Judge vs. jury in spotlight after Google issues $2.3 million check

Unusual procedural move Alphabet Inc. Google is highlighting the subtle but important differences between jury trials and trials before judges that will impact the outcome of the government’s antitrust case against the tech giant.

Google paid the maximum damages that some government agencies allegedly suffered because of the company’s conduct. Because damages were not an option, a federal judge in Virginia said a jury was no longer needed to decide the other monopoly claims.

The company’s success in its jury defense followed a December loss and took on even greater significance after a jury delivered a landslide decision against another high-profile corporate defendant facing antitrust litigation: the National League of American Football.

The payment ultimately cost Google $2.3 million, which the tech company is likely to consider a small retainer if it convinces a judge to dismiss the Justice Department’s case.

“I think the worst-case scenario presented to the jury was a lot worse than a few million dollars,” said Ryan Baker, a trial law partner at Waymaker.

On June 27, the NFL was awarded damages that could grow to $14 billion when a Los Angeles jury found in favor of fans who claimed the league conspired with DirecTV to raise subscription prices for out-of-market games.

In the DOJ case, the damages were much lower, but the stakes were not. The department is also seeking an order to break up Google’s multibillion-dollar advertising business, which publishers and advertisers use to buy, sell and serve online video and display ads.

Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia, a Clinton appointee, will now issue a ruling in the trial, which is set to begin in September. Brinkema denied Google’s motion for summary judgment in June.

“Jurors can be capricious”

Jury trials and bench trials operate at different paces, with jury trials typically more expensive, longer and harder to predict, said Richard Roth, a jury consultant who has helped companies including General Electric and IBM prepare for trials.

“Jurors can be fickle and every defense attorney knows that,” Roth said.

Google and the Justice Department declined to comment on the matter.

Google previously called the Justice Department’s case “a baseless attempt to pick winners and losers in a highly competitive industry.” In its lawsuit, it also accused the department of pursuing a trumped-up claim for damages in an effort to break with common practice in Justice Department civil antitrust cases and avoid a trial.

The Justice Department said in a letter filed with the court on May 30 that it is “confident that we will receive a fair and just resolution of these important matters, whether it is conducted by a jury or in a district court.”

Google’s move to issue a check and reject the Justice Department’s damages claim is rare but not unheard of, lawyers said. The Justice Department’s other injunction claims do not include the right to a jury trial.

Large corporations tend to favor cases, especially those involving complex economic issues and theories of harm, before a judge, said Richard Holwell, a former judge in the Southern District of New York.

“Antitrust enforcement against Google’s businesses around the world is an incredibly complex issue,” he said.

The Justice Department’s ad technology case is expected to be the third high-profile antitrust case Google has faced in the past year over its online search and advertising businesses.

A separate Justice Department lawsuit over Google’s search business that is before a judge concluded in May and is awaiting a decision. A second one, before a San Francisco jury, led to a verdict in December that the company exerted a monopoly through the Google Play store, a loss that could ultimately cost Alphabet billions of dollars in revenue.

The decision follows a four-week trial that focused on practices such as Google’s app store charging developers a commission of up to 30%. A judge in a similar Epic v. Apple case in 2021 generally ruled in favor of the iPhone maker.

Google has vowed to fight the verdict. But a judge rejected its push for a new trial, writing in a July 3 order that there was “sufficient evidence” to support the jury’s decision.

“The process is the game”

Holwell, who has served on the trial court bench for about 10 years, said plaintiffs and prosecutors often view jury trials as an opportunity to focus on themes or narratives that a judge might find unconvincing.

“Being able to convey the central themes—that the defendant is a monopolist and is using his monopoly power to abuse ordinary people,” said Holwell, now a partner at Holwell Shuster & Goldberg. “That probably gets more traction with a jury than a judge who has been on the bench for 30 years and has tried a lot of antitrust cases.”

In the NFL class action lawsuit, lawyers successfully convinced a jury of an illegal price-raising scheme. The verdict came after the presiding judge expressed disapproval of the plaintiffs’ arguments. The judge ultimately could have reduced or overturned the verdict.

The Justice Department likely saw the opportunity to try Google’s ad tech case before a jury as beneficial because of the prevalence of Big Tech today, said Waymaker’s Baker, who once litigated against Google. Plaintiffs’ lawyers like juries because of the chance “to tell their story to people and get a reaction,” he said.

It is rare for the DOJ to bring civil antitrust cases in which the damages claim includes a jury trial. In announcing the case in January 2023, the department noted that this was the first time in about 50 years that it had taken such a step.

“A trial is a game,” said Rebecca Haw Allensworth, a law professor at Vanderbilt University. “Each side tries to sway the other side of the game. It’s fair to say that the DOJ’s primary goal was not to recover $2 million in damages but to obtain an injunction.”

In the case of United States et al. v. Google LLC, ED Va., 1:23-cv-00108, 6/7/24