The Justice Department has now won two antitrust cases against Google in a year and been refused a breakup in both of them.
The usual reading is that judges will not dismantle a national champion. Harry First, an antitrust scholar at NYU Law School, said the ad tech case turned on something narrower: the government asked Judge Leonie Brinkema to order the sale of Google's advertising exchange without producing anyone willing to buy it.
"And the Justice Department didn't come in with a buyer or with anyone having apparently expressed interest in acquiring the exchange, the advertising exchange."
First teaches and writes on antitrust at NYU Law School, and he followed the remedies hearings closely enough to describe Judge Brinkema as a practical judge and not a pushover for either side.
I listened to the full segment so you can skip it.
Here are the 8 arguments that matter.
👤 Guest: Harry First, an antitrust law expert and Professor at NYU Law School
🎙️ Host: June Grosso, host of Bloomberg Law on Bloomberg Radio
📰 Published: 9 September 2026 on the Bloomberg Law podcast feed
🟣 Apple Podcasts | 🔗 Episode page | ⏱️ 32 min
Key Takeaways
Nobody knows what Judge Brinkema ordered yet, including the parties who asked for it
She said she took "most of" what the parties proposed, and her opinion is under a 14-day review for redactions
A behavioral remedy only works while someone is paid to watch it
First expects a monitor, and says the open question is how long it runs
The Chrome divestiture was the weaker case; the ad exchange divestiture was the stronger one
The government never alleged Google did anything illegal with Chrome, but the judge did find Google used the exchange to squeeze publishers
There was a buyer for Chrome and no buyer for the ad exchange
A substantial offer for Chrome came from an AI search firm; on the exchange, the Justice Department told the court it would be inappropriate to name one
First reads the Justice Department's statement as a decision not to appeal
The states are separate plaintiffs, and Colorado, California and New York have appealed on their own before
Google will appeal a case it won, because an adverse liability finding is worth erasing
European regulators kept the power to order a breakup and have never used it
The Digital Markets Act regulates conduct instead, and First says using structural relief against an American tech firm would be difficult politically
Court-ordered breakups are rare, and easiest when the company bought what it now has
Google's publisher platform came out of the DoubleClick acquisition the Federal Trade Commission cleared, and is still called DoubleClick for Publishers
1. The Remedy Nobody's Seen
Judge Brinkema found in April 2025 that Google illegally monopolized two advertising technology markets, and last week declined to order a sale of its ad exchange, ordering behavioral changes instead. First's first point was that the content of those changes is not yet public.
Nobody can assess the remedy because nobody has seen it. "She said she took, quote, most of what the parties asked for," First said, and the gap is the problem: "So most of is not all of. So we just don't know exactly what it is"
He expects the order to include a monitor of some kind, running on an open-ended timetable, and said the length of that supervision is the unanswered question
The structural weakness of conduct remedies is that they need policing for as long as they last. "And that is a problem with behavioral remedies is that you have to continue to behave and you need a parent to watch out and hit them when they don't"
Brinkema did not explain in open court why she refused the structural relief the Justice Department and the state plaintiffs asked for. The reasoning sits in an opinion she gave the parties 14 days to review for confidential information they want redacted
2. Chrome vs. The Exchange
Grosso pressed the broader question: Judge Amit Mehta found Google's search tactics illegal and did not order a sale of Chrome, Judge Brinkema found ad tech monopolization and did not order a sale of the exchange, and both are respected federal judges. What does it take?
First started by refusing the obvious rhetorical move — "Trying to think of what metaphor to reach for. So I'm not going to reach for any of them" — and then separated the two cases.
The Chrome divestiture was never central to the search case the government actually tried. The plaintiffs wanted Chrome sold, but, First said, "They didn't make how Google used Chrome to help to make Google search a monopoly or to maintain the monopoly." That wasn't the focus of the liability case, and the government never alleged Google had done anything illegal with Chrome
The consequence is a legal one: "So the legal case for divesting Chrome was probably weaker than it should have been if they had actually built that case when they were trying the liability case for what did you do wrong?"
