Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Google and government plaintiffs file joint proposed final judgment in publisher ad tech antitrust litigation, (Oct 9, 2026)

By Justin Marcus Smith, J.D.

Underlined sections showed differences of opinion, especially about monitoring and enforcement, with the government indicating concerns about circumvention and frustration in multiple sections.

Google LLC (Google) and the Department of Justice, along with seventeen state attorneys general, have filed joint notice of their proposed final judgment in the ad tech antitrust litigation that has been pending since 2023 in the Alexandria, Virginia, federal district court. The parties filed the joint notice pursuant to court order. They said they collaborated to synthesize their post-trial submissions in a manner consistent with the court’s September 2, 2026 memorandum opinion. However, the parties did not reach agreement on some points which they underlined for the court in their respective proposals. The most obvious areas of divergence concerned monitoring and enforcement (U.S. v. Google LLC, No. 1:23-cv-00108-LMB-JFA (E.D. Va. Oct. 2, 2026)).

Background. In January 2023, the Department of Justice and multiple state attorneys general filed a joint complaint alleging that Google violated the Sherman Act by monopolizing digital Ad Technology products in three distinct Ad Tech markets. The action paralleled consolidated multi district antitrust actions in the Southern District of New York.

In April 2025, the court determined that Google violated Section 2 of the Sherman Act by willfully acquiring and maintaining monopoly power in the open-web display publisher ad server market and open-web display ad exchange market. The court also determined Google unlawfully tied its publisher ad server (DFP) and ad exchange (AdX) in violation of Sections 1 and 2 of the Sherman Act.

The court conducted a bench trial on remedies in September 2025. The court unsealed a remedies opinion a year later, in September 2026. That opinion rejected the government’s proposals for structural remedies and accepted “most” of the parties’ proposed behavioral remedies. The court found the structural remedies neither realistic nor needed and that the proposed behavioral remedies were sufficient to open the ad tech markets and prevent Google from reverting to anticompetitive conduct in these markets.

Scope. The Final Judgment, whatever its final form, is to apply solely to indirect demand, not to any ad inventory, except for open-web display ad inventory. It is not to apply to AdSense; AdMob; DV360, or any other current Google advertising technology tool besides Google Ad Manager or Google Ads. It is to apply to Google, its officers, directors, employees, and so on, as well as all persons who acted in concert with Google who receive actual notice of the final judgment.

Google indicated a number of concerns about the exact language pertinent to prohibited markets. Google suggested it should not be prohibited from operating or competing in any relevant market found by the court other than the stated restrictions. Moreover, Google pressed that the relief stated should not be predicated on any finding that Google Ads competes in any relevant market defined by the court or possesses market power or monopoly power in any relevant market.

Google suggested that each element of mandated relief should also be implemented outside the U.S. on the same timeline generally not to exceed 24 months.

The government added here that the final judgment is not meant to confer, specifically, enforcement rights or remedies to any non-party.

Definitions. The parties had some limited disagreements about definitions. The government wanted to add definitions of Google as defendant Google LLC, as specified, and “malfeasance” to mean “conduct wholly outside the bounds of the law or reasonable disagreement.”

The government also wanted to specify that “Publisher Historical Data” should reflect all bids for a publisher’s Open-Web Display Ad Inventory, whether the bid won the ad impression or not, plus bidding details. On this point, Google wants to qualify that the data should only include data that Google ordinarily maintains and makes available to Publishers through Google Ad Manager interfaces. The government thought it important that it should not matter whether the data was “previously made available to the Publisher.” The government also wants the data to have a persistent per impression identifier fully readable in plaintext.

Google wanted to restrict the “Open-Web Display Ad Inventory,” “Preferred Deal Inventory,” and “Programmatic Guaranteed Inventory” definitions to apply only to customers in good standing with Google contracts.

Term. The parties agree on a term of six years. However, Google wants the final judgment to further specify that the provisions related to the Monitor will expire on the sixth anniversary of the effective date.

Interoperability, data sharing. The parties agree that Google must create and implement an adapter to enable AdX-prebid interoperability. Among other things, it should enable the AdX Publisher Customer to receive Real-Time Bids from AdX for all Indirect Demand for Open-Web Display Inventory. The parties disagreed on the timing after the Effective Date, defined elsewhere as 60 days after entry of Final Judgment.

