G argues that the DOJ's goal in bringing this case is to force G to "give its rivals 'the same' or 'comparable' access to its innovations and customers that it provides to its own products." This is an antitrust theory that the Supreme Court has emphatically rejected.
twitter.com/vidushi_law/status/1783924657126580549
This case deals with "ad tech" which G defines as "software that makes it possible for digital content providers (publishers) to sell online advertising space to advertisers and for digital advertisers to buy ad space."
The DOJ's "made-up markets" to bring forth its claims are:
(1) “publisher ad servers for open web display advertising”
(2) “ad exchanges for indirect open web display advertising” (3) “advertiser ad networks for open web display advertising”
DOJ hinges its market definitions on only 1 ad-tech functionality- "open-web display advertising" and exludes players like Amazon & Meta from these markets.
According to G, no advertiser who testified in this case had even heard of open-web display advertising before this case.
G points out all of the inconsistencies in the DOJ's chief economists support for these markets, noting that the same ads, by the same advertiser, using the same tool, placed on the same webpage, are gerrymandered into different markets.
But even if the DOJ's proposed markets are accepted, G's marketshare (the actual figure is redacted) falls well below the 70% threshold held by the 4th circuit that is used in determining monopoly power.
One of G's main arguments is that all of the conduct the DOJ is challenging are "lawful refusals to deal with rivals and product improvements" and G has no "duty to deal" under antitrust law.
The Supreme Court in Verizon v. Trinko emphasized that “a firm with no duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors.”
"As Trinko and its progeny make clear, these principles forbid claims that are premised on “enforced sharing.”
Courts have consistently refused to require technology companies to make their products interoperable with their rivals.
G contends that the DOJ has "cherry-picked" things, and later abandoning some along the way, over a 16-year period that even the DOJ's own experts, including their chief economist, cannot say are anti-competitive.
G also asserts that its product design decisions are protected because they were improvements which "do not violate the antitrust laws even if they have a negative impact on rivals."
G also argues that the DOJ's damages claims, stemming from federal advertising agencies (FAAs) who "allegedly suffered injury b/t Jan 2019 and Jan 2023 when advertising agencies purchased 'open-web display ads' on the FAAs’ behalf", fail on several grounds:
1. The FAAs didn't direct ad agencies to use G products or services
2. No FAA purchased ad tech services directly from G
3. No FAA directly invoiced G
4. No payments flowed directly from any FAA to G
5. There aren't contracts b/t G & any of the FAAs related to their ad purchases
Vidushi Dyall
@vidushi_law_1
@progresschamber Breaking down key developments in important tech cases you should be following. Tech policy, cybersecurity, competition. Fordham Law alum.