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Though it's still early in Google's antitrust trial, one antitrust expert is already doubting that the case could lead to a company breakup should Google be found guilty of violating U.S. antitrust laws.
Eric Posner, a professor of law at the University of Chicago Law School and former counsel to Jonathan Kanter, assistant attorney general of the Department of Justice (DOJ) antitrust division, said that since Google has yet to be found guilty of violating antitrust laws, it's too early to determine what penalties the tech giant could face. However, breaking up a company is often an extreme structural remedy in an antitrust case. Posner spoke during Impact 2023, an event hosted by search advertising company AdMarketplace.
The DOJ filed the antitrust case against Google in 2020, alleging that the company engaged in anti-competitive conduct allowing it to maintain a dominant market position in the online search market. The DOJ's complaint alleged that Google entered into exclusionary contracts with companies such as Apple to keep Google search the default option on mobile phones, edging out potential competitors.
Though breaking up a company is a form of structural remedy courts could pursue to address a company's antitrust law violation, less extreme remedies also exist.
"Courts are very reluctant to break up companies," Posner said. "I think it's quite unlikely Google will be broken up."
Types of remedies Google could face
Should Google be found guilty of violating U.S. antitrust laws, the court could decide to issue what's called a conduct remedy to eliminate the unlawful behavior, Posner said.
"If, for example, a court held that it's illegal for Google to pay Apple to make Google the search engine default in Safari, then the court might just say Apple is not allowed to make Google the default search engine in Safari," he said.
One of Google's behaviors targeted by the DOJ includes the exclusionary contracts Google made with companies such as Apple to keep its search engine the default option. However, a remedy wouldn't result in banning such contracts. Instead, Posner said antitrust law focuses on the behavior itself if companies use such contracts to maintain illegal dominance, and issues remedies to stop that behavior.
Eric PosnerProfessor of law, University of Chicago Law School
"Exclusive agreements, in the abstract, are not a bad thing," he said. "The problem is when a big company uses exclusive agreements to block competition."
Whatever the remedy in Google's case, Posner said it has to follow exact instances of what the court determines is illegal behavior.
"The remedy can't just be 'we're going to break up Google,'" Posner said. "They'll only break up Google if that's responsive to the particular finding of illegal behavior."
Still, Posner cautioned that it's too early to determine how the court would lean regarding remedies if Google is found guilty.
"One has to be careful about speculating about remedies at this point," he said.
Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget Editorial, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.