On Friday night at 10:15 p.m., Google and the Department of Justice filed the next round of paperwork that will determine what Google’s punishment will look like in the ad tech antitrust case – the latest move in a legal saga that’s been grinding through the courts since January 2023.
The 41-page document, which outlines each side’s proposed final remedies, is packed with competing provisions. The DOJ’s preferred language and Google’s preferred language appear side by side in brackets throughout.
This filing is the next step after Judge Brinkema’s proposed remedies were unsealed on September 16.
Ideally, both sides would have negotiated the terms and handed Judge Leonie Brinkema a clean document that she’d sign into a binding order, but that didn’t happen. Now, Judge Brinkema has to referee the disputes before she can sign a set of enforceable remedies.
Once she does – and there’s no set timeline for that – a 60-day clock will start before anything takes effect. And if you feel like winning a bet, put your money on the fact that Google will no doubt appeal.
Some of what’s in dispute might look like procedural housekeeping, but the details have real consequences for whether the remedies end up with any bite.
For example, Google and the DOJ still disagree over who gets to nominate the compliance monitor. In the DOJ’s view, the government would propose a list of candidates for Google to choose from, while Google is pushing for the exact opposite.
Here’s what else they’re bickering about and what they actually agree on.
Agree …
There are no major disagreements on the core remedies.
Google has to build a connection between AdX and Prebid so publishers can solicit AdX bids through Prebid’s header bidding wrapper, and AdX also has to accept bid requests from non-Google publisher ad servers and respond on the same terms it gives DFP.
Meanwhile, Google is barred from reimplementing first look or last look within DFP or AdX for programmatic open web display auctions – which is pretty easy, considering Google no longer does either.
But now you can also add unified pricing rules, which prevent publishers from setting different price floors for different buyers, to the list of banned auction manipulation tactics.
On top of that, Google Ads can no longer bid directly into DFP either – it has to go through AdX or Prebid like everyone else – and DFP and AdX must be offered as separate contracts going forward. As in, no more tying; publishers can use one without the other.
Publishers will also win some new data rights. Google must let publishers export their DFP configuration data and historical bid data within three months of the order taking effect, which would be useful for any publisher considering a switch to a rival ad server.
… to disagree
What’s more interesting, though, are the points on which Google and the DOJ still can’t align, and there are a bunch of those.
Regarding timing, the DOJ wants Google to connect AdX to Prebid within six months of the order taking effect. Google wants twelve months. And the same goes for the AdX and rival ad server integrations. Google is angling for more time.
Then, Google wants up to 24 additional months to implement remedies internationally, while the DOJ is calling for remedies to apply globally from Day One.
They disagree on the data, too. The DOJ wants publishers to be able to request their DFP data when they’re “considering or evaluating” a non-Google ad server. If Google were to get its way, that data would only become available once a publisher has already decided to make the switch.
And the monitor is also a sticking point.
Both sides are okay with a six-year monitoring period, during which time the monitor would have access to Google’s systems and source code. But they disagree on who gets to nominate the monitor and how much power they’ll have once appointed.
The DOJ wants Google to “cooperate fully” and provide “full and complete access” to all documents, code and personnel – current and former – within 14 days. Google’ s preferred language swaps “cooperate fully” for “no action to interfere” and “full and complete access” for “reasonable assistance.” Very different vibes.
Lastly, the DOJ says Google should only have 15 days to raise any disputes with the monitor, and Google wants 30.
Then there’s the question of what happens if Google doesn’t comply and its behavior tips into what the DOJ calls “malfeasance,” crossing the line from technical dispute into something the court can punish. The DOJ wants to set a clear standard for what to do.
The threshold matters because without it there’s no agreed-upon trigger for initiating contempt proceedings, which is one of the few tools available to force a company to follow a court order.
When it comes to “malfeasance,” Google’s version of the document includes the words “[Google omits this subsection]” in brackets, meaning that Google would, in the spirit of Bartleby, prefer not to set a standard at all.
That pattern – each side softening, sharpening or omitting language as fits their agenda – repeats throughout the entire filing, and, to be fair, this is what lawyers do.
And now that they’ve done it, the ball is back in Judge Brinkema’s court.
