Notice & Comment

Ranking the Big Tech Monopolization Cases, by Daniel A. Crane

The Justice Department’s March 21, 2024 monopolization lawsuit against Apple implements the last piece of an agreement reached between the FTC and DOJ in June of 2019 ceding Facebook/Meta and Amazon to the FTC and Google and Apple to the DOJ. There was never much of a question about whether the federal agencies and their state Attorney General counterparts would launch blockbuster monopolization cases against all four Big Tech giants, and now we know when. DOJ sprang first against Google in 2020 on Internet search, and then added a separate case focused on AdTech in 2023. The FTC matched with its case against Facebook in 2020. It took another three years for the FTC to spring on Amazon (September 2023), and the DOJ seems positively lethargic (or strategically prudent?) for not bringing Apple until almost four years after the first cases against Google and Facebook.

This telling glosses over lots of nuance. Among other details, there are actually multiple different government actions against each of the companies, not to mention private cases. But to keep things simple we can group the monopolization cases into five buckets: Google search, Google AdTech, Facebook, Amazon, Apple. The cases are on different timelines and before different judges (and in different circuits), concern different industries and species of alleged misconduct, and involve different degrees of seriousness for the four companies (particularly when potential structural remedies come into view). Nonetheless, comparisons between the cases are unavoidable, and comparisons inevitably read to rankings, and so I had to ask.

Who I asked was a group of antitrust law professors. What I asked was to rank the cases from weakest to strongest (or the other way around—it turns out you can reverse engineer these things). The rankings were to be based on predictions of how courts would evaluate the strength of the cases, not how the respondents themselves would have decided the cases with a free hand. I also invited the respondents to make whatever qualitative comments they wished.

Nineteen antitrust professors answered my query. All of them are people I would consider distinguished in the field, fair minded, and highly knowledgeable. (A few disclaimed knowledge on particular cases, and I took that into account in assessing their answers). Politically, ideologically, and in their antitrust views, the respondents represented a fair distribution from across the spectrum (at least the spectrum of antitrust professors—one can reasonably believe that cohort is skewed in one direction or another). A few had some degree of involvement in one or more of the cases, but I guaranteed anonymity and asked for objectivity. Take the results for what they’re worth. This certainly was not a scientific study, but the results nonetheless provide a gestalt relevant to understanding the Big 4 monopolization cases.

The results: Some respondents chose to group the two Google cases into an amalgamated “Google,” and others to rank Search and AdTech separately. It turned out not to matter to the overall ranking. Either way, the rankings from strongest to weakest are: Google, Facebook/Meta, Apple, Amazon. Numerically (with 4 points for strongest, down to 1 point for weakest), it’s Google (26), Facebook (21), Apple (19), and Amazon (14); or Google Search (39), Google AdTech (32), Facebook (24), Apple (21), and Amazon (18).

A clear separation emerges from the raw scores. Google is the consensus choice for the strongest government case; Amazon is the consensus choice for the weakest government case. Indeed, not a single respondent ranked Amazon the strongest government case, and only one ranked Google the weakest. A couple of respondents who didn’t provide overall rankings nonetheless cast doubt on the Amazon case.  Respondents were consistently bullish on Google (from the government perspective) and bearish on Amazon. Facebook and Apple were a toss-up in the middle.

A more sophisticated study might have asked respondents to assess the probability of a government win in each case, but I’ve never claimed to be sophisticated. However, a number of respondents did provide some useful color commentary. Gathering the overall sense, it’s fair to say that there is an expectation that more of the cases will lose than win. One respondent did not pull punches in describing all four of the cases as “utter bs.” Well then. Another ranked Google as the strongest with a 49% chance of winning, which means, according to my feeble math, a prediction that all cases will be losers. Another drew the line between Apple and Amazon (“weak”) and Facebook and Google (“relatively strong”). A respondent with similar views (although different ideological commitments) ranked Apple and Amazon as “no chance in hell.” (Google and Facebook apparently have some chance in the hot place). Another concurred in the prediction that the DOJ will win Google, believed that FTC will likely lose Facebook, and thought that Amazon and Apple hover close to 50%, with “Amazon more than 50% … and Apple somewhat less than 50%.” Another opined that the Government would win Google Search and lose all of the others.

Not all respondents were quite so sanguine on the companies’ chances. One respondent provided a thoughtful and in-depth analysis of all four cases (excluding Google AdTech) and thought that Google Search, Apple, and Facebook were all deserving of government victory. This respondent explained: “Each tells a powerful story of a monopolist fighting hard to maintain market power, while sacrificing themselves and their consumers. They are all good claims about consumer welfare … and they all would be important precedent to keep our tech/platform environment healthier for competition and innovation going forward.”

Another respondent who adheres to the conventional wisdom that Google Search is the strongest and Amazon is the weakest offered the following nuanced explanation: “Google has a durable monopoly (though genAI may be a replacement technology). This is the best defined market among the cases (and market definition is the key filter in monopolization). The entry barrier story is the best one. The weakest part is the preset default argument: in Microsoft there was actual exclusivity, while this relies partly on a behavioral economics insight. Amazon is IMO the weakest. The theory reads to me like a price squeeze theory, which is the weakest of the various refusal to deal-based arguments. It is really hard to show harm to competition from Amazon’s conduct (as distinct from harm to weak competitors). And the context is just bad – Amazon as a platform has both reduced consumer prices and increased market access for small entrepreneurs. It does not help at all that the chair’s obsession with Amazon is well known to anybody paying attention.”

Another question that a more sophisticated questioner might have asked concerns potential remedies—particularly break-up. Here, one respondent provided some particularly insightful comments sua sponte: Google Search will result in a government win and injunction, but only against default clauses. The DOJ will also win Google AdTech, which “is the only case there is a chance of a breakup,” but it won’t happen because of “certain exercises of conflict of interest.” And Apple and Amazon are likely to be losers on the merits, leaving a conclusion of “[n]o structural relief predicted – despite the battle cry, break em up.” Another respondent had a similar, if waggish, prediction: No break ups, but “[w]hatever is left gets settled in 2028 when Trump beats Trish James in the presidential election.”

Again, well then.

So I hope that this exercise has been at least diverting. At a minimum, a few years from now it may be useful to take a look back and assess the predictive powers of antitrust professors. One sometimes cannot escape the feeling of being on a panel of macroeconomists uniformly predicting a rosy outlook in, say, April of 2008. So let me prospectively immunize myself from hindsight criticism by noting that I’m just the humble reporter here!

Daniel A. Crane is the Richard W. Pogue Professor of Law at the University of Michigan.

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