September 10, 2024
Are the technologies that power online advertising all part of one giant market, or are there distinct markets within the multibillion-dollar industry?
The answer is critical to Google’s defense in an antitrust case brought by the US Justice Department that went to trial on Monday in a packed Alexandria, Va., courtroom.
“Market definition, not just in this case, but in most antitrust cases, has potential to be outcome determinative,” said former DOJ antitrust attorney Dan McCuaig, who is now a partner with Cohen Milstein.
The highly anticipated trial comes on the heels of Google’s defeat in August an antitrust case where a Washington, D.C., judge ruled the tech giant illegally monopolized the market for online search engines.
For Google (GOOG), the broader the market, the more likely it can overcome federal prosecutors’ claims that it illegally monopolized markets for online advertising technology in violation of antitrust laws.
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“I think it’s a clever play by Google,” McCuaig said. “I don’t think it ultimately carries the day.”
McCuaig said Google may have relied too strongly on a Supreme Court case involving American Express, in which the high court ruled that credit card networks were one market with two sides.