Google's Mass Arbitration Problem

0:12Ashley Keller: Welcome to Ad Exchanger Talks, the podcast devoted to examining the issues and trends in advertising and marketing technology that matter most to you. This episode is sponsored by Verve, an ad solution that helps brands activate consumer intent in real time across platforms. As AI reshapes how people plan vacations, Verve helps travel brands show up when it counts.

0:46I'm Alison Schiff, Editor-in-Chief of Ad Exchanger, and you're listening to Ad Exchanger Talks, the podcast where we talk to interesting people about interesting things in data-driven advertising and media. Usually I'm talking to media buyers, brands, measurement experts, publishers, and ad tech operators, but my guest this week is a little different. I'm joined by Ashley Keller of Keller Postman, a plaintiff's attorney who helped pioneer mass arbitration campaigns against the big tech companies, including Amazon and Google, and who says advertisers have billions of dollars in potential claims just sitting on the table now that Google has been found guilty of being a monopolist by two federal judges.

1:24But before we get started, if you haven't snagged your ticket to Programmatic I.O. yet, you should really get on that. It's taking place September 28th and 29th at the New York Marriott Marquis, and you'll want to be in that room because we've got a seriously good agenda lined up for you with speakers including Chris Kane, Martin Sorrell, Colleen Coulter, the global ad solutions lead over at a little company called OpenAI, Alexa Rath, CMO of Gwyneth Paltrow's Goop, and Bob Lord, the president of Horizon Media. We've also got folks from Yum Brands, Dentsu X, The Brand Tech Group, Razorfish, Zoom, Time, PMG, The Guardian.

2:00I don't actually have time to list everyone. You'll just have to visit the event website to see for yourself. Podcast listeners get 10 % off with the promo code POD10. So what you waiting for? Get your ticket and see you there. Hey, Ashley, welcome to the podcast. Hi, Allison. Great to be with you. So what is one thing about you that not a lot of other people already know and something that I wouldn't easily be able to find if I read your online bio on the firm's website or just googled you. But I listened to loud techno music. Really? Any recommendations? Well, I'm old school. I like T.S. there on Oak and Fold.

2:41All right. I don't know what either of those things are. I will look them up. There you go. Okay, so I want to do a quick career rewind so that our listeners can get a feel for who you are. Because we have a lot of brands and CMOs and chief media officers and ad tech CEOs on this podcast, but not a ton of lawyers. Although I talk to a lot of lawyers for my beat because I cover data privacy as one of the things, in addition to measurement and attribution and other kind of nerdy ad tech things. But before Keller Postman, you co-founded a litigation finance firm. And for our listeners, that's essentially investing in lawsuits the way that maybe a VC would invest in startups.

3:25And correct me if I'm wrong, but like betting that the case will pay out. And you grew it to like over a billion dollars in assets before selling it. And then you kind of switched sides like to the other side of the table and started filing the suits yourself. So what what flipped? Yeah, I don't know if I would call it flipping sides, because when we were at Gershon Keller Capital, we were generally financing plaintiffs, because as you say, if you want to invest in a lawsuit, typically that's going to be done on the plaintiff's side of the V, not the defense side of the V. The defense side of the V is more like an insurance product, which is typically not what we were doing.

4:01So we were working with plaintiffs and plaintiff's lawyers at Gershon Keller, and then we became plaintiff's lawyers ourselves at Keller Postman. So I'd say it was less side switching and more adjacent to the side that we were already on. I have flipped sides, though, in the sense that I started my career at a really great litigation boutique called Bartlett Beck, which is Chicago and Denver based. And predominantly, not exclusively, but predominantly, that firm represented defendants and high stakes disputes. So I have gone through a career where I flipped sides, but it wasn't from GKC to Keller Postman.

4:37It was more from Bartlett back to doing plaintiff side work. Okay, got it. And just as a little sidebar, which is my little lawyer joke, I want to tell our listeners why you're on this podcast, but then put a pin in it and we'll talk about it in a bit. But you're orchestrating a mass arbitration against Google that is tied to the recent guilty verdicts against Google in the search antitrust trial and also the bad tech antitrust trial. So that's why we're chatting. But I want to do some more scene setting before we get into the details on that and explain exactly what Keller Postman is. So your main model is mass arbitration.

5:20And I think most people know what a class action lawsuit is, at least basically like you maybe get a postcard in the mail years after some company did something wrong. And you're like, I don't know, did I drink Mountain Dew? Maybe. and then you get$11.50 at some point, you know, way down the line. But mass arbitration, I think, is a little bit different. But I personally don't really know the nuances. So what is the difference between mass arbitration and class action? And then how does the math work out for the claimants and for the firm? Yeah, great question. So first, I like your lawyer joke a lot more than, you know, a thousand lawyers at the bottom of the ocean joke.

