Is Big Tech about to face its day in the highest court of the land? Google’s recent petition to the Supreme Court in the Epic v. Google case has set the stage for a legal showdown that could reshape antitrust law as we know it. After the Ninth Circuit upheld a series of harsh remedies against Google, the tech giant is now asking the Supreme Court to weigh in on critical questions that go far beyond this single case. But here’s where it gets controversial: Google argues that the legal standards applied in both Epic v. Google and the concurrent DOJ v. Google search case were fundamentally flawed, potentially setting a dangerous precedent for future antitrust litigation. And this is the part most people miss—the outcome of this case could redefine how courts evaluate anticompetitive behavior and craft remedies, with massive implications for the tech industry and the American economy.
At the heart of Google’s petition are two key issues. First, what is the correct legal standard for determining whether revenue-sharing, preinstallation, and distribution agreements are anticompetitive? Google contends that the Ninth Circuit misapplied the rule of reason, a three-step test established by the Supreme Court in cases like NCAA v. Alston. Under this test, a plaintiff must first prove anticompetitive harm, then the defendant must justify its practices with procompetitive benefits, and finally, the plaintiff must show that those benefits could have been achieved through less restrictive means. However, Google argues that the court skipped the third step, instead directly balancing harms against benefits—a move typically reserved for cases involving contractual tying, not intrabrand restrictions like those at issue here. This subtle but significant error, Google claims, could lead to overbroad antitrust liability.
But here’s the kicker: a similar mistake appears in Judge Mehta’s decision in the DOJ v. Google search case. In that case, Judge Mehta applied a four-step rule of reason, which is inconsistent with the U.S. v. Microsoft standard he cited. This standard does not allow for discounting procompetitive justifications based on the existence of less restrictive alternatives. By conflating these tests, Google argues, both courts risk creating legal confusion and chilling legitimate business practices. Isn’t it worth asking whether these errors could undermine the very purpose of antitrust law—to protect competition, not competitors?
The second major issue in Google’s petition is the catalog sharing remedy imposed by the Ninth Circuit, which requires Google to give third-party app stores access to its extensive app catalog. Google argues that this remedy goes beyond the scope of proper antitrust relief. While antitrust remedies are meant to terminate illegal monopolization, undo the fruits of violations, and prevent future harm, the catalog sharing remedy does something different: it strips Google of a key network advantage—its larger app catalog—without distinguishing between anticompetitive and procompetitive conduct. Is it fair to punish a company for success achieved through legitimate means?
This error is echoed in Judge Mehta’s data sharing remedies in the search case, which aim to deny Google the “fruits” of its alleged anticompetitive conduct—namely, its scale. However, neither the Ninth Circuit nor Judge Mehta identified which specific fruits were anticompetitive, instead relying on a “reasonable method” standard that the Supreme Court has reserved for different types of remedies. This lack of precision, Google argues, sets a dangerous precedent for future cases.
So, what’s at stake here? The Supreme Court rarely takes antitrust cases, but Epic v. Google presents a unique opportunity to provide much-needed clarity in two critical areas: the application of the rule of reason and the scrutiny of affirmative obligation remedies. By addressing these issues, the Court could prevent legal confusion and establish a framework for lower courts to follow in the wave of antitrust cases against Big Tech. But here’s the controversial question: Are we risking overregulation by applying these remedies without clear distinctions between anticompetitive and procompetitive behavior? Weigh in below—do you think Google’s arguments hold water, or is this just another attempt by Big Tech to evade accountability?
