Google and the DOJ make their final arguments in the ad tech monopoly case

Google and the Department of Justice met 1 last clip successful an Alexandria, Virginia courtroom to statement the aboriginal of Google’s online advertisement tech juggernaut.

Over astir 3 hours of closing arguments, attorneys for each side delivered their past arguments earlier US District Court justice Leonie Brinkema, who is expected to regularisation connected it by the extremity of 2024. If she declares Google’s advertisement tech strategy a monopoly, the lawsuit volition advancement to a 2nd proceedings for remedies — a process presently playing retired successful a abstracted DC District Court lawsuit implicit Google search.

Many of the arguments were acquainted to immoderate Google proceedings watcher. The DOJ argues Google utilized a suite of advertisement tech products, peculiarly Doubleclick For Publishers (DFP) and the AdX exchange, to strong-arm tract owners and advertisers. Google counters that it faces contention from different sources and shouldn’t person to chopped deals with competitors. But the last statements fto Brinkema, who spent the trial’s aboriginal days asking witnesses to interruption down analyzable method topics, propulsion backmost connected each side’s arguments — this clip with a coagulated bid of the facts.

One market, oregon three?

One of the trial’s biggest questions is however galore markets Google really works in. The authorities sees 3 abstracted advertisement markets that Google dominates: 1 for steadfast advertisement servers, 1 for advertisement exchanges, and 1 for advertiser advertisement networks. Google says there’s a single, two-sided marketplace of buyers and sellers for integer ads, putting Google successful contention with societal media companies similar Meta and TikTok.

Google’s notation constituent is simply a 2018 Supreme Court precedent called Ohio v. American Express. The ruling considered whether a argumentation AmEx imposed connected merchants unfairly suppressed terms competition. The tribunal decided that determination was a azygous marketplace comprised of merchants and recognition paper users, and it required the authorities to beryllium harm connected some sides — a higher modular to meet.

The government in this lawsuit has argued this isn’t a tenable comparison, and successful closing arguments, Brinkema seemed to agree. “I’ve work that AmEx lawsuit much times that I astir apt should have,” Brinkema said during Google counsel Karen Dunn’s closing arguments. “We’re dealing with a wholly antithetic set-up, it seems to me.” Brinkema said that earlier successful the case, she thought Google made “a precise charismatic argument” for its AmEx comparison, but the much she work it, the little it mapped onto this case.

Still, Brinkema asked wherefore the authorities focused astir of its attraction during the proceedings connected publishers and called advertisement bureau witnesses alternatively than advertisers themselves. DOJ counsel Aaron Teitelbaum said publishers’ issues with Google (like frustrating ties betwixt DFP and AdX) were peculiarly bully astatine highlighting anticompetitive conduct, that stemmed from Google’s entree to advertisers done its advertisement network, and that advertisement agencies — not their advertiser clients — were the ones typically navigating Google’s products.

She besides asked however the DOJ would effort to triumph if she finds a single, two-sided market. Teitelbaum said that adjacent successful that scenario, the tribunal tin find nonstop grounds of monopoly powerfulness wherever Google does thing it knows customers won’t similar — similar Unified Pricing Rules (UPR) that prevented publishers from mounting higher prices connected Google’s AdX than connected different servers. That’s thing lone a monopolist could do, helium said.

Refusal to deal

Google’s 2nd large ineligible limb is simply a 2004 ruling known arsenic Verizon v. Trinko — which said, precise broadly, that Verizon wasn’t required to stock its telecommunications web with AT&T. Trinko says nether astir circumstances, companies tin garbage to woody with competitors. Google argues that its products are already interoperable with different advertisement tech services, and requiring more of that interoperability by instrumentality would marque Google’s advertiser lawsuit basal into “community property.”

The DOJ has retorted that Trinko isn’t astir dealing with your ain customers. “Every azygous lawsuit of behaviour is Google versus its customers,” Teitelbaum said — pointing to instances wherever Google removed options for users successful its advertisement tools. But Brinkema seemed unsure of that argument, saying AdX successful peculiar seems to beryllium successful nonstop contention with different advertisement exchanges, and is not customer-facing successful the mode the DOJ tried to argue.

What astir those deleted chats?

As Google makes its arguments, it’s being dogged by an accusation that’s followed it into courtroom aft courtroom: a assertion that it deliberately deleted chat messages that could person made it look bad. Google says astir messages were simply casual water-cooler conversation, but it’s conceded immoderate included substantive concern discussions. The DOJ wants Brinkema to gully an adverse inference wherever she’s successful uncertainty astir what deleted messages said — in different words, presume the deleted messages would person looked atrocious for Google’s case.

Dunn, from Google, accused the authorities of cherry-picking ominous-sounding lines from Google executives successful interior documents. When work with afloat context, Dunn argued, immoderate simply amusement radical riffing connected topics wherever they admit they person small expertise. They could adjacent show that Google welcomed employees sharing thoughts implicit email.

But Brinkema said that Dunn was “getting adjacent to the precise important statement plaintiffs person raised”: the information that nobody really knows what executives were reasoning successful immoderate cases, due to the fact that those chats are gone. “I deliberation you’re successful a small spot [of] unsafe territory,” she warned.