6:00So we're starting on the right foot. So yeah, a class action, as you correctly described it, is typically where one plaintiff or a small number of individual plaintiffs are representing a lot of absent plaintiffs, right? So you use the example, I drank some Mountain Dew and there was something wrong with it. And there's some allegation that it violated the law, but the damages that any individual plaintiff will have suffered would be pretty small,$11.50 in your hypothetical. And so no sane person is going to hire a lawyer in our expensive litigation system to go try and recover$11.50 from a soda maker.

6:43That just wouldn't be logical. It would cost you more than that to get six minutes of your lawyer's time to even evaluate the case. But if you aggregate all of those$11.50 claims across the thousands or tens of thousands or millions of people who have drank Mountain Dew, then it becomes worth somebody's time. And so the way our system solves for that problem, where it wouldn't be rational for any individual economically to pursue that suit, but the company has done something wrong and they should have to pay for it, is the class action device. So you get one or two representative plaintiffs who then pursue that on behalf of the million people in the class.

7:23And if they're successful, the million people in the class get the postcard in the mail that you referenced and say, hey, do you want to stay in this class or not? If you stay in, you've got$11.50 coming your way. And it produces the more optimal amount of deterrence to ensure that companies don't engage in misbehavior that causes small harms that aggregate over a large number of people. So typically in a class action, unless you are that one or two named plaintiffs in the lawsuit, you don't have to do anything. You just sit back and let somebody else do the work. And if they're successful, you get your small compensation for the harm that you suffered when you drank Mountain Dew.

8:01And sorry for picking on the makers of Mountain Dew. I don't know why I did. Yeah, we have nothing against Mountain Dew. I hear it generates a lot of caffeine and I have no claims against Mountain Dew right now. Mass arbitration is materially different from that because you are not sitting back and being an absent participant in somebody else's litigation. You are actually bringing your claims for arbitration. So again, sticking with the hypothetical, you would be filing whatever claim you had against the makers of Mountain Dew in front of an arbitral body and saying, I've got this complaint. Here's what they did wrong.

8:39And and I want them to compensate me for it. And so the reason that we sort of pioneered this strategy is a lot of companies in the 90s and 2000s and into the 2010s, taking advantage of Supreme Court precedent that was very favorable to arbitration, started moving people away from the court system and into the arbitral process in order to get rid of class actions. A feature of arbitration is that through the contract that you enter into with the company, typically, you can waive your right to pursue a class and the company can insist by contract that you only pursue your individual rights. And so the companies had this idea, I think, that if we force everybody to go into arbitration, what we're really going to do is kill off liability altogether because the class action device won't be available in court and nobody's going to go sue us for$11.50.

9:39And so to make that palatable, what these companies did in these contracts is they made the arbitration agreements very pro-consumer, very pro-plaintiff or claimant, as the plaintiff is called in arbitration. And so they said things like, if you file your arbitration demand and the claim is worth less than$75 ,000, we'll pay all of your arbitral fees. We'll pay your share of the fees and our share of the fees. We'll pay the arbitrator for his time. Some of these contracts even said, we'll pay your attorney's fees if it's a small dollar claim. So they wrote them in a way to make it very favorable to avoid state unconscionability laws and thought that they would get away with not paying any money for these small dollar claims because no one would bring the arbitrations.

10:29And for many years, no one did bring the arbitrations. The class bar tried to bring class actions. They were moved into arbitration. Then the individual plaintiffs who were reporting to represent the class had to only pursue their own claims, and liability just was never found. We called their bluff, essentially, and said to these big companies, no, we're more than happy to sign up 1 ,000, 10 ,000, 100 ,000, a million Mountain Dew drinkers, again, in your hypothetical and bring the claims and go ahead and pay the filing fees just like you promised you would. And then all of a sudden, these companies started saying, oh, wait a minute, we don't actually want to follow our own arbitration agreements.

11:08We would much prefer to go back to court. And so ironically, we started bringing the same motions to compel that they used to bring, forcing them to honor their contracts and arbitrate. And for quite some time, our clients did a lot better than they would have in the system where the companies weren't paying anything at all. So that's kind of the genesis behind mass arbitration and an explanation of the difference between mass arbs and class actions. So two things. One, I'm weirdly in the mood for a Mountain Dew right now, and I haven't had Middle East 20 years. And it also, just as an observation, it sounds like corporations unintentionally set a trap for themselves by burying these mandatory arbitration clauses in their terms of service.

11:53Because like you were saying, they presumably thought individual arbitration would be too burdensome for most people to bother with. And then you're like, nah, we'll do it at scale. That's exactly right. You know, I'm not sure that they set a trap for themselves as opposed to making a calculated bet that they would avoid liability. And that calculated bet, I think, paid off for a long time. And I would say even with us having arrived on the scene and sort of produced this new approach, which other firms have copied and, you know, imitation is the best form of flattery. But even then, I think they would probably tell you if they were being honest in their C-suites that it was still a good trade, even though they've had to contend with us and they don't like us and they don't like our practices.

