DOJ’s Search for an Antitrust Remedy Against Google

Sean Heather
Senior Vice President, International Regulatory Affairs & Antitrust, U.S. Chamber of Commerce

Published

October 10, 2024

On October 20, 2020, the Department of Justice and a number of states filed an antitrust lawsuit that challenged Google’s practices in the search and search advertising markets. Earlier this week, on October 8, 2024, DOJ filed a proposed “Remedies Framework” that outlines a number of possible remedies that DOJ may ask the court to impose, none of them concrete, and many vastly disproportionate to the competitive conduct that the court found problematic.

So now, after four years of litigation and tens of millions in taxpayer dollars, neither the court, the public, nor Google itself knows what relief DOJ wants from its suit.

Let's get real! DOJ should know what it wants. It should have known what it wants before it filed its lawsuit. This is because the DOJ is bound by an Executive Order that it actively worked to ignored.

Executive Order 12988 – Civil Justice Reform directs agencies to attempt to settle lawsuits against private parties as a means of avoiding costly litigation. In this and other cases, however, the DOJ and the Federal Trade Commission have refused to engage in good-faith settlement talks.

By refusing to negotiate or to identify potential remedies, the agencies are imposing real costs on the parties, the taxpayers, and the U.S. economy itself. Had they attempted to reach a settlement, the DOJ would know the remedy they want the court to impose.

As the EO directs, before an agency files suit and certainly after four years of litigation, the agency should tell a defendant what it wants and what it would take to resolve the matter. Yet, the best the DOJ has offered is a “kitchen-sink” approach to remedies.

Even worse, DOJ’s proposed framework includes concepts, such as structural separation, that lack any semblance of proportionality to the conduct that the court found problematic. The court found that Google enhanced its market power via long-term exclusive agreements that set Google as the default search engine. At the same time, the court found that Google had built a superior search engine and had invested early and often in its technology. The court also acknowledged the benefits of exclusive contracts.

Antitrust remedies should restore competition by blocking improper practices rather than by seeking to restructure markets root and branch, such as via forced divesture, unless the underlying conduct genuinely warrants such a harsh remedy.