Court to weigh divestiture in Google ad tech antitrust case
Forcing Google to divest assets in the DOJ's advertising market antitrust case against it will present a challenging issue to the court during the upcoming remedies trial.
Google is facing more divestiture proposals following an April antitrust ruling that the tech giant holds an illegal monopoly over the online ad tech stack.
A federal judge ruled in the U.S. Department of Justice's antitrust case against Google that the company monopolized the ad exchange market using products in its Google Ad Manager. The unified advertising platform includes Google Ad Exchange (AdX) that connects publishers and advertisers, and DoubleClick for Publishers (DFP), which helps publishers manage their advertisement inventories.
The DOJ has proposed that Google divest AdX and DFP, the core components of Google Ad Manager. It also wants Google to share and enable access to data for publishers and advertisers and to prohibit Google from using data to preference its own products.
Google plans to appeal the ruling, noting that a forced divestiture of Google Ad Manager would make ineffective the tool advertisers use to connect with publishers and reach customers. Google claims that the DOJ's proposed divestiture proposals "go significantly beyond the Court's narrow ruling."
John Yun, associate professor of law at the George Mason University Antonin Scalia Law School, said Google's position is warranted.
"I don't think the DOJ's ask is appropriate, and it's not consistent with Judge Brinkema's actual findings," he said. Yun spoke during a panel discussion Monday on the Google ad tech antitrust ruling hosted by the Information Technology and Innovation Foundation (ITIF).
Google's acquisitions not anticompetitive
U.S. District Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia ruled that Google's acquisitions and advertising tools, including DoubleClick, were not anticompetitive.
Rather, the way Google integrated the DoubleClick products into what is now Google Ad Manager became problematic, Yun said. Google acquired the company in 2007.
"That naturally lends itself to more of a behavioral conduct remedy rather than a structural one," he said.
In antitrust cases, remedies to fix anticompetitive conduct are either behavioral, in which a company is provided with instructions to fix its conduct, or structural, meaning companies are forced to sell parts of their business.
Yun described the divestiture proposals in the Google ad tech case as "a little too drastic."
"I'm not saying structural is inappropriate here, I just felt like given the theories of harm, it's consistent with behavioral," he said.
Erik Hovenkamp, professor of law at Cornell Law School, said he's not a "huge fan of breakups," and that it's unclear whether a breakup is the only way to address concerns in the Google ad tech case.
"I would like to see concrete evidence for thinking that a divestiture was necessary before I would feel comfortable going in that direction," he said during the panel discussion.
Kathleen Bradish, vice president of the American Antitrust Institute, said she thinks the DOJ will produce more evidence during Google's upcoming remedies trial in the ad tech case that would help determine whether structural or behavioral remedies make the most sense.
If they got rid of either AdX or DFP, that would eliminate the sort of leveraging between the two markets that the DOJ is concerned about. They shouldn't need to divest both.
Joseph ConiglioDirector of antitrust and innovation, ITIF
Bradish questioned whether a behavioral remedy would fully address concerns about Google's control over the ad tech stack.
"What will actually restore competition here," she said during the panel. "Whether it's behavioral, structural, it has to do that in order to be an effective remedy. My suspicion is that's going to lean more toward the structural than toward the behavioral."
Even if a structural remedy is deemed necessary, Joseph Coniglio, ITIF's director of antitrust and innovation, argued during the panel that getting rid of one product should eliminate the DOJ's concerns.
"If they got rid of either AdX or DFP, that would eliminate the sort of leveraging between the two markets that the DOJ is concerned about," he said. "They shouldn't need to divest both."
Federal agencies tough on tech
Though Google plans to appeal, and it's unclear whether Brinkema's decision will stand, the remedies proposed by the DOJ in both the ad tech case and the online search case send a clear message about the DOJ's antitrust priorities, Coniglio said.
A judge ruled in August 2024 that Google held an illegal monopoly in online search -- another case in which the DOJ has proposed significant divestiture remedies.
"We now have a Department of Justice that, across administrations, is seeking to force Google to divest Chrome, Android and now much of its ad tech ecosystem," Coniglio said. "That sends a signal about the current antitrust policy."
However, Hovenkamp said the DOJ's ad tech and search cases against Google were some of the government's strongest antitrust cases against big tech. The DOJ has filed an antitrust case against Apple, while the Federal Trade Commission has antitrust cases against Meta and Amazon.
Litigating the remaining big tech antitrust cases will be challenging, he said.
"It's going to get a little tougher for the agencies in the coming years," Hovenkamp said.
Makenzie Holland is a senior news writer covering big tech and federal regulation. Prior to joining Informa TechTarget, she was a general assignment reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.
