The remedies phase of the Google antitrust trial concluded last week. And after 11 days in the courtroom, there is a clearer sense of what Judge Leonie Brinkema is focused on and how that might influence what remedies she puts in place.
This reporter covered part of the trial (thus the quotes of Brinkema herself, because no transcripts or recordings are currently available) and caught up with a few of the court watchers who have followed this suit from the courtroom for most of the trial.
What’s the sense?
For Google antagonists and ad tech competitors who want the Department of Justice to get its wish list of remedies, the vibe shift in the case is … not good.
The DOJ may have bitten off more than it can chew in calling for a prolonged divestiture process (its proposal features a timeline that stretches 14 years), and court watchers felt Judge Brinkema was skeptical of removing a free, easy solution, if a replacement includes any costs or engineering know-how to switch.
Judge Brinkema pressed expert witnesses like Kevel CEO James Avery and Harvard economist Robin Lee about whether any acquirer of Google’ ad server or exchange could offer the same products for free, as Google does. Wouldn’t any baseline costs introduced for those products represent a burden on small businesses and publishers?
She also asked why Google wouldn’t, say, offer vouchers to advertisers to run on its owned-and-operated properties at a discount instead of buying open web ads, or shift its buy-side products away from buying on the open web?
Judge Brinkema’s questions brought up some nuances she didn’t grasp about ad tech. Google has its own large marketing budgets with which it can do what it pleases, but Google’s DSP wouldn’t just avoid the internet on behalf of all advertisers essentially out of spite following an unwelcome decision (from Google’s perspective), Professor Lee responded.
Still, the mere fact that Judge Brinkema considered those tactics legitimate – things Google can and might do, as opposed to something the DOJ would monitor for as a sign of noncompliance – is telling about where she envisions the DOJ’s authority in this case.
“I feel like the judge showed that she has a preference for less invasive remedies,” Ari Paparo, CEO of Marketecture Media and a follower of this case (he wrote the book on it), told AdExchanger after the remedies trial ended. “That’s at least what I saw.”
Google’s publisher witness, WikiHow CEO Elizabeth Douglas, was persuasive in demonstrating to the court that many small publishers (or even not-so-small, revenue-wise) are totally unwilling to make any commitments in terms of resources for ad tech, Paparo said.
What that means is that any potential replacement or divestiture could be seriously complicated if publishers are required to do even basic JavaScript changes to their site or add any new vendor costs.
“Google’s part of the show was a master class in mental gymnastics,” said Arielle Garcia, COO of Check My Ads and MVP of tracking this trial.
The DOJ made the remedies phase more difficult for itself, Garcia said, by introducing the idea of an ad server’s “Final Auction Logic,” which the government wants to be open-sourced as a way to confirm Google isn’t manipulating how its auctions work. The DOJ also proposed a strange limbo divestiture, with DFP maybe being spun out depending on the DOJ’s and Judge Brinkema’s monitoring of Google over the next few years.
“I understand why they did a phased divestiture approach,” Garcia said. But, she added, it made Google’s job easier than if the DOJ had just gone straight for a required divestiture of both AdX and DFP. Selling a company, even a multibillion-dollar ad tech company, is a totally normal thing, she said. The DOJ’s hypothetical scenario is unfamiliar.
Judge Brinkema also seemed to favor behavioral remedies (aka policy and practice changes, as opposed to a structural change like a divestiture), according to Vidushi Dyall, director of legal analysis at the Chamber of Progress, a regulatory advocacy group that supports Google’s side of the case.
“People paint divestiture as a cleaner solution to behavioral remedies,” Dyall told AdExchanger. “I felt like Judge Brinkema was indicating that if she creates something airtight, then, really, the behavioral remedies would do the trick.”
In Google we trust?
The deciding factor of the case will come down to the notion of trust, be it between Google and the government or between Google and publishers.
“The judge made numerous remarks to the extent that the whole issue was around trust and whether you could trust Google,” Paparo said of the remedies arguments.
If Google agrees for its demand-side business and publisher ad exchange to serve bids freely and honestly to outside companies, “then you don’t really need an AdX divestiture,” Paparo said.
Dyall also noted that at one point Judge Brinkema interjected a counselor for the DOJ to ask whether Google had a history of flaunting DOJ or judicial legal orders, as the arguments seemed to be based on the notion that Google will certainly try to circumvent any legal order.
