7 June 2021: FCA Decision: The French Competition Authority issues a Decision fining Google €220m.
22 June 2021: The European Commission opens an investigation into Google’s conduct in ad tech.
November 2022: Claudio Pollack Claim Filed With CAT: Claudio Pollack’s original claim is filed with the Competition Appeal Tribunal.
24 January 2023: US DOJ Claim v Google in relation to its conduct in ad tech.
19 May 2023: cat Case Management Conference (CMC), in Claudio Pollack v Alphabet Inc. and others (Case no. 1572/7/7/22) to consider how to appropriately case manage issues relating to carriage and timing. The Tribunal invites Charles Arthur’s legal representatives to be heard on these issues.
26 May 2023: CAT Hands Down Judgment in the Pollack CMC. held: the question of carriage should be heard before the question of certification.
14 June 2023: Commission Statement Of Objection: The European Commission sends a Statement of Objections to Google over abusive practices in ad tech.
16 October 2023: Amalgamation Hearing: Claudio Pollack and Charles Arthur apply to the Competition Appeal Tribunal to amalgamate their claims against Google with Ad Tech Collective Action LLP as the new class representative.
26 October 2023: CAT Makes A Reasoned Order On Amalgamation: The CAT orders the consolidation of Claudio Pollack and Charles Arthur’s proceedings and the appointment of Ad Tech Collective Action LLP as the new class representative.
23 January 2024: CAT Adjourns Certification Hearing: Following an application by Google for more time, the CAT agrees to adjourn the certification hearing (scheduled to commence on 29 January 2024).
8 May 2024: Certification Hearing: The CAT has re-listed the certification hearing for up to 3 days beginning on 8 May 2024. This is the hearing at which the CAT will determine whether Ad Tech Collective Action LLP’s claim should proceed
1/-SAS: In 2021,Google was fined for adp by the French Competition Authority:
google abused its dominant position in relation to ad tech services. It’s possible that all UK-based publishers that received revenue from the sale of online display ads have suffered financial loss by Google too. Google, which did not dispute the facts, wished to settle with the Autorité, which granted its request. Google also proposed commitments, accepted by the Autorité, that will change the way its advertising service DFP and its sales platform AdX function. Following referrals from News Corp Inc., Le Figaro group[1] and the Rossel La Voix group, the Autorité de la concurrence issues today a decision sanctioning Google, up to 220 million euros, for having abused its dominant position in the advertising server market for website and mobile applications publishers. The Autorité noted that Google granted preferential treatment to its proprietary technologies offered under the Google Ad Manager brand, both with regard to the operation of the DFP ad server (which allows publishers of sites and applications to sell their advertising space), and its SSP AdX sales platform (which organises the auction process allowing publishers to sell their “impressions” or advertising inventories to advertisers) to the detriment of its competitors and publishers. The practices in question are particularly serious because they penalised Google’s competitors in the SSP market and publishers of mobile sites and applications. Among these, the press groups – including those who were at the origin of the referral to the Autorité – were affected even though their economic model is also strongly weakened by the decline in sales of print subscriptions and the decline in associated advertising revenue. The Autorité recalls that a company in a dominant position is subject to a particular responsibility, that of not undermining, by conduct unrelated to competition on the merits, to an effective and undistorted competition. Google, which did not dispute the facts, wished to benefit from the settlement procedure. The Autorité granted its request. Google proposed commitments to improve the interoperability of Google Ad Manager services with third-party ad server and advertising space sales platform solutions and end provisions that favour Google. The Autorité accepted these commitments and makes them binding in its decision. Isabelle de Silva, President of the Autorité de la concurrence stated on the occasion of this decision: “The decision sanctioning Google has a very special meaning because it is the first decision in the world to look into complex algorithmic auctions processes through which online display advertising works. The particularly rapid investigation revealed processes by which Google, building on its considerable dominance in ad servers for websites and applications, outperformed its competitors on both ad servers and SSP platforms. These very serious practices penalised competition in the emerging online advertising market, and allowed Google not only to maintain but also to increase its dominant position. This sanction and these commitments will make it possible to re-establish a level playing field for all players, and the ability for publishers to make the most of their advertising space. ”
Advertising technologies for website and mobile app publishers
In order to market the advertising space present within their sites and applications, publishers use different types of technologies, and in particular ad server technologies and platform for the programmatic sale of advertising space:
- the ad server is a tool that allows publishers to display advertisements on their website or on their mobile application. It also makes it possible to manage the sale of advertising space in a unified manner, in particular by giving publishers the ability to choose, for the same advertising space, between transactions concluded directly with advertisers and the sale on multiple platforms organising auctions programmatically (i.e. using an automated mechanism).
- the platforms for the programmatic sale of advertising space (known as “SSP” for “supply side platform”) are “market places” where buyers of advertising space meet publishers wishing to sell advertising space. They request, for a given advertising space, a price offer from the advertisers, conduct an auction between the different prices offered by the advertisers, and transmit the winning bid to the advertising server.
In order to optimise their income, publishers tend to sell the same advertising space via several auction platforms simultaneously. In contrast, publishers generally use a single ad server to organise competition between different sales platforms. As a result, the interoperability of an ad server with the listing platforms determines both the revenue publishers earn from their advertising space, and their ability to market it, and the attractiveness of the listing platforms.
Google’s alledged practices by the complainant press editors
News Corp Inc., Le Figaro group (which then withdrew) and the Rossel La Voix group publish websites and mobile applications. They monetise their content through the provision of advertising space and to do this, use two advertising technologies offered by Google, namely:
- the Doubleclick for publishers ad server (hereinafter “DFP”);
- the platform for the programmatic sale of Doubleclick AdExchange advertising space (hereinafter “AdX”).
The complainants argued that Google has behaved in such a way that these two technologies – both marketed under the Google Ad Manager brand since the summer of 2018 – benefit each other, to the detriment of both competing technology providers and the market performance of their online advertising inventories.
Google has implemented different practices to favour its own advertising technologies
The elements in the case show that Google has implemented two distinct practices aimed at ensuring that its ad server DFP favours its platform for selling advertising space (SSP AdX) and, conversely, that its SSP AdX platform favours its ad server DFP.
First, the DFP ad server organises an unfair competition between the AdX sales platform and its competitors. The exact modalities of this practice have varied over the review period, especially since there are several methods by which a competing platform can interact with DFP.
One of the most notable asymmetries is that DFP indicated, until recently, the price offered by competing platforms to AdX, and that the latter used this information to optimise its bids and maximise its chances to win them against competing SSPs, in particular by varying its commission according to the competitive pressure emanating from other SSPs.
Second, the AdX platform is only partially interoperable with DFP’s competing ad servers, and does not allow the latter to organise a competition between AdX and its competitors – even though AdX itself has a privileged access to a significant portion of advertisers’ demand and while all of these competitors have adopted standards allowing for fairer competition.
Serious practices which already had significant effects on the markets
These practices are all the more serious as they took place in a still emerging market with strong growth and they may have affected the ability of competitors to develop in the market. In particular, they have limited the attractiveness of ad servers and third-party SSPs from a publisher’s perspective, and have enabled Google to significantly increase its market share and its already high revenues. In this regard, the Autorité notes that several of Google’s competitors experienced significant difficulties during the period of the practices, while Google benefited from strong growth in its activity and revenues, even increasing its already considerable market share on a rapidly growing market.
The practices, however, did not only affect the competitors. Indeed, publishers for their part have been deprived of the possibility of making full use of the competition between the various SSPs. In particular, publishers have not been able to obtain the best deals from SSPs, and in particular from Google’s AdX platform, which, already dominant, has seen the competitive pressure exerted by its competitors lessened as a result of practices.
In this regard, the press groups, some of which were at the origin of the complaint to the Autorité, and whose economic model is severely weakened by the decline in sales of print subscriptions and the decline in associated advertising revenues, have been particularly affected by Google’s practices.
These practices took place even though Google was regularly alerted to the importance of compliance with competition rules by both the European Commission and the Autorité, thus appearing to be a particularly well-informed economic player. The Commission thus sanctioned Google in connection with the Google Shopping (27 June 2017), Google Android (18 July 2018) and Google Search AdSense (20 March 2019)[1] cases. The Autorité also sanctioned it in the Google Gibmedia case (19 December 2019)[2] for having imposed non-objective, non-transparent and discriminatory operating rules on advertisers using its Gogle Ads advertising platform.
Google’s non contestation of objections
Google requested the Autorité to benefit from the settlement procedure provided for in III of Article L. 464-2 of the French Commercial Code. Consequently, Google has not disputed either the materiality of the practices in question, their legal qualification, or their imputability.
The implementation of this procedure resulted in the establishment of the Minutes of Settlement signed with the General Rapporteur, setting the maximum amount and the minimum amount of the fine that could be imposed by the Autorité. In this context, Google also proposed commitments aimed at improving the interoperability of Google Ad Manager services with third-party ad server and sales platform solutions.
