Our remedies proposal in DOJ’s search distribution case

by · Google

We strongly disagree with and will appeal the decision in the Department of Justice's (DOJ) search distribution lawsuit:

  • As the Court found, Google achieved its popularity and success through innovation: by building the best search engine and making smart investment and business decisions, like our early investment in mobile. People don't use Google because they have to — they use it because they want to.
  • And what’s more, the landscape the Court evaluated is highly dynamic. Since the trial ended over a year ago, AI has already rapidly reshaped the industry, with new entrants and new ways of finding information, making it even more competitive.

Why we’re filing a remedies proposal

Before we file our appeal, the legal process requires that the parties outline what remedies would best respond to the Court’s decision, ahead of a hearing on remedies in April 2025.

DOJ’s remedies proposal

For its part, DOJ filed a proposal reflecting an interventionist agenda. Its proposal goes far beyond what the Court’s decision is actually about — our agreements with partners to distribute search. If DOJ felt that Google investing in Chrome, or our development of AI, or the way we crawl the web, or develop our algorithms, were at all anticompetitive, it could have filed those cases. It did not.

But the bigger problem is that DOJ’s proposal would harm American consumers and undermine America’s global technology leadership at a critical juncture — such as by requiring us to share people’s private search queries with foreign and domestic rivals, and restricting our ability to innovate and improve our products.

Our remedies proposal

Today, we filed our own proposal, based on the actual findings in the Court’s decision. This was a decision about our search distribution contracts, so our proposed remedies are directed to that.

You can read the full details in our filing, but here are the main points:

  • Browser agreements:

    • Browser companies like Apple and Mozilla should continue to have the freedom to do deals with whatever search engine they think is best for their users. The Court accepted that browser companies “occasionally assess Google’s search quality relative to its rivals and find Google’s to be superior.” And for companies like Mozilla, these contracts generate vital revenue.
    • Our proposal allows browsers to continue to offer Google Search to their users and earn revenue from that partnership. But it also provides them with additional flexibility: It would allow for multiple default agreements across different platforms (e.g., a different default search engine for iPhones and iPads) and browsing modes, plus the ability to change their default search provider at least every 12 months (the court’s decision specifically referred to a 12 month agreement as “presumed reasonable” under antitrust law).

  • Android contracts:

    • Our proposal means device makers have additional flexibility in preloading multiple search engines, and preloading any Google app independently of preloading Search or Chrome. Again, this will give our partners additional flexibility and our rivals like Microsoft more chances to bid for placement.

  • Oversight and compliance:

    • Our proposal includes a robust mechanism to ensure we comply with the Court’s order without giving the Government extensive power over the design of your online experience.

We don’t propose these changes lightly. They would come at a cost to our partners by regulating how they must go about picking the best search engine for their customers. And they would impose burdensome restrictions and oversight over contracts that have reduced prices for devices and supported innovation in rival browsers, both of which have been good for consumers.

But we believe that they fully address the Court’s findings, and do so without putting Americans’ privacy and security at risk or harming America’s global technology leadership.

Key legal excerpts from our filing

Remedies should match the alleged violations

  • When (as here) a plaintiff seeks a remedy that exceeds the anticompetitive conduct found at trial, “the remedies must be of the ‘same type or class’ as the violations.” Microsoft, 56 F.3d at 1460 (quoting Zenith Radio, 395 U.S. at 132-33); New York, 224 F. Supp. 2d at 136.
  • “In particular, when plaintiffs request structural relief, they must provide “a clearer indication of a significant causal connection between the conduct and creation or maintenance of the market power.” Massachusetts, 373 F.3d at 1230 (citation omitted) (emphasis in original). “Absent such causation, the antitrust defendant’s unlawful behavior should be remedied by an injunction against continuation of that conduct.” Microsoft Corp., 253 F.3d at 106.”

Extreme remedies are discouraged

  • “[A] finding of an offense under the antitrust laws does not invest a court with a license to embark upon a general program of comprehensive control of the defendants’ business.” United States v. National City Lines, 134 F. Supp. 350, 355 (N.D. Ill. 1955).
  • “Thus, “when it comes to the remedy,” courts must take care to avoid decrees that “could wind up impairing rather than enhancing competition” and through detailed, court-imposed terms of dealing make judges, who "should never aspire to the role,” “central planners.” Alston, 594 U.S. at 102-03 (citing Trinko, 540 U.S. at 408, 415).”
  • “The Supreme Court has shown special sensitivity to the prospect of “‘continuing supervision of a highly detailed decree.’” Alston, 594 U.S. at 102 (quoting Trinko, 540 U.S. at 415).“

“Caution is key”

  • “Any dampening of technological innovation,” the D.C. Circuit has warned, “would be at cross-purposes with antitrust law.” Id. at 158 (quoting United States v. Microsoft Corp., 147 F.3d 935, 948 (1998)). Accordingly, “[w]hen it comes to fashioning an antitrust remedy, … caution is key,” as “markets are often more effective than the heavy hand of judicial power when it comes to enhancing consumer welfare.” NCAA v. Alston, 594 U.S. 69, 106 (2021).
  • “The Supreme Court has shown special sensitivity to the prospect of “‘continuing supervision of a highly detailed decree.’” Alston, 594 U.S. at 102 (quoting Trinko, 540 U.S. at 415).

Discouraging investment

  • “In Verizon CommunicationsInc. v. Law Offices of Curtis V. Trinko, LLP, the (Supreme) Court noted that “[c]ompelling … firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive … to invest.”