily adds up really,
and I think that's always going to be a difficulty here,
and I don't really know what the answer that is.

Speaker 4 (55:51):
But back to the appeal question.

Speaker 10 (55:54):
So the United States is likely to appeal to broaden
the remedy, but also Google can appeal on both the
liability and the remedy, and one appeal I think an
ultimate outcome here though, would be more fine tuning the
liability versus reversing the lower decision. But yes, it'd have
to be sent to the district court or sorry court appeals.

Speaker 5 (56:16):
So I wonder if, as a practical matter, both parties
might see it in their interests to settle this matter.
I mean, if we are fighting about the terms of
a of a non structural order, it does seem from

(56:40):
DOJ's perspective, they might like to take the win and
move forward. Google may also believe the remedy aligns much
more closely with what they intended. So is this a
given where the court came out on liability and remedy,

(57:01):
does this look like a case that might actually just settle?
Notwithstanding everybody's well each each party's suggestion that they were
likely to appeal, but don't.

Speaker 10 (57:14):
Forget the Ninth Circuit case, the place or case, I
feel like maybe to make that argument for the DOJ.
But I do you feel like, at least strategically, you know,
I don't know. I don't work for Google. I don't
know what their strategy is. There might be some desires
to kind of spread the continion of some of the
findings and the liability phase its shoes. Of these other cases,

(57:35):
such as the Ninth Circuits case, we receive appeal and
filed for relief as of like last week, well, you know, I.

Speaker 5 (57:44):
Just want to pick up on Derek's point, which is
that the remedy here looks a lot like the remedy
the courts have imposed or DOJ and the FTC have
requested in other monopolization cases based around you know, exclusivity
and exclusive dealing exclusive access. It always seemed like a

(58:07):
case that should settle to me once liability was Once
the liability opinion was sort of sort of issued it,
people may have thought this was going to lead to
the breakup of Google, But I don't see how anybody
could have thought that after reading the liability opinion, and

(58:29):
you know, at a practical level, it just seems like
a case that that that could be settled. Maybe nobody
wants to give advice on that, but I'll take it up.

Speaker 7 (58:40):
I think the I think there is a definite zone
of settlement here, I think, and one would one that
you know, would represent both the interests of the Department
and potentially of Google. Anytime you are asking a court
to weighe into relatively technical areas and create specific obligations

(59:03):
and specific prohibitions like this order does, there's a big
chance that the court gets some important things wrong and
that the parties couldn't agree that the court gets something's wrong,
and so that creates a I think an interest on
behalf of both Google and the Department to negotiate something

(59:27):
that resembles what the Court has ordered, but to do
it in a way that's potentially easier to implement. And
also the Department can get some negotiated rights like a
monitor or something else that it does in other anti
trust cases. So I think if if the Court of

(59:48):
Appeals addresses, you know, the liability opinion and does something
similar to what JUDGMENTA did and says remand for consideration
or changes liability in some way after that Court of
Appeals opinion, I think there would be a strong desire

(01:00:09):
to settle the case. Whether there would be a desire
to settle before the Court of Appeals does that, I
think depends a little bit on what the parties think
about their prospects for success on appeal, which I don't
think anybody here knows, and then appetite for going to
the Supreme Court, which is of course inherently uncertain process.

(01:00:31):
And then just to just to say a little bit
more about the other exclusive dealing cases, the remedy here
includes the remedy in those other Section two exclusive dealing cases,
but does go quite quite a bit beyond those cases,
the data sharing and other behavioral provisions that we've already discussed.

