Federal Court grants carriage in Google adtech class action

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This judgment addressed two competing representative proceedings brought against Google entities by online publishers alleging anti-competitive conduct related to ad-tech services. The Q News proceeding was commenced on 16 December 2024 by Q News Pty Ltd and Sydney Times Media Pty Ltd, represented by Piper Alderman and funded by Woodsford Group Ltd. The Riverine proceeding was commenced on 14 February 2025 by Riverine Grazier Pty Ltd and Mornington Peninsula News Group Pty Ltd, represented jointly by Maurice Blackburn (MB) and Phi Finney McDonald (PFM) pursuant to an Agency Retainer Agreement that annexed a document titled “Google AdTech Class Action Cooperative Litigation Protocol”. Each proceeding is an ‘open class’ representative proceeding, and each proceeding raises similar allegations against Google. The applicants in each proceeding sought a permanent stay of the other.

Both proceedings allege that Google engaged in anti-competitive conduct in connection with programmatic sales of ad impressions for open display advertising, including allegations of misuse of market power contrary to section 46 of the Competition and Consumer Act 2010 (Cth). The Riverine proceeding concerns a broader range of conduct and additionally alleges contraventions of section 47 (exclusive dealing) and section 21 of the Australian Consumer Law (unconscionable conduct). The claims broadly concern five types of ad-tech services supplied by Google: publisher ad servers, supply side platforms, demand side platforms, advertiser ad servers, and ad networks. The pleadings trace the development of ad-tech services from 2009 and allege various categories of conduct including Google's ‘Decision Rule Conduct’, User De-identification Conduct’, Google's refusal to participate in ‘Header Bidding’, Tying Conduct’ (requiring use of bundled services), and preferential treatment of Google's supply-side platform (AdX) over competitors. The Riverine proceeding also raises additional allegations concerning ‘Project Bernanke Conduct’ (relating to alleged third-price auctions where Google retained the difference between the second-highest and third-highest bids) and ‘Google (YouTube) Exclusivity Conduct’ that are not present in the Q News proceeding.

Justice O’Bryan held that the pleadings in both proceedings suffered from some deficiencies, but found that a key difference between the proceedings concerns group membership: the Q News proceeding was brought on behalf of publishers domiciled in Australia, whilst the Riverine proceeding was brought on behalf of publishers who sold (to advertisers) impressions for the display of advertisements to consumers of online publications who were physically located or ordinarily resident in Australia, regardless of where the publisher is located. This broader definition in the Riverine proceeding means it includes all group members from the Q News proceeding, plus overseas publishers who sold impressions displayed to Australian consumers. Another significant difference concerned the scope of claims: the Q News proceeding seeks only damages, whilst the Riverine proceeding also seeks declaratory and injunctive relief (the latter being particularly significant given allegations that the unlawful conduct is ongoing). His Honour noted that in circumstances where the alleged unlawful conduct is continuing, injunctive relief offers a means of changing Google's rules and practices and avoiding future loss to group members.

His Honour also addressed the territorial reach of Australian competition and consumer laws. The Q News applicants fastened upon the location of the publisher claimants in Australia as the relevant connecting factor, raising claims in respect of the sale of impressions for the display of advertising anywhere in the world. Conversely, the Riverine applicants fastened upon the location of the display of advertisements to users in Australia as the relevant connecting factor, raising claims on behalf of publishers wherever they are located. At this early stage of the proceedings, his Honour found it was not possible to say that one approach was correct and the other incorrect, as both appeared to have merit. The Riverine proceeding defines the relevant markets by reference to the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements to consumers located in Australia, a definition his Honour accepted as arguable at this stage.

His Honour ultimately determined it was in the interests of justice to permanently stay the Q News proceeding and permit the claims to be litigated through the Riverine proceeding. This conclusion was based on three main factors: first, the broader group membership represented in the Riverine proceeding; second, the more comprehensive scope of claims and the relief sought (including the injunctive relief sought in the Riverine proceeding but not in the Q News proceeding); and third, the more realistic litigation budget in the Riverine proceeding (being more than double the litigation budget in the Q News proceeding) and more beneficial funding arrangements in the Riverine proceeding (notwithstanding the higher proposed success fees and legal charges). The Q News proceeding was funded by Woodsford, which agreed to seek a success fee of 22.5% of the first $150 million of gross proceeds and 20% of any gross proceeds over $150 million. The Riverine proceeding was funded by Fortress Investment Group and Balance Legal Capital, which agreed to seek a success fee of 25% if there was a settlement or judgment within two years, or 30% thereafter.

Relevantly, his Honour said:

[134] As set out in some detail earlier in these reasons, the Riverine pleading has unsatisfactory elements, and in parts of the pleading it is difficult to identify with certainty the conduct that is alleged to be unlawful. Despite those difficulties, it is tolerably clear that the types or categories of conduct alleged to be unlawful in the Riverine proceeding include all of the types or categories of conduct alleged to be unlawful in the Q News proceeding, and includes other conduct. In that sense, the claims made in the Riverine proceeding are broader than those made in the Q News proceeding. It is not possible to assess the merits of the claims made at this stage of the proceeding. In particular, it cannot be said that the additional claims made in the Riverine proceeding are unmeritorious. As a result, the broader scope of the Riverine pleading (in terms of the categories of alleged unlawful conduct) weighs in the Riverine proceeding’s favour, because it would be contrary to the interests of group members to stay a proceeding in which those claims are made…

[171] … I consider that the Q News budget is unrealistic.

[180] … [Because of the unrealistic budget] there is some risk that financial pressures will cause the conduct of the Q News proceeding to be compromised. In my view, that risk outweighs the higher funding success fee being sought in the Riverine proceeding.

However, his Honour expressed concern about additional costs arising from the agency arrangement between MB and PFM, noting that no evidence was adduced as to the circumstances in which the firms decided to consolidate their investigations and jointly commence a representative proceeding. His Honour made orders requiring compliance with a Cooperative Litigation Protocol, stipulating that certain categories of duplicative costs (including Litigation Committee costs) would not be recoverable from the respondents or settlement proceeds, and appointing a costs referee to conduct six-monthly inquiries into potentially duplicative costs. His Honour ordered that the fees of the Costs Referee would also not be recoverable against the respondents or from the proceeds of any award or settlement.

[Postscript: On 27 August 2025 the applicants in the Q News proceeding filed an application for leave to appeal from O’Bryan J’s decision, but subsequently discontinued the application.]

Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895

Federal Court of Australia | O’Bryan J | 6 August 2025

Applicants’ Solicitors: Piper Alderman; Maurice Blackburn & Phi Finney McDonald
Respondents’ Solicitors: Herbert Smith Freehills
Applicants’ Funder: Woodsford Group Ltd; Fortress Investment Group & Balance Legal Capital

AustLII Link

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