Episode 1: Jason Kint and Alan Chapell on what's next for Google

Summary

Episode Summary: The Monopoly Report - Episode 1: Jason Kent and Alan Chappelle on What's Next for Google

Release Date: October 7, 2024
Host: Ari Paparo
Guest: Jason Kent, CEO of Digital Content Next
Co-Host: Alan Chappelle, of the Chappell Report

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Introduction

In the inaugural episode of The Monopoly Report, host Ari Paparo engages in a comprehensive discussion with Jason Kent, CEO of Digital Content Next, and Alan Chappelle of the Chappell Report. The conversation delves into the intricacies of Google's ongoing antitrust trials, focusing on search and ad tech, and explores the broader implications for the global advertising economy.

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Observations from the Google Antitrust Trial

Jason Kent shares his firsthand experiences from the Virginia courthouse, where the Google antitrust trial is underway. He highlights the efficiency of the proceedings compared to the previous search trial:

Jason Kent [01:54]: "This one was much more efficient. I was really appreciative of the lack of repetitive testimony."

Kent notes the judge's impartiality, emphasizing that Google was not intimidating the courtroom:

Jason Kent [02:45]: "I saw justice start to play out, certainly a judge that was not in any way intimidated by Google, which is unusual for them in most settings."

Alan Chappelle echoes this sentiment, pointing out Google's usual dominance in controlling narratives, which seemed less effective in this trial:

Alan Chappelle [03:22]: "Google has become very comfortable with owning the larger narrative. It was much more difficult for them to do so here."

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Google's Defense Strategy

The discussion shifts to Google's approach in defending against the Department of Justice (DOJ) allegations. Jason Kent critiques Google's initial strategy:

Jason Kent [03:55]: "Their strategy in the beginning was a little bit of trying to confuse the judge and the court on ad tech... They threw everything but the kitchen sink at the judge in the 30 minutes of opening statements."

Kent observes that Google's primary focus was challenging the market definition to undermine the premise of monopoly power:

Jason Kent [04:20]: "They were trying to challenge the market definition and the idea that Google has a monopoly in each of these three markets in the complaint."

Alan Chappelle adds a legal perspective, distinguishing between Google's attempt to frame the case as a "refusal to deal" versus the government's "tie-in" case:

Alan Chappelle [06:54]: "Google was trying to make this into a refusal to deal case where the precedent is much more in favor of Google's line of thinking. The government was trying to make this into a tie-in case, which is a much, much more difficult road for Google."

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Duty to Deal Argument

Ari Paparo brings up the "duty to deal" argument presented by Google as an affirmative defense, questioning its effectiveness:

Ari Paparo [05:08]: "Google was saying we created dynamic allocation and it made our ad exchange able to bid into our ad server and we have no obligation to let anyone else do that."

Jason Kent critiques this defense, suggesting it was not central to Google's case:

Jason Kent [05:41]: "I think the refusal to deal argument was a very small part. Google pretended that they won in D.C. for about an hour on the search case... That's just a sidebar."

Kent also comments on Google's reluctance to use a jury trial, favoring a bench trial to mitigate risks:

Jason Kent [07:57]: "Google thought a jury was not necessarily safe for them, so they moved to a bench trial."

Ari adds that certain arguments, like the auction fairness, resonate with the general public:

Ari Paparo [08:38]: "If this is an auction, why does Google get to bid last? It feels unfair... It just feels unfair that everyone raises their paddle and somebody else gets to see that and raise their paddle last."

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Impact on Publishers and Remedies

The conversation transitions to the potential ramifications for publishers and the advertising ecosystem. Jason Kent emphasizes the importance of remedies in restoring fair revenue distribution:

Jason Kent [10:07]: "The trial is more important from a remedies perspective than the search case... any sort of disruption in the remedies... can cause headaches and be detrimental to certain publishers."

Ari Paparo elaborates on how spinning out ad tech entities like Adex could redirect more revenue to publishers:

Ari Paparo [11:37]: "More of every dollar goes to your publisher customers."

Kent discusses the complexities of Google's data integration and its impact on YouTube's advertising value:

Jason Kent [12:15]: "The data that flows through... how that data is able to be used increases the value of the actual environment where the ads are running."

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Accusations of Evidence Spoliation

A significant part of the trial involves allegations that Google tampered with evidence. Jason Kent explains the situation:

Jason Kent [22:02]: "Google had a senior executive who communicated a litigation hold but later created a chat that deletes automatically within 24 hours unless proactively turned off."

