Google’s digital advertising technology monopoly is "limiting people’s access to ideas, information, goods, and services,” while the company is profiting by taking more than 30% of the advertising dollars on its platform, alleged North Carolina Attorney General Josh Stein (D) Monday, announcing the state joined DOJ and 16 states in a bipartisan antitrust lawsuit. The DOJ complaint (docket 1:23-cv-00108), amended Monday to add more states, including North Carolina, asserts Google violated the Sherman Antitrust Act’s prohibitions against monopolization after its acquisition of DoubleClick, which controlled 60% of online advertising when it bought it in 2008. Federal regulators allowed the purchase then because they believed enough alternatives existed that there would still be competition, said Washington state Attorney General Bob Ferguson (D) last week (see 2304040024) announcing his state’s participation in the case. After Google acquired DoubleClick, Google launched its own branded advertising tools and made DoubleClick available only to advertisers that used its internal ad buying tools, plaintiffs allege. Google used exclusive agreements with other tech companies, bought other competing online advertising technologies, and forced advertisers and website publishers to use only its products, which plaintiffs allege “suppressed competition and allowed Google to dominate the online advertising market.”

U.S. District Judge Kevin Castel for Southern New York signed an order Thursday (docket 1:21-md-03010) granting plaintiff Inform leave to file within 21 days an amended complaint in the massive digital ad tech antitrust multidistrict litigation against Google consolidated under the judge. The Judicial Panel on Multidistrict Litigation transferred Inform’s action for inclusion in Castel’s MDL on Feb. 23. It had been pending in the Northern District of Georgia to which the 11th U.S. Circuit Appeals Court had remanded it. Inform sought leave to conform its complaint to Castel’s earlier rulings in the MDL. Google opposed Inform’s application as untimely, a waste of time and futile (see 2304110019), but Castel disagreed. Google’s “futility argument” was premised on its assertion that Inform lacks standing, said the judge. But the 11th Circuit ruled Inform “adequately alleged” Article III standing and antitrust standing, said the judge. Inform “acted in a reasonably timely manner following remand” by the 11th Circuit, said the judge’s order. “Any defect in the pleading may be raised on a motion to dismiss.” The court “accepts good faith representation” that Inform intends to conform its pleading to the court's previous rulings, said the order. “Any new or additional theories of liability should be highlighted in a marked copy of the pleading also filed within 21 days,” it said. Google may file a pre-motion letter in support of a motion to dismiss 21 days after the filing of Inform’s amended pleading, it said. Inform will respond to the pre-motion letter seven days later.

The U.S. District Court for the District of Columbia will structure in two parts Thursday’s daylong hearing on Google’s motions for summary judgment in two cases challenging its alleged monopolies in search and search advertising, said a scheduling order Monday. The hearing begins at 9:30 a.m. with Google’s 45-minute argument in support of its motion against the DOJ’s complaint with 11 states (docket 1:20-cv-03010), said the order. DOJ’s and the state plaintiffs’ argument in opposition to the motion will last 60 minutes, followed by 15 minutes of Google rebuttal, it said. After a lunch break, Google will have 45 minutes of argument in support of its motion against the complaint by 35 states, plus the District of Columbia, Guam and Puerto Rico (docket 1:20-cv-03715), said the order. The state plaintiffs will then have 60 minutes of argument in opposition, followed by 15 minutes of Google rebuttal, it said. At the start of each side’s argument, counsel “shall address what they contend is the proper analytical framework the court must use to evaluate whether Google’s alleged conduct is exclusionary,” and whether the plaintiffs have met their prima facie burden under Section 2 of the Sherman Act “by demonstrating anticompetitive effect,” said the order.

A March 17 request for the court to compel production of purchaser emails and mailing addresses is “improper,” said motion defendants Tegna, Gray Media and Meredith, in a Monday opposition response (docket 1:18-cv-6785) to plaintiffs' discovery motion for certain documents in a TV advertising antitrust case in U.S. District Court for Northern Illinois in Chicago. Plaintiffs Thoughtworks, One Source Heating & Cooling, Hunt Adkins and Fish Furniture’s request for contact information is “premature” when there is no settlement or certified class, is “irrelevant to the substance of their claims,” and is “disproportionate to the needs of this case,” said the response. Plaintiffs should have made their request when negotiating defendants’ data productions, and they should have filed their motion by the Sept. 1 court-mandated deadline, the response said. Plaintiffs’ motion fails to explain how purchaser emails and mailing addresses will allow them to evaluate the putative class’ viability in light of “ample data” already in their possession, it said. Plaintiffs’ motion is “untimely” and a “separate ground for denial,” said motion defendants, noting the parties negotiated the scope of the motion defendants’ production of purchaser transactional data over a period of months in compliance with the Stipulation and Order Regarding the Production of Electronically Stored Information. At no point during negotiations did plaintiffs request the contact information they now demand, it said. Their deadline to move to compel expired Sept. 1, and they didn’t seek an extension when it was clear the parties were at an impasse, it said. As purchasers of broadcast television spot advertising, plaintiffs allege defendants engaged in “price fixing” beginning in 2014, facilitated by an “anticompetitive information exchange between and among certain major television station owners and operators to artificially inflate” the prices of spot ads in violation of Section 1 of the Sherman Act.

