GENIUS OR CHAOS: THE “BIG TECH” ANTITRUST
CASES AS A WINDOW INTO THE COMPLEX
PROCEDURAL ASPECTS OF U.S. ANTITRUST LAW
G
EORGE
H
AY
T
HOMAS
T
URGEON
*
INTRODUCTION ............................................... 376
I. THE ANTITRUST LAWSUITS AGAINST GOOGLE AND
FACEBOOK
............................................. 377
A. T
HE
L
AWSUITS
A
GAINST
G
OOGLE
...................... 377
B. T
HE
L
AWSUITS
A
GAINST
F
ACEBOOK
.................... 380
II. UNDERSTANDING HOW FEDERAL AND STATE
ENFORCERS OPERATE
................................. 382
A. F
EDERAL
A
NTITRUST
E
NFORCEMENT
: T
HE
FTC
AND
THE
DOJ
............................................. 382
B. R
OLE OF
S
TATE
A
TTORNEYS
G
ENERAL
.................. 384
III. CIVIL PROCEDURE CONCEPTS IN THE ANTITRUST
ENFORCEMENT CONTEXT
............................. 386
A. S
UBJECT
-M
ATTER
J
URISDICTION
........................ 386
B. S
UPPLEMENTAL
J
URISDICTION
.......................... 387
C. T
HE
D
EVELOPMENT OF THE
D
OCTRINE OF
P
ERSONAL
J
URISDICTION
: H
OW
D
OES
B
ROADER
J
URISDICTION
A
FFECT
A
NTITRUST
L
ITIGANTS
?
................................ 389
D. P
ROPER
V
ENUE
....................................... 390
E. C
ONSOLIDATING
S
EPARATE
C
OMPLAINTS
................ 392
IV. JOINT INVESTIGATIONS AND ACTIONS
............... 394
A. M
ULTISTATE
I
NVESTIGATIONS AND
L
ITIGATION
........... 394
B. F
EDERAL
–S
TATE
J
OINT
A
CTIONS
....................... 395
1. History of the Working Relationship Between State
and Federal Actors ............................... 395
* George A. Hay is the Charles Frank Reavis Sr. Professor of Law and Professor of Econom-
ics at Cornell Law School. Thomas Turgeon is an associate at Morgan, Lewis & Bockius LLP.
The authors are grateful to the editors of the Antitrust Law Journal for their extensive and very
valuable comments.
375
376
A
NTITRUST
L
AW
J
OURNAL
[Vol. 85
2. How Do State–Federal Investigations Work? ....... 396
3. The Pendulum Theory: An Incomplete Depiction of
Enforcement Activity Trends ....................... 396
4. Case-Specific Circumstances: Recognizing and
Differentiating Between Cases Where Collaboration
Is Viable and Those Where Enforcers Have
Irreconcilable Differences ......................... 397
V. EFFICACY OF STATE INVOLVEMENT IN NATIONWIDE
ANTITRUST CASES
..................................... 400
VI. RETHINKING THE TWO-HEADED NATURE OF
FEDERAL ANTITRUST ENFORCEMENT
................ 403
CONCLUSION .................................................. 407
INTRODUCTION
The antitrust cases filed in the United States in 2020 and in 2023 against
Google and Facebook (now Meta Platforms, Inc.)
1
have attracted a lot of me-
dia attention, moving antitrust from the back pages of the business section to
the front page of newspapers nationwide and internationally as well. While
the surviving cases will not go to trial until late 2023 at the earliest,
2
there will
be no shortage of scholarly analysis of the merits and demerits of the cases or
their chances for success between now and then.
We wish to focus on these cases for a different reason. Specifically, they
provide a timely and rich “real-world” blackboard for pointing out the ex-
traordinarily complex and rich procedural aspects of antitrust law in the
United States. While some readers may be generally familiar with many of the
observations we will make, it is still a rare opportunity to see all these proce-
dural aspects of U.S. antitrust law so prominently on display in the context of
one segment of the economy (often referred to as “big tech”).
