The Monopoly Report – Episode 63

Why Are Publishers and Adtechs Privately Suing Google on Antitrust Grounds?

Date: January 28, 2026
Host: Alan Chapell
Guest: Brendan Benedict, Antitrust Litigator

Episode Overview

This episode provides an in-depth analysis of the wave of private antitrust lawsuits filed by publishers and ad tech companies against Google related to its ad tech practices. Host Alan Chapell and guest Brendan Benedict explore the implications of recent lawsuits, how they interact with the DOJ's ongoing antitrust case against Google, the complexities around legal remedies and damages, and the potential impact of parallel actions in Europe and U.S. states. The discussion aims to clarify why so many private parties have gotten involved, what is at stake, and what comes next.

Key Discussion Points & Insights

1. Setting the Scene: The Regulatory Context

• Waiting on Judge Brinkoma’s Remedies Decision ([04:00])
  • The DOJ’s antitrust case against Google awaits a crucial remedies decision, with significant debate over whether the court will order structural remedies (like a divestiture) or behavioral ones (changing business practices).
  • Market realities (rapid change, lengthy appeals, lack of a concrete government plan) make a forced breakup less likely.
  • Quote:
    Alan Chapell [05:10]:
    “The idea of blowing it all up into smithereens might give a judge pause.”

2. What Are the Publishers and Adtechs Alleging?

• Nature of the Lawsuits ([08:15])
  • Publishers allege Google unlawfully tied its publisher server (DoubleClick for Publishers/DFP) to its ad exchange (AdX), distorted auction rules, and imposed price and participation restrictions that reduced publisher revenues.
  • They seek both injunctive relief (to change Google’s conduct) and damages (for lost past revenue).
  • Ad tech companies make similar claims regarding market foreclosure and suppressed competition.
  • Quote:
    Brendan Benedict [08:23]:
    “Their theory is...that Google has unlawfully tied use of DoubleClick for publishers to ADX in a way that means that publishers didn’t get as much money as they would have in the absence of that.”

3. Damages: How Big and How Far Back?

• Calculating Impact ([09:55], [30:27])
  • Estimates range from tens of millions to billions in lost revenue industry-wide, but specifics depend on the outcome of expert analyses and statute of limitations.
  • The calculation involves comparing the “but-for” world without Google’s alleged anti-competitive practices to actual revenues.
  • Statute of limitations is generally four years, but plaintiffs are arguing it should track back to 2019 due to government lawsuit tolling.
  • Quote:
    Brendan Benedict [31:09]:
    “The calculation is really in the but-for world at a lower price or lower prices, but a higher output and a greater market share, that gives you a number compared to the world that the competitors actually experienced with Google’s conduct.”

4. DOJ’s Heavy Lifting and Collateral Estoppel

• Effect of the DOJ Case ([11:04])
  • Because the DOJ’s case already established key facts (market definition, monopoly power, tying), private plaintiffs can use “collateral estoppel” to shortcut proving those elements again – at least in jurisdictions accepting it.
  • This streamlines private suits and increases their odds.
  • Quote:
    Brendan Benedict [12:24]:
    “There's actually in some of these cases, motions for partial summary judgment on what’s called collateral estoppel, which means that Google would be prevented from relitigating the same issues...”

5. Consolidation and Complexity of the Litigation

• Many Cases, One Courtroom ([14:31])
  • Multiple lawsuits by both publishers and exchanges are being coordinated/consolidated in the Southern District of New York (MDL), streamlining pretrial activity.
  • Individual “opt-out” plaintiffs—typically large publishers—are maneuvering for leverage by not participating in the class action.
  • Judges are pushing for joint filings to limit redundancy and judicial burden.

6. Google’s Appeal Strategy and Potential Weak Points

• Likely Appeals and Legal Arguments ([17:01])
  • Google is expected to appeal on grounds including the legal tests for “tying,” appropriate market share thresholds for monopoly, and whether antitrust law treats each alleged bad act separately or in combination (“monopoly broth”/“soup”).
  • The outcome may hinge on unsettled questions about how the courts interpret these standards.
  • Quote:
    Brendan Benedict [18:21]:
    “There’s some language about tying per se being inappropriate for technology markets...the general trend in antitrust has been away from per se rules and putting everything into the rule of reason.”

