“[A] market share below 50% is rarely evidence of monopoly power, a share between 50% and 70% can occasionally show monopoly power, and a share above 70% is usually strong evidence of monopoly power.” Broadway Delivery Corp. v. United Parcel Serv. of Am., Inc., 651 F.2d 122, 129 (2d Cir. 1981). Dr. Whinston calculated Google’s share of the proposed market as 74%, although that is an overestimate given the omission of Amazon’s product-page ads. See Tr. at 4779:7-15 (Whinston) (discussing UPXD102 at 63). Although Google’s market share is some evidence of monopoly power, it is not necessarily “strong evidence.” That said, Google’s share of the search advertising market has been durable, id. (65% market share or more since 2012), despite the market’s enormous growth, id. at 8874:25–8875:13 (Israel). These markers, taken together, tilt somewhat in favor of a finding of monopoly power.
But “because of the possibility of competition from new entrants, looking to current market share alone can be misleading.” Microsoft, 253 F.3d at 54 (internal quotation marks and citations omitted); see also Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 99 (2d Cir. 1998) (“We cannot be blinded by market share figures and ignore marketplace realities, such as the relative ease of competitive entry.”); Oahu Gas Serv., Inc. v. Pac. Res., Inc., 838 F.2d 360, 366 (9th Cir. 1988) (“A high market share, though it may ordinarily raise an inference of monopoly power, will not do so in a market with low entry barriers or other evidence of a defendant’s inability to control prices or exclude competitors.”) (citation omitted).
U.S. Plaintiffs have not shown that barriers to entry protect Google’s leading share in the search ads market. Microsoft, 253 F.3d at 51. Concededly, the capital cost of developing an ad platform is high. See UPFOF ¶¶ 581–583. But well-resourced market entrants, and demonstrated growth by those entrants, belie a reality of unconstrained dominance. There is, of course, Amazon’s entry and explosive growth in the market. FOF ¶ 196 (Google estimates that Amazon
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