Antitrust remedies and the Big Tech platform cases

Abstract

Remedies often get overlooked in discussions of antitrust litigation, treated almost as an afterthought. When remedies have been part of the antitrust debate the focus has often been on an after-the-fact assessment of their effectiveness, or on the general question whether there should be a preference for conduct or structural remedies, or sometimes on what remedies would be a good idea in a specific important case currently under litigation.

This chapter, however, focuses on the legal constraints on remedies. The first section provides a general description of the policy and legal framework that guides remedies in government antitrust cases. The next section examines the remedies that were imposed in United States v. Microsoft, the last major government Section 2 case, to illustrate how the D.C. Circuit Court of Appeals applied the general legal rules for remedies in light of the particular issues that it faced. The third section discusses the current Section 2 Big Tech platform cases against Google and Facebook and how the Microsoft litigation can inform the remedies that the government plaintiffs might obtain. This discussion particularly counsels that government antitrust enforcers should lay the foundation for the remedy they want during the merits trial itself and not wait for any separate trial on remedies. The concluding section offers some suggestions for a revised framework for crafting remedies in government civil antitrust cases.

The thesis of the chapter is that instead of the usual directives of an injunction, where the defendant is told what not to do and sometimes what to do, government enforcers should frame remedies in terms of goals and benchmarks. Goals and benchmarks would require a different sort of specification than command-and-control injunctions, and they will certainly be challenging to craft and oversee. But they might offer a more direct way to effectuate the most important goal that the courts have established for antitrust civil remedies—effectively to “pry open to competition” a market that the defendant has closed. As Justice Jackson wrote, “if th[e] decree accomplishes less than that, the Government has won a lawsuit and lost a cause.”

Keywords: Antitrust, remedies, monopolization, platforms, GAFA, Google, Facebook, Microsoft, Department of Justice, Federal Trade Commission, state antitrust enforcement

JEL Classification: K21, K41, L40, L41