Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------x

IN RE GOOGLE DIGITAL ADVERTISING

ANTITRUST LITIGATION 21-md-3010 (PKC)

PRE-TRIAL ORDER NO. 18

-----------------------------------------------------------

CASTEL, District Judge:

Certain plaintiffs in these MDL proceedings moved for partial summary judgment

under the doctrine of issue preclusion based upon the findings of fact and conclusions of law of

Judge Leonie Brinkema after the trial of an action brought by the United States and certain states

in the United States District Court for the Eastern District of Virginia. United States v. Google

LLC, 23-cv-108 (LMB/JFA), 778 F. Supp. 3d 797 (E.D. Va. Apr. 17, 2025) (the “E.D. Va.

Action”). In opposition to the various motions in these coordinated proceedings, Google LLC

(“Google”) argued that the geographic market definition adopted by Judge Brinkema in the E.D.

Va. Action (principally, worldwide) was different from that urged by the plaintiffs in these

proceedings (principally, the United States) and that issue preclusion was therefore

inappropriate.

Plaintiffs argued that they were entitled to summary judgment regardless of

whether the market was defined as the United States or worldwide. The Publisher Class noted

that an amendment conforming the pleadings to the geographic market definition in the E.D. Va.

Action would render many of Google’s arguments moot. (21-cv-7034, ECF 224 at 13, ECF 243

at 19.) The Court set a schedule for any plaintiff wishing to file a motion to amend to conform

its pleading to Judge Brinkema’s findings and conclusions. (ECF 1106.) The Court’s Order

directed the parties to address whether the conforming amendments would prejudice Google and

what impact, if any, they would have on the pending summary judgment motions.

The Advertiser Class, the Publisher Class, Inform, the Daily Mail and Gannett

have moved to amend principally to allege a worldwide market as an alternative to a United

States market. (ECF 1118, 1120, 1126, 1130.)1 Google has responded in opposition (ECF 1147,

0F

1156, 1157, 1158) and briefing is now closed. For reasons to be explained, the motions will be

granted.

Google Suffers No Unfair Prejudice from an

Alternative Allegation of a Worldwide Market

The Judicial Panel on Multidistrict Litigation transferred certain actions to the

undersigned for coordinated or consolidated pretrial proceedings. (MDL No. 3010, ECF 126,

Aug. 10, 2021.) Thereafter, the United States (the “DOJ”), joined by several states, elected to

bring the E.D. Va. Action in January 2023. Speaking of this MDL, Google described the E.D.

Va. Action as “challenging the same alleged conduct, under the same laws, seeking the same

remedies, but in a different court” (E.D. Va. Action, ECF 44-2 at 8) and asserted that the E.D.

Va. Action and this MDL were “substantively identical cases” (Id., ECF 50 at 6). Indeed,

Google unsuccessfully moved in the E.D. Va. Action to transfer that action to this District for

coordinated proceedings. (Id., ECF 44.)

Because of the manifest overlap of the claims and defenses in the E.D. Va. Action

and those in this Court, the parties in both actions agreed upon the terms of a Coordination Order

that was thereafter entered as Orders in the E.D. Va. Action and this MDL. (ECF 564.) It

1 The Advertiser Class motion proposes to delete references to four since-dismissed plaintiffs. (ECF 1119-2 at 17-

18.)

generally provided for the sharing of discovery materials and non-duplicative questioning of fact

witnesses at depositions, subject to certain limitations.

Google conducted discovery and went to trial in the E.D. Va. Action, defending

claims by the DOJ that the relevant market was either the United States or worldwide (excluding

certain restricted markets). Judge Brinkema noted that “[p]laintiffs and Google agree that the

United States is a suitable geographic market” but that the plaintiffs considered a worldwide

market to be “optimal.” 778 F. Supp. 3d at 847. Google urged that the relevant geographic

market should be nationwide. After hearing the evidence and reviewing the briefing, Judge

Brinkema found that the relevant geographic market for publisher ad servers for open-web

display advertising and ad exchanges for open-web display advertising is worldwide. Id. at 848.

The Court based its finding principally on the “globally networked nature of the Internet,” that

Google markets and the demand for its services are worldwide, that these digital services travel

easily across borders without shipping costs and that, with a few exceptions carved out of the

market definition,2 the regulatory environments are similar. Id. at 848-49.

