United States v. Google/Conclusions of Law/Section 8A
- A. The Court Need Not Make a Finding of Anticompetitive Intent.
Plaintiffs seek a finding of “anticompetitive intent,” but the court need not make one. UPTB at 75–76. A finding of anticompetitive intent is not an element of a Section 2 violation. See Microsoft, 253 F.3d at 59 (stating that in determining whether conduct is deemed exclusionary “our focus is upon the effect of that conduct, not upon the intent behind it”). “Evidence of intent behind the conduct of a monopolist is relevant only to the extent it helps [a court] understand the likely effect of the monopolist’s conduct.” Id. (citation omitted). Given that the court already has concluded that Google’s exclusive dealing agreements have anticompetitive effects in two relevant markets, supra Parts V & VI, it is unnecessary to consider intent evidence to further “understand” that conduct.
Still, the court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants. It is no wonder then that this case has lacked the kind of nakedly anticompetitive communications seen in Microsoft and other Section 2 cases. See, e.g., Microsoft, 253 F.3d at 73 (stating that Microsoft could “use Office as a club” to coerce Apple to adopt Internet Explorer); McWane, 783 F.3d at 840 (citing evidence that left “little doubt” that the defendant’s program was meant to prevent its rival from “any critical mass market”); Dentsply, 399 F.3d at 190 (referencing “clear expressions of a plan to maintain monopolistic power”). Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create “bad” evidence. Ultimately, it does not matter. Section 2 liability does not rise or fall on whether there is “smoking gun” proof of anticompetitive intent. Areeda ¶ 1506 (discussing the role of intent evidence in Sherman Act cases).