• by Laurie Sullivan  @lauriesullivan, September 8, 2023

Google on Friday filed a motion to dismiss a federal antitrust lawsuit from Gannett, one of the largest newspaper chains in the United States.

Disagreeing with the claims, the motion Google filed aims to dismiss allegations in the Gannett lawsuit based on its advertising-technology business. It suggests that Gannett’s case largely duplicates the “same unfounded allegations” as a case filed by the Texas Attorney General nearly three years ago.

In 2022, U.S. District Court Judge Kevin Castel in New York partially sided with Google in a separate lawsuit that included some of the same claims raised by Gannett.

“Gannett’s late-in-the-game lawsuit fails to break new ground. Their claims are a copy-cat of the Texas Attorney General’s baseless case, much of which was dismissed by a federal court a year ago,” Dan Taylor, vice president of global ads at Google, wrote in an email to Media Daily News. “We are proud that publishers choose Google alongside other partners to help monetize their content in today’s incredibly competitive advertising industry, and we will continue to defend how our products work.”

Google argued in the filing that Gannett missed a "permissible period to bring suit" -- four years -- under a provision of the Sherman Antitrust Act. 

“It’s not surprising Google wants to retain their monopoly," said Polly Grunfeld Sack, Chief Legal Counsel at Gannett. "Gannett will continue seeking fair competition in the digital advertising marketplace to ensure the sustainability of essential content and journalism in the communities we serve across the country.”

Gannett had filed the federal lawsuit in U.S. District Court for the Southern District of New York, calling Google’s ad-tech business a “monopoly,” and claimed that the company used deceptive commercial practices to gain dominance and undercut revenue for news publishers.

The lawsuit aimed to restore competition in the digital advertising marketplace.

Some of those allegations resulting in anti-competitive behavior included Google’s tools and products such as exchange bidding, encrypting user IDs and its mobile format AMP.

For Gannett, 60% of all buyers come through Google. The publisher noted that at the time Google controlled 90% of the market for “publisher ad servers,” which publishers use to offer ad space for sale.

The publisher also estimated that Google at the time controlled more than 60% of the market for “ad exchanges,” which run auctions among advertisers bidding for ad space on publishers’ websites.

There have been other similar cases. Penned by the same counsel as the case filed by the Daily Mail AC, the Gannett and Daily Mail complaints contain nearly identical allegations, Google asserts.  

For example, as in the Daily Mail case, “many of Gannett’s claims focus on Google’s alleged campaign to ‘kill’ header bidding,” Google states.

The filing, however, adds that “Gannett’s own allegations underscore that header bidding is alive and well—Gannett admits in its Complaint that it has used client-side header bidding since 2016, and continues to use it to this day.” 

Google’s motion to dismiss focuses on three main areas:

• Previously dismissed claims, as many of Gannett’s core allegations were dismissed in the state Attorneys General’s lawsuit led by Texas a year ago.

• Product design choices that are specifically built to benefit publishers and advertisers and promote competition, not to disadvantage competitors.

• Stale allegations, as Gannett’s alleged injury due to some product features are not within the permissible period to bring claims.

* This article was updated on Sept. 10 with additional reporting by Ray Schulz.