Speaker 5 (01:00:52):
Oh, Derek, you don't have to answer this, but you're
welcome to. But anyone can answer. You know, I think
of both the micros Soft and the Intel settlement, well
Microsoft final judgment and the Intel settlement with the FTC
of A Section two case as highly regulatory, and I wonder,

(01:01:19):
you know, given the DJ's suggestion that they did not
want to be and do not want to be a regulator,
how that may impact any sort of settlement here, right.
I mean, again, if this, if it's not structural relief,
if it's not a sort of a divestiture, you know,
clean structural relief, any remedy here is going to be

(01:01:44):
fairly long and fairly detailed and require some at least
potentially require future intervention by the court. And all of
that's sort of a question. But the other question is,
you know, there's at least of you that Microsoft got
out of the innovation business because of its efforts to

(01:02:07):
comply with its final judgment. And while I don't blame
Intel's current situation on the FTC's you know, final order
in their challenge then tells case I mean, should we
be concerned that a remedy here is going even this

(01:02:35):
remedy and the implementation of it is going to affect
Google's dynamism innovation going going forward. And I think the
judge kind of focused on these considerations but potentially has

(01:02:58):
structured a relief that actually raises these questions in a
much different way than a divest that you're might might have.
There's a lot of questions in there. Anyone can react well.

Speaker 9 (01:03:15):
I think on the argument that the Microsoft case dampened
Microsoft's competitive drive, maybe is that argument that I've heard,
there's equally an argument that it paved the way for
Google to become Google because it opened up the landscape

(01:03:39):
for other innovators. I guess on this point, I would say,
I think it's important that this may be a feature
not a bug, in the sense that I think part
of Section two enforcement, part of the underlying idea behind

(01:03:59):
it is we want monopolists to be conscious of being
monopolists and maybe think about competitors in a different way
than we would or potential competitors in a different way.

Speaker 4 (01:04:12):
Than we would.

Speaker 9 (01:04:13):
They have obligations under Section two that they wouldn't if
they weren't monopolists.

Speaker 4 (01:04:18):
So we I think.

Speaker 9 (01:04:20):
The underlying theory of Section two enforcement is that we
want monopolists to act differently than non monopolists. So for
me that if that may be one of that maybe
be a feature of this, if Google is more conscious

(01:04:40):
of how it structures its relationships with partners.

Speaker 4 (01:04:43):
If it's more.

Speaker 9 (01:04:47):
Careful about how it treats ncent competitors because it has
obligations under Section two. And if this had not happened,
if the case and the liability decision and all of
that had not happened, we wouldn't have that necessary effect

(01:05:09):
on you know what's and I think it's I would
just say, sometimes we focus on the innovation of the
monopolist and not on innovation generally. And I think that
may be a little bit at work here, like with
the Microsoft focusing on Microsoft's innovation instead of looking at
innovation as a whole in the area, which would encompass

(01:05:30):
whatever the emergence of Google. So a bit of random
thoughts altogether, but that this may not be the bad
thing that we ordinarily think of it as.

Speaker 7 (01:05:42):
Yeah, I just want to jump in because Kathleen made
the exact point that I was going to make, which
is that the concern, at least the concern that the
anti trust law should have is marketplace innovation. The way
that the anti trust laws are concerned with the marketplace
output and marketplace price, not the price or output of
an individual competitor, and not the innovation of an individual competitor.

(01:06:04):
And so so I think focusing only on Google's innovation
incentives is a mistake, and that a remedy conceivably could
dampen Google's incentives to innovate, but increase other market participants
incentives to innovate, and your overall effect on incentives to
innovate would be would be positive. And therefore, you know,

(01:06:27):
welfare promoting. And so I think I think we shouldn't,
just like Kathleen said, myopically focus on on Google's incentives
to innovate.

Speaker 4 (01:06:37):
I mostly agree with derek comment.

Speaker 10 (01:06:39):
Sarah would add though that in mentioning you know the
the AI issue and a lot of the other related issues,
I don't. I didn't read it as he was necessarily
saying that they will or will not become a more
or less innovative company. More so that the market has shifted,
and the same thing happened in the Microsoft case too,
and it's hard to you know, pinpoint exactly why that

(01:07:01):
Microsoft did not manage to enter our market, such as
you know, the mobile market, whether or not that is
because of the case or because they just did not
innovate in a way that would promote injury to that market.
But if your remedy is supposed to you know, even
things out amongst players in one specific market, and now
people are not using searching or they're using you know,

(01:07:22):
something else and everything has shifted, then where does that
leave this opinion? I think what he's really getting at
there is that entire dynamic is different today than it
was in twenty twenty and a lot has changed there.

