Defaults, Downloads, and Distribution: Reassessing the Evidence in the Google Search Antitrust Case
I. Introduction
One of the central controversies surrounding Judge Mehta’s decision in the U.S. Google Search antitrust case[1] is whether the court applied the correct legal standard of proof to find that Google’s default distribution agreements caused anticompetitive harm. The decision adopts an extraordinarily permissive standard, holding that the government need show only that Google’s challenged distribution agreements “reasonably appear capable of” contributing to its monopoly power.[2] This standard, derived from the D.C. Court of Appeals’ 2001 Microsoft decision,[3] fundamentally misunderstands both the precedent and the nature of causation in antitrust cases.
As I have discussed elsewhere,[4] the decision relies on this reduced standard to sidestep crucial questions of causation, finding that “Google’s distribution agreements are exclusionary (. . .) because they ensure that half of all GSE [general search engine] users in the United States will receive Google as the preloaded default on all Apple and Android devices.”[5] But receiving Google Search as the preloaded default is exclusionary only if consumers are shown to prefer alternative search engines and are unable to switch easily to them.
Instead, this permissive standard leads the court to accept a series of logical fallacies and evidentiary shortcuts throughout its analysis. Most critically, it allows the court to infer causation from correlation, assuming, in effect, that because Google’s market dominance accompanied its default distribution agreements, it must have been caused by them. This post hoc reasoning permeates the decision, infecting everything from its analysis of the default arrangements to its assessment of alternative distribution channels.
The problem is that this is almost certainly an incorrect reading of the case law. Indeed, as Judge Douglas Ginsburg and Koren Wong-Ervin argue, the “reasonably appear capable of” standard is a special case, applicable in limited circumstances (which are absent in Google Search): “Reading Microsoft and Rambus together, the key takeaway is that only when anticompetitive effects are shown (as required by Microsoft and Rambus) does the ‘reasonably capable of’ causation standard apply to allegations that exclusionary conduct killed a nascent threat. Only when these conditions are met may the government avoid having to show that the threat would have become a real competitor but for the alleged exclusionary conduct.”[6]
The reduced standard’s inapplicability here matters precisely because it allows the court to skip over crucial analytical steps that would expose the weaknesses in its presumed causal chain. By merely asking whether Google’s agreements could have contributed to its market position, rather than proving they actually did so, the court avoids confronting the substantial evidence—much of which, remarkably, is referenced by the court itself—that Google’s position stems from consumer preferences rather than anticompetitive exclusion.
II. The Proper Framework for Analyzing Causation in Exclusive Dealing Cases
A. The Fundamental Challenge of Exclusive Dealing Analysis
The proper analysis of exclusive dealing arrangements presents an analytical challenge: even where an exclusive dealing arrangement might be capable of enabling the defendant to acquire or maintain monopoly power, it is also possible that the defendant would have acquired or maintained monopoly power absent the exclusive deal. Indeed, this latter scenario is especially likely where, as here, the evidence suggests strong consumer preferences for the dominant firm’s product.
Typically, a plaintiff must show that, absent the challenged behavior, the foreclosed competitor would have actually threatened the incumbent’s market power—that is, that the challenged conduct, and not something else, was the cause of the alleged anticompetitive effect.
The proper analysis must ferret out the distinction between the two and show, at the very least, that the substantially more likely cause of foreclosure was anticompetitive conduct rather than something else. Only where that assessment is truly impossible—as in the specialized facts in Microsoft involving a nascent, inchoate threat—is the causation requirement relaxed.
The challenge for courts is to avoid the post hoc fallacy—the assumption that because market success accompanies certain conduct, it must have been caused by that conduct. This is especially dangerous in technology markets, where network effects and scale economies mean that market leadership often appears inevitable in retrospect, even when it was earned through competition rather than exclusion.
B. Why ‘Reasonably Appear Capable Of’ Is the Wrong Standard
It should be immediately obvious why “reasonably appear capable of” cannot possibly be the correct general standard—and why it makes no sense to suggest that a less strict standard of proof is particularly appropriate for exclusive-dealing arrangements.
We do not need to ask if the (allegedly) exclusive-dealing agreements at issue “reasonably appear capable of significantly contributing to maintaining Google’s monopoly power” because, of course, they are capable of contributing to Google’s monopoly power. That is why there are scores of antitrust cases looking at the effects of distribution agreements.[7] If prevailing in such a case required only that an agreement could possibly advance a dominant firm’s competitive position, then no exclusive (or quasi-exclusive) agreement would ever be legal.
