United States v. Google LLC (2023)

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United States v. Google LLC
EDVAdc.png
Court United States District Court for the Eastern District of Virginia
Full case nameUnited States, Commonwealth of Virginia, State of California, State of Colorado, State of Connecticut, State of New Jersey, State of New York, State of Rhode Island and State of Tennessee v. Google LLC
StartedJanuary 24, 2023
Court membership
Judge(s) sitting Leonie M. Brinkema

United States v. Google LLC is an ongoing federal antitrust case brought by the United States Department of Justice (DOJ) against Google LLC on January 24, 2023. [1] The suit accuses Google of illegally monopolizing the advertising technology (adtech) market in violation of sections 1 and 2 of the Sherman Antitrust Act of 1890. The suit is separate from an ongoing DOJ antitrust case launched in 2020, which accuses Google of illegally monopolizing the search engine market.

Contents

Filed in the U.S. District Court for the Eastern District of Virginia, the suit aims to force Google to sell off significant portions of adtech business and require the company to cease certain business practices. [2] The case is set to go to a trial on September 9, 2024, which will be held before a jury. [3] [4]

Background

From left to right: The Google Ad Manager advertising exchange platform, logo for the Google Ads online advertising platform, and the Google Marketing Platform analytics platform GAds Logo.png
From left to right: The Google Ad Manager advertising exchange platform, logo for the Google Ads online advertising platform, and the Google Marketing Platform analytics platform

Growth of Google's adtech business

Beginning in the 2000s, Google gradually increased its presence in the adtech market, with the company acquiring DoubleClick, Invite Media, and AdMeld. [5] The acquisition of DoubleClick received criticism from privacy groups including the Electronic Privacy Information Center (EPIC), who petitioned the Federal Trade Commission (FTC) to scrutinize the deal. [6] The FTC ultimately approved the $3.1 billion acquisition of DoubleClick in December 2007. [7]

By 2021, Google's adtech division was the company's second largest business behind Google Search, generating approximately $31.7 billion in revenue for the company. [2] As of 2023, Google's advertising business generated an estimated 80% of the company's revenue. [8]

Jonathan Kanter, the Assistant Attorney General for the Antitrust Division, likened Google's dominance in the adtech market to a situation in which Goldman Sachs or Citibank owned the New York Stock Exchange. [9]

Legislative scrutiny

During the 117th United States Congress, a bipartisan coalition of U.S. Senators introduced legislation aimed at breaking up Google and other "Big Tech" companies alleged dominance in the market. [10] The legislation, known as the Advertising Middlemen Endangering Rigorous Internet Competition Accountability (AMERICA) Act, was reintroduced in the 118th Congress. [11]

Proceedings

Following the filing of the lawsuit, the DOJ claimed it has documentation that would bolster its case. This includes an alleged statement by a Google advertising executive who took issue with the company "owning the platform, the exchange and a huge network", who compared it to if Goldman Sachs or Citibank owned the New York Stock Exchange (NYSE). [2] In what has been described as an unconventional move for a federal antitrust lawsuit, the DOJ has pushed for a jury trial for the case. [12]

Positions of U.S. states on the lawsuit as of April 18, 2023 .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{} States that filed alongside the DOJ against Google on January 14, 2023 States that joined the lawsuit after January 14, 2023 State positions in U.S. v. Google (2023).svg
Positions of U.S. states on the lawsuit as of April 18, 2023
  States that filed alongside the DOJ against Google on January 14, 2023
  States that joined the lawsuit after January 14, 2023

In March 2023, judge Leonie Brinkema denied Google's request to move the lawsuit from the District Court for the Eastern District of Virginia to a venue in New York, which is considered a more favorable venue for Google. [13] In March 2023, Google filed a motion to dismiss the case. [14] Brinkema denied this request in April 2023, who stated that the DOJ's initial complaint sufficiently detailed for the case to proceed. [5] [15]

