Google tees up venue clash over U.S. advertising antitrust lawsuit

Photo courtesy of Andrew Kelly, REUTERS

Article courtesy of Mike Scarcella, Reuters

TORONTO. - Lawyers for Alphabet Inc's Google LLC on Wednesday said they will ask a federal judge in Virginia to move the U.S. Justice Department's antitrust lawsuit to Manhattan federal court, where the company is already fighting claims that it has abused its market power for online advertising technology.

In a filing in the Manhattan litigation, Google's attorneys said transferring the lawsuit was necessary for "judicial efficiency and to mitigate the obvious risk of inconsistent judgments." Google said the new DOJ case, filed jointly with eight states last month, which also alleges advertising-related abuses, overlaps with multidistrict litigation in New York that formed in 2021.

Google's planned effort sets up an early possible flashpoint in the new lawsuit. The DOJ can be expected to oppose the company's attempt to transfer the case to New York, where it would be part of a complex process involving a host of private and state plaintiffs, legal experts following the cases told Reuters.

A DOJ spokesperson declined to comment, as did a representative from Google.

Google has disputed the claims in the new lawsuit, saying it "duplicates an unfounded" one that Texas filed and now is part of the New York litigation.

U.S. courts facing transfer requests weigh a variety of factors, including location of witnesses and evidence.

U.S. District Judge Leonie Brinkema in Virginia was assigned to the lawsuit there. The Justice Department and eight states, including Virginia and California, are seeking an order to force Google to sell its ad manager suite, a key business that was 12% of the company's revenue in 2021.

The consolidated New York cases — from Texas and other states, publishers and advertisers — are before U.S. District Judge P. Kevin Castel.

Consumer protection expert David Vladeck at Georgetown University Law Center said the Justice Department could make an argument for a separate case in Virginia on the basis that its nationwide interest in structural reform — breaking apart Google — distinguishes it from other suits over damages.

"They just want DOJ versus Google, nobody else," Vladeck said. The DOJ, he said, "would not want in any way, shape or form" to be transferred to the multidistrict litigation in New York.

Antitrust expert Eleanor Fox, who teaches at New York University School of Law, predicted that the Virginia federal court "would let the DOJ have its choice of forum and would not move the case."

Fox also said there is a new federal law that gives state plaintiffs their preference for venue in antitrust litigation.

The case is In re Google Digital Advertising Antitrust Litigation, U.S. District Court, Southern District of New York, 1:21-md-03010-PKC.

For state plaintiffs: Mark Lanier of The Lanier Law Firm

For publisher class: David Boies of Boies Schiller Flexner

For advertiser class: Dena Sharp of Girard Sharp and Tina Wolfson of Ahdoot & Wolfson

For Google: Eric Mahr of Freshfields Bruckhaus Deringer and Justina Sessions of Wilson Sonsini Goodrich & Rosati