We ask whether exclusive agreements “reasonably appear capable of” maintaining monopoly, instead of asking whether they actually maintained monopoly, only when the connection between what is being excluded and monopoly maintenance is inherently unclear—as in Microsoft, where it was unknowable whether Netscape Navigator would eventually constitute a competitive threat to Microsoft’s operating-system dominance. But here, that is not a question. Where the rival is a direct competitor with a close substitute product, an exclusive distribution deal by a dominant incumbent is always capable of foreclosing (at least some of) the rival’s distribution. In such circumstances, it is simply not consistent with the plaintiff’s burden of proof to allow them to show only that the challenged conduct is the sort that could maintain monopoly, rather than that the defendant’s conduct, in fact, caused anticompetitive harm.
III. The Problem of Inferring Exclusion from Default Agreements
A. Market Share Is Not Market Power
Judge Mehta holds that Google’s distribution deals had anticompetitive effects “because they ensure that half of all [general search engine] users in the United States will receive Google as the preloaded default on all Apple and Android devices.”[8] He derives this conclusion (which he repeats several times) from the testimony of one of the plaintiffs’ economic experts, Michael Whinston, who finds that “50% of all queries in the United States are run through the default search access points covered by the challenged distribution agreements.”[9]
Judge Mehta’s claim is that, because users do not switch away from defaults very often, and because the “market realities” of the search market—given Google’s default distribution deals—are that half of all relevant searches occur through access points covered by those deals, we can conclude that those deals foreclose competitors from 50% of the general search market.
But this is not how you measure foreclosure, and the assertion that that number shows that Google’s default deals—and not something else—“significantly contribut[e] to maintaining Google’s monopoly power”[10] is fallacious.
This analysis commits the fundamental post hoc fallacy. Just because the government shows there is “significant” usage of Google’s default services post hoc—meaning, given Google’s default deals, and after consumers have chosen which search engine to use—does not mean it has proven that 50% of the market was foreclosed from access by competitors. Nor does it mean that the government has met its burden of proving that this was caused by the challenged agreements.
Perhaps all of those consumers are inframarginal consumers who would have chosen Google Search anyway, even if it were not the default. In other words, perhaps all of them were perfectly capable of accessing Bing, but simply chose not to. In that case, the post hoc usage data would tell us nothing about the extent of foreclosure; it would tell us only about consumer preferences. The reality may be somewhere in between, but even the extreme (that is, that all observed usage of Google Search over Bing is attributable to consumer preference, and none to foreclosure by Google’s default distribution deals) cannot be ruled out simply by observing post hoc usage.
B. The Missing But-For World
For this reason, demonstrating foreclosure requires comparison to the but-for world. It requires showing, in other words, that, absent Google’s deals, Bing would have had access to and been chosen by substantially more marginal consumers (those who view Bing and Google as effective substitutes and would not expend extra cost to use one search engine or the other).[11] This is so for three reasons.
First, these agreements are not, in fact, “exclusive.” That matters because it is much harder to infer that it was the agreements, and not consumer preferences for a particular product, that caused Google’s dominance when consumers have ample opportunity at low or no cost to exercise their preferences to not use Google Search. The court’s reasoning commits the post hoc fallacy by assuming that because Google’s high market share followed its agreements, it must have been caused by them rather than by consumer preferences.
Second, and relatedly, Google’s maintenance of the observed large share of these default searches is just as consistent with a non-problematic set of facts (consumers simply prefer Google Search and, knowing that, distributors offer Google as the default) as with a problematic one (consumers use Google Search only because it is the default service, and distributors offer Google Search as the default only because Google pays them to do so).
So much of Judge Mehta’s conclusion that Google’s default deals are exclusive (despite not actually being “exclusive”) turns on his contention that defaults are the best way for search engines to distribute themselves,[12] and, therefore, that Google tying up default access is sufficient to establish the requisite amount of foreclosure for an exclusive-dealing claim.
But “conduct [does] not violate antitrust laws where absent that conduct consumers would still receive the same product and the same amount of competition.”[13] The but-for world matters, and the relevant question is the relative “amount of competition.”
