Washington, D.C. —  Google’s CEO Sundar Pichai, among the most high-profile witnesses in the landmark ten-week trial taking on Google’s $1.7 trillion search monopoly, is expected to testify in person in court on Monday. Here’s what we know and what we might expect from his testimony.

Pichai hasn’t yet entered the courtroom, but exhibits involving Pichai have shaped multiple issues in the trial already. In one such email dating to 2007, before he became CEO, Pichai advised Joan Braddi, Google’s long-time head of product partnerships, regarding the negotiations that would result in Google’s lucrative $18 billion (2021 est.) exclusive search agreement with Apple. In that 2007 email (Exhibit No. UPX0552), Pichai wrote:

“I know we are insisting on default but at the same time I think we should encourage [Apple] to have Yahoo as a choice in the pull down or some other easy option. I don’t think it is a good user experience, nor are the optics good for us to be the only provider in the browser.”

The email speaks to Pichai’s personal involvement and deep understanding of the negotiations surrounding Google’s search agreements, and his awareness – at the time of those negotiations – that the exclusive default agreements were neither beneficial to consumers, nor beneficial “optically” for Google. Expect counsel for the Department of Justice to press Pichai on what he meant about the bad “optics” of Google being the exclusive search provider on Apple devices.

Google is also facing a Motion for Sanctions filed by the Department of Justice based upon Google’s deletion of potentially relevant records while the case was pending, when those records were subject to a litigation hold. This case was filed in October 2020, but on October 12, 2021, Pichai wrote to colleagues, “also can we change the setting of this group to history off,” in reference to a chat feature that deletes records 24 hours after they are sent. Nine seconds later, Pichai attempted to delete the incriminating message:

[Image taken from the slide deck accompanying DOJ’s Opening Statement, beginning at slide 77.]

In the Department of Justice’s Opening Statement, lead counsel Kenneth M. Dintzer argued to the Court, “They turned history off, Your Honor, so that they could rewrite it here in this courtroom.”

Judge Amit P. Mehta, who is overseeing the trial, has yet to rule on the DOJ’s motion for sanctions. But Google has been sanctioned over this exact same issue by Judge James Donato of the Northern District Court of California, who is overseeing a separate class action lawsuit against Google’s Play Store monopoly. In his Order, Donato wrote that Google intentionally engaged at all levels in a scheme to “hide the ball” with respect to its chat records. In the underlying motion for sanctions in that case, plaintiffs argued, “the newly produced chats reveal a companywide culture of concealment coming from the very top, including CEO Sundar Pichai”

Expect the Department of Justice to press Pichai on the scope of the records that were subject to automatic deletion during the pendency of the trial, in violation of a mandatory hold on all records pertaining to the litigation.

Google CEO Sundar Pichai is being called as part of Google’s rebuttal case, following the conclusion of the government’s case last week. Below is a list of the key arguments Google has made so far and how they’ve been refuted by the DOJ and State’s lawyers in the first seven weeks of this trial:

Google’s Argument: Google does not need exclusive search agreements to command its current 90% share of the market. Consumers choose Google because they are the best search engine.

DOJ and States’ case: A series of experts testified to the lack of choice users have. Search startups and companies also testified that they tried to compete with Google with unique innovative alternatives but couldn’t because of Google’s exclusive agreements with mobile and device companies which gave them a dominance in scale of users and data.

• Testimony: Sridhar Ramaswamy, ex-Google executive and founder of Neeva, a search engine startup focused on user privacy, testified that Google abused its market share to create an illegal monopoly and block innovative competitors from succeeding. A leader and pioneer in AI-integrated search, Neeva’s story illustrated how Google’s default search agreements create insurmountable barriers to entry, thereby harming competition and depriving consumers of choice in the relevant market for general search engines.
• Testimony: Expedia’s former chief operating officer, Jeff Hurst, claimed the company’s ad fees to Google ballooned 10 times over a five-year period. Despite advertising costs rocketing from $21 million in 2015 to $290 million in 2019, Expedia’s traffic from Google did not increase. Hurst suggested this was because Google began sharing its own flight and hotel information in its search results pages. He told the court: “We had spent a heck of a lot of money on Google for no incremental business value.” He added, “With Google, you are more listening to them tell you what to do as opposed to [a real partnership].”
• Evidence exhibited in trial: Old memo from Google executive Michael Rozak that said, “Search advertising is one of the world’s greatest business models ever created … there are certainly illicit businesses (cigarettes or drugs) that could rival these economics.”
• Evidence exhibited in trial: 2007 emails from Google’s Sundar Pichai show Google’s own doubts about their products. “I don’t think it is a good user experience.”

