Google and the Department of Justice met one remaining time in an Alexandria, Virginia courtroom to debate the way forward for Google’s on-line advert tech juggernaut.
Over about three hours of closing arguments, attorneys for both sides delivered their final arguments earlier than US District Court decide Leonie Brinkema, who is predicted to rule on it by the tip of 2024. If she declares Google’s advert tech system a monopoly, the case will progress to a second trial for treatments — a course of presently enjoying out in a separate DC District Court case over Google search.
Many of the arguments had been acquainted to any Google trial watcher. The DOJ argues Google used a collection of advert tech merchandise, notably Doubleclick For Publishers (DFP) and the AdX change, to strong-arm website house owners and advertisers. Google counters that it faces competitors from different sources and shouldn’t have to chop offers with opponents. But the ultimate statements let Brinkema, who spent the trial’s early days asking witnesses to interrupt down complicated technical matters, push again on both sides’s arguments — this time with a stable command of the info.
One market, or three?
One of the trial’s largest questions is what number of markets Google truly works in. The authorities sees three separate advert markets that Google dominates: one for writer advert servers, one for advert exchanges, and one for advertiser advert networks. Google says there’s a single, two-sided market of patrons and sellers for digital advertisements, placing Google in competitors with social media firms like Meta and TikTok.
Google’s reference level is a 2018 Supreme Court precedent known as Ohio v. American Express. The ruling thought-about whether or not a coverage AmEx imposed on retailers unfairly suppressed worth competitors. The court docket determined that there was a single market comprised of retailers and bank card customers, and it required the federal government to show hurt on either side — the next normal to fulfill.
The authorities on this case has argued this isn’t an affordable comparability, and in closing arguments, Brinkema appeared to agree. “I’ve learn that AmEx case extra occasions that I most likely ought to have,” Brinkema stated throughout Google counsel Karen Dunn’s closing arguments. “We’re coping with a very totally different set-up, it appears to me.” Brinkema stated that earlier within the case, she thought Google made “a really engaging argument” for its AmEx comparability, however the extra she learn it, the much less it mapped onto this case.
Still, Brinkema requested why the federal government targeted most of its consideration in the course of the trial on publishers and known as advert company witnesses quite than advertisers themselves. DOJ counsel Aaron Teitelbaum stated publishers’ points with Google (like irritating ties between DFP and AdX) had been notably good at highlighting anticompetitive conduct, that stemmed from Google’s entry to advertisers by way of its advert community, and that advert businesses — not their advertiser shoppers — had been those usually navigating Google’s merchandise.
She additionally requested how the DOJ would try to win if she finds a single, two-sided market. Teitelbaum stated that even in that situation, the court docket can discover direct proof of monopoly energy the place Google does one thing it is aware of prospects received’t like — like Unified Pricing Rules (UPR) that prevented publishers from setting greater costs on Google’s AdX than on different servers. That’s one thing solely a monopolist may do, he stated.
Refusal to deal
Google’s second huge authorized weapon is a 2004 ruling often known as Verizon v. Trinko — which stated, very broadly, that Verizon wasn’t required to share its telecommunications community with AT&T. Trinko says below most circumstances, firms can refuse to cope with opponents. Google argues that its merchandise are already interoperable with different advert tech providers, and requiring extra of that interoperability by legislation would make Google’s advertiser buyer base into “group property.”
The DOJ has retorted that Trinko isn’t about coping with your personal prospects. “Every single occasion of conduct is Google versus its prospects,” Teitelbaum stated — pointing to situations the place Google eliminated choices for customers in its advert instruments. But Brinkema appeared not sure of that argument, saying AdX specifically appears to be in direct competitors with different advert exchanges, and isn’t customer-facing in the best way the DOJ tried to argue.
What about these deleted chats?
As Google makes its arguments, it’s being dogged by an accusation that’s adopted it into courtroom after courtroom: a declare that it intentionally deleted chat messages that might have made it look unhealthy. Google says most messages had been merely informal water-cooler dialog, however it’s conceded some included substantive enterprise discussions. The DOJ desires Brinkema to attract an antagonistic inference wherever she’s unsure about what deleted messages stated — in different phrases, assume the deleted messages would have regarded unhealthy for Google’s case.
Dunn, from Google, accused the federal government of cherry-picking ominous-sounding strains from Google executives in inside paperwork. When learn with full context, Dunn argued, some merely present individuals riffing on matters the place they acknowledge they’ve little experience. They may even show that Google welcomed staff sharing ideas over electronic mail.
But Brinkema stated that Dunn was “getting near the very vital argument plaintiffs have raised”: the truth that no one truly is aware of what executives had been considering in some circumstances, as a result of these chats are gone. “I believe you’re in slightly bit [of] harmful territory,” she warned.
