It has been a busy time for Google in its various antitrust battles. In the remedies phase of the landmark U.S. v. Google case—filed in 2020 in DC federal court—the government recently set forth a host of proposals for bringing more competition to online search. Among the DOJ’s requests to Judge Amit Mehta: Google should be forced to divest itself of its Chrome browser, share key data with competitors, and barred from making certain exclusionary contracts. The proposals followed Judge Mehta’s ruling this past summer that Google was a monopolist in general search and text advertising. 

Just a few days after the government submitted its broad proposals for cutting Google down to size, another antitrust trial involving Google wrapped up in the Eastern District of Virginia, that one focused on Google’s alleged dominance in the realm of advertising technology. While it hasn’t received as much attention as the search case—widely heralded as the largest antitrust case of the last quarter century—the ad-tech case could well be the risker one for the tech giant, according to Stanford Law School Visiting Fellow Douglas Melamed. Previously Senior Vice President and General Counsel of Intel Corporation, Melamed also served as the DOJ’s Acting Assistant Attorney General in charge of the Antitrust Division earlier in his career, when the DOJ’s mega-case against Microsoft was being litigated. 

“The ad-tech case implicates the revenue side of Google’s business,” Melamed says. “There’s a lot at stake.” 

In this Q&A, Melamed breaks down some of the high points of the two complex antitrust cases against the backdrop of transition from Biden’s to Trump’s enforcement agencies. “The antitrust agencies in the first Trump administration were fairly traditional Republican-type agencies,” Melamed says. “But there are a couple reasons to think it’s not going to be quite the same this time.” 

How likely is it that Google ultimately will be required to divest itself of Chrome?

I think that is very unlikely for two reasons. First, contested divestiture remedies almost always involve undoing mergers. The divestitures that the government has requested here involve organically grown businesses—businesses that Google itself developed. Neither Chrome nor Android was a business put together by merger. Google acquired software and talent that was part of building those businesses, but at the end of the day, Google built those businesses.

Also, this case ultimately is going to be decided by the Court of Appeals, not by the district judge. There are a lot of legal issues that Google will raise on appeal, but there’s one issue that’s really important, and it goes both to remedy and liability: whether the judge found sufficient harm to competition. Given the modest findings of the court about harm to competition, I don’t think there’s a predicate for a remedy like forced divestiture of Chrome or Android. With the appeal, I would not be surprised if this all spills over to sometime in 2026—unless there’s a settlement, but that’s unlikely.

Why is settlement unlikely?

A settlement is possible, but I don’t think it’s likely. Trump has said that he will nominate Gail Slater to head the antitrust division of the DOJ. I know very little about her, but she has a reputation as a straight shooter, which is a good thing, of course. Trump stressed that she will be vigilant in going after the big tech companies. Also, Slater has been an advisor to JD Vance, who has publicly praised the populist approach of the current Biden antitrust enforcers. So, while I don’t think she’s going to be a full blown populist, I would not be surprised if she’s very aggressive about the tech platforms, particularly the social network and information platforms. If so, it will probably be hard to find common ground for settlement.

What do you think about other of the DOJ’s requests, such as requiring Google to share search data with rival search engines?

I think the data-sharing proposals are conceptually appropriate because the court did find that Google’s default browser arrangements diverted data from other search engines. And the diversion of data away from Bing, for example, impaired Bing’s ability to improve and become a more effective competitor of Google. So it’s conceptually appropriate to make more data available to repair the damage from the default agreements. But a data-sharing remedy would be very difficult to implement. There are privacy issues, obviously, when personal information is shared with other firms. And even apart from that, there are issues of how the data is disseminated, whether and how the recipient will use it, how it will be used by the recipient, how the recipient will pay for the data, and so forth. Google will argue that it would be very hard to get all that right and that the remedy would be costly and disruptive. And they’re going to argue that it won’t make much difference to competition anyhow because the amount of diverted data wasn’t very great in the overall context.

Could the fact that Google was found to have monopolized search and text advertising in the big District of Columbia case impact anything in the ad-tech case in the Eastern District of Virginia?

I don’t think so. Maybe in some very subtle sense of “Oh, they have already been deemed to be a bad guy, or a monopolist,” but that’s pretty attenuated, particularly with a sophisticated judge like Judge [Leonie] Brinkema.

The search case was originally filed by Bill Barr, who was the attorney general at the end of the first Trump administration. It has gotten a lot of attention, but I’ve always thought the ad-tech case presents a bigger risk for Google, not with respect to the likelihood of winning the case, but with respect to the worst-case consequences. For one thing, the ad-tech case involves a number of acquired businesses, and, as we’ve discussed, that goes to the appropriateness of a divestiture remedy. Also, this case is about the revenue side of the search business. There’s a lot at stake. 

What exactly is ‘ad-tech’ and how does all this work? 

To oversimplify a great deal, if I make a search query, advertisers who want their ads to appear in response to that query are going to, in effect, participate in an auction to have their ads get that opportunity. And it is all done instantaneously, by computers.

