Google and DOJ return for round two of their antitrust fight — this time about ads

Because of that, Allensworth says, “the government is sort of desperate to not frame this as a duty to deal, product design case when it comes to the conduct that’s being alleged.” Instead, the government will seek to “highlight the kind of shenanigans that Google got up to” and the short-term sacrifices it made to solidify its dominance. 

One of those “shenanigans” is how Google handled a strategy known as header bidding. Through header bidding, publishers figured out that they could send their ad calls to other ad exchanges before going to Google’s to maximize the bids on their inventory. Recognizing this as an “existential” threat, according to the DOJ, Google created “Open Bidding,” which required publishers and ad exchanges to give it visibility into how rival exchanges bid. The DOJ alleges that Open Bidding actually gave Google more insight into auctions, helped it extract more fees, and “disintermediated rival ad exchanges from their own publisher customers.”

Google “did its darnedest to … make it really hard to simultaneously have header bidding and also still get the most out of your relationship with Google as a publisher,” says Evelyn Mitchell-Wolf, a senior analyst at Emarketer who covers the US digital ad market.

To explain why Google’s refusal to play with rivals’ products is wrong, the government may try to align its arguments with a different Supreme Court case, known as Aspen Skiing. In that case, a company bought three of four mountains in Aspen, Colorado, then discontinued a pass arrangement that gave skiers access to all four mountains. While there’s no duty to deal, the court found that the company sacrificed short-term profits to hurt its rival and grow its own dominance.

“Google will try to say, we never dealt with these other companies, our rivals, in any way that we changed,” Allensworth said. “And then the government’s going to try to come back and point to various things and frame them as a change in policy.”

For the publishers and advertisers who rely on Google’s tools, a ruling against the company (depending on the kinds of remedies determined) could lead to a very different way of doing business. Mitchell-Wolf says there could be plenty of “logistical headaches” if the Google ad tech stack were broken up, as these players would need to find alternatives that work well together in the short term. The longer-term hope of the government would be that such an action would revive competition in the industry. And some advertisers and publishers would “breathe a little bit of a sigh of relief,” Mitchell-Wolf says, to be able to loosen their reliance on Google.