Introduction to Our Research on Antitrust Cases

Why Now?

We conducted a national survey on antitrust cases focusing on the recent Federal Trade Commission (FTC) and Department of Justice (DOJ) cases against Facebook and Google, respectively. Though those cases were our focus, the reasons for conducting the survey goes beyond our interest in these lawsuits. Given the cataclysmic events of 2020, it’s important to get an understanding of the historical moment we’re now in and forecast what’s ahead. The broad national scope of this survey makes our findings useful for understanding the attitudinal landscape that is likely to shape many types of civil cases and especially those in the technology sector.

Segments of the electorate are polarized and entrenched in their worldviews. The seams of democracy are being stretched as never before. Jurors come to trials with these worldviews intact. Our focus on tech companies, and the pending antitrust against two of the biggest companies in the tech industry, gives us a way of understanding attitudes beyond those two cases.

Our Experience with Antitrust Cases in the Tech Industry

We recognize the importance of understanding attitudes at this juncture in personal computing and digital markets. Consultants at our firm have worked on some of the largest antitrust cases in the late 20th and early 21st centuries. One of our firm’s founding members was involved in antitrust cases in the 1980s against IBM, as the computer and technology markets were just beginning to develop. Other Bonora Rountree members were involved in antitrust cases regarding Microsoft’s software bundling practices in the early 2000’s. The frameworks of antitrust law were developed in the eras of oil and railroad monopolies, but we’re accustomed to wrestling with how jurors view the frameworks of antitrust law when applied to technology companies and digital markets. Our experiences with technology, digital markets, and antitrust give us insights to assist our clients through the new era of antitrust litigation in the tech sphere.

Two Sides of the Debate

When looking at antitrust cases in digital markets, we see two competing sides of the debate. On one side, we see people who believe that these large tech companies were the first to innovate and should therefore be rewarded for that innovation. The fact that the emergence of technology markets happened within such a short timespan lends itself to the belief by many that innovation is the source of market dominance. Facebook was launched at Harvard in 2004, its marketplace platform was launched in 2007, and it went public in 2012; from genesis to initial public offering occurred within an 8-year period. Google started as “Project Backrub” at Stanford University in 1996, launched Google Adwords in October 2000, and went public in 2004; again, all within an 8-year period. These tech companies’ products and services have altered everyday life for consumers. This reality leads people to think that these companies have earned the spoils of their achievements and should not be punished for their successes.  

The other side of the debate looks at these companies through the lens of economic and geographic inequality and private control over the public digital town square. These critiques of tech companies cross the political spectrum, with progressive Democrats like Bernie Sanders emphasizing big-tech’s contributions to economic inequality, and conservative “stop-the-steal” Republicans like Josh Hawley criticizing tech companies for concentrating power and limiting free speech.

In Justice Clarence Thomas’s concurring opinion in Biden v. Knight First Amendment Institute — which dismissed as moot the question of whether the President of the United States could legally block users from responding to his account — Justice Thomas questioned whether a President’s Twitter account could be considered “a public forum when a private company has unrestricted authority to do away with it.” Justice Thomas argued that digital platforms “provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.”  He questioned whether immunity should continue to be extended to digital platforms, suggesting instead that common carrier and public accommodations legal frameworks provide a better way of regulating digital platforms, especially those platforms that have substantial market power, like Google and Facebook.  

What was striking to us while preparing this survey was the overlap of mainstream and conservative media critiques of technology companies. The “too big to fail” mantra of the 2008-2010 economic downturn has given way to a “too big to avoid” behemoth of big tech. Many individuals from across the political spectrum see the mass collection of personal data as an unchecked hazard with potentially harmful consequences for consumers. The companies’ wealth serves as a metric for their size. The more a company is worth, the bigger threat they pose to the rights of consumers and to democracy. People on this side of the debate want some type of government regulation on the business practices of these companies, even if that regulation is minimal.

Our Findings

Our survey was a comprehensive exploration of experiences and attitudes that are often relevant for jury selection in civil and criminal cases. We will report on those findings in subsequent posts. Below are links to our findings from our antitrust survey, focusing on the cases against Facebook and Google: