U.S. Court Finds Google Illegally Leveraged Its Ad Tech Monopoly To Coerce Advertisers And Suppress Competition In The Digital Advertising Market

Background

The lawsuit involved Google's ad technology division, called the Google Network, which ran a system where advertisers bid to buy space for their online ads and also controlled where the ads appeared and how much they cost. The case was brought in 2023 by the U.S. Justice Department, along with 17 states, alleging Google had engaged in anticompetitive conduct to maintain a monopolistic control on digital advertising. The plaintiffs accused Google of violating Section 2 of the Sherman Act by monopolizing the digital advertising market, specifically in three key areas: the publisher ad server market (through DFP), the ad exchange market (through AdX), and the advertiser ad network market, all related to open-web display advertising. They claimed that Google had used its dominant position to unlawfully tie its AdX and DFP products together. It was the case of the plaintiffs that Google had used its control of DFP, the most popular ad server for large publishers, to give its own ad exchange, AdX, an unfair advantage through a feature called “First Look,” which required publishers to offer AdX the first chance to buy each ad view before rival exchanges could bid. Additionally, AdX was allowed to place instant bids based on up-to-date information, while competing exchanges had to submit fixed bids in advance, limiting their ability to compete fairly. Google's ad tech tools like DFP and ADX continued to dominate the market with their enormous scale of operation and were poised to continue their monopoly, prompting the Department of Justice to take action.

Arguments of the plaintiff

The plaintiffs' counsel argued that Google had engaged in anticompetitive actions through a series of steps aimed at obtaining and protecting its dominant positions. The counsels submitted that through the acquisition of DoubleClick, the developers of ADX and DFP, Google had achieved market monopoly in the digital advertising market. The plaintiffs argued that Google had paid $1 billion more than its corporate strategy team's valuation of DoubleClick to secure the ad tools used by the company and to prevent another large technology company from competing in the ad business. The counsel further argued that Google had made a tie-in agreement between ADX and DFP to force publishers into exclusively using Google's ad tech tools, preventing the use of competitors' products. The counsels claimed that Google had set its technical policy in a manner that prevented publishers from getting bids unless they were using DFP, which forced the consumers to mechanically opt for Google's ad tool, not necessarily being the superior tool available due to the tie-in. Furthermore, the counsel submitted that Google, taking advantage of the tie-in, had taken actions to disrupt and weaken the competitive abilities of its rivals. Google, using DFP's features, had allowed AdX to see competing exchanges' bids before bidding itself, which significantly caused disadvantages to other competitors in the ad exchange space. By being able to see the highest bid from other exchanges, AdX could bid just slightly higher to win, harming rival exchanges' ability to win auctions and diminishing price competition.

Arguments of the Defendant

Google argued that its monopolistic standing in the relevant market is result of its superior products and business acumen and its tie in business model were procompetitive product design choices made for valid business reasons and thus should not be the basis for antitrust liability. Specifically, concerning the tying of ad server and ad exchange, Google argued that the blending of its products reduced spam, fraud, malware, latency, and other quality issues.While discussing the relevant product market, the counsels submitted that the three separate markets put forward by the petitioners do not actually exist as there is just one large, two-sided market that includes the entire digital advertising environment . This market includes publisher ad servers, ad exchanges, ad networks, and other tools that help connect advertisers with website owners. According to Google, all these tools share the same core purpose: to match advertisers with users on digital platforms.

Findings of the Court

The court found that ad exchanges for open-web display advertising represented a distinct and separate product market within the digital advertising industry. The ad selling market held a unique and identifiable role by connecting publishers, who sold ad spaces through ad servers—with advertisers who used tools like demand-side platforms (DSPs) and ad networks. The court held that the Justice Department successfully proved that ad servers and ad exchanges were distinct, relevant product markets. But it failed to prove that advertiser ad networks were in their own market. The court emphasized that ad exchanges were recognized as a distinct product by industry participants, including publishers, advertisers, and third-party developers.

The court observed that Google had held monopoly power in the digital marketing platform, supported by its dominant market share, high pricing, and barriers to entry. It ruled that tying the ad server to the ad exchange had a significant impact on interstate commerce and had helped Google maintain its monopoly, putting its competitors at a disadvantage. The court rejected Google's arguments that the tie-up was intended to reduce spam and fraud, finding them either significantly outweighed by the tie's harmful effects.

Ultimately, it concluded that Google's actions had been coercive and anticompetitive, going beyond mere product design and harming both competition and consumers. The court stated that Google's policy and technology restrictions "compelled publishers to use DFP, not because they viewed it as a superior product, but rather due to Google's exploitation of its control over AdX's preeminent position in the open-web display ad market." The court explained that Google's restriction of AdX's real-time bidding to DFP required Google's publisher customers who wanted to use AdX's core feature to use DFP. This policy made purchasing DFP alongside AdX "the only viable economic option for publishers who wanted to gain effective real-time access to AdWords, which they could only accomplish by using AdX," the court held. The court concluded that the ad server and ad exchange were distinct products and that Google had used its dominance in the ad exchange market to coerce publishers into using ad servers. The court would set the remedial phase into motion with a crucial hearing that might have forced Google to part with its ad manager. Google had announced that it would appeal the decision.

Case Title: UNITED STATES OF AMERICA v GOOGLE LLC

Click Here To Read/Download The Order