7. The Effect of Google Avoiding a Jury Trial

• Pros and Cons of a Judicial Ruling ([22:55])
  • Google paid to moot the damages phase of the DOJ case, trading a potential jury trial for a judge’s ruling. This resulted in a detailed written opinion, which could make appeals more difficult because of clear findings of fact and law.
  • Quote:
    Brendan Benedict [23:36]:
    “You get a lot more specifics in a ruling from the bench than you do on a jury verdict form...there's detailed findings there that I think make it more challenging for a defendant to appeal.”

8. Parallel Actions: States & Europe

• Texas-Led AG Case ([25:00])
  • The Texas AG case and certain advertiser class actions assert different theories (e.g., “Project Bernanke”) and may bring additional damages and broader buy-side plaintiffs into the fray.
  • State AGs can also pursue civil penalties.
• EU and Global Litigation ([27:00])
  • The EU is considering stronger remedies, and might force structural changes (divestiture) even if U.S. courts don’t, raising the specter of global regulatory fragmentation.
  • The differing standards between “monopolization” (U.S.) and “abuse of dominance” (EU) could lead to divergent and possibly conflicting outcomes.
  • Quote:
    Alan Chapell [27:15]:
    "The consensus in Europe seems to be that...if you’re still sitting on both sides of the equation, bad things are going to happen.”

9. The Coming Battle Over Damage Calculations ([34:00])

• Expect both sides to bring in dueling expert witnesses with wildly divergent calculations.
• Google is anticipated to argue that plaintiffs benefited from higher prices or at least can’t prove credible harm – and will likely present handpicked publishers/testimonials to muddy the waters.
• Notable Prediction:
  Alan Chapell [34:24]:
  “Google is going to bring at least two people to the damages section: [1] a PhD who will...shrink whatever that amount is, and [2] some publisher who...did so much better because of Google’s practices.”

Memorable Quotes & Timestamps

• On the unpredictability of the remedies phase:
  Alan Chapell [05:10]:
  “The idea of blowing it all up into smithereens might give a judge pause.”

• On DOJ's impact on private cases:
  Brendan Benedict [12:24]:
  “There's actually in some of these cases, motions for partial summary judgment on what’s called collateral estoppel...”

• On Google's litigation posture:
  Brendan Benedict [23:36]:
  “You get a lot more specifics in a ruling from the bench than you do on a jury verdict form...there's detailed findings there that I think make it more challenging for a defendant to appeal.”

• On damages calculations:
  Brendan Benedict [31:09]:
  “Really, we’re talking about...lost profits...in the ‘but-for’ world at a lower price, but a higher output and...greater market share, that gives you a number compared to the world that the competitors actually experienced with Google's conduct.”

Notable Moments

• 3D Chess Analogy ([16:25]):
  Alan describes the litigation landscape as “3D chess,” capturing its multidimensional complexity and the many parallel moving parts involved.
• Google’s Double-Edged Sword ([22:55]):
  The discussion about Google buying out the jury phase underscores the unforeseen downsides of tactical litigation choices.
• Statute of Limitations Debate ([31:52]):
  Detailed insight into how far back damages might be calculated and the significance of government antitrust filings "tolling" (pausing) the clock.

Expert Predictions & Takeaways

• DOJ’s case has paved the way—private suits can piggyback on already established facts.
• Damages phase will be the battleground, with expert testimony and conflicting narratives about who (if anyone) was truly harmed or helped.
• Google will appeal liability but faces an uphill climb because of the depth and clarity of current court findings.
• EU actions could force deeper changes on Google than any US-based litigation.
• Final DOJ remedy (behavioral vs. structural) will shape all subsequent private cases.

Final Takeaways & Looking Forward ([49:28])

Alan Chapell’s Recap of the Top Five Points:

1. The DOJ case streamlines private actions through established legal findings.
2. Google’s avoidance of a jury trial may have created tougher appellate challenges.
3. Parallel actions in Texas and Europe could drastically alter the scope and stakes.
4. Real action will be on damages and lost profit calculations—expect fierce expert battles.
5. The next major event: Judge Brinkoma’s ruling on remedies, crucial for determining the future shape of the ad tech marketplace.

Next Episode Preview:
Tom Kemp from Cal Privacy will discuss California’s Dream Drop data deletion mechanism.

Where to Find the Guest:

• Brendan Benedict: benedictlawgroup.com | Twitter: @Benedict33

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