Adtech antitrust class damages claim filed against Google in UK — seeking up to $16.3BN

Litigation against Google and its parent entity Alphabet being brought in the U.K. on behalf of thousands of digital publishers — seeking up to £13.6 billion (~$16.3 billion) in damages on their behalf for alleged anti-competitive behavior related to Google’s adtech practices — has been filed with the Competition Appeal Tribunal (CAT).

“The claim alleges that Google abused its dominant position in the market for online advertising, earning super-profits for itself at the expense of the tens of thousands of publishers of websites and mobile apps in the UK,” runs a press release accompanying news of today’s filing at the CAT.

The competition class-action style suit, which includes a parallel European Economic Area (EEA) claim in the Netherlands, was announced earlier this fall. That EEA-wide multi-billion Euro claim is expected to be filed in early 2023, per Geradin Partners, one of the law firms involved in the legal action.

City litigation firm Humphries Kerstetter is also acting on the claim — which is being funded by litigation funder, Harbour.

While Claudio Pollack, a former director of the U.K.’s media and comms regulator, Ofcom, is named as heading the claim — as the representative for the class of businesses allegedly damaged by Google’s actions.

The lawsuit will argue that Google has abused its dominance of adtech infrastructure to dictate terms, control pricing and deploy self preferencing that has damaged thousands of businesses that have had little choice but to use its tools if they wish to generate revenue from advertising.

The suit is being brought on behalf of around 130,000 businesses publishing around 1.75 million websites and apps in the U.K. which the litigation claims have been harmed by Google’s anti-competitive practices.

Economic analysis produced to support the claim suggests Google’s practices may have reduced advertising revenues by up to 40% for some companies.

£13.6 billion is an estimate of the total loss to those 130,000 businesses since January 1, 2014 to date.

The claimants can point to enforcement last year by France’s competition watchdog — which found Google had abused a dominant position for ad servers for website publishers and mobile apps and fining it up to €220 million for a variety of self-preferencing abuses and also extracting a series of interoperability commitments.

Google’s adtech stack — and certain other ad-related practices  — remain under investigation by both EU and U.K. competition authorities.

But European web and app publishers evidently aren’t waiting around for further regulatory smackdowns — not least as they’re hoping to force Google to fork over major damages for what the class action style suits alleges are “serious” anti-competitive practices.

In a statement on the suit, Pollack said: “The marketplace for online advertising is sophisticated, technical and highly automated. Advertising is sold in a fraction of a second in a process which is designed to match the product being advertised with the profile of an individual visiting a website. Third party platforms operate on both sides of the marketplace matching supply with demand and — in an ideal world — ensuring the market operates efficiently and effectively. Unfortunately, it is now well established that this market has developed in a way that is primarily serving Google.”

In another statement, Damien Geradin, founding partner of the eponymous law firm, added: “While the value of the claim we are bringing is substantial, we believe the matter is about much more than money. For years Google has been denying companies in the UK and Europe and beyond, including the local press and the publishers of community focused websites, the chance to earn a proper income by way of advertising.

“As well as bringing Google to account the parties who have lost out need proper compensation, something a CAT claim can achieve at no cost to those parties.”

Google was contacted for a response to the development. The company previously dubbed the litigation “speculative and opportunistic”.

In a further statement emailed to TechCrunch today it said:

Google works constructively with publishers across Europe — our advertising tools, and those of our many adtech competitors, help millions of websites and apps fund their content, and enable businesses of all sizes to effectively reach new customers. These services adapt and evolve in partnership with those same publishers.

While Google is keen to dismiss the legal challenge as baseless, the U.K.’s Competition and Markets Authority (CMA) has expressed major concerns about dysfunction in the digital ad market — following a deep dive investigation it kicked off in 2019.

Its final report, published in July 2020, concluded that the market power of Google and Facebook was so great a new regulatory approach (and dedicated oversight body) was needed to address what it summarized as “wide ranging and self reinforcing” concerns.

However the U.K. government has so far failed to bring forward the necessary legislation to enable that reboot — which may be another factor driving antitrust class action litigation.

In the meanwhile, a planned adtech stack migration by Google away from third party cookie-based tracking (aka its Privacy Sandbox proposal) remains under close regulatory supervision by the CMA — which stepped in following fresh objections by publishers concerned the move would further entrench the adtech giant’s market dominance.