Associated Newspapers Ltd. et al v. Google LLC et al

Filing 93

OPINION AND ORDER: re: (22 in 1:23-cv-03651-PKC) MOTION to Dismiss Singh Complaint filed by Google LLC, Alphabet Inc., (79 in 1:21-cv-06870-PKC) MOTION to Dismiss DEFENDANT GOOGLE LLC'S NOTICE OF MOTION TO DISMISS SPX PLAINTIFFS' C ONSOLIDATED AMENDED CLASS ACTION COMPLAINT filed by Google L.L.C, (136 in 1:21-cv-07034-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC, ALPHABET INC., AND YOUTUBE LLC'S NOTICE OF MOTION TO DISMISS PUBLISHERS' AMENDED CONSOLIDATED CLASS ACTI ON COMPLAINT filed by Google L.L.C, Alphabet Inc., Youtube L.L.C., (453 in 1:21-md-03010-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC AND ALPHABET INC.'S NOTICE OF MOTION TO DISMISS DAILY MAIL'S AMENDED COMPLAINT filed by Google LLC, Al phabet Inc., (446 in 1:21-md-03010-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC AND ALPHABET INC.'S NOTICE OF MOTION TO DISMISS ADVERTISERS' CONSOLIDATED CLASS ACTION COMPLAINT filed by Google LLC, Alphabet Inc., (457 in 1:21-md-03010 -PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC AND ALPHABET INC.'S NOTICE OF MOTION TO DISMISS ORGANIC PANACEAS' CLASS ACTION COMPLAINT filed by Google LLC, Alphabet Inc., (449 in 1:21-md-03010-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC, ALPHABET INC., AND YOUTUBE LLC'S NOTICE OF MOTION TO DISMISS PUBLISHERS' AMENDED CONSOLIDATED CLASS ACTION COMPLAINT filed by Google LLC, Youtube, LLC, Alphabet Inc., (625 in 1:21-md-03010-PKC) MOTION to Dismiss Singh Complaint filed by G oogle LLC, Alphabet Inc., (451 in 1:21-md-03010-PKC) MOTION to Dismiss DEFENDANT GOOGLE LLC'S NOTICE OF MOTION TO DISMISS NEWSPAPER PLAINTIFFS' AMENDED COMPLAINT filed by Google LLC, (455 in 1:21-md-03010-PKC) MOTION to Dismiss DEFENDA NT GOOGLE LLC'S NOTICE OF MOTION TO DISMISS SPX PLAINTIFFS' CONSOLIDATED AMENDED CLASS ACTION COMPLAINT filed by Google LLC, (623 in 1:21-md-03010-PKC) MOTION to Dismiss Gannett Co. Inc.'s Complaint filed by Google LLC, Alphabet I nc., (181 in 1:21-cv-07001-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC AND ALPHABET INC.'S NOTICE OF MOTION TO DISMISS ADVERTISERS' CONSOLIDATED CLASS ACTION COMPLAINT filed by Google LLC, Alphabet Inc., (460 in 1:21-md-03010-PKC) MOTIO N to Dismiss Counts III and IV of Advertisers' Consolidated Amended Complaint filed by Meta Platforms, Inc., (24 in 1:23-cv-05177-PKC) MOTION to Dismiss Gannett Co. Inc.'s Complaint filed by Google LLC, Alphabet Inc., (628 in 1:21- md-03010-PKC) MOTION to Dismiss ("Meta Platforms, Inc.'s Motion to Dismiss Counts III and IV of the Singh v. Google LLC Complaint.") filed by Meta Platforms, Inc. f/k/a Facebook, Inc., (71 in 1:21-cv-03446-PKC) MOTION to Dismiss DEFENDANTS GOOGLE LLC AND ALPHABET INC.'S NOTICE OF MOTION TO DISMISS DAILY MAIL'S AMENDED COMPLAINT filed by Google LLC, Alphabet Inc., (462 in 1:21-md-03010-PKC) MOTION to Dismiss Count II of Newspapers' Consolidated Amended Complaint filed by Meta Platforms, Inc. The motions to dismiss in In re: Google Digital Antitrust Advertising, 21 Civ. 7001 (PKC) and Singh v. Google LLC, et al., 23 Civ. 3651 (PKC) are GRANTED as to plaintiffs' claims directed to Project Elm o, Project Poirot and Reserve Price Optimization. Count III and Count V are also dismissed. Plaintiff Hanson's claims directed to conduct that post-dates September 6, 2016 are dismissed. The remainder of the motions are DENIED. The Clerk is resp ectfully directed to terminate the motions. (21 MD 3010, ECF 446, 460, 625, 628; 21 Civ. 7001, ECF 181; 23 Civ. 3651, ECF 22.) The Court will separately enter as an Order the Stipulation and Proposed Order in the Singh matter. The motion to dismiss i n Organic Panaceas v. Google LLC, 21 Civ. 7001 (PKC) is GRANTED in its entirety. The Clerk is respectfully directed to terminate the motion. (21 MD 3010, ECF 457.). The motion to dismiss the consolidated complaint in SPX Total Body Fitness LLC v. Goo gle LLC, 21 Civ. 6870 (PKC) and SkinnySchool LLC, et al. v Google LLC, 21 Civ. 7045 (PKC) is GRANTED in its entirety. (21 MD 3010, ECF 455; 21 Civ. 6870, ECF 79; 21 Civ. 7045, ECF 43.) The Clerk is respectfully directed to terminate the motion and to close these two cases. The motion to dismiss in In re: Google Digital Publishing Litigation, 21 Civ. 7034 (PKC) is GRANTED as to plaintiffs' claims directed to Google's detection of "problematic code" and their tying claim direct ed to the "Search+" product. The motions are otherwise DENIED. The Clerk is respectfully directed to terminate the motions. (21 MD 3010, ECF 449; 21 Civ. 7034, ECF 136.) The motions to dismiss the Newspapers' consolidated complaint are terminated as moot. (21 MD 3010, ECF 451, 462.) The motion to partially dismiss in Associated Newspapers Ltd., et al. v. Google LLC, et al., 21 Civ. 3446 (PKC) is GRANTED in its entirety. The Clerk is respectfully directed to terminate the motion. ( 21 MD 3010, ECF 453; 21 Civ. 3446, ECF 71.) The motion to dismiss in Gannett Co., Inc. v. Google LLC, 23 Civ. 5177 (PKC) is GRANTED as to Gannett's claims premised on exchange bidding, the encryption of user IDs and line-item capping. It is also GRANTED as to the leveraging claim directed to AMP. The motion is otherwise DENIED. The Clerk is respectfully directed to terminate the motion. (21 MD 3010, ECF 623; 23 Civ. 5177, ECF 24.). SO ORDERED. (Signed by Judge P. Kevin Castel on 3/01/2024) Filed In Associated Cases: 1:21-md-03010-PKC et al. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
IN RE: GOOGLE DIGITAL ADVERTISING
ANTITRUST LITIGATION
-----------------------------------------------------------x
SUNNY SINGH,
Plaintiff,

21-md-3010 (PKC)
OPINION AND ORDER

23-cv-3651 (PKC)

-againstGOOGLE LLC, ALPHABET INC., and META
PLATFORMS INC.,
Defendants.
-----------------------------------------------------------x
ORGANIC PANACEAS, LLC,
Plaintiff,

21-cv-7001 (PKC)

-againstGOOGLE LLC, ALPHABET INC., and META
PLATFORMS INC.,
Defendants.
-----------------------------------------------------------x
SPX TOTAL BODY FITNESS, et al.,
Plaintiffs,

21-cv-6870 (PKC)

-againstGOOGLE LLC,
Defendant.
-----------------------------------------------------------x
IN RE: GOOGLE DIGITAL PUBLISHER
LITIGATION
-----------------------------------------------------------x

21-cv-7034 (PKC)

-----------------------------------------------------------x
AIM MEDIA IND. OPERATING, LLC, et al.,
Plaintiffs,

21-cv-6912 (PKC)

-againstGOOGLE LLC and FACEBOOK INC.,
-----------------------------------------------------------x
ASSOCIATED NEWSPAPERS LTD., et al.,
Plaintiffs,

21-cv-3446 (PKC)

-againstGOOGLE LLC and ALPHABET INC.,
-----------------------------------------------------------x
GANNETT CO., INC., et al.,
Plaintiffs,

23-cv-5177 (PKC)

-againstGOOGLE LLC and ALPHABET INC.,
-----------------------------------------------------------x
CASTEL, SENIOR DISTRICT JUDGE:
This Opinion and Order decides all pending motions to dismiss in the abovecaptioned multidistrict litigation, with the exception of a motion filed in Inform Inc. v. Alphabet
Inc., et al., 23 Civ. 1530 (PKC), which will be addressed in a forthcoming Opinion and Order.
On September 13, 2022, the Court issued an 88-page Opinion and Order that
decided Google’s motion to dismiss the Sherman Act claims brought by the attorneys general of
16 states and the Commonwealth of Puerto Rico (the “States”). In re Google Digital Advertising

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Antitrust Litig., 627 F. Supp. 3d 346 (S.D.N.Y. 2022) (the “2022 Opinion”). 1 The Court then
granted leave to the private-party plaintiffs to amend their pleadings, and set a briefing schedule
for defendants’ motions to dismiss. (ECF 309, 311, 392.) 2
The Court incorporates by reference all legal standards set forth in the 2022
Opinion, including the well-understood obligation of a plaintiff to allege facts plausibly stating a
claim for relief and the extensive discussion of precedent controlling claims under sections 1 and
2 of the Sherman Act. The Court also incorporates the terminology and definitions in the 2022
Opinion, including those relating to relevant markets and facts at issue, e.g., the Network
Bidding Agreement (“NBA”), header bidding, and Enhanced Dynamic Allocation (“EDA”). To
the extent that certain plaintiffs have tailored or expanded upon allegations discussed the 2022
Opinion, those new allegations are discussed and addressed below.
For the reasons that will be detailed below, this Opinion and Order concludes as
follows:
•
•

•

•

No plaintiff has plausibly stated a claim for relief premised upon on the terms of the
NBA.
The Advertisers (as defined below) have not plausibly alleged antitrust standing in the
markets for ad-buying tools used by large advertisers, but they plausibly allege
antitrust standing as to injuries they purportedly suffered from anticompetitive
practices in the ad-exchange market and the market for small advertisers’ buying
tools. The Advertisers do not plausibly allege a section 1 claim based on the
implementation of UPR and header-bidding caps.
Google’s assertion that all but one advertising plaintiff agreed to an arbitration
provision turns on the testimonial affidavit of a legal assistant, which only vaguely
describes Google’s records of these plaintiffs’ consents to arbitration and does not
annex any supporting records of their consent. Google’s motion to dismiss, or,
alternatively, to compel arbitration, is premature at this juncture, and requires a more
developed factual record as to the advertisers’ purported consents to arbitrate.
The unopposed motion to dismiss the Organic Panaceas Complaint will be granted
because it does not identify a relevant product market and because Google’s

The JPML has since remanded the action brought by the States to the transferor Court. See In re Google Digital
Advert. Antitrust Litig., 2023 WL 3828612 (U.S. Jud. Pan. Mult. Lit. June 5, 2023).
2
Unless otherwise specified, all citations to the docket reference the MDL docket in this case and not to any of the
individual actions.
1

3

•
•

•
•
•

purportedly arbitrary enforcement of rules against paid advertisements for
cannabidiol oil does not amount to anticompetitive conduct.
The claims of the SPX Plaintiffs will be dismissed in their entirety because they have
not plausibly alleged antitrust standing or stated a claim for relief as to the NBA.
The Publishers (as defined below) have plausibly alleged a section 2 claim based on
Minimum Bid to Win (“MBW”) but not as to Google’s policing of code or Search+.
The Publishers’ factual allegations about the use of encrypted ID differ from those
brought by the states because it is one of several practices alleged to reinforce a tying
arrangement, and not its own proposed basis for section 2 liability; the motion to
dismiss this portion of the tying claim will be denied.
Because all Newspaper Plaintiffs have filed notices of voluntary dismissal, the
motions to dismiss their claims will be terminated as moot.
The motion to partially dismiss the claims of Daily Mail will be granted.
Gannett plausibly alleges section 2 claims based on EDA’s effects on direct sales and
on implementation of MBW and has plausibly alleged that Google fraudulently
concealed the anticompetitive effects of EDA. The remainder of Google’s motion
will be granted.

BACKGROUND.
Consistent with Twombly and Iqbal, the plaintiffs’ well-pleaded factual
allegations are assumed to be true. This brief overview recounts some of the principal
allegations made at the pleading stage and is not intended to suggest any findings of fact or legal
conclusions about the conduct alleged.
Quoting from the States’ Complaint, the 2022 Opinion gave the following
summary of how digital ad tech operates:
When a user [i.e. consumer] visits a publisher’s website, the
publisher’s ad server sends a “bid request” to the ad buying tools
who have a “seat” to bid in the exchange and purchase on behalf of
their advertiser clients. This bid request announces the publisher's
available impressions to exchanges, along with information about
the impression, including the user’s ID, the ad slot’s parameters, and
any rules about pricing. These bid requests also contain information
about the impression at issue and convey a “timeout,” which is the
amount of time prospective buyers are allotted to respond with their
“bid response.” Within this timeframe, which is typically a mere
fraction of a second, each ad buying tool must unpack the
information contained in the bid request, gather and deploy personal
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information about the user, determine the appropriate price to bid on
behalf of the prospective advertiser, and return a bid response to the
exchange. When time expires, each exchange closes its auction,
excludes any late bids, and passes its highest bid to the ad server.
The publisher’s ad server then selects which ad to display and
effectuates the display of the ad to the user.
627 F. Supp. 3d at 361 (quoting State Compl’t ¶ 74).
The distinguishing trait of digital ad tech is that an advertiser can target its ads to
the most relevant consumers, as opposed to traditional print ads that run to a general audience.
Defendants Google, LLC and its parent company Alphabet, Inc. (collectively, “Google”) play a
pivotal role in every step of the auctions for digital display ads.
Publishers rely on ad servers to manage the placement and sale of digital display
ad space. Some of these ad spaces are directly sold to advertisers by a publisher’s in-house sales
team, which negotiates price and the target viewer’s characteristics (e.g., a female site visitor of a
certain age and location who is in the market for a new automobile). Frequently, however, ad
space is transacted in online auctions that take place in milliseconds. Google’s ad server is often
referred to as DoubleClick for Publishers (“DFP”), though it has been rebranded as Google Ad
Manager (“GAM”). Google has monopoly power in the market for ad servers.
Digital advertising auctions take place on ad exchanges – real time marketplaces
that match publishers to advertisers. The auctions occur during the time that a user’s page loads
and displays a successful bidder’s ad. Google’s AdX exchange has monopoly power in the adexchange market and processes approximately 11 billion display ads each day. Ad exchanges
function as the go-between for publishers selling ad space and advertisers seeking to place an ad.
Ad exchanges are typically used by large publishers, which are charged a take rate by the ad
exchange if a transaction clears. The various plaintiffs frequently assert that Google exploits its

