Said one attorney (off the record) who is involved in the case: “This trial will never kick off before 2027 because the ediscovery / discovery work involved is simply enormous. There remains substantial work to gather all the evidence we need”.
So for the legal technology crowd, it could be one hell of a ride.
5 December 2024 — Yes, today is “E-Discovery Day“, and given the incoming Trump Administration would like to “reorder” (read that as : “gut”) the litigation process in America (according to its “Project 2025“) at least the Brits might keep the whole thing going.
Google must face a £7 billion ($8.8 billion) claim in the UK over allegations it abused its search engine dominance. The UK’s Competition Appeal Tribunal (CAT) has granted permission for the claim to proceed after Google, among other things, protested that the allegations of abuse in relation to the iOS were “so weak that they ought to be struck out”.
The original complaint centers around Google shutting out competition for mobile search, resulting in higher prices for advertisers, which were allegedly passed on to consumers. According to consumer rights campaigner Nikki Stopford, who is bringing the claim on behalf of UK consumers, Android device makers that wanted access to Google’s Play Store had to accept its search service. The ad slinger also paid Apple billions to have Google Search as the default for the Safari browser in iOS.
Stopford is leading the collective proceedings (basically a UK style class action case under the Consumer Rights Act 2015) against Google. Legal analysts have noted that the £7 billion ($8.8 billion) figure is probably a conservative estimate but it could result in affected UK consumers receiving almost £100 ($125) each. The claim was brought on an opt-out basis. Our chat with an Arnold & Porter attorney indicated this will be “one hell of a test case, and a field day for discovery practitioners depending on what the court allows”.
One important point: Stopford emphasized (as have the attorneys we spoke with) that while having a dominant position in the market was not against the law, companies should not abuse that position. The position is Google has abused its dominance in search, essentially, and it’s done that through a number of commercial contracts that it has with Android manufacturers and Apple to make it the default search engine. What that then means is advertisers who want to advertise their products and services are left with little option but to advertise on Google, because most of our searches start there.
So according to Stopford, Google used its position to up prices paid by advertisers, resulting in higher costs to consumers:
“What we’re trying to achieve with this claim is essentially compensate consumers”.
If this all sounds a little bit familiar, it should. The U.S. Department of Justice recently filed a proposal that would regulate Google’s activities in the search market and force it to divest itself of the Chrome browser. Google is due to file its response in the coming weeks. But what it really all means is anybody’s guess, as our boss, Gregory Bufithis, pointed out in a recent post.
Stopford acknowledged the legal and regulatory actions being taken against Google in the US and elsewhere, but said:
“Whilst all of that regulator enforcement is great, and is challenging Google, and is trying to ensure that it behaves in a fair way, what it doesn’t do is compensate people who have lost out … the people that have spent more because of Google’s actions. And that’s really the point of difference in terms of what we’re trying to do with this claim”.
Legal analysts say the work required to gather evidence will be substantial, and there are already several law firms/legal technology vendors on the case. And still to be tried is the is the Collective Action capability in UK consumer law, and whether it is a powerful tool in terms of addressing often dominant abuses of behavior.
And they have their work cut out for them. In one press release about the UK case, a Google spokesperson said:
“We still believe this case is speculative and opportunistic – we will argue against it vigorously. People use Google because it is helpful; not because there are no alternatives”.
It is the same argument they have trotted out in the U.S. DoJ case. UK attorneys which read the U.S. briefs with great interest.
And to be fair, isn’t this just a failure of regulatory oversight? Isn’t this just one of many recent examples where regulatory oversight should have prevented an issue rather than letting it get too far. Quite often the damage is done and it is hardly possible to get it undone after being left unchecked for too long.
What other search engines are out there? A quick (Google) search reveals some names, but most consumers default to Google, just because it is there embedded in their devices. Why does it take an individual to take this action when it should have been the UK’s Competition and Markets Authority when it was doing all those Google *investigations* many years back.
Yep. Just a failing UK regulatory environment.
It will be interesting to see where this will end up. But the timescales are just far too long, which is one of the problems: Google’s market position is too entrenched already, and genAI is making the entire search market change as we speak.
