Google Moves Court for Request for Admission From DOJ on Digital Ad Purchases

Google moved the U.S. District Court for Eastern Virginia in Alexandria to order DOJ to answer a request for admission within seven days, said a Friday memorandum (docket 1:23-cv-00108) in support of its motion to compel a response in the January antitrust case brought by DOJ and eight states (see 2301240055). The plaintiffs want Google to divest its digital advertising platform, including its DFP ad server and AdX ad exchange, to “cure any anticompetitive harm.” Google followed the court’s guidance and served “straightforward requests for admission” to DOJ about its departments’ and agencies’ alleged purchases of open web display advertising from Google, said the memorandum. Whether those departments or agencies did make direct purchases “could be fleshed out in discovery ‘rather quickly,’” said the filing, citing Illinois Brick v. State of Illinois. “As the Court recognized, Google is entitled to discovery on whether the United States is a ‘buyer' of open web display advertising directly from Google because, with certain narrow exceptions, only direct purchasers have antitrust standing to sue for damages under the Sherman Act,” said the memorandum. Google moved to dismiss the amended complaint on grounds that the DOJ lacks antitrust standing under Illinois Brick, but the court rejected that argument, saying whether the U.S. was a direct purchaser was a factual issue. The court said the only argument Google might have would be if it had used one or two middlemen, which would require discovery. “Consistent with the Court’s guidance," Google’s RFA 1 states, "Admit that, during the Damages Period, the Federal Agency Advertisers did not purchase ‘open web display advertising’ directly from Google,” said the memorandum. Google asks the court to overrule the DOJ’s objections and say the agency's response to Google’s RFA 1 is “insufficient and in non-compliance with Rule 36,” and that the DOJ be ordered to answer RFA 1 within seven days, it said. A hearing is set for Friday at 10 a.m. EDT for Google to present oral argument in support of its motion to compel a response from DOJ.