Written By: Joshua Koran
1. What just happened?
Our first article (https://prebid.org/untangling-googles-anticompetitive-tying-what-the-ad-tech-ruling-means-for-rivals-in-the-digital-advertising-market) examined the April ruling against Google, which found it to have “willfully engaged in a series of anticompetitive acts to acquire and maintain monopoly power in the publisher ad server and ad exchange markets for open-web display advertising” (Brinkema “Ad Tech” Decision, 04/17/2025, p. 114, https://storage.courtlistener.com/recap/gov.uscourts.vaed.533508/gov.uscourts.vaed.533508.1410.0_7.pdf). The court held Google illegally leveraged its dominant “ad tech tools [Counts I and II] to engage in a series of acts that diminished rivals’ scale, thwarted their ability to compete, and harmed customers” (Ad Tech, p. 86).
The court rejected Google’s “refusal to deal” defense, finding Google’s illegal conduct involved exclusionary routing and pricing practices—specifically, via its unlawful tying of its publisher ad server (DFP) and ad exchange (AdX) through “contractual policies and technological integration” (Count IV) (Ad Tech, p. 112-114).
On May 5, 2025, the DOJ proposed several remedies to prevent Google from continuing to leverage its dominance and more importantly restore competition in the markets for open web digital advertising tools (“DOJ proposal”, 05/05/2025, https://storage.courtlistener.com/recap/gov.uscourts.vaed.533508/gov.uscourts.vaed.533508.1430.0.pdf). Google suggested alternative remedies, which omit any divesture options and offer more limited behavioral remedies (“Google proposal”, 05/05/2025, https://storage.googleapis.com/gweb-uniblog-publish-prod/documents/1431_2025.05.05_Googles_Proposal_for_Appropriate_Remedies.pdf).
2. How do courts reestablish competition?
Under well-established US policy, remedies to antitrust violations “must seek to:
- unfetter a market from anticompetitive conduct,
- terminate the illegal monopoly,
- deny to the defendant the fruits of its statutory violation, and
- ensure that there remain no practices likely to result in monopolization in the future.”
This article evaluates how well proposed remedies will end Google’s discriminatory behavior, restore competition and deter future anticompetitive conduct (DOJ proposal, p. 7, 16).
3. How well do remedies address harm?
The court identified four broad categories of harm:
- Locked-In Publishers: Google restricted AdWords advertisers’ demand to AdX, “ensur[ing] that publishers would lose significant revenue if they did not use AdX” (Ad Tech, p. 96). This restriction as well as excluding real-time bids from rival demand sources reduced publishers’ ability to choose better or cheaper alternatives (Ad Tech, p. 94).
Improve publisher control and mandate open interoperability requirements would address locked-in publishers.
Divest AdX ad exchange (DOJ proposal, p. 8-9). The DOJ seeks that Google both divest AdX as well as prohibit Google from operating an ad exchange for ten years (more on this below).
Allocate some AdX bids to rival publisher ad servers. Google’s counter proposal is to maintain control of AdX and instead “make real-time bids for open-web display ads from AdX available to all rival publisher ad servers” (Google proposal, p. 17). This difference is important. Google’s proposal requires publishers to maintain a separate integration specifically for any AdWords advertisers’ demand that Google keeps exclusive to AdX, regardless of its owner. Moreover, sending some AdX bids to “all” rival publisher ad servers does not mean Google would send all AdX bids via such a path. Given latency and cost, not all bids can be routed to all publisher auctions. Only a competitive market that provides fee and price transparency and returns control to publishers on integrated demand paths can ensure a fair matching process. This is why the DOJ proposal requires bids to flow through a publisher-controlled path and supporting logic controls upstream of the publisher’s final auction (DOJ proposal, p. 9). However, what is also required is ensuring buyers also have this transparency, as well as prohibiting pricing and routing discrimination by Google, so buyers can control the price they pay for various supply paths (that might otherwise try to hide or include excessive fees) so as to restore competition in open-web display advertising. (DOJ proposal, p. 12).
- Market Entrenchment through Self-preferencing Conduct: “Google’s monopolies in the publisher ad server and ad exchange markets, enhanced by the AdX-DFP tie, have enabled Google to introduce a series of anticompetitive policies, practices, and technology changes to its sell-side ad tech tools that were not in its publisher customers’ best interests. These changes [e.g., First Look, Last Look, Project Poirot, Unified Pricing] decreased product quality and harmed competition by further entrenching Google as the dominant company in open-web display advertising” (Ad Tech, p. 98, 114).
Fair Treatment Mandates to End Discriminatory Routing. To ensure Google does not abuse its dominance to steer bids in a manner that are not in its “customers’ best interests,” the DOJ proposal aims to ensure advertisers have greater choice over how to rout their demand to publishers without fear of “discriminatory terms with respect to bidding, matching, placement of ads, or provision of information.” The DOJ also seeks to prohibit Google from offering or accepting payment to “preferentially rout[] buyside demand (from AdWords or DV360)” (DOJ proposal, p. 12).
