Trial Update, October 6, 2025: Trial ends as it began - with Google showing open contempt toward its own publisher customers

It is Day 11 of US v. Google adtech remedies, and the last day of trial.

Matthew Wheatland, Chief Digital Officer, DailyMail.com

Wheatland is DOJ’s final rebuttal witness, closing out the remedies phase as he did with liabilities. Yet again, Google attempts to object to his testimony, fearing he would “shovel in technical testimony” which Google apparently believes its own end-user customers are not placed to do. Judge Brinkema allows his testimony to proceed.

DOJ asks him a series of questions about the government proposal about the open-source Final Auction Logic. Wheatland is not concerned about incremental latency - DfP is running the auction logic today, and the auction logic would still be running on DfP.  It is similar to the way that prebid works today.  DfP would also still have the data that it needs to perform its calculations.

He believes the benefits to publishers would outweigh potential costs - the code would be transparent, auditable, and customizable. The Daily Mail could evaluate and then choose whether or not to use certain features, like Optimized Pricing Rules (OPR).  He explains that with OPR and Enhanced Dynamic Allocation “are ways our prices are changed without us knowing how they are changed.”  This is why it is important for these features to be a part of the open-sourced Final Auction Logic.

Wheatland explains that he envisions that DfP would have a default standard iteration of the open-source Final Auction Logic, so publishers that wanted to use it out-of-the-box could do so. Or, if a publisher wished to disable certain features, there would be modules they could disable. Judge Brinkema asks, “So, if you didn’t want Reserve Pricing rules, you could ‘click it off’?” Wheatland confirms. Judge Brinkema asks if this exists today with prebid, and he again confirms that yes, prebid has modules.

He explains that some changes made by adtech companies do not require any action on the part of the publisher, whereas some do. When OpenX moved from private cloud to GCP, for example, publishers didn’t have to do anything. Nor did they need to do anything technically when AppNexus sold to AT&T, and then to Microsoft - just update contracts and billing. He also tells the Court about a 2022 DfP service outage, where DfP went down causing The Daily Mail to lose revenue. He says that outages sometimes happen with software providers, so the divestiture of the DfP remainder doesn’t raise any novel concerns in that regard. Nor is he worried that if DfP engineers are busy working on divestiture, they won’t be working on innovations. He says that apart from features publishers didn’t ask for, like UPR, there were few fundamental changes or innovations in DfP over the last 10 years. If only behavioral remedies were ordered by the Court, he notes that it would leave publishers in a gray area, and the uncertainty would make it difficult for publishers to switch ad servers.

On cross-examination, Google’s Jeannie Rhee was aggressive to the point of being rude. I wrote in my notes at one point near the beginning that she was simply yelling at him. She asks him about his “complaints” about Google during liabilities phase a year ago, pressuring him to answer “yes or no,” even where he didn’t recall.  She says, “You’ve complained a lot and consistently, so this shouldn’t be too hard.” Judge Brinkema tells her the commentary is not needed. Rhee asks him about The Daily Mail’s investment in AI company, ProRata. ProRata would be able to detect use of licensed content in AI outputs, allowing publishers to be paid when him their scraped content is used. Naturally, this leads to Wheatland explaining how Google’s AI overviews - among other similar products - result in zero-click queries, and thus less traffic to their website.  Rhee asks about a quote by his boss about how this tech is a “threat to the news industry.” He explains that the traffic referral concerns raised by AI Overviews and the like are separate. This case is about monetizing the traffic that does get to their pages. For Google to point to the harms to publishers resulting from its AI overviews to diminish the importance of resolving its harms to publishers related to adtech is as absurd as it is arrogant.

Google tries to say that what Wheatland spoke to - namely that DfP would itself also be running the open-sourced Final Auction Logic - was new and different from the DOJ’s proposal, and thus improper rebuttal. This is flat out nonsense. Google tried to advance this fallacy through its witnesses (like Berntson) who largely ignored the fact that DfP could itself still use the open-source Final Auction Logic; so I think they were hoping the Court has forgotten by now.

Jason Nieh, Technical Feasibility Expert

Nevertheless, Google attempts to call Nieh for surrebuttal to contest Wheatland’s testimony, which Judge Brinkema begrudgingly allows, and promptly curtails. Nieh rattles on about how DfP using the open-sourced Final Auction Logic would not work, and if it did, would cause security issues. Judge Brinkema interjects: “It’s already here.” DfP already runs the Auction Logic today. This is just open-sourcing it so others could use it too.

Google tries to call back Glenn Berntson, seemingly to keep negotiating the transparency “concession” he offered during his testimony. Thankfully, Judge Brinkema declines this offer; however notes that this type of case is ripe for settlement negotiations, and suggests that both sides get together on this, in addition to beginning to discuss the court-appointed monitorship ahead of closing arguments in November.

What’s to come?

Closing arguments will be held at 10:30AM on November 17th. Closing briefs and revised proposed final judgements are due on November 3rd.

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