The companies that have complained about Google — which were not identified by the people familiar with the meetings — have met with Scott A. Scheele, chief of the Justice Department antitrust division’s telecommunications and media enforcement section. If the department decided to pursue a case against Google, it would not happen until after the FTC makes a final decision on its case, and a different section at the department might take the lead.
Such a case probably would take months if not years to develop. Though the FTC has extensive documentation from its investigation, the antitrust division at the Justice Department has an interim head, complicating such a major initiative. It also could prove complex to pursue allegations of search bias if the FTC decides not to act on them.
Law professor Geoffrey A. Manne, who has been critical of the antitrust claims against Google, said it would be natural for companies frustrated by the FTC to go “forum shopping” in favor of a different potential outcome. Reports of the meetings with the Justice Department could increase pressure on the FTC to act, but Manne said that would be unlikely to change the outcome of the case, which has proceeded amid an unusual level of publicity because it pits some of the world’s most prominent technology companies against each other.
“I can’t image any agency having more incentives to bring that case if it could,” said Manne, executive director of the International Center for Law and Economics, which receives funding from Google.
The Justice Department has investigated Google several times on antitrust issues. Last year, it approved Google’s takeover of a provider of travel search software after getting assurances that the software would be made available to other travel companies through licensing deals. In 2008, the department blocked a proposed alliance between Google and Yahoo out of concern that it would lead to a monopoly within the search market.
Several state attorneys general and the European Union also are investigating Google on allegations of search bias.
Also Wednesday, the FTC filed a court brief reiterating its opposition to allowing companies to use what are called “standards-essential patents” to block other companies from bringing products to market. Google, through its Motorola Mobility unit, sued Apple to keep it from selling iPhones and iPads, arguing that they infringed on patented technology.
Many critics have said the move by Google violated the spirit of a patent process intended to encourage companies to share standards in ways that help consumers easily use products from a variety of manufacturers. Google’s legal move against Apple is among the issues the FTC is reviewing in its antitrust investigation and probably will lead to a concession in which Google promises to not use standards-essential patents in this way, say those familiar with talks between the FTC and the company.