When the government launched an antitrust investigation into Google, Kent Walker, one of the company’s top lawyers, said the solution was not a witch attack. Google just needed to explain how its business works.
It was 2009, and the Federal Trade Commission was working to assess whether Google had manipulated technology markets in its favour. Mr. Walker’s plan succeeded. The company has approved some changes to its small business practices 2013 settlement And it maintained its dominance of the search engine for another decade.
Now, Google and its parent company, Alphabet, face their most significant legal challenge. And they’re preparing for a showdown next week in federal court v. Department of Justice and an array of states, which allege the tech giant illegally abused its monopoly power to keep its search engine afloat.
The Justice Department said Google illegally used agreements with phone makers like Apple and Samsung, as well as internet browsers like Mozilla, to be the default search engine for its users, blocking smaller competitors from accessing the business.
The court battle — the most important antitrust case since the Justice Department took on Microsoft 25 years ago — strikes at the heart of Alphabet’s $1.7 trillion empire and could strip the world’s most successful internet company of power and influence.
If Google loses and a judge then approves damages, it may eventually have to restructure in some way, and may be subject to damages and a ban on search distribution deals. This would translate to fewer users, diminished profits, and perhaps even limits on Google’s ability to innovate with new technologies such as artificial intelligence.
To fend off regulators’ allegations, Google will have to persuade Judge Amit P. Mehta of the US District Court for the District of Columbia argues that Google’s decades of dominance is due to its superior product, not to abusive tactics.
The company is counting on Mr. Walker, 62, again. Since his appointment as Google’s general counsel in 2006, Mr. Walker has been the architect of the company’s legal strategy, overseeing the victory in a protracted courtroom showdown with rival Oracle and a case that could have left Google liable for users’ social media posts. Both legal battles went to the Supreme Court.
For Walker to defend an industry giant against regulators’ monopolistic claims is an odd turn in his long career. He grew up in Palo Alto, California, in the heart of Silicon Valley, and graduated from Harvard Law School and Stanford University. Beginning in 1990, he spent five formative years at the Department of Justice, working on the prosecution of Kevin Mitnick, once the nation’s most wanted hacker.
In 1997, Mr. Walker began a pivotal four-year tenure at leading Internet company Netscape as Deputy General Counsel, which led him to participate in historic antitrust proceedings against Microsoft. Windows has been accused of bundling its products together to kill off other web browsers, including Netscape’s Navigator.
In a recent interview, Mr. Walker said he still fights for the same thing, which is that consumers should have easy access to the services they like most. He discussed the issue in societal terms, describing it as a battle over how much innovation is allowed under US antitrust law and one that will have “important implications for the technology sector”.
He said Mr. Walker has dozens of in-house attorneys and hundreds of other employees helping with the antitrust case. Google has also appointed three law firms to take the lead in the lawsuit.
It will be taken over by John E. Schmidtlin, an experienced antitrust attorney and partner at the law firm Williams & Connolly, led Google’s courtroom defense. Wendy W. H. Wasmer, a partner at Wilson Sonsini Goodrich & Rosati, will also defend Google in court. They will have three weeks to make their case after the Justice Department and attorneys general from 35 states, the District of Columbia, Puerto Rico and Guam present theirs.
The company says it faces stiff competition from a number of alternative services where consumers can find products and information online, including Amazon and TikTok.
Google also argues that its partnerships with companies like Apple and Samsung are legal, and that consumers can change their default search engine in five steps or less on these phones. The company will also point out that when users open the Safari browser on an iPhone, they can see quick links to a variety of other services besides Google, including Microsoft’s Bing search engine and Wikipedia.
The search giant will also seek to undermine the premise of the lawsuit brought by the Department of Justice, alleging that the government used antitrust law in a new way to punish the company for its popularity.
“American law should focus on enhancing the benefits to consumers: this is lower price, this is more innovation, this is more opportunity,” Walker said. “If we move away from that and make it harder for companies to provide great goods and services to consumers, it will be bad for everyone.”
Both sides will debate whether the search market would be more competitive if Google did not have default search agreements, said Gregory Ruston, director of Stanford University’s Public Policy Program.
“Google will argue that Apple is not interested in developing a search engine,” Dr. Ruston said. “They search Siri and other things, but they’re not very good at it. The government will say, well, they could have done that or made a deal with Bing or another emerging search engine, and people probably would have done more searches with those.”
“In general, antitrust laws take a dim view of agreements between competitors to divide or not enter the market,” he added.
For nearly two decades, Google executives have relied on Mr. Walker to protect the company from high-stakes lawsuits. But sometimes, Mr. Walker also had to simply explain how the legal system worked. Harry Littman, a friend and former colleague of Mr. Walker at the Justice Department, told a story he shared at a meeting of U.S. attorneys several years ago.
Mr. Walker was in a meeting with Google’s founders, Larry Page and Sergey Brin, to discuss a series of lawsuits around the world, Littman said. One of the founders asked: Why don’t we have one judge in each state who can keep up with the speed of the Internet and oversee lawsuits against us?
“Mr. Walker was laughing about his job, and he had to explain to these very rational people why the law doesn’t always work in this rational way,” Mr. Littman said.
Despite what colleagues and friends describe as Mr. Walker’s character, his team could be known for its hardball tactics, legal opponents say. David Boies, who successfully sued Microsoft for the Department of Justice more than 20 years ago, said Google failed to produce documents, denied all responsibility and fought for every inch.
Mr. Boies is suing Google in two civil cases, including one that accuses the company of tracking users without their knowledge while they are in incognito mode in its web browser. He said he obtained sanctions against Google twiceincluding a fine of $1 million, for failure to provide relevant evidence.
“They hold the ground until it breaks,” he said. “They don’t bend.”
“Typical beer advocate. Future teen idol. Unapologetic tv practitioner. Music trailblazer.”