5

monopoly in ad servers and ad-buying tools to route transactions through AdX, thereby
entrenching AdX’s monopoly power. A common theme throughout the pleadings is that Google
has sought to coercively thwart header bidding because it is a competitive threat to AdX.
Advertisers participate in ad auctions by using ad-buying tools. There are two
separate markets for ad-buying tools: one for large advertisers and one for small advertisers. The
ad-buying tools for large advertisers are costly and permit advertisers to fine-tune aspects of their
purchasing strategies. No plaintiff asserts that it has used the tools of large advertisers, including
Google’s DV360 product. The Advertisers instead were customers of Google’s buying tool for
small advertisers. Google has monopoly power in the market for small-buyer advertising tools,
and Google Ads buys approximately 50% of all display ads sold on AdX.
Some publishers sell their inventory of web display ads through ad networks
instead of using a publisher ad server. Ad networks differ from ad servers because they pool
publisher inventory for sale to advertisers affiliated with the network. Publishers have less
control over inventory sold over ad networks, which is why larger and well-resourced publishers,
such as plaintiff Gannett, generally do not sell impressions through ad networks. Ad networks
are typically used by smaller advertisers and publishers. Some portion of the networks’ ad
inventory may be purchased over an ad exchange. Because of their more limited range of
function, ad networks are not considered interchangeable with ad servers, and they are treated as
separate markets.
Mobile apps have their own ad-tech mechanisms that are separate and distinct
from web display ads. Mobile app developers sell ad inventory through an in-app mediation
tool. The in-app mediation tool manages the app’s inventory of impressions, lets the developer
identify certain user information, and is a vehicle for conducting ad auctions. Google’s products

6

in the in-app mediation market include Google Ad Manager for apps of large developers and
AdMob for smaller developers.
Advertisers typically do not have direct dealings with the in-app mediation tool.
Rather, they buy app impressions using an in-app network. An in-app network purchases display
impressions from developers and re-sells them to advertisers. For example, an in-app network
may buy impressions at auction on a per-impression basis, then sell them to advertisers on a perclick or per-action basis, or through the sale of large blocks of impressions. In-app ad networks
are separate and distinct from the ad networks for web display ads.
In September 2018, Google and Facebook entered into the NBA. 3 The 2022
Opinion dismissed the States’ section 1 claim asserting that the NBA effected a combination or
conspiracy to restrain trade wherein Facebook agreed to curb or forego its participation in header
bidding in exchange for gaining purportedly unfair advantages in AdX auctions, and separately,
the claim that Google and Facebook agreed or colluded to limit their competition on in-app ad
inventory. See 627 F. Supp. 3d at 370-77. On the latter issue, the Court concluded that neither
the NBA nor any associated understanding overtly or covertly assured did not provide that
Facebook would win a set percentage of auctions; rather, the alleged understandings were
consistent with Google’s efforts to win the business of a large client whose participation would
increase competition within Google’s in-app network. See id. at 375-77.
Some of the private plaintiffs also bring claims that relate to Google’s monopoly
powers in general internet search and search advertising. Through the ubiquitous Google search
engine, Google shows ads that appear alongside search results, which advertise products

Facebook, Inc. is now known as Meta Platforms, Inc. (“Meta”). The pleadings and memoranda differ in whether
they identify the company’s historic actions as being done by Facebook or Meta. For the sake of consistency, and
because the company was known as Facebook at the time the parties entered into the NBA, this Opinion and Order
will refer to it as Facebook.

3

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intended to match the user’s search interest. This valuable space is highly sought by advertisers.
The Publishers assert that Google unlawfully tied the sale of search ads to the sale of display ads
transacted on AdX. Some publisher plaintiffs have also asserted that Google manipulates search
rankings to punish or reward participation in purportedly anticompetitive ad-server initiatives,
particularly as they relate to header bidding.
GOOGLE’S MOTION TO PARTIALLY DISMISS THE ADVERTISERS’ COMPLAINT
WILL BE GRANTED IN PART AND DENIED IN PART. 4
I.

Overview of the Advertiser Complaint.

Six advertiser plaintiffs have filed a consolidated complaint that brings claims on
behalf of a putative class of advertisers that placed a display ad on a website or mobile app
through Google (the “Advertiser Complaint”). (ECF 399.) Those plaintiff are Christopher
Hanson, d/b/a Hanson Law Office (“Hanson”), Vitor Lindo, Cliffy Care Landscaping, Inc.
(“Cliffy Care”), Kinin, Inc. (“Kinin”), Raintree Medical and Chiropractic Center, LLC
(“Raintree”) and Rodrock Chiropractic PA (“Rodrock”) (collectively, the “Advertisers”). (Adv.
Compl’t ¶¶ 14-32.) Cliffy Care, Kinin, Raintree and Rodrock all allege that they purchased
display and in-app ads using Google Ads, which is the ad-buying tool used by small advertisers.
(See id.) Hanson and Lindo allege that they paid Google to directly broker display ads on thirdparty websites and also bought search ads from Google. (See id.) None of these plaintiffs
alleges that it used an ad-buying tool intended for use by large advertisers, specifically including
Google’s DV360 product.
Counts One asserts a claim of monopolization in the markets for ad exchanges
and ad-buying tools for small advertisers under section 2 of the Sherman Act, 15 U.S.C. § 2.
(Compl’t ¶¶ 350-57.) Count Two asserts a claim of attempted monopolization in the markets for
4

In re: Google Digital Antitrust Advertising, 21 Civ. 7001 (PKC).

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ad exchanges, ad-buying tools for small advertisers and ad-buying tools for large advertisers,
also under section 2. (Compl’t ¶¶ 358-64.) Count Three asserts contract or combination in
restraint of trade under section 1 of the Sherman Act, 15 U.S.C. § 1, based on the NBA entered
into by Google and Facebook. (Compl’t ¶¶ 365-72.) Count Five asserts a contract or
combination in restraint of trade under section 1, and asserts that the Unified Pricing Rules that
Google allegedly imposed on publishers resulted in artificially inflated prices paid by plaintiffs.
(Compl’t ¶¶ 378-90.) Counts One through Three broadly parallel claims brought by the States,
while Count Four advances a claim for relief not previously considered by the Court. Facebook
separately moves to dismiss Count Three. (ECF 460.)
II.

Google’s Motion to Dismiss the Advertisers’ Claim on Grounds of
Antitrust Standing Will Be Granted in Part and Denied in Part.
A. The Requirement to Plausibly Allege Antitrust Standing.

The Clayton Act provides a right of action to seek treble money damages from
“any person who shall be injured in his business or property by reason of anything forbidden in
the antitrust laws . . . .” 15 U.S.C.A. § 15(a). “[H]owever, ‘Congress did not intend the antitrust
laws to provide a remedy in damages for all injuries that might conceivably be traced to an
antitrust violation.’” Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68, 75 (2d Cir.
2013) (quoting Associated General Contractors of Cal., Inc. v. California State Council of
Carpenters, 459 U.S. 519, 534 (1983)). “[A]ntitrust standing is a threshold, pleading-stage
inquiry and when a complaint by its terms fails to establish this requirement we must dismiss it
as a matter of law.” Gatt, 711 F.3d at 75 (quotation marks omitted).
“In determining antitrust standing, [courts] ‘assume[ ] the existence’ of an
antitrust violation. [They] then ask two questions: (1) ‘have [plaintiffs] suffered antitrust
injury?’ and (2) ‘are [plaintiffs] efficient enforcers of the antitrust laws?’” Harry v. Total Gas &
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Power N. Am., Inc., 889 F.3d 104, 115 (2d Cir. 2018) (quoting Gelboim v. Bank of Am. Corp.,
823 F.3d 759, 770 (2d Cir. 2016)). Identification of an antitrust injury “involves a ‘three-step
process’ in which, first the plaintiff must ‘identify the practice complained of and the reasons
such a practice is or might be anticompetitive’; then the court must ‘identify the actual injury the
plaintiff alleges’ by ‘look[ing] to the ways in which the plaintiff claims it is in a worse position
as a consequence of defendant’s conduct’; and finally, the court must ‘compare the
anticompetitive effect of the specific practice at issue to the actual injury the plaintiff alleges.’”
Harry, 889 F.3d at 115 (quoting Gatt, 711 F.3d at 76). On step one, “the bar for such a showing
is a low one,” and a plaintiff “need allege only that the Defendants have engaged in unlawful
anticompetitive conduct.” IQ Dental Supply, Inc. v. Henry Schein, Inc., 924 F.3d 57, 63 (2d Cir.
2019). The second step requires courts “to isolate and identify [plaintiff’s] ‘actual injury’ or the
‘ways in which the plaintiff claims it is in a ‘worse position’ as a consequence of the defendant’s
conduct.’” Id. (quoting Gatt, 711 F.3d at 76). On the third step, the plaintiff “must demonstrate
that the Defendants’ anticompetitive behavior caused its actual injury.” Id. at 64-65.
“Competitors and consumers in the market where trade is allegedly restrained are
presumptively the proper plaintiffs to allege antitrust injury.” In re Aluminum Warehousing
Antitrust Litig., 833 F.3d 151, 158 (2d Cir. 2016) (quotation marks omitted). However,”[t]he
universe of potential plaintiffs is not strictly limited to participants in the defendants’ market”
because there is “‘a narrow exception . . . for parties whose injuries are “inextricably
intertwined” with the injuries of market participants.’” Id. (quoting Am. Ad Mgmt., Inc. v. Gen.
Tel. Co. of California, 190 F.3d 1051, 1057 n.5 (9th Cir. 1999)). “[M]ost of the time when a
putative plaintiff has suffered antitrust injury that is ‘inextricably intertwined’ with the injury the
conspirators ultimately intended to inflict, it is because the conspirators used the plaintiff’s injury

10

as the ‘means,’ ‘fulcrum,’ ‘conduit,’ or ‘market force’ to realize their illegal ends.” Id. at 16061. “Therefore, to assess the plausibility of a putative plaintiff's claim to antitrust injury as being
‘inextricably intertwined’ with the injury the defendants ultimately sought to inflict, courts ask
whether the plaintiff was “manipulated or utilized by [defendant] as a fulcrum, conduit or market
force to injure competitors or participants in the relevant product and geographical markets.” Id.
at 161.
A plaintiff that has plausibly alleged antitrust injury must also plausibly allege
that it is an efficient enforcer of the antitrust laws. Gelboim, 823 F.3d at 772. The Second
Circuit has explained:
The efficient enforcer inquiry turns on: (1) whether the violation was
a direct or remote cause of the injury; (2) whether there is an
identifiable class of other persons whose self-interest would
normally lead them to sue for the violation; (3) whether the injury
was speculative; and (4) whether there is a risk that other plaintiffs
would be entitled to recover duplicative damages or that damages
would be difficult to apportion among possible victims of the
antitrust injury. Built into the analysis is an assessment of the “chain
of causation” between the violation and the injury.
Id. (internal citations omitted). “These four factors need not be given equal weight: the relative
significance of each factor will depend on the circumstances of the particular case.” IQ Dental
Supply, 924 F.3d at 65.
B. The Advertiser Complaint Does Not Allege Plaintiffs’ Antitrust Injury
in the Market for Ad-Buying Tools for Large Advertisers.
The Advertiser Complaint identifies three relevant product markets: ad
exchanges, including Google’s AdX product; buying tools for small advertisers, including the
Google Ads product; and buying tools for large advertisers, including Google’s DV360 product.
(Adv. Compl’t ¶¶ 54.) It asserts that Google’s anticompetitive conduct in these markets caused

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the Advertisers to “pay[ ] more to place ads through AdX, causing antitrust injury and giving rise
to antitrust standing.” (Adv. Compl’t ¶ 55.)
The Advertiser Complaint asserts that the Hanson and Lindo “paid Google
directly to broker the placement of . . . display advertisements on third-party websites.” (Adv.
Compl’t ¶¶ 14, 20.) It asserts that plaintiffs Cliffy Care, Kinin, Raintree and Rodrock
“purchased display and in-app advertising through Google Ads . . . .” (Adv. Compl’t ¶¶ 26, 28,
30, 32.)
Though the Advertiser Complaint describes the functions of Google’s DV360
product and identifies a market for ad-buying tools used by large advertisers, it does not assert
that any of the six plaintiffs were customers of DV360: Four of the six plaintiffs are customers of
Google Ads, and the other two plaintiffs contracted with Google to directly broker ad
placements. (Adv. Compl’t ¶¶ 26, 28, 30, 32, 14, 20.) It repeatedly distinguishes the markets for
Google Ads and DV360: “Google recognizes that the set of customers served by buying tools for
small advertisers (Google Ads) is unique and distinct from the set of customers served by buying
tools for large advertisers (DV360) . . . .” (Adv. Compl’t ¶ 98; see also Adv. Compl’t ¶¶ 91, 109
(“Google participates in the two markets by offering two distinct products: Google Ads is for
small advertisers, and DV360 is for large advertisers.”), 137 (DV360 is “a standalone product
market.”).) DV360 has “unique entry and usage requirements” which includes “at least $10
million” in customer spending per year. (Adv. Compl’t ¶ 128.)
The 2022 Opinion Concluded that the States had plausibly alleged that Google
engaged in anticompetitive conduct in the market for ad-buying tools of large advertisers through
its Project Poirot and Project Elmo initiatives. 627 F. Supp. 3d at 397-98. The Advertiser
Complaint parallels the States’ allegations and plausibly alleges why this conduct was

12

anticompetitive, thereby satisfying step one of the antitrust injury requirement. (Adv. Compl’t
¶¶ 267-74.) But the Advertisers do not describe how they were harmed as a result of Project
Poirot or Project Elmo. The Advertiser Complaint alleges that Google manipulated ad auctions
by directing customers of its DV360 product to Google’s own AdX exchange “without
competing on the merits of price or quality.” (Adv. Compl’t ¶¶ 267-74.) Plaintiffs’ theory of
injury is that large advertisers using DV360 were deprived of lower-priced, higher-quality ads
available on Google’s rival exchanges and were channeled to transactions on AdX. (See id.)
The Complaint does not allege facts that would tend to show that any of the six plaintiffs used
the DV360 ad-buying tool or that their bids were manipulated through Project Poirot or Project
Elmo. It also does not allege that plaintiff suffered an injury that is “inextricably intertwined”
with any alleged scheme related to DV360. See In re Aluminum Warehousing, 833 F.3d at 16061.
Because the Complaint does not plausibly allege that any plaintiff suffered an
antitrust injury based on the bidding practices used in Project Poirot or Project Elmo, the
Advertisers have not alleged antitrust standing. Their claims directed toward Google’s alleged
anticompetitive conduct in the market for ad-buying tools used by large advertisers will be
dismissed.
C. The Advertiser Complaint Plausibly Alleges Antitrust Standing as to
Dynamic Allocation, Enhanced Dynamic Allocation, Project
Bernanke, Dynamic Revenue Sharing and Unified Pricing Rules.
The Advertiser Complaint includes extensive allegations about Google’s alleged
anticompetitive conduct related to ad exchanges that compete with the Google AdX exchange
and the ad-buying tools for small advertisers. It describes schemes that Google allegedly
implemented to coercively channel advertising transactions to AdX instead of rival exchanges,