We cannot measure the amount of competition as Judge Mehta and Prof. Whinston do, by looking at what people choose post hoc. This is a fairly useless statistic. It says next to nothing about what share of marginal searchers use Google because it is the default, and what share use Google because they prefer it. It also says nothing about what share are inframarginal consumers who would use Google regardless of the cost of accessing it. That, in turn, tells you nothing about the amount of competition that existed before they made their choices.[14]
Nor can we simply look at the scope of the default distribution agreements. If people can still easily choose other search providers despite the default deals, those deals cannot be said to foreclose competition—at the very least, not simply in proportion to the share of the market covered by those deals.
Third and finally, failing to demand that the plaintiffs demonstrate that Google’s default distribution deals actually foreclosed competitors, and allowing them effectively to prove their case by showing only that the deals made Google’s large market share “somewhat more likely,”[15] erases the requirement that plaintiffs can win only if they prove that challenged conduct causes anticompetitive harm. This is an invitation for dramatically erroneous decisions.[16]
IV. Evidence Against Default Lock-In: User Behavior in Practice
The problems with the court’s approach to defaults are not merely abstract. In fact, the empirical evidence in this case provides a concrete demonstration of why default arrangements cannot explain Google’s market position. Unlike in Microsoft, we do have actual competition and consumer behavior to assess in understanding the extent of the competitive threat and whether Google’s challenged conduct impaired it. Indeed, there is copious evidence in the case—and in Judge Mehta’s opinion, in fact—that the cause of Bing’s limited market share was not Google’s default distribution deals, but consumers’ preference for Google Search over Bing.
A. User Switching Behavior in Practice
The empirical evidence of user switching behavior contradicts the court’s assumptions about default lock-in. With respect to the conclusion that the cost to users of choosing the non-default option is higher, that is inherently true, of course. But it is arguably trivially so. Judge Mehta spends a fair amount of time on this question (although not in the proper context of this but-for assessment) before arriving at his conclusion that being a non-default is tantamount to being excluded. His analysis is unconvincing, however.
First, the analysis is heavily influenced by the assertions of the government’s behavioral expert, Antonio Rangel. As I will discuss below, some empirical data specific to the context at hand is used to bolster the more general behavioral claims of the government’s expert (which I believe cuts in many respects against Judge Mehta’s conclusions). But it is clear that any ambiguity (of which there was a considerable amount) was presumed by Judge Mehta to be consistent with asserted general behavioral patterns.[17]
The main problem with this is not so much that behavioral science is wrong (surely, it is correct that the more friction there is to switch from a default, the less likely someone will switch), but that it is not dispositive. This makes it a weak basis for meeting the plaintiffs’ burden.
It is also not clear that general behavioral theories have the same traction in the specific environment at issue. As Dan Gilman has discussed,[18] the learnings of behavioral science were established in settings quite different than search engine defaults. As he writes: “Generalizing findings from, e.g., cereal-box placement to the durability of search-engine defaults seems a stretch (or entirely speculative).”[19]
But what really matters in this case is not the direction of the behavioral assumptions, but the magnitude. The claim here is that the availability of switching does not sufficiently negate the effective exclusivity of defaults to permit rivals to compete. That claim depends on the extent to which users tend not to switch away from defaults, not just the fact that they sometimes do not.
Consider the Mozilla experiment: “In a 2016 experiment, Mozilla switched the default GSE on both new and existing users from Google to Bing. By the twelfth day, Bing had kept only 42% of the search volume. After some additional time, those numbers dropped to 20–35% (. . .).”[20] This real-world test demonstrates that users readily switch away from defaults when they prefer an alternative.
Similarly, even when users are presented with a neutral option (e.g., a “choice screen”), they appear to make essentially the same choices as when presented with a default. In Europe, where Google has since 2020 implemented a search-engine choice screen on Android following the EU’s 2018 antitrust decision against it,[21] Google’s share of the search engine market has barely budged.[22]
It is exceedingly difficult to square these facts with the court’s conclusions on the functional irrelevance of non-default options.
