Google and Department of Justice square off in final arguments in AdTech lawsuit.
Google is arguing that the DOJ has failed to define the relevant markets and is challenging behavior that is legal.
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 in Alexandria, Va.
The case began last year when the DOJ filed a complaint alleging that Google engaged in anticompetitive conduct with its advertising technology platforms like Google Ads.
Closing arguments on Nov. 25 marked the end of a bench trial in Virginia that started in September, subsequent to a significant ruling against Google in Washington. Both cases could potentially result in significant changes for Google and set precedents for how future courts handle antitrust claims.
DOJ lawyer Aaron Teitelbaum informed Eastern District of Virginia Judge Leonie Brinkema that Google manipulated the rules of advertising auctions and engaged in generally anticompetitive behavior across three technologies facilitating digital ad sales.
The DOJ used statements from Google employees in its closing argument to demonstrate their focus on dominating the market unfairly, according to Teitelbaum. He argued that Google leveraged its advertising technologies to solidify its dominance and compelled businesses to engage with them in order to access a large demand pool.
Representing Google, Karen Dunn from Paul Weiss stated that the DOJ selectively presented communications from Google employees. She contended that Google’s record showed innovation in the advertising technology sector as a response to competitive pressures.
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According to Dunn, Google’s pricing decreased while ad spending and quality transactions increased.
The two sides clashed over whether social media platforms like Facebook posed a competitive threat in advertising technology that could negate Google’s monopoly power.
A substantial part of the closing arguments focused on whether the DOJ accurately defined the markets to determine if Google engaged in anticompetitive behavior.
Dunn argued that Brinkema would need to overturn Supreme Court precedent to rule in favor of the plaintiffs, including the DOJ and several states, as they failed to define the relevant market and criticized legal conduct under antitrust laws—specifically, that Google refrained from engaging with competitors in specific ways. She also accused the DOJ of trying to eliminate substitutes for Google’s technology in the proposed markets.
On the other hand, Teitelbaum described Google’s market view as vague and opposed taking a more theoretical approach to market definition.
During the proceedings, Brinkema questioned Dunn’s comparison of Google’s behavior to the Supreme Court’s 2018 decision in Ohio v. American Express. She pointed out that the credit card transaction case didn’t involve the same dynamic or programmatic purchasing enabled by Google’s advertising technology.
Dunn disagreed and stated that both Google’s case and American Express’s case revolved around different tools facilitating transactions between buyers and sellers.
The Supreme Court noted in that case 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,” the Supreme Court declared.
The parties also disagreed on whether Google’s conduct met the criteria for the right to refuse to deal with companies, as determined by the Supreme Court. Instead, the DOJ proposed three markets in advertising technology—”publisher ad servers,” “ad exchanges,” and “advertiser ad networks.”
It remains uncertain how Brinkema will rule, but if she concludes that Google violated antitrust laws, the company may face corrective actions. The closing arguments coincided with the DOJ’s recommendation to Judge Amit Mehta in Washington for Google to divest from its web browser Chrome as a remedy in its search case.
On Nov. 25, Teitelbaum stated that the plaintiffs were simply seeking accountability from Google for alleged anticompetitive behavior and denied the need for any form of central planning.
The DOJ’s complaint in the ad tech case, lodged in January last year, asked for an order mandating Google to divest from its ad manager suite, which encompassed several technologies mentioned during the closing arguments on Nov. 25.
The complaint also requested “any other preliminary or permanent relief necessary and appropriate to restore competitive conditions in the markets affected by Google’s unlawful conduct.”
