Kinderstart v. Google Antitrust Coverage

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Joshua D. Wright, Kinderstart v. Google Antitrust Coverage, Truth on the Market (July 10, 2006), has filed a suit against Google which includes an antitrust claim based on the theory that Google changed its ranking algorithm in a manner that caused Kinderstart’s ranking to drop and revenues to plunge. HT: Antitrust Review. Eric Goldman has got this covered, including links to the complaint, analysis, Google’s motion to dismiss and related briefs, and the oral argument transcripts. The briefs and transcripts (antitrust arguments by Jonathan Jacobson at Wilson Sonsini) are well worth reading on the antitrust points.

The crux of the antitrust defense is invoke Trinko for the propositions that the ranking algorithm is not exclusionary conduct under Section 2 of the Sherman Act and that Google has no duty to assist its rivals. This seems like a home run to me after reading the briefs and the complaint (but not the amended complaint). Labeling conduct “anticompetitive” or “exclusionary” is simply not enough under antitrust law to render that conduct actionable under Section 2. And it does not appear that the Kinderstart claim does much more than that. The conduct must be capable of harming competition. Kinderstart’s essential facilities argument is almost certain to fail at the summary judgment stage, if not earlier, given the state of search engine competition. I do not suspect that the attempted monopolization claim will survive much longer.
UPDATE: Rebecca Tushnet has some thoughts on the false advertising claims and Google’s anti-SLAPP motion.