12:39They're still probably better off than they were under the class action regime, although that's not universally true. So as a result of some of our efforts, for example, big companies like Amazon have dropped their arbitration agreements. There was a Wall Street Journal piece about it a couple of years ago. They've gone back to class action because they think that that's the better trade. So it's a closer call now that we've sort of called their bluff and forced them to honor their arbitration agreements as written. Right, because you guys filed, it was like more than$75 ,000 arbitration demands.

13:12It was over Alexa devices, allegedly recording private conversations without consent and then collecting and storing audio data. And then, like you said, Amazon dropped its mandatory arbitration clause entirely. And that is a really big win because it means people can sue Amazon in court and join class actions instead of being stuck in a process that was pretty much designed to discourage them. That's exactly right. We are definitely proud of that achievement. And I think it's a good thing that people are able to pursue class actions where they're warranted. And so, you know, giving people access to justice is something that we definitely set out to do when we started Keller Postman.

13:52And that's a good success story. Was there a moment when you realized these clauses were a weapon that you could use? Did you have like an Archimedes in the bathtub moment? I wish I could claim credit for it. But Archimedes is my partner, Warren Postman, who came up with the idea. I don't know if he was in the bathtub when he thought of it or not. I haven't gotten into that level of detail with him. But it's his brainchild, and we've definitely been refining it ever since. And it's a really good strategy. So we're certainly proud of our achievements there. And one other thing I want to bring up before we talk about Google, like we just said multiple times, mass arbitration only really works at scale.

14:33And to hit scale, you need to find a lot of people. And there's a kind of delightful irony that to do that, you use digital advertising, like the same tools at the heart of a lot of your cases. Because back in the day, you had to be, I don't know, like Aaron Brockovich or run newspaper ads or knock on doors, billboards, a lot of shoe leather. So, yeah, I mean, how is the ability to reach millions of potential claimants online changed what's possible for you to do? and is there a kind of irony in the fact that you're doing it through online advertising, which is the absolute lifeblood for a lot of these tech companies?

15:11Yeah, I joke, but it's not really a joke, that I use the products and services of all the companies I sue regularly. We got our start in mass arbitrations against the gig economy, and I am a habitual user of Uber and Lyft and DoorDash and all of those businesses. And so it is kind of ironic that a result of technological change is that this model is now possible. As you say, in the days of yore, you'd have to have a billboard up, I guess, on the highway or advertise on the radio as a way to get clients and your cost per client that actually checks out and has all of the requisite criterion to bring a valid claim, I think would have been pretty high.

15:54Whereas today, certainly in a mass arbitration where there are millions of people who have been harmed by a company, you might be able to sign clients up for$15 or$20 each. So it still means that we're not going to be able to pursue the$11.50 claim if your total damages are below our cost of acquisition. It's just not going to make economic sense for us to pursue the case unless there's fee shifting or some other unique feature. But if you've got a$250 claim or a$500 claim or something like that, and then anything higher than that amount, it does become viable. So it has opened a lot of doors for us to sort of pursue this strategy in a way that technologically wouldn't have been possible a couple of years ago.

16:39I love that like any performance marketer, you have to think about your CAC, your customer acquisition cost. Absolutely. Absolutely. If you're going to be in this space, that is the key cost driver that determines whether, you know, Mass arbitration is a go or a no-go once we've satisfied ourselves that the merits make sense. So I want to broach Google, but then we're going to take a break and talk more about Google later in the second half. But earlier this year, you announced a campaign targeting Google over advertiser overpayments, potential damages at around$218 billion, which is a lot of billion dollars.

17:17And the legal foundation is that there have already been two guilty verdicts in federal antitrust cases against Google. We covered one at AdExchanger in great, great detail and the other in a little more of an ancillary fashion because we don't write as much about search advertising. But Judge Mehta had his ruling in 2024, found Google guilty of illegally monopolizing search and search advertising. And then Judge Brinkema. And I was in the courtroom for the first week of that trial. It was really interesting. She found that Google monopolized the publisher ad server and ad exchange markets on the display side.

17:50And we're still waiting for remedies. But your argument is essentially that monopolists charge more than a company in a competitive market would charge. So anyone who bought Google search ads, for example, or used parts of Google's ad stack over the past decade would presumably have overpaid and be entitled to the difference. What's interesting to me about this is that it doesn't feel like a mass arbitration. It's a little bit different. Is that right? Well, it's different in some respects, but not in others. So everything you described is accurate. To give a little bit of credit to myself and more importantly to my clients, I will say the Judge Brinkham decision is a great decision for the United States.