Fines imposed
In view of all of these elements and in accordance with the terms of the transaction, the Autorité imposed a 220 million euros fine against Google.
It also makes the commitments proposed by Google mandatory, namely:
-
- offer third-party SSPs an interoperability modality with the DFP server allowing competition on the merits between AdX and third-party SSPs for the purchase of inventories from publishers using DFP. This commitment involves:
- to allow fair access to information on the auction process for third-party SSPs (commitment n°1);
- to preserve the full contractual freedom of third-party SSPs so that they can negotiate special conditions with publishers or to make the wished buyers (commitment n° 2);
- to ensure that AdX no longer uses the price of its competitors in order to optimise its bids in a way that is not reproducible by third-party SSPs (commitment n° 3);
- to offer guarantees of technical stability, both for third-party SSPs and for publishers (commitment n° 4).
- to make changes to existing configurations that allow publishers using third-party ad servers to access AdX on-demand in “real-time” (commitment n° 5).
- offer third-party SSPs an interoperability modality with the DFP server allowing competition on the merits between AdX and third-party SSPs for the purchase of inventories from publishers using DFP. This commitment involves:
Google has also undertaken to appoint an independent trustee, remunerated by it, who will be in charge of monitoring the implementation of these commitments, and will transmit all the information enabling the Autorité to exercise its control over these commitments.
The Autorité considered that these commitments are likely to promote the restoration of compliance for Google and improve the competitive functioning of the market for ad servers and SSP platforms. It therefore makes them mandatory, for a period of three years from the date of the notification of the decision or, where applicable, following their effective implementation.
2/-FOCol: ADTECHCLAIM V GOOGLE : is a CAT opt-out claim
The claim is being brought by Ad Tech Collective Action LLP – a limited liability partnership that has been incorporated to manage the claim against Google. The members of the partnership are Claudio Pollack, Charles Arthur and Kate Wellington.
If you sell space for adverts on a website or mobile app or publish online content on a website or mobile app containing ad units, it’s possible you have suffered financial loss because of Google’s conduct
Our claim includes applying to bring an opt-out claim on behalf of publishers of websites and mobile apps, and an opt-in claim on behalf of publisher partners at the UK Competition Appeal Tribunal, to seek damages for losses caused by Google
The claim is about Google’s conduct in the market for online advertising and in particular display advertising on websites and mobile apps. In 2021, Google was fined by the French Competition Authority for abusing its dominant position in relation to this market, known as “ad tech services”. The claim alleges that all UK-based publishers of websites and apps (and, if applicable, their publisher partners such as resellers) that received revenue from the sale of online display ads may have suffered financial losses due to Google’s practice and are entitled to compensation. Compensation should reflect the higher ad sales revenues which you should have earned if Google had not acted in breach of competition law.
Simply put, ad tech is the technology powering the placement of online ads that billions of consumers see in their everyday lives, be it on a desktop computer, tablet or smartphone. Digital advertising has experienced spectacular growth, exceeding $490 billion in 2021, so it’s no surprise that selling digital ads has become a key source of revenue for publishers of online content.
Who is the claim against and what have they done?
The claim is against various companies that form part of the Google group of companies. These companies are the largest and most important ad tech vendors at every step of the value chain, with market shares as high as 90-100%.
We allege that Google has breached competition law, which prohibits companies from abusing a dominant position. The French competition authority has already decided that Google’s conduct caused considerable financial losses to Publishers, by depressing their revenue in two different ways:
(i) depriving publishers of the ability to benefit from undistorted competition between ad exchanges, which would have exerted competitive pressure on Google to lower its very high AdX commissions from around 20%.
(ii) limiting competition in ad auctions, which prevented publishers from achieving higher prices for their impressions.
Google’s ad tech practices are also under scrutiny in lawsuits and investigations around the world, including ongoing investigations by the UK Competition and Markets Authority, the European Commission and the Australian Competition & Consumer Commission, and lawsuits brought by a coalition of US State Attorneys General and by the US Department of Justice respectively. Compensation should reflect the higher ad sales revenues which you should have earned if Google had not acted in breach of competition law.
What stage has the claim reached and what is the timeline for the litigation?
You may be aware that Claudio and Charles had previously issued separate but similar collective proceedings claims against Google. However, Claudio and Charles have since decided to consolidate their claims in order to maximise the interests and chance of success for the class. This consolidation was approved by the Competition Appeal Tribunal on 16 October 2023. In terms of next steps, the Tribunal will decide whether to give permission for the claim to proceed as a collective action and whether the class representative is suitable to bring the claim at a hearing listed for 8-10 May 2024. If the claim proceeds to trial (i.e. if it is certified and not settled beforehand), the Competition Appeal Tribunal will decide whether to make an aggregate award of damages. If made, the award will be distributed to class members based on a distribution method approved by the Competition Appeal tribunal. Generally, disputes of this scale take a number of years to resolve.
Could the claim settle before trial?
The claim could settle at any point. Any settlement reached between Ad Tech Collective Action LLP and Google must first be approved by the Competition Appeal Tribunal and must be just and reasonable. If Ad Tech Collective Action settles the claim in exchange for a sum of money from Google, that sum of money will be distributed to class members.
You should have received an email from the Mr Arthur’s team informing you of the consolidation of Mr Arthur and Mr Pollack’s claims. To stay informed with Ad Tech Collective Action LLP’s consolidated claim and to receive further updates about the case, please register your interest using the form below.
Class Membership
Who is included in the claim and what does opt-in/opt-out mean?
If you are a UK publisher of a website or mobile app and received revenue from the sales of online display ads you could benefit from this claim against Google. The claim is primarily being brought on an ‘opt-out’ basis. This means that these publishers of websites and mobile apps will automatically be included in the class and potentially eligible for compensation in due course if (1) the Competition Appeal Tribunal gives permission for this case to proceed and (2) you do not actively opt out of the claim. The ‘opt-out’ procedure is often used in class actions. In this case, it simply means that you’ll automatically be included in this claim if you are an affected publisher, unless you state you’d prefer not to be involved, and opt-out. Should you want to opt-out, you will not need to let us know until we are given permission to proceed by the Competition Appeal Tribunal. More details about this process will be provided once the claim has been given permission to proceed. You will be a member of this opt-out class (i.e. a “publisher”) if at any time between 1 January 2014 and 30 November 2022, you were a UK-domiciled person or business that published content on a website or mobile app containing ad units and received revenue from the sale of ads displayed on your website or mobile app. If you meet these criteria, you will only be excluded from the class if you fall into one of the following categories:
- Officers, directors or employees of Google, their subsidiaries and any entity in which they have a controlling interest;
- All members of Ad Tech Collective Action LLP’s and Google’s respective legal teams and all experts and professional advisors instructed and retained by them, and all funders or insurers involved in connection with the claim;
- All members of the Competition Appeal Tribunal assigned to these proceedings, their parents, their spouses or civil partners or any persons with whom they cohabit, and their children.
- Any judge involved in any appeal in the claim, and their parents, their spouse or civil partner or any person with whom they cohabit, and their children;
- Any deceased person; and
- Any registered corporate entity or other registered entity with legal personality which has been struck off or dissolved more than 6 years prior to the claim being given permission to proceed by the Competition Appeal Tribunal.
In addition to the main ‘opt-out’ class, Ad Tech Collective Action LLP will also represent an ‘opt-in’ class of “publisher partners” (such as resellers) who, at any time between 1 January 2014 and 30 November 2022, sold space for adverts on a website or mobile app on behalf of a UK domiciled publisher. This class is subject to the same exclusions as listed above.
If you meet the criteria for a “publisher partner” you can also benefit from the claim against Google, but you will not automatically be included in the class. As this is an ‘opt-in’ class, you will have to let us know should you want to be included in the claim. There is nothing you need to do at the moment. Register your interest below if you want to stay updated about the claim and more details will be provided about the ‘opt-in’ process once the claim has been given permission to proceed by the Competition Appeal Tribunal.
You do not need to pay anything for this claim. This is a funded claim which means that you will not need to pay for any legal fees or other costs of the legal proceedings to be included in this claim and instead a third party is paying for these costs.
The costs of bringing the claim are covered by funds and managed accounts that are ultimately managed by affiliates of Fortress Investment Group LLC. Fortress is a renowned litigation financier which provides litigation funding to enable the pursuit and successful recovery of damages from legal claims.
You will also not be at risk of having to pay for Google’s legal costs should the claim not succeed, as Ad Tech Collective Action LLP has obtained ‘after the event’ insurance to cover any adverse costs risk.
How much money should I expect to receive and when?
Compensation will be for loss of revenue as a result of Google’s anti-competitive conduct. Our experts estimate that the value of the claim is up to £13.6 billion. The precise value of the claim will become known once our experts are able to analyse data which Google will be obliged to provide at a later stage of the claim.
Affected publishers and publisher partners will be entitled to a share of compensation, but please note that recovery is not guaranteed. Should Ad Tech Collective Action LLP be certified to act as the class representative, it will need to prove its case at trial unless the case settles.
