According to multiple news reports, the Department of Justice has revived its antitrust investigation against Alphabet Inc. and Google LLC over their Google Maps service and is considering filing suit this year. Meanwhile, plaintiffs in a private action in California are hoping their first amended complaint survives another motion to dismiss. See previous post by Jonathan Rubin.
If filed, a suit would mark the DOJ’s third against Alphabet and Google in the agency’s campaign to police the market power of colossal players in ever-evolving technology markets. The two pending DOJ suits target Google’s advertising and online search businesses.
Politico reporter Josh Sisco offered these details in February: “DOJ officials have been meeting with Google’s competitors and customers … to decide who would be the best witnesses in any potential lawsuit challenging its dominant position in the market for digital maps and location information, according to three people with knowledge of the matter. That trove of data includes the location of businesses, parks, buildings and landmarks. More meetings are scheduled in the coming month, the people said.”
The House Judiciary Committee, in its 2020 report on competition in the technology sector, wrote that Google is “effectively forcing [developers] to choose whether they will use all of Google’s mapping services or none of them.”
As part of its investigation, the DOJ is also reportedly probing Google’s use of bundling Google Automotive Services for car manufacturers and how the company allegedly limits customers’ ability to mix products and services offered by Google’s competitors if they also use Google Maps. A third part of investigation is said to involve contract provisions that require customers, such as food delivery apps, to share data with Google collected from their apps.
Google continues to argue that its primary concern is user experience. Mixing and matching services and products from different developers could lead to errors and safety risks, it says. It also says it faces limitations on sharing data due to its licensing of some mapping data from third parties.
A private antitrust class action is pending in the Northern District of California filed by Big Dream Media, Getify Solutions, Inc., and Sprinter Supplier, LLC. The plaintiffs are suing on behalf of all companies engaged in digital advertising, app development, and e-commerce who rely on mapping applications. In November 2022 the court dismissed the complaint without prejudice for failing to sufficiently assert illegal tying. The plaintiffs filed an amended complaint in January; Google took aim at that version of the lawsuit in February.
In moving for dismissal, Google drafted a proposed order for Judge Jeffery S. White which says, among other things, that Google’s terms of service govern how customers may use or display Google content, but it does not stop Google customers from using a competitor’s mapping services.
The proposed order goes on to cite Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1082 (S.D. Cal. 2012), which rejected a tying claim against Facebook. Facebook prohibited its users from overlaying third-party software applications on the platform, but didn’t stop its users from using applications on other websites. Facebook “has the right to dictate the terms on which it will permit its users to take advantage of the Facebook social network,” Sambreel observed. Google urges Judge White to see that the Google Maps plaintiffs are making similarly deficient claims, and that they added nothing to the first amended complaint to address the weaknesses of the first.
Edited by Tom Hagy for MoginRubin LLP.