13

thus giving Google an unfair competitive advantage in the ad-exchange market. (See, e.g., Adv.
Compl’t ¶¶ 199-266, 275-84.)
The Advertiser Complaint plausibly alleges that the Advertisers suffered antitrust
injury based on these alleged schemes. It alleges that Google’s practices in the ad-exchange
market “forced” advertisers “to transact more on Google’s exchange with a higher take rate,”
whereas in a competitive market, advertisers would benefit from exchange competition on take
rates and placement quality. (Adv. Compl’t ¶ 314.) “Advertisers would pay less to purchase ad
space, permitting them to re-invest those cost savings into providing consumers with higherquality and lower-priced goods and services.” (Adv. Compl’t ¶ 314.) The Complaint alleges
that AdX charges a supra-competitive take rate of 19 to 22 percent on gross transactions while
providing lower-quality, sub-competitive products. (Adv. Compl’t ¶ 314.)
Dynamic Allocation is alleged to manipulate bidding outcomes by channeling
transactions to AdX when the AdX-based bid was worth more to the publisher (and therefore
caused the advertiser to pay more) than a bid on a rival exchange. (Adv. Compl’t ¶¶ 201-08.)
Enhanced Dynamic Allocation allegedly pooled publishers’ most valuable impressions at higher
prices than would have been available if impressions had been available for bidding on multiple
exchanges. (Adv. Compl’t ¶¶ 209-13.) Project Bernanke allegedly inflated advertisers’ prices
and routed their bids to publishers that were less likely to reach relevant audiences if that helped
AdX complete the transaction instead of a rival exchange. (Adv. Compl’t ¶ 226.) Dynamic
Revenue Sharing allegedly caused advertisers to pay artificially inflated fees to increase AdX’s
take rate. (Adv. Compl’t ¶ 232.) Unified Pricing Rules required publishers to name a single,
fixed price floor across multiple exchanges, thereby preventing publishers from adjusting floors
to account for Google’s higher fees and restraining advertisers’ choices across ad-buying tools

14

and ad exchanges, including their option to bid for inventory on rival exchanges at potentially
lower prices. (Adv. Compl’t ¶¶ 259, 266.)
The Complaint plausibly alleges that advertisers paid supra-competitive prices
for transactions that occurred on AdX when the advertisers may have obtained the same or better
ad placements on rival exchanges for lower prices. The Court therefore concludes that the
Advertisers have plausibly alleged antitrust injury based on Google’s alleged anticompetitive
practices in the ad-exchange market.
In addition to alleging antitrust injury, a plaintiff must also be an efficient
enforcer of the antitrust laws in order to have antitrust standing. Gelboim, 823 F.3d at 772. The
Complaint plausibly alleges how Google’s practices would have directly injured the Advertisers
and why such injuries are not speculative. See id. There are other classes of persons (including
publishers) whose self-interest had led them to bring claims against Google, but at this stage of
the litigation, it appears plausible if not likely that their injuries are sufficiently distinct. This is
not an instance, as in Gelboim, where plaintiffs with no direct role in the underlying conduct
sought treble damages based on losses in third-party derivative transactions due to defendants’
alleged rate-fixing conspiracy. See id. at 778-79.
The Court therefore concludes that plaintiffs have plausibly alleged antitrust
standing for section 2 claims directed to Dynamic Allocation, Enhanced Dynamic Allocation,
Project Bernanke, Dynamic Revenue Sharing and Uniform Pricing Rules.
III.

Count Five Will Be Dismissed.

Count Five brings a claim under section 1 and asserts that “[t]hrough a series of
agreements imposed on publishers, Google has unreasonably restrained trade and foreclosed
competition” in the markets for ad exchanges and ad-buying tools for large and small advertisers.

15

(Adv. Compl’t ¶¶ 378-90.) It asserts that the Unified Pricing Rules (“UPR”) adopted by Google
prevented publishers from setting different prices floors for different ad exchanges and adbuying tools, and instead required publishers to use a single price across different exchanges.
(Id. ¶¶ 383-84.)
Count Five of the Advertiser Complaint will be dismissed because it does not
allege a contract or combination in restraint of trade under 15 U.S.C. § 1. “A § 1 agreement may
be found when ‘the conspirators had a unity of purpose or a common design and understanding,
or a meeting of minds in an unlawful arrangement.’” Copperweld Corp. v. Indep. Tube Corp.,
467 U.S. 752, 771 (1984) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810
(1946)). “In order to establish a conspiracy in violation of § 1, whether horizontal, vertical, or
both, proof of joint or concerted action is required; proof of unilateral action does not suffice.”
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012).
Count Five asserts an unlawful contract or combination between Google and the
publishers it required to participate in UPR. Count Five states that by implementing UPR,
Google “impose[d]” a series of agreements on publishers that required them to adopt uniform
price floors across different exchanges. (Adv. Compl’t ¶¶ 378-90, 383 (“Google imposes these
price-fixing terms on publishers as a condition on their continued use of Google’s monopoly ad
server and by exercising its discretion under its agreements with publishers. Participating
publishers agreed and assented to the change by continuing to use DFP.”).) The factual
allegations characterize UPR as a unilateral requirement “impose[d]” upon publishers to their
detriment, not a unity of purpose, common design and understanding, or a meeting of the minds.
Copperweld, 467 U.S. at 771. Count Five of the Advertiser Complaint will be dismissed because

16

it fails to plausibly allege a contract or combination between Google and the publishers that
allegedly coerced them into participating in UPR. 5
IV.

The Advertisers’ Claims Directed to Reserve
Price Optimization Will Be Dismissed.

The Advertiser Complaint’s allegations about RPO parallel the States’ claims
and describe purportedly false or misleading statements by Google but not anticompetitive
conduct that harmed the users of the small advertisers’ ad-buying tools. The Advertisers’ claim
directed to Google implementation of RPO will be dismissed for the reasons explained in the
2022 Opinion. See 627 F. Supp. 3d at 391-93.
V.

The Advertisers’ Claim Directed to the NBA Will Be Dismissed.

Count Three of the Advertiser Complaint alleges a contract or combination in
restraint of trade under section 1. It asserts that Google and Facebook conspired to restrain trade
in the auction market for web and in-app display ads by exclusively giving Facebook certain
anticompetitive advantages, including access to “enhanced proprietary data” known only to
Google. (Adv. Compl’t ¶¶ 286-94, 365-72.) It asserts that the NBA injured the Advertisers by
forcing them to make supra-competitive bids to win auctions against Meta’s advertising
customers. (Adv. Compl’t ¶¶ 369-70.) It does not allege that the NBA’s terms are a per se
violation of the Sherman Act. See 627 F. Supp. 3d at 374-75 (concluding that NBA is properly
reviewed under the rule of reason).
Facebook previously offered ad-buying tools to small advertisers through a
buying tool known as the Facebook Audience Network (“FAN”), later known as the Meta
Audience Network (“MAN”), to purchase display ads. (Adv. Compl’t ¶ 118.) Beginning in

To the extent that Count Five includes similar allegations about Google’s implementation of artificial caps on the
number of line items used in header bidding, it will be dismissed for the same reason.

5

17

2020, it stopped offering ad-buying tools for web display ads, and began to offer only mediation
services for in-app display advertising. (Adv. Compl’t ¶ 118.)
According to the Advertisers, the NBA restrained trade in the horizontal
competition between the FAN (or MAN) buying tools and competing advertiser intermediaries
that also bid in in-app display auctions. (Adv. Compl’t ¶ 290.) They allege that Facebook has its
own “enormous” database of customer information, and that its unique access to Google’s match
information and other information gives Facebook an unfair horizontal advantage in the market
for open display and in-app ad inventory. (Adv. Compl’t ¶¶ 290-92.) The Advertiser Complaint
asserts that the competitive benefits to Facebook necessarily come at the expense of rival bidders
and “are not similar or analogous to discounts or allowances a seller might provide to a favored
customer . . . .” (Adv. Compl’t ¶ 291.)
The Advertiser Complaint asserts that through the NBA, Google agreed to use
“reasonable efforts” to ensure that Facebook would be able to identify the user on a minimum of
80% of bid requests sent by Google to Facebook from mobile apps and at least 60% of bid
requests from web browsers that allowed cookies. (Adv. Compl’t ¶ 287.) Facebook, in turn,
agreed to bid on 90% of bid requests in which the end user was identified, and to commit to a
minimum annual ad spend and auction win rate. (Adv. Compl’t ¶ 287.) Google also provided
Facebook an “enlarged timeout allowance” that gave it additional time to evaluate a bid request
and to submit a bid, the effect of which allegedly placed advertisers bidding against Facebook at
a competitive disadvantage. (Adv. Compl’t ¶¶ 289.)
The 2022 Opinion dismissed the States’ section 1 claim directed to these same
provisions of the NBA. 627 F. Supp. 3d at 373-77. It concluded that the States had described a
vertical restraint properly reviewed under the rule of reason, that the NBA did not predetermine

18

the outcomes of ad auctions but instead sought to ensure that Facebook would submit
competitive bids, and that the States had not plausibly alleged that the NBA harmed rather than
encouraged competition in the in-app ad market. Id. at 374-76.
The Advertisers urge that their claims are brought through a different lens that
focuses on the horizontal injuries that they suffered as clients of Google’s own ad-buying tools.
(Pl. Opp. Mem. at 2, 5.) They assert that “[t]he competition-distorting benefits enjoyed by
[Facebook] can only be granted by disadvantaging [Facebook] rival bidders in Google’s auctions
relative to [Facebook],” and that Google “extracts” benefits “from [Facebook’s] competing
bidders by impairing their position relative to [Facebook].” (Adv. Compl’t ¶ 291.) Unlike the
States, the Advertisers do not contend that the NBA was intended to thwart header bidding.
The 2022 Opinion reviewed similar theories offered by the States and concluded
that they did not plausibly allege a restraint of trade under the rule of reason. It described the
NBA as “principally a vertical agreement, with potential horizontal consequences.” 627 F. Supp.
3d at 374. It observed that “[t]he NBA does not dictate which impressions Facebook may bid on
or at what price. Rather than insulate Google’s in-app network from competition, it promotes
competition with Google’s in-app network by bringing in a new competing bidder.” Id. at 376.
It examined the States’ theory that the NBA created a “hard limit” to auction outcomes and
“effectively excluded rival bidders” through unfairly favorable terms given to Facebook but
concluded that the NBA encouraged Facebook to submit competitive bids rather than
“throwaway ones.” Id. at 373, 376. It concluded that “[t]he States do not adequately explain
why inducing Facebook to actively participate in the Google-run auctions – and endeavor to win
a designated percentage of auctions – does not promote rather than harm competition in the inapp network market.” Id. at 376.

19

The Court has considered the Advertiser Complaint’s allegations separately from
the States’ claims and concludes that the Advertisers have failed to plausibly allege a section 1
violation. The Advertisers have not plausibly alleged an unreasonable restraint of trade, and, to
some extent, seem to assert that they suffered from increased competition in the auction market
for web and in-app display ads as opposed to an anticompetitive restraint of trade. (Adv.
Compl’t ¶ 291.) Like the States, the Advertisers ultimately describe a vertical arrangement
between Google in its role as auctioneer and Facebook as auction participant.
Additionally, the advertisers have not pointed to data or actual instances of harm
indicating that competing in-app networks or bidders were placed at anticompetitive
disadvantage due to implementation of the NBA. See Spinelli v. Nat’l Football League, 903
F.3d 185, 212 (2d Cir. 2018) (plaintiffs did not satisfy Twombly’s plausibility threshold because
they “cite no examples, data, or other facts to support their assertion, and a conclusory allegation
that prices have increased will not suffice to state anticompetitive effect.”). Facebook notes that
plaintiffs have had access to more than 2 million documents produced in this case. (Facebook
Mem. at 22.)
The Advertiser Complaint also asserts that the information given to Facebook by
Google made bid requests “more valuable to advertisers” because they allowed for more accurate
targeting. (Adv. Compl’t ¶ 287.) It asserts that by helping Facebook identify an ad’s viewer,
Google shared information that was “valuable to advertisers because identifying the user allows
for more accurate targeting and reduces the chances of serving an ad to a ‘bot.’” (Id.) But this
allegation describes a sharing of information that benefited consumers and competition by
facilitating better outcomes for Facebook’s advertisers, arguably giving a competitive edge to
Facebook over the users of Google’s own buying tools. It has long been understood that the

20

antitrust laws are “concern[ed] with the protection of competition, not competitors . . . .” Brown
Shoe Co. v. United States, 370 U.S. 294, 320 (1962).
The Court therefore concludes that the Advertiser Complaint does not allege a
section 1 violation arising out of the NBA entered into by Google and Meta.
VI.

Google’s Motion to Dismiss Certain Allegations
Describing Background Facts Will Be Denied.

Google moves to dismiss certain allegations that purportedly describe “the
groundwork” for Google’s alleged “monopolization scheme,” including descriptions of Google’s
corporate acquisitions and aspects of its search business. (Google Mem. at 19-23; Adv. Compl’t
¶¶ 166-67, 171, 184-85.) The Advertisers respond that these allegations merely provide
“relevant background” and do not go to the elements of any claim, and are not redundant,
scandalous or immaterial in nature. (Adv. Mem. 16-17.)
Because these allegations only go toward the context of the claims and the
Advertisers have expressly stated that they do not purport to go toward the elements of any claim
for relief, Google’s motion to dismiss these allegations will be denied.
VII.

Plaintiff Hanson Lacks Standing to Pursue any Claim
Premised on Conduct that Occurred after September 6, 2016.

Google urges that Hanson lacks “standing” to pursue any claim that is premised
upon conduct that occurred after September 6, 2016. It does not specify whether its standing
arguments are directed to Article III standing or antitrust standing. Under either framework,
Hanson has not alleged any injury for conduct by Google that post-dates his use of Google’s
services. According to the Advertiser Complaint, Hanson paid $487.78 between June 1, 2016
and September 6, 2016 for Google’s intermediation services in brokering the placement of

21

display ads. (Compl’t ¶¶ 14-16.) Hanson does not assert that he used any Google ad-buying
tools or services after September 6, 2016.
Google notes that the Advertiser Complaint describes certain ad-auction
practices that post-date Hanson’s use of Google’s ad-buying products, including line item caps,
auction data redaction and UPR. It does not include any allegations that describe how Hanson
could have been injured by these practices, and therefore does not plausibly allege his antitrust
standing to pursue any claim directed to these practices. Harry, 889 F.3d at 115. It also does not
plausibly allege an injury in fact sufficient to confer Article III standing for any claim directed to
these practices. See, e.g., Sonterra Cap. Master Fund Ltd. v. UBS AG, 954 F.3d 529, 534 (2d
Cir. 2020) (“To satisfy Article III standing, a plaintiff must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.”) (quotation marks omitted). Because Hanson does
not allege that he has used any Google ad-buying product since 2016, he also does not have
standing to pursue injunctive relief. See, e.g., Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239
(2d Cir. 2016) (“Although past injuries may provide a basis for standing to seek money damages,
they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she
is likely to be harmed again in the future in a similar way.”).
Google’s motion to dismiss Hanson’s claims directed to conduct that post-dates
September 6, 2016 will be granted.
VIII.

Google’s Motion to Dismiss, or, Alternatively, to Compel
Arbitration Based on the Arbitration Provision in
Google’s Program Terms Is Denied Without Prejudice.

