DOJ seeking outside counsel to lead potential Google antitrust litigation

20 May 2020 8:00 am by Joshua Sisco

The US Justice Department, ramping up plans for potential antitrust litigation against Google, has begun contacting outside attorneys to lead the government's case, MLex has learned.

The DOJ is preparing a case against Google over potentially anticompetitive conduct in the internet search market that could be filed as early as this summer, it is understood. In the past two weeks the department has reached out to private attorneys to head up the potential litigation, it is understood.

It is not known if an attorney has been hired.

The DOJ told candidates to be ready to join by June, indicating that a lawsuit is imminent. While not a typical practice, government agencies do sometimes hire outside attorneys for litigation. In two prominent cases, the DOJ brought in David Boies for its antitrust lawsuit against Microsoft in the late 1990s, and the US Federal Trade Commission hired outside attorney Beth Wilkinson to lead its earlier antitrust investigation of Google.

While hiring an outside attorney is strong indication that a lawsuit will be filed, that is not always the case. The FTC ultimately did not sue Google after investigating potential anticompetitive conduct in its search business for several years. The FTC closed the probe with narrow, voluntary changes made by Google.

An outside lawyer can also offer a more objective opinion on the merits of a potential lawsuit.

The DOJ began investigating Google for possible antitrust violations last summer, and has since sent the company sprawling information requests, known as civil investigative demands, covering nearly every part of its business.

At least some outside attorneys were contacted by Ryan Shores, an associate deputy attorney general working in the office of Jeffrey Rosen, the number two official at the DOJ under Attorney General William Barr. Shores took the position late last year to oversee the DOJ's investigations of large technology companies, including Google.

Both Assistant Attorney General Makan Delrahim, the antitrust division leader, and his top deputy, Barry Nigro, are recused from the Google investigation, it is understood.

The DOJ and Shores declined to comment.

“We continue to engage with the ongoing investigations led by the Department of Justice and Attorney General Paxton, and we don’t have any updates or comments on speculation," a Google spokeswoman said. "Our focus is firmly on providing services that help consumers, support thousands of businesses, and enable increased choice and competition."

Lawyers contacted by the DOJ were given little information about the case but were told the DOJ is conducting multiple antitrust investigations of Google, it is understood. The pending litigation would focus on Google's actions to protect its purported search monopoly, it is understood.

A group including nearly every state attorney general is also investigating Google for potential antitrust violations. Both the states and the DOJ are probing the company for possible anticompetitive conduct in the search and advertising technology sectors, as well as for potential abuses involving the company's Android operating system.

Different groups of states are leading different parts of the probe. Texas is focused on Google's dominance in online advertising, which is understood to be the most advanced part of the states' investigations.

At least some states, including Texas, are understood to be eyeing a potential fall lawsuit in the ad market.

“Our antitrust investigation into Google has not been slowed down by the coronavirus pandemic,” Texas Attorney General Ken Paxton said in a statement.* “We’ve issued CIDs to Google and impacted third parties. We hope to have the investigation wrapped up by Fall. If we determine that filing is merited we will go to court soon after that.”

The exact timing of any litigation is fluid and could change.

The Wall Street Journal and other outlets previously reported the potential timing of the lawsuits, but the DOJ's efforts to hire outside counsel have not been previously reported.

The states could choose to sue alongside the DOJ in the same lawsuit, or could sue separately. The multiple prongs of the Google investigations could lead to multiple lawsuits.

Google has been under antitrust scrutiny for years, facing probes in multiple countries. The European Commission has fined the company nearly $10 billion over the course of three separate investigations.

This week, a pair of former officials with the DOJ's antitrust division during President Barack Obama's administration wrote a detailed paper outlining an antitrust case against Google.

Based on a study by the UK Competition and Markets Authority of the digital advertising market, Fiona Scott Morton and David Dinielli state that Google uses its search dominance and "data it harvests from its family of consumer-facing products," to force publishers and advertisers to use its advertising technology.

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