Ari Paparo shares an insider perspective on Google's stance:

Ari Paparo [24:42]: "A friend at Google said they weren't telling people to delete information, but the default settings led to accidental data loss."

Kent highlights the negative impact of these actions on Google's credibility:

Jason Kent [23:51]: "The credibility of Google witnesses has to be challenged because we're not seeing all the evidence... It's really bad in Northern California."

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Legislative Implications and Future Outlook

The discussion touches on potential legislative responses, particularly the bipartisan America Act, aimed at addressing antitrust issues:

Jason Kent [31:42]: "The America Act is extremely bipartisan... It directly goes at the issues of the Google case."

Alan Chappelle and Jason Kent debate the likelihood of federal privacy laws passing before antitrust measures:

Alan Chappelle [32:10]: "What comes first, the America Act or federal privacy law?"
Jason Kent [32:19]: "I would think the America Act just because it's a simpler piece of legislation."

Kent underscores the importance of court actions over legislative efforts in the near term:

Jason Kent [33:47]: "The courts are where the action's at."

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Conclusion

Ari Paparo wraps up the episode by acknowledging the depth and complexity of the discussions, highlighting the significance of ongoing trials and legislative movements. The episode sets the stage for future discussions, promising continued analysis of Google's antitrust battles and their far-reaching implications for the advertising industry.

Ari Paparo [34:14]: "This was a great conversation... Thank you so much for being here."

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Transcript

[Ari Paparo]

This podcast is brought to you by Chalice. Chalice is the leading AI application for brands applying their own data and analytics in the real time decisioning of ad buys. And now Chalice can deploy custom AI as a pmp. We're talking real time curation at page level to drive any outcome. Learn more about AI that's yours at Chalice AI. That's Chalice AI. Welcome to the first episode of the newest podcast from Architecture Media, the Monopoly Report. The Monopoly Report is dedicated to chronicling and analyzing the impact of antitrust regulation on the global advertising economy. If you're new to the Monopoly Report, you can subscribe to our weekly newsletter at Monopoly Market. I'm Ari Paparo and I'm joined today by Alan Chappelle of the Chappell Report, a monthly syndicated research report that provides an in depth look at some of these same issues for legal and policy pros. Alan is grabbing the reins of the Monopoly Report and will be writing many of our newsletters going forward. In this first episode, we have a great guest, Jason Kent, the CEO of Digital Content Next. Jason was sitting in the pews almost every day in Virginia courthouse where the Google antitrust trial is taking place and he's tracking all the different cases and activities going on around the world. So, Jason, thank you so much for being here.

[Jason Kent]

Thank you for having me. Looking forward to the discussion.

[Ari Paparo]

Alan, thanks for raising your hand and diving into this content game that we're playing here.

[Alan Chappelle]

Well, thanks so much for having me, Ari. I'm having a lot of fun with.

[Ari Paparo]

This so far, so let's just get into it. So, Jason, you and I were exchanging glances in the pews, being like, I can't believe they just said that. So what were the biggest bombshells for you?

[Jason Kent]

I love that you call it the pews. It felt that way.

[Ari Paparo]

Pews, right?

[Jason Kent]

Felt like we were in the church of Judge Brinkama. She ran a quite a courtroom. It's not always like that. What were some of my biggest observations? And you know, I juxtaposed a lot of it from my own experience from the search trial last fall, which I similarly was there for a decent number of the days. You know, this one was much more efficient. I was really appreciative of the lack of repetitive testimony. You know, even when they were playing in depositions, it was interesting because it wasn't repetitive. So that was great. It's also interesting to see, you know, a company like Google thrown into a, into a courtroom where all sides have a fair shot. Right. And kind of saw justice start to play out, certainly a judge that was not in any way intimidated by Google, which is, I think, unusual for them in most settings. You know, and to be fair on that, I mean, I thought it was interesting in the pretrial motions where she went, the judge went out of her way thinking about how to make sure that Google would have a fair shot in the courtroom because they didn't have the same access to the courthouse that the Justice Department did. So she really was thinking about it on both sides to make sure it was fair. And I thought that was interesting. So, and then the, you know, the arguments, at least in this case, are really, I think, against Google. I think it's a tough defense for them. And so I think the Justice Department very much simplified a very complex industry to understand it, if you're new to it, in a way that they really stayed tight to what they needed to prove.