1F

In their pleadings in these MDL proceedings, plaintiffs alleged that the relevant

geographic market is the United States. But each side was appropriately hesitant to take a bold

stance on the relevant geographic market. For example, Gannett took the position in June 2024

in response to an interrogatory posed by Google that “[s]ubject to ongoing and forthcoming

expert discovery and analysis, Gannett anticipates the geographic scope of the relevant markets

will be either the United States or worldwide less China.” (ECF 1133-10 at 4.) In a similar

timeframe, Google took a wait-and-see approach in responding to a Daily Mail interrogatory,

2 Judge Brinkema accepted the DOJ experts’ carve-out from the definition of worldwide those countries with

substantial government censorship of the internet, such as China, and those subject to U.S. sanctions, such as Iran.

Id. at 847 n. 26.

objecting that the interrogatory seeking its view on geographic market “prematurely and

improperly seeks expert opinion” and that it was plaintiff’s burden to demonstrate the existence

of a relevant geographic and product market. (ECF 1133-15 at 4.)

Plaintiffs point out that Google has used the same expert, Dr. Mark Israel, in both

this MDL and the E.D. Va. Action. Dr. Israel opined in the E.D. Va. Action that the United

States was the relevant geographic market but “my conclusions that Google lacks monopoly

power and that its challenged conduct has not harmed competition do not depend on whether the

relevant geographic market is the United States or worldwide.” (ECF 1133-5 at 10.) Dr. Israel

made a substantially identical observation in his report in this MDL. (ECF 1133-6 at 8.) He

noted further that “[m]y backup materials contain key empirical results demonstrating that all my

conclusions hold in a worldwide geographic market. . . .” (Id. at 9.) The Publisher Class’s

expert in these MDL proceedings opined that “[t]he relevant geographic market for the open web

display ad transactions at issue in this case is no smaller than the United States,” that “[s]ome

evidence supports limiting the geographic market to the United States,” and that “[o]ther

evidence supports defining a worldwide market.” (Einer Elhauge Rpt. ¶¶ 180, 181, 186 (ECF

959-1).)

“The relevant market for purposes of antitrust litigation is the ‘area of effective

competition’ within which the defendant operates.” AD/SAT, Division of Skylight, Inc. v.

Associated Press, 181 F.3d 216, 227 (2d Cir. 1999) (quoting Tampa Elec. Co. v. Nashville Coal

Co., 365 U.S. 320, 327-28 (1961)). A judicial determination of the relevant geographic market

for a monopolization claim presents a mixed question of fact and law.3 It is often guided by

2F

3 See, e.g., U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U.S. 387, 394 (2018) (“whether the historical facts

found satisfy the legal test chosen” is a “so-called ‘mixed question’ of law and fact”) (citing Pullman-Standard v.

Swint, 456 U.S. 273, 289, n.19 (1982)).

expert opinion.4 Google has all the relevant facts and Google’s experts have already opined on

3F

United States and worldwide markets, not just in the E.D. Va. Action but in these MDL

proceedings.

Google suffers no legal prejudice from expanding the relevant geographic market

definition to include a worldwide market as an alternative to the United States market. No

plaintiff seeks to expand the scope of the eligible class. Google and its experts have analyzed the

facts of record from the standpoint of a United States market and a worldwide market.5 Any

4F

claim of prejudice by Google arises from the potential mootness of its argument that issue

preclusion ought not apply because of differences in geographic market definitions.6 This Court

5F

concludes that this is not a cognizable form of unfair prejudice.

There Is Good Cause to Permit the Conforming Amendments

Google argues that plaintiffs’ motions to amend have been filed well over two

years after the Court’s scheduling limit on motions to amend. The Court set an outside date on

motions to amend at 30 days following its Order of November 21, 2022. (ECF 394.) Because

the filing of the motions is outside the time limit of a scheduling order, plaintiffs must show

4 “The natural market fallacy is the mistaken belief that the boundaries of relevant markets should conform to lay

intuition, conventional language, or direct observation. The error flows from a false assumption that markets are

tangible objects. They are not. Markets are analytical constructs with no necessary relation to industry practices or

popular conceptions of trade lines.” D. Glasner, S. Sullivan, The Logic of Market Definition, 83 Antitrust L.J. 293,

299 (2020).

5 In its opposition memorandum, Google asserts that it “could have used the ten months of additional fact discovery

in this case (after fact discovery closed in the Virginia case) to further develop its defenses to a worldwide market.”

