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Today we’re filing a motion asking the court to dismiss Texas Attorney General Ken Paxton’s antitrust lawsuit over our advertising technology (“ad tech”) business.
This lawsuit has now been rewritten three times. With each version, AG Paxton follows the same pattern: make inaccurate and inflammatory allegations, publicize them widely, and repeat. This playbook may generate attention, but it doesn’t make for a credible antitrust lawsuit.
AG Paxton’s allegations are more heat than light, and we don’t believe they meet the legal standard to send this case to trial. The complaint misrepresents our business, products and motives, and we are moving to dismiss it based on its failure to offer plausible antitrust claims.
Why this lawsuit misses the law and the facts
At its heart, AG Paxton is asking the court to force us to share user data and design our products in a way that helps our competitors rather than our customers or consumers. But American antitrust law doesn’t require companies to give information to, or design products specifically for, rivals. This lawsuit fails to acknowledge that ad tech is a highly dynamic industry with countless competitors. It’s been recognized that competition in ad tech has led to reduced fees, encouraged new entry, led to increased investment and expanded options for advertisers and publishers alike.
Correcting AG Paxton’s false and misleading allegations
AG Paxton overlooks, or misstates, a litany of clear facts. We want to publicly and unequivocally refute the more egregious allegations:
- We don’t force “tying”: A central allegation in AG Paxton’s lawsuit is that publishers are forced to use our ad server in order to access our ad exchange. This allegation is simply wrong, and AG Paxton offers no evidence to prove otherwise. If a publisher wants to use our ad exchange with a different ad server, they are free to do so.
- Header bidding is thriving: A core claim is that we prevented rivals from using a technology, header bidding, through our Open Bidding program. But again, the facts don’t support that. Since we launched Open Bidding, header bidding’s popularity has continued to grow. Recent surveys show a vast majority of publishers currently use header bidding. We simply haven’t held header bidding back.
- Our auctions are fair: The complaint uses deliberately inflammatory rhetoric to accuse us of a litany of wrongdoings: “misleading” publishers, “rigging” auctions through special data access, running “third price auctions,” “pocketing the difference.” But quite simply, we have – provably – done none of these things. AG Paxton is distorting various optimizations that we have created to improve publisher yields and returns for advertisers. To be clear, contrary to his claims, these optimizations did not and do not result in Google “pocketing” additional revenue share and do not make auctions unfair. And our auction was always a second price auction (until 2019 when it became a first price auction).
- Out-of-date claims: And more broadly, much of AG Paxton’s lawsuit is based on out-dated information that bears no correlation to our current products or business in this dynamic industry (and in any event never amounted to a violation of antitrust laws).
Facebook Audience Network’s participation in Open Bidding
The allegation that has generated the most attention is that we somehow “colluded” with Facebook Audience Network (FAN) through our Open Bidding agreement. That’s simply not true.
To set the record straight, we are today including the full text of our agreement with FAN in our motion to the court. Here are some facts that contradict AG Paxton’s claims:
- This is far from a secret deal: We announced FAN’s participation as one of over 25 partners in our Open Bidding program, all of whom have signed their own agreements to participate.
- This is a procompetitive agreement: FAN’s participation benefits advertisers because it gives them additional ways to reach their desired audiences. And it benefits publishers because it introduces additional bidders to compete for their ad space, earning them higher returns. In fact, if FAN weren’t a part of Open Bidding, AG Paxton may have claimed we were preventing a rival from accessing our products and depriving publishers of additional revenue.
- FAN’s involvement is not exclusive: The agreement doesn’t prevent FAN from participating in header bidding or other competing auctions. In fact, FAN participates in several similar auctions on rival platforms. The agreement also doesn’t prevent FAN from building a competing product. Our agreement explicitly states that FAN’s participation is not exclusive (and nowhere in our agreement is header bidding even mentioned). And the entire Open Bidding program (of which Facebook is one of 25 participants) accounts for a small fraction of the display ads we place.
- We do not manipulate the auction: Finally, this agreement does not provide FAN with an advantage in the Open Bidding auction. FAN competes in the auction just like other bidders: FAN must make the highest bid to win a given impression, period. If another eligible network or exchange bids higher, they win the auction. We don’t allocate ad space to FAN, they don’t receive speed advantages, and we don’t guarantee that they win any auctions.
Our advertising technology helps fund digital content that benefits everyone, and it supports thousands of businesses, from small advertisers to major publishers. Our work in this space is designed to balance and support the needs of publishers, advertisers and consumers.
