Google illegally maintained monopolies over digital ad servers and ad exchanges on the open web, a federal judge in Alexandria has ruled, but found the Department of Justice failed to prove its allegations on the buyer side of the market.
In an opinion issued on Thursday, the US District Court for the Eastern District of Virginia found Google had violated the Sherman Act by willfully obtaining monopoly power over a tool catered to publishers like the New York Times and Wall Street Journal to sell ad space on their websites as well as the company’s platform for matching advertisers to publishers through auctions.
However, Judge Leonie Brinkema found that the Antitrust Division failed to prove the existence of a market for advertisers to buy the open web display advertising sold on these sites.
The judge said that this narrow market improperly excludes social media ads and other forms of digital advertising, which advertisers regularly use instead of Google’s offerings.
“When one ad format or channel shows better return on investment, advertisers and the ad agencies that represent them will shift ad spending to that different format or channel to optimize performance,” Judge Brinkema said.
When filing the lawsuit in 2023, the DOJ stated that it sought to force Google to divest its DoubleClick for Publishers tool, which it acquired in 2007. However, Judge Brinkema ruled today that the DOJ had not demonstrated that the merger itself was anticompetitive.
The court requested that the DOJ and Google propose a schedule for a hearing on remedies to address Google’s anticompetitive conduct.
In a statement, Google claimed that it won half of the case and will appeal against the other half.
“We disagree with the Court’s decision regarding our publisher tools,” said Lee-Anne Mulholland, vice president of regulatory affairs at Google. “Publishers have many options and they choose Google because our ad tech tools are simple, affordable and effective.”
On Monday, the DOJ will begin the remedies phase of its litigation against Google in a separate case to resolve what the US District Court for the District of Columbia ruled had been unlawful conduct to maintain dominance over online search engines.
In its ad tech case, the Antitrust Division alleged that Google illegally monopolised three markets for advertising technology tools marketed towards advertisers, website publishers and the exchange where digital ad sales happen. The DOJ’s allegations focused on tools used to sell advertisements that appear on the open internet rather than apps.
Throughout the trial in 2024, the DOJ argued that Google acquired rivals it perceived as threats and made arbitrary product changes designed to lock in its customers.
Meanwhile, Google has defended its conduct, arguing that it benefits the digital ad ecosystem and ensures quality and security for its customers.
Google also said that Supreme Court precedent in Trinko and American Express should sink the lawsuit.
Trinko previously helped Google defend against a Colorado-led coalition of states’ claims that it illegally refused to offer its Search Ads 360 management tool to rivals on equal terms.
During closing arguments, Judge Brinkema indicated she was weighing both of these precedents, saying that Trinko might apply to some of Google’s alleged conduct but she was unsure if AmEx applied at all.
In her opinion, the judge decided that AmEx did not apply to the digital advertising markets challenged by the DOJ.
“Distinct products should not be grouped into a single omnibus market simply because they work together to achieve the same overarching purpose,” she wrote.
Judge Brinkema said defining a market to include all of Google’s buy-side and sell-side tools would ignore commercial realities that these products are not interchangeable.
Google’s tools also do not facilitate a single transaction, like the market at issue in Amex, but serve multiple functions related to ad sales, like inventory and performance tracking, Judge Brinkema said.
“The shared high-level purpose of these products, however, is far too broad for defining an antitrust market,” she wrote.
Judge Brinkema also said she would not sanction Google over its “systemic disregard of the evidentiary rules” at this time, saying the company abused attorney-client privilege designations and deleted chat messages.
Former Assistant Attorney General Jonathan Kanter, who led the agency’s effort to bring the suit, heralded the efforts of staff.
“This is a huge victory for antitrust enforcement plain and simple,” Kanter said. “I am so proud of our team at DOJ for this momentous outcome.”
The DOJ was contacted for comment.
Counsel to Google
Paul Weiss Rifkind Wharton & Garrison
Karen Dunn, Jeannie Rhee, William Isaacson, Amy Mauser, Martha Goodman, Bryon Becker and Erica Spevack in Washington, DC, and Erin Morgan in New York
Freshfields Bruckhaus Deringer
Eric Mahr, Andrew Ewalt and Tyler Garrett in Washington, DC, and Justina Sessions in Redwood City, California
Axinn Veltrop & Harkrider
Daniel Bitton in San Francisco and Bradley Justus in Washington, DC
Law Offices of Craig C Reilly
Craig Reilly in Alexandria, Virginia
Counsel to the Department of Justice
Ryan Danks, Timothy Longman, Julia Tarver Wood, Katelyn Barry, Craig Briskin, Katherine Clemons, Nicholas Cheolas, David Geiger, Jacklin Chou Lem, Arshia Najafi, Brent Nakamura, G Charles Nierlich, Chase Pritchett, Andrew Schupanitz, David Teslicko and Michael Wolin in Washington, DC
US Attorney’s Office for the Eastern District of Virginia
Jessica Aber and Gerard Mene in Alexandria