Google’s Argument: Scale doesn’t matter.

DOJ and State case: Scale is crucial for competition, innovation and product development. Everyone in tech knows this. It’s an industry fact. Google wouldn’t have been able to scale by entering into its exclusive default agreements with PC companies if the US had not taken Microsoft’s monopoly in the PC market in 2001 to court, forcing it to change its practices. Google has benefited from access to immense amounts of search data, and it has exploited its power to hike prices for advertisers and create barriers to new rivals.

• Testimony: Microsoft CEO Satya Nadella said, “Share and scale is quality. You need to get to high shares in order to have a high-quality product long term.”
• Testimony: Mikhail Parakhin,CEO of Advertising and Web Services at Microsoft, explained that fixing errors in business hours on Google or Bing requires similar effort. However, due to Google’s higher user traffic, businesses are more inclined to update their hours on Google rather than on Bing or other search engines. Parakhin claimed this contributes to Google’s superior quality compared to other search engines.
• Testimony: Arjan Dijk, ex-Googler and Chief Marketing Officer at Bookings.com, referred to Google as a “benevolent dictatorship.” Before joining Booking.com, Dijk worked at Google for 11 years, persuading companies to use its ads platforms. “If you want to be found on the web, there is one door that is controlled by Google and we need to use that door… We have to use Google.”
• Testimony: Joshua Lowcock, Global Chief Media Officer at media agency Universal McCann, disputed Google’s argument that search ads have viable competition. Lowcock testified that search ads are “mandatory” for his clients and irreplaceable by other types of digital ad buys, even if the price of ads increases by as much as 5% because of their scale of influence.
• Testimony: Google VP of Ads Jerry Dischler said that Google has raised its ad auction prices by 5%, and that Google could raise prices as much as 10% to boost revenue. Google’s ability to raise prices on advertisers without losing market share is an indicator of its monopoly power in the government’s proposed relevant market.

Google’s Argument: Our $10-20 billion yearly Search “default” agreements mean nothing, but don’t share the exact amount of these agreements because it could put our business at risk.

DOJ and States case: Any company spending or receiving $10-20 billion for something means something big. (The actual value of Google’s agreement with Apple has been redacted from court documents, according to analysts at Bernstein, Google most recently paid Apple between $18B and $20B per year in a revenue-sharing agreement to maintain default search status on the iPhone.)

• Testimony: Google’s own Chief Economist Hal Varian, openly championed the “power of defaults” at Google in internal memos, presentations and emails over the past quarter century. Varian was questioned with evidence that Google’s own executives considered “general search” to be a relevant market for assessing Google’s monopoly power, and that Google itself calculated its share of general search on a monthly basis.
• Testimony: Former Google employee Christopher Barton admitted several times that getting exclusive default status from mobile carriers and manufacturers was important, underscoring Google’s preferred strategy of barring access to rivals rather than competing on the merits.
• Testimony:  Regarding the Google-Apple default agreement, Microsoft CEO Satya Nadella testified, “Apple and Google have a fantastic oligopolistic arrangement.”
• Testimony: “The power of the defaults is very significant,” said Michael Whinston, an economist and professor at the Massachusetts Institute of Technology.“When you see Google paying billions and billions and billions, there has to be a reason. That’s the first thing that, as an economist, slaps me in the face.”

Google’s Argument: Default’s don’t matter. Users can easily change search defaults in  a few clicks.

DOJ and States case: It isn’t easy to change default search away from Google on devices and experts back this up.

• Testimony: Caltech Professor Antonio Rangel, a behavioral economist, explained the power of defaults, and why internet users are unlikely to switch away from them. He cited an example where switching to Bing from Google on an Android 12 phone required 10 steps, describing it as “considerable choice friction.” He said, search engine defaults generate “sizable and robust bias towards the default.” Rangel also testified to the power of Google’s brand, which has become synonymous with internet search by virtue of its monopoly power, and how that has created an additional barrier to users who may desire an alternative to Google’s search engine.
• Testimony: Microsoft CEO Satya Nadella  said, “the entire notion that people have choice is complete bogus…it’s not the open web, it’s the Google web.” He added consumers don’t switch due to deeply ingrained habits.
• Testimony: DuckDuckGo founder and CEO Gabriel Weinberg said Search engine users do not have a choice. The CEO of the privacy-focused search engine and internet browser company, Gabriel Weinberg, testified that his company had attempted to negotiate deals to become the default search engine on some products. However, he alleged he was unsuccessful as Google already had deals in place. He told the court that changing a default search engine is “way harder than it needs to be. If you switch some of these defaults eventually you’re just going to be switched back to Google if you do nothing.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.