18:35And the United States completely copied Texas's complaint, which we helped draft. And somehow the rocket talk of EDVA got ahead of us. But the brainchild behind that was actually Ken Paxton, the attorney general of Texas. And there are many other states that are in that case. And we are waiting for Judge Brinkema's remedies ruling just as you are so that we can get our case going again. And it's been put on hold as we wait longer than I think most people anticipated for that decision to come out. But the judiciary operates like a baseball game and there is no time limit. So the wait continues.

19:11But it is definitely a mass arbitration in the sense that we are bringing claims on behalf of a lot of individual advertisers. So it's not one or two advertisers representing everybody the way you would see in a class action. It is arbitration on behalf of scores of advertisers, big businesses, small businesses, and medium-sized businesses, because as you would expect, anybody in business who does advertising typically has to touch Google. That's part of the argument for why they're a monopoly. They have so much market power. You can't escape working with them. It's different in the sense that this is not a set of claims for$11.50 or even$200 or$500.

19:53We have some clients who we allege have tens of millions or maybe even for the largest one, hundreds of millions of dollars of damages. So this is not a situation where Google agreeing to pay the fees for the arbitrators or us having to pay our share of the fees for the arbitrators is making any difference for how the parties behave. The real value of these cases is that they are highly meritorious. The stakes are high. And Google has been twice adjudicated a monopolist by two very respected federal judges. So we think the merits are certainly there to support the recoveries that we're seeking on behalf of this very large constituency.

20:31How do advertisers get in on this? How do they raise their hand? Yeah. So, you know, this is the selfish part, I guess, of the interview. They should contact me because Keller Postman would be honored to represent them. But, you know, if you don't love Keller Postman and you think you have better counsel, the way you get in on it is you hire a lawyer, you retain them, and you have them draft an arbitration demand for you, and you file your demand for arbitration if you think you've been wronged, just like you would if you were filing a lawsuit. So, you know, if you have advertised with Google through the ad tech stack or on search, which I think is going to describe the overwhelming majority of people listening who advertise, you've been harmed if these monopoly claims prove up and stick on appeal or stick in arbitration and you're entitled to compensation.

21:22And one more before we take a quick break. How many claimants do you expect by the time you're able to move this forward? So we've already started filing demands for arbitration and those number in the thousands. And I would expect that number to be in the tens of thousands by the time all is said and done. Just look at the number of customers that Google has who advertise with the company. Not 100 % of them, of course, are going to pursue their claims, just like in any other situation where a lot of people are harmed. Not everybody decides to come forward and go proceed with a lawsuit. But I think businesses are pretty sophisticated.

22:06Anybody would tell you that a monopoly is going to charge the monopoly price, not the free market price. And the difference between that price and the free market price multiplied by three are your damages. So if you don't bring this suit, you're just leaving that money on the table. It's kind of like, I don't know, why not send in, I know mass arbitration and class actions are different, but why not send in the postcard or respond to the email when there was like a little data breach at the Criterion channel or, you know, with Cambridge Analytica, all of that? I always do it because why not? Right.

22:43I mean, there's really no reason not to. Yeah. I mean, look, I would encourage people not to give up on their rights. And if there's free money on the table, you should probably take it. That having been said, I understand that people have busy lives and time is precious as well. If you had to fill out some long form and your compensation were$11.50, it would make sense for some people to say that's just a game not worth the candle. But if your compensation for filling out the same form added three zeros, I think most people would say, yeah, I'm filling that out. All right. Well, we're going to take a quick break.

23:20And when we're back, we're sticking with Google. So you should stick with us. Back in a joke.

23:35Hello, listeners. I'm Sarah Sluice, Editorial Director of Ad Exchanger. And I have with me today, Anna Slater, VP of Global Brand Partnerships at Verve. Welcome, Anna. Thanks so much, Sarah. It's great to be here. So we know that AI is changing how people plan trips. I've heard the anecdotes from my friends. I've done it myself. So can you give some insight into traveler behavior right now? Yeah, absolutely. I really don't want to date myself, but I've been in the travel industry now for almost 20 years. And having worked so long in one particular industry, it's been amazing to see the overall progression.

24:13And I really feel now that the adoption of AI and this trip planning process is the most impactful transformation we've seen over that time. Looking at our own LLM data here at Verve, consumers are using it for general discovery. Around 28 % of the prompts that we're seeing relate to these types of inquiries. And this is growing. And AI use for travel inspiration has doubled in the past year, especially amongst a 25 to 34 year old audience, which has grown to around 18 % adoption. and we're also noticing there's a shift away from keyword searches like cheap flights to Spain and treating AI now more like a travel agent which is adapting in real time however there's still an element of nervousness around utilizing AI to book you know since the prompts that we're seeing here is certainly dominated by that discovery the timing the itinerary building but I'm sure if we're going to have this conversation this time next year that will have all changed.

