In Re Google Digital Advertising Antitrust Litig., Nos. 21-md-3010
(PKC), 21-cv-3446 (PKC), 23-cv-5177 (PKC), 21-cv-7034 (PKC), 23-cv-1530 (PKC), 2026
WL 2942363 (S.D.N.Y. Sept. 30, 2026)

As the caption indicates, this is mostly an antitrust case, which
means it’s amazing that a couple of antitrust theories survive (mostly the ones
Google is precluded from contesting because of previous losses). I’m only going
to talk about the false advertising part.

Newspaper plaintiffs brought claims that Google’s
representations about its ad tech were misleading under GBL sections 349 and
350. However, no reasonable jury could conclude that Google’s alleged
deceptions were consumer-oriented, as required by the GBL, so Google got
summary judgment on these claims.

“[B]usiness entities can qualify as ‘consumers’ if the
products or services purchased are consumer goods or their equivalent ….” And
“an act or practice is consumer-oriented when it has a broader impact on
consumers at large” and is not limited to products purchased “for personal,
family, or household use.” But “section 349 is aimed at ‘modest’ transactions
rather than complex or unique arrangements in which ‘each side was
knowledgeable and received expert representation and advice.’ ”

Google pointed to evidence that the newspaper plaintiffs
were “large, highly sophisticated companies with a strong understanding of the
ad tech at issue, and that they entered into ad-tech arrangements tailored to
their specific needs. Each has characterized itself as a ‘large publisher.’” Plaintiff
Gannett’s Rule 30(b)(6) deponent described the company as “quite sophisticated”
at “digital ad selling.” Gannett and plaintiff Daily Mail both stated in
interrogatory responses that they “constantly monitor[ ] the performance of
[their] ad tech partners” and make changes if they are not providing added
value. Daily Mail has stated that it “operates a sophisticated tech stack” and
that its advertising division employs “programmatic analysts,” “infrastructure
experts” and more than a dozen engineers.

Thus, no reasonable jury could find that Google’s alleged
deceptions about the functions of its sopisticated ad tech products were consumer-oriented
activities:

These highly sophisticated and
well-resourced plaintiffs negotiated and entered into agreements to use
Google’s ad-tech products, which they used to sell billions of ad impressions
and garner hundreds of millions of dollars in revenue. These were not “
‘modest’ transactions” that fall under the GBL’s ambit but “complex [and]
unique arrangements” that were entered into and supervised by sophisticated
experts. Plaintiffs may be correct that the claimed deceptions affected many
other publishers and billions of individual transactions, but it has been
asserted throughout this multidistrict litigation that customers of the DFP ad
server tend to be sophisticated and well-resourced publishers, in contrast to
the small publishers that use Google’s simpler AdSense product. Even accepting
the assertions of Gannett and Daily Mail that publishers suffered widespread
harm based on Google’s deceptions about bidding practices … the sophisticated
customers of DFP retained at least some ability to fine-tune and adjust the ad
server’s settings to suit their needs. The magnitude of the transactions and
the particulars unique to each publisher’s use of the ad tech preclude any finding
that Google’s purported deceptions were consumer-oriented activity.

from Blogger https://tushnet.blogspot.com/2026/10/googles-alleged-misrepresentations.html