1
E.g., Complaint, United States v. Google LLC, No. 23-cv-108 (E.D. Va. Jan. 24, 2023)
[hereinafter DOJ Complaint (Google Ad Tech)]; Complaint, Colorado v. Google LLC, No. 20-
cv-3715 (D.D.C. Dec. 17, 2020) [hereinafter States Complaint (Google Search)]; Complaint,
Texas v. Google LLC, No. 20-cv-957 (E.D. Tex. Dec. 16, 2020) [hereinafter States Complaint
(Google Ad Tech)]; Complaint, United States v. Google LLC, No. 20-cv-3010 (D.D.C. Oct. 20,
2020) [hereinafter DOJ Complaint (Google Search)]; Complaint for Injunctive and Other Equita-
ble Relief, FTC v. Facebook, Inc., No. 20-cv-3590 (D.D.C. Dec. 9, 2020) [hereinafter FTC Com-
plaint (Facebook)]; Complaint, New York v. Facebook, Inc., No. 20-cv-3589 (D.D.C. Dec. 9,
2020) [hereinafter States Complaint (Facebook)].
2
This calls to mind the comments of the D.C. Court of Appeals in the Microsoft opinion that
in the computer industry, six years (the time between when Microsoft first engaged in the con-
duct plaintiffs alleged to be anticompetitive and the subsequent appellate decision) seems like an
eternity: “By the time a court can assess liability, firms, products, and the marketplace are likely
to have changed dramatically.” United States v. Microsoft Corp., 253 F.3d 34, 49 (D.C. Cir.
2001). One would expect the same to be true in the markets in which Google and Facebook
operate, calling into question whether the courts are the best venues for crafting forward-looking
remedies for prior conduct.
2023]
G
ENIUS OR
C
HAOS
377
To recap recent events, in Part I, we provide a synopsis of the recent big
tech antitrust cases against Google and Facebook. In Part II, we discuss how
federal and state antitrust enforcers operate. In Part III, we discuss civil proce-
dure concepts in the context of antitrust enforcement actions. In Part IV, we
explore the process for joint investigations among agencies and at the state
and federal levels. In Part V, we discuss the efficacy of state involvement in
nationwide antitrust litigation. Finally, in Part VI, we discuss the utility of
having two federal agencies oversee antitrust enforcement. We use the cases
against Google and Facebook as mechanisms to discuss the concepts we ex-
plore in Parts II through VI.
I. THE ANTITRUST LAWSUITS AGAINST
GOOGLE AND FACEBOOK
A. T
HE
L
AWSUITS
A
GAINST
G
OOGLE
In late 2020, the U.S. Department of Justice and 11 states jointly filed a
complaint against Google under Section 2 of the Sherman Act.
3
The complaint
alleges that Google has unlawfully maintained and extended its monopoly
power in the market for “general search services, search advertising, and gen-
eral search text advertising” through the use of exclusionary agreements (in-
cluding tying arrangements) and anticompetitive conduct, thereby locking up
distribution channels and blocking rivals.
4
According to the government,
Google pays distributors (e.g., Apple, Samsung), major wireless carriers (e.g.,
Verizon, AT&T), and browser developers (e.g., Mozilla, Opera) billions of
dollars annually via advertising-revenue-sharing agreements (and in some
cases agreements not to deal with competitors) in order to secure default sta-
tus for the Google general search engine.
5
The government contends that con-
sumers rarely change their device’s default search function.
6
The complaint alleges that as a result of Google’s exclusionary agreements
and anticompetitive conduct, Google accounts for almost 90 percent of all
general search engine queries in the United States, including nearly 95 percent
of searches on mobile devices.
7
As a remedy, the government seeks a decree
that Google acted unlawfully to maintain its monopoly power in the market
for general search services as well as a court order enjoining the anticompeti-
tive practices described in the complaint.
8
3
DOJ Complaint (Google Search), supra note 1.
4
Id. ¶¶ 1, 4.
5
Id. ¶¶ 4, 7.
6
Id. ¶ 3.
7
Id. ¶ 5.
8
Id. ¶ 194.