Speaker 5 (01:07:35):
So I mean all that, unless you want to jump in,
I want to switch our discussion a little bit of
a broader discussion of whether maybe it's two or three questions,
but what what do you think is likely the impact
if any, of this decision. And we all recognize it's

(01:07:56):
a district court decision on the other both tech cases
the FTC and d OJ have brought, and also the
UH and and also the other monopolization cases that do
O J and the FTC have brought, or the FTCUS

(01:08:19):
case sort of single firm or unfair competition cases.

Speaker 8 (01:08:25):
Uh.

Speaker 6 (01:08:25):
That's the first question. And then you know, there was.

Speaker 5 (01:08:31):
A lot of attention paid to the neo Brandisian approach
to anti trust in the last administration and even slightly
before that. Uh, the first decision we get out of
a district court, both at the liability stage and at
the remedy stage, looks quite narrower than the neo Brandisian

(01:08:56):
sort of approach. I mean, I this this is not
a criticism of him WU, but you know, just a
week er ten days ago, he had a piece in
the New York Times which discussed the potential breakup of
Google coming out of this remedy. Are we this is
the second question, are we sort of beyond the neo

(01:09:17):
Brandisian sort of fever dream because now we are getting
court decisions, courts that have to focus on the.

Speaker 6 (01:09:26):
Facts and the law. You know, are we back to.

Speaker 5 (01:09:31):
What used to be sort of a bipartisan, you know,
consumer welfare centric approach.

Speaker 6 (01:09:38):
Or you know, are there other other.

Speaker 5 (01:09:44):
Other avenues for a revival or continuance of a of
a neo Brandisian or or brandisian. You know, big as
bad approach to to and I trust. So those are
two questions, but both directed it forward looking some type
to the specific monopolization cases just innothers slightly broader. So Alden,

(01:10:10):
why don't want to give you a give you a chance?

Speaker 6 (01:10:14):
Start? Okay? Well, thanks, thanks, thanks again, we'll all. I think.

Speaker 8 (01:10:18):
As to the other Google case, the ad Tech case,
the Justice Department has recommended as remedies, among others, things
that Google divest its ad exchange and publisher ad server
and grambile time dad access and open source its auction
logic to rivals. Now again, the second part is sort

(01:10:42):
of behavioral. First part is structural. But I think there's
a danger, you know, comparing Chrome to the various ad exchanges,
different different in kind, different factual setting underlying that an
obilization case, and the judge, what court judge is going

(01:11:04):
to look at the facts and the record in that case, and.

Speaker 6 (01:11:07):
Judge is going to do what the judge wants to do.

Speaker 8 (01:11:09):
So I doubt that in and of itself is going
to have much effect on how the judge, what the
judge does with the structural recommendations by d o J.
You know, I think I think the bigger picture, you know,
you know, and it also, of course we've got cases
against Facebook and Amazon and indeed Apple.

Speaker 6 (01:11:31):
To keep chugging along and until the.

Speaker 8 (01:11:35):
Policy decisions to change that is made by the enforcement agencies.
For now, they're going to continue to keep chugging along.
So as to the neil brand Isisian thing, I think, look,
reality is a supreme court. Over the last twenty twenty
five years, it's been much more skeptical about a theory

(01:11:59):
about optimization uh theories. It's really I think I and
a number of people have written a sort of you know,
uh you know after Drinko, you know, the limitations on
duty to deal essential facilities.

Speaker 6 (01:12:15):
It's got.