Google separately moves to dismiss the claims of five of the six Advertisers on
the basis of an arbitration provision contained in Section 13(A) of the “Google LLC Advertising

22

Program Terms” (the “Program Terms”), which “govern Customer’s participation in Google’s
advertising programs and services . . . .” (See, e.g., Shadd Dec. Exs. A, D (ECF 448-1, -4).) The
arbitration provision is broad and applies to “claims brought under any legal theory . . . .” (See
id.)
Google’s motion turns largely on the testimonial declaration of Courtney Shadd,
who describes herself as “a legal assistant on the Ads legal team” at Google. (ECF 448.) Her
declaration asserts that advertisers were required to accept the Program Terms when they
enrolled in Google’s advertising platforms and states that Google keeps records of advertisers
who opted out of the arbitration provision. (Shadd Dec. ¶¶ 3-4, 13.) As to all Advertisers except
Hanson, Shadd states that, “[a]ccording to Google’s records,” the plaintiff accepted the Program
Terms, and Google’s records do not reflect any attempt by the plaintiff to opt out of the
arbitration provision. (Shadd Dec. ¶¶ 15-20.) She states: “As of this date, I have not been able
to locate any indication that Hanson Law Office accepted the September 2017, April 2018, or
November 2019 Terms.” (Shadd Dec. ¶ 21.) Her declaration annexes various iterations of the
Program Terms adopted by Google during the relevant period, which appear to contain a
substantially identical arbitration provision. (ECF 448.)
The statements in the Shadd Declaration go beyond the materials properly
considered on a Rule 12(b)(6) motion, which is limited to the contents of the complaint, any
documents that are annexed to the complaint or integral to the allegations contained therein, or
matters of which a court may take judicial notice. See, e.g., Lively v. WAFRA Inv. Advisory
Grp., Inc., 6 F.4th 293, 305 (2d Cir. 2021). Shadd makes factual assertions about plaintiffs’
consent to arbitration based on her own review of Google’s records. She does not annex
supporting documentation of plaintiffs’ acceptance of the Program Terms or explain how

23

Google’s records are maintained and indexed. These unsupported factual assertions are not
appropriately considered at the pleading stage. See generally Meyer v. Uber Techs., Inc., 868
F.3d 66, 76 (2d Cir. 2017) (“Insofar as it turns on the reasonableness of notice, the enforceability
of a web-based agreement is clearly a fact-intensive inquiry.”).
Google urges that, in the alternative, its motion should be construed as a motion
to dismiss for improper venue pursuant to Rule 12(b)(3) or a motion to compel arbitration under
the Federal Arbitration Act. A Rule 12(b)(3) motion is scrutinized under the same standard as a
motion under Rule 12(b)(2), and, when brought on the pleadings, the Court must draw all
reasonable inferences in favor of the plaintiff. See, e.g., Water Quality Ins. Syndicate v. Nat’l
Pollution Funds Ctr., 2020 WL 417653, at *4 (S.D.N.Y. Jan. 27, 2020) (Engelmayer, J.). A
court may hold an evidentiary hearing on venue, in which case the plaintiff must demonstrate
venue by a preponderance of the evidence. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d
Cir. 2005). 6 “Courts deciding motions to compel [arbitration] apply a standard similar to that
applicable for a motion for summary judgment.” Meyer, 868 F.3d at 74 (quotation marks
omitted). “[T]he court considers all relevant, admissible evidence submitted by the parties and
contained in pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, and draws all reasonable inferences in favor of the non-moving party.” Id.
(quotation marks, alterations and internal citation omitted). If an issue of fact exists concerning
the formation of an arbitration agreement, a trial is necessary. Id.
In response to the motion, plaintiffs state that Google has not produced discovery
relevant to arbitration and instead relies “on the self-serving declaration of an employee . . . .”

While some courts have considered the enforcement of an arbitration clause under a Rule 12(b)(3) venue motion,
the parties’ agreement to arbitrate is more frequently enforced as part of a Rule 12(b)(6) motion or a motion to
compel arbitration.

6

24

(Opp. Mem. at 24.) Plaintiffs acknowledge that “certain claims . . . may be arbitrable” but that a
more developed record is necessary to resolve arbitrability. (Id.)
The Court concludes that it is premature to determine arbitrability on the basis of
the Shadd Declaration, which is testimonial in nature, does not annex records reflecting any
specific plaintiff’s consent to arbitration, and makes broad factual averments about Google’s
implementation and enforcement of the Program Terms. A more developed factual record is
required to adjudicate any plaintiff’s consent to arbitration.
Google’s motion to dismiss the Advertiser Complaint on the basis of the
arbitration clause, or, alternatively, to compel arbitration will be denied without prejudice.
BASED ON THE PARTIES’ STIPULATION, THE COURT’S CONCLUSIONS AS TO THE
ADVERTISER COMPLAINT ALSO GOVERN THE CLAIMS OF SUNNY SINGH. 7
Plaintiff Sunny Singh has filed a putative class action complaint that essentially
mirrors the claims and theories of liability set forth in the Advertiser Complaint. (23 Civ. 3651,
ECF 1.) Facebook, Google and Singh filed a Stipulation and Proposed Order agreeing in
relevant part that “[a]ny ruling by the Court on the pending motions to dismiss the Advertisers’
[complaint], except a ruling regarding issues of individual named plaintiffs’ obligations to
arbitrate claims against Defendants Google and Alphabet, would be deemed to apply to the
Singh Complaint.” (ECF 588-1.)
The Court’s reasoning and conclusions as to the Advertiser Complaint apply to
Singh’s complaint, and the motions to dismiss by Facebook and Google will be granted in part
and denied in part. (ECF 625, 628.) The Stipulation and Proposed Order will be entered as an
Order of this Court.

7

Singh v. Google LLC, et al., 23 Civ. 3651 (PKC).

25

THE ORGANIC PANACEAS COMPLAINT WILL BE DISMISSED. 8
Google moves to dismiss the putative class action complaint filed by Organic
Panaceas, LLC, which brings a single claim asserting monopolization of “digital display
advertising.” (See 5:21 Civ. 2629 (N.D. Cal.) ECF 1 (Org. Compl’t); 21 MD 3010, ECF 457
(motion to dismiss).)9 Organic Panaceas did not file a response to Google’s motion to dismiss.
Because Organic Panaceas has not alleged a relevant product market, antitrust injury or
anticompetitive conduct, the motion to dismiss will be granted.
Organic Panaceas is an online-only business that principally sells hemp-oil
products containing CBD, or cannabidiol. (Org. Compl’t ¶ 43.) It asserts that it attempted to
market its business using AdWords, which is Google’s buying platform for search-based ads.
(Org. Compl’t ¶¶ 44, 86.) AdWords results typically appear in the search results page on the
Google search engine, and are intended to connect advertisers with users searching for relevant
services. (Compl’t ¶¶ 91, 93.)
Organic Panaceas experienced an initial boost in traffic after it began to use
AdWords, but Google then suspended its ads for violating a policy prohibiting paid ads for CBD
products. (Org. Compl’t ¶ 44.) Organic Panaceas then complained to Google that the
suspension seemed arbitrary and capricious because other CBD vendors advertised through
Google. (Org. Compl’t ¶ 45.) The Complaint “specifically acknowledges that, arguably, there
are/were potential issues associated with the marketing and sale of products containing CBD.”
(Org. Compl’t ¶ 43.) It asserts, however, that advertisers who pay for ads on the “Google
Shopping” comparative-shopping service, which is featured prominently on Google’s search

Organic Panaceas v. Google LLC, 21 Civ. 7001 (PKC).
The Organic Panaceas action was filed in the Northern District of California and thereafter administratively
consolidated by that court to the docket of the Advertisers’ case. (5:21 Civ. 2629 (N.D. Cal.) ECF 16; 21 Civ. 7001
ECF 142.)

8
9

26

engine results page, are allowed to advertise CBD products (Org. Compl’t ¶¶ 23, 46-49.) It
asserts that Google relied on a “purported ‘policy’” to exclude Organic Panaceas from running
advertisements while permitting other sellers to run ads for the same or similar products, and
“was all but put out of business because of Google’s monopolistic use of its ‘policies.’”
(Compl’t ¶¶ 49, 139.)
Organic Panaceas brings a single claim under section 2, asserting that Google
has “monopoly power in the market for digital display advertising and its component subparts
and services in the United States.” (Org. Compl’t ¶ 145.) It asserts that Google has “abused”
and “leveraged its market dominance in general internet search” to promote its own comparisonshopping service, and asserts that the markets for “general search services” and “comparison
shopping services” are also two relevant markets to its claim. (Org. Compl’t ¶¶ 88-128.) It
asserts that Google is “using/implementing its ‘policies’ in a predatory and exclusionary manner
and rigging auctions that it controlled to its own advantage.” (Org. Compl’t ¶ 146.) 10
The Complaint will be dismissed because it does not plausibly allege a relevant
product market. “A relevant product market consists of ‘products that have reasonable
interchangeability for the purposes for which they are produced – price, use and qualities
considered.’” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam)
(quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 404 (1956)); see also
Chapman v. New York State Div. for Youth, 546 F.3d 230, 237 (2d Cir. 2008) (“For a monopoly
claim ‘[t]o survive a Rule 12(b)(6) motion to dismiss, an alleged product market must bear a
rational relation to the methodology courts prescribe to define a market for antitrust purposes –

Google urges that the Organic Panaceas Complaint should be dismissed because it agreed to the arbitration clause
contained in the Program Terms. This argument suffers from the same deficiencies previously discussed in relation
to the Advertisers, and the motion to dismiss or compel arbitration based on the arbitration provision will be denied.
10

27

analysis of the interchangeability of use or the cross-elasticity of demand, and it must be
plausible.’”) (quoting Todd v. Exxon Corp., 275 F.3d 191, 200 (2d Cir. 2001)).
The sole claim for relief alleges Google’s monopoly power “in the market for
display digital advertising and its component subparts and services . . . .” (Org. Compl’t ¶ 146.)
It describes display digital advertising as “the placement of advertisements on other companies’
websites.” (Org. Compl’t ¶ 19.) It does not explain what is entailed by the phrase “component
subparts and services . . . .” Unlike the States and other plaintiffs, Organic Panaceas does not
premise its claim on defined markets for ad-buying tools for small advertisers and large
advertisers, publisher servers or advertising exchanges, and appears to lump these products into
the single, catch-all term of “display digital advertising.” (See, e.g., Org. Compl’t ¶¶ 2-18.)
Elsewhere, Organic Panaceas asserts that the “[r]elevant product markets, for the purposes of this
case, are, inter alia, the market for general search services and the market for comparative
purchasing services.” (Org. Compl’t ¶ 34.) Organic Panaceas goes into greater detail when
describing the “general search services” and “comparative purchasing services” markets (Org.
Compl’t ¶¶ 88-128), but those markets are not components of the display advertising market that
Google purportedly monopolizes. The Complaint’s factual allegations have, at most, a tenuous
connection to the thinly-alleged product market for display digital advertising and its sole claim
for relief. Because Organic Panaceas does not plausibly allege a product market, its complaint
will be dismissed.
As a separate grounds for dismissal, the Complaint does not allege an antitrust
injury or anticompetitive conduct. Organic Panaceas does not allege that it bought display
advertising products and instead alleges that it bought ads through AdWords in an effort to
market its business to users of Google’s search engine. This product is distinct from buying ads

28

that were displayed on the site of a third-party publisher or an app. Because Organic Panaceas
does not allege that it was a consumer in the market for display ads, was injured by any alleged
anticompetitive conduct related to ad auctions or ad-buying tools, or that its claimed injuries are
inextricably intertwined with conduct in such markets, its complaint will be dismissed. See In re
Aluminum Warehousing Antitrust Litig., 833 F.3d at 158.
Further, the claim of Organic Panaceas amounts to little more than the assertion
that Google selectively enforced its policy against advertisements for CBD products. The
plaintiff itself has “specifically acknowledge[d] that, arguably, there are/were potential issues
associated with the marketing and sale of products containing CBD.” (Org. Compl’t ¶ 43.) Such
selective enforcement is not anticompetitive conduct. See, e.g., Dreamstime.com, LLC v.
Google LLC, 54 F.4th 1130, 141 (9th Cir. 2022) (“selective enforcement” of policies in Google
Ads “is not enough to state a claim under Section 2.”).
The motion to dismiss the Organic Panaceas Complaint will be granted.
THE SPX COMPLAINT WILL BE DISMISSED IN ITS ENTIRETY. 11
Three advertiser plaintiffs bring a putative class action complaint asserting that
the NBA violated section 1. (ECF 433.) Mint Rose Day Spa LLC, SkinnySchool LLC d/b/a
Maria Marques Fitness SkinnySchool and SPX Total Body Fitness LLC d/b/a The Studio
Empower (collectively, “SPX Plaintiffs”) assert that Google gave Facebook unfair
anticompetitive advantages through the NBA in exchange for Facebook halting its participation
in header bidding, which Google viewed as a threat to its dominance in the markets for publisher
ad servers and ad exchanges. (SPX Compl’t ¶¶ 118-321.)

SPX Total Body Fitness LLC v. Google LLC, 21 Civ. 6870 (PKC); SkinnySchool LLC, et al. v Google LLC, 21
Civ. 7045 (PKC).
11

29

The three plaintiffs allege that they “purchased display advertisements on
Facebook . . . .” (SPX Compl’t ¶¶ 23-25.) They do not allege that they used Google’s ad-buying
tools to purchase display ads or that they bought in-app display ads using the networks of
Facebook or Google. Thus, their participation in the market for online digital ads is limited to
purchasing display ads on Facebook. Facebook is not named as a defendant in the SPX
Complaint.
The claims of the SPX Plaintiffs parallel those of the States and the Advertisers,
and, like the Advertisers, they emphasizes the horizontal characteristics of the NBA. SPX
Plaintiffs assert that Google granted Facebook “special advantages” in auctions a quid pro quo to
abandon header bidding, including a discount on exchange fees, a speed advantage, and unique
user information to limit spam impressions. (SPX Compl’t ¶¶ 227-72.) They assert that Google
and Facebook manipulate the auction process for in-app inventory and operated like “a
traditional buying cartel” that artificially depressed the prices paid to app developers through
Google’s in-app mediation tool. (SPX Compl’t ¶¶ 273-313.) The SPX Complaint alleges that
the NBA was a contract, combination and conspiracy that unreasonably restrained trade and
harmed competition in violation of section 1. (SPX Compl’t ¶¶ 357-63.)
The Complaint will be dismissed because the SPX Plaintiffs do not plausibly
allege antitrust standing. Assuming arguendo that the SPX Complaint alleges a harm to
competition, it primarily describes injuries to app developers who sold ad inventories through the
Google and Facebook networks and advertisers who purchased impressions through ad networks.
It does not plausibly allege an antitrust injury to the SPX Plaintiffs. The gist of the SPX
Plaintiffs’ claim is that in exchange for abandoning its participating in header bidding, Facebook
agreed to accept unique auction advantages given by Google to the FAN. (SPX Compl’t ¶¶ 209-

30

321.) Beginning in 2020, the FAN “effectively left the market for web display advertising” and
primarily participated in the auctions for in-app ad inventory. (SPX Compl’t ¶¶ 273-74.) The
SPX Complaint describes purported competitive harm in the auctions for in-app ad inventory.
(SPX Compl’t ¶¶ 273-321.) “The expected effect of a side-deal like this between rival buyers is
to depress the prices paid to [app] developers” while giving Google and Facebook “the power to
exclude rival networks and raise the prices at which Google and Facebook resold in-app
impressions to advertisers.” (SPX Compl’t ¶¶ 288, 303.) Because the NBA “applies only to
third-party developer inventory” it has the effect of “excluding any impressions that would be
displayed on Google or Facebook’s own properties.” (SPX Compl’t ¶ 296.)
The SPX Plaintiffs assert that they purchased display advertisements on
Facebook – not that they bought display ads or in-app ads through a Facebook network-buying
tool, or any other buying tool. (See SPX Compl’t ¶¶ 23-25.) The SPX Plaintiffs make the
conclusory allegation that they suffered antitrust injury because Google’s conduct “increased
advertisers’ costs to advertise and reduced the effectiveness of their advertising . . . .” (SPX
Compl’t ¶ 342.) But the Complaint includes no allegations that explain why that would be the
case. The SPX Complaint expressly states that the NBA “applies only to third-party developer
inventory” (SPX Compl’t ¶ 296), which would seemingly exclude directly-sold impressions on
Google and Facebook’s own properties. The SPX Plaintiffs do not assert that they participated
in ad-exchange auctions or placed ads through header bidding. They do not describe any
relationship between the ads bought on Facebook and the effects of the NBA. The SPX
Plaintiffs therefore have not alleged facts that would identify how they are in a worse position as
a consequence of the NBA, and therefore fail to allege antitrust injury. See IQ Dental Supply,
924 F.3d at 63.

