11th Cir. Revives Online Advertising Antitrust Complaint Against Google

In a per curiam opinion issued last Friday, the Eleventh Circuit Court of Appeals overturned a ruling in favor of Google in an antitrust case brought by a would-be competitor in the online advertising market. The panel rejected the lower court’s September 2021 finding that Inform Inc.’s amended complaint was a “shotgun” pleading and that the company lacked standing to bring the suit, while remanding on the issue of sufficiency as to its seven antitrust causes of action.

The 18-page opinion recounted that Inform is a “digital media advertising company” that “manages the distribution and delivery of video advertisements from content creators into articles on newspaper, magazine, radio, and television websites.” At its peak, Inform reportedly managed ad space for approximately 5,000 publishers.

At the heart of the complaint were decisions Google and YouTube made in 2015 to switch the software used to play videos on websites from proprietary digital software developed by Adobe, Flash, to HTML5. Despite the latter being open-source, the change allegedly handed Google more control over “how, when, and what videos are played.”

When in 2017 Google disabled Flash entirely, it reportedly had the immediate effect of cutting off a substantial portion of online advertisers from their users and target audiences. In addition, Google allegedly siphoned customers from Inform and other competitors, causing hundreds of online advertisers to perish, while “‘Google and YouTube plundered valuable video advertisements that had supported publisher’s websites,’” the opinion quoted from the complaint.

With its business “decimated,” and customers purportedly harmed by eroded privacy, stifled innovation, higher prices, and decreased quality and variety of products available, Inform sued Google alleging multiple Sherman and Clayton Act causes of action for monopoly, exclusive dealing, and tying, among others.

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

As to standing, the opinion found that Inform satisfied the circuit’s two-part test, first pointing to Inform’s allegations that it lost millions of dollars because Google excluded it from competing in the online advertising markets. Secondarily, Inform was held to be an “efficient enforcer” of the antitrust laws as a would-be competitor. 

Though Google asked the panel to opine on whether Inform stated claims for relief, a question not previously reached, the judges declined, remanding that issue to the Atlanta, Georgia district court.

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