Speaker 8 (01:12:18):
Uh limitations implicit on tying and lots of other things.
But it also, I think, uh an argument Frank Easterbrook
and in some way Brier Data in a different somewhat
different contacts said that, you know, anti trust is an
administrative uh programming. We need sort of a cost benefit
framework and that's implicit in the number of the of

(01:12:41):
the of the Roberts Court uh Ani trust decisions. And
now you have that framework has been used explicitly uh
uh by at least one Supreme Court judge who was
Gorsus when he was an ANI Trust professor. So I

(01:13:02):
think the reality is the neo brand Isaians. We're not
going to have a lot of luck pushing broad divestiture
dreams until you got more people, a very different sort
of Supreme Court. So I think people are coming down
to earth and saying, look, and judges are going to
be very concerned about President. You can't just waiving us
one saying well, we wanted investitures. It can again to

(01:13:24):
what Judge Jackson did. His mistake, made some other mistakes
in the back end the Microsoft case twenty five years ago,
and a careful district court judge is not going to
make that mistake. So the only way you get a
real major structural change at this point, I think, given
us and oppenisation law is through legislation. And we're attempts

(01:13:48):
to push legislation as we know several years ago, which
didn't get through Congress.

Speaker 6 (01:13:53):
So that's why you.

Speaker 10 (01:13:56):
I think auden't really know that when you said I
judged you judge going to do especially district court judges,
and I mean here, I mean I like to get
back to, you know, what everyone was saying about this
being a very serious opinion on buying Judge made I
who gave it a lot of serious conservation. I think
that's absolutely correct. But keep in mind that there are
a lot of district court judges, most of them have

(01:14:16):
not heard many, well any ancient trust cases, many civil
cases at all. So really some things are kind of
the luck of the draw, and most cases don't make it,
you know, nearly as far as this case did.

Speaker 4 (01:14:28):
I think that some of.

Speaker 10 (01:14:29):
The deobandizing sort of like revival in terms of the quirks,
might happen more so on in the form of a
decision on an induction rather than a dimestra or decision.
I think that's granting an injunction, such as in the
Ninth Circuit. In that case, that's where maybe the target

(01:14:49):
for those who would like to stop so these deals,
because you know that in effect, would put a great
pause on them before we would even you know, be
having this discussion down the road whether.

Speaker 4 (01:14:58):
Or not to divest.

Speaker 7 (01:15:01):
I'll jump in and just say quickly, I'm not going
to predict the success or demise of the neo Brandisian
project just because my predictions about that.

Speaker 2 (01:15:11):
Aren't worth very much. I do want to.

Speaker 7 (01:15:16):
Make a pitch though, for what I would call the
small Section two case and not and by small, I
just mean Section two cases without a breakup order have
value and they are useful. And we can see that
just by tracing the conduct claim to be unlawful through

(01:15:38):
the Microsoft and Google cases. Before the ninety eight Microsoft case,
there was the ninety five Microsoft consent decree that prohibited
per process or licenses were Microsoft imposed on OEM's that
you had to pay a license for Microsoft Window if

(01:16:00):
you use Microsoft Windows on every machine that you sold,
regardless of whether that machine had Windows on it, which
which is, you know, quite quite an obvious method to
raise raffles costs. And then the ninety eight Microsoft complaint
attacked restrictions in contracts that Microsoft had with OEMs and

(01:16:23):
iaps and other participants in the stack. And most of
those restrictions were imposed just by fiat by Microsoft, there
was no payment accompanying those restrictions. And Google, here you
have these exclusive default placements that are accompanied by massive

(01:16:45):
payments in Apple's case and substantially you know, similarly sized
payments in Mozilla's case, and others, and just thinking through
that history, the conduct has gotten less agree from my perspective,
and so I raised that history only to show that

(01:17:07):
the ninety five percent decree settlement mattered, the ninety eight case,
and the one DC circuit opinion mattered. And if this
case gets to a point where it's where it's binding
precedent on somebody, the liability opinion will matter, and future
companies are going to try to adjust their behavior based

(01:17:29):
on the liability holdings.

Speaker 6 (01:17:32):
And so.

Speaker 2 (01:17:34):
A Section two case, in my view, can be a
big success, even if the remedy is not a structural
remedy of some kind.

Speaker 5 (01:17:45):
Look, I'd say the same thing for mcquaan as sort
of an intermediate case between Microsoft and this one. You know,
where there's a where there's an opinion, and even some
of the FTC settlements in like cardinal health and some others,
you know, if people pay attention to those.