25:08So if I'm a brand And I know that AI is owning discovery. People are using it as a travel agent, but not for the booking part of the equation. Where does that leave brands who are trying to reach travelers? Good question. Travelers are using AI to navigate every stage of their holiday planning. But the biggest challenge with this new way of researching is having on brands is the pace at which it takes consumers from dreaming to consideration. Prompts get incredibly specific and in a very fast way. someone can go from give me trip ideas straight to a shortlist without ever touching a brand's website you know and we're also seeing really heavy vendor comparison you know with travelers using ai to sort of audit those travel providers and then benchmark prices so by the time the brand actually shows up in the conversation the shortlist may already be set so it is a very difficult moment for travel brands at this at this time and then furthermore that intent is scattered across more and more devices and platforms.

26:08But these conversations, they're carrying some of the richest signals that we have ever seen on intent. And AI is forcing the conversation to accelerate the decision making. And if they can tap in to use these signals to target, they're going to get better performance overall and have a chance at winning that conversion of the traveler's itinerary. So you just described a very complicated, complex, scattered and rapidly changing set of consumer behavior. So what steps do you recommend to brands who are trying to capture this consumer intent at this moment in time? Yeah, absolutely. And this is conversations that we're having with our clients daily at the moment.

26:50And the answer really is twofold. Firstly, travel brands need to see the intent and then also follow up and ensure that they show up in it. But there are a lot of brands that are still missing out on both right now. So on the seeing side, you know, that's LLM data, the conversational signals that we're pulling from AI chat tools. We layer them on top of actually search and zero party signals. And when you combine this, it provides a bigger, fuller picture of consumer intent. And importantly, you know, the LLM data shouldn't be seen as a replacement. It's a real complementary intent signal. So obviously, we're encouraging brands to sort of see what's out there in market.

27:28And then on the showing up side, it means being present inside the AI conversation itself and not just hoping that the LLM happens to mention you in the brand. Well, thank you, Anna, for those concrete steps and recommendations. And thank you to Verve for supporting AdExchange, your podcasts. Thanks so much, Sarah.

27:57Okay, we're back. And yeah, sticking with the advertiser case against Google. Has Google responded to you at all? Have you heard anything from Google or its lawyers? Yeah, so we've definitely heard from Google and its lawyers. We're in a preliminary phase because there's a procedural part of the arbitration process where you essentially get your merits arbitrators assigned, and that takes a little bit of time. So we're at that phase, and the correspondence back and forth with Google's lawyers are really surrounding that process. So we haven't really gotten going on a lot of the substance yet, but that is to come quickly.

28:38So before the break, you explained a little bit about how you get to the amount of money that an advertiser participating might expect to have returned to them, like times three. But I'm just going to throw a number out there. Say a company spends, I don't know, a million dollars on Google search advertising. Like what would they stand to recover? What makes it worth it to participate? Yeah. So if you take a step back, in order to be a monopolist, you have to have market power in a particular market under the US antitrust laws. And the economic definition of that is that you could impose a small but not insignificant non-transitory increase in price.

29:22And typically, economists are going to tell you that is at least a 3 % to 5 % increase in the price over the free market price. So that's kind of like table stakes for the bare minimum in order to be a monopoly. And then the numbers can increase from there depending on how durable the monopoly is, what competitive avenues you think the monopolist has foreclosed through its anti-competitive misbehavior. And all of that is, I think, documented well in Judge Brinkerman and Judge Mehta's opinions. So, I mean, I don't want to throw a number out there, especially on a public broadcast, before we've submitted our experts and done the things that we're going to have to do to prove this case on the merits in arbitration.

30:05But just directionally, that gives you a sense of the kinds of numbers that we're talking about. You know, the floor is something in the low single digits before multiplying by three. And then there are many ways that we can, I think, augment that given the particular facts of these markets. And can advertisers participate anonymously if they're afraid of retaliation in some way or they just don't want to be public about it, but they do want to be part of this because they're probably going to still be spending on Google advertising despite being involved in a suit against Google. They might want to do both things.

30:42Yeah. Unfortunately, the answer to that is no. Just like in court, if you're going to sue a defendant, you have to, you know, barring special circumstances that wouldn't apply here, like being a minor or something like that. in a sex abuse case or a family dispute, obviously none of that is in play. You have to reveal yourself. You have to raise your hand and show that you are willing to be a claimant. I do think to put some of your listeners' minds at ease, it is extremely unlikely that Google is going to retaliate for a couple of reasons. One, their safety in numbers. I promise you are not the only ones that are going to be raising your hands.

