Google doesn’t need AppNexus founder Brian O’Kelley – , the godfather of programmatic – to testify throughout its advert tech antitrust trial beginning on September 9.
It additionally doesn’t need Index Change CEO Andrew Casale, OpenX CEO John Gentry, Vox CRO Ryan Pauley or The Commerce Desk’s CRO Jed Dederick on the stand. And the checklist goes on. In reality, Google is seeking to exclude all the advert tech trade witnesses that have been deposed because the DOJ was constructing its case.
Late final week, Google filed a movement to toss out any testimony associated to Google’s alleged anticompetitive habits coming from authorities witnesses who aren’t economists or antitrust specialists.
Google’s argument is that “none of those third-party competitor witnesses has the correct basis of information, knowledgeable {qualifications} or completed the required financial evaluation to opine as as to whether Google is a monopolist whose conduct harmed competitors.”
Guess lived expertise doesn’t rely?
Rivals and prospects
In its countermotion asking the court docket to disclaim Google’s request, filed final week, the DOJ takes particular situation with Google’s characterization of its trade witnesses as nothing greater than opponents of Google.
Sure, third-party advert exchanges comparable to Xandr (née AppNexus), Index Change, Magnite, Kargo and OpenX compete with Google’s AdX – however they’re additionally Google’s prospects. They use Google’s DSP and its writer advert server.
“These exchanges make enterprise choices primarily based partially on their reliance on Google, on each side of the advert tech stack, to succeed in publishers and advertisers,” the DOJ writes. “Their testimony about being unable to compete with Google’s AdX is predicated on first-hand information gathered on the job.”
“Furthermore,” the DOJ continues (and who doesn’t love a great “furthermore” in a authorized submitting) “some third events have tried – with various levels of success – to supply their prospects a writer advert server software, and lay witnesses with firsthand experiences growing and advertising such a software can attest to the influence Google’s insurance policies have had on their skill to develop and market options or workarounds to Google’s DFP.”
OpenX, for example, tried – and in the end failed – to compete with Google within the writer advert server market, in accordance with CEO John Gentry, who was deposed in October 2023.
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In its countermotion, the DOJ quotes Gentry from his deposition, the place he defined that OpenX had by no means been in a position to persuade prospects to drop AdX as a result of AdX is the “supply level for the most important supply of demand within the show enterprise.”
OpenX finally shut down its advert server enterprise in late 2018 and laid off 100 workers.
The DOJ additionally cites sworn statements by Brian O’Kelley, who mentioned AppNexus “by no means bought significant traction within the US” with its writer advert server for related causes.
Header bidding emerged as a manner for third-party exchanges to bypass Google’s highly effective place within the public sale.
However, as O’Kelley noticed throughout his deposition, Google’s final look benefit in open bidding allowed DFP and AdX to “manipulate auctions and manipulate the decisioning course of, in [Google’s] profit.”
Market realities matter
Google’s attorneys, nevertheless, characterize these and different statements as rumour and conjecture. The movement to exclude factors to Casale’s deposition from September 2023 for example of speculative testimony.
When Casale was requested, “What’s your understanding of why Google created the Open Bidding product?” he responded: “We assumed it was an try at making a header bidding killer.”
He was additionally requested, “Have you ever ever spoken to publishers who expressed any concern about Google’s dominance throughout the advert tech stack?
Casale: “That’s a reasonably widespread place that a number of publishers have.”
(Curiously, this second query and reply are cited in Google’s movement to exclude however are redacted from the model of Casale’s deposition that was unsealed along with a whole bunch of different trial reveals over the previous couple of weeks.)
In Google’s view, Casale’s statements and related ones by different trade insiders are inadmissible as a result of they represent unsupported opinions.
“It makes no distinction that third events could profess to sofa their opinions in a few years or in depth expertise within the trade,” Google writes in its movement. “The expertise of third events within the trade doesn’t render them competent to testify as to conclusions comparable to whether or not a agency is dominant, a monopoly, anticompetitive or inflicting anticompetitive results.”
However within the DOJ’s view, the trade expertise of those witnesses is precisely what makes them beneficial and viable.
“These market individuals dwell and breathe the give-and-take of competitors within the advert tech trade daily and are positioned as nicely or higher than anybody else to testify to how Google’s conduct has affected them,” the DOJ writes. “Whereas knowledgeable testimony serves an essential position, market realities matter greater than what’s theoretically potential.”
So, what’ll occur right here?
It appears unlikely that the individuals who laid the very first programmatic pipes received’t be allowed to testify in a trial that might alter the course of the advert tech trade.
However that call will likely be left as much as Leonie Brinkema, the federal decide presiding over United States v. Google LLC (take two).
