Google Avoids Jury in Antitrust Trial with Check

The antitrust trial, which began Monday and is expected to last another month, has been set up as a jury trial. There is no jury. U.S. District Judge Leonie Brinkema, an appointee of former President Bill Clinton, is deciding the facts and law in the case from a courthouse in Virginia.

The Justice Department accuses Google of monopolizing the digital advertising market, illegally crushing rivals and locking customers into its ecosystem in order to raise prices for everyone. The case is distinct from another Google antitrust lawsuit settled earlier this year, in which a judge found the company illegally monopolized the search market.

Google says the Justice Department has overplayed the power the company has in digital advertising. If Brinkema finds that Google is an illegal monopoly in the market, it could force the company to break up.

Only one of the 5 charges required a jury to be present.

While criminal defendants have a constitutional right to a jury trial, the rules for civil cases are more varied.

The Justice Department has brought five separate charges against Google under the Sherman Act, a landmark 1890 law that allows the Justice Department to break up monopolies.

The first four acts provided for an “injunction,” meaning a judge could later order Google to change its practices.

The fifth was for compensation, i.e. money.

How much money? After some court wrangling, the Justice Department determined that the monetary damages would be the amount that eight different federal agencies overpaid for online ads they bought through Google Marketplace between January 2019 and January 2023. That amount would then be tripled, under the Sherman Act. And then they would add interest.

According to a pair of professors hired by the Justice Department to do the math, the total was $2,289,751.

By comparison, Alphabet, Google’s parent company, is worth $1.9 trillion.

Lawyers for the Justice Department’s antitrust division were caught off guard by the check, one of them said at a later court hearing. The check was cashed the night before a major lawsuit was due to be filed. Google did not admit to any wrongdoing in the fifth count, but its lawyers at Paul Weiss said they “voluntarily offered to pay the United States the full amount of the relief they could have received” to make the issue “moot” and “streamline” the rest of the legal proceedings.

Besides, Google’s lawyers say, it’s a cheaper solution than the legal fees the company would have to incur if it had to fight further.

“Rather than require the Court to address the Justice Department’s unfamiliar and unfounded request for a jury trial, and to avoid the waste of resources that would result from defending a damages claim worth far less than a fraction of the cost of the proceeds, Google has offered to pay the United States the full amount of the damages it seeks, triple the amount, plus prejudgment interest,” Google’s lawyers wrote.

But Google’s real victory was avoiding a jury trial.

Juries are less predictable than judges and may not be favorable to a big tech company.

“There is a stronger public sentiment against big tech companies now than ever before,” Rebecca Allensworth, a professor of antitrust law at Vanderbilt University, told BI.

The Justice Department “almost never” sends antitrust cases to a jury, Allensworth told BI. But in this case, they wanted one. Government lawyers filed a complaint with Judge Brinkman arguing that the fifth count should stand and that damages should be determined by a jury. The amount Google gave them in a check was incorrect, they said, citing court documents that they said showed the damages should have been calculated differently.

Ultimately, Brinkema sided with Google. The $2,289,751 figure came from calculations performed by Justice Department experts, she noted in the ruling. And the fact that it was a cashier’s check issued by Wells Fargo gave the Justice Department no justification for refusing to accept the money in order to keep the case open, she said. (The exact amount of the check was initially redacted from court documents, but Brinkema later made it public.)

“It’s absolutely ‘here’s the money,’” she said at the June 7 hearing. “If they could give you a wheelbarrow of cash, it would be the same thing.”

She added that the trial will be held without a jury.

A Google representative referred BI to an earlier statement the company issued in response to the judge’s decision.

“The Justice Department’s bogus compensation claim has fallen apart,” the company said in a statement at the time. “We are pleased that the Court has ruled that a judge will hear this case.”

Justice Department officials did not respond to a request for comment.

At the end of the June 7 hearing, Brinkema praised Google and the Justice Department for their astute legal arguments.

“I want to compliment the attorney. Your arguments are great,” she said. “I look forward to this trial because the quality of the legal services was excellent.”