United States v. Google/Conclusions of Law/Section 4B
- B. The Microsoft Exclusive Dealing Framework Is Applicable.
Before turning to a more detailed discussion of the market effects, the court addresses the proper analytical framework within which to view the challenged distribution agreements. From the outset, Plaintiffs have framed this case as one about exclusive dealing. See, e.g., Am. Compl. ¶¶ 78–79 (Android agreements), 118–119 (Apple), 156 (browser agreements). Unexpectedly, for the first time post-trial, Plaintiffs contend that the court should eschew considering the agreements through the lens of exclusivity, which they now deem “too narrow,” but instead should “opt[] for the general Section 2 standard, even when harm resulted from agreements blocking access to distribution.” UPCL at 13–16.
The court declines to ratify what Google rightly calls a “dramatic post-trial shift[.]” GRCL at 1. Microsoft compels application of the exclusive dealing framework. See 253 F.3d at 69–70. That framework requires the court to consider, at the threshold, the degree to which the agreements foreclose the relevant markets. Id. But because foreclosure is only a “useful screening function,” the court also must identify real-world anticompetitive effects that arise from such agreements. Id. at 69; McWane, 783 F.3d at 835 (describing foreclosure as a “proxy for anticompetitive harm”). Perhaps that is what Plaintiffs mean by the “general Section 2 standard.” UPCL at 14. In any event, the court’s analysis follows Microsoft.