Direct Digital Made Misleading Statements About Cookie-less Ad Plans: Class Action

Programmatic advertising firm Direct Digital Holdings and three of its executives made false or misleading statements and failed to disclose material facts about the financial impact of a “'cookie-less’ advertising environment,” alleged a securities fraud class action Thursday (docket 4:24-cv-01940) in U.S. District Court for Southern Texas in Houston.

Terry Monsky filed the Securities Exchange Act lawsuit on behalf of class members who bought Direct Digital stock from April 17, 2023, to March 25 of this year. During the class period, Direct Digital “failed to disclose material facts,” including that its transition to a cookie-less ad environment was “accelerated” and would affect 2024 revenue, said the complaint. They also didn't disclose that the company's alternatives to third-party cookies, including planned investments in AI and machine learning “to build on first-party data sources, would not be viable alternatives to third-party cookies and similar tracking technologies,” the complaint said.

Direct Digital didn’t disclose to investors that it didn’t have adequate solutions to address Google’s impending phaseout of third-party cookies and that it “lacked a reasonable basis” for positive statements about the effectiveness of the company’s platform "and related financial results, growth and prospects,” said the complaint.

The company announced March 26 that it missed revenue estimates for Q4, citing lower-than-expected demand, “a delay in the release of Tier 1 publishers from beta testing” and accelerated efforts to transition to the cookie-less ad platform, the complaint said. One defendant, CEO and co-founder Mark Walker, revealed to investors that in Q4, it “became clearer that cookie depreciation would begin” in Q1 and that the company began its transition off cookies for media transactions. The suit also names Susan Echard, chief financial officer from June 2021 to June 2023, and Diana Diaz, who succeeded her as interim CFO and has held the permanent post since October.

Following Walker’s comments, Direct Digital's stock fell 39% to close at $16.04 the next day, said the complaint. Six days later, the company revealed that a “material weakness” was identified in its review of internal control over financial reporting as of Dec. 31, and the stock tumbled 10% further to $12.82 on April 2, it said.

Direct Digital has continued to rely on third-party cookies during and leading up to the class period, while the programmatic ad industry “has been preparing for the forthcoming decline of third-party cookie usage,” said the complaint. Google announced in January 2020 that it aimed to remove support for third-party cookies in Chrome by 2023, and Safari and Firefox have already eliminated them, it noted. After the U.K.’s competition and Markets Authority opened an investigation in January 2021 over concerns Google’s proposals could undermine competition in digital advertising, it agreed to delay its timeline for “cookie depreciation in Chrome to 2024,” said the complaint. Last month, Google said the phase-out was pushed to Q1.

Throughout the class period, the defendants downplayed Direct Digital’s reliance on third-party cookies and other tracking mechanisms. They suggested that the phase-out of cookies “would not be a concern” and that the company was integrating solutions that didn’t use cookies that were expected to provide higher impressions, and thus higher revenues, the complaint said.

But the company didn’t have viable alternatives in place to combat cookie depreciation, and “investors were not warned that the process would be accelerated,” the complaint said. As a result of the misleading statements and omissions, shareholders were “unaware of the true impacts of the decline of third-party cookie usage” in the company’s ad business, it said.

Monsky seeks for himself and class members compensatory and punitive damages, attorneys’ fees and legal costs and fees. A Direct Digital spokesperson emailed Friday that the company is aware that "a purported stockholder of Direct Digital Holdings filed a putative stockholder class action captioned, Terry Monsky v. Direct Digital Holdings, Inc. et al" Thursday in U.S. District Court for the Southern District of Texas against it and certain officers: "Direct Digital Holdings believes that the claims raised in the action are without merit and intends to defend against them vigorously."