Google's alleged misrepresentations about sophisticated ad tech weren't "consumer-oriented" under NY GBL

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

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

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

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

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

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

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