Google vs DOJ antitrust trial comes to an end, but how did its ‘spaghetti football’ defence hold up?

The high-profile Google vs. The US Department of Justice antitrust trial – which aims to prove that the tech giant has a monopoly over the adtech industry – officially ended on 27 September.

According to daily updates on the trial from the US vs. Google website – run by industry watchdog Check My Ads – parties are set to submit their revised ‘Findings of Fact’ by 4 November and closing arguments are scheduled for 25 November. The trial first started on 9 September and ended after Google presented its defence on the third week. 

The tech giant’s defence attempted to prove that there is competition in the adtech space whilequestioning the DOJ’s market definitions, and claim that its practices were legal and aiding the overall industry.

Google experienced an unlucky opening to its case when its attorney, Bill Isaacson, cross-examined government expert Dr. Robin Lee for over four hours in an attempt to expose weaknesses in his testimony. However, Dr. Lee’s expertise made it difficult to undermine the government’s case and the Judge Brinkema ended up referring to Google’s ad tech ecosystem as a “spaghetti football” to highlight its complexity

Scott Sheffer, Google VP, was the first witness for Google to testify about the ad tech ecosystem, but his testimony faced scepticism as a chart that outlined the ad tech ecosystem turned chaotic and drew laughter from observers and Sheffer admitted that he was unaware of the term “open web display ads”. Judge Brinkema also noted that his testimony referenced events ‘post-investigation initiation’.

Other key testimonies included former Google Engineering Director, Nitish Korula, who said that the company did not prevent competitors from making real-time bids but admitted that they didn’t actively support them, and Google expert Paul Milgrom who defended Google’s auction practices and testified that the company’s actions between 2013 and 2019 were not anticompetitive. 

Google Finance Director Jessica Mok also testified in the trial in an attempt to downplay the financial significance of the tech giant’s ad tech but was challenged by the DOJ on the transparency of Google’s revenue classifications. 

Economist Mark Israel also attempted to argue that the adtech market operates as a single two-sided market but the DOJ highlighted the contradictions in his market definitions and exposed internal communications that indicated Google’s competitive practices. 

Google’s ‘last look’ advantage

Other testimonies include one from the Daily Mail’s Chief Digital Officer, Matthew Wheatland, who testified about the challenges that publishers have faced in the adtech landscape and how Google’s AdX makes it difficult to negotiate favourable terms. He said that Google has made it harder to sell directly and that Google’s “Last Look” advantage creates an uneven playing field. 

Testimony read-outs from Vox Media’s President, Revenue & Growth Ryan Pauley and Bryan Bumpers, Marketing Analytics Manager at Zulily, also highlighted how Google’s market practices limit publisher control and create barriers for competition. 

Based on Google’s defence, Judge Brinkema pointed out that the tech giant’s witnesses were questionable as they had ties to the company and their testimonies appeared rehearsed and overly favourable to Google. She also pointed out the issue with Google’s market definitions and that the company’s focus seemed more aligned on potential remedies than addressing liability.

The DOJ’s defence, in comparison, aimed to prove how Google’s dominance has harmed competition with key testimonies from industry experts including Gannett's Tim Wolfe and IndexExchange's Andrew Casale who discussed the competitive disadvantages stemming from Google's dominance and former Google VP Eisar Lipkovitz who criticised the company’s practices as needing regulation.

Sarah Kay Wiley, Director of Policy Director at Check My Ads, said that the industry watchdog is “confident” that Google’s overlapping monopolies will be broken up based on the events of the trial and that the DOJ had presented a thorough and compelling case. 

She said: “Once again we saw Google play tricks to hide their anti competitive behaviour. What Google employees said in internal emails was completely different to what they said in court. Judge Brinkema discovered this as well.”

Is Google too big to fail?

In an interview with Mi3, S4 Capital Founder Sir Martin Sorrell spoke about global tech players and said that attempts to regulate platforms like Google may be futile as they have grown larger than the companies that are trying to reign them in. He added that large platforms may only be regulated through self-governance because of their size and influence.

He said: “These are not companies anymore, they are countries. AI is going to make [them] even more important, therefore self-regulation is going to be absolutely key.”

This article first appeared in Campaign's sister publication, Performance Marketing World.