a need to rein in major technology corporations with digital platforms that had become “too powerful,”2
by breaking them up one way or another.3 During the same time period, federal enforcers filed separate
complaints alleging that Google had monopolized the search engine market4 and that Facebook had
monopolized the social networking services market,5 with each action presenting the possibility of
structural relief in the event of liability.
The break-up of companies championed by Senator Warren and other policymakers is a call for the
pointed application of divestiture, an equitable antitrust remedy defined by more than a century of
caselaw. In its simplest terms, divestiture is the process by which a company is compelled to sell off
certain assets, such as specific product lines or subsidiaries, to establish a new competitor or strengthen
an existing one. Divestiture may be imposed by court order or entered into voluntarily via settlement,
and is utilized to restore market competition that has been restrained by the party’s alleged violation(s)
of antitrust law. The enactment of reforms that modify antitrust liability or affect enforcement practices
could impact divestiture’s applicability, particularly if such reforms do not offer guidance on when and
how divestiture should be imposed.
Other recent developments further suggest the possibility of a more prominent role for divestiture
on the horizon. For example, policymakers have asserted that even without legislative reform, leading
digital platforms can be divested by challenging consummated mergers under existing antitrust laws,6
an enforcement tactic exemplified by the Federal Trade Commission’s (“FTC”) ongoing action against
2. See, e.g., Hawley Warns Big Tech ‘Too Powerful’, Calls for Breakup to Spark Competition, Fox Business (May 4,
2021), https://www.foxbusiness.com/technology/hawley-big-tech-powerful-breakup-competition (Senator Josh Hawley
(R-MO) stated in a television interview with FOX Business, “We’ve got a long history in this country of trust-busting.
When we see monopoly corporations amass so much power that they’re stifling competition, that they are stifling innova-
tion and they’re trying to exert political power. This happened a century ago during the Gilded Age with the railroads and
other corporations. We broke them up and that’s exactly what we ought to do to these Big Tech companies today. They’re
3. Brian Fung, House Lawmakers Introduce Big Tech Bills That Could Break up Amazon, Google and Others, Cnn
Business (June 11, 2021), https://www.cnn.com/2021/06/11/tech/house-tech-antitrust-bills/index.html (Rep. Ken
Buck (R-CO), in advocating for proposed legislation to reform antitrust laws, stated, “These companies have
maintained monopoly power in the online marketplace by using a variety of anticompetitive behaviors to sti-
fle competition. This legislation breaks up Big Tech’s monopoly power to control what Americans see and say
online, and fosters an online market that encourages innovation and provides American small businesses with a
fair playing field.”); Nilay Patel, Amy Klobuchar Is Coming for the App Store Tax, Verge (Apr. 27, 2021), https://
www.theverge.com/2021/4/27/22404493/amy-klobuchar-interview-antitrust-book-hearings-big-tech (Senator Amy
Klobuchar discussing the potential need for a break-up of major companies, stating “I don’t mean break it into
little pieces so it doesn’t exist. I mean, just as we did with the A&T breakup.”); Elizabeth Culliford, Where U.S.
Presidential Candidates Stand on Break up Big Tech, reuters (Jan. 24, 2020), https://www.reuters.com/article/
(Then-candidate for president Joe Biden stated that breaking up major tech corporations was “something we should
take a really hard look at.”).
4. See, e.g. Diane Bartz & David Shepardson, U.S. Says Google Breakup May Be Needed to End Violations of Antitrust
Law, reuters (Oct. 20, 2020), https://www.reuters.com/article/tech-antitrust-google-idUSKBN2751PB; Brent
Kendall, Google, U.S. Government Each Face Challenges in Court Fight, Wall st. J. (Oct. 21, 2020), https://www.
wsj.com/articles/google-u-s-government-each-face-challenges-in-court-fight-11603324647; Nico Grant, U.S. Asks
Google for Detailed Search Data in Antitrust Case, BlooMBerg (Mar. 1, 2021), https://www.bloomberg.com/news/
5. See infra note 7.
6. See, e.g. Trust-Busting for the Twenty-First Century Act, S. 1074, 117th Cong. (2021); American Choice and Innovation
Online Act, H.R. 3816, 117th Cong. (2021); The Platform Competition and Opportunity Act, H.R. 3826, 117th Cong.
(2021); Ending Platform Monopolies Act, H.R. 3825, 117th Cong. (2021); Augmenting Compatibility and Competition
by Enabling Service Switching, H.R. 3849, 117th Cong. (2021); State Antitrust Enforcement Venue Act, H.R. 3460,
117th Cong. (2021); Merger Filing Fee Modernization Act, H.R. 3843, 117th Cong. (2021).