Big Tech – Q4 2020 Antitrust Update – Google, Facebook & Apple Focus – 28 October 2020

Can you frame the key elements of the recent history of antitrust cases involving Alphabet/Google, Facebook and Apple in the US and Europe, prior to the current and pending matters in the US? What initiated the investigation into Google in 2011, and why do we seem to be going down this path again?

Could you pinpoint 1-2 key takeaways from the antitrust investigations over the last decade, and how those might inform and instruct what happens next?

Could you elaborate on the differences between actions from the DoJ [Department of Justice] and the FTC [Federal Trade Commission]? You referenced the DoJ taking on responsibility pertaining to Google over the last couple of years from the FTC. How does that work, and why is it important?

What did the DoJ specifically allege in the lawsuit it filed against Google on 20 October, and how has Google responded? I don’t necessarily mean a legal response at this point, but Google shared a blog post outlining its thoughts on the matter, which it regularly does in a legal context.

If demonstrating consumer harm is a necessary element of the antitrust case against Google, is there a threshold that the DoJ has to fulfil? We could have a notion of harm, but is there a necessary magnitude or degree of pervasiveness that this would have to meet?

How strong do you think the DoJ’s antitrust case against Google is as it currently stands, without the inclusion of amended elements such as adtech or search bias?

Do you expect the FTC to move on Facebook? You noted a few items relating to the FTC and a settlement and a significant fine related to Cambridge Analytica. Various outlets, unconfirmed reports and indications from The WSJ suggest FTC staff have recommended the agency pursue action against Facebook. Discussion has centred around anti-competitive M&A, and Facebook’s often-criticised handling and use of consumer data. It seems the decision for now is whether the commissioners will move forward with this action.

To what extent do you think AT&T will be referenced as a precedent for breaking up a big company after M&A activity, appreciating this was obviously a very different scenario?

Could you break down Apple and the games lawsuit, and the much broader action being taken in Europe related to the App Store? What’s going on here, and how has Apple responded?

How should we frame the implications of the US election’s outcome for the DoJ’s lawsuit against Google?

To confirm, you think the DoJ suit against Google is more likely to be broadened to include adtech and search bias under a Biden administration?

Can you discuss the impact of the upcoming election on congressional action through legislation, and the read-throughs to ongoing and potential big tech antitrust cases?

What are the practical implications of the legislative response to the American Express, Twombly and Trinko cases you just referenced?

Many people are understandably very much focused on the current Google case and the potential Facebook case. Beyond the implications of a Biden win on these specific cases, it sounds like you are suggesting a Democratic sweep would initiate a relaxing of standards to bring antitrust actions, which could have significant read-throughs to big tech. Is that a fair characterisation?

Let’s assume the FTC brings a case against Facebook by the end of 2020, which you suggested is a relatively likely outcome. What could happen under a Biden administration? For the Google case, it sounds as if – regardless of the administration – you can envisage this continuing, but also broadening. How does Facebook compare, appreciating the difficulty in speculating about a case that has yet to be brought?

What are the key risks to Alphabet/Google, Facebook and Apple over the next few years? I appreciate there are a number of unknowns to factor in – the election, the actions that will or won’t be taken, the legislation that might be proposed and enacted. Of the three, you seem to be suggesting Alphabet/Google is the most vulnerable, and that you can envisage a broader case and perhaps even more challenging antitrust laws over the next 6-12 months. With Facebook, there seem to be risks as well, especially if a case is brought by the FTC. With Apple, you have characterised the federal government as perhaps inclined not to get involved.

You referenced Elizabeth Warren and others discussing the possibility of breaking up all three of these companies, in some respects. You also suggested that seems unlikely, given the last few decades of similar situations not resulting in break-ups. Do you think there is any actual possibility these three are broken up?

Do you think Instagram being forced out of or divested from Facebook would be the most likely of all the potential break-up or divestiture actions?

You mentioned other remedies besides break-ups. There have been some very large fines levied against these companies in the US and in Europe. Could you talk about how these fines can be imposed against Alphabet/Google, Facebook or Apple in the US?

What alternative remedies are we discussing here, whether structural or behavioural?

Do you think the Google Search relationship with Apple can feasibly survive, given all the scrutiny and the pressure we’ve discussed? Where is the line that determines what is acceptable or anti-competitive here?