Google writes check for max damages to try to avoid jury trial

An unusual document appeared last week in the docket for the Department of Justice’s second antimonopoly lawsuit against Google. It included a photocopy of a check that Google claimed was good for the “maximum amount of damages” claimed in the case for its alleged anticompetitive actions in its ad tech business. Google said it had written the check to the Department of Justice.

Legal experts say the photocopy of a cashier’s check was definitely strange. But the DOJ took things to a weird place first. According to experts, although it might not strike a layperson as such, the DOJ’s decision to demand a jury trial is just as bizarre as, say, waving around a cashier’s check for maximum damages in an attempt to escape a jury trial.

“It is a creative response to an unusual strategy,” Howard University School of Law professor Andrew Gavil wrote to The Verge. “Like chess: move and countermove.”

Eileen Scallen, who teaches civil procedure at 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 pretty dull in parts,” she said in an email. “But having the potential for a jury adds a ‘wild card’ into Google’s calculations, so it would make them more likely to settle.”

The case — which is the second matchup in a year between the DOJ and Google — is over the government’s claims that Google illegally monopolized the advertising technology market, effectively boxing out competition. The DOJ just finished wrapping up its case against Google’s alleged search monopoly and is currently awaiting a decision from the judge who oversaw the bench trial. But neither the DOJ nor Google will have time to catch their breath, so to speak — they’re headed to trial this fall in the ad tech case.

Only a judge can decide on injunctive or equitable requests for relief — like the forced divestment of parts of Google’s ad business, which the DOJ has asked for in this case. But when damages are also part of a case, parties can often seek a jury trial, if that’s what they want. A jury demand in an antitrust trial isn’t unheard of — in fact, a jury unanimously handed Epic Games a victory in its antitrust trial against Google in California, though it’s still up to the judge to decide what exactly Epic will get. The DOJ also demanded a jury in its new antimonopoly suit against Ticketmaster and its owner, Live Nation, but that stems from the state laws of some of the state AGs who have joined the case.

But unlike those cases, where Epic’s splashy campaign and the Eras Tour debacle attracted public attention long before the suits, the DOJ’s ad tech case is less well-known. It’s also arguably more technical in nature, with the nitty-gritty of ad tech systems at its center. Google even quotes DOJ counsel from an earlier motion, when the DOJ called its own case “highly technical, often abstract, and outside the everyday knowledge of most prospective jurors” in advocating 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 to seek a jury trial,” said Gavil, who teaches antitrust and civil procedure.

Google spokesperson Peter Schottenfels said in a statement that “DOJ manufactured a damages claim at the last minute in an attempt to secure a jury trial.” In the filing, Google says it learned through discovery “that DOJ’s damages claim was an afterthought,” saying it was late in the process when the agency began inquiring about 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’s important to note that the company’s check shouldn’t be construed as a pay-off, however, since the civil rules of procedure explicitly allow an “offer of judgment.”

“So, the idea that a defendant might offer to satisfy a claim as a way to dismiss it is not at all unusual,” Gavil wrote. “Such offers are not viewed as ‘pay offs.’ They are a method for resolving disputes, just like a settlement in which the defendant does not agree to any liability but pays the plaintiff a sum in return for dismissal of a claim. No one would bat an eye at this if it were a settlement agreement.”

But it’s not a settlement agreement, and eyes are, in fact, being batted. Google’s check is not exactly an offer of judgment, Gavil said, because the government has not agreed or declined to drop the damages claim in return, and Google isn’t agreeing to enter the damages claim against it. “Rather, it is seeking to moot the damage claim which is the sole basis for DOJ’s request for a jury trial by paying the maximum amount that DOJ could possibly recover on that claim. The theory is if the claim has been fully satisfied, there is no claim.”

The ad tech trial is set to begin September 9th in the eastern district court of Virginia.