Trial Update, September 18: Judge Brinkema keeps the case moving at the speed of light, as DOJ case-in-chief nears its conclusion

It’s day 8 of US v. Google, and we are nearing the conclusion of DOJ’s case-in-chief.

To that end, not a ton of new information today (which, as you may expect by now, did not go unnoticed by Judge Brinkema, so more on that later).

Scott Spencer, former Director of Product Management, Google

We began with Scott Spencer, another long-time Xoogler that came over with the DoubleClick acquisition through ‘23.It was a short direct examination, with no cross.  He was the most evasive of the Google/Xoogle witnesses, often playing semantics, and at other times making statements that seem to contradict testimony of others. For example, he says regarding dynamic allocation that nobody (i.e.  no exchange) was willing to “do the work” to integrate with DFP.

The purpose of calling Spencer seemed largely to be about entering exhibits into evidence. There was a bit of drama when the DOJ tried introducing Google’s statements to international regulators. At first, Judge Brinkema allowed them in, agreeing with DOJ that they contained factual statements by Google. Google lawyers would not give up. They clearly do not want these exhibits in.  They said that Google may have been repeating terms and definitions used by regulators, and their products may work differently in other markets, and Judge Brinkema asked both sides to confer this evening.  After this, the DOJ just entered a bunch of exhibits in bulk, pre-aligned with Google counsel, so we should have some fun stuff to look at tonight or tomorrow when those post.

Dr. Rosa Abrantes-Metz, Managing Director, Berkeley Research Group (continued)

Next, we resumed Dr. Rosa Abrantes-Metz’s testimony from Monday.  She walked through each of the remaining conducts (First Look, Last Look, AdMeld, and UPR), how they were exclusionary, and how they harmed competition in each of the relevant markets. She also explained through a couple of examples why Google’s conduct was not pro-competitive.  Bill Isaacson was as needlessly aggressive as ever on cross, and eventually Judge Brinkema grew tired of it, saying this isn’t getting very far, so he wrapped.

Matthew Wheatland, CDO of Daily Mail

Next up, Matthew Wheatland, CDO of Daily Mail. We went through Daily Mail’s assessment of possibly switching ad servers in 2019. They were looking at how much revenue they’d lose if they lost access to AdX demand.  They would’ve lost >$350K/month between loss of unique demand and bid shading they observed from other exchanges in AdXs absence from the auction. DOJ then goes through the usual set of questions about why they couldn’t replace their ad server with Facebook, Amazon, HB wrapper, etc. and why dual ad server was impractical, as well as why open web display can’t be replaced by direct sold, social ads, video ads, and the like. We also hear why AdX direct would not be a viable solution, and that HB didn’t increase fraud. This resumed after lunch. I missed cross, but heard it made no sense, suggesting again that FB could be a substitute in ways that it obviously cannot.
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Bo Bradbury, SVP at GDS&M (US Air Force client lead)

Next, DOJ tried to begin a read-in of Bo Bradbury’s deposition. Bo worked on the US Air Force account at GDS&M.  Judge Brinkema stopped it saying the government agency bits are irrelevant (again, because Google cut that $2.3M check to settle those claims), and none of the other information is new. The DOJ flags that Google has 9 government witnesses on their witness list, and Judge Brinkema assures us we absolutely will not be hearing from 9 government witnesses.

DOJ says that the deposition also speaks to to market definition - e.g. how agencies allocate budgets across channels. Judge Brinkema responds with what we’re all thinking - something to the effect of “I’ve heard it already. They start with the objective, I get it.” She tells both sides that it’s getting late in the trial. She expects new information only from this point on. DOJ is taking a look overnight if there’s anything they still want to read-in for Bo.
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Aparna Pappu, formerly VP of Engineering, Google (now VP/GM Google Workspace)

Another deposition read-in. Aparna led front-end engineering for sell-side products. Judge Brinkema remarks again at the end that this is largely cumulative (i.e. redundant), and DOJ clarifies that the 2-10% fee Pappu proposed would’ve been fair for DFP is new information. Exhibits included discussions where Pappu suggested the fee should be closer to 2%, akin to a clearing house or credit card processing fee. She says it relates to guaranteed deals, but we didn’t get to see the Exhibit live yet.
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Brian Rowley, former Strategic Partner Lead, Google

This is a deposition video. Not much new to report, though he does say the quiet part out loud a lot about Google Ads demand being the key driver of the GAM value prop. He suggests that when the demand is only available through one source, it “compels” publishers to use that product. He also identifies exchanges as AdX competitors, and ad servers as GAM competitors.  Yes, Amazon on some level - e.g. aggregating demand and supply, but they are not the direct competitors he initially names. This should be obvious, but when the defense and coached adversarial Google/Xoogle witnesses insist that their main competitors are Google and Amazon, this is noteworthy to the Court.
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Dr. Timothy Simcoe, Econometrics and Industrial Organization Expert

I scooted out early during this one. He identifies the AdX overcharge as 19-27%, of which 70-80% fell on publishers, and 20-30% fell on advertisers.

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What DOJ witnesses are left:

Judge Brinkema’s waning patience gave us the gift of knowing who is left on the DOJ’s witness list for their case-in-chief.

It still looks like it’ll wrap tomorrow - maybe some light spill-over to Friday of the expert cross-exam, but I doubt it.

Google/Xoogle:

1. Jonathan Bellack former Director of Product Management (Live) (This is the one to watch)
2. George Levitte, Director of Product Management (30m depo)
3. Sissie Hsiao, now VP of Google Gemini, but previously VP/GM of display, video, and app advertising (<10min depo)
4. Woojin Kim, VP of Product Management (5 min depo)
5. Sam Cox, former Product Manager for Authorized Buyers, EB, OB, AdX (5 min depo)
6. Adam Stewart, VP, Consumer, Government and Entertainment at Google / VP for Google’s Large Customer Sales (<10 min depo)

Market Participants:Deposition Read-ins

1. Michael Shaughnessy, COO at Kargo, formerly VP, Revenue at Bauer Excel Media
2. Bo Bradbury, SVP at GDS&M (US Air Force client lead) (maybe - pending DOJ overnight decision)

Expert:‍

1. ‍Robin S. Lee, Professor of Economics at Harvard
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P.S. I chose the wrong day for Bingo, but I still almost won.

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