Google opposes giving plaintiff Inform access to Google’s discovery materials in the massive digital ad tech antitrust multidistrict litigation, Google counsel Justina Sessions of Wilson Sonsini wrote U.S. District Judge Kevin Castel for Southern New York in a letter Monday (docket 1:21-md-03010). Inform filed an amended complaint “that had little to do with ad tech and delayed moving to join this MDL, yet now demands immediate access to Google’s MDL document productions that are largely irrelevant to Inform,” said Sessions. Inform “strategically chose to wait” more than three years before trying to join the MDL, she said. During that time, it filed two complaints in Georgia, “the latest of which is subject to a still-pending motion to dismiss from Google,” she said. Now Inform wants to file a third complaint, she said. Its request to amend “yet again,” which Google opposes, “is an admission that Inform’s existing, operative complaint is deficient and has little to do with ad tech,” said Sessions. “Under these circumstances,” Inform shouldn’t be given access “to millions of Google documents merely because it has become part of this MDL,” she said. Google asks discovery of and by Inform should occur, if at all, after Inform’s request to amend and Google’s motion to dismiss are resolved, she said. “It would be inefficient and unnecessary at this juncture to provide Inform with any discovery from Google,” she said. Inform would be entitled to the discovery it now seeks only if “it completely rewrote its complaint to add entirely new ad tech claims mirroring those already at issue in this MDL,” and if its new complaint survived a motion to dismiss, said Sessions. “This is unlikely.”

The U.S. District Court for Northern California in San Francisco should reject the various plaintiffs’ oppositions to Google’s March 16 motion to defer or stay trial in the antitrust multidistrict litigation, pending a 9th U.S. Circuit Appeals Court decision on Google's Rule 23(f) challenge of the district court's order certifying a consumer class (see 2303310021), said Google’s reply brief Thursday (docket 3:21-cv-05227). No plaintiff “suggests that the entirety of this action should still be tried in November,” said Google. The consumer and state plaintiffs “propose a complex bifurcated -- or even trifurcated -- proceeding,” it said. Their proposal “requires a first jury to decide some elements of antitrust liability but defers antitrust injury -- an essential element of liability -- to a second jury and second trial,” it said. “Not only is this proposal highly inefficient, it risks Seventh Amendment error by submitting interwoven issues of anticompetitive effects and antitrust injury to different juries.” Plaintiffs Epic Games and the Match Group propose proceeding to trial in November regardless of whether a stay is warranted in the other plaintiffs’ cases, said Google. The states’ attorneys general “make a similar pitch,” it said. “Again, this proposal is needlessly complicated,” resulting in a “multiplicity of trials” on substantially identical claims, it said. “Worse, this proposal would effectively create separate trials for each side of an admittedly two-sided market, putting Google at risk of fundamentally contradictory damages awards.” The most “efficient and legally sound path forward” is for the court to adopt Google’s proposal,” it said. The parties would continue to move toward trial, and the court would defer or stay “only class notice, the final pretrial conference, and the trial,” while the 9th Circuit decides “the critical issues in the class certification appeal,” it said.

Google employees “intentionally shifted relevant business discussions to communication methods they knew would delete in 24 hours to circumvent Google’s own litigation holds and discovery obligations,” said the 38 plaintiff states and the District of Columbia in their reply brief Tuesday (docket 1:20-cv-03010) in U.S. District Court for D.C. in support of sanctions against Google (see 2302240034). Google “encouraged this conduct by creating a culture of communicating in chats that would be destroyed even with the existence of a litigation hold,” said the reply. Google failed to take “reasonable steps to monitor the effectiveness of its litigation hold and ensure employees were abiding by its terms,” it said. Google, as a result, “failed to ensure that its litigation responsibilities were fulfilled and thus permitted the spoliation of relevant materials,” it said.

