Earlier this year, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia ruled that Google had unlawfully monopolized two key ad-tech markets: publisher ad servers and ad exchanges. However, she dismissed claims that Google monopolized advertiser ad networks and upheld the legality of Google’s prior acquisitions of AdMeld (in 2011) and DoubleClick (in 2008). The remedy phase has concluded with closing arguments last Friday (November 21). Judge Brinkema is now tasked with evaluating both parties’ proposed remedies to determine the most effective path to restore competition in the affected markets.
The government is proposing a host of behavioral and structural changes, including divesting Google’s ad exchange and open-sourcing the publisher ad server. Google is proposing a package of behavioral remedies, including allowing publishers to contract separately with AdX and DFP, as well as enabling interoperability with Prebid, but stops short of breaking up its ad tech stack. There really isn’t much daylight between the two proposals.
The government has already failed once in its bid to break up the search giant, with Judge Amit Mehta of the U.S. District Court for the District of Columbia rejecting its attempt to spin off Chrome. Judge Brinkema is similarly skeptical about the “commercial reality” of imposing structural remedies in the ad tech case. Unlike Judge Mehta, Judge Brinkema only had a couple of questions, all of them circling back to timing. She questioned how the benefits of a complex structural order and monitoring regime could function in light of what she views as an inevitable and lengthy appeal process and pressed the government on its failure to identify a plausible AdX buyer. She noted that any acquirer, particularly a giant like Microsoft, would face its own lengthy antitrust review. “This still leaves us at a fairly abstract level, and the order needs to be far more down-to-earth and concrete.”
Department of Justice lawyers cast structural relief as a “cleaner, less risky” option that respects the limits of judicial oversight, warning that behavioral decrees would entangle the court in central planning while Google continues to “test boundaries.” Trying to address the court’s concerns, they downplayed the government’s own fifteen-year implementation timeline, emphasizing that a new AdX owner within roughly fifteen months would yield early competitive gains, and rejected the notion that AI-driven change will soon disrupt the markets.
Google countered that the law requires the court to start with less drastic measures and that divestiture has never been ordered in a tying case or two-sided digital market like this one. Google highlighted the significant commonalities between its own proposed behavioral remedies and those of the government. It contended that the government had not demonstrated the inadequacy of these measures nor established that a structural separation would be technically and commercially viable, beneficial to consumers, or appropriately tailored to the court’s findings of liability. Google pointed to evidence that rival exchanges already win 58% of U.S. open-web display impressions via Prebid, claimed its remedy package could be implemented in about a year, and warned that forced divestiture would create existential risks for small and medium publishers—like WikiHow—that rely on its integrated stack.
Another recurring theme was trust. The government framed Google as an inherently untrustworthy steward of the open web and cast doubts on the court’s ability to police behavioral relief. Google responded that this flips the appropriate relevant legal standard on its head: distrust alone is not a lawful basis for broad structural relief, a point Judge Brinkema herself has made in prior remedy proceedings and proved to be a fatal misstep in the Microsoft case.
Judge Brinkema said she will first decide whether structural plus behavioral relief is warranted or whether behavioral remedies alone will suffice, and then bring the parties together to narrow the gap between their proposals. Although the case is on the “rocket docket,” she cautioned that no decision should be expected until next year.