B. The Windows Desktop Natural Experiment
The Windows desktop environment provides some of the clearest evidence against the court’s post hoc reasoning about the effect of defaults on competition. Consider the actual evidence of people switching to the non-default on PC desktops. It turns out that a lot of Windows desktop users download Chrome and use Google Search there, rather than relying on Bing, which is the default search engine in the Edge browser: “To be sure, downloads of an alternative browser occur with greater frequency on Windows desktop computers. On such devices, Edge is the default browser and Bing is the default search engine. Yet, Google’s search share on Windows devices is 80%, with most of the queries flowing through the Chrome default, which means Chrome was downloaded onto the device.”[23]
Despite this, Judge Mehta is quick to note that, for those users who still use Edge, Bing is the most used search engine: “The power of defaults is evident, however, from the share of Bing users on Edge. Bing’s search share on Edge is approximately 80%; Google’s share is only 20%. Even if one assumes that some portion of those Bing searches are performed by Microsoft-brand loyalists, Bing’s uniquely high search share on Edge cannot be explained by that alone. The default on Edge drives queries to Bing.”[24]
One might suggest that all this shows is that people really prefer Chrome to Edge, not that they prefer Google Search to Bing enough to switch away from the default (on either browser). Except that, as the opinion points out, “Google’s dominance on Windows cannot, however, be attributed simply to the popularity of Chrome. Google had an 80% search share on Windows when Chrome first launched, and that share has remained steady ever since.”[25] If that is the case, it can mean only that the default search on Windows desktops is not very sticky—and it is not just because users prefer Chrome to Edge; apparently, it is because they prefer Google Search to Bing.
This evidence particularly exposes the flaw in the court’s post hoc reasoning. Google achieved an 80% search share on Windows before Chrome launched, maintaining that share afterward. This sequence directly contradicts the assumption that default agreements determine market outcomes. If the post hoc logic were correct, we would expect to see Bing dominating Windows search given its default position in Edge.
So how does the court conclude that it supports the “power of defaults” that, of those users who do not switch to Chrome on Windows desktops, approximately 80% use Edge’s default? If most Windows users who prefer Google Search to Bing switch from the default by downloading and switching to Chrome instead of by switching the default search engine in Edge, then, of course, most of those who remain on Edge will us Bing: If they preferred Google to Bing, they would have switched to Chrome.
Whatever “choice friction” impedes the movement away from the default search engine on Windows desktops, it is not strong enough to prevent people from maneuvering around it in spades—they just do not often do so directly by switching the default search engine in Edge.[26]
C. The Vertical Search Counterexample
Similarly, strong evidence against default lock-in comes from vertical search. Judge Mehta asserts that “Google often warns that competition is ‘only a click away.’ However, ‘[t]he paltry penetration in the market by competitors over the years has been a refutation of [that] theory by tangible and measurable results in the real world.’”[27]
But there is plenty of evidence to demonstrate that competition is, in fact, just a click away. Indeed, some of it was evidence the court used to exclude specialized vertical search providers (e.g., Amazon and TripAdvisor) from the relevant market. Without challenging that conclusion here, it appears eminently “tangible and measurable” to the question of whether users will switch to alternative search engines that, when the alternative is demonstrably superior for the query at issue, they do so in droves: “A 2020 Bank of America study reported that 58% of users search Amazon first when they seek to make an online purchase, as opposed to only 25% who go first to Google, demonstrating Google’s secondary status as a starting point for users with high commercial intent. (. . .) Microsoft recognizes that ‘if Bing or Google were not doing vertical searches well, or at least not having organic results that people could click to get to vertical search engines,’ users might bypass GSEs and instead search directly on Amazon from the outset. (. . .) [A]nalysis show[s] that a query sample of Google’s top 25 non-navigational shopping queries attracts more queries weekly on Amazon (3.7 million) than Bing (0.4 million) (. . .) [and] that Yelp’s local query volume is higher than Google’s and much higher than Bing’s (. . .).”[28]
None of these alternative vertical search engines is installed as the default. Yet, users readily switch to them when they offer better results. Whether or not this is sufficient to affect the court’s relevant market or market-share analysis, it is surely enough to demonstrate that users are not locked into defaults when the “choice friction” required to switch from them is small relative to the benefit. That, in turn, is a function of the quality of the search provider, not the method by which it is distributed.
D. Alternative Distribution Channels
The court’s dismissal of alternative distribution channels commits the post hoc fallacy twice over. First, it assumes that because users do not often use these channels, they must not be viable. Second, it assumes that because Google’s market share remained high after implementing its agreements, despite the existence of alternative distribution channels, those agreements must have caused its market position.
