Genius or Chaos: The “Big Tech” Antitrust Cases as a Window into the Complex Procedural Aspects of U.S. Antitrust Law

The antitrust cases filed in the United States in 2020 and in 2023 against Google and Facebook (now Meta Platforms, Inc.) have attracted a lot of media attention, moving antitrust from the back pages of the business section to the front page of newspapers nationwide and internationally as well. While the surviving cases will not go to trial until late 2023 at the earliest, there will be no shortage of scholarly analysis of the merits and demerits of the cases or their chances for success between now and then.

We wish to focus on these cases for a different reason. Specifically, they provide a timely and rich “real-world” blackboard for pointing out the extraordinarily complex and rich procedural aspects of antitrust law in the United States. While some readers may be generally familiar with many of the observations we will make, it is still a rare opportunity to see all these procedural aspects of U.S. antitrust law so prominently on display in the context of one segment of the economy (often referred to as “big tech”).

To recap recent events, in Part I, we provide a synopsis of the recent big tech antitrust cases against Google and Facebook. In Part II, we discuss how federal and state antitrust enforcers operate. In Part III, we discuss civil procedure concepts in the context of antitrust enforcement actions. In Part IV, we explore the process for joint investigations among agencies and at the state and federal levels. In Part V, we discuss the efficacy of state involvement in nationwide antitrust litigation. Finally, in Part VI, we discuss the utility of having two federal agencies oversee antitrust enforcement. We use the cases against Google and Facebook as mechanisms to discuss the concepts we explore in Parts II through VI.

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