In August 2023, Google's pushed for the recusal of Assistant Attorney General Kanter from the case, arguing Kanter's past representation of Google's rivals in private practice meant he was unfairly biased against the company. [16] Brinkema denied Google's effort to force Kanter's recusal in September 2023, describing the company's bias claims as "essentially a red herring defense". [17]

In February 2024, it was announced that the case would begin trial on September 9, 2024. [3] Following a dispute between the DOJ and Google in the 2023 search trial regarding the release of public exhibits pertaining to the case, Brinkema urged both parties to resolve any similar dispute ahead of the 2024 trial. [18]

On April 26, 2024, Google filed a motion seeking summary judgement in the case. In the motion, Google accused the DOJ's of improperly calculating Google's share of the digital advertising market. [19]

State partnerships

The lawsuit was filed in conjunction with the attorneys general of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia on January 24, 2023. [1] Tennessee Attorney General Jonathan Skrmetti, a Republican, stated that Tennessee is proud to be part of this bipartisan effort to hold Google accountable and protect consumers from its harmful ad tech monopoly." [20]

On April 3, 2023, Washington Attorney General Bob Ferguson announced that the state would join the lawsuit. [7] On April 18, 2023, nine additional states joined the lawsuit, bringing the total to eighteen: Arizona, Michigan, Nebraska, Illinois, Minnesota, New Hampshire, North Carolina, Washington, and West Virginia. [21]

Reaction and analysis

Lawmakers from both parties, including Senators Amy Klobuchar (D-MN) and Josh Hawley (R-MO), spoke positively about the lawsuit. [22] Polling by YouGov in conjunction with The Economist found that Americans approved of the lawsuit by a 41% to 19% margin, with 40% stating they were "not sure". [23]

Google denied the DOJ's allegations, with a company spokesperson accusing the department of trying to unfairly "pick winners and losers in the highly competitive advertising technology sector." [24] The Chamber of Progress, a tech industry trade group whose membership includes Google, argued that the lawsuit is misguided amid a declining advertising market. [25]

Commentators have argued that the basis of the DOJ's case is rooted in a relatively "traditional" interpretation of antitrust law, as opposed to more "novel" theories of anti-competitive harms associated with the New Brandeis movement. [26] The editorial board of the The Washington Post praised the lawsuit as "good, old-fashioned antitrust enforcement" in a February 2023 article. [27]

William Kovacic, a former Republican member of the FTC, has argued that the suit is a serious one that "adds another important complication to Google's efforts to deal with regulators worldwide." [2] Douglas Melamed, who served in the DOJ Antitrust Division during the Clinton Administration, argued that the DOJ "would get a remedy that’s going to shake up the market" if able to prove their claim in court. However, Melamed cautioned observers from assuming that the DOJ would win the case. [28]

Request for jury trial

Commentary surrounding the DOJ's request for a jury trial in the lawsuit has often described the decision as unusually and potentially risky. A January 2023 article in Bloomberg News suggested that the "surprising request" was made due to DOJ concerns about a hostile judicial environment. [12] According to Harry First of the New York University School of Law, the DOJ's effort to "seek damages and demand a jury trial in a monopolization case is unprecedented". [29]

According to The New York Times , the lawsuit is the fifth antitrust suit filed against Google by either the federal government or states attorney general since 2020. [2] The DOJ filed a separate antitrust case in October 2020 accusing Google of unlawfully monopolizing the search market. [30] Google's dominant position in the adtech market has additionally received legal scrutiny in both the European Union and the United Kingdom. [31]

State of Texas v. Google, LLC (2020)

The case has been compared to a separate, state-led antitrust lawsuit targeting Google's adtech practices filed in 2020. [19] [32] The aforementioned lawsuit, led by the Texas Attorney General's office, accuses Google of unlawfully abusing its dominance in digital advertising. [33]

