Breakdown, Not Breakup: Taking Stock of the Google Remedies Decision

Judge Amit P. Mehta of the District Court for the District of Columbia has issued his opinion on the remedies Google should face following his earlier decision that several of its agreements with browsers, Android OEMs, and wireless carriers to pre-install Google search as the default had anticompetitively maintained a search monopoly. Judge Mehta grappled with the complex legal questions involving the appropriate antitrust relief for a monopolization case and applied them to the even more intricate and dynamic facts presented in the remedies trial held months before. While Judge Mehta’s opinion was a mixed bag regarding the behavioral measures levied on Google, by rejecting the DOJ’s radical divestiture proposals, the decision is not only a win for Google but also a death knell for the anti-business, anti-growth neo-Brandeisian movement.

As Judge Mehta recognized, antitrust remedies serve three core purposes: unfettering the market from anticompetitive conduct, denying the fruits of the antitrust violation, and ensuring that there remain no practices likely to result in monopolization in the future. In addition, the type of antitrust relief can take two broad forms: structural remedies that would break up Google or behavioral measures that impose obligations on Google with respect to its business practices. And with respect to behavioral relief, Judge Mehta rightly distinguished between the more typical prohibitory injunctions that prevent Google from partaking in certain behaviors and affirmative obligations that would require Google to undertake certain proactive measures.

The most straightforward remedies imposed by Judge Mehta were those prohibitory injunctions that served the purpose of unfettering the market from anticompetitive conduct. Importantly, this relief included not just bans on the specific practices found to be unlawful, but also other provisions that prohibited conduct similar in nature to that which was found to be anticompetitive (and even for products other than search). Here, Judge Mehta largely accepted Google’s proposed relief in its entirety, agreeing to forego default distribution agreements that were found to be anticompetitive not just for search but also other ancillary products, such as Chrome and its GenAI solution Google Assistant Gemini (for Android OEMs and carriers). He also included Google’s proposed restrictions on other related practices that were not found to be anticompetitive, such as preventing Google from conditioning the distribution of one product (e.g., search) on the preferential placement of another (e.g., Gemini).

In justifying these additional prohibitory injunctions to unfetter the market from anticompetitive behavior, Judge Mehta asked the right question: whether they represented a “reasonable method of eliminating the consequences of the illegal conduct” and would promote competition—the latter condition precluding a ban on nonexclusive payments for search distribution to browsers given the harms that would result to third parties and consumers. However, when considering the DOJ’s request to restore competition using structural relief—namely, a divestiture of Chrome and a potential divestiture of Android—Judge Mehta rightly applied a more rigorous test. As he explained, not only are breakups untethered to the conduct found to be anticompetitive, unnecessary to restore competition, and in fact counterproductive (e.g., loss of synergies with Google’s broader operations), but a higher causation standard that asked whether Google would have maintained its monopoly “but-for” its anticompetitive behavior was simply not satisfied.

Judge Mehta applied a similarly high standard when assessing the various remedies put forward by DOJ to serve another remedial purpose: ensuring there remain no practices likely to result in monopolization in the future. This included relief requested by the DOJ to prevent Google from engaging in self-preferencing that advantaged its search or GenAI products, as well as a host of other anti-circumvention, anti-retaliation, and administrative remedies, such as requiring Google to provide notice of acquisitions for certain types of companies. Judge Mehta’s legal grounds for rejecting them were simple: that such practices merely “could” prove anticompetitive in the future was not a basis to outlaw them—more certainty was required. Indeed, the one instance of self-preferencing that Judge Mehta evaluated in the liability phase was not even found to be anticompetitive.

So far, so good—the legal standard applied was proportional to the type and purpose of the relief requested. In determining which affirmative obligations Judge Mehta should impose on Google, much therefore depended on whether he would apply a heightened legal standard, like the ones he used to evaluate structural relief and remedies aimed at preventing future dissimilar monopolization. Alternatively, he could apply the more relaxed “reasonable method” test he used to condone the additional prohibitory injunctions as a valid means of “eliminating the consequences” of Google’s illegal conduct. Indeed, in evaluating the syndication remedy, which requires Google to provide competitors with its organic search results and features, Judge Mehta went with the lower standard, arguing that it was a “‘reasonable method’ of addressing the effects of Google’s anticompetitive acts.”

As Judge Mehta explained, the various data-sharing remedies he imposed on Google fundamentally serve a different core remedial purpose. That is, rather than unfetter a market from anticompetitive effects, they “are designed primarily to deny Google a key fruit of its anticompetitive conduct.” For Judge Mehta, chief among these fruits were Google’s network-driven scale economies, which he viewed as a series of data-sharing remedies as a “reasonable method” of counteracting. But more should have been required to justify this relief: While he attempted to respond to Google’s objections concerning the extent to which “the fruits of a violation must be identified before they may be denied” in reference to the key Microsoft v. Massachusetts case, where Massachusetts sought tougher remedies against Microsoft following its settlement with the DOJ, Judge Mehta overlooked that greater scrutiny should have applied to determine whether the data-sharing remedies properly denied Google "the products of the unlawful practices which the defendants have inflicted on the industry," as opposed to scale benefits it achieved through procompetitive means.

While a milestone, the search remedies decision is anything but the end of the long-running DOJ v. Google search matter. Not only will Google likely appeal Judge Mehta’s remedies ruling, but it will also appeal his underlying liability decision, finding that the company acted anticompetitively. However, what does seem clear is that while the reasoning in Judge Mehta’s remedies opinion may have broken down when it came to the critical issue of data sharing, the raison d'etre of the neo-Brandeisian movement to break up Big Tech now seems somewhat of a pipe dream. That is, not only will Google’s search, browser, and mobile businesses remain intact, but Judge Mehta’s analysis of the rigorous legal standards that apply when sanctioning structural relief proves beyond a shadow of a doubt that other potential antitrust breakups involving Google Ad Tech or Meta should be unlikely even if the government ultimately prevails on the merits. In short, while Judge Mehta’s opinion may be one small step forward for Google, it is one giant leap toward defeating the neo-Brandeisians’ agenda to break up Big Tech.