We’re confident that this case is wrong on the facts and the law, and should be dismissed. However, if it does move forward, we’ll continue to vigorously defend ourselves.
B2B Marketing News: More Executives Using Social, B2B Events Rebound, New Trust Barometer Data, Meta’s New Ad Policies, & Mobile Ad Spend Rises
B2B Pros Worry About Leads Getting To The Right Person, Study Finds
58 percent of B2B marketers have said that they are only somewhat or not confident in their organization’s process for taking inbound leads to proper sales team members — one of several statistics of interest to digital marketers contained in recently-released survey data. MediaPost
More executives are turning to social media during the pandemic. [Report]
Some 56 percent of business executives have said that they are increasing their usage of social media due to the pandemic, with 68.4 percent expressing positive reactions to colleagues or leaders sharing industry news and content on social media, according to newly-released report data. PRWeekUS
LinkedIn Adds New Courses on Building Your LinkedIn Presence, New Alert and Newsletter Tools for Company Pages
Microsoft’s LinkedIn has launched three new online courses of interest to digital marketers, while also releasing new details about forthcoming additional platform features including newsletters and audio events, LinkedIn (client) recently announced. Social Media Today
Last Year’s Global Ad Spend Said to Have Outperformed Pre-Pandemic Total by Almost 20%
A strong 29.1 percent increase of the digital ad spending category highlighted overall 2021 global advertising spending that outperformed pre-pandemic figures by nearly 20 percent, according to newly-release report data of interest to online marketers. MarketingCharts
Microsoft Removes Minimum Spend For Customer Match, Adds Shopping Enhancements
Microsoft has eliminated minimal spending requirements to utilize audience targeting with its Customer Match feature in Microsoft Advertising, and added several new features, as the firm increases its use of zero-party data, voluntarily shared information the firm makes use of for increased transparency and control, Microsoft recently announced. MediaPost
Social Media Usage Statistics For Digital Marketers In 2022
There were nearly 10 percent more global social media platform users in 2021, representing a total of over 4.5 billion people, while 84 percent of the U.S. population now say that they use at least one social platform — two of numerous statistics examined in a new look at digital marketing usage. Search Engine Journal
Only 1 in 5 B2B Exhibitions Were Canceled in Q3
After a near-total 98.1 percent drop in year-over-year in-person B2B exhibition industry performance during the third quarter of 2020, the most recent 56 percent decrease in the The Center of Exhibition Industry Research (CEIR) index points to progress on the slow road back to pre-pandemic in-person B2B event totals. MarketingCharts
Mobile Ad Spend Leapt 23% To $295B In 2021, 19% Jump Forecast For 2022
A robust 70 percent of overall digital advertising spending was accounted for by mobile during 2021, with mobile ad spend garnering a 23 percent increase, as globally some 3.8 trillion hours were spent on mobile during the year — three of numerous statistics of interest to digital marketers contained in recently-released report data. MediaPost
Meta Outlines Policy Requirements for Businesses Looking to Advertise and Sell on its Platforms
Facebook and Instagram parent firm Meta has rolled out information about forthcoming updated advertising policies, including some that will see the removal of certain targeting options used by marketers, Meta recently announced. Social Media Today
Edelman Finds ‘Vicious Cycle Of Distrust,’ Puts Onus On Businesses, Brands
Edelman has released the 22nd edition of its Trust Barometer report, highlighted by a growing ‘vicious cycle of distrust,” as fewer people have said that they trust the media, while some 58 percent have said they either buy or advocate for brands bases on their values and beliefs — two of many insights of interest to B2B marketers contained in the newly-released report. MediaPost
ON THE LIGHTER SIDE:
A lighthearted look at the “thought leadership” by Marketoonist Tom Fishburne — Marketoonist
Woman Bravely Powers Through Instagram Warning that She’s Been on App Too Long — The Hard Times
TOPRANK MARKETING & CLIENTS IN THE NEWS:
- Demandbase — Considering Working With B2B Influencers? Read This First — MediaPost
- Joshua Nite — 10 Ways to Adjust Your Current Marketing Strategies for Today’s Consumers — Small Business Trends
- Lee Odden — 5 Content Marketing Tips Using Webinars As An Example — Pepper Content
Have you run into own top B2B marketing news for the week? Please drop us a line in the comments below.
Thanks for joining us for this week’s TopRank Marketing B2B marketing news, and please return again next Friday for another examination of the most relevant B2B and digital marketing industry news. In the meantime, you can follow us on our LinkedIn page, or at @toprank on Twitter for even more timely daily news.
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