31:20As I've mentioned, we already represent thousands of advertisers who have filed their suits, and many of them are huge companies. So you are not alone. There's safety in those numbers. And number two, it would be a really bad move for an adjudicated monopolist who has been found to abuse its power to then say, oh, well, you've decided to come after us and seek the compensation that the law entitles you to. We're now going to retaliate against you to try and discourage that. I think that would get them in even more hot water than they're already in. So everyone, of course, has to make a choice for themselves.

31:56And I respect a business that would say, you know, I do too much work with Google to even risk that. But I think the risk is relatively low. Funny question. Since Keller Postman uses online advertising to try and get claimants for your mass arbitration, are you a claimant in this too? Can you bring it and participate in it? You could, but we don't. It's never a good idea, whatever the old saying is, you know, he who represents himself has a fool for a client. And we don't want to put ourselves in any conflict position vis-a-vis our clients, you know, where our own interests might be at odds. So we have benevolently given up on any claims we might have.

32:37But, you know, you don't have to worry about us. We're going to do just fine on this campaign. What's the realistic timeline for a resolution here? And do you have to wait until the remedies are set in the ad tech case? No. So we do not have to wait. The whole idea of arbitration that Google, again, has imposed on its customers is the arbitrator is going to be the one to decide the merits. So the arbitrators, once they're appointed, they're going to be the ones to say whether or not Google is a monopolist. We will, of course, have arguments that the judicial opinions that are already issued should be controlling or persuasive, but that'll be up to the arbitrator to decide, and then it'll be up to the arbitrator to decide the amount of damages.

33:24the feature of arbitration that can be both a good and a bad thing is that everyone's got their own individual arbitration and so the time period is going to depend on the arbitrator and some arbitrators may allow more discovery and some less and some may set faster schedules and some slower so it's not going to be like a class action where there's the single moment in time where you know a decision comes out and it's binding on everybody, it's going to be individual adjudication at the individual claimant level. In terms of a time period, on the super fast end, I would say something like a year is realistic and could push out a couple of months to a year from that on the slower end of the spectrum and then everything in between, which is still a lot faster than a big antitrust suit being litigated in court.

34:17You saw how long it took to get the search decision, and we're still waiting on the final decision in ad tech. So arbitration tends to be speedier, but it's not measured in weeks. It's definitely measured in months and can push past that one-year point. And when you say a year and change, are we talking about the decision or when someone involved actually sees money? Well, I think there's a pretty short lag between the decision and when someone sees money. So again, a nice feature of arbitration, if you win, and obviously a bad feature if you lose, is that that's the whole ballgame. There's no appeal, there's no higher authority that you get to take your case to, which is obviously the case in our judicial system.

34:59And both of those opinions are, one of them is already on appeal to the DC circuit and the other will be on appeal, I am sure, to the Fourth Circuit once Judge Brinkerman rules. But in arbitration, we've agreed by contract that that's the decision maker. And barring something like fraud or bribery or something crazy, the arbitrator's decision is the end of the road. So once the arbitrator rules and says Google you owe X amount to claimant Y, that amount has to be paid. And I don't think Google is going to shirk its responsibility to pay a final and binding arbitral award. And to go back to what you said about Texas, I didn't know you guys were so involved in helping that case come to be, even though I know it's on hold right now.

35:44Can you do a little story time? Like, what was that? What was that process? How did it play out? What was your involvement? Yeah. Once upon a time, the great state of Texas called me up and said, you know, we've been doing civil investigative demand free suit discovery into what Google is doing to the Ad Tech Stack. Do you want to take a look at it? And I said, yes, and looked at it and he said, this looks really bad. And, you know, Texas have done an amazing job collating this evidence and coming up with allegations to show that this violated federal antitrust law. And we crafted a complaint and ultimately got other states to join us and got on file in Texas.

36:25We beat the DOJ to the punch by a very significant margin. What happened was, to bore your listeners who are non-lawyers with procedural niceties, an MDL was formed, which is short for multi-district litigation. And so our case got swept up and sent to New York with a bunch of cases, not on behalf of sovereigns, but on behalf of individual entities and class actions. And a motion to dismiss was argued, which I argued for the states. And we prevailed. And it was only after seeing that we prevailed on the motion to dismiss, which is like a preliminary fight about whether our claims are legally sufficient.

37:05that's when the United States decided to file suit. I said earlier in the podcast that imitation is the best form of flattery, so I don't begrudge the United States for getting involved, and hats off to them for picking the jurisdiction that they did. We eventually got sent back to Texas based on legislation that Congress passed that said that sovereign enforcement actions should not be a part of a multi-district litigation if the states don't want it to be. But by that point, Virginia had gotten way ahead of us. And so they leapfrogged us in the order. And the Texas judge, the federal judge in Texas has said, let's just wait for that judicial process to conclude before we go forward with the state's action for federal antitrust and state deceptive trade practice violations.

