As the second phase of the Google ad tech trial was winding down, Judge Leonie Brinkema was still hoping that Google and the Justice Department would take the decision out of her hands.
“My favorite phrase is ‘Let’s settle this case,’” she told attorneys for both sides shortly before adjourning the courtroom after more than 10 days of trial in the remedies case. Brinkema ruled in April that Google had illegally monopolized the market for publisher ad servers and ad exchanges, and illegally tied its products together to make it difficult for customers to move to competitors’ options. As it turns out, that ruling might have been the easy part — after two more weeks of arguments, Brinkema is now tasked with deciding what should be done to restore competition to the markets Google stifled for a decade. That involves untangling hours of technical testimony where experts were at odds about what is even possible to separate from Google’s proprietary systems without creating new problems. With that in mind, it’s not hard to understand why Brinkema told the attorneys that this is the kind of case “that ought to settle.”
There’s no sign yet that such a settlement is coming, and by the end of trial, Google and the DOJ sounded miles apart on what is both possible and needed to restore competition. The government wants Brinkema to force a sale of Google’s AdX exchange, open source the logic that lives inside its DFP ad server and decides which ads get served, and leave open the option for a sale of the rest of DFP in case that doesn’t work well enough. Google proposes a series of restraints on its behavior, and requirements for its ad tech to work in new ways that it says will satisfy customers’ main gripes from the liability phase of trial.
“My favorite phrase is ‘Let’s settle this case’”
Without a settlement, Brinkema will be left in the same unenviable position as Judge Amit Mehta previously was in the DOJ’s case against Google’s search monopoly: deciding how to reengineer the market going forward to account for past harms. Mehta ultimately emphasized judicial humility in his remedies decision and declined to go as far as a breakup of Google’s Chrome browser. While Brinkema could still choose to go a different route, her comments at the close of trial hint at the challenge that several other pending tech monopoly cases could face even if the government wins their initial battles.
Mehta and Brinkema’s rulings calling Google an illegal monopolist were historic, marking the first tech monopoly rulings in a case brought by the government in more than 20 years. They showed that courts could understand technical businesses and anticompetitive mechanisms buried in lines of code or piles of data as counter to an antitrust law written over a century ago.
But deciding whether a company broke the law is likely more comfortable ground for a judge than redesigning a broken market for the future — especially one that relies on at least some degree of technical work to change. Throughout the trial, Brinkema heard from expert witnesses on both sides about the technical feasibility of breaking Google’s ad tech systems apart. Often, they sounded diametrically opposed — government experts said the changes would be doable and saw no reason for degraded functionality, while Google’s experts painted the task as ludicrously difficult, with no promise of a comparable product on the other side.
If she forgoes any structural changes, Brinkema could still appoint a monitor to ensure Google’s compliance with behavioral remedies. Even with that, though, she worried that the wrong move could doom the result. “That is part of the key of making whatever the final remedy is work,” Brinkema said. “I would be very concerned about any monitor who might have any stake in the outcome.”