The advertisers are represented by what are called ad networks, which are basically giant computers. They’re like an advertising agency that knows what the advertisers want, how much they’re willing to pay for certain kinds of ads, and so forth.

On the other side, there are ad servers, which are the mirror image of the ad networks. They represent what are called publishers, the entities like the New York Times or Google that sell advertising opportunities. So there are computers representing the publishers and computers representing the advertisers. And in the middle, there are ad exchanges, which are like big clearing houses that match the bids and the offers. 

According to the Justice Department, Google has a 90 percent share in the ad server business, a 40 percent share of the ad network business, and a 50 percent share of the ad exchanges. So Google is often on both sides of the transactions and in the middle. And it got there in part by acquisitions that the government now says were illegal.

The Justice Department also claims that Google improperly used its clout at one level of the business to help itself at a different level—for example, that it designed its ad server to favor its ad exchange over competing exchanges.

These are complicated questions. Google will argue that the features about which the Justice Department complains actually made the market more efficient or benefited the buyers or sellers of advertising. And the case raises some difficult legal questions that have not been resolved.

What’s your assessment of how things have gone with antitrust regulation under the Biden administration?

The enforcement agencies in the Biden Administration have been headed by lawyers from the progressive wing of the Democratic party. They have had a twofold agenda: one, to be more aggressive in enforcement, and two, to create or impose a new conceptual framework on antitrust law that would reject an exclusive focus on economic welfare in favor of a broader focus on power imbalances. So, for example, they might want to break up or restrain Google just because it’s big and powerful, even if Google search or Google ad-tech might be more efficient and better for consumers.

They have been very aggressive. They have brought a lot of cases and a lot of big cases. They have brought some cases on weaker facts than those that have traditionally been required by the government before bringing a case. They have won some and lost some of those cases. They also have imposed changes in procedures and practices that increase the costs and uncertainty of antitrust review and have probably deterred conduct and transactions without having to determine their lawfulness. 

The Federal Trade Commission promulgated a competition regulation prohibiting almost all non-compete agreements with employees. A regime of competition regulations by the FTC would be new and very important, but it is far from clear that the courts will uphold the FTC’s authority to promulgate such regulations.

On the other hand, I think the agencies have made basically no progress on changing the conceptual framework of antitrust law. They’ve affected the public conversation, and that might have an effect in the future. But the conceptual framework hasn’t changed in the last four years. 

Antitrust law is made by judges or by the legislature. There have been some bills introduced in Congress, but they have gone nowhere. And the judges have not adopted, and really have not been asked to adopt, any new conceptual framework in the cases.

One implication is that, as aggressive as the agencies have been, there is almost nothing in the law or agency policy that can’t be undone by the Trump Administration if it chooses to do so. 

While Vance and others in the Trump administration might have praised the more populist aspects of Biden’s antitrust agenda, surely there are going to be some changes afoot?

Normally you’d expect a Republican administration to be more conservative and cautious with regard to antitrust enforcement. And I expect the Trump administration in general to be very hostile to commercial regulation, except for tariffs. The antitrust agencies in the first Trump administration were fairly traditional Republican-type agencies. I think that that will be the case as a general matter in the next Trump Administration, in part because the persons Trump has said he will appoint as FTC Chair and as a new FTC Commissioner appear to be traditional Republican conservatives about antitrust issues in general.

But there are a couple reasons to think that enforcement will be rather aggressive in some respects. First of all, the White House is not likely to take the traditional “hand off” approach to antitrust enforcement, and Trump has made clear that he wants to go after the tech companies. Project 2025 has a number of passages asking for antitrust scrutiny of platforms that have allegedly used their size and power to censor conservative speech, and Trump made similar statements when announcing whom he intends to nominate for leadership positions at the Antitrust Division and the FTC. Content modification or censorship is not a traditional antitrust harm in itself, but it might be a motivation for aggressive enforcement in the tech sector. So I think we can expect that antitrust enforcement will be aggressive with the big information platforms and the social networks.

Overall, I would expect fairly traditional Republican-style antitrust in general, but with a more aggressive focus on certain industries, the tech platforms and maybe pharma—and maybe a focus on firms engaged in conduct that the Administration opposes for reasons unrelated to antitrust law, like efforts to address climate change or promote DEI policies. 

Doug Melamed practiced law for 43 years before joining Stanford Law School as the Herman Phleger Visiting Professor of Law. He was appointed Professor of the Practice of Law in 2015 and is currently a Visiting Fellow. From 2009 until 2014, Melamed was Senior Vice President and General Counsel of Intel Corporation and was responsible for overseeing Intel’s legal, government affairs and corporate affairs departments. Prior to joining Intel in 2009, he was a partner in the Washington, D.C., office of WilmerHale where he served as a chair of the Antitrust and Competition Practice Group. From 1996 to 2001, he served in the U.S. Department of Justice as Acting Assistant Attorney General in charge of the Antitrust Division and, before that, as Principal Deputy Assistant Attorney General.