[Alan Chappelle]

Yeah, you know, one of the things that I've noticed is that, you know, in most of the rooms that I've been in over the last 15 years, Google has become very comfortable with the kind of owning the larger narrative. And so it was sort of interesting from that perspective because it was much more difficult for them to do so. But following up on that, I was curious. Jason, what's your thoughts about Google's defense here? What do you think their strategy is? Because it felt like they weren't really making a direct attempt to challenge the DOJ assertions directly. And so what's going on here?

[Jason Kent]

Well, I mean, the conduct is the conduct, and I think they only really focused on a few bits of the allegations versus, I think, what the states in Texas are going to be focusing on. And so it appeared to me that their strategy in the beginning was a little bit of try to confuse the judge and the court on, you know, on ad tech, which you can imagine is not that hard to do if you've read through some of the various investigations and reports of the history of adtech. And so they kind of threw everything but the kitchen sink at the judge in the 30 minutes of opening statements. And then it appeared that they really were trying to, you know, challenge the market definition and the idea that, that, that Google has a monopoly in each of these three markets that are in the, in the complaint. And so to bring in, you know, if you can bring in TikTok, if you can bring in CTV, if you can bring in video at large, if you can bring in social media, that it's, it's a different advertising market. And that seemed to be the the real focus. And then they did also try to get into a legal, the legal minutia of a two sided market defense which we could go down that line if you want. But yeah, that seemed to be it.

[Ari Paparo]

For me as a non lawyer. The arguments around what is called the duty to deal seem pretty compelling as a defense where effectively and I'm going to botch this a bit but Google was saying we created dynamic allocation and it made our ad exchange able to bid into our ad server and we have no obligation to let anyone else do that. It's a lot of work, it's complicated. There are lots of reasons we can come up with why we shouldn't have to do that. So you can't force us. What do you think about that argument, Jason?

[Jason Kent]

I mean I think Google tried to present it as a, as a refusal to deal case. You know, I know they did like three or four briefings with reporters before the trial even started but I don't think that's key to the case at all. I think, you know, it's a tying case of, you know, just start with the summary of the case and the finds of act. It's this company has a monopoly over the demand. That's already been proven actually by the way in the D.C. court. It'll get appealed. And then they took that demand and the only way you could have access to that demand is through Adex and the only way you could then have, you know, access to Adex was through their ad server. So that they're tied together on the supply side to something where they have 90 plus percent of the market. That's the issue in the complaint and then the conduct in order to maintain that would be my read on it. So the refusal to deal argument, which is a very small. Google pretended that they won in D.C. for about an hour on the search case and the one thing they won on was on a refusal to deal argument around the Text360 platform and whether or not they had to open that up with APIs to Microsoft or not. You know, I think that's a sidebar. So that's my.

[Alan Chappelle]

And just to uplevel this from a legal perspective, I mean what we're talking about is just two separate legal theories. So Google was trying to make this into a refusal to deal case where the precedent is much more in favor of Google's line of thinking. The government was trying to make this into a tie in case which is a much, much more difficult road for Google if they are successful in that.

[Jason Kent]

To that and are you tell me you felt differently. I didn't feel like the duty deal like that was part of Google's framing up front. And I heard it come up a few times, but it wasn't really a part of the discussion. They never came up with it. The judge never really asked any questions about it. That's true.

[Ari Paparo]

Yeah. I guess what I would say is the duty to deal evidence that Google presented was factual. They were able to say, we tried this and it was expensive. We tried this and we didn't want to do it. A reasonable person could listen to that, especially if it were a jury trial, which it wasn't, and say, okay, yeah, I get it. They don't have, they don't have to do that. So I think in terms of an affirmative defense, the duty to deal stuff was presented pretty well.

[Jason Kent]

What do you think? If I could throw. I'm just curious, I'm not just asking this already, but like, you reference a jury, if it was a jury. I mean, Google, you know, played some pretty interesting chess moves in order to make this trial not a jury after they lost in California to a jury unanimously around their app store antitrust violations. And so I think they realized that, like, you know, whether or not they were testing this behind the scenes with the public or what, but the halos off their company enough that, that a jury was not necessarily safe for them. And so they were able to, to get it to be a bench trial. I'm curious, having watched the case, what you think the average American would have thought if they were sitting there on the jury relative to what the judge did.

