$2.3M: Google’s “get out of jury free” card

Google has successfully avoided a jury trial in an antitrust case by remitting a $2.3 million payment to the US Department of Justice. As a result of today’s decision, Google will undergo a bench trial—a trial presided over solely by a judge—since the upfront payment sufficiently covers any potential damages a jury might have awarded.

“I am satisfied that the cashier’s check satisfies any damages claim,” US District Judge Leonie Brinkema remarked following a hearing in the Eastern District of Virginia on Friday, as reported by Bloomberg. “A fair reading of the expert reports does not support” a higher amount, Brinkema noted.

Reportedly, the check amounted to $2,289,751. Bloomberg further noted that “Because the damages are no longer part of the case, Brinkema ruled a jury is no longer needed and she will oversee the trial, set to begin in September.”

The payment’s uniqueness was mirrored by the unusual US request for a jury trial, as antitrust cases typically proceed without one. The US government contended that a jury should determine damages due to alleged overcharging for advertising.

In a filing last week, the US opposed Google’s motion to dismiss the jury demand, arguing that “the check it delivered did not actually compensate the United States for the full extent of its claimed damages” and that “the unilateral offer of payment was improperly premised on Google’s insistence that such payment ‘not be construed’ as an admission of damages.”

The government’s damages expert’s calculations suggested figures “much higher” than Google’s cited amount, as noted in the filing. The exact higher damages sought by the government were redacted in last week’s submission.

The US, alongside eight states, filed a lawsuit against Google in January 2023, targeting the company’s advertising technology sector. This case has now expanded to involve 17 states.

Google contested the need for a jury trial, asserting that similar antitrust cases are traditionally adjudicated by judges due to their complex and abstract nature. Google stated, “To secure this unusual posture, several weeks before filing the Complaint, on the eve of Christmas 2022, DOJ attorneys scrambled around looking for agencies on whose behalf they could seek damages.”

The lawsuit from the US and the states accused Google of undermining fair competition in the ad tech industry. They alleged that Google aimed to “neutralize or eliminate ad tech competitors, actual or potential, through a series of acquisitions” and to leverage its dominance in digital advertising to coerce more publishers and advertisers into using its products, thereby impairing their ability to use competing products effectively.

According to the US government lawsuit, federal agencies had spent over $100 million on advertising since 2019, seeking to recover treble damages for Google’s purported overcharges. However, the government narrowed its claims to the ad purchases of only eight agencies, thereby reducing the potential damages.

Google dispatched the check in mid-May. While the amount was not initially disclosed, Google claimed it included “every dollar the United States could conceivably hope to recover under the damages calculation of the United States’ own expert.”

The US disputed the notion that $2.3 million was the maximum recoverable amount. “Under the law, Google must pay the United States the maximum amount it could possibly recover at trial, which Google has not done,” the US stated. “And Google cannot condition acceptance of that payment on its assertion that the United States was not harmed in the first place. By doing so, Google attempts to gain the strategic benefit of satisfying the United States’ damages claim (potentially allowing it to avoid a jury judgment) while simultaneously avoiding the strategic disadvantage of the United States arguing that Google’s payment is, at minimum, an acknowledgment of harm to federal agency advertisers who used Google’s ad tech tools.”

Google contended that the DOJ previously agreed its claims amounted to less than $1 million before trebling and pre-judgment interest. According to Google, the check it sent was for the exact amount after including trebling and interest. However, Google argued, “the DOJ now ignores this undisputed fact, offering up a brand new figure, previously uncalculated by any DOJ expert, unsupported by the record, and never disclosed,” as stated in their court submission.

Judge Brinkema sided with Google in today’s hearing, noting that “the amount of Google’s check covered the highest possible amount the government had sought in its initial filings,” according to the Associated Press. She described the receipt of the money, which was paid unconditionally to the government regardless of whether the tech giant prevailed in its arguments to strike a jury trial, as equivalent to “receiving a wheelbarrow of cash.”

Although the US failed to secure more damages than Google offered, the lawsuit also seeks an order declaring that Google illegally monopolized the market.

Featured image credit: Kerem Gülen/DALL-E 3