It could take a few years for the claim to reach a resolution. It may be that the claim will settle without having to go to trial in which case compensation could be available sooner.
Can I talk publicly about the case, to my friends and family, or on social media?
Yes, you can. We encourage you to discuss the case with colleagues, friends and family, as well as sharing updates on social media.
Ad Tech Collective Action LLP is the proposed class representative – a limited liability partnership that has been incorporated to manage the claim against Google. The members of the partnership are Claudio Pollack, Charles Arthur and Kate Wellington. Claudio Pollack has spent more than 10 years in Director-level roles at Ofcom and is experienced in competition, consumer, and small business matters. Charles Arthur has been a leading technology and science journalist and editor for more than 30 years, during which he has written for various national publications, including The Guardian, The Daily Telegraph, and The Independent. Kate Wellington is a lawyer by background (including in competition litigation matters) and is CEO of the Costs Lawyers Standards Board. Kate also led the campaigning and policy arm of the legal team during her time at Which?.
Claudio, Charles, and Kate are championing the cause for UK publishers of websites or mobile apps, who should have earned more from their ad sales since 1st January 2014.
Humphries Kerstetter LLP, Hausfeld & Co. LLP, and Geradin Partners are specialist law firms who are working together with Ad Tech Collective Action LLP to bring this
What has happened?
In 2021, Google was fined by the French Competition Authority for abusing its dominant position in relation to ad tech services. It’s possible that all UK-based publishers (and if applicable, their publisher partners) that received revenue from the sale of online display ads since 1st January 2014 have suffered financial loss by Google too.
Who is involved?
Our team is made up of expert competition lawyers, litigators and economists, with Ad Tech Collective Action LLP as the proposed class representative (a partnership with Claudio Pollack, Charles Arthur and Kate Wellington as members with responsibility for managing the claim). The claim is being fully funded so if you own a website or mobile app which sells (or has sold) space for digital ads or if you publish online content on a website or mobile app containing ad units, you won’t have to cover any costs. This is also an “opt-out” claim for publishers (you might think of a publisher as the owner of a website or mobile app), so you don’t need to proactively do anything to make sure you’re involved, except if you are a publisher partner, in which case you will have to opt-in. We welcome all expressions of support if you own a website or mobile app.
What is ad tech?
ad tech is the technology powering the online ads that billions of consumers see in their everyday lives, be it on a desktop computer, tablet or smartphone. Digital advertising has experienced spectacular growth, exceeding $490 billion in 2021, so it’s no surprise that selling digital ads has become a key source of revenue for publishers of online content.
Who’s the class representative?
Ad Tech Collective Action LLP is the proposed class representative – a limited liability partnership that has been incorporated to manage the claim against Google. The members of the partnership are Claudio Pollack, Charles Arthur, and Kate Wellington.
Claudio Pollack has spent more than 10 years in Director level roles at Ofcom, he’s experienced in competition, consumer, and small business matters. Charles Arthur has been a leading technology and science journalist and editor for more than 30 years – and during that time, he has written for various national publications, including The Guardian, The Daily Telegraph, and The Independent. Kate Wellington is a lawyer by background (including in competition litigation matters) and runs the Costs Lawyer Standards Board. Kate also led the campaigning and policy arm of the legal team during her time at Which?
Claudio, Charles, and Kate are championing the cause for UK website owners, or mobile apps, who should have earned more from their ad sales since 1st January 2014.
What has Google done?
Google is the largest and most important ad tech vendor at every step of the value chain, with market shares as high as 90-100%. But after a complaint by news publishers in 2019, the French Competition Authority established that Google had infringed Article 102 of the Treaty on the Functioning of European Union (TFEU). Google had been using practices which ensured that its ad server favoured its own ad exchange, AdX, and vice versa, as well as ensuring that its demand-side platforms, Google Ads and DV360, also favoured AdX.
Why is it wrong?
This is a clear breach of Article 102, which prohibits undertakings in this dominant position from abusing their advantage. According to the decision, Google’s conduct inflicted considerable financial losses to publishers, by depressing their revenue in two different ways.
1.Google’s actions deprived publishers of the ability to benefit from undistorted competition between ad exchanges, which could have exerted pressure on Google to lower its very high AdX fees, at around 20%.
2.Google’s conduct also limited competition and prevented publishers from achieving higher prices for their impressions. Google’s ad tech practices are also under scrutiny in lawsuits and investigations around the world, including ongoing investigations by the UK Competition and Markets Authority, the European Commission and the Australian Competition & Consumer Commission, and lawsuits brought by a coalition of US State Attorneys General and by the US Department of Justice respectively
my findings pro google
If Google loses a collective claim (e.g., a class action alleging anti-competitive behavior) and the conduct in question is actually lawful or pro-competitive, then the court would indeed be committing a Type I error (false positive). Here’s why:
Definition of a Type I Error in Competition Law:
A Type I error occurs when a court wrongly condemns lawful behavior as anti-competitive. In the context of competition law, this may:
- Discourage innovation or efficiency-enhancing conduct.
- Lead to over-deterrence, where firms avoid certain legitimate practices for fear of legal repercussions.
Hypothetical Scenario:
In the Google case, if:
- The court finds Google guilty of anti-competitive practices, but in reality, Google’s actions had pro-competitive or neutral effects, then it would be a Type I error.
- This error could result in excessive regulatory intervention, imposing unwarranted restrictions on Google’s business operations, and sending a chilling effect to other firms in the market.
Contrast with a Type II Error:
If the court were to dismiss the claim against Google, but Google’s conduct was indeed harmful to competition (e.g., abusive dominance or exclusionary practices), it would be a Type II error (false negative). This would allow anti-competitive behavior to persist, harming market competition and consumer welfare
1. Role of the Intervener
- An intervener in legal proceedings generally provides expertise or additional legal perspectives that can assist the court. Your annotations emphasize the limited role of interveners (e.g., they must have a direct interest in the case).
- Highlight: A court may allow an intervener to submit written or oral submissions, but their involvement is closely tied to the issues already raised.
2. Procedural Requirements for Interveners
- Drafting and Filing: The Supreme Court Rules and Civil Procedure Rules often stipulate formatting, length (e.g., not exceeding 20 pages), and timelines for filing submissions.
- Bundle Preparation: Effective communication with other parties ensures the core bundle contains relevant material. Late intervention requires a standalone supplementary bundle to avoid disruption.
3. Strategic Considerations for Written Submissions
- Clarity and Relevance: Submissions should be clear, concise, and targeted to address only the issues that justify intervention. Courts are wary of introducing new evidence or expanding the scope unnecessarily.
- Key Questions for Drafting:
- What is the relevant law?
- How does that law apply to the case?
- What specific arguments or precedents can reinforce your position?
4. Managing Costs and Pro Bono Representation
- Your notes emphasize that the intervener bears its own costs, but as seen in your example from Green Action, the court often takes into account the intervener’s limited resources, especially if they act pro bono.
5. Draft Orders and Supporting Documentation
- The sample draft orders and application forms (e.g., Form N244) provided in your documents are critical. These should always be filled precisely to meet court expectations, and your annotations rightly underline the importance of including a statement of truth.
6. Comparative and Foreign Legal Materials
- When referencing foreign judgments or comparative law, permission may be required to attach supplementary submissions. This strategy should be carefully planned to avoid procedural objections or costs penalties.
7. Structure of Written Submissions
- A strong submission typically follows this format:
- Introduction: Briefly describe the organization’s expertise and relevance to the case.
- Scope and Purpose: Define the specific legal or public interest issue being addressed.
- Key Legal Arguments: Present a systematic analysis of the law and its application to the case.
- Conclusion: State the remedy sought or the court’s expected action.
Additional Notes:
- Justice Precedents Database: As highlighted in your notes, the Justice website maintains a database of useful precedents for interventions. This is an excellent resource when drafting model submissions or identifying case
Key Strengths of Google as an Intervener:
- Expertise in Technology and Data Regulation:
- Google’s extensive experience in global data governance, privacy laws, and technological standards could uniquely assist the court in understanding complex data-driven markets.
- Highlighting prior successful interventions, such as insights on competition in digital markets, would show its established credibility.
- Addressing Public Interest and Broader Impact:
- As a major stakeholder in digital markets, Google’s intervention could shed light on how the court’s decisions might influence broader innovation and access to technology, aligning with public interest considerations.
- Clarifying Legal Issues with Market Definitions:
- The materials emphasize the importance of defining “relevant markets” in competition cases. Google’s perspective could clarify how digital markets operate differently from traditional ones, influencing how dominance is assessed.
- Comparative Law and International Precedents:
- Drawing on precedents and legal practices from other jurisdictions where Google has faced similar challenges could provide the court with valuable comparative insights.
- Efficiency of the Intervention:
- Courts prefer interveners who contribute without delaying proceedings. Google could propose time-limited submissions or brief oral arguments, ensuring efficiency while emphasizing its points.