[Ari Paparo]

Yeah, I'm not sure it would have been different. Judge Brinkman was, you know, as you said, she ran a very tight courtroom, but when it came to the facts, I think she had a pretty high level understanding of what they were talking about. She used very reasonable arguments like, hey, if this is an auction, why does Google get to bid last? Which is probably the same line of reasoning that a jury would have taken. Because it just feels unfair. Whether it is unfair or not, you could argue, but it feels unfair that everyone raises their paddle and somebody else gets to see that and raise their paddle last. I think that doesn't hold water with anyone on a reasonable basis.

[Jason Kent]

Yeah.

[Alan Chappelle]

The one area where I just wonder if Google may live to regret doing the bench trial is in the market definition, because I think it would be. It's much easier to convince somebody who's not immersed in the advertising space that a banner ad on the New York Times is different than a banner Ad on Facebook.

[Ari Paparo]

Yeah, I think that was actually like the most compelling single thing Google did was just put up a image, a demonstrative exhibit of facebook.com on a computer screen with a big square ad on it and say, why is this different?

[Jason Kent]

That was actually one of the times where I thought like, well, nobody uses Facebook, isn't it like 5% of their usage is through the website at this point. So, but I remember, yeah, that was a. Because you really have to understand the plumbing and why it's different. So anyway, so Jason, you as part.

[Ari Paparo]

Of dcn, represent publishers, right? That's right. So how do you think this helps publishers moving forward potentially?

[Jason Kent]

Well, I mean it will come down to the remedies and. But I do think this trial in this case is arguably more important from a remedies perspective than the search case. Now the App store case is pretty important too. I mean, all of these are, you know, issues of extraction of welfare or revenue from publishers or, you know, the print. If the principles of the ecosystem are predominantly the consumers, the content or the sites they choose to interact with and then the advertisers that want to meet them along the way, there's clearly revenue extraction that's been happening by intermediaries and the one that's got monopoly power to abuse it. And that's our interest. I mean, long term you can make a decent argument that short term, any sort of disruption in the remedies for, you know, accountability for Google, you know, can cause a lot of headaches and it could be actually detrimental to certain publishers. You know, it's never going to be a good situation where there's an intermediary with that much monopoly power that's abusing it and you know, the revenue is not going to flow to the actual funding of what the consumer is trying to seek out. You know, and I do think some of these things are also very important to where AI is going and the ability to use data to train, whether it be advertising or discovery algorithms. And so that piece will become important too in terms of what the remedies are.

[Ari Paparo]

Right. The biggest impact could be if, let's say adex is spun out or something like that happens. They can't maintain their 20%, so that starts heading downwards. We don't know how low it goes. And then the competition may have to also lower their take rate. And in sum, more of every dollar goes to your publisher customers.

[Jason Kent]

That's the idea. I mean, and then the data that flows through, which wasn't really front and center in this case and the search case, it was a little bit more in the trial, but that how that data is able to be used too. And does that increase the value then of, of the actual environment where the ads are running and you know, get a little bit away from purely audience based database targeting that is ignorant of the environment where the ads run. So, so there's all sorts of ways. And you know, I also like to emphasize that, and I think Microsoft's a good example for this from 25 years ago, that there's an AT&T is too frankly, there's things we can't imagine too that just come from having a fair market and a level playing field that I'm sure we'll be surprised by later on. If this plays out in the Justice Department's favor. There'll probably be some headaches too, to be fair.

[Alan Chappelle]

So you mentioned Microsoft and so, and that's certainly an apt comparison. But if you think about the number of competition or antitrust cases playing out all over the world right now with respect to Google, it's really unprecedented. And so as I try to think about how all of this is going to play out and if it plays out into some kind of a settlement, you know, I guess I'd love your thinking, like how does that really work where you've got, arguably the CMA is involved, you've got two separate DOJ cases, you get the state AGs, you've got a whole bunch of stuff going on separately in the European Union. I mean, do all of those entities need to work together to sign off on an eventual settlement?

