David Kesselman, founding partner of Kesselman Brantly Stockinger LLP, was recently quoted in the Law360 article, “Microsoft Case Looms Over DOJ’s Google Antitrust Action.” The article examines the landmark antitrust lawsuit the DOJ brought against Google and how a similar case against Microsoft 20 years ago could impact the court’s decision in the Google matter.
According to David Kesselman, Microsoft argued that its operating system and browser were part of a single platform programmed to work together, leading the court to have concerns over these technical contentions when analyzing the tying claims against Microsoft.
“It was all new and innovative and it wasn’t clear how consumer demand worked in those circumstances,” Kesselman said.In the case against Google, the DOJ is employing a more traditional approach about a big company weaponizing contracts to keep the competition out. “And that’s been happening since 1890,” Kesselman said. “The underlying conduct should be pretty familiar to most antitrust practitioners.”
He went on to say that it doesn’t seem like the DOJ would push to break up Google based on the conduct alleged in the complaint, but would rather accept some form of an agreement from Google to terminate the problematic contract terms.“The primary focus seems to be that they want these contract provisions to be modified or set aside to allow some of the rivals who have not been able to break through, to break through,” Kesselman said.The full Law360 article can be found here (subscription required).