31

The SPX Complaint also does not plausibly allege why these plaintiffs are
efficient enforcers of the antitrust laws. Assuming that the SPX plaintiffs suffered a downstream
harm by paying artificially inflated prices for display ads that ran on Facebook, other parties are
far better suited to pursue such plaintiffs’ claim, including government plaintiffs, app developers,
publishers, and advertisers who used ad-buying tools and in-app networks. See Gelboim, 823
F.3d at 772, 778-80. Any injury caused to the SPX plaintiffs when they purportedly overpaid
Facebook directly for ads that ran on Facebook itself are also remote, speculative and difficult to
allocate. See id.
The SPX Complaint is separately dismissed because it does not plausibly allege a
section 1 claim. The SPX Complaint does not advance a theory of section 1 liability that varies
in any meaningful way from the States’ unsuccessful claim directed to the NBA. The SPX
Plaintiffs’ reliance on Klein v. Meta Platforms, Inc., 2022 WL 17477101 (N.D. Cal. Dec. 6,
2022), is unavailing, as that decision involved a “market for social advertising” not at issue here,
and denied a motion to dismiss based on timeliness. For the reasons discussed in the 2022
Opinion, as well as the reasons set forth for dismissing the Advertisers’ claim directed to the
NBA, the SPX Complaint fails to plausibly allege a section 1 claim.
The SPX Complaint will therefore be dismissed.
THE MOTION TO DISMISS PORTIONS OF THE PUBLISHERS’ CONSOLIDATED
COMPLAINT WILL BE GRANTED IN PART AND DENIED IN PART. 12
I.

Overview of the Publisher Complaint.

Six online publishers (the “Publishers”) have filed a putative class action
complaint that includes two claims under the Sherman Act. (21 Civ. 7034, ECF 131 (the
“Publisher Complaint”).) All Publishers assert that they used Google’s publisher ad server
12

In re: Google Digital Publishing Litigation, 21 Civ. 7034 (PKC).

32

products to sell display advertising on their websites and paid artificially inflated fees and
received artificially depressed ad revenues as a result of Google’s alleged anticompetitive
conduct. (Pub. Compl’t ¶¶ 46-51.) Five of the Publishers also assert that they received bids
from Google’s ad network, known as the Google Display Network. (Pub. Compl’t ¶¶ 47-51.) In
addition to bringing claims against Google and Alphabet, YouTube, LLC (“YouTube”) is a
defendant in this case. (Pub. Compl’t ¶ 54.) The Publishers allege that the three defendants are
operated and controlled as a single entity. (Pub. Compl’t ¶¶ 52, 55.) The Publishers make no
allegations that are unique to YouTube and its video platform.
The Publisher Complaint largely tracks claims that the Court upheld in the 2022
Opinion, but it alleges three new initiatives that the Publishers urge violated section 2. (Compl’t
¶¶ 332-56.) It also brings a claim directed to Google’s use of encrypted user IDs, which contains
some overlap with an unsuccessful theory of section 2 liability previously asserted by the States.
Count 1 brings a tying claim under sections 1 and 2, and asserts that Google
unlawfully tied its AdX ad exchange to the DFP ad server. (Pub. Compl’t ¶¶ 392-401.) Count
Two brings a claim under section 2, and asserts that Google unlawfully maintained and enhanced
monopoly power in the markets for publisher ad servers, ad exchanges, ad-buying tools,
advertiser networks and search-advertising tools. (Pub. Compl’t ¶¶ 402-07.) Count Two incudes
nine categories of alleged monopolistic practices that the Court considered and upheld in the
2022 Opinion. (Pub. Compl’t ¶¶ 248-331.) It also alleges that Google engaged in three
additional categories of misconduct that unlawfully abused its monopoly power in the markets
for ad servers, ad networks and search advertising for the sole purpose of damaging competition.
(Pub. Compl’t ¶¶ 332-356.)

33

I.

Overview of Certain Market Definitions.

The Publishers assert that Google has monopoly power in seven product
markets: publisher ad servers, ad exchanges, ad networks, ad-buying tools for large advertisers,
ad-buying tools for small advertisers, and online search advertising. (Pub. Compl’t ¶¶ 113-93.)
The Publisher Complaint uses market definitions that are broadly consistent with those alleged in
the State Complaint and other pleadings. The Court will summarize the Publishers’ allegations
of the markets for ad networks and online search advertising.
The Publisher Complaint uses the broad label “publisher tool markets” to
describe the markets for ad servers, ad exchanges and ad networks. (Pub. Compl’t ¶¶ 112-20.)
Ad networks are described as performing a function that is somewhat similar to ad exchanges.
(Pub. Compl’t ¶¶ 119-20.) Ad networks are used by small and medium-sized publishers that
cannot satisfy the impression requirements of ad exchanges. (Pub. Compl’t ¶¶ 119.) Some ad
networks focus on specialized inventory, such as ads for cars or fashion, or video ads. (Pub.
Compl’t ¶ 179.) Instead of using the targeting and bidding features of ad exchanges, ad network
placements are based on a pool of advertising inventory; publisher ad servers may look to ad
networks to fill inventory, separate from transacting on ad exchanges. (Pub. Compl’t ¶ 120.)
The Publishers assert that ad networks are not substitutable for ad exchanges, ad servers or adbuying tools, because they do not provide reasonably comparable services. (Pub. Compl’t ¶
120.) They assert that Google has monopoly power in the ad network market, and transacts
approximately 70 to 80 percent of impressions sold through ad networks. (Pub. Compl’t ¶¶ 17580.)
The Publishers describe online search advertising as an “adjacent relevant
market.” (Pub. Compl’t ¶¶ 153-57.) It consists of ads generated in response to online search

34

queries, including ads that appear on generalized search engines like Bing and Google, and
specialized ads that appear on sites like Amazon, Expedia or Yelp. (Pub. Compl’t ¶ 153.)
Search ads respond to consumer inquiries as they explore a subject or product, and are
considered valuable because they align with a consumer’s interests. (Pub. Compl’t ¶ 154.) The
Publishers assert that other forms of advertising are not substitutable because they do not target
consumers in response to their specific, relevant inquiries, and are more remote from the
consumer’s point of purchase. (Pub. Compl’t ¶ 155.) They assert that Google has monopoly
power in the market for search advertising, with a market share of at least 70 percent. (Pub.
Compl’t ¶¶ 191-93.)
II.

The Publishers’ New Theories of Section 2 Liability.
A. The Complaint Plausibly Alleges that “Minimum Bid to Win”
Violated Section 2.

The Publishers assert that Google used its monopoly power in the market for
publisher ad servers to compile bidding data submitted by advertisers. (Pub. Compl’t ¶¶ 343,
346.) Google used this information to enable advertisers to win ad impressions “with the lowest
bid possible” if advertisers placed their bids on AdX under an initiative called “Minimum Bid to
Win” or “MBW.” (Pub. Compl’t ¶ 343.) MBW required the cooperation of advertisers, who
supplied their bids knowing that Google would use them to develop the MBW algorithm. (Pub.
Compl’t ¶ 343.) MBW was intended to “starve” header bidding and enhance Google’s
monopoly power in the markets for ad exchanges and ad-buying tools. (Pub. Compl’t ¶ 343.)
Google implemented MBW as it transitioned from running a second-price
auction to a first-price auction. (Pub. Compl’t ¶¶ 344-45.) The Publishers describe MBW as “a
bid shading algorithm that allows advertisers to bid confidently knowing that their bid will be no
higher than needed to win a first-price auction.” (Pub. Compl’t ¶ 345.) As described by the
35

Publishers, Google was able to use its monopoly power in the market for publisher ad servers to
amass bidding data across all ad exchanges, then calculate the minimum price that advertisers
using its ad-buying tools should pay in order to win a first-price auction on AdX. (Pub. Compl’t
¶¶ 346-47.) This information allegedly drove advertisers to use AdX and Google’s ad-buying
tools while curbing participation in header bidding. (Pub. Compl’t ¶ 348.) This depressed
publisher revenues and competition between ad exchanges and ad-buying tools, while allowing
Google to increase its margins by charging advertisers more to access its ad-buying tools. (Pub.
Compl’t ¶ 349.)
The Publishers assert that MBW worked in tandem with Google’s enforcement
of uniform price floors, thus preventing publishers from receiving a fair market price when
selling their impressions. (Pub. Compl’t ¶¶ 350-52.) In a competitive market, a publisher would
impose a higher price floor on an ad exchange that participated in bid shading through a practice
like MBW. (Pub. Compl’t ¶¶ 350-51.) But because Google required publishers to set uniform
price floors across exchanges, publishers were unable to adjust their price floors to AdX in order
to force an advertiser to bid the full market value for an impression. (Pub. Compl’t ¶¶ 351-52.)
MBW had the effect of leveraging information gained from publisher ad servers to depress
revenues paid to those same publishers for ad impressions. (Pub. Compl’t ¶ 346.)
Google urges that the Publishers have not alleged a plausible section 2 claim
because their complaint describes ways that MBW enhanced competition and benefited
consumers. According to Google, the Publishers’ own complaint states that advertisers
volunteered to use their bids to develop the MBW algorithm, and that the informational
advantages provided through MBW “drove” advertisers to use AdX and Google’s ad-buying
tools instead of participating in header bidding. (Def. Mem. at 4.) The Publishers alleged a

36

superior result for advertiser clients, who could win an impression through the lowest possible
price, instead of placing an unnecessarily inflated bid against a rival advertiser. (Id. at 4-5.)
Google urges that MBW gained sales from header bidding through a superior product. (Id. at 45.)
The Court concludes that the Publishers have plausibly alleged a violation of
section 2. The Complaint plausibly alleges that, using bid data obtained through the publisher ad
servers and the historical bids of advertisers, MBW worked in combination with uniform price
floors to artificially depress the bids for publisher impressions. It is true that, as Google argues,
the Publisher Complaint describes product enhancements that benefited advertisers. But Google
also had monopoly power in the market for publisher ad servers, and the Publisher Complaint
plausibly describes how Google used its power in that market – as well as the market for ad
exchanges – to prevent publishers from competing across ad exchanges to sell impressions at a
more advantageous price set by the market. In a competitive market for publisher ad servers,
Google would be incentivized to obtain the best possible price for publisher ad impressions in
order to benefit itself and its publisher clients, and not depress prices for the benefit of its market
position in ad exchanges and ad-buying tools. The Publishers have plausibly explained how
Google used its market dominance to benefit consumers of its ad-buying tools at the expense of
consumers of its publisher ad servers.
Google’s motion to dismiss the section 2 claim directed to MBW will therefore
be denied.
B. The Publishers’ Section 2 Claim Directed to Google’s Detection of
“Problematic Code” Will Be Dismissed.
The Publishers assert that Google unlawfully used its monopoly power in
publisher ad servers to block the attempts of non-Google ad networks to place bids on publisher
37

inventory. Accepting the Publishers’ factual allegations as true, they describe incidents where
non-Google ad networks were unable to bid on impressions through Google’s ad servers, but
they do not allege facts to support the assertion that Google flagged “malicious code” as an
anticompetitive pretext or that Google’s conduct otherwise rose to the level of a section 2
violation.
According to the Publishers, the Google ad server sometimes thwarts the bids of
rival, non-Google ad networks by alerting a publisher of “a problem” with the code of the nonGoogle network. (Pub. Compl’t ¶ 355.) Google’s ad server will then remove the code of that
rival network, precluding the network from competing for the publisher’s impressions. (Pub.
Compl’t ¶ 355.) The affected publisher and rival ad network required “hours of labor” and
“extensive work” to resubmit the purportedly defective code. (Pub. Compl’t ¶ 355.) This
strained the publisher’s business relationship with the rival network and prevented that network
from bidding on publisher impressions. (Pub. Compl’t ¶ 355.)
The Publishers assert that this was a “recurring practice” of Google’s ad server.
(Pub. Compl’t ¶ 356.) They assert that rival ad networks were harmed because they incurred
needless costs to access Google’s ad server, and that publishers were harmed because they were
unable to access ad networks that may have outbid the Google ad network. (Pub. Compl’t ¶
356.) They assert that Google used its monopoly power in the market for publisher ad servers to
enhance and maintain monopoly power in the market for ad networks. (Pub. Compl’t ¶ 356.)
The Publishers include no facts to support the conclusory assertion that Google
acted “[u]nder the false pretext of controlling problematic code . . . .” (Pub. Compl’t ¶ 355.)
They do not allege facts that support an inference that Google was not monitoring and
controlling for actual, bona fide technical concerns. The complaint states the Publishers and

38

non-Google ad networks “required extensive work and hours of labor” to address Google’s
concerns (Pub. Compl’t ¶ 355), but they do not allege facts showing that the underlying issues
flagged by Google involved harmless or routine lines of code. It does not describe any facts to
support the inference that Google’s concerns about code were baseless or pretextual, or that it
enforced a policy about “problematic code” in a selective or unpredictable way.
The Publisher Complaint also does not allege facts that raise an inference that
“problematic code” was flagged in a way that disrupted competition between ad networks, as
opposed to isolated or limited incidents. It does not allege whether Google flagged such code on
isolated occasions or whether it affected a wide array of Publishers on a frequent basis. While
the repair of problematic code was time consuming and may have had collateral consequences to
the Publishers, they have not plausibly alleged facts showing that the codes were not, in fact,
problematic. Drawing every reasonable factual inference in favor of the Publishers, they do not
plausibly allege a course of conduct that caused harm to competition. See, e.g., Capital Imaging
Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir. 1993) (“Insisting
on proof of harm to the whole market fulfills the broad purpose of the antitrust law that was
enacted to ensure competition in general, not narrowly focused to protect individual
competitors.”) (collecting cases).
The Publishers’ claim directed toward Google’s monitoring of “problematic
code” will be dismissed.
C. The Publishers Do Not Plausibly Allege a Tying Claim Based on the
“Search+” Product and Related Products.
The Publishers bring a section 2 claim on the theory that Google acquired and
maintained monopoly power in publisher ad servers and ad networks by channeling unspent
search-advertising dollars to the purchase of display ads via the Google Display Network
39