[Jason Kent]

I don't, I don't think so. I think, you know, it is unprecedented. So to say that, you know, that I have any special wisdom is probably a stretch. But the CMA is way, you know, in my opinion is way behind, ironically because they have, I think they ramped up their technology and research team ahead of everyone and they had the original, one of the original reports back four years ago that dug into the monopoly power of Google. But they just started on the advertising side in terms of issuing a statement of objections that Google there's going to be a lot of work beyond that and back and forth. And the EU is similarly behind and their enforcement powers are not the same. I mean the difference with Microsoft is Google is, I think, you know, a much larger company than Microsoft was with a lot more. It has its tentacles, a lot of other areas that I think it's very hard for anybody to hold them accountable except for maybe the Justice Department with the State AG is backing them up.

[Ari Paparo]

If we're talking about remedies though, there was a press report from Reuters that Google already offered to spin out DFP and ADX relative to some investigations. What else is on the table? Right. Wouldn't if Google tomorrow, let me just put it this way, if Google tomorrow just announced they're spinning it out, Google and Adex spin out tomorrow and put that on the table, would that calm down the various government entities or are they going to.

[Jason Kent]

I don't think so.

[Ari Paparo]

Jugular.

[Jason Kent]

I mean, I think what we're reading is Google's, you know, and it to your point, Alan, about settlement, you know, at some point it's in Google's interest to be able to control how things get spun out. Right. And, and for their shareholders in particular. And so if they can proactively do this rather than have it done to them, it might be safer at some point. And you know, I, I think they floated through, Google floated through, I think the Wall Street Journal maybe it was a few years ago that they were looking at spinning out the ADX and DFP as a separate division independently run under Alphabet. And you know, that was a non starter. And so now you then you have the complaint, now you have the trial. And yeah, there's this reports that in Europe they offered to actually spin out the supply side, but we don't know the details of that. And the data piece is, I mean if you go through the discovery on this trial and like you see the senior executives at Google saying oh my gosh, if we don't have access to this data, it's going to be, they didn't use the word existential but it'd be really, really bad for in particular YouTube. Right. And if you think about YouTube's advertising and the value of video advertising and then the ability to marry data from search and ad tech with that and with the Chrome data and the location data and the Android data, it makes YouTube significantly differentiated and more valuable than a lot of the video space. So any sort of separation of, of that plumbing and the data that passes through it is, is extremely risky for Google. I imagine that's where the sensitivities are going to be.

[Ari Paparo]

Yeah. So I think the hub of this is, or the pivot point is pmax and Google Ads. You have the advertisers, that's what they don't want to lose. And the network gives them data that they then use to divert dollars from advertisers towards YouTube. And that's why we see YouTube continuing to grow while the network is Stagnant or down. And so I think that the line Google would draw is anything that touches Google Ads like that's what they're back against.

[Jason Kent]

You don't think the data too, I mean this is more likely in the search case. But Chrome and Android having to be divested is a really big deal in terms of their touch points.

[Ari Paparo]

Yeah, absolutely, absolutely. I think Chrome and Android would also be, you know, over their dead body type spin outs. But DFP and adx, I can imagine that data is so valuable that they would go to the mat for it.

[Jason Kent]

Yeah, I don't disagree. And I think it's because they've got access to the data through other channels. They've got the, through the browser and through Android. So you know, the adtech supply side data is less important. The inventory is important. I mean there is, you know, and they, this was in the discovery too. But the value of the inventory, particularly of premium publishers to lift the value of everything else. But you know, I think that's marginal relative to what you're talking about.

[Alan Chappelle]

So let's talk about the separate AG case which I think starts in April of next year. I mean is that simply a restatement of the two federal cases? So like there's, there's DOJ search case, there's a DOJ ad tech case which is most of what we've been talking about here. Are the states basically just restating those or like what are the key differences? Because you've been really close to this.

[Jason Kent]

Yeah, I mean it's purely ad tech still. So it, you know, the two decisions that Google's lost, you know, backing up the, in Northern District California, they lost the Android, the App Store case, that enemies jury decision and then they lost the search decision in D.C. with Judge Mehta that's now in remedies which may take longer than the remedies for even the ad tech trial. So they're kind of coming together here. And then the state AG case that you're asking about, Alan, was actually was filed in December of 2020, so four years ago and actually three years before the adtech trial that just played out in Virginia in the rocket docket courthouse. It is ad tech focused. It is, has a lot more conduct in it. So I think the justice department decided to narrow the conduct and it has, you know, I think some more sensitive issues, particularly on the deceptive practices side that could be really uncomfortable for Google. And it's also going before a jury and to remind everybody it's the case that has the Jedi blue allegations in it, the deal between Facebook and Google. And so Google successfully made everybody forget about Jedi Blue when they won a pre trial motion when the case was up in New York temporarily, which we could go into, but it was in New York for just a bit, Southern District New York, and Google won a motion there that Google celebrated as Jedi Blue was all a farce and it wasn't a big, it wasn't a real thing. But while people were, and they've been telling the press on background that it's no longer a part of the case, but what's actually happened is the evidence was presented to the judge in Texas and the judge opened up discovery again on Facebook. Facebook lost its protective order argument and got all the discovery in the last couple of months turned over. And then they had their executives deposed in London and Google Sudan, Arpa shy, the CEO was deposed about Jedi Blue. And so whatever that is, there's something there and it's getting super hot and people aren't paying attention, so.

