An uncommon doc appeared final week within the docket for the Division of Justice’s second antimonopoly lawsuit in opposition to Google. It included a photocopy of a test that Google claimed was good for the “most quantity of damages” claimed within the case for its alleged anticompetitive actions in its advert tech enterprise. Google stated it had written the test to the Division of Justice.
Authorized consultants say the photocopy of a cashier’s test was undoubtedly unusual. However the DOJ took issues to a bizarre place first. In response to consultants, though it won’t strike a layperson as such, the DOJ’s choice to demand a jury trial is simply as weird as, say, waving round a cashier’s test for optimum damages in an try to flee a jury trial.
“It’s a inventive response to an uncommon technique,” Howard College College of Legislation professor Andrew Gavil wrote to The Verge. “Like chess: transfer and countermove.”
Eileen Scallen, who teaches civil process at UCLA College of Legislation, stated she was “shocked” by the federal government’s request for a jury on this case. “This case can be extremely technical and fairly boring in elements,” she stated in an electronic mail. “However having the potential for a jury provides a ‘wild card’ into Google’s calculations, so it could make them extra prone to settle.”
The case — which is the second matchup in a yr between the DOJ and Google — is over the federal government’s claims that Google illegally monopolized the promoting expertise market, successfully boxing out competitors. The DOJ simply completed wrapping up its case in opposition to Google’s alleged search monopoly and is presently awaiting a call from the choose who oversaw the bench trial. However neither the DOJ nor Google could have time to catch their breath, so to talk — they’re headed to trial this fall within the advert tech case.
Solely a choose can resolve on injunctive or equitable requests for reduction — just like the pressured divestment of elements of Google’s advert enterprise, which the DOJ has requested for on this case. However when damages are additionally a part of a case, events can usually search a jury trial, if that’s what they need. A jury demand in an antitrust trial isn’t exceptional — actually, a jury unanimously handed Epic Video games a victory in its antitrust trial in opposition to Google in California, although it’s nonetheless as much as the choose to resolve what precisely Epic will get. The DOJ additionally demanded a jury in its new antimonopoly go well with in opposition to Ticketmaster and its proprietor, Stay Nation, however that stems from the state legal guidelines of among the state AGs who’ve joined the case.
DOJ referred to as its personal case “extremely technical, usually summary, and outdoors the on a regular basis information of most potential jurors”
However not like these circumstances, the place Epic’s splashy marketing campaign and the Eras Tour debacle attracted public consideration lengthy earlier than the fits, the DOJ’s advert tech case is much less well-known. It’s additionally arguably extra technical in nature, with the nitty-gritty of advert tech methods at its heart. Google even quotes DOJ counsel from an earlier movement, when the DOJ referred to as its personal case “extremely technical, usually summary, and outdoors the on a regular basis information of most potential jurors” in advocating for 15 trial days. The DOJ didn’t instantly reply to a request for remark.
“This a lot is evident: it was an uncommon technique in an antitrust case for the federal government so as to add a declare for damages as a technique to search a jury trial,” stated Gavil, who teaches antitrust and civil process.
Google spokesperson Peter Schottenfels stated in a press release that “DOJ manufactured a damages declare on the final minute in an try to safe a jury trial.” Within the submitting, Google says it realized by means of discovery “that DOJ’s damages declare was an afterthought,” saying it was late within the course of when the company started inquiring about related info. And even with the photocopied cashier’s test for damages on file, the corporate nonetheless disputes any legal responsibility within the case.
Gavil stated it’s essential to notice that the corporate’s test shouldn’t be construed as a pay-off, nonetheless, for the reason that civil guidelines of process explicitly permit an “supply of judgment.”
“So, the concept a defendant would possibly supply to fulfill a declare as a technique to dismiss it’s not in any respect uncommon,” Gavil wrote. “Such gives will not be considered as ‘pay offs.’ They’re a way for resolving disputes, identical to a settlement by which the defendant doesn’t conform to any legal responsibility however pays the plaintiff a sum in return for dismissal of a declare. Nobody would bat a watch at this if it have been a settlement settlement.”
Nevertheless it’s not a settlement settlement, and eyes are, actually, being batted. Google’s test will not be precisely a proposal of judgment, Gavil stated, as a result of the federal government has not agreed or declined to drop the damages declare in return, and Google isn’t agreeing to enter the damages declare in opposition to it. “Reasonably, it’s searching for to moot the injury declare which is the only foundation for DOJ’s request for a jury trial by paying the utmost quantity that DOJ might probably get well on that declare. The idea is that if the declare has been absolutely happy, there is no such thing as a declare.”
The advert tech trial is ready to start September ninth within the japanese district court docket of Virginia.