(“GDN”). (Pub. Compl’t ¶¶ 334-42.) Their complaint does not expressly label the practice as a
“tie,” but states that Google “funnel[ed]” and “bundled” search advertising dollars to GDN. (¶¶
335-36.) In its motion to dismiss, Google urges that the Publishers have not plausibly alleged a
tying claim, and the Publishers’ response describes Google’s practices concerning search
advertising and GDN as “an unlawful tie.” (Pub. Resp. at 15.) The Court accordingly construes
the Publishers allegations as an attempt to allege an unlawful tying arrangement.
Because the Publishers do not plausibly allege that Google coercively tied its
search advertising product to its ad network, Google’s motion to dismiss will be granted. “A
tying arrangement is ‘an agreement by a party to sell one product but only on the condition that
the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase
that product from any other supplier.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S.
451, 461 (1992) (quoting Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6 (1958)).
“To state a valid tying claim under the Sherman Act, a plaintiff must allege facts plausibly
showing that: (i) the sale of one product (the tying product) is conditioned on the purchase of a
separate product (the tied product); (ii) the seller uses actual coercion to force buyers to purchase
the tied product; (iii) the seller has sufficient economic power in the tying product market to
coerce purchasers into buying the tied product; (iv) the tie-in has anticompetitive effects in the
tied market; and (v) a not insubstantial amount of interstate commerce is involved in the tied
market.” Kaufman v. Time Warner, 836 F.3d 137, 141 (2d Cir. 2016); accord E & L Consulting,
Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 31 (2d Cir. 2006).
The Publishers’ claim is premised on Google’s dominance in the market for
search advertising and advertisers’ strong demand for a limited number of search ads. According
to the Publishers, Google controls more than 70% of the market in online search advertising.

40

(Pub. Compl’t ¶ 334.) The demand for search ads has historically exceeded available ad space,
leaving some search-only advertisers with unspent ad budgets. (Pub. Compl’t ¶ 338.) The
Publishers assert that Google has used that demand “to funnel search advertising dollars into
display advertising on its own Ad Network,” which damaged competition in the markets for
publisher ad servers and ad networks. (Pub. Compl’t ¶ 335.) They assert that via certain
initiatives, Google redirected the unspent budgets of search-only advertisers to automatically buy
display ads on the GDN, which effectively “bundled its monopoly-controlled online search
advertising with display advertising on the [GDN].” (Pub. Compl’t ¶ 336.) The GDN is
described as a “significant” purchaser on AdX. (Pub. Compl’t ¶ 336.) According to Publishers,
these initiatives primarily affected small and mid-sized advertisers, and created a new pool of
display advertising demand that was exclusively controlled by Google through GDN and AdX.
(Pub. Compl’t ¶ 336.)
The Publishers assert that Google began to implement this scheme in 2011, when
GDN traffic saw a significant decline. (Pub. Compl’t ¶ 337.) Google implemented a program
called “Search+” or “Display Expansion for Search.” (Pub. Compl’t ¶ 338.) Search+ diverted
search advertisers’ unspent dollars to display ads purchased via GDN. (Pub. Compl’t ¶ 338.) It
was first implemented as an opt-in program for search advertisers, but, by 2018, advertisers were
enrolled by default. (Pub. Compl’t ¶¶ 339, 341.) In 2017, Google introduced “Smart
Campaigns” as an extension of Search+ that was implemented on all new accounts. (Pub.
Compl’t ¶ 341.) Enrollment was not mandatory, however, because advertisers could “escape”
from enrollment in Smart Campaigns “to see other campaign accounts . . . .” (Pub. Compl’t ¶
341.)

41

The Publishers assert that Google’s ad server “became a must-have product for
publishers” because Google required publishers to use its ad server to sell impressions on GDN.
(Pub. Compl’t ¶ 342.) They state that through Google’s program of diverting search advertisers’
unspent money solely to GDN, it successfully restrained competition in the markets for ad
networks, ad exchanges and publisher ad servers. (Pub. Compl’t ¶ 342.)
The Publishers do not plausibly allege a tying claim. Their complaint does not
allege that search advertisers were required to spend their excess ad budgets on GDN products,
and expressly acknowledges that when Google’s initiatives went from the opt-in condition of
Search+ to the automatic-enrollment condition of Smart Campaigns, advertisers could still
“escape” from enrollment. (Pub. Compl’t ¶¶ 339, 341.) While advertisers purchasing online
search or display advertising may vary in size and sophistication, they bear little resemblance to
ordinary consumers claiming to have been hoodwinked by an opaque and cumbersome opt-out
process. The Publishers do not identify “actual coercion” that required search advertisers to
direct extra spend into GDN or Google’s ad-buying tools, or plausibly allege that use of any tied
product was required to access search advertising. Kaufman, 836 F.3d at 141.
The Publisher Complaint also does not allege that Google prevented search
advertisers from using non-Google ad-buying tools or ad networks. Based on the Publishers’
allegations, an advertiser was free to buy search advertising through Google but buy display
impressions through a competitor, or stay out of the display-advertisement space altogether.
From the face of the Publisher Complaint, it is not apparent why the eventual success of GDN
was not due to customer preference and convenience, and the quality of the product. The
Complaint describes a hypothetical situation where a restaurant in Omaha pays Google for
search advertising and its unspent ad money was diverted to display ads on TripAdvisor when a

42

relevant user later browsed for Omaha hotels. (Pub. Compl’t ¶ 338.) These allegations do not
describe an unlawful tie, but a convenient and effective complement to Google’s searchadvertising business from which an advertiser was permitted to opt out.
The Publishers’ claim directed to Search+ will be dismissed.
III.

To the Extent that Google Moves to Dismiss the Publishers’ Factual
Allegations about the Use of Encrypted IDs, the Motion Will Be Denied.

Count 1 of the Publishers’ Complaint asserts a tying claim. (Pub. Compl’t ¶¶
392-401.) Regarding AdX and the DFP ad server, it alleges two ties that are described as
complementary and mutually reinforcing: that Google tied its AdX exchange to the DFP ad
server and also tied to DFP ad server to the AdX exchange. (Pub. Compl’t ¶ 393.) In the 2022
Opinion, the Court concluded that the States had plausibly alleged that Google used its
monopoly power in the ad-exchange market to coerce publishers into using the DFP ad server,
and therefore alleged an unlawful tie. 627 F. Supp. 3d at 367-70.
The 2022 Opinion separately concluded that the States had failed to plausibly
allege a section 2 claim based on Google’s use of encrypted user IDs. Id. at 381-83. Google’s
DFP ad server assigns unique user IDs to site visitors and it shares those IDs only with Google’s
own AdX exchange and ad-buying tools. See id. at 381-82. The Court concluded that the States
did not plausibly allege that the Sherman Act required Google to disclose to competitors the
encrypted user IDs generated by its ad server, and that the States’ Complaint did not allege
irrational or unprofitable anticompetitive behavior in Google’s use of encrypted IDs. Id. at 38283.
In asserting an unlawful tie of the DFP ad server as the tying product to AdX as
the tied product, the Publishers list several different categories of challenged practices, including
Dynamic Allocation, EDA and Dynamic Revenue Sharing. (Pub. Compl’t ¶¶ 205-06.) It also
43

asserts that Google’s encryption of user IDs generated by the DFP ad server was one aspect of
the tying arrangement because it channeled publishers using the DFP server into transactions on
AdX, as opposed to competing for bids on third-party exchanges. (Pub. Compl’t ¶¶ 207, 212,
215-17.)
Google moves to dismiss the Publishers’ tying claim to the limited extent that it
alleges that the encryption of user IDs constituted a tie of the DFP ad server to AdX. But in
contrast to the States, the Publishers do not allege that encryption of user IDs was a violation of
section 2 under a refusal-to-deal theory. The Publishers point to encrypted IDs as one of several
practices that reinforced the purported tie between the DFP ad server and AdX. True, there is
some factual overlap between the Publishers’ allegations about ID encryption and the section 2
claim unsuccessfully pleaded by the States, but here, the Publishers do not assert that encryption
was itself unlawfully anticompetitive. Google does not urge that the Complaint has failed to
allege an unlawful DFP-AdX tie, and essentially moves to strike certain supporting factual
allegations going toward the tie.
The Publishers’ allegations about the use of encrypted IDs goes toward the
plausibility and functioning of the claimed tie. Google’s motion to dismiss the allegations about
encrypted IDs will be denied.

44

THE MOTIONS TO DISMISS THE NEWSPAPER COMPLAINT WILL BE TERMINATED
AS MOOT.
Twenty-five newspapers brought individual actions against Google and Facebook
and set forth their claims in a single, consolidated amended complaint (the “Newspaper
Complaint”). 13 (ECF 401.) Google and Facebook moved to dismiss the Newspaper Complaint.
(ECF 451, 462.) While their motions were sub judice, each of the Newspaper Plaintiffs filed a
Notice of Voluntary Dismissal Without Prejudice. (ECF 671-674, 677-679, 699.) Because the
Newspaper Plaintiffs have voluntarily dismissed their claims, defendants’ motions to dismiss
will be terminated as moot.
THE MOTION TO DISMISS PORTIONS OF THE DAILY MAIL COMPLAINT WILL BE
GRANTED. 14
I.

Overview of the Daily Mail Complaint.

Plaintiffs Associated Newspapers Ltd. and Mail Media, Inc. publish the online
newspaper MailOnline, which is branded as “Daily Mail.” (DM Compl’t ¶ 1 (ECF 400).) The
Court will refer to these plaintiffs collectively as Daily Mail. Daily Mail claims to be the world’s
most popular English-language news website, with 225 million monthly unique visitors,
including 75 million United States visitors. (DM Compl’t ¶¶ 1-2.) Daily Mail sells display

AIM Media Ind. Operating, LLC v. Google LLC, 21 Civ. 6912 (PKC); AIM Media Midwest Operating, LLC v.
Google, LLC, 21 Civ. 6884 (PKC); AIM Media Tex. Operating, LLC v. Google, LLC, 21 Civ. 6888 (PKC); Appen
Media Group, Inc. v. Google, LLC, 22 Civ. 9810 (PKC); Brown Cnty. Publ’g Co. v. Google, LLC, 21 Civ. 6915
(PKC); Capital Region Indep. Media LLC v. Google LLC, 22 Civ. 6997 (PKC); Clarksburg Publ’g Co. d/b/a WV
News v. Google LLC, 21 Civ. 6840 (PKC); Eagle Printing Co. v. Google LLC, 21 Civ. 6817 (PKC); Gale Force
Media, LLC v. Google, LLC, 21 Civ. 6909 (PKC); Gould Enters., Inc. v. Google, LLC, 22 Civ. 1705 (PKC); HD
Media Co., LLC v. Google, LLC, 22 Civ. 1705 (PKC); Journal Inc. v. Google, LLC, 21 Civ. 6828 (PKC);
Neighborhood Newspapers, Inc. v. Google LLC, 21 Civ. 10188 (PKC); Rome News Media LLC v. Google LLC, 21
Civ. 10188 (PKC); Something Extra Publ’g, Inc. v. Google, LLC, 21 Civ. 9523 (PKC); Southern Cmty.
Newspapers, Inc. v. Google, LLC, 22 Civ. 1971 (PKC); Times Journal, Inc. v. Google, LLC, 21 Civ. 10187 (PKC);
Coastal Point LLC v. Google LLC, 21 Civ. 6824 (PKC); Emmerich Newspapers, Inc. v. Google, LLC, 21 Civ. 6794
(PKC); Flag Publications, Inc. v. Google LLC, 21 Civ. 6871 (PKC); Robinson Communications, Inc. v. Google,
LLC, 21 Civ. 8032 (PKC); Savannah Publishing Co. v. Google, LLC, 22 Civ. 1693 (PKC); Union City Daily
Messenger, Inc. v. Google, LLC, 22 Civ. 1704 (PKC); Weakley Cnty. Press, Inc. v. Google, LLC, 22 Civ. 1701
(PKC).
14
Associated Newspapers Ltd., et al. v. Google LLC, et al., 21 Civ. 3446 (PKC);
13

45

advertisements using the DFP ad server, and it refers to AdX as its “primary exchange.” (DM
Compl’t ¶ 36.)
Count 2 of Daily Mail’s complaint asserts monopolization in the market for ad
exchanges. (DM Compl’t ¶¶ 246-49.) Google moves to dismiss portions of Count 2, urging that
it re-asserts certain theories of liability that the Court dismissed in the 2022 Opinion. Daily Mail
also brings two new theories of liability premised on the purported leveraging of Google’s power
in the general search market.
II.

Daily Mail Does Not Allege a Section 2 Violation Based on Google’s
Implementation of Exchange Bidding.

One of Daily Mail’s theories of section 2 liability asserts that Google
implemented exchange bidding (also known as “open bidding”) in an effort to maintain its adserver and ad-exchange monopolies. (DM Compl’t ¶¶ 158-64.) Google launched exchange
bidding in 2018 as a response to the popularity of header bidding. (DM Compl’t ¶ 158.)
Through exchange bidding, multiple ad exchanges could take bids on publisher inventory in
competition with AdX, but AdX alone was able to identify the end-user who would see the ad.
(DM Compl’t ¶ 159.) The win rate for AdX was double the rate of rival exchanges, but,
according to Daily Mail, Google’s goal was to “kill” header bidding, not to gain revenue through
exchange bidding. (DM Compl’t ¶¶ 161-62.)
Daily Mail asserts that Google “coerce[d]” publisher clients into abandoning
header bidding in favor of exchange bidding, including through the introduction of AMP, thus
limiting the DFP server’s ability to accept bids through header bidding and redacting information
that allowed publishers to compare the results of header bidding versus exchange bidding. (DM
Compl’t ¶ 163.) It also asserts that Google has attempted to “cajole” publishers into participating
in exchange bidding rather than header bidding, citing to “strain” on Google’s servers. (DM
46

Compl’t ¶ 163.) But elsewhere in the complaint, when describing alleged anticompetitive
conduct related to Google’s general search business, Daily Mail states that it has “continued —
and continues to this day — to use client-side header bidding at higher rates than Exchange
Bidding, and for an increasing number of non-Google exchanges.” (DM Compl’t ¶ 224.)
The 2022 Opinion dismissed the States’ similar claim directed to the
implementation of exchange bidding:
[T[he Complaint describes Exchange Bidding as a voluntary
venture, one that arose as a response to the popularity and innovation
of header bidding. Exchange Bidding allowed non-Google
exchanges – and indirectly those advertisers submitting bids through
those exchanges – to participate in auctions, a move that tended to
increase competition for publisher ad inventory. If a non-Google
exchange, which presumably would be sophisticated in the nature
and operation of an ad exchanges, chose to participate in Exchange
Bidding, this benefitted publishers, the non-Google ad exchange and
the users of the non-Google exchange. If Google inadequately or
deceptively described its pricing or any part of its Exchange Bidding
process, that may be actionable under a State deceptive practice law;
without a plausible explanation of how it harmed competition, it is
not actionable under section 2.
627 F. Supp. 3d at 394-95.
It appears that Daily Mail is attempting to improve the States’ earlier allegations
by purporting to identify coercion and cajoling by Google. (DM Compl’t ¶ 163.) These
assertions are belied by Daily Mail’s own, conflicting assertion that it continues to use header
bidding at higher rates than exchange bidding and for an “increasing” number of non-Google
exchanges. (DM Compl’t ¶ 224.) Daily Mail does not plausibly allege coercion by Google, and
has not alleged other additional facts that would distinguish its exchange bidding claim from the
one brought by the States.

