Antitrust fix elusive as Google set to face remedies trial
Divesting Chrome, ending search engine agreements and increasing data access are some of the remedies proposed by the Justice Department to fix Google's monopoly in online search.
Google will soon face an antitrust remedies trial to determine a fix for what a court ruled was illegal monopolization of online search. While multiple resolutions have been proposed, finding the right balance remains a complex challenge.
That's according to experts who spoke during the Information Technology and Innovation Foundation's online panel discussion on Thursday about antitrust remedies in the Google case.
U.S. District Court Judge Amit Mehta ruled that Google is an illegal monopolist in August 2024, during the administration of former President Joe Biden. Following the decision, the U.S. Department of Justice proposed remedies such as potential divestiture of Google's Chrome browser and Android. Google plans to appeal Mehta's decision but will first face the antitrust remedies trial this month.
Part of the challenge facing the DOJ's proposals is that many of the remedies aren't tied specifically to Mehta's ruling, which focused largely on contracts Google had with companies like Apple and Mozilla to set the company's search engine as the default option, said panelist Benjamin Nagin, partner at Sidley Austin LLP. He said agreeing on fixes becomes more difficult "when you get into conduct that's not been found to be anticompetitive."
Adam Kovacevich, founder of the Chamber of Progress, agreed, noting that proposed remedies focused on eliminating Google's self-preferencing and divesting Chrome go "far beyond" Mehta's narrowly focused decision on Google's search contracts.
"What the Biden DOJ landed on with these remedies represented a pretty broad-scale attempt to re-engineer Google's business," he said.
Remedies in Google's antitrust case
Antitrust remedies typically take three main forms, said Diana Moss, director of competition policy at the Progressive Policy Institute.
Injunctive relief: A company is ordered to stop bad conduct.
Conduct remedies: A company is ordered to change how it operates and behaves.
Structural remedies: A company is ordered to divest parts of its business.
The DOJ's proposed remedies for Google include a mix of all three, she said. The structural component consists of a divestiture of Google's Chrome browser and potentially Android. The conduct remedies include opening data access and ending self-preferencing in its products. The injunctive relief involves stopping Google from entering into exclusionary search distribution contracts.
If the goal is to correct and address an illegal violation, restore competition to a market, consumers have to benefit from that.
Diana MossDirector of competition policy, Progressive Policy Institute
Moss argued that while a combination of approaches could be effective in restoring competition to online search, the eventual actions need to consider unintended consequences for consumers.
"If the goal is to correct and address an illegal violation, restore competition to a market, consumers have to benefit from that," Moss said. "There has to be demonstrable evidence that they will benefit from that. The more complex the remedy, the more difficult I think that is."
Herbert Hovenkamp, a law professor at the University of Pennsylvania Carey Law School, spoke during the event in favor of injunctive relief, particularly given the uncertainty of the market impact of more extreme remedies levied against Google. The DOJ will likely have a hard time making a case for measures like asking Google to divest Chrome, let alone its Android product, he added.
"If you want to obtain some kind of breakup or structural relief, you need to be able to show more, which is that the defendant's dominant position is largely a consequence of anticompetitive conduct and not of its own superior investment, efficiency and so on," Hovenkamp said.
Recent advancements in online search, including products offered by companies like OpenAI and Perplexity, will likely be presented as evidence of an innovative and competitive marketplace, Hovenkamp added.
Google proposed its own remedies, arguing that the DOJ's proposals go beyond the court's decision that focused on the vendor's search distribution agreements.
To fix this issue, Google proposed creating more flexibility in its agreements with partners. For example, those companies could have multiple default agreements across platforms and change the default search provider every 12 months. The company also proposed allowing device makers to preload other search engines onto Android phones.
Makenzie Holland is a senior news writer covering big tech and federal regulation. Prior to joining Informa TechTarget, she was a general assignment reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.
