ALEXANDRIA, Va. (Legal Newsline) - Google has asked a federal court to end the Biden Administration’s lawsuit accusing it of monopolizing the Internet advertising market, saying the government is using “made-up markets” to build its case and ignoring robust competition throughout the online ad business.
The federal government, joined by eight states, sued Google last year over claims the Internet search giant had used acquisitions and illegal tactics to dominate what it calls the market for “open-web display advertising.” The government claims Google charges excess fees for routing ads through its ad exchange and uses tools known as ad tech to keep competitors at bay.
In a motion for summary judgment, Google says the government has failed the basic requirement to show Google dominates a “relevant market.” Only by excluding large portions of the online advertising market - including ads placed on websites and apps operated by Facebook owner Meta, TikTok and Amazon - can the government claim Google has dominant market share, Google says.
“In the year 2024, and many years before that, there can be no serious claim that ad placement on mobile apps and social media should be excluded in market share calculations,” Google says in the April 24 filing.
Tech giants have made similar criticisms against the Biden Administration’s attempt to prove antitrust by using “gerrymandered” markets that exclude competitors. Meta has accused the Federal Trade Commission of claiming Amazon controls a narrowly defined “online superstore” market that excludes most of the merchants on the Web and Facebook says the FTC wants to exclude X, Pinterest, Reddit and Apple from a market for information shared among family and friends.
Google moved to dismiss the government’s ad tech case last year, soon after it was filed, but U.S. District Judge Leonie M. Brinkema refused, saying there was sufficient evidence to proceed to discovery and setting a September 2024 trial date. Millions of pages of documents later, Google has again asked Judge Brinkema to end the case with summary judgment, saying the government has failed to prove essential elements of any antitrust case.
The monopolization claims rest on “made-up markets” that don’t include large markets where advertisers buy ads and publishers sell them, using many of the same ad tech tools, Google says. No advertiser who testified in the case had heard of “open-web display advertising” before, the company argues.
Further, Google says it hasn’t raised prices past a 20% fee since it launched its ad exchange in 2009, negating claims it has the power to charge supercompetitive prices. Meanwhile the number of online ad exchanges grew from 10 to more than 80 by 2019, the company says.
The “entire case is doomed” because the government is suing over practices, including excluding competitors from some of its products, that the U.S. Supreme Court has ruled cannot be the basis of an antitrust claim, Google says.
Google raised many of these same points in its motion to dismiss last year, however, which Judge Brinkema denied.
“It's a horrendously long complaint,” the judge said at an April 2023 hearing. “Obviously whether the market has been properly described here or defined here is a very legitimate question, but I'm still satisfied, at this point, it's been adequately alleged.”
Google in the case has accused the Department of Justice of pushing antitrust litigation on behalf of federal agencies that do not want it, with the goal of helping private companies with connections to Assistant Attorney General Jonathan Kanter. It says Kanter has a "deep-seated bias" against it.
Google has been defending itself for years against similar private litigation by advertisers in New York. Google tried, and failed, to combine the government’s case in Virginia with the one in New York. It also faces a 2020 Justice Department lawsuit over its search engine.