In April 2024, the DOJ requested to file a statement of interest in the case during the discovery process. [34] The State of Texas v. Google, LLC is expected to go to trial in Plano, Texas on March 31, 2025 before judge Sean D. Jordan, and will be held over a four week period. [35] Unlike the U.S. v. Google lawsuit targeting the company's adtech practices, the Texas-led state lawsuit will not feature a jury trial. [32]

See also

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References

  1. 1 2 "Justice Department Sues Google for Monopolizing Digital Advertising Technologies". United States Department of Justice . January 24, 2023. Retrieved March 31, 2023.
  2. 1 2 3 4 5 McCabe, David; Grant, Nico (January 24, 2023). "U.S. Accuses Google of Abusing Monopoly in Ad Technology". The New York Times. ISSN   0362-4331 . Retrieved March 31, 2023.
  3. 1 2 Fung, Brian (February 5, 2024). "DOJ antitrust case targeting Google's ad-tech business will go to trial in September, federal judge rules". CNN. Retrieved February 20, 2024.
  4. ↑ Scarcella, Mike (February 5, 2024). "Google to face US antitrust trial over digital ads in September". Reuters. Retrieved April 28, 2024.
  5. 1 2 Montoya, Karina (March 9, 2023). "How Three Mergers Buttressed Google's Ad Tech Monopoly, Per DOJ". Tech Policy Press. Retrieved March 31, 2023.
  6. ↑ "Privacy Groups Challenge Google-DoubleClick Deal". CNBC. April 27, 2007. Retrieved March 31, 2023.
  7. 1 2 Bartz, Diane (December 20, 2007). "Google wins antitrust OK to buy DoubleClick". Reuters. Retrieved March 31, 2023.
  8. ↑ Bartz, Diane; Shepardson, David (January 24, 2023). "U.S. targets Google's online ad business monopoly in latest Big Tech lawsuit". Reuters. Retrieved April 28, 2024. Google, whose advertising business is responsible for about 80% of its revenue, said the government was "doubling down on a flawed argument that would slow innovation, raise advertising fees, and make it harder for thousands of small businesses and publishers to grow.
  9. ↑ Sisco, Josh (January 24, 2023). "Google accused of monopolizing $250B U.S. digital ad market". POLITICO. Retrieved April 5, 2023.
  10. ↑ Fung, Brian (May 19, 2022). "US senators target Big Tech's digital advertising machine with new legislation | CNN Business". CNN. Retrieved March 31, 2023.
  11. ↑ "Bipartisan US lawmakers introduce bill aimed at Google, Facebook ad clout". Reuters. March 30, 2023. Retrieved April 5, 2023.
  12. 1 2 Birnbaum, Emily; Nylen, Leah (January 27, 2023). "Google Faces Rare Jury Trial in DOJ Bet on Public's Tech Unease". Bloomberg. Retrieved April 5, 2023.
  13. ↑ "Judge allows Google antitrust case to move ahead in Virginia". Associated Press. March 10, 2023. Retrieved March 31, 2023.
  14. ↑ Zakrzewski, Cat (March 27, 2023). "Google seeks dismissal of Justice Dept. lawsuit alleging an ad monopoly". Washington Post . Retrieved March 30, 2023.
  15. ↑ "Judge rules against Google, allows antitrust case to proceed". AP News. April 29, 2023. Retrieved April 28, 2024.
  16. ↑ Fung, Brian (August 31, 2023). "Google targets DOJ antitrust chief with bias allegations in monopoly defense | CNN Business". CNN. Retrieved April 28, 2024.
  17. ↑ Rizzo, Salvador; Dou, Eva (September 15, 2023). "Judge rejects Google claim that DOJ's Jonathan Kanter is improperly biased". Washington Post. Retrieved April 28, 2024.
