When the government launched an antitrust investigation into Google, Kent Walker, one of the company’s top lawyers, said the solution wasn’t a charm offensive. All Google had to do was explain how its business worked.
It was 2009 and the Federal Trade Commission was investigating whether Google had manipulated the tech markets in its favor. Mr. Walker’s plan worked. The company agreed to some changes in small business practices in a 2013 settlement and maintained its search engine dominance for another decade.
Now Google and its parent company Alphabet are facing their biggest legal challenge. They are preparing to face off in federal court next week against the Justice Department and a number of states that claim the tech giant illegally abused its monopoly power to keep its search engine at the top.
The Justice Department has argued that Google illegally used agreements with phone makers like Apple and Samsung and Internet browsers like Mozilla to act as the default search engine for their users, preventing smaller rivals from gaining access to it.
The court battle – the most important antitrust case since the Justice Department’s crackdown on Microsoft 25 years ago – strikes at the heart of Alphabet’s $1.7 trillion empire and could strip power and influence from the world’s most successful Internet company.
If Google loses and a judge then approves remedies, the company could eventually be forced into a restructuring and face huge fines and a ban on search distribution deals. That would lead to fewer users, lower profits, and perhaps even limits Google’s ability to innovate with new technologies like artificial intelligence.
To fend off regulators’ claims, Google must convince Judge Amit P. Mehta of the U.S. District Court for the District of Columbia that Google’s decades-long dominance is due to its superior product and not abusive tactics.
The company is once again counting on Mr. Walker, 62. Since being hired as Google’s general counsel in 2006, Mr. Walker has been an architect of the company’s legal strategy, overseeing a victory in a protracted court battle with rival Oracle as well as a case that Google won for the Social media posts by users could have made them liable. Both legal disputes went to the Supreme Court.
Mr. Walker’s defense of an industry giant against the monopoly claims of regulators is a strange turn in his long career. He grew up in Palo Alto, California, in the heart of Silicon Valley, and graduated from Harvard and Stanford Law Schools. Beginning in 1990, he spent five formative years at the Justice Department, where he worked on the prosecution of Kevin Mitnick, once the country’s most wanted hacker.
In 1997, Mr. Walker began a pivotal four-year tenure at the pioneering Internet company Netscape as deputy general counsel, which brought him into the landmark antitrust case against Microsoft. The Windows company has been accused of bundling its products to wipe out other web browsers, including Netscape’s Navigator.
In a recent interview, Mr. Walker argued that he was still fighting for the same thing – that consumers should have easy access to the services they like most. He discussed the case from a societal perspective, calling it a fight over how much innovation is allowed under American antitrust law and a fight that will have a “significant impact on the technology sector.”
Mr. Walker has dozens of in-house lawyers and hundreds of other employees helping with the antitrust case, he said. Google has also hired three law firms to lead the litigation.
John E. Schmidtlein, a veteran antitrust attorney and partner at the law firm Williams & Connolly, will lead Google’s defense in court. Wendy WH Waszmer, partner at Wilson Sonsini Goodrich & Rosati, will also defend Google in court. They 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 make their arguments.
The company claims 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 legitimate and that consumers can change their default search engine on those phones in five steps or less. The company also notes that when users open a 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 Justice Department’s lawsuit by claiming the government used antitrust law in novel ways to punish the company because of its popularity.
“American law should be about promoting benefits for consumers: That’s lower prices, that’s more innovation, that’s more choice,” Mr. Walker said. “If we move away from that and make it harder for companies to provide great goods and services to consumers, that will be bad for everyone.”
Gregory Rosston, public policy program director at Stanford, said both sides would argue about whether the search market would be more competitive if Google didn’t have standard search agreements.
“Google will argue that Apple had no interest in developing a search engine,” said Dr. Rosston. “They do search in Siri and other things, but they’re not very good at it. The government will say, “Well, they could have done it, or they could have done a deal with Bing or some other start-up search engine, and maybe people would have done more searches with that.”
“In general, antitrust laws view agreements between competitors to split up or not enter a market negatively,” he added.
For nearly two decades, Google executives have relied on Mr. Walker to protect the company from high-risk litigation. But sometimes Mr. Walker simply had to explain how the legal system works. Harry Litman, a friend and former colleague of Mr. Walker’s at the Justice Department, recounted a story he told at a meeting for U.S. attorneys several years ago.
Mr. Walker was in a meeting with Google co-founders Larry Page and Sergey Brin, discussing a spate of lawsuits around the world, Mr. Litman said. One of the co-founders asked: Why can’t we have a single judge in every country who stays up to date on the Internet and monitors lawsuits against us?
Mr. Walker “laughed at his job of having to explain to these extremely rational people why the law doesn’t always work so rationally,” Mr. Litman said.
Despite what colleagues and friends describe as Mr. Walker’s Boy Scout persona, his team can be known for its tough tactics, legal opponents say. David Boies, who successfully sued Microsoft on behalf of the Justice Department more than 20 years ago, said Google failed to produce documents, denied liability and fought for every inch.
Mr. Boies is suing Google in two civil cases, including one that accuses the company of tracking users in its web browser’s incognito mode without their knowledge. He said he had received sanctions against Google twice, including a million-dollar fine for failing to provide relevant evidence.
“They hold the ground until it collapses,” he said. “They don’t bend.”