An edited transcript of Ashley Keller’s interview with AdExchanger Editor in Chief Allison Schiff on AdExchanger Talks.
Editor’s Note:
On August 18, 2026, Ashley Keller of Keller Postman joined AdExchanger Editor in Chief Allison Schiff on AdExchanger Talks for an episode titled “Google’s Mass Arbitration Problem.” The discussion covers mass arbitration, the Google advertiser claims, potential damages, the status of the arbitrations, and Keller Postman’s earlier work in the government antitrust litigation against Google.
AdExchanger conducted and originally published the interview. Allison Schiff is the interviewer. This version is an edited transcript prepared for the Digital Ads Recovery Center. Light edits have been made for readability while preserving the substance and sequence of the interview.
Original interview: AdExchanger Talks – Google’s Mass Arbitration Problem
Related: Ashley Keller biography | Keller Postman’s Google Ads overcharge case page
Introduction and Keller’s Background
Allison Schiff: Welcome to AdExchanger Talks, the podcast devoted to examining the issues and trends in advertising and marketing technology that matter most to you.
Allison Schiff: I’m Allison Schiff, Editor-in-Chief of AdExchanger, and you’re listening to AdExchanger 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.
Allison Schiff: Hey, Ashley, welcome to the podcast.
Ashley Keller: Hi, Allison. Great to be with you.
Allison Schiff: 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?
Ashley Keller: I listen to loud techno music.
Allison Schiff: Really? Any recommendations?
Ashley Keller: Well, I’m old school. I like Tiësto and Paul Oakenfold.
Allison Schiff: All right. I don’t know what either of those things are. I will look them up.
Ashley Keller: There you go.
Allison Schiff: 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 nerdy ad tech things.
Allison Schiff: 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. And correct me if I’m wrong, but betting that the case will pay out. And you grew it to over a billion dollars in assets before selling it. And then you switched sides, to the other side of the table, and started filing the suits yourself. So what flipped?
Ashley Keller: Yeah, I don’t know if I would call it flipping sides, because when we were at Gerchen 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.
Ashley Keller: So we were working with plaintiffs and plaintiff’s lawyers at Gerchen 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.
Ashley Keller: I have flipped sides, though, in the sense that I started my career at a really great litigation boutique called Bartlit Beck, which is Chicago- and Denver-based. And predominantly – not exclusively, but predominantly – that firm represented defendants in high-stakes disputes. So I have gone through a career where I flipped sides, but it wasn’t from GKC to Keller Postman. It was more from Bartlit Beck to doing plaintiff-side work.
Allison Schiff: 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. 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 ad 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.
What Mass Arbitration Is
Allison Schiff: So your main model is mass arbitration. And 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, way down the line. 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?
Ashley Keller: Yeah, great question. So first, I like your lawyer joke a lot more than, a thousand lawyers at the bottom of the ocean joke. So we’re starting on the right foot.
Ashley Keller: 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 $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. That 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.
Ashley Keller: 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.
Ashley Keller: So you get one or two representative plaintiffs who then pursue that on behalf of the million people in the class. And 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.
Ashley Keller: 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. And sorry for picking on the makers of Mountain Dew. I don’t know why I did.
Allison Schiff: 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.
Ashley Keller: 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, and I want them to compensate me for it.
Ashley Keller: And so the reason that we 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.
Ashley Keller: 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.
Ashley Keller: And 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.
Ashley Keller: And 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 purporting to represent the class had to only pursue their own claims, and liability just was never found.
Ashley Keller: 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. We 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.
Ashley Keller: So that’s the genesis behind mass arbitration, and an explanation of the difference between mass arbs and class actions.
How Mandatory Arbitration Created Mass Arbitration
Allison Schiff: So two things. One, I’m weirdly in the mood for a Mountain Dew right now, and I haven’t had one in like 20 years. And 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 – because, 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.
Ashley Keller: That’s exactly right. 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 produced this new approach, which other firms have copied – and 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. They’re still probably better off than they were under the class action regime, although that’s not universally true.
Ashley Keller: 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 actions because they think that that’s the better trade. So it’s a closer call now that we’ve called their bluff and forced them to honor their arbitration agreements as written.
Allison Schiff: Right. Because you guys filed more than 75,000 arbitration demands. It 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.
Ashley Keller: 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, giving people access to justice is something that we definitely set out to do when we started Keller Postman. And that’s a good success story.
Allison Schiff: 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?
Ashley Keller: 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.
Why Digital Advertising Made Mass Arbitration Scalable
Allison Schiff: 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. And to hit scale, you need to find a lot of people. And there’s a delightful irony that to do that, you use digital advertising – 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 Erin Brockovich, or run newspaper ads, or knock on doors, billboards, a lot of shoe leather. So how has the ability to reach millions of potential claimants online changed what’s possible for you to do? And is there a irony in the fact that you’re doing it through online advertising, which is the absolute lifeblood for a lot of these tech companies?
Ashley Keller: Yeah, 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.
Ashley Keller: And so it is 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 criteria to bring a valid claim, I think, would have been pretty high. Whereas 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.