- Neutral Presentation:
- By framing its input as impartial and focusing on helping the court grasp economic and technical intricacies, Google can counter potential criticism of self-interest.
- Public Policy Arguments:
- Google’s arguments could stress how overregulation risks stifling innovation, harming not only businesses but also consumers and small enterprises reliant on digital platforms.
These arguments position Google as an asset to the court in addressing both the legal and practical implications of its rulings on digital markets. Let me know if you want detailed drafts of specific submissions!
To favor Google’s intervention or position in a competition-related matter, you can draw upon key arguments and insights:
1. Importance of Digital Markets and Gatekeepers
- The Digital Markets Act (DMA) acknowledges the role of “gatekeepers” like Google in fostering fairness and contestability in digital markets. While the DMA aims to regulate these platforms, it also recognizes their essential role in connecting business users and end-users. This suggests that interventions must balance regulation with the benefits provided by such platforms.
2. Contribution to Consumer and Market Efficiency
- Google’s services, like Google Shopping and Search, often improve efficiency by providing a platform for competition among businesses and a better consumer experience. These efficiencies could be argued to outweigh any potential restrictions on competition, aligning with Article 101(3) of the Treaty, which allows for exemptions where efficiencies pass on a “fair share” of benefits to consumers.
3. Precedents of Favorable Efficiency Claims
- In the context of competition law, efficiency claims have been accepted as defenses in various cases. If Google can demonstrate that its practices lead to cost efficiencies, such as through innovative algorithms or improved distribution of services, these benefits might justify its conduct.
4. Promoting Innovation and Economic Growth
- Google’s role in innovation is a critical factor. Competition law has increasingly recognized that restrictions on dominant firms should not impede their ability to innovate, especially when their innovations bring broader economic benefits.
5. Public Interest and Consumer Welfare
- Google’s interventions can be framed as supporting the broader public interest, such as ensuring access to digital services, enhancing productivity, and contributing to economic resilience during crises. Highlighting how Google’s services serve the public and maintain consumer welfare may align with public interest objectives.
6. Global Competition Context
- In light of global competition, Google can argue that stringent regulations might put it at a disadvantage against non-EU rivals, which could harm Europe’s competitive edge and digital sovereignty.
The search results reveal several relevant insights for shaping an intervention in competition law cases involving Google. Here are key points and potential strategies:
1. Digital Markets Act (DMA) and Google’s Obligations
The EU’s Digital Markets Act (DMA) imposes specific obligations on digital “gatekeepers,” including Google, to foster fairness and contestability in digital markets. Investigations into Google’s practices under the DMA include:
- Anti-steering practices in Google Play.
- Self-preferencing in Google Search (favoring services like Google Shopping and Google Flights).
2. Fines and Enforcement Actions Against Google
Google has faced substantial fines for anticompetitive practices:
- €2.42 billion for favoring its own Google Shopping service.
- €4.34 billion for imposing illegal restrictions on Android device manufacturers.
- €1.49 billion for restricting publishers from displaying rival search ads.
These fines demonstrate the European Commission’s focus on ensuring competition and mitigating abuse of dominance.
3. Abuse of Dominance and Counterfactual Analysis
The concept of “abuse of dominance” under Article 102 TFEU requires both:
- A structural element: a dominant position in the market.
- A behavioral element: conduct that excludes competitors by means other than competition on the merits.
For interventions, understanding the counterfactual scenario (how the market would function absent Google’s conduct) is crucial. For instance, Ad Tech LLP’s case against Google emphasizes the need to assess counterfactuals to prove abuse in the digital advertising market.
4. Google’s Anti-Competitive Practices in Ad Tech
Allegations include Google favoring its own ad tech services (publisher ad servers, SSPs, and DSPs) and harming competition. The class action highlights Google’s dominance and self-preferencing in ad tech, leading to billions in potential losses for publishers.
5. Potential Insights for Intervention
To maximize impact, your intervention can focus on:
- Market Analysis and Evidence: Provide concrete examples of how Google’s practices harm competition and consumers, drawing from its history of fines and ongoing investigations.
- Comparative and International Perspectives: Leverage findings from other jurisdictions, such as the French Competition Authority or the CMA, which have scrutinized similar conduct.
- Consumer and Market Impact: Quantify harm to consumer welfare and market contestability due to Google’s practices.
- Legal and Economic Expertise: Offer a detailed analysis of Google’s compliance (or non-compliance) with the DMA, Article 102 TFEU, and other applicable frameworks
I. Further Grounds to Strengthen Google’s Defense
1. Proportionality and Risk of Overregulation
- Argument: Remedies like forced unbundling or heavy behavioral restrictions may be disproportionate and create a precedent of overregulation, harming innovation.
- Support: Files emphasize how interventionist remedies could hinder efficiency and dynamic competition, leading to increased costs for publishers and reduced consumer choice. Highlight how regulation should balance intervention with market realities.
2. Limited Definition of Harm
- Argument: The claimants fail to provide robust evidence of actual consumer harm, focusing on theoretical or speculative impacts.
- Support: Use insights on procedural gaps in defining harm, emphasizing that speculative counterfactual scenarios (e.g., potential lower prices with increased competition) lack economic grounding.
3. Misdefined Market
- Argument: The ad tech market includes significant competitors like Amazon, Meta, and Microsoft, challenging claims of Google’s dominance.
- Support: Files show that claimants’ narrow definition of “open web display ads” misrepresents market dynamics. Highlight broader competition across integrated advertising ecosystems.
II. Justifications for COCOO’s Third-Party Intervention
1. Public Interest and Consumer Welfare
- Argument: COCOO brings a unique perspective on protecting consumer welfare and innovation in the UK ad tech market.
- Support: Files note that third-party interveners must provide a distinct contribution. Emphasize COCOO’s focus on balancing effective competition with economic growth and maintaining consumer benefits derived from Google’s ecosystem.
2. Representation of Broader Stakeholder Interests
- Argument: As a consumer and business association, COCOO represents the interests of smaller UK publishers, SMEs, and consumers reliant on Google’s services.
- Support: EU case law and procedural rules permit associations representing a collective interest to intervene, particularly when their members would individually have sufficient interest.
3. Economic and Policy Implications for the UK
- Argument: A negative outcome could deter foreign investment, disrupt the UK’s digital economy, and reduce its global competitiveness.
- Support: Emphasize the potential chilling effect of overly interventionist antitrust policies on digital markets, as outlined in the files.
4. Procedural and Substantive Compliance
- Argument: COCOO satisfies procedural requirements for interveners, including demonstrating a legitimate interest in the case and its outcomes.
- Support: Refer to recital 27(3) of Regulation 1/2003 and relevant case law affirming the right of business associations to intervene when they represent broader economic and social concerns.
III. Proposed Alternative Remedies
1. Transparency and Behavioral Remedies
- Proposal: Increased transparency in Google’s pricing and auction mechanisms, monitored by third-party auditors.
- Justification: Proportionate remedies align with EU and UK competition law, addressing concerns without harming market efficiencies.
2. Commitments over Structural Remedies
- Proposal: Google could offer binding commitments to ensure fair access to ad tech tools and prevent foreclosure.
- Justification: Files underscore that structural remedies like unbundling risk undermining Google’s efficiency-enhancing integration, while commitments can address concerns more flexibly.
IV. Insights on Procedural Rights
1. Strengthening Procedural Position
- Insight: The files highlight that third-party interveners can strengthen their procedural rights by demonstrating how their legitimate interests are affected.
- Action Plan: COCOO should focus on how its intervention will provide a balanced view on remedies, emphasizing impacts on small publishers and consumers.
2. Strategic Timing
- Insight: Applications to intervene must be filed before the final determination of the case.
- Action Plan: Ensure COCOO’s application is timely, clearly outlining the association’s distinct and valuable contribution to the proceedings.
These arguments
I’ll carefully review all relevant content from the files and notes uploaded thus far to identify specific points or arguments that could strengthen our position for being accepted as a third-party intervener in favor of Google. I will provide a comprehensive breakdown and tailored insights shortly.
Insights for Third-Party Intervention in Favor of Google
Based on a thorough review of all uploaded files and additional materials, here are key insights to support COCOO’s application as a third-party intervener in favor of Google in the UK Court of Appeal case:
1. Novel Perspective: Public Interest in Preserving Innovation
- Insight: The intervention can highlight the risk that overregulation or improperly defined market dominance could stifle innovation, which is crucial for a dynamic and competitive ad tech sector.
- Argument: Emphasize how Google’s technological advancements and integration in the ad tech ecosystem have benefitted UK publishers, advertisers, and ultimately consumers by providing more efficient services and lowering costs. Remedies should not harm these public benefits.
2. Data Economy and Consumer Choice
- Insight: Data is a non-rival resource, and efficient use of it is vital for the UK’s position in the global digital economy.
