Judge unlikely to embrace US government’s push to require Chrome divestiture, experts say

The filing was made three and a half months after federal Judge Amit P. Mehta ruled that Google’s search business violates US competition law through exclusionary practices.

“Restoring competition to the markets for general search and search text advertising as they exist today will require reactivating the competitive process that Google has long stifled: The remedy must enable and encourage the development of an unfettered search ecosystem that induces entry, competition, and innovation as rivals vie to win the business of consumers and advertisers,” the Justice Department wrote in a 23-page filing.

In the document, the DOJ recommends forcing the sale of Chrome, citing the browser’s core role in funneling users to Google’s search engine, which is deeply integrated into the browser.

Further, the Justice Department is pressing Google to either divest Android – the world’s most ubiquitous mobile operating system – or be banned from making exclusive agreements that make its search engine the default on devices that rely on the Android operating system. Though the Android system is open source, most Android devices come preloaded with Google apps, strengthening the company’s dominance in the search ecosystem, the DOJ argues.

The government agency also hopes to force the tech giant to drop any investments it has in AI firms that might compete with search engines. The company has a $2bn stake in Anthropic, the AI company behind popular AI assistant Claude.

Google vehemently opposes the proposals. Kent Walker, president of global affairs at Google and parent company Alphabet wrote in a blog post Thursday: “DOJ’s approach would result in unprecedented government overreach that would harm American consumers, developers, and small businesses – and jeopardize America’s global economic and technological leadership at precisely the moment it’s needed most.”

If Judge Mehta agreed to require divestment of Chrome or Android, online search – and the digital advertising ecosystem, by extension – would be greatly disrupted.

For one, Google’s practice of bundling premium search advertising space with less valuable inventory, under opaque regimes like ad campaign tool Performance Max, has long stifled transparency and made it more difficult for advertisers to optimize their spend. In the words of Adam Epstein, co-CEO of adMarketplace, a native search advertising firm, “Google packages the prime rib of search advertising with a lot of hamburger meat from other sources, and they do it under Performance Max, which allows for very little transparency or optimization.”

Separating search advertising into its own market would allow advertisers to better allocate budgets, optimize campaigns and bid more effectively, ultimately creating a healthier advertising ecosystem, he argues. Epstein has advised the DOJ on the ins and outs of the search ad landscape throughout this trial.

Plus, Epstein argues that Google’s business practices result in inflated prices, with advertisers overpaying for lower-quality traffic. Increased transparency and competition in selling search traffic – which could be ushered in by the divestment of Chrome and some of the DOJ’s other proposed solutions – may drive down these costs, unlocking substantial opportunities for advertisers and competitors in search alike. He suggests that eroding Google’s dominance would create a fairer market and address long-standing inefficiencies in the digital ad ecosystem.

Though the judge’s decision over legal remedies remains unclear at this point, legal experts doubt that Google will ultimately be forced to sell Chrome.

“It is very unlikely that the courts will ultimately agree to the remedies proposed by DOJ. Divestiture in particular seems very unlikely,” says Doug Melamed, a visiting fellow at Stanford Law School who previously worked in the DOJ’s antitrust division.

Forcing the sale of Chrome is unlikely for two key reasons, Melamed says. For one, he says, divestiture – typically reserved for reversing mergers – doesn’t align with the nature of the case, which centers on alleged illegal agreements rather than structural issues. And from a legal perspective, “antitrust remedies must be focused on the particular harms to competition found in the case,” he explains.

In addition to the fact that divestiture does not directly address the specific harms created by Google’s exclusionary agreements with device makers, “it is rarely appropriate to order divestiture of businesses that were developed by the defendant” – a precedent established in the Microsoft case, Melamed says. “Divestiture of business units is generally appropriate only when those businesses and the retained businesses were combined by merger.” But Google itself developed both Chrome and Android, making Chrome divestiture look like an inappropriate remedy in Melamed’s view.

More plausible remedies, he suggests, would focus on curbing agreements that hinder rivals’ access to critical search distribution channels. This could include restrictions on deals that make Google the default search engine.

adMarketplace’s Epstein agrees that while divestiture may be a long shot, more practical “behavioral remedies” could be implemented imminently. In addition to barring Google from signing exclusive distribution agreements, the company must syndicate its ads and search results so that “browsers and apps can have monetization and search results that are relevant to users without having to give total control over the search experience.” This kind of requirement, Epstein says, would open up more competition for AI firms looking to go head-to-head with Google Search.

Another potential measure is limiting Google’s use of unconditional revenue-sharing agreements with device manufacturers and browser providers, Melamed says. Although these payments aren’t explicitly tied to default status, they may still incentivize partners to prioritize Google over competitors.

A further option could require Google to share certain data with rivals for a fee, mitigating competitive disadvantages stemming from exclusive agreements with device makers. However, Melamed believes that both revenue- and data-sharing proposals face implementation challenges and could have potential adverse effects on innovation or browser supplier revenues – which might undercut the government’s aim to invite greater competition into the search market.

More likely, Melamed says, are more narrow “restrictions on agreements that more directly harm rivals.”

In the unlikely case that Judge Mehta takes the Justice Department’s advice and requires Google to divest Chrome, the decision is sure to face significant hurdles, experts say, citing the appeals court reversal of a similar breakup attempt against Microsoft in the early 2000s.

“Ordering the sale of Chrome would obviously be an aggressive remedy and may not survive the appeals process, as we saw with Microsoft over 20 years ago,” says Andrew Frank, vice-president and distinguished analyst at Gartner.

Plus, with administrative changes expected under Donald Trump’s second presidential term, some antitrust actions underway today may lose momentum, Frank predicts (though it’s worth noting that this case was launched by the DOJ in the fall of 2020, during Trump’s first administration). Nonetheless, Frank says that “when the dust settles, the outcome [of this case] may be less impactful than the drama suggests.”

Antitrust action, writ large, could sputter under Trump’s leadership, Melamed agrees. “The aggressiveness of the Biden antitrust enforcers is unlikely to be continued in the Trump administration because Trump is generally protective of big business and opposed to government regulation,” he says. Plus, considering Trump’s track record of disregard for the law, he can “imagine the Trump team going easy on Google if Google makes other business decisions that Trump seeks, like changing its algorithms to favor pro-Trump information.” However, it’s also possible, he suggests, that Trump will leverage the Justice Department to target tech firms he perceives as hostile

Google is appealing the August monopoly ruling. In the meantime, however, the company will submit its own counter-proposals by December 20.

The details of Google’s forthcoming filing are purely speculative at this point, but Melamed, for his part, expects that Google will push back against the court’s determination that the company violated federal competition law and argue that divestiture is not appropriate in this case. The company may also make the case that the DOJ’s other suggestions are not justifiable, but Melamed says that he wouldn’t be surprised if Google is open to some kind of restriction on default agreements with device makers.

For the time being, “the government, the courts – with bipartisan political support – all are sending sort of the same message to Google, and that is that the practices that were allowed for the last 25 years are now under scrutiny,” says Epstein. “Google needs to look at a different way to … move forward in this new environment. They do amazing things, [but] leveraging monopolies to get into new markets and own them is probably not going to be their best strategy going forward … They’re going to have to do a little soul-searching over the next 12 to 18 months.”

This antitrust push, among the most aggressive actions against Big Tech in decades, coincides with another landmark competition case between the DOJ and Google, concerning the company’s adtech business. The final outcome of both cases could help shape future competition cases targeting Apple, Amazon, Meta and others. The court is expected to hear arguments on remedies in the spring of 2025, with a decision anticipated by summer.

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