(ECF 1153 at 7.) But Google does not claim that it had inadequate time to develop its defenses to a worldwide

market when faced with claims by the DOJ and several states. The argument is weak and speculative. It is not

unusual for a party defending a monopolization claim to feel that it could benefit from more time.

6 Google’s contention that the expert for one plaintiff, Inform, only asserted a United States market does not alter the

overall mix of information that was available to Google in these MDL proceedings. McCarthy v Dun & Bradstreet

Corp., 482 F.3d 184 (2d Cir. 2007), is inapposite. McCarthy rightly concluded that a defendant is not required “to

anticipate future claims that a plaintiff might intend to pursue.” Id. at 202. But the determination of which

geographic area is the most relevant geographic market is not analogous to the assertion of a new claim.

“good cause.” Rule 16(b)(4), Fed. R. Civ. P. (“A schedule may be modified only for good cause

and with the judge’s consent.”).

Parker v Columbia, 204 F.3d 326, 339-40 (2d Cir. 2000), offers helpful guidance

that satisfaction of the “good cause” requirement depends on the diligence of the party seeking to

amend. The Second Circuit has noted that diligence is not the only consideration and that

prejudice to the opposing party is also relevant consideration. Kassner v. 2nd Ave. Delicatessen

Inc., 496 F.3d 229, 244 (2d Cir. 2007). Kassner also emphasized a district court’s “broad

discretion concerning the pleadings.” Id. at 245.

Strictly speaking, plaintiffs fully complied with the Court’s previously imposed

deadline on motions to amend. The Court, after reading the parties’ summary judgment briefs,

invited the motions to amend. Plaintiffs promptly moved in accordance with the new schedule

set by the Court. It is true that plaintiffs could have sought permission to move to amend

immediately after Judge Brinkema’s April 17, 2025 Opinion and did not do so. But the claimed

prejudice to Google would likely not have been materially different, and plaintiffs’ diligence or

lack thereof should be assessed in the context of what was then transpiring in the MDL (expert

discovery continuing to April 25, 2025; class certification briefing due May 2, 2025 with replies

due July 16, 2025; and moving briefs on summary judgment due June 20, 2025 with reply briefs

due August 1, 2025).

Most importantly, finding “good cause” and allowing the amendment furthers the

command that the rules “should be construed, administered, and employed by the court and the

parties to secure the just, speedy, and inexpensive determination of every action and

proceeding.” Rule 1, Fed. R. Civ. P. The Court has no opinion at this point on whether partial

summary judgment based upon issue preclusion is appropriate. But allowing the amendments

and conforming the pleadings in these actions to Judge Brinkema’s fact-finding after a three-

week trial holds out a realistic possibility of advancing the interests of a just, speedy and

inexpensive determination of the actions in this MDL.

Futility

There is little merit to Google’s futility argument. The amended pleadings

alleging a worldwide market in the alternative to a United States market (or, in one instance, a

worldwide market with a United States submarket) would survive a motion to dismiss. Google

has failed to show that pleading alternative relevant markets dooms a claim. Rule 8(d)(2), Fed.

R. Civ. P. (“If a party makes alternative statements, the pleading is sufficient if any one of them

is sufficient.”).

If plaintiffs’ partial summary judgment motions on issue preclusion fail, then

Google may make a summary judgment motion on broader grounds, including that plaintiffs

have not come forward with evidence sufficient to support their claims of relevant geographic or

product markets. If such a motion were denied, Google would be free to challenge the existence

or contours of relevant markets at trial.

CONCLUSION

The motions of the Advertisers Class, the Publishers Class, Inform, the Daily

Mail and Gannett to amend their complaints in the manner identified in their marked-to show-

changes proposed amendments are GRANTED. Amended pleadings shall be filed within seven

days of this Order. Answers shall be filed within fourteen days thereafter. The motions to seal

submissions in support or opposition to the motions to amend are provisionally granted.

The Clerk is respectfully requested to terminate the motions at 21-md-3010, ECF

1118, 1120, 1126, 1127, 1130, 1144, 1150, 1151, 1165, 1168, and 1174; 21-cv-3446, ECF 180,

182, 187 and 194; 21-cv-7001, ECF 280, 282, 283 and 289; 21-cv-7034, ECF 252, 261 and 262;

23-cv-1530, ECF 124, 125 and 131; and 23-cv-5177, ECF 118, 120, 125 and 132.

SO ORDERED.

ZZ Popes Le

United States District Judge

Dated: New York, New York

September 25, 2025