- Argument: Google’s practices allow for effective competition in a data-driven market. Highlight that interventionist remedies may inadvertently increase costs for smaller UK publishers and businesses, reduce consumer choice, and disrupt the data economy.
3. Two-Sided Market Dynamics
- Insight: Google operates in a two-sided market, balancing the interests of publishers and advertisers.
- Argument: Courts and regulators must carefully consider the positive externalities of Google’s integrated ad tech model, which reduces inefficiencies and provides tools that small publishers cannot afford to build independently. Fragmentation risks harming these interlinked parties.
4. Potential Harm to Small Businesses
- Insight: Many UK small and medium-sized enterprises (SMEs) rely on Google’s ad tech for affordable and targeted advertising.
- Argument: Highlight the unintended consequence of reducing SMEs’ ability to compete effectively if remedies limit Google’s offerings or increase compliance costs. This would negatively impact the broader UK economy.
5. Market Definition and Competitive Landscape
- Insight: The definition of the “relevant market” is critical and often debated.
- Argument: Argue that the market is broader than just open web display advertising and includes competition from other tech giants (e.g., Meta, Amazon, Microsoft). Misdefining the market could lead to inaccurate assessments of market power.
6. Consumer Benefits of Economies of Scale and Scope
- Insight: Google’s scale enables cost-effective innovations and consumer benefits.
- Argument: The integrated stack has fostered a more competitive environment by driving down advertising prices and improving quality. Remedies that disintegrate this could lead to higher prices for UK consumers.
7. Legal Precedents and Procedural Justice
- Insight: Reliance on prior cases like Ohio v. American Express (emphasizing net market effects) can strengthen Google’s defense.
- Argument: Interveners can shed light on relevant UK/EU legal principles that stress balancing anti-competitive concerns with consumer and market benefits.
8. Impact on UK Digital Competitiveness
- Insight: A decision against Google may hinder the UK’s global standing in the digital economy.
- Argument: Stress that an unfavorable judgment could deter investment and innovation in the UK tech sector, a critical growth area post-Brexit.
Practical Steps for Intervention
- Unique Contribution: COCOO should emphasize it represents interests beyond Google’s – such as protecting SMEs, safeguarding innovation, and fostering a balanced digital economy.
- Propose Balanced Remedies: Suggest alternative, less intrusive remedies (e.g., commitments to increased transparency) that maintain market efficiency while addressing competition
New Insights to Strengthen Google’s Defense from the Final File Review
Here are further insights derived from the uploaded documents to reinforce Google’s defense in the ad tech case:
1. Competition Policy Balances Efficiency Over Perfect Competition
- Insight: The document emphasizes that UK competition law aims to protect effective competition (promoting economic efficiency) rather than enforcing perfect competition, which lacks innovation incentives.
- Defense: Google’s vertical integration enhances both allocative and productive efficiency, providing better services at lower costs. Remedies that fragment the ecosystem could move the market toward inefficiency and harm consumer welfare.
2. Dynamic Efficiency and Innovation Incentives
- Insight: Perfect competition stifles dynamic efficiency by discouraging investment in R&D and innovative product differentiation.
- Defense: Argue that Google’s dominant position has driven dynamic efficiency, facilitating the development of innovative tools for publishers and advertisers. Remedying this could slow innovation, negatively impacting the UK’s competitive position in global digital markets.
3. Economic Welfare Gains from Vertical Integration
- Insight: Vertical integration often generates economic welfare (EW) gains by reducing transaction costs and preventing duplication of effort.
- Defense: Highlight how Google’s integrated ad tech stack improves market functioning and reduces inefficiencies, benefiting publishers, advertisers, and consumers alike. Fragmentation risks higher costs and inefficiencies.
4. Incompatibility of Static Models with Digital Markets
- Insight: Static models of competition fail to capture the complexities and network effects of digital markets.
- Defense: Critique the claimants’ reliance on static counterfactuals, arguing they overlook network effects and fail to account for the interconnected nature of digital services provided by Google.
5. Role of Economies of Scale and Scope
- Insight: Economies of scale (cost reduction through increased production) and scope (efficiency from offering multiple related services) are critical to market efficiency.
- Defense: Emphasize that Google’s integration allows for economies of scale and scope, enabling smaller publishers and advertisers to access sophisticated tools they couldn’t afford independently
New Insights to Strengthen Google’s Defense
After analyzing all the uploaded files, here are refined insights to bolster Google’s defense against claims of anti-competitive behavior in the ad tech market:
1. Differentiation from Cartel Behavior
- Insight: Cartel arrangements (e.g., price-fixing, bid-rigging, or market sharing) involve collusive agreements between competitors to distort competition.
- Defense: Emphasize that Google’s practices, such as unified auction models, are pro-competitive and aimed at improving market efficiency rather than suppressing competition. No evidence suggests collusion or coordinated behavior with rivals.
2. Dynamic Efficiency and Innovation in Digital Markets
- Insight: Governments often tolerate certain vertical or integrated practices when they enhance dynamic efficiency and promote innovation.
- Defense: Highlight Google’s investment in innovation, particularly in AI-powered ad tools, which benefits advertisers, publishers, and consumers. Remedying integration could stifle innovation, undermining the UK’s digital economy.
3. Consumer Welfare Beyond Price Effects
- Insight: The consumer welfare test extends beyond price considerations to encompass innovation, quality, and service availability.
- Defense: Demonstrate that Google’s practices have resulted in free services for consumers (e.g., Google Search, Gmail), high-quality ad placements, and better targeting, all of which improve consumer experiences without increasing costs.
4. Market Definition and Contestability
- Insight: Market power depends on the definition of the relevant market. The hypothetical monopolist test includes supply-side substitution.
- Defense: Argue that the claimants’ narrow market definition ignores significant competition from Meta, Amazon, and Microsoft. Present evidence of low entry barriers and vibrant competition in the broader ad tech market.
5. Public Interest in Digital Sovereignty and Global Competitiveness
- Insight: Governments prioritize public interest considerations, such as maintaining digital sovereignty and ensuring global competitiveness.
- Defense: Highlight how overregulation could undermine the UK’s ability to compete in global digital markets, discouraging foreign investment and technological advancements.
6. Efficient Use of Data as a Competitive Advantage
- Insight: Data-driven platforms enhance advertiser ROI and publisher revenues by optimizing ad targeting.
- Defense: Stress that Google’s data usage creates a more competitive ecosystem by reducing waste and improving the relevance of ad placements. Remedies that restrict data integration could increase costs and reduce effectiveness.
7. Alternatives to Structural Remedies
- Insight: Behavioral remedies, such as increased transparency and third-party audits, can address concerns without disrupting market efficiencies.
- Defense: Propose proportionate remedies that preserve Google’s ability to innovate while improving accountability, avoiding the risks of market fragmentation.
8. Economic Impact of Overregulation
- Insight: Overregulation can reduce allocative efficiency and discourage investment in the tech sector.
- Defense: Argue that remedies requiring unbundling would impose high compliance costs, potentially driving innovation and capital to less regulated jurisdictions, harming the UK economy.
9. Precedents Favoring Pro-Competitive Justifications
- Insight: Precedents, such as Microsoft’s bundling case, suggest that integration isn’t inherently anti-competitive unless consumer harm is proven.
- Defense: Point out that Google’s vertical integration is justified by efficiencies and cost savings, with no demonstrable consumer harm.
10. Misalignment with Global Competition Policies
- Insight: Divergent regulatory approaches could result in policy fragmentation.
- Defense: Emphasize the need for the UK’s competition policies to align with international standards to avoid disadvantaging its tech industry
New Insights to Strengthen Google’s Defense
Based on the comprehensive review of the attached files and our earlier discussions, here are key insights and strategies that can bolster Google’s defense:
1. Economic Welfare and Consumer Benefits (Motta’s Total Welfare Standard)
- Insight: Motta highlights that competition policy should aim to maximize total welfare (sum of consumer and producer surplus), not just consumer welfare. Google’s integration provides significant efficiency gains, lowering costs for advertisers and benefiting consumers indirectly by subsidizing free services (e.g., Search, Maps).
- Defense: Argue that unbundling Google’s ad tech stack may reduce total welfare by increasing inefficiencies, disrupting cross-subsidies, and raising costs for businesses and consumers.
2. Vertical Integration Enhances Efficiency
- Insight: Vertical integration often eliminates the “double marginalization” problem and reduces transaction costs.
- Defense: Demonstrate how Google’s integration of demand-side platforms (DSPs), supply-side platforms (SSPs), and ad exchanges increases market efficiency, enhances service quality, and drives innovation, which benefits the entire ecosystem.
3. Buyer Power as a Constraint on Market Power
- Insight: Motta discusses how buyer power can limit a seller’s market power, particularly in concentrated buyer markets.
- Defense: Highlight the bargaining power of major advertisers (e.g., large retailers and media conglomerates) who can switch to alternative ad platforms, constraining Google’s ability to exercise market power.
