Ad Tech Decision Constitutes ‘Embarrassing Capitulation’ to Google

In one of the most consequential decisions in recent US history – affecting freedom of the press, freedom of expression, freedom of inquiry, and freedom of debate – Judge Leonie Brinkema has failed to hold Google accountable for its illegal domination of display advertising on the internet.  

Barry Lynn, Director of the Open Markets Institute: "After finding Google guilty of illegal conduct, this decision is an embarrassing capitulation that essentially lets them determine their own punishment in exchange for a promise not to repeat the behavior. Judge Brinkema’s decision fails the American people and American democracy. It allows the corporation to continue to extract excessive rents from publishers and advertisers. In practice, this will lead to continued starvation of US news publishers of the advertising revenues they have depended on since before the Founding – further degrading both the journalism and informed debate vital for democracy, and likely driving further consolidation of power. It leaves the corporation largely free to continue to manipulate interactions between publishers and advertisers in ways that are directly antithetical to American freedom.” 

Judge Brinkema’s own earlier findings about the harm Google caused damn her decision. After finding the digital giant liable in April 2025 for monopolization on multiple grounds, she now refuses to take the logical next step and direct Google to divest its must-have ad exchange AdX and publisher-side tool DFP.   

"In other words, after first finding Google guilty of illegally imprisoning America’s publishers and advertisers in a Panopticon where the jailer knows everything and the inmates almost nothing, Judge Brinkema then decided that forcing Google to close this prison would be a form of hardship for the corporation," Lynn said.  

Judge Brinkema’s decision also directly violates settled US antitrust doctrine. The Supreme Court has made clear that divestitures are the “most effective of antitrust remedies." 

The Supreme Court has also ruled that hardship to defendants cannot be the basis for denying the government effective fixes.   

The immediate practical result is that advertisers, publishers, and the public will continue to suffer a variety of extremely dangerous harms from Google’s domination of display advertising.  

The Open Markets Institute calls on the DOJ and the states to appeal this decision to the Fourth Circuit. It is essential that the court of appeals vacate Judge Brinkema’s remedy and erroneous approach to holding lawbreaking monopolists to account.  

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The Center for Media and Digital Governance at Open Markets has covered U.S. v Google extensively. You can find our coverage here.