Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Gannett and Daily Mail claims about Google digital advertising bidding practices survive summary judgment, (Oct 2, 2026)

By Justin Marcus Smith, J.D.

Among other rulings in the Google Digital Advertising Antitrust MDL, the court granted Google’s summary judgment motions on Gannett and Daily Mail N.Y.G.B.L. claims and Inform, Inc.’s Sherman Act claims.

In long-running multidistrict (MDL) antitrust litigation about Google advertising practices, the federal district court in New York City court granted Google’s motion for summary judgment against publishers Gannett and Daily Mail only as to those plaintiffs’ New York General Business Law claims. The court otherwise denied summary judgment motion as directed to certain bidding practices (non-precluded acts) previously decided in a separate DOJ action. The court also denied Google’s motion for summary judgment as to unjust enrichment. Before making those rulings, the court denied Google’s motion to exclude Gannett and Daily Mail expert witnesses. Among assorted other sundry rulings, the court granted Google’s motion for summary judgment on Inform, Inc. (Inform) Sherman Act claims because Inform did not explain how Google’s monopoly in the ad-tech stack for open-web display ads affected transactions for instream video advertising, transactions that may have been nearly all of Inform’s transactions on the Google AdX ad exchange (In Re Google Digital Advertising Antitrust Litigation, No. 21-md-3010 (PKC) (S.D.N.Y. Sept. 30, 2026)).

Background. In this multidistrict litigation (MDL), online publisher plaintiffs who sell display advertising impressions alleged that Google violated Sections 1 and 2 of the Sherman Act by coercively tying access to its dominant AdX ad exchange to the use of its DFP ad server, and, for smaller publishers, by bundling AdSense server and auction services.

The publishers alleged the tying and bundling entrenched Google monopoly power in the markets for publisher ad servers and ad exchanges. Separately, advertiser plaintiff Inform, Inc. (Inform) asserted claims of monopolization and attempted monopolization based on alleged auction-manipulation practices, including Unified Pricing Rules and Project Bernanke. While Inform's claims focused primarily on the market for online video advertising, in which Google allegedly had monopoly power, its claims also related to other product markets, such as publisher ad servers, ad-buying tools and ad exchanges. In 2021, a transferor court granted Google’s motion to dismiss Inform’s first amended complaint for “shotgun” pleading, but the Eleventh Circuit reversed in an unpublished opinion (see Antitrust, Mar. 11, 2024)).

Meanwhile, the DOJ and several states obtained a judgment in their separate Eastern District of Virginia enforcement action. The E.D. Va. court determined Google willfully acquired and maintained monopoly power in distinct ad server and ad exchange markets by, among other things, unlawfully tying publisher access to AdX to use of the DFP ad server.

Relying on those determinations, the publisher plaintiffs, including Gannet Co. Inc. and Daily Mail, and plaintiff Hanson sought partial summary judgment in the instant MDL. They argued issue preclusion barred Google from relitigating issues already resolved in the E.D. Va. action. The court largely agreed Google could not dispute the separate market findings, its monopoly power, willful maintenance of that power, and the unlawfulness of tying AdX access to use of DFP ad server. The court declined to preclude disputes over: (1) market definitions that were broader or differently framed in this MDL; (2) class-wide impact and damages, which were not adjudicated in Virginia; and (3) conduct occurring after the close of the Virginia trial record.

After the instant MDL court granted in part and denied in part motions to certify publisher classes, Google, Gannet, and Daily Mail filed various motions for summary judgment. But first, the court tackled the Google motion to exclude the opinions of Gannet and Daily Mail expert witnesses.

Expert witnesses. The court denied the Google motion to exclude the opinions of Gannett and Daily Mail expert witnesses. One opined on whether Google engaged in anticompetitive conduct that impacted competition as well as Gannett and Daily Mail (conduct expert). The other endeavored to quantify damages (damages expert). The court analyzed that Google directed objections to narrow and discrete applications of the expert’s methods that were best left to cross examination at trial.

Google’s motion to exclude the conduct expert’s testimony pinpointed disagreements with premises and conclusions. However, Google did not dispute that the use of counterfactuals and the consumer welfare standard are accepted methods for analyzing the impact of anticompetitive conduct.

The damages expert’s use of benchmark models was also a well-accepted method for calculating damages in an antitrust case. Contrary to the Google argument that this expert did not link the purportedly inflated take rate to alleged anticompetitive practices, he presented a take rate table. The table broke down how certain Google practices increased AdX win rate and the extent to which it would have had to lower its take rate to obtain the same win rate. Google’s arguments about the damages expert’s auction-pressure simulation and his calculation of opportunity costs did not support exclusion and were proper grounds of cross-examination.

Limitations period. Gannett and Daily mail pointed to evidence that would permit a reasonable jury to conclude their claims were timely. They claimed the DFP/AdX tie was contractually renewed in 2018 and Google continued to impose it by overt acts thereafter. Fraudulent concealment was also a possibility. The court returned to its timeliness ruling at multiple junctures.