Google’s “auction-rigging” devices and restrictions harmed competition in the online advertising market, alleged a Tuesday antitrust class action (docket 2:23-cv-02539) against parent company Alphabet and Meta in U.S. District Court for Central California in Los Angeles. Plaintiff Sunny Singh, a private tennis instructor living in Altadena, California, placed online and in-app display and search advertisements using Google’s services, paying the company directly to broker the placement of display advertisements on third-party websites and mobile apps, the complaint said. In display advertising, a single company, Google, “simultaneously functions as the key intermediary through which buyers (advertisers) and suppliers (publishers) of display advertising trade, in addition to its position as a leading publisher of display advertisements in its own right,” the complaint said. Google owns AdX, an exchange that transacts programming display advertising; Google Ads, which provides buying tools for small advertisers; and DV360, which has buying tools for large advertisers, the complaint noted. The company’s “anticompetitive conduct” for ad-buying tools and exchanges resulted in Singh paying more to place ads through AdX, “causing antitrust injury and giving rise to antitrust standing,” said the complaint. Google also entered into a network bidding agreement with Meta that impaired competitive bidding and transactions on Google’s final clearinghouse auctions for web display and in-app advertisements by giving Meta special advantages and proprietary information no other bidder enjoyed, the complaint alleged. Singh claims anticompetitive overcharges were assessed due to Google’s antitrust violations, and he's bringing the action on behalf of all persons and entities in the U.S. who, from Jan. 1, 2016 on, placed a display ad on a website or mobile app operated by another entity via a transaction in which the impression was sold, brokered, exchanged or auctioned by Google. Causes of action include monopolization, restraint of trade, unlawful trust, and unfair or deceptive acts or practices, the complaint says.

Washington state Attorney General Bob Ferguson (D) joined DOJ and eight plaintiff states in their digital advertising antitrust case (docket 1:23-cv-00108) against Google in U.S. District Court for Eastern Virginia in Alexandria, said Ferguson's office in a Monday news release. DOJ and Virginia, California, Colorado, Connecticut, New Jersey, New York, Rhode Island and Tennessee sued Google in January (see Ref:2301240055)] alleging it unlawfully monopolized online display advertising. Plaintiffs aim to break up Google’s alleged monopolization of the online display advertising market. Newspapers depend on online advertising as an important source of revenue, but Google’s dominance of online display advertising has allowed it to funnel more business through its services, resulting in websites earning less and advertisers paying more, Ferguson said. He cited a Washington state Joint Legislative Audit and Review Committee report showing state newspaper revenue declined by about 30% between 2015 and 2020. The DOJ lawsuit asserts Google violated the Sherman Antitrust Act’s prohibitions against monopolization after its acquisition of DoubleClick, which controlled 60% of online advertising when it bought it in 2008. Federal regulators allowed the purchase then because they believed enough alternatives existed that there would still be competition, Ferguson said. After Google acquired DoubleClick, Google launched its own branded advertising tools and made DoubleClick available only to advertisers who used its internal ad buying tools, plaintiffs allege. Google used exclusive agreements with other tech companies, bought other competing online advertising technologies, and forced advertisers and website publishers to use only its products, which plaintiffs allege “suppressed competition and allowed Google to dominate the online advertising market.”

Co-plaintiffs Epic Games and the Match Group in the multidistrict litigation alleging anticompetitive misconduct in how Google operates the Google Play Store oppose Google’s motion to stay or defer the Nov. 6 trial in the MDL (see 2303310021), said the companies in a joint opposition Friday (docket 3:21-md-02981) in U.S. District Court for Northern California in San Francisco. Google seeks the trial stay pending the outcome of its Rule 23(f) challenge at the 9th U.S. Circuit Appeals Court of the district court's order certifying a consumer class due to the “significant impact” the 9th Circuit’s decision would have on any trial. But Epic and Match “would suffer enormous prejudice and substantial injury if their trial-ready cases were stayed by at least a year, and potentially much longer, while completely unrelated consumer class certification issues are resolved through appeal and subsequent additional proceedings,” said their joint opposition. Without the injunctive relief that the plaintiffs seek, “Google’s anticompetitive conduct will continue, causing harm to developers, competing app distributors, competing payment providers and the public,” it said. Google, on the other hand, hasn’t shown, as it must, that “it would be irreparably harmed if Epic’s and Match’s claims went to trial as currently scheduled,” it said.