A judge is remedying the violation in front of him, not redesigning an industry. First put the judge's position in the first person: "I mean, I'm not an engineer. I'm not an entrepreneur. I've got a case in front of me. And that's what I'm remedying"
Chrome did have a bidder. First said an offer that was "pretty substantial" was on the table from an AI search firm, and that Mehta was still concerned about the mechanics because Chrome is an international platform
In ad tech the requested divestiture goes to the heart of the liability finding. "The divestiture that the plaintiffs sought in the ad tech case is actually central to the theory of liability." Control of the exchange was what let Google squeeze more money out of the market — the publishers in particular — and the judge found that
So the legal case for a sale was stronger here and the practical case weaker, because there was no buyer: "so that cuts the other way"
First's explanation for both outcomes is judicial temperament, not favoritism. "And judges are judges. I mean, they're generally conservative with a little c. They recognize they're judges, they're not business people, and they're concerned about doing this." He called the ad tech result the more disappointing of the two
3. Incentives Beat Rules
Grosso explained the plumbing for the audience before her next question: Google's ad tech stack sits between publishers selling display space and advertisers bidding on it, which gives the company a powerful position in how prices are set and which ads appear. Can behavioral remedies cure that?
First allowed that they do something. Well-designed conduct rules "maybe can prevent Google from preferencing things," though he was careful about how much he claimed: "I don't know exactly. It's complicated how these auctions run. And Google, in fact, changed the auction rules on an ongoing basis"
His objection is that ownership sets the incentives and the rules only chase them. "But the fundamental insight from economics is follow your incentives. People act on their incentives"
The specific conflict is standing on both sides of the trade: "So if Google still owns the platform in between the buyers and the sellers, both sides, they have certain incentives that an independent buyer doesn't have"
An independent owner's incentive is different, First said — to run the marketplace as efficiently as it can. "So I would rather that"
4. The Missing Buyer
Asked whether Brinkema had valid reasons for the more restrained approach, First said he understood the caution and disagreed with the result.
He thinks divestiture was the only remedy that restarts competition here. "But I think this really was the relief that you needed to get competition going in this market"
He also put the stakes in perspective against search, where "there's a lot more money involved." Of ad tech: "Here it's only six or seven billion"
The government's weak point was preparation on remedy, not on liability. "I wish the government plaintiffs had something more concrete when they presented the case working on the remedy to the judge." He described a natural tendency to spend the time on liability, because a failed liability case never reaches remedy
Standing in court without a name to give the judge "must have been tough," he said. "Actually, the lawyer for the Justice Department said it would be inappropriate now to have a buyer before you"
He is waiting on two things: the written opinion, and whether the lawyers who built the case can convince their superiors to appeal it
The state attorneys general are the live threat, and three offices in particular. First named Colorado, California and New York as particularly strong, and said he could see a world in which they appeal on their own. Grosso noted the states have been more aggressive than the federal government; First's answer was "Yes, and successful"
He closed the thought with a line he did not attribute — "It's not over until it's over, someone once said, right" — and Grosso placed it for him: "Someone was in the baseball space, I believe, and not the ad tech space"
5. 'We're Done Here'
Grosso read out a statement from Stanley Woodward, whom she identified as the number three official currently overseeing antitrust enforcement at the Justice Department: "The timing of the court's order reflects the tradeoffs between immediate relief and remedies obtained through years of litigation."
First read it as a surrender. "We're done here. The chances are that the Justice Department will not appeal. That would be your bet. That's how I read that"
The reading is complicated by the department's own conduct in the other case. It is appealing the Google search remedy, and if First recalls correctly, Woodward signed the briefs in the Court of Appeals — so "years of litigation" has not deterred him there
On the state of the division: "And Woodward, he hasn't moved his office yet to a different floor of the Justice Department," and "The antitrust division still has no permanent head"
A federal decision not to appeal does not end the case, because the states are plaintiffs too. They filed independent appeals in the search case, with positions substantially the same as the department's
In search, both the states and the federal government objected to part of Mehta's order — not to the failure to divest Chrome, which First said nobody is actually objecting to, but to the failure to stop the conditional payments Google uses to stay dominant in search
Either way the department's lawyers stay on the case, because Google is appealing liability. "So it's not like the Justice Department says, oh, thank God we can move our lawyers into immigration cases or whatever else they do in the Justice Department." They still have to defend Brinkema's liability ruling unless someone above Woodward calls it off, "But they haven't done that yet. So they're still chugging along"
6. Why Google Appeals a Win
Grosso asked the obvious question: Google avoided a breakup twice, so what is left to win on appeal?