The DOJ is “pointing at divestiture as a necessity to prevent Google essentially pulling something,” she said.
Couldn’t this all be precluded by strong, specific language in a ruling, rather than a divestiture? The witness was forced to concede that, yes, it could.
On the other hand, the case is before the court because publishers and ad tech companies feel quite strongly, and with solid justification, that Google can’t be trusted.
And to that very point, Google’s actions during the remedies arguments phase were on a spectrum between lawyerly obfuscation and downright dishonesty.
“It’s easy to say [Google’s counselors] are being deceptive and malicious, all that stuff, but it’s a legal case,” Paparo said.
On the other hand, Google’s expert witnesses were not exactly upfront and honest, according to court watchers and this reporter.
The DOJ’s expert witnesses told the truth, even when it complicated the DOJ’s case. For example, Avery of Kevel said AdX and DFP should be sold together, which is not what the government is asking for. Jay Friedman, former CEO of Goodway Group, said AdX should just be shuttered and let the market fill in the demand. The government’s agency witness, Luke Lambert of Omnicom, said there would be a “pain of divestiture” for any Google spinout, saying he’d expect employees in tears about the performance and forecasting fallout.
Those bits of candor the DOJ would certainly prefer its witnesses to keep to themselves.
Google’s witnesses hold the company line, even when the company line is not rational or honest.
Paparo, for instance, recalled that Google’s expert witness argued that “dependencies” in the code base, which was part of the argument regarding the feasibility of an AdX spinout, might mean the company would have to let go of thousands of employees or hand over maintenance of underseas cables.
“And it’s like, c’mon, chill out,” Paparo said.
Google’s lawyers and experts misrepresented how open-source technology works, he added, to present the DOJ’s proposals as seemingly putting a major tech burden on publishers.
Google also deliberately feigns ignorance of common ad tech terms, like the phrase PMP, as Google uses slightly different internal terminology (Private Auctions or Preferred Deals). The expert witness pretended he was unfamiliar with the tech, because Google is trying to classify all PMP, programmatic guaranteed or other deal ID-based campaigns as outside the bounds of this court decision. So, in other words, Google would still be allowed to use first look, last look and change its auction mechanics for those impressions without telling publishers or advertisers.
“Come on, grow up, you know what that means,” Paparo said of PMPs and other common programmatic terms. These are things Google does “to confuse people on purpose.”
He added that the DOJ “didn’t do a really good job of homing in on the reasons why there was that lack of trust” and how Google might manipulate the market or the court’s decision moving forward.
“I was sitting there as an observer with a lot of experience in ad tech, thinking to myself about all the ways Google could manipulate the auction [under Google’s remedies proposal] that weren’t discussed,” Paparo said.
What’s next?
When the remedies trial closed last week, Judge Brinkema issued a hopeful call for the two sides to settle the case before the closing arguments in November.
Which is wishful thinking.
Paparo, Dyall and Garcia each noted that a settlement would be an extreme surprise.
The DOJ’s antitrust group wants very much to see a divestiture in this case, especially having missed on the Google Search trial, Dyall noted. Last month, District Judge Amit Mehta issued Google a set of remedies for its antitrust conviction that were widely viewed as lenient, with many of the DOJ asks left unfulfilled.
Also, as Garcia separately added, Google is appealing the ad tech antitrust monopoly verdict. A settlement in this case would cement that decision as precedent for other legal battles.
There are half a dozen (and growing) ad tech vendors independently suing Google for its monopoly allegedly affecting their business. Which they can do because the DOJ’s guilty decision means they can just point to Google’s illegal monopoly, rather than prove it in court themselves.
Google is going to fight this case all the way through, Paparo said, because settling would improve the outlook for those independent ad tech cases.
With no settlement in sight, closing arguments resume in about a month, and then Judge Brinkema will craft her decision. Last year, during the litigation phase, the trial happened in September and closing arguments were December, Dyall said. Judge Brinkema’s decision arrived this April.
The remedies arguments were in August and the closing is in November. Which, she said, means the decisions will probably arrive sometime in late Q1 2026. [For anyone astounded by the glacial pace of this trial, bear in mind that it’s a sped-up case under what’s colloquially called the “rocket docket.”]
“I’m glad to be through it,” Garcia said of the last extensive courtroom testimony involved in this case. “But I’m conscious that this is only the beginning of what’s inevitably going to be another several years of a saga.”
