Judge Mehta: Cowardly or Just Lazy? ⭐

John F. Kennedy once said of U.S. plans to travel to the moon that we do these things not because they are easy but because they are hard. But U.S. District Court Judge Amit Mehta has taken the opposite approach in U.S. v. Google.

Faced with a stockpile of evidence detailing several years of abuses by a convicted monopolist, he waffled for over a year before finally deciding to do absolutely nothing to halt any of its illegal behaviors. In choosing the easy way out, he hasn’t just undermined America’s antitrust authority, he’s become complicit in Google’s law breaking and violated the oaths he took when sworn in.

Given this, the U.S. Department of Justice shouldn’t just appeal this ridiculous decision. It should also seek to have Judge Mehta replaced by a more competent jurist and work to ensure that more of the penalties it recommended are enacted to prevent further abuses.

The ruling

I once observed of Microsoft CEO Satya Nadella that if one were to take the script from any of his speeches and ask Word to summarize it, the result would simply state, “This page intentionally left blank.” My point was that Nadella says little or nothing using as many words as possible. And I am having this experience again reading Judge Mehta’s remedy ruling. It’s 230 pages of absolute nonsense masquerading as a decision. In fact, it should be referred to as the judge’s indecision.

That this arrived after Mehta aggressively tore into Google in his initial ruling against the abusive monopolist makes this retreat all the more bizarre. The evidence is there, as is the truth. And Mehta, talking big during the trial, his initial ruling, and in later remedy hearings has revealed himself to be nothing more than a scared dog, all bark and no bite. Or maybe it’s just laziness. Overseeing a breakup of Google was apparently more time consuming than he could be bothered with.

This, to me, is the key failure of the (in)decision.

In his ruling against Google last year, Judge Mehta wrote that “Google has thwarted true competition by foreclosing its rivals from the most effective channels of search distribution. Google’s distribution agreements are exclusionary contracts that violate Section 2 [of the Sherman Act] because they ensure that half of all [online search] users in the United States will receive Google as the preloaded default on all Apple and Android devices, as well as cause additional anticompetitive harm. The agreements ‘clearly have a significant effect in preserving [Google’s] monopoly’.”

Given this, it was clear that Mehta would remove those channels of search distribution.

But he did not. Google Search can remain the preloaded default on all Apple and Android devices, which will continue to have a significant effect in preserving a monopoly that this same judge ruled was illegal.

The DOJ’s recommendation that Google be forced to divest itself of Chrome—and, should the abuses continue, of Android as well—may seem radical in some quarters. But this, too, was about removing an effective channel of search distribution. It’s easily comparable to Microsoft’s antitrust issues and concerns about the dominant operating system vendor bundling a web browser and forcing PC makers to not only use that browser by default but to also prevent them from entering into agreements with other browser makers.

But Mehta took the low road. He said that this recommendation was “overreach” by the DOJ despite the obvious benefits of a structural remedy when bundling a company’s products across multiple monopolies is so obvious a strategy. Oddly, the ruling even mentions a small but good example of how a monopolist abuses its dominance in multiple markets by making them artificially dependent on each other, as Microsoft did with Internet and Explore and Windows almost 30 years ago.

“Google Lens is a recent visual search capability built into Chrome.” Mehta writes. “Google Lens’s current integration in Chrome only works if Google Search is set as the default [search engine] in the browser.” Carrot, meet stick.

Mehta agrees that Chrome is “a particularly important search access point,” as it accounts for 20 percent of all searches in the U.S. He also agrees that divesting Chrome from Google would be less radical than the breakup ordered in U.S. v. Microsoft because it would not “eliminate the monopoly altogether.”

Given this, it was clear that Mehta would specifically remove this channel of search distribution, if not by divestiture then at least by some other means. Perhaps Chrome users would have to choose a search engine from a list on the first run. I know, crazy.

But he did not. Instead, Mehta said that divesting Chrome was “a poor fit” because he could not determine that Google’s anticompetitive acts with Chrome—including it paying Apple every year for placement—were “sufficiently attributable” to its success in search. Chrome is also used worldwide, and forcing Google to divest the browser would impact users outside the court’s jurisdiction.

“A Chrome divesture … would be incredibly messy and highly risky,” he writes in this week’s ruling. Chrome depends on Google for a host of administrative functions, such as finance, marketing, and human resources. It’s also deeply reliant on Google’s ‘hyperscale’ technical systems and infrastructure. Chrome relies on Google’s back-end systems and engineering personnel for, among other things, account sign-in and authentication, data storage and management at a global scale, and cybersecurity. And then there are the host of Google’s private APIs that Chrome is dependent upon and that are critical to its product performance and functionality … the court is highly skeptical that a Chrome divestiture would not come at the expense of substantial product degradation and a loss of consumer welfare.”

