DOJ almost filed monopolization case against Google-Yahoo!

Sandy Litvack, the DOJ's outside counsel on Google-Yahoo told AmLawDaily that the case the DOJ was prepared to file against Google-Yahoo was far more serious and sweeping than previously thought or known.

• "The never-filed government complaint would have charged that the agreement violated Sections 1 and 2 of the Sherman Act, Litvack tells the Am Law Daily in one of his first interviews since the companies canned the venture. Section 1 bans agreements that restrain trade unreasonably. Section 2 makes it unlawful for a company to monopolize or attempt to monopolize trade."
• ""It would have ended up also alleging that Google had a monopoly and that [the advertising pact] would have furthered their monopoly," Litvack says."

• ..."The agreement with Yahoo, had it gone forward, would have accounted for 90 percent of those markets, the release said. Litvack says by publicizing Google's current market share in the press release  the department "may or may not be" trying to put the company on notice for possible future antitrust actions."
• ""[The department is] making it clear to the parties and to the world that this is how the division viewed these particular aspects of Google's business," Litvack says."
• ...Litvack "does regret that he won't get to go to court in what would have been the highest-profile antitrust case in years."
• "Of course I was looking forward to it," he says. "We felt pretty good about it, we felt pretty confident. Yeah, I would have liked to have done it."

Wow! Google didn't just dodge a bullet here, it averted the functional equivalent of a nuclear strike.

I am gratified that my extensive Googleopoly research was of use to law enforcement:

• "Googleopoly: The Google-DoubleClick Anti-competitive case" http://www.googleopoly.net/merger.html
• Googleopoly II: Google's Predatory Playbook to Thwart Competition" http://googleopoly.net/googleopoly_2.pdf
• Googleopoly III: Dependency: The Crux of the Google-Yahoo Ad Agreement Problem" http://googleopoly.net/googleopoly_3_dependency.pdf

Bottom line:

It is clear from the DOJ's outside counsel in charge of the case against Google that Google is a monopolist and has designs to further monopolize adjacent markets.

• This case turned out to be a much bigger deal than any of us on the outside thought.
• I thought there was a solid Section I case but doubted the DOJ would go as far as a Section II monopolization case because of Antitrust Chief Barnett's publicly lenient views on Section II.
• It also suggests that the FTC did not take Google-DoubleClick case seriously enough.

If Google is not seriously concerned about its future latitude to cut deals like it has in the past -- they should be.