Judge Brinkema spares Google, making US antitrust a paper tiger
By Emilio Quesada · Reporting from Miami ·
The United States Department of Justice has a habit of mistaking a ceasefire for a victory.
The United States Department of Justice has a habit of mistaking a ceasefire for a victory. In the case of Google, the DOJ didn't just lose the battle for structural divestiture; it surrendered the only leverage that actually matters. Judge Leonie Brinkema has performed a legal sleight of hand: she formally acknowledged that Google "willfully monopolized" the ad exchange and publisher server markets, yet she refused to order the sale of AdX. To find a crime and then decline the only punishment that stops the criminal is not "judicial restraint"—it is an abdication of power.
The Verdict Without the Sentence
The facts, as reported by Al Jazeera and G1 Globo, are stark. Google’s AdX platform extracts a 20 percent fee from publishers in real-time auctions, a toll booth on the digital highway that Judge Brinkema previously ruled was maintained through unlawful tying. The DOJ argued that Google cannot be trusted to police itself. Yet, Brinkema rejected the bid to break up the business, opting instead for "behavioral remedies."
Lee-Anne Mulholland, Google’s VP of Regulatory Affairs, called the DOJ’s proposal "extreme government overreach." This is the language of the captured. When a company controls the infrastructure of information and the mechanism of its monetization, "overreach" is the only tool that works. By accepting behavioral constraints over structural separation, the court has essentially told Alphabet that it may keep its monopoly so long as it promises to be a better neighbor.
The Ghost of the Standard Oil Antitrust Case
The strongest argument for the court—and the one Google leaned on—is that splitting AdX is "technically unfeasible" and would create "long-term uncertainty" for the market. This is a convenient fiction. In the history of American antitrust, the "technical difficulty" of a breakup has never been a valid excuse for the preservation of an illegal monopoly.
We see the mechanism of the Standard Oil antitrust case here, but in reverse. In 1911, the Supreme Court recognized that the only way to end Rockefeller's stranglehold was to shatter the company into pieces. While that case introduced the "rule of reason"—the idea that only "unreasonable" restraints on trade are banned—the core mechanism was structural. The court understood that you cannot regulate a monopoly into competition; you must create competition by removing the monopoly. By choosing behavioral rules over divestiture, Judge Brinkema has inverted the logic of the Standard Oil antitrust case, deciding that the "reason" for the monopoly—its technical integration—outweighs the necessity of a free market.
A Blueprint for Permanent Dominance
This ruling is not an isolated event; it is a pattern of American retreat. From the rejection of the FTC’s bid to force Meta to sell Instagram and WhatsApp to the decision to let Google keep Chrome, the U.S. judiciary is signaling that Big Tech is now too integrated to be touched.
The DOJ claims it is "one step closer" to restoring competition, but they are walking in the wrong direction. Google will now take this victory to the European Union, where it is already fighting an 890 million euro fine, and argue that even the Americans find divestiture "unfeasible." When Washington chooses the comfort of a joint proposed final judgement over the cost of a forced sale, it tells the world that American antitrust law is a paper tiger. Credibility is a wasting asset, and the U.S. just spent a massive chunk of it.