37:50So Texas, I think, gets a ton of credit as being the genesis behind that successful lawsuit that the government of the United States brought. But based on just sort of how litigation sometimes goes, they aren't getting the final decision first. They're going to have to wait in line. I was going to go to that trial, actually. They were going to fly me to Dallas. Dallas, right? Yeah, just outside of Dallas. I had an Airbnb and everything. I had the flights. Well, you know, I hope you have to rebook them. We're not done. We're still going to have our trial barring a resolution. So I'll keep you posted once that schedule comes out.

38:30Yeah, Yeah, I'll see you there whenever it happens. And now that there's been a verdict in the federal Google ad tech case, a bunch of ad tech companies, companies that we cover regularly like Pubmatic and Magnite and OpenX and Teads, which just put their lawsuit out there in early August, others too, they're filing their own antitrust suits against Google. Well, I don't know if they're antitrust suits, their own suits against Google, arguing that you know, Google's control of the publisher ad server and ad exchange markets and Google has already been found guilty of these things, lock them out and cost them business.

39:07So what do you make of those cases? I mean, it seems, of course, like obvious that they would bring them. And it also seems almost like what judge would find against them since Google has already been found guilty in this federal case. Yeah, no, I think you make a very good point. There are two types of parties that can sue when an entity engages in monopolistic illegal misbehavior. The direct consumer, the parties like the advertisers who spend money on Google, and the competitors who were foreclosed from competing on a level playing field. And so it's no surprise that the competitors are bringing that suit.

39:52And though I haven't looked at them in any detail, I think the liability story is going to be really strong. The question is whether these companies are going to be able to prove their damages with sufficient clarity in order to win because the burden's on them to show their damages. And one of the unfortunate things about a monopoly is they sort of create this world that isn't the world that should have exists. The real world that should have existed as the one that was free and fair competition. But how do you as an upstart company show what you would have been able to do absent the monopolistic misbehavior?

40:25That's often where the fight is, where competitors are the ones suing as opposed to the advertisers. I think the advertisers have an easier case. It's pretty, not easy, but it's easier to show, here's how much Google overcharged. It is harder to show how much market share company X versus company Y would have gotten. So that's the challenge they're gonna face, But the liability story, I think, is very strong. And I don't know how they calculated this, but I was scanning the press release about the Teeds case from, well, the case that they brought at the beginning of August. And they're claiming that they lost, like, I don't know, almost 7 trillion impressions between 2017 and 2023.

41:02So they're trying to come up with real numbers to point to. Like, these were trillions of impressions that we weren't able to, you know, handle because of Google's actions. You know, nothing would surprise me. It's shocking how many transactions Google is processing through the ad tech stack. You know, everything's happening in a fraction of a second. And so, yeah, there are millions of impressions an hour, billions a day. You would expect that something in the trillions is not crazy at all for a competitor that was kept out of the market to argue for. So, you know, again, I don't know the details of that case.

41:39I haven't looked into it at all, but those numbers don't shock me. And totally, totally switching gears and moving away from Google, I wanted to ask you about SIPA, California's Invasion of Privacy Act, because it's spawned this wave of lawsuits targeting sites for allegedly wiretapping users, tracking pixels and analytics tools. It's kind of a creative use of the law, which is decades old. So you have Google. Well, actually, it is a little bit about Google. I mean, if you have Google Analytics on your site, then we've seen plaintiff's attorneys go after different publishers using SIPA as their platform.

42:21And you might know the name Vivek Shah. He's a serial litigant. He's been blasting out these SIPA demand letters to businesses across the country. And pretty recently, he was declared a vexatious litigant by a federal court. I think it was it was at some point this summer. And there's been a lot of back and forth or not a lot of clarity in terms of what the courts and judges think about SIPA as a platform for bringing these kinds of cases. But just for the publishers listening, I mean, do you do you think SIPA is a legitimate legal theory, like with real teeth? Or is it kind of just like nuisance litigation?

43:00What's your take? You know, it's a great question. And I should confess that I don't know the answer because I'm not steeped in that area of privacy law. I do think that there are a lot of laws, though, out there, and SIPA may fall into this category, where they were written at a very different time, but they seem to map on to technological progress in a way that, of course, the authors of the law didn't intend because they didn't know about it. But you still have an obligation to follow the law as written, even if that means the technological niceties of it are different than when the law was first put into place.

43:36So I can't say whether these SIPA suits are nuisance value suits or are strong on the merits or somewhere in between. But I will say that you have to get your legal departments to pay attention to the laws that are on the books and follow those laws as written if you want to be safe. And if you don't like the law anymore because it no longer is tracking its original purpose in light of technological progress, you know, our democratic society, your job is to tell lawmakers to change the law and to vote in the lawmakers who will do it if the existing incumbents won't. Yes. Yay, democracy. Yay, democracy.