4. Counterfactuals and Ineffective Remedies
- Insight: Claims of harm rely on speculative counterfactual scenarios that assume higher competition and lower prices without Google’s practices.
- Defense: Critique the methodological flaws in the claimants’ counterfactuals, showing that unbundling could lead to fragmented systems, higher prices, and reduced market efficiency, contrary to the goals of competition policy.
5. Low Barriers to Entry in Ad Tech
- Insight: Motta emphasizes that ease of entry reduces concerns about market power.
- Defense: Present evidence of low barriers to entry in digital advertising, including the presence of alternative platforms (e.g., Amazon, Meta), which maintain competitive pressure on Google.
6. Pro-Competitive Effects of Auction Mechanisms
- Insight: Google’s unified auctions and transparent pricing mechanisms improve efficiency and reduce information asymmetry.
- Defense: Argue that these mechanisms have democratized access to sophisticated advertising tools for smaller players, fostering competition among advertisers and benefiting consumers.
7. Inapplicability of Predatory Pricing Frameworks
- Insight: Motta notes that accusations of predatory pricing require proof of prices below average variable costs and intent to exclude rivals.
- Defense: Show that Google’s pricing strategies are above cost and driven by competitive efficiency, rather than exclusionary intent.
8. Network Effects and Innovation
- Insight: Network effects in digital markets enhance innovation by attracting more advertisers and publishers, creating a self-reinforcing cycle.
- Defense: Highlight that Google’s dominance stems from its investment in innovative technologies, benefiting the ad tech market through better-targeted ads and reduced costs.
9. Misalignment with Broader Economic Goals
- Insight: Excessive intervention risks undermining broader industrial and trade policy goals.
- Defense: Stress that the UK’s economy relies on a strong digital sector; overregulation could deter investment and stifle innovation, harming the UK’s global competitiveness.
10. Alternative Remedies as Proportionate Solutions
- Insight: Behavioral remedies (e.g., increased transparency, third-party audits) can address competition concerns without disrupting efficiencies.
- Defense: Propose alternative, proportionate remedies that preserve Google’s ability to deliver integrated services while addressing the Tribunal’s concerns.
Impacts on the UK Markets, Competition Law, Policies, and Economy if Google Loses
If Google loses this case and severe remedies, such as unbundling or behavioral restrictions, are imposed, the UK markets, competition law, and economy would likely experience significant changes. Here’s how:
1. Impact on the UK Digital Advertising Market
Market Fragmentation
- Effect: Structural remedies like unbundling could lead to a fragmented market where publishers and advertisers must rely on multiple, less integrated platforms.
- Consequence: Increased complexity and higher operational costs for UK businesses, disproportionately affecting small and medium-sized enterprises (SMEs) that lack resources to manage fragmented ad tech tools.
Loss of Efficiency and Innovation
- Effect: Google’s integrated ad tech stack currently drives efficiency and innovation in ad placement and targeting.
- Consequence: UK advertisers and publishers may face slower technological advancements, reducing their ability to compete globally.
2. Impact on UK Publishers
Reduced Revenue for Small Publishers
- Effect: Small UK publishers depend on Google’s tools to maximize their advertising revenue.
- Consequence: Loss of Google’s integrated services could reduce publisher revenues, harming content diversity and the financial viability of niche or regional publishers.
Increased Dependence on Third Parties
- Effect: Without Google’s integration, publishers would need to contract with multiple intermediaries.
- Consequence: This could lead to increased dependence on non-UK service providers, weakening the UK ad tech sector’s competitiveness.
3. Impact on Competition Law and Policy in the UK
Overregulation Concerns
- Effect: A victory for the claimants could set a precedent for stricter regulation of digital platforms, potentially discouraging innovation and investment in the UK tech sector.
- Consequence: UK competition law risks becoming overly interventionist, deviating from its historically balanced approach of fostering competition without stifling efficiency.
Increased Litigation and Uncertainty
- Effect: A ruling against Google may embolden similar collective actions against other large tech companies in the UK.
- Consequence: This could create a litigation-heavy environment, deterring global firms from operating in the UK due to heightened legal risks.
4. Impact on the UK Economy
Reduced Global Competitiveness
- Effect: The UK ad tech market is a key driver of digital innovation and a hub for international advertising.
- Consequence: Overregulation or market fragmentation could reduce the UK’s global attractiveness as a center for ad tech, leading to lost investments and slower economic growth.
Economic Burden on Businesses
- Effect: SMEs and startups, which rely heavily on affordable and accessible digital advertising, may face increased costs and reduced efficiency.
- Consequence: This could stifle entrepreneurship and innovation in the UK, hindering broader economic development.
5. Potential Policy Shifts
Shift Toward More Interventionist Policies
- Effect: A victory for the claimants could embolden the Competition and Markets Authority (CMA) to adopt a more interventionist stance, seeking remedies that prioritize market structure over efficiency.
- Consequence: Such a shift may lead to overreach in regulating digital platforms, potentially misaligning UK competition policy with global norms.
Impact on Consumer Welfare Standards
- Effect: Competition law in the UK traditionally focuses on consumer welfare, balancing innovation and fair competition.
- Consequence: Remedies that reduce efficiency and increase costs for businesses could harm consumers through higher prices and fewer choices.
Conclusion
If Google loses, the UK could face significant challenges in maintaining its global leadership in digital advertising and innovation. A fragmented ad tech market, reduced efficiency, and increased regulatory uncertainty could harm businesses, consumers, and the economy.
if Google Loses the Ad Tech Case
Based on the review of all uploaded files and our conversation, here’s a list of positive externalities associated with Google’s ad tech ecosystem that could be negatively impacted if the claimants prevail, particularly if structural remedies like unbundling are imposed:
1. Lower Costs and Increased Access for Small Publishers
- Current Benefit: Google’s integrated ad tech stack reduces the complexity and cost of accessing ad services for small publishers. It provides tools like Ad Manager, which bundle multiple services, minimizing the need for smaller players to contract with multiple intermediaries.
- Potential Loss: Without Google’s integration, small publishers may face higher costs and greater technical barriers, reducing their ability to compete effectively.
2. Efficiency Gains from Vertical Integration
- Current Benefit: Google’s vertical integration reduces transaction costs and speeds up real-time bidding (RTB) processes, benefiting both publishers and advertisers by ensuring quick, efficient ad placements.
- Potential Loss: Fragmenting Google’s stack could reintroduce inefficiencies, such as higher latency in auctions and increased transaction costs, negatively affecting market participants.
3. Innovative Ad Formats and Targeting Capabilities
- Current Benefit: Google’s advanced data-driven ad targeting improves ad relevance, leading to higher click-through rates and better return on investment for advertisers. This innovation is particularly beneficial for niche advertisers and publishers.
- Potential Loss: Dismantling Google’s stack may slow innovation in ad targeting and diminish the availability of sophisticated tools for smaller publishers and advertisers.
4. Consumer Privacy Protections
- Current Benefit: Google’s centralized system ensures that data sharing is kept within a controlled environment, reducing risks associated with third-party data handling.
- Potential Loss: Forced unbundling could increase reliance on multiple third-party providers, heightening the risk of data breaches and undermining consumer privacy.
5. Cross-Subsidization of Free Consumer Services
- Current Benefit: Revenue from Google’s ad business subsidizes free services like Google Search, Gmail, YouTube, and Maps, which deliver immense value to consumers.
- Potential Loss: Reduced ad revenues could limit Google’s ability to maintain and improve these free services, negatively impacting consumers globally.
6. Increased Competition for Traditional Media
- Current Benefit: Google’s ad tech solutions enable online publishers to compete effectively with traditional media by monetizing digital content.
- Potential Loss: Higher operational costs or reduced access to Google’s tools could weaken online publishers, reducing competition and diversity in the media landscape.
7. Standardization and Industry Best Practices
- Current Benefit: Google’s dominant position has set benchmarks for transparency, efficiency, and technical standards in the ad tech ecosystem.
- Potential Loss: Fragmentation of Google’s stack could lead to inconsistent standards, reducing interoperability and creating confusion in the ad tech market.
8. Global Competitiveness of the UK Ad Tech Sector
- Current Benefit: Google’s presence strengthens the UK’s digital economy by attracting advertisers and facilitating cross-border transactions.
- Potential Loss: Overregulation or forced divestitures could discourage innovation and investment, putting the UK at a competitive disadvantage globally.
9. Support for Niche and Specialized Content
- Current Benefit: Google’s ad tools allow niche publishers (e.g., blogs, specialized news sites) to monetize their content effectively, promoting content diversity.
- Potential Loss: Without Google’s support, these smaller publishers may struggle to sustain operations, leading to reduced content diversity.
10. Reduction in Fraud and Malpractice in Digital Advertising
- Current Benefit: Google invests heavily in anti-fraud mechanisms to ensure the integrity of its ad platform, protecting both advertisers and publishers from invalid traffic and fraudulent activities.