Pending a divestiture, open-source DFP Publisher Ad Server logic. The DOJ suggests that at a minimum the final auction logic should be open-sourced (DOJ proposal, p. 10-13). Yet, the DOJ’s proposal only partially addresses the challenges publishers faced when Google removed their control over how final auctions evaluated different sources and types of demand. Unless publishers and rivals—such as a “neutral, third-party industry organization (or another entity chosen by the publisher)” (e.g., Prebid) —are allowed not just to integrate into and use, but also to modify and control this auction logic, publishers would still be subject to Google’s rules that it could exploit due to its dominance (DOJ proposal, p. 10-11). To address Google’s prior conduct of unilaterally controlling how rival publishers compare different types of demand from competing sources, the court might prohibit Google from giving its own ad services an unfair advantage in auctions for rival publishers’ ad inventory (e.g., exclusive control over final auction logic, exclusionary use of rivals’ bid data or advertiser demand sourced by other channels, faster access to publisher ad inventory or longer bid evaluation time as alleged in Jedi Blue) (Ad Tech, p. 30-31, 35-36, 104, 111-112).
Pending a divestiture, operate DFP server-to-server APIs on equal terms with other ad exchanges as its AdX integration. DOJ’s proposal is limited to “an API and server-to-server connection for DFP.” (DOJ proposal, p. 10). Given Google’s ongoing control over Android, Google could satisfy this language but frustrate its intent by integrating its AdWords or DV360 advertisers’ demand solely via client-to-server APIs. Google has suggested that it would “remove any Google Ad Manager policies that restrict the sharing of such bids from AdX with a rival publisher ad server” (Google proposal, p. 17, emphasis added). This partially addresses the DOJ’s concern, but removing “policies” does not touch on the “functionality” or “scale” associated with restricting (some) demand from rival publisher ad servers. Moreover, direct integrations between advertisers’ demand in Google Ads or DV360 and publisher ad servers, not integrated via AdX, would not be covered by either DOJ or Google’s current language. See below for how to address scale concerns.
Improve control for some pricing rules within Final Auction. Google instead proposes it would allow “publishers to set different price floors for different bidders (i.e. ‘deprecate Unified Pricing Rules’)” (Google proposal, p. 2). Google’s suggestion to remove “unified pricing” still requires rival publishers to treat all types of demand from a single source equally, rather than ensure they have more granular and better controls within each source of demand and other quality features in that path. Google also offered to commit to not “rebuilding the auction effects” of its first or last-look advantages for the subset of auctions involving “open-web display ads.” Google states that its first and last look have “not existed since at least 2019,” yet the definitions these two are limited to AdX, i.e. AdX “having a first right of refusal” and AdX seeing “competing exchanges’ bids” (Ad Tech, p. 99). Given the rebranding and other auction mechanisms Google has proposed, e.g., PAAPI noted further below, Google could “benefit from” tactics that have “like effect” without “rebuilding” AdX-specific features. The DOJ does note “a series of behavioral remedies” are required “to prevent Google from engaging in… similar conduct in the future” (DOJ proposal, p. 12).
- Reduced Innovation and Higher Costs: With less competition, there was less pressure on Google to innovate or lower fees, such that “AdX’s ‘20 percent’ take rate was ‘around double’ the take rate” offered by other exchanges (Ad Tech, p. 77).
Improve transparency and competition in the ad exchange market to ensure fair pricing. Exposing supracompetitive fees would make it easier for publishers, advertisers, and regulators to spot unfair practices, monitor compliance, and foster improved trust. Given the purpose of an ad exchange is to connect publisher sellers with media buyers’ tools, ahead of any divestiture, the DOJ proposes transparency of fees, pricing and campaign metadata remedies associated with Google’s “buyside tools” (DOJ proposal, page 12). The DOJ offers exemptions based on the “express instruction of an advertiser,” yet these should be carefully structured to prevent Google from offering volume-based discounts that combine its own inventory (like Search or YouTube) with rival publishers’ inventory. This concern is only indirectly alluded to via the DOJ’s remedy that bans “seeking, offering, or accepting any compensation or other remuneration for preferentially routing buyside demand (from AdWords or DV360)” (DOJ proposal, p. 12). Additional anti-steering and non-retaliation provisions could prohibit Google from using pricing, auction design, or user interface tactics to steer advertisers towards spending across its own inventory or penalizing them for spending with rivals.
Pending a divestiture, improve transparency in publisher ad server market to ensure fair pricing. The DOJ suggests that “Google… share DFP data that improves auction logic with the industry organization hosting the open-source final publisher ad server auction” (DOJ proposal, page 14). However, as mentioned above, this framing confuses the optimization (use of data with the logic) with the design (control of the logic) of the final auction module.
