An uncommon doc appeared final week within the docket for the Division of Justice’s second antimonopoly lawsuit towards 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 specialists say the photocopy of a cashier’s test was undoubtedly unusual. However the DOJ took issues to a bizarre place first. In keeping with specialists, 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 artistic 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 “stunned” by the federal government’s request for a jury on this case. “This case can be extremely technical and fairly uninteresting in components,” she stated in an e-mail. “However having the potential for a jury provides a ‘wild card’ into Google’s calculations, so it will 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 know-how market, successfully boxing out competitors. The DOJ simply completed wrapping up its case towards Google’s alleged search monopoly and is presently awaiting a choice from the choose who oversaw the bench trial. However neither the DOJ nor Google can 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 compelled divestment of components 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 typically search a jury trial, if that’s what they need. A jury demand in an antitrust trial isn’t remarkable — in reality, a jury unanimously handed Epic Video games a victory in its antitrust trial towards 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 swimsuit towards Ticketmaster and its proprietor, Reside Nation, however that stems from the state legal guidelines of a few of the state AGs who’ve joined the case.
DOJ referred to as its personal case “extremely technical, typically summary, and out of doors 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 techniques at its middle. Google even quotes DOJ counsel from an earlier movement, when the DOJ referred to as its personal case “extremely technical, typically summary, and out of doors 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 obvious: it was an uncommon technique in an antitrust case for the federal government so as to add a declare for damages as a approach to search a jury trial,” stated Gavil, who teaches antitrust and civil process.
Google spokesperson Peter Schottenfels stated in an announcement 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 discovery “that DOJ’s damages declare was an afterthought,” saying it was late within the course of when the company started inquiring about related data. 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 vital to notice that the corporate’s test shouldn’t be construed as a pay-off, nonetheless, because the civil guidelines of process explicitly permit an “provide of judgment.”
“So, the concept a defendant would possibly provide to fulfill a declare as a approach to dismiss it isn’t in any respect uncommon,” Gavil wrote. “Such affords should not considered as ‘pay offs.’ They’re a way for resolving disputes, identical to a settlement by which the defendant doesn’t comply with any legal responsibility however pays the plaintiff a sum in return for dismissal of a declare. Nobody would bat an eye fixed at this if it have been a settlement settlement.”
Nevertheless it’s not a settlement settlement, and eyes are, in reality, being batted. Google’s test is just not 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 towards it. “Reasonably, it’s searching for to moot the harm declare which is the only real foundation for DOJ’s request for a jury trial by paying the utmost quantity that DOJ might presumably get better on that declare. The idea is that if the declare has been totally glad, there isn’t any declare.”
The advert tech trial is about to start September ninth within the jap district courtroom of Virginia.