44:15And then a penultimate question, and it's about the VPPA, which kind of falls into the SIPA bucket sort of. And so to back up, Tubi, which is Fox's streaming service, Keller Postman, I know you weren't directly involved with this, but you guys filed a mass arbitration claim against Tubi on behalf of just like 24, 25 ,000 users in 24 for alleged violations of the Video Privacy Protection Act. essentially that Tubi shared people's viewing data with advertisers without consent. And then Tubi turned around and sued Keller Postman. They were alleging that the claims were not right and that the arbitration campaign didn't have, I don't know, it was manufactured, didn't have teeth or legs or some other body part.

45:03Where does all that stand now? And I don't know if you have anything that you can share. And then what do you say to people, to critics maybe, who argue that mass arbitration is not as much about the merits of whatever the case is and more just about making the economics painful for a company so they just have no choice but to settle? Yeah. I have to be careful about what I say about Tubi, but let me use it to answer the second part of your question, which I think is a good answer for Bill. So zooming out, surprise, surprise, companies who get hit with our mass arbitrations don't like it because their old paradigm was we're not going to have to pay anything when we do something wrong for$11.50, and that's great.

45:50And then we show up with$25 ,000 or we've shown up with$200 ,000 individually represented claimants and say, it's time for you to pay the arbitrator so that we can get started with the contract that you forced upon them. And their response is always some version of what you said. You're missing some body part or basically you, Keller Postman, you're a dirty shakedown artist. You're just trying to get me to pay$100,$200,$500 per claimant because you know that the arbitration costs are going to be more than$500 per claimant. And so it would be rational for us to settle. And my response to that is sorry, not sorry.

46:32It's not because the merits of our claims are not good that we are bringing them on behalf of our clients. We believe in the merits of our clients' claims. But it is absolutely true that the cost of arbitration is more than the cost of the claim. And there's a solution for that if you don't like imposing all of those costs on yourself for each individual. And that's a class action. But you deliberately chose to contract away the class action so that these people could not bring their claims in court. So the only game in town is arbitration. And it's not a shakedown to hold you to your own contract.

47:07And if the economics of that are unpalatable because you've written it that way, that's your problem. And it's my job to zealously advocate for my clients and get them a recovery, including by considering the costs of administration and getting the arbitration started. So to the extent that that's a consideration that a rational company is going to account for, I have to account for it in my zealous advocacy strategy. But we're never bringing claims that we don't think have legal merit. It just so happens that some of those claims are$500 claims, and$500 is less than the cost of proceeding and arbitration.

47:43Um, but you know, it's a little rich for companies who wrote these contracts as a way to escape class actions, which is the solution to the problem that we just described of transaction costs to then complain about transaction costs and how we're wielding them as a sword against them. Um, so, you know, I, I, I chuckle when the company say this about us. Um, you know, sometimes I bristle too, but mostly I chuckle, uh, because it's, it's just them being hoisted on their own petard. Ooh, I love, I love that idiom. It doesn't come up often enough being hoisted on one's petard. I stole it from a pretty great writer, so it's not me.

48:21Okay, last question. And this is something, we touched on it briefly, but something that every person who covers ad tech and antitrust has been asking for the better part of two years. You guys are asking yourself this question too because of your focus on Google right now. But what's your prediction for when we're going to see remedies? in the Google LaTeX antitrust case, just like an informed opinion. Because, you know, I got bets on Kalshi and Polymarket. So I need a little direction. I guess now you can bet on which pigeon is going to fly off the telephone pole first. So this would be as good a thing as anything to bet on.

48:59My prediction is certainly this calendar year. And if you want me to get more refined than that, I guess if you force me to it, I would say before Thanksgiving. Hopefully that's enough of a narrow range for me to have put my cards on the table. So I'm basing that on nothing, by the way. It's just sort of a vibe thing that it's been out there for a long time. Clerks tend to start rolling over. I don't know about Judge Brinkhamo's practice in particular, but a lot of federal judges, their clerks term out around this time of year and maybe September. And so you might think that the judge would want to get the opinion off of her desk while the clerk that had been working on it with her most thoroughly is still there and in chambers and not going to his or her next clerkship or private sector job.

49:53So sometime in the next few months would be my guess and before the holidays really kick off. But, you know, that prediction could be wildly off. It could be a year from now. Judge Berkama is under no time limit, and she's obviously a careful, conscientious, and thorough jurist, and she's going to want to try and get it right. And the requests that the government made for remedies are really big, so it's no surprise that she's taking her time. Well, if it happens by or before Thanksgiving, I will clink a can of Mountain Dew with you. Great. Because it's overdue. I'll have a dye of Mountain Dew, but we'll do it together.

50:32Yuck.

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