Ban practices likely to result in monopolization in the future. The DOJ also seeks the court prohibit Google from re-entering the ad exchange market for 10 years” (DOJ proposal, p. 9). This has important ramifications for Google’s Privacy Sandbox, in which Google’s PAAPI meets the court’s definition of an “ad exchange.” The DOJ notes that Google should be enjoined from “hosting or recreating the final auction logic in any Google product, including DFP, Android, or Chrome” (DOJ proposal, p. 11). Combined these remedies would ensure Google cannot migrate rival publishers’ ad auction logic currently operated in a publisher ad server into its Android OS or Chrome browser (see Google’s proposed PAAPI). Another challenge raised during both the Ad Tech and Search trials, was the scale of Google’s first-party data that it can use to train its B2B advertising models.
Restrict Google’s cross-context and other use of data. The DOJ proposes to prohibit Google from using the data it collects from Android, Chrome or any Google properties YouTube, Search or Gmail to inform AdWords or DV360’s “bidding on, buying, or evaluation of digital advertising on third-party… websites” (DOJ proposal, p. 14). Without further limits, the DOJ noted the concern that advertising across Google’s owned-and-operated ad inventory would retain more signals to improve advertising effectiveness than when using Google’s same buying solutions across rival publishers’ ad inventory. “Google’s vast repositories of data about advertisers, publishers and Internet users, combined with the company’s scale and technical sophistication, will further benefits its open-web display advertising business” (DOJ proposal, p. 13). Accordingly, the DOJ also proposes restricting Google’s internal sharing of “data and scale advantages are thus among the ‘fruits of its statutory violation’ that Google must be “den[ied]” in order to restore competition.” (DOJ proposal, p. 13). Some of the DOJ Search sharing remedies might also be considered to further address scale issues associated with Google’s buying tools and advertising data.
Anticircumvention requirements: Assuming DFP and/or AdX are divested, a key challenge is how to ensure any acquiring organization does not repeat the abusive conduct. For example, if Google AdWords was the lever Google used to coerce publishers to use both its ad exchange and publisher ad server, merely switching ownership of either of those solutions only changes the brand, but does not directly prohibit Google from sending all of its AdWords demand exclusively through these same solutions under new ownership (DOJ proposal, p. 2, 8, Google proposal, p. 17-18). As a partial safeguard, the DOJ wants to approve the acquirers for Google’s divested solutions (DOJ proposal, p. 9). However, there would need to be prohibitions on restricting control from either media owners or buyers to ensure competition is restored and “no single actor can reassert monopoly power in the publisher ad server market” and “preferentially rout[] any buyside demand (from AdWords or DV360) to any ad exchange or publisher ad server” (DOJ proposal, p. 10, 12). To prevent Google from using anticompetitive “contractual policies” in the future, the remedies would be strengthened by more explicitly ensuring that Google does not leverage advertisers’ demand in an anticompetitive fashion, as was found by the court in the AdX and DFP tie. Moreover, as noted in the open CMA Sandbox case, Google should be prohibited from using dominance in its other assets (e.g., Search) to prioritize latency as a key bid factor, effectively tying DFP to Google’s own cloud infrastructure or other B2B solutions (see Google proposal, p. 11).
- High Barriers even for Well-resourced Competitors: “Google’s publisher ad server… is protected by high barriers both to entry and expansion.” (Ad Tech, p. 73). Even well-resourced competing ad solution providers struggled to attract business because Google’s illegal tying practices made it nearly impossible for them to compete on a level playing field given “Google’s scale and network effects across the open-web display ecosystem” (Ad Tech, p. 77).
Improve competition for Publisher Ad Servers requires both transparency and interoperability to compensate for the scale and network effects.
Divest DFP Publisher Ad Server: The DOJ has proposed Google divest DFP to undo exclusionary conduct and control of rival publishers’ final auctions that unfairly restricted rival-sourced demand from improving publisher monetization and advertiser effectiveness (DOJ proposal, p. 9-11). The DOJ also seeks to ensure Google relies on making the same data available to rivals via the transparency and interoperability obligations above to help level the playing field.
Divestiture would be expensive to lift & shift functionality. Google raises the concern that divesting DFP and/or AdX would require an acquirer to make substantial investments to shift functionality from Google’s infrastructure to some other infrastructure (Google proposal, p. 11-15). While it is highly likely that there are many DFP integrations to internal specific Google technology that would remain with Google, there is little stopping a mandate for Google to support the continued operations during such a transition, as is a standard practice in mergers and acquisitions. As described above, more important that merely changing ownership, to be effective, remedies must improve both fee and pricing transparency as well as control over routing for both media owners and buyers.
3. What’s Next?
The effectiveness of proposed remedies will be judged by whether Google’s ad tech rivals can offer publishers better monetization at lower costs (Ad Tech, p. 76-77), while also enabling advertisers to optimize campaigns more efficiently and effectively across publishers’ ad inventory (DOJ proposal, p. 14). The next phase in the case involves gathering and evaluating information related to the above remedies through June 30, 2025, prior to the next portion of the trial scheduled for September 2025.
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