- Potential Loss: A fragmented ecosystem could weaken these protections, increasing the prevalence of ad fraud and reducing trust in digital advertising.
Conclusion
The above externalities highlight the broader economic, social, and technological benefits of Google’s integrated ad tech ecosystem. These positive outcomes could be jeopardized by structural remedies, adversely affecting not only Google but the entire digital economy. COCOO could leverage these points to advocate for proportionate, innovation-friendly remedies.
Remedies Sought by the Claimants
Based on the claim form and other documents, the Ad Tech Collective Action LLP is seeking the following remedies:
- Damages:
- Compensation for loss and damage allegedly suffered by publishers and publisher partners due to Google’s anticompetitive conduct in the ad tech sector.
- The claim estimates losses between £4.8 billion and £13.2 billion, depending on the methodology and inclusion of umbrella effects.
- Interest:
- Compound interest on damages as part of the compensation, or alternatively, simple interest under applicable law.
- Injunctive Relief:
- Structural or behavioral remedies to prevent Google from continuing the alleged abusive practices, such as:
- Unbundling Google’s ad tech stack (e.g., separating AdX from DFP).
- Imposing restrictions on self-preferencing practices.
- Requiring greater transparency in auction processes.
- Structural or behavioral remedies to prevent Google from continuing the alleged abusive practices, such as:
Alternative Remedies Favorable to Google
To mitigate the risks associated with severe remedies, COCOO can propose alternative, less intrusive remedies that address the competition concerns while preserving Google’s operational efficiencies. These include:
1. Increased Transparency Measures
- Proposal: Implement mandatory reporting on auction processes, including data on bids, winning prices, and how decisions are made within Google’s ad stack.
- Advantage: Transparency reduces perceptions of unfairness while maintaining Google’s integrated systems.
2. Third-Party Audits and Monitoring
- Proposal: Allow periodic third-party audits of Google’s adtech operations to ensure compliance with competition laws.
- Advantage: Demonstrates accountability and fairness without requiring operational separation.
3. Non-Discriminatory Access to Ad Tools
- Proposal: Offer non-Google SSPs and DSPs fair and non-discriminatory access to Google’s ad tools under clearly defined conditions.
- Advantage: Addresses concerns about foreclosure without dismantling Google’s vertical integration.
4. Commitments on Pricing and Data Usage
- Proposal: Commit to standardized and transparent pricing for access to Google’s ad services and ensure user data is used solely to enhance ad targeting within agreed parameters.
- Advantage: Mitigates concerns over data-driven advantages while preserving Google’s competitive edge.
5. Code of Conduct for Ad Tech Markets
- Proposal: Develop and adhere to a code of conduct, co-created with industry stakeholders, to promote fair competition and best practices in the ad tech market.
- Advantage: Promotes industry-wide standards while avoiding stringent regulatory intervention.
6. Separation of Auction Data and Business Data
- Proposal: Introduce internal firewalls to separate data used for auction processes from data used for Google’s commercial strategies.
- Advantage: Addresses data-related competition concerns without requiring a full unbundling.
7. Behavioral Remedies Over Structural Remedies
- Proposal: Commit to behavioral changes, such as refraining from specific types of self-preferencing, instead of structural remedies like unbundling.
- Advantage: Allows Google to maintain its business model while addressing competitive concerns in specific areas.
Summary of Alternative Remedies
These alternatives aim to balance the Tribunal’s competition objectives with Google’s operational efficiency, innovation potential, and market presence. By framing these proposals as constructive solutions, COCOO can position Google as a cooperative actor committed to fair competition while safeguarding its integrated ecosystem. Let me know if you need detailed drafting of these proposals.
New Grounds to Support Google’s Defense
Based on the claims outlined in the Summary of Collective Proceedings Claim Form and the related files, here are new grounds and perspectives COCOO can advance in favor of Google. These are distinct from Google’s current arguments and tailored to strengthen its position.
1. Economic Benefits of Vertical Integration
- Argument: Highlight the economic efficiencies derived from Google’s vertically integrated ad tech stack, which reduces transaction costs and streamlines the ad buying process for publishers and advertisers.
- Insight: Without this integration, the ad tech ecosystem would be more fragmented, increasing operational costs and complexity, particularly for small publishers.
2. Mischaracterization of Self-Preferencing
- Argument: Challenge the framing of “self-preferencing” as inherently anti-competitive. Google’s preferential treatment of its own platforms reflects industry norms and ensures compatibility and innovation.
- Insight: Self-preferencing is a common practice in vertically integrated businesses (e.g., Apple App Store) and often leads to improved services and better outcomes for users.
3. Lack of Sufficient Counterfactual Analysis
- Argument: The Claimants fail to provide a robust counterfactual scenario, making their claims speculative. They do not adequately demonstrate what competition would look like without Google’s alleged abuses.
- Insight: A lack of clear counterfactuals undermines the credibility of the alleged losses and hinders the Tribunal’s ability to assess damages accurately.
4. Consumer and Small Business Benefits
- Argument: Stress how Google’s ad tech solutions benefit consumers and small businesses by offering affordable, effective advertising tools.
- Insight: Reducing Google’s role could increase costs for small publishers and advertisers, limiting their ability to compete in a digital-first economy# 5. Market Evolution and Entry Barriers
- Argument: Emphasize the dynamic nature of the ad tech market, where barriers to entry are increasingly low due to cloud-based solutions and open-source technologies.
- Insight: This evolving landscape ensures constant competitive pressure, negating the claim of Google’s entrenched dominance【60†source# 6. Regulatory Fragmentation Risks
- Argument: Warn of the risks posed by inconsistent regulatory approaches between jurisdictions, which could create legal uncertainty and inefficiencies in global digital markets.
- Insight: Highlight that Google’s practices comply with standards in other major jurisdictions, showing the need for regulatory alignment【59†source# 7. Role of Data in Fostering Innovation
- Argument: Emphasize the role of data aggregation in driving AI-based innovation, improving ad targeting, and enhancing the user experience.
- Insight: Restricting Google’s use of data could hinder technological advancements and disproportionately affect smaller businesses reliant on data-driven advertising【60†sourceufficient Evidence of Damages**
- Argument: The damages claims rely heavily on speculative methodologies, such as the “gross price effect,” which lack empirical backing.
- Insight: Demonstrating the unreliability of these methods weakens the foundation of the collective proceedings claim【58†source】【61†sourcon
These grounds introduce fresh perspectives, focusing on broader economic, technological, and regulatory impacts while directly addressing weaknesses in the Claimants’ case. They provide a comprehensive framework to complement Google’s defense and highlight the importance of balancing competition enforcement with innovation and market efficiency. Let me know if you need detailed drafts or further insights for any of these points.
New Grounds and Perspectives for Supporting Google in the Ad Tech Case
After reviewing the claim grounds, relevant case documents, and previous discussions, here are refined new grounds and perspectives for COCOO to present in its intervention on behalf of Google. These perspectives introduce unique arguments not fully explored in Google’s defense.
1. Pro-Competitive Effects of Vertical Integration
- New Argument: Vertical integration within Google’s ad tech stack (e.g., DFP and AdX) leads to operational efficiencies, reducing transaction costs and latency for publishers and advertisers.
- Support: Emphasize that self-preferencing is a natural byproduct of vertical integration, not an anticompetitive strategy. This practice improves outcomes in real-time bidding by synchronizing publisher and advertiser goals, benefiting smaller players.
- Precedent: Highlight legal precedent where vertical integration was deemed beneficial, such as Post Danmark I on the balance between efficiency and competition.
2. Role of Non-Google Players in the Ad Tech Ecosystem
- New Argument: The market power attributed to Google is overstated due to the significant role of competitors like Amazon, Meta, and independent SSPs.
- Support: Advocate for a broader market definition, incorporating competing platforms that provide alternative services. The current narrow market scope artificially inflates Google’s dominance.
3. Auction Model Misinterpretation
- New Argument: The “gross price effect” allegation lacks a robust economic foundation. Google’s auction models optimize pricing and deliver higher yields to publishers compared to fragmented systems.
- Support: Highlight empirical evidence showing how unified auctions streamline ad delivery and reduce inefficiencies for publishers. Point out flaws in the Claimants’ reliance on speculative counterfactual models.
4. Lack of Harm to Small Publishers
- New Argument: Google’s practices enable small publishers to compete effectively by offering them scalable, cost-efficient tools.
- Support: Evidence shows that smaller publishers benefit disproportionately from Google’s tools, which reduce their reliance on costly intermediaries. The Claimants’ assertions about harm lack concrete proof for these groups.
5. Consumer Welfare and Data Privacy Enhancements
- New Argument: Google’s ad tech structure enhances consumer privacy by limiting data sharing with third parties, a benefit not achievable with fragmented services.
- Support: Emphasize that breaking up Google’s ad stack could lead to more data breaches and reduced consumer trust. This approach aligns with evolving data protection laws like the GDPR.
