Trial Update #8 — US v Google

TRIAL UPDATE # 8: Google Has a Weak Start, as the Press, Led by NYT Lawyers, Pushes Back on Trial Secrecy

October 20, 2023

It’s the end of week 6 of US versus Google, and Judge Amit Mehta’s court is still giving priority to big tech trade secrets over public access to this landmark trial taking on the $1.7 trillion Google’s monopoly in search and its unfair tactics used to dominate online advertising.

But the media is pushing back. The news service The Capital Forum is now hosting all available transcripts from US vs. Google on their site, journalists and media organizations could only otherwise access them by paying hundreds for each day’s proceedings. You can download them from here.

This week Judge Mehta spent a few hours addressing filings by the New York Times, with the support of Bloomberg, Wall Street Journal, and the New York Post, which sought better access to the trial’s exhibits which often show internal emails, memos & damning evidence against Google. Mehta cited a DC Circuit case, saying it provided grounds for rejecting several of their requests. The week finished with the New York Times attorney Al-Amyn Sumar appearing to argue for “prompt public access to the portions of exhibits that are publicly displayed at trial.”

Legal counsel for @nytimes arguing motion for public access in Google trial to judge Mehta: “Impediments in this case to timely public access has a real cost to the public’s faith in the justice system…it’s hard to understand why there’s so much information being denied”
— Luke Goldstein (@lukewgoldstein) October 19, 2023

Week 6 of #USvGoogle ends with close to an hour of argument about public access to the trial.

Things got testy at times — at one pointed, Judge Mehta said to counsel for The New York Times: “You’ve shown up in Week 6 of this trial and demanded the sky…”
— Big Tech on Trial (@BigTechOnTrial) October 19, 2023

The DOJ closed its side of the case with 29 witnesses on Tuesday. Their last witness, economist Michael Whinston said, “When you see Google paying billions and billions and billions, there has to be a reason. That’s the first thing that, as an economist, slaps me in the face.” You can read more in this wrap by the American Economic Liberties Project.

And then we heard from one Google witness and two witnesses from the Plaintiff States, who are suing along with the DOJ, and provided strong testimony backing up the DOJ’s arguments.

Google’s first defense witness, Dr. Pandu Nayak, Google’s VP of Search, was called out of order due to scheduling issues. Nayak has been at Google since 2004. Before that he worked on NASA’s first AI systems. Nayak highlighted innovations Google made in search quality over the years. He agreed user interaction data plays a vital role in search quality, especially with long tail queries (when we go down rabbit holes.) But overall he defended Google’s search quality, which so many of the DOJ witnesses testified against, and the States’ witnesses continue to testify against.

After Nayak, the Plaintiff States called Jeff Hurst, former Chief Operating Officer of Expedia Group, and former President of Vrbo, Expedia Group’s vacation rental product. Hurst told the judge that ad payments from Expedia’s vacation home rental business to Google ballooned 10 times over a five-year period, but failed to increase traffic after the search engine started showcasing its own flight and hotel information.

The States lawyer displayed an internal Vrbo document from 2016 that showed Vrbo spent $43 million to acquire 507 million visits from Google. In 2019, Vrbo had increased its Google ad spend 7 times to about $290 million, but garnered less than 500 million visits to its site. Hurst said, “We had spent a heck of a lot of money on Google for no incremental business value.”

The Plaintiff States then called Paul Vallez, an executive at Skai, a marketing platform that competes with Google’s Search Ads 360. He said, “Google has access to more advantages than we do.” But still Vallez said Skai managed to innovate on something that Google said it was unable to. From our friends at the TWIGA newsletter:

Skai introduced auction-time bidding for Google in 2019 after a two-year development period, and then introduced auction-time bidding for Microsoft one year later in 2020. The fact that Skai was able to introduce Microsoft’s auction-time bidding so quickly, building upon what it had learned from implementing Google’s similar feature, undercuts several witnesses from Google who have justified SA360’s failure to develop Bing auction-time bidding as something that was too technically difficult. If a much smaller competitor like Skai could do it within a year, it seems unlikely that a massive and technologically advanced company like Google wouldn’t have the ability to do so. It is strong evidence in support of the States’ argument that Google avoided adding the feature to undercut its most significant rival.

Trial resumes next Tuesday at 9:30am. Next week, we will hear from the States’ witness Jason Krueger, a Google employee who works on SA360, as well as the States’ marketing expert and an economist.