Saturday, November 23, 2024

Judge Versus Jury in Focus After Google Writes $2.3 Million Check

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An unusual procedural move by Alphabet Inc.’s Google highlights the small, but significant, differences between jury and bench trials that will play a role in the outcome of a government antitrust case against the tech giant.

Google paid the maximum damages that some government agencies allegedly suffered due to the company’s conduct. With damages out of the equation, a Virginia federal judge said a jury was no longer needed to decide the other monopoly claims.

The company’s success in fending off a jury trial followed a court loss in December and has taken on even more significance after a huge jury verdict against another notable corporate defendant facing antitrust litigation: the National Football League.

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

“It seems to me that the worst-case scenario in front of a jury was a lot worse than a couple million dollars,” said Ryan Baker, a litigation partner at Waymaker.

The NFL on June 27 was hit with a damages award that could balloon to $14 billion when a jury in Los Angeles sided with fans claiming the league conspired with DirecTV to raise the price of subscriptions for out-of-market games.

The damages were far lower in the DOJ’s case, but the stakes aren’t. The department is also seeking an order breaking up Google’s multibillion-dollar ad business that publishers and advertisers use to buy, sell, and service video and display ads online.

Judge Leonie Brinkema of the US District Court for the Eastern District of Virginia, a Clinton appointee, will now render the verdict for a trial set to begin in September. Brinkema rejected Google’s summary judgment bid in June.

‘Jurors Can Be Fickle’

Bench and jury trials follow different rhythms, with jury trials typically more expensive, longer, and harder to predict, said Richard Roth, a jury consultant who has helped businesses such as General Electric and IBM prepare for trials.

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

Google and the DOJ declined to comment for this story.

Google previously called the DOJ’s case a “meritless attempt to pick winners and losers in a highly competitive industry.” It also accused the department in a court filing of pursuing a contrived damages claim in order to break with common practice in DOJ civil antitrust cases and avoid a bench trial.

The DOJ said in a May 30 court filing it is “confident they will receive a fair adjudication of these important claims, whether by jury or bench trial.”

Google’s move to write a check and moot the DOJ’s damages claim is rare but not unheard of, lawyers said. The DOJ’s remaining claims for injunctive relief include no right to a jury trial.

Big corporations tend to favor cases, especially those dealing with complex economics and theories of harm, in front of a judge, said Richard Holwell, a former judge in the Southern District of New York.

“The enforcement of antitrust laws as they apply to the Googles of the world is an exceedingly complex terrain,” he said.

The DOJ’s ad tech case is set to be the the third high-profile antitrust trial that Google will face over its online search and ad businesses in the past year.

The DOJ’s separate lawsuit over Google’s search business, which is in front of a judge, wrapped up in May and is awaiting a decision. The other, in front of a San Francisco jury, led to a verdict in December that the company wields a monopoly through its Google Play store, a loss that could end up costing Alphabet billions in revenue.

That decision followed a four-week trial that focused on practices such as Google’s app store charging software developers commissions as high as 30%. A judge in a similar Epic case against Apple in 2021 largely ruled in the iPhone maker’s favor.

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 “adequate evidence” to support the jury’s decision.

‘A Trial is a Game’

Holwell, who sat on a trial court bench for about 10 years, said plaintiffs and prosecutors often look at jury trials as an opportunity to focus on themes or narratives that a judge may not find as persuasive.

“The ability to get across the main themes—that the defendant is a monopolist, and they’re using their monopoly power to abuse the little guy,” said Holwell, now a partner at Holwell Shuster & Goldberg. “That perhaps gets more traction from a jury than a judge who has sat on the bench for 30 years and handled a lot of antitrust cases.”

In the NFL class action, lawyers successfully persuaded a jury of an illegal scheme to hike prices. The verdict came as the judge presiding over the case voiced disapproval over the plaintiffs’ arguments. The judge could ultimately slash the verdict or vacate it.

The DOJ likely viewed the opportunity to get the Google ad tech case in front of a jury as advantageous because of Big Tech’s ubiquity today, said Waymaker’s Baker, who once litigated against Google. Plaintiffs’ lawyers like juries because of the chance “to tell your story to people and get a reaction,” he said.

It’s rare for the DOJ to bring civil antitrust cases with damages claims that include a right to jury. In the DOJ’s January 2023 announcement of its case, the department noted that it was the first time in roughly 50 years it took such a step.

“A trial is a game,” said Rebecca Haw Allensworth, a Vanderbilt University law professor. “Each side is trying to tilt the playing side in their favor. It’s fair to say that the DOJ’s primary objective was not to recover $2 million damages, it was to get the injunction.”

The case United States et al v. Google LLC, E.D. Va., 1:23-cv-00108, 6/7/24

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