Google has won a potentially significant legal victory in an Ohio case that involved antitrust claims and may portend victory in other similar cases where private litigants have asserted antitrust violations against Google. The case, which we’ve written about before is Google v. myTriggers.com, originally filed in late 2009.
The short version of the underlying facts is as follows:
- Shopping site myTriggers spent lots of money driving traffic with AdWords
- myTriggers’ quality score changed and it had to start paying more for traffic
- The company racked up a roughly $300K debt to Google, which Google later sued to collect
Rather than deal with the matter of the debt directly myTriggers sued Google claiming violations of Ohio state law based on a statute called the Valentine Act, modeled on the federal Sherman Antitrust Act. The central claim by myTriggers was that Google used “anti-competitive restrictions” to block competition in the paid-search market and that it suffered harm as a result.
Interestingly, Columbus Ohio-based myTriggers was represented by three law firms, among them Cadwalader, Wickersham & Taft LLP, a Washington, DC-based firm that is “Microsoft’s chief outside antitrust counsel” according to the Wall Street Journal (WSJ).
In fact Google sees the myTriggers case, among others, as being orchestrated by Microsoft as an attempt to gain access to ammunition for a broader antitrust-based attack on Google. The company is quoted in the WSJ article arguing the myTriggers case is proxy effort by Microsoft:
In March 2010, a Google spokesman told The Wall Street Journal, “It’s become clear that our competitors are scouring court dockets around the world looking for complaints against Google into which they can inject themselves, learn more about our business practices, and use that information to develop a broader antitrust complaint against us.”
In granting Google’s motion to dismiss the myTriggers claims the Ohio court said that myTriggers could not show a broader anti-competitive impact from Google’s actions. The company was only able to show harm to itself and not competition more generally. This was insufficient to plead a case based on antitrust:
To prove antitrust injury, the key inquiry is whether competition — not necessarily an competitor — suffered as a result of the challenged business practice.
This “private harm” type of allegation is at the center of many of the other antitrust claims against Google in the US and Europe. Clearly this case won’t have any impact on European courts or regulators. But it suggests that absent a broader finding of competitive harm to the marketplace Google will be able to successfully defend itself against other litigants on the same basis.
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