Antitrust Law Daily Google’s lawyers looking to move U.S. antitrust case along
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Friday, October 30, 2020

Google’s lawyers looking to move U.S. antitrust case along

By Jeffrey May, J.D.

First hearing in monopolization action focuses on protective order, initial disclosures.

Saying that his client Google LLC was anxious to have the government’s antitrust case against the search engine company move along expeditiously, Williams & Connolly LLP Partner John Schmidtlein asked the federal district court in Washington, D.C. today to have the government start turning over information as soon as possible so that Google could prepare its defense. In the first hearing in the monopoly action before Judge Amit P. Mehta, Justice Department attorney Kenneth Michael Dintzer suggested that Google was seeking "asymmetrical discovery" that the Federal Rules do not envision. The government called for first getting a protective order in place and then considering initial disclosures (U.S. v. Google, LLC, Case No. 1:20-cv-03010).

The court set some deadlines or target dates for working through some preliminary matters and asked the parties to meet for another status conference on November 18 in the case, which was filed by the U.S. Department of Justice and 11 states on October 20. The complaint alleges that, in exchange for becoming the preset default general search engine for the most important search access points on a computer or mobile device, Google provides a share of its search advertising revenue to Android device manufacturers, such as Samsung, mobile phone carriers, competing browsers, and Apple Inc. The suit seeks "structural relief as needed to cure any anticompetitive harm" and injunctive relief prohibiting the alleged anticompetitive practices.

Deadlines. The first deadline was November 6. The parties were encouraged to reach an agreement on a protective order for dealing with confidential information. They were to report back on progress by that date on whether they had reached an agreement, even if it were not final, and whether there would be elements that need to be litigated.

One week later, on November 13, the court expected word from Google on whether it would answer the complaint or file a motion to dismiss. The date to respond to the complaint was December 21. Schmidtlein said that he would advise the court of the company’s decision on how it would proceed sooner than November 13 if that was possible.

The parties targeted November 20 for mutual exchange of Rule 26 initial disclosures. If there was a disagreement about form and format, the court asked that the parties bring it to his attention in advance of that date. The government said that would seek a refresh of documents, since it had stopped receiving information in late 2019. There seemed to be some disagreement between the parties on the latest update of information from Google.

Possibility of amendments to the government’s complaint. The court asked the government whether it anticipated any amendment of the complaint that might expand the antitrust theories. Dintzer said that, without waiving any rights to amend, the government had no present intention to amend. The court also asked if additional states might join the case. Dintzer said that there were no concrete plans that he could discuss publicly. On the same day that the Justice Department announced its complaint, attorneys general from New York, Colorado, Iowa, Nebraska, North Carolina, Tennessee, and Utah issued a statement, saying that their investigation against Google was continuing. Reportedly all 50 states have been investigating Google.

Disclosures by Judge Mehta. Judge Mehta, who was appointed by President Barack Obama in 2014, informed the parties that he had a family member and friend with connections to Google. Mehta said that he had a cousin who was an engineer at the company. In addition, he identified a close friend was an executive in the company but who had left four or five years ago. Mehta also mentioned his role as judicial representative for the American Bar Association Section of Antitrust Law. He said that he had not taken a position on the case and was of the opinion that this was not an issue.

Attorneys: Kenneth Michael Dintzer for U.S. Department of Justice. John E. Schmidtlein (Williams & Connolly LLP) and Mark S. Popofsky (Ropes & Gray LLP) for Google LLC.

Companies: Google LLC

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