N.Y.G.B.L. claims. The court granted Google’s summary judgment motion on the New York General Business Law (N.Y.G.B.L.) claims because no reasonable jury could conclude that Google’s alleged deceptions were consumer-oriented. The plaintiffs were “highly sophisticated and well-resourced” commercial actors who made hundreds of millions in revenue using Google ad-tech products.

EDA. The instant court found Gannett and Daily mail pointed to evidence that would permit a reasonable jury to conclude that Google’s Enhanced Dynamic Allocation (EDA) harmed competition in the ad-exchange market by redirecting publisher premium inventory away from negotiated deals and making them available for programmatic bids on AdX. This was otherwise known as “cream-skimming” or poaching of publisher direct deals.

The court held a reasonable jury could find that EDA caused antitrust injury to Gannett and Daily Mail. Gannett and Daily Mail pointed to evidence that included a Google internal email describing an “unfair advantage” because third-party exchanges could not compete with AdX through EDA on a similar footing. The court denied summary judgment to Google on this issue.

MBTW. The court found Gannett and Daily Mail also pointed to evidence that would permit a reasonable jury to find that Google’s adoption of Minimum Bid to Win (MBTW), in lieu of first-price auction and Last Look practice, harmed competition in the market for ad exchanges. The plaintiffs’ theory is that MBTW depressed prices paid for publisher ad impressions and permitted advertisers bidding through AdX to predict with precision the amount required for a winning bid, thus discouraging advertisers from bidding on rival exchanges.

“Bernanke” bidding. The court concluded that Daily Mail and Gannett pointed to evidence that would permit a reasonable jury to find that Google implementation of Project Bernanke bidding caused competitive harm in the ad-exchange market. Gannett contends that Bernanke used the Google Ads ad-buying tool to inflate and deflate advertiser bids on the AdX exchange to advantage the advertiser clients of Google Ads, usually at the expense of a bidder on a different exchange. Gannett and Daily Mail both contended that Bernanke led to AdX selling impressions at the expense of other exchanges. Google Ads allegedly won at the expense of other ad-buying tools bidding on AdX, and publishers received depressed revenues on their sales. This claim did not depend on market power because Gannett and Daily Mail do not urge that Bernanke is evidence of monopolization or attempted monopolization in ad-buying tools. They did not contend ad-buying tools are an antitrust product market. Rather, they contended Google used its ability to control the Google Ads ad-buying tool to manipulate bids in favor of AdX and increase the AdX market share for ad exchanges.

“Poirot” initiative. The court concluded Daily Mail and Gannett pointed to evidence that would permit a reasonable jury to find Google’s implementation of Poirot caused competitive harm in the ad-exchange market. The theory here is that from 2019 to 2022 Google anticompetitively adjusted advertiser bids in the advanced DV360 ad-buying tool to reduce the volume of bids made on rival exchanges and increase the volume of bids on AdX, thus “shading” bids submitted to rival exchanges that run a first-price auction or use “soft floors.”

Other acts. The court declined to address the Gannett and Daily Mail challenge to Google’s acquisition of Admeld and DoubleClick at this juncture. The plaintiffs stated they were not advancing any claim based on these acquisitions.

The court said it did not make a ruling that estopped Google from disputing the evidence of a tie between AdX and Google Ads. The plaintiffs only appeared to describe a tie between DFP and AdX. Judge Brinkema did not find such tie or an unlawful tie between AdX and Google Ads. However, the instant court did estop Google from denying the existence of an unlawful tie between DFP and AdX. The plaintiffs were not precluded from offering evidence about a relationship between AdX and Google Ads, but again, they did not assert an unlawful tie between them.

FTAIA applicability. The court held that even if Google conduct were subject to scrutiny under the Foreign Trade Antitrust Improvements Act (FTAIA), 15 U.S.C. § 6a, Gannett and Daily mail pointed to evidence that would permit a reasonable jury to conclude it fell within the FTAIA exemption for effect on domestic commerce giving rise to a claim under the Sherman Act. Some ads were for a foreign audience, but the claimed anticompetitive conduct causing putative loss had a direct effect on domestic commerce. The court denied Google’s summary judgment motion premised on application of FTAIA.

The court ruled at a later point in its opinion that FTAIA did not preclude an award of damages to Multi-Customer Management (MCM) ad inventory management firms that acted on behalf of co-called “child” publishers outside the United States. The AdX class did not purport to include any foreign parties.

Unjust enrichment. The court denied Google’s motion for summary judgment as to Gannett’s unjust enrichment claim in connection with Dynamic Allocation, EDA, Bernanke bidding, Uniform Pricing Rules, and other alleged schemes to monopolize ad-serving and exchange. The theory here is that Google used DFP to stop publishers from soliciting competitive bids from rival exchanges and rigged AdX ads by trading on inside information. Google did not point to language in its agreements pertinent to the basis of Gannett’s unjust enrichment claim, except for certain terms that purportedly related to MBTW, but the unjust enrichment claim did not reference MBTW. An expert’s damages calculation was best left to the jury.