[Ari Paparo]

And there's also a big penalty possibility in the Texas case. Right. I spoke briefly with one of the lawyers involved there and they were saying that there's like a consumer arm aspect that carries very large fines.

[Jason Kent]

Yeah, that's right. There's no monetary. In the, in the Justice Department trial, that was the little bit that was for the ad spending piece by the government got written off as part of that maneuver to keep it from being a jury. But in Texas there's still a sizable fine there. And there's also a bunch of private cases and there'll be more, I'm sure, based on, on the victories. So.

[Ari Paparo]

So the private cases are individual publishers like the Daily Mail, Gannett and News Corp all suing Google for damages.

[Jason Kent]

I don't think News Corp is, but I think, yeah, there is a, there is one suit that that Google tried to bring up on the last day of the trial that involved Daily Mail and I think Gannet and a bunch of really small publishers. I think that actually was recently settled, remember, correctly. So. So, you know, that is interesting too. Back to your point about settling and where this plays out, Alan, is Google, you know, if they're smart, they've got a really big chess game going on and they've got, you know, a lot of big firms working on it, this chess game with them. And they might try to take some things off the table too. It's getting complicated for them, really complicated. And they also have this issue of it's coming up in every single trial of purging of evidence and Spoliation that also works against them, I think, in all these cases.

[Ari Paparo]

Yeah. So maybe you could give us a little bit on that. I didn't cover that at all in my coverage of the trial because I just felt like my audience would think it was boring. But literally every single Google witness was accused of covering up evidence more or less by the doj. What's your thinking on that subject?

[Jason Kent]

Well, I mean, you know, accusing the individuals, I think is a little unfair. I think what. What hopefully came across, and the judge said it during the pretrial, is that every single Google witnesses, she said something to the effect of their credibility has to be challenged because we're not seeing all the evidence. Possibly. And so what. What we had was in the evidence from the search trial, in the App Store trial was, was this too, that the chief legal officer issued a communication that basically said, I'm paraphrasing again, but, you know, copy a lawyer on anything sensitive and market as privilege, you know, so there was kind of this. It's not exactly how privilege works. You're supposed to actually be seeking legal advice. But there is a lot of stuff that they were not turning over that shouldn't have been privileged. On the other end of that is that within their chat, internal chat, which they use quite a bit for substantive discussion, we learned in the evidence that the switch was flipped so that all the chats would be deleted automatically within 24 hours unless the employee proactively turned that off. And so I think to make that relevant to the audience, just to kind of really grasp it, there was a senior executive at Google who testified, named Chris La Sala, who ran all the publishing relationships. And there's lots of evidence where he would say in emails, like, we're able to charge 20% only because of our market power, monopoly power, and the demand control that we have, you know, we're extracting monopoly rents. So lots of things you would not want the senior executive to be saying in emails. And there also was evidence where he had communicated a litigation hold to senior executives when they were put under litigation hold. But then six months later was like, let's create a chat that deletes automatically and make sure history is off, because we're going to be talking about sensitive stuff like that's a bad set of circumstances. I think very much proves that we're not seeing everything. Yeah.

[Alan Chappelle]

And I wonder how that narrative is going to play in front of any jury.

[Jason Kent]

It was really bad in Northern California. Yeah. I mean, because what happened there, which was unique, is they had to Give instructions to the jury that you're not seeing everything, basically, and you should assume that anything you're not seeing is bad for Google and prove the case against them. And so I think it very much affected that Judge Meta, when you're on a bench trial, I guess the judge can just kind of hold it in their back pocket and decide, in the case of search, do I really need to prove this? Does this matter to my decision? He said it didn't. He didn't need to take it into consideration. I think that's probably how Judge Brinkham in the AdTech case will play it too, is only if it's necessary. But I think it's really hard to say Google wins and not address that issue.

