Video Transcript
I just returned from Virginia where Index Exchange’s CEO, Andrew Casale, testified on the opening day of the United States Department of Justice’s antitrust trial against Google. The trial assesses alleged antitrust abuses by Google in the open web display advertising market.
This case has the potential to be uniquely impactful in ad tech and I know there’s a lot of interest so let’s discuss in more detail.
What is the Google antitrust trial about?
In January 2023, the US Department of Justice (DOJ) filed suit against Google claiming breach of antitrust laws. Please note that this trial is separate from the search trial that concluded earlier this summer.
In this case, the US DOJ’s suit claims that Google’s anticompetitive behavior creates barriers to entry which reduce competition in the ad tech ecosystem.
The primary remedy at issue in Google’s antitrust trial is what’s called a divestiture order.
In particular, the US DOJ is asking the court to order Google to divest its advertising businesses, including “at a minimum,” the Google Ad Manager suite, which includes both Google’s publisher ad server, DoubleClick for Publishers (DFP), and Google’s ad exchange, AdX, along with any additional structural relief as needed to cure any anticompetitive harm.
What are some of the most interesting aspects of this case?
Google is being investigated for antitrust abuses or abuse of dominance in many jurisdictions worldwide. This is one of the many cases we may see on this matter, but in some ways it’s the most important.
There are two reasons this antitrust case is particularly interesting:
- The first reason is because of that requested divestiture order and the potential impact an order like that may have if granted.
- The second reason is the trial location. The US is a huge and enormously important market. The scale of the market makes this case particularly resonant.
What are some of the highlights from the start of the trial?
Let’s talk about some of the highlights from the start of the trial. Ms. Julia Tarver Wood delivered the opening for the US DOJ. The US DOJ centers its case around four legal claims:
- Google monopolised the market for publisher ad servers;
- Google monopolised the market for ad networks;
- Google monopolised the market for ad exchanges; and
- Google unlawfully tied its publisher ad server together with its ad exchange product
Wood outlined the monopolist playbook as possessing three characteristic behaviors:
- Control the competition.
- Control the customers.
- Control the rules.
Wood closed by noting that the plaintiffs are not here to punish Google for their success. Google is not here because they’re big. They’re here because they used their size to crush the competition. Wood poignantly commented that “one monopoly is bad enough, but a trifecta of monopolies is what we have here,” referring to DFP, AdX, and Google Display Network (GDN).
Ms. Karen Dunn provided the opening for Google. Dunn highlighted that Google ushered in transformative innovation that’s helped millions of people. Google invested in making these innovations function effectively, efficiently, and safely.
Google argued that the US DOJ’s case will fail because they won’t be able to prove the market, and that the US DOJ is “gerrymandering” markets to create a market for the purpose of this case.
Obviously, I’m biased, but Andrew was an excellent witness for the US DOJ on day one of this exciting trial. He brought his particular brand of logic and clear explanation of complex topics, which can only benefit this case.
I’d also like to take a second to give a nod to the incredibly powerful women on both sides of this courtroom, and importantly, on the bench.
Ms. Julia Tarver Wood for the US DOJ and Ms. Karen Dunn both delivered compelling opening statements. Ms. Dunn also advised Vice President Kamala Harris in advance of the presidential debate on Tuesday night. Ms. Justina Sessions for Google delivered an outstanding cross-examination.
And perhaps, most importantly, Judge Leonie M. Brinkema of the US District Court for the Eastern District of Virginia brings fairness, straightforwardness, and efficiency to her courtroom while appearing to easily grasp the complex nature of this business.
What are Index’s thoughts on this trial?
Of course, Index cannot speculate on the trial’s outcome. That said, we do see this trial as aligning to three core values we hold to be critically important.
- Fairness and transparency: We believe in a fair and transparent marketplace where the technology speaks for itself.
- Support for publishers: Our primary focus has always been—and will continue to be–serving our publisher customers, helping to optimise their revenue while providing clear reporting on transactions that occur through our exchange.
- Choice: We also believe in flexibility and choice. We believe our partners on both sides of the ecosystem—media owners and buyers alike—should be able to choose the partners that bring the most value to their businesses. Choice should always remain paramount.
What can we expect as the trial proceeds?
So, with all of those details in mind, what can we expect as Google’s antitrust trial proceeds? This case is unique in part because it’s so fast.
Some antitrust actions take years. The Eastern District of Virginia is known colloquially as the “rocket docket,” so while we can’t speculate on the outcome, we are expecting swift action and that the court will rule quickly.
We’ll be following closely as the trial continues.
Learn more about digital advertising and the technology behind it in our educational video series, Index Explains.
