With the tide of Digital Markets Act (DMA)-style regulatory proposals abating somewhat in Congress, antitrust maximalists have turned to the courts to continue their war on online marketplaces. The Federal Trade Commission’s (FTC’s) case against Amazon takes aim at the same procompetitive marketplace management activities that are the center of these debates in the legislative branch. In its latest move, the FTC has asked to bifurcate the case to consider liability (whether Amazon is liable under antitrust law) and remedies (what the court should do if liability is found) separately.

Legislative proposals like the American Innovation and Choice Online Act (AICOA) outline regressive government structures to reshape online marketplaces. However, the FTC’s lawsuit declines to identify a course of conduct or restructuring that would, in their view, be preferable to Amazon’s current structure and practices. This is an important factor in the lawsuit, because the allegations of anticompetitive conduct zero in on the core aspects of the marketplace model, including those that benefit the smallest companies doing business on those marketplaces. Thus, the entire premise of the lawsuit begs the question, “What conduct would be less anticompetitive than the current conduct, which demonstrably benefits competition and consumers?”

Whether liability and remedies are considered separately may seem trivial. However, the FTC wouldn’t be asking the court to separate them if it didn’t see a potential advantage. The legal standard for bifurcation requires courts to consider the extent to which legal questions overlap with questions about evidence. For example, in a simpler case where the legal question is whether an individual’s negligence caused an accident, the question of how much money that person should pay the aggrieved party is sometimes easily distinguishable from whether the defendant is negligent. In such a case, it may help alleviate potential confusion to first analyze whether the defendant was negligent and, second, debate how much money should be paid to make the plaintiff whole. This is not the case with the FTC v. Amazon. Inextricable from the question of whether a) featuring lower prices and b) committing to fast and reliable shipping is anticompetitive is what alternative would be better for consumers.

When the court decided to bifurcate liability and remedies in Epic Games v. Google, the outcome has been awkward, both practically and legally. On the legal side, a case with strikingly similar facts (Epic Games v. Apple) was thrown out by a court in the same circuit and kicked the rest of the way to the curb on appeal. Epic Games lost so decisively on its main antitrust claims because the court considered the worse—from an antitrust perspective, meaning worse for competition and consumers—alternatives to active online marketplace management in its assessment of liability. On the practical side, it appears the jury in the Google case elided over the tougher questions of market definition when looking at the Sherman Act Section 2 claims to arrive at what seemed to be the crux of the matter: whether Google’s conduct harmed Epic Games. To the extent that Epic Games has not gotten what it wants from Google through negotiating for a lower commission, Epic certainly illustrated its frustration colorfully. But by excluding a discussion of how the Google Play store would be degraded by a proposed remedy—for example, a prohibition on enforcing its distribution terms—the jury may have lacked a framework allowing it to seriously consider whether Epic Games’ plight amounted to actual antitrust liability for Google.

The court in FTC v. Amazon should likewise consider the ramifications of bifurcation and how it could unintentionally hide the weaknesses in the FTC’s claims. For small app companies like App Association members, this question is important as they look to preserve their access to robust online marketplaces.