[Ari Paparo]

Yeah, I had an informal hallway conversation with a friend who works at Google, and they said to me, do you really think we were telling everyone to delete all this information, hiding evidence? And I said, no, I don't think you were telling people to do it, but I think that you said the default's wrong and everyone wanted to be careful. And boom, you're in the situation.

[Jason Kent]

They wrote her litigation from the Justice Department, right?

[Ari Paparo]

Yeah. That's serious. Can we talk about remedies? So what's the timeline and likely remedies in each?

[Jason Kent]

Well, I mean, the interesting thing with search is there's an extended timeline, which I think is probably helpful for accountability for Google because we'll have a decision in. We should have a decision in Virginia. And so these things do start to interconnect. It didn't come out really in the trial, but like I would make the argument the entire ad tech monopoly power is. And they kind of said this in the complaint, is the fruits of the search monopoly. So you have a monopoly in search, you have a monopoly in search text ads. And because of that monopoly power, you're able to then, you know, control the ad tech space over time. And so you have to think about those things together, I think. And so having them play out in parallel, I think is useful. The search decision, there's a framework that's due, which I would describe it as like, hey, here's everything that's on the table. We're thinking about in terms of remedies from the Justice Department. I think Tuesday. Yeah, the 8th. Yeah, I think the 8th. And then they actually have to do their proposal of Justice Department's proposal of what they want in November, which is, you know, a little over a month away, and then Google have a chance to respond to it, and then there'll be A trial in the spring and then all the decision by summertime. And so, so we'll get inside their minds of what they're thinking and very, you know, very soon. And then the ad tech case, I have to believe her decision will come. I know people keep saying December, but I'm feeling like January just because the holidays, even though she's been super fast and everything, she'll want to get it right. And so early next year, I think.

[Alan Chappelle]

And then.

[Jason Kent]

And then you'll probably have remedies play out pretty quickly after that. So. So I think.

[Ari Paparo]

Will there be a separate trial, like a second trial for remedies in the case?

[Jason Kent]

No. No. So that's what's different with Judge Mehta is it was. It was bifurcated into a separate process. So it'll happen much more quickly in the ad tech case.

[Ari Paparo]

So how will the optimism.

[Jason Kent]

I mean, we should stop. We should have. We'll have. Both cases will get appealed if they lose the ad tech case too. And I think the ad tech case is probably a more likely. I think the appeal could be more extended too, because for a bunch of different reasons, the search. The search decisions in D.C. and that's. It was based largely in part on the Microsoft decision, which also was in D.C. and went before the appellate court there. And so I think the search case likely moves pretty quickly through appeals and then maybe ends up at the Supreme.

[Ari Paparo]

Court with the ad tech remedies. What would the mechanism be? Is it the same sets of lawyers just basically proposing remedies and then it gets fought over in court and some expert witnesses come in?

[Jason Kent]

That's. Yeah. In a very tight. And Alan, you may know more than me on this one, being an actual attorney in the App Store case, it ends up, you have experts come in, you have like, sometimes it's called like a hot. Hot tub, where the experts basically fight each other and debate live, which can be kind of fun. And then. And then you have a decision hot tub. They call it a hot tub.

[Ari Paparo]

I think they really call it a hot tub.

[Jason Kent]

Yeah. So imagine like, imagine like the best expert from each side that you saw during the trial and then throwing them in a room to. To argue in front of everyone.

[Ari Paparo]

All right, that. That sounds sort of. I'm coming down for that.

[Jason Kent]

So it's happening with the App Store case. It's actually, it's happening with Apple and its App Store case too, right now around compliance with the Apple App Store case. And there's an important hearing this afternoon because Apple's been kind of screwing around a bit.

[Alan Chappelle]

So do you think we get to the end of this in two years, five years?

[Jason Kent]

I think two years or shorter. And that's dependent on your point of there could be a settlement. And we also have both administration, regardless, we have a change in administration. Right. And in the next few months and with Microsoft, that affected things when I think it was the Bush administration came in and they decided to settle. And so I think that's always a chance here. I mean, on both sides, they just decide that they want to move past this in some way.