6. Counterfactual Scenario Issues
- New Argument: The Claimants’ counterfactual scenarios fail to account for real-world market dynamics, including auction variability and the role of non-Google ad tech providers.
- Support: Challenge the methodology used by the Claimants’ experts, showing that their models are overly simplistic and do not reflect actual publisher or advertiser behavior.
7. Global Inconsistencies in Antitrust Approaches
- New Argument: Different jurisdictions (e.g., the US and EU) have taken divergent stances on Google’s practices, indicating a lack of clear consensus on their anticompetitive nature.
- Support: Stress that regulatory fragmentation risks creating uncertainty for global players, which could harm innovation and investment in the UK ad tech sector.
8. Alternative Remedies and Proportionality
- New Argument: Any proposed remedy, such as unbundling, should consider the proportionality principle, weighing potential benefits against risks of market disruption.
- Support: Advocate for less intrusive measures, such as enhanced transparency obligations or third-party audits, to address competition concerns without dismantling Google’s ad stack
1. Market Complexity and Auction Dynamics
- New Perspective: COCOO could emphasize that the intricacies of real-time bidding (RTB) and auction-based pricing models are often misinterpreted as monopolistic behavior.
- Argument: The Tribunal must acknowledge the inherent complexities of auction systems. Google’s role as both auctioneer and bidder aligns with standard practices in financial and commodities markets. This setup ensures efficiency, not exclusion.
2. Data-Driven Innovation and Consumer Privacy Benefits
- New Perspective: Highlight how Google’s integration of data enhances consumer privacy by centralizing data usage, reducing third-party data leaks.
- Argument: Instead of harming competition, Google’s approach offers a safer advertising environment, addressing consumer concerns around data privacy and security.
3. Potential for Fragmentation to Harm Smaller Publishers
- New Perspective: COCOO could argue that dismantling Google’s ad tech stack would disproportionately harm small publishers by increasing their operational costs.
- Argument: Without Google’s integrated services, smaller publishers would face higher costs and greater risks when piecing together multiple third-party solutions.
4. Public Interest in Maintaining Efficiency
- New Perspective: Stress that regulatory interference may reduce market efficiency and result in higher advertising costs for businesses.
- Argument: The appeal should consider broader public interest implications, such as potential impacts on advertiser costs and consumer prices. This aligns with a broader interpretation of competition law, which balances efficiency and fairness.
5. Economic Cost of Overregulation
- New Perspective: Argue that overly restrictive remedies (e.g., forced unbundling) could harm the digital economy by creating unnecessary barriers to efficient market operation.
- Argument: Overregulation risks undermining the adtech ecosystem’s growth, leading to slower technological advancements and reduced global competitiveness.
6. Counterfactual and Methodology Challenges
- New Perspective: Critique the counterfactual scenarios proposed by the Claimants, showing they are speculative and lack economic grounding.
- Argument: The counterfactuals fail to capture real-world dynamics, as they rely on overly simplistic economic models that ignore market realities.
7. Regulatory Inconsistencies Across Jurisdictions
- New Perspective: Emphasize discrepancies between the UK’s approach and international standards (e.g., EU, US).
- Argument: Google’s practices have been deemed compliant in other major jurisdictions, highlighting the risk of regulatory fragmentation
This is Case 1572/7/7/22; 1582/7/7/23 Ad Tech Collective Action LLP against (1) Alphabet Inc; (2) Google LLC; (3) Google Ireland limited; and (4) Google UK Limited (the Defendants), formerly Case 1572/7/7/22 Mr Claudio Pollack against the Proposed Defendants (filed on 30 November 2022), and Case 1582/7/7/23 Mr Charles Arthur against the Proposed Defendants (filed on 29 March 2023), until these claims were consolidated by the Order of the Tribunal dated 26 October 2023.
The claims by Ad Tech Collective Action LLP (the Class Representative) are for loss and damage allegedly caused by the Proposed Defendants’ breach of statutory duty by their infringement of section 18 of the Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union. The Class Representative seeks to recover damages to compensate UK-domiciled publishers and publisher partners, for alleged harm in the form of lower revenues caused by the Defendants’ conduct in the ad tech sector.
A case management conference took place on 19 May 2023. The Tribunal issued a Judgment on the management of the carriage dispute (in relation to Cases 1572/7/7/22 and 1582/7/7/23) on 26 May 2023 ([2023] CAT 34).
A hearing to determine Messrs Pollack and Arthur’s consolidation application took place on 16 October 2023. The President made a reasoned order on 26 October 2023 consolidating those claims.
By an Order of the President dated 23 January 2024, the certification hearing listed to commence on 29 January 2024 was adjourned. The certification hearing took place on 8-10 May 2024. On 5 June 2024 the Tribunal issued its judgment granting the Class Representative’s application for a Collective Proceedings Order ([2024] CAT 38).
[Your Address]
[City, Postcode]
[Email Address]
[Phone Number]
[Date]
The Registrar
Competition Appeal Tribunal
Salisbury Square House
8 Salisbury Square
London EC4Y 8AP
Subject: Application for Permission to Intervene in Case Nos. 1572/7/7/22 and 1582/7/7/23
Dear Sir/Madam,
We, the [Your Organization’s Full Name] (**COCOO**), respectfully seek the Tribunal’s permission to intervene in the proceedings of **Ad Tech Collective Action LLP v. Alphabet Inc. & Others** (Case Nos. 1572/7/7/22 and 1582/7/7/23).
**Interest in the Proceedings:**
COCOO is a [brief description of your organization and its relevance to the case]. Our expertise in [specific area] positions us to provide valuable insights pertinent to the matters under consideration.
**Contribution to the Proceedings:**
Our intervention aims to offer a perspective that supports the Respondents, particularly concerning [specific issues or arguments]. We believe our input will assist the Tribunal in comprehensively evaluating the complexities of this case.
. Public Policy and Innovation Perspective
- Argument: Highlight the broader public policy benefits of innovation in the adtech sector. COCOO could argue that imposing excessive restrictions on Google may inadvertently stifle innovation, particularly in AI-driven adtech solutions.
- Support: Emphasize that Google’s practices have contributed to technological advancements that benefit the entire ecosystem, from small publishers to end consumers.
- New Perspective: This shifts the focus from immediate competitive effects to long-term innovation and consumer welfare.
2. Digital Market Dynamics and User-Centric Benefits
- Argument: Stress the unique characteristics of two-sided markets, where efficiencies for advertisers indirectly benefit consumers through free or subsidized services (e.g., Google Search).
- Support: Draw on principles from the Ohio v. American Express case, where the court recognized that conduct benefiting both sides of the market (advertisers and consumers) may not constitute anti-competitive behavior.
- New Perspective: This differs from Google’s defense by explicitly framing the issue as a benefit to consumer welfare and digital inclusion, rather than just competition.
3. Economic Efficiency Gains and Reduction in Transaction Costs
- Argument: Emphasize the economic efficiencies generated by Google’s vertically integrated adtech stack, which reduces transaction costs for smaller publishers and advertisers.
- Support: Provide empirical data showing how the integration eliminates the need for costly intermediaries, enabling small players to access sophisticated ad tools that would otherwise be unaffordable.
- New Perspective: Focus on how Google’s system enables market access for smaller players, a perspective not fully explored in its current defense.
4. Misalignment of Competition Law with Digital Market Realities
- Argument: Assert that traditional competition law frameworks are not fully equipped to address the rapidly evolving dynamics of digital markets. Over-regulation could lead to unintended consequences, such as fragmentation and reduced efficiency.
- Support: Refer to the French-German manifesto on adapting EU competition rules to better accommodate global competition in digital markets.
- New Perspective: Advocate for a modernized competition framework that balances regulation with fostering global competitiveness.
5. Economic and Consumer Costs of Fragmentation
- Argument: Stress that forcing Google to unbundle its services could lead to market fragmentation, increasing costs for publishers and advertisers, which may ultimately harm consumers.
- Support: Cite evidence from other markets where unbundling led to inefficiencies and higher consumer prices.
- New Perspective: This ground focuses on economic disintegration as a harmful consequence, distinct from dominance issues.
6. Role of Data in Digital Markets
- Argument: Emphasize that data is a non-rivalrous resource, and restricting Google’s ability to leverage its data across platforms could lead to suboptimal use of this resource.
- Support: Highlight that Google’s data-driven innovation helps improve ad targeting and user experience, benefiting the overall digital economy.
- New Perspective: Position data as a public good rather than a barrier to entry, aligning this argument with broader digital policy debates.
**Non-Disruption Assurance:**
We commit to adhering to the Tribunal’s schedule and procedures, ensuring that our involvement will not introduce any delays or disruptions.
**Conclusion:**
In light of the above, we request the Tribunal’s permission to intervene in these proceedings. We are prepared to provide any further information or clarification as required.
A copy of this application has been served on the legal representatives of both the Claimant and the Respondents.
Yours faithfully,
[Your Full Name]
[Your Position]
[Your Organization’s Name]