Speaker 6 (01:18:03):
So I agree with you and the you know the best.

Speaker 5 (01:18:06):
I mean to me, what was the most important Section
one the case, you know, the PolyGram case, which was
a restraint on discounting some old albums or CDs you
know for an eight week period. I mean, who, who?
Who actually cared except Timyrras. But but you know it,

(01:18:27):
it had a real effect on Section one law, building
on building on uh you know n C double A,
and maybe even correcting you know, some of the others
and anyway, so yeah, agree, it's important point to make.

Speaker 6 (01:18:45):
So I don't know, Kat Kathleen, sure.

Speaker 4 (01:18:48):
Well, just very quickly on the neo Brandisian question.

Speaker 5 (01:18:52):
It wasn't and it wasn't meant as a as a
slam on them. It was just you know, it was
just meant observationally.

Speaker 9 (01:19:00):
I think we cannot discount that the change in judicial
discourse about tech platforms, and I think in tone and
willingness to do some hard inquiry into what the tech
companies are doing. And I think that will be a
lasting legacy. I think there was a time ten years

(01:19:23):
ago when it would have been very we wouldn't have
heard anyone trying to challenge what or we wouldn't have
heard we would have heard judges very hesitant to question
the business practices of a Google or an Amazon or.

Speaker 8 (01:19:42):
A Meta.

Speaker 9 (01:19:43):
And I think there's more, not just in the cases
brought by DOJ, but in the private cases as well,
more of a willingness to look into and really ask
whether there isn't despite the innovations that clearly have happened,
that there haven't been exclusionary practices and anti competitive things

(01:20:08):
happening along the way. And I think that door is
open and it will stay open.

Speaker 10 (01:20:17):
I mostly I agree with Kathleen, I maybe for slightly
different reasons, and that eventually Quirks had to confront the seas.
I mean, the Supreme Corps is very much allergent to
any of these technology really in cases for a very
long time. I mean even recently. I think Justice Kagan's
her one line, you know, we're not the nine greatest
experts on the Internet.

Speaker 4 (01:20:36):
So I think there was kind of.

Speaker 10 (01:20:38):
That tendency for a long time for logical reasons. But
also there was less tension between that some of the
lower court decisions that are less cases or more and
more cases just because you know, the Internet has involved
there are more cases. So I think that's just kind
of a natural bypart of that. So that's not going away.

Speaker 5 (01:20:58):
I think I think nobody up on the earlier part
of my question.

Speaker 6 (01:21:02):
I might be wrong, but well maybe people did.

Speaker 5 (01:21:07):
But but do we see you know, if you are
representing Meta or Apple or Amazon or Visa.

Speaker 6 (01:21:17):
Or others.

Speaker 5 (01:21:20):
Or even Google in the tech case, do you take
anything from this either remedy decision or the remedy and
liability decision that gives you more comfort? And if you're DOJ,
do you or the FTC do you think you want

(01:21:40):
to move away from litigation and maybe towards settlement? I mean,
is this case going to have an impact? Again, recognizing
as a district court case, is it going to influence
other judges? Can we can we read anything into it?
Or or not or not?

Speaker 6 (01:22:00):
Well?

Speaker 4 (01:22:00):
I don't think but helpless should take comfort in it.

Speaker 9 (01:22:05):
Stating the audious, but for a good reason, which is
that it is very fact specific. I think, as I
said at the very beginning, I think that on the
legal standards, Judge Meta largely agreed with d J. I
think on how what the basis for looking at for

(01:22:28):
doing the factual anchorage should be. So I think anytime
you're in the massive factual uh, you know, it's not
offering the bright line that Google wanted on but for
causation for example, that could have given comfort to a

(01:22:51):
lot of tech companies were you know, reconstructing a BUTFO
world would be very difficult, so they could take some
comfort that they wouldn't. The ability to do that would
mean there would be no real serious remedies. I don't
think they can. Anyone can take that from this opinion
because I think it is very fact specific, so in
that I think it accomplishes.

