In re: Google Digital Advertising Antitrust Litigation
1:21-md-03010
S.D.N.Y.Mar 1, 2024Background
- The MDL consolidates multiple private suits alleging Google monopolized components of the digital ad stack (publisher ad server "DFP"/GAM, ad exchange AdX, and ad‑buying tools) and used features like Dynamic Allocation, Enhanced Dynamic Allocation (EDA), Unified Pricing Rules (UPR), Minimum Bid to Win (MBW), and various projects (Poirot, Elmo, Bernanke) to favor AdX and Google tools.
- Digital ad auctions occur in milliseconds: publishers send bid requests via ad servers; exchanges (e.g., AdX) run auctions; advertisers use buying tools (distinct markets for large advertisers like DV360 and small advertisers like Google Ads).
- The NBA (Network Bidding Agreement) between Google and Facebook (2018) and related practices (timeouts, ID sharing, enlarged time allowances) are central contested acts; header bidding and exchange bidding are rival mechanisms that plaintiffs say Google sought to suppress.
- Plaintiffs comprise advertiser groups (small‑advertiser Google Ads users; none used DV360), publishers (including Gannett, Daily Mail, and a consolidated Publisher class), SPX advertisers, and niche plaintiffs (Organic Panaceas). The court previously issued a 2022 Opinion resolving States’ claims and incorporated those standards here.
- This Opinion resolves motions to dismiss most private complaints: it rejects NBA‑based §1 claims, dismisses some advertiser and SPX claims for lack of antitrust standing, allows certain publisher §2 theories (MBW, EDA effects on direct sales) to proceed, dismisses Organic Panaceas for lack of a defined market, and finds arbitration arguments premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Section 1 claim based on the NBA | NBA conferred special advantages to Facebook that disadvantaged other bidders and restrained competition | NBA is a vertical agreement encouraging participation, not a scheme that predetermined auction outcomes | Dismissed — plaintiffs fail to plausibly allege an unreasonable restraint of trade under rule of reason |
| Antitrust standing re large‑advertiser buying tools (DV360) | Advertisers say Google’s Projects (Poirot/Elmo) channeled large buys to AdX, harming advertisers | Many advertiser plaintiffs never used DV360 or were not in that market | Dismissed — no plausible allegation plaintiffs were injured in that market |
| Antitrust standing re ad‑exchange and small‑advertiser tools | Advertisers allege Dynamic Allocation, EDA, Bernanke, Dynamic Revenue Sharing, UPR funneled transactions to AdX and raised prices | Google argues practices were lawful or plaintiffs lack direct injury | Denied (standing plausibly alleged) — advertisers adequately allege antitrust injury and efficient enforcement for ad‑exchange and small‑buyer markets |
| Count Five (§1) UPR claim | UPR coerced publishers into uniform floors, restraining competition | UPR alleged as unilateral imposition, not a contract/combination between publishers and Google | Dismissed — complaint fails to allege a §1 agreement (no meeting of the minds) |
| Reserve Price Optimization (RPO) theory | RPO misled advertisers and harmed small‑buyer tool users | RPO alleged like States’ claim and lacks anticompetitive effect on small‑buyer tool users | Dismissed (paralleling 2022 Opinion) |
| Arbitration enforcement via Program Terms | Program Terms contain a broad arbitration clause binding advertisers | Google offers declarant testimony that plaintiffs accepted terms and did not opt out | Denied without prejudice — factual record inadequate; Shadd declaration insufficient at pleading stage |
| Publisher §2 claim re MBW (Minimum Bid to Win) | MBW used aggregated bid data from publishers to enable bid‑shading that depressed publisher revenue and thwarted header bidding | Google says MBW improved advertiser efficiency and competition (voluntary advertiser use) | Denied (claim survives) — Publishers plausibly allege MBW misused monopoly power to harm publisher market competition |
| Publisher claim re "problematic code" policing | Publishers allege Google flagged rivals' code to block competing ad networks | Google says flags reflect bona fide technical concerns | Dismissed — plaintiffs fail to plausibly allege pretext or pervasive anticompetitive effect |
| Tying/leveraging claims (Search+, AMP, search algorithm changes) | Publishers/Daily Mail allege Google funneled unspent search budgets into GDN, coerced AMP adoption, and penalized non‑participants via search ranking changes | Google argues programs were opt‑in/opt‑out, product improvements, and algorithmic changes lack coercion evidence | Dismissed — no plausible coercive tying or leveraging alleged |
| Gannett EDA / line‑item cap timeliness | Gannett alleges EDA harmed direct sales and MBW harmed auctions; line‑item caps began 2017 | Google argues statute of limitations bars some claims | EDA and MBW claims for Gannett survive (fraudulent concealment alleged re EDA); line‑item cap claim dismissed as time‑barred |
| Organic Panaceas (CBD advertiser) | Google selectively enforced ad policy, harming Organic Panaceas’ business | Google says policy enforcement non‑anticompetitive; complaint lacks defined product market and antitrust injury | Dismissed — fails to plead a relevant product market or antitrust injury |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading requirements under Rule 8)
- Gelboim v. Bank of Am. Corp., 823 F.3d 759 (2d Cir. 2016) (antitrust standing test: antitrust injury and efficient enforcer)
- Gatt Commc’ns, Inc. v. PMC Assocs., LLC, 711 F.3d 68 (2d Cir. 2013) (antitrust standing as threshold pleading inquiry)
- IQ Dental Supply, Inc. v. Henry Schein, Inc., 924 F.3d 57 (2d Cir. 2019) (antitrust injury analysis guidance)
- In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151 (2d Cir. 2016) (inextricably intertwined injuries doctrine)
- Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752 (concerted action requirement for §1)
- Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (tying claim elements)
- Kaufman v. Time Warner, 836 F.3d 137 (2d Cir. 2016) (tying elements restated)
- Virgin Atl. Airways Ltd. v. British Airways PLC, 257 F.3d 256 (2d Cir. 2001) (monopoly leveraging doctrine)
- Spinelli v. Nat’l Football League, 903 F.3d 185 (2d Cir. 2018) (need for concrete facts showing anticompetitive effect)
- Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (arbitration/online‑agreement fact‑intensive inquiry)