11th Cir. Relaunches antitrust complaint for online advertising against Google


In a by curie In its opinion issued last Friday, the Court of Appeals for the Eleventh Circuit overturned a decision in favor of Google in an antitrust case brought by a potential competitor in the online advertising market. The panel rejected the September 2021 trial court’s finding that Inform Inc.’s amended complaint was a “shotgun” plea and that the company lacked standing to sue, while returning the question of the sufficiency of its seven antitrust causes of action.

The 18-page notice said that Inform is a “digital media advertising company” that “manages the distribution and display of video advertisements from content creators in articles on websites of newspapers, magazines, radio and television”. At its peak, Inform reportedly managed ad space for approximately 5,000 publishers.

At the heart of the complaint were moves by Google and YouTube in 2015 to switch the software used to play videos on websites from Adobe-developed proprietary digital software, Flash, to HTML5. Although the latter is open-source, the change would have given Google more control over “how, when and which videos are played”.

When in 2017 Google completely disabled Flash, it would have had the immediate effect of cutting off a substantial portion of online advertisers from their users and target audiences. Additionally, Google allegedly siphoned off customers from Inform and other competitors, killing hundreds of online advertisers, while “‘Google and YouTube plundered valuable video ads that supported publisher websites'”, stated the opinion cited in the complaint.

With its business “decimated” and customers allegedly harmed by eroded privacy, stifled innovation, higher prices, and declining quality and variety of available products, Inform sued Google alleging multiple causes of action under the Sherman Act and Clayton Act for monopoly, exclusivity and tied selling. , among others.

The district court dismissed the amended complaint on preliminary grounds. In last week’s notice, the panel backtracked. The judges first found that the complaint, despite its length and the fact that it may not be a “paragon of clarity”, sufficiently informed Google of the claims against it and therefore did not bear the hallmarks of a “shotgun” pleading.

As for standing, the opinion concluded that Inform passed the circuit’s two-part test, first pointing to Inform’s claims that it lost millions of dollars because Google barred it from competition in online advertising markets. Secondarily, Inform was seen as an “effective enforcer” of antitrust laws as a potential competitor.

Although Google asked the panel to rule on whether Inform had filed claims for relief, a question that had not yet been asked, the judges declined, referring that question to the Atlanta District Court. , Georgia.

Inform is represented by Herman Jones LLP and Bondurant Mixson & Elmore LLP, and Google by Bryan Cave Leighton Paisner LLP and Williams & Connolly LLP.


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