Speaker 4 (01:23:13):
It accomplishes something just in that fact.

Speaker 7 (01:23:16):
Yeah, I agree almost completely with what Kathleen said. I
think the fact specific nature of the conduct the government challenges,
and the connection between the conduct held to be a
lawful and the remedy, those things are not likely to
be common across the cases challenging the tech platforms for monopolization,

(01:23:41):
just as just as one example, consider the case against Facebook,
and I'm going to use Facebook and not Meta just
because the judge's name might confuse us. But the case
against Facebook, the illegal conduct was acquisitions of Instagram and
What's App. And if I was representing Facebook and I

(01:24:04):
read these two Google opinions, I wouldn't take a huge
amount of comfort in the remedy's opinion in Google that
says that concludes that a divestiture remedy is not appropriate
for that case. And the reason I wouldn't take comfort
is because the conduct challenge to be lawfel is completely

(01:24:26):
different in both of those two cases. And it's just
easier to articulate a connection between a divestiture remedy when
the illegal conduct is an acquisition or a series of acquisitions.
And of course there's a Supreme Court case almost directly
on point on the remedy question, the old GM DuPont
case that unwound a merger that happened forty years before

(01:24:49):
the Supreme Court considered the case. This is not to
say that I am predicting that Judge Bozberg is.

Speaker 2 (01:24:56):
Going to find in favor of the FTC in that case.

Speaker 7 (01:25:00):
That I don't think this remedy's opinion just reads very
much on.

Speaker 2 (01:25:08):
What Judge Bosburg is going to have to do in
that case.

Speaker 10 (01:25:14):
I agree with all that, and I also think that
in the Meda case, I mean getting back to you know,
this case and there are very different issues, as you explained,
and very different cases, and that it was the merger acquisition.
But when you get into causation and how that's kind
of a little bit money in terms of the analysis here,
I don't think it's really that reassuring to Facebook either,

(01:25:38):
not that Judge Bozberg.

Speaker 4 (01:25:39):
Would necessarily adopt that.

Speaker 10 (01:25:41):
I think, as Alden said earlier, judges will do what judges.

Speaker 5 (01:25:44):
Do, so so thank you. We have we have a
few more minutes at least to keep us at around
ninety minutes. So let me ask maybe two things. What
if you have anything you want to say that you
haven't said yet, please do. But I want to come
back to something Kathleen raised, which was legislation, right. I

(01:26:09):
think I was struck. I think I have this right.
I was struck that Senator Klobshow basically said, you know,
maybe we need my ALCOA bill if the District Court
isn't gonna, you know, do what we thought it should
have done, including with respect to its findings or conclusion

(01:26:35):
dicta on self preferencing.

Speaker 6 (01:26:38):
I mean, is.

Speaker 5 (01:26:42):
Given what I think we all have said is at
least an attempt to be thorough detailed analysis by the court,
is it really the right response to say, well, it
didn't come out like we wanted. And maybe that's an overstatement,
but we didn't like the way it came out what
we wanted. We need legislation. I mean, is you know,

(01:27:03):
is metal off the reservation here? I mean, this guy
seems like just about the right judge you want for
just about any case, He's going to think about it.
He's going to be thoughtful, uh, and you know he's
going to provide a long opinion which you know can
be criticized, but at least lays out his reasoning.

Speaker 6 (01:27:22):
Right.

Speaker 5 (01:27:22):
And if the response to it is well, something's still
wrong in antitrust and we need a legislation, what is
the point of litigating these cases?

Speaker 6 (01:27:35):
You know?

Speaker 5 (01:27:36):
So anyway respond to that or not finish finish up
with concluding remarks or just you know, thank our guests
and attendees and whatever you want to do.

Speaker 10 (01:27:49):
All I would see in in response to the call
legislation is good luck with that.

Speaker 4 (01:27:56):
Well, I'm not sure that I might locate the problem
less in.