Ashley Keller: 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 anything higher than that amount, it does become viable. So it has opened a lot of doors for us to pursue this strategy in a way that technologically wouldn’t have been possible a couple of years ago.
Allison Schiff: I love that, like any performance marketer, you have to think about your CAC – your customer acquisition cost.
Ashley Keller: Absolutely. If you’re going to be in this space, that is the key cost driver that determines whether a mass arbitration is a go or a no-go, once we’ve satisfied ourselves that the merits make sense.
The Google Advertiser Arbitrations
Allison Schiff: 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. 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. And 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.
Allison Schiff: 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. And we’re still waiting for remedies.
Allison Schiff: 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?
Ashley Keller: Well, it’s different in some respects, but not in others. So everything you described is accurate.
Ashley Keller: To give a little bit of credit to myself, and more importantly to my clients, I will say the Judge Brinkema decision is a great decision for the United States. And the United States completely copied Texas’s complaint, which we helped draft. And somehow the rocket docket of the Eastern District of Virginia 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. 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.
Ashley Keller: But 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.
Ashley Keller: It’s different in the sense that this is not a set of claims for $11.50 or even $200 or $500. We 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.
How Advertisers Can Participate
Allison Schiff: How do advertisers get in on this? How do they raise their hand?
Ashley Keller: this is the selfish part, I guess, of the interview. They should contact me, because Keller Postman would be honored to represent them. But 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.
Ashley Keller: So 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 advertised, you’ve been harmed if these monopoly claims prove up and stick on appeal or stick in arbitration, and you’re entitled to compensation.
Thousands of Claims Already Filed
Allison Schiff: And one more before we take a quick break. How many claimants do you expect by the time you’re able to move this forward?
Ashley Keller: 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 proceed with a lawsuit.
Ashley Keller: But I think businesses are pretty sophisticated. Anybody 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.
Allison Schiff: It’s like – I know mass arbitration and class actions are different – but why not send in the postcard, or respond to the email when there was a little data breach at the Criterion Channel, or with Cambridge Analytica, all of that? I always do it, because why not? There’s really no reason not to.
Ashley Keller: 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.
Where the Google Arbitrations Stand
Allison Schiff: Okay, 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?
Ashley Keller: 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 is really surrounding that process. So we haven’t really gotten going on a lot of the substance yet, but that is to come quickly.
How Potential Damages Are Calculated
Allison Schiff: So 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. What would they stand to recover? What makes it worth it to participate?
Ashley Keller: if you take a step back, in order to be a monopolist, you have to have market power in a particular market under the U.S. antitrust laws. And the economic definition of that is that you could impose a small but significant, non-transitory increase in price. And 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 table stakes, 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 anticompetitive misbehavior. And all of that is, I think, documented well in Judge Brinkema’s and Judge Mehta’s opinions.
Ashley Keller: So 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. But just directionally, that gives you a sense of the kinds of numbers that we’re talking about. 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.
Can Advertisers Remain Anonymous?
Allison Schiff: 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.
Ashley Keller: Yeah. Unfortunately, the answer to that is no. Just like in court, if you’re going to sue a defendant, you have to – barring special circumstances that wouldn’t apply here, like being a minor, 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.
Ashley Keller: 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, there’s safety in numbers. I promise you are not the only ones that are going to be raising your hands. As 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.
Ashley Keller: 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 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. And I respect a business that would say, I do too much work with Google to even risk that. But I think the risk is relatively low.
Is Keller Postman a Claimant?
Allison Schiff: 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?
Ashley Keller: You could, but we don’t. It’s never a good idea – whatever the old saying is, he who represents himself has a fool for a client. And we don’t want to put ourselves in any conflict position vis-à-vis our clients, where our own interests might be at odds. So we have benevolently given up on any claims we might have. But, you don’t have to worry about us. We’re going to do just fine on this campaign.
How Long Could the Process Take?
Allison Schiff: 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?
Ashley Keller: 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.
Ashley Keller: The 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. 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 a decision comes out and it’s binding on everybody. It’s going to be individual adjudication at the individual claimant level.
Ashley Keller: In terms of a time period, on the super-fast end, I would say something like a year is realistic, and it 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. You 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.
Allison Schiff: And when you say a year and change, are we talking about the decision, or when someone involved actually sees money?
Ashley Keller: 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. And both of those opinions – one of them is already on appeal to the D.C. Circuit, and the other will be on appeal, I am sure, to the Fourth Circuit once Judge Brinkema rules.
Ashley Keller: 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.
Keller Postman’s Role in the Texas Google Case
Allison Schiff: 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. Can you do a little story time? What was that process? How did it play out? What was your involvement?
Ashley Keller: Yeah. Once upon a time, the great state of Texas called me up and said, we’ve been doing civil investigative demand, pre-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 I said, this looks really bad. Texas had 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. We beat the DOJ to the punch by a very significant margin.
Ashley Keller: What happened was – to bore your listeners who are non-lawyers with procedural niceties – an MDL was formed, which is short for multidistrict 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 – that’s when the United States decided to file suit.