The majority of the decision’s discussion of consumers’ behavior around defaults is largely impressionistic, not quantitative. For example, Judge Mehta notes that “[a]nother non-default search access point is the bookmarks page on a browser. The Safari ‘Favorites’ page, for instance, contains preloaded icons to access Google, Bing, and Yahoo. A user also can add a new search engine on that page. But few consumers use this channel, as it first requires finding the Favorites page in a new Safari tab, which requires an ‘extra click.’ Google itself receives only 10% of its searches on Safari through the bookmark.”[29]
Strictly speaking, 10% is “quantitative,” but the decision’s conclusions based on this data are decidedly impressionistic. Judge Mehta asserts that Google receiving “only” 10% of searches on Safari through the bookmark is an insignificant volume. But in that setting—where Google Search is already the default on Safari and can be accessed simply by typing in Safari’s URL bar, and in which it is alleged that virtually no one ever uses anything other than default search on Safari—why would there be any searches at all on Google via the bookmark? If that number of searches is different from zero, it would appear to demonstrate that it is indeed a relevant channel by which consumers can find search engines, including non-default ones. In other words, 10% may be “insignificant” as a share of Google searches, but it is quite significant with respect to the relevant legal standard, which is meant to measure the availability of competition, not its actual uptake.
Indeed, “nearly 40% of queries on Apple’s mobile devices flow through non-default search access points, such as default bookmarks or organic search.”[30] Judge Mehta dismisses this by arguing that “the fact that some consumers access search on non-default access points is not dispositive on exclusivity.”[31] “Not dispositive” is not quantitative. While the statement is true, the burden of proof is on the plaintiffs, and this not being dispositive cuts against them, not against Google.
Instead, Judge Mehta claims that “mere user access to these less efficient channels of distribution does not render the browser agreements non-exclusive.”[32] A significant part of the defense of this position turns on an analogy to Microsoft and the argument there that it was sufficient that Microsoft foreclosed access to the best method of distribution. Indeed, the next sentence after the quote above is, “Microsoft again illustrates the point.”[33] But does it?
Judge Mehta says this case is the same as Microsoft where the court “reject[ed] the argument that Microsoft’s licensing agreements with OEMs were not exclusive ‘because Netscape is not completely blocked from distributing its product,’ as ‘although Microsoft did not bar its rivals from all means of distribution, it did bar them from the cost-efficient ones.’”[34] He then asserts that “[t]he record here resembles that in Microsoft. Users are free to navigate to Google’s rivals through non-default search access points, but they rarely do.”[35]
The analogy to Microsoft fails most obviously on the point that the “market realities” have changed a lot since the late 1990s. Downloading Netscape from the internet was wholly unfamiliar, exceedingly complex, and truly difficult for PC users back then—a real “choice friction” and thus not really a viable alternative. But downloading a competing search engine or browser today is trivially easy, and users do it all the time (to the tune of 12.6 billion app downloads in the United States in 2023 alone).[36] In this environment, the fact that users do not download or use competing general search engines sufficiently to displace Google Search despite the ease of doing so suggests that it is consumer preference for Google Search, not the relative inefficiency of the channel of distribution, that causes this result.
Instead, Judge Mehta concludes that, while “a user can download Chrome, Edge, or [DuckDuckGo] onto an Apple device,” “[t]his, too, is not an easily accessible search point, as it involves similar choice friction as acquiring a search application. Google receives only 7.6% of all queries on Apple devices through user-downloaded Chrome.”[37]
Not only is downloading an application, in fact, trivially easy, but the fact that Google receives only 7.6% of search queries on Apple devices through Chrome, but “most”[38] of its queries on Windows desktops through user-downloaded Chrome is decidedly ambiguous. Maybe that shows that people download Chrome on Windows not to get easy access to Google Search but because the Chrome browser is superior to the Edge browser, while it is not any better than Safari. But it is also consistent with the conclusion that people are not prevented from accessing their preferred search provider (Google Search)—they just do not need to download Chrome on Apple devices to get easy access to it, while they do need to do so on Windows devices.
The opinion also says that “[t]he court in Microsoft did not say that these contracts caused zero market foreclosure merely because Internet Explorer had other, less-efficient means of reaching users.”[39] True. But the court in Microsoft also did not say that any amount of difference in distribution efficiency was sufficient to maintain that a non-exclusive agreement was effectively exclusive.
