Google, DOJ Face Off During Closing Arguments In AdTech Case

Authored by Sam Dorman via The Epoch Times (emphasis ours),

Attorneys for the Department of Justice (DOJ) and Google made their final arguments on Nov. 25 in a high-profile antitrust case that questions whether the tech giant violated federal law through its digital advertising practices.

The case started last year when the DOJ filed a complaint alleging that Google had engaged in anticompetitive conduct with its advertising technology platforms like Google Ads.

Closing arguments on Nov. 25 came at the end of a bench trial in Virginia that started in September and followed a major ruling against Google across the river in Washington. Both cases could bring major changes for Google and inform how future courts handle antitrust claims.

DOJ lawyer Aaron Teitelbaum told Eastern District of Virginia Judge Leonie Brinkema that Google rigged the rules of advertising auctions and generally perpetrated anticompetitive conduct across three technologies that facilitate digital ad sales.

In its closing argument, the DOJ used statements from Google employees in an attempt to show that they were focused on dominating the market in an unfair way. Among other things, Teitelbaum argued that Google pulled the levers of its various advertising technologies to strengthen its dominance and forced businesses to work with them in order to access a vast pool of demand.

Karen Dunn, a partner at Paul Weiss, represented Google and said that the DOJ had used “cherry-picked” communications from the tech giant’s employees. Overall, she said, Google’s record showed innovation in the advertising technology space in response to competitive forces.

Google’s prices decreased, she said, alongside an increase in ad spending and the number of quality transactions.

Each side clashed over whether social media platforms like Facebook represented the type of competition in advertising technology that would undermine the idea that Google exercised monopoly power.

Much of the closing arguments focused on whether the DOJ was even presenting Brinkema with the right categorization of markets for deciding whether Google engaged in anticompetitive conduct.

Brinkema, Dunn said, would have to overrule Supreme Court precedent in order to rule in favor of the plaintiffs, which includes the DOJ and various states.

According to Dunn, the plaintiffs had failed to define the relevant market and alleged conduct that was legal under antitrust precedent—namely, that Google was refusing to deal with competitors in certain ways. She also accused the DOJ of attempting to “gerrymander” out substitutes for Google’s technology in the markets they were proposing.

Teitelbaum, meanwhile, described Google’s view of the market as amorphous and argued against taking a more theoretical approach to defining the market.

At one point, Brinkema questioned Dunn’s attempt to apply the Supreme Court’s 2018 decision in Ohio v. American Express to Google’s behavior. She noted that the case, which centered on credit card transactions, didn’t feature the same kind of dynamic or programmatic purchasing facilitated by Google’s advertising technology.

Dunn disagreed and said that in both Google’s case and that of American Express, the market involved various tools facilitating transactions between buyers and sellers.

In that case, the Supreme Court said that “credit-card networks are best understood as supplying only one product—the transaction—that is jointly consumed by a cardholder and a merchant.”

“Accordingly, the two-sided market for credit-card transactions should be analyzed as a whole,” it said.

The two sides also disagreed over whether Google’s conduct fell within what the Supreme Court considered companies’ right to refuse to deal with others. The DOJ instead proposed three markets in the advertising technology space—“publisher ad servers,” “ad exchanges,” and “advertiser ad networks.”

It’s unclear how Brinkema will rule but if she agrees that Google violated antitrust law, the company could face remedial measures. Closing arguments came as the DOJ told D.C. Judge Amit Mehta this month that Google should divest from its web browser Chrome as part of remedies in its search case.

Teitelbaum said on Nov. 25 that the plaintiffs were merely asking the court to hold Google accountable for purportedly anti-competitive conduct and denied that it would have to engage in some kind of central planning.

The DOJ’s complaint in the ad tech case, filed in January last year, requested an order requiring Google to divest from its ad manager suite, which included multiple technologies mentioned during closing arguments on Nov. 25.

It also requested “any other preliminary or permanent relief necessary and appropriate to restore competitive conditions in the markets affected by Google’s unlawful conduct.”