47

Daily Mail’s section 2 claim directed to Google’s exchange bidding initiative will
be dismissed.
III.

Daily Mail Does Not Allege a Section 2 Claim Based on Google’s Use of
Encrypted IDs.

Like the States, Daily Mail asserts that Google’s encryption of user IDs was a
Sherman Act violation. (DM Compl’t ¶¶ 108-13.) Daily Mail recounts Google’s acquisition of
DoubleClick, its subsequent decision to encrypt user IDs generated by the DFP ad server, the
fact that user IDs can only be identified by AdX, and asserts that Google’s invocation of user
privacy is a mere pretext for the abuse of monopoly power. (DM Compl’t ¶¶ 108-13.)
Daily Mail’s claim directed to the encryption of user IDs will be dismissed for
substantially the same reasons stated in the 2022 Opinion, 627 F. Supp. 3d at 381-83. Daily
Mail’s claim differs from the States principally in the assertion that, as a publisher, it has a
contractual right to own data acquired through DFP and AdX, and that by preventing Daily Mail
from sharing user IDs with non-Google ad servers and ad exchanges, Google engages in
anticompetitive conduct. (DM Compl’t ¶ 109.) This may support a contract-related claim, but it
does not go to Google’s competitive obligation to share an encrypted ID with rivals and whether
Google’s privacy justifications were merely pretextual, as Daily Mail and the States have
claimed. See 627 F. Supp. 3d at 381-83.
Daily Mail’s claim directed to the encryption of user IDs will be dismissed.
IV.

Daily Mail’s Leveraging Claim Will Be Dismissed.
A. Daily Mail Does Not Plausibly Allege that Google Leveraged Its
Search Monopoly to Coerce the Adoption of AMP.

Daily Mail asserts that Google leverages its monopoly power in the market for
general search to coerce publishers to post in AMP. (DM Compl’t ¶¶ 202-12.) Daily Mail

48

separately asserts that Google has leveraged its power in general search to “punish” it for setting
high price floors on AdX, and dropped its search rankings as more of its impressions cleared on
rival ad exchanges. (DM Compl’t ¶¶ 213-25.)
“Within the context of § 2 claims, the Supreme Court has recognized the
impropriety of monopoly leveraging, i.e., the use of monopoly power in one market to strengthen
a monopoly share in another market.” Virgin Atlantic Airways Ltd. v. British Airways PLC, 257
F.3d 256, 272 (2d Cir. 2001). A plaintiff must plausibly allege that the defendant “(1) possessed
monopoly power in one market; (2) used that power to gain a competitive advantage . . . in
another distinct market; and (3) caused injury by such anticompetitive conduct.” Id. at 272. The
plaintiff must also allege “a ‘dangerous probability of success’ in monopolizing a second market
. . . .” Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 415 n. 4
(2004).
The 2022 Opinion dismissed the States’ section 2 claim alleging that Google’s
creation of AMP was an anticompetitive measure intended to thwart header bidding and exclude
rival exchanges. 627 F. Supp. 3d at 398-99. Daily Mail similarly asserts that Google
implemented AMP to drive publishers away from header bidding and give an unfair advantage to
AdX. (DM Compl’t ¶ 206.) Daily Mail asserts that about 70% of its traffic comes from mobile
views, and that approximately 20% of these mobile views (or 14% overall) comes through a
Google referral, making Google the site’s largest traffic source. (DM Compl’t ¶ 202.) In 2016,
Google unveiled a “news carousel” at the top of its results page. (DM Compl’t ¶ 203.) The
news carousel drove more mobile search traffic than the links that appeared lower on the user’s
screen. (DM Compl’t ¶ 203.) But a publisher would only be included in the news carousel if it
used AMP. (DM Compl’t ¶¶ 203-04.) Daily Mail asserts that AMP made for a worse user

49

experience and forced publishers to transact impressions on AdX, and that the goal of faster
page-load times was merely pretextual. (DM Compl’t ¶¶ 205-06, 212.) According to Daily
Mail, it was forced to choose between foregoing AMP and experiencing lower site traffic or
adopting AMP and earning less ad revenue. (DM Compl’t ¶ 206.)
Daily Mail adopted AMP, and after 18 months of transacting sales through AdX,
it developed a “workaround” to engage in header bidding on AMP pages, leading to higher ad
revenue and fewer impressions transacted on AdX. (DM Compl’t ¶ 207.) But Google then
disabled this function and introduced exchange bidding and “Real Time Config,” both of which
channeled impressions through AdX. (DM Compl’t ¶¶ 208-09.) Daily Mail asserts that AMP
remains incompatible with header bidding, and that it can only sell ad inventory through means
that give an unfair advantage to AdX, resulting in artificially depressed revenue and decreased
ad-exchange competition. (DM Compl’t ¶¶ 210-11.)
Daily Mail’s leveraging claim turns on the effect that Google’s news carousel
had on referral traffic. It asserts that the news carousel had such a strong effect on referral traffic
that Daily Mail had no choice but to adopt AMP. But the complaint makes no allegations about
the volume of referral traffic from the news carousel versus the volume of search referrals Daily
News has when excluded from the news carousel. It describes a choice between implementing
AMP and gaining referral traffic and not implementing AMP and earning higher ad bids through
header bidding (DM Compl’t ¶ 206), but it does not allege facts about referral traffic gained or
lost based on inclusion in the news carousel. Daily Mail’s complaint does not allege facts about
the economic consequences of referral traffic from the news carousel and how the news carousel
referrals reflected an abuse of monopoly power to gain competitive advantage in the ad exchange

50

market. See Virgin Atlantic, 257 F.3d at 272. The leveraging claim directed to AMP will be
dismissed.
B. Daily Mail Does Not Plausibly Allege a Claim Based on Changes to
Google’s Search Algorithm.
The second leveraging theory asserts that Google uses its monopoly power in
general search to punish publishers that participate in header bidding and spurn AdX. (DM
Compl’t ¶¶ 213-25.) Daily Mail asserts that Google alters its search algorithms unannounced
and without transparency, sometimes leading to unexpected drops in search referrals. (DM
Compl’t ¶¶ 213-14.) It asserts that Google sometimes “eroded” Daily Mail’s referral traffic
without explanation or a legitimate business justification, and that in 2019, Google “punished”
Daily Mail and many other major publishers when it rolled out a “Core Algorithm Update,”
resulting in a 50-percent drop in search traffic. (DM Compl’t ¶¶ 214-16.) Three months later,
Google reversed course, and Daily Mail’s traffic returned “as quickly as it disappeared . . . .”
(DM Compl’t ¶ 217.)
Daily Mail discussed these traffic swings with “Google personnel at the highest
level,” and was told that Daily Mail had not been targeted. (DM Compl’t ¶¶ 218-19.) According
to Daily Mail, however, this was false: Google had targeted it for setting aggressively high price
floors in order to get more valuable bids on AdX. (DM Compl’t ¶ 220.) These high price floors
resulted in fewer Daily Mail impressions transacting on AdX. (DM Compl’t ¶ 220.) Google
complained to Daily Mail about its price-floor strategy. (DM Compl’t ¶ 221.) With the Core
Algorithm Update in June 2019, Google “shut off” Daily Mail’s search referral traffic one week
before it began enforcing UPR across publishers’ inventory. (DM Compl’t ¶ 222.) Once UPR
was implemented, and Daily Mail was selling inventory through AdX “on the cheap,” Google
restored search referral traffic. (DM Compl’t ¶ 222.)
51

Daily Mail asserts that under UPR and the Core Algorithm Update, the
percentage of its impressions transacted on AdX tripled from 16% to somewhere around 50%.
(DM Compl’t ¶ 223.) Daily Mail asserts that it “lives in persistent fear” that Google will alter its
search algorithms as punishment for transacting on non-AdX exchanges, noting that it continues
to participate in header bidding at a higher volume than Google’s exchange bidding. (DM
Compl’t ¶¶ 225.)
Daily Mail does not plausibly allege that Google leveraged monopoly power in
the general search market to coerce participation in UPR or otherwise channel publishers toward
AdX transactions. Accepting the truth of the facts alleged, Google’s changes to its search
algorithm were erratic, arbitrary and lacked transparency, but they do not describe coercion.
Daily Mail acknowledges that it was confused and startled by the sudden changes in search
referral volume. (DM Compl’t ¶¶ 217-19.) There was no explicit or implicit threat by Google to
drop the search rankings of Daily Mail or other publishers in retaliation for transacting on nonAdX exchanges. There is no allegation that Google conveyed to Daily Mail a carrot-and-stick
approach to reward or punish certain decisions via site rankings, and Daily Mail is only able to
look back in retrospect and identify a rough correlation between the implementation of UPR and
the Core Algorithm Update. There are no facts alleged that show how the changes to search
algorithms were understood as a threat. Daily Mail has described confusion, not coercion.
Daily Mail has not plausibly alleged a leveraging claim based on changes to
Google’s search algorithm, and this claim will be dismissed.

52

GOOGLE’S MOTION TO PARTIALLY DISMISS GANNETT’S CLAIMS WILL BE
GRANTED IN PART AND DENIED IN PART. 15
I.

Overview of the Gannett Complaint.

Plaintiff Gannett Co., Inc. (“Gannett”) owns more than 500 digital news and
media brands, and calls itself “the largest news media publisher in the United States.” (Gannett
Compl’t ¶ 1 (23 Civ. 5177, ECF 1).) It states that it sells millions of digital ad impressions each
day. (Gannett Compl’t ¶ 4.) Gannett sells about one-third of its ad impressions directly to
advertisers, and about two-thirds indirectly over ad exchanges. (Gannett Compl’t ¶¶ 33-35.) It
licenses Google’s DFP as its ad server and AdX is its “primary exchange.” (Gannett Compl’t ¶
49.)
Gannett brings four Sherman Act claims: Count 1 and Count 2 respectively
allege monopolization in the markets for ad servers and ad exchanges under section 2, Count 3
alleges attempted monopolization in the market for ad exchanges under section 2, and Count 4
alleges that Google unlawfully tied AdX to the DFP ad server. (Gannett Compl’t ¶¶ 252-72.)
Google moves to partially dismiss Gannett’s claims. It urges that Gannett has
not successfully pleaded certain theories of section 2 liability that the Court dismissed in the
2022 Order, and that its claims directed to Dynamic Allocation and line-item caps are time
barred under the Sherman Act.
II.

Gannett’s Section 2 Claim Directed to Exchange
Bidding Will Be Dismissed.

Gannett and Daily Mail are represented by the same counsel, and Gannett’s
allegations about exchange bidding include several statements that track Daily Mail’s allegations
word for word. (Gannett Compl’t ¶¶ 178-86.) Gannett’s complaint differs principally in certain

15

Gannett Co., Inc. v. Google LLC, 23 Civ. 5177 (PKC).

53

allegations about its May 2023 discovery of a secret “‘alpha program’ called ‘Multi-Ad for
Video’ across 100% of Gannett’s inventory.” (Gannett Compl’t ¶ 184.) The program allegedly
reduced Gannett’s bids for video inventory by around 30% and decreased its share of video
inventory routed through header bidding by around 40%. (Gannett Compl’t ¶ 184.) Gannett
states that it has since demanded its removal from the alpha program and fully withdrawn from
exchange bidding – “Gannett simply could not afford to leave its video inventory completely
exposed to Google’s machinations.” (Gannett Compl’t ¶ 185.) Gannett says that it has
experienced “favorable” results, with a substantial increase in the price for impressions.
(Gannett Compl’t ¶ 186.)
But these allegations did not support any assertion that Google’s implementation
of exchange bidding was coercive. Gannett asserts that it halted participation in exchange
bidding based on its frustration with the alpha program and has earned higher profits with more
active participation in header bidding. Gannett describes its ability to opt out of a Google-run
initiative and obtain better results from its competition, not coercion.
For this reason, as well as the reasons discussed above in relation to Daily Mail’s
claim and in the 2022 Opinion, the Court concludes that Gannett has not plausibly alleged a
section 2 violation based on Google’s implementation of exchange bidding.
III.

Gannett’s Section 2 Claim Directed to the
Encryption of User IDs Will Be Dismissed.

Gannett’s claim directed to the encryption of user IDs substantially mirrors the
allegations of Daily Mail. (Gannett Compl’t ¶¶ 129-35.) For the reasons previously stated,
Gannett’s section 2 claim directed toward user ID encryption will be dismissed.

54

IV.

Gannett’s Leveraging Claim Directed to AMP Will Be Dismissed.

Gannett’s claim that Google leveraged its monopoly power in general search to
coerce publishers into using AMP and protect AdX from header-bidding competition is also
substantially identical to Daily Mail’s same theory of liability. (Gannett Compl’t ¶¶ 223-35.)
Gannett supplements its allegations somewhat by asserting that in 2016, “Google represented
that monetization on AMP pages ‘has been similar or better than ads on mobile sites.’” (Gannett
Compl’t ¶ 228.) This is little more than a sales pitch or boast, and does not strengthen any theory
of anticompetitive conduct. Gannett also alleges that it has designed its pages to run faster than
AMP. (Gannett Compl’t ¶ 235.) This, too, does not strengthen Gannett’s theory of
anticompetitive conduct on the part of Google.
Gannett’s claim directed to Google’s leveraging of search power in order to
channel publishers toward AMP and frustrate the market for header bidding will be dismissed for
the reasons set forth as to Daily Mail’s similar claim.
V.

Google’s Motion to Dismiss Gannett’s Claim Linking Enhanced
Dynamic Allocation to Direct Ad Sales Will Be Denied.