As noted, it is now utterly simple to switch search providers on virtually every platform and at multiple decision points on each. Defaults do not prevent that, and prioritized placement (from, e.g., a spot on the Android home screen) does not even crowd out alternatives once they are downloaded (which can then be similarly accessed from priority positions on the home screen). “Very slightly less efficient” could still be “efficient.” The fact that the difference between the foreclosed and available channels of distribution in Microsoft was large enough to matter does not mean that the difference between them in Google Search is large enough to matter.
In response, Judge Mehta goes back to post hoc user conduct to hold that the fact that users do not often use these alternatives shows that the difference does matter here, and that Google’s default distribution deals are effectively exclusive and lead to foreclosure: “Sure, users can access Google’s rivals by switching the default search access point or by downloading a rival search app or browser. But the market reality is that users rarely do so. The fact that exclusive agreements allow users to reach rivals through other means does not make the foreclosure number zero.”[40]
But it cannot be a sufficient argument that “the market reality is that users rarely do so.” That market reality is exactly what is at issue in the case. Using the lack of user uptake from trivially easy alternative distribution channels as evidence that those alternative distribution channels are not relevant assumes the conclusion. It is poor legal reasoning.
V. Conclusion
Judge Mehta’s decision in the Google Search case rests on a fundamental misapplication of legal precedent and a failure to properly assess causation. By adopting Microsoft’s “reasonably appear capable of” standard, the court dramatically lowered the burden of proof required in exclusive dealing cases without sufficient justification. Unlike the nascent, speculative threat at issue in Microsoft, the competitive dynamics between Google and its rivals like Bing are well understood and amenable to concrete analysis.
The court’s reliance on post hoc market share data and behavioral assumptions regarding defaults, rather than rigorous analysis of actual foreclosure effects, is particularly problematic. The evidence presented shows that users readily switch away from default search providers when alternatives offer superior results, and that alternative distribution channels are far more viable than the court acknowledges. The opinion thus fails to establish that Google’s distribution agreements, rather than consumer preference or competitive merit, caused the observed market outcomes.
By focusing instead on impressionistic assessments of default “stickiness” and conflating correlation with causation, the court effectively relieves the government of its burden to prove that Google’s agreements, rather than other factors, maintained its market position through anticompetitive means.
[1] United States et al. v. Google LLC, Memorandum Opinion, case No. 20-cv-3010 (APM) (D.D.C. Aug. 5, 2024), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2024/pr24-59-Google.pdf (“Google Search decision”).
[2] Ibid. at 216 (“The key question then is this: Do Google’s exclusive distribution contracts reasonably appear capable of significantly contributing to maintaining Google’s monopoly power in the general search services market? The answer is ‘yes.’”).
[3] U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (“Microsoft”).
[4] See G. A. Manne, A Critical Analysis of the Google Search Antitrust Decision, ICLE White Paper 2024-08-14 (Aug. 14, 2024), https://ssrn.com/abstract=4930626.
[5] Google Search decision at 216.
[6] Douglas H. Ginsburg and Koren Wong-Ervin, Challenging Consummated Mergers Under Section 2, CPI North America Column (May 25, 2020) at 3, https://www.pymnts.com/cpi-posts/challenging-consummated-mergers-under-section-2-2 (citing Microsoft, 253 F.3d at 34, and Rambus Inc. v. FTC, 522 F.3d 456 (D.C. Cir. 2008) (“Rambus”)).
[7] See, among many others, Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157 (9th Cir. 1997); United States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005); In re EpiPen Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959 (10th Cir. 2022); McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015); Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991 (9th Cir. 2010); R.J. Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362 (M.D.N.C. 2002) (aff’d, 67 Fed. App’x 810 (4th Cir. 2003)).
[8] Google Search decision at 216.
[9] Ibid. at 217.
[10] Ibid. at 216.