[Alan Chappelle]

Well, I'll make two points there. The Google Shopping case from 2017, I know this is Europe and Europe tends to move even a little bit more slowly, but boy, that's from 2017 and that was settled what, a week ago? But my favorite is the IBM case because what were they, 12 years in and then the Reagan administration came in and just quietly dropped it.

[Jason Kent]

So I think that that points you towards, I mean, what's special about this just department, in my own opinion, and I would apply it to the FTC too, is the people that have, they've really ramped up and the people that are running the cases and all the way to the top really do understand our industry and ad tech for better or for worse at times. And so they're fairly informed on it. And I think they could move towards divestiture and structural changes as a remedy more quickly for that reason. And I think they've watched Europe and they know that the shopping case, where you've got behavioral remedies can just drag on and they don't want to have a court having to be involved for the next 10 years in trying to make Google behave better.

[Alan Chappelle]

As a lawyer, I'll just say super excited to see Jonathan Kanter on the COVID of Rolling Stone. I mean, mad props.

[Jason Kent]

Yeah, rock stars, right?

[Ari Paparo]

I mean, didn't Trump just say that he wants to send the Google people to jail because of their search rankings?

[Jason Kent]

He did. So I mean, even without getting to severely political understandings of this, there's transactional value, right? And so on one note, they might want to threaten people with imprisonment and then the other note might want to settle it and get something out of it. I think it's important to note that Trump administration brought the search case that the Justice Department just won and the Texas case in December of 2020 at the time was very considered very partisan. It was just Republican state AGs. It's now bipartisan, but it was brought by AJ Paxton in Texas was running that group. So like you know, these are very, very bipartisan issues. And when you get into the actual facts, I think a lot of the rhetoric goes away. And I've also found that in testifying about these issues, I had testified before Senator Cruz on this and Senator Lee and Globuchar and like they all speak the same language for the most part on these issues. Like they just don't want somebody with this much market power in the world.

[Ari Paparo]

So it's fascinating that that is how it's worked out and yet we don't see any movement towards legislation on any of these issues there. The courthouses seem to be the way that it's being handled.

[Jason Kent]

Yeah, I keep an eye on the America Act. The America act is extremely bipartisan. It has I think 30 senators on it and it directly goes at the issues of the Google case. And it's not a very complicated piece of legislation. It doesn't give more power to the ftc. It just, it's an interesting piece of legislation. I think that's why Senator Lee and Klobuchar brought it together so it could get momentum if this decision goes against Google.

[Alan Chappelle]

So Jason, quick, not to put you on the spot, but what comes first, the America act or federal privacy law?

[Jason Kent]

I thought a federal privacy law was coming 10 years ago. So yeah, I would think the America act just because it's a simpler piece of legislation that only touches one part of the industry where there's actually been harm if anything was going to come. So I mean the leverage towards a federal privacy led bill is just that there's now a bunch of state laws that are passing and I think companies in general want a cleaner environment and consistent environment and know what to expect. So now they're just fighting over preemption and things like that.

[Alan Chappelle]

So I had always thought, and by the way, I jumped into the privacy space in 2003 when there was this opt in email law from California that everybody freaked out about and then ultimately pass. Can't spam.

[Jason Kent]

Yeah.

[Alan Chappelle]

I always thought that some state was going to do something that was just so beyond the pale that it would force the federal government to do something. And that really hasn't happened. Most of the, most of the laws are on the state level are pretty similar.

[Jason Kent]

They're pretty, they are a lot more similar and there hasn't been a lot of enforcement yet. So when it starts to hit the non tech, I mean we all focus on advertising many ways, digital advertising, but when it starts to hit other industries and stuff, there'll be more pressure. So I don't know, I mean, there's a reason I've spent a lot more time on arguing this to the Justice Department and the FTC on these cases and watching the courts play out is because the idea of something passing through Congress seems like a stretch anytime soon. So I think the courts are where the action's at.

[Ari Paparo]

All right. Well, we have a lot to keep on top of. I am going to guess that this might not be the last time we hear from Mr. Kent on this podcast. There's a great conversation we're going to be back for for more episodes of the Monopoly Report, probably later in October. Please subscribe to the show on Spotify, Apple, YouTube or wherever you listen to podcasts. So, Jason, thank you so much for being here. This was a great conversation.

[Alan Chappelle]

Thanks, Jason.

[Ari Paparo]

And Alan, thank you for manning this ship.

[Alan Chappelle]

My pleasure. This has been a lot of fun.