If you’re trying to read more than 1,000 pages of legal documents about the US v. Google ad tech antitrust case on Election Day, you’ve come to the right place.
On Monday, Google and the Department of Justice submitted their respective findings of fact (FOF), which is a legal document that clearly outlines the material facts in a case. (H/t to Arielle Garcia of Check My Ads for surfacing them.)
Both Google and the DOJ filed proposed FOFs before the trial, which ran over the course of three weeks in September. The documents filed this week – both of which just made the court’s Nov. 4 filing deadline – are updated versions that reference evidence and arguments presented at trial.
These documents are one more tool that the judge in the case, Judge Leonie Brinkema, will use to help her make her decision.
It’s possible, but not guaranteed, that Judge Brinkema will prepare an early draft opinion at some point over the next three weeks.
But regardless, closing arguments in the case are scheduled for Monday, November 25 in Alexandria, Virginia. An official ruling from Judge Brinkema is expected at some point early next year.
My facts vs. your facts
In the meantime, we’ve got 422-page revised findings of fact document from the DOJ and a 634-page revised FOF from Google.
Neither contains new or revelatory information, but that isn’t the point.
These are detailed retellings that summarize the evidence and allegations, and which outline common sense conclusions and reasonable inferences based on the totality of the record.
But what’s viewed as common sense and reasonable depends on which side you’re on.
The DOJ’s revised findings of fact begins like so:
“Over the course of three weeks, with testimony from dozens of witnesses, supported by hundreds of exhibits, the trial evidence proved what Plaintiffs alleged: Google is a monopolist illegally wielding control over the ad tech tools that make the free and open internet possible.”
And what says the alleged monopolist? Google’s FOF begins with a very different view of the world:
“There is a vast delta between the evidence promised by the Plaintiffs and the evidence they delivered at trial. The constrained digital advertising ecosystem described in Plaintiff’s complaint bears little resemblance to the real-world marketplace described in the testimony of those who know it best.”
Brew a pot of coffee or two and …
If you have the wherewithal to read these beasts on Election Day, have at it. The links are below.
But, if not, here are a few noteworthy nuggets (and h/t to Jason Kint of Digital Content Next for skimming and highlighting several of these).
Download: The DOJ’s post-trial proposed findings of fact and conclusions of law
Page 4: “Google’s inability to call at trial a single live witness not on its payroll or in receipt of grant funds from Google – apart from a witness from the United States Census Bureau who does not use the ad tech tools at issue in this case – to support its general assertions of helping rather than harming its customers speaks volumes.”
Page 101: “By giving AdX an advantage over rivals in winning the highest value impressions, First Look created a series of ‘feedback loops’ that built up over time to reinforce AdX’s competitive advantages.”
Page 155: “Google felt no need to compete on the merits to justify pricing with customer value and to explain the difference between its price and those of rival ad exchanges.”
Page 350: “Google tied real-time bids from AdX to DFP and tied Google Ads to AdX, increasing Google’s dominance in the publisher ad server market and making it impossible for publishers to switch away from DFP.”
Page 416 – 417: “Google’s employees knew, through the litigation hold for this case and Google’s ‘Communicate with Care’ training, that internal communications related to Google’s ad tech business would likely be provided to the government.
“Nevertheless, at least one Google employee announced in at least two chats after receiving a litigation hold that he would start chats for sensitive topics ‘with history turned off’ or ‘off-the-record.’”
(The DOJ is asking the court to sanction Google for destroying evidence, including deleting chats.)
Download: Google’s post-trial proposed findings of fact and conclusions of law
Page 12: “If Plaintiffs contend that economic growth would have been even greater but-for Google’s role in the market, they never showed it.”
Page 26: “Compelled integration of Google Ads with third-party exchanges would not only overrule Google’s business judgment about the legitimate trade-offs between expanded access to inventory and considerations like the quality of ad inventory, it would require ‘completely new systems’ and redoing ‘a vast majority of the engineering.’”
Page 197: “Plaintiffs’ experts acknowledge that all of the tools in Plaintiffs’ proposed markets transact in more than ‘open-web display advertising,’ including in different channels such as mobile apps and Connected TV and in different formats such as instream video and native.”
Page 297: “Multiple industry participants now offer products that eliminate the need for a third-party ad exchange, exerting competitive pressure that Plaintiff’s component-based markets do not take into account … (referring to Facebook, The Trade Desk, Criteo and Yahoo).”
Page 630: “To the extent that any Google employees made a mistake and did not comply with legal hold instructions to turn history on for a substantive Chat conversation, the substance of that Chat conversation would very likely have been memorialized in a different document or communication that would have been preserved.”
Judge Brinkema, over to you.