• by Laurie Sullivan  @lauriesullivan, September 20, 2024

Google opened its defense in a Virginia courtroom Friday in Alexandria, Virginia, where the tech company is battling allegations that it illegally monopolized online ad-tech tools.

The Department of Justice has alleged that Google monopolizes three markets connected to “open web display advertising” -- publisher ad servers, advertiser ad networks, and ad exchanges.

Megan Gray, GrayMatters Law & Policy Founder and CEO, believes that if the U.S. Department of Justice (DOJ) ad antitrust case ended today, the government would win. It's important to note that she acted as former counsel to DuckDuckGo, which has said it was harmed by Google's dominance in search.

Witness testimony for Google continues this week. The company had planned to present 19 witnesses, including six the DOJ objected to initially. They are representatives of federal agencies named by the DOJ as plaintiffs in the case. The judge, however, will allow them to testify, because they use Google’s tools to advertise. The judge stated that what advertisers do in the real world is critical to understanding the case.

Judge Brinkema said she will offer time between the conclusion of rebuttal arguments and closing, but has not indicated any specific timeline for closing arguments, or timing for any decision. 

Gray believes it would require an enormous amount of staffing and budget to cleanly divest any of Google’s companies, but any settlement discussions will become very difficult to keep separate because the cases are not only in the United States, but worldwide. They include Europe, Australia and South Korea. All need to be considered.

“Very hard to think you’re going to stay in your own lane when you have this much enforcement activity, not just in the United States, but around the world,” Gray said.

Suggesting that it’s “like trying to corral cats,” she pointed to getting “consensus” with many state attorney generals who are involved not only in this case, but with Google’s search case.

Judge Amit P. Mehta of the U.S. District Court for the District of Columbia presided over the Google antitrust search trial. Gray said this antitrust case was filed while Trump was in office during his last term, and just now, within the past couple of days, Mehta set the schedule for the timing.

The remedy for the search trial, which addresses the action and harm suffered by a party due to the unlawful actions of another, will be scheduled by November 20, Gray said.

The trial is set for either the last week of April or the first week of May, and it could be the first part of August 2025 before the judge makes a decision.

The search case is about exclusive default contracts, and “at a minimum that will go away,” Gray said. “That does not mean Google cannot pay Apple. That does not mean Google cannot be a default or pay a small player like Firefox to be a default.”

The case was filed without any idea of what the remedy should or could be, she said, which has become problematic. The remedy is likely to only address the causes of action. It just says Google cannot be the exclusive default and doesn’t address what it can pay.

“It’s likely Google will say, ‘well, thank you very much, we’ll just keep our $25 billion and Apple,” either with a choice screen or by continuing to sell the default, it will still be the vast majority for the use on browsers.

She explained that exclusivity and a choice screen are two different things. Exclusivity provisions shut off a way to change the browser.

“The remedies under discussion now are very different than what you’ve heard floated or contemplated in the past four years,” said Gray. She thinks the judge will do something more than just strike the exclusivity provision, but how do you divest companies in search?

“It would provide a way to monetize Chrome and Android,” Gray said. “And you did have in a part of the case a finding of liability in the search ad text market,” which is AdWords in its original form, she explained.