Speaker 9 (01:28:05):
Not necessarily jump to the legislation problem, that this needs
to be corrected by legislation, but rather to look at
what judgment judgment is definition of humility in this case
that he really did not want to he really hesitated

(01:28:26):
to get in to the mess and called the humility,
which I think you I think it's an authentic statement,
but humility can really be a default to protecting the
status quo rather than you know, a morally beneficial thing,

(01:28:54):
and I think it may require taking a little closer
look at what judicial humility really what that really means,
because I says, I think a lot of people have
already pointed out he does a lot of he speculates
about the effective you know, there's a lot of speculation
about how this is actually going to be effective in

(01:29:16):
the real world and what Jena a generative AI will do.
There's a lot of like not necessarily humble things happening
in this opinion. So I think it's a very specific
view of what humility means that if we didn't accept

(01:29:36):
that just as a given, we might have more room
for the cases to be effective. And the other thing
I would say is, really this should have been challenged
much sooner than it was, because clearly a lot of
the problems that we have right now are because, as
the judge pointed out many times in the opinion, this

(01:29:57):
has been going on for a decade, more than a decade.

Speaker 7 (01:30:02):
So I'll conclude, I'm going I'm going to punt on
your legislation question, Belall, just because I'll take legislation seriously.
When when Congress actually passes bills via a process other
than reconciliation. So what I'm hopeful for here, and this
doesn't have to happen in this Google case, I'm hopeful
that a case gets to the Supreme Court where the

(01:30:24):
Supreme Court can articulate general standards of what makes conduct
anti competitive.

Speaker 2 (01:30:29):
Under Section two of the Sherman Act.

Speaker 7 (01:30:31):
What we have is a good statement or a good
series of statements in Section one cases and also in
Section seven cases merger cases. But what we have in
Section two cases is a hodgepodge of rules that apply
to different kinds of conduct exclusive dealing, tying, slash bundling,

(01:30:52):
and refusals to deal. And the fight is does this
allegation by this plaintiff fall within the proper bucket? And
what I think the Supreme Court needs to do is
articulate a general statement.

Speaker 2 (01:31:04):
This is what we look.

Speaker 7 (01:31:05):
For in evaluating whether conduct is anti competitive or not
under Section two of the Sherman Act. It's been a
problem for more than a century, and it's a problem
for paintiffs because it forces plaintiffs to fit their allegations
into existing buckets that were developed in old economy cases
eighty years ago that don't cleanly apply to the modern economy.

(01:31:29):
That we have, and I think it is well past
time for the Supreme Court to do that, and I
hope one of these cases gets there so that they
do it.

Speaker 5 (01:31:40):
And just on that point, I'll just remind everyone that
Derek was part of an effort to try to do
that at the FTC and the Trump administration.

Speaker 6 (01:31:48):
Which.

Speaker 5 (01:31:50):
Again I think it would have been good for the
Biden folks to actually try to continue, even if they
came out in a different way. Okay, well, I think
we and I have lots of more questions. Actually as
we were talking, I was writing them down. But maybe
maybe we'll do a part in two of us. But
if anyone has anything else to say, please say it.

(01:32:13):
I think we answered all the questions in the chat.
Indirectly maybe, but I think we got to them. So
so thank thank you, and thanks everyone for sticking around.

Speaker 4 (01:32:26):
Good chime in to wrap things up. Thanks so much
to our panel for joining us today.

Speaker 3 (01:32:30):
I really appreciate you taking this chunk out of your
days and sharing our ox, preece and insight. Thanks including
to mister Abbott who had to leave to catch a flight,
but really appreciate you all joining us today. Thanks also
to our audience for joining and participating. Welcome listener feedback
by email at fedsoc Forums at fedsock dot org, and
as always, keep an eye on our website and your
emails pronouncements about other upcoming virtual events. With that, thank

(01:32:53):
you all for joining us today we are a Jared.

Speaker 1 (01:32:57):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Society's Practice groups. For more
information about the Federal Society, the practice Groups, and to
become a Federal Society member, please visit our website at
fedsock dot org.