DOJ and Google make closing arguments in landmark adtech antitrust trial

The industry now awaits a ruling expected in the coming months. However, observers say the questions and comments from U.S. District Judge Leonie Brinkema might offer a glimpse as to what she might be thinking about the facts of the case. Some said Brinkema seemed to understand that open web display ads aren’t the same as other ad formats, which seemed to signal the judge wasn’t fully persuaded by Google’s claims of not being a monopoly. 

“Google used the broadest possible market definition and then argued that output was increasing,” said Roger Alford, an antitrust law professor at Notre Dame. “But when Judge Brinkema asked whether output was increasing using the Plaintiffs’ market definition, Google had no answer.”

Megan Gray, the founder of GrayMatters Law & Policy, thinks the facts lean in the DOJ’s favor. She mentioned Google lawyer Karen Dunn at one point showing a slide suggesting Google having a smaller market share than the DOJ suggested. However, Brinkema noticed the slide addressed the overall ad market — including social media, connected TV and apps — and asked if there was another slide that showed just the open web display market in question. 

“It just kind of encapsulated the whole Google approach to, and I don’t think anybody finds that persuasive,” said Gray, who was previously an attorney with the Federal Trade Commission. “Anybody in the [ad tech] world knows it’s real market. It’s kind of like the same approach that Google had in the search case, claiming with a straight face that there isn’t a search engine market.”

Google’s case focused heavily on the legal defense that ruling in favor of the DOJ would mean overturning two major SCOTUS rulings: Verizon v. Trinko in 2004 and Ohio v American Express in 2018. Lawyers for Google also argued the DOJ didn’t bring enough advertiser witnesses to prove harm, suggested that adtech witness testimony about reduced competition wasn’t enough to convince the court and claimed the DOJ’s case relies too heavily on three major publishers without taking into account smaller publishers. (Brinkema also asked the DOJ about why it didn’t bring advertisers to the stand.)

In citing the Amex case, Google’s side argued the adtech trial also centers on a single two-sided market instead of the DOJ’s outlined three separate markets for ad exchanges, ad networks and publisher ad servers. Despite being viewed as anticompetitive, Google said its actions actually benefit the entire ad tech ecosystem. However, attendees noticed Brinkema seemed to question if the Amex case applies to the Google trial because the programmatic advertising market is auction-based and not the same setup as credit card transactions.

“At this point the DOJ seems to think [Brinkema] understands that even if the anti-competitive conduct is analyzed under Google’s market definition, [the DOJ’s] claims of monopolistic conduct will prevail,” said Karina Montoya, senior reporter and policy analyst for the Open Markets Institute. 

Brinkema also brought up concerns about Google execs allegedly destroying evidence by turning off chat histories and labeling non-legal emails as attorney-client privilege. When Google lawyer Karen Dunn accused the DOJ of cherrypicking phrases from Google’s internal emails, Brinkema said Dunn was in dangerous territory with that line of defense since various parts of chat logs and emails were missing. That led the DOJ during rebuttal to ask the judge to adopt an “adverse inference” stance, which is a legal principle that allows a court to assume the missing information would have been unfavorable to the party responsible for its destruction.

Throughout the trial, the DOJ offered a “clear and definitive” argument that Google violated antitrust law in the digital advertising market, said Elise Phillips, policy counsel at Public Knowledge, a think tank focused on the open internet. She thinks it provided the foundation upon which the judge can analyze competitive dynamics.

“A clear definition of the market will provide a greater understanding of how Google might control critical inputs in the market,” Phillips said. “This leads to DOJ and Google having a very different idea of how to define the digital ad market, and whether suitable competition exists.”