Almost none of these concerns should factor into a decision about Chrome, just as the business impact on Mozilla or Apple should not factor into any decision about Google paying them and others enormous sums of money every year. The decision is about Google and how to rectify its illegal, anticompetitive behaviors. Or, it should be. Mehta’s decision doesn’t meet this bar. Consider U.S. v. Microsoft, in which Microsoft was ordered to split up. Windows and Office were, and are, sold outside the U.S. too. Microsoft’s illegal agreements with PC makers occurred outside the U.S. too. So what? It’s breaking the law in the U.S. You do something about that.

Unless you’re Judge Mehta. Who now bears the unique distinction of determining that one of the most abusive monopolies of our generation is operating illegally and then subsequently ruling to do absolutely nothing to fix the problem and halt the illegal business practices.

The reactions

No one is surprised that the companies allied against Google were disappointed in this ruling. But you may be surprised to know that Google is as well. One imagines there was much celebrating in Silicon Valley when they learned that they were about to get off with even less than a slap on the wrist. But Google’s public posturing is quite different.

“The Court has imposed limits on how we distribute Google services, and will require us to share Search data with rivals,” a Google statement notes. “We have concerns about how these requirements will impact our users and their privacy, and we’re reviewing the decision closely.”

Google is already appealing the initial verdict. And no one will be surprised to hear that the companies most directly impacted by Google’s illegal business practices are not happy about this ruling. So this one quote will suffice.

“We do not believe the remedies ordered by the court will force the changes necessary to adequately address Google’s illegal behavior,” DuckDuckGo CEO Gabriel Weinberg says. “Google will still be allowed to continue to use its monopoly to hold back competitors, including in AI search. As a result, consumers will continue to suffer. We believe Congress should now step in to swiftly make Google do the thing it fears the most: compete on a level playing field.”

And then there is a cottage industry of experts in legal and competitive matters who seem to only come out of the woodwork in these moments.

“Despite finding last year that Google illegally maintained a monopoly over search and search advertising, Judge Amit Mehta today declined to follow the law and terminate the monopoly,” the American Economic Liberties Project writes. “He left Google in control over Chrome, Android, and its vast data advantage, and even refused to ban Google’s multibillion-dollar search default deal. He declined to prevent Google from leveraging YouTube, Gemini, and Android to self-preference its own services.”

“You don’t find someone guilty of robbing a bank and then sentence him to writing a thank you note for the loot,” American Economic Liberties Project executive director Nidhi Hegde added. “Similarly, you don’t find Google liable for monopolization and then write a remedy that lets it protect its monopoly. This feckless remedy to the most storied case of monopolization of the past quarter century is a complete failure of his duty and must be appealed.”

“We are disappointed in today’s decision,” News/Media Alliance president and CEO Danielle Coffey opined. “Judge Mehta’s ruling did not address the ability of Google to further cement its market power through its AI offerings. Google is forcing content creators to give away their content to be used in its AI offerings in order to remain in Google Search. This is a no-win scenario that will continue to harm publishers that invest in high-quality, journalistic and creative content. Giving publishers the ability to opt out of Google’s AI is critical to preserving an open internet free from anti-competitive behavior, and preserving a fair playing field for companies across a variety of industries. This ruling is not the end, but it is a missed opportunity.”

“While Judge Amit Mehta’s decision blocks some of Google’s predatory practices, it fails to meet this historic moment and shows that his decision was made based on speculative arguments about generative AI, in which Google, because of its interlocking monopolies and distribution advantage, is already a dominant player,” Tech Oversight Project executive director Sacha Haworth says. “Search is one of the largest avenues for future AI queries, and it’s crystal clear that rather than doing the hard thing, Judge Mehta was far more willing to let Google continue bending the internet and our economy to its will than enforcing the law, which is designed to create a level playing field that benefits the American people and innovative, new companies.”

The next steps

This case isn’t over per se, and Google faces other high-profile antitrust cases in the U.S. and elsewhere. But this is a setback of surprising dimensions, and the most shocking bit is that it came from a judge who has been nothing but hyper-critical of Google and its illegal business practices to date. So this doesn’t add up.

We’ll see what happens with the various appeals that will no doubt come out of this. For now, it’s difficult to see this as anything other than a gross miscarriage of justice, and a missed opportunity for the United States to assert itself again as a bastion of fairness in an age in which it is anything but.

Sad.