Last month, the American Antitrust Institute and three economists moved to file amicus briefs in favor of an economic model that quantifies what Google describes as “happiness”. AAI and the economists seek to support opinion evidence in antitrust litigation against Google, In re Google Play Store Antitrust Litig., No. 3:21-md-02981-JD (N.D. Cal.), pending before U.S. District Judge James Donato. You can read the amicus briefs here and here and Google’s opposition here.
The opinion evidence comes from a professor, Marc Rysman, who heads the Department of Economics at Boston University. Dr. Rysman created an economic model that the plaintiffs hope to use to quantify the losses they claim consumers sustained due to anticompetitive conduct by Google. The plaintiffs allege that Google misused its monopoly power in the market for apps using the Android operating system for smart phones and tablets. Google moved to exclude the Dr. Rysman’s opinions, and the amici join the plaintiffs in opposing Google’s motion.
The debate, according to Google, boils down to whether Dr. Rysman’s model measures injury to “property” under Section 4 of the Clayton Act or to mere “happiness”. 15 U.S.C. § 15(a). The plaintiffs say the model provides a reasonable estimate of the lower prices consumers would have paid for the apps in a “but-for world” that would have existed if Google had not thwarted development of better apps. Damages, plaintiffs assert, equal the difference between the apps’ lower prices in the but-for world (without Google’s anticompetitive conduct) and the higher actual prices consumers paid (in the less competitive actual world). Google contends that Dr. Rysman attempts to value consumers’ loss of “happiness” rather than of “property” and depends on “abstractions” that lack grounding in real-world observations.
Google’s position strikes me as cute if not twee. Everyone agrees that antitrust laws aim to prevent losses to innovation (e.g., more variety in goods and services) and to quality (greater durability, better functionality, more pleasing appearance, and the like) through injunctive relief. Google claims that antitrust laws don’t provide a damages remedy after the losses have come to pass because consumers who would have paid less in the but-for world (without anticompetitive conduct) lack a “property” interest in what amounts to keeping more of their money.
The idea of quantifying losses to innovation and quality has an unfamiliar feel. Damages experts usually focus on measuring the price effects of price-fixing. But economics and econometrics should enable damages experts to use their long-standing principles and tools to produce reasonable estimates of the dollar value of greater variety and higher quality.
While existing antitrust doctrine has treated demonstration of price effects as almost essential to liability and damages, Dr. Rysman’s model offers a way to quantify those effects in the but-for world, where anticompetitive conduct does not exist. If successful, that kind of innovation will have price effects of its own–on the value of antitrust claims. No wonder Google opposes it.
