Mythbuster: What was said, and what was really meant, at the DOJ vs. Google ad tech trial

Over the last three weeks, lawyers for both sides have duked it out in the eastern district of Virginia. The “rocket docket” case is expected to be ruled upon by the end of November, with presiding judge Leonie Brinkema expected to hear rebuttals and closing arguments the week beginning September 30.

As the initial trial enters its final furlong, Digiday peels back the niceties of courtroom etiquette to offer an interpretation of what was really meant both on the witness stand and in articles of evidence.*

What YouTube CEO Neal Mohan said:

“What do you think about acquiring one of them [rival ad tech companies]… and parking it somewhere?”

– email evidence from Neal Mohan, now YouTube CEO, but formerly a DoubleClick executive.

What was meant:

‘Let’s buy our best-performing competitor, then work out how to monetize it to our own ends.’

The email was typed two years after the Federal Trade Commission approved Google’s purchase of DoubleClick after it made assurances not to encroach upon market competition during the early 2010s and ahead of Google’s $400 million purchase of AdMeld in 2011.

What Scope3 CEO Brian O’Kelley said:

Google was “vehemently opposed” to Prebid.

– the former AppNexus CEO in a video deposition.

What was meant:

‘Google controls the industry through the (implied) threat of pulling funding from trade bodies.’

Independent ad tech companies, such as O’Kelley’s former corporate home AppNexus, attempted to house Prebid in the online ad industry’s tech standards body, IAB Tech Lab. However, the opposition of its largest-paying donor, Google, meant it was rejected. Hence it formed as an independent entity in 2017.

What former Google exec Payam Shodjai said:

“The problem isn’t so much that [Google’s] DBM is buying HB [header bidding] inventory — the problem is that HB exists :)”

– the long-time Google exec (now at Meta), in email correspondence with then colleague Brad Bender.

What was meant:

‘This hack to upend our cash-filled place on top of the ad tech waterfall is annoying.’
The duo later noted in their exchange that “HB [header bidding] gives publishers better yield… so it’s a no-brainer for publishers to adopt it.” Hence, they weren’t happy that buyers were using Google’s own demand-side platform (DBM) to bid on its inventory.

What former Magnite CTO Tom Kershaw said:

“I have the option to starve to death. I don’t choose to take that option.”

– Tom Kershaw from the witness stand

What was meant:

‘Yes, in practice, publishers do have alternatives to Google’s sell-side ad tech, but the person that chooses to forego Google’s ad tech will go hungry.’

A large part of Google’s defense is that publishers have many alternatives when it comes to monetizing their traffic; they simply choose to use the best and safest option, which just so happens to be Google. Kershaw, also a Prebid architect, argued that, in reality, that’s just not feasible for those wishing to remain in employment.

What Google vp, regulatory affairs, Lee-Anne Mulholland said:

“Our products are particularly popular with small businesses who don’t have the time and resources to employ advertising experts.”

– a statement taken from Google’s Trial Media Center

What was meant:

‘Our ad tech is simply the best; even a non-tech savvy mom-and-pop shop can use it. This has upended the publishing status quo, and this trial is nothing but the aggregated moaning of embittered publishers whose business models are out of date and middlemen whose tech is second-rate. And that doesn’t mean we have broken any laws.’

The trial continues.

*^{Recording equipment was prohibited in court. Some of this reporting relies on third-party reporting by a coalition of non-profits}