First agreed that reversal looks unlikely, then said that is not the point: "But unlikely doesn't seem to dissuade any litigants these days"
The value is delay and a clean record. "But so more time and not having an adverse decision on the books has its own utility for any monopolist to be able to wipe that out," First said
Google has said it will appeal the liability decision, and First has no reason to think otherwise
7. Europe Regulates Instead
In the search case European regulators imposed a very large fine, which First said at one point triggered the president to suggest he would retaliate with tariffs. "We haven't heard that, but we never hear the end of anything, so who knows what will happen"
There was a lengthy opinion in Google search; First has not seen a European decision in ad tech
Europe holds the power to order a divestiture and has never used it. He said regulators there have preserved the option of ordering a restructuring but have not exercised it. "And they're particularly unlikely to use it, I think, against an American tech firm," he added. His reasoning: "It's really be pushing things, maybe legally, but certainly politically"
The transatlantic difference is structure versus conduct. "So they're actually not as concerned about structure as we've been in the U.S. So they're a little more comfortable with regulating monopolies, and that's the way they've gone with the Digital Markets Act." The aim there, he said, is not to break up the major tech companies but to control their behavior
8. Breakups Are Rare
Grosso asked whether Microsoft is the only time a court has ordered a technology company broken up, at least at the trial level.
First pointed further back, to Standard Oil and American Tobacco at the beginning of antitrust
The other case people cite is AT&T, which was done by consent "under the gun of federal legislation" and which he called a quite historic event
Divestiture is easiest when the company bought the thing being taken away. First said, "So, it's been pretty rare and used sometimes when it's easy in a sense, when the illegal act has been acquiring a company and you can still just sort of break it apart that way." Several of the large technology companies grew organically instead, which makes that route harder — Grosso raised Facebook, and First corrected the name to Meta
Google's publisher platform is an exception, because it was bought. It "stems from an acquisition of DoubleClick," which the Federal Trade Commission allowed in 2007, and which the district court found was not a violation of the antitrust laws
The name survived the deal: "And it's still called DFP, DoubleClick for Publishers"
Bonus Insights
First declined to characterize the two rulings in figurative terms at all, saying he was trying to think of a metaphor and would not reach for one
On European enforcers: "Oh, they're having fun kicking Google, yeah"
Grosso's own summary of what comes next was the opinion later in the month, the appeals, and "Never-ending litigation"
She closed by naming him as Professor Harry First of NYU Law School
First's bottom line is that the ad tech remedy failed on the government's own preparation rather than on the law: the sale of the exchange was central to the liability the judge found, and the plaintiffs went into the remedy phase without a buyer, a timetable or a plan for how a court in the Eastern District of Virginia would supervise one.
Products, Companies & Tools Mentioned
Google (Found liable in both cases and required to divest nothing in either; First says its ownership of the exchange between advertisers and publishers is what produces the incentive problem a conduct remedy cannot fix)
Chrome (The browser the search plaintiffs wanted sold; First says the government never alleged Google used it illegally, which made the divestiture case weaker than the offer on the table from an AI search firm)
DoubleClick (The 2007 acquisition the Federal Trade Commission cleared and the district court found lawful, and the origin of Google's publisher platform, still called DFP — DoubleClick for Publishers)
Meta (Raised by Grosso as Facebook and corrected by First; his example of a technology company that grew organically as well as by acquisition, which makes a structural remedy harder)
AT&T (The historic breakup, done by consent under the pressure of federal legislation and litigation)
Standard Oil and American Tobacco (The original antitrust breakups First says people reach for, from the beginning of the statute)
Books & Resources Mentioned
The Digital Markets Act (The European approach First contrasts with US structural relief: regulating the conduct of the large technology companies rather than breaking them up)
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