Ashley Keller: 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 multidistrict 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 federal judge in Texas has said, let’s just wait for that judicial process to conclude before we go forward with the states’ action for federal antitrust and state deceptive trade practice violations.
Ashley Keller: So 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 how litigation sometimes goes, they aren’t getting the final decision first. They’re going to have to wait in line.
Allison Schiff: I was going to go to that trial, actually. They were going to fly me to Dallas. Dallas, right?
Ashley Keller: Yeah, just outside of Dallas.
Allison Schiff: I had an Airbnb and everything. I had the flights.
Ashley Keller: Well, 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.
Allison Schiff: Yeah, I’ll see you there whenever it happens.
Competitors Are Suing Google Too
Allison Schiff: 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 Google’s control of the publisher ad server and ad exchange markets, and Google has already been found guilty of these things, locked them out and cost them business. So what do you make of those cases? It seems 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?
Ashley Keller: 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. And though I haven’t looked at them in any detail, I think the liability story is going to be really strong.
Ashley Keller: 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 create this world that isn’t the world that should have existed. The real world that should have existed is 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? That’s often where the fight is where competitors are the ones suing, as opposed to the advertisers.
Ashley Keller: I think the advertisers have an easier case. It’s 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 going to face. But the liability story, I think, is very strong.
Allison Schiff: And I don’t know how they calculated this, but I was scanning the press release about the Teads case – the case that they brought at the beginning of August. And they’re claiming that they lost almost 7 trillion impressions between 2017 and 2023. So they’re trying to come up with real numbers to point to: these were trillions of impressions that we weren’t able to handle because of Google’s actions.
Ashley Keller: You know, nothing would surprise me. It’s shocking how many transactions Google is processing through the ad tech stack. 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, again, I don’t know the details of that case, I haven’t looked into it at all, but those numbers don’t shock me.
CIPA and Privacy Litigation
Allison Schiff: And totally switching gears and moving away from Google – I wanted to ask you about CIPA, 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 a creative use of the law, which is decades old. So, well, actually it is a little bit about Google. I mean, if you have Google Analytics on your site – we’ve seen plaintiff’s attorneys go after different publishers using CIPA as their platform.
Allison Schiff: And you might know the name Vivek Shah. He’s a serial litigant. He’s been blasting out these CIPA demand letters to businesses across the country. And pretty recently he was declared a vexatious litigant by a federal court – I think 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 CIPA as a platform for bringing these kinds of cases. But just for the publishers listening – do you think CIPA is a legitimate legal theory, with real teeth? Or is it just nuisance litigation? What’s your take?
Ashley Keller: 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 out there, though – and CIPA may fall into this category – where they were written at a very different time, but they seem to map onto 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.
Ashley Keller: So I can’t say whether these CIPA 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 – in 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.
Allison Schiff: Yes. Yay, democracy.
Ashley Keller: Yay, democracy.
Tubi and Criticism of Mass Arbitration
Allison Schiff: And then a penultimate question, and it’s about the VPPA, which falls into the CIPA bucket, sort of. So to back up: Tubi, which is Fox’s streaming service – Keller Postman, and I know you weren’t directly involved with this, but you guys filed a mass arbitration claim against Tubi on behalf of 24,000 or 25,000 users in 2024, 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, alleging that the claims were not legitimate and that the arbitration campaign was manufactured, didn’t have teeth or legs or some other body part.
Allison Schiff: Where 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 critics 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 have no choice but to settle?
Ashley Keller: 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 both.
Ashley Keller: 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. And 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.
Ashley Keller: 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.
Ashley Keller: And my response to that is: sorry, not sorry. It’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. And if the economics of that are unpalatable because you’ve written it that way, that’s your problem.
Ashley Keller: 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 in arbitration.
Ashley Keller: But 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. So I chuckle when the companies say this about us. Sometimes I bristle too, but mostly I chuckle, because it’s just them being hoist on their own petard.
Allison Schiff: Ooh, I love that idiom. It doesn’t come up often enough, being hoist on one’s petard.
Ashley Keller: I stole it from a pretty great writer, so it’s not me.
When Will the Google Ad Tech Remedies Decision Arrive?
Allison Schiff: Okay, last question. This is something we touched on briefly, but something that every person who covers ad tech and antitrust has been asking for the better part of two years – and you’re asking yourself this question too, because of your focus on Google right now. What’s your prediction for when we’re going to see remedies in the Google ad tech antitrust case? Just an informed opinion. Because, I’ve got bets on Kalshi and Polymarket, so I need a little direction.
Ashley Keller: 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.
Ashley Keller: My 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.
Ashley Keller: So I’m basing that on nothing, by the way. It’s just 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 Brinkema’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.
Ashley Keller: So sometime in the next few months would be my guess, and before the holidays really kick off. But that prediction could be wildly off. It could be a year from now. Judge Brinkema 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.
Allison Schiff: Well, if it happens by or before Thanksgiving, I will clink a can of Mountain Dew with you.
Ashley Keller: Great. Because it’s overdue. I’ll have a Diet Mountain Dew, but we’ll do it together.
Allison Schiff: Yuck.