Google defenses. The court granted in part and denied in part the Gannett and Daily Mail motion for partial summary judgment on Google’s affirmative defenses. Google voluntarily withdrew the affirmative defense of unclean hands. The court granted partial summary judgment to the plaintiffs as to Google’s assertions about Daily Mail “salacious” content and Gannett’s purportedly deficient business management, but it denied summary judgment as to failure to mitigate damages.

Class claims. The court denied Google’s summary judgment motion directed to the so-called “Act 1” product tie asserted by the AdX class, a tie between DFP and AdX. Issue preclusion applied, but the plaintiffs still had to prove antitrust injury and damages.

The court also denied Google’s motion for summary judgment directed to the alleged AdX class “Act 2” “preferential routing” product tie between DFP or DoubleClick for Publishers and ad impressions on AdX. This was not an issue in the E.D. Va. action. Given the nature of the transactions conducted through ad servers and ad exchanges, the court concluded a reasonable jury could find that the “Act 2” underlying restraints functioned as a product tie that coercively required DFP customers to transact inventory on AdX in order to use the full functions of DFP.

Google separately sought summary judgment on the basis that the AdX Class did not isolate damages specific to bidding practices cited in support of the “Act 2” tie, but that class said it did not seek damages attributable to EDA in isolation and that it viewed EDA as a practice that enforced the Act 2 tie. The court denied Google summary judgment on this issue.

Equitable relief. Google moved for summary judgment to the extent the AdX class sought equitable or injunctive relief directed to Dynamic Allocation, EDA, or Dynamic Revenue Sharing because it said it no longer used these programs, hence there was no threat of injury. The court said equitable relief was best left for trial and a careful review of the relief in the E.D. Va. Action.

The Progressive; Mikula. The court granted Google’s summary judgment motion as to The Progressive but denied it as to Mikula. These publisher plaintiffs only sought relief on their own behalf. The Progressive did not point to any evidence that it was subject to any product tie between the AdSense ad server and the AdSense basic ad-auction platform. No reasonable jury could find it suffered antitrust injury from alleged product ties. Mikula was positioned differently, there was no dispute it was an AdSense basic ad server customer. The Progressive and Mikula expressly withdrew certain California UCL and Cartwright Act claims and other claims about Bernanke, Poirot, and other issues.

Ad Server market power. The court opined a reasonable jury could afford little or no weight on an expert’s reliance on 6sense and instead rely on other evidence to conclude Google had market power in the market for basic ad servers. The plaintiffs identified evidence that would permit a reasonable jury to conclude the basic ad server and basic ad exchange are separate product markets. The court denied Google summary judgment on Ad Server market power.

Actual coercion. The court denied Google’s motion for summary judgment on the issue of actual coercion for similar reasons. Mikula pointed to evidence AdSense could be used through an AdSense line item within Ad Manager, and Google countered with other evidence.

Inform Sherman Act claims. The court granted Google’s motion for summary judgment on Inform’s Sherman Act claims. Inform’s claims differed from those of the open-web publishers. In addition to bringing monopolization and tying claims directed to the markets for open-web display-ad ad servers and ad exchanges, Inform identified online video advertising as a relevant antitrust market and alleged that Google had monopoly power in that market.

Judge Brinkema found that the product market for open-web display-advertisement ad servers does not include ad servers for instream video advertising. Inform sought damages based on its estimated value in a but-for world where Google’s allegedly anticompetitive conduct of depriving Inform of ad sales did not put Inform out of business.

Inform did not cite to evidence that would permit a reasonable jury to find it suffered antitrust injury attributable to Google anticompetitive activities in the product markets of the open-web display-ad tech stack. Judge Brinkema found publisher ad servers for open-web display advertising were not reasonably interchangeable with publisher ad servers for instream video advertising. Instream video advertising was Inform’s primary focus. Inform did not explain how Google’s monopoly in the ad-tech stack for open-web display ads affected transactions for instream video advertising, transactions that may have been nearly all of Inform’s transactions on AdX. Inform did not create a genuine issue for trial.

Inform also did not cite to evidence that would permit a reasonable jury to find Google had monopoly power in the market for online advertising. Inform pointed to an internal Google analysis about potentially acquiring inform as compelling circumstantial evidence that YouTube had a dominant market share. However, the court said no reasonable jury would have found the Google analysis more than internal puffery, it did not speak to the relevant factors for proving market power. Other Inform evidence was off the mark. Inform’s expert economist did not attempt to calculate Google’s market share in the market for online video advertising, and his analysis of Google’s monopoly power was conclusory and unsupported.

The court also granted Google summary judgment as to the Inform YouTube tying claim. Inform did not point to evidence of Google economic power in the YouTube tying product market.

The court otherwise ordered Inform and Google to submit letter briefs about supplemental jurisdiction over Inform tortious interference and common law fraud claims under Georgia law.

The Case is No. 21-md-3010 (PKC).

Judge: Castel, P.

Attorneys: Ariana Vaisey (Figel & Frederick, P.L.L.C.) for Associated Newspapers Ltd. Justina K. Sessions (Freshfields US LLP) for Google LLC.

Companies: Associated Newspapers Ltd.; Google LLC

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