The parties also largely agreed on terms for AdX-Publisher Ad Server Interoperability, DFP-Prebid Interoperability, Publisher DFP Data Portability, Publisher AdX Data Portability, and DFP Technical Documentation. The government indicated concerns about circumvention, provision of pricing information and Google audience data, and frequency of DFP data file availability.

Google had a concern about the technical feasibility of submitting bid requests given the “technical reality” that DFP does not run on the same infrastructure as Qualified Prebid Server Instances. As to frequency of DFP data file availability, Google also suggested the parties should work with the Monitor on further defining the specifics of the documentation.

Prohibitions. The proposed Final Judgment contains various prohibitions:

• Direct bidding. Google shall not build certain direct bidding integrations between Google Ads and DFP.

• Non-discriminatory bidding. AdWords, as further specified, shall not prioritize bidding based on whether a publisher is using AdX or DFP. The government wants to make this provision applicable to any Google ad tech product, including AdX or DFP. AdWords may otherwise prioritize bidding on AdX only to achieve advertiser return on investment. Google proposed additional terms about what return on investment means. The government asks that the advertiser should instruct prioritization, with the Monitor and Technical Committee to evaluate, and that prioritization of AdX by AdWords must be reasonable, supported, and verifiable.

• Non-discriminatory use of data signals. The government proposed terms about non-discriminatory use of data signals like cookie identifiers and the like. Google proposed relevant provisions in other subsections.

• Non-discriminatory ad serving. The parties appeared to agree on the terms about DFP serving of Open-Web Display Ad Inventory according to Publisher’s preferences in a non-discriminatory way.

• Non-discriminatory ad exchange. The parties agreed that when a Publisher uses AdX to submit a real time bid request for Open-Web Display Ad Inventory, AdX shall ensure equivalent information is available to all Ad Buying Tools, unless the Publisher specifies otherwise, again without regard to whether the Publisher or Advertiser is using any Google products, subject to any restriction of data interchange under governing law. This subsection does not require Google to share data inconsistent with Google’s present internal privacy policies in way that circumvents or frustrates Google obligations.

• Non-discriminatory use of Google first-party data. Subject to conditions, AdWords shall not use Google First-Party data to determine or modify the Bid price for an Open-Web Display Impression for a specific user. The parties disagreed on some of the wording about purposes and privacy policies.

• Tying DFP to AdX real-time bids. Google shall not enforce restriction of sharing of Real-Time Bids from Indirect Demand for Open-Web Display Ad Inventory from AdX with a non-Google Publisher Ad Server, as further specified.

• First look, last look. Google must not reimplement either First Look or Last Look features or functionality within DFP or AdX with respect to Indirect Demand for Open-Web Display Ad Inventory.

• Unified pricing. Google must deprecate and not reimplement its Unified Pricing Rules in DFP for Indirect Demand for Open-Web Display Ad Inventory.

Monitoring, compliance. The parties had a number of disagreements on the wording pertinent to monitoring, administration, and compliance. Disagreements included how to handle disputes about Monitor duties or powers and paying the Monitor’s costs. However, the parties appeared to agree to the terms pertinent to the three-member Technical Committee who will advise and support the Monitor. The parties also had a number of divergences about the terms pertinent to Google’s internal Compliance Officer and compliance inspection.

Anti-reprisal. The government wants Google to establish or maintain an anti-reprisal policy to be communicated to all Google employees. Google suggested its own wording.

Disclosure, confidentiality. The government wants Google to designate pertinent portions of documents as confidential in a way that conforms with regulation. Confidentiality designations should expire after 10 years if not extended. Google wants to reserve the right to claim protection from public disclosure pursuant the Freedom of Information Act or other applicable law.

Enforcement. Google took the position that the entirety of the government’s proposed enforcement section was unnecessary. The marked-up proposed Final Judgment submitted to the court expressly stated, “Google omits this section as unnecessary.”

The Case is No. 1:23-cv-00108-LMB-JFA.

Judge: Brinkema, L.

Attorneys: Aaron Michael Sheanin, U.S. Department of Justice, for the U.S. Craig Crandall Reilly (Law Office of Craig C. Reilly) for Google LLC.

Companies: Google LLC

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