Google moves to dismiss a portion of Gannett’s section 2 claim relating to how
Google’s implementation of EDA affected Gannett’s inventory of directly sold advertisements.
Gannett asserts that Google made available for auction on AdX impressions that Gannett had
already directly sold to advertisers, thereby undermining Gannett’s more lucrative direct sales
and favoring AdX in order to accrue transaction fees for Google’s own benefits.
The 2022 Opinion concluded that the States had plausibly alleged that EDA
injured competition in the ad-exchange market but did not plausibly injury to competition in the
markets for ad servers or ad-buying tools. 627 F. Supp. 3d at 386-87. EDA allegedly channeled
publishers’ highest-value inventory to AdX and allowed AdX to transact the impression if a bid
55

was higher than a unilateral Google price floor and the historical average bid on rival exchanges.
See id. Publisher clients were automatically enrolled into EDA and encouraged to continue
enrollment based on allegedly false promises that it maximized their yields. See id. The 2022
Opinion concluded that the States plausibly identified an anticompetitive measure that starved
rival ad exchanges of lucrative impressions, but as to the market for ad servers and ad-buying
tools, had primarily identified untruthful statements to publisher clients without identifying harm
to competition. See id.
Gannett’s allegations differ from the States’ in its emphasis on the effect of EDA
on the ads that it sold directly. Gannet has an in-house ad-sales staff that negotiates direct sales
with advertisers. (Gannett Compl’t ¶ 32.) Gannett typically reserves its most valuable space for
direct sales, and advertisers value direct placement because they can customize the page
placement, timing and audience. (Gannett Compl’t ¶ 32.) A user who visits a Gannett site and
meets the direct advertiser’s criteria will be automatically shown the ad. (Gannett Compl’t ¶ 32.)
Gannett asserts that through EDA, Google converted publishers’ direct sales into
impressions available for auction bidding on AdX. (Gannett Compl’t ¶ 147.) AdX would then
allow advertisers to outbid a publisher’s directly-sold inventory if the impression received a bid
worth one cent more than the value of the direct sale as calculated by Google. (Gannett Compl’t
¶ 147.) Google allegedly used a variation on EDA that lowered the value of the direct-sale
inventory and set that new value as a price floor on the auction. (Gannett Compl’t ¶ 147.)
Gannett asserts that it has been unable to verify whether Google has undervalued a given direct
impression, so that AdX could be selling auction impressions at a lower price than Gannett’s
directly sold inventory. (Gannett Compl’t ¶ 149.) Gannett asserts that the DFP ad server
allocates to AdX the most valuable publisher impressions, supplanting publishers’ direct deals

56

with advertisers and depressing the prices that publishers receive for their most valuable
inventory. (Gannett Compl’t ¶ 150.)
Gannett has plausibly alleged that Google has used its monopoly power in the
market for ad servers to channel transactions exclusively to AdX. This alleges harm to
competition in the ad-exchange market. Gannett has alleged its own injury with the allegation
that its revenues were artificially depressed when direct ad sales were bypassed and transacted in
AdX auctions at prices lower than what direct purchasers were willing to pay. (Gannett Compl’t
¶ 150.)
Google’s motion to dismiss the portion of Gannett’s section 2 claim premised on
EDA’s effect on directly-sold ad impressions will be denied.
VI.

Google’s Motion to Dismiss Gannett’s Claim Directed
to Minimum Bid to Win Will Be Denied.

For the reasons previously discussed in connection with the Publishers’ claims,
Gannett has plausibly alleged a section 2 violation premised on Google’s implementation of
MBW. (Gannett Compl’t ¶¶ 64-67.) Gannett’s allegations are somewhat sparer than those set
forth by the Publishers, but they describe the same underlying conduct and harm to competition:
Google used its monopoly power in the market for ad servers to amass bidding information, then
transmitted the information to Google’s ad-buying tools to inform them of the lowest price
required to win impressions at auction. (Gannett Compl’t ¶¶ 65-66.)
For the reasons set forth in connection with the Publishers’ claim, Google’s
motion to dismiss Gannett’s section 2 claim directed to MBW will be denied.

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VII.

The Motion to Dismiss Gannett’s Section 2
Claim on Timeliness Grounds Will Be Granted
as to Line-Item Capping but Denied as to EDA.

Google urges that Gannett’s section 2 claims directed to implementation of EDA
and line-item capping should be dismissed because they fall outside the Sherman Act’s four-year
statute of limitations, 15 U.S.C. § 15b. “The statute of limitations in a private anti-trust suit is
four years, beginning ‘when a defendant commits an act that injures a plaintiff’s business.’”
World Wrestling Ent., Inc. v. Jakks Pacific, Inc., 328 Fed. App’x 695, 698 (2d Cir. 2009)
(internal citation omitted) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
338 (1971)). A court may dismiss a claim as untimely at the Rule 12(b)(6) stage “when the
complaint shows on its face that the limitations period has run . . . .” GEOMC Co. v. Calmare
Therapeutics Inc., 918 F.3d 92, 101 (2d Cir. 2019).
Gannett filed its complaint on June 20, 2023. (23 Civ. 5177, ECF 1.) Gannett
asserts that it first complained to Google in 2014 that EDA was not operating as promised.
(Gannett Compl’t ¶ 154.) In 2018, Gannett learned that Google was misrepresenting aspects of
sponsorship deals under EDA, at which point Google claimed to have resolved the issue.
(Gannett Compl’t ¶ 155.) Gannett separately asserts that in 2017, Google began to purposefully
limit the number of line items available to publishers. (Gannett Compl’t ¶ 206.) Google
therefore urges that the limitations period has expired as to Gannett’s claims directed to EDA
and the limit on line items.
Gannett urges that its claims directed to EDA and line item caps are timely
because the statute of limitations has been tolled. The Court first addresses Gannett’s allegations
of Google’s fraudulent concealment of the effects and operations of EDA.

58

“[A]n antitrust plaintiff may prove fraudulent concealment sufficient to toll the
running of the statute of limitations if he establishes (1) that the defendant concealed from him
the existence of his cause of action, (2) that he remained in ignorance of that cause of action until
some point within four years of the commencement of his action, and (3) that his continuing
ignorance was not attributable to lack of diligence on his part.” State of N.Y. v. Hendrickson
Bros., 840 F.2d 1065, 1083 (2d Cir. 1988). When a plaintiff asserts that its claims were tolled on
grounds of fraudulent concealment, it must satisfy the heightened pleading requirement of Rule
9(b), Fed. R. Civ. P. See, e.g., Four Seasons Solar Prod. Corp. v. Southwall Techs., Inc., 100
Fed. App’x 12, 13 (2d Cir. 2004) (summary order); Kearse v. Kaplan, Inc., 692 F. Supp. 2d 398,
401 & n.17 (S.D.N.Y. 2010) (Kaplan, J.) (collecting cases). “In the case of fraudulent
concealment or omission, where the plaintiff is unable to specify the time and place because no
act occurred, the complaint must still allege: (1) what the omissions were; (2) the person
responsible for the failure to disclose; (3) the context of the omissions and the manner in which
they misled the plaintiff; and (4) what the defendant obtained through fraud.” Soroof Trading
Dev. Co. v. GE Fuel Cell Sys., LLC, 842 F. Supp. 2d 502, 513 (S.D.N.Y. 2012) (Swain, J.).
“[T]he plaintiff may prove the concealment element by showing either that the defendant took
affirmative steps to prevent the plaintiff's discovery of his claim or injury or that the wrong itself
was of such a nature as to be self-concealing.” Hendrickson Bros., 840 F.2d at 1083. Certain
types of unlawful conduct, such as a bid-rigging conspiracy, are self-concealing by their nature.
See id. at 1084-85.
The 2022 Opinion observed in its discussion of laches that many of Google’s
alleged auction-manipulation practices “lacked transparency, occurred out of the public eye, and
had effects that were not immediately obvious or well understood.” 627 F. Supp. 3d at 406. It

59

observed that the States had plausibly alleged that “Google’s rollout of EDA was opaque, and
accompanied by misrepresentations about its intent and effects.” Id.
Gannett asserts that Google made “false” representations for “many years” about
the purpose and effects of EDA, which induced Gannett to enroll in EDA and continue its
participation. (Compl’t ¶¶ 151-53.) In 2014, Google promised that EDA would lead to higher
revenue, and “even commissioned a study to assure Gannett that [EDA] increased revenue by
19%.” (Compl’t ¶ 151.) Gannett asserts that Google falsely stated that EDA would not affect its
direct deals with advertisers, and that “[f]or months, in 2014, Gannett complained to Google that
DFP was not delivering on direct deals, despite Google’s assurances otherwise.” (Compl’t ¶¶
152, 154.) Gannett asserts that Google falsely claimed that it resolved the issue. (Compl’t ¶
154.) It asserts that Google “never has made available any data or analytics” that allowed it to
understand how EDA affected its sales and that Gannett still “has limited ability to oversee” how
AdX competes against direct sales. (Compl’t ¶¶ 154-55.) Gannett alleges that it only learned the
scope and impact of EDA through “investigations from domestic and foreign antitrust enforcers .
. . .” (Compl’t ¶ 153.)
As alleged by Gannett, the anticompetitive effects of EDA were not known by
affected publishers. The describes Gannett’s awareness that EDA was not operating as
promised, but that Google claimed without proof that “under-delivery” had been “resolved,”
(Compl’t ¶ 154) which suggests an implementation problem as opposed to a deliberate
anticompetitive measure. Google’s alleged misrepresentations included the 2014 report about
increased revenue about EDA. (Compl’t ¶ 151.) Gannett alleges that, throughout EDA’s
implementation, Google has never shared data or analytics that were necessary to track how AdX
transactions competed with direct sales. (Compl’t ¶¶ 154-55.) Given the secretive nature of

60

EDA’s implementation and the alleged unwillingness of Google to disclose sales data, Gannett
has plausibly alleged Google’s responsibility for omitting information that could have alerted
Gannett to EDA’s anticompetitive effects. See Soroof, 842 F. Supp. 2d at 513. The complaint
plausibly explains how Google’s concealments and omissions misled Gannett and what Google
gained from its purported conduct. See id. Moreover, as described in the Complaint, the nature
of EDA’s implementation required some degree of secrecy, because no profit-minded publisher
would voluntarily opt to sacrifice its lucrative direct sales for less-valuable programmatic
advertising. This too weighs in favor of plausibly alleging that EDA’s true nature and effect
were fraudulently concealed. See Hendrickson Bros., 840 F.2d at 1083. Google’s motion to
dismiss Gannett’s EDA claim as untimely will be denied.
Gannett has not demonstrated that any tolling principle applies to its claim
directed to the cap on header bidding line items. It first asserts that the underlying conduct
amounted to continuing violations of the antitrust laws. “[A]ntitrust law provides that, in the
case of a ‘continuing violation,’ say, a price-fixing conspiracy that brings about a series of
unlawfully high priced sales over a period of years, each overt act that is part of the violation and
that injures the plaintiff, e.g., each sale to the plaintiff, starts the statutory period running again,
regardless of the plaintiff's knowledge of the alleged illegality at much earlier times.” US
Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 67 (2d Cir. 2019) (quotation marks
omitted). Acts are not part of a continuing violation when they are “the manifestation of the
prior overt act,” and are continuing violations only when they are “new and independent act[s] . .
. .” Id. at 68-69. Gannett asserts that the enforcement of line-item caps in header bidding went
into effect when “Google purposefully started to limit the number of line items available to
publishers” in 2017. (Gannett Compl’t ¶ 206.) The Gannett Complaint describes a repeated

61

manifestation of the same overt act – enforcement on a limit on the number of line items
permitted in header bidding – and not new and independent acts. The claim directed to line-item
caps does not describe a continuing violation. See US Airways, 938 F.3d at 67-69.
Gannett next points to the principles of American Pipe tolling. See American
Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). The American Pipe doctrine stands for
the proposition that the limitations period for claims of a putative class member are tolled by the
filing of a class action complaint that asserted the same claims. See In re WorldCom Sec. Litig.,
496 F.3d 245, 255 (2d Cir. 2007). “[T]he initiation of a class action puts the defendants on
notice of the claims against them,” and “[a] defendant is no less on notice when putative class
members file individual suits . . . .” Id.
Gannett urges that, as a publisher, it was a member of the Publishers’ original
putative class action complaint, thereby tolling its claim directed to line-item caps. The Court
has been unable to identify any allegation related to line-item caps in the pleading cited by
Gannett, In re Google Digital Publisher Antitrust Litigation, 20 Civ. 8984 (N.D. Cal.) (LBF)
(ECF 64), nor in a separate putative class action complaint, Genius Media v. Alphabet Inc., 20
Civ. 9092 (N.D. Cal.) (ECF 1). Because these pleadings make no mention of line-item caps,
they did not place Google on notice of any such claim. In re WorldCom, 496 F.3d at 255. The
American Pipe doctrine does not apply to Gannett’s claim directed to line-item caps.
Accordingly, Google’s motion to dismiss on timeliness grounds will be denied as
to Gannett’s section 2 claim directed to EDA but granted as to its claim directed to line-item caps
in header bidding.

62

CONCLUSION.
The motions to dismiss in In re: Google Digital Antitrust Advertising, 21 Civ.
7001 (PKC) and Singh v. Google LLC, et al., 23 Civ. 3651 (PKC) are GRANTED as to
plaintiffs’ claims directed to Project Elmo, Project Poirot and Reserve Price Optimization.
Count III and Count V are also dismissed. Plaintiff Hanson’s claims directed to conduct that
post-dates September 6, 2016 are dismissed. The remainder of the motions are DENIED. The
Clerk is respectfully directed to terminate the motions. (21 MD 3010, ECF 446, 460, 625, 628;
21 Civ. 7001, ECF 181; 23 Civ. 3651, ECF 22.) The Court will separately enter as an Order the
Stipulation and Proposed Order in the Singh matter.
The motion to dismiss in Organic Panaceas v. Google LLC, 21 Civ. 7001 (PKC)
is GRANTED in its entirety. The Clerk is respectfully directed to terminate the motion. (21 MD
3010, ECF 457.)
The motion to dismiss the consolidated complaint in SPX Total Body Fitness
LLC v. Google LLC, 21 Civ. 6870 (PKC) and SkinnySchool LLC, et al. v Google LLC, 21 Civ.
7045 (PKC) is GRANTED in its entirety. (21 MD 3010, ECF 455; 21 Civ. 6870, ECF 79; 21
Civ. 7045, ECF 43.) The Clerk is respectfully directed to terminate the motion and to close these
two cases.
The motion to dismiss in In re: Google Digital Publishing Litigation, 21 Civ. 7034
(PKC) is GRANTED as to plaintiffs’ claims directed to Google’s detection of “problematic
code” and their tying claim directed to the “Search+” product. The motions are otherwise
DENIED. The Clerk is respectfully directed to terminate the motions. (21 MD 3010, ECF 449;
21 Civ. 7034, ECF 136.)

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The motions to dismiss the Newspapers’ consolidated complaint are terminated as
moot. (21 MD 3010, ECF 451, 462.)
The motion to partially dismiss in Associated Newspapers Ltd., et al. v. Google
LLC, et al., 21 Civ. 3446 (PKC) is GRANTED in its entirety. The Clerk is respectfully directed
to terminate the motion. (21 MD 3010, ECF 453; 21 Civ. 3446, ECF 71.)
The motion to dismiss in Gannett Co., Inc. v. Google LLC, 23 Civ. 5177 (PKC) is
GRANTED as to Gannett’s claims premised on exchange bidding, the encryption of user IDs
and line-item capping. It is also GRANTED as to the leveraging claim directed to AMP. The
motion is otherwise DENIED. The Clerk is respectfully directed to terminate the motion. (21
MD 3010, ECF 623; 23 Civ. 5177, ECF 24.)
SO ORDERED.

Dated: New York, New York
March 1, 2024

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