A federal judge threw cold water on one of Alphabet’s key arguments in a Department of Justice lawsuit over allegations that Google monopolised advertising technology.
During closing arguments in the lawsuit against the tech giant, US District Judge Leonie Brinkema said that she disagreed with Google’s attempts to rely on an earlier antitrust case involving American Express Co.
The judge interrupted Google’s lawyer Monday to say that she had carefully studied a 2018 Supreme Court decision in the older case.
“We’re dealing with a completely different set-up” here compared to Amex, she said on the closing day of the trial in Alexandria, Virginia.
The case is one of several against Google over antitrust issues. In another, the Justice Department is seeking to force Alphabet to sell off its Chrome browser after winning a landmark ruling that company illegally monopolised online search.
In Monday’s case, the Justice Department and a group of states sued Google in 2023, arguing the company illegally monopolised three separate markets for advertising technology: sell-side tools used by websites, called ad servers; advertising exchanges; and buy-side tools used by advertisers known as ad networks.
The company has countered by saying that splitting its tools into those buckets is wrong and its business is better understood as a single market in which website publishers and advertisers transact.
Brinkema’s interjection came as Google lawyers were citing the American Express case, where the Supreme Court ruled that judges should look at how a product or service impacts different groups of customers. Google argues that some of its conduct — which the Justice Department said harmed website publishers — can be justified because it was intended to help advertisers.
Brinkema said she has “problems” applying the ruling related to the credit card market to Google.
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But Google’s lawyer, Karen Dunn, argued that the company’s ad tech tools serve a similar function to credit cards by seeking to “match” buyers and sellers of online ads.
The tools act to “facilitate transactions between buyers and sellers,” she said. You “can’t look at one side in isolation”.
Bloomberg Intelligence analyst Justin Teresi, who attended Monday’s arguments, said he believes Brinkema will rule in favour of the government based on a different legal argument.
“A liability finding is likely on some claims — most notably those involving the publisher ad server and tying,” said Teresi, who focuses on antitrust litigation and policy.
The Justice Department argued Monday that the Amex decision only applies to credit card transaction platforms, not all markets where a company does business with two sets of customers. For example, courts haven’t held that for newspapers, which sell ads to advertisers and news to consumers.
“Google is once, twice, three times a monopolist,” Justice Department lawyer Aaron Teitelbaum said. The company’s “internal documents make clear it’s three markets and not one.”
Google’s Dunn said that US antitrust law allows the company to decide whether to make its products work with that of competitors. Forcing Google to provide technology and resources to make ad tech work seamlessly with rival tools would stifle innovation, she said.
Brinkema, who has previously said she plans to issue a decision by the end of the year, didn’t give an update on timing.