  18. ↑ Montoya, Karina (February 26, 2024). "The Countdown to the Google Ad Tech Trial Is On: Here's What You Need to Know". Tech Policy Press. Retrieved April 28, 2024. During the conference, which set the scene for what to expect before and during the trial, Judge Brinkema urged the Department of Justice (DOJ) and Google to solve any disputes about posting exhibits for the public record ahead of time, after acknowledging that disagreements over this matter in the Google Search case delayed both the trial and access to public records. "I do not want to see this same problem happen […] This trial will not stop to resolve this [matter]," she said.
  19. 1 2 Nylen, Leah (April 27, 2024). "Google Seeks to Throw Out Ad Tech Antitrust Case Before Trial". Bloomberg. Retrieved April 28, 2024.
  20. ↑ "Tennessee Attorney General joins suit against Google". The Daily Times. January 28, 2023. Retrieved April 21, 2023.
  21. ↑ Singh, Kanishka (April 17, 2023). "Nine more US states join federal lawsuit against Google over ad tech". Reuters. Retrieved April 21, 2023.
  22. ↑ Tarinelli, Ryan; Macagnone, Michael (January 24, 2023). "Justice Department sues Google over digital advertising tech". Roll Call. Retrieved April 5, 2023.
  23. ↑ Orth, Taylor (February 7, 2023). "Most Americans see a lack of competition among tech companies as a serious problem | YouGov". YouGov. Retrieved April 21, 2023.
  24. ↑ Kruppa, Miles; Schechner, Sam; Michaels, Dave (January 24, 2023). "DOJ Sues Google, Seeking to Break Up Online Advertising Business". The Wall Street Journal. Retrieved March 31, 2023.
  25. ↑ Morrison, Sara (January 24, 2023). "Google's bad year is getting worse". Vox. Retrieved April 4, 2023. "The Chamber of Progress, a Google-funded Big Tech advocacy group, said in a statement that the case was "disconnected from economic reality" and that Google's digital ad market share (estimated to be about 29 percent in 2022, giving it the largest share of any one company) was "at an all-time low."
  26. ↑ Mehra, Salil (March 9, 2023). "The DOJ's AdTech Suit Against Google Is Anything but Unconventional". ProMarket. Retrieved April 5, 2023.
  27. ↑ "Opinion | Why this Google antitrust lawsuit has promise". Washington Post. February 11, 2023. Retrieved April 4, 2023.
  28. ↑ Feiner, Lauren (January 27, 2023). "The DOJ's antitrust case against Google is ambitious but risky". CNBC. Retrieved April 5, 2023.
  29. ↑ First, Harry (February 23, 2023). "Why "The Jury's Out" on the Government's Case Against Google's Ad Tech Monopoly". ProMarket. Retrieved April 5, 2023.
  30. ↑ Feiner, Lauren (October 20, 2020). "Google sued by DOJ in antitrust case over search dominance". CNBC. Retrieved May 30, 2022.
  31. ↑ Lomas, Natasha (September 13, 2022). "Google's adtech practices targeted in UK, EU antitrust damages suits". TechCrunch. Retrieved March 31, 2023.
  32. 1 2 Weinstein, Samuel (April 26, 2023). "Understanding the DOJ's Decision To Seek a Jury Trial in the Google Ad Tech Case". ProMarket. Retrieved April 28, 2024.
  33. ↑ Scarcella, Mike (October 4, 2023). "Google loses bid to keep Texas' ad tech lawsuit in New York". Reuters. Retrieved April 28, 2024.
  34. ↑ Marfin, Catherine (April 24, 2024). "DOJ Wants To Weigh In On Texas Google Ad Tech Discovery". Law360. Retrieved April 28, 2024. The U.S. Department of Justice asked a federal judge Wednesday for permission to file a statement of interest in a Texas-led lawsuit accusing Google of anticompetitive conduct in the display advertising market, writing that the states' request for certain discovery items may violate an order in a substantially similar suit the DOJ is pursuing in Virginia.
  35. ↑ Arcieri, Katie (January 3, 2024). "Google Ad Tech Antitrust Case Set for Texas Trial in March 2025". Bloomberg Law. Retrieved April 28, 2024.
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