[11] See generally J. D. Wright, Moving Beyond Naïve Foreclosure Analysis, Geo. Mason L. Rev., Vol. 19, No. 5, 2012, pp. 1163–1198; ibid. at 1181–1182 (“The primary thrust of this Article is that accurately measuring the foreclosure produced by any allegedly exclusionary agreement requires foreclosure to be measured relative to what would be obtained but for that agreement.”); T. G. Krattenmaker and S. C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power over Price, Yale L.J., Vol. 96, No. 2, 1986, pp. 209–294, at 259 (defining a “net foreclosure rate” as “the percentage of the suppliers’ capacity that was available to rivals before the exclusionary rights agreement was adopted but that is no longer available as a result of the agreement”).
[12] See, e.g., Google Search decision at 24 (“The most efficient channel of GSE distribution is, by far, placement as the preloaded, out-of-the-box default GSE.”).
[13] Rambus, 522 F.3d at 466 (citing Schuylkill Energy Res., Inc. v. Penn. Power Light Co., 113 F.3d 405, 414 (3d Cir. 1997)).
[14] It might be relevant to assess whether the size of Google’s payments was sufficient to induce distributors to promote it as the default to an extent out of proportion to its relative quality advantage (and thus, presumably, consumer preferences). But the court did not undertake this analysis.
[15] Rambus, 522 F.3d at 464.
[16] See Ginsburg and Wong-Ervin, supra note 6, at 4 (“Without requiring proof of but-for causation, there is great risk of erroneously condemning [conduct] that may be procompetitive.”). See generally G. A. Manne, Error Costs in Digital Markets, in The Global Antitrust Institute Report on the Digital Economy, J. D. Wright and Douglas Ginsburg (eds.) 2020, https://gaidigitalreport.com/wp-content/uploads/2020/11/Manne-Error-Costs-in-Digital-Markets.pdf.
[17] See, e.g., Google Search decision at 26 (“That users overwhelmingly use Google through preloaded search access points is explained in part by default bias, or the ‘power of defaults.’ The field of behavioral economics teaches that a consumer’s choice can be heavily influenced by how it is presented. The consensus in the field is that ‘defaults have a powerful impact on consumer decisions.’”) (citations omitted). See also ibid. at 31 and 229.
[18] See D. J. Gilman, Google, Amazon, Switching Costs, and Red Herrings, Truth on the Market (Nov. 22, 2023), https://truthonthemarket.com/2023/11/22/google-amazon-switching-costs-and-red-herrings.
[19] Ibid.
[20] Google Search decision at 117 (citations omitted).
[21] See Eur. Comm., decision C(2018) 4761 final of July 18, 2018, Google Android, case COMP/AT.40099, https://competition-cases.ec.europa.eu/cases/AT.40099.
[22] See Mobile Search Engine Market Share in Europe — July 2024, StatCounter (last visited Oct. 12, 2024), https://gs.statcounter.com/search-engine-market-share/mobile/europe/#monthly-202001-202408 (showing that Google’s EU mobile search engine market share was 97.32% in January 2020 (just before the choice screen was implemented) and 95.96% in July 2024—a change of 1.37 percentage points).
[23] Google Search decision at 33 (citations omitted).
[24] Ibid. (citations omitted).
[25] Ibid. at 32.
[26] Or, at least, they do not anymore. But 80% of searches on Windows desktops ran through Google Search even before Chrome existed. Ibid. at 32. That means that, apparently, a substantial majority of users were perfectly willing and able to overcome the “choice friction” and switch to Google Search even within Windows’ default browser
[27] Ibid. at 236 (quoting Dentsply, 399 F.3d at 194).
[28] Ibid. at 53–54 (citations omitted).
[29] Ibid. at 32 (citations omitted).
[30] Ibid. at 207.
[31] Ibid. at 208.
[32] Ibid. at 209.
[33] Ibid.
[34] Ibid. (citing Microsoft, 253 F.3d at 64).
[35] Ibid.
[36] See, e.g., L. Ceci, Number of Mobile App Downloads Worldwide from 2021 to 2023, by Country (in Billions), Statista (Nov. 9, 2024), https://www.statista.com/statistics/1287159/app-downloads-by-country/#:~:text=In%202023%2C%20mobile%20apps%20in,generated%20approximately%2012.6%20billion%20downloads (“In 2023 (. . .) users in the United States generated approximately 12.6 billion downloads.”).
[37] Google Search decision at 32.
[38] See ibid. (“Google’s search share on Windows devices is 80%, with most of the queries flowing through the Chrome default (. . .).”)
[39] Ibid. at 221.
[40] Ibid.