Case 1:23-cv-00108-LMB-JFA Document 1410
Filed 04/17/25
Page 105 of 115
PageID# 103785
improved safety and privacy, countered fraud, reduced latency, promoted investment, and
decreased prices.
A defendant shown to have engaged in exclusionary conduct to maintain a monopoly
may avoid Section 2 liability by proving that the conduct was done for “valid business reasons.”
Kodak, 504 U.S. at 483; see LePage’s, 324 F.3d at 163. Accordingly, procompetitive rationales
may justify “an otherwise per se illegal tying arrangement.” Mozart Co. v. Mercedes-Benz of N.
Am., Inc., 833 F.2d 1342, 1348 (9th Cir. 1987). A court must assess the “validity and sufficiency
of each claimed [procompetitive] justification.” Kodak, 504 U.S. at 483; see also Duke Energy,
111 F.4th at 362, 365; Viamedia, 951 F.3d at 464; Microsoft, 253 F.3d at 66. Because pretextual
and unsubstantiated justifications are not “valid,” Kodak, 504 U.S. at 483; see Actavis, 787 F.3d
at 658; McWane, 783 F.3d at 841-42, courts may give “greater weight to the contemporaneous
statements contained in the company’s internal records, than [to] later trial testimony in which
[its] employees declined to ratify those statements.” Google Search, 2024 WL 3647498, at *41
n.2; see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395–400 (1948). In assessing
whether proffered procompetitive justifications are “sufficient,” Kodak, 504 U.S. at 483, courts
frequently “balance the restriction’s anticompetitive harms against its procompetitive benefits.”
Epic Games, 67 F.4th at 994; see Alston, 594 U.S. at 96–97; Microsoft, 253 F.3d at 59, 66; FTC
v. Qualcomm Inc., 969 F.3d 974, 991 (9th Cir. 2020).
Google has failed to proffer a sufficient procompetitive justification for its AdX-DFP tie,
as each procompetitive benefit it alleged was either invalid or significantly outweighed by the
tie’s anticompetitive effects. Google contends that the integration of its products across the ad
tech stack, including the AdX-DFP tie, reduced spam, fraud, malware, latency, and other quality
issues; however, Google documents show that the buy-side AdWords team, which was
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