Google signs check for maximum damages to try to avoid jury trial

An unusual document appeared last week on the docket of the Justice Department’s second antitrust lawsuit against Google. It included a photocopy of a check which Google claimed was good for “maximum amount of damage”claimed in the case for his alleged anti-competitive actions in his advertising technology business. Google said it wrote the check to the Justice Department.

Legal experts say the photocopy of a cashier’s check was definitely strange. But the DOJ took things to a strange place first. According to experts, while it may not strike a chord with a layman as such, the DOJ’s decision to demand a jury trial is as bizarre as, say, waving a cashier’s check asking for maximum compensation in an attempt to escape a jury trial.

“It’s a creative response to an unusual strategy,” Howard University Law School professor Andrew Gavil wrote for On the edge. “Like chess: move and counterattack.”

Eileen Scallen, a professor of civil procedure at the UCLA School of Law, said she was “surprised” by the government’s request for a jury in this case. “This case will be highly technical and quite boring in parts,” she said in an email. “But having the potential for a jury adds a ‘wild card’ to Google’s calculations, which would increase the likelihood of them reaching a settlement.”

The case — which is the second showdown in a year between the DOJ and Google — is over the government’s allegations that Google illegally monopolized the ad technology market, effectively eliminating competition. The DOJ has just closed its case against Google’s alleged search monopoly and is currently awaiting a ruling from the judge who oversaw the trial. But neither the DOJ nor Google will have time to catch their breath, so to speak — they will be on trial this fall in the ad tech case.

Only a judge can decide on precautionary or equitable measures requests for relief – such as the forced divestment of parts of Google’s advertising business, which the DOJ requested in this case. But when compensation is also part of a case, the parties can often seek a jury trial, if that’s what they want. The jury requirement in an antitrust trial is not unprecedented – in fact, a jury unanimously awarded Epic Games a victory in its antitrust trial against Google in California, although it is still up to the judge to decide what exactly Epic will receive. The DOJ also required a jury in its new antitrust lawsuit against Ticketmaster and its owner, Live Nation, but that stems from the state laws of some of the state AGs that joined the case.

But unlike those cases, where Epic’s splashy campaign and the Eras Tour debacle captured public attention long before the lawsuits, the DOJ’s ad technology case is less well-known. It’s also arguably more technical in nature, with the details of advertising technology systems at its center. Google even quotes the DOJ lawyer from an earlier motion when the DOJ called its own case “highly technical, often abstract and outside the everyday knowledge of most potential jurors” in arguing for 15 trial days. The DOJ did not immediately respond to a request for comment.

“This much is clear: It was an unusual strategy in an antitrust case for the government to add a claim for damages as a way of seeking a jury trial,” said Gavil, who teaches antitrust and civil procedure.

Google spokesman Peter Schottenfels said in a statement that “DOJ drafted a damages claim at the last minute in an attempt to secure a jury trial.” In the filing, Google says it discovered through discovery “that the DOJ’s compensation claim was an afterthought,” saying it was late in the process when the agency began questioning relevant information. And even with the photocopied cashier’s check for damages on file, the company still disputes any liability in the case.

Gavil said it is important to note that the company check should not be interpreted as a reward, since the civil procedure rules explicitly allow an “offer of judgment.”

“So the idea that a defendant might offer to satisfy a claim as a way of dismissing it is not at all unusual,” Gavil wrote. “These offers are not seen as ‘rewards’. They constitute a method of dispute resolution, such as an agreement in which the defendant does not agree to any liability, but pays the plaintiff a sum in exchange for the rejection of a claim. No one would ignore this if it was a deal.”

But this is not an agreement and the eyes are, in fact, being criticized. Google’s check isn’t exactly an offer of judgment, Gavil said, because the government hasn’t agreed or refused to drop its damages claim in exchange, and Google isn’t agreeing to pursue its damages claim against it. “Instead, it is attempting to argue the damages claim that is the sole basis for the DOJ’s request for a jury trial, paying the maximum amount that the DOJ could recover on that claim. The theory is that if the claim has been fully satisfied